Liberal Dream Turning Sour
10 September 2005
Liberal Dream Turning Sour: Economic, Social and Cultural Rights included in the Human Rights Commission’s action plan.
At public meetings during the current election campaign in New Zealand the representatives of the political parties generally refused to reply when asked where they stood on the economic, social and cultural rights (ESC rights) which were included in the Human Rights Commission’s New Zealand Plan of Action for Human Rights in February 2005. Consequently our political parties are resisting ESC rights (social justice) in their slow climb up the domestic and international agenda.
While all refused to respond at the first meeting of political representatives on 16th August at the second meeting on 3rd September there was a slightly better response. The Maori Party and the Communist League, neither of whom have been elected into parliament, were supportive of ESC rights. Hone Harawera representing the Maori Party said his party would support greater legislative protection for the areas dealt with by ESC rights i.e. employment, fair wages, health, housing, education and an adequate standard of living.
For example, greater protection would exist if ESC rights were included in the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 which presently only consist of civil and political rights (CP rights) i.e. traditional liberties. Two other party representatives responded reluctantly with Phil Goff, the Labour Government Minister of Foreign Affairs, while admitting the importance of ESC rights, side stepped the issue of the need for ESC rights in law and instead talked of the existence of legal rights under ordinary legislation to protect social justice.
However he overlooked the fact that legal rights are at the whim of successive governments whereas as ESC rights social justice would be protected by the courts in the same way as are traditional liberties and democratic rights (also governments do not like to be seen violating human rights). The Green Party representative, Keith Locke, was also rather muted in his response though indicated his party recognized the importance of ESC rights.
Apart from ensuring, at the very least, basic levels of health, standard of living etc the umbrella of ESC rights (social responsibility) would ensure that those with a social conscience, socialist groups, many religious groups, NGOs representing the poor, and lower class cultures will not continue to be marginalized or relegated to the fringes of society.
The meetings were held at Auckland University (eight parties represented) and the Mt Roskill War Memorial Museum (nine parties represented). The former on the 16th August and the latter on the 3rd September.
Apart from their inclusion in the Human Rights Commission’s New Zealand Plan of Action for Human Rights the New Zealand Labour Government has been promoting ESC rights at the international level e.g. the Asia-Pacific Forum and the present discussions at the United Nations regarding a complaints procedure (Optional Protocol, OP) for ESC rights but it says nothing publicly.
None of the parties presently represented in parliament promote ESC rights in their policy as evidenced by their websites and Index New Zealand at the Public Library, which lists articles written in magazines and newspapers, reveals no public statements by any member of parliament on the subject of ESC rights.
Typically New Zealand and the West, in general, have only defined human rights as CP rights (freedom and democracy) – freedom of speech, movement, fair trial, democratic rights, the right to life, liberty and security of person etc – and rarely ever talked about ESC rights (social justice). However the Universal Declaration on Human Rights (UDHR, 1948) contains both sets of human rights. Noam Chomsky states that ESC rights are “largely dismissed in the West” and in the United States the “contempt for the socio-economic provisions of the Declaration are …..deeply ingrained” (Human Rights Fifty Years On, The United States and the Challenge of Relativity 1998, pp 32-39). America, whose constitution only includes CP rights, is the only major industrialised country not yet to have ratified the International Covenant on ESC rights under international law.
Those who believe in the narrow view of human rights i.e. CP rights plus the right to property are called liberals. Consequently all the political parties in the New Zealand Parliament are liberal. That some are called conservative reflects different economic and social policies not ideology. The prioritization of one set of rights over the other reflects the ideological nature of human rights with, in my view, the liberal, middle class, professional elites, given their dominant position in society, by far the main beneficiaries of CP rights.
Whereas ordinary New Zealanders (middle New Zealand) and the most disadvantaged would be the main beneficiaries of ESC rights. While CP rights (the ability to influence) are necessary to protect and improve your ESC rights (economic security) without the latter one cannot make use of CP rights. Consequently the United Nations, at least in terms of rhetoric, proclaim the equal status of both sets of rights (Vienna Declaration, 1993). It is sometimes said, food and freedom are of equal importance.
Thomas Hobbs, a famous 17th Century English Philosopher, stated in the Leviathan: “Ignorance of remote causes, dispotheth men to attribute all events, to the causes immediate, and intrumentall; for these are all the causes they perceive”.
Knowledge of ESC rights would enable people to make a leap in the imagination and see that their own suffering and many social problems such as poverty, terrorism, crime, mental illness, even nuclear proliferation have their origin in ‘remote causes’ i.e. domestic and international structures which have failed to include ESC rights.
