Rights-Based Approaches and the European political economy

Rights-Based Approaches (RBA) begin from the assertion that “all peoples have the right of self-determination”.³¹ The main innovation is that this places the individual holder of rights before the constitutional, social, economic and political context in which she finds herself and empowers her to assert her needs in her self-determination. Interventions can then be justified and channelled to the individual through a multitude of organisations and in the pursuit of a multitude of goals. Through this focus on empowering the individual and their contingent needs, traditional human rights (the right to not be tortured, the right to freedom of expression, the right to be and the right to love) have been supplemented over time by an array of other rights, elevating rights once pursued through national institutions (such as social or health rights) to new global ones and asserting a new generations of economic rights as equivalent in value to more traditional ones.

In asserting the a priori right of individuals to particular conditions of life, rights-Based Approaches focus interventions not on the redistribution of material assets found in the traditional welfare relation but on the redistribution of opportunity according to different needs.³² The normative dimension of building on capabilities to realise rights coincided with the greater policy awareness and value attributed to the role of society in economic development. Economists have long argued the relationship between property rights for economic development³³, and others have demonstrated the relationship between civil, political social rights.³⁴ But now economic and social rights were bound together linking social capital and competitiveness in the in the transnational policy community.³⁵

The EU’s Lisbon agenda has become a prime example of the integration of these two pursuits of social justice and economic prosperity.³⁶ In 2000 the EU’s Heads of Governments met in Lisbon as the European Council to propose a new strategic goal for the EU...

Box 7.1 Lisbon agenda employment benchmarks [para 30]:

• • employment rate from an average 61% today to as close as possible to 70% by 2010
• • women in employment from an average of 51% today to more than 60% by 2010

... to become the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion³⁷

Central to the effective achievement of these goals was the deployment of evaluation methodologies as a policy tool that would enable actors, including member states, to be assessed in relation to a clear set of stated benchmarks [see Box 7.1]. These benchmarks would enable progress to be measured and reviewed in annual reports under the scrutiny of the EU Commission to produce collective recommendations supported by the Member States at the Spring European Council.

Social indicators have become increasingly important in the governance of the EU specifically drawing on evidence based policies to exhort member state to improve their performances through the declaration of the March European Councils as well as for making international comparisons.³⁸ A number of authors have used these social indicators to demonstrate trends in pan-European inequality. Heidenreich and Wunder argue that convergence between the member states economies has lowered inequality levels across the EU, but that this has been accompanied by greater intra state inequality, notably in newly acceded member states.³⁹ The question then becomes whether it matters to people or not that they are poorer or richer than people within their national societies or whether their frame of reference extends across the Eu. Fahey identifies real and subjective notions of poverty that are shared across national boundaries and uses this to argue for a pan-European understanding of poverty. Whelan and Maitre, however, differentiate between weak and strong versions of this. In the former a standard of participation within societies that defines it is informed by greater awareness and knowledge of other member states. From this “weak” perspective the national normative redistributive agenda remains unchallenged. In the latter the overemphasis on national systems is seen to have obfuscated pan-European inequalities so that European-level conflicts and redistributions are seen as necessary. The stronger notion, therefore, describes how “norms shift from the national to the transnational level, as does the responsibility for meeting the associated claim”.⁴⁰

Measuring achievements through outputs helped to demonstrate the realisation of inclusion objectives that were informed by economic rights. Improvements were indicated through convergence towards a benchmark, rather than absolute achievements that would have disadvantaged certain states. This allowed a more consensual and mutually supportive political environment to characterise the project that would be supported through explicit engagements with civil society through an Open Method of Coordination. The Lisbon Agenda has demonstrated how all rights - political, social, economic and cultural - could be realised through collective endeavour.

Progress was initially slow and a halfway review in 2005 criticised the member states for their poor implementation records. The report of the high-level group of experts criticised member states that had “not taken the execution and delivery of the agreed measures seriously enough”.⁴¹ Macroeconomic conditions had not been conducive so that “many Member States have been caught in a conundrum. Because of structural weaknesses and low demand, national economic performance has been poor. As national economic performance has been poor, it has been more difficult to implement the Lisbon strategy”.⁴² Even in the EU the rights provided through the Lisbon Agenda were by no means guaranteed but were conditional on the macroeconomic conditions and the inclination of governments to invest in and realize these goals. Millennium Development Goals also place an emphasis on a rights based approach but “in practice claiming and establishing rights is a political process, mediated by the presence of power”.⁴³ Rights- Based Approaches need to be coherent too, coordinating a variety of different claims if they are to succeed in their implementation.⁴⁴

Durable inequalities and the Rights-Based Approach

Despite the promises of the Lisbon agenda and its rights based approach, the EU has not delivered on the reduced inequalities that the agenda promised. Beneath we shall discuss three examples of how RBA fail to address durable inequalities concerning property rights, policy influence and gender.

The economic rights approach has not been uncontroversial. One of the main criticisms of it as an approach has been that it means different things in different places and is inevitably vulnerable to local political whims and administrative capacity. But this belies a more central problem with the concept which makes economic rights hard to describe, difficult to enforce and subject to interpretation.⁴⁵ At the heart of the economic rights agenda is a lack of acknowledgement of the judiciability of rights, and this is based upon a misunderstanding of the legal meaning of property. Terence Daintith explains:

The rights of [individually held] property and freedom of contract are widely viewed as “economic rights.” Yet they can be as personal as any “personal right” one can imagine the right of several property includes the right to control one’s body, including one’s sexual behavior. The right of freedom of contract includes the right to purchase books, birth control devices, or intoxicating substances from willing sellers.

