Economic and social rights in a neoliberal world

Economic and Social Rights in a Neoliberal World is about the potential of these rights to counter the adverse impacts of neoliberal policy and practice on human well- being.. Economic

Economic and Social Rights in a Neoliberal World

The rise of neoliberal policy and practice simultaneously with the growing recognition of economic and social rights presents a puzzle Can the rights to food, water, health, education, decent work, social security, and the benefits of

science prevail against market fundamentalism? Economic and Social Rights in

a Neoliberal World is about the potential of these rights to counter the adverse

impacts of neoliberal policy and practice on human well- being Cutting across several lines of human rights literature, the chapters address normal development, court decision- making, policymaking, advocacy, measurement, and social mobi-lization The analyses reveal that neoliberalism infiltrates management practices, changes international policy goals, flattens public school curricula, and distorts the outputs of UN human rights treaty bodies Are economic and social rights successful in challenging neoliberalism, are they simply marginalized, or are they co- opted and incorporated into neoliberal frameworks? This multidisciplinary work by a geographically diverse group of scholars and practitioners begins to address these questions

Gillian MacNaughton is an Assistant Professor in the School for Global

Inclusion and Social Development and a Senior Fellow with the Center for Peace, Democracy and Development at the University of Massachusetts, Boston She works on economic and social rights, and human rights-based approaches to social

justice Her recent research is published in Health and Human Rights Journal, International Journal of Human Rights, and Georgetown Journal of International Law MacNaughton has consulted for WHO, UNDP, UNICEF and the UN

Special Rapporteur on the Right to Health She received her doctorate in law from the University of Oxford

Diane F Frey is a Lecturer in Labor and Employment Studies at San Francisco

State University and an adjunct lecturer at the Harvard University Extension School Previously, she was the Director of Labor Studies at the National Labor College Frey’s research examines worker rights in comparative perspective, drawing on international labor standards and human rights law, and appears in

Global Labour Journal, International Journal of Human Rights, and Georgetown Journal of International Law, as well as edited volumes published by the ILO

and UNESCO She received a Ph.D in International Comparative Employment Relations from the London School of Economics and Political Science

Economic and Social Rights

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Names: MacNaughton, Gillian, editor | Frey, Diane F., 1959- editor.

Title: Economic and social rights in a neoliberal world / edited by Gillian MacNaughton, University of Massachusetts Boston, Diane F Frey, San Francisco State University Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2018 Identifiers: LCCN 2018009859 | ISBN 9781108418157 (hardback : alk paper)

Subjects: LCSH: Equality Economic aspects | Human rights | Economic

development Moral and ethical aspects | Neoliberalism.

Classification: LCC HM821 E26 2018 | DDC 323 dc23 LC record

available at https://lccn.loc.gov/2018009859

ISBN 978-1-108-41815-7 Hardback

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accurate or appropriate.

Dedicated to the loving memory of

John H Frey, Penelope B MacNaughton,

and Margaret (Peg) Franzen

Gillian MacNaughton and Diane F Frey

Part I Economic and Social Rights

James Heintz

Felipe Ford Cole

4 Governing risky childhoods: how Neoliberal Governance

Part II Economic and Social Rights in Times of Crisis 125

7 a hierarchy of comfort? the ceScr’s approach

Ben T C Warwick

viii Contents

8 Do Metrics Matter? accountability for economic

Allison Corkery and Heba Khalil

9 contesting Neoliberalism: Bringing in economic and

Social rights to end Violence against Women in Mexico 173

Ana María Sánchez Rodríguez

10 challenging Neoliberalism: Making economic and

Amanda Cahill- Ripley

Part III Economic and Social Rights in Development 215

11 Developmental States, Neoliberalism, and the right to Food:

Sakiko Fukuda- Parr

12 human rights informed the Sustainable Development Goals, but are they lost in New Zealand’s Neoliberal aid Program? 236

Carmel Williams and Alison Blaiklock

13 Neoliberal Developmentalism in South Korea and the

Joo- Young Lee

Part IV Accountability for Economic

14 Social Justice, Neoliberalism, and labor Standards at the

Diane F Frey

15 Neoliberal Geographies and the Justiciability of economic

4.1 Governing the risk problem: from a rights- focused

prescription to an agency- centered prescription

page 72

7.1 CESCR use of “progress” and “progressive realization”

before and after May 2008

134 7.2 Nature of CESCR use of “progressive realization” 135 7.3 CESCR use of “minimum core” and “retrogression” 137 7.4 CESCR use of “discrimination” and “take steps” obligations 140 8.1 Economic, social, and labor protests per month, 2013–15 163 8.2 Trends in GDP per capita versus well- being, 2005–11 167 12.1 Frequency of human rights and neoliberal terms in the

Millennium Declaration, Transforming Our World (TOW),

and New Zealand aid documents

242

13.1 Gini coefficient trends and relative poverty rates 270

16.1 Rulings on basic services cases with human rights language 330

16.2 Rulings for cases without human rights language 332

Investment Priorities 2015–19

247

13.1 Employed persons by status (thousands/percent) 267 13.2 Hourly wages of nonregular workers relative to those of regular workers (regular workers = 100)

268 13.3 Coverage of the three major social insurance schemes by

employment status in 2016

271 13.4 Coverage of the three major social insurance schemes by

wage level in 2015 and 2016

272 14.1 Ratification of ILO core conventions 292 14.2 Summary of commitments in Convention No 122 (1964) 298

16.1 When human rights are invoked, who raises them, and how? 333

alison Blaiklock, MPHTM, MNZCPHM, FAFPHM (RACP), is a New

Zealand public- health physician with special interests in the well- being and rights of children, the right to health, global health, health promotion, health equity, and climate health She has worked in New Zealand, India, and Samoa and was formerly Executive Director of the Health Promotion Forum

of New Zealand and founding chair of the child rights coalition, Action for Children, and Youth Aotearoa She has been recognized by the Public Health Association of New Zealand as a Public Health Champion for “outstanding service to public health,” especially child health

amanda cahill- ripley is Lecturer in Law at Lancaster University, UK Her

area of expertise is international human rights law, especially economic, social, and cultural rights Dr Cahill- Ripley’s research examines economic and social rights and the intersections with peacebuilding and sustainable development,

as well as the right to an adequate standard of living She is author of a

mon-ograph entitled Economic, Social and Cultural Rights and Peacebuilding

(forthcoming, Cambridge University Press) Other publications include,

The Human Right to Water and Its Application in the Occupied Palestinian Territories (Routledge 2011) and articles in journals such as Human Rights Law Review, Netherlands Quarterly of Human Rights, and the International Journal of Human Rights.

Jean carmalt is Assistant Professor of Law and Society at John Jay College of

Criminal Justice and a member of the Earth and Environmental Sciences ulty at the Graduate Center, City University of New York (CUNY) She holds a PhD in Geography from the University of Washington and a JD from Cornell University School of Law Carmalt’s area of expertise is in international law and society, including the right to health, UN human rights processes, and

fac-Notes on Contributors

xiv Notes on Contributors

environmental disasters Her work can be found in journals such as Antipode,

Human Rights Quarterly, and Studies in Law, Politics, and Society.

