edited by Armando Guevara Gil
Fernando Eguren - October 2008
1. Alex Guerra and Victor Saco, law and water issues in Peru
2. Laureano del Castillo Pinto, legal regime
water 3. Ortiz Ivan Sanchez, author of watersheds and water resources management. An approach
4. Carlos Pereyra, and cross-regional conflicts over water in Peru
5. Balvín Doris Diaz, The Andean watersheds from pollution mining
6. Guido Bocchio Carbajal, Water & Mining: conflict management
7. Jan Hendriks, local water management and national legislation in Peru
8. Armando Guevara Gil, water rights, legal pluralism and social concretions of law.
9. Elizabeth Salmon Garate, Pedro Villanueva Bogan, international law's contributions to the construction of the human right to water.
Since 1992 he has been discussing an alternative draft water law. The first project fell into the hands of Bertha Consiglieri of CEPES, thanks to the disloyalty of a friend of the ministry of Agriculture. This first draft, prepared by stealth, posed an awkward privatization of water, not the right to the resource, but on the resource itself. It was mentioned that the project had been prepared by a Chilean lawyer, on the basis of the law of that country's waters, but was frankly much more coarse than the original model. The idea was to create the basis for the development of a water market.
CEPES We got to the mission of making public the project maintained in strict confidence, which caused unrest in the agriculture ministry, then led by Absalon Vasquez (who just got out of prison on charges of fraud involving forged signatures for the election of President Fujimori.) From that moment Laureano del Castillo was practically appointed by the CEPES that it might be a critical monitoring of this and successive water bills that were replacing one another, and invariably were rejected by the users of the field There was every opportunity for debate in those years. There were several reasons for this rejection: the fear of privatization of water (possibly held in the memory control over water was one of the mechanisms that allowed the expansion of the farms), then on the coast especially without irrigation agriculture there. Whoever controls the water controls the land.
Where did this urge to change the law ____, given by the Velasco government shortly after the reform, which stated that water was the only State of the State? Possibly from several sources, but perhaps the main one was the World Bank. The Bank was very active for states to adopt neoliberal policies in Latin America, one of whose features was remove the hand of the state from interfering in the markets and make good all that could be susceptible buying and selling, even natural resources, considered the nation. Lending by the Bank was subject to these changes. The Fujimori government did not need too much pressure to align with the Bank's policies.
One of the officials of that institution, a Pakistani highly educated and refined, by the way, seemed like a good person, but with economic belief bordering on religion, was sent by the World Bank to Peru to preach the benefits of Privatization of water rights. I had read a paper of his in which he stated that the only country in the world to have national legislation to regulate a market water rights was Chile. The question fell under its own weight, and raised it, why he thought that a water market was the best way to allocate this resource if only one country of nearly two hundred had taken? His laconic response was "It's a process that has just started." It seems that this process has not progressed much.
The fact is that much water has flowed under the bridges, and 16 years after the first project, yet there is no new water law. Successive projects were softening their brand privatizing, as it happened to privatize water, privatize water rights, a-in newer versions, to talk about concessions. I know of no study of this long and frustrating process for all parties, yes there is a widespread feeling enter different types of users and the State that the law, even with subsequent reforms (such as giving Boards Users and Irrigation Commissions responsibility for water management in the business that consumes more water than is the agro). Certainly the recent decrees that focus on the agriculture ministry's authority over water are far from satisfying the demands of a regulatory body Nuervo.
If there is a widespread feeling that we need a new body of law on water, the reasons for the changes required are diverse.
This is one of the main themes of the book edited by Armando Guevara. All the authors argue that the legislation was in force when the book was published had to be changed (which was printed before the legislative decrees 1081-which creates the National Water Resources and Water Authority (ANA) in the ministry of Agriculture as lead agency, and 1083, which declares the national interest of water conservation and efficient use).
are several arguments. One is that there is a limited supply of water, punctuated by Laureano del Castillo ("The legal regime of water"). First, because the demographic shifts have been 'siphoning' the population of the basin where water is plentiful, the Great Basin-eastern Amazon to the multiple but small watersheds in western Venezuela. In fact, between 1972 and 2007 the population on the coast has increased 2.4 times, from 46% to about 55% of the total population.
