INTEGRATED WATER RESOURCE MANAGEMENT UNDER LOCAL RIGTHS FRAMEWORK: SOME LESSONS LEARNED FOR THE ANDEAN REGION. Conference Statement FAO

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1 INTEGRATED WATER RESOURCE MANAGEMENT UNDER LOCAL RIGTHS FRAMEWORK: SOME LESSONS LEARNED FOR THE ANDEAN REGION BACKGROUND Conference Statement FAO Dr. Ingo Gentes WALIR-Chile The historic background of most Water management rules and rights in the Andean communities are informed by a hybrid mixture of ancient, colonial and contemporary norms and principles, originating from local, national and foreign water regulations - both official and non-official. Although colonial legislators promulgated ambivalent laws regarding the formal recognition of indigenous water rights, the last two centuries national legislation in the Andean countries tended to formally deny these multiple sociolegal repertoires sustaining local water management. But, just as local laws presuppose the existence of and interaction with national legislation, paradoxically, State law and more and more Public Policy Programmes fundamentally bases its existence on the functionality of local rights systems, which can respond to local needs and contexts. Therefore, apart from being a result of claims of excluded indigenous and peasant populations, State law - threatened to lose its influence and operational capacity for not being appropriate in particular social settings increasingly has recognized local and indigenous normative frameworks in a juridico-political sense, be it in very divergent manners (Boelens et al, 2005). Often this has been done, as Boelens et al. (2005) mentioned, by incorporating special laws, to complement existing national legislation. This special legislation implies a simultaneous official recognition and negation of the diversity of local water management repertoires. As illustrated by the some cases of Ecuador, Peru and Chile, in between the Water law and Indigenous Rights Programme (WALIR, special and double legislation, characterized by intra-systemic juridical pluralism and based on de facto hierarchical structures and on ideological conceptualizations regarding ethnicity, community and legality, do not resolve the difficult tensions between official law and local water rights systems. Peasant and indigenous groups respond to this legal subordination of their water rights and normative frameworks with a large variety of strategies, both legal, extra-legal and illegal. One of the core problems in fact in most Andean countries is that laws, public administration and or policy regarding water resources ignore or deny the existence and importance of common-law normative frameworks regarding local indigenous rights and uses and water resource management rules. If local indigenous and rural communities 1 1 The term indigenous or rural communities is used to refer, to the households and farmers of indigenous and local origin, living in certain territories, who identify with a given people or nationality, base their 1

2 regulations arte taken into account, the intention is generally only strategic: some indigenous and peasant organizations feel assured that these public policies are designed to institutionalise them and treat them as static societal bodies, which does not go along with Andean communities day to day realities or customs. In the beginnings the conceptual background on the WALIR-Project, for example, attempts to define and clarify the legal and cultural grounds for water management and compare positive (statutory) and local indigenous law. Accordingly, it is a document for initial discussion regarding the Water Law and Indigenous Rights project (Gentes, 2001). This project has the objective to contribute to understanding indigenous law and the need to recognize and identify their rights, and to sensitize decision-, policy- and lawmakers with the aim to achieve concrete recognition of indigenous norms on usage, rights, customs and management of water in the national legislation of each country. RECOGNITION AND PARTICIPATION OF LOCAL RIGHTS IN WATER POLICIES ARROUND LATIN-AMERCIAN COUNTRIES In regard to water resources, it seems evident that, without even minimally clear systems to recognize indigenous uses or rights, any reference to integrated water management systems is seriously weakened. For example, laws, courts and policies for water resource management largely overlook user organizations fundamental practices and principles in the Andean countries. Rules and procedures are generally imposed 'topdown and from outside'. However, despite the problems they face, local normative frameworks, rights and water management in indigenous and rural communities also confirm the possibility of achieving sustainable, equitable management, sometimes more democratically and better suited to the local historical and agro-ecological context. The wide diversity of agro-ecological zones in the Andean countries, and the great variety of cultures and peoples, offer no justification for a 'one-size-fits-all' legal framework or a water policy seeking standardization of all water management institutions, based on external criteria and contexts. In some applied research studies, WALIR members like Boelens (2003) have pointed out that the keywords are not anymore exclusion and outright oppression, but so-called inclusion, integration and participation, in the name of equality. With these modern concepts, fundamental questions come up, mentioned by the same author: 1. Equal to what, equal to whom, equal to which model? The basic assumption in current Latin American water policies is, that progress means: equality to the occidental, technocentric and male-biased water management model. The concept of rational water management is interspersed with non-indigenous norms about efficiency, social security, effective organization, private ownership and economic functionality. In practice, indigenous peoples and local communities are forced to equalize. In other words, the peasant and indigenous communities livelihood on socially collective, community-oriented practice of reciprocity and redistribution, but also on communitarian-private rights holder, and have a system and public strategy of political, administrative, economic, spiritual and cultural organization that is collective and community-based. 2

