ByDr Aoife Duffy, Co-Deputy Director Human Rights Centre
The Human Rights Centre is developing an outreach programme for secondary schools: Including Others: A Rights Based Schools Outreach Pilot Programme for Secondary Schools in Essex. The programme for year 11 students (15-year-olds) covers several themes: women’s rights, the rights of people with disabilities, LGBTQ+ rights, and rights-based approaches to combating racism. We are giving University of Essex students the opportunity of being involved in the programme by sharing their experiences through counter-story narration.
Counter-stories are used to challenge dominant worldviews, stereotypes and/or assumptions. It is a technique developed in critical race theory to highlight racial hierarchies and racial privilege in society. Described by Solórzano and Yosso as a powerful ‘method of telling the stories of those people whose experiences are not often told.’
In our schools outreach programme these stories will also used to shed light on asymmetrical gender relations, and experiences that people with disabilities, and members of the LGBTQ+ community face in their everyday lives.
We are inviting Essex students to write a 1,600-word counter-story for the programme competition. Four winning counter-stories representing the groups covered in the programme will be awarded £150 each. Counter-stories:
Can be personal stories or narratives
Can be written in the third voice
Can be composite stories
Please send your submission to email@example.com by March 24 2021. We will also accept counter-stories that explore intersectional experience, or that represent social marginalisation not currently covered in the pilot programme.
Student authors can remain anonymous in this process and use a pseudonym for their stories if they wish.
I will join Lee Marsons (School of Law PhD candidate/schools outreach programme coordinator) and Dr. Katya Al Khateeb (Human Rights Centre senior researcher) on the competition panel.
We really look forward to receiving your compositions!
Dr Aoife Duffy, Co-Deputy Director Human Rights Centre
Female Genital Mutilation or Cutting (FGM/FGC) is a practice through which the female genitalia is altered or injured for non-medical purposes, and is considered a form of gender-based violence as well as ‘internationally recognized as a human-rights violation’ deeply rooted in gender inequality and discrimination. The practice can also result in both short- and long-term health issues, including chronic pain, infections, increased risk of HIV transmission, anxiety and depression, birth complications, infertility, and in the worst cases, death. Thus, FGM has lifelong implications for women and girls subjected to it.
According to UNFPA, globally, it is projected that around 200 million girls and women alive today have endured some form of FGM. Although the practice is decreasing in many of the countries where it is prevalent, a high rate of population growth in these countries will lead to an increase in the number of girls and women who undergo FGM if the practice continues ‘at current levels’. Furthermore, UNFPA with UNICEF leads the Joint Programme on FGM, estimates that approximately 68 million girls are at risk of being mutilated by 2030.
FGM violates various human rights both under international as well as national law, including women’s and girls’ rights to equality, life, security of person, dignity, and freedom from discrimination and torture, cruel, inhuman or degrading treatment or punishment. Furthermore, many treaty monitoring bodies such as CEDAW, CRC, ICCPR, ICESCR and CAT have recognized FGM as a human rights violation ‘in breach of those treaties’ and it is banned by the Maputo Protocol to the African Charter on Human and People’s Rights. All 193 member states of the UN have committed to eliminating all harmful practices, including female genital mutilation by 2030 within Goal 5 of the Sustainable Development Goals under Agenda 2030. But, the practice still persists.
FGM is performed for several cultural, religious and social reasons within families and communities, varying from context to context, but generally rooted in a desire to control women’s sexual and bodily autonomy. It is associated with cultural ideas of femininity and modesty and beliefs of what is considered ‘proper sexual behavior’ linked to pre-marital virginity and marital fidelity, as it reduces woman’s sexual pleasure. Thus, it is often seen as a rite of passage into womanhood, and in many cases can be a precursor to child marriage. According to Equality Now, an NGO which advocates for ending FGM worldwide, ‘celebrating cultural values and heritage is important’, however girls should be able to do so and learn about the cultural and community values ‘without the violence and lifelong physical and mental effects of FGM or forced marriage’.
This International Day of Zero Tolerance of Female Genital Mutilation, as the UN enters its Decade of Action to deliver the Sustainable Development Goals, the UN and its agencies, UNFPA, UN Women, UNICEF and WHO called for the end of this harmful practice. ‘Together, we can eliminate female genital mutilation by 2030. Doing so will have a positive ripple effect on the health, education, and economic advancement of girls and women’ said UN Secretary-General António Guterres in a video message to mark the occasion.
Other stories making the headlines around the world
What do people need to enjoy everyday life? What are the essential conditions to live a life in dignity, safety and freedom? And what are the rights that belong to all of us? Susanna Hunter-Darch and Dr Koldo Casla share a series of new cartoons exploring these questions, from the perspective of those with lived experience of poverty.
