Human rights tradeoffs in times of economic growth

HUMAN RIGHTS
TRADE-OFFS
IN TIMES OF
ECONOMIC
GROWTH
The Long-Term Capability Impacts
of Extractive-Led Development
ARELI VALENCIA

Latin American Political Econom


Latin American Political Economy
Series Editors
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Macul, Santiago de Chile, Chile
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Suite 1511 University Hall
Chicago, Illinois, USA
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Pontificia Universidad Catolica de Chile
Chile


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Areli Valencia

Human Rights TradeOffs in Times of
Economic Growth
The Long-Term Capability Impacts of
Extractive-Led Development


Areli Valencia
Human Rights Research
and Education Centre (HRREC)
University of Ottawa
Ontario, Canada

Latin American Political Economy
ISBN 978-1-137-48867-1
ISBN 978-1-137-48868-8
DOI 10.1057/978-1-137-48868-8

(eBook)

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To Marcel,

For the time I took from you to finish this book.
Never become indifferent to the injustices of this world.
To the children of La Oroya,
With the hope you will be able to build a different history for yourselves.


FOREWORD

In August 2015, smelter workers and their supporters heaped tires, rocks,
and tree trunks onto a key highway in the Peruvian Andes, holding up
traffic for miles. The protest, at times violent, was sparked by the efforts of
creditors to auction off a bankrupt smelter operation located in the nearby
city of La Oroya. The smelter in La Oroya is notorious around the globe
for the extraordinary levels of pollution it has caused, with severe impacts
on soil, water, and air quality in the surrounding area and on the health
of residents. Frighteningly high levels of heavy metal in the blood of children are a particular concern. Most would agree that this by itself is an
understandable reason to blockade traffic. The workers, however, were
protesting against the Peruvian government’s imposition of environmental
requirements on the operation of the smelter. The workers blamed the
strictness of the regulatory standards for the failure of the auction to attract
new investors. They feared that their livelihoods would vanish as a result of
the impending liquidation.
How can we understand these “voices from below”? Their demands, if
met, would in the long run have disastrous impacts on their own health and
that of their families. The soil and rivers of the area, already contaminated
with heavy metals, would become further poisoned and unusable. High
levels of particulate matter would render the air dangerous to breathe.
The contradiction implicit in the story of the protest can be formulated
as one between jobs and wellbeing, economic development and environmental sustainability, or the human rights to work and to health. From
whatever angle, it appears intractable and deeply entrenched. The fact

that the voices of the protestors are both clear and forceful prevents any
vii


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FOREWORD

easy dismissal of their demands as simply the result of obfuscation “from
above” by greedy corporations and corrupt governments.
By using the situation in La Oroya as her central example, Areli Valencia
sets out to help us unravel the contradictory elements in controversies
that too often follow upon the promises of a “good life” offered by the
actors—both public and private—who seek to develop our resources. I
have no doubt that we have all, in our own corners of the world, encountered the conundrums on which Valencia focuses. The Central Andean
region of Peru seems far away from the west coast of Canada where I
write this Preface. Yet it is easy to find echoes of the story of La Oroya’s
struggle in the debates I read in  local media about the construction of
pipelines and tanker terminals to move crude oil from Alberta to the coast
for export abroad, about the contamination of waterways in northern
British Columbia by collapsed tailings ponds associated with copper and
gold mining ventures, or about the grant of permits for logging on lands
on which indigenous communities have traditionally sustained themselves by hunting and fishing, and which have cultural as well as economic
significance to them. In all of these stories, the tension between promised
and much-needed employment and impacts on the health of ecosystems
and their inhabitants seems, inevitably, to require a trade-off.
Valencia views such trade-offs as politically and ethically unacceptable.
Her aspirations are both practical and theoretically ambitious. She aims to
provide an analytical approach that will allow policy makers and regulators
to formulate a way forward that is grounded in the voices and values of

