1. Introduction
There has been much literature documenting the apparent normative incompatibility of socioeconomic rights and neo-liberal governance.Footnote 1 For the purpose of this article, this perspective will be termed the incompatibility thesis. At the risk of oversimplifying a broad array of perspectives, it can be stated that proponents of the incompatibility thesis argue that neo-liberalism as a doctrine is inherently hostile to socioeconomic rights. Historically, the neo-liberal rejection of socioeconomic rights has been founded upon a minimalist ideal of the state. Premised upon an account of negative freedom, neo-liberal doctrine limits human rights to traditional civil and political rights aimed at protecting individuals from the coercive actions of others.Footnote 2 Particular levels of education, health care, social security, and so forth are not regarded as legal or moral entitlements, but rather as commodities or gifts to be acquired through the market. In accordance with this view, to conceive of guaranteed access to a material good or service as a right is fundamentally misconceived because such a right requires unjust incursion into other people's fundamental (property) rightsFootnote 3 and also interferes with the ‘spontaneous order’ of the free market.Footnote 4
On a more practical level, advocates of socioeconomic rights maintain that the policy prescriptions associated with neo-liberalism undermine the material conditions for the realization of such rights.Footnote 5 Policies such as privatization, austerity, labour-market flexibility, and deregulation are argued to expose workers, poor people, and other vulnerable groups to the vicissitudes of the market in ways that make the objects of their socioeconomic rights less secure.Footnote 6 Such policy trends are currently being intensified in the context of the ongoing global economic crisis, thereby undermining the social environment required for the realization of socioeconomic rights.Footnote 7 Structural adjustment programmes (SAPS) imposed by the International Monitory Fund (IMF) and World Bank have been particular targets for socioeconomic rights advocates. It is argued that SAPS, which invariably entail neo-liberal policy prescriptions, cause ‘governments to lessen respect for the economic and social rights of their citizens, including the rights to decent jobs, education, health care, and housing’.Footnote 8
Whilst this author concurs with much of the preceding analysis that is critical of neo-liberalism, this article represents a point of departure to the extent that it will explore the relationship between neo-liberalism and socioeconomic rights through a different optic, namely the concept of hegemony as developed by the Italian communist leader Antonio Gramsci.Footnote 9 Whilst Gramsci has had enormous influence in the field of international relations, very little attention has been paid to his ideas in the area of international law and especially international human rights law.Footnote 10 One of the strengths of Gramsci's contribution to social theory is the subtlety it brings to understanding the complex ways in which ideology is produced and reproduced. I hope to demonstrate in this article that Gramsci's theories can bring a nuanced contribution to the debate about the role of socioeconomic rights praxis, which avoids lapsing into either uncritical embrace or uncritical rejection of the potential of ‘rights talk’.Footnote 11
Section 2 of this article will provide a neo-Gramscian analytical framework for understanding the relationship between neo-liberal globalization and socioeconomic rights. Section 3 will then examine the ways in which the discourse of socioeconomic rights has been incorporated into the neo-liberal framework. It will be argued that the co-option of socioeconomic rights discourse has been achieved through three framing devices, which will be termed ‘socioeconomic rights as aspirations’, ‘socioeconomic rights as compensation’, and ‘socioeconomic rights as market outcomes’. Finally, section 4 will briefly conclude by arguing that, despite such appropriation, there are plenty of opportunities to incorporate socioeconomic rights discourse into a counterhegemonic praxis aimed at contesting the predations associated with neo-liberal globalization.
2. Neo-liberal globalization and socioeconomic rights: a neo-Gramscian framework
For proponents of the incompatibility thesis it is often explicitly or implicitly assumed that neo-liberalism can be understood as doctrine or ideology in the sense of a relatively unified set of ideas about the world.Footnote 12 Whilst such accounts are useful for allowing critical examination of the theoretical underpinnings of various neo-liberal policies, they may underestimate the reflexivity of neo-liberalism to adapt and change in the face of adversity, including its capacity to absorb and neuter counterchallenges.Footnote 13 By contrast, what was central for Gramsci was that ideology is not simply the artificial and mechanical imposition of a ready-made doctrine but rather a historical process of ongoing ‘ceaseless struggle’.Footnote 14
In this section it will be argued that a Gramscian account of ideology and hegemony calls into question assumptions that the category of socioeconomic rights has a particular oppositional normative grounding in relation to neo-liberalism. Instead, this article is premised upon an understanding that all rights discourses can be appropriated, recast and incorporated into prevailing power structures in ways that undermine their subversive potential.Footnote 15
2.1. Neo-liberalism as a hegemonic project
Broadly speaking, neo-liberalism can be understood as the shift in governance formally inaugurated during the Thatcher and Reagan administrations in the 1980sFootnote 16 and subsequently taken up by a host of other states, as well as international bodies such as the IMF, the World Bank, and the World Trade Organization (WTO).Footnote 17 By the 1990s, the term neo-liberalism was being used, usually pejoratively, to describe policy packages that involved public spending reduction, the removal of price controls, the devaluation of currency, trade liberalization, financialization, deregulation of the financial sector, and the privatization of public services.Footnote 18 However, this phenomenon has long since been transformed from a ‘relatively closed doctrine’ into ‘a hegemonic concept that is seeping into and co-opting the whole spectrum of political life’.Footnote 19 Indeed, whilst the present financial crisis has represented the biggest crisis in neo-liberalism's legitimacy since its inception, neo-liberalism seems not only to have weathered the storm of public criticism but also to have refortified itself and emerged even stronger than before.Footnote 20
To make sense of the complex ways in which a particular set of beliefs becomes so seemingly pervasive, it is useful to begin by considering the general interpretive category of hegemony as developed by Gramsci. Hegemony was used by Gramsci to explain the means by which dominant classes legitimate their rule through the medium of ideology.Footnote 21 Gramsci was interested in the ways in which the capitalist classes were able to accommodate and incorporate the interests and demands of diverse social groups through the acquisition of political legitimacy and the consent of the governed.Footnote 22 Consent is generated primarily through the exercise of moral and intellectual leadership; that is, leadership that articulates an entire ‘ethical--political’ world view via an array of ideological and institutional practices.Footnote 23 Such consent must be cultivated continually through the dominant group articulating its own sectional interests in ways that take on a universalistic appeal. This is achieved in part through a number of self-conscious compromises which take account of the interests and tendencies of the non-dominant (subaltern) social groups as well as through particular forms of sacrifice of the immediate, short-term interests of the hegemonic bloc.Footnote 24