For example not only are ESC rights rarely included in domestic law but the IMF and the World Bank have largely ignored them while they are marginalized in regional human rights law e.g. the European Union and the Americas. In my view without the choices afforded by ESC rights individual responsibility is greatly diminished.
The West has generally attributed social problems to immediate, inner causes - hence terrorists and criminals are just evil, the mentally ill are weak, poverty is the fault of the poor and North Korea and Iran are renegade states and part of the Axis of Evil. The emphasis of neo liberalism has been to regard unemployment, low wages, health, housing, education and standard of living as increasingly an individual responsibility requiring the user to pay rather than as a social responsibility i.e. ESC rights to be ensured by government.
The considerable ideological success of neo liberalism (or the globalization of liberalism) is illustrated by the doubling of liberal democracies around the world since 1972. For example, in 1972 there were 43 liberal democracies (29% of countries) but by 2003 there were 87 (45% of countries) (Professor R.J. Rummel, Democratic Peace (Internet), 13th July 2005). However, in my opinion, this success may be largely attributed to the realization amongst global elites that neo liberalism greatly increases their wealth and power.
This success did not extend to economic globalization and privatization in the delivery of human rights (including ESC rights) as the considerable increase in the gap in wealth and power within and between countries shows (J Kelsey, Constraints and Opportunities of the Globalised Economy (2000) in Building the Constitution ed Colin James, p125).
Since the collapse of communism in Eastern Europe in 1989 the liberal dream of a world dominated by liberal, middle class, professional elites is now starting to turn sour. To the extent that terrorism is a reaction to neo liberalism (which has no social justice component in its belief system) the recent terrorist attacks against the leading liberal democracies may not have occurred if liberal elites had included ESC rights in their belief system.
The West’s response to political violence is the War on Terror which is resulting in many liberal democracies having to curb their civil liberties leaving these countries vulnerable to more authoritarian governments in the future. This shows that while generally liberal democracies are quite absolutist in their interpretation of CP rights (and hence resistant to the inclusion of ESC rights e.g. tax increases would affect the individual liberty of the rich and powerful) when elite interests are directly affected by terrorism or demonstrators their dominant position allows them to compromise the CP rights. In my view it is the latter rights which led to this elite becoming such an overwhelmingly dominant force in the first place.
In the present debate at the United Nations on a complaints procedure to benefit mainly the poor (the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights) there is an ideological split developing between the leading liberal democracies, the US, Australia, the UK and Canada and the most poor regions of the world, Africa and South America, with the former prioritizing CP rights while the latter regard ESC rights as being the same status as CP rights.
The increasing gap between rich and poor countries may contribute to nuclear proliferation amongst poorer countries e.g. India, Pakistan and North Korea have nuclear weapons and now, it seems, Iran may be next. The liberal dream has received further blows with the US’s increasing loss of credibility in Iraq (where it hoped to create a liberal democracy), the world-wide demonstrations against neo liberalism from Seattle to Calcun and the US’s seemingly negative attitude towards the poor leading to considerable delays in helping the victims of the massive flooding of New Orleans.
These occurrences are pushing, or likely to push, ESC rights, almost completely marginalized since the collapse of communism, even higher on the domestic and international agenda.
For the first time since the universal declaration was signed in 1948 ESC rights finally received official recognition in New Zealand in February 2005 in the Human Rights Commission’s New Zealand Plan of Action for Human Rights. This is 57 years after former PM Peter Fraser led the New Zealand delegation at the UN in 1948 and antagonized our Western allies by promoting not only traditional liberties but also the ESC rights which were being championed by the East European communists. Paul Lauren when visiting this country in 1998 to research New Zealand’s contribution to the UDHR stated:
“In launching this revolution, New Zealand was far out in front of other nations, though its role is not generally known and certainly not appreciated” (The New Zealand Herald, 10th December 1998). Although the Human Rights Commission discussed the action plan with about 5000 people, held public meetings and obtained some publicity for the action plan Index New Zealand indicates that no articles have been written on its inclusion of ESC rights. New Zealand’s ratification of the covenant on ESC rights in 1978 and their present inclusion in New Zealand’s action plans suggests that ESC rights were deliberately overlooked in 1984 when they should have been ensured by governments.