On 21 January, more than 50 people from different parts of the UK gathered online in the first of a series of events to explore questions like these in detail. The events aim to bring together people with lived and learned experiences of poverty, allowing them to learn from each other, and to think through how we can use human rights to build a bridge out of poverty.
Philip Alston’s findings said that cuts to social services were part of the reason so many people were facing destitution, despite such high levels of employment. “The conclusion is both clear and bitter,” he wrote. “Deep cuts to public services do not work and work does not pay for too many people.”
The dialogue was captured by the brilliant cartoonist Graham Ogilvie, while speakers included activists Patricia Bailey and Nikki Hewson, from ATD Fourth World, Misha Nayak-Oliver, from Just Fair, from RAPAR (Refugee and Asylum Participatory Action Research), and Kait Laughlin, an educator, researcher and anti-poverty campaigner.
“Fourteen million people live in poverty, one and a half million of them in destitution, four in ten children are poor, food banks proliferate, homelessness and rough sleeping are on the rise, life expectancy is falling for women born in deprived areas… And all of it despite historically high employment levels. The conclusion is both clear and bitter: Deep cuts to public services do not work and work does not pay for too many people.”
The experiences of these community groups contribute to connecting international human rights law with local activism in a way that reinforces both spheres, but puts the centre of gravity of human rights action and research at the local level. These cases encourage us to expand and develop a model of human rights advocacy from the ground up, reflecting lived experiences and amplifying local narratives to trigger hope and change.
This was the first of a series of events organised by Just Fair, Amnesty International UK, ATD Fourth World and the Human Rights Centre of the University of Essex to build bridges between people with lived and learned experiences of poverty in the UK.
These organisations are working in partnership with a diverse group of individuals and community-based grass-roots organisations tackling poverty, inequality with some using human rights in their work.
The next event will take place on 10 February and is open to all who would like to attend. As well as contacting the organisations directly, you can follow #RightsBridge on social media. It will be an opportunity to learn from local advocacy led by people with lived experience of poverty and other forms of disadvantage, including a campaign for the right to work in Belfast, for refugee rights in Manchester, the right to food in Wales, the socioeconomic duty in Teesside, and a regional effort to address the digital divide around the North East, among others.
Saturday, 30 January marked one year since the World Health Organization declared that ‘the outbreak of COVID-19 constituted a Public Health Emergency of International Concern (PHEIC)’. It wasn’t until two-months later that the term “pandemic” was used outright. Just this past week a record 100 million cases was reached worldwide.
Dr. Tedros Ghebreyesus, Director General of WHO, recalled that at the onset of the pandemic he addressed governments to heed the window of opportunity we had to prevent the widespread transmission of the virus. Clearly, some countries heeded his remark while others did not. Speaking at a press briefing on Friday, Tedros urged the world not to squander “another window of opportunity to curb the pandemic”. With more than 2.19 million people dead from the virus, Tedros warned against “vaccine nationalism” where “the richest nations hoard off available vaccines while the rest sit and wait.” He remarked, “vaccine-nationalism might serve short-term political goals, but it’s ultimately short-sighted and self-defeating”. UN human rights experts also emphasised that tackling the pandemic individually is a path to further deaths, and “universal access to vaccines is essential for prevention and containment of COVID-19 around the world.”
Tedros concluded his speech advising government and industry leaders to work together to ensure that for the first 100 days of 2021, vaccination of health workers and older people is made a priority in all countries. He specifically promoted that governments share their excess doses with the WHO-organized COVAX vaccine cooperative, which distributes vaccines to poor nations. 2020 may go down in history as one of the worst years for human rights in world, let’s hope that 2021 could be the turning point, where governments acknowledge the central role for human rights in their policies, and unite in their efforts to compact the virus worldwide.
Other stories making the headlines around the world
International Day of Commemoration in Memory of the Victims of the Holocaust
By Andrea Vremis, Dan O. Eboka, and Dechen D. Piya
Today, 27th of January, is the International Holocaust Remembrance Day, the anniversary of the liberation of the Nazi Concentration and Extermination Camp of Auschwitz-Birkenau by Soviet troops on 27 January 1945. It was officially proclaimed, in November 2005, the International Day of Commemoration in Memory of the Victims of the Holocaust by the United Nations General Assembly Resolution 60/7.
Since 2007 the University of Essex has marked Holocaust Memorial Day with a series of eventsas a tribute to the memory of the victims of the Holocaust and reaffirms its unwavering commitment to counter antisemitism, racism, and other forms of intolerance that may lead to group-targeted violence. (Image by Sarah Lucy Brown)
Due to COVID-19, Holocaust Memorial Week will be going digital for this year and will run from 27 January – 3 February 2021. A full programme of events can be found here.
