Research methods for international human rights law damin gonzalez salzberg, loveday hodson, routledge, 2020 scan

Research Methods for InternationalHuman Rights Law The study and teaching of international human rights law is dominated by thedoctrinal method.. A distinctive feature of this collection

Research Methods for International

Human Rights Law

The study and teaching of international human rights law is dominated by thedoctrinal method A wealth of alternative approaches exists, but they tend to bediscussed in isolation from one another This collection focuses on cross-theoretical discussion that brings together an array of different analyticalmethods and theoretical lenses that can be used for conducting research withinthe field As such, it provides a coherent, accessible and diverse account of keytheories and methods A distinctive feature of this collection is that it adopts

a grounded approach to international human rights law, through demonstratingthe application of specific research methods to individual case studies By apply-ing the approach under discussion to a concrete case, it is possible to betterappreciate the multiple understandings of international human rights law thatare missed when the field is only comprehended through the doctrinal method.Furthermore, since every contribution follows the same uniform structure, thisallows for fruitful comparison between different approaches to the study of ourdiscipline

Damian Gonzalez-Salzberg is a Lecturer in Law at the University of Sheffield

He has worked as a lawyer in Argentina within the field of human rights andhas published extensively on international human rights law in leading inter-national journals, such as Modern Law Review, Human Rights Law Review,American University International Law Review, Northern Ireland Legal Quar-terly and Sur – International Journal of Human Rights He is the author ofSexuality and Transsexuality under the European Convention on Human Rights,recently published by Hart

Loveday Hodson is Associate Professor in Law at the University of Leicester.She has published widely on gender, sexuality and international human rightslaw She convened the European Society of International Law’s interest group

on Feminism and International Law for a number of years and currently sits onthe editorial board ofFeminist Legal Studies

Routledge Research in Human Rights Law

Social and Economic Rights in Theory and Practice

A Critical Assessment

Helena Alviar Garcia, Karl Klare and Lucy A Williams

Challenging Territoriality in Human Rights Law

Building Blocks for a Plural and Diverse Duty-Bearer Regime

Wouter Vandenhole

Care, Migration and Human Rights

Law and Practice

Siobhán Mullally

China’s Human Rights Lawyers

Advocacy and Resistance

Eva Pils

Indigenous Peoples, Title to Territory, Rights and Resources

The Transformative Role of Free Prior and Informed Consent

Cathal M Doyle

Civil and Political Rights in Japan

A Tribute to Sir Nigel Rodley

Edited by Saul J Takahashi

Human Rights, Digital Society and the Law

A Research Companion

Edited by Mart Susi

For more information about this series, please visit:

www.routledge.com/Routledge-Research-in-Human-Rights-Law/book-series/HUMRIGHTSLAW

Research Methods for

International Human Rights Law

Beyond the Traditional Paradigm

Edited by

Damian Gonzalez-Salzberg and

Loveday Hodson

First published 2020

by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge

52 Vanderbilt Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2020 selection and editorial matter, Damian Gonzalez-Salzberg and Loveday Hodson; individual chapters, the contributors

The right of Damian Gonzalez-Salzberg and Loveday Hodson to be identi fied as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 All rights reserved No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical,

or other means, now known or hereafter invented, including

photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identi fication and explanation without intent to infringe.

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data

A catalog record has been requested for this book

1 Introduction: Human rights research beyond the doctrinal approach 1DAMIAN A GONZALEZ-SALZBERG AND LOVEDAY HODSON

2 A Marxist approach toR.M.T v the United Kingdom 13ROBERT KNOX

3 A feminist approach toAlyne da Silva Pimentel Teixeira (deceased) v

10 An anthropological approach toM.S.S v Belgium and Greece 227MARIE-BÉNÉDICTE DEMBOUR

11 Human rights research beyond the traditional paradigm: afterword 250CONOR GEARTY

vi Contents

Dr Rob Knox is a Lecturer in Law at the School of Law and Social Justice,University of Liverpool and a member of theHistorical Materialism: Research

in Critical Marxist Theory Editorial Board

Dr Loveday Hodson is Associate Professor in Law at the University of Leicester.She has published widely on gender, sexuality and international human rightslaw She convened the European Society of International Law’s interest group

on Feminism and International Law for a number of years and currently sits onthe editorial board ofFeminist Legal Studies

Dr Bal Sokhi-Bulley is Senior Lecturer in Law & Critical Theory at the School

of Law, Politics and Sociology, University of Sussex Her work focuses on structural (Foucauldian) approaches to rights She has published extensively onrights as technologies of governmentality, including articles in Human RightsLaw Review, Law and Critique and Social and Legal Studies Her monographGoverning (Through) Rights was published in 2016 (Hart, Bloomsbury) andexamines the relationship between rights, governance and possibilities ofcounter-conduct Her current research project looks at the Foucauldian idea

post-of‘friendship’ as an ethical framework for rights

Dr Damian A Gonzalez-Salzberg is a Lecturer in Law at the University ofSheffield He has worked as a lawyer in Argentina within the field of humanrights and has published extensively on international human rights law inleading international journals, such as Modern Law Review, Human RightsLaw Review, American University International Law Review, Northern Ire-land Legal Quarterly and Sur – International Journal of Human Rights He

is the author of Sexuality and Transsexuality under the European Convention

on Human Rights, recently published by Hart

Dr Jen Hendry is an Associate Professor in Law and Social Justice at theUniversity of Leeds School of Law She is a graduate of the Universities ofGlasgow (LLB Hons 2002) and Edinburgh (LLM 2003), and the EuropeanUniversity Institute (PhD 2009) Her research covers social and legal theory,socio-legal studies, and comparative legal studies She is currently writing onissues of Indigenous justice, legal pluralism, and hybrid proceduralism Jen is

Director of the School’s Centre for Law and Social Justice, Vice-Chair of theSocio-Legal Studies Association (SLSA), and member of the ESRC peerreview college.

Dr Ana Laura Zavala Guillen is part of the Office of the Prosecutor in theAttorney General’s Office in Argentina As a lawyer, she investigates crimesagainst humanity perpetrated during the last dictatorship in Argentina Duringher doctoral studies in Human Geography, Ana Laura researched the geograph-ies of the Maroon communities of the Colombian Caribbean through dynamics

of land dispossession and community resistance from colonial times to thepresent day She is an activist scholar interested in the implementation of partici-patory research methods in thefields of historical geography and law

Dr Henry Jones is an Assistant Professor at Durham Law School He primarilyresearches the history and spatiality of international law His research hasbeen published in leading journals, includingLegal Studies, London Review ofInternational Law and Finnish Yearbook of International Law

Dr Dimitrios Tsarapatsanis is a Lecturer in Law at the University of York and

a practising attorney-at-law at the Athens Bar (Greece) He has research ests in human rights, bioethics, legal theory and the intersection of law andtechnology He has published extensively on the ECHR, probing the decision-making processes of the ECtHR from both a theoretical and an empiricalperspective

inter-Prof Marie-Bénédicte Dembour is inter-Professor of Law and Anthropology at theUniversity of Brighton She studied Law at the Free University of Brussels(ULB) and Social Anthropology at the University of Oxford In the twenty-five years since, she has produced many academic publications, some con-sidered seminal, including Culture and Rights: Anthropological Perspectives(co-edited with Jane K Cowan and Richard A Wilson), Who Believes inHuman Rights? Reflections on the European Convention, and When HumansBecome Migrants: Study of the European Court of Human Rights with anInter-American Counterpoint She has been invited to talk all over the world.Prof Conor Gearty is Professor of Human Rights Law at LSE and a Barrister atMatrix Chambers He is also a Fellow of the British Academy and a Member ofthe Royal Irish Academy as well as a Bencher of Middle Temple and an honoraryBencher of the King’s Inn in Dublin Among his more recent books are On Fan-tasy Island: Britain, Europe and Human Rights (OUP), Liberty and Security(Polity) and (with Costas Douzinas, eds)The Meanings of Rights (CUP) He hasdirected LSE’s Centre for the Study of Human Rights and, more recently, itsInstitute of Public Affairs

viii Contributors

1 Introduction

Human rights research beyond the

doctrinal approach

Damian A Gonzalez-Salzberg & Loveday Hodson

1 Human rights research

Louis Henkin began The Age of Rights affirming that the idea of human rights

is the only one to have achieved universal consensus.1 This notion of humanrights he was referring to is the idea of the existence of a set of rights that areheld by every person regardless of where in the world they are situated,2which

is certainly very powerful and inspiring.3It is an idea that emerged as an standable consequence of the ‘barbarous acts which have outraged the con-science of mankind’4

under-during the Second World War and that was proclaimed bythe General Assembly of the United Nations on 10 December 1948 with theadoption of the Universal Declaration of Human Rights.5In the six decades fol-lowing, the belief that human rights are a value worthy of universal protectionhas multiplied exponentially, now appearing in countless international treatiesand instruments, seeming to confirm Henkin’s assertion that human rights havebeen widely embraced In fact, the language of human rights has gained accept-ance in almost every sphere of international law and politics, not only by policy-makers, but also by NGOs, by the media, and more widely.6Importantly, humanrights are seen by most as providing a framework for a progressive transformation

of our social and political reality

Academic interest in international human rights as a discipline has also erated over the last sixty years and, indeed, continues to do so Althoughhuman rights straddle many disciplines, the dominant discourse is a legal one.Nowadays, every major university worldwide offers at least one module thatfocuses specifically on international human rights law Similarly, there exist more

prolif-1 L Henkin, The Age of Rights (Columbia University Press 1990) ix.

2 ibid 1 –2.

3 A Sen, ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy and Public Affairs 315.

4 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR), preamble.

5 ibid.

