Bargaining For More

LUCA BONADIMAN & UKRI SOIRILA

Photo by Markus Spiske from Pexels

Introduction

The human rights movement has a rare and important opportunity to redefine the outcomes of past struggles. Some defeats can be reversed and some pyrrhic victories that have brought about unintended consequences can be amended. The human rights movement has also the possibility to review and alter some of its underlying assumptions and deep-rooted culture and practices. In particular, upholding liberal values should not translate into enabling neoliberal policies and reforms. In the face of the current multiple crises, we advocate for the human rights movement to go beyond mere resistance and instead raise the stakes of the bargain.

History in Reverse

The cogs of history must be jammed. History’s promise of progress is certainly in question today, for the world seems to be moving in reverse and troubling pieces of the past are creeping back into the present. A number of modern “-isms” are indeed making their unwelcomed return to the global stage: populism, nationalism, authoritarianism, racism, mercantilism, to name a few. Some of the forces at play seem determined to reverse many of key victories of the past two centuries, in particular the emancipation of social groups by means of democratisation and decolonisation. The most tangible effects of the backlash – which started already with the triumph of neoliberalism during the last three decades of twentieth century – has been the soaring of socio-economic inequalities within and between countries. Our contemporary global society is today shaped and governed by patterns of dominance and dependency: at the level of international relations, this is reflected – for example – in the struggle between United States and the People’s Republic of China for the preservation or extension of their respective spheres of influence, in a kind of renewal of Cold War; concomitantly, at the level of international law and domestic politics, the same development is underway in the form of much more veiled attempts to encase markets and property relations and isolate them from political contestation.  

The good news is this: it is all familiar ground. The human rights movement has seen it all already. As a matter of fact, the Cold War is what brought human rights to international prominence to begin with. Today, the re-opened battles go much beyond the Cold War, however. And this should concern us. But it should also mobilise us to defend historic achievements, overturn past losses, and amend mistakes of the past. Above all, it is a crucial reminder that human rights encapsulate costly social bargains and struggles of the past, and they ought to be strenuously defended and fought for.

The Return of the Same

It is legitimate to sink into a sense of despair. However, giving in to despair is both easy and inefficacious. The truly challenging task is how to turn the tides in favour of a revitalised human rights movement. In this article, we provide some discussion around this challenge, through three core examples.

Reproductive Rights

The Polish Constitutional Court has just issued a decision that further restricts women’s reproductive rights in the country, that is, the ability to undergo abortion for any other case than rape, incest, or a threat to the mother’s health and life. Women in Poland have defied the coronavirus lockdown to take their discontent to the streets. On the opposite shores of the Atlantic, Amy Coney Barrett has just been sworn-in in a record time as United States Supreme Court’s Justice, replacing Ruth Bader Ginsburg, who passed away on September 18th, 2020. This move has secured a comfortable majority of conservative judges. One of the most contentious issues is the role that this new conservative majority will play in deciding about women’s right to self-determination in matters of reproductive health and abortion. How to react to that? A strategic response would be to raise the stakes. The case of Roe v Wade was centred on issues of privacy, that is, the government should not use excessive interference into a woman’s liberty to choose. Here is the catch: with such formulation, a woman having a child will be seen as the direct consequence of her right to choose. Therefore, conservatives in the United States (and beyond) have used this line of reasoning to cut welfare available to women. Winning this legal battle was seen as a hallmark of women’s emancipation, but it has always been more symbolic than substantive. Re–litigating Roe v Wade could offer an opportunity to amend this unintended consequence of the case: not only should a woman’s right to self-determination be reasserted, but her freedom to choose should be substantive. It should not be a choice between economic dependency and guilt.  As women’s rights are under siege in many parts of the world, such attacks should be countered not only with mere resistance, but also by increasing the stakes. We should demand deep and radical transformations: the fact that too many women clash against a glass ceiling is, deep down, rooted in gender inequality and the idea that women choose family over career. Raising the stakes means demanding much stronger welfare and a change in the structures of the labour market, because no career should be totalising over one’s life.