It is worth noting that, in contradistinction to Gramsci's approach, the predominant analysis of hegemony within legal literature is severed from its Marxist roots and recast within a post-structuralist framework.Footnote 25 For example, Sonja Buckel and Andreas Fischer-Lescano argue that Gramsci's grounding of hegemony in social class relations can no longer be sustained because ‘the polycentrism of modern societal power relationships is based on specific situations of rule and exploitation interwoven with a plurality of multiple technologies of power and constituted together with them’.Footnote 26 Against that view, this article is premised upon the idea that the materiality of class power remains central (as opposed to merely contingent) to understanding the production and reproduction of dominant ideological forms today.Footnote 27 This is particularly true with regard to neo-liberalism, which, as David Harvey has convincingly argued, is best understood as a political project to reassert the class power of private property owners, businesses, financial capital, and transnational corporations (TNCs) following the collapse of the post-Second World War ‘compromise’ between labour and capital.Footnote 28
2.1.1 Neo-liberalism: from national to global hegemony
Although neo-liberalism was originally ‘a nation-state-level phenomenon’ it soon developed in nature alongside ‘structurally transformative transnational and globalizing developments’.Footnote 29 The paradigmatic shifts that have taken place within the global economy over the past 30 years have given rise to the phenomenon known as ‘neo-liberal globalization’.Footnote 30 This has entailed three globalizing trends that have particular significance for the study of hegemony: (i) the emergence of a transnational capitalist class (TCC) that is increasingly autonomous from national state formations and comprises actors such as the owners and managers of TNCs and private finance institutions;Footnote 31 (ii) a nascent global state constituted by a network of international institutions whose function is to realize the interests of transnational capital and powerful states in the international system;Footnote 32 and (iii) a neo-liberal transnational hegemonic bloc made up of the TCC alongside an array of ‘global civil society’ and global governance institutions that has promoted, and to some extent consolidated, a hegemonic project of neo-liberal globalization.Footnote 33 For neo-Gramscians, therefore, Gramsci's analysis of power relations at the nation-state level is transposed to the international realm and the question becomes how international institutions, organizations, and alliances vie for hegemony in the context of world order.Footnote 34 International institutions such as the UN, WTO, IMF, and World Bank help to produce and reproduce hegemony by legitimating the norms of the world order, co-opting elites from peripheral states and absorbing counterhegemonic ideas.Footnote 35
To achieve hegemony, neo-liberal governance must be adaptive to critiques that emanate from ‘countermovements’ that spring up in response to the dislocating effects of radical free-market policies.Footnote 36 Hegemony is not simply an attempt to impose a top-down, unified, and coherent theory onto a passive populace but rather an ongoing process that requires and presumes the consent of the subordinate classes via an array of concessionary processes. In line with such analysis, it is generally recognized that neo-liberal globalization has gone through two specific phases: ‘the first as the shock-therapy associated with Reagan and Thatcher, Latin America, and the Soviet bloc, and the second with the social market, Third-Wayism and the post-Washington consensus’.Footnote 37 At the level of world order, the shift from the Washington consensus to the post-Washington consensus (PWC) could be interpreted as an attempt to facilitate the expansion of a hegemonic neo-liberal world order through incorporating aspects of the critique of the neo-liberal model into the governance framework of neo-liberal globalization itself.Footnote 38
A noteworthy shift in the context of the PWC is the change in the lending practices of the IMF and World Bank from ‘structural adjustment’ to ‘poverty reduction’. In 1999, the IMF and World Bank reformulated their much-criticized SAPs as ‘poverty reduction strategy papers’ (PRSPs). In response to criticisms that previous SAPs were top-down in nature and failed to adequately integrate pro-poor measures into their strategies, the more recent PRSP model purports to recognize the importance of national ownership, participation, and poverty reduction, and emphasizes the need for ‘broad based participation by civil society’.Footnote 39 In accordance with the PRSP approach, the World Bank maintains that ‘complementary policies – particularly the provision of an effective social safety net – are … necessary to minimize adjustment costs and to help make trade reform work for the poor’.Footnote 40 However, poverty reduction is still primarily achieved through economic growth and this requires macroeconomic stability, privatization, and liberalization.Footnote 41 In the new PRSP strategy, the provision of social safety nets and other complementary measures becomes ‘wedded in a marriage of convenience’ to traditional neo-liberal economic policy prescriptions.Footnote 42
The shift to the PRSP strategy can be explained by reference to what Gramsci called trasformismo: the process whereby leaders and potential leaders of subordinate groups are co-opted into the dominant project in an effort to forestall the formation of counterhegemony.Footnote 43 While the PRSP strategy and other PWC policies may have failed to create a strong hegemonic world order, particularly in the aftermath of the ongoing financial crisis, they may have succeeded in co-opting and forestalling certain manifestations of popular political mobilization and thereby disabling potentially transformative, self-empowering social movements.Footnote 44
2.2. Socioeconomic rights, counterhegemony and trasformismo