6 D Chandler (ed), Rethinking Human Rights: Critical Approaches to International Politics (Palgrave Macmillan 2003) 1 –2.

than thirty international academic journals that are published in English anddedicated exclusively to reflection on, and discussion of, human rights law.7

Theoldest of these journals was only launched in the late 1960s,8and just a handful

of others were established during the 1970s and 1980s,9 confirming national human rights law as an academic discipline of our times

inter-An examination of the articles published in international human rights lawjournals reveals that the approach adopted to conduct research within this aca-demic field is still overwhelmingly doctrinal Doctrinal research, usually alsoreferred to as‘black-letter’, is ‘[r]esearch which provides a systematic exposition

of the rules governing a particular legal category, analyses the relationshipbetween rules, explains areas of difficulty and, [sometimes], predicts futuredevelopments’.10

While doctrinal research plays an important role in ing the legal framework through which human rights are protected, it provides

understand-a nunderstand-arrow understand-and punderstand-articulunderstand-ar lens through which to engunderstand-age with understand-a subject thunderstand-at hunderstand-asroots in philosophy, religion and ethics; the articulation of which is intimatelywrapped up with historical and political forces; and the meaningful application

of which has such crucial significance for individuals and groups seeking justice,challenging structural inequality, and striving for a language through which toarticulate their claims for dignity Indeed, for many years, there seemed to bevery little reflection about the diversity of research methods that can be used tocarry out research within the discipline.11

7 African Human Rights Law Journal; Asia-Pacific Journal on Human Rights and the Law; Australian Journal of Human Rights; Buffalo Human Rights Law Review; Business and Human Rights Journal; Canadian Journal of Human Rights; Columbia Human Rights Law Review; European Human Rights Law Review; Harvard Human Rights Journal; Human Rights & International Legal Discourse; Human Rights Law Journal; Human Rights Law Review; Human Rights Review; Human Rights Quarterly; Intercultural Human Rights Law Review; International Human Rights Law Review; International Journal of Human Rights; Israel Yearbook on Human Rights; Journal of Human Rights; Journal of Human Rights and the Environment; Journal of Human Rights Practice; Law & Ethics of Human Rights; Muslim World Journal of Human Rights; Netherlands Quarterly of Human Rights; Nordic Journal of Human Rights; Northwestern Journal of Human Rights; Religion and Human Rights; South African Journal on Human Rights; Sur – International Journal on Human Rights; Trans- national Human Rights Review; Yale Human Rights & Development Law Journal.

8 The Columbia Human Rights Law Review was launched in 1968 as The Columbia Survey of Human Rights Law.

9 Israel Yearbook on Human Rights (1971); Human Rights Law Journal (1980); Nordic nal of Human Rights (1983); South African Journal on Human Rights (1985); Harvard Human Rights Journal (1988); although, with regards to the Nordic Journal of Human Rights, it would take almost twenty years for it to start publishing articles in English.

Jour-10 D Pearce, E Campbell and D Harding ( ‘Pearce Committee’), Australian Law Schools:

A Discipline Assessment for the Commonwealth Tertiary Education Commission (Australian Government Publishing Service 1987) cited in T Hutchinson and N Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research ’ (2012) 17 Deakin Law Review 83, 101.

11 F Coomans, F Grünfeld and M T Kamminga, ‘Methods of Human Rights Research: A Primer ’ (2010) 32 Human Rights Quarterly 179, 180–181; T Murphy, Health and Human Rights (Hart 2013) 9 and 11.

2 Damian A Gonzalez-Salzberg & Loveday Hodson

2 Beyond the doctrinal approach

Notwithstanding the prominent role of doctrinal research in internationalhuman rights law, multiple other research methods exist that offer an alternativeway of looking at the subject In this collection, we aim to offer a coherentoverview of some of these methods in order to provoke wider discussion of how

we might forge paths to doing international human rights law differently Inour use of the term ‘method’, we follow Ratner and Slaughter and adopt thedefinition provided by the Oxford English Dictionary.12

a reflection as to the benefits or difficulties of using different approaches to thestudy of human rights, was not a topic that gained much academic attention.Only in the 2000s, with growing evidence that doctrinal approaches alone may

be insufficient to explore the causes of injustice, it is possible to see a slowlyemerging academic interest in the new perspectives on international humanrights law offered by different research methods, with the publication of mono-graphs and edited collections that started to reflect upon these approaches and

to highlight their significance.15

Our book is by no means the first academic endeavour that focuses on theresearch methods that can be used for conducting research within internationalhuman rights law However, this book is certainly different in kind to previousones, offering an innovative approach to the study of research methods for thediscipline Each chapter of this book has been written by a different author whoboth outlines and applies a specific method for approaching the field of inter-national human rights law At the more general level, the chapters in this book

12 S R Ratner and A-M Slaughter, ‘Appraising the Methods of International Law:

A Prospectus for Readers ’ (2004) 36 Studies in Transnational and Legal Policy 1, 2.

13 Oxford English Dictionary [www.oed.com/].

14 B A Andreassen, H-O Sano and S McInerney-Lankford, ‘Human rights research method’

in B A Andreassen, H-O Sano and S McInerney-Lankford (eds) Research Methods in Human Rights: A Handbook (Edward Elgar 2017) 1–13, 3–4.

15 T Landman, Studying Human Rights (Routledge 2006); M-B Dembour, Who Believes in Human Rights? Re flections on the European Convention (Cambridge University Press 2006);

F Coomans, F Grünfeld and M T Kamminga (eds), Methods of Human Rights Research (Intersentia 2009); B A Andreassen, H-O Sano and S McInerney-Lankford (eds), Research Methods in Human Rights: A Handbook (Edward Elgar 2017).

Introduction 3

also adopt a common structure in order to facilitate comparison and discussionacross and between the methods A distinctive feature of this collection is that itadopts a grounded approach to international human rights law, through demon-strating the application of specific research methods to individual case studies.Each chapter of this book focuses on a specific decision of a court or monitoringbody, critically analysing it from a particular methodological approach To avoidconfusion between the book’s method and each of the chapter’s method, weopted for calling the latter one an approach Moreover, the (methodological)approach adopted by each chapter could either be a ‘theoretical’ approach or

a ‘disciplinary’ one The former refers to the use of a specific analytical work, such as Marxism (Chapter 2) or Feminism(s) (Chapter 3), which leads to

frame-an exploration of thefield through a particular theoretical lens As to the latter,these are grounded in a specific academic discipline, such as Geography (Chapter8) or History (Chapter 9), which allows the use of procedures and techniques(methods) from the social sciences for approaching the study of internationalhuman rights law The use of these theoretical and disciplinary approaches canoffer a very different understanding of the field, compared to the one provided

by the more traditional doctrinal method

As mentioned above, every chapter in the book follows the same structure,split into three sections: (i) Research method (approach); (ii) Summary of thecase under examination; and (iii) Case critique The first section provides

a discussion of theapproach adopted by the chapter, as well as its general ability to thefield of international human rights law Following this, the secondsection provides a discussion of the specific case under analysis, a decisionadopted by a court or monitoring body concerning the protection of inter-national human rights law Finally, the third section of the chapter focuses onthe applicability of the particular method to the case under examination Itoffers a methodologically grounded critique of the selected case The aim of thissection is to demonstrate how looking at the case from the perspective provided

applic-by the specific approach leads to a different understanding of the case By ing the approach under discussion to a concrete case, it is possible to betterappreciate the multiple understandings of international human rights law thatare missed when thefield is only comprehended though the doctrinal method.Furthermore, since every contribution follows the same uniform structure, thisallows for fruitful comparison between different approaches to the study of ourdiscipline

apply-3 Chapter summary

In total, nine chapters follow in which a number of methods are outlined andexplored In Chapter 2, Robert Knox analyses the way in which insights fromthe Marxist tradition can illuminate international human rights law His contri-bution begins by outlining the key elements of historical materialism, which isfundamental to Marxist understanding of shifts in human society and patterns ofdevelopment It then selects three key analytics – class, ideology and the

4 Damian A Gonzalez-Salzberg & Loveday Hodson

structure of capitalism – and shows how they can illuminate the general nomenon of human rights In particular, it argues that human rights law is

phe-a sociphe-al relphe-ation thphe-at mediphe-ates the struggles between clphe-asses However, the cific form that this takes is one which tends to recast social conflict as a matter

spe-of individual rights violations, thereby drawing attention away from the rootcauses of social problems The chapter then goes on to apply these insights tothe widely discussed16 R.M.T v the United Kingdom (2014)17 case, whichraised the question of the existence and scope of any right to secondary actionduring industrial disputes under Article 11 (freedom of association) of the Euro-pean Convention on Human Rights Viewed from a Marxist position, asidefrom directly advantaging the capitalist class in its judgment, the EuropeanCourt of Human Rights can also be argued to have reproduced the ideologicaleffects of human rights law Viewed in this light, the Court’s judgment is seen

to recast the political-economic logic of class conflict as a technocratic clash ofindividual rights The chapter closes with a reflection upon whether it would bepossible to articulate a vision of human rights which takes on board the polit-ical-economic issuesflagged up by Marxist analysis

Chapter 3 offers a different analytical framework In this chapter, LovedayHodson sets out a feminist critique of Alyne da Silva Pimentel Teixeira(deceased) v Brazil,18 a 2011 decision of the Committee on the Elimination ofDiscrimination against Women (‘the Committee’), the body that monitors theConvention on the Elimination of All Forms of Discrimination against Women(‘CEDAW’) The case was submitted by the mother, an Afro-descendant Brazil-ian woman who died in the late stages of pregnancy The death of her daughterwas avoidable; it resulted from fatal delays in the provision of necessary treat-ment following the medically induced delivery of her stillborn foetus TheAlyne

da Silva case has been described as ground-breaking, not least for being thefirstdecision from an international human rights treaty monitoring body thataddresses the question of how human rights apply to pregnant women Thischapter considers the Committee’s decision in this case through a feminist lensand offers insights into both how the Committee used feminist analytical tools

in reaching its decision and where such tools might have been used to different

16 L Lavrysen, ‘Strasbourg court fails to adequately protect trade union freedom: secondary strike action only considered to be an “accessory” aspect of Article 11 (R.M.T v UK)’ (Strasbourg Observers) <https://strasbourgobservers.com/2014/05/12/strasbourg-court-fails-to- adequately-protect-trade-union-freedom-secondary-strike-action-only-considered-to-be-an-acces sory-aspect-of-article-11-r-m-t-v-uk/> accessed 9 April 2019; J Hendy QC and M Ford QC,

‘RMT v United Kingdom: Sympathy Strikes and the European Court of Human Rights’ (Oxford Human Rights Hub) <http://ohrh.law.ox.ac.uk/rmt-v-united-kingdom-sympathy- strikes-and-the-european-court-of-human-rights/> accessed 9 April 2019.