Other stories making the headlines around the world
In December of 2020, workers at the iPhone manufacturing facility Wistron, in the Kolar district of Karnataka, staged a massive protest against their employer. They were protesting against, among other issues, the increase in work hours, lack of overtime pay and non-payment of salary by their employer. The protest which began peacefully, quickly turned violent, with scores of iPhones and other office infrastructure being destroyed by workers. Within hours, the protest was crushed by baton carrying police, with over 150 workers being pushed into police lock up.
Such incidents come of no surprise, given the successive dismantling of labour rights by both the Modi led Central Government and various State Governments in India over the past year. Using the COVID pandemic as a ruse several State Governments passed successive notifications exempting the application of important provisions like overtime pay, working hours and health and safety conditions. Even though many of these State Government notifications were passed with sunset clauses, what is frightening is that the Central Government has now passed four labour codes, which not only make many changes of the State Government notifications permanent but also completely obliterates important protections of workers.
Citing ease of business as its main priority, the Central Government replaced the entire clutch of existing central and state labour laws with 4 codes; namely the Code of Wages, the Industrial Relations Code (“IR Code”), the Code on Social Security and the Code on Occupations Safety, Health and Working Conditions (“OSH Code”). While the Code on Wages was passed in 2019, the other 3 codes were passed in 2020 at the peak of the pandemic, at a time when the whole country was occupied with the human costs of COVID 19.
Unsurprisingly, these codes strike at the heart of workers’ interests. Among other issues, the rise in thresholds for application of labour codes, the near-obliteration of the right to strike, imposition of new hurdles on trade unions and move towards contractualisation of labour are some issues which require further examination to understand the harmful impact of the new labour codes on labour rights.
One of the striking changes of the codes has been the increase in threshold limits for its application. Previously, the Factories Act, 1948 (“Factories Act”) would apply to those factories which had more than 10 workers if manufacturing was being carried out with the aid of power and 20 workers in others cases, while the Contract Labour (Regulation and Abolition) Act, 1970 (“CLR Act”) would apply if more than twenty workers were employed. In contrast, the OSH Code gets triggered only if more than 20 workers are employed in a factory where manufacturing is being carried out with the aid of power and 40 workers in other cases; and more than 50 workers are engaged as contract workers.
This increase in threshold limits has perilous consequences for workers. Findings in the Sixth Economic Census indicate that the average size of employment in an economic establishment in India is 2.24. The same census also found that 94.6% of the non-agricultural establishments in the country hire 5 or less workers. These statistics reveal that close to 90 % of the population already fall outside the previous labour law regime. An increase in threshold means that even the razor sharp margin of workers that had legal protection before will now lose it.
Strike is an important political tool for collectivised labour. The erstwhile Industrial Disputes Act, 1947 (“ID Act”) protected this right to strike and carried relatively easy procedures for workers to declare strike However, the new IR Code does away with many of the earlier safeguards. Previously, workers could resort to strike without prior notice to the employer, except in public utility services. However, under the IR Code, workers cannot go on a strike unless a notice of strike is served to the employer 60 days prior to the strike. The IR code additionally mandates that the dispute be admitted into conciliation when the notice of strike is received, and holds that no strike can be declared when the conciliation is ongoing; thereby effectively defeating the very purpose of the strike, which can now be conducted only with the knowledge of the employer.
The IR Code also deals a severe blow to unionisation of labour. Under the new regime, for a trade union to be registered, it must have either the support of hundred workers or 10% of total workers in an establishment as its members. The trade union with the support of 51% of total workers in an establishment as its members will be regarded as the sole negotiating agent to represent workers in an establishment. Trade unions objected to this provision on the ground that this will lead to monopoly of the single union at the negotiation table. In case no single trade union enjoys the support of 51% of total workers in an establishment as its members, the employer will constitute a negotiating council with representatives of all registered trade unions that receive support of at least 20% of total workers in that establishment. The provision still leaves workers represented by smaller trade unions high and dry especially when the only acceptable proposition is that all trade unions, irrespective of the size of their support, should have a place at the negotiating table.