Felipe Ford cole studies the legal and financial history of the United States

and Latin America across the nineteenth and twentieth centuries He is a student in the JD–PhD program at Northwestern University as a Law and Humanities fellow and a Mellon Cluster fellow in Latin American Studies Cole holds a BA in History from New York University and an MPhil in Latin American Studies from the University of Cambridge

allison corkery is Director of the Rights Claiming and Accountability

Program at the Center for Economic and Social Rights, where her work focuses on strengthening strategies and tactics to advance economic and social rights Previously, she was a recipient of the David W Leebron Human Rights Fellowship from Columbia Law School She has also worked at the Australian Human Rights Commission and the United Nations Office of the High Commissioner for Human Rights She holds a BA/LLB from the University of New South Wales and an LLM from Columbia Law School

Diane F Frey is Lecturer in Labor Studies at San Francisco State University

and an adjunct lecturer at the Harvard University Extension School Previously, she was the Director of Labor Studies at the National Labor College Frey’s research examines worker rights in comparative perspective, drawing on international labor standards and human rights law, and appears

in the Global Labour Journal, Advances in Industrial and Labor Relations, and the Georgetown Journal of International Law, as well as in edited volumes

published by the ILO and UNESCO She received a PhD in International Comparative Employment Relations from the London School of Economics

Sakiko Fukuda- Parr is Professor of International Affairs at The New School

in New York City She is a development economist interested in approaches focusing on human rights and capabilities She was a member of the UN High Level Task Force on the Right to Development Her recent publications

include: The Millennium Development Goals: Ideas, Interests and Influence (2017); and Fulfilling Social and Economic Rights (2016), coauthored with

T Lawson Remer and S Randolph, which won the 2016 American Political Science Association Award for Best Book in Human Rights Scholarship

laDawn haglund is Associate Professor of Justice and Social Inquiry at

Arizona State University Her research investigates legal, institutional, and

Notes on Contributors xv

political mechanisms for promoting the human right to water Her work has received support from the US National Science Foundation, the Fulbright Foreign Scholarship Board, and the Brazilian Fulbright Commission She is

coeditor (with Robin Stryker) of Closing the Rights Gap: From Human Rights

to Social Transformation (2015) and author of Limiting Resources: Market- Led Reform and the Transformation of Public Goods (2010), and has published

in Latin American Perspectives, Journal of Human Rights, Water Policy, and

European Journal of Sociology.

James heintz is Andrew Glyn Professor of Economics at the University of

Massachusetts Amherst He has written on a wide range of economic icy issues, including employment and labor market policies, the distributive consequences of macroeconomic dynamics, and the intersection between economics and human rights He has worked on collaborative projects with numerous national and international institutions, including the Office of the High Commissioner for Human Rights, the ILO, the United Nations Economic Commission for Africa, UNDP, the South African Human Rights Commission, the International Development Research Center (Canada), and

pol-UN Women

heba Khalil is a researcher and editor at the Egyptian Center for Economic

and Social Rights She is also currently pursuing her PhD in Sociology at the University of Illinois Urbana-Champaign Her research focuses on rural movements, labor mobilization, class politics, and counter- movements She holds a BA in Political Science from the American University in Cairo, and an LLM from the University of York in the United Kingdom

Joo- young lee is Advisor to the Human Rights Center at Seoul National

University She received her PhD in International Human Rights Law at the University of Essex in the United Kingdom, an MA in Human Rights at the University of Sussex in the United Kingdom, and a BA in Social Policy at Seoul National University in South Korea Her research interests include socioeconomic rights, the intersection between health and human rights, and

issues relating to equality She is the author of A Human Rights Framework for

Intellectual Property, Innovation and Access to Medicines (2015), among other

publications

Gillian MacNaughton is Assistant Professor in the School for Global

Inclusion and Social Development and a senior fellow at the Center for Peace, Democracy, and Development at the University of Massachusetts Boston She

xvi Notes on Contributors

works on economic and social rights, and human rights- based approaches to

social justice Her recent research is published in journals such as the Health

and Human Rights Journal, the International Journal of Human Rights, and

the Georgetown Journal of International Law MacNaughton has consulted on

projects for WHO, UNDP, UNICEF, the UN Special Rapporteur on the right

to health, governments, and nongovernmental organizations She received her doctorate in law from the University of Oxford

asa Maron is Lecturer in the Sociology Department at the University of

Haifa Previously he has held postdoctoral positions at Stanford University, the Hebrew University of Jerusalem, and Ben- Gurion University of the Negev

He is a political sociologist specializing in the sociology of the welfare state and neoliberalism, with an emphasis on the transformation of the state, its politics, institutional dynamics, and consequences for state–society relations

He recently coedited Neoliberalism as a State Project: Changing the Political

Economy of Israel (2017) He has published in journals including Law & Society Review, and Social Policy & Administration.

James Murphy has worked for thirty years as a public school teacher and

administrator in Massachusetts, and is currently the K-12 Director of Social Studies in the Everett (MA) Public Schools He holds a Bachelor of Arts

in Social Thought and Political Economy (STPEC) from the University of Massachusetts Amherst, and a Master’s Degree in Teaching and Curriculum from Harvard University Murphy is currently a PhD student at the School for Global Inclusion and Social Development at the University of Massachusetts Boston

ana María Sánchez rodríguez is currently a postdoctoral research fellow at

Maynooth University, working in partnership with Handicap International She holds a PhD in Public Policy from the University of Massachusetts Boston and an MSc in NGO Management from the London School of Economics and Political Science She was selected as an Inter- American Grassroots Development fellow for the 2015–16 cycle and a Marie Skłodowska- Curie Actions COFUND Collaborative Research Fellow for a Responsive and Innovative Europe (CAROLINE) 2017 She has also worked in human rights and social development at the federal and local government levels in Mexico

Ben t c Warwick is Lecturer in Law at the University of Birmingham in the

United Kingdom He predominantly researches the international system(s) of protection for socioeconomic rights, with a particular focus on how these legal

Notes on Contributors xvii

rights interact with resource questions This has led to a number of strands of research on the most recent financial and economic crises, austerity, and the trends of which they are a part He is Co- Coordinator of the Collaborative Research Network on Economic and Social Rights at the Law and Society Association, and a member of the Economic and Social Rights Academic Network, United Kingdom and Ireland

carmel Williams, PhD, is Executive Editor of the Health and Human

Rights Journal and a fellow at the FXB Center for Health and Human Rights,

Harvard T.H Chan School of Public Health, Harvard University Her global health and development work in the Pacific region informed her PhD, which focused on the operationalization of the right to health She has a senior research position in the Human Rights, Big Data and Technology Project in the School of Law, University of Essex, and an honorary appointment at the School of Population Health, University of Auckland, New Zealand

This volume is the product of the International Research Collaborative on Economic and Social Rights in a Neoliberal World (IRC 22) initiated in the summer of 2015 by Gillian MacNaughton, Diane F Frey, and Angela Duger, and approved later that year by the Law and Society Association We are grateful to the Law and Society Association for creating the IRC program and for providing travel grants to several IRC 22 participants from develop-ing countries to attend the 2016 and 2017 annual meetings, in New Orleans and Mexico City, respectively, to present their chapters and discuss common themes emerging in the volume.

