Emerging Voices: Now is (not yet) the Winter of our Discontent–The Unfulfilled Promise of Economic and Social Rights in the Fight Against Economic Inequality

[Caroline Omari Lichuma is a PhD Candidate at the Georg-August Universität Faculty of Law (at the Chair of Public and International Law) and a Lecturer from Riara Law School in Nairobi, Kenya.]

Material inequality or (extreme) economic inequality has been touted as one of the biggest challenges of the 21^st century. Wealth is hemorrhaging upwards rather than trickling down. In a world where the rich get richer, the poor get kids (as one of my professors used to sardonically say) and the inequality in income and wealth between the two continues intensifying at an alarming pace, there exists an inequality explosion that threatens the very fabric of our global society.

Like a pair of star-crossed lovers, the human rights and social justice movements have always had a complicated relationship, with opinion dividing on whether human rights can contribute to the creation of a more egalitarian society. In a scintillating contribution to this debate Samuel Moyn recently posited that the human rights movement has sacrificed substantive equality on the altar of sufficiency because human rights have neither the tools, nor really the desire, to bring the egalitarian task to the globe, or even to specific nations. In a poignant albeit jaded exposition he questions the validity of Economic and Social Rights (ESRs) where they provide a floor of protection but not a ceiling on inequality. For him the selective attention of human rights politics towards a minimum provision of the good things in life has resulted into the intensification of material hierarchy. Many people may have become less poor thanks to the increased importance of rights, but the melancholy truth about the age of human rights is that it has predominantly  privileged the rich.

Is Moyn right? Should we throw in the towel and give up on human rights? I don’t believe so, and I would urge you not to succumb to pessimism. A human rights based approach that has ESRs at its core is capable of helping to mitigate economic inequality. International human rights norms enjoy a high level of global legitimacy as evidenced by the fact that the key human rights instruments have been widely accepted in all regions of the world. 169 States have ratified the International Covenant on Economic, Social and Cultural Rights. Underpinned by universally recognized moral values and reinforced by legal obligations at both the national and international levels, ESRs therefore provide a compelling normative framework through which material inequality can potentially be addressed.

More specifically, I caution against throwing the baby out with the bathwater, because while human rights generally and ESRs specifically have not been a panacea for all the world’s problems, ESRs certainly possess the tools as well as the desire to contribute to the lessening of economic inequality. Article 2(1) of the ICESCR identifies the obligations of state parties under the covenant. In order to infuse content into this fairly generally worded provision the Committee on Economic, Social and Cultural Rights (CESCR) outlined the nature of the state obligations in one of its earlier general comments and propounded the minimum core concept as one of the raison d’êtres of the ICESCR. As such, the ESRs implementation architecture hinges on two twin pillars: the  realization of the minimum core as well as well as the continued obligation to move as expeditiously and effectively as possible towards the full realization of all the rights in the Covenant.

I agree with Moyn that the satisfaction of the minimum core concept may be conceptualized as being concerned with sufficiency rather than equality. This means that rather than being concerned with the elimination of inequality, the minimum core concept has the key goal of ensuring that certain (poor) individuals do not fall below some critical threshold of (dis)advantage. Or, if these individuals are currently below this critical threshold, that the necessary measures are implemented in order to raise them to the level where the threshold has been met. This critical threshold of advantage is the minimum core of the various ESRs. As such, what is important is not that everyone should have the same, rather, the intention is to ensure that each person has enough to maximise the incidence of sufficiency.

However, as indicated above, the minimum core is not the sum all of obligations under ESRs. The second limb of full realization (albeit progressively) still remains, even once the minimum core has been satisfied. What does full realization (not its much more prolifically discussed “progressive realization” counterpart) of ESRs entail in practice? It certainly portends more than satisfaction of the minimum core, which in turn implies that the requirement of sufficiency will have been met. At this level, everyone would have more than enough (more than sufficiency), even though everyone will not have the same amount of income and wealth(less than equality). I believe that the true promise of fully realized ESRs is that that at the point of full realization there will be a significant reduction in the economic inequality gap, even if perfect equality remains elusive. One of the ways this is likely to happen is through the operation of the so called “multiplier effect”. Economists use the term “multiplier effect”  to refer to a situation where an initial change in one of the factors of aggregate demand (for example, government spending) can have a more than proportionate increase in the growth of national income.

For all the world’s poor to able to “fully realize” their ESRs governments must spend large amounts of public resources i.e. in economic terms, there would be a huge increase in aggregate demand as a result of increases in government spending. At this point the multiplier effect would ensure that there is a more than a proportional increase in the national income of the country concerned. This increased national income could thereafter be (re)distributed through suitable means (such as direct cash transfers or a system of benefits) with the effect that economic inequality could be potentially lessened. If governments injected income into their economies in order to ensure that their peoples are educated, healthy, have jobs, food, water etc., there could be a more than proportionate improvement in the material standing of the world’s poor, with a corresponding lessening of the inequality gap. The argument therefore is simple, before we crucify ESRs for failing to deliver, governments should take suitable legislative, policy, fiscal and other measures to increase public spending and to properly redistribute resources in  order to fully realize ESRs.

Should we be satisfied by everyone having more than enough, even if others have more? I would argue yes, especially if the rich have to bear the cost of these higher provisions for the poor and therefore have to be made to descend closer to the level of the ascending poor. In order to narrow the gap between attainment of the minimum core and full realization of rights the state is expected to use the maximum of its available resources. These available resources include the pockets of affluence in every society because a measure of wealth and income from the members of society who have not only fully realized their ESRs, but enjoy an excess over and above what can be considered to be just. This can be achieved by expanding the definition of maximum of available resources necessary to fully realize ESRs to include income and wealth redistributed from the wealthy within the context of fiscal policy. Progressive (as opposed to regressive) measures of taxation can, if supported by adequate administrative machinery and enforcement mechanisms, lead to gentle and gradual forms of income redistribution within States without threatening economic stability .

In conclusion it is unfair to say, as Moyn does, that global material inequality does not matter to the international human rights movement because “the selective attention of human rights politics towards a minimum provision of the good things in life has made them unthreatening to a neoliberal movement that, sometimes achieving or tolerating the goal, has devoted itself most unerringly to the intensification of material hierarchy”?  and that “human rights have become prisoners of the contemporary age of inequality”. The entire regime of ESRs is not compatible with material inequality. There are limits to the degree of economic inequality that can be reconciled with the notions of equality and dignity that the human rights movements promises. Even if human rights may be rightly said to have become prisoners of the contemporary age of inequality, this imprisonment is not “for life” because ESRs do have the tools and the desire to fight economic inequality.

Maybe the problem with ESRs is not that they are incapable and unwilling to confront the spectre of  global inequality, rather, it is that they cannot do it fast enough for our (Moyn’s) liking. Perhaps, it not a question of “not enough rights in an unequal world”, but a question of human rights doing too little, and too slowly, in too unequal a world. There is still a silver lining, the arc of ESRs may be long, but it bends towards (social) justice (and material equality).