Government(ality) by Experts: Human Rights as Governance

The suggestion that the general economy of power in our societies is becoming a domain of security was made by Michel Foucault in the late 1970s. This paper takes inspiration from Foucault’s work to interpret human rights as technologies of governmentality, which make possible the safe and secure society. I examine, by way of illustration, the site of the European Union and its use of new modes of governance to regulate rights discourse—in particular via the emergence of a new Fundamental Rights Agency. ‘Governance’ in the EU is constructed in an apolitical way, as a departure from traditional legal and juridical methods of governing. I argue, however, that the features of governance represent technologies of government(ality), a new form of both being governed through rights and of governing rights. The governance feature that this article is most interested in is experts. The article aims to show, first and foremost, how rights operate as technologies of governmentality via a new relation to expertise. Second, it considers the significant implications that this reading of rights has for rights as a regulatory and normalising discourse. Finally, it highlights how the overlap between rights and governance discourses can be problematic because (as the EU model illustrates) governance conceals the power relations of governmentality, allowing, for instance, the unproblematic representation of the EU as an international human rights actor.     

On unobserved worker heterogeneity and employment protection

It has been claimed that employment protection aggravates problems of adverse selection if workers differ with respect to their productivity. Analyzing European and US labor law, we identify regulations which work in the opposite direction. Where employment protection legislation allows dismissals only for good cause and imposes social criteria upon the employer’s selection process in the event of redundancies, the average productivity of hireable workers is shown to improve. However, we find that the employers’ reduced freedom of choice more than offsets the productivity increase of newly hired workers and job creation is deterred by employment protection legislation. Nevertheless, low-productivity workers may favor the introduction of employment protection provisions.     

The Unorganised Worker: The Decline in Collectivism and New Hurdles to Individual Employment Rights

The ‘unorganised’ worker (neither unionised norcovered by a collective agreement) is the norm in Britain, especiallyin the private sector, which employs about 70% of employees.In 2003, union membership was down to 29.3%, and 18.2% in theprivate sector. Collective bargaining covers 72.2% of workersin the public sector, but only 22.1% in the private,¹ leavingstatutory regulation of individual employment rights as theonly protection for the majority of workers. In this context,access to these rights, and ease of enforcement, while neverpreviously straightforward, are becoming increasingly crucial.The individualisation of the employment relationship, whichbegan before New Labour returned to power in 1997, has continuedwith little restoration of collective rights and new legislationenhancing individual rights. The government’s commitmentto neo-liberalism and maintaining a ‘flexible’ labourforce has ensured that these further rights are circumscribedby new legislation, which places them further out of reach.This paper discusses this process in the context of the difficultiesworkers already face in obtaining support and guidance, thelack of affordable professional legal advice and representationand the impediments to providing an adequate service by theunder-funded voluntary sector.     

Sickness Absence and the Court of Justice: Examining the Role of Fundamental Rights in EU Employment Law

Being absent from work due to sickness is a critical issue for individuals and their employers, but it has traditionally fallen outside the scope of EU employment legislation. This article argues that this is changing; it examines case‐law under the Working Time and Employment Equality Directives. The article considers the justifications that the Court of Justice has advanced to explain this expansion in EU employment law. It finds that the Court has, at times, invoked fundamental social rights as a basis for interpreting employment legislation in a manner favourable to workers. Yet the way in which the Court deploys rights‐based reasoning can be difficult to anticipate, not least the countervailing weight attached to the interests of employers. The case studies indicate that fundamental rights discourse offers a possible foundation for more extensive readings of employment legislation, but it is not a simple ‘trump card’ for advocates of stronger worker protection.     

Law enforcement employment discrimination based on sexual orientation: A selective review of case law

Homosexuality has been the subject of discrimination from Biblical times through the present. Homosexuals continue to experience pervasive forms of discrimination, including denial of employment which they may be otherwise qualified to obtain. One profession that is particularly open in its discrimination against homosexual employees is law enforcement. This article traces the development of homosexuals’ rights as they specifically relate to employment in law enforcement. Examples of common arguments raised by police administrators to justify such actions are examined with each illustrated by an example from relevant case law. Finally, areas in which the law has begun to provide greater protection for the employment rights of homosexuals are identified.     

The European Union as a negotiator in the international climate change regime

While the leadership role of the European Union (EU) in the climate change regime has been largely acknowledged, less attention has been paid to identifying the reasons why the EU often fails in climate change negotiations. Such an undertaking is deemed imperative following the negative for the EU turn of events at the 2009 Copenhagen climate summit. There is sufficient literature to be found on the link between the Union’s unique and complex organizational structure and its inability to act cohesively and purposefully. This study seeks to add to this corpus by looking at the extent to which the EU has been able to learn from its mistakes and incorporate timely remedial action. Even though important, the EU’s failures as a global actor cannot be explained by only looking at its ineffective institutional architecture. A more systematic understanding of the reasons behind EU’s failures in climate talks is in fact needed. By using Underdal’s theory of ‘negotiation failure’, this study tries to explore the extent to which negotiation theory could help with better comprehending the obstacles that prevented the Union from getting more out of the climate negotiation process.     