17 National Union of Rail, Maritime and Transport Workers v the United Kingdom, no 31045/10, ECHR 2014.

18 Alyne da Silva Pimentel Teixerira (deceased) v Brazil, Communication No 17/2008, CEDAW/C/49/D/17/2008 (27 Sept 2011).

Introduction 5

ends While feminists have a shared interest in addressing discrimination andinjustice experienced by women, Hodson emphasises that purporting to offer

a defining feminist perspective is simply not an achievable goal; it is to beexpected that many feminists would approach the task in hand rather differently.Feminism is a way of asking questions, rather than a single means of answeringthem It is nonetheless important that a feminist perspective is included in thiscollection, not least because of the depth and importance of contemporary fem-inist engagement with international human rights law In this chapter, Hodsondraws attention to the Committee’s feminist method of ‘telling the story dif-ferently’, which enabled it to frame Alyne’s death as an injustice rather thanmerely a tragedy The chapter’s discussion reflects feminist ambivalence inengaging with law in their struggles: human rights law is at once a tool foroppression and a means to address injustice In scrutinising the Committee’sdecision, Hodson considers critically the contribution that feminists have made

to understandings of sex and gender, and demonstrates how, in spite of thesedevelopments, a binary approach to both characterised the Committee’s decision

in this case Finally, she considers the contribution that intersectional analysismade to the Committee’s decision, arguing from a feminist perspective thatcloser attention could have been paid by the Committee to the intersectingcharacteristics, including gender, that contributed to Ms da Silva’s untimelyand avoidable death

The following Chapter by Bal Sokhi-Bulley on postmodernism sets out

a ‘critical attitude’ that explores the problematiques within, and the possibilitiesfor, human rights law Thus, her chapter turns to rights themselves with

a critical attitude in order to tell an alternative truth about rights: the particulartool she uses to do this is ‘governmentality’ By governmentality, Sokhi-Bulleyrefers to a particular perspective associated with post-modernism and in particu-lar the work of Michel Foucault that addresses the ‘problem of government’; it

is a perspective that poses questions about the nature and practice of ment and governing (which refers to control over the actions of others in

govern-a brogovern-ad sense) Sokhi-Bulley’s chgovern-apter govern-adopts govern-a governmentgovern-ality lens in order toobserve rights as technologies of governmentality From this perspective, humanrights operate as mechanisms of regulation and control that manage the con-struction of certain political identities (for instance, the emergence of the Euro-pean Union as a human rights actor) and produce governmentable subjects (forinstance, the economically inactive migrant) Using the critical skills of interro-gation and application, Sokhi-Bulley questions the jurisprudence of the Court ofJustice of the EU in Case 333/13Elisabeta Dano v Jobcenter Leipzig (2014),19concerning economically inactive nationals of a Member State residing in theterritory of another Member State It applies a governmentality lens to magnifythe wider implications of‘economically inactive migrants’ being conceived of as

an ‘unreasonable burden’; namely, that the EU is able to govern through the

19 Case 333/13 Elisabeta Dano v Jobcenter Leipzig EU:C:2014:2358.

6 Damian A Gonzalez-Salzberg & Loveday Hodson

language of human rights and community The chapter uses its analytical work to highlight the dangers associated with basing citizenship on a work/workless dichotomy which devalues and even demonises the workless subject.International human rights law has been a strategic tool in advancing LGBTrights claims In Chapter 5, Damian Gonzalez-Salzberg examines some of theimplications of this strategy by using queer theory to analyse the recentAdvisory Opinion 24/2017 delivered by the Inter-American Court ofHuman Rights.20 Queer theory’s two primary concerns are to challengebinary approaches to sex and gender and to offer critical reflection on theconstruction of sexual identities The Inter-American Court’s opinion consti-tuted the first occasion on which that Court has dealt with issues concerningtrans rights, in addition to engaging with a question posed by Costa Ricaregarding sexuality, a topic that has appeared in the case law of the Court inthree earlier (contentious) cases Gonzalez-Salzberg demonstrates that queertheory offers an insightful lens through which the legal construction of sexu-ality and gender identity can be explored Rejecting traditional understand-ings of genders and sexualities as binary and fixed, queer theory provides

frame-a frframe-amework within which individuframe-als’ genders frame-and sexuframe-al identities becomegrounds for contestation and open-ended possibilities that lie beyond trad-itional views Queer theory’s approach is then used to explore the role theInter-American Court is playing in the legal regulation of gender and sexual-ities within the Americas In particular, it suggests reason for caution inadopting legal strategies in the pursuit of rights: the chapter discusses theconfrontational stance queer theory tends to adopt towards legal regulation

in general and it suggests that international human rights law should take

a more flexible approach that takes advantage of queer theory’s relentlessinterrogation of regulatory frameworks

Jen Hendry’s chapter, in which legal pluralism is used as a framework forexploring human rights, suggests that the two do not go readily hand inhand; she argues that on the face of it, they appear to have different coreconcerns and motivations, with the former being conceptual in characterwhile the latter is normative Traditional accounts of human rights are char-acterised by an insistence on their universality This chapter argues, however,that a reading of human rights as being solely about universal norms is anoverly narrow one, and that a more nuanced approach – one that reflectsupon the operation of human rights norms within varied, co-existing andoverlapping legal regimes – is required It employs the judgment of theInternational Court of Justice in the Bakassi Peninsula case (Cameroon

20 I/A Court H.R., Advisory Opinion OC-24/17 of November 24, 2017 Gender identity, and equality and non-discrimination with regard to same-sex couples State obligations in relation

to change of name, gender identity, and rights deriving from a relationship between same-sex couples (interpretation and scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation

to Article 1, of the American Convention on Human Rights) Series A No 24.

Introduction 7

v Nigeria, 2002)21 as the platform from which to consider the fertile sections of legal pluralism and human rights, with a focus on two particularissues: first, the challenge of addressing contemporary border disputes thatcan trace their origins to colonialisation, and; second, the matter of humanrights’ effectiveness in producing changes to international legal mechanismsand practices In choosing a judgment of the ICJ as the object of her casestudy, Hendry draws attention to the purportedly neutral and universal defin-itions, practices and forums that permeate both international law and inter-national human rights law, and presents a convincing account of legalpluralism as a vital resource in both recognising and combatting such defaultsettings.

inter-In Chapter 7, Ana Zavala-Guillen explores the case ofThe Moiwana nity v Suriname,22 decided by the Inter-American Court of Human Rights in

Commu-2005, which is a milestone in the struggle of the Afro-descendant people ofLatin America for territorial reparation The ruling addressed the situation of

a Maroon community (the descendants of runaway slaves) in Suriname, whowere forcibly displaced by a military operation conducted in their village TheCourt ordered the State to compensate the members of the community thathave been displaced and to adopt all the necessary measures to return the trad-itional territories to the community for their use and enjoyment The chapteroffers a geographical lens to describe and develop a specific method of participa-tory mapping, thereby demonstrating how territorial demarcations of Marooncommunities in Latin America might be implemented by applying geographicalparticipatory research methods in responding to human rights claims Accordingly,Zavala-Guillen suggests, participatory mapping exercises (also known as commu-nity-based or counter maps) can combine oral memories and historical documentsfound in colonial archives to assist in the determination of the territorial rightsclaims of Maroon communities The importance of using participatory researchmethods is underscored by the emphasis placed on the role of experts on Afro-descendant communities in contributing to their social empowerment, and thepromotion and protection of their territorial rights

In the subsequent chapter, Henry Jones turns to consider how history can beused in legal (human rights) arguments Every legal dispute, he argues, involvessome element of history and storytelling, but the cases related to the ChagosIslanders, his chosen case study, are particularly historical and historicised Thehistory of the Chagos Islanders has been told and re-told by a wide variety oflawyers and judges, in private law and public law hearings, in domestic, regionaland international tribunals Focusing on the 2004 decision of the European

21 International Court of Justice, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p 303.

22 I/A Court H.R., Case of the Moiwana Community v Suriname Preliminary Objections, Merits, Reparations and Costs Judgment of June 15, 2005 Series C No 124.

8 Damian A Gonzalez-Salzberg & Loveday Hodson

Court of Human Rights,Chagos Islanders v the United Kingdom,23he carefullydemonstrates that the version of the history which is adopted has a fundamentalinfluence on the decisions reached Jones’ contribution looks at how history caninfluence the interpretation and application of human rights law, from the offi-cial history of the UK government, the community history of the Chagossians,and the counter history produced by archival research It offers both discussion ofdifferent types of historical methodology and an original critique of the use of his-tory in this series of cases Jones argues that it was this complex history which ledthe European Court of Human Rights to find the case beyond its jurisdiction,and that the complexities of history may inevitably be beyond human rights law’scapacity for justice His contribution shows that the history of the Chagossianscan be told in different ways, and proposes the argument that human rights law-yers should be alert to the persuasive power of historical arguments.

