VOLUME 1 ISSUE 1 - SPRING 2012
Beyond Justiciability: Economic, Social and Cultural Rights on the advance as exponents of a dignified humanity by Helene Albrecht Plasticity, Recycling and Procrastination: The Dialectic between Resistance and Change by Pravin Jeyaraj Gender, Hierarchy, Power and Inequality: What Sociological Theory Adds to our Understanding of Sex-Discrimination...by Dr Lisa Webley
Foreword to the Inaugural Volume of the Westminster Law Review I am delighted to have been asked to write a short foreword to the inaugural volume of the Westminster Law Review. The journal has been set up by and for law students to showcase high quality research lead publications written by law students at all levels of their study, with short contributions from law academics and practitioners. It is particularly gratifying that at a time when there is debate about the importance of high quality research and writing skills for legal student and practice, strong scholarly work has been produced by our students. High quality publications provide an essential function: they challenge orthodox thinking, develop theory, and help to shape policy and practice. Most of our academic staff engage in research and publication and some are serving as academic advisers to the Westminster Law Review. Generally, the School has an international reputation in international and comparative law, socio-legal research and international commercial and financial law. In the Research Assessment Exercise 2001 the School was awarded five, one of the top classifications and in the 2008 Exercise 85 per cent of the research submitted was rated â€˜international qualityâ€™. It is very pleasing to see that our students are also engaged in promoting research and publications through their own initiative of the Law Review, established and run by them. The University of Westminster has a long and illustrious history of helping to educate and inform professional life. Our alumni include presidents of the Law Society, judges and QCs, as well as young lawyers or barristers of the year. In 2006 alone, eight former students became QCs. Others, often our Masters and PhD students, have chosen careers in international tribunal and commercial institutions or as academics, We are rightly proud of all our former students, and keep in touch with them through an active alumni association . The most significant indication of the quality of the teaching provided by the School of Law is the continuing success of our current and former students. Large numbers of our graduates enter the legal profession, others too academe, and many are highly successful. I wish the Westminster Law Review every success and look forward to reading future volumes. Professor Andrew Boon Dean, University of Westminster School of Law 23rd January 2012
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Mission Statement of the Westminster Law Review The Westminster Law Review has been developed by law students at the University of Westminster as a journal that functions as a research instrument for academics and professionals in the legal field. As an initiative of the University of Westminster Law Society, an organisation under the umbrella of the Student Union, this comprehensive publication combines high quality academic works and critical reviews with the aim of providing primarily capable student authors with a viable forum to present and publish their findings. The Review shall have 2 issues per academic year and be available electronically. This journal seeks to be distinguished by its nature and breath and to maintain its position as a publishing outlet of choice for undergraduate, postgraduate and doctoral law students and academics, from both the University of Westminster and beyond. To achieve this endeavour, the University of Westminster Law School and Law Society shall endeavour that the editorial team of the Westminster Law Review is of the highest academic standard, support facilities are sufficient in meeting current and future requirements and that the selection of works is impartial, objective and unbiased.
Saad Minhas, Editor-in-Chief 23rd January 2012
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Biographies of the Co-founders Faces behind the launch of Westminster Law Review Saad Minhas, Editor-in-Chief Saad is a final year LLB Law Student at the University of Westminster. He has also been voted President of the university’s Law Society Executive for 2011-2012, following his success as Course Representative in his first year and Vice President of the Law Society in his second year. Previously, he has studied Conflict Resolution at the University of Toronto and volunteered in various roles including youth mentorship and legal advocacy. As the Law Society’s first academic journal, The Westminster Law Review is very much his brainchild. Saad also has over three years’ professional experience in infrastructure consulting as a Commercial Specialist. Shamima Chowdhury, Executive Director Shamima Chowdhury is a final year LLB Law student at the University of Westminster. She has completed numerous work experience and internships with major law firms, including Pinsent Masons LLP and 29 Bedford Row Chambers. Sherif Elgebeily, Academic Editor Sherif Elgebeily is a Doctoral Researcher in International Law at the University of Westminster, focusing on the United Nations Security Council and the global rule of law. Prior to this, he was awarded an MA in International Human Rights Law summa cum laude from the American University in Cairo and undertook several internships including the United Nations Department of Political Affairs in New York, the European Commission in Brussels and the Child Law Centre in Pretoria. Pravin Jeyaraj, Academic Editor Pravin Jeyaraj is a Doctoral Researcher in Environmental Law at the University of Westminster and he is interested in the UK government's waste and recycling policy. He has previously worked in property law, corporate social responsibility and as a journalist and has been awarded an MA in Journalism from the University of Westminster.
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Beyond Justiciability: Economic, Social and Cultural Rights on the advance as exponents of a dignified humanity1
In the course of the Vienna World Conference in 1993, the UN Committee on Economic, Social and Cultural Rights Committee2 addressed the unsatisfactory role economic, social and cultural rights have played in political and societal awareness since their codification and complained that ‘violations of civil and political rights continue to be treated as though they were far more serious and more patently intolerable than massive and direct denials of economic, social and cultural rights.’3 While outrages as a reaction to economic and social shortcomings in times of austerity increasingly form part of our daily lives, not to mention their relevance in the face of environmental disasters4, public consciousness that these conditions are addressed in forms of legally binding obligations in international and regional treaties can be found wanting, if not lacking altogether. According to Leckie, it is still commonplace, that ‘when people die of hunger or thirst, or when thousands of urban poor and rural dwellers are evicted the world still tends to blame nameless economic or ‘developmental’ forces, or the simple inevitability of human deprivation, before placing liability at the doorstep of the state’.5 However, the above mentioned firm legal basis provides an anchorage with potential for new and enhanced discussions as to the scope of socio, economic and cultural rights combined with an increasing recognition of available options for their overall enforcement at national levels. This article seeks to analyse the current situation of socio-economic rights in a complex setting and therefore adopts a bipartite structure. In its first part it looks at the history and reasons for a division of rights since their codification in the International Bill of Rights 6 and their congruent differentiated implementation and adjudication methods. Focus lays on the comprehensive work the CESCR7 has performed while safeguarding the universality of all rights and their interdependencies. An illustration of the diversity and creativity in responses of legal scholars and practioners follows in regard to judicial enforcement of Economic, Social and Cultural Rights8. Yet,
Helene Albrecht, LLB Graduate (2011), University of Westminster Law School & MA Student, University College London, University of London 2 Hereafter the CESCR. 3 rd HJ Steiner, P Alston and R Goodman, International Human Rights in Context (3 edn, Oxford University Press 2010) 264. 4 Mario Joseph, ‘Testimony of Mario Joseph’ (Delivered to the Inter-American Commission on Human Rights 23 March 2010) http://www.chrgj.org/projects/docs/Testimony_MJ-English-Final.pdf accessed 10 December 2011. 5 S Leckie, ‘Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights’ in J Rehman, ‘International Human Rights Law’ (Pearson 2010) 143. 6 The International Bill of Rights consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR); for a detailed exploration see Javaid Rehman (n 4) 73-180. 7 The renamed Committee on Economic, Social and Cultural Rights http://www2.ohchr.org/english/bodies/cescr accessed 10 December 2011. 8 Hereafter called ‘ESCR’.
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this highly topical justiciability debate9 also suggests that socio-economic rights cannot only be accommodated in legal and administrative fields but rather demand responsibilities from further players.10 Consequently, the second part of the paper looks at shifts in attitudes towards human rights law which may involve profoundly altering societal behaviour. New actors such as corporates and financial institutes and movements such as feminism and regionalism contribute to a new role economic, social and cultural rights could, and indeed should, play in the enhancement and protection of our humane future. The multi-layer approach embraces a change which is already on the horizon and which has the potential to be fully developed in order to overcome the unsustainable position everybody’s economic and social rights still obtain at present.
Part 1: The divided regime of civil and political rights and economic, social and cultural rights 1. The drafting process of the Universal Declaration of Human Rights11 As is well-known, we owe the first international document universally embracing human rights to the atrocities of the Second World War.12 However, origins and causes for the war as such cannot exclusively be reduced to the abysses of human nature: the economically disastrous situation after the First World War, particularly in Germany, virtually induced a second catastrophe. The British economist JM Keynes 13 depicts a clear analysis of the disastrous economic situation of Europe pre World War 1 accruing from incapacities to manage accumulated wealth and capital markets while facing growing populations and food shortages; the author being official representative and Chancellor of the Exchequer on the Supreme Economic Council resigned ‘when it became evident that hope could no longer be entertained of substantial modification in the draft terms of peace.’14 Despite of this background, debates as to whether civil and political rights have to be warranted first in order to protect socio-economic well-being or the other way round accompanied the drafting process of the Universal Declaration of Human Rights.15
C Grossman, ‘Prologue’,  22 AUILR 1 referring to the Annual Human Rights Award sponsored by the Academy on Human Rights and Humanitarian Law of Washington College, in 2006 under the heading ‘Justiciability of Economic, Social and Cultural Rights: Legal Approaches and the Contributions of Case Law’. 10 S Leckie (n 3): ‘Moralists used to complain that international law was impotent in curbing injustices of nation-states, but it has shown even less capacity to rein in markets that, after all, do not even have an address to which subpoenas can be sent. (...)As the product of a host of individual choices or singular corporate acts, markets offer no collective responsibility. Yet responsibility is the first obligation of both citizens and civic institutions’. 11 Thereafter ‘UDHR’. 12 K Cronin-Furman, ‘60 years of the Universal Declaration of Human Rights: Towards an Individual Responsibility to protect’  22 AUILR 175-198 13 JM Keynes, The Economic consequences of the War (Harcourt, Brace and Howe 1920) 9-26; see also RKM Smith, International Human Rights Law’ (2010) p 303: ‘The drafter of the Universal declaration were mindful to the role high levels of unemployment played in the rise of the Nazi Regime in Germany, and indeed, in a number of other civil revolts. 14 ibid, Preface. 15 J Morsink, ‘The Universal Declaration of Human Rights-Origins, Drafting & Intent’ (Pennsylvania Press 1999).