3 have to adopt the norms and practices of white or mestizo water users or to submit to public administration rules and programmes, which most often run counter to local social relations and environment, and disintegrate local communities and identity. 2. Inclusion in what? Participation in whose objectives, visions, and terms? To this respect, the Second World Water Forum (2000) concluded that: there is a recurrent problem for indigenous peoples, who are often constrained to deal with vital issues on terms dictated by others. Traditional knowledge is seen as inferior in current political, legal, and scientific systems and therefore their arguments are discarded time and again by courts and other institutions. 3. Integrated water management and integrated done by whom? If IWRMpolicies seems to be a general consensus, we have to ask for who does the integration. In Latin America Countries it is mostly the political group and parties in power, and not an independent, controlled and full democratic Water Resource Council. Some results of the WALIR case studies demonstrated that indigenous and most local rural communities demand for sustainable security of their water rights system, as well as to make use of a flexible legal framework, including water uses and customs by indigenous peoples (see Bustamante, 2002a,b; Getches, 2002; Guevara Gil, 2004, Peña et al, 2004; Vera, 2004). That seem to pose structural problems for current national laws, since these laws ignore the negative results when water uses by indigenous communities, cities or commercial / mining activities interfere with each other. The lack of some national-scale bodies and norms to respect and protect local and indigenous rights has meant the destruction of many indigenous communities uses and rights by mining and hydroelectric activities, and runaway urban growth. At the moment, the indigenous and peasant population is facing especially severe and growing shortage of water and contamination of watershed basins and over exploitation of groundwater resources. Conflicts regarding water resource distribution or pollution are growing, partially caused by denial, discrimination or unsuitable management and regulation mechanisms. However, there seems to be a new opening in present-day politics that could make it possible to amend existing laws. These are possibilities for change, as the WALIR group pointed out in several international events since 2001, that must be taken advantage of in order to direct attention to those normative frameworks that are still in force in indigenous communities, as well as the uses and rights resulting from these norms. LOCAL INDIGENOUS WATER LAW AND LEGAL WATER MANAGEMENT PRINCIPLES There is undoubtedly tension between (local) common-law systems and the official laws comprising different notions of public and private domain and various ideas about property and property rights. This tension arises, for example, insofar as there is no clear, explicit recognition of indigenous communities water rights in Latin America. 3

4 Researches and public agencies must be aware that (1) strictly speaking, it would be logistically and administratively unmanageable to attempt to codify common law (and governments have no commitment to undertaking such a task in the Andean countries); and (2) local rights (exclusive or priority-related) entail a number of new problems, as outlined above, for local management and on the national water management level. For example, with respect to local rights to underground water or basins, local rights to basins during drought periods, cases of over-utilization due to increasing demand by farmers, new canals or aqueducts crossing and cutting through traditional routes and divisions, or local rights that work with new integrated management principles and deny or reject local collaboration, etc. (Gentes, 2002b) Common-law systems, for water resource management and usage, generally feature: local rights that often go beyond mere rules of expedience or practice, and are sometimes firmly grounded in people s religion or world-view; local rights that sometimes emerge from historical rivalry or jealousy, such as among communities, family groupings and large farm owners; local rights that are dynamic; local rights that are imprecise, for instance in limiting responsibilities and quantifying usage rights, etc. For jurists local and indigenous rights are often difficult to acknowledge, because they are responsive and flexible, which forces attorneys to depend more on assertion than on proof to demonstrate their effective existence (Sandford, 1989; Saunders, 1991) Water rights acquired under the notion of a common-law system are generally not transferable separately from the adjacent land water and land comprise a territorial unit. Most local systems recognize community entitlement to land (and consequently to water) rather than individual rights so the land owns people, rather than the other way round. In general, indigenous and peasant communities practice various legal and management systems, constituting complex mixtures and legal plurality. Moreover, they also resort to outside bodies in order to achieve a consensus or reconciliation. Water management strategies proclaimed by many indigenous user organizations often focus on trust and co-operation among and with indigenous communities. Such factors as consensus, reconciliation and gradual internal penalties are also fundamental for integrated water management. Seen in this light, constitutions or water laws that enable individual water use may certainly contain factors favoring indigenous communities. Nevertheless, nation-wide rights individualization undoubtedly weakens or fragments community collective-right strategies if disputes arise. Therefore, a number of grassroots proposals in Andean countries mention that collective rights must override individual rights (Boelenes, 2003). Definitely, the alternative to individual water rights, as proposed by indigenous and peasant organizations in Bolivia, for example, may be to manage and use water as a community property or right (Bustamante 2002 a,b). Can both normative systems co-exist? Should the two systems (positive governmental law and local community law) be jointly codified? The advocates of this idea point to a 4

