Evolving rights to (and of) water in Chile: a case for relationship-based water law and governance

Abstract

Theoretical debates about water law have long been characterised by a tension between notions of water as a human right and as a commodity, alongside developing attention to resistance by Indigenous groups to the colonisation of their waters. This tension is apparent in Chile, where different conceptions of rights continue to be traded off against each other–including the rights to property and to water. In recent years, water law debates in Chile have gone beyond the traditional property/rights dichotomy. These debates increasingly evidence attempts to reflect diverse ontologies of water that emphasise not just rights to water but human responsibilities towards water. This article uses a legal analysis of Chilean laws, including the 2022 failed draft Constitution, to draw out implications for the continued evolution of related legal rights regimes. We uncover important lessons, with comparative and global relevance, about the normative content and potential of the human right to water, particularly in supporting reciprocity and relationality between peoples and waters. We argue there is merit in pursuing the human right to water alongside other legal pathways for protecting human relationships with water, within legal frameworks that guarantee the exercise of the rights and authority of Indigenous peoples.