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The arguments took three major points of view which can be traced into current discussions. The first saw the foundations of all rights in fundamental freedoms, such as the freedom of speech, without which no other rights could be developed 16; the view has in recent years most famously been expressed by Amartya Sen, reiterating that ‘no substantial famine has ever occurred in a country that is independent, that has systematic multiparty elections, that has opposition parties to voice criticisms, and that permits newspapers to report freely and to question without extensive censorship the wisdom of current government policies.’17 A second view admitted that political rights come first; however, as civilisation had moved on to be accommodated in complex economicsocial systems, ‘the declaration of the rights of men must be extended to the economic and social fields.’18 A third view polarised in favour of socio-economic rights stating that ‘the common man was only interested in freedom of speech (...) when he was protected against poverty’19. This exactly reflected F.D. Roosevelt’s famous speech in 1941 where he proclaimed the ‘freedom from want’ as one of the four freedoms and explained that ‘[we] have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.’20 Although in the drafting process of the UDHR the order and emphasis of both civil political rights and economic social rights were debated in such vivid terms, the participants were convinced that ‘all articles in the declaration were equal regardless of their position’; for Marsink who meticulously describes the ‘travaux preperatoires’ surrounding the drafting process there was no ‘lingering doubt about the drafters’ belief that there were not two kinds of human rights(...)’,rather the understanding that ‘each alleged set constantly fed on each other and cannot be separated out.’ 21 However, the self-understanding and consciously taken unity of the UDHR as a non-binding instrument was not confirmed in the decision to draw up two successive covenants, the ICCPR and the ICESCR22, which were intended to finally confer legally binding force to the UDHR’s articles, constituting ‘the bedrock of the international normative regime for human rights’.23 It has to be recalled that although at the drafting stage of the Covenants tribute was paid to different ways of interpretation of all rights under different political regimes, the separation process was not meant to up- or downgrade a particular class of rights.24 2. The Bill of Rights and the specific nature of socio-economic rights
Ibid, 223. M Darrow, ‘Between Light and Shadow’ (Hart Publishing 2003) 5-7. 18 Henri Laugier, assistant of the Secretary-General in charge of social affairs quoted in J Marsink (n 14) 223, 19 Ibid 223-4, quoting the Russian delegate Klekovkin. 20 Steiner and Alston (n 2) 270; see also C Sunstein, ‘The second bill of rights-FDR’s unfinished revolution and why we need it more than ever’ (Basic Books 2004). 21 Marsink (n 14) 237. 22 M Craven, ‘The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development’ (Oxford: 1995) 16-22. 23 Steiner and Alston (n 2) 263. 24 Para 11 of the ‘Annotations’ supra 13: ‘A civil or political right might well be a ‘legal’ right under one regime, an economic, social or cultural right a ‘legal’ right under another(...)’. 17
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In the ‘Annotations on the Text of the Draft International Covenants on Human Rights’25 the entire catalogue of later often-cited objections against the CESCR is explored: while ‘civil and political rights were enforceable, or justiciable, or of an absolute character’, economic, social and cultural rights ‘were not or might not be’;26 while the former were rights which would protect from State interference, the latter urged the State to take positive actions; while civil and political rights were directly enforceable legal rights, economic, social and cultural rights had to be programmatic, meaning that they required long-term strategies and observance for their promotion. The distinctions manifest themselves in the wording of Article 2 of each of the Covenants and have subsequently led to different forms of implementation: while under the ICCPR State parties are obliged to ‘respect and ensure’ the rights and to ‘provide effective remedies’ in case of violations27, provisions under the ICESCR presume that the State parties ‘take steps, individually and through international assistance and co-operation, especially economic and technical , to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measure’.28 However, some observations of the specific nature of socio-economic rights identify overlaps and commonalities between both Covenants and further emphasise their common ground and purpose. Universality The right of self-determination is the starting point of both Covenants. The article in itself unifies civil-political and socio, economic and cultural aspects when it provides that all peoples shall ‘freely determine their political status and freely pursue their economic, social and cultural development.’ 29 In addition it also covers the category of 3rd generation rights and in this capacity underlines the universality of all classes of rights, albeit with parallel implications for its judicial enforcement: for the Human Rights Council ‘it seems certain that violations of Article 1 cannot be the subject of a complaint under the first Optional Protocol’ of the ICCPR; the Council has rather ‘ taken the position that as a right belonging to peoples, it is not open to individuals to claim to be victims of the right to self-determination.’30 However, it has the potential to become increasingly significant in the interplay of economic organisation and human right protection as expressed in the ‘Declaration on the Establishment of a New International Economic Order’ that ‘no state may be subjected to economic, political or any other type of coercion to prevent the free and full exercise of this alienable right.’31 The document provides for the ‘right of every country to adopt the economic and social system that it deems the most appropriate for its own development’ which entails ‘regulation
UN Doc A/2929, extracts reprinted in Steiner (n 2) 271. Ibid 272. 27 Art 2(1) and Art 2(3) ICCPR respectively http://www2.ohchr.org/english/law/ccpr.htm accessed 11 December 2011. 28 Art 2 (1) ICESCR, http://www2.ohchr.org/english/law/cescr.htm accessed 11 December 2011 29 Rehman (n 4) 144. 30 Ibid 86-8. 31 General Assembly Resolution 3201 of 1 May 1974, para 4 (e) http://www.un-documents.net/s6r3201.htm accessed 11 December 2011. 26
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and supervision of the activities of transnational corporations by taking measures in the interest of the national economies of the countries’.32 For Scott, universality of classes of rights does not become clear in their interpretation in an ‘abstract sphere’ but rather in ‘integrated consideration’ and ‘cooperative institutional experimentation’ of different treaty bodies.’33 He finds the interplay of particularity and universality of rights in different contexts: the prohibition of ‘discrimination based on race, colour, and related grounds’ is to be found in numerous treaties;34 the same is true for protective children rights and the rights of women.35 Thereby understanding of the particular of a right provision is enhanced in the light of the universal, and vice versa. Interdependencies The rights to housing, health, education and work are cornerstones of each government’s policy and, if decided on by an unelected judiciary, raise important problems of the separation of powers; they bring about a radical nature of [the] new responsibilities for judges that would be created by this encroachment into the legislative sphere.’36 However, these rights also dovetail with each other and with other fundamental rights: without a right to adequate housing, a right to health may be jeopardised; without a right to work neither the right to health nor to housing are sufficiently secured; the refusal of any of these rights may finally entail the loss of the right to life or the right to respect for family life. Under the European Convention the House of Lords held that a State’s failure to make welfare provision may be breaching a civil political right; in other words a ‘complaint about a wholly insufficient amount of pension and other social benefits may, in principle raise an issue under Article 3 of the Convention which prohibits inhuman or degrading treatment.’ 37 As illustrated below, these overlaps have fuelled lawyers’ imagination and led to creativity in decisions and analysis; they have otherwise re-enforced the criticism of the uncertain and open-ended nature of socio-economic rights.38 The positive-negative rights argument As has been mentioned above, fundamental rights are regarded to fall into different classes which distinguish them from each other. Human rights law often refers to ‘three generations’ rights putting 32
Ibid para 4 (d) and (g) respectively. C Scott, C ‘Reaching beyond (without abandoning) the category of ‘economic, social and cultural rights’ 21 HRQ(1999) 650 34 Ibid, 651-4; those rights are entailed in the Convention on the Elimination of All Forms of Racial Discrimination (CERD), in Articles 2(1), 3 and 26 of the ICCPR, Article 2(2) and 3 of the IXESCR, and Article 2(1) of the Convention on the Rights of the Child (CRC). 35 Art 10(3) of the ICESCR, Art 24 of the ICCPR and more concretely in the CRC. 36 E Wiles, ‘Aspirational principles or enforceable rights? The future for socio-economic rights in national law’ (2010) 22 AmUIntLRev 42-45. 37 J Kenny, ‘European Convention on Human Rights and Social Welfare’, 5 EHRLR (2010) 495-503; Case Larioshima v Russia (App. No 56869/00) Judgment of 25 June 1999. 38 Steiner and Alston (n 2) 275: ‘It is often suggested that the nature of the obligation under the ICESCR is so onerous that virtually no government will be able to comply’. 33
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civil and political, socio-economic and group rights in a successive order.39 As mentioned above, the most common distinction separates positive from negative rights: those rights which impose the obligation on States not to interfere in the exercise of these rights by their citizens are called ‘negative rights’, whereas rights requiring States to take specific action for their realisation accordingly are ‘positive rights’.40 The aversion to positive rights derives on the one hand from belief in the powers of free and selfregulating markets41 and on the other hand from fears of opening floodgates for a redistribution of wealth if States’ interference were to protect socio-economic rights.42 However, it might well be that costs are rather re-distributed than avoided. Until recently a country like Sweden having one of the strongest protections of socio-economic rights had very little litigation. Since the government has started to cut back social welfare expenditure, the ‘courts have recently began to take a more assertive role in adjucating matters such as housing’.43 It is obvious that ‘the enforcement of civil and political rights also requires resource expenditure’; the right to a fair trial involves cost for legal aid and can in general be ‘a financially demanding obligation.’44 What is more, the right to housing can be seen as a negative right if the court is asked to avoid evictions whereas the right to life imposes a positive obligation if it is about life-saving medication.’ 45 The implementation of the ICESCR As mentioned above the fundamental difference between the ICCPR and the ICESCR relates to their respective legal and programmatic status,46 the latter of which must often be conceived in a complicated structural and political setting according to the context of specific substantive rights. Though both Covenants accommodate a submission procedure for State reports,47 only civil and political rights are currently supported by an individual complaints procedure.48 The monitoring systems of both Covenants have been revised several times and may raise concern as to their efficiency.49 However, while the ICESCR is deemed to obtain the weaker part of both covenants as it 39
Rehman (n 4) 9-10. C Mak, ‘Fundamental Rights in European Contract Law’ by (Wolters Kluver 2008) 6-9 provides a brief analysis. 41 C Sunstein, ‘Against positive Rights’ (1993) in Steiner and Alston (n 2) 320: ‘It seems clear that Eastern European countries should use their constitutions to produce two thing: (a) firm liberal rights- free speech, voting rights, protection against abuse of the criminal justice system, religious liberty, barriers to invidious discrimination, property and contract rights’ and (b) the preconditions for some kind of market economy (...) Governments should not be compelled to interfere with free markets.’. 42 Willis . (n 35) 44. 43 Ibid 45. 44 C Sunstein, C, ‘Designing Democracy: What Constitutions do (2001)’ in Steiner and Alston (n 2) 319. 45 Human Rights Committee’s General Comment No 32CCPR/C/32; for further ‘arguments over the superiority of rights’ see Rehman (n 8) 142-3. 46 Art 2 of both Covenants (n 26); interpreted in the Limburg Principles on the Implementation of the ICESCR para 6, UN doc. E/CN.4/1987/17, Annex; 9 HRQ Vol. 9 (1987)122–135. 47 Art 40-42 ICCPR and Art 16-23 ICESCR. 48 Steiner and Alston (n 2) 121: the third, ‘and by far most significant, insofar as individual are concerned’ mechanism. 49 H Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2007) 7HRLR 7. 40
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is not represented by a treaty-based body50, increasing competence and activities of the CESCR have made a virtue of necessity: starting with the Limburg Principles51, the CESCR created a considerable body of jurisprudence.52 Its progressive tenor becomes particularly apparent in its General Comments on particular provisions of the ICESCR which clearly define both the obligations for State Parties 53 and need for remedies at domestic courts54. There are other comments addressing controversial and sensitive subjects such as the right to food, the right to water 55 and the to date neglected class of cultural rights.56 The Limburg Principles provide clear guidelines to the required extent of State Parties’ commitment, the need for involvement of the broader public, the need for quantitative information and indicators and the wish to be supported by economic and technical co-operation; 57 they ’have proven very useful to human rights advocates over the past of the norms of the IESCR within domestic legal spheres.’ 58 Nevertheless, in 1997 experts felt urged to refine and expand on these guidelines as social conditions since the adoption of the Limburg Principles had aggravated59. Precise figures point to alarming deficiencies in social rights protection worldwide, on grounds of which the experts’ analysis contrasts economic and political developments since the end of the Cold War with concurrent achievements in the emergence of jurisprudence in this area. While the decrease in State power related to an unqualified reliance on the functioning of the market is undeniable, accountability for social rights obligations have to be addressed.60 Subsequently the focal point of the principles is the reinstatement of ‘the three-pronged obligations of states under international law’,61 namely ‘the obligations to respect, to protect and to fulfil’62 and 50
Steiner and Alston (n 2) 85: ‘While it was possible to install a scheme of implementing civil and political rights through legislation, the same was not thought to be feasible for social and economic rights.’ While for the implementation of civil-political rights The Human Rights Committee is directly in charge of the ICCP, the ICESCR is represented by the in 1987 established Committee of Economic, Social Rights and Cultural Rights (CESCR). 51 (n 45) 52 http://www2.ohchr.org/english/bodies/cescr/comments.htm accessed on 12 December 2012 53 General Comment No 3 ‘The nature of States parties’ obligations’. The CESCR interprets the key elements of Art 2(3) ICESCR namely “to take steps”, “by all appropriate means” and “achieving progressively the full realisation” in Para 2, 3-8 and 9 respectively. 54 General Comment No 9 ‘The domestic application of the Covenant’. 55 General Comment No 12 and 15 ‘The right to adequate food’ and ‘The right to water’ respectively, both based on Art 11 of the ICESCR and setting normative guidelines, indicators and benchmarks. 56 General Comment No 21; see also Rehman, J (n 4)165-6: ‘cultural rights within the Covenant are [therefore] the poor relation of social and economic rights’ although ‘culture represents a quintessential part of human existence; the absence of a cultural association makes it difficult to forge common identities and establish social values.’ 57 Para 72; the Principles also specify situations when States will act in violation of the Covenant. 58 S Leckie (n 4) 89. 59 ‘The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ http://www1.umn.edu/humanrts/instree/Maastrichtguidelines.html para 1. 60 Ibid para 2. 61 A McBeth, ‘International Economic Actors and Human Rights’ (Routledge 2010) 43-44. 62 Ibid.
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to connect these to ‘obligations of conduct and of result’ for States whereby the ‘margin of discretion’ and ‘minimum core obligations’ shall not refrain from taking these responsibilities.63 In contrast, the latter have to be extended towards non-state entities and international organisations in situations of alien domination.64 Access to remedies should be facilitated by new standards.65 While being sensitive to States’ political configuration and individuality,66 the CESCR reserves for itself ‘the ultimate determination as to whether all appropriate measures have been taken’ and requests the ‘provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable.’ 67 However, in General Comment No. 9 from 1998,68 profound difficulties and conflicts are addressed which impact ‘the duty to give effect to the Covenant in the domestic order.’69 Facing problems such as complete failure to provide anything, transforming the Covenant without invoking its specific terms,70 and distribution concerns relating to the separation of powers71, the CESCR is forced to take recourse to principles of international law 72 as ’the impact of the Covenant on the reasoning or outcome of cases is very limited.’73
Part II of the Maastricht Guidelines: ‘The Meaning of Violations of Economic, Social and Cultural Rights’ (n 59). 64 Part III ‘Responsibility of Violations’. See also General Comment No 14: The Right to the Highest Attainable standard of Health, UN Doc E/C.12/2000; in accordance with these provisions the CESCR has declared that a State violates the right to health contained in Article 12 of the ICESCR if it fails ‘to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others’, including ‘the failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries’. 65 Ibid Part V, ‘Remedies and Other responses to Violations’. One suggested remedy would be the adoption and ratification of the optional protocol providing for individual and group complaints. 66 The Committee notes that the undertaking ‘to take steps ... by all appropriate means including particularly the adoption of legislative measures’ neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected.’ 67 General Comment No 3,‘The nature of State Parties Obligations’, para 5: ‘In addition, there are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain.’ 68 General Comment N 9 para 10 where it refers to ‘Justiciability’ in the sense of State parties obligations under General Comment No3. 69 Ibid section A. 70 Ibid para 6. 71 Ibid para 10. On the question whether resource allocations are appropriate to be judged by the courts the Committee remarks that ‘courts are generally already involved in a considerable range of matters which have important resource implications.’ 72 Ibid para 3 and para 15. 73 Ibid para 13; see also the Periodic Report 2007 by the UK, stating that ‘under domestic law, international instruments, including the ICESCR, are not directly enforceable in domestic courts unless an Act of Parliament specifically provides so.’ http://www.justice.gov.uk/publications/docs/ICESCR-whole-report.pdf accessed on 8 January 2012.
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As a gap-filling provider for case law the ICESCR has recently adopted its long expected own Individual Complaints Procedure.74 While the Protocol is praised by its creators and administrators75, adversaries downplay its value by criticising the follow-up of its equivalent to the ICCPR as an ‘illconsidered effort to mimic the structures of the ICCPR’.76 The need for a complaint procedure is evident: without case-law, rights enforcement does not take any shape, in particular if judicial enforcement is not guaranteed at the domestic level.77 While McBeth remarks that ‘there is sufficient evidence of State practice and an apparent feeling of compulsion among States to provide the basic needs that comprise the right to a decent standard of living, freedom from hunger, the right to health and the right to education for those rights to be considered customary international law’78, the question remains as to the role domestic courts play in the enforcement of these rights. Worries about a downgrading of socio-economic rights in economically harsh times have recently inspired creativity and flexibility within the courts.79 In fact, as in the example of Britain, they may even draw from traditional approaches where a case dating back to the 18th century applies to contemporary situations in immigration law.80 3. Justiciability of socio-economic rights One of the reasons ESCR are deemed to be unenforceable is that they are already dealt with in many legal instruments and regulations.81 Nevertheless, as in the case of China, a recent newcomer to the ICESCR, the representation of the rights in legislation means neither that an individual has access to justice nor that domestic courts in fact can decide in accordance with legislative provisions.82 74
Optional Protocol to the ICESCR http://www2.ohchr.org/english/law/docs/A.RES.63.117_en.pdf accessed 8 January 2012. 75 The UN High Commissioner for HR Navi Pillay in her speech to the General Assembly, 10 December 2008 http://www.right-to-education.org/node/571. See also contributions by NGOs such as FIAN (Fighting hunger with human rights) http://www.fian.org/programs-and-campaigns/projects/optional-protocol-to-theinternational-covenant-on-economic-social-and-cultural-rights and OP-ICESCR Coalition, an “International NGO Coalition for an Optional Protocol to the ICESCR” http://www.opicescr-coalition.org/ accessed 12 December 2012. 76 M Dennis and DP Stewart, ‘Justiciability of Economic, Social, and Cultural Rights’ in Steiner and Alston (n 2) 363. 77 O De Schutterer, ‘The European Social Charter: A social constitution for Europe’ (Bruylant 2010); see also G de Burca and B de Witte, “Social Rights in Europe” (Oxford 2006). 78 Mc Beth (n 61). 79 See Willis (n 35) 41. 80 R v Inhabitants of Eastbourne (1803) 4 East. 103, 107 required claiming inhabitants to save an immigrant family from starving despite of the father’s illegal status under the ‘laws of humanity’, Lord Ellenborough; recently applied in R v Secretary of state for Social Security ex parte Joint Council to the Welfare of Immigrants (JCWI),  1 W.L.R. 275, 283-4. 81 See Willis (n 35) 40. 82 l Choukroune, ‘Justiciability of Economic, Social And Cultural rights: The UN Committee on Economic, Social and Cultural Rights’ Review of China’s first Periodic Report on the implementation of the ICSCR” (2005) http://web.ebscohost.com.ehost/delivery accessed 10 November 2011. China signed the Treaty in 1997, ratified it in 2001 and was due for its first report in 2002 according to which it has listed 24 legislative enactments but no statistical material as to court litigations for an increasing number of petitions.