The purpose of Dimitrios Tsarapatsanis’ contribution is to explore the bility of a political reading of the European Convention on Human Rights andthe Court’s interpretive practice Accordingly, Chapter 9 is divided into threeparts Thefirst part sets out the distinctively political conceptual tools that Tsar-apatsanis uses to make sense of the Court’s decision-making practice, whicharguably cannot be entirely explained as the mere application of legal rules.Emphasis is placed in this chapter on justifying the proposition that the success-ful resolution of political issues requires a normative approach that is characteris-tically ‘suboptimal’ if judged by the standards of any ideal (moral or other)theory of human rights It then situates the proposed tools in aspects of theCourt’s practice and traces out their implications with regard to a number ofdoctrinal devices used by the Court, most importantly the margin of appreci-ation doctrine and the consensus approach He illustrates this discussion withclose examination of the high-stakes Lautsi v Italy case that came before theEuropean Court of Human Rights (firstly in 2009,24

possi-then before the GrandChamber in 201125) The third part of Chapter 9 explores how political consid-erations can be plausibly understood to have played out in the context ofLautsi, providing a political understanding of the Court’s reasoning Ultimately,Tsarapatsanis argues that a more politically sophisticated representation of theCourt’s practice unearths an area of normative considerations that cannot bereduced to ideal theorising about the content of Convention rights

The final chapter of this collection on anthropological approaches to national human rights law is written by Marie-Bénédicte Dembour Anthropo-logical research, the hallmark of which is often regarded as prolongedfieldwork,

inter-is associated with the study of culture However, it can be directed to any aspect

of social life What it seeks, Dembour suggests in Chapter 10, is to make nections between the small nitty gritty of social life and the ‘big picture’; to

con-23 Chagos Islanders v the United Kingdom (dec.), no 35622/04, ECHR 11 December 2012.

24 Lautsi v Italy, no 30814/06, ECHR 3 November 2009.

25 Lautsi and Others v Italy [GC], no 30814/06, ECHR 2011.

Introduction 9

remain attentive to the gap between theory (what people say they do) and tice (what they actually do); to identify what society keeps muted; and not

prac-to be content with a surface level analysis but always prac-to dig more in-depth.M.S.S v Belgium and Greece26 is her chosen case study through which toexplore the application of this method; it was adopted by the Grand Chamber

of the European Court of Human Rights in 2011 and concerned the transfer

of an asylum seeker by Belgium to Greece The Court found both defendantStates in violation of Article 3 of the European Convention on Human Rights(inhuman and degrading treatment) on two counts (detention conditions andconditions of life when living in Athens’ parks without any support) and Article

13 of the European Convention (access to domestic remedies) Dembour’schapter addresses three main questions First, she asks why the judgment is somuch out of the ordinary? Second, she questions why is it considered a causeeither for celebration or for concern? Finally, she asks how itfits within the his-tory of the Strasbourg case law? These, she points out, are not conventionallegal questions This chapter explains why these questions and the answers given

to them can be said to be informed by the author’s anthropological training,with reference to the methodological interests identified above

In sum, this collection on research methods for international human rightslaw offers a wide-ranging critical and original approach to the study and research

of the discipline The authors who have contributed to this volume each fully demonstrates the application of their chosen method to a particular deci-sion or judgment from an international monitoring body or court: the net result

care-is that a clear picture care-is painted of a rich variety of methods through whichinternational human rights law can be understood beyond the doctrinalapproach We are confident that those with an interest in the study of humanrights law willfind this approach both accessible and illuminating While arguingfor an approach beyond doctrine is not uncontroversial, the research methodsoutlined demonstrate in important and meaningful ways the novel paths andquestions that are opened up once new approaches to international humanrights law are embraced If we are indeed living in the age of human rights, ifhuman rights are a central discourse in struggles for justice, then it is imperativethat we engage with the many and varied ways and means in which we canapproach, understand and articulate those rights

Bibliography

Books

Andreassen, BA, Sano, H-O, and McInerney-Lankford, S (eds), Research Methods in Human Rights: A Handbook (Edward Elgar 2017).

26 M.S.S v Belgium and Greece [GC], no 30696/09, ECHR 2011.

10 Damian A Gonzalez-Salzberg & Loveday Hodson

Chandler, D (ed), Rethinking Human Rights: Critical Approaches to International Politics (Palgrave Macmillan 2003).

Coomans, F, Grünfeld, F and Kamminga, MT (eds), Methods of Human Rights Research (Intersentia 2009).

Dembour, M-D, Who Believes in Human Rights? Re flections on the European Convention (Cambridge University Press 2006).

Henkin, L, The Age of Rights (Columbia University Press 1990).

Landman, T, Studying Human Rights (Routledge 2006).

Murphy, T, Health and Human Rights (Hart 2013).

Book chapter

Andreassen, BA, Sano, H-O and McInerney-Lankford, S, ‘Human rights research method’

in Andreassen, BA, Sano, H-O and McInerney-Lankford, S (eds) Research Methods in Human Rights: A Handbook (Edward Elgar 2017).

Articles

Coomans, F, Grünfeld, F and Kamminga, MT, ‘Methods of Human Rights Research: A Primer ’ (2010) 32 Human Rights Quarterly 179.

Ratner, SR and Slaughter, A-M, ‘Appraising the Methods of International Law:

A Prospectus for Readers ’ (2004) 36 Studies in Transnational and Legal Policy 1 Sen, A, ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy and Public Affairs 315.

Report

Dennis Pearce, D, Campbell, E and Harding, D ( ‘Pearce Committee’), Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Australian Government Publishing Service 1987).

Websites and blogs

John Hendy QC and Michael Ford QC, ‘RMT v United Kingdom: Sympathy Strikes and the European Court of Human Rights ’ (Oxford Human Rights Hub) <http://ohrh.law ox.ac.uk/rmt-v-united-kingdom-sympathy-strikes-and-the-european-court-of-human- rights/> accessed 9 April 2019.

Lavrysen, L, ‘Strasbourg court fails to adequately protect trade union freedom: secondary strike action only considered to be an “accessory” aspect of Article 11 (R.M.T v UK)’ (Strasbourg Observers) <https://strasbourgobservers.com/2014/05/12/strasbourg- court-fails-to-adequately-protect-trade-union-freedom-secondary-strike-action-only- considered-to-be-an-accessory-aspect-of-article-11-r-m-t-v-uk/> accessed 9 April 2019.

Cases

Alyne da Silva Pimentel Teixerira (deceased) v Brazil, Communication No 17/2008, CEDAW/C/49/D/17/2008 (27 Sept 2011).

Case 333/13 Elisabeta Dano v Jobcenter Leipzig EU:C:2014:2358.

Chagos Islanders v the United Kingdom (dec.), no 35622/04, ECHR 11 December 2012.

Introduction 11

I/A Court H.R., Advisory Opinion OC-24/17 of November 24, 2017 Gender identity, and equality and non-discrimination with regard to same-sex couples State obligations

in relation to change of name, gender identity, and rights deriving from a relationship between same-sex couples (interpretation and scope of Articles 1(1), 3, 7, 11(2), 13,

17, 18 and 24, in relation to Article 1, of the American Convention on Human Rights) Series A No 24.

I/A Court H.R., Case of the Moiwana Community v Suriname Preliminary Objections, Merits, Reparations and Costs Judgment of June 15, 2005 Series C No 124.

International Court of Justice, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports

2002, p 303.

Lautsi and Others v Italy [GC], no 30814/06, ECHR 2011.

Lautsi v Italy, no 30814/06, ECHR 3 November 2009.

M.S.S v Belgium and Greece [GC], no 30696/09, ECHR 2011.

National Union of Rail, Maritime and Transport Workers v the United Kingdom, no 31045/10, ECHR 2014

12 Damian A Gonzalez-Salzberg & Loveday Hodson

2 A Marxist approach to R.M.T v the United Kingdom

Rather, they must be rooted in‘the materialconditions of life’.2

For Marx, these ‘material conditions’ could only be stood through‘political economy’; as he famously put it:

under-In the social production of their existence, men inevitably enter into definiterelations, which are independent of their will, namely relations of produc-tion appropriate to a given stage in the development of their material forces

of production The totality of these relations of production constitutes theeconomic structure of society, the real foundation, on which arises a legaland political superstructure and to which correspond definite forms of socialconsciousness … It is not the consciousness of men that determines theirexistence, but their social existence that determines their consciousness.3Crucially, these‘definite relations’ are not abstract or neutral; instead, they arecomposed of classes – groups of individuals who have distinct relationships to

1 K Marx, ‘Preface to A Contribution to the Critique of Political’ in R Tucker (ed), The Marx-Engels Reader (Norton & Company 1978) 3.

2 ibid.