In my opinion a major fear of liberal democratic elites is that the people will become educated in ESC rights thereby exposing elite interests. In my view the hegemony of this liberal elite, which constitutes a sacred cow in our society, is carefully concealed from the people. For example the myth of egalitarianism still prevails despite glaring differences in wealth and power. Such education in the UDHR has been described by Sir Geoffrey Palmer as a legal duty under the United Nations Charter (Human Rights and the New Zealand Government’s Treaty Obligations, Address to the International Law Association, Auckland, 30 April 1998) but typically global elites fail to do so. For example only 14 countries, including New Zealand, have formulated plans of action (which can involve the inclusion of ESC rights and a degree of public education) which were initiated by the Vienna Declaration and Program of Action (Recommendation 71) in 1993 (Inquiry into the role of international human rights in foreign policy, NZ House of representatives, August 2005).
It is perhaps not surprising given this lack of education that few states have incorporated justiciable ESC rights (i.e. able to be dealt with by a court) in law. Mario Gomaz states: “…while states both in the North and South, have incorporated CP rights in their constitutions, few states have similarly incorporated ESC rights either in their constitutions or domestic legislation. ESC rights have remained at the level of non-justiciable principles of state policy” (Mario Gomez, Social Economic Rights and Human Rights Commissions, Human Rights Quarterly 17 (1995), pp155-169). Some of those countries which have included ESC rights as justiciable rights are South Africa, Finland and Norway.
Over the past two years countries have been debating whether to draft a complaints procedure (Optional Protocol, OP) for ESC rights. This would particularly benefit the poor allowing them to make complaints to the United Nations Committee on Economic, Social and Cultural Rights. Also, like the OP for CP rights (which entered into force in 1976), it is likely to provide for domestic remedies e.g. taking complaints to the Human Rights Commission and claims to court. The major opposition to the OP and ESC rights is coming from the leading liberal democracies, the US, Australia, the UK and Canada – the first three having suffered major terrorist attacks (Australia in Bali) in recent times.
Two strong supporters of this group in this debate, Egypt and Saudi Arabia, have also been subjected to recent terrorist attacks. There is also an ideological split occurring between these countries and the poorer regions of Africa and South America with the latter promoting ESC rights and supporting the OP. New Zealand has adopted a neutral position with respect the OP - against immediate drafting but happy to continue discussions. While ideologically it is aligned with the poorer regions and the experts at the UN in promoting the equal status of both sets of rights it says nothing publicly.
Over the past two years our council, the Human Rights Council Inc., have tried to inform the public but the mainstream liberal press refuse to publish the information - our only successes have been on the internet and in the ESR Review, a human rights journal published by the University of Western Cape, South Africa (see internet under Anthony Ravlich). Tony Evans states that ‘the western, neo-liberal coalition, both in the United Nations (UN) and the wider global community, has succeeded in acknowledging formal parity between the two sets of rights while simultaneously promoting only civil and political rights through rhetoric, policy and action’ (Trading Human Rights,1999, p33).
A final decision on the drafting of the OP will take place at the United Nations Human Rights Commission in April 2006. The outcome is by no means clear. Recently in the midst of the London bombings the G8 comprising largely of liberal democratic countries - the US, the UK, Canada, Japan, Italy, Germany, Russia, France - offered seemingly generous debt relief for the poorer regions but these regions are still required to pursue the same neo liberal policies which helped bring about greater poverty in these countries (John Pilger: G8 Will Not Ease Third World Poverty, Green Left Weekly, 7th July, 2005).
This suggests attempts by those countries elites to address extreme poverty, a stated objective of the G8, may be only of a token nature leaving the elites as the main beneficiaries. It seems quite plausible to expect that significant amounts will be expended on authoritarian means to control internal conflict. The economic concessions of the West also indicate a fear that poor countries could have recourse to nuclear weapons e.g. North Korea.
In my view the liberals have captured the democratic process in New Zealand with all the political parties in parliament colluding to exclude ESC rights. This liberal elite largely control the mainstream media. ESC rights have been virtually ignored by the press - Index New Zealand cite 1221 articles written on civil rights since 2002 but only 16 articles have been written on ESC rights since 1996. Also this sector are the major employers, dominate the courts (there are no ESC rights in law) and even government and parliament (as stated earlier no political party promotes ESC rights and according to my figures about 78% of MPs come from the professional sector. Jack Nagel in the British Journal of Political Science (1998) states that in1935 17.9% of Labour MPs came from a professional, semi-professional background but by 1984 this had increased to 73.2%).
So the liberals determine what gets printed, who gets employed, and control legislation. They have been engaged in the dismantling of the welfare state since 1984 when the Labour Government showed that welfare is not essential to liberal principles.