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Although rights enforcement depends on countries’ resources, demagogical structure and cultural values, the CESCR has launched an urgent appeal to report cases involving socio-economic rights.83 Simultaneously, scholars and legal practitioners are developing an appealing number of promising models, techniques and litigation scenarios. Wiles84 confirms the need for legal enforceability of socio-economic rights especially where States are reluctant to entrench or otherwise safeguard them due to external pressures.85 However, as this breaks new ground she suggests a number of accompanying measures to ensure effectiveness. The establishment of a national monitoring body, for instance an ombudsman or a commission concerned with reports and assessment studies, could help to concretise benchmarks and thresholds for the rights’ scope, whereby this body again could connect to similar bodies on an international level; furthermore, tribunals specialised in socio-economic matters are desirable which would connect to administrative systems and adjudicate claims brought in form of class actions.86 Coordination between courts and public administration is also envisaged by Harvey and Rooney who are convinced that ‘the enhanced constitutionalisation and adjudication of socio-economic rights is a marked trend’.87 The authors directly address a major concern, namely resource allocation, and counter with a detailed budget analysis which comprises a cost-benefit analysis, cost-effectiveness analysis and multi-criteria analysis. Thereby ‘cost benefit analysis identifies the net value of an expenditure programme by adding its anticipated benefits and subtracting its expected cost, costeffectiveness analysis concentrates on the extent to which the funding options fulfil specific identified objectives, and multi-criteria analysis accommodates, as opposed to the former, qualitative and quantitative data.’88 These economic techniques would provide valuable tools for judges and politicians to calculate public expenditure needed for the implementation of human rights. Chances of success can be better derived from processes of gender mainstreaming as it has been introduced throughout Europe in similar ways.89 In contrast, Olds reports on national achievements of the right to housing throughout Europe.90 Triggered by pressure groups and a precedent case adjudicated by the European Social Charter,91 France has enacted the “Droit au lodgement opposable”, in short DALO in 2007. The Act’s title roughly translates as ’the inalienable right to housing that a court cannot deny you.’92 It works in 83
Ibid 40. Willis (n 35). 85 Ibid 64. 86 Ibid 63-4. 87 C Harvey and E Rooney, ‘Integrating human rights? Socio-economic rights and budget analysis’ 3 EHRLR (2010) 267-8. 88 Ibid 270. 89 Ibid 268. 90 K Olds, ‘The role of Courts in making the right to housing a reality throughout Europe: Lessons from France and the Netherlands’ 28 WILJ (2010) 170-199. 91 Ibid 181. The case is FEANTSA v France, Complaint No 39/2006; ‘France violated Art 31 of the ESC by not making sufficient progress toward eradicating substandard housing, failing to pass legislation to prevent evictions, having an insufficient supply of social housing, and having a poor social housing allocation system’ . 92 Ibid 171. 84
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two stages: the first stage from 2008-2012 entitles all homeless and inadequately living families to take their cases to court; the second period from 2012 onwards permits to bring claims against abnormally long waiting lists.93 The legislation prevents landlords from executing evictions during winter months and forces the Government to increase the number of available housing units and to simultaneously equip social services with knowledge as to how to apply the law.94 In the case of Namizata Fofana, a legal immigrant and mother of two, it was on the basis of the Act that the court ruled that ‘families must not merely have a place to stay for the night but an adequate home.’ This prevented the family from losing shelter after a grace period of 21 months.95 Cooperation between the government and the courts has worked well in the Netherlands since the beginning of the 20th century where the Housing Allowance Act provides for financial assistance and the Rent Tribunal Act ’empowers citizens to challenge unreasonable rents.’96 In this context it is remarkable that 30% of the country’s housing is social housing which is also occupied by middle class families and does not entail any stigma. Ray 97 describes the development of a new remedy emanating from the South African Constitutional Court’s experience with socio-economic rights. In the words of the Constitutional Court’ ‘the purpose of litigation concerning the positive obligations imposed by social and economic rights should be to hold the democratic arms of government to account.’98 Engagement as a remedy could provide relief by obliging affected parties to negotiate their case and to literally engage with each other. It has been employed in eviction cases and involves inter alia broad assessment of city planning, residents’ consultation and cost analysis, thereby directly meeting the contact point between juridical decisions and policy making. Nolan refers to ’the state’s obligation to ensure that third party non-state actors do not interfere with the enjoyment of ESC by right holders.’99 Comparing the situation in Europe with the African and American Human Rights systems, the author regrets that ’most domestic and regional human rights systems do not allow for the direct application or enforcement of Economic and Social Rights norms against Non State Actors’.100 However, regional bodies and advocates have found ways out of restrictions by using a number of techniques. In International Commission of Jurists v Portugal 101 the state was accused of violating its obligation under the ESC by failing ‘to ensure the effective exercise of the right of children and young persons to protection’102 when family businesses continuously
Ibid. Ibid 192. 95 Ibid 171. 96 Ibid 187. 97 B Ray, ‘Case Comment-Residents on Residents of Joe Slovo community v Thubelisha Homes and others: the two faces of engagement’ 10 H.R.L.Rev 2 (2010); see also (n 142) 19. 98 Mazibuko and Others v Johannesburg and Others CCT 39/09  ZACC 28. 99 A Nolan, ‘Addressing economic and social rights violations by non-state actors through the role of the state: a comparison of regional approaches to the ‘obligation to protect’, 9 HRLR 2 (2009) 225-255. 100 Ibid 230. 101 Case No. 1/1998 Forum and date of the decision: ECSR on 9 September 1999 http://www.escrnet.org/caselaw/caselaw_show.htm?doc_id=400955 accessed 12 December 2012. 102 Nolan (n 99) 240. 94
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employed children under the age of 15 contrary to Article 7(1) of the ESC.103 In Lopez Ostra v Spain104 air pollution caused by a privately owned waste-treatment caused serious health problems. The European Court on Human Rights resolved the case of a socio-economic right violation through reliance on Article 3 and Article 8 of the European Convention of Human Rights. 105 Nolan comments that ‘the willingness and capacity of regional bodies to employ civil and political rights standards to indirectly protect ESC, and vice versa, demonstrates the reality that a considerable number of rights including the right to life, the right to equality, trade union rights and property rights, do not conform with any supposed clear-cut categories of ESC and civil and political rights.’106 Therefore, it can be said that justiciability of socio-economic rights enjoys the dynamics of an upwards trend; even more pressure on and responses in regional systems and domestic courts is to be expected. However, this is not the only stage where economic, social and cultural rights have to be respected, protected, and fulfilled. It is rather the world at large which has to be dedicated further attention. As Leckie formulates, ‘problems of perception and resolve, rather than any inevitable limitation of law or jurisprudence, have kept economic, social and cultural rights wallowing in the relative purgatory of global efforts to secure human rights.’107
Part 2: Impacts on economic, social and cultural rights beyond the legal world 1. Addressing the interplay of economic strategies and human rights realisation Traditionally, human rights have been seen as entitlements the individual claims against arbitrary interventions or omissions by States.108 However, during the last decade, States’ political powers have significantly decreased in favour of a growing influence of non-state actors in the course of privatisation and globalisation.109 As a result, dynamic forces of multi-national enterprises set a heavy-weight counterpart to State governance and accordingly must bear responsibilities for violations in compliance with human rights obligations, in other words accountability for harmful impacts or rights violations on grounds of economic and commercial activities. According to Koen de Feyter ‘mechanism need to be created to ensure the accountability of other actors for human rights’ whereby ‘these actors include influential economic powers whose actions drive people into poverty.’110 As the mutual dependence of human rights protection and meaningful economic activity
L Samuel, ‘Fundamental social rights’, (Council of Europe Publishing 1997) p185. A 303 (1994) 20 EHHR 277. 105 The ‘right to be free from torture and degrading treatment’ and the ‘right to respect for a family home’ respectively; the latter eventually decided the case and awarded a right to compensation. 106 Ibid 254. 107 Leckie (n 3) 82. 108 McBeth (n 61) 1. 109 G Teubner, ‘Global Bukovina: Legal Pluralism in the World Society’ in ‘Global law without a state’ (1997), quoted in McBeth (n 61)1. 110 Ibid 2. 104
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has long been recognised, this integrating view on non-state actors is self-explaining and obvious.111 One of those non-state actors is the World Bank.
Corporate responsibilities Although addressed in major summits dedicated to globally-increased social responsibility112, corporate responsibility in relation to human rights is still premature as it tends to find itself in a contemporary vacuum resulting from transitional shifts from States’ to private actors’ competences. According to Clapham it is even related to the fact that ’governments were using Corporate Social Responsibility as a substitute for their own failure to address the social consequences of globalisation’ 113. However, responsible corporate governance takes the exclusive burden to bear the costs for positive rights enforcement away from States and increases the radius in which human rights have to be safeguarded and enforced and consequently embrace every single member of human societies. Clapham therefore suggests ‘multiple fora in which to hold the various actors accountable - the national courts (for criminal and civil liability of the natural and legal persons), an international criminal court (for individual criminal responsibility), and the relevant international human rights treaty monitoring bodies and courts (to hold the state accountable for violations of its treaty obligations).’114 The pursuance of a human rights policy may directly pay out for a corporate through the avoidance of strikes, protests and boycotts and through State measures such as ‘export credit guarantees for companies to potential human rights impacts’115. However, instead of the operation of the ICESCR, alternative implementation mechanisms with varying degrees of reach and success are employed. The Organisation for Economic Cooperation and Development Guidelines,116 which were set up in the early 70s and since then have been revised several times, provide standards of conduct and good practice to multi-national enterprises which also clearly cover categories of economic, social and cultural rights. The guidelines are boosted with a complaint mechanism which functions between National Contact Points (NCPs) and the Committee on International Investment and Multinational Enterprise (CIME) and which, although not being a 111
Ibid: ‘The ICESCR recognises the need for some degree of prosperity in order to fulfil some of the economic and social rights that require expensive infrastructure or service provision. On the other hand, the pursuit of such prosperity by some-whether by the state or by private actors-undoubtedly has the potential to violate the human rights of others’. See also the ‘Report of the Special Rapporteurs of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises’ 3/8/2009 UN /64/216. 112 ‘UN Millennium Declaration 2000’ http://www.un.org/millennium/declaration/ares552e.htm accessed 12 December 2012. See also G MacNaughton and D F Frey, ‘Decent Work, Human Rights, and the Millennium Development Goals’ 7 HRPLJ (2010) 302-352. The authors connect the right to decent work with an eradication of poverty and blame states for not providing ‘any consensus on the components of decent work or on the appropriate indicators to monitor the progress of states in achieving the new full employment and decent work target’ 349. 113 A Clapham, ‘Human rights Obligations of Non-State actors’ (Oxford 2006) 195. 114 Ibid 32. 115 See http:///www.ecgd.gov accessed 9 January 2012; this method is pursued in the UK, the US and the Netherlands and looks ‘not only at the payment risks but also at the underlying quality of the project, including its environmental, social and human rights impact.’ 116 OECD Guidelines for Multinational Enterprises: Revision 2000 http://www.oecd.emb-japan.go.jp/kiso/(4-12)OECD%20Guidelines%20forMNEs.pdf accessed 11 December 2011
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legally enforceable procedure, could play a significant part in the exploration of public litigation.117 A further strength is an inherent appeal to multinationals to ’encourage others with which it is in contact to respect the Guidelines.’118 These requirements necessarily unify domestic legislation with international customary law, though still leaving gaps and negligence in the protection of individuals’ rights. Nonetheless, the journalist Naomi Klein describes problems with local authorities when they turn ‘a blind eye on human rights violations for the sake of foreign investment’, in particular in the Philippines ‘where export processing zones (EPZs) exist within kind of a legal and economic set of brackets, apart from the rest of their countries’.119 The ‘Tripartite Declaration of Principles concerning Multinational Enterprises’,120 likewise considering multinational enterprises as entities operating on the international and regional stages, are in addition to multinationals directed towards governments, workers’ and employers’ organisations and clearly refer to human rights.121 Drawing from the ILO Declaration on Fundamental Principles and Rights at Work,122 they summarise expectations on companies to act in full compliance with human rights obligations; however, their success will depend on the expertise of legal professionals to pass on their powers to people in need of their realisation.123 Finally, the UN Global Compact (2000)124 provides ten principles, two of which impose respect for protection and fulfilment of human rights and the avoidance of complicity in human rights abuses. They are a valuable source of reference for NGOs and their effect has been acknowledged as recognisably improving the human rights situation.125 Accountability gaps accrue particularly in connection with certain branches; they also re-open the operating field for UN bodies. However, social, economic and cultural rights in their appearance under the Bill of Rights are neither expressly referred to in any of these implementation tools nor do they obtain a normative role in a recent document on youth unemployment which has been issued by the International Labour Organisation.126 Besides the provision of vast numbers of relevant and comprehensive statistics the report rather directly points to cost calculations which urge the need for action against youth unemployment, stating that ‘governments are rightly concerned with both the economic costs of joblessness and discouragement as well as the possible social impacts, manifested by increased crime, mental health problems, violence, drug taking and social exclusion.’127 In this context the lack 117
Clapham (n 113) 207. Ibid 203.’ 119 N Klein, ‘No Logo’ (Picador 2004) as cited in Clapham (n 113) 206. 120 Adopted by the Governing Body of the International Labour Office on 16 November 1977, amended in November 2000, http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_ent/--multi/documents/publication/wcms_094386.pdf accessed 12 December 2011. 121 Ibid para 8. 122 Adopted by the International Labour Conference in June 1998. 123 Clapham (n 113) 218. 124 Ibid 48. ‘Global Compact’ was enacted by the UN Secretary-General on the 31 January 1999 at the World Economic Forum in Davos, Switzerland. 125 Ibid 222-5. 126 International Labour Organisation, ’Global employment trends for youth’, August 2010 http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_elm/--trends/documents/publication/wcms_143349.pdf .accessed on 8 January 2012 127 Ibid 34. 118
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of reference to any breaches of ICESCR speaks volumes in regard to the use of the Treaty as tool for legal enforcement.