3 ibid.

the means of production and thus to the creation and appropriation of wealth

in particular societies In a given mode of production – such as a slave-holdingsociety, a feudal society, or a capitalist society – ‘the specific economic form, inwhich unpaid surplus labour is pumped out of direct producers, determines therelationship of rulers and ruled’, as such, ‘[i]t is always the direct relationship ofthe owners of the conditions of production to the direct producers … whichreveals the innermost secret, the hidden basis of the entire social structure’.4

Classes are constantly engaged instruggle and it is through‘legal, political, gious, artistic or philosophic … forms’ that classes would struggle to realisetheir diametrically opposed interests.5

reli-b Marxism and human rights

The Marxist lens, then, lends itself to situating human rights law within itsmaterial context Marxist approaches trace the ways in which human rights lawembeds and articulates the relations of production – and attendant forms ofclass struggle – upon which they are built On a basic level, Marxists track howthe content of human rights reflects the interests of the contending classes of

a given society At the same time, however, Marxists have always understoodthat the ‘ruling ideas are the ideas of the ruling class’.6

Accordingly, they haveattempted to draw attention to theideological function of the human rights dis-course, examining how human rights frame particular issues in such a way as toreproduce the status quo Finally, on a more abstract level, Marxists haveattempted to understand how the very form of human rights discourse is inter-twined with– and reproduces – the basic logic of capitalist social relations

c Class struggle

Although law did not play a direct role in the work of Marx and Engels, itappeared frequently in their historical accounts Take, for example, Marx’saccount of ‘primitive accumulation’ Primitive accumulation refers to the pro-cesses through which pre-capitalist societies were rendered amenable to be trans-formed into capitalist ones A crucial aspect of primitive accumulation was theenclosure of previously common land, by ensuring that populations would not

be able to sustain themselves outside of a wage relationship In Capital, Marxtraced the‘bloody legislation’ which made this possible: domestically (in Britain)through a series of ‘enclosure Acts’,7

which enclosed the commons and lawed vagrancy, and internationally through legal regimes enabling colonial

out-4 K Marx, Capital: A Critique of Political Economy, Volume 3 (Penguin 1990) 927.

plunder.8In this account, then, the ruling class– with its control of the State –was able to instrumentalise the law In such a vision, the judiciary itself is eitherpart of the ruling class directly, or materially dependent upon the ruling classfor its continued existence, and accordingly advances the interests of the rulingclass in its judgments.9

Marxists have also drawn attention to the ways in which law has been used byexploited classes to advance their interests In Marx’s time, the most prominentexample of this was the struggle to regulate the length of the working day Fam-ously, inCapital Marx stated that:

For ‘protection’ against the serpent of their agonies, the workers have toput their heads together and, as a class, compel the passing of a law, an all-powerful social barrier by which they can be prevented from selling them-selves and their families into slavery and death by voluntary contract withcapital In the place of the pompous catalogue of the ‘inalienable rights ofman’ there steps the modest Magna Carta of the legally limitedworking day, which at last makes clear ‘when the time which the workersells is ended…’10

Although Marx counterposed the limited working day to ‘pompous’ humanrights, in more contemporary terms, it is often rights that play the role of limit-ing the ability of capitalists to exploit their workers In this way, then, we canunderstand human rights law as articulating the struggle between classes,

a struggle which can sometimes be won by the oppressed and exploited In thisvein, Bill Bowring has argued that we must understand international humanrights law as an outcome of great political struggles For Bowring, the‘scandal-ous ruptures with pre-existing modes of social existence which have arisen in thecontext of great historical events’ are concretised in international human rightslaw, which then embeds their legacy.11He argues that the three‘generations’ ofhuman rights, were each shaped by the great revolutions in which they wereforged Civil and political rights came about as the struggles around the FrenchRevolution Economic, social and cultural rights came about as the struggle ofthe workers movement: as most clearly embodied in the Russian Revolution.The ‘third generation’ of people’s rights was achieved through the successes ofthe anti-colonial movement in its struggle against imperialist capitalism Thus,far from being an apolitical set of entitlements, human rights are the product ofpolitical and economic struggles, in part codifying the concessions made by the

powerful in the face of political insurgencies The development of socio-economicrights is a case in point in illustrating this argument.12

Ultimately, however, the class-struggle view is unable to account for whatmakes human rights law a specific field of social struggle As Evgeny Pashukanisput it, such an approach risks introducing‘an element of class struggle’ into exist-ing positivist accounts of law, ultimately resulting in‘a history of economic formswith a more or less weak legal colouring’.13 This makes it difficult to trace thelimits of human rights law If human rights law simply ‘expresses’ class struggle,then presumably it could express a revolutionary alternative Yet this ultimatelydoes not seem correct Instead, human rights law imposes its own set of limits ofhow we think of social struggle; that is to say, human rights law is ideological

d Ideology

Ideology has been one of the most common rubrics under which Marxists haveaddressed the law InThe German Ideology, Marx and Engels argued that ‘in allideology men and their circumstances appear upside-down as in a cameraobscura’,14 with ideological thinking treating the contingent and political prod-uct of human action as timeless They argued that legal ideology was intrinsicallylinked to the ruling class, who were able to couch their specific class dominancethrough the general and abstract character of the law.15In more contemporaryterms, Marxists have understood ideology as referring to the ‘ways in whichmeaning serves to establish and sustain relations of domination’.16

Susan Markshas identified a number of ‘general modes’ of ideology whereby human rightsdiscourse does this The first is ‘legitimation’, which describes how authority ismade to seem valid and appropriate One can immediately see how humanrights law – with its investment in the idea of a neutral State and judiciary –might contribute to legitimating existing arrangements This is particularly true

on the international level, where the interventions of powerful capitalist Stateshave historically been couched in terms of the spreading of human rights and

is precisely premised on a‘universal’ humanity with a set of common interests.Indeed, a key promise of human rights law is that it is possible– without funda-mental change – to reach a situation in which human rights are respected Thisleads logically on to the mode of ‘naturalisation’, whereby social relations aremade to seem natural and unchangeable Human rights law takes for grantedthe existence of a capitalist social system, attempting to remedy issues withoutaddressing the rootedness of those issuesin said system.19

It is this final point that has provided the impetus for many contemporarycriticisms of the‘ideological’ dimension of human rights In essence, these criti-cisms argue that human rights – framed as it is around the abstract rights ofindividuals – cannot fully grapple with the systemic political-economic issueswhich create contemporary problems As Tor Krever puts it, human rights law’s

‘focus on individual victims and individual violators of rights places the broadercontext of [violations] out of sight, obfuscating the social and political-economic character’ of the causes of human rights violations.20

This is a ‘falsecontingency’, in which events rooted in the structural of global capitalism aretreated ‘as if’ they are the accidental and contingent result of certain bad indi-viduals, or irrational policies.21As a result, human rights law is unable to exam-ine the ‘root causes’ of said rights violations.22

Citing the example of Haiti,Marks notes that:

Delegates to the Human Rights Council special session highlighted theurgent need in Haiti for food, water, medical supplies and shelter, and theinability of the Haitian government to provide these itself But they tooremained silent on the lending and aid conditions that had forced successiveHaitian governments to cut public infrastructure, scale back the alreadylimited health service, and drastically reduce the protection given to localindustries.23

For Marks, by ignoring the systemic roots of certain policies, the human rightsmovement cannot grasp that ‘the conditions which create vulnerability tohunger and malnutrition do not exist at least in part because they benefit somegroups of people, even as they massively disadvantage others’.24In other words,human rights law tends to obfuscate the fact that some classes benefit from theexisting order

19 ibid 21.

20 T Krever, ‘Ending Impunity? Eliding Political Economy in International Criminal Law’ in

U Mattei and J D Haskell (eds), Research Handbook on Political Economy and Law (2015) 313.

21 S Marks, ‘False Contingency’ (2009) 62 Current Legal Problems 1.

22 S Marks, ‘Human Rights and Root Causes’ (2011) 74 The Modern Law Review 57.

23 ibid 66.

24 ibid 69.

A Marxist approach 17

In this way, Marxists draw attention to the ways in which human rights lawserves the ideological function of recasting social problems in ways that ultim-ately reinforce capitalist social relations Human rights law deals with systemicpolitical issues by casting them as individual violations of abstract rights.Accordingly, human rights violations do not call the whole system into question.This helps to depoliticise resistance to capitalism, and indeed channels it into

a language of individualism which helps to reinforce capitalism’s continuedexistence.25

e Human rights and capitalism

If human rights law is ultimately ideological, we might want to ask why this isthe case Why does the language of human rights tend to recast systematicissues as individualised situations that are abstracted from their broader context?The Marxist answer to this has been to locate the emergence of‘human rights’within a specific historical context; demonstrating the close connections between

‘human rights’ and the rise of capitalism Such an analysis was most prominent

in Marx’s early text On the Jewish Question Here, Marx drew a distinctionbetween ‘modern (capitalist) societies and feudal societies’ In feudal societies,civil society had a ‘directly political character’ since economic forms – produc-tion, consumption etc – were regulated through fixed custom and status, thus

a peasant would produce to fulfil a quota for a lord and subsist on whatremained

In capitalist societies, such conditions no longer obtain, since production iscarried out for profit Accordingly, in these societies, there is a split between

‘political society’ – where humans exist communally – and ‘civil society’ – where

an individual ‘acts simply as a private individual’.26

Crucially, in such

a situation – with civil society composed of individuals – something needed toregulate their relations apart fromfixed custom status; it was in this context thatthe law stepped in:

The formation of the political state, and the dissolution of civil society intoindependent individuals whose relations by law, as the relations betweenmen in the corporations and guilds were regulated by privilege, are accom-plished byone and the same act.27

For Marx, given this close connection between the rights of man and the gence of civil society, the rights of man – i.e human rights – ‘are simply the

emer-25 B Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge University Press 2003).

26 K Marx, ‘On the Jewish Question’ in R Tucker (ed), The Marx-Engels Reader (Norton & Company 1978) 34.

27 ibid 45 –46.

