Part I: Chile’s battle to reclaim its water

Some 180 km north of the Chilean capital of Santiago, lush green rows of perfectly aligned trees cover the semi-arid hills of Petorca, Valparaíso. The kilometres-wide fields of knobbly, blackish Hass avocados offer a staggering contrast with the surrounding parched, cracked lands.

Accused of running the region dry, the world-renowned green gold has become a symbol of Chile's water crisis. While companies pump thousands of litres of water per second to irrigate their plantations, nearby communities get their water delivered by cistern trucks.

As Chileans prepare to replace their Pinochet-era constitution, there are growing calls to enshrine the human right to water and put an end to its unsustainable exploitation. But dismantling a 40-year-old water market that has surrendered 90 per cent of the country's freshwater to private actors, while facing one of its worst droughts ever, will need more than a new constitution.

Chile is coming to grips with a challenge that many other countries sooner or later will have to face as global warming continues to shrink the water supply. Who should get to own water?

Water but not for all

Once known as a water-rich country, Chile has been struck for the past decade by the worst drought in its history, with rain levels dropping by 20 to 40 per cent. Meanwhile, agriculture, mining and other economic activities have been soaking up its rivers, glaciers and aquifers, putting it at the top of the list of countries that will be facing high water stress by 2040, according to the World Resources Institute.

Around 1.4 million Chileans – eight per cent of the population – don’t have access to drinking water or sewerage, and rural communities that have to compete with large companies for water access are hit the worst.

Lorena Donaire, spokesperson and founder of the Chilean environmental organisation Mujeres Modetima, has witnessed first hand the effects of water shortage in her home region of Valparaíso, where the group of women delivers water to communities.

She recalls one time seeing an old couple at a creek filling a three litre water bottle. “That bottle had to last until next Monday – and it was Wednesday. When we arrived with the water, one of them hugged us and cried. In that embrace I felt the desolation, the loneliness, the abandonment of the state,” she told Geneva Solutions.

The government has decreed a water shortage in over a third of the communes. It set up a system where trucks deliver water to the affected communities, but rights groups say that it is far from enough. Some people only receive 15 to 20 litres for one or two days, according to Donaire, even though a supreme court ruling from March 2021 set a 100 minimum limit per day for Petorca, in line with the World Health Organization’s recommendations. To put things into perspective, flushing the toilet once is 10 litres down the drain.

Going back to those creamy, nutritious avocados in Petorca that end up on the shelves of European supermarkets, growing a single one takes 320 litres of water, according to the Danish investigative media Danwatch. Chile is the world's third avocado exporter, producing around 220 thousand tons in 2021, according to projections by the US Department of Agriculture. Sixty per cent is grown in Petorca.

So how come one of the worst drought-hit areas in Chile, where people get their water from trucks, be the epicentre of Chile's green gold rush?

It's part of late dictator Augusto Pinochet's legacy – or more precisely the Chicago Boys’, a group of Chilean economists that studied in the 70s under Milton Friedman in Chicago and helped transform their home country into a neoliberal experiment lab. One of their most notable contributions is the 1980 constitution, which laid the foundations for Chile's unique water market.

Land owners were at that time allowed to register the water in their lands, free of charge, and acquire indefinitely what is known as water rights. Unlike most countries, where water and infrastructure might be managed by private companies, but the water assets are still owned by the state, in Chile, water rights holders obtained perpetual ownership of those resources.

With time, these entitlements were traded in an opaque and unregulated market and ended up concentrated in the hands of local and foreign companies, with the agriculture sector taking the lion's share – 70 per cent of the country's water usage.

As we will discuss in a later article, farming also accounts for two thirds of global water withdrawal, making it a key sector for water security.

Hungry for change

Chile’s water market has been in place for over four decades but only recently became subject to scrutiny. In 2018, simmering grievances reached a boiling point, igniting nation-wide protests against inequality and the country’s neoliberal policies. The mirage of the Chilean miracle was broken. As the overwhelming vote in favour of rewriting the constitution revealed, Chileans were hungry for change.

This was proved once again in May during the elections for the constitutional convention, which will be tasked with drafting the new Magna Carta. Independent candidates – many of them environmentalists – crushed traditional right and left wing parties in a sweeping victory, winning two thirds of the seats.

Meanwhile, the water problem of a few rural communities had become widespread, propelling it to the top of the list of demands. “When we used to protest, we were called eco-terrorists, we were the reds painted in green, people rejected us,” Donaire recalls.

But the tides have changed. Over 70 per cent of the members of the constitutional convention are in favour of recognising the human right to water, according to an analysis by the Observatory of the New Constitution.

Environmental groups believe that the move will lay the foundations for a sustainable model. “Water in Chile is a contradiction because it is established as a good for public use but on the other hand the rights to use it are private,” Evelyn Vicioso, executive director of the Chilean water rights organisation Newenko, told Geneva Solutions.

“This is where the whole conflict begins because constitutionally the human right to water is not recognised, and therefore the state does not have the obligation to provide in situations of lack of access to water,” she adds.

Rewriting the rulebook

Change could also arrive in Chile through another route. Last month, a proposal to reform Chile’s dubious water code finally got through the senate, after 10 years of stalling and getting shut down by the conservative wing. In over 300 articles, the 1981 text gives detailed guidance for water rights holders but conceives little oversight. “The water code promotes a model in which water does not have to be cared for but is a good that can be possessed and used,” Vicioso notes.