We especially wish to thank Angela Duger, who cofounded the Collaborative Research Network on Economic and Social Rights (CRN 47) with us in 2013 under the auspices of the LSA, and co- coordinated the network for four years She was an amazing network coordinator, as so many CRN 47 members have remarked over the years, highly organized, technologically savvy, and endlessly resourceful in domestic and international contexts IRC 22 – and also this volume – grew out of CRN 47 We are also thankful that LaDawn Haglund and Ben T C Warwick volunteered to take over as co- coordinators

of CRN 47 in 2016 They have provided inspired leadership to the group of committed social and economic rights scholars and advocates, as well as criti-cal advice at various stages during the production of this volume

As IRC 22 and this volume began in the LSA, the volume is nary, including work from scholars and practitioners in economics, education, labor studies, geography, history, law, public health, public policy, and sociol-ogy A key objective of the project was also to provide opportunities for junior scholars to publish, and we have We include works by five PhD students (two who graduated since the IRC was established in 2015) as well as four junior faculty members We are also pleased to have practitioners – in health, educa-tion, and human rights – who have grounded the volume in the experiences

interdiscipli-Acknowledgments

xx Acknowledgments

of the people denied enjoyment of their economic and social rights Finally, our authors come from eight countries and their chapters examine economic and social rights in the context of neoliberalism in eleven countries (Brazil, Colombia, Ecuador, Egypt, Israel, South Korea, Mexico, New Zealand, Peru, South Africa, and the United States), as well as at the international level at the International Labour Organization and at the Committee on Economic, Social and Cultural Rights To all of the chapter authors, we are grateful for your participation in the IRC over the past three years and for your contribu-tions to this volume In preparing the volume for publication, Mariah McGill,

a tireless researcher and advocate for health as a human right, provided mendous support

tre-Gillian is also thankful for many engaging and inspirational discussions

on economic and social rights over the past decade with Audrey Chapman, Carmel Williams, Maria Green, Paul Hunt, Courtenay Sprague, Fiona Haigh, Lisa Forman, Benjamin Mason Meier and Inga Winkler, among oth-ers And she is especially grateful to be an affiliate of the Research Program on Economic and Social Rights in the Human Rights Institute at the University

of Connecticut, which has provided a venue to present her work and been an intellectual home for her since 2009

Finally, Gillian also wishes to thank her family and friends, especially her brother Andrew, her father Angus and her cousin Margaret And many thanks also to Diane, the volume coeditor, for collaborating on this challenging project

Diane expresses her deep gratitude to the many rank- and- file workers, labor leaders, union activists, coworkers and students for the support, learning, and love that comes from struggling together for a better world for workers and their families She is also thankful for the new tools and perspectives that she had the opportunity to gain through studying comparative employment rela-tions at the London School of Economics with the guidance and support of its faculty, especially Richard Hyman Like Gillian, Diane is grateful to be

an affiliate of the Research Program on Economic and Social Rights in the Human Rights Institute at the University of Connecticut

Diane also wishes to thank her family, especially her mother, Nancy, her sister Martha and brother- in- law Scott, her brothers Bill and John, nephews Will, Jared, and Ben, niece Katie, and grandniece Mila Many thanks also to Anne Herbst, Barbara McCarthy, Roberta Klix, Liam and Patrick Twomey and Joyce Werntgen Finally, Diane expresses appreciation to Gillian for the opportunity to work together on this project

I Introduction

Today, almost half the global population lives in poverty, a denial of the mental rights to food, water, housing, education, health care, and decent work, among others Despite the Millennium Development Goals, which focused global expertise, funding, and efforts from 2001 to 2015 on advancing human development, about 785 million people in the world are undernourished (FAO 2015) Moreover, in some regions of the world – notably sub- Saharan Africa and Western Asia – the number of malnourished people has increased since 2001 (FAO 2015) The International Labour Organization (ILO) (2015) reports that 201 million people are unemployed, 31 million more than before the 2008 global economic crisis, and the level of unemployment is expected

funda-to increase over the next four years Moreover, 1.44 billion workers worldwide are in vulnerable employment (ILO 2015) One in fourteen workers lives in extreme poverty, and this is not expected to change by the end of the dec-ade (ILO 2015) UNICEF and the World Health Organization (WHO) report that 663 million people in the world lack access to improved drinking water sources, and 2.4 billion lack access to improved sanitation facilities (UNICEF and WHO 2015) Every day 830 women die due to complications of pregnancy and childbirth – 303,000 women per year – and almost all of these deaths are preventable (WHO et al 2015)

Before the turn of the millennium, many argued it was not possible, with the global resources available then, to lift everyone in the world out of poverty That is simply no longer debatable With the global resources in 2016, there

is no practical reason for allowing the continued violation of the economic and social rights of almost 3 billion people World Bank (2018) data indicates that the global Gross National Income (GNI) per capita (in purchasing power parity) is US$ 16,161 In World Bank designations, this is the GNI per

1

Introduction

Gillian MacNaughton and Diane F Frey

2 Gillian MacNaughton and Diane F Frey

capita of an upper middle- income country Indeed, the average GNI per

cap-ita for upper middle- income countries is only slightly higher at US$ 16,596 Included in this group of countries are Costa Rica (US$ 15,780), Thailand (US$ 16,100), Mexico (US$ 17,760), and Serbia (US$ 13,890), which is part of the EU (World Bank 2018) Many of these countries have high inequality and therefore high levels of poverty But they are not poor countries It is clear that

we now have the resources to ensure that no one in the world lacks adequate food, water, housing, education, health care, or decent work, which are all economic and social rights guaranteed in international human rights law.This book is about the rise of economic and social rights in the neolib-eral era and the potential of these rights to counteract the adverse impacts

of neoliberal policy on human well- being Forty years ago, the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into force Over the past four decades, there has been growing support globally for the recognition and implementation of economic and social rights This emerging consensus is demonstrated by the flourishing people’s movements for economic and social rights – for example, for the right to food in India, the right to health in South Africa, and the right to housing in the United States (Hertel 2015; Heywood 2009; Robinson 2015); by thousands of court cases that have extended economic and social benefits to rights- holders, for example, health, education, and social security benefits (Gauri and Brinks 2008; Langford 2008); and by the UN General Assembly’s adoption of the Optional Protocol to the ICESCR in 2008, which created a complaints pro-cedure that mirrors that instituted under the International Covenant on Civil and Political Rights (ICCPR) adopted in 1966 (ICCPR 1966, article 28) As

of February 2018, there are 166 state parties to this international human rights treaty that enshrines the rights to food, water, housing, health, education, decent work, social security, an adequate standard of living, and the benefits

of science

Despite the apparent consensus on the obligation of states to respect, tect, and fulfill economic and social rights, there remain enormous obstacles – both ideological and political – to achieving these rights for all (Alston 2016, para 4) Although the ICESCR requires state parties to take steps to progres-sively realize these rights (ICESCR 1966, article 2), many states appear to take steps that directly conflict with their obligations under the Covenant For example, the adoption and implementation of patent laws that extend pharma-ceutical corporations’ monopolies over medicine production result in higher prices for medicines, thereby reducing access in apparent violation of the right to health (Forman and MacNaughton 2015; Pogge 2007) Nonetheless, state parties to the ICESCR continue to adopt more stringent patent laws via

pro-Introduction 3

multilateral and bilateral international trade agreements Similarly, ments in many countries continually increase university tuition, which con-flicts with the explicit obligation in ICESCR article 13 to progressively realize free higher education (Wills 2014) These are just two examples where state policies align with a neoliberal policy framework rather than obligations for economic and social rights More broadly, the incompatibility of social and economic rights with the globally dominant neoliberal policy framework is widely documented in the literature (Alston 2017; Baxi 2012; Chapman 2016;

govern-A Nolan 2014; M Nolan 2013; O’Connell 2007; Schrecker 2011; Wills 2014; Wills and Warwick 2016)