18 Robert Knox

rights of amember of civil society, that is of egoistic man, of man separate fromother men and from the community’.28

Here, the liberty spoken of is ‘[t]heright of thecircumscribed individual, withdrawn into himself’29and the equalitydenotes that‘every man is equally regarded as a self-sufficient monad’.30

In thisway, then, Marx argues that the individualism of ‘human rights’ is fundamen-tally linked with private property Marx’s insight roots the abstract universalism

of human rights law in the political-economic circumstances that enabled itsrise This insight formed the bedrock of later structural accounts of the rela-tionship between (human rights) law and capitalism In particular, the com-modity-form theory of law – as pioneered by the Bolshevik legal theoristEvgeny Pashukanis– drew close connections between the basic logic of capital-ism and what he called the‘legal form’.31

Pashukanis argued that in order to understand the law, it is necessary to markout what differentiates it from other types of norms that govern social life.For him, the only historical materialist approach to this question was theinsight that ‘under certain conditions the regulation of social relationshipsassumes a legal character’.32

A Marxist theory of law needed to unpack thesespecific conditions and the corresponding specifically legal character, or ‘legalform’ Following Marx, Pashukanis argues that a distinctly legal relationshipfirst arises in the context of commodity exchange When commodities areexchanged, it is necessary that each party to the exchange recognise the other

as capable of owning and exchanging property In this sense, mutual tion is at the heart of that exchange, with each owner seeing the other astheir equal in an abstract and formal sense This precludes the idea that anydispute between the parties to an exchange can be concluded on the basis oftheir status or social position Accordingly, a form of social regulation isrequired that can resolve disputes whilst also respecting the abstract equality

recogni-of the participants

This is the legal form: a type of social regulation that inheres betweenabstract, formally equal subjects Prior to capitalism, commodity exchangeexists only at the margins of social life and law accordingly exists in isolatedpockets, intertwined with other forms of social regulation As capitalist socialrelations supersede older forms, law comes to dominate In particular, capital-ism, as a system based on the exploitation of wage labour, creates more andmore workers who ‘own’ their labour power With ‘full development ofbourgeois relations’ commodity exchange is less concentrated in specificexchanges and activities – with labour becoming more and more ‘abstract’

The increasing division of labour, the expanding social relationships and thedevelopment of exchange deriving therefrom, make exchange-value an eco-nomic category, i.e the embodiment of social production relationshipswhich stand above the individual For this it is necessary that separate andrandom acts of exchange turn into a broad systematic circulation of com-modities At this stage of development, value is torn from arbitrary assess-ment, loses its character as a phenomenon of the individual psyche andassumes an objective economic significance Similarly, real conditions arenecessary for man to be transformed from a zoological being into anabstract and impersonal subject of law, into a juridic person.33

Under these conditions, Pashukanis argues,‘the capacity to have a right in eral is separated from specific legal claims’.34

gen-It is only in such conditions thatthe ‘human’ of ‘human rights’ – the universal, abstract human equal to allothers – can emerge This ‘legal subject is the abstract commodity owner ele-vated to the heavens’.35 On Pashukanis’ account, ‘[i]ndustrial capitalism, theDeclaration of the Rights of Man and the Citizen, Ricardo’s political economy,and the system of terms of incarceration in prison … are phenomena of thesame historical period’.36

The abstract, depoliticising character of human rights

is rooted in the logic of the legal form, which itself mirrors the logic ofcapitalism

2 R.M.T v the United Kingdom

In R.M.T v the United Kingdom, the National Union of Rail, Maritime andTransport Workers (RMT) brought a claim against the UK to the EuropeanCourt of Human Rights concerning the right to engage in‘secondary’ or ‘sym-pathy’ strike action.37

The facts of the case concerned RMT members who hadworked for‘Fastline Limited’, a railway maintenance company Fastline was part

of a group of companies called ‘Jarvis Plc’, and worked closely with anothermember of the group called Jarvis Rail Limited, a rail engineering firm In

2007, Fastline moved 20 of its employees to a different company, HydrexEquipment Limited Under the Transfer of Undertakings (Protection ofEmployment) Regulations (2006), the terms and conditions of their originalcontracts were preserved, at significantly higher levels than other workers inHydrex In 2009, Hydrex management sought to reduce the wages of the 20employees who voted in favour of a strike The strike action ultimately proved

ineffective According to the RMT, this was due to the small number of ised workers in Hydrex The RMT argued that if Jarvis workers had been able

union-to go on strike in sympathy or solidarity with the Hydrex workers, the strikeaction would have proved more effective

There is no‘right to strike’ in UK law Industrial action is regulated throughprivate and statutory law Striking workers will attract legal liability for breach ofcontract and the tort of occasioning a breach of contract In the former case,

a breach of contract would enable an employer to terminate the employment ofstriking workers and in the latter case striking workers – and their tradeunions – can be sued for damages.38

Strike action is, however, protected fromliability through statute, specifically through ‘the Golden Formula’ Under thisformula – created in the 1870s under the pressure of the labour movement –industrial action will not attract liability insofar as it is ‘in contemplation or fur-therance of a trade dispute’.39

Historically, there have been struggles over whatprecisely counts as ‘contemplation or furtherance of a trade dispute’ In thepost-War period, it was read broadly by the judiciary, and included the right totake secondary action, i.e action against employers who were not directly party

to a dispute.40During the 1980s, under the Thatcher government, the scope of

a ‘trade dispute’ was narrowed through a series of legislative interventions.41

The Employment Act 1980 explicitly removed secondary action from tion, and this remains in force As secondary action, a strike by Jarvis Groupworkers in solidarity with Hydrex workers would not be protected This wouldenable a judge to issue an interlocutory injunction to prevent the action TheRMT argued that this was a breach of their Article 11 right to freedom ofassociation

protec-The relationship between Article 11 and trade union activity is complicated.Under Article 11‘[e]veryone has the right … to form and to join trade unionsfor the protection of his interests’ subject to restrictions

prescribed by law and … necessary in a democratic society in the interests

of national security or public safety, for the prevention of disorder or crime,for the protection of health or morals or for the protection of the rightsand freedoms of others

38 R Lewis, ‘The Historical Development of Labour Law’ (1976) 14 British Journal of trial Relations 1.

Indus-39 D Brodie, A History of British Labour Law, 1867–1945 (Hart 2003) 1–15.

40 The Trade Disputes Act 1906 initially established protection from tortious liability for trial action ‘in furtherance of a trade dispute’, including secondary action The Trade Disputes and Trade Unions Act 1927, introduced by the Conservative government in the wake of the

indus-1926 General Strike, narrowed the purview of Secondary Action, but this was repealed by the Trade Disputes and Trade Unions Act 1946, which restored the 1906 Act and served as the framework for the post-War consensus.

41 C Howell, Trade Unions and the State: The Construction of Industrial Relations Institutions

in Britain, 1890 –2000 (Princeton University Press 2005) 149.

A Marxist approach 21

As the ECtHR put it in ASLEF v the United Kingdom, Article 11 is primarilyabout protecting the ‘individual against arbitrary interference by publicauthorities’.42 On this basis, historically, the ECtHR often adopted decisionscontrary to the positions of trade unions In particular, in the cases of Young,James and Webster v the United Kingdom43 and Sørensen & Rasmussen vDenmark,44the Court held that Article 11 included a‘negative’ right to not be

a member of a trade union Accordingly, they ruled that closed-shop ments – under which all workers had to be members of a particular tradeunion– were contrary to Article 11

agree-However, another line of case law suggests a wider sense of trade unionrights In Wilson and Palmer v the United Kingdom the Court ruled that thewords ‘for the protection of his interests’ in Article 11(2), implied a widerset of rights than simply joining a trade union In particular, this meant that

a ‘trade union must thus be free to strive for the protection of its members’interests’.45

Although the court denied a right to collective bargaining, ‘itmust be possible for a trade union … to take steps including … organisingindustrial action, with a view to persuading the employer to enter into col-lective bargaining’.46 In Demir and Baykara v Turkey, the Court went fur-ther, stating that ‘the right to bargain collectively with the employer has, inprinciple, become one of the essential elements of … Article 11’.47

antly, the Court also found that a State would have only a limited margin ofappreciation in such matters.48 It was this line of case law on which theRMT relied, particularly on the narrow margin of appreciation Essentially,their claim was that the ban on secondary action prevented the RMT frombeing able to pursue its members’ interests and was an infringement on theability to engage in collective bargaining The RMT pointed out that a totalprohibition on secondary action was an extreme position, departing fromEuropean consensus

Import-In contrast, the UK government argued that secondary action was not anessential element of Article 11 Accordingly, it fell wholly within the margin ofappreciation Furthermore, they argued that whilst Article 11 allows for a right

to strike, this can be restricted according to Article 11(2) They argued that ondary action would impinge the rights of individuals not party to the dispute

sec-42 Associated Society of Locomotive Engineers & Firemen (ASLEF) v the United Kingdom, no 11002/05, 27 February 2007 [37].

43 Young, James and Webster v the United Kingdom, 13 August 1981, Series A no 44.

44 Sørensen and Rasmussen v Denmark, nos 52562/99 and 52620/99, ECHR 2006-I.

45 Wilson, National Union of Journalists and Others v the United Kingdom, nos 30668/96, 30671/96 and 30678/96, ECHR 2002-V [ 42].

46 ibid [46].

47 Demir and Baykara v Turkey, no 34503/97, 12 November 2008 [154].

48 ibid [119].

22 Robert Knox

and could imperil economic recovery; in the latter case, the government alsoargued that the restrictions had come about because of the disruptive effect ofsecondary strikes in the 1970s.