The proposed text would make water for human consumption a priority and would allow the government to temporarily suspend the rights of usage on a threatened watercourse. It would also make registration mandatory, creating a more transparent market. According to a government report, only four per cent of holders have filed their water rights with the public water registry. New rights would no longer be granted indefinitely – however, this excludes the 90 per cent of all water rights that have already been handed over.

The reform still has to go through a few more hoops before adoption and Vicioso suspects that it will encounter its fare share of opposition, especially on the more controversial points that would restrict ownership. Water rights holders have already signalled that they would not concede them for free and would seek compensation. “Some have asked for the rights to be bought at market price, when they received them for free,” Donaire says, frustrated.

At the convention, ending the water market is not a popular option. Only a third of the members of the convention have expressed this will, while many right wing candidates would prefer to tweak the existing system, according to the Chilean online media Pauta. To be approved, the new constitution will need a two third majority, making the coming months of debates pivotal to the fate of Chile's water model.

Rights groups have also warned that conflict of interests might get in the way. Government officials linked to the agriculture and public work ministries have been criticised for owning water rights. An analysis by the Investigative Journalism Centre of Chile (CIPER), revealed that at least 12 members of the convention possessed water rights under their own names, under family members or companies they had ties with.

The convention has to table a new text by July 2022, which will then be submitted to a referendum near the end of the year. Chances of the text failing to get through are slim, a government official told Geneva Solutions. “The political cost would be too high,” the official said.

Is real change possible?

The recognition of the right at constitutional level in Chile would be “an important step”, observes Leo Heller, former UN special rapporteur on the human right to water. However, it will probably not solve all the issues.

“It can be an environmentalist, feminist, historic constitution, but will it be upheld?” Donaire wonders.

Latin America is actually a leading region in the recognition of the right. Bolivia – which spearheaded campaigning efforts to get the right recognised by the UN – Ecuador, Colombia and Nicaragua have penned it in their constitutions, yet conflicts over pollution and overexploitation of water resources persist in all countries.

“The most important conversation will be around water governance. Who will make the decisions?” Vicioso analyses. “There are few proposals that question our production model, and this is where the discussion should focus, for instance on democratising the decision-making spaces for water, so that it is not exclusive to those who hold water rights.”

Water in Chile has legally been divided into different parts, making it impossible for the state to manage its basins in an integrated way that ensures that activities are sustainable and don’t cause irreversible damage.

Even if water rights are abolished, Chile will have to figure out how to reconcile its human rights obligations and its economic needs and interests.

Catarina de Albuquerque, the first special rapporteur on the right to water and sanitation, who lobbied for its recognition at the UN level, says that its definition is often misunderstood.

“The human right to water entitles everyone to a sufficient quantity of water that is safe, that is acceptable, physically accessible and affordable for personal and domestic uses. And when we say personal and domestic uses, we don't mean swimming pools, we mean for cooking, for drinking and for personal hygiene. It doesn't go beyond that,” told Geneva Solutions.

But deciding who gets how much water can be tricky. “The problem is that human rights lawyers, without technical training on water management, give the state a bunch of fairly vague responsibilities and say, ‘do it, these are your minimum needs, make sure that this happens and progressively everybody should have access to water’,” said Tobias Schmitz, development advisor for the Water Diplomat at the Geneva Water Hub.

“For a standard engineer delivering water to a village, it needs to be very clear down to the level of water quality norms, etc., how ‘progressive realisation’ is to be achieved,” Schmitz added.

“There is a pre-existing water law, and now human rights law has been superimposed on that. At that legal level, there is more that can be done to articulate these to make them fit. And they can fit, but there is insufficient dialogue between the real water managers and the human rights experts,” he said. Schmitz suggests that such a conversation needs to happen within the UN rights office in Geneva as part of the special rapporteur’s mandate.

For the current UN water rapporteur, Pedro Arrojo-Agudo, the framework is clear enough and if countries still struggle to meet their obligations it is because “there is not enough [political] will or priority to deal with this question”.

As precious water resources dwindle, populations are growing, ramping up food and water demand. Large companies, but also small farmers continue to compete for water resources, making the water management equation even more complex.

While water scarcity in Chile might have pushed the country towards leaving behind its privatised model, it might be doing just the opposite in other places. As the introduction of water onto the market on Wall Street in 2020 showed, the belief that treating water as a private asset can improve its management and distribution still has some of its best days ahead.

Arrojo-Agudo has singled out commodification of water as one of the main threats to water security, which he tells us more about later.

“We are transforming citizens into clients. The 2.2 billion people [without access to water] become 2.2 billion impoverished customers that cannot afford it,” he said. “Instead of solving the core of the global water crisis, we are making more vulnerable the people who were already vulnerable,” he said.

The UN expert is preparing a report on the topic and will be presenting it before the UN General Assembly in October 2021 and at the Human Rights Council in Geneva next year.

The global water crisis has sparked a race to innovate and find solutions to put an end to its unsustainable exploitation. While many will seek answers in the world of finance, others will turn to more local solutions, and paradoxically, Chile’s rural communities have much to teach. But more on that in the next part of our series.