Is there room for economic and social rights in Neoliberalism?
As said in the introduction, human rights organizations have recently started paying attention to economic and social rights. Similarly, scholars committed to this cause study the existing opportunities for the realization of these rights. Academic literature is full of examples. Let us just point out a few. Some defend the need to include budget analysis to monitor the progressive realization of economic and social rights. Others look for mechanisms to enforce these rights at the judicial level. Based upon the material prevalence of UN principles (such as human rights; Article 55 of the UN Charter) and obligations (Article 103 of the UN Charter), several studies look for legal avenues to hold the World Trade Organization accountable. Particularly visible is now the analysis of the international human rights legal obligations of transnational corporations. Finally (we must finish this list of topics at some point, although we could go on both in depth and breadth), some authors explore the transnational obligations of states to protect socioeconomic rights beyond their borders.
All these contributions are very important because they help define the operational meaning of the recognition of economic and social rights in legal documents. They also provide human rights advocates with a productive set of tools to interpret the normative framework in the most human rights-sensitive way. Nevertheless, as important as legal avenues are, the possibilities thereby offered are not at all sufficient. A purely juridical analysis, regardless of the willingness of the researcher to push the human rights agenda forward, cannot cover political, cultural and economic factors that condition the present and the future of human rights. Besides, radical legalism and metaphysical abstractions obscure the understanding of the process of social construction of human rights and lead to a “paradox of institutionalization”: part of the struggle consists in integrating human rights at the institutional level, but “once institutionalized – human rights come to stand in a much more ambiguous relation to power”; their origins and meanings “can get lost or be switched in ways that result in human rights becoming a tool of power, not a challenge to it”. An excessive dependence upon legal standards risks falling over the institutionalization of human rights advocacy, with the consequent negative effects for social transformation. The transformative potential of human rights is therefore thwarted, because they are “typically formulated, interpreted and enforced by institutions that are embedded in the political, social and economic status quo”. Putting human rights activism in an action framework that trespasses mere legal notions is the only way to address the actual deep causes of the violations that activists are trying to redress. It is not enough to say that human rights violations would never happen as long as international human rights law was followed. Other factors, such as the surrounding economic context, must be examined.
The point is not at all trivial because a legalistic analysis and a politico-economic analysis are likely to show different conclusions. A very recent manifestation of this contradiction is found in the academic discussion (in Human Rights Quarterly) between Whelan and Donnelly, on the one hand, and Kirkup and Evans, on the other, about the truth or myth of the western opposition to economic, social and cultural rights. Whelan and Donnelly use legal tools (ratification of treaties, positions defended in the travaux préparatoires, support of the constitution of monitoring bodies, etc.) and a basic look at overall social spending to contradict the idea that the West has not supported the integration of socioeconomic claims in the human rights framework. Kirkup and Evans, in contrast, maintain that the neoliberal policies adopted by Western governments since the early 1980s illustrate that the commitment for socioeconomic rights disappeared with the end of the ‘embedded liberalism’. The main cause of disagreement between Whelan-Donnelly and Kirkup-Evans is that they look at different units of analysis. While the former team reached their conclusions based on a legal examination (and a very basic budget analysis), the latter adopted quite opposite conclusions based on the political economy of human rights. The research by Whelan and Donnelly is consistent with its own analytical framework. However, a full assessment of the ability of human rights to satisfy the needs of those it aims to serve demands a look at political and economic factors. This was also acknowledged by the UN Committee on Economic, Social and Cultural Rights in 2008 regarding the food crisis, which, in the opinion of the Committee, “represents a failure to meet the obligations to ensure an equitable distribution of world food supplies in relation to need. The food crisis also reflects failure of national and international policies to ensure physical and economic access to food for all”.
The purpose of this paper is not to carry out a comprehensive assessment of the consistencies and inconsistencies between Neoliberalism and human rights. Such a task demands time and space conditions that this project cannot meet. Further research is needed in this area. Nonetheless, with the information at hand, we can say that the contradictions between Neoliberalism and human rights are quite visible in relation to some particular rights. This is the case of the right to private property and the right to work.
Private property is one of the most important formulations of liberalism. Over the last three centuries, the idea of private property has become so much a part of countries’ legal systems, that we now take it for granted. North argues the industrial revolution would have not succeeded if intellectual property rights had not been put in place. However, private property is not self-evident. There is no such a thing as a ‘natural right to private property’. Private property does not precede the law; rather, private property is an institution created and defined by law itself. As famously noted by Justice Oliver Wendell Holmes Jr., “property, a creation of law, does not arise from value, although exchangeable-a matter of fact”. This is also acknowledged by the neoliberal idol Milton Friedman, for whom the certainty of the conventional definition of private property matters more than the actual definition itself.