Over the past forty years, neoliberalism has risen to become the dominant ideology and policymaking framework around the world As Harvey (2005) explains, “There has everywhere been an emphatic turn towards neoliberal-ism in political- economic practices and thinking since the 1970s” (2) This has involved privatization of public services, decreasing labor protection meas-ures, and the withdrawal of the state in areas of social welfare The global spread of neoliberalism has affected almost all countries, including the USA, the United Kingdom, China, the postcommunist countries of the former Soviet bloc, and even the (former) social democracies like Sweden and New Zealand Moreover, international institutions, including the International Monetary Fund, the World Bank, and the World Trade Organization have imposed neoliberal orthodoxy for decades on developed, transitional, and developing countries Proponents of neoliberalism also dominate in higher education, the media, and many state institutions Harvey (2005) summarizes:

Neoliberalism has, in short, become hegemonic as a mode of discourse It has pervasive effects on ways of thought to the point where it has become incorporated into the common- sense way many of us interpret, live in, and understand the world (3)

Over this same forty- year period of neoliberal ascendency, the majority of countries in the world have become parties to the ICESCR, which appears to require at least some redistribution of goods and opportunities to ensure the realization of economic and social rights for all (Craven 1995, 158) Moreover,

the ICESCR, on its face, requires more than a minimum threshold of the

rights, as economic and social rights are to be progressively realized to the

maximum of available resources The juxtaposition of these two ideologies

and policy frameworks that have come into play over the past forty years – neoliberalism versus economic and social rights – raises many questions How does each regime affect the understanding of the other and to what extent do they impact each other in their implementation (Moyn 2014; Nolan 2013)?

4 Gillian MacNaughton and Diane F Frey

This volume focuses on these questions The chapters investigate where, when, how, and under what conditions economic and social rights may be helpful in contesting neoliberal orthodoxies

II Neoliberalism

The term “neoliberalism” has been characterized as a “loose and shifting nifier” (Brown 2015, 20) It is widely used by social scientists to refer to an ide-ology and policy framework based on classical liberalism “Liberalism” refers

sig-to the political philosophy developed in the seventeenth and eighteenth turies by writers such as Hobbes, Locke, and Smith “Neo” is an allusion to the revival of these ideas, in particular after World War II (Mudge 2008) Although there are many definitions of neoliberalism, they have in common one central principle: the primacy of individuals who, by acting in their own self- interest, maximize the freedom and well- being of all (Mudge 2008) Harvey (2005) defines neoliberalism as “a theory of political economic practices that pro-poses that human well- being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework char-acterized by strong private property rights, free markets and free trade” (2) This is market fundamentalism M Nolan (2014) explains market funda-mentalism as “the belief that all areas of policy, politics, society, culture and knowledge, and not just economics, should succumb to and be ordered by the market logic” (1)

cen-The current neoliberal era followed a Keynesian era, which began during the Depression and continued following World War II (Brown 2015, 21) In the Keynesian era, a class compromise between labor and capital was accepted as necessary to ensure domestic stability and peace This compromise required states to focus on full employment and citizen welfare, including health care and education To achieve these social ends, the legitimacy and authority of the state to intervene in the market was fully acknowledged (Harvey 2005) During the 1950s and 1960s, this Keynesian ideology and policy framework came to dominate Western Europe and North America (Chapman 2016) During this period, neoliberals, such as Friedrich von Hayek and Milton Friedman, cultivated a group of academics passionately committed to the prin-ciples of personal freedom, private property, and free markets In 1947, they established the Mont Pelerin Society, which maintained in its founding state-

ment that the political ideals of human dignity and individual freedom were

the fundamental values of civilization (Harvey 2005) During the Keynesian era, this group fostered the ideology of neoliberalism among economists, pre-paring for opportunities to revive polices based on classical liberalism

Introduction 5

Neoliberalism can be explained as consisting of three key interconnected elements: (1) the ideology, (2) the role of the state, and (3) the policymaking framework Neoliberal ideology has at its center the concepts of human dig-nity and freedom For Hayak (1960), freedom means specifically individual

or personal freedom, and thus, the absence of state coercion (58) In essence, freedom entails making one’s own decisions without interference and being responsible for the consequences of these decisions As Hayak (1960) explains,

“A society that does not recognize that each individual has values of his own which he is entitled to follow can have no respect for the dignity of the indi-vidual and cannot really know freedom” (141) From this perspective, freedom and dignity are threatened by all forms of state intervention that substitute collective judgments for those of individuals (Harvey 2005)

Also key to neoliberalism is the understanding that markets, as impersonal mechanisms, are the best way to promote individual freedom, because they are not coercive (Hayak 1960, 50) For this reason, neoliberalism promotes markets to guide all human action, and market values substitute for all other ethical beliefs (Harvey 2005; M Nolan 2014) Advocates of neoliberalism argue that market approaches are more efficient and cost- effective, because of the inherent competition, and hence can deliver social services more effectively than can the state (Haglund 2010) Moreover, the private sector can provide consumers with greater choice and therefore greater liberty, the central value

of neoliberalism Neoliberalism, therefore, “holds that social good will be imized by maximizing the reach and frequency of market transactions, and it seeks to bring all human action into the domain of the market” (Harvey 2005, 3)

max-As Chapman (2016) summarizes, “market- based approaches will be more cient and cost effective and therefore ultimately benefit everyone” (81).Also central to neoliberalism is the necessity of inequality to progress Writing

effi-in 1960, Hayak stated, “The rapid economic advance that we have come to expect seems in a large measure to be the result of this inequality and to be impossible without it” (96) According to Hayak, “Even the poorest today owe their relative material well- being to the results of past inequality” (98) Overall, neoliberalism encompasses ideals of individual as opposed to societal welfare, market- based rather than state- directed organization of economic and social life, and private sector rather than state- led development of national industries

It emphasizes personal responsibility and competition rather than social idarity, private property rather than collective commons, and socioeconomic inequality rather than redistribution O’Connell (2011) sums it up this way:

sol-Neo- liberalism, at least at a rhetorical level, posits a binary opposition between public power, the State, and private power embodied in “the market” – the

6 Gillian MacNaughton and Diane F Frey

former is oppressive, inefficient and should be restrained and limited at all costs, the latter is the fount of individual freedom and wealth maximization and should be expanded into as many spheres of individual and collective life as possible (535)