International Financial Institutions and their Human Rights commitment International Financial Institutions (IFI) such as the World Bank and the International Monetary Fund, albeit being separate legal personalities, cannot become parties to treaties themselves; failures to observe treaty obligations, however, would render their constituent parts, in other words Member States, liable.128 The extent of a required commitment to human rights on their behalf is disputed though: for some, the institutions have only to respect them and to avoid violations; for others they are even obliged to promote a favourable human rights development.129 Under the UN Charter, all financial institutions are deemed to obtain a positive human rights mandate as they represent signing States’ commitment ‘to employ international machinery for the promotion of the economic and social advancement of all peoples.’130 While socio-economic progress is clearly pursued by the World Bank, involvement in any political conflict is expressly prohibited in its Articles of Agreement.131 In contrast, the International Monetary Institutions may even aggravate socioeconomic rights situations and impact on social rights to health, housing and work by imposing structural adjustment on countries with the purpose to eventually improve countries’ financial situations.132 Agusti-Panareda has figured a way out of the dilemma: firstly he questions the absolute nature of human rights as such and secondly, he enriches them with the virtues of cultural diversity and context-based equivalents the beneficiaries of which should be approached in dialogue in order to identify their real needs, thereby ‘ideally engaging the widest range of governmental and nongovernmental actors and institutions.’133 He remarks that ‘the bank is, after all, a financial institution, which in fostering development and alleviating poverty, should not aim to impose human rights, but rather finance and promote their local definition and consecution through an empowering venture that could overcome the pitfalls of a missionary promotion of rights.’ 134 2. A feminist viewpoint: thinking universally by nature The feminist approach is adequately reflected in the activities of ‘Social Watch’, an international network which directly links social development to gender equity.135 In general, feminist thinking has
McBeth (n 61)167-241 for an account of the institutions human rights mandate and restrictions which impede their commitment. 129 Ibid 166-170. See also M Darrow, M, ‘Between Light and Shadow-The World Bank, the International Monetary Fund and International Human Rights Law’ (Hart Publishing 2003). 130 Ibid 172. 131 The World Bank, ‘Articles of Agreement’, http://web.worldbank.org/ accessed 12 December 2012. 132 McBeth (n 61) 69. 133 J Agusti-Panareda J. ‘Transforming Weakness into virtue: a dialogue and context based approach to human rights at the World Bank’ 2 HRGLR (2008-9) 23. 134 Ibid. 135 ‘Social Watch Report 2010: Time for a new deal AFTER THE FALL-a Citizens’ Global Progress Report on poverty eradication and Gender equity’ http://www.socialwatch.org/sites/default/files/Social-Watch-Report2010.pdf accessed 9 November 2010.
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undergone several stages of development, reaching from the particular women rights protection in the 70s to a complete rejection of the latter as taken through a feminist lens.136 Particularities of feminist thinking are best characterised in an ‘Ethic of Care’ which embraces women’s naturally different understanding of rights protection. This Ethic of Care has inter alia been represented and explored by Carol Gilligan, who argues that ‘there are two moral codes, a feminine one based on caring and the maintenance of relationships and networks, the Ethic of Care, and a masculine one based on a more abstract systemisation of rights and rules, the Ethic of Justice.’ 137 A consequent vision is provided by Sarah Fredman who rather labels rights as duties and responsibilities which should not be impeded by any barriers to a profound realisation in our society.138 The author develops her argumentation around a re-conception of positive freedoms which redefines and determines the fulfilment of positive duties both leading to a ‘substantive conception of equality’. In her own interpretation she addresses and reconfirms the interdependence of positive and negative rights, arguing that ‘if freedom is a fundamental value, freedom for some must be freedom for all.’ Therefore, ‘freedom as non-interference makes it inevitable that some will be in a better position to exercise their freedom than others.’ Consequently ‘positive freedom places a duty on the State to pay particular attention to those who are not in a position to exercise their rights to the full, even if this entails supplying more resources or providing greater facilitation for these individuals than for others not in the same category.’139
3. Regional Systems This section shall look at three geographically distant areas in an attempt to sketch some of their most interesting socio-economic rights developments; they illustrate the range and diversity of different approaches and attitudes.
South Africa After the break-up of the Apartheid regime, South Africa has arguably managed to create one of the most progressive and influential constitutions, thereby rejecting a directive principles approach to socio-economic rights in favour of their full constitutional recognition.140 Cases such as Grootboom141 and Treatment Action Campaign142 have fostered the constitutionality of socioeconomic rights and raised the expectations of many rights scholars. Nonetheless, in 2010, Lehman draws a terrifying picture of the countries true situation. According to the author, ‘life, for the majority of South Africans, remains appallingly hard, despite the socio-economic promises of the
S Mullally, ‘‘Feminism, discourse ethics and human rights’ in Gender, Culture and Human Rights’ (Hart Publishing 2006) xxxiv-xliv. 137 Ibid p 2; see Chapter 1 for an account of different perspectives to the theory. 138 See Fredman, S, ‘human rights transformed-positive rights and positive duties’ (Oxford 2008). 139 Mullally (n 139) 3. 140 Steiner and Alston (n 2) 328; Sunstein (n 40) 211. 141 Case CCT 11/00 as described in Steiner and Alston (n 2) 338. 142 Case CCT 8/02; see Steiner and Alston (n 2) 339-347.
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Constitution.’143 Scholars blame the Constitutional Court for being too deferential and cautious as the Court has taken a reasonableness approach instead of a minimum core approach, the profile of the latter being by no means fully clear according to the Committee’s reasoning.144 The discussion as depicted in Lehman’s paper exposes the Court as defendant of a judicial position which eradicates scholars’ hope for a crossing of political frontiers. For Lehman the solution consists in a ‘more robust approach’.145 The rationale of this approach is based on the presumption that executives are excused for lack of resources but that in fact there are additional resources available in existing pools. Litigation would have to identify these sources whereby the court would have to dismiss its ‘self-imposed constraints’ and exemplarily ‘scrutinise the reasonableness of budget allocations.’146 A new form of relationship and cooperation between two limbs of the constitution would have to be established as ‘there is no suggestion in the Constitution that the maintenance of democracy requires that Rand 587 million is spent on the acquisition of an airplane for presidential use, or that Rand 50 billion is spent on the acquisition of arms.’ In her views, ‘as long as the socio-economic needs of individuals remain unfulfilled, expenditures such as these require explanation.’147
Europe In his book ‘The European Social Charter: A social constitution for Europe’,148 Schutterer acknowledges the influence the ESC has taken on the shape of the European Community from its early days in Rome; he observes its increasing significance since the establishment of the Collective Complaint Procedure149 and frankly propagates the idea of an accession of the EU to the ESC.150 The author acknowledges ‘remarkable achievements in European social legislation, particularly in the fields of equal treatment between women and men and protection from discrimination on a number of grounds, but also in the adoption of measures for the approximation of the national laws of the Member States’. These have ‘as their objective the establishment and functioning of the internal market,’ connecting to the fact that ‘most of the guarantees of the ESC may only be implemented within the Union by the adoption of directives.’ Through this reduction in goals, competence and legislative procedures may lead to the imposition of ‘only minimum requirements on the Member States what they are a product of negotiation often settling on the lowest common denominator.’151 However, scholars observe a beneficial amalgamation of jurisprudence between the European Court Human Rights and the European Court of Justice, whereupon the latter often relies on fundamental rights such as the right to family life to back-up decisions in favour of social rights guarantees which 143
S Lehman, ’In Defense of the Constitutional Court: Litigating Socio-Economic Rights and the Myth of the Minimum Core’ 22 Am.U.Int’l L.Rev 163 (2006-7)164: ‘Approximately 40% of South Africans remain unemployed, approximately 30% do not have either adequate housing or access to piped water and about 50% survive, somehow, on an income of less than R500 per month.’ 144 The author refers to the meaning of ‘minimum core’ as indicated in General Comment No 3 (n 52) 145 Lehman (n 147)193-194. 146 Ibid 195. 147 Ibid. 148 O de Schutterer, ‘The European Social Charter: A social constitution for Europe’ (Bruylant 2010). 149 Ibid 36-7 150 G de Burca and B de Witte (n 76 ) ‘Anchoring the EU to the ESC: the case for accession’ 112-152. 151 Ibid.
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were otherwise not enforceable.152 In contrast this promising development did not help to avoid a series of serious and violent breaches against Roma and Gypsy minorities153 and many countries are still struggling in their discussions of minimal wages and social benefits. With the ongoing euro zone crisis that heavily affects European countries, if not global prosperity, chances of success for the amelioration of the global social climate have been distorted dramatically.
The US In its annual report of 2010, the Center for Economic and Social Rights shows ‘that despite being the world's wealthiest economy, the US has one of the poorest records of economic and social rights achievement of all high-income countries’,154 notwithstanding its dominant role in drafting the UHDR and therefore historically-founded commitment to these rights. The international human rights community has always been aware of the particular scepticism of American scholars towards socioeconomic rights.155 More surprising is an appraisal by one of their strongest opponents156, Cass Sunstein, when he acknowledges that F.D. Roosevelt’s Second Bill of Rights ‘attempts to protect both opportunity and security, by creating rights to employment, adequate food and clothing, decent shelter, education, recreation, and medical care.’157 Sunstein grapples in his book meticulously with American’s history in order to analyse its reluctance against socio-economic rights protection as well as the country’s need for their realisation. He acknowledges successes of the South African experience158 and European case law159 and expects ‘a democratic attention to important interests that might otherwise be neglected in ordinary debate’ with ‘large implications for how we think about citizenship, democracy, and minimal social and economic needs.’160 These controversial and contrasting pieces of a jigsaw puzzle leave us for the time being with much of a mystery as to the country’s true identity and future social direction.
See the ‘Free Movement of Persons’ line of cases starting with Baumbast C-413/99 (right to family life); recent cases London Borough of Harrow v Nimco Hassan Ibraim and Maria Teixeira v London Borough of Lambeth C-310/08 and C-480/08 (children’s right to education allowed their mothers to stay without having sufficient resources on the basis of Directive 2004/38). 153 th See ‘Special Procedures Bulletin’ 16 Issue January-March 2010: ‘Experts urge Italian authorities to curb th xenophobic attitude towards migrant workers’; 11 Issue October-December 2008: ‘Experts concerned about minority issues and racism in Europe’ http://www.ohchr.org/EN/Pages/WelcomePage.aspx See also I Pogany ‘Minority rights and the Roma of Central and Eastern Europe’ 6 H.R.L.Rev 1 (2006) 1-25 154 Center for Economic, Social Rights website http://cesr.org/article.php?id=862, according to which the country has high child poverty rates, health and education disparities; inequalities affect in particular African American women. 155 C Sunstein, ‘Against Positive Rights’ (1993): Dennis M.J and D.P. Stewart, ‘Justiciability of ESCR’ (2004), both in Steiner and Alston (n 2). 156 Sunstein, C (n 19) 157 Ibid 1. 158 Ibid 229. 159 The author emphasises in his video that Europe benefitted directly from Roosevelt’s influence http://www.youtube.com/result?search_query=the+unfinished+revolution+by=sunstein&aq=f accessed 30 November 2010. 160 Sunstein (n ) 153 – 212; for a conflicting view see D Thaler and C Sunstein, ‘Nudge’, (Penguin 2010)
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4. Conclusion This article sought to illustrate that socio-economic and cultural rights are no longer in the shadow of their civil and political counterparts; they are right in the center of current human rights debates. The call to ‘inject new life into multilateralism and move to a new economic paradigm for the 21st century’161 is made on behalf of UN advocates, civil organisations and legal practioners in explicit and unequivocal wording; however, signs of genuine endeavour, progress and success of their comprehensive work should be emphasised instead of reiterating debates of principles. There is much need for clarification as John Tobin ascertains when he formulates a comprehensive pleads to non-judicial actors - academics, NGOs, treaty monitoring bodies, special rapporteurs, and States - to better represent human rights obligations. In his words ‘legal interpretation is not simply the process of attributing a meaning to the text of a treaty but is ultimately an act of persuasion; an attempt to persuade the relevant interpretive community that a particular interpretation is the most appropriate meaning to adopt.’162 Citizens should inform themselves about the extent to which their States are legally bound and fulfilling their socio-economic rights in an international and regional context;163 they must also be given sophisticated and qualified reasons for breaches, delays and incapacity as regards their States’ obligations. Though much information is readily accessible but non-transparent for the public at large, pinpointing and clarifying backgrounds is essential and opens new working areas for legal practioners and scholars likewise. Putting the mere and real presence of socio-economic rights first could help reshaping our societal needs setting new priorities; however, the complex context of socio-economic rights calls for concentrated commitment. As a result, citizens should get involved in a full-fledged participation. The programmatic nature of socio-economic rights will constitute their strength rather than their weakness in this process and connect well to contemporary forward-looking legal thinking.164 As this examination points out it is not only within the scope of State parties’ responsibilities but within the duties and powers of all citizens that social, economic and cultural rights can be respected, protected and fulfilled, be it from a leading position or from the position of ordinary citizens both having the right to claim the very fundamental conditions for a human life in dignity.165
http://www.un.org/ga/president/62/statements/foodcrisis180708.shtml accessed 8 January 2012. See Tobin, J, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty interpretation’ 23 Harv. Hum.Rts.J.1 (2010) 3-4. 163 See C Barnard, ‘The Opt-Out’ for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’ www.law.cam.ac.uk/faculty-resources/10007309.pdf accessed 12 December 2011; UK State report under the ICESCR , http://www.justice.gov.uk/publications/docs/ICESCR-whole-report.pdf accessed 12 December 2011 164 A Philippopoulos-Mihalopoulos ‘...the sound of a breaking string: critical environmental law and ontological vulnerability’ 2 JHRE 1 (2011) 5-22 The author suggests to take ‘a vulnerable position of the middle’ which ‘allows for the reconfiguration of social, biological and ecological processes’ combined with the ‘call to remain immanent within existing legal structures.’ 165 Tobin (n 161) 4: ‘the nature of the interpretive community relevant to the interpretation of international human rights treaties (...) has moved beyond states and their agents toward a more communitarian model in 162
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which the interests and expertise of a much wider range of parties and actors must be taken into account in the interpretive exercise.’ See also K R Cronin-Furman, ‘60 Years of the Universal Declaration of Human rights: Towards an Individual Responsibility to protect’ 25 Am. U. Int’l L.Rev. 175 (2010) 197: ‘despite the increasing legal entrenchment of the human rights regime, the effort to police compliance with human rights remains a fundamentally moral enterprise.’