At the time of the ‘embedded liberalism’, liberals accepted the conventional nature of the right to private property and its consequent limitations vis-à-vis other values and principles. However, arguments in favor of a supposed natural right to private property are nowadays increasingly popular in the business community. Private property is currently framed as an almost absolute right derived from the creed of the market economy. This interpretation is very much in line with Nozick’s libertarian approach. Libertarianism is grounded in the extreme idea that there are no rights but property rights, insofar as individuals have property over their lives, their labor and their goods, because, in Nozick’s terms, “things come into the world already attached to people having entitlements over them”.
The libertarian meaning of private property is clearly inconsistent with international human rights principles. The right to private property is enshrined in the 1948 Universal Declaration of Human Rights (Article 17) and the right to intellectual property is recognized in the 1966 International Covenant on Economic, Social and Cultural Rights (Article 15.1.c). Nevertheless, the UN Committee on Economic, Social and Cultural Rights interprets this right in a restrictive way (something unusual compared to the interpretation of other rights by this body). In particular, the Committee recalls that “States parties should (…) ensure that their legal or other regimes for the protection of the moral and material interests resulting from one’s scientific, literary or artistic productions constitute no impediment to their ability to comply with their core obligations in relation to the rights to food, health and education, as well as to take part in cultural life and to enjoy the benefits of scientific progress and its applications, or any other right enshrined in the Covenant”. If human rights are meant to be taken seriously, the right to private property must be interpreted with the necessary restrictions in order to guarantee other fundamental socioeconomic rights.
The issue of (the right to) work is also problematic. As an enabler to other rights, work must be deemed a human right: “Work provides individuals in a society with an element of human dignity as key contributors to that civilization, while also providing remuneration, which might allow them to secure an adequate standard of living”. The right to work is enshrined in the Universal Declaration of Human Rights (Article 23) and the International Covenant of 1966 (Article 6), which recognizes three main elements of the right to work: the right of access to employment, the right to free choice of employment, and the protection against arbitrary dismissal. Furthermore, Article 7 of the Covenant establishes the right to social security and Article 8 covers the right to create and join a trade union and the right to collective bargaining.
The inconsistencies between the right to work and Neoliberalism are quite obvious. From a pure economic standpoint, labor is a productive factor. Neoliberals can claim that any public policy that interferes in the labor market constitutes a threat to the right to private property and private initiative in the market. Neoliberal economists and legal analysts would argue that a labor contract is a free agreement between two separate actors (employee and employer) through which one provides their work in exchange for remuneration. Based on this contractualist myth, neoliberals assume that unemployment is by definition a voluntary decision insofar as workers are supposed to give up their requests as much as needed in a market of free supply and free demand of work. In contrast, the human rights approach is sensitive to the unbalanced power relation between labor and capital and therefore aims to protect the former from the potential hypertrophy of the latter. The protection, respect and fulfillment of the right to work are only possible if we stand in the way of a boundless Neoliberalism.
Policy responses to the current global crisis (a combination of financial bailouts and decreasing welfare services) confirm that Neoliberalism is here to stay. The human rights system was built upon a state-centric international order that does not exist anymore. Unless the interrelation between Neoliberalism and socioeconomic rights is examined carefully, human rights will be at stake. Similarly, democracy will also suffer if hegemonic economic interests keep trespassing borders with almost total liberty.
The analysis of the concrete implications of Neoliberalism for human rights requires detailed qualitative and quantitative analysis in many areas (law, political science, international relations, etc.), particularly in the field of political economy. The global human rights community must embark on this discussion as soon as possible. If human rights organizations seek to maximize the power of human rights in their (still) incipient work on economic and social rights, they must examine whether the neoliberal ideology constitutes a threat to these rights comparable, for example, to that of Nazism to the right to life. A comprehensive examination of this matter may confirm or refute this point, partially or in its entirety. In any case, human rights groups must be ready to ask this question, look for answers and act accordingly.
 NOLAN, Aoife and DUTSCHKE, Mira, Article 2(1) ICESCR and states parties’ obligations: whither the budget?, European Human Rights Law Review, Vol. 3, 2010, pp. 280-289.