5 number of successful examples from other parts of the world 2. How can they take advantage of each other? The discussion about recognition of indigenous and local rights gives rise to several questions and core issues for reflection, such as: Should as many elements of customary norms be recovered as possible, specified and thus preserved, from the present or the past? This would seem impossible, in view of the tremendous variety of customs, and the contradiction between details of indigenous customs and national water policy principles. Must ownership, administration and control systems be as flexible as possible in order to reflect customary law? How can local traditional authorities be taken into account, from the outset, into integrated water management structures? Should integrated water management always follow agreements based on community consultation and linkages with local community structures? etc. Certain proposals would formally codify common law, requiring a formal framework for local participation in structuring the water system, monitoring and legal penalties to ensure both local and public efficiency. Other proposals suggest to isolate and codify water rights, taking the elements of indigenous common law that are essential to perpetuate the existence of local lifestyles and ensure their continued collective community ownership without interference from governmental bureaucracy. All uses or requirements for other projects (e.g. irrigation) serving the community at large must be allocated by public domain. This would enable the entire community to enjoy benefits in the same terms as the family unit does. Many of such proposals mention that any sort of arrangement requires an inventory of local law relevant to given water use rights. Attorneys who favor the letter of the law will want both local and non-local rights to be defined, with quantifiable, legitimate terms and constraints, administratively. This, however, would entail a number of problems, as we have seen in earlier chapters. Some assert that local and indigenous rights are perfectly viable within a modern legal system, since they respect both outside-world rights and those inside the local customary unit (see, for example, Sandford 1989, Saunders, 1991). They even claim that local customs are open to institutional changes, since these rights have essentially been molded through lengthy processes of conflicts, and adaptations to different legal and socio-historical settings. A number of proposals mention the importance of maintaining flexibility in the ways that rules and unique organizational forms are formulated and applied, rather than outlining them in detail. 2 Two well-known examples of co-existing customary rights and modern legal systems in water management crop up throughout the literature: the Huertas in Spain and the zingers in the Philippines. Both systems have survived for several centuries in co-existence with the legal norms of national systems. Indeed, both are complicated, detailed rule systems governing participation, control and balance issues peculiarly suited to the locality s specific socio-economic needs. However, it would be virtually impossible to copy either system elsewhere, although they share the intrinsic features of community water-resource law. 5

