There has been little examination of the possible negative effects on labor's interests when those interests are asserted as rights. It is as if proclaiming “workers' rights are human rights” can only cause good things to happen. Joseph McCartin's essay contributes to a more balanced and sophisticated discussion of the effects of rights talk for labor. He uses George McGovern's critique of the Employee Free Choice Act (EFCA) to illustrate the more general point that prolabor rights arguments invite antilabor rights arguments even from friends of labor, and that in the current conjuncture appeals to rights are more likely to empower neoliberals and libertarians than workers. Indeed, the very name of the proposed act, emphasizing freedom and choice, is part of the problem, as the union idea involves definite limits on individual freedom in the interest of the betterment of the group. The titling of EFCA indicates unwillingness on the part of Labor and its allies to face this.

I agree with the central thrust of McCartin's essay. The adoption of rights language by the antisweatshop and living wage movements is probably more influential than the scholarly work McCartin cites in the growth of labor-rights talk, and the genealogy of the contemporary rights regime tells us a lot about why some rights and not others are now asserted. I will disagree with McCartin on one point that he makes only briefly but which in fact is quite important, that rights-based appeals should continue to have a role “especially in international and transnational contexts” because this is precisely where such appeals are likely to be weakest. Further, if labor politics is to be based on rights, we should ask what kinds of rights arguments are most powerful and what rights workers actually need. While the right to collective bargaining is, in my view, the most important of the conventionally defined core labor rights, it may need to be accompanied by a right to participate in the management of the enterprise.

Human rights are social conventions that are generally assented to as consistent with what it means to be human at any particular point in time.Footnote ¹ Unless one adopts a natural law framework, we should expect “human rights” to be different in different times and places and changeable, i.e., by claiming something as a right, we may be able to influence social convention in such a way that it becomes a right. Rights definitions are influenced by class interest. While capitalists and their allies have not generally been the first to propose particular rights, they often modify and influence rights claims.

Human rights claims are problematic because they deal with what the individual is entitled to rather than what is in the interest of community, solidarity, or civic virtue. This was the conclusion of the most incisive conservative, liberal, and socialist nineteenth-century writers on rights. Burke, Bentham, and Marx, in different ways, criticized the abstraction and formalism inherent in rights-based politics, especially the abstract universalism and individualism that such a politics promotes. Each thought that the “rights of man” was an impoverished view of the functioning of human society. “The great and recurring theme in all three of these attacks is that the rights of man embody as the be-all and end-all of politics a demand for the immediate and unqualified gratification of purely selfish and individual desires.”Footnote ²

Partly as a result of this criticism of rights concepts from across the political spectrum, “progress” largely displaced “rights” as the focus of social theory by the turn of the last century. The second half of the twentieth century reversed this trend. It is not hard to see why. The willingness, if not the desire of states to exterminate their own citizens, the inability of states to protect their citizens from the exterminatory tendencies of other states, and the clear connection between “progress” and exterminatory capacity, created a shift in favor of establishing transnational or “human” rights. This was clearly the case at the end of World War Two, when the major contemporary human rights documents were produced and when the International Labor Organization committed itself to a rights-based politics in the Philadelphia Declaration.Footnote ³ The Cold War made rights-based politics useful for state actors. But human rights arguments are more compatible with individual than with collective action, and it is arguably the latter that is most needed in globalized commodity chains. In other words, the language of rights became central to political discourse only with the conjunction of the horror of the European Holocaust and the particular nature of the great power struggles of 1945–1989, a context in which, above all, the individual needed protection from the state. And it is this very particular and largely liberal definition of rights that is generally carried into popular discussions of worker rights.

Since 1989 there has been another surge of interest in the rights of persons as opposed to the rights of the citizen. With what are clearly transnational issues gaining in salience—international production networks, global pollutant flows, human migration, etc.—and with governments either unable or unwilling to do much about these issues, it is not hard to see why slogans like “the rights of humans everywhere” have been adopted by those engaged in resistance to one aspect or another of these new patterns of uneven development. Contemporary rights theorists generally present citizenship rights as individual rights serving the more fundamental rights of persons.Footnote ⁴

One can sympathize with the goals of the human rights movements while doubting the efficacy of rights talk that focuses on the “human” rather than the “citizen.” It was Hannah Arendt who first pointed out the perplexities of the modern rights regime.Footnote ⁵ Human rights inevitably entail a tension between the universal and the particular. Rights are imagined to pertain to all people, and yet the existence of refugees demonstrates that it is civil, not human, rights that are critical. At the very moment when one becomes merely human, a human being in general—i.e., stateless—one loses all rights. Human rights are supposed to be universal, but they are clearly dependent on the nation for meaning and realization.

Just as states have lost the power to enforce labor rights—or merely decided they don't want to—the claim that labor rights are human rights has gotten louder. There is presently no global government to enforce such rights. Perhaps workers would be better served if labor advocates called for the expansion and generalization of the conditions of citizenship rather than for human rights.