This is the ideological lens through which neoliberalism defines the role of the state

While couched as an ideology of state restraint, the neoliberal state in fact holds a central and transformative role Indeed, fostering neoliberal ideals and implementing market- based policy constitute the critical role of the neolib-eral state To ensure the proper functioning of markets, the state must establish legal structures that guarantee private property rights, and police and military forces that enforce these guarantees In addition, the state must play an active role in developing and expanding markets wherever there are opportunities, especially in areas that were formerly in the public sphere, for example in the education, health care, transportation, and utilities sectors Once markets are established, state force is necessary to prevent interference, ensure “continu-ous increases in productivity,” and “deliver higher standards of living to every-one” (Harvey 2005, 64) In this paradigm, there is no significant redistributive role for the state (Baxi 2012, 289) As Brown (2015) asserts, the “democratic state commitments to equality, liberty, inclusion and constitutionalism are now subordinate to the project of economic growth, competitive positioning and capital enhancement” (26) In short, the preneoliberal state is assumed

to be oppressive, inefficient, and in need of severe restraint, while the eral state unleashes market efficiency, ensuring greater individual freedom (O’Connell 2011, 535)

neolib-Although the ideology of neoliberalism was cultivated during the 1950s and 1960s in the United States and Europe, it was not until the 1970s that it gained primacy as a policymaking framework (Elson 2002) Augusto Pinochet, Margaret Thatcher, and then Ronald Reagan spearheaded sweeping reforms that defined the neoliberal policy package designed to promote unfettered competition in the private market This included the privatization of pub-lic functions and enterprises such as public education, water systems, and prisons; deregulation of industries such as transportation and telecommuni-cations; the dismantling of labor protections and union power; an attack on all forms of social solidarity that hindered business flexibility; reduction or elimination of welfare state commitments; reduction in corporate and indi-vidual taxation; the creation of a favorable investment climate to attract for-eign investment; and the removal of discretion in fiscal and monetary policy (Elson 2002, 82; Harvey 2005, 23–5; Mudge 2008, 718; M Nolan 2013, 176)

Introduction 7

This market- centered policy framework was globalized by the International Monetary Fund, the World Bank, the World Trade Organization, the United States, and the European Union, by the imposition of conditionalities on loans and membership By the 1990s, this “Washington Consensus” had been adopted throughout most of the world (Elson 2002, 81–2)

From its original status as a marginal set of intellectual convictions,

neolib-eralism has become the central organizing principle of economic and social

life (Harvey 2005) As M Nolan (2014) states, “Neoliberalism is now sense, and the application of market criteria to all aspects of social and polit-ical life is considered by many as inevitable, whatever the cost to individuals, institutions and entire economies and societies” (11) The dominance of neo-liberalism and its internalization does not mean, however, that neoliberalism

common-is static, monolithic, or unchanging (Brown 2015, 20; Cerny et al 2005) As Hayak wrote in 1960, his intent was to create not specific policy but rather cri-teria to judge policy (51) Thus, while the principles of neoliberalism remain largely uncontested, neoliberalism is not simply a fixed substantive set of unmovable policies (Brown 2015, 21; Elson 2002, 82–3; Hayak 1960, 49) Policy contestations and significant policy innovations continue to unfold within the neoliberal playing field (Brown 2015, 21; Cerny et al 2005) Indeed, scholars now refer to the “Post- Washington Consensus,” “post- neoliberalism,” or “late neoliberalism,” which has been characterized as incorporating “pro- poor” measures and civil society participation into policymaking, while maintaining the core market logic and values of individual freedom (Alviar Garcia 2013, 374; Wills 2014, 16) One of the dynamic areas in which neoliberalism has engaged with other streams of ideology has been with respect to human rights

III The Incompatibility of Human Rights and Neoliberalism

The modern human rights movement also began following World War II and has grown alongside neoliberalism The international human rights legal framework came into being with the establishment of the United Nations in 1945 Article 1 of the UN Charter declares that the purposes of the organization are to maintain peace and security, promote friendly rela-tions among countries, and encourage respect for human rights for all The

UN Charter does not enumerate these human rights, instead, in 1948, the

UN General Assembly adopted the Universal Declaration of Human Rights, which enshrines a full array of civil, political, economic, social, and cultural rights In 1966, the UN General Assembly adopted two international human rights treaties to implement the Declaration – the ICCPR and the ICESCR The Universal Declaration of Human Rights and the two Covenants form

8 Gillian MacNaughton and Diane F Frey

the International Bill of Human Rights, which establishes an alternative to neoliberalism in terms of (1) ideology, (2) the role of the state, and (3) the policymaking framework

The ideology of international human rights, as expressed in these ments, is based upon the core ideas of freedom, equality, solidarity, and dignity (Glendon 2002, 227) Indeed, article 1 of the Universal Declaration of Human Rights states:

instru-All human beings are born free and equal in dignity and rights They are

endowed with reason and conscience and should act toward one another in

a spirit of brotherhood.

In this respect, the core human rights ideals differ from those of neoliberalism, which promotes individual freedom and dignity but is firmly against equal-ity and solidarity.1 The Universal Declaration details many freedoms, such as freedom of expression, freedom from torture, and freedom from hunger (arti-cles 5, 19, and 25) It also encompasses, however, various equality rights, such

as nondiscrimination and equal protection under the law (articles 2 and 7) Finally, the Declaration enshrines the right to solidarity in article 1 as “brother-hood” and article 28 as the right to “a social and international order” in which all the rights in the Declaration may be fully realized Under the Declaration,

as well as the Covenants, the realization of all the enumerated rights is essary to protect human dignity (Morsink 1999) Significantly, the word “free-dom” as used in the exposition of international human rights refers to freedom

nec-to exercise aunec-tonomy, rather than freedom from coercion It therefore requires freedom of expression and religion but also freedom from hunger, illiteracy, and homelessness, which may actually require coercion in the form of redis-tribution As Wills and Warwick (2016) explain, in a human rights framework

“socioeconomic rights are regarded as freedom enhancing rather than freedom

reducing” (8)

In addition, the holistic human rights paradigm differs from the eral paradigm as it does not narrowly focus on individualism Rather, the International Bill of Human Rights recognizes (1) individual rights, such as the right to life and the prohibition against slavery; (2) family rights, such

neolib-as recognition of the family neolib-as the “fundamental group unit of society” and the right to a standard of living adequate for workers and their families;

1 Neoliberalism supports the notion of equality before the law and recognizes that equality fore the law necessarily implies inequalities in opportunities and outcomes Such inequalities are, according to Hayek, necessary to the progress of civilization (see further in MacNaughton, Chapter 6 in this volume).

be-Introduction 9

(3) collective rights, such as the right of trade unions to function freely and the right of ethnic, religious, and linguistic minorities to enjoy their own culture

“in community with other members of their group,” (4) societal rights, such

as the right to “the development of a system of schools” and the right to a government that represents the will of the people, and finally, (5) global rights

to a social and international order to ensure the full realization of all these rights In this respect, the human rights paradigm recognizes that individuals live in families, communities, societies, and a global order as well (Glendon