communities and their members, and that achieves justice for them. This
is a tall order, especially as the communities with which Valencia is most
concerned are often in desperate economic straits and are deeply divided
along a number of social dimensions. To achieve her objective, Valencia
draws on a range of literatures and disciplines to craft her Human Rights
Systemic Analytical Model (HRSAM).
As a Peruvian-trained constitutional lawyer, Valencia is well acquainted
with both the persuasive power and the disappointing emptiness of human
rights language. She builds on the themes and approaches in human
rights discourses that emphasize attention to structural and historical
injustices, and that have been taken up and invigorated by social justice
movements. Into this core commitment to understanding human rights
in terms of broadly based political and economic structures in which all
of us, advantaged and disadvantaged alike, are implicated, Valencia integrates a tailored version of Amartya Sen’s capability framework. She draws


FOREWORD

ix

on the capability literature to foreground those aspects of the framework
that facilitate attention to both individual and collective conceptions of
wellbeing and experiences of agency.
Having provided us with her analytical model, Valencia then applies
it to the situation in La Oroya. She takes us through a rich historical
account of Peru’s efforts, starting with the smoke damages controversy
at the beginning of the last century, to build an economy in the Central
Andes around mineral extraction. Changes in social structures, landholding practices, indigenous and class identities, economic arrangements, and
legal and regulatory frameworks are explored. She traces the ideological
shifts that unfolded during the century with respect to how the role of the

Peruvian state in relation to economic development, and to domestic and
foreign investment, is conceived and should be (and was) acted upon. The
part played by international and US financial institutions and interests in
setting the parameters for economic reform is highlighted, along with the
turn to neoliberal privatization strategies toward the close of the century.
Generating, in this manner, a nuanced contextual understanding of the
current conflict in La Oroya is the crucial first step demanded by Valencia’s
analytical model. In this part of her study, we are treated to a remarkably
detailed and compelling example of what this entails.
The second crucial component is listening to the voices—the many
and often opposing voices—involved in the debates within the community over La Oroya’s future. Valencia’s doctoral fieldwork, on which this
volume draws, took her to La Oroya where she interviewed unionized
workers, members of their families, activist advocates for environmental
protection and public health measures, as well as residents who refrained
from direct engagement with either side of the “jobs versus health and
the environment” debate. The community voices provide illuminating
insights into the dilemmas navigated on a daily basis by La Oroya residents
and into the deep divisions that characterize the community. Valencia’s
analytical model assists us in placing these conflicted and often passionate interventions in a historical narrative that makes sense of the current,
immobilizing standoff between various factions and viewpoints.
There is much here for a wide and varied audience. Those interested
in getting behind the headlines concerning the environmental, indigenous, and public health issues raised by resource development in the
Andean region will find an account invaluable for both its detail and its
referencing of broader global and historical trends. Human rights and
environmental activists and lawyers, community advocates, scholars, and


x

FOREWORD

public policy analysts all can find something of value in Valencia’s model
for thinking through and moving beyond community conflicts over economic development.
The highway blockade in the summer of 2015 concerning the La Oroya
smelter was eventually dispersed. As Valencia suggests, however, such confrontations are simply surface indicators of much deeper and historically
embedded struggles. Justice remains an illusion for those caught in situations that make them “choose” between alternatives that, because they are
fundamental to wellbeing, should never be presented as such—between
their livelihoods and their health, for example. Valencia’s approach eschews
the abstract binaries of rights talk that simply exacerbate the conflict or
erase it entirely by obscuring its social and structural dimensions. In her
model, the path toward justice emerges out of a process of paying close
attention to community histories and experiences, to the large scale forces
that shape and texture our existence, and to the many and diverse voices
of those whose lives and bodies bear the impacts of supposedly inevitable
trade-offs. The glimpses in this volume of heartbreaking suffering, human
losses, and devastated landscapes are not easily forgotten. Nonetheless, the
signature contribution is to provide us with a sturdy foundation for hope
and optimism.
Professor Emerita
University of Victoria, Faculty of Law
Canada
March 8, 2016

