Does the Vatican think water should be ‘free’?” asked Kishore Jayabalan in his post examining the Pontifical Council for Justice and Peace’s latest document on water. Although he is now the director of Istituto Acton, the Acton Institute’s Rome office, Jayabalan formerly worked for the Pontifical Council for Justice and Peace as the lead policy analyst on sustainable development and arms control.

In his post, Jayabalan referenced the analysis of George McGraw, the Executive Director of DigDeep Right to Water Project, a human rights and development NGO headquartered in Los Angeles. Mr. McGraw asked if we’d be interested in providing a counter-argument from a conservative perspective, so we’ve decided to publish his response below:

The ‘Right to Water’ is not ‘Free Water for All’

By George McGraw

Yesterday, Kishore Jayabalan wrote an article entitled: Does the Vatican think water should be “free?” The simple answer to his question is no.

In Water, an Essential Element for Life the Holy See criticizes “overly commercial viewpoints” as inadequate for the protection of the poor. It logically asserts that if we rely only on profit (“economic expediency”) to dictate water service, then the poor are at risk of being ignored. The Vatican is not rejecting the free market as the best basic delivery system for water (in two places, the document actually presupposes use of the free market this way), but only asserting an appropriately Catholic view of humane economics.

Water is largely a commodity. And the free market is the best way we have to expedite access to it. But water is also a common good, and markets cannot universalize service. We must cultivate justice in the marketplace (the heart of a humane political economy) if we are to protect the dignity of the poor.

Correctly understood, markets—like goods—are ontologically at the service of man, who exercises stewardship over them. The collective duty of stewardship includes responsibility for the poor. A market system that exists without preference for those who might be sidelined by its power is, as Röpke once wrote, “a typically intellectual construction that forgets the social reality behind the integral calculus.”

In concrete terms, this means that where water service is impeded due to an inability to satisfy market preconditions (to pay), or where water service is being unduly degraded by an external actor (like a corporation), the government must be willing to step in—using a legal tool like human rights—and safeguard dignity. Indeed, in certain, limited situations, water must be provided ‘for free.’ To extrapolate from this simple assertion that water should be banished from the marketplace wholesale, however, is quite incorrect.

The Vatican is not using the human rights construct to argue ‘free water for all,’ but only asserting that the market must remain at the service of the natural law. The market must be just. Only justice allows economics to conquer the false notion that there is some tradeoff between ‘efficiency’ and ‘equity.’ Only justice can impart a standard of compassion on economics. Without justice, the market is a blind mechanism that uses human beings as means to an uncertain end. But with justice, the market is empowered to utilize valuable constructs like private property and profit toward the promotion of human dignity—which is true wealth.

But what of a ‘human right’ to water?

Simply put, rights in the natural law preexist rights in human law. International law is a secondary (if powerful) form of recognition for natural human rights. Because of the distance between these two worlds, however, there is often unfortunate room for delay or dissonance.

Mr. Jayabalan admirably identifies a huge problem here: certain political actors wish to use this confusion to promote ‘new’ human rights that are in fact not rights at all. Rights-based language has become a favorite rhetorical tool for the promotion of a host of social agendas themselves antithetical to human dignity. He identifies one (the ‘right’ to government-run healthcare), but you might just as easily include the ‘right’ to the internet, or the ‘right’ to abortion. Such arguments have muddied the water for everyone defending human rights as they are properly understood.

Mr. Jayabalan writes,

Some will say that these new rights are proof of an increasing awareness of human dignity, but I am not convinced. Many of these ‘rights,’ in fact, are not based on a fixed idea of human dignity or human nature, but a denial of it; man is nothing more than a historical, ‘progressive’ being whose wants and needs are constantly evolving.

He is quite right. ‘Progressive’ rights are indeed unconvincing. But to characterize the human right to water as ‘progressive’ seems mistaken. One does not require an advanced degree in bioethics to understand that water is one of the most essential preconditions not only for a life in dignity, but for life at all.

So where does Mr. Jayabalan go wrong?

He oversimplifies the body of human rights philosophy into two “fundamentally different understandings of human nature”—one that asserts essential freedoms (‘negative’ rights, e.g. freedom of speech) and one that asserts essential entitlements (‘positive’ rights, e.g. the right to water). The former, he insists, are ‘true’ rights favored by states, while the latter are ‘new’ or ‘progressive’ rights—in this case the right to water upheld by the Church.

All human rights, however, have both positive and negative aspects in varying degrees. For most people, the human right to water (for example) entitles them to nothing more than what they already enjoy, unencumbered access to the basic amount of freshwater they need to live a life in dignity. For those one billion other people who are dying without access to clean water, this may mean that governments need to extend service where the free market fails to universalize it. Whether you have access to water or not, your government has a responsibility to ensure that you are not unjustly dispossessed of your rights, either by its action or by the interference of another. Your legal human right becomes a tool to help you defend your dignity if such an interference were to occur.

The legitimacy of a human right does not depend on its nature as being more ‘positive’ or ‘negative,’ nor does it depend on the date in which that right is finally enshrined into law. The litmus test that truly distinguishes ‘progressive’ rights from ‘true’ rights is this: progressive rights are written into the human experience, true rights are read from it.

True human rights are universal, inalienable and all fundamentally interrelated. Without access to a certain amount of clean freshwater, the human being is incapable of enjoying other basic human rights. It’s a truth I can personally attest to: those living in water poverty are so consumed with their daily quest for water that they are incapable of enjoying the most basic human freedoms.

The Vatican asserts that due to the basic link between water and human dignity, each of us already has a human right to water. The international community only fails to currently recognize and protect that right in a meaningful way. This does not mean that we must “toss international law . . . out the window,” but only that the international community should use the mechanisms at its disposal to formally codify and individually respect our right to water.

Mr. Jayabalan wonders “if the idea of limited government that allows individuals and voluntary associations to provide for needs beyond those ensured by certain enumerated rights is adequately understood by those who promote previously-unrecognized human rights.”

As a friend recently pointed out to me, all international human rights seem to suffer from a lack of subsidiarity. Being far from the individuals they seek to safeguard, they have less of a chance—in his mind—of addressing the concrete realities of poverty.

My answer to both of these questions is the same. Human rights (as legal constructs) don’t create universal solutions to local problems; they only seek to establish a framework in which a local response can take shape . . . a response that harnesses the power of the free market, of volunteerism, of international aid organizations like my own. In our pluralistic global society, human rights remain those tools with which human dignity is best understood and defended across diverse cultures, political systems and religious beliefs. They’re the most apt tools we have to recognize and protect the natural law together, which is undoubtedly why the Holy See has such a penchant for them.

George McGraw is a human rights professional with a background in international law and dispute settlement. He is currently Executive Director of the DigDeep Right to Water Project, a human rights and development NGO headquartered in Los Angeles.