The Court sided with the government, arguing that the ban did not breachArticle 11 and accepting much of its reasoning The Court noted

that the applicant in fact exercised two of the elements of freedom of ciation that have been identified as essential, namely the right for a tradeunion to seek to persuade the employer to hear what it has to say on behalf

asso-of its members, and the right to engage in collective bargaining.49

The Court went on to state – somewhat dismissively – that ‘the right to lective bargaining has not been interpreted as including a“right” to a collectiveagreement … [n]or does the right to strike imply a right to prevail’.50

col-Mostimportantly, the Court affirmed that the ban on secondary action had the ‘legit-imate aim of protecting the rights and freedoms of others’ The Court stressedthat secondary action could ‘cause broad disruption within the economyand… affect the delivery of services to the public’.51 In so doing, it noted thatthe 1980 Employment Act had been designed to‘strike a new balance in indus-trial relations, in the interests of the broader economy’.52

The Court further argued that in the case of secondary action, a State wouldhave a much wider margin of appreciation On the basis of the wider margin ofappreciation, the Court accepted that the UK government had banned second-ary action to ‘rebalance’ the economy as part of its ‘social and economicstrategy’.53

To these two arguments, the Court added a final consideration,namely that there was a ‘democratic consensus’ in the UK for the banning ofsecondary action The Court ultimately concluded that the ban on secondaryaction, whilst at one ‘extreme’ of the European consensus, was nonetheless

a proportionate interference with Article 11

3 A Marxist reading of R.M.T v the United Kingdom

a Labour and capital

How might the Marxist tradition make sense of R.M.T v UK? The overarchingobjective of a Marxist approach to a case is to set it within its material context,and understand how the social relations of capitalism shape the arguments atplay However, this determination occurs on a whole host of different levels: in

particular through (class) struggles around the content of the law; through theideological dimensions of legal reasoning, and – ultimately – though the struc-tural limits imposed by the relationship between human rights law andcapitalism.

In order to understand how this analysis can be concretely deployed in thecase before us, it is first necessary to understand how Marx understood the rela-tionship between labour and capital under capitalism specifically In Capital,Marx argued that every individual commodity was composed of a‘use value’ and

‘exchange value’ Use value, refers to the ability of a commodity to satisfy humanwants and needs For Marx, this could not be the distinguishing feature thatmarked out commodities, since things that are not commodities can also fulfilneeds Instead, he argued, what distinguished a commodity was its ability to bebought and sold If every commodity can be exchanged, then that means thatvalue of each commodity must be ‘equal to a third thing’, to which they are allreducible.54 This is exchange value or ‘value’, usually represented in the form ofmoney However, Marx’s theory left him with a quandary: if every commoditycould be defined in relation to the other, how was it possible to make a profit?

It was here that Marx hit upon labour He argued that if value was common

to all commodities, it must express some common substance The only date for such a substance is ‘labour’.55

candi-In this way, the value of a commoditywould be determined by the amount of labour embodied with it Crucially, sincevalue is a social and not natural property it is not determined by how much

‘actual’ labour is embodied a particular commodity; rather, value is determined bythe ‘socially necessary’ amount, that is to say the minimum amount of ‘abstract’labour needed to produce a particular commodity.56 It was this that providedMarx with the key to profit Human labour, or more particularly the human cap-acity to labour (which Marx called ‘labour-power’), is also a commodity Sinceworkers do not own the means of production, they are forced to go to otherswho do own these means of production: capitalists In exchange for the wage,the capitalist will own everything produced by the worker

Because workers exchange not the results of their labour, but labour-power,the value produced during the working day can exceed wages The value oflabour-power (i.e wages) is not based on what it produces, but rather howmuch it costs to reproduce the labourer Workers are paid a wage that will besufficient to continue to ‘exist’ – the limits of which will be determined by fac-tors such as the cost of food, housing etc as well as social struggles over wage-levels57– but produce more value than this within the labour process.58

Although Marx’s political economy was a more complex beast than this, thisbasic sketch has important consequences for thinking about the relationshipbetween classes under capitalism First, there is a basic antagonism betweenworkers and capitalists, since the latter depend on the exploitation of the former

to generate profits Whilst their interests can and do align in the short term, inthe medium to long term, it is always in the interests of capitalists to reduce thewages and bargaining power of workers As a consequence, workers have a longterm interest in restraining capitalists and capitalism Second, an individual capit-alist will always be more powerful than an individual worker, since they controlthe means of production This leads on to a third and final logical conclusion:namely, that workers have a collective interest in banding together in order tochallenge capitalists, both on the level of negotiation and by challenging thevery terms of capitalism Since capitalists will always seek to maximise theirprofits, the ultimate interest of workers is to abolish capitalism altogether.Although the labour movement has not shared these insights in their entirety,some version of them has almost invariably animated ideas of trade unionism Inparticular, the very idea of labour law as a distinct legal field is premised uponthe inequality of bargaining power between employer and worker, and the solidaritythatflows from this inequality.59

b Class struggle, imperialism and the law

Clearly, the struggles described above come to the fore in this case In essence, thecase concerns the relationship between labour and capital in British capitalism, andthe role that the State plays in mediating their struggle First, there is a conflictbetween one set of employers, Hydrex, and a collective organisation of workers,the RMT Alongside this are the interests of another set of employers– Jarvis Plc –which would be undermined through secondary action Second, the British Stateintervened on behalf of capital, in order to restrain worker militancy Finally, theECtHR declined to restrain the British State and capital as against the working class

in this instance What we have here is a clear example of the law allowing the ruleclass to pursue its interests in the class struggle

Beyond these immediate – and important – class interests, we can detect ther complexities The survey of the ECtHR’s case law above indicates that theEuropean working class has achieved a number of victories using Article 11.Thus, in cases likeWilson, the ECtHR recognised that Article 11 encompassedthe right to strike And, of course, inDemir and Bakayra the Court seemed torule quite strongly in favour of trade union action

fur-What might account for the difference betweenDemir and Bakayra and R.M.T.?One obvious difference is the relative positions of Turkey and the United Kingdom

59 V Kumar, ‘Rethinking the Convergence of Human Rights and Labour Rights in national Law: Depoliticisation and Excess ’ in R Buchanan and P Zumbansen (eds), Law in Transition: Human Rights, Development and Transitional Justice (Hart 2014) 127.

Inter-A Marxist approach 25

In terms of the global capitalist order, the United Kingdom is by far the moreadvanced capitalist power Historically speaking, it was one of the first capitalistsocieties, and constructed a global capitalist empire.60In so doing, it also played

a key role in shaping the structures and processes of international law Whilst theUnited Kingdom is much reduced from those days, it nonetheless remains one ofthe most advanced capitalist powers, and continues to be an imperial presencethroughout the globe.61By contrast, Turkey is– at best – a subordinate imperialpower, that was integrated (relatively) late into the global capitalist order on

a racialised basis.62On this reading, we can map the level of surveillance that thecourt is willing to exercise over domestic arrangements onto the relative positionsthat States occupy within global capitalism Whilst the Court is therefore willing toside with the Turkish working class, it is less willing to do so in the face of a moreadvanced capitalist State

Alongside this, we can invert the Court’s own reasoning in the case itself.The Court argued that theR.M.T case could be distinguished from Demir andBakayra on the basis that secondary action could not be conceptualised as‘core’

to Article 11 By contrast, Marx’s analysis shows us that the prospect of workersbanding togetheris at the core of the conception of the workers’ movement Inthis sense, then, secondary action is much more threatening to the status quo,hence the Court’s willingness to uphold a prohibition on secondary action.63

c Ideology and collective subjectivity

Ultimately, however, an account focusing purely on how class struggle shapesthe content of the law is not a convincing account of this case Whilst the Court

is – for various reasons – invested in the status quo, we also know that classstruggle is not expressed through the law in an unmediated way In particular,although we know that judges themselves are drawn from particular classstrata,64 it cannot be said that they simply choose rules in a way that reflectstheir class interests

That being said, it is also clear that the way in which the Court ised the right to strike, and the right to collective bargaining, was one thatserved to disempower the trade union movement and– ultimately – buttress the

conceptual-60 PJ Cain and AG Hopkins, ‘Gentlemanly Capitalism and British Expansion Overseas II: New Imperialism, 1850 –1945’ (1987) 40 The Economic History Review 1.

61 T Nor field, The City: London and the Global Power of Finance (Verso 2016).

62 R Knox, ‘Valuing Race? Stretched Marxism and the Logic of Imperialism’ (2016) 4 London Review of International Law 81.

63 J Youngdahl, ‘Solidarity First: Labor Rights Are Not the Same as Human Rights’ (2009) New Labor Forum 18, 31.

64 See J A G Grif fith, The Politics of the Judiciary (Manchester University Press 1977) for the seminal account of this in the British context, on the ECHR see E Voeten, ‘The Impartiality

of International Judges: Evidence from the European Court of Human Rights ’ (2008) 102 American Political Science Review 417, 418 –423.

26 Robert Knox

status quo In this way, we might interpret the judgment through the lens ofideology, insofar as the framework that the Court used to understand tradeunion activity frames that activity in ways that are ultimately compatible withthe maintenance of capitalist social relations We can see this most clearly inexamining how the Court has conceptualised trade unions through the lens ofArticle 11 It is crucial to note that under the Convention, trade unions are notaccorded any special or particular status Rather, the Convention subsumes tradeunion activity underneath a more general ‘freedom of association’ possessed byindividuals This conception is crucial in casting the role of trade unions in

a way that is compatible with capitalist social relations

In‘The Modern Prince’, Antonio Gramsci formulated a theory of the ive organisation of classes For Gramsci, when understanding the organisation ofclass struggle, it was important to distinguish between different levels of‘homo-geneity, self-awareness, and organisation’.65 Gramsci specifically distinguishedbetween three conceptions The first of these is what he called the ‘economic-corporate’ level On this level, ‘members of a professional group’ – and specificworkplaces – understand that they share a set of common interests and mustorganise to defend those interests.66 The second level is when ‘consciousness isreached of the solidarity of interests among all the members of a social class’.67

collect-This is what Lenin dubbed‘trade union consciousness’,68

whereby the members

of a particular class understand their common position in the mode of tion and unite to fight their own interests.69

produc-The third and final level is thatwhich Gramsci dubbed ‘hegemonic’: here, a social group realises that its inter-ests go beyond their economic class and seek to construct a wider political pro-ject that encompasses‘the interests of other subordinate groups too’.70

Each of these modes of organisation corresponds to a particular type of ical engagement The economic corporate level is compatible with the mainten-ance of capitalism It entails workers in a given workplace– or sector – bandingtogether to gain higher wages or better working conditions, without challengingthe structures of capitalism By contrast, trade union consciousness involvesmoving beyond this and posing ‘the problem of the State’.71

polit-By understandingthe working class as a coherent social grouping with a set of common interests,

it opens up the possibility that the political and economic structures need to betransformed in order to advance those interests Such a conception does notnecessarilyfundamentally challenge those structures, but can involve quite widereaching reforms The social democratic welfare-States of the twentieth century

65 A Gramsci, Selections from the Prison Notebooks (Lawrence & Wishart 1971) 181.

were the most obvious outcome of such a form of collective organisation Thefinal, hegemonic, level is one which fundamentally challenges the prevailingmode of production: here, the working class recognises that its interests are fun-damentally opposed to capitalism and seeks to construct a political coalition thatwill overthrow capitalist social relations.