The problem is exacerbated by the effects of climate change that is accelerating the disappearance of glaciers that provide a significant fraction of water of the rivers that supply agriculture, industries and populations and a source of hydropower. Current legislation does not seem to be attuned to the risks posed by this shortage on especially on the coast.
In my opinion, the book does not adequately reflect the seriousness posed by water scarcity, and how this shortage should also be expressed in rules governing the management and resource use. But to be fair, I think awareness of the effects that climate change may have on water supply, especially on the coast, has accelerated in the last year. Not that there has been no prior information, but be aware of a problem is not the immediate result of having the necessary information. No doubt that if the seminar that causes the book is now done, would give more space to the relationship between resource scarcity and the need for rules to deal with it.
Jan Hendriks ("local water management and national legislation in Peru") has other arguments supporting the need for change in water legislation. The legislation, highlights, does not include the "social covenant or agreement of coexistence among different people with different interests," which leads into "disassociation between national law and the realities that exist and evolve within the country."
Not surprisingly, "I say as the water law still in force-Law 17752 - was given by the Velasco government without any participation of civil society and, obviously, a non-existent Legislature. Nor were they discussed other important regulations issued by the Executive (DS-AG 37-89 transferring the responsibilities for operation, maintenance and management of irrigation systems to user boards, the DS 03-90 which establishes the rules of Tarifa fees for water use, and the DS 057-2000-AG, Water Management Organization, and finally the recent legislative decrees ¬ you). Hendriks
precise examples of this dissociation between law and actual practices:
- in granting water rights
- in water allocation criteria
- in the determination of tariffs, quotas and contributions
- in transfers in the use water and
- water organizations.
In an act of faith in the political, commendable in the political context we live in, Hendriks states "... that the state can make more systematic efforts to meet local realities and the different notions of law and water management ... "and the legislation must meet criteria of" legal pluralism, equity, social cohesion and sustainability. " Hendriks
actually goes beyond what they are "different interests", and also considers the need to respect certain individual and common values \u200b\u200bfor water. In this connects very While the article approaches the Armando Guevara ("water rights, legal pluralism and social realization of the right"), for whom the type of relationship between society and natural resources is a cultural fact, and as such there are different regulatory systems that not only must be known and respected, but considered on an equal footing with state standards. The vocation of the 'Andean states', since they were founded, he stresses, has been to deal with difference.
Guevara takes the debate into deeper water, it should be.
understand that Guevara's vision can lead to consider state law in the circumstances ignoring other regulatory systems, such as those illegitimate legitimacy is given by these other different systems. In any case, this mismatch is a source of conflict in which they are the latter-what might be called cultural minorities, those who lose out, as are those who do not have to turn the support of official authority.
Not only that. Especially in areas recently communicated, knowing the law or not to know can have very large. This is the case, using examples from the reality that a community has not formalized its access rights to certain water sources that have always been right, ignorance of the rule, while knowledge of it allows a mining company to acquire the rights to them. Knowing whether or not the law is a secondary fact in a country like ours, where to start rural illiteracy is very high (almost 20% nationally, but around 25% in six departments), and therefore also very high chances of not knowing the written law. If the state and now that there are regional governments, this will also compete, not proactive in disseminating laws, and not proactive, then the law must always have a bias against the marginalized.
is undoubtedly a difficult problem, because what Guevara being right in the claim to respect diversity, at the same time is also reasonable that a national law to establish certain priorities which respond to national needs, for example, resulting from increasing water scarcity, and that they are above those particular standards with which to collide.
from which emerge two things: (1) the importance of taking into account these considerations now developing a new water law, which implies mechanisms for consultation, not to respond to any itching participation, but to take note and the diversity of situations and habits and customs, and (2) the need for the dissemination and explanation of the rules, so that they can effectively applied on an equal footing, at least in terms of knowledge of the rules referred to, and prevent or reduce anti-popular bias. It's what they call Anglo-Saxon 'legal litteracy' or something like legal literacy.
To begin, the rules should be translated into native languages, the last census shows that 37% of the rural population has a mother tongue other than Castilian, but in the departments of Cusco, Huancavelica and other central and southern Andes, the percentages may be about 80%.
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