Contract labour, as a mode of employment, often ‘lends itself to various abuses’. As such, the CLR Act was enacted on the basis of the general consensus that “the system [of contract labour] should be abolished wherever possible and practicable”. The takeaway of the above statement is that although employment through contract labour is permitted in certain cases, it is generally deprecated. The new OSH Code ensures that abolishing contract labour, and the resultant regularisation of the employment of the contract labour, can occur only in fewer instances, as compared to the CLR Act. For instance, if a worker is employed in a job which is of ‘perennial nature’, the employment of such worker could be regularised under the CLR Act . However, the OSH Code does away with the concept of “perennial nature”, which played an important role prior to the OSH Code in abolition of contract labour. Similarly, under the CLR Act, a job could be regularised if it is done ordinarily through a regular worker in that or a similar establishment. This granted parity to workers with their counterparts who were doing the same job but were regularised. This important safeguard yet again finds no mention in the OSH Code. On the contrary, the OSH Code provides for only one litmus test for abolition of contract labour, i.e. to see whether the contract labour is employed in core activities in any establishment. This new approach significantly reduces the chances for abolishing contract labour.
The danger of the new contract labour regime under the OSH Code is that it sanctifies contract labour, a mode of employment which was sought to be abolished as much as possible under the CLR Act. Unsurprisingly, the OSH Code creates yet another form of short term employment known as fixed term employment, which suffers from all the pitfalls of contract labour.
This piece is not a defense of the old labour law structure. The previous labour law regime was due for a massive update. What this piece instead flags is that the new structure is far worse than the former, and chips away the many essential and hard fought rights won by the labour movement in India. A labour milieu characterised by precarity in employment, anti-collectivization and inhumane working conditions is what led to the Wistron incident in the first place. By embodying and accentuating much of these characteristics, the new labour codes now make these features permanent.
Madhulika is a lawyer practicing at the Madras High Court. She is interested in labour theory and the intersection of the law and political economy.
Raja is an LLM student at New York University School of Law. He is interested in labour rights and political history.
“Any free society presupposes, in particular, a widely accepted moral code. The principles of this moral code should govern collective no less than private action.” — Draft Mont Pèlerin Society statement of aims, 1947.
In 1992, the Chicago School economist Milton Friedman was asked about the original purpose of the neoliberal Mont Pèlerin Society, founded in 1947. There is “no doubt”, he replied, that its original purpose was “to promote a classical, liberal philosophy, that is, a free economy, a free society, socially, civilly and in human rights.” Coming from a thinker who described the authoritarian regime of Chile’s General Pinochet as an economic and a political “miracle” this evocation of human rights appears out of place. After all, human rights NGOs came to prominence in the 1970s precisely for contesting the torture and disappearances that accompanied neoliberal shock treatment in the Southern Cone. According to a dominant view, neoliberal emphases on competitive markets and austerity are self-evidently at odds with human rights. As a recent primer on human rights puts it, “neoliberalism is one logic in the world today; human rights is the other.”
My book The Morals of the Market challenges this view by tracing the overlooked place of human rights not against but within neoliberal efforts to challenge socialism, and social democracy in the twentieth-century. The book examines the historical and conceptual relations between human rights and neoliberalism to explain why these two revivals and reinventions of liberalism took place at the same time and why their trajectories have been so implicated with each other ever since. The book is framed by a “double coincidence”. It has often been noted that the widespread embrace of the language of human rights took place in the late 1970s, just as governments also began to embrace neoliberalism.Attesting to this convergence, Friedman’s 1976 Nobel Prize in Economics was followed the next year by Amnesty International’s 1977 Nobel Peace Prize.
Less well noted is the fact that, in 1947, when the UN Commission on Human Rights began drafting an international bill of rights, a group of economists, philosophers, and historians were gathered across the Atlantic in the Swiss Alpine village of Mont Pèlerinto consider the principles that could animate a new liberal order. The efforts of the first group resulted in the Universal Declaration of Human Rights (UDHR). The latter grouping founded the Mont Pèlerin Society, which has been aptly described as the “neoliberal thought collective”. In 1947, the divergences between these two grouping were more significant than their convergences. While both were concerned with threats to human dignity and liberty in the wake of WWII, the human rights delegates adopted an extensive list of social and economic rights, while the neoliberals depicted state welfare and planning as totalitarian threats to “Western civilisation”.
But, when a distinctive and powerful version of human rights began to be advocated by NGOs and the US State thirty years later, earlier attempts to enshrine rights to housing, food, education and medical care were supplanted by a narrow focus on civil and political rights, and, in some cases, by outright advocacy for the virtues of liberal market orders. This version of human rights became hegemonic alongside a neoliberal assault on both the welfare state and post-colonial attempts to re-structure the international economy in the interests of global equality. Human rights became the dominant ideology of a period marked by the demise of revolutionary utopias and socialist politics and the belief, succinctly expressed by Margaret Thatcher, that “there is no alternative”.The economic transformations of this period were stark, from the rise of austerity and the retrenchment of state welfare provision to commodification of public services and growing indebtedness. Consequently, critics of neoliberalism homed in on its economic agenda. Nonetheless, we can’t understand why human rights and neoliberalism flourished together if we view neoliberalism simply as an economicdoctrine.