Hester Lessard

 


ACKNOWLEDGMENTS

This book was made possible thanks to the valuable contributions of many
individuals and academic groups. It is based on my doctoral dissertation
granted by the University of Victoria-Canada (UVic), where I was
extremely fortunate to be supervised by an interdisciplinary committee. To
Hester Lessard, my principal supervisor; no words can express my endless
gratitude for her unconditional support and confidence in this project. I
thank Cecilia Benoit and Laura Parisi, my co-supervisors, for encouraging
my curiosity, challenging my assumptions, and helping me explore the
interdisciplinary route safely. I am indebted to Anthony Bebbington, my
external examiner, for the questions and comments at the oral examination that ultimately sparked my interest in assessing this project beyond
“the local.”
Some sections of this book (most notably, parts of the introductory
chapter and Chap. 6) were published as “Human Rights Trade-offs
Human Rights Trade-offs in a Context of ‘Systemic Lack of Freedom’:
The Case of the Smelter Town of La Oroya, Peru” in the Journal of
Human Rights, I am thankful to the journal editors for authorizing the
use of this material.
The Social Science and Humanities Research Council of Canada
(SSHRC) made possible the implementation of this study by providing
me with two generous scholarships. The Joseph-Armand Bombardier
Canada Graduate Scholarships allowed me to work full time toward
the completion of this project. The CGS-Michael Smith Foreign Study
Supplement allowed me to conduct research activities at the Centre for
Development Studies at the University of Bath, UK, under the supervision
xi


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ACKNOWLEDGMENTS

of Séverine Deneuline. I offer her my deepest gratitude for inspiring my
work, for her continuous sharing of knowledge, and for the opportunities provided to keep exploring the value of the human development
approach for Latin America.
During my doctoral studies at the Law and Society Programme at
UVic, I benefited not only from the inspiration of living on this pristine
island but also from the support and feedback of professors Judy Fudge,
Jeremy Webber, Michael McGonigle, and James Tully. I thank them for
their precious time and exchange of information in the early stages of
this project. I thank my community of friends in Victoria, especially Ania
Zbyszewska, Mike and Kate Large, Jean Phillip Sapin, Jing Qian, Supriyo
Routh, Agnieszka Zajaczkowska, Johnny Mack, Lorinda Fraser, Nicole
O’Byrne, and Kerry Sloan, for all their intellectual and emotional support
during those years. They remain part of the vivid memories of a life in an
environmentally conscious location, which is ironically distant from the
story I narrate in this book.
After completing my doctoral studies, I left the La Oroya project
dormant for a while to embark on new processes of professional and
intellectual growth. Every single event and opportunity during those
years was substantial in making this project mature and finally ready for
publication. In particular, I would like to acknowledge the contributions
of the following institutions that helped me to strengthen my identity as
a socio-legal scholar. The Human Rights Research and Education Centre
(HRREC) at the University of Ottawa (UO) granted me the 2013 Gordon
F. Henderson Postdoctoral Fellowship, which allowed me to deepen my
knowledge of the political economy of extractivism in Latin America and
its positive and negative impacts on human rights. During my stay at UO,
I had the opportunity to teach two courses that served as a laboratory to
test some ideas of this book: “Human Rights: International Protection”
(Faculty of Law) and “Mining, Development and Human Rights in Latin

America” (School of International Development and Global Studies). I
thank my students in both courses for our animated discussions and their
overall interest in the course topics. I thank the Director of the HRREC,
John Packer, and Assistant Director, Viviana Fernandez, for the multiple
opportunities to present my work in progress. To my mentor and friend,
Penelope Simons, I thank you for trusting me and for bringing me back
the passion for what we do; Penelope has positively influenced my work
more than she can imagine. Lucie Lamarche and Sonya Nigam opened
the first significant door to me in Canada, and I thank them for this.