As noted in the introduction to this article, it is generally thought that the relationship between socioeconomic rights and neo-liberal ideology is characterized by a number of discursive tensions, if not outright contradictions. First, while neo-liberal discourse has regarded poverty and material deprivation as ‘problems’ to be addressed through technical solutions related to securing the macroeconomic conditions for economic growth, socioeconomic rights approaches raise the notion that certain forms of deprivation constitute ‘violations’ that give rise to binding obligations on states to take concrete steps towards ameliorating and reversing such deprivation.Footnote 45 Second, whereas neoliberalism has historically conceived of goods and services primarily as commodities to be allocated privately though the market, a socioeconomic rights perspective regards those goods and services that are vital for human flourishing and dignity – or indeed basic survival – to be legal and moral entitlements allocated on the basis of human need rather than ability to pay.Footnote 46 Third, whereas neo-liberalism normatively prescribes a ‘minimal state’ limited to upholding property rights and the rule of law, socioeconomic rights discourse conceives of the state as the duty-holding entity tasked with ensuring the progressive realization of universal access to health care, education, social security, and so forth for its citizenry. In place of the ‘minimal state’, socioeconomic rights discourse invites the possibility of a ‘social state’ that plays a more proactive role in distributing resources and regulating markets to ensure the material well-being and dignity of its population at large.Footnote 47 It is these discursive tensions that open up the possibilities for counterhegemonic praxis to coalesce around the articulation of socioeconomic rights in opposition to neo-liberal globalization.Footnote 48
Notwithstanding this, there is a rich collection of human rights scholarship that draws our attention to the fact that human rights discourse is a double-edged sword in relation to its ability to contest power.Footnote 49 Whilst human rights tend to begin their existence as subversive challenges to dominant power structures, they are also more likely to become legitimizers of dominant power structures as they become cemented as sources of positive law (including public international law).Footnote 50 The inclusion of human rights in the UN Charter and International Bill of Human Rights after 1945 meant that they ‘were quickly appropriated by governments, embodied in treaties, made part of the stuff of primitive international relations, swept up in the maw of an international bureaucracy’.Footnote 51 Whilst neo-liberal doctrine and the ideal of socioeconomic rights appear to be in discursive tension, a neo-Gramscian analysis perhaps suggests that neo-liberal hegemony is achieved not through the imposition of a coherent and unified doctrine on social reality but rather through an ongoing process of contestation that involves incorporating subaltern concerns into the hegemonic discursive framework through ‘ever more refined but basically unchanged versions’ of neoliberal governance.Footnote 52 In short, the necessary reflexivity of a given hegemonic project coupled with the ambiguous relationship of rights discourse to power means that discursive tensions that appear to exist between the two cannot be taken as given facts and indeed discursive imbrication at the intersection of the two discourses is likely.
3. Socioeconomic rights co-opted
In this section, I will discuss three discursive frames through which socioeconomic rights under international law have been brought into closer reticulation with neo-liberal discourse. These frames will be termed ‘socioeconomic rights as aspirations’, ‘socioeconomic rights as compensation’, and ‘socioeconomic rights as market outcomes’. In relation to the first two frames the primary focus will be on the jurisprudence of the Committee on Economic, Social and Cultural Rights (CESCR), the main body responsibility for monitoring states’ compliance with their obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 53 In relation to the third frame this section will look beyond the UN human rights system and at how socioeconomic rights discourse has been appropriated more broadly in the UN, UN-affiliated agencies, and international financial institutions (IFIs) to demonstrate how critical ambiguities in the international legal framework for the protection of socioeconomic rights can lead to discursive slippages in which the discourse is fully integrated into the neo-liberal hegemonic framework.
3.1. Socioeconomic rights as aspirations
Despite repeated proclamations of the indivisibility of all human rights, socioeconomic rights have always had a second-class status in relation to their civil and political counterparts in the international framework of human rights protection.Footnote 54 Western governments in particular have demonstrated much ambivalence, if not outright hostility, to the idea that socioeconomic rights give rise to legally binding obligations on state parties.Footnote 55 Most notably, US administrations have historically resisted recognizing the legally binding nature of socioeconomic rights, presenting arguments at the UN such as:
At best, economic, social and cultural rights are goals that can only be achieved progressively, not guarantees. Therefore, while access to food, health services and quality education are at the top of any list of development goals, to speak of them as rights turns the citizens of developing countries into objects of development rather than subjects in control of their own destiny.Footnote 56
Such statements undoubtedly rest upon a neo-liberal conception of individuals as primarily producers and consumers entitled to secure their own access to material goods and services rather than being legally entitled to such goods vis-à-vis the state. However, such statements also exploit the ambiguous international legal standards relating to socioeconomic rights. Whilst the ICESCR's twin treaty, the International Covenant on Civil and Political Rights (ICCPR),Footnote 57 requires states to adopt law and other measures to give effect to the rights in the Covenant and to ensure the provision and enforcement of remedies for breaches of the rights,Footnote 58 the obligations contained in Article 2(1) of the ICESCR are clearly more qualified. In relation to socioeconomic rights, the state need not act immediately but rather must ‘progressively’ realize such rights according to its ‘available resources’. The formation of state obligations under Article 2(1) is widely regarded in the scholarship to be unsatisfactory due to its ‘convoluted phraseology and numerous qualifying sub-clauses’ which seem to ‘defy any sense of obligation … giving states almost total freedom of choice and action as to how rights should be implemented’.Footnote 59 The formulation of ‘maximum of its available resources’ has been described as ‘a difficult phrase – two warring adjectives fighting over an undefined noun’Footnote 60 and the vague commitment on states to ‘progressively realise’ socioeconomic rights has been described as ‘of such a nature as to be legally negligible’.Footnote 61 The meaning of resources, the timescale permitted for realization, and the nature of legislative action required have historically been ‘stumbling blocks to interpretation’.Footnote 62
The problems associated with the vague formulation of obligations contained in Article 2(1) have been buttressed by the historical lack of enforcement mechanisms for the ICESCR. However, the initial absence of interpretative and enforcement mechanisms has been mitigated somewhat through the CESCR's utilization of ‘General Comments’ and more recently by the adoption by the UN General Assembly of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR).Footnote 63 The OP-ICESCR allows the CESCR to receive and consider individual, group, and inter-state communications claiming violations of socioeconomic rights contained within the Covenant.Footnote 64 Nevertheless, despite the OP-ICESCR's unanimous adoption, ratification by member states has occurred at a snail's pace.Footnote 65 This would indicate persisting government ambivalence towards international judicial oversight of socioeconomic rights claims.