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Plasticity, Recycling and Procrastination: The Dialectic between Resistance and Change1 Climate change is arguably the biggest environmental problem society faces at the moment and it is exacerbated by greenhouse gas emissions released into the atmosphere. Whilst there is a major focus on carbon dioxide, landfills are a major source of another greenhouse gas, methane, which is even more deadly. Methane molecules absorb 30 times as much heat as carbon dioxide molecules but last only about a tenth as long, thereby releasing the heat into the atmosphere.2 In other words, one methane molecule is arguably equivalent to about 300 carbon dioxide molecules. In addition, leachate from landfills contaminate the water table. As a result of the aforementioned environmental pressures to reduce methane, the UK government is under a legal obligation from the European Union (EU) to reduce the amount of waste sent to landfill and increase the amount of waste recycled to 50% by 2020.3 Failure to meet any of the targets means the government would have to pay a fine, which can be passed onto any local authorities that contributed to the failure. Recycling is seen as a means to reduce the amount of waste that is disposed of in landfill sites. As a result, local authorities are incentivised to increase the amount of waste recycled through the Landfill Allowance Trading Scheme and are looking at various methods to encourage their residents to recycle more, such as incentives and de facto compulsion through fines. It is clear from local authority statistics that these methods do work with regards to increasing recycling4 and UK government data does indicate that it is on course to meet its EU targets.5 However, government data also reveals that recycling has slowly increased over the last 20 years since the early 1990s, long before incentivisation and de facto compulsion were introduced. If anything, the more recent policies only speeded up the recycling rate.. The question is, given that recycling rates were increasing, whether incentivisation and de facto compulsion were the only or most effective instruments for speeding up the process and, if so, whether there were any other implications besides protection of the environment. This article will offer a post-humanist critique of recent household recycling policies that focus on changing habits instead of the mind, through an exploration of Hegel's dialectic and concept of plasticity, as developed by French philosopher Catherine Malabou. It will first explain the concept of plasticity and how Malabou’s uses neuroscientific research to develop the plastic brain as a metaphor for the connections between people in the world. The way neural pathways are laid down, strengthened and weakened demonstrates how bonds between people are like habits that are difficult to but can be changed. What plasticity captures is our propensity to procrastinate, both individually and socially. I argue that the plastic brain represents the connections between all 1
Pravin Jeyaraj, PhD Student, University of Westminster School of Law Tom Levitt, ‘Methane: a quick fix for global warming?’, The Ecologist (18 February 2010) http://www.theecologist.org/News/news_analysis/415289/methane_the_quick_fix_for_global_warming.html [Last accessed: 6 January 2012] 3 European Union, Council Directive 1999/31/EC on the landfill of waste (transplanted into UK law as Waste and Emissions Trading Act 2003), Article 5 4 Improvement and Efficiency South East, ‘Incentives, rewards and behavioural change – Royal Borough of Windsor and Maidenhead', (WIN Case Study, Improvement and Efficiency South East, 2011), 5; Halton Borough Council, ‘Halton residents rewarded for recycling in borough wide roll-out’, (Halton Borough Council, 13 May 2010), http://www3.halton.gov.uk/news/newsroom/90746/ [Last Accessed: 9 December 2011] 5 Department for the Environment, Food and Rural Affairs, ‘Household waste: green and dry recycling’, (Department for the Environment, Food and Rural Affairs, 5 November 2011), http://www.defra.gov.uk/statistics/environment/waste/wrfg16-recycrates/ [Last Accessed: 9 December 2011] 2
entities, not just people, in other words, between human beings and the environment. It is suggested that UK policies will only succeed in diverting waste from landfill by means of retraining our habitual behaviour away from throwing unwanted waster away and towards recycling. The article then considers how the work of Hegel and Malabou can be used to demonstrate that recycling is a matter of maintaining the connectivity of the whole plastic brain, whilst waste disposal disrupts this connectivity, like Alzheimers or some other degenerative condition, through being forgotten6. Furthermore, because the environment is incorporated in the plastic brain through a post-humanist approach, it can be argued that discarding waste can also be taken as a metaphor for marginalising people in wasted lives, because they are no longer needed or don’t meet requirements anymore. The plasticity of the dialectic shows that resistance or procrastination is an essential or natural element of recycling, which is therefore naturally going to take time. What is Plasticity? There are now seven billion people on the planet7 and each of us are connected to at least one other person if not more. Etymologically, from the Latin, these connections are a ‘binding together’.8 Hegel calls this relationship dialectical, made up of dialects or different voices. This group of dialects, ‘the several elements of the universal’9 is used to talk about or refer to the whole relational universe. That is, the dialectic between persons is reflected in the underlying dialectic of the whole universe. But it is more than a melee of voices in a global marketplace. Each dialect has its own selfconsciousness that exists in and for itself in that it exists for another self-consciousness, that is ‘it is only by being acknowledged or recognised’.10 On the one hand, each dialect is distinctive from the others but, at the same time, it can only be understood in the context of the others. This is what Hegel calls the process of Recognition.11 Recycling can be viewed as important because we recognise the environment as something worth protecting and other people as worth protecting from environmental pollution. Indeed, one could argue that if we don’t recognise the environment or other people as worth protecting, the negative impact on them actually has a negative impact on us too, which could be seen as a lack of recognition. Furthermore, Hegelian recognition could be seen as an act of recycling in itself; the resultant bond maintains the distinctiveness of the two entities. Therefore, the essence of the Hegelian dialectic is contradiction, that is the capacity to hold different dialects or voices together in a universal, that is the interests or expressions of the environment and different groups of human beings, without any dialect losing its particularity. This essential element is what Hegel describes as plasticity, a concept that is developed further by French philosopher Catherine Malabou. When we think of plasticity, what comes to mind is something that can be moulded into a particular shape, like packaging and, at the same time, something that does not lose its shape and ends up for perpetuity on a landfill without degrading. This is pretty close to what 6
Philiippopoulos-Mihalopoulos, ‘Absent Environments: Theorising Environmental Law and the City’, 2007, Routledge/GlassHouse, Oxford, UK, p200 7 Pawan Kumar, ‘A crowded world’s population hits 7 billion’, Reuters (US Edition, 31 October 2011) http://www.reuters.com/article/2011/10/31/uk-population-baby-india-idUSLNE79U04N20111031 [Last Accessed: 9 December 2011] 8 nd ‘connection / connexion, n.’, The Oxford English Dictionary, (2 edition, 1989, online September 2011), http://www.oed.com/view/Entry/39356?redirectedFrom=connection#eid [Last Accessed: 9 December 2011] 9 Georg Wilhelm Friedrich Hegel, Philosophy of Right, (first published 1821, Dover 2005), para 31 + Note 10 Georg Wilhelm Friedrich Hegel, Phenomenology of Mind, (first published 1807, Dover 2003), 104 11 Hegel, n 11, 105
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Hegel meant. He borrowed the concept from the art world, in particular sculpture – a piece of marble is plastic because it can be shaped into a something determinate like a statue out of something indeterminate but then, having been shaped, does not lose that shape. But, it is not just the marble that is plastic or the statue, but the sculptor as well. As he shapes the marble, he too is shaped or influenced in some way by his creation. Hegel also talks about the plastic child, who is shaped by the parent whilst maintaining a certain form. The parent is also shaped through his or her relationship with the child. So, as Malabou says, the plasticity of the dialectic is characterised by its susceptibility to change and its capacity of resist.12 Each dialect seeks to preserve form whilst, at the same time, being shaped by others and shaping others. As a result, the dialectic allows the two people to shape and be shaped by each other, like parent and child. The actions of society have an effect on the environment, as can be seen with rotting waste on a landfill, but society develops within the limits of the environment. At the same time, Society's effect on the environment leads to an environmental effect on society. The plasticity of the dialectic between the environment and society is manifest in the phenomenon of climate change. But the capacity to resist also points to another quality of plasticity – it potential to explode, as in the more modern example of a plastic explosive.13 The explosion is the moment where susceptibility to change cancels out or negates the capacity to resist, resulting in some sort of action. Perhaps it was the cause of the original explosion, the Big Bang, which led to the creation of the universe. Or perhaps the explosion is the arousal of consciousness out of something not conscious or the arousal of self-hood. Or perhaps the explosion is the cause of love, which Hegel calls ‘the most tremendous contradiction that is incapable of being solved by understanding’,14 but ultimately leads to people being bound together, first as friends, then a marriage, a family, a community, a country and a global society. Perhaps the contradiction about love is that is feels so purposeful yet requires a will-topower, which Nietzsche describes as purposeless progression.15 If love or care for the environment or others is the act of recognition or recycling that strengthens the bond and the outcome of the act, that act of recognition begins with the explosive moment when we decide that we don't want to keep doing what we were doing. Contrary to the popular use of the world, it is not products, packaging or inanimate objects that are recycled but the relationship between human beings and the environment. Perhaps talking about recycling inanimate objects is an inevitable symptom or consequence of living in a material world, where our relationship to the material is strengthened. Rather than seeing recycling as an outcome, we should see it as a relationship between two entities, much like Hegel’s recognition. In that respect, not recycling could be considered a breakdown in the relationship. So far I have referred to the recycling of the relationship between society and the environment, but these terms, 'society' and 'environment' are labels too. Citing research in neuroscience, Malabou likens the connected society or world to a plastic brain. Contrary to the traditional idea of a brain as a central, controlling authority, neuroscience shows the brain to be acentred, in that there are lots 12
Catherine Malabou and Lisbeth During (tr) ‘The Future of Hegel: Plasticity, Temporality, Dialectic’  15 Hypatia 196, 204 13 Catherine Malabou, What Should We Do With The Brain?, (Sebastian Rand (tr), Fordham University Press , 2008), 72 14 Hegel, Philosophy of Right, n 9, para 158 + Addition 15 Friedrich Nietzche, On the Genealogy of Morality, (first published 1887, Keith Ansell-Pearson (ed) and Carol Diethe (tr), Cambridge University Press, 1995), 55
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of disparate centres. To get from one synapse to another, nervous information, the dialectic, has to cross a void between synapses, like Thelma and Louise driving off the cliff at the end of the film. The act of recognition between neurons is the explosive jump across the void – it is most difficult and appears arbitrary and inexplicable the first time but it gets easier the more often that the gap is traversed. Recycling the relationship between human beings and the environment becomes easier the more we do it. Instead of one central committee, there are ‘multiple, fragmentary organisations, an ensemble of micropowers’.16 We are used to thinking in terms of a society of humans surrounded by the environment. The etymology of the word ‘environment’, from the French words ‘en’ (in) and ‘virer’ (to turn), simply refers to something that turns around a pivot.17 The suffix ‘-ment’ is the usual way of transforming a French verb into an adverb. So, the word ‘environment’ implies something that is only an accompaniment to the main part, which it turns around or surrounds. It is not that each ‘ensemble of micro-powers’ is a society or an environment but societies surrounded by or within environments. Looking at the bigger picture of a systemic brain, one could argue that the environment is inherent within society or society is inherent within the environment. So we are no longer talking about society and environment but organisations of neurons. Each organisation is made up of smaller units, down to individual neurons. A society or an environment are convenient ways of describing collections of particular types of neurons, linguistic terms for a network of neurons, called human beings, animals, plants, etc, appropriately called population or an assembly in the neuroscientific discourse.18 Each neuron therefore is the centre of a network of neurons. Each human being has his or her own environment and each group has its own environment and what holds them together and keeps them communicating is the dialectical act of recognition or recycling. Deleuze and Gautteri described this as the ‘human essence of nature and natural essence of man’ becoming ‘one within nature in the form of production of industry’, which is ‘the various elements that repeat themselves in nature and humanity in the form of processes and products’.19 Where neurons communicate with each other, the bond is recycled and the dialectic or process of recognition is reflected through the universal whole. The Plasticity of Recycling The Hegelian dialectic between society and the environment is the relationship of dialects or voices that bind individuals and network of individuals together, represented in the plastic brain as networks of networks of neurons. It is recycled or strengthened through the transmission of neural information from neuron to neuron. But neural information is a physiological way of representing the methods of communication, the way that one neuron recognises another. In other words, the dialectic of recognition or recycling can be expressed by various methods or dialects of communication, one of them being law. The linguistic or expressive nature of recognition can be seen in the key documents of international environmental law, in names such as the 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on the Environment and Development. (One could also refer to documents contemporary to Hegel such as the American Declaration of Independence and the Declaration of the Rights of Man.) They were the result of Earth Summits, where the international community gathered together to discuss and express, i.e. 16
Malabou, What Should We Do With The Brain?, n 13, 36 Andreas Philoppopoulos-Mihalopoulos, ‘Looking for the space between law and ecology’, in Andreas Philippopoulos-Mihalopoulos (ed), Law and Ecology: New Environmental Foundations, (GlassHouse 2011), 22 18 Malabou, What Should We Do With The Brain?, n 13, 42 19 Philoppopoulos-Mihalopoulos, ‘Looking for the space between law and ecology’, n 17, 2 17