Human rights claims are conversation stoppers. Rather than engaging in the hard work necessary to convince people of their common interest and to build collective power, asserting something as a right presents an absolute claim. It seeks redress through law and the state rather than through organizing and bargaining. But seeking emancipation through entitlement can weaken the very forms of collective action that are necessary for workers to be able to influence their own destiny. Human rights claims in the contemporary period have been most effectively used in the service of individual equality of opportunity and limiting bodily pain.Footnote ⁶ In global production networks it is a group right—the right to organize and bargain collectively—that is most important for improving working conditions, labor market outcomes, and securing economic and political democracy.

Human rights arguments highlight some oppressions while obscuring others. For instance, in its important reports on the trafficking in women and bonded child labor, Human Rights Watch takes a strategy of “naming and shaming” particular firms rather than investigating the broad and global economic context within which such abuses take place. Their preferred recourse is legalistic rather than grassroots organizing.Footnote ⁷ The victims of torture often are in fact those who are organizing for economic and social rights, including the right to organize and bargain collectively. Human rights organizations often betray a profound lack of interest in the structural causes of the violations of the individual rights on which they report.Footnote ⁸

The modern human rights movement traces its origins to the antislavery campaigns of the nineteenth century.Footnote ⁹ These campaigns focused on slavery's impact on individual freedom of choice rather than it being a form of economic exploitation. The origins of antislavery might be found in a shift in moral sentiment: The rising industrial capitalist class used it to single out slavery as something singularly evil, drawing attention away from controversies over capitalist exploitation and wage labor.Footnote ¹⁰ The labor movements of the late nineteenth and early twentieth centuries drew on the economic moment of antislavery to construct a critique of capitalism as a system that stole the fruits of their labor from workers as a class and denied them a living wage.

If the antislavery movement legitimized capitalist forms of exploitation by demonizing slavery, contemporary human rights practice limits itself to those oppressions that are consistent with the individualism at the heart of the global neoliberal project. The “name and shame” strategy of trying to embarrass corporations has encouraged the more morally sensitive (i.e., brand dependent) multinationals to adopt codes of conduct for their suppliers. The issues covered most frequently are safety and health, discrimination, and environmental protection. The least likely to be mentioned are overtime hours and pay and rights to organize and bargain collectively. The latter is the “right” with the most promise for creating countervailing power to globalized capital at the grassroots. Thus, the individualism that is central to human rights doctrine supports the very ordering of rights promoted by the largest multinational enterprises, but not those that would be most effective in empowering working people and their organizations.

The antisweatshop movement can be used by “enlightened” capitalists to shift attention from the problem of capitalist exploitation in general and onto specific forms of exploitation that contemporary moral convention defines as particularly egregious, such as forced labor, discrimination, and child labor. This shift is supported, in certain crucial ways, by contemporary transnational human rights networks, whose focus tends to be physical injury to the body and equality of substantive opportunity, not collective rights like freedom of association, the right to organize and bargain collectively, or the right to a living wage.Footnote ¹¹

I have shown elsewhere that the International Labor Organization (ILO) and labor-based NGOs like the Workers Rights Consortium can sometimes use rights language to empower workers and their organizations.Footnote ¹² The ILO's promulgation of the core rights—freedom of association and collective bargaining, freedoms from discrimination, child labor, and forced labor—in 1998 was meant to simplify a dizzying array of ILO conventions. These four core rights were designed to incorporate liberal, Christian socialist, and social democratic concerns so as to appeal to the most interested parties. It was thought that rights that were based on already highly ratified conventions, enabling of other rights (thus collective bargaining might get you a better minimum wage and health and safety but not the other way round), and appealing to these core constituencies would garner more support.

And this is exactly what has happened: The spread of this language of core labor rights in the years following has been remarkable, even when only lip service is paid. But note that these conditions have been designated as rights on a purely conventional and political basis. Perhaps labor rights theorists believe that by designating something as a human right they are resting on a firmly established body of moral reasoning, but they are not.

Core worker rights, as promulgated by the ILO, are not all treated similarly either in the legal case history in the United States or in the theory and practice of post-World War Two international human rights. The rights to freedom from discrimination and freedom from forced labor, because they expand individual choice, stand well within the international human rights consensus. The right to freedom from child labor is also arguably within that consensus, if children are not seen as fully capable of making labor market choices. The right to freedom of assembly straddles the line, and the right to organize and bargain collectively is clearly outside that consensus.

As McCartin points out, George McGovern used the right to freedom of association to argue against EFCA. The right to freedom of association can also be used to argue against union security clauses.Footnote ¹³ On the other hand, it is this right to freedom of association that has been most powerful in forming solidarity during democratic transitions, such as the ones in Poland and South Korea. So in itself the right to freedom of association encapsulates the perplexity at the heart of the workers'-rights-as-human-rights project.