Neoliberalism against the economy
What, then, is neoliberalism?Neoliberalism is commonly understood as an amoral, economic ideology which subordinates all values to an economic rationality, configuring the human, in Wendy Brown’s words,“always, only, and everywhere as homo economicus.” But such accounts of the amoral economism of neoliberalism miss the distinctive morality that was central to its rise. What distinguished the neoliberals of the twentieth-century from their nineteenth-century precursors was not a narrow understanding of the human as homo economicus but the belief that a functioning competitive market required an adequate moral and legal foundation.
The founding statement of the Mont Pèlerin Society makes this clear: diagnosing a civilisational crisis characterised by the disappearance of the conditions for “human dignity” and threats to freedom of thought and expression, it states that these developments “have been fostered by the growth of a view of history which denies all absolute moral standards”. Rather than an external supplement, or a pragmatic partner of neoliberalism, social conservatism, including explicit appeals to family-values, Christianity and “Western civilisation”, were foundational to the consolidation of “organised neoliberalism” in the mid-twentieth-century.
Friedrich Hayek, the Austrian economist and political philosopher who founded the Mont Pèlerin Society, provided one of the clearest neoliberal accounts of the morals the market in his late work Law, Legislation and Liberty. Evoking the fall of Rome – and the thesis of its great historian Edward Gibbon who attributed that fall to a decline in ancient virtue – Hayek warned that, whether or not Gibbon was correct about Rome, “there can be no doubt that moral and religious beliefs can destroy a civilization”. For Hayek, the demise of the morals that sustained a market order threatened his own civilisation with destruction. Hayek’s account of morals was deeply functionalist; the morals of the market, he contended, functioned to sustain the only order that embrace “nearly all mankind”: the competitive market order.
This order required a moral framework that sanctioned wealth accumulation and inequality, promoted individual and familial responsibility, and secured submission to the impersonal results of the market process at the expense of the pursuit of collectively-formulated ends. Given that moral rules exist to support the market order, Hayek urged that “conduciveness to that order be accepted as a standard by which all particular institutions are judged.” This market-conduciveness gave the neoliberals a criterion for assessing claims to human rights: to the extent such claims supported market relations (by protecting property, or the freedoms of foreign investors, for instance) the neoliberals actively promoted them; when claims for rights interfered with the competitive market, by requiring state intervention and non-market forms of obligation and redistribution, they opposed them as though the fate of civilisation depended on it.
Hayek drew on the social theory of the Scottish Enlightenment to develop an evolutionary account of morality. The evolution from the “small band” to the “Great Society”, he argued, required the abandonment of feelings of personal loyalty and egalitarian commitments more suitable to tribal existence. In his contemporaries’ demands for social and economic rights, Hayek saw atavistic attempts to return from the market society to the morals of the small band. Socialism and social democracy were not merely economic threats to the productivity and efficiency of economic relations. They were civilisational regressions, or, in Hayek’s racialized terms, the return of “suppressed primordial instincts” that threatened the moral foundations of the competitive market.
One of my key arguments throughout the book is that the neoliberal argument for the competitive market was itself moral and political rather than strictly economic. For the neoliberals, the competitive market was not simply a more efficient technology for the distribution of goods and services. Early neoliberals attributed to the market a series of anti-political virtues: checking and dispersing power, facilitating social cooperation, pacifying conflict, and securing individual liberty and rights. If neoliberal thinkers and human rights activists could find common cause, as I suggest they could, this is largely because the concerns of twentieth-century neoliberals were far less narrowly economic than existing accounts tend to allow.
Throughout the book, I examine the neoliberal understanding of human rights alongside the diverse understandings about rights and obligations that motivated the drafters of the Universal Declaration of Human Rights and the two human rights covenants. For the neoliberals of the time, these document’s enumerations of rights to social welfare and national self-determination were threats to the market order and to “Western civilisation”. Yet, I show in the book that, despite their horror at the “collectivism” and “politicisation” that characterised the human rights process in the United Nations, the neoliberals did not turn away from human rights. Rather, they developed their own account of human rights as moral and legal supports for a liberal market order.