If, on the other hand, “property” is given a meaning more familiar to lawyers, limiting its application to our relations with various categories of things, whether physical or incorporeal, then the definition does not appear broad enough to encompass all forms of economic activity. Work as such is thus not a subject of rights and enjoys a protection inferior to that of capital.⁴⁶

Economic rights cannot be described as particular things so they are difficult to enforce and remain subject to interpretation. The vacuum left by the lack of legal certainty of economic rights leaves the rights agenda open to exploitation for ends other than the provision of need. Indeed a proliferation of actors now seek to attribute rights to recipients through the transferring of specific things. An example might include skills, provided through training service companies to unemployed people, which are central to active labour market policies. Another in the European Employment Strategy, is the formation of new businesses, which embody economic rights to trade. Governments pursue this agenda by driving down the startup costs and times before an unemployed person can describe themselves as self-employed. The Commission claims that:

For example, the average time and cost to start-up a private limited company is now 8 days (compared to 9 days in 2008) and the cost is € 417 (compared to € 463 in 2008).⁴⁷

These initiatives may improve the opportunity of individuals to generate future property for themselves but more SMEs does not mean greater wealth or equality. Rather the “crowded platform” effect in which one start-up small firm forces another to close in a crowded market has been well-documented. Indeed one of the central characteristics of a successful SME economy is often seen to be the “churn effect”, in which a slightly higher number of companies are started up each year than those that fail. The social costs of high numbers of business failure can be very high especially to those who are already in low income areas or do not have additional career opportunities. Schemes to support entrepreneurship may also require participants to sign off of employment benefits reducing their access to other rights. There is therefore an inherent bias in Right Based Approaches to address inequality through the same mechanism as through property rights. In other words the market still prevails as an ideology in the evaluation of EU policies despite the rights agenda.⁴⁸ Like market base approaches those with property are better able to access the resources required to sustain or improve their accumulation of property which results in greater inequality in property again.

The extension of some economic rights, such as the opportunity to trade across the EU, may directly infringe on other rights like political rights, such as the right to express dissent on the negotiation of certain EU legislation.⁴⁹ The case has been made for separating the link between rights agendas and democracy for both political and moral clarity.⁵⁰ This lack of clarity reflects a theoretical tension between Sen and Nussbaum, the two main theorists of the Rights-Based Approach.⁵¹ The Central Human Capabilities (CHCs) is a list of basic human needs such as life, bodily integrity and health, designed by Martha Nussbaum and intended to enable the measurement of rights and their availability so that international organizations and states can hold elites to account.⁵² The more abstract notion of capabilities, associated with Sen, is intended to inform an interactive process of public reasoning. Sen’s more deliberative approach might see success in “... the extent to which a political system possesses structures to host deliberation that is authentic, inclusive, and consequential”.⁵³ Governments may embrace the importance of participation in the Open Method of Coordination but in doing so reduce it to a “top down technocratic prescription” or even a “tyranny of participation.⁵⁴

The Open Method of Coordination has not always delivered the open and meaningful deliberations of the governance approach under the Lisbon Agenda.⁵⁵ But what has in fact occurred has been the redefinition and privatisation of representative processes. The act of representation can take the form of a principal representing an individual (as a barrister in a court or an elected official) or it can be a graphical representation of an objective truth (as in a photograph or a statistical chart).⁵⁶ The former provides accountability through vote of severance of contract but the latter is accountable not to the individual in the survey but to the master paying for it. Social indicators are a less reliable mechanism for achieving political outcomes because they deny the opportunity of exit and voice, both of which help to sustain political community.

Social indicators have been used since the 1960s in the USA to promote community development.⁵⁷ Their greatest impact has been that they help to maintain momentum of social groups in initiatives to address inequality by the building of social knowledge. This means that the effective use of indicators requires the involvement of more not less communities in the validation and evaluation of indicator systems to be inclusive.⁵⁸ Others have been far more critical of the role of social indicators demonstrating how they have been used to strengthen central government control over communities or even to provide post hoc evidence to support to government policy ambitions.⁵⁹ Social indicators also often do not represent how people live as they provide only snap shots of historically contingent events or series of repeated behaviours. Life-cycle approaches, for example explore how needs and resources change over the working life and into retirement by exploring cohorts and generations. These approaches have the additional benefit that they can integrate national variations into comparative data to demonstrate how variations in national regime may influence, for example, the fairly universal common interests shared by employer and employee for early retirement.⁶⁰

The key difficulty in the use of social indicators in the pursuit of rights outlined in the new Lisbon Agenda is that they present a data set constructed of individuals. As Dowding points out this enables individual choice and hence responsibility to be integrated into intervention decisions by locating those choices within types that can be compared cross nationally. But such assumptions also strip the moral and historical compromises that have integrated those communities and framed the delivery of other rights, such as political end social rights. By replacing socially embedded actors with rational self-maximising individuals parts of the compromise are lost.