6 Ultimately, if local law is to be fit into formal water systems, there is the problem that a single local customary legal system could contribute to training a school of attorneys, who would then always want to defend their own prototype customary law. SOME GOOD PRACTICES ABOUT PREPARING A ROSTER ON RECOGNITION OF LOCAL WATER RIGHTS, USES AND CUSTOMS It would seem that some of the countries under examination have designed administrative and planning procedures regarding indigenous areas and property rights. However, they commonly fail to clearly define the rights and obligations of all interested sectors (e.g. mining, agriculture, hydropower or logging) or of the government, in relation to indigenous rights. Much less hey have developed the material means or procedures to enforce them. The resulting vague, un-defined situations not only create uncertainty and legal insecurity, but also fail to effectively ensure the collective indigenous interests that are protected (Gentes, 2002). The WALIR project stresses the significant difference between the way indigenous people s rights are regulated in Latin America and in the United States, especially in the American Western states. It is essential that, in the US, after historical expropriation processes, current judicial decisions have operationally accorded very high priority to indigenous rights, which are respected and enforced by statutory law. The US system thereby corroborates another traditional element of the law / policy / economics system: clear, precise property rights and authorities who are willing and able to enforce them, even if coercion is required (Getches, 2002; 2003). Another associated problem in Latin America, alluded to in earlier sections, is that water legislation usually does not recognize non-appropriative customary uses, such as fishing in lakes. Moreover, once customary uses are destroyed, they are no longer even considered in water project assessments, much less indemnified for. Some authors insist that, if previous concessions to third parties cannot be voided, indigenous communities must be indemnified. The amount of compensation should reflect not only the pecuniary amount, but also their relevance to indigenous communities livelihoods. Socially, Andean Water is a community asset, with communities having elaborated systems of rights and duties conditioning their use and enjoyment. At the same time, water management at community level provides cohesion to the communities. Individualistic privatization of water rights, may, by limiting the influence of communities over their membership, contribute to social fragmentation and dissolution. Because indigenous rights, be they communal or otherwise, have not always been formally acknowledged by governments, they always face the risk of being obliterated by grants of formal rights to either individuals or corporations. The risk is particularly high if beneficiaries of formal grants are corporations protected under treaty provisions for the protection of foreign investment. Such treaties are at the top of the legal ladder, and investors infringing upon de facto customary uses will be well off arguing that 6

7 indigenous people had no rights, and that in any case, lacking a legal provision acknowledging or recognizing such rights and administrative acts for their legalization and/or recording, there was no way in which they could know their existence. It is therefore essential to pursue a strategy to obtain recognition of indigenous water rights and management in national legislation and to design and simplify operational procedures for their actual determination and recording at field level. This should be done in clear and non-ambiguous terms, since ambiguity on the one hand results in ignorance and therefore on hesitation, and on the other creates uncertainty and therefore vague and encroachable boundaries. In this respect Latin America lags far behind other countries (i.e. USA, Canada, New Zealand, Papua New Guinea, Fig) in the protection of the water entitlements of its indigenous population. In this respect the following minimal legislative contents are needed, as members of the WALIR-Project pointed out (Solanes/ Getches, 1998; Solanes, 2002; Gentes 2001): 1. Water laws should recognize customary water utilization, including the role of water as part of a stable and lively environment and environmental water services. Obviously this recognition includes uses requiring diversions, inflow utilization, and the broader environmental role of water as part of a stable and sustainable habitat. Management-wise the strategy is closely associated to integrated basin management and the regulatory tools needed to ensure preventing the destruction of water sources and production by bad land and forestry management. 2. Should national projects affect indigenous customary rights prompt and adequate compensation should paid, taking into account no only the removal of an asset, but also the affectation of a life style and the cancellation of environmental services. 3. Indigenous communities and individuals should be able to request the recording and recognition of indigenous uses at any time. Paper rights affecting indigenous uses should be nullified. If conflicting rights are not void indigenous users should be paid compensation. Beneficiaries of water rights affecting indigenous uses should be joint and severally liable for the payment of compensations, together with the government and the head of the water authority. The indigenous right to request recording of indigenous uses is not to be subjected to caducity or forfeiture. 4. The right to request recording and recognition of indigenous uses should be exercised by any member of a community, or its head, on behalf of the community. Individual claims could only be made by the beneficiary of a claim, or the head of his/her community, on her/his behalf and benefit. 5. Where indigenous groups and communities have their location water authorities should survey, recognize, and record, ex-oficio, diversion or inflow uses and rights. Infringing this duty the head of the water authority violates the duties of a public officer, making the head of the water authority liable to criminal charges and civil liability. 6. Proceedings to implement indigenous water policies, survey and record indigenous rights and uses should ensure that interested communities and 7