Rather than rights talk being more effective in the international than in the domestic (US) context, it is more likely that internationally defined rights could be useful in arguing for economic democracy domestically. For instance, the ILO's Committee on Freedom of Association requested remedial action in the 1992 Lechmere v. NLRB decision, in which the Supreme Court ruled that only employees and not unions themselves (to say nothing of organizers) had collective bargaining rights. The committee sustained a complaint filed by the United Electrical Workers against the state of North Carolina and called specifically for the repeal of the state law that prohibits public employee collective bargaining. Currently pending before the ILO is a complaint filed by Transport Workers Local 100 challenging New York state's “Taylor Law,” which prohibits public sector strikes. While none of these decisions are or will be binding, the fact that the US continues to violate its international treaty obligations might be given a higher rhetorical profile in the ideological battle to create social conventions around representation in the workplace. This is particularly the case since, as I am writing, nearly half of the states in the United States are considering legislation that limits the ability of public employees to bargain collectively.Footnote ¹⁴

Rights talk is an ideological tool that can sometimes be wielded in a way that helps to secure civil rights. Carrying signs saying “I Am a Man” was an effective instrument in the context of the sanitation workers' strike in Memphis in 1968, given the salience of racism in that particular situation. To argue that “workers' rights are human rights” then means that one thinks that such a slogan makes sense in the concrete circumstances we face today. But there is no effective system of global governance to translate “human rights” into civil rights in globalized commodity chains. What talk of labor rights as human rights might do is to create the possibility for such a system. For instance, as a result of many years of advocacy on the part of human rights and labor groups, the “violation of internationally recognized labor rights” is now typically included as a prohibition in bilateral US trade agreements.

As McCartin, Nelson Lichtenstein, and others have argued, we know enough of how the “rights revolution” has affected the collective strength of workers in actually existing US capitalism to be skeptical about “workers' rights as human rights.” Arguably, the weakness of the state in the United States is one reason why workers' rights are so feebly developed here. State actors are even weaker in globalized commodity chains. Both sides in any labor dispute are able to use rights arguments and, as Marx pointed out many years ago, “between equal rights, force decides.”

The rights to freedom of association and collective bargaining are the ones with the most chance to more fairly distribute the fruits of globalization and the ones least likely to be mentioned in corporate codes of conduct. In the hands of groups like the Workers Rights Consortium, these rights become pragmatic tools to empower nascent workers' organizations on the ground in poor countries. To the extent that the assertion of rights leads to collective organizing and enforceable standards, they play a role in redressing the gross inequality and exploitation that has been integral to the globalization of the last quarter century. But it is the organizing and the standards, not the rights, that should be the goal.

The liberal tradition focuses mainly on individual freedoms, whereas the labor movement has historically focused on the group, in slogans such as “an injury to one is an injury to all” and “poverty anywhere is a threat to prosperity everywhere.” Corporations in the United States, both individually and collectively, have adamantly opposed workers' rights to freedom of association and collective bargaining. Even during the heyday of the New Deal system, the control by corporate directors of firm surpluses was unchallenged, allowing them to engage in public lobbying and in propaganda campaigns to convince politicians and the general public that the union idea was un-American. Even if union density in the United States was magically restored to its 1950s peak, if workers have no say in how surpluses are distributed, there is no guarantee that the effective right to bargain collectively could be maintained.

David Ellerman has argued that workers have an inalienable right to be the first appropriators of the product of their labor.Footnote ¹⁵ In Ellerman's view, labor is not just another input to production because humans act intentionally and thus are responsible for their actions. Capital equipment, on the other hand, can be productive (raise efficiency), but it cannot be responsible for production. Workers (including some kinds of managerial workers), through their physical and mental effort, are in fact the only responsible agents of production, and “an individual cannot in fact vacate and transfer that responsible agency which makes one a person.”Footnote ¹⁶

Ted Burczak builds on Ellerman's “labor theory of property” to construct a theory of appropriative justice. He argues that,

Hybrid employee-owner positions are already quite common, even in the United States, taking varied forms such as “shared capitalism” and worker appropriation of the surplus.Footnote ¹⁸ Outside the United States, workers' voice in the appropriation and distribution of firms' surplus is more common. The best and most well studied contemporary example is the Mondragon cooperative system in Spain, but the German system of works councils, codetermination, and wage-setting institutions constitutes a more limited form of worker appropriation and would seem to hold direct relevance to the United States' case.Footnote ¹⁹

Worker-owned firms would be much less likely to engage in systematic violation of labor law, to say nothing of the off-shoring or outsourcing of production. Were workers to have all or at least a majority of seats on boards of directors, they could hardly do a worse job than current boards do.Footnote ²⁰

That our current system of organizing work is broken is indisputable in my view. The simple assertion of workers' rights against corporate power is naïve, although I see no hope for improvement without the extension of the rights to freedom of association and collective bargaining. Both as an ultimate goal and to secure those rights, the current economic crisis could lead to enhancement of a wide array of devices to increase participation at work. This would include shared capitalism, worker appropriation, and the importation of those elements of other countries' employment relations arrangements that would lead to a fairer system of rights and responsibilities in the workplace. I agree with McCartin that we need to raise the profile of democracy, as well as solidarity and community, relative to rights. As Robert Dahl wrote two decades ago,