Tax policy is human rights policy

Zak Manfredi – 

“[T]ax policy is…human rights policy.”

– Philip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights

On the eve of December 1, 2017—as members of the United States Senate prepared for a late night of political contestation—Senator Bernie Sanders made the Republican tax bill a human rights issue. Senator Sanders drew attention to UN Special Rapporteur Philip Alston’s then-ongoing investigation into how “extreme poverty” implicates human rights in the United States. Alston later met with Senator Sanders, and, after concluding his visit, castigated the Republican tax legislation for its potential to exacerbate already historic levels of economic inequality and extreme poverty. In the wake of the finalization of the tax lawone of the greatest tax transfers of wealth to the rich in modern times—numerous activists also decried the human rights implications of radical economic disparities. Alston’s trip to the United States might nevertheless have seemed controversial to other observers precisely because it treated extreme economic inequality and poverty as human rights concerns. As a formal matter, the United States has never ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), and even its assent to the International Covenant on Civil and Political Rights (ICCPR) consisted of many formal reservations that render the treaty almost entirely non-justiciable in US courts. More generally, as Alston’s preliminary report noted, legal institutions in the US have been notoriously reluctant to apply the language of “rights” to address social and economic justice claims.

6720.jpgFor contemporary scholars and activists invested in challenging extreme inequality and concentrations of corporate power, however, human rights may prove controversial for a different reason: the long-shadow of the left critique of rights. Since at least Karl Marx’s critique of the French Declaration of the Rights of Man and Citizen, many left thinkers have been suspicious of the conceptual foundation and practical implications of human rights.  For Marx, the Rights of Man helped underwrite a regime of private property law that stifled “genuine human emancipation,” while simultaneously absolving the state from addressing social and economic domination in the sphere of “civil society.” On this account, just as the state recognizes the formal equality of all persons, it simultaneously abdicates responsibility for private forms of discrimination and social domination—rights to hold private property offer no comfort to those without means to acquire food, shelter, or housing. More generally, leftists have long observed that a narrow focus on formal equality obscures and ratifies substantive inequalities. Indeed, many subsequent critics—including notably early writings of the Critical Legal Studies Movement—contend that the promulgation of legal rights can exacerbate conditions of oppression. Contemporary scholars note how rights claims are invoked to prevent the redistributive taxation of privately held capital, to protect the rights of corporate entities to “speak” as in Citizen’s United, and to weaken the power of labor unions with “right to work” laws.

Today, thinkers have updated these critiques to consider how human rights law can function as a form of “neoliberal governance”—these critics stress that complying with human rights norms often requires states to make certain “reforms” that align with political and economic agendas that favor “free market” principles. As Naomi Klein observes, the neoliberal economic programs championed by Reagan and Thatcher spread across the globe during the 1970s and 80s at precisely the same time when international human rights NGOs also flourished. Jessica Whyte’s astute analysis argues that even the social and economic human rights frameworks of the twentieth century were designed to be “flexible” enough to allow for the implementation of new forms of neoliberal economic governance. While I cannot do full justice to these critiques in the space here, it is important to note that they ultimately rest on a set of concerns about the kind of normative vision of the “human” that human rights laws underwrite. Anthropologist Talal Asad, for one, suggested that “the historical convergence of human rights and neoliberalism may not be purely accidental,” since human rights notions of “self-ownership” and “self-preservation” align with neoliberal economics’ understanding of human beings as pieces of “human capital” always striving towards greater self-augmentation. Consider, for instance, whether a theory of human rights imagines human being as, in Marx’s critique, “egoistic individuals” preoccupied with holding and consuming private property, or in contemporary terms, as entrepreneurial creatures always seeking to maximize their individual capital and credit-worthiness; when such a theory of human rights is implemented in practice, critics worry that the legal protections it offers will focus primarily on creation of “free markets” and justify policies that intensify social and economic stratification. Perhaps more distressingly, left critics of human rights also worry that particular rights regimes encourage and produce different self-conception among rights holders—if a human right to private property or wealth accumulation is enshrined in law, it helps establish a framework for how people evaluate their own, and each others, life projects.