During the history of the trade union movement, all three of these tions have been active Thefirst conception has been associated with a narrow,conservative trade unionism, the second with social democratic trade unionism,and the third with communist or revolutionary trade unionism Although thefirst conception can threaten specific capitalists, it does not threaten the system

concep-as a whole By contrconcep-ast, the second and third conceptions pose structural lenges to capitalism Generally, the second conception of trade unionism hasonly been permitted in order to forestall deeper social change.72

chal-Crucially, the latter two conceptions of organisation are collective in nature.They understand trade unions as specific collective organisations based on thesolidarity between different members of certain social groups This is in markedopposition to how the ECHR has conceptualised trade unions This becomesparticularly clear when we examine the text of Article 11:

Everyone has the right to freedom of peaceful assembly and to freedom ofassociation with others, including the right to form and to join trade unionsfor the protection of his interests

In light of Gramsci’s discussion of the different modes of collective organisation,there are two points of note The first is that the ECHR’s conception of thetrade union is a fundamentally individualistic one The ‘right’ to form a tradeunion and take industrial action is rooted in an individual’s right to free associ-ation Specifically, trade unions are understood as vessels for the protection ofthe interests of individuals Second, and as a consequence of this individualism,trade unions are abstracted from their material context Under Article 11 there

is nothing distinctive or specific about trade unions; rather, they are understood

as simply any other civil society organisation that an individual might join topromote his or her interests There is no sense of the special role that tradeunions might be called upon to play in a capitalist society, or that they might beattached to a wider political project for the contestation of capitalist socialrelations

Thus, irrespective of their subjective intentions, or particular class positions,judges in the ECHR have understood trade unions through a lens which rendersthem fundamentally amenable to the preservation of capitalism Trade unions areunderstood as civil society collectives that enable their members to pursue andmaximise their individual interests, and so are at best ‘economic-corporate’

72 W Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (2nd Revised edition, Verso 2017).

28 Robert Knox

bodies This particular lens undergirds how the Court understood secondaryaction in R.M.T v UK The Court – somewhat patronisingly – stated that ‘theapplicant has adduced cogent arguments of trade union solidarity’, but that theseultimately were not convincing because the key role of a trade union was simply

to protect the interests of its individual members In such a conception,ity’ can only ever be an ancillary function of a trade union

‘solidar-d Depoliticising the strike

The individualistic and abstract way in which the Court conceptualises tradeunions also means that it depoliticises the issues at play What is ultimately atissue in R.M.T v UK is a matter of class conflict There is a direct conflictbetween Hydrex – which aims to maximise its profits through exploiting itsworkforce – and the RMT, which seeks to build the power of its members inthe workplace At the same time, this class conflict is also clearly fought out

at the level of the British State over the British legal system– as laws regulatingthe ability of trade unions to strike will have a crucial effect on the power of theworking class

As such, R.M.T v UK involves profound political-economic questions ofpower and distribution Yet, the ECtHR is barely able to touch upon theseissues, recasting the conflict as a clash of rights This can very clearly be seen inthe Court’s decision – raised in R.M.T v UK – in the case of UNISON v theUnited Kingdom In that case, in which an application by the trade unionUNISON was ruled inadmissible, the Court argued that a restriction on theright to strike could fall under Article 11(2) insofar as that restriction wasdesigned to protect the rights of employers Specifically, the Court argued that:[T]he employer UCLH could claim that its ability to carry out its functionseffectively, including the securing of contracts with other bodies, might beadversely affected by the actions of the applicant and accordingly the meas-ures taken to prevent the strike concerned the rights of others, namelythose of UCLH.73

The RMT invited the Court to reconsider this case, arguing that – in the light

of subsequent case law – the very point of a strike was to inconvenience anemployer and, as such, the rights of the employer could not protected underArticle 11(2) The Court avoided directly addressing the question, instead dis-tinguishing the case on the basis that it concerned secondary action, which:

[H]as the potential to impinge upon the rights of persons not party to theindustrial dispute, to cause broad disruption within the economy and toaffect the delivery of services to the public Accordingly, the Court is

73 UNISON v the United Kingdom (Dec.), no 53574/99, ECHR 2002-I.

A Marxist approach 29

satisfied that in banning secondary action, Parliament pursued the legitimateaim of protecting the rights and freedoms of others, not limited to theemployer side in an industrial dispute.74

Crucially, although the Court did not endorse the precise reasoning ofUNISON, it continued to conceptualise industrial action not as a political-economic phenomenon, but as a clash of rights The RMT’s right to take indus-trial action was in conflict with the rights of employers not party to the dispute,and the wider rights of the public to receive essential services Accordingly, thecourt was able to depoliticise the conflict, and remove it from its wider context

By re-framing the issue as simply a clash of abstract ‘rights’, the Court wasable to obscure the politics of the legal framework in the case and the way inwhich actors in the dispute were consciously deploying them as a tactic in classconflict In particular, a common tactic of employers to reduce the bargainingpower of their employees is to reduce the size of their workforce, and fragmentdifferent parts of the production process.75This was very evidently at play in thecase of the transfer of the RMT workers to Hydrex, who – given their smallernumbers– would struggle to organise and improve their working conditions inany future trade union struggles The RMT attempted to raise such issuesthrough the rubric of efficacy – stating that it was unable to effectively actualiseits right to strike owing to the small size of the group of workers concerned.But the court, focusing on the clash of rights and not on the political-economictactics of class conflict, stated that the right to strike does not ‘imply a right toprevail’

More importantly, by re-framing trade union action as a‘clash of rights’, theCourt also advances claims about the wider effect and role of strikes In theCourt’s telling, the RMT is simply a body that exists to represent its members’individual interests In such a conception, insofar as the RMT exercises its rightsthese will come into conflict with the rights of the wider public, since it will

‘disrupt the economy’ and impact on the delivery of public services

This enables the Court to gloss over the contested political-economic effect

of industrial action Once we situate them within their wider political-economiccontext, trade union actions cannot simply be seen as ‘disruptive’ First, on

a very direct level, trade unions, particularly those in the public sector, oftenargue that their industrial action is taken for reasons of safety and quality Theyseek to take action in order to protect the public from the effects of cost-cutting Second, trade union action – particularly solidarity action – canstrengthen the position of the working class as a whole by demonstrating thepower of collective action Finally, trade unions are not just vehicles to representtheir members’ interests In both a historical and contemporary sense they arepart of a wider labour movement that seeks to transform – and sometimes

74 R.M.T v UK (n 37) [82].

75 H Braverman, Labor and Monopoly Capital (2nd edition, Monthly Review Press 1974).

30 Robert Knox

overturn– capitalist social relations Victory in industrial action helps strengthenthat movement, and so– again – benefit the wider working class All of this sug-gests that we cannot simply understand – as the Court does – industrial action

as disrupting people’s lives

However, the Court is incapable of understanding any wider social benefitsthat might result from industrial action Since the Court re-casts issues of classconflicts as clashes of rights, it is unable to examine the broader class conse-quences of strike action In the Court’s understanding of the world, capitalistsand workers are not understood as members of classes, but rather are collapsedinto rights-holders with a set of abstract and general rights These rights canand will be violated by industrial action It then singles out specific groups ofworkers taking action as exercising their ‘rights’ as against these rights-holders.The issue is then balancing these two sets of abstract clashing rights Here,there is no room for the idea that industrial action might– because of the simi-lar class position of those taking such action and the majority of society– have

a positive transformative effect In this depoliticised context, industrial actioncan only be a bad thing – a disruption and prima facie violation of rights –which might be justified as an exercise of individual rights

e Depoliticising the law

Perhaps, the ultimate expression of this depoliticisation can be found in the way

in which the Court recounts the development of British labour law According

to the Court, the Employment Act 1980 was designed to ‘strike a new balance

in industrial relations, in the interests of the broader economy, by curbing whatwas a very broad right to take secondary action’.76

Ten years later, thement of the day considered that even in its more limited form secondary actionposed a risk to the economy and to inward investment in the country’s eco-nomic activity’,77

‘Govern-leading it to withdraw protection from even limited secondaryaction Since this ban had remained for‘over twenty years’, there was ‘a demo-cratic consensus in support of it, and an acceptance of the reasons for it, whichspan a broad spectrum of political opinion’.78

The story the Court tells is very much an abstract and apolitical one tially, the ‘economy’ figures as a technical domain, in which a neutral – andtechnocratic – government intervenes Viewed in this light, the changes inlabour law are simple apolitical readjustments in order to achieve growth.79Whilst the Court notes that‘assessment was sharply contested at the time by the

A Marxist approach 31