ACKNOWLEDGMENTS

xiii

To my colleagues Salvador Herencia, Olabisi Delebayo, Jael Duarte,
Joaquin Bardallo, Siobanh Airey, Piere-Giles Belanger, Alvaro Cordova,
Roger Merino, Ana Estefania Carballo, and Johannes Waldmüller, many
thanks for the exchange of ideas about Latin America, development,
business, and international human rights law.
I have to also express my gratitude to the Institute for Global Law
and Policy (IGLP) at Harvard Law School, especially to director David
Kennedy, for the opportunity of being part of a vibrant community of
scholars from around the globe. My research has significantly benefited
from an incredible exchange of ideas at the IGLP workshop in Doha,
Qatar (2014) and more recently at the IGLP Regional workshop in Latin
America hosted at Universidad de los Andes, Bogota, Colombia (2015),
where I presented the conceptual framework of this book. I am particularly grateful to Helena Alviar, Cynthia Farid, Cyra Choudhury, Jose
Miguel Barreto, and the rest of the participants at the writing workshop
who provided invaluable comments and suggestions to improve the conceptual chapter.

In Lima, the Interdisciplinary Group on Human Development at the
Pontifical Catholic University of Peru (GRIDHAL-PUCP in Spanish)
could not have given me a warmer intellectual welcome back home. I am
particularly thankful to Javier Iguiñez, Catalina Romero, Ismael Muñoz,
Efrain Gonzales, Fidel Tubino, Marcial Blondet, Gonzalo Gadmio, Felipe
Zegarra, Jean Marie Ansion, Patricia Ruiz Bravo, Gianfranco Casuso,
Norma Correa, Silvana Vargas, and Jhonatan Clausen for inviting me to
join the group and their thorough feedback on a presentation about the
La Oroya case early in 2015. I am doubly grateful to Jhonatan, who read
more than one chapter of the book and enriched them through the “eye”
of an economist.
There are many other colleagues and friends who deserve acknowledgment for their support and prompt feedback on diverse chapters of
this book, including Liisa North, Martin Scurrah, Lisa Laplante, Helena
Degratsi, William Sacher, Teresa Torres, and Eduardo Dargent. I’m
indebted also to Cesar Bedoya, Juan Aste, Eliana Ames, Hugo Villa,
Raul Chacon, Maria Jose Veramendi, Astrid Puentes, Serena Khader,
Pablo Gilabert, Nicolas Perrone, Eric Palmer, Jerusa Ali, and Jimena
Sierra for contributing to this project in diverse ways. And Ricardo
Valdiviezo, Carlos Santiestevan, Elizabeth McIntyre, and Aaryn Zhou
provided invaluable research assistance at different stages of the project.


xiv

ACKNOWLEDGMENTS

My gratitude to Colette Stoeber for her magnificent assistance
in language editing and to Rosario Pacherres for helping me with
transcriptions. I am also deeply grateful to the participants in this study,
especially to members of the community of La Oroya, for opening their

hearts and sharing their valuable experiences, which provided the essence
of this book.
To my family in Peru, thank you for your unconditional love and
encouragement. To Adita, Max, Beria y Bitia, thanks for being the village
that is always there to help me conquer my dreams. To my sister Beria,
thanks for putting your art in the design of my graphics. To my family in
Canada (The Yeomans), thank you for reminding me that there is no difficulty in life that cannot be resolved by a good glass of wine. Last but not
least, to my boys, Christopher and Marcel, for their morning kisses, for
their patience, and for absorbing me with their love without undermining my individual identity. Thank you for not letting me give up. I am
immensely grateful for this and more adventures to come. Always together.