While a number of scholars and human rights advocates champion the renewed application of human rights frameworks to address extreme inequality, new critics have also expressed a different kind of skepticism about the limitations of human rights instruments as remedies for social and economic injuries. This view objects to human rights, not as instruments of neoliberal expansionism per se, but rather as a legal and moral framework simply indifferent to issues of social and economic inequality. For instance, notable human rights skeptic Samuel Moyn argues that “[e]ven perfectly realized human rights are compatible with radical inequality.” In a number of recent pieces that foreshadow the argument of his upcoming book, Moyn laments that, historically, human rights movements and legal regimes proved impotent as “a helpless bystander of market fundamentalism.” In Moyn’s account, human rights movements focused on a “minimalist utopia” of justice that targeted only the most extreme abuses of state violence and—at best—contemplated a set of “floor conditions” in the socio-economic domain. Moreover, in its preoccupation with protecting individuals from direct state violence, Moyn stresses that the human rights movement simply failed to prioritize “the agency of states to launch and manage national welfare”; even as a formal matter of law, the ICESCR only requires states to take steps to “progressively realize” economic and social rights, which, in practice, often leaves these rights non-justiciable. If social movements are now more concerned with the effects of economic policies that produce inequality and the threats of far-right political forces, Moyn and other critics argue, they are, by and large, better off framing their demands for justice in languages other than that of human rights.

Alston’s innovative work as UN Special Rapporteur on Extreme Poverty and Human Rights has taken place at the same time that many renewed critiques of human rights proliferated; his project arguably acknowledges some core insights of these critics while nevertheless attempting to rectify the failings of human rights through a revitalizing of existing legal instruments. In a June 2016 address to the Human Rights Council, for instance, Alston underscored that historically UN human rights organs and transnational NGOs often treated economic and social rights (ESR) as “marginal.” Alston’s recent writings also draw links between the rise of far-right populism and the failure of states and social movements to protect social and economic rights. In this sense, he shares with human rights skeptics a deep concern about how inequality within states has intensified under conditions of economic globalization, financial market deregulation, and trade liberalization since the 1970s; in Alston’s own words, “the winds of globalization are blowing in directions that are not at all favourable to [economic and social rights].” In response to these developments, Alston now exhorts social movements to mobilize resources from the human rights corpus precisely to counter neoliberal expansionism in law and policy. His position differs from that of skeptics, however, in urging for human rights proponents to refocus their attentions on extreme inequality, rather than calling for new political movements to operate outside of human rights frameworks.

Consider how Alston’s far-reaching work as Special Rapporteur endeavors to reorient human rights advocacy toward social and economic rights. Relying on the broad mandate that the UN Human Rights Council has provided him under resolutions 8/11 and 35/19, as Special Rapporteur his reports often focus on issues of taxation policy, regulation of financial markets, social welfare protections, and anti-discrimination; in March of 2017, Alston even authored a major report on universal basic income, assessing its historical origins and its potential role in addressing violations of social and economic rights. Since assuming this latest UN post in 2014, Alston produced a series of powerful reports on extreme poverty based on country visits to Romania, Chile, Saudi Arabia, China, Mauritania, and now the United States. Across these reports Alston has made dynamic and innovative use of existing human rights instruments to analyze states’ obligations to remedy economic and social disparities: for example, invoking the ILO Indigenous and Tribal Peoples Convention to advocate for land rights for indigenous persons in poverty in Chile, developing principles from the ICESCR to address equal access to education for rural children in China, and using the International Convention on the Elimination of Forms of Racial Discrimination to insist that Saudi Arabia provide economic support to non-citizens. His full report on conditions in the United States—which will discuss homelessness in California, racial discrimination in the South, the decline of industrial work in West Virginia, and the hurricane response in Puerto Rico—promises to elaborate and expand this work.

Questions remain, however, about whether and how such renewed focus on social and economic rights responds to the fundamental insights of the left critiques of human rights. While a full assessment of these issues requires much more detailed treatment elsewhere, briefly consider the renewed objection of Moyn and others that, even when successfully enshrined in law and ensured by states, human rights largely ignore the issue of radical economic inequality. In direct opposition to this view, since his earlier work on the ICESCR treaty body Alston has insisted that human rights principles are fundamentally incompatible with extreme inequality: “Far from having little to say about economic inequality, human rights demand that states reject extreme inequality and formally commit themselves to policies explicitly designed to reduce if not eliminate it.” In this regard it seems essential to note that the substantive content of rights claims Alston champions have expanded dramatically since the early left critiques of rights—human rights to education, housing, protection from racial discrimination, gender equality, union membership, sustenance, and water all emerged over the course of the twentieth century, and indeed, new rights instruments and declarations were often developed in response to the demands of left social movements. As others scholars have argued, the history of international human rights law itself proves complex and polyvalent: within the twentieth century, socialist, post-colonial and other left critics of neoliberalism have also relied on human rights norms as part of their own vocabularies of justice.