Furthermore, some critics have called into question the state-centric nature of the international human rights framework and asked whether it can adequately address the types of violation of socioeconomic rights associated with neo-liberal globalization.Footnote 66 The traditional human rights paradigm imposes obligations on state parties to respect, protect, and fulfil the human rights of those subjects within their jurisdiction. However, the capacity of states to regulate certain aspects of economic and social affairs within their own borders has been significantly weakened by developments in the financial and commodity markets, the consolidation of global productive capacity by TNCs, and the economic and ideological leverage of international lending institutions like the IMF and World Bank.Footnote 67 The policies of Northern states – ranging from their economic protectionism to their roles vis-à-vis international lending institutions in the imposition of structural adjustment – stand accused of undermining the socioeconomic rights of the poor in the global South.Footnote 68 Whilst this has led some human rights advocates to argue for Northern states to be held accountable for ‘extraterritorial’ violations of socioeconomic rights, such calls have been consistently resisted by Northern states who argue that extraterritorial commitments under the ICESCR are, at best, moral obligations of a non-legal nature.Footnote 69
Given the disputed nature and extent of extraterritorial obligations in respect of socioeconomic rights, the CESCR has been guarded in its attempts to delineate the normative content of international obligations under the ICESCR. Whilst the CESCR describes a state's domestic obligations in terms of what a state is required to do and must do, a state's international obligations to respect, protect, and fulfil the socioeconomic rights of individuals in third states are usually couched in terms of what a state should do.Footnote 70 The use of the deontic modality in relation to international obligations indicates that the CESCR is cautious about suggesting that there are legally binding extraterritorial obligations for socioeconomic rights in light of the fierce resistance to such inferences by powerful Western and Northern states. With regard to non-state actors such as TNCs and IFIs that are capable of adversely effecting socioeconomic rights of peoples in third states, the CESCR can only acknowledge that such entities are not directly bound by the ICESCRFootnote 71 and is consequently restricted to encouraging them to ‘pay greater attention’ to socioeconomic rights concerns in the countries that they effect.Footnote 72
On the one hand the CESCR has, in the face of overwhelming evidence, felt the need to highlight the negative ramifications of economic globalization and structural adjustment for the realization of socioeconomic rights.Footnote 73 On the other, perhaps aware of the limits of its mandate within the state-centric UN human rights system, the CESCR has refrained from what could perhaps be regarded as ‘outlandish’ impositions of binding obligations which could suggest that routine procedures in the running of world order constitute systemic human rights violations.Footnote 74 The remarks of former CESCR member (1997–2012) Eibe Riedel in a recent interview are telling in this respect:
The Committee should take great care not to overstep its role once the Optional Protocol is in force … It would be wise to choose micro-level issues first and keep away from macro-issues like extraterritorial application of ICESCR rights, or poverty generally, or environmental protection issues on a large scale. This would definitely frighten off many states from ratifying. Footnote 75
To invoke Martti Koskenniemi's parlance, the CESCR appears caught between the utopian universalism of human rights norms on the one hand and the apologist realpolitik of the state-centric international legal order it is embedded in on the other.Footnote 76
The upshot of all of this is that even after the OP-ICESCR comes into effect, many of the violations of socioeconomic rights associated with neo-liberal globalization are likely to continue to exist outside the bounds of binding international law. The generation of soft-law norms in relation to abuses of socioeconomic rights associated with neo-liberal globalization alongside hard-law mechanisms associated with the international protection of private property interests raises profound questions about the function that socioeconomic rights law plays in the maintenance and contestation of world order. As A. Claire Cutler argues, the global promulgation of non-binding voluntary codes (analogous here to the vague obligations associated with extraterritorial socioeconomic rights obligations) can be understood as a key component of the construction of neo-liberal hegemony:
To the extent that juridification is taking a non-binding, ‘soft’ form of law, one must consider whether law is operating dialectically to juridify certain relations in hard legal disciplines (enforcement under WTO, NAFTA, the EU), and de-juridify others (corporate social responsibility; corporate environment and labour practices) in ‘soft law’ and voluntary legal regimes.Footnote 77
When one considers that the property and investment rights of transnational capital are protected in ‘exquisite detail’ under extensive NAFTA, GATT, and WTO regulations and articlesFootnote 78 while social rights norms remain comparatively meagre and lack effective monitoring and enforcement mechanisms, it becomes easy to see how the latter become instruments of trasformismo: ‘They are promoted as the efficient and rational means for giving globalisation a “human face”, but this mythology conceals their nature as safety valves for capital’.Footnote 79 In other words, socioeconomic rights standards, and the promise they contain, can be marshalled to legitimate world order, but these very same standards lack the bite of hard-law regimes to be able to mount effective challenges to the injustices associated with neo-liberalism.