CONTENTS

1

2

3

4

5

6

7

Introduction: Human Rights Trade-offs in 
Times of Economic Growth: A Tale from Peru

1

The La Oroya Conflict: The Intractable Conflict
Between Health and Work

21

A Systemic Human Rights Model of Analysis:
An Integrated Approach

49

Systemic Lack of Freedom in La Oroya:
The Socio-Historical Roots and the 
Political-Economic Background

99

Experiencing Systemic Lack of Freedom:
The Voice of La Oroya

135

Examining the Trade-offs Between Health and 
Work in La Oroya: The Long-Term Capability
Impacts of Extractive-Led Development

175

Conclusion: La Oroya at the Crossroads

217

xv


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CONTENTS

Appendix 1

233

Appendix 2

235

Bibliography

241

Index

271


ABBREVIATIONS

AIDA
AIDESEP
BLL
CA
CDC
CEDHA
CONACAMI
CPC
DIGESA
EIA
EPA
ESSALUD
FP
GDP
HDI
HDR
HRA
HRSAM
HUD
IACHR
ICCPR
ICESCR

Inter-American Association for Environmental Defense
Interethnic Association for the Development of the Peruvian
Jungle
Blood Lead Levels
Capability Approach
Center for Disease Control and Prevention
Centre for Human Rights and the Environment

National Confederation of Communities Affected by the
Mining Industry
The Cerro de Pasco Corporation
Peruvian Ministry of Health’s Environmental Health
Directorate
Environmental Impact Assessment
United States Environmental Protection Agency
National Health Insurance
Public Functionary
Gross Domestic Product
Human Development Index
Human Development Report
human rights activist
Human Rights Systemic Analytical Model
United States Department of Housing and Urban
Development
Inter-American Commission on Human Rights
International Covenant on Civil and Political Rights
International Covenant on Social Economic and Cultural
Rights
xvii


xviii

ABBREVIATIONS

ICMM
ICSID
IGAC

ILO
INDECOPI
INEI
MC
MEM
MINSA
MOSAO
NGOs
NS
OSINERGMIN
PAMA La Oroya
RDS
SIS
SDH
SPDA
TC
UDHR
UN
UNDP
UNES
USAID
WHO

International Council for Mining and Metals
International Centre for Settlement of Investment Disputes
Corrective Environmental Management Instrument
International Labour Organization
Peruvian National Institute for the Defence of Competence
and Intellectual Property
Peruvian National Institute of Statistics

Member of the Community of La Oroya
Peruvian Ministry of Energy and Mines
Peruvian Ministry of Health
The Movement for the Health of La Oroya
Non-Governmental Organizations
The National Strategy
Peruvian Supervisory Board for Investment in Energy and
Mining Projects
Environmental Mitigation and Management Plan for
La Oroya
Respondent-Driven Sampling
Integral System of Health
Social Determinants of Health
Peruvian Society for Environmental Law
Constitutional Tribunal
Universal Declaration of Human Rights
United Nations
United Nations Development Programme
Consortium for Sustainable Development in La Oroya
United States Agency for International Development,
Peru Mission
World Health Organization

Note: Some abbreviations and acronyms have been left in Spanish and the
nomenclature has been translated into English.


LIST

Fig. 2.1

Figs. 2.2 and 2.3
Fig. 3.1
Fig. 3.2
Fig. 5.1
Fig. 6.1

OF

FIGURES

Map of La Oroya, Yauli, Junin
Pictures taken in 2010 while smelting
activities were suspended
From consequences to root causes
The capability approach
Values and needs in La Oroya
Systemic lack of freedom in La Oroya

22
23
60
70
160
178

xix


CHAPTER 1

Introduction: Human Rights Trade-offs
in Times of Economic Growth: A Tale
from Peru

This introduction reproduces some arguments from my article: “Human Rights
Trade-offs in a Context of ‘Systemic Lack of Freedom’: The Case of the Smelter
Town of La Oroya, Peru,” Journal of Human Rights 13:4 (2014), 456–479. I
am thankful to the journal editors for authorizing the use of this material.