At the same time they have been strengthening their ideological base by including CP rights, previously only protected in the common law, in human rights law e.g. HRA 1993, NZBORA 1990 and establishing a number of commissions e.g. the Health and Disability Commission, the Privacy Commission, Commissioner for Children etc to propagate the ideology of individual freedom thereby greatly increasing the status of CP rights vis-à-vis ESC rights and social responsibility. Tyson and Aziz Said state that
“The model of the modern democratic state was – and still is – a capitalist, mercantilist, middle-class system and society, emphasising civil and political rights, and arguing that cultural, economic and social rights will come later, that they will have to wait, because after all, “these things take time”, as old segregationists in the South of the United States used to say”(Human Rights Quarterly 1993, Human Rights: A Forgotten Victim of the Cold War, p591).
Two aspects to poverty can be described – relative and absolute poverty. Relative poverty reflects the gap in power while absolute poverty reflects more the gap in wealth. The former is the oppressive side of poverty while the latter relates to survival. As the gap in power grows the dominant liberal elite increasing becomes what T.H. Marshall describes as a ‘closed group monopoly’ – ‘which is one into which no man can force his way by his own efforts; admission is at the pleasure of the existing members of the group (T.H. Marshall, Citizenship and Social Class, p19). In my experience ‘liberal gatekeepers’ are used to exclude threatening ideas, ideologies and incompatible lower class cultural viewpoints from the media and the work force including, with only a few exceptions in New Zealand, the so-called independent NGOs.
Conformity to the neo liberal ideology is paramount and ability of much lesser importance. In a society where there is a big discrepancy in power CP rights while included in law are no longer universal in reality e.g. those at the top can wield considerable influence while those at the bottom may have extremely little influence.
So groups such as socialists, many religious groups, NGOs representing the poor etc find themselves marginalized and having to fight for their cause in the fringes of society. In human rights terms absolute poverty relates to the ‘core obligations’ of the state (General Comment 3, UN Committee on Economic, Social and Cultural Rights) and reflects extreme poverty. A big gap in wealth coupled with human rights violations indicates society’s lack of ability to fairly share the resources of the state.
In my opinion those individuals and countries which possess strong belief systems are best able to withstand and resist having to conform to neo liberalism e.g. the IMF and the World Bank structural adjustment programs which have required the adoption of neo liberal policies in return for loans. A strong belief system may account for why some Islamic countries have responded with terrorism while poorer countries in Africa have plummeted into extreme poverty and despair. It can be imagined that where Islam dominates a section of the elite whose interests are closely aligned to the religion may resist neo liberalism.
Secular liberalism, requiring the equal status of all religions, poses a threat to Muslim dominance and those that benefit most by it. It may not be surprising therefore that this disaffected elite (which while not poor suffer the oppression and isolation of those members of the elite who have adopted liberalism) recruits others, sometimes those who identify with the poor, to engage in terrorism against the West. ESC rights in law could help ensure that the elite does not necessarily become dominated by liberals but rather is more reflective of the dominant Muslim population as a whole.
New Zealand may not be immune from terrorism. The recent bombings in London resulted in a number of Mosques being damaged in Auckland. The New Zealand economy is based to a considerable extent based on farming and therefore vulnerable to biological attack. In my opinion this is a major reason why the New Zealand Labour Government is keeping its distance from the American camp especially given the terrorist attack on Australians in Bali. Don Brash, the leader of the National Party, has indicated that if he wins this years election he could take New Zealand closer to the American camp.
During the Cold War liberalism was largely confined to the nation state (called ‘embedded’ liberalism) emphasizing small business and public provision aware that if the people were not treated well they could turn communist. Francis Fukuyama also shows liberal democracies almost doubled between 1975 and 1990 and with the collapse of communism in Eastern Europe in 1989 and probably reflected the feelings of the triumphant West when he exclaimed that humanity had ‘come to the end of ideological history’ (The End of History AND the Last Man, pp49-50). Liberalism became more expansive with a mission to capture ‘hearts and minds’ by force if necessary e.g. Iraq. Tony Evans states:
“With the end of the Cold War all resistance to the neo liberal approach to human rights seems to have vanished. The now unmatched dominance of CP rights derives from a set of principles that emphasises the freedom of individual action, non-interference in the private world of economics, the right to own and dispose of property, and the important principles of laissez-faire and free trade. The move to reduce state support for economic and social programs in all Western countries during the last two decades, a trend which is now accepted”. Evans adds: “Instead of fulfilling its intention of offering protection to the weak and the vulnerable, neo liberal interests have co-opted the idea of human rights as a justification for grabbing ‘even more of the world’s (and their own nation’s) resources than they previously had’ and ‘to steal back the concessions to social democracy that were forced out of them at the end of the Second World War’”(The Politics of Human Rights, 2001, p104).