(Craven 1995) The obligation to respect means the State must not interfere

with the exercise of rights by, for example, setting up roadblocks preventing access to hospitals or issuing gag orders preventing health professionals from

disseminating health information The obligation to protect means the state

must protect people from human rights abuses by third parties by, for ple, regulating the private sector to ensure safe food, housing, and medicines

exam-Finally, the obligation to fulfill means the state must take positive action to

ensure conditions, including, where necessary, providing goods and services,

to guarantee that all people enjoy their human rights Consequently, in the human rights paradigm, unlike the neoliberal paradigm, there is a significant redistributive role for the state In sum, the state is not considered inherently oppressive or inefficient; rather, the state plays a crucial role in supporting the conditions necessary to realize human rights for all

Just as the role of the state differs in human rights and neoliberal paradigms, their policymaking frameworks are in sharp contrast Whereas the neoliberal policy framework is centered on the market, the human rights policy frame-work is centered on people A people- centered policy package might include: (1) universal day care, education, health care, water and sanitation systems, (2) substantial state support for infrastructure, such as transportation and telecommunications, (3) strong labor protections for adequate wages, safe work-places, and flourishing unions, (4) regulation of businesses to ensure they respect workers, consumers, and the environment, (5) progressive taxation based on ability to pay, and (6) broad participation of the people in decision- making on policies that will affect them Additionally, a people- centered policy package

10 Gillian MacNaughton and Diane F Frey

requires that governments carry out human rights impact assessments to dict the potential consequences for human rights of proposed policies and pro-grams before adopting or implementing them Crucially, a people- centered policy package puts people’s well- being before all else It does not rely upon a trickle- down approach to the enjoyment of human rights

pre-The Committee on Economic, Social and Cultural Rights (CESCR) – responsible for monitoring progress in state implementation of the ICESCR – has stated that human rights does not demand any particular economic system (CESCR 1990, para 8) Nonetheless, human rights requires that states use maximum available resources to progressively realize economic and social rights, an obligation that appears to conflict with neoliberal ideology and pol-icy Table 1.1 summarizes the key differences between the neoliberal paradigm and the holistic human rights paradigm enshrined in the International Bill of Human Rights

Table 1.1 Comparison of neoliberalism and holistic human rights frameworks

Neoliberalism International Bill of Human Rights

• Ensure free markets

• Ensure free trade

• Promote and support private sector

• Protect and promote labor rights

• Ensure universal social welfare

• Use maximum available resources to enhance the well- being of people

• Gender- and minority- sensitive

Introduction 11

IV The Compatibility of Civil and Political

Rights with Neoliberalism

Unfortunately, this holistic human rights paradigm enshrined in the International Bill of Human Rights was sidelined during the Cold War and

in subsequent decades of neoliberalism In its place, a skewed and selective human rights framework was promoted by the United States, the United Kingdom, and the European Union, with participation by the United Nations and sadly also human rights nongovernmental organizations Through the 1970s, 1980s, and 1990s, these entities promoted civil and political rights, while largely, if not completely, dismissing economic and social rights This skewed view of human rights – defined narrowly as civil and political rights – aligned closely with a neoliberal policy agenda, and therefore, human rights appeared

to be compatible with neoliberalism, or indeed, part of the agenda of eral globalization (Moyn 2014)

neolib-Historian M Nolan (2014) describes three examples in which human rights, defined as civil and political rights, aligned with a neoliberal policy agenda The first example Nolan discusses is the rise of human rights dis-course in response to the 1973 coup in Chile The focus of United States and European human rights advocates in this case was exclusively on threats

to security of the person, such as arbitrary detention, torture and inhumane treatment, summary execution, and genocide (M Nolan 2014) Although the Pinochet dictatorship imposed “neoliberal shock therapy,” human rights advocates did not criticize the gross regression in the enjoyment of economic and social rights (M Nolan 2014, 7) The initial United States and European mobilization for human rights in the 1970s was entirely concerned with civil and political rights

Nolan’s second example is United States and European human rights cacy focused on Soviet Bloc countries in the 1970s, which again addressed solely individual civil and political rights, such as free speech and freedom

advo-of movement Further, after 1989, political freedoms and legal protections were the primary concerns imposed upon Eastern European countries that

“faced the dual challenge of constructing democratic governments and italist economies” (M Nolan 2014: 5) Again, human rights advocacy largely ignored economic and social rights while social welfare benefits were down-sized or eliminated during the economic crisis of the transition in the 1990s Importantly, the focus of both the European Commission and the OECD was

cap-in ensurcap-ing the development of democracies and market economies, not cap-in preserving social rights (M Nolan 2014)

12 Gillian MacNaughton and Diane F Frey

Nolan’s third example is the focus on personal security, to the detriment of economic and social rights, in the initial stages of the women’s human rights movement in the 1970s

In line with the concerns of the larger human rights movement, women focused attention first and foremost on issues of freedom from bodily harm and personal security, including violence against women, forced marriage, sex trafficking, and female genital mutilation These issues are enormously important for women individually and collectively but they did not directly address women’s social rights around health and education or women’s access to employment (9)

In line with this emphasis on civil and political rights, the Women in Development approach of the 1970s emphasized that women, like men, were rational actors, maximizing their utility and pursuing self- interest (albeit incorporating family responsibilities); accordingly, women were viewed as instrumentally necessary to efficient economic development (Nolan 2014, 10) Thus, the Women in Development approach aligned with the neoliberal par-adigm Research, however, has shown that women are significantly disadvan-taged in this open market system, which “deprives them of social support and ignores the demands of pregnancy and childcare” (Nolan 2014, 10) Indeed,

a substantial body of feminist literature documents the negative impacts of neoliberal policies on women (Elson 2002; Gideon 2008; Nolan 2014)

The commonalities shared by neoliberalism and the dominant human rights framework of the twentieth century, narrowly defined as civil and polit-ical rights, are indeed remarkable First, both neoliberalism and civil and political rights focus on the individual “The primary unit of social analysis and political and ethical concern is the rights- bearing individual, in the case

of human rights, and the rational self- maximizing actor, in the case of market fundamentalism” (Nolan 2013, 172) Second, both frameworks are hostile to –

or at least suspicious of – the state, which is viewed as an obstacle to human rights, economic prosperity, and development, rather than a means for achiev-ing them (Moyn 2014; Nolan 2013) Third, both frameworks marginalize or dismiss the realm of the social, ignoring the fact that people are dependent on relationships, families, communities, workplaces, associations, societies, and

a global order (Glendon 2002: 227) Fourth, both frameworks ignore the der implications of their policy agendas, which adversely impact women who carry the greatest burden for caring for others in the social arena (Elson 2002; Nolan 2013) Finally, advocates of both paradigms claim to have a universally applicable framework to improve society, politics, and individual well- being (Nolan 2013)

gen-Introduction 13

In sum, in developed countries, most of the attention on human rights over the past several decades has focused narrowly on civil and political rights The promotion of civil and political rights, coupled with the sidelining of eco-nomic and social rights, created the appearance that the ideologies of human rights and of neoliberalism are aligned and indeed compatible Nolan (2013) concludes that while human rights became prominent in the last decades

of the twentieth century, their definition became individual, political, and legal, while economic and social rights remained marginalized or entirely dismissed Unfortunately international, national, local, and personal under-standings of human rights have often internalized neoliberalism’s narrow con-struction of human rights as civil and political rights Thus, questions arise concerning whether economic and social rights could meaningfully contest these hegemonic paradigms, whether they have or will be construed in a man-ner consistent with neoliberalism, or whether they will continue to be dis-missed or ignored?