 MAPULANGA-HULSTON, Jackbeth K., Examining the Justiciability of Economic, Social and Cultural Rights, The International Journal of Human Rights, Vol. 6, No. 4, 2002, pp. 29-48; International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative experiences of justiciability, 2008, Geneva: ICJ.
 BENEDEK, Wolfgang, “The World Trade Organization and Human Rights”, in BENEDEK, W., DE FEYTER, Koen and MARRELLA, Fabrizio (eds.), Economic Globalisation and Human Rights, 2007, Cambridge: Cambridge University Press, pp. 137-169; McBETH, Adam, “Human Rights in economic globalisation”, in JOSEPH, Sarah and McBETH, A. (eds.), Research Handbook on International Human Rights Law, 2010, Cheltenham (UK): Edward Elgar, pp. 139-166.
 RUGGIE, J. G., Business and Human Rights: The Evolving International Agenda, American Journal of International Law, Vol. 101, 2007, pp. 819-840; BILCHITZ, David, The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?, Sur – International Journal on Human Rights, Vol. 12, 2010, pp. 199-229.
John Ruggie is the current UN Special Representative on Human Rights and Transnational Corporations and Other Business Enterprises. See, also, the legal and empirical research of the London-based Business and Human Rights Resource Centre.
 GÓMEZ ISA, Felipe, Transnational Obligations in the Field of Economic, Social and Cultural Rights, Revista Electrónica de Estudios Internacionales, Vol. 18, 2009; COURTIS, Christian and SEPÚLVEDA, Magdalena, Are Extra-Territorial Obligations Reviewable Under the Optional Protocol to the ICESCR?, Nordisk Tidsskrift for Menneskerettigheter, Vol. 27, No. 1, 2009, pp. 54-63.
 I understand ‘social transformation’ as “the altering of structured inequalities and power relations in society in ways that reduce the weight of morally irrelevant circumstances, such as socio-economic status/class”; from GLOPPEN, Siri, “Courts and Social Transformation: An Analytical Framework”, in GARGARELLA, Roberto et al (eds.), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor?, 2006, Farnham, Surrey (UK) Ashgate Publishing, pp. 35-69, at 37.
 PIETERSE, Marius, Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited, Human Rights Quarterly, Vol. 29, No. 3, 2007, pp. 796-822, at 805.
 See DONNELLY, Jack, “The West and Economic Rights”, in HERTEL, Shareen and MINKLER, Lanse, Economic Rights: Conceptual, Measurement, and Policy Issues, 2007, Cambridge: Cambridge University Press, pp. 37-55; WHELAN, Daniel and DONNELLY, J., The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight, Human Rights Quarterly, Vol. 29, No. 4, 2007, pp. 908-949; KIRKUP, Alex and EVANS, Tony, The Myth of Western Opposition to Economic, Social and Cultural Rights? A Reply to Whelan and Donnelly, Human Rights Quarterly, Vol. 31, No.1, 2009, pp. 221-238; WHELAN, D. and DONNELLY, J., Yes, a Myth: A Reply to Kirkup and Evans, Human Rights Quarterly, Vol. 31, No. 1, 2009, pp. 239-255; KANG, Susan, The Unsettled Relationship of Economic and Social Rights and the West: A Response to Whelan and Donnelly, Human Rights Quarterly, Vol. 31, No. 4, 2009, pp. 1006-1029; WHELAN, D. and DONNELLY, J., The Reality of Western Support for Economic and Social Rights: A Reply to Susan L. Kang, Human Rights Quarterly, Vol. 31, No. 4, 2009, pp. 1030-1054.
See, also, UN CESCR, Poverty and the International Covenant on Economic, Social and Cultural Rights, 10 May 2001, UN doc. E/C.12/2001/10.
For a review of the libertarian argument in political economy see CAPORASO, James and LEVINE, David P., Theories of Political Economy, 1992, Cambridge: Cambridge University Press, pp. 199-204; see, also, FREEMAN, S., Illiberal Libertarians…, op. cit., at 123-131.
 SARKIN, Jeremy and KOENIG, Mark, Developing the Right to Work: Intersecting and Dialoguing Human Rights and Economic Policy, Human Rights Quarterly, Vol. 33, No. 1, 2011, pp. 1-42, at 3.
 EVANS, T., Human Rights in the Global Political Economy: Critical Processes, 2011, Boulder: Lynne Rienner Publishers, p. 17.