Labour Rights

Labour rights are the second example we wish to bring. There are so many dimensions to labour that we can only touch upon few significant points. The ongoing pandemic is not only causing millions throughout the world to lose their source of income, but it is also transforming the way work is conceived: many people now have an opportunity to work from home. While this might appear as something desirable to most, it carries some potential risks. For instance, it could strike the last and fatal blow to whatever is left of labour unions and thus deliver immense negotiation power to employers. Even with the best digital platforms, working from home causes even more individualisation within the workforce. Not to mention, digital platforms grant unprecedented powers of surveillance to employers, ranging from productivity assessment to the spying of the content of your messages to your colleagues. It is hard to imagine how workers can ever collectively organise and eventually mobilise if they stay home. Platforms presents themselves as decentralised and horizontal, while they are in fact sharply vertical and highly centralised. We are told the scope is to guarantee efficiency in business and public security in society. But whose efficiency and whose security?

The embedded risk of a permanent transition to remote work is twofold: first, it achieves the ambitious aim of turning every employee in a de facto gig-economy worker, who can easily be connected (i.e., hired) or disconnected (i.e., fired), and who may perhaps see her pay determined by measurable output (i.e., the old piece rate system); second, it erodes the public sphere of life, weakening civil society even further. What’s the human rights issue here? One fundamental problem is that human rights have traditionally hailed the sanctity of privity, including in contractual relations. While privity allows same sex couples to marry, it also allows your employer to avoid scrutiny and add a forced-arbitration clause to your working contract, preventing workers from pursuing labour disputes in public courts. Privity is also key to silencing victims through confidentiality agreements. The neoliberal trend to confine labour in the sphere of the private ought to end: labour is a fundamental public issue and the human rights movement should unconditionally push for that. For labour is one determining factor in deciding the allocation of wealth and power in society.

Taxation

Socio-economic inequalities are our third and consequential point. As human rights activists turn their attention to this painful problem, carrying on as before simply won’t do: recognition, institutionalisation, and accountability make for an insufficient response. It should be less about lobbying and protesting, and more about strategic rethinking of our societal structures. For the past decades, two fundamental principles have informed the globalised market culture: (1) maximising shareholder value; and (2) reducing prices in favour of consumers. In practice, this has marked the dawn of global corporations and monstrous behemoths like Amazon: the winner can take it all because shareholders are richer and consumers spend less. The two principles indeed assume our society to be comprised of two types: shareholders and consumers. What about workers? The researches of Thomas Piketty and Branko Milanovic, respectively, have persuasively demonstrated that workers in many parts of the world, have suffered decreasing socio-economic conditions over the past decades. In particular, Piketty has shown how the rate of return on capital has steadily increased, while the rate of return on labour has hopelessly sunk. The split is in plain sight during the ongoing pandemic: stock markets trade at record levels and some banks, such as HSBC and Santander, are considering defying the Central Banks and issuing dividends for 2020. All the while, millions throughout the world lose their jobs and slip into poverty, if they were not already there. There is no natural law behind the divide between capital and labour. It is a matter of legal rules, how they structure access to and opportunities inside markets, and how they distribute gains and losses. Indeed, the stellar return of capital has been largely accrued by “allocating externalities”, including taxes, onto others. The recent work of Philip Alston and Nikki Reisch finally brings the focus of human rights advocates on taxation and fiscal policies. Looking at the present through the lenses of taxation one can only feel a deep sense of rage. While the richest direct their money to tax havens or take advantage of various legal exceptions, the shrinking middle class is burdened with taxes that are destined less and less to public services and more and more to pay interests on the public debt and offer fiscal incentives to companies to keep or bring their operations in a given country. At the end of the line, workers earn less and pay more taxes to have less social mobility, less job security, and less public services.

Taxes could be the next big struggle for the human rights movement. The Covid-19 pandemic has had a disastrous impact on the economy and on public finances. Someone will have to pay – and that someone tends to be the tax-payers in the increasingly shrinking middle class. During the 2007 financial crisis, governments opted to save the very banks who had caused the crisis instead of the people those banks were meant to serve in first place. Countless individuals lost their jobs and defaulted on their payments (thus losing their home or business), while banks enjoyed massive infusions of state-based capital that they at times used to buy state bonds, earning the differential between negative or extremely low interest rates on their loans and the interest rate afforded by those bonds. A decade later, most banks had returned to their old ways, while millennials found themselves at the brink of an economic precipice. Companies who benefited from public bailout money have not changed course, nor have they been forced to do so. Society got nothing in return, it simply paid to keep the system alive.