8 individuals are heard and have timely and opportune participation. They should also be able to submit evidence sustaining their claims, uses and rights. When in doubt decisions should favor indigenous parties (in dubio pro indígena). As we can see in the international right-to-participation debate, especially on decision over local livelihoods and indigenous territories goes more and more along with a different rights approach. Taking into account, from a critical perspective, that peasant and indigenous communities want to take part on their own terms, -considering the plural identities, organizational forms and normative frameworks that govern their water management in practice, and that most access and control rights have been taken away from them-, the local communities claim today, both the right to equality and the right to be different (Boelens, 2003: Boelens/ Hoogendam, 2002). On the one hand, there is a general demand for greater justice and equality regarding the unequal distribution of decision-making power, water, and other water-related benefits. On the other, there are the demands for internal distribution to be based on autonomous decisions, locally established rights and principles, and local organizational forms for water control, which reflect the diverse strategies, and identities found in indigenous communities today. These demands and multiple strategies are also valuable for countries you decide decades ago to establish water markets, as in Chile. Although some world water experts concluded previously that negative social impacts of the water market have been very limited, new local studies done by the WALIR-Project (Gentes 2002a, Peña, 2004) and other institutions (Bauer, 1997, 1999; Galaz, 2004) showed that the unintended incentives created in the market and its (public-private) institutions, can make it profitable to force the communities to participate in a way that means selling or losing their weakly registered water users rights, and not, -as it was thought by officially public water and sustainable water frameworks to empower the groups in a way-, that they can real participate in an integrated and local water resource management. BIBLIOGRAPHY Bauer, Carl (1997): Bringing water markets down to earth: the political economy of water rights in Chile, en: World Development, Vol. 25, No. 5, p Bauer, Carl (1998): Slippery property rights: multiple water uses and the neoliberal model in Chile, en: Natural Resources Journal, No. 38, Vol. 1, p Boelens, Rutgerd, (2003): Local Rights and Legal Recognition: The struggle for indigenous water rights and the cultural politics of participation. Paper presented at The Third World Water Forum. Kyoto, Japan. Boelens, Rutgerd/ Hoogendam, Paul, (Eds.) (2002): Water Rights and Empowerment. Assen: Van Gorcum. Boelens, Rutgerd/ Gentes, Ingo / Guevara Gil, Armando / Urteaga, Patricia (2005, forthcoming): Special Law : Recognition and negation of diversity in Andean water management, in: Roth, Dik, Boelens, Rutgerd / Zwarteveen, Margreet (Eds.) (2005, 8

9 forthcoming). Liquid Relations. Legal Pluralism and Water Rights: from global perspectives to local struggles. New Brunswick, New Jersey: Rutgers University Press. Bustamante, Rocio (2002a): Legislación del Agua en Bolivia. WALIR: Centro AGUA / UMSS, CEPAL & Wageningen University, Cochabamba. Bustamante, Rocio (2002b): Estudio sobre marcos normativos indígenas y consuetudinarios referente a la gestión del agua en Bolivia. WALIR: Centro AGUA / UMSS, CEPAL & Wageningen University, Cochabamba. Galaz R., Víctor (2002): Water and Equity.- A game-theoretic exploration of the Chilean Water Market s social impacts. Santiago de Chile FLACSO, draft paper. Gelles, Paul H. (2002) Indigenous Peoples, Cultural Identity and Water Rights in the Andean Nations. WALIR: CEPAL & Wageningen University, Wageningen/ Riverside, California. Gentes, Ingo (2001): Derecho de agua y derecho indígena.- Hacia un reconocimiento structural de la gestión indígena del agua en las legislaciones nacionales de los países andinos. WALIR: CEPAL & Wageningen University, Santiago de Chile. Gentes, Ingo (2002a) Estudio de la Legislación Oficial Chilena y del Derecho Indígena a los Recursos Hídricos. WALIR: CEPAL & Wageningen University, Santiago de Chile. Gentes, Ingo (2002b): Water law and indigenous rights in the Andean countries: conceptual elements, in: Summary of the presentations at the public meting (7 march 20002) on the occasion of the International Walir Seminar, 4-8 march, Wageningen/ The Netherlands, p Gentes, Ingo (2003): Estudio sobre marcos normativos indígenas y consuetudinarios referente a la gestión del agua en Chile. WALIR: CEPAL & Wageningen University, Santiago. Getches, David (2002): Indigenous Rights and Interests in Water under United States Law. WALIR: CEPAL & Wageningen University, Wageningen/ Boulder, Colorado. Getches, David (2003):Indigenous Peoples Rights to Water and International Norms. WALIR: CEPAL & Wageningen University, Wageningen/ Boulder, Colorado. Guevara, Armando (2004): La legislación oficial de aguas frente a los derechos campesinos e indígenas en el Perú. Forthcoming in Water and Cultural Diversity, WALIR-UNESCO, Paris. Guevara G., Armando/ Vera D., Iván/ Urteaga C, Patricia & Zambrano, Gustavo (2002): Estudio de la Legislación Oficial Peruana sobre la Gestión Indígena de los Recursos Hídricos. WALIR: CEPAL & Wageningen University, Lima. Guevara, Armando/ Urtega, Patricia (2003): Estudio sobre marcos normativos indígenas y consuetudinarios referente a la gestión del agua en el Perú. WALIR: CEPAL & Wageningen University, Lima. Hendriks, Jan (1998): Water as private property. Notes on the case of Chile, en: Searching for Equity, R. Boelens & G. Dávila (eds), pp Assen: Van Gorcum. Hendriks, Jan (2004): Legislación de aguas y gestión de sistemas hídricos en países de la región andina. Basic Document for the International WALIR Seminar on Colective Water Rights and National Legislation, October 2004, Quito, Ecuador Moench, Marcus et al. (2003): The Fluid Mosaic.- Water Governace in the context of variability, uncertainty and change. Katmandu, Nepal Water Conservation Found. 9

