The right to water (or just words) and the economics of a dump in Latin America

Today, Lindsey evidenced a main problem with social rights (or positive rights), such as the right to water, health, and education: They are programmatic, aspirational rights that shall illuminate public policy, but are not enforceable by individuals vis-à-vis the state. The state is thus required to take reasonable, bona fide steps to secure universal access to water, but nothing more. Hence, in the absence of a “minimum core” approach that provides social rights with specific content (or “teeth”), they risk becoming what Hershkoff calls “just words” or rights in paper.

The “minimum core” approach –say, each human being is entitled to 10 liters of water per day of a minimum quality; access to a 5x5 m2 house; a breakfast of 500 calories; the unborn should be protected from getting HIV; and so forth– is useful for it provides concrete, real meaning to the individual socio-economic rights established in the constitutional text of a given polity. Given that the state is obliged to realize the core needs, individuals are granted individual and immediate access to the socio-economic right in question.

The “minimum core” is a universal baseline of human dignity established to satisfy the most basic and urgent needs in a community. By enforcing social rights we can alleviate extreme situations of social despair and urgency. They are not thought, though, to replace the individual who, in principle, must support himself, but to help those individuals who have no other alternative but to resort to the state’s aid.

Courts can help shape the “minimum core” of social rights by establishing a floor. In the famous South African case Grootboom, Judge Davis claimed that the right to shelter involves (at least) access to tents, portable latrines, and regular supply of water, which is the bare minimum that should be made available to all, especially in light of the inhuman conditions in the slums. (His decision was overturned by the Constitutional Court, which applied a “reasonability test” of the government´s efforts /measures to realize positive rights in the country). Of course, setting a floor may prove to be a daunting task since it would imply coming up with an exhaustive list which in turn would be subject to periodic revisions when circumstances change, or would need to vary according to local particularities (weather, seasonality, altitude, traditional uses, poverty, etc.).

Therefore, if we adopt a “minimum core” approach to the right to water, I don’t see how it would be compatible with the right to private property, as Bakker claims: The basic feature of private property is excludability. If I hold a property title to water (either as a utility company or as a titleholder of a right to X amount of water in the Chilean water market), I am legally entitled to exclude others and protect my good, even if my neighbors –who lack such an entitlement– are thirsty! If the government wants me to give them a little bit of my water (just to secure their “minimum core” human right), it would have to buy it from me (at the price I set because it´s my water!) or take it away from me (expropriate it!). In the latter case, this is an obvious case of takings, which is obviously compensable under most legal systems. But this is burdensome and expensive. If in my example I was a foreign company with an entitlement to water, I could take the government to international arbitration under a BIT and get a huge compensation for damages (what private utility companies did in Bolivia, Argentina and elsewhere!). This is why I think that the recognition of a human right to water as a minimum, in other words a tangible amount of water per day, is incompatible with private property discourse, as Bakker claims.

With regard to the environmental justice claims underlying in Moore, I think this process is much more complex in Latin American countries where there are no land use policies as clear /strict as in the US, or, if there are, they are not enforceable either due to government inefficiency or corruption. If one takes a look at an aerial picture of the city of Lima, one would easily say: “the poor live next to polluting factories and dumpsites, this is environmentally unjust”. But this conclusion would ignore the way Lima has grown over the last decades. What in the 70s or 80s were the industrial areas or the outskirts of Lima, are now flourishing low-income districts. Back then, lands were “invaded” by massive waves of immigration from rural areas into the capital city in search for better opportunities and escaping Shining Path terrorist-guerrilla group (Sendero Luminoso). These invasions were later formalized, the Hernando de Soto story. Lands in these areas were cheaper or simply not supervised by their owners and, thus, free for the taking. But households are now pushing factories out, as it is obvious that highly polluting (and unregulated, unmonitored) industries cannot coexist with urban uses. So, when we analyze siting of waste facilities in a city like Lima, we should ask first who came first, the facility or people?

Moore argues that when taking (environmental, legal) action over dumps, we should consider the economics and social impacts that dumps have for thousands of people that rely on recycling activities. First, while she denies romanticizing those jobs, she doesn’t mention if and how to “incorporate” them to the formal economy. Recicladores live in great poverty, have no health insurance, are exposed to diseases, make little money, and have little option of accessing a better job. Second, Moore assumes that the people who live from garbage inhabit the dumps necessarily. Actually, the process begins much earlier, in the city itself. At 7pm, when it’s already dark, Lima (but also Buenos Aires and other main cities) are taken over by thousands of men and women who travel from the poor districts in bicycles to middle-, high-income districts and go over the garbage bags / containers located in front of residences. This people play a fundamental role, because in Lima there is no official recycling: all trash is mixed and placed in a single container. Municipalities save the cost of segregating trash themselves and filling landfills with reusable “goods”. This informal job is key to segregate glass, metal, paper, and other valuable materials from household garbage bags.