Today, the global pandemic presents an even more radical crisis because it affects more sectors of the economy. Yet, it posits the exact same question about social justice. What do tax payers get in return for rescuing those large companies that have relentlessly eluded taxes, while also reducing pay and benefits to their employees? For example, Hong Kong’s flag carrier Cathay Pacific has recently laid off some 8,500 workers and asked remaining employees to sign a new contract affording not only lower wages, but also less social protection after receiving 5 billion dollars in a government-led bailout earlier in June. In this setting, the task for the human rights movement is to take taxes for what they are: a bargain. We have to bargain for more! Demanding more could encompass making any government loan or bailout conditional to substantive forms of social responsibility. It is not sufficient for businesses to merely take into account traditional shareholders. Hence, a company could be required to replace the payment of dividends with increasing salaries and hiring additional workers, ensuring that young people have meaningful opportunities and not just short-term contracts that do not endow them with any additional competences or skills.

How to respond?

It is admittedly not always easy to fathom the exact role the human right movement could play in the aforementioned battles – especially from a human rights law perspective. Some of the struggles are indeed between private actors – individuals and corporations – whereas international human rights law has typically concerned itself with vertical relations between individuals and the state, leaving horizontal relations to be regulated by vague principles, such as corporate social responsibility, or to be tackled by the state’s due diligence obligations to protect. Furthermore, despite the International Covenant on Economic Social and Cultural Rights, states’ obligations to respect, protect, and fulfil economic and social rights have been limited to meeting certain minimum thresholds, such as lifting individuals above the level of absolute poverty, or guaranteeing that they have sufficient food and water to survive. Addressing the rising inequality gap has not traditionally been seen as a human rights obligation.

The human rights movement needs to embrace a more active political stance. This means at least three things: (1) increasing the stakes; (2) reclaiming the public sphere of life from the private; and (3) engaging with technical areas (e.g., taxation).

  1. Defending the legal and institutional achievements of the past is no doubt crucial, but it might prove an insufficient strategy. Therefore, as old battles return and new ones arise, NGOs and civil society organisations should focus on bargaining for more. Resistance is not enough. To counter the encroachment of rights and freedoms, it is necessary to increase the stakes.
  2. Human rights have been fundamental in affirming the inviolability of the private sphere. However, the private sphere is also the realm of inequalities and power asymmetries. The human rights movement must reclaim the public character of several spheres of life, starting with labour. Broadening the public sphere may well be one of the few effective ways for curbing socio-economic inequalities.
  3. The human rights movement has for decades successfully exposed violence, abuses, and injustices. However, many campaigns limit their aim at creating public pressure. This may not be enough anymore. NGOs and civil society organisations need to engage with more strategic and technical aspects of law and policy. For example, at a time in which governments are financially aiding companies at the expenses of tax payers, the human rights movement should demand for substantive forms of social responsibility in return for those loans and bailouts.

The current situation of crisis may provide an unprecedented possibility for the human rights movement to succeed in these tasks. For that to happen, we should approach human rights as “struggle concepts”, as tools within battles between different interest groups. We should be willing to accept that human rights advocates are not external to power, but they also inhabit it. Finally, and most importantly, the success of a new era of activism requires increased co-operation with grassroots, political, and local movements, from environmentalists to labour unions, not as a way to exercise resistance, but rather as a mode of socio-political organisation to advance collective interests and rights.

Luca Bonadiman is currently a JD Student at the Chinese University of Hong Kong, Faculty of Law. He holds a BA and MA in Political Science and International Relations from the University of Padova. He is an alumni of the E.MA Programme in Human Rights and Democratisation. He completed a PhD in Law at City University of Hong Kong with a Thesis on the Historiographical Turn in Human Rights. He worked as Post-Doctoral Residential Research Fellow at the Institute for Global Law and Policy at Harvard Law School from 2017 to 2020, focusing on distributional analysis and the transformations of the human rights regime. Luca is a current member of the Rights! Editorial board. Follow his work here.

Ukri Soirila is a Lecturer in International Law at the University Helsinki, and an affiliated research fellow at the Erik Castrén Institute and the Helsinki Inequality Initiative. Ukri received his LL.D. degree from the University of Helsinki in 2019. His research interests include international law, human rights, legal theory, and law and political economy. You can follow his research here.

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