10 Palacios, Paulina (2002): Estudio nacional de la Legislación Oficial y los Marcos Normativos Consuetudinarios referente a la Gestón Indígena de los ecursos Hídricos. WALIR: CEPAL & Wageningen University, Quito. Palacios, Paulina (2003): Estudio sobre marcos normativos indígenas y consuetudinarios en la gestión del agua en el Ecuador. WALIR: CEPAL & Wageningen University, Quito. Peña, Francisco (ed.) (2004): Los pueblos indígenas y el agua. WALIR, El Colegio de San Luis, IMTA. Mexico/Bogotá, Obranegra Editores. Roth, Dik, Boelens, Rutgerd / Zwarteveen, Margreet (Eds.) (2005, forthcoming). Liquid Relations. Legal Pluralism and Water Rights: from global perspectives to local struggles. New Brunswick, New Jersey: Rutgers University Press. Salman, Salaman M.A/ McInerney-Lankford, Siobhán (2004): The Human Right to Water.- Legal and Policy Dimensions. Washington D.C., The World Bank. Sandford D., Clark (1989): Reconciling customary law and modern principles of water management. Ponencia Universidad de Alicante/Valencia, III Congreso Mundial de Derecho y Administración de Aguas. Saunders, J. Owen (1991): Accomodation of traditional uses within codified water laws. Discussion Paper. Hanoi, Workshop No. 2: Preparatory Organizational and Legal Studies. Scanlon, John/ Cassar, Angela/ Nemes, Noemí (2004): Water as a human right. Gland, IUCN Environmental Law Programme. Shordt, Kathleen/ Wijk, Christine van/ Brikké, Francois/ Hesselbarth, Susanne (2004): Monitoring Millenium Goals for Water and Sanitation. A review of experiences and challanges. Delft, International Water and Sanitation Centre, IRC. Solanes, Miguel (2002): Water Policies and Regulations Conditions to recognize indigenous water rights, in: Summary of the presentations at the public meting (7 march 20002) on the occasion of the International Walir Seminar, 4-8 march, Wageningen/ The Netherlands, p. 14;15. Solanes, Miguel/ Getches, David (1998): Prácticas recomendables para la elaboración de leyes y regulaciones relacionadas con el recurso hídrico. Washington, BID/Cepal. Sowerwine, Jennifer/ Shivakoti, Ganesh/ Pradhan, Ujjwal/ Shukla, Ashutosh/ Ostrom, Elinor (Ed.) (1994): From Farmers Fields to Data Fields and Back.- A Synthesis of Participatory Information Systems for Irrigation and other Systems. Katmandu, International Irrigation Management Institute/ Institute of Agriculture and Animal Science. Warner, Katharine (1971): A State of the Arts Study of Public Participation in the Water Resources Planning Process. Airlington, Nacional Water Comisión. Vera Delgado, Juana (2004): "Cuanto mas doy, mas soy " Discursos, normas y género : la institucionalidad de las organizaciones de riego tradicionales, in : F. Peña (ed.) Los pueblos indígenas y el agua. WALIR, El Colegio de San Luis, IMTA. Mexico, Bogotá : Obranegra Editores. 10

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