V The Transformative Potential of Economic and Social

Rights in a Neoliberal Era

Although the Universal Declaration of Human Rights was adopted in 1948,

it was not until 1976 that the two Covenants to implement the Declaration came into effect At that time, the Human Rights Committee was established

to monitor implementation of the ICCPR and to consider individual plaints regarding alleged violations of civil and political rights No treaty body was created to monitor implementation of the ICESCR until 1985, and it was not until 2013 that this committee – the CESCR – was authorized to hear and decide upon complaints regarding violations of these rights By the time that the CESCR began to monitor implementation of the ICESCR in the late 1980s, neoliberal ideology and policy were globally entrenched Since this time, and especially since the end of the Cold War and the 1993 World Conference on Human Rights in Vienna, a growing number of scholars and practitioners have focused on economic and social rights and their potential

com-to effectively address poverty and inequality Accordingly, over the past two decades, there has been a growing literature on economic and social rights

To implement economic and social rights, the content of these rights first had to be delineated Thus, initially, the literature elaborated the elements of the rights enumerated in the ICESCR and the corresponding state obligations (Chapman 1996; Chapman and Russell 2002; Craven 1995; Hunt 1996; The Limburg Principles 1987; The Maastricht Guidelines 1998; CESCR 1990) Early literature also contested the dominant view in the West that economic

14 Gillian MacNaughton and Diane F Frey

and social rights were nonjusticiable, in other words not enforceable in court (Hunt 1996; Langford 2008) As standards were detailed, and economic and social rights were firmly established as justiciable, more recent literature discusses the manner in which courts decide on economic and social rights claims, including the applicable standards of review and types of remedies available (Alviar Garcia et al 2015; Barak- Erez and Gross 2007; Langford 2008; O’Connell 2011; Roman 2012; Tushnet 2009; Yamin and Gloppen 2011; Young 2012; Young and Lemaitre 2013) Additionally, scholars are discussing the impact of economic and social rights litigation on marginalized groups, with some arguing that such cases can benefit poor and marginalized groups, while others maintain that litigation largely benefits the middle classes (Alviar Garcia 2013; Brinks and Gauri 2014; Ferraz 2011; Gauri and Brinks 2008; Landau 2012; O’Connell 2011; Yamin and Gloppen 2011) This body of research has largely addressed the potential of economic and social rights claims in courts to posi-tively impact on poverty, inequality, and human well- being

Beyond the literature on courts, research in the field of economic and social rights also examines questions of interpretation, measurement, advocacy, pol-icymaking, and grassroots mobilization (Haglund and Stryker 2015; Hertel and Minkler 2007; MacNaughton 2013; Minkler 2013) The research on meas-urement includes the development of human rights indicators to assess the progressive realization of economic and social rights over time (Fukuda- Parr, Lawson- Remer and Randolph 2015; Hunt and MacNaughton 2007; OHCHR 2012), as well as methodology for human rights impact assessment to predict the potential consequences of proposed policies and programs before they are adopted (Forman and MacNaughton 2015; Harrison 2011; MacNaughton and Forman 2015; MacNaughton and Hunt 2012) Recent research also doc-uments the use of economic and social rights standards to inspire grassroots mobilization and frame advocacy campaigns (Hertel 2015; Heywood 2009; MacNaughton et al 2015; Nelson 2015) Additionally, scholars and advocates have used economic and social rights frameworks to analyze policies, pol-icy options, and policymaking (Albisa, Scott and Tissington 2013; Chapman 2016; A Nolan 2014) Finally, there is a nascent literature on the evidence of the beneficial impact of using these human rights- based approaches to eco-nomic and social issues (Bustreo and Hunt 2013; Hunt et al 2015; Klug 2015; MacNaughton et al 2015;)

A specific vein of literature focuses on the incompatibility of economic and social rights with neoliberalism and market fundamentalism (Abouharb et al 2015; Albisa, Scott and Tissington 2013; Baxi 2012; Chapman 2016; Giannone 2015; A Nolan 2014; M Nolan 2013; O’Connell 2007; Wills 2014; Wills and Warwick 2016; Schrecker 2011) Much of this research documents the conflicts

Introduction 15

between neoliberal policies and state obligations for economic and social rights (Albisa, Scott and Tissington 2013; Chapman 2016; O’Connell 2007; Schrecker 2011) Some of the literature has gone beyond demonstrating the conflict between the two paradigms and attempts to document their influence

on each other For example, some literature discusses the import of economic and social rights in the context of neoliberal austerity measures (A Nolan 2015) Other literature has examined how neoliberalism has influenced the interpretation of economic and social rights by both the CESCR and the courts (Wills and Warwick 2016) For example, Alviar Garcia (2013) concludes that although social and economic rights have limited the neoliberal reforms

in Columbia, they have not changed the unequal distribution of resources in society and can be best understood as a complement, rather than a challenge,

to the market (382) O’Connell (2011) also warns that, in the era of alism, there is a danger that economic and social rights will be distorted into market- friendly norms that are largely “formal, procedural guarantees, rather than substantive material entitlements,” (533) a phenomenon evidenced in South African jurisprudence (Brand 2003)

neoliber-Similarly, Wills (2014) concludes that economic and social rights have been

“co- opted” by the neoliberal paradigm (19) Specifically, he argues that the CESCR has interpreted these rights to require merely compensation for “mal-functions in the existing international system,” this requirement constituting a so- called “compensatory approach.” This approach has also been incorporated into the neoliberal framework, – into a so- called post- Washington Consensus, – requiring “pro- poor” globalization with “a human face,” rather than any sig-nificant change to the system that produces gross inequalities Moreover, “the counterhegemonic formation is inverted so that the market not only assumes primacy over human rights discourse, but becomes the means through which socio- economic rights are attained” (Wills 2014, 28) Social and economic rights simply become market outcomes Baxi (2012) describes this phenom-enon as the emergence of an alternate paradigm in which the Universal Declaration of Human Rights is “being supplanted by that of trade- related, market- friendly human rights” (273) In this new paradigm, human rights are for protection of global capital and “corporate well- being and dignity,” rather than the dignity and well- being of socially and economically vulnerable peo-ples and communities (273)

In sum, there is consensus among scholars and practitioners in the field

of economic and social rights that these rights are jeopardized in the current neoliberal context Indeed, neoliberal principles as embodied in laws, rules, and social institutions conflict directly with the holistic human rights frame-work On the other hand, there is no clear consensus on the (potential) impact