In my view history has shown that CP rights are insufficient to achieve freedom, justice and peace in the world. ESC rights stem from the 19th Century, the time of the intolerable working conditions during the Industrial Revolution (when socialism developed), and were included in the Universal Declaration of Human Rights (UDHR) in 1948 following the 1930s Great Depression. The West’s perceptions are confined solely to CP rights which originate in the 17th and 18th Centuries. The Glorious Revolution of 1688 saw the ascendancy of the gentry and merchant class over the British Monarchy. Constitutions based solely on CP rights were derived from this period. In the United Kingdom there was the Bill of Rights 1685. In the United States of America there was the American Declaration of Independence 1776 and Constitution 1787 and in France there was the French Revolution and the Rights of man and of Citizens 1791-1793 (adherents of this limited view are called liberals).
Typically the West champions the freedom and democracy of CP rights but make little mention of ESC rights which are concerned with social justice. In my view the liberal emphasis on individualism works well for oppressors but the oppressed are left isolated and divided. This, in my view, explains our high levels of mental illness and suicides. While neo liberalism’s propensity to cut welfare, health etc explains high levels of hopelessness, crime, drug taking and gambling. If increasing global hostility forces liberalism to retreat back to the nation-state, or at least to the regions, the liberal elite may well find themselves isolated with little support from those they oppressed.
Perhaps the major objection to ESC rights is that they cannot be afforded however the increasing gap between rich and poor is usually ignored by these objectors. Also ESC rights are very flexible requiring only a progressive approach to their achievement (Article 2(1) if the ICESCR) apart from core obligations or extreme poverty which should be addressed immediately. The West has often maintained that ESC rights are not justiciable because resource decisions should be left to the government which is elected rather than the courts. However courts rather than provide additional resources can make more efficient use of already existing resources e.g. ensuring the most needy on the hospital, housing, unemployment waiting lists get priority treatment.
The courts could be assisted in dealing with individual cases by NGOs with a local knowledge and a social network. Furthermore, as is the case with CP rights, the courts can report to parliament on legislation which is inconsistent with ESC rights. Also Paul Hunt states that the court can make use of negative judicial review where legislation can be declared unlawful if inconsistent with ESC rights (Paul Hunt, Reclaiming Social Rights, 1996, p68). This would guard against any further blatantly retrogressive welfare policies. Since 1984 the progressive requirement of Article 2(1) has been virtually ignored.
Most notably the United Nation’s Millenium Development Goals, which aims to eradicate poverty, do not include education in ESC rights so provide no means of challenging the neo liberal ideology. In addition the interpretation of what constitutes ESC rights may be left in the hands of individual countries. For instance an a la carte approach (as opposed to a comprehensive approach) is under serious consideration in the present discussions on the OP at the UN.
This allows individual countries to have their own interpretation of ESC rights and this could ensure there is no challenge to neo liberalism. In my view both the power (ideology) and economic equations have to be addressed and education in ESC rights would address the former while a focus on extreme poverty would address the latter. Although it might be said that at least extreme poverty and the OP are now higher on the international agenda however the democratic principle demands that people be told about ESC rights and be allowed to make up their own minds whether present neo liberal policies should be pursued.
It can, I believe, be safely said that compared to CP rights ESC rights are virtually unknown. In my view, the present UN reforms, with Kofi Annan envisaging that the new UN Human Rights Council will have the same status as the Security Council, needs to urgently address education in ESC rights otherwise it will be nothing but a fraud. The top-down approach cannot be relied upon rather a bottom-up approach must, in my view, be adopted. In other words, it is up to the people to educate themselves. The UDHR is readily available and people can support groups actively involved in the education of ESC rights e.g. in Auckland, the Water Pressure Group (the Right Water) and our council (the Human Rights Council Inc.).
Our council have two members standing for the Human Rights Party, in Epsom and Mt Albert. In addition to education making use of the democratic process could prove the best approach to take.
Following the collapse of communism in Eastern Europe the triumphant West promised freedom and democracy for the world but increasingly the walls between us are growing with people feeling more powerless and the world becoming a more hostile place. ESC rights combined with CP rights can be used a measure of success, whichever ideology or religion dominates or economic and social policies pursued, ensuring that we are properly on track to freedom, democracy, social justice and peace in the world.