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declare, how it felt about and should be treating the environment. Undoubtedly, the forthcoming Earth Summit in 2012 (Rio + 20) will be another opportunity for the world to ‘declare’ its feelings. Given the conflation between society and the environment in the plastic brain, environmental law is the logical way of expressing the bond of recognition or recycling between human beings and the environment. Law describes a relationship between neurons and networks of neurons as a form of obligation. All law is environmental law. The dialectic is represented by love because we are obliged to the other no matter what. This duty is not something that comes naturally20 but requires a conscious decision or will-to-power. Of course, obligation implies a sense of submission. The question is to what extent is recycling an obligation. Law as a method of communication or dialect of the dialectic describes the historical diffusion of power or obligation across the network of neurons, in the form of information across the neuronal network. In the case of UK policy towards household waste collection and recycling, this can be seen in the way that the law gives authority to organisations. This is exactly how the brain works. Whilst the prefrontal cortex has responsibility for overall direction, it is not responsible for doing everything. This starts with the central authority, in the form of central government and Parliament, passing legislation. The Control of Pollution Act 1974 established Waste Disposal Authorities (WDAs) – local authorities that operated and regulated waste disposal sites. Later, under section 30 of the Environment Protection Act 1990, local authorities were set up as both Waste Regulation Authorities and WDAs but were required to keep the disposal and regulation of waste disposal functions separate, like a Chinese wall. WDAs also had to outsource the operational waste disposal functions to private companies or transfer them to arms length companies set up by the local authorities and known as Local Authority Waste Disposal Companies. In other words, the authority for waste management was spread out amongst what were in essence three organisations. WRA regulation responsibilities were transferred to the Environment Agency under section 2 of the Environment Act 1995. Local authorities are legally obliged to provide some form of household waste and recycling collection service.21 This is done through Waste Collection Authorities and private waste collection companies that carried out waste collection.22 Landfill site operators are liable to be taxed for disposing of waste at landfills, the cost of which can be passed onto local authorities.23 Councils also have a limit on how much waste they can dispose of at landfill but they are able to purchase extra (or sell excess) landfill allowances under a landfill allowance trading scheme.24 The UK government is also under an obligation to reduce the amount of waste sent to landfill and increase recycling and can pass any fines for failure to meet targets onto local authorities.25 Consequently, the law on waste collection, recycling and disposal in the UK sets up a series of relationships between local authorities, public and private waste collection agencies, landfill site operators, the UK government and countries on an international level. The relationships are framed within the context that 20
Hegel, Philosophy of Right, n 9, para 174: “Chastisement is not the same as justice; it is a subjective morality, the object of which is to restrain a freedom bound by nature and instil universality into the child’s consciousness and will”. 21 Environmental Protection Act 1990 (UK), s 45(1)(a), s45A (inserted by Household Waste Recycling Act 2003 s1); Another proposal was to charge for waste collection in order to fund rewards, under the Climate Change Act 2008, but the specific legislative provisions are in the process of being repealed under the Localism Bill. 22 John Alder and David Wilkinson, Environmental Law and Ethics, (Macmillan, 1999) 277-8 23 Finance Act 1996 (UK), ss 39-41 24 Waste and Emission Trading Act 2003 (UK), pt 1 25 Council Directive 1999/31/EC of 24 April 1999 on the landfill of waste, (transplanted into UK law as Waste and Emissions Trading Act 2003), article 5
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recycling is a ‘good’ and landfill a problematic that should be reduced over time with recycling seen as the key to doing this. It is important to emphasise that recycling is not just a manifestation of the relationship, it is also the relationship itself and that it is an obligation for the state (central and local government) through law. If law is one manifestation of the dialectical relationship - the obligation implied with love - then individuals have not been subject to that obligation. Those individuals who did recycle were engaging in the relationship with the various authorities and in their relationship to the environment because it felt the right thing to do, although maybe the obligation was created in a different way through marketing messages, non-government campaigns and the media. Periodical research from the Department for the Environment, Food and Rural Affairs over the last 20 years suggests that recycling rates have been gradually increasing.26 However, in 2009, some local authorities such as the Royal Borough of Windsor and Maidenhead have offered reward points based on how much a household recycled, which could then be redeemed at local businesses. Rewards are funded under any savings made from not paying landfill tax. The reward scheme is operated by a private specialist company such as Recyclebank or Nectar. Other local authorities, such as London Borough of Brent, have chosen to make recycling compulsory by issuing fines under existing general legislation.27 It appears that there was already a relationship of recycling without the law making it an obligation (compulsion) or at least increasing the sense of obligation. But the question is how this relationship was changed by the offer of a benefit. Of course, there is a still a dialectic. But is it still love when there is a condition of payment attached for the satisfaction of needs, does it become something seedier? By seeing law as a reflecting the relationship across the waste management networks, it perhaps means that products or packaging can be seen as things that we do not have a relationship with. On the contrary, products are like a third Other in the dialectical relationship; it is that by which the relationship is strengthened, like a bunch of flowers. When the household is seen as the means for the local authority to obtain waste products, the relationship becomes a master/slave dialectic; the slave produces that which it alone can produce but which the Master requires. The only way to rebalance the relationship between the master and the slave is to remove the third Other or pay the slave a (fair) wage through a contractual relationship (more law) such as market mechanism.28 So, as the third Other, products and waste are in the environment of the master and slave neurons; they are arguably types of neurons. Waste is still a part of the plastic brain and has an effect. By purchasing and consuming, neural information bursts across the synaptic gap between the household and the product. By throwing it away, the neuronal connection between the household and the waste product weakens. Instead, a new connection is created between the waste product and whoever collects the waste. And so, we see neuronal connections being created, strengthened, weakened and destroyed according to how often communication between particular neurons take place. The more we throw away waste into landfills or similar, the stronger that neural path becomes and the more effective it performs.
Department for the Environment, Food and Rural Affairs, ‘Public Attitudes Survey’, (Department for the Environment, Food and Rural Affairs, Last Modified: 23 September 2011), http://www.defra.gov.uk/statistics/environment/public-attitude/ [Last Accessed: 26 November 2011] 27 Environment Protection Act 1990 (UK), s 42 28 Hegel, Phenomenology of Mind, n 10, 109
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Citing Marc Jeannerod (Le cerveau intime, 63), Malabou argues: If a synapse belongs to a circuit in frequent use, it tends to grow in volume, its permeability increases and its efficiency increases. Inversely, a little-used synapse tends to become less efficacious. The theory of synaptic efficacy thus allows us to explain the gradual molding of a brain under the influence of individual experience, to the point of making it possible for us, in principle, to account for individual characteristics and particularities of each brain. We are dealing with a mechanism of individuation that makes each brain a unique object despite its adherence to a common model.29 So of course, the greatest challenge is communicating with new neurons. But once that change is made, it becomes a little easier each time. In a sense, moving from the landfilling to the recycling of waste is like changing habits, which are ‘neither consciousness nor deliberate but automatic, and responds to contextual cues rather than explicit instructions’.30 Changing habits is a response to the environmental factor and thus the role of the dialectic between neurons. It is the explosion that happens when susceptibility to change sublates capacity to resist. But what leads to the explosion or sublation may as well be a mystery. Malabou said that habit is automatic from the beginning; it starts off with something accidental, what could be a one-off or occasional, random act but, through repetition, becomes learned. ‘What in the beginning was merely an accidental fact…is changed through continual repetition of the same gestures, through practice, achieving the integrity of a form.’31 Hegel calls habits ‘second nature’32 because they have to be learnt and replace pre-existing behaviour. They therefore only appear to be fixed, but can be changed. They give us something firm to hold onto as we face that unknowable future, but can be replaced as our needs and goals change. This gradual change of habit starts with an accident, a sudden explosion or Big Bang. What I mean by accident is a reference to the notion that no-one really knows what tips the scale from resistance to susceptibility to change. An individual could be subjected to a message for sometime before eventually taking action and what makes someone take action at a given moment is unclear. It does not mean that it cannot be a conscious decision. That’s why it appears to be random or accidental. In a sense, it is akin to procrastination. The individual or household or organisation knows what it has to do, that what is right to do, but for whatever reason it puts off that decision to change behaviour until there is sufficient internal momentum or explosion for a little change, often at the last minute. Ultimately, what is being put off is the development of the relationship with the environment. Of course, as every procrastinator knows, the fact of an explosion implies that that the change is not easy; if it were, there wouldn’t be any need for an explosion. The Flexibility of Disposal
Malabou, What Should We Do With The Brain?, n 13, 6-7 Science and Technology Committee, Behaviour Change: Written Evidence from A-C, (HL, 2010, 225), http://www.parliament.uk/business/committees/committees-a-z/lords-select/science-and-technologycommittee/inquiries/behaviour/ [Last Accessed: 9 December 2011] 31 Catherine Malabou, The Future of Hegel: Plasticity, Temporality and Dialectic, 1996, (Lisabeth During (tr), Routledge, 2005), 73-4 32 Catherine Malabou, The Future of Hegel: Plasticity, Temporality and Dialectic, n 31, 37-8 30
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If waste is therefore a third Other, then landfilling is essentially an act of separation. Since recycling is the relationship between neurons, then disposal in landfills is the breakdown of that relationship, not just with waste but with the environment as waste becomes a part of the environment. In the humanist view, a landfill is seen as the end of the line. But in the post-humanist view of Malabou’s plastic brain, the landfill is a network of neurons where the capacity to receive and pass on information is vastly diminished. For all intents and purposes, they are anti-networks or notnetworks; in reality, for reasons to be explained later, they are still networks. The whole point of the landfill network is that neurons are retired when they are no longer needed. All the municipal landfills, unofficial rubbish dumps, areas of flytipping and the Great Pacific Garbage Patch are landfill networks. The connections to the landfill remain strong but the connections away from it are weak to non-existent. So in the decentering of the brain, the diminishing of neural connections indicates a perpetuation of domination in the wider network. If neural information represents the transmission of power via a relationship, then the strongest connections between neurons develop from repeated use. The least-used neuronal connections are those that will be the weakest. In this sense, waste disposal (or other forms of pollution) is akin to psychic suffering such as depression, where that is a ‘diminution of neuronal connections’.33 The neurons are cut off from their agency and disenfranchised. It is perhaps closer to an Alzheimer’s patient, presented as ‘errant, without memory, asocial, without recourse’.34 There is a ‘thing of connections’ in the brain, the accumulation of fibrils inside neurons and presence of senility plaques, which contribute to rigidification and loss of initiative.35 Waste disposed of in landfill can be compared to these plaques, the rigidity of the network in this area of the brain, the waste disposal system. However, the connection of neurons as both givers and receivers of form is the recycling relationship; instead of neurons being retired they are retried and relate to each other.. Throwing away is akin to flexibility in the network of neurons because it means that that energy does not need to going into recycling the continued relationship with the waste. Recycling the relationship between society and its waste is more difficult, just like maintaining recycling the relationship between society and its environment, which contains the landfill waste. The plasticity of the neuronal bond incorporates both a resistance and a desire to change, because procrastination is a part of our evolutionary make-up; it ‘took a hundred million years to form and is now almost etched into our being’, like a habit or second nature.36 At the same time, throwing away indicates that something is no longer any use. On the one hand, it shows that we can change our habits when we need to. On the other hand, the problem is that landfilling itself is like a habit. It is a reflection of a short-termist agenda to think that change is easy; we are either encouraged or cajoled into changing our habits in a short period of time and if we cannot or will not co-operate with that timescale, then we are marginalised and left by the wayside. A neuron is seen as flexible, with all the motivation to change without any of the propensity to resist or procrastinate. Flexibility means ‘easily bent’, ‘being able to change in order to adapt to one’s circumstances’.37 There is a sense of submission, docility, subjection, etc. By simply being flexible, human beings are unaware that they
Malabou, What Should We Do With The Brain?, n 13, 48 Malabou, What Should We Do With The Brain?, n 13, 52 35 Malabou, What Should We Do With The Brain?, n 13, 52 36 Piers Steel, The Procrastination Equation: How to stop putting things off and start getting things done, (Pearson, 2012), 2 37 Malabou, What Should We Do With The Brain?, n 13, 12 34
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(or any other entity) are also giving form to the systemic brain.38 While the neuroscientific research indicates a plastic brain where all neurons, or at least networks of neurons, are equally important, this plasticity-lite flexibility implies some neurons are more equal than others. That is, there is a group of neurons which dominates the rest, like say the prefrontal cortex, which is the traditional, historical way that the brain has been pictured. This domination can be seen in the manifestation of the master/slave dialectic, where the slave is the means for the master to acquire the third Other, as opposed to the third Other being the means to cement a dialectic of full recognition. Recycling is full recognition in a plastic world, so if a government is trying to encourage recycling, that must be a good thing. The problem is that the relational act of recycling in the UK, with its emphasis on targets and comparisons with other countries, has itself been corrupted by the master/slave dialectic. I would argue that recycling in the UK has been accepted as a good thing to do. Periodical research from the Department for the Environment, Food and Rural Affairs over the last 20 years suggests that recycling rates have been gradually increasing39, even though the UK is still behind other European countries such as France and Germany40. It is true that we are under a European Union obligation41 to meet certain targets and we appear to be on course now. But, in 2006, the National Audit Office concluded that local authorities would not increase recycling rates sufficiently for the UK to meet its obligations.42 On the figures alone and on the surface, it is arguable that policies put in place since that report, such the Landfill Trading Allowance Scheme, incentivisation and the use of fines to penalise non-recyclers have had a positive effect. But research from a number of environmental and media organisations, including the Waste Resources Action Programme and Channel 4, suggests that the problem with low recycling rates is not our resistance to recycling but systemic barriers that make it difficult to recycle. I think the government’s own research suggests that we do have a desire to recycle and a capacity to recycle something43, as indicated by the the work of Malabou on plasticity. We accept that climate change is a reality and landfill emissions are a contributing factor, not too mention the other local and environmental concerns around rubbish. But, given the plasticity and recyclability of the neuronal network, the question is why we need to go as fast as the law - represented by targets, market mechanisms, fines and government
