The London School of Economics and Political Science Human Rights from the Great Depression to the Great Recession: The United States, economic liberalism and the shaping of economic and social rights in international law Sally-Anne Way A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy London, 1 April 2018 2 DECLARATION I certify that the thesis I have presented for examination of the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I confirm that most of Section 3.2.1 was previously published as: Sally-Anne Way, ‘The ‘Myth’ and Mystery of US History on Economic, Social, and Cultural Rights: The 1947 ‘United States Suggestions for Articles to Be Incorporated in an International Bill of Rights,’’ Human Rights Quarterly 36, no. 4 (2014): 869–97. I declare that my thesis consists of 99,923 words. Sally-Anne Way 3 ABSTRACT This thesis takes a ‘law in context’ and ‘history of ideas’ approach to examining the emergence, elaboration and evolution of ‘economic and social rights’ as human rights, including how and why they came to be included in the international human rights regime. The central thesis is that economic and social rights have been fundamentally shaped by the economic context and economic theories of the times in which they emerged and were elaborated. I have argued these rights emerged, and were elaborated, in times of economic crises, as part of a (liberal) challenge to liberal legal and economic orthodoxies. This thesis suggests that one important strand of the history of human rights lies in struggles within ‘western’ liberalism over rights, freedom and the role of the state in the economy. Challenging other histories of human rights, the first part of this thesis shows how the phrase ‘human rights’ emerged as part of a challenge to ‘property rights’ and laissez-faire constitutionalism in the United States during the Great Depression, shaped by the theories of the legal realists, institutional economists and later by economic Keynesianism. The second part, drawing on newly discovered archival material, charts an untold story of how these US conceptions profoundly influenced the nature and scope of ‘economic and social rights’ during the drafting of the 1948 Universal Declaration of Human Rights (UDHR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). The third part shows how economic and social rights were later elaborated by the UN Committee on ESCR, again in the context of economic crisis and again as a challenge to economic (neo)liberalism, this time shaped by heterodox economist, Amartya Sen. However, some of the key theoretical insights that shaped these rights during the Great Depression have been lost, in ways that circumscribe their power to challenge economic (neo)liberalism and the ‘constitutionalisation’ of austerity in our own Great Recession. 4 DEDICATION I dedicate this work to my parents, David Way, Nesta Parker and Ian Parker with love and gratitude, and to the memory of Marie-Helene Way. 5 ACKNOWLEDGEMENTS I thank all the people that have supported and accompanied me on this journey, especially my supervisor Margot Salomon for her guidance, commitment and conviction in my work. I also give thanks to many friends who helped keep me sane during the PhD process and who have forgiven my frequent absence from social gatherings, especially Christian, Lars, Perveen, Chris, Livio, Didier, Cote and Jonny. 6 Human Rights from the Great Depression to the Great Recession: The United States, ‘western’ liberalism and the shaping of economic and social rights in international law 1. INTRODUCTION 1.1. Histories of human rights, ESCR and economic crisis 1.2. The surprising influence of the United States on the UDHR and the ICESCR 1.3. Methodology: Human rights in economic context 1.4 Outline of the thesis 2. EMERGENCE: ECONOMIC AND SOCIAL RIGHTS IN THE UNITED STATES 2.1. The Great Depression, the New Deal and ‘new rights’ in the United States 2.2. Challenging classical liberal rights and constitutional laissez-faire 2.2.1 Roosevelt and the influence of the legal realists and institutional economists 2.2.2 The 1936 Constitutional moment – ‘human rights’ versus ‘property rights’ 2.3. Challenging neoclassical economic orthodoxy 2.3.1 The 1937 Roosevelt Recession and the influence of Keynesian economic theory 2.3.2 Post-war planning, the NRPB and Roosevelt’s 1944 economic Bill of Rights 2.3.3 The draft 1945 Full Employment Bill - constitutionalising Keynesian fiscal policy? 