Pontificia Universidad Católica de Chile: Proposals for the constitutional regulation of water

The multiplicity of functions and values ​​of water, its changing, dynamic and diverse reality, as well as the country’s water scarcity are factors of context that the document ‘ Aguas y nueva Constitución. Perspectives and proposals’ , prepared by the Water Commission of the UC Constitutional Forum , identifies as some of the most relevant for the constitutional deliberation on this issue.

This Commission, coordinated by the professor of the School of Law Daniela Rivera, has the participation of academics UC Winston Alburquenque and Alejandro Parodi (Law); Sandra Cortés (Medicine); Guillermo Donoso and Oscar Melo (Agronomy and Forest Engineering); María Molinos and Sebastián Vicuña (Engineering); Francisca Reyes (Political Sciences); and Raimundo Soto (Economy).

“We have a very valuable opportunity to rethink and define the standards and principles that, from this higher standard, should promote a more sustainable and integrated order and management of water,” says the coordinator of the Commission “- Daniela Rivera, UC Law academic

The text provides a succinct and general diagnosis on the current situation of water in Chile, considering aspects such as hydrological conditions, the legal framework, the political and social scenario and water management, to later specify what is the role of a Constitution in this matter and systematize the main themes that should be considered in the proposal of a new Magna Carta.

“The document systematizes the main issues that we think should be addressed in the proposal for a new Constitution. Water problems and challenges are multiple, complex and structural, and their resolution certainly exceeds the focus and scope of a Constitution. However, we have a very valuable opportunity to rethink and define the standards and principles that, from this higher standard, should promote a more sustainable and integrated management and ordering of water ”, points out the coordinator of the Commission, Professor Rivera.

Along the same lines, the director of the Forum, Professor Alejandra Ovalle, affirms that “it is a very significant contribution to the constituent process, since it presents a comprehensive proposal that incorporates the various aspects of the constitutional treatment of water, a proposal that responds to an interdisciplinary and functional diagnosis of constitutional deliberation ”.

Proposals for a new Constitution
The first proposal presented in the document is related to the multiplicity of functions and values ​​of water. Thus, it is suggested to establish, as a general guiding principle and as a criterion that must be respected by the legislator, the recognition of all the functions that waters fulfill and of the different values ​​that they represent in society, those that must be incorporated into the processes of organization, planning, management and decision-making in water matters.

The second proposal is the explicit consecration of the human rights to water and sanitation in the Constitution. The need to provide total clarity on the concept and content of these rights is highlighted, identifying the person responsible for their compliance and the way to make them effective.

It is also necessary, the text reads, to make explicit the legal nature of a national good for public use of water, and, associated with it, the generic rights, powers and duties of both the State and individuals in relation to them.

Regarding the mechanism and criteria for assigning water uses, it is proposed that the Constitution stipulate that use rights may be granted, via concession, and that it will be the law that must regulate this process, conditions of exercise, limitations and extinction, in conformity to the public or national interest and bearing in mind the dynamism of the waters.

Finally, regarding the institutional framework of water, it is proposed to specify in the Constitution that the public administration of the same must be exercised by an autonomous and technical body, with legal personality and its own patrimony, located outside the centralized administration scheme; in subsidy, that it is exercised by a decentralized entity, with legal personality and its own patrimony, and with a designation mechanism that ensures its relative independence from the government or political power in power.

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