Malabou, What Should We Do With The Brain?, n 13, 12 Department for the Environment, Food and Rural Affairs, ‘Public Attitudes Survey’, (Department for the Environment, Food and Rural Affairs, Last Modified: 23 September 2011), http://www.defra.gov.uk/statistics/environment/public-attitude/ [Last Accessed: 26 November 2011] 40 National Audit Office, ‘Department for Environment, Food and Rural Affairs: Reducing the reliance on landfill in England’, (HC, 2006, para 2), http://www.nao.org.uk/publications/0506/food_and_rural_affairs_reduci.aspx 41 Council Directive 1999/31/EC of 24 April 1999 on the landfill of waste, (transplanted into UK law as Waste and Emissions Trading Act 2003), article 5 42 Department for the Environment, Food and Rural Affairs, ‘Household waste: green and dry recycling’, (Department for the Environment, Food and Rural Affairs, 5 November 2011), http://www.defra.gov.uk/statistics/environment/waste/wrfg16-recycrates/ [Last Accessed: 9 December 2011]; National Audit Office, n 40, para 9: “The Departments modelling suggests that, to meet European Union targets, approximately 40 per cent of household waste should be recycled by 2010. This is likely to be difficult to achieve.” 43 Robert Pocock and others ‘Barriers to recycling at home’, (Waste Resources Action Programme, 2008), http://www.wrap.org.uk/downloads/Barriers_to_Recycling_Summary_Report1.1b4f5ca8.5734.pdf [Last Accessed: 9 December 2011]; Channel 4, ‘Dispatches: Britain’s Rubbish’, (Channel 4, 2011), http://www.channel4.com/programmes/dispatches/episode-guide/series-104/episode-1 [Last Accessed: 9 December 2011] 39
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pronouncements - says we should.44 I would argue that the perceived need for speed for increasing recycling rates that is implicit in the targets distorts the dialectic into one between master and slave, which exacerbates the propensity to procrastinate. If we were to take the master/slave dialectic as the natural order, with slave producers and master consumers, I would argue that ‘production of industry’45 is an apt metaphor for the production and waste management system. All individual neurons, or networks of neurons such as the household, are essentially workers for a corporation. They receive work and pass it on and have a propensity to procrastinate with regard to their tasks. The needs of each individual neuron are met by the network, but each neuron is also a part of the network of another neuron, so there is a pervasive demand to be responsive. Flexible workers are, therefore, in neo-management speak, ‘employable’, because they are able to instantly adapt the ‘productive apparatus of labour to the evolution of demand’.46 But the demand for flexibility means that there is a distinction between what Hegel would call independent Master neurons and dependent Slaves, a consciousness which is not purely for itself but for another.47 The government and local authorities gets their recognition from the law through the achievement of targets, which depend on the work of the individuals to separate recyclables from non-recyclables. However, it is arguable that the individual does not get equal recognition from the state unless a reward is given for recycling, like a wage to the slave.48 But whatever the neuronal network requires of them, they are expected to be able to do. If they cannot or will not, for whatever reason, they are cut off or alienated from the network through punishment, lecturing or shame. This perpetuates the propensity to procrastinate so, in a sense, it is not just the waste that is disposed of or, landfilled or marginalised but also the individual. But, as mentioned before, landfills are not completely cut off the rest of the network even though it appears to be. Though there is no conscious relationship like law, these parts of the brain seem to regress to a proto-self-consciousness. There is some kind of unconscious interaction with other neurons, demonstrated by the slow transfer of pollutants, from leachate into the ground and water supply to greenhouse gases into the atmosphere. Alzheimer’s is a degenerative disease, not just of the neuron but ultimately of the whole brain and body – the brain and body functions gradually start to go and it culminates in death. Increasing recycling rates is not only a matter of protecting the natural environment but also the network environment. As a natural, underlying law or dialectic, the relationship between the disposed of and the disposer are inextricably linked and the degradation of the former leads in turn to the degradation of the latter. The problem is that recycling policy reflects a perceived or desired flexibility rather than the real plasticity of relationships; it comes from the position that people can be dominated through law so as to get them to adapt their behaviour to recycle instead of throwing away rather than that their habitual behaviour can be changed so that recycling becomes the new habit.
Department for the Environment, Food and Rural Affairs, ‘Caroline Spelman speech at Futuresource, Excel Centre: Waste – new thinking for a new economy’, (Department for the Environment, Food and Rural Affairs, 15 June 2010), http://www.defra.gov.uk/news/2010/06/15/caroline-spelman-waste/ [Last Accessed: 9 December 2011]: “The direction of travel is right. It’s the pace that’s the problem. We need to go faster and we need to go further.” 45 Philoppopoulos-Mihalopoulos, n 19 46 Malabou, What Should We Do With The Brain?, n 13, 46 47 Hegel, Phenomenology of Mind, n 10, 108 48 Hegel, Phenomenology of Mind, n 10, 109
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The Resistance of Recycling The connection between the marginalised and the centre and the plasticity of the dialectic indicates that it is possible to refuse to be a flexible individual,. Resistence is a means to reject domination by the state through its use of law. It could be argued that, thus, we should accept explosions –a conscious decision to resist as opposed to a conscious decision to change - from time to time because not all of them are terrorist, even if all may be viewed as a means to repel domination (and possibly also to seek to dominate).49 After all, the essence of the dialectic is the capacity to hold contradictory entities in synthesis. In his reading of Hegel’s The Philosophy of Right, Douzinas points out that illegitimate behaviour, such as not recycling, is a cry for help from someone outside the law to be brought within the law. ‘The essence of crime is the criminal’s demand to be recognised and to be respected as a concrete and unique individual against the uniform coercion of the legal system.’50 In other words, the law would recognise the individual contexts of each individual and not try and force them into a single abstract mould. Introducing fines or incentives is going to have an effect on recycling rates but it will not necessarily deal with the existing alienation that means that people have chosen not to recycle thus far. If anything, it could make things worse. In this sense, there is a blurred or no line between waste in terms of rubbish and waste in terms of marginalised people. Malabou argues that we ought to relearn or remember how to make ourselves angry against a culture of docility, amenity and effacement of conflict and that we should visualise ‘the possibility of saying no to an afflicting economic, political and mediatic culture that celebrates only the triumph of flexibility, blessing obedient individuals who have no greater merit than that of knowing how to bow their heads with a smile’.51 When we suppress the contradiction of resistance, we deny the other the ability to communicate its contradiction. Failure to recognise the other is a failure to love the other, who has been pushed into the environment as a result. If the law does not accept that, actually, people will struggle with recycling through no fault of their own, it will simply marginalise them. But what does it mean to resist? I do not agree entirely with Malabou’s argument that resistance is about opposing the pressure or urge to give up a habit and learn a new one. That is true of course, but I would argue that resistance is not solely about saying ‘no’ to change; it involves an element of saying ‘yes’ too. Perhaps the problem is not that we are not recycling enough52 but that the law is being used by a political ideology to recycle an unnatural environment beyond what we can bear. The plasticity between resistance and change, which is our propensity to procrastinate , is manifest at the very point of le voirvenir (To see what is coming). It is like standing on the edge of a cliff and deciding whether to jump or not, to take the risk. The law is continually being used to push us off, through compulsion, or cajole us into jumping, through incentivisation, when we really just need a little bit longer. Individuals will jump in their own time, at different times. . This is the decision that faced Thelma and Louise at the end of the film. They were on the run, in more than one sense. At first, they were trying to escape, even if temporarily, from the limitations and suffocations of their existing lives and relationships. Then, they escape from the hands of a rapist. After Louise shoots the rapist, they are trying to escape from the authorities. So, for the 49
Malabou, What Should We Do With The Brain?, n 13, 79 Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century, (Hart, 2000), 277 51 Malabou, What Should We Do With The Brain?, n 13, 79 52 Pocock and others, ‘Barriers to recycling at home’, n 43 50
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whole film, they are on one sort of cliff edge or another. On the one hand, their choice is between submitting to how the law was telling them to be, whether it was the limitations of their existing lives, the force of rapist and the authorities, and living free of the law. And yet, there was uncertainty and fear about what lay ahead. They could easily have submitted to the fear, turned round and submitted to the status quo. For them, going forward was the act of resistance to what was keeping them back, which meant it was also an act of resistance to the future of uncertainty. Le voirvenir reflects a moment between resistance and adaptability. But that decision-point never goes away because it exists at all moments. That is, le voirvenir is time. So when Thelma and Louise drive off the cliff, it was both an act of resistance to everything behind and ahead of them that said they could not change their situation. Indeed, adapting to their situation would have meant giving in. So when Malabou says that we have to learn that we can say ‘no’, she means that we can say to ‘no’ to forward or ‘no’ to staying where we are or going back. It is like the households who recycle but have not opted-in to receive reward points.53 It can pull or push us back when we want to change but it can pull or push us forward when we want to stay where we are. Le voirvenir is the moment of the unfired synapse, the moment before the explosion. Whether one neuron recognises another will depend on whether the synapse fires and this act of crossing is recycling. Given the plasticity of the dialectic between society and the environment, every change, no matter how small, is going to change the outcome in 2020 or 2050.54 Conclusion There is a dialectical relationship between human beings. The dialectic is plastic, which means that each human being, and therefore each group of human beings, is susceptible to change and have the capacity to resist. This means that actions and behaviour change takes place with an explosion, when the susceptibility to change sublates one’s capacity to resist. In this way, the process of recognition that takes place between two people is like a connection between two neurons in the brain, with the dialectic represented by neural information. In the neuroscientific discourse, therefore, there is nothing at the centre of the universe; each human being can be viewed as the centre of its own network or environment. But by going beyond the human to the neuronal, one can argue that humans are only types of neuron and that there is a dialectic between all entities, including animals, plants and between society and the environment as a whole. Given this, waste management policies are an essential feature of the dialectic between humans and the environment and humans within the environment because traditional landfill degrades at the expense of the whole system including the humans within it. Because of targets, there is a current shift in policymaking regarding recycling towards an approach that favours incentives and penalties provided for by law. However, in this article it is argued that the more powerful position would be to harness the plasticity of our relationship to each other and the environment and use this as a means to assist those who wish to change their waste disposal behaviour to do so, as individuals and as a whole network so as to improve the health of the personal neural network and society and the environment more generally. This means seeing the resistance towards recycling as procrastination. Rather than trying to achieve a long term goal, it may be more effective for policymakers to just focus on the general goodness and a more short term benefit of recycling. 53
Improvement and Efficiency South East, n 4, 5; Halton Borough Council, n 4 2020 is the EU target for increasing recycling rates by 50% and 2050 is the target for reducing greenhouse gas emissions by 80-90% below 1990 levels. 54
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Gender, Hierarchy, Power and Inequality: What Sociological Theory Adds to our Understanding of Sex-Discrimination.1
‘When we speak about gender we also speak about hierarchy, power and inequality, not simply difference.’2
As lawyers we tend to approach discrimination from a legalistic standpoint, unsurprisingly. We examine an individual’s situation looking for evidence of direct and indirect discrimination as against appropriate comparators, in the context of disputed facts and differing notions of fairness and equality. As socio-legal scholars many of us examine the lived experiences of those in dominant and minority positions and explore with them their perceptions of fair treatment and/or discrimination. Both approaches capture important data about less favourable treatment, however, our focus sometimes has a tendency to rest at the micro level and when it does consider the macro environment it often does so through the lens of the individual. Thus, when we do attempt to move from the micro to the macro we may inadvertently miss many of the structural barriers that exist to make equality hard to accomplish. This short article attempts to provide a review of what the sociological literature indicates about structural barriers to gender equality, and consequently makes evident the complex challenges that face any society that truly desires equality between the sexes in the workplace, or for that matter in other arenas. The starting point for the review is Kimmel’s quotation, above, which is an intriguing one in that it may be interpreted in a number of different ways. On one reading it suggests that in order to understand gender, one must also examine other sources of hierarchy, power and inequality so as to reach an evidence based view on its role in producing inequality. On another it suggests that inequality is a product of gender resulting from the differences in power that men and women enjoy and that this source of inequality may be examined as independent of other social categories that may produce inequality. This short article will take the second of the two interpretations, while noting that gender alone cannot be the only or even necessarily the more important source of inequality in UK society. Social categories such as race, class and age also contribute significantly to inequality3, but for reasons of space in an article of this length they will not be discussed in any detail here.