3.2. Socioeconomic rights as compensation
At the 1994 annual report of the CESCR, a discussion was held with representatives of inter-governmental institutions and a number of non-governmental organizations (NGOs) on the question of the role of social safety nets as a means of protecting socioeconomic rights in the context of SAPs and transitions to free-market economies.Footnote 80 The debate was sharply polarized between the representatives of the inter-governmental institutions and the NGO participants.Footnote 81 The IMF representative defended the function of SAPs, arguing that they promoted the economic growth required for the realization of socioeconomic rights.Footnote 82 Whilst he acknowledged that SAPs may have certain ‘severe consequences’ in the short term, they would prove beneficial in the long run and at any rate were preferable to the economic situation that debtor countries would experience if they were not to implement them.Footnote 83 Furthermore, he argued, appropriate social policies, and in particular temporary social safety nets, would be appropriate to mitigate the adverse impact of structural adjustment on the poor and other vulnerable groups.Footnote 84 Against this view, the representatives of the NGOs argued that social safety nets were an inadequate means to alleviate poverty in the context of structural adjustment.Footnote 85 It was argued that the structure of the SAP model was incongruous with the realization of socioeconomic rights due to its focus on economic growth as an end in itself, its insufficient attention to broader social policies, the lack of democratic participation in how it is implemented, and the lack of concern for the particular social needs of developing countries.Footnote 86
Philip Alston, the then chairperson of the CESCR, underlined that there could be no trade-off of fundamental human rights in the SAP process but also noted the difficulties faced by a supervisory organ charged with the observance of human rights in establishing the degree of flexibility that was appropriate with regard to the fulfilment of human rights.Footnote 87 Whilst it should be noted that the purpose of the general discussion was to exchange views rather than to find answers to the questions raised, Alston's cautious remarks illustrate the limitations of the types of critical enquiry that can take place within the formal framework of human rights officialdom. The UN human rights system is premised on the understanding that the legal and the political are entirely distinct categories and it is the function of its relevant human rights bodies to clarify, monitor, and enforce the content of international legal norms whilst remaining neutral on questions of a political nature.Footnote 88 Hence, the CESCR has argued that, in terms of political and economic systems, the ICESCR
is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach.Footnote 89
Such a position is of course the orthodoxy in legal human rights discourse: human rights norms are able to regulate the political because they are objective and stand above the domain of politics.
A neo-Gramscian account of world order would call into question the ability of international law to genuinely be a politically neutral force and would rather argue that international law's role in creating, sustaining, and contesting coercive and consensual social relations in the interlinked arenas of global political society and global civil society is inevitably a political exercise.Footnote 90 Therefore, any suggestion of a politically neutral application of international law, on closer scrutiny, is likely to reveal latent normative biases. I would like to suggest that the CESCR's dominant normative bias in relation to world order can be characterized as a compensatory approach aimed at correcting or mitigating the perceived malfunctions of the existing international system. Such approaches open up the possibilities for socioeconomic rights to be discursively incorporated into the hegemonic framework of the post-Washington consensus. It is important to stress at this point that my claim here is not premised upon any insight into the individual or collective preferences of members of the Committee, but rather upon the positions that are developed as a result of the institutional pressures that are brought to bear within the context of the state-centric international system.Footnote 91
Although the CESCR has been critical of the impact of the SAPs/PRSPs on socioeconomic rights, it has nevertheless asserted that it recognizes ‘that adjustment programmes will often be unavoidable and that these will frequently involve a major element of austerity’.Footnote 92 The CESCR does not consider any of the trends and policies associated with neo-liberal globalization – financialization, austerity, privatization, and deregulation – to be necessarily incompatible with the realization of economic, social, and cultural rights.Footnote 93 However, it argues that such tendencies, when taken together, must be compensated for by approaches that enhance the compatibility of those trends and policies with full respect for socioeconomic rights.Footnote 94 In short, the CESCR advocates ‘adjustment with a human face’.Footnote 95
Here we witness a certain overlap between the language of the CESCR and the discursive framework of the PWC: both consider trends in neo-liberal globalization to be ‘inevitable’ and both favour complementary measures to ensure that the interests of the poor are protected. Of course, there are also important differences between the CESCR and the discourse of the World Bank and other IFIs: the CESCR has human rights as the basis for its concern whereas the IFIs are primarily concerned with economic growth. Furthermore, the World Bank et al. positively endorse neo-liberal macroeconomic policies while the CESCR adopts a formally neutral position towards them. However, the supposedly neutral stance adopted by the CESCR in relation to neo-liberal policy prescriptions actually brings it into close discursive reticulation with the hegemonic paradigm of the PWC: rather than challenging the underlying trends in neo-liberal globalization the CESCR argues that they should be compensated for with complementary measures designed to protect human rights. The approach of the CESCR is not therefore to articulate an alternative to neo-liberal globalization, but rather to recommend modifications of the dominant paradigm that make it compatible with human rights.
This raises the question what function socioeconomic rights will play in relation to the current austerity drive in response to the financial crisis. On 16 May 2012, the CESCR published an open letter to state parties on economic, social, and cultural rights in the context of the economic and financial crisis.Footnote 96 The statement observes ‘the pressures on many States Parties to embark on austerity programmes … in the face of rising public deficit and poor economic growth’ and notes further that ‘the Committee is acutely aware that this may lead many States to take decisions with sometimes painful effects’.Footnote 97 Whilst some retrogression in the enjoyment of socioeconomic rights is inevitable it must be compatible with state obligations under the ICESCR. When austerity measures are introduced that negatively impact socioeconomic rights, it must be demonstrated that they are temporary, necessary, proportionate, and non-discriminatory, and do not impinge upon the minimum core content of socioeconomic rights.Footnote 98
The principles of necessity and proportionality require austerity measures adopted to be less detrimental to socioeconomic rights than any other policy or a failure to act.Footnote 99 This requirement is in line with the CESCR's non-retrogression jurisprudence, which provides that there is a strong presumption of impermissibility for any retrogressive measures in relation to ICESCR rights. The burden is placed on the state party to prove that all other alternatives were considered, and that the measure taken was justified (i) in relation to the totality of the rights provided for in the ICESCR and (ii) in the context of the full use of the state party's maximum available resources.Footnote 100 Whilst this appears to be a robust presumption against the imposition of retrogressive measures, questions must be raised as to how effectively this principle will operate within a judicial setting. Many courts, particularly in the common-law tradition, have demonstrated deference to the executive branch on matters of social and economic policy and generally avoid imposing positive obligations on the state.Footnote 101 It is likely that courts will often be unwilling to challenge government decisions to impose austerity measures as opposed to adopting alternative policies (i.e. economic stimulus packages) to address public deficit and poor economic growth.Footnote 102
The principle of non-discrimination requires states to take ‘all possible measures, including tax measures, to support social transfers to mitigate inequalities that can grow at times of crisis and to ensure that the rights of the disadvantaged and marginalized individuals and groups are not disproportionately affected’.Footnote 103 This approach follows the CESCR's non-discrimination jurisprudence, which requires that, inter alia, the objcts of socioeconomic rights are available and affordable for all, and that poorer households are not disproportionately burdened with expenses.Footnote 104 Again, whilst the non-discrimination principle might appear to challenge the current logic of neo-liberal-driven austerity given the disproportionate negative impact it is having on the poor,Footnote 105 it should be recalled that the PWC discourse of neo-liberalism is formally committed to policies designed to ensure that the poor do not bear the brunt of structural adjustment and austerity.Footnote 106 Whilst such commitments can easily be dismissed as empty rhetoric, it is important to bear in mind that austerity measures and neo-liberal policies can be combined with limited compensatory measures aimed at the poor and socioeconomic rights discourse can become an alibi in facilitating this process.