BACKGROUND
In 2006, the Annual Report of the Blacksmith Institute, a US-based nonprofit organization, named the city of La Oroya, located in the Province
of Junín, Central Andes-Peru, as one of the ten most polluted places in the
planet.1 High levels of lead, arsenic, and cadmium contamination in children’s blood as a result of smelting activities in town prompted the nomination. As La Oroya gained greater visibility internationally, a massive
wave of journalists and activists from all over the world flew to La Oroya
to report on the situation. Academics started to pay attention to the La
Oroya case as well. A transnational human rights network developed and
effectively contributed in denouncing the situation of environmental crisis and health deprivation in La Oroya, pressuring governmental authorities and the smelting company, US-based Doe Run Company, to reverse
the predicament. But this movement downplayed a contentious aspect of
the La Oroya case: the confrontation in the local population between the
protection of the human right to health in La Oroya and simultaneous

© The Editor(s) (if applicable) and The Author(s) 2016
A. Valencia, Human Rights Trade-Offs in Times of Economic Growth,
Latin American Political Economy, DOI 10.1057/978-1-137-48868-8_1

1


2

A. VALENCIA

demands for employment stability.2 Despite their own systematic exposure to dangerous toxic metals along with the entire population, smelter
workers and their families claimed that the demands for environmental
and health protection threatened their main source of employment and,
hence, their right to work.3 From this broader perspective, the La Oroya
case portrays not only a scenario of environment and health deprivation
but also a seemingly intractable case of human rights trade-offs.
How are we to understand people’s compliance to sacrifice health for
work? How to make sense of the fact that while the grassroots in this
community organizes under the cry “The health of a child is a treasure that
is worth more than gold,”4 another important segment of the population
contests, “If contamination were as strong as people say, then the children
would not be smart and committed to their studies.”5 The La Oroya tradeoffs predicament is deeply puzzling. Indeed, on the one hand, human
rights literature often characterizes these rights as indivisible, interrelated,
and interdependent.6 This broadly means that there should be no hierarchy among them and that they all deserve the same level of respect, protection, and fulfillment.7 Nevertheless, the reality of cases like La Oroya
shows how far away we are from the practical attainment of such aspirations. In La Oroya, community members were faced with the dilemma of
choosing between two essential components of human well-being: health
and work. At the same time, those intrigued by the La Oroya case often
framed the problem in a dichotomized way as one in which we have to
deliberate: “What is more important in life: to have health or to secure a
job?” This question, although mirroring the crude reality of La Oroya, is
both dangerously simplistic and ethically deceptive. It inevitably throws
the responsibility of decision onto members of the community without
considering how and why this community is confronted with such a
dilemma in the first place and without offering any alternative options of
protection for both of these rights.
This book aims to provide an explanatory account about the La Oroya
trade-offs from a multidisciplinary perspective that advances a critical
approach to human rights and international development. In doing so, it

examines the impacts of almost a century of mining and smelting activities
in the life of La Oroya’ residents. The book arose from an initial intuition
that one can hardly provide an accurate assessment of people’s perception of environmental harm, and the value of health and job stability in
polluted communities, without a thorough study of historical, politicoeconomic, and sociological processes as well as of how such processes


INTRODUCTION: HUMAN RIGHTS TRADE-OFFS IN TIMES OF ECONOMIC...

3

shape the micro, meso, and macro spheres of people’s live over time. From
a broader view, this book also wants to enhance awareness of the extent
to which the “local” human rights trade-offs in La Oroya resemble, and
are also deeply interconnected to, a “national” trade-off resulting from
the promotion of natural resource extraction as a path to secure economic
growth for the entire country at the expense of some groups. The historical background of the La Oroya case—linking the very origins of capitalist development based on large-scale mining in Peru—demonstrates the
wider economic forces that have structured and reinforced this system of
trade-offs over time, forces that have scaled down and up from national to
local interests. We must not overlook the consequences of this reality on
marginalized individuals and groups’ human rights or on the shaping of
governments’ institutional aptitude in designing an economy.8