Dr. Lisa Webley, Professor of Empirical Legal Studies the University of Westminster School of Law. Michael Kimmel, The Gendered Society (3rd edn, OUP, 2008) 1. 3 See for example Wendy Bottero and Sarah Irwin, ‘Locating Difference: Class, “Race” and Gender, and the Shaping of Social Inequalities’ (2003) Vol 51 No 4 The Sociological Review 453-483; Rachel Rosenfeld, ‘What Do We Learn about Difference from the Scholarship on Gender?’ (2002) Vol 81 No 1 Social Forces 1-24; Beverley Skeggs, Formations of Class and Gender (Sage Publications, 1997); Lynn S. Chancer and Beverley Xaveria Watkins, Gender, Race, and Class: An Overview (Blackwell Publishing, 2006). 2
It is noted that this approach may suffer from the problems associated with gender realism4 as gender cannot be constructed independently of other factors such as class and race etc.. Gender realism risks privileging gender over other social constructions. It may also lead to a charge of essentialism akin to that rightly laid at the door of biological determinism, namely that all women experience the world in similar ways, whether that be on grounds of sex or gender, and thus all women experience the world differently from men. However, as discussed below, this article seeks instead to examine gender as one form of social stratification (as Marx did with class) through which differences may lead to inequality of life chances and life choices. The review will begin with an examination of the relationship between sex and gender. It will then consider the distinction between difference and inequality with reference to functionalist and feminist approaches to gender difference. It will then focus on the empirical evidence of gender hierarchy, power and prestige before providing a conclusion about whether gender difference leads to hierarchy, power differentials and inequality in contemporary British society. Sex and Gender The terms sex and gender are often used interchangeably when in fact they denote different concepts. Sex is the term used to indicate physical belonging to a male or a female body largely determined by the presence of male or female sex organs. The term gender is usually used, by contrast, to denote the social construction of the masculine and the feminine.5 Those who consider that gender and sex are both naturally occurring conditions resulting from biological differences between men and women are considered to be biological determinists. This explanation of difference between men and women has lost favour as little robust evidence has been found to indicate that there is more difference between men and women than there is within the category of man or the category of woman.6 A second explanation is that sex and gender are different, sex being a naturally occurring phenomenon, whereas gender being a social constructed state reproduced and reinforced through socialisation.7 Thus while sex is biologically determined, gender identity may be the result of a range of social influences.8A third definition has now been posited for sex and gender, namely that neither sex nor gender should be considered as ‘natural’ states but as products of social construction as people chose or feel compelled to alter their bodies in response to their own or others’ perceptions about the physical form and identity.9Some sociologists, for example Haslanger, would argue that it is entirely possible for a sexed male to have a feminine gender identity. 10 However, it is also the case that self-identification of gender may contradict gender ascription by 4
See Elizabeth Spelman, Inessential Woman (Beacon Press, 1988) 159. See for example the Stanford Encyclopaedia of Philosophy discussion: Mari Mikkola, ‘Feminist Perspectives on Sex and Gender’ Edward N. Zalta (ed.) The Stanford Encyclopedia of Philosophy (Stanford, 2008) <http://plato.stanford.edu/archives/fall2008/entries/feminism-gender> accessed on 29th March 2011; further Judith Butler, Gender Trouble 2nd Edition (Routledge Publishing, 1999). See too Chrys Ingraham, in Steven Seidman (ed.), Queer Theory/ Sociology (Blackwell Publishers, 1996) 182-4. 6 Robert Stoller, Sex and Gender: On the Development of Masculinity and Femininity (Science House, 1968). 7 th Anthony Giddens, Sociology (6 edn, Polity Press, 2009) 602. 8 See Kate Millett, Sexual Politics (Rupert Hart-Davis Ltd, 1971)28–9. This is not without its problems either, as some such as Ingraham, ‘The Heterosexual Imaginary: Feminist Sociology and Theories of Gender’, n 5, 169 would argue that this gender is constructed within the confines of heteronormativity, which is itself a source of inequality for those who do not define as heterosexual. 9 Giddens, Sociology, n 7, 607-8. 10 Sally Haslanger, ‘Gender and Race: (What) are They? (What) Do We Want Them to Be?’ (2000) Vol. 34 Noûs 31-55. 5
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others, consequently a biological male may self-define as the feminine gender and yet be ascribed a masculine gender identity by those ‘he’ comes into contact with.11One’s response to the question ‘is gender naturally occurring or a social construct?’ is important to understanding one’s stance on gender differences and the production of gender inequality. Difference versus Inequality Why does it matter whether one adopts a biological determination or a social construction of gender? In essence, were gender to be a naturally occurring phenomenon and were there to be evidence of a difference in aptitude and skills between biological men and biological women so as to indicate a necessary division of role, power or position, then any difference that flows from a person’s gender could be considered naturally occurring too. Thus difference that placed men and women in different positions would not necessarily be regarded as unequal or discriminatory, but instead as rational and fair.12 Giddens argues that even though male and female roles vary from culture to culture, there is evidence to suggest that women’s roles are universally less valued than men’s.13This argument is not without its critics, however.14Even given cultural variations, it is most usual for women to have primary responsibility for child rearing and domestic work and for men to have primary responsibility for wage earning or the provision of money, food and other material essentials for the family.15 Some theorists suggest that this division of labour is a natural phenomenon in response to different male and female attributes and capabilities. But, there are a number of theories that seek to explain the values and processes that lead to social stratification on grounds of gender. Functionalists consider that the division of roles between men and women has led to a stable environment in which people can thrive. Some functionalists consider that the division is a natural one that is best suited to the biological characteristics of men and women.16 Their views differ from those of biological determinists in that the division is one that is socially constructed but it is the best adaptive division of labour given biological differences. Talcott Parsons17 argued that child development was best supported through stable families and that a clear division of roles between men (undertaking instrumental roles) and women (undertaking expressive, nurturing roles) led to stable families and to positive socialisation of children.18 Bowlby considered that the mother’s role was key to positive and healthy child socialisation.19 His view reinforces the mother’s (or a female substitute’s) domestic role and by default also the father’s workplace role. Therefore the functionalists argue that male and female division of labour is a positive social construct, if not a biological necessity. Any apparent inequality between men and women on this basis may 11
See Suzanne Kessler and Wendy McKenna, Gender An Ethnomethodological Approach (University of Chicago Press, 1985) 1-4. 12 Although note that UK legislation considers that differential treatment on grounds of biological sex difference such as child bearing may be regarded as discriminatory – see the Sex Discrimination Act 1975. 13 Giddens, Sociology, n 7, 614. 14 See Nancy Chodorow, ‘Being and Doing: A Cross Cultural Examination of the Socialization of Males and Females’ in Vivian Garrick and Barbara Moran (eds), Women in Sexist Society (Basic Books, 1971) 259-291, for example. 15 Giddens, Sociology, n 7, 614. 16 See for example George Murdock Social Structure (Macmillan, 1949). 17 Talcott Parsons and Robert Bales, Family Socialisation and Interaction Process (Pluto Press, 1956). 18 Giddens, Sociology, n 7, 615. 19 John Bowlby, Child Care and the Growth of Love (Penguin, 1953).
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presumably be counter-balanced by the positive contribution that role differentiation provides for society. However, other approaches provide evidence for the view that gender is a socially constructed identity linked frequently if not exclusively with a person’s sex.20 Feminist approaches have criticised functionalist theories on grounds that they appear to excuse inequality and assert as natural a state that has been socially constructed to further the dominance of men and the subordination of women. Feminist theories are part sociological theory and part political campaigning (similar to Marx’s writing on class). But feminist scholarship is not monolithic and the attitudes, processes and structures that lead to gender inequality are contested.21 Some feminists consider that the underlying processes that give rise to inequality result from sexism. Others suggest that it is patriarchy that is the main driver for female oppression and exploitation. Walby argues that patriarchy operates through six structures.22 The principal two are: gender relations in the household produce an unequal relationship as women undertake unpaid domestic work allowing men to earn an income from their work in the market; secondly the lower status of women in paid employment results in lower pay and exclusion from high status, high paying roles.23Wably notes that in the UK there has been a change in the nature of patriarchy and that this has accelerated in recent decades but that even as women may be less oppressed privately in the home, they are being subject to ongoing patriarchal oppression in the public sphere which has now become so mainstream that it is rarely even noted.24
Other feminist approaches take issue with this explanation of gender inequality. Liberal feminists are more inclined to consider social and cultural attitudes as the drivers of inequality. Black feminists consider class and ‘race’ to be important factors in explaining the lived experience of nonwhite women in particular, and they criticise much feminist scholarship as unduly essentialist. Postmodern feminists also challenge the view that women experience the world the same way and argue that it is not possible to create a meta theory (whether that is patriarchy, race or class25 that explains gender inequality but that scholarship should focus on diversity, pluralism and standpoint.26 Oldersmaand Davis have argued that feminist scholarship has failed to conceptualise the relationship between gender difference and power. They have highlighted Connell’s work as particularly strong on this issue as his evidence based approach ‘is reminiscent of the work of Bourdieu and Giddens, … [and] combat[s] the ills of dualist notions of power and gender.’27 We shall turn to this in the next section so as to consider hierarchy, power and prestige as produced through gender difference. 20
Note Oldersma and Davis’s discussion: Jantine Oldersma and Kathy Davis, ‘Introduction’ in Kathy Davis, Monique Leijenaar and Jantine Oldersma (eds) The Gender of Power (Sage Publications, 1991) 1-18. 21 See Chris Beasley What is Feminism? An Introduction to Feminist Theory (Sage Publishing, 1999). 22 Sylvia Walby, Theorizing Patriarchy (Blackwell Publishing, 1990) and as discussed in Giddens, Sociology, n 7, 618. 23 Others include: the patriarchal state; male violence and is normalisation by the state; unequal sexual relations between men and women; and patriarchal cultural institutions and practices are propagated via the media, religion and education, which frame women within the confines of patriarchy. 24 Giddens, Sociology, n 7, 618. 25 See Beasley, What is Feminism? An Introduction to Feminist Theory, n 21, 85-88. 26 Giddens, Sociology, n 7, 621. 27 Oldersma and Davis, ‘Introduction’, n 20, 12.
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Evidence for Gender and Hierarchy, Power and Prestige Sociological empirical research provides evidence that there is a socially constructed gender hierarchy which leads to an unequal division of power and prestige between men and women. Connell’s works28 are, according to Giddens29, modern classics that integrate masculinity and patriarchy into an umbrella theory on gender relations and gender inequalities. Connell considers that male social power creates a social structure that leads to female subordination (1987) and conceptions of masculinity and femininity lead to continued male dominance reproduced through socialisation of both men and women. Connell argues that this gender order is produced through three components: labour (domestic and in the market), power (physical and through sites of authority) and cathexis (intimate relationships including parenting). While separate components, they cross cut and interrelate to produce a gender hierarchy. The masculinities-femininities hierarchy, illustrated by reference to masculine and feminine ideal types, pervades aspects of the public and private spheres through cultural dynamics. Connell argues that hegemonic masculinity (as evidenced principally through marriage and heterosexuality, authority, paid work and physical strength) is hierarchically dominant and resistant femininity subordinate.30 That is not to say that all men embody or subscribe to hegemonic masculinity but many men will benefit from it and be complicit in it. He considers that there are a number of subordinated masculinities including homosexual masculinities ranked at the bottom of the masculine scale, but that femininities are hierarchically equal to, or below, subordinate masculinities and thus well below hegemonic masculinity. Interestingly emphasised femininity (ranked at the level of homosexual masculinity), is deemed to complement hegemonic masculinity through ‘compliance, nurturance and empathy’ as well as sexual availability. At the bottom of the hierarchy are subordinated femininities including resistant femininities and those that reject the emphasized versions of femininities.31Consequently Connell argues that gender difference is really gender inequality as a result of gender power and hierarchy. Is contemporary British society undergoing a process of transformation that is challenging the gender hierarchy? Connell argues that there is a crisis of institutionalisation in that the institutions that have supported male dominance – the family and the state- are being challenged.32 Further, male domination over women is being eroded through legislative measures such as divorce, domestic violence provisions and linked measures such as tax and pension provisions.33The crisis of sexuality is weakening heterosexuality’s pre-eminence and absolute dominance as women’s sexuality is being encouraged (some may say exploited by the market) and mainstreamed. Dominant modes of (social) interest formation are being contradicted by gender equality policies and legislation, by men becoming more involved and more interested in being more involved in child rearing (the rise of ‘the new man’) and women’s growing interest and/or ability to play a full role in
Raewyn Connell, Gender and Power: Society, the Person and Sexual Politics (Polity Press, 1987); Raewyn Connell The Men and the Boys (Allen and Unwin, 2001); Raewyn Connell Masculinities (Polity, 2005). 29 Giddens, Sociology, n 7, 610-11. 30 See Giddens, Sociology, n 7, 611-2. 31 For a discussion see Skeggs, Formations of Class and Gender, n 3, chapter 8. 32 Giddens, Sociology, n 7, 610; see Kimmel, The Gendered Society, n 2, chapter 6. 33 Giddens, Sociology, n 7, 610.
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the labour market (what may be described as the rise of or the freedom of ‘the new woman’).34Pay differentials between men and women in full-time employment have been closing in the UK and economic research indicates that between 1970 and 1994 women’s median pay per hour for fulltime employment has risen from 65% to 80% of men’s hourly pay.35 More recent research suggests that the differential remains around the 20% level although studies provide conflicting data on this point.36These crises may be shifting the gender order, which in turn may lead to a reduction in gender inequality. Conclusion When we speak about gender we speak about difference. There appears to be little evidence that gender differences are natural, but instead that they are a product of social construction that is reinforced through socialisation processes. Further, gender differences appear to be subject to a hierarchy of value which leads to inequality of life chances and life choices. However, gender is just one of a number of social categories that lead to social stratification and thus not all women or men in a given country experience life similarly through a gender lens. Some will reject the gender identity that is ascribed to them; others will have constructed a resistant or a counter-typical gender identity that has an impact on their experience of life. There is also evidence to suggest that gender relations are in state of flux and challenging the prevailing patriarchal order as women seek more opportunities in the employment market, men seek more opportunities for fulfilment in the domestic sphere and as gender dynamics shift economically, politically and socially. Postmodern feminists would argue that through the use of deconstruction and the valuing of diversity and differing standpoints it may be possible to move from a society based on gender inequality to one in which difference is celebrated and equality is achievable, regardless of sex, gender (ascribed or selfdefined) or sexuality. What does appear to be clear, however, is that if contemporary Britain wishes to develop as an equal society it will be necessary to tackle structural and institutional barriers to equality. Sex discrimination legislation has played an important role in tackling discrimination from the bottom up, one employer or employee at a time. But there are more deep seated barriers to equality as evidenced by unequal division of domestic labour (principally child care and the running of the home) that will need to be tackled for workplace equality to become a reality. The sociological literature shines a light on these on-going issues and may provide some assistance to law reformers and policymakers intent on reducing discrimination still further.
Giddens, Sociology, n 7, 612; see Jane Lewis and Mary Campbell, ‘UK Work/Family Balance Policies and Gender equality 1997-2005’ (2007) Vol 14 No 1 Social Politics 4-30 for a discussion; and Oriel Sullivan, ‘Changing Gender Practices with the Household: A Theoretical Perspective’ (2004) Vol 18 No 2 Gender and Society 207-222. 35 Susan Harkness, ‘The Gender Earnings Gap: Evidence from the UK’ (1996) Vol 17 No 2 Fiscal Studies 1-36, 1. 36 See for a discussion example: Michal Myck and Gillian Paull, The Role of Employment Experience in Explaining the Gender Wage Gap Institute for Fiscal Studies Working Papers W04/16 (London: Institute for Fiscal Studies, 2004); for a US discussion see Kimmel, The Gendered Society, n 2, 202-221.
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The Spring 2012 issue of Westminster Law Review