16 Gillian MacNaughton and Diane F Frey

of economic and social rights on poverty, inequality, and human well- being

in the context of global neoliberalism Early research suggests some potential for these rights to limit the worst impacts of neoliberalism in some contexts, but there is little evidence of major structural transformation resulting from actions to vindicate economic and social rights (Alviar Garcia 2013; Brand 2003; Mate 2016) This may in part be due to the lack of research on this ques-tion beyond that on the impacts of judicial decisions and legal frameworks (Bustreo and Hunt 2013; A Nolan 2015) In this context, this volume considers whether economic and social rights can be truly transformative in the context

of global neoliberalism

IV Organization of This Volume

A diverse group of scholars and practitioners from many countries has uted chapters to this volume that cut across many recent lines of literature as they engage in examining norm elaboration, judicial decision- making, poli-cymaking, advocacy, measurement, and grassroots mobilization in the field

contrib-of economic and social rights The contributors are versed in the fields contrib-of sociology, geography, history, international development, economics, public policy, labor relations, gender studies, and human rights law, and many bring interdisciplinary perspectives to their research They examine the conflict

of neoliberalism with economic and social rights in Brazil, Ecuador, Egypt, Israel, Korea, Mexico, New Zealand, Peru, South Africa, and the United States, as well as at the International Labour Organization and in the work of CESCR and the UN Human Rights Committee And they assess the potential for these rights to contribute to positive social change, specifically reducing poverty and inequality The volume addresses three questions First, in what ways do economic and social rights conflict with neoliberalism? Second, to what extent are economic and social rights effective – or to what extent do they have potential to be effective – in countering neoliberal ideology and policy? And third, to what extent are economic and social rights interpreted or implemented to be consistent with neoliberalism?

In addition to the introduction and conclusion, the volume contains fifteen chapters divided into four thematic sections Chapters in the first section lay a foundation for understanding the interaction of neoliberalism with economic and social rights through multiple lenses of economics, law, history, manage-ment, discourse, and human rights In Chapter 2, James Heintz begins with

an explanation of neoliberalism’s economics His chapter explores the tionship between neoliberalism, human rights, and inequality, considering how neoclassical economics treats issues of economic inequality, efficiency,

rela-Introduction 17

and distribution In Chapter 3, Felipe Cole untangles the process of ism’s entry into the law He sketches the historical development of neoliberalism

neoliberal-by drawing on three case studies in Peru and constructs a four- moment model

to demonstrate how neoliberal aims become infused in law In Chapter 4, Asa Maron explores neoliberalism’s expression in governance and man-agement mechanisms in Israel Maron shows how neoliberal management prescriptions have transformed state obligations for children’s social rights out-comes into process- oriented policies for cost efficiency, erasing the obligations

of the state to meet the needs of children In Chapter 5, Jim Murphy examines the role of neoliberal discourse, demonstrating that it has replaced the idea of education as a “social right” with the more neoliberally congruent “individual right.” He explores the normalization of neoliberal discourse in education policy discussions and management prescriptions, as well as in teaching and learning practices Finally, in Chapter 6, Gillian MacNaughton rejects the dominant interpretation of the rights to equality and nondiscrimination in international human rights law that, in line with neoliberalism, imposes no limits on economic and social inequality Applying traditional rules of treaty interpretation, she argues that the rights to equality and nondiscrimination must be reinterpreted as applying broadly to economic and social rights, not just narrowly to civil and political rights, as all these rights are part of the holis-tic framework in the International Bill of Human Rights

Section two of the volume shifts focus to the conflicts of neoliberalism with economic and social rights in times of crisis, ranging from the financial cri-sis of 2008 to postrevolutionary Egypt, violence against women in Mexico, and postconflict peacebuilding In response to the 2008 financial crisis, many countries enacted austerity measures, significantly rolling back enjoyment of economic and social rights In Chapter 7, Ben T.C Warwick examines the puzzling response of the CESCR, which monitors state implementation of the ICESCR, before, during, and after the 2008 crisis In Chapter 8, Allison Corkery and Heba Khalil focus on the complex transitions in Egypt following the 2011 uprising They trace the efforts of human rights advocacy groups to establish measurement and accountability methods for economic and social rights to counter increasingly neoliberal policies Chapters 9 and 10 both seek

to amplify the essential role of economic and social rights in crisis contexts, where they are often invisible In Chapter 9, Ana María Sánchez Rodríguez demonstrates the critical yet missing role of economic and social rights in eradicating violence against women in Mexico In the final chapter in this section, Amanda Cahill- Ripley critiques the widely adopted model of post-conflict peacebuilding, which relies almost entirely on neoliberal- friendly civil and political rights as necessary to democracy She then reenvisions the

18 Gillian MacNaughton and Diane F Frey

potential of economic and social rights to create more sustainable peace with

a “human security plus approach.”

In section three of the volume, the authors grapple with the tensions between economic and social rights and the tenets of neoliberalism in the context of development Development has aimed to meet two goals, growing the economy, and ensuring that the benefits of this growth are widely distrib-uted to ensure greater enjoyment of economic and social rights Yet devel-oping countries are constrained by the global neoliberal policy environment and prescriptions against direct government management of development in favor of market- oriented solutions In Chapter 11, Sakiko Fukuda- Parr com-pares two remarkably divergent paths to realize the right to food, the high- road approach of Brazil and the low- road approach of South Africa In Chapter 12, Carmel Williams and Alison Blaiklock examine neoliberalism’s impact on development aid They scrutinize New Zealand’s efforts to co- opt the human rights aspirations of the Sustainable Development Goals to narrowly pursue its own economic and policy imperatives in vulnerable and disadvantaged countries In the last chapter of the section, Joo- Young Lee provides a close analysis of the transition of South Korea’s authoritarian developmental state

to a democratic neoliberal developmental state Despite democratization and constitutional recognition of economic and social rights, Lee demonstrates that neoliberalism has ensured the continuation of the growth- first ideology and top- down social policymaking of the authoritarian era, impeding the real-ization of these rights

The chapters in the final section of the book focus on accountability mechanisms for economic and social rights in light of neoliberal pressures

In Chapter 14, Diane F Frey explores the contradictions and active conflicts between neoliberal and social justice advocates at the ILO Drawing on three illustrations, she finds a surprisingly robust defense of social justice labor standards, despite tremendous pressure to conform to neoliberal policy aims Defense of the social justice content of labor standards is not, however, suffi-cient to ensure their implementation In Chapter 15, geographer Jean Carmalt draws on examples from South Africa, the United States, and Ecuador to argue that the implementation of neoliberal policy is characterized by spatial practices with concrete and visible results that violate international human rights standards For example, the lack of physical access to medicines and the displacement of people to extract their resources are explicitly spatial prac-tices associated with neoliberal policy that violate economic and social rights Finally, in Chapter 16, LaDawn Haglund examines the conflict between the human rights to water and sanitation and neoliberal economic rationality in São Paulo, Brazil She explores how judges balance market and human rights

con-The conclusion draws on these fifteen chapters to answer the three questions posed in the introduction It also links themes across chapters, reveals multiple expressions and impacts of neoliberalism in various sectors and diverse coun-tries, and examines the successes and failures of economic and social rights

to challenge them Finally, it considers a fourth question, how can we engage economic and social rights most effectively to challenge neoliberalism.References

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PART I

Economic and Social Rights under

Neoliberalism