THE PUZZLE
The complexity inherent in the dilemma faced by this community speaks,
at first glance, to what Martha Nussbaum describes as a tragic choice resulting from a tragic question.9 This refers to a question for which all possible solutions are morally unacceptable: there are simply no right answers
to such a question. Tragic dilemmas leading to tragic questions are, as
Nussbaum posits, “blots on a decent society … [and] we should do everything in our power to arrange things so that we are not confronted with
such choices.”10 In the case of La Oroya, struggling to choose between
defending one’s “health” (and sacrificing access to work or employment
stability) and defending one’s “work” (and sacrificing community health)

drives the community to equally unfair solutions. Our inquiry about the
La Oroya case should avoid reinforcing the tragedy of the situation by
automatically assuming that the dilemma of trade-offs is inevitable or
unavoidable. The question is therefore, to what extent do existing methods that assess human rights trade-offs or rights in conflict assist us in
fully understanding the complexities inherent in the La Oroya dilemma?
The answer is, very little. As most of these methods are grounded on
the legal discipline, they are primarily designed as tools meant to resolve
legal controversies rather than to unveil the historical, economic, political, and social causes behind a human rights trade-offs situation.11 Citing
examples of rights in conflict, such as the right to free speech versus individual privacy, authors have previously assumed that human rights tradeoffs are inevitable and that reasonable solutions can be found simply by


4

A. VALENCIA

counterweighing correlative duties,12 or they have treated human rights in
conflict as a matter of normative inconsistencies. In these latter cases, solutions depend upon how legal practitioners interpret the content of rights
or how judges rule on the necessity to prioritize the protection of one
right over the other.13 Without wishing to undermine the rigor and relevance of such studies in certain contexts, the need for a solution to the La
Oroya trade-offs predicament surpasses the realm of the legal discipline.
What is in fact at stake goes beyond the necessity for prescriptions based
on pure normative reasoning or de-contextual legal engineering. Rather,
we need to understand the human rights trade-offs dilemma as symptomatic of structural problems, located in a particular politico-economic
context, with identifiable root causes.
A context-based analysis on human rights and root causes, thus, should
move our inquiry in a different direction.14 Rather than uncritically judging community members for their choices to defend either “health” or
“work,” we should instead ask why smelter workers, their families, and
other supporters have refrained from supporting mobilization efforts
aimed at overcoming health deprivation as a whole in the community.
And, most importantly, why did these individuals accept to support what

has been referred to as the smelter company’s environmental malpractices
when their own children were at risk from smelter pollution?

THE CONCEPTUAL FRAMEWORK
Pushing forward the type of inquiry proposed in this book upholds several
conceptual and methodological implications. A first hypothesis is that to
fully understand the complexities behind tragic choices leading to human
rights trade-offs, we need to move beyond the perpetrator-victim-remedy model commonly used by activists and practitioners to analyze such
situations (see Chap. 3). According to this model, particularly dominant
within the legal discipline, the production of human rights violations is
the result of a concrete, visible act of harm perpetuated by an identifiable
actor, the unjust outcome of which deserves immediate redress. Under the
lens of a perpetrator-victim-remedy model, or what is otherwise considered to be a naming and shaming strategy, our analysis would stop once
Doe Run and the Peruvian state accept joint responsibility for the public
health crisis of La Oroya and legal actions are in place for immediate remediation. Although actions and omissions of both actors are indisputably


INTRODUCTION: HUMAN RIGHTS TRADE-OFFS IN TIMES OF ECONOMIC...