The neoliberals saw human rights and competitive markets as mutually constitutive. In his best-selling polemic The Road to Serfdom, Hayek argued that all claims made on behalf of individuals can be attributed to the rise of the “commercial spirit.” “‘The ideas of 1789’ – liberty, equality, fraternity – are characteristically commercial ideals which have no other purpose but to secure certain advantages to individuals,” he wrote. For Hayek and his fellow neoliberals the competitive market made individual rights possible, but the market’s functioning also depended on the rule of law and the “recognition of the inalienable rights of the individual, inviolable rights of man.” Hayek’s account of the rights of man owed much to his mentor Ludwig von Mises, whose 1922 study of socialism argued that individual rights emerged “hand in hand with the development of capitalism”. It was only capitalism, Mises argues, that made human relationships material and calculable and brought freedom from the heavens down to earth; “Such freedom,” he wrote, “is no natural right.” If the market order is the real basis of all the declarations of rights and charters of liberties, as Mises contended, then “[a]s soon as the economic freedom which the market economy grants to its members is removed, all political liberties and bills of rights become humbug.”
Humanity and Dignity: neoliberalism and the human rights revolution of the 1970s.
For the neoliberals of Mont Pèlerin, human rights therefore existed not so much to protect the individual as to secure the market. This neoliberal vision of human rights was at its purest in the period of neoliberal ascendancy. It is clear in Thatcher’s simultaneous denial that “state services are an absolute right” and championing of a “right to be unequal”, and in Ronald Reagan’s defence of “human dignity” as “the crowning ideal of Western civilization.”
Yet, the neoliberal human rights heritage was not only embraced by figures on the right. I also argue that this neoliberal background can shed light on the apparent puzzle that the human rights politics of the late twentieth-century, with its distinctive use of international advocacy to limit the power of the state, emerged, in Samuel Moyn’s words, “seemingly from nowhere”. I show that organisations like Amnesty International, Human Rights Watch and Médecins sans Frontières drew on an account of rights developed by the neoliberals since the 1940s. For them too, decolonisation generated a desperate need for new standards to constrain post-colonial states. They focused their attention on what Hayek argued was the complement of what he called the “taming of the savage”: the “taming of the state.” The attempt to discipline post-colonial states held a much larger place in the new politics of human rights than did the concerns of previous decades with economic welfare and self-determination.
Although the human rights NGOs came to prominence in the context of the evisceration of social welfare protections and public services, these concerns rarely entered the frame of their early advocacy. I argue that major international human rights and humanitarian NGOs embraced the central neoliberal dichotomy between commercial or “civil society” – understood as a realm of freedom, voluntary interaction, and distributed, private power that checked the centralised power of the state – on the one hand, and politics, understood as violent, coercive and conflictual on the other.
Like the neoliberals, many international human rights NGOs embraced law to restrain politics, while avoiding those social and economic rights that could only be achieved through political action not judicial sanction. The methodology of many human rights NGOs, as Kenneth Roth, the Director of Human Rights Watch notes, consists in the ability “to investigate, expose, and shame”, which involves identifying a particular violation, a specific violator, and a clear remedy. This has made these NGOs both reluctant and unsuited to challenge the structural and impersonal effects of market processes.
Then, as today, the content of human rights was a product of political struggle. What I call neoliberal human rights are not the only form to have existed historically, and today’s human rights campaigns do not necessarily further neoliberal ends. Yet, I do contend that the neoliberal contribution to human rights has been far more widely influential than most contemporary human rights defenders would like to admit—and not only on the political right or in the halls of power. Without coming to terms with that influence, social movements and struggles that wield the language of human rights to contest neoliberalism may find themselves strengthening its hold. Human rights, I suggest, are not necessarily against neoliberalism.
So, to conclude, what of human rights after neoliberalism?Are we there yet? And, if not, what would it take to get there? There is no doubt that the response to Covid-19 has profoundly unsettled old certainties. As numerous states have broken with near-religious commitments to balanced budgets in order to keep their economies functioning, many have spoken of “the end of neoliberalism”. Nonetheless, much continues to feel all too familiar: the under-resourcing of public health systems; the fast-tracking of online education; the rush to xenophobia and border controls; renewed talk of post-pandemic austerity; and the disproportionate health risks faced by displaced people and informal workers, who already lacked basic medical care and whose livelihoods are threatened by enforced lock-downs.
Nonetheless, in the context of the pandemic, as the price mechanism proved unable to adequately distribute toilet paper and pasta, let alone ventilators and hospital beds, neoliberal odes to the magic of the market began to sound to many like the dogmatic professions of faith that they are. Although it is now starkly clear that neoliberal societies have been unable to provide the basic public resources that would enable an adequate response to a global pandemic, there is little sign that major institutional defenders of economic liberalization intend to change track or that the current crisis response augurs a fundamental break with neoliberal ideological commitments. In a speech on March 23rd this year, the President of the World Bank Group David Malpass committed the Bank to assisting the poorest countries to deal with the Covid-19 crisis. But, this aid would not come without strings: noting that countries “will need to implement structural reform” to create confidence in the possibility of recovery, he stressed: “For those countries that have excessive regulations, subsidies, licensing regimes, trade protection or litigiousness as obstacles, we will work with them to foster markets, choice and foster growth prospects during the recovery.” Today, it is clear that, as a recipe for preventing poverty, let alone for responding to spiraling inequality or dangerous climate change, this set of policies has disastrously failed. The pandemic and the response to it are not a panacea, but they do provide an opportunity. Building back better must mean taking seriously the extent of neoliberal failures and breaking with the morals of the market once and for all.