To provide an illustration of this point let us consider a case from 2012 in the United Kingdom. In Hurley and Moore v. Secretary of State for Business, Innovation and Skills, the claimants sought to challenge government regulations that tripled the maximum chargeable rate for annual university tuition fees to £9,000.Footnote 107 It was contended that the threefold increase in tuition fee rates was contrary to the right to education under Article 2 of Protocol 1 (A2P1) of the European Convention on Human Rights (ECHR)Footnote 108 and, alternatively, was contrary to that provision when read with Article 14 of the ECHR, which prohibits discrimination in the enjoyment of Convention rights.Footnote 109 The claimants argued that these rights had to be read in light of the UK's obligations under the ICESCR, which provides that ‘higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education’.Footnote 110 It was submitted that tuition fee increases constituted a retrogressive measure and would discriminate against students from disadvantaged backgrounds because they were the most debt-averse of potential university attendees.Footnote 111
The High Court rejected the claimants’ submissions and upheld the Government's regulations. Lord Justice Elias suggested that whilst the ICESCR could be considered in relation to A2P1, it was not binding and under the ECHR states had a wide margin of appreciation in relation to charging fees at university level.Footnote 112 At any rate, the regulations were introduced in the context of public expenditure cuts, which the Government considered necessary in order to restore public finances to a sustainable position.Footnote 113 Furthermore, given that Article 2(1) of the ICESCR requires rights to be realized ‘to the maximum available resources’, Lord Justice Elias stated that ‘it must be a serious question whether the UK is in breach of the provision’.Footnote 114 In relation to the charge of discrimination against students from disadvantaged backgrounds, the Court accepted that it was likely that the increased tuition fees may deter some people from attending university. However, the Court did not find that there was evidence that this would have a disproportionate impact on students from lower socioeconomic groups due to various measures that the Government had put in place to increase university access to poorer students, particularly through creating a national scholarship programme and increasing maintenance grants to students from low-income families.Footnote 115
What we witness in the Hurley and Moore ruling is the way in which the framing of socioeconomic rights as compensation and PWC neo-liberal discourses converge and complement each other. The marketization and commodification of higher education is effectively given a human rights stamp of approval, provided that some formal mechanisms are put in place to offset disproportionate impact upon poorer students. This framing of socioeconomic rights accepts the parameters of the present order and is entirely commensurate with the reproduction of existing structures and forms of power.
3.3. Socioeconomic rights as market outcomes
It is within this third framing that socioeconomic rights become completely aligned with the neo-liberal hegemonic discursive formation. Much of the counter-hegemonic potential of socioeconomic rights discourse lies in its ability to subject the market to the primacy of human rights. Within this third framing of socioeconomic rights as market outcomes, the counterhegemonic formation is inverted so that the market not only assumes primacy over human rights discourse, but becomes the means though which socioeconomic rights are attained. Upendra Baxi, analysing the impact of the materiality of neo-liberal globalization on human rights discourse and praxis, suggests that the power of human rights has been appropriated by ‘global capital’, resulting in a shift towards a ‘trade-related market friendly paradigm’.Footnote 116 Within this alternate paradigm the ‘promotion and protection of some of the most cherished contemporary human rights becomes possible only when the order of rights for global capital stands fully recognized’.Footnote 117 Socioeconomic rights are thus reconceptualized as derivative of the rights of private businesses and TNCs. The corporate-friendly reading of socioeconomic rights finds its expression in arguments such as the ‘right to food (now reconceptualized by the Rome Declaration as the right to food security systems) is best served by the protection of the rights of agribusiness corporations’;Footnote 118 the right to water is best served by granting ‘corporate rights to withdraw water globally for private profit’,Footnote 119, and the ‘right to health is best served, in a variety of contexts, by the protection of the research and development rights of pharmaceutical and diagnostic industries’.Footnote 120
In addition to socioeconomic rights being derivative of the property rights of TNCs and private business interests, they are also dependent upon the creation of a neo-liberal macroeconomic framework. As Robert Anderson and Hannu Wager, two counsellors to the WTO Secretariat, put it: ‘trade liberalization, by enhancing possibilities for voluntary exchange according to the principles of competitive advantage, creates wealth for all participants and thereby generate the resources needed for the fuller realization of … economic social and cultural rights’.Footnote 121 Indeed, the core international institutions associated with neo-liberal globalization – the WTO, the IMF, and the World Bank – whilst resisting formally integrating concern for human rights into their constitutions, maintain that their overall significance for socioeconomic rights is a positive one. Hence, the World Bank states that ‘[t]hrough its support of primary education, health care and nutrition, sanitation, housing, and the environment, the Bank has helped hundreds of millions of people attain crucial economic and social rights’.Footnote 122 The IMF also argues that by promoting a stable system of exchange rates and a system of current payments free of restrictions … the Fund contributes to providing the economic conditions that are a precondition for the achievement of the rights set out in the [ICESCR].Footnote 123