3. ELABORATION: DRAFTING OF THE UDHR AND THE ICESCR 3.1. From the UN Charter to the UDHR 3.1.1 ESCR, ‘larger freedom’ and full employment 3.1.2 Proposals for an international bill of rights 3.2. From the UDHR to the ICESCR – the travaux preparatoires 3.2.1 The US influence on the drafting of economic and social rights 3.2.2 Tracing the drafting of ICESCR Article 2.1 – Keynesianism lost in translation? 3.2.3 The curious case of the right to property – the missing right? 3.3 From the ICESCR to the Cold War and back to legal and economic orthodoxy 3.3.1 The US - from proposition to opposition to 1953 withdrawal 3.3.2 Back to legal and economic orthodoxy and Reagan’s 1987 economic bill of rights 4. EVOLUTION: JURISPRUDENCE OF THE COMMITTEE ON ESCR 4.1. Establishing the UN Committee on ESCR: 1987 as a watershed year for ESCR 4.2 Economic crisis and structural adjustment - challenging (neo)liberal economic orthodoxy? 4.2.1 Nature and scope of ESCR - Article 2.1 and the minimum core 4.2.2 Tripartite duties versus the ‘minimal state’ 4.2.3 AAAQ, ‘human development’ and the influence of economist Amartya Sen 4.3 The Global Economic Crisis of 2008 and the Great Recession 4.3.1 A ‘powerless companion’ to the ‘constitutionalisation’ of austerity? 5. CONCLUSIONS: BACK TO THE FUTURE? 5.1. Lessons from history: ESCR from the Great Depression to the Great Recession 5.2. Contributions of this thesis Bibliography The following images have been redacted as the copyright is owned by another organisation. Page 19 images 7 1. INTRODUCTION ‘The peoples of the world, shaken by two world wars and a ruinous depression within a short 25 years, had discovered that neither peace nor freedom were possible to man in an industrial society without economic security. The … extension of economic rights to man without depriving him of his traditional rights of free speech, religion, assembly, and fair trial poses the dominating question of the next 100 years. Because it is inseparable from the attainment of peace, the question will occupy the center of the national and international political stage. To leave social and economic rights out of a modern bill of rights would be to stage Hamlet without the Dane. John R. Ellingston, Full Employment Act of 1945: Hearings1 1.1 Histories of human rights, ESCR and economic crisis In his sweeping revisionist history of human rights, Samuel Moyn flamboyantly argues that the phrase ‘human rights’ (as opposed to ‘rights of man’ or ‘natural rights’ or other formulations) entered the English language ‘unceremoniously, even accidentally’ in the 1940s in the wake of the second World War II.2 He contends that ‘Human rights entered history as a throwaway line, not a well-considered idea’,3 and crudely posits that it was only as the result of President Franklin D. Roosevelt (FDR)’s ‘careless phraseology’4 that the phrase appeared in war-time rhetoric of the 1941 Atlantic Charter and the 1942 UN Declaration. Blithely dismissing much historical evidence on the 1940s,5 he declares that: ‘[a]s before in FDR’s Four Freedoms speech, the phrase entered not with a bang, but only in passing’.6 And with hubristic panache, Moyn continues that ‘[i]t seems unlikely that FDR – who apparently inserted the sentence in the final revision of the [UN] declaration – could have meant to introduce something conceptually new’.7 Human rights, Moyn insists, appeared in the 1940s only by ‘accident’. Dismissing many histories of human rights as little more than ‘hagiography', Moyn further asserts that reading World War II and its aftermath as the ‘essential sources of human rights as they are now understood is misleading’.8 He dismisses the period of the 1940s as irrelevant for the history of human rights, anachronistically asserting that ‘human rights as they are now understood’ can only trace their antecedents back to the 1970s (or 1977 to be more precise!). But his argument rests rather narrowly on the assumption that what is new about ‘human rights’ is that they extend above and beyond the state, so the state can be held accountable by a supra-national entity. For Moyn, the ‘central event in human rights 1 Ellingston 1945, 1249. 2 Moyn 2012, 44. 3 Ibid., 51. 4 Ibid., 52. 5 Key relevant works on human rights history in the 1940s include Simpson 2001; Glendon 2001; Brucken 2013; Whelan 2010; Anderson 2003a; Borgwardt 2007. 6 Moyn 2012, 49. 7 Ibid., 49 My italics. Moyn also argues that, although the 1948 Universal Declaration of Human Rights was an heroic achievement of diplomatic consensus, what is more interesting is why it remained so peripheral after that; why, as an NGO leader observed at the time, human rights ‘died in the process of being born’.