5

related to the human rights trade-offs in this community, their roles only
disclose one explanatory layer behind the La Oroya conundrum. As it will
be elaborated in this book, we have yet to undertake an analysis of the
causes of causes. This inquiry would allow us to dig deeper and wider into
the socio-historical roots and politico-economic dimensions that allowed
the Doe Run Company to continually contribute to human rights abuses
in La Oroya and explain the alarming inaction by the Peruvian state to
address such abuses. A thorough analysis will lead us to better understand
how the politics of extraction in Peru, influenced by the international discourse of development, along with a history of smelting in La Oroya have

shaped social structures, personal values, and perceptions of health and
environmental pollution.
In looking for a framework capable of unveiling the interconnections
described in the La Oroya case, I came across the capability approach (CA)
of human development pioneered by Amartya Sen and further developed
by Martha Nussbaum.15 Unlike other approaches, the CA has effectively
put into conversation the disciplines of economics, ethics, and human
rights.16 This is particularly important given the disciplinary assumptions
of economists to uncritically treat trade-offs as part of the political process, where inevitably some of us will gain and others will lose.17 This
belief, as described by Jack Donelly, was inherent in the conventional
wisdom of the 1960s and 1970s that placed human rights concerns second to economic growth when it came to priorities18—an assumption
that is still palpable in much of today’s’ international economic politics.
As I will discuss further in Chaps. 4 and 6, the CA challenges such an
assumption by arguing that economic growth should not be promoted at
the expense of human development; and it reminds political economists
not to override ethical and human rights concerns in their analysis. The
CA is also particularly wary about trade-offs among essential components
of human well-being. The CA, particularly in Nussbaum’s version of the
approach, acknowledges a plurality of well-being elements that all together
represent the indispensable “well-being threshold” below which a life cannot be considered dignified or fully human.19 Of course, as I will discuss in
Chap. 6, this is not to neglect the fact that above the “well-being threshold” people may rank higher or lower in some components of well-being,
or even admit some temporary or minor trade-off without it necessarily
resulting in a situation of absolute deprivation.20 I am neither oblivious to
the reality that most national governments, due to insufficient resources,


6

A. VALENCIA

have to prioritize some well-being-oriented policies over others.21 Yet, neither of these situations closely speaks to the intricacies behind the tradeoffs problem in La Oroya. In this case, structural and cognitive processes
have merged historically, relationally, and systemically in impacting the very
ability to choose among “Oroyinos,” making it impossible to admit that
a lower ranking of health over work (or vice versa) will not harm or negatively impact La Oroya residents’ ability to enjoy a functional and dignified
life. These are the long-term capability impacts suffered by a community
historically exposed to extractive-led development.
From an additional but still interconnected angle, the CA is useful in
reminding us to not hamper our analysis by accepting the short-term horizons of vulnerable peoples as the most realistic scenario. Capability scholars
often point to the phenomenon of “adaptive preferences” in referring to
situations when people conform to or become content with their realities
of deprivation—and eventually accept trade-offs between essential aspects
of their human well-being—due to the lack of alternatives.22 The expansion of human capabilities provides people with more alternative “livings”
to choose among, so that they can avoid succumbing to trade-off dilemmas. At a more general level, as noted by Severine Deneulin, the CA aims
to foster a critical normative language to evaluate economic and social
policies and practices and to provide the means “[w]ith which to modify
them within the horizon of human wellbeing, agency and just relations
between people and the environment.”23
For the reasons outlined above, I decided to integrate the CA with a
critical-structural approach to human rights to design a model that I call a
Human Rights Systemic Analytical Model (HRSAM). The model works to
fulfill two analytical purposes. One, it helps to assess the unjust structures that
have historically impacted the realization of human rights and, more concretely, placed people in the difficult position of acquiescing to human rights
trade-offs. Second, it allows us to evaluate the extent to which the historical
diminishment of human capabilities—in both the individual and collective
spheres—relates to the fulfillment (or lack thereof) of human rights. In doing
so, the HRSAM and its application in the La Oroya case respond to a call for
research to better articulate the relationship between human rights and capabilities,24 and also to better understand the process and influential conditions
under which people learn to choose among different ways of living.25