Finally, the WTO asserts, ‘The opening of markets creates efficiency, stimulates growth and helps spur development, thereby contributing to the implementation of the fundamental human rights that are social and economic rights.’Footnote 124
In relation to specific socioeconomic rights we find an acceptance in the UN Food and Agriculture Organization's Voluntary Guidelines on the Right to FoodFootnote 125 that states should realize the right to food by subscribing to neo-liberal prescriptions such as the need to ‘ensure non-discriminatory access to markets’,Footnote 126 ‘prevent uncompetitive market practices’,Footnote 127 ‘be in conformity with WTO agreements’,Footnote 128 ‘benefit from opportunities created by competitive agricultural trade’,Footnote 129 ‘foster … food security … through a … market orientated … world trade system’,Footnote 130 and operate ‘within the framework of relevant international agreements, including those on intellectual property’.Footnote 131 Indeed, during the negotiations on the Guidelines, Margret Vidar from the FAO Legal Council sought to assuage concerns that the right to food would constitute an unacceptable interference in market activity by assuring that ‘[t]here are numerous instruments for ensuring the realisation of food rights that do not conflict with market liberalisation and deregulation and the principles of efficiency’.Footnote 132
At the recent World Water Forum held in France, a ministerial declaration endorsed by 84 government minsters stated, ‘We commit to accelerate the full implementation of the human rights obligations relating to access to safe and clean drinking water and sanitation by all appropriate means as part of our efforts to overcome the water crisis at all levels.’Footnote 133 Appropriate means include the promotion of ‘strategic and sustainable financial planning, through an appropriate mix of contributions from water users, public budgets, private finance, bilateral and multilateral channels’.Footnote 134 Whilst such statements are incredibly vague, it is clear that they open the path to the privatization of water services and introduction or maintenance of user fees under the rubric of human rights.Footnote 135
The reframing of socioeconomic rights as market outcomes discursively incorporates them into the neo-liberal fold in a number of ways. First, socioeconomic rights are completely subject to the logic of the market rather than the market being subjected to the logic of human rights. Second, the holders of socioeconomic rights are effectively reconfigured as market citizens (‘homo economicus’) whose rights consist of the opportunity to secure goods in the marketplace rather than have them as legal entitlements vis-à-vis the state. And third, the obligation of the state shifts from the direct duty to ensure access to welfare goods and services to the duty to provide the framework in which individuals exercise economic freedoms to secure their own access to welfare goods and services. This framework is itself largely defined in terms of neo-liberal policy prescriptions although it is likely to contain compensatory mechanisms associated with the discourse of the PWC.Footnote 136
4. Socioeconomic rights and the prospects for counterhegemony
From the above analysis, it can be argued that the language of socioeconomic rights has been incorporated into neo-liberalism's hegemonic project of ‘global governance’ to a significant degree. This might suggest that attempts to use socioeconomic rights discourse as a counterhegemonic challenge to neo-liberalism will necessarily prove ineffectual. I would suggest, however, that this is not the case. Socioeconomic rights discourse under international law contains a number of potential counter-hegemonic frames: the presumption against retrogressive measures can be used to challenge the logic of austerity; the prohibition against discrimination can challenge privatization measures that disproportionately impact on poor and marginalized groups; and the goal of progressive realization of universal access to certain material entitlements condemns widespread poverty and material deprivation and opens up legal and other institutional channels to challenge them.
Of course, as this article has illustrated, these principles can be interpreted and enforced in such a way as to render them compatible with neo-liberal governance, but such risks of co-option exist in relation to all potentially counterhegemonic discourses. To adapt a phrase from Patricia Williams, the problem here lies not with socioeconomic rights discourse itself, but rather with the ‘constricted referential universe’ that it operates within.Footnote 137 Battles for the meaning and realization of human rights ‘articulate the social conflicts and contradictions embedded in social life and are one of the many forms in which these struggles get played out in ways that reflect, albeit in complex and mediated fashions, the prevailing balance of forces’.Footnote 138 For Gramsci the construction of counterhegemony ‘is not a question of introducing from scratch a scientific form of thought into everyone's individual life, but of making “critical” an already existing activity’.Footnote 139 Counterhegemony cannot be constructed on a purely oppositional plane but rather entails ‘the “reworking” or “refashioning” of elements which are constitutive of the dominant hegemony’.Footnote 140 Counterhegemonic strategy would therefore entail articulating and rearticulating elements pertaining to the discourse of socioeconomic rights in ways in which they contest the neo-liberal hegemonic formation.