Nevertheless, one might still object that even the most radical of social and economic rights claims address conditions of absolute material deprivation and oppression, rather than the relative disparities in power indicative of extreme inequality. One might argue, for example, that a right to adequate housing for all still says little about the apparent injustice of a social order where millions live in meager one-room homes while a class of billionaires occupies palatial mansions. We might query whether human rights claims only speak to distributive justice as a matter of contingency: when basic social and economic rights are not protected in a social order with vast disparities in wealth, do human rights principles only demand that redistribution occur to the point where rights are minimally satisfied? Worse yet, do rights claims then risk serving as an apology for a “minimalist justice” that could blunt demands for more radical social transformation?

As a theoretical matter, Alston’s own writing offers at least one promising rejoinder to this important line of critique. The argument, in Alston’s terms, is that the “interconnectedness” of different kinds human rights necessarily implicates inequality. In a 2016 address, Alston invoked the 1993 Vienna Declaration to make this point: “[a]ll human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” A recurrent theme of his reports, speeches, and publications is that inequality and extreme poverty impair ones ability to enjoy almost all human rights. In this sense, Alston’s work can be cast as a revival of arguments associated with strands of socialist political theory and welfare liberalism that view material wellbeing as a pre-requisite for active participation in political life. Writers in this tradition have long underscored that conditions of economic precarity—for instance, lack of reliable access to housing, food, water, or medical care—can make political participation and cultural expression nearly impossible. Perhaps Alston intends the argument about interconnectedness to be further clarified to suggest that extreme forms of inequality are per se antithetical to human rights: when material disparities in economic and social resources are substantial, the economically powerful may prevent others from exercising political and civil rights as well. At the very least, this argument suggests that theorists and advocates ought to reassess the multiple dimensions on which inequality implicates human rights.

Importantly, in suggesting a defense of Alston’s work, I certainly do not mean to imply that human rights cannot be mobilized toward inegalitarian ends (I have written in detail elsewhere about this possibility in the context of the “right to development”). My suggestion, however, is that critics of inequality might do well to think with Alston about how our conception of human rights can shift to address issue of inequality, poverty, and material disparities in power. We must analyze when and how human rights frameworks obscure issues of corporate power, racial and gender discrimination, and wealth consolidation—while also exploring the ways in which human rights may provide tools to challenge the structural dimensions of social and economic inequality.

Consider briefly how advocacy along these lines might take shape in the context of Senator Sanders’ challenge to the tax bill. Framing different features of the bill (both those proposed and finalized) as a “human rights” violations illuminates some of their most pernicious dimensions: the initial House bill’s tax of graduate students “ghost tuition” could be seen as an attack on the human right to education by depriving all but the wealthiest of access to graduate degrees; the repeal of the ACA individual mandate, which will likely result in increased premiums that could leave 13 million more Americans uninsured, could be framed as violation of the human right to health care; and the elimination of state tax deductions that threatens to exacerbate California’s homelessness crisis could be seen as an assault on the human right to housing. When framed as human rights violations, arcane and technical tax proposals appear politically salient and imperative—a human rights analysis highlights the ways in which law and policy implicate fundamental freedoms and human needs. In part, this work requires recognizing an—albeit often limited—plasticity of law and its potential to develop in new directions; perhaps, in the twenty-first century context of radical economic inequality, human rights to food, water, non-discrimination, housing, and labor protections may prove more dynamic than previously imagined. At the very least, new empirical evidence suggests that a majority in the United States consider health care to be a “right” (whether “human” or “fundamental”)— such attitudinal shifts indicate that social movement organizing can still shape the theory and practice of human rights.

If advocates like Alston seek to radically expand collective understandings of human rights, the zeitgeist—at least in the North Atlantic—may be ripe for the transformation. The election of Trump has elevated critical reflection on the historical violence of the United States to national attention and concerns over the rising tide of inequality continues to mobilize both left and right political forces. For many, the “fate of the republic” hangs in the balance.  Against this backdrop, social movements concerned about inequality are engaged in evolving practices of advocacy, experimentation, and dissident protest. In the United States, a vast array of political energies and institutional resources that previously supported “international” human rights movements now increasingly find their attention focused on domestic abuses of human rights. The convergence of these movements with renewed focuses on economic and social policy may yet provide new opportunities—both philosophical and strategic—for egalitarian advocates.

Zak Manfredi is a graduate of the Yale Law School and a Ph.D. candidate in the Department of Rhetoric at the University of California, Berkeley.