Jessica Whyte is Scientia Associate Professor of Philosophy at the University of New South Wales. She has published widely on human rights, humanitarianism, sovereignty and war. She is author of Catastrophe and Redemption: The Political Thought of Giorgio Agamben, (SUNY 2013) and The Morals of the Market: Human Rights and the Rise of Neoliberalism (Verso, 2019) and an editor of Humanity: An International Journal of Human Rights, Humanitarianism and Development. More of her research is available here: https://unsw.academia.edu/JessicaWhyte
Judith Blaue and Alberto Moncado, Human Rights: A Primer (Paradigm Publishers, 2009), 15.
 This paper draws on Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism (London: Verso Books, 2019).
 See, for instance Samuel Moyn, “A Powerless Companion: Human Rights in the Age of Neoliberalism,” Law and Contemporary Problems 77 (2015): 147–69.Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism (New York: Picador, 2008).
 Philip Mirowski and Dieter Plehwe, eds., The Road from Mont Pèlerin: The Making of the Neoliberal Thought Collective (Cambridge: Harvard University Press, 2009).
 Statement of Aims, in Dieter Plehwe, “Introduction,” in The Road from Mont Pèlerin: The Making of the Neoliberal Thought Collective, ed. Philip Mirowski and Dieter Plehwe (Cambridge: Harvard University Press, 2009), 24–25.
 Friedrich Hayek, “Epilogue: The Three Sources of Human Values,” in Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, vol. 3: The Political Order of a Free People (London: Routledge, 1998), 165.
 I take this question from the title of Talal Asad’s excellent essay: Talal Asad, “What Do Human Rights Do? An Anthropological Enquiry,” Theory and Event 4, no. 4 (2000), https://muse.jhu.edu/article/32601.
 Friedrich Hayek, The Road to Serfdom: Text and Documents, ed. Bruce Caldwell, The Collected Works of F. A. Hayek (Chicago: The University of Chicago Press, 2007), 183.
A ‘systemic failure’: investigation confirms NYPD mishandled Floyd protests
By Lauren Y. T. Ng, Sarah Mui and Vittoria Lucchese
The New York Police Department (NYPD) has come under scrutiny in a recently published report by the New York City Department of Investigation (DOI).
With the aim to examine the police response to the protests erupting in the aftermath of George Floyd’s murder, the report underscored several shortcomings with regards to the NYPD’s conduct. The Mayor of New York, Bill de Blasio, commissioned the investigation, which revealed that the NYPD lacked a clear strategy, neglected to consider measures of proportionality and employed excessive use of force towards demonstrators. The cumulation of these considerations, among others, were believed to have fuelled escalating tensions between the police and protestors, failing to consider the context of the protests, centring on police brutality.
The report highlighted examples well-documented by journalists during the Floyd protests, including indiscriminate mass arrests of protestors in the absence of violence and the employment of physical force using pepper spray, batons and tasers. These actions are considered to be in violation of the International Covenant on Civil and Political Rights, namely article 19 (the right to freedom of expression) and article 21 (the right of peaceful assembly), to which the US is a party and ratifying member of.
In response to the DOI’s report, De Blasio released a video on Twitter expressing his remorse towards the actions of some of the individual police officers who “did something wrong”, affirming that “we have to do better”. Expectedly, these remarks were not met without criticism. Department officials countered that the outcome of the protests were largely a result of the mixed messages imparted by elected leaders, with little awareness of the reality in regards to the situation on the ground. Comparatively, the US program director of Human Rights Watch (HRW), Laura Pitter, criticized the apology as a “woefully inadequate response to the scale of police misconduct and abuse”, advocating for a deeper level of accountability, including “addressing the structural problems with policing in New York City”.
Nevertheless, the DOI outlined a series of recommendations to improve accountability and police-community relations, such as promoting transparency, expanding methods of training to reduce indiscriminate policing, and incorporating policies to facilitate constructive communication with demonstrators. However, the HRW has made further calls beyond the scope of police force – urging the US to reduce its reliance on criminalisation and policing in addressing societal problems; and alternatively, shifting its funding to focus on services promoting access to education, health care and mental health support.