Whilst some have argued that human rights strategies may compete with, and preclude, other emancipatory programmes,Footnote 141 there is no reason to view the discourses that counterhegemonic praxis can draw upon in terms of competing, either/or categories.Footnote 142 Instead, socioeconomic rights discourse might be thought of as a component in a portfolio of discourses aimed at contesting neo-liberal globalization.Footnote 143 There are a number of global justice movements that employ socioeconomic rights discourse in their struggles for alternative visions of globalization without reducing themselves to rights discourse. Three striking examples of such global movements include:
1. The Food Sovereignty Movement. In opposition to agricultural liberalization, embodied in the WTO Agreement on Agriculture and the North American Free Trade Agreement, a global movement comprising small-scale farmers, pastoralists, fisher-folk, indigenous peoples, landless peasants, urban slum dwellers, and others has coalesced around the ideas of food sovereignty and the right to food.Footnote 144 The international peasant movement La Via Campseina has organized with an array of non-governmental and civil-society organizations in a number of global settings, including at parallel events to the UN's World Food Summit and at the annual World Social Forum gatherings.Footnote 145 Such movements have developed the notion of food sovereignty, which they define as ‘the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems’.Footnote 146 The food sovereignty model, which has been integrated into the constitutions of a number of states in the global South, is presented as an alternative to the corporate-dominated neo-liberal model of agricultural development.Footnote 147
2. The Public Health Movement. A global public health movement, spearheaded by HIV/AIDS activists from sub-Saharan Africa, Brazil, and elsewhere, in alliance with international organizations such as Médecins sans Frontiéres and the Third World Network, has mobilized around constitutionally and internationally enshrined articulations of the right to health to challenge the intellectual property rights of pharmaceutical corporations as protected under the WTO Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement and other regional and bilateral trade agreements.Footnote 148 Right-to-health-based strategies have been utilized not only to allow states to make greater use of TRIPS flexibilities (e.g. in relation to compulsory licensing and parallel importing of medicines) but also to push for alternative models of medical research and development that are orientated towards health needs rather than the commercial interests of pharmaceutical TNCs.Footnote 149
3. The Water Justice Movement. For over a decade social movements from around the world have been resisting the privatization and commercialization of water.Footnote 150 A global movement has emerged that has challenged corporate private-sector involvement in the supply of water services and has been arguing for and putting into practice alternatives that are inclusive, participatory, democratic, equitable, and sustainable.Footnote 151 A central plank of the campaigning strategy for many of these movements has been to push for the recognition of the right to water in both domestic and international law. A target of the global water justice movements has been the World Water Forum (WWF), which meets every three years. Critics accuse the WWF of being a corporate-led, profit-motivated organization that refuses to acknowledge the human right to water.Footnote 152 At each WWF summit, activists from all over the world gather to protest as well as organize parallel summits in which alternative visions of water governance are articulated and related to the realization of the right to water.Footnote 153 Whilst there is diversity in the water justice movements, they share the belief that water is a common good and therefore must not be treated as a private commodity to be bought, sold, or traded for profit.Footnote 154
The precise nature of the relationship between the invocation of socioeconomic rights and the discourses of food sovereignty, public health, and water justice (all of which are heterogeneous discourses themselves) is complex and beyond the scope of this article but it will suffice to note here that there is no a priori conflict between socioeconomic rights and other emancipatory discourses.Footnote 155
If it is accepted that all potentially emancipatory discourses operate in a complex environment with other discourses (including neo-liberal ones) and can therefore be transformed and co-opted into the service of extant power relations, the focus of the question about the potential of socioeconomic rights shifts from a theoretical discussion of discourse to a concrete discussion of agency, or what Neil Stammers terms the ‘creative social praxis’ of counterhegemonic social movements.Footnote 156 Nancy Fraser has identified the formation of ‘subaltern counterpublics’ as central to counter-hegemonic strategy.Footnote 157 These consist of ‘parallel discursive areas where members of the subordinated social groups invent and circulate counter discourses, which in turn permit them to formulate oppositional interpretations of their identities, interests, and needs’.Footnote 158 Whilst the UN and national and international courts might constitute tactical arenas of struggle for subaltern movements, they may be limited in their capacity to offer truly counterhegemonic strategies because of the institutional pressures that are brought to bear in those settings.Footnote 159 It is within counterpublics that subaltern movements can engage in what Gramsci termed a ‘war of position’:Footnote 160 a process which ‘slowly builds up the strength of the social foundations of a new state’ by ‘creating alternative institutions and alternative intellectual resources within existing society’.Footnote 161 It is noteworthy that the food sovereignty, public health, and water justice movements discussed above have not limited their activism to official legal and institutional channels but also formed and participated in alternative institutions within the domain of transnational civil society. The World Social Forums, the Permanent People's Tribunals, and the Bolivarian Alliance for the Peoples of Our America (ALBA) are also examples of counterinstitutions that have invoked the discourse of socioeconomic rights in their contestation of neo-liberalism.Footnote 162
Finally, it might be asked: what exactly does socioeconomic rights discourse bring to the table when it comes to contesting neo-liberal globalization? Perhaps part of the reason for the use of rights talk in such counterhegemonic articulations is the role played by rights in the process of universalization, i.e. in the rearticulation of the particular interests of a social grouping or class as the universal interests of all of humanity through moral and ideological leadership.Footnote 163 The rearticulation of particular needs, interests, or wants as ‘rights’ that inhere to individuals or collectives on the basis of their belonging to ‘humanity’ rather than a more particular category marks a passage from the ‘sectional’ to the ‘universal’ plane upon which the construction of hegemony and an alternative counterhegemony takes place.Footnote 164
Whilst the category of the universal has come under attack from certain quarters of post-colonial and post-structuralist scholarship as an imperialist ideal that seeks to impose European provincial ideals on the global South, there has also been a revival of scholarship that seeks to defend a variant of normative universalism as a language of collective identity, resistance, and transformation.Footnote 165 Neo-liberal capitalism has been truly universalized – from austerity Europe to the debt-ridden global South. In response to the hegemony of neo-liberalism, a viable counter-hegemony, spanning South and North, needs to draw together ‘subaltern social forces around an alternative ethico-political conception of the world, constructing a common interest that transcends narrower interests situated in the defensive routines of various groups’.Footnote 166 I would suggest that rights discourse – understood as necessarily constantly in flux and the object of political contestation – can play an important role in a counterhegemonic universalization strategy. Socioeconomic rights discourse gives priority to the goal of universal access of every individual to sufficient access to the goods and services required for human dignity regardless of the ability to pay. It also suggests a level of responsibility to ensure the attainment of these goods, traditionally placed upon the state but not necessarily debarring wider interpretation. For these reasons socioeconomic rights discourse retains the power to both condemn the present and serve as a vehicle to construct an alternative.
5. Conclusion
This article has drawn upon a Gramscian analysis of hegemony to suggest that the binary opposition often assumed in relation to neo-liberalism and socioeconomic rights cannot be sustained. Neo-liberal hegemony is both reflexive to counter-challenges and incorporative of them. A neo-liberal account of socioeconomic rights discourse has thus emerged that frames socioeconomic rights variously as aspirations, compensation, and market outcomes. The fact that the discourse of socioeconomic rights is open to such appropriation, despite being widely regarded as antithetical to neo-liberalism, underscores the need for a fuller theorization of the strategies to be deployed that will minimize the risk of socioeconomic rights being co-opted and the strategies required to ensure that they retain their critical, subversive, and emancipatory potential.