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In the wake of outrage surrounding the death of George Floyd at the hands of a police officer, India witnessed a similar occurrence: the custodial torture and death of a father and his son over an alleged violation of pandemic control rules. This incident has initiated a national outrage against the effectiveness of the legal safeguards in upholding the internationally recognised human rights.
India’s signing of the UNCAT in 1997 prompted the Ministry of Home Affairs to introduce the Bill in the Lower House of Parliament in 2010. However, even after undergoing several rounds of discussion and recommendations, the Bill lapsed with the dissolution of the Lower House. The reintroduced Bill in 2018 suffered the same fate. In addition, pursuant to Article 2 of the ICCPR, India was obligated to undertake necessary steps to legislate on issues concerning violation of human rights.
The urgent need for an anti-torture law was acknowledged by the Law Commission of India in its 273rd Law Commission Report. Reflecting the remarks of a Select Committee of the Upper House of Parliament, the Report recommended amendments to existing laws such as the Indian Evidence Act 1872 and Criminal Procedure Code 1973. However, these recommendations have not been implemented by the Central Government.
In 2017, at India’s Universal Periodic Review, the Indian leadership posited that “torture is alien to Indian culture and has no place in the governance of the nation”. However, no steps have been taken to address the problem as of date. In 2019, the National Human Rights Commission of India recorded more than 1700 deaths of individuals under police or judicial custody in a single year. It is clear that the lack of a legal framework governing this issue is providing tacit approval to widespread human rights violations, and also reducing India’s standing at the international front as a guardian of human rights.
India’s failure to proclaim an anti-torture law also entails key diplomatic considerations. Article 3 of the UNCAT prohibits extradition, inter alia, of individuals to States where “there are substantial grounds for believing that he would be in danger of being subjected to torture.” This implies that State parties to the UNCAT can rely on the aforementioned provision to deny extradition of individuals to India on account of the absence of legal safeguards to protect individuals in custody coupled with a high number of deaths caused by custodial torture, as shown earlier.
Presently, India has ratified the ICCPR but has been unable to ratify the UNCAT, standing as mere signatory. Ratification of the UNCAT would further strengthen India’s bid for a permanent seat in the United Nations Security Council as the move exhibits utmost reverence to the idea of peace-making and ensuring protection for individuals.
Analysis of the Prevention of Torture Bill
At this point, it is pertinent to review the Bill as it is the closest legislative effort towards penalising custodial torture. A brief analysis of the Bill uncovers a multitude of legislative imperfections, some of which are inconsistent with the UNCAT.
Firstly, pursuant to Section 3, the definition of ‘torture’ is constrained. This is because only instances which amount to grievous hurt or pose a threat to life, limb or health are classified as torture. Per contra, the UNCAT, contains no such restrictions. Furthermore, unlike the UNCAT, Section 3 also does not encompass instances of mental trauma and suffering.
Secondly, the Bill penalises only those torturous acts which are committed to extract information or on the ground of religion, race, place of birth, residence, caste, community, or language, whereas the UNCAT seeks to denounce all torturous acts, regardless of prejudice.
Thirdly, the doctrine of proportionality suggests that the punishment ought to be commensurate with the seriousness of the offence. The Indian Supreme Court has also alluded to this doctrine in severaljudgments.However,the Bill contains no such differentiation in punishment on the basis of the resulting outcome. For instance, under this Bill, the present case of torture that resulted in the victims’ death would be penalised just as a milder act inflicting grievous hurt would.
Fourthly, the Bill fails to provide for any independent investigation mechanism. This poses the risk of diluting the principles of natural justice and opens up the possibility of suppression of information, leading to ineffective investigations.
Fifthly, the Bill provides for a limitation period of six months to file a complaint. This practice is inconsistent with the Code of Criminal Procedure, 1973 wherein no time limit has been stipulated for offences which are punishable with imprisonment that may extend to ten years. There seems to beno reasonable justification to draw such a distinction between torture and other crimes.
Although a meaningful endeavour to safeguard an individual’s freedoms, the Bill is swathed with legislative deficiencies that allow an accused to escape liability for internationally reprehensible conduct recognised under the UNCAT, the same Convention the Anti-Torture Bill seeks to ratify.
Despite the Convention being in consonance with the ethos of according paramount reverence to an individual’s life and liberty, India has been unable to keep up with the current international human rights standards of torture prevention as laid down in the Convention. The need of the hour is to initiate a discourse that is geared towards enacting a legislation that shifts the dynamic from “Crime and Impunity” to “Crime and Punishment” for internationally reprehensible acts that impinge on an individual’s right to life and liberty.
Mani Munjal and Aakarsh Banyal are students of law at Symbiosis Law School, Pune, India. Their areas of interest include Public International Law, Human Rights Law and Security Studies.