Mothers, Extraordinary Labor, and Amacasual: Law and Politics of Nonstandard Employment in the South African Retail Sector

This article examines changing social meaning embodying legal categories of nonstandard employment within South African retailing between the 1950s and the postapartheid period. Using archival and interview material, the article shows how trade unions constructed part-time and casual employment through gendered, class, and racial meanings to produce two very different legal categories. Black workers' rights claims in the 1980s developed within these changing socio-legal parameters. The image of the full-time permanent worker became political agent, and in the postapartheid period, increasing numbers of casual workers became marginalized from the union. The relationship between rights and regulation gives us a more complex way of understanding worker politics.     

Governing Health and Social Security in the Twenty-First Century: Active Citizenship Through the Right to Participate

This article discusses the role of individual rights in the production of active citizenship. In recent years, the notion of ‘active citizenship’ has become an object of research in both political and social science. Studies that draw on the Foucaultian governmentality tradition have been particularly interested in various societal discourses and practices through which active citizenship is being produced. However, the role of law and rights has been neglected or even rejected in these studies. The aim of this article is thus to show that certain procedural rights, the right to participate in particular, constitute an important legal technology in the production of active citizenship. The analysis is based on the recent developments in Finnish social and health care law. It will also be argued that despite the apparently convergent subject-matter, Jürgen Habermas’s normative theory of the ‘procedural paradigm of law’ does not offer a meaningful framework in which to address the relationship between active citizenship and procedural rights since it is based on an overly narrow conception of subjectivity.     

The rights of rape victims are enhanced: Using the law of premise liability for compensation

The field of victimology has been inundated with empirical evidence which demonstrates victims of crime have very few rights. Yet a new field of civil liability has been growing in the last few years which gives rape and assault victims a new avenue to be compensated for their injuries. This paper will demonstrate how the victims’ target is not the criminal justice system (through compensation from restitution or victim’s compensation statures). Nor is it the defendant (who usually makes no money). Rather, the target is the rich apartment complex owners and other owners of commercial premises who have failed to maintain their premises safely. As a result of their negligence, the victims fail to be afforded the right to visit or habitat or to sleep without fear and are ultimately raped. Jury verdicts in these premises liability cases have reached more than nine million dollars. This paper will analyze the legal process whereby one particular rape victim actualized her rights and gained significant monetary damages under this evolving law of premise liability. Finally, it proposes the creation of a new institutionalized program that promotes the rape victim’s rights to adequate compensation for her injury-the Rape Victims’ Rights and Opportunities Program.     

Assessing the Domestic Violence Training Needs of Benefits Workers

Domestic violence victims often have economic and employment needs that either directly or indirectly stem from their victimization. In their efforts to seek services, victims may turn to benefits workers who are given the task of providing clients with short-term financial help, job training, access to health care, and assistance in obtaining a job. It is not clear whether benefits workers are adequately prepared to help domestic violence victims. In this study, 189 social services workers from the Commonwealth of Virginia were surveyed to assess the training needs of all social services workers. This article focuses on the specific training needs of benefits workers and draws comparisons between benefits workers’ training needs and other workers’ needs. The findings suggest that benefits workers are perceived as knowing less about domestic violence than other social services workers. Implications are discussed. This research was supported by a contract from the Virginia Institute of Social Services Training Activities     

The peculiar case of age discrimination: Americanising the European social model?

The Lisbon Strategy commits the EU to making labour market regulation more employment friendly with commentators anticipating some resulting convergence on the US model. Surprisingly, part of this post-Lisbon convergence has taken the form of a major extension of EU Social Policy with the expansion of anti-discrimination policies to address the case of age discrimination. We argue that unlike the US experience, it is the current preoccupation with raising European employment rates that has led to this expansion of ‘hard law’ Social Europe. We are unable to provide an efficiency rationale for this extension and assess alternative explanations. We also provide arguments suggesting that its impact is likely to differ from those experienced in the US.      

Anticipating the future use of safeguards by the EU and the US on China��s textiles & clothing exports

Textiles and clothing (T&C) trade after lapse of quotas in 2005 has revealed China’s overwhelming comparative advantage in the manufacture and export of T&C products. China’s advantage in this sector attracted the use of trade remedies by WTO members under WTO laws, often in a manner contrary to WTO norms. China has also been subjected to origin-specific safeguard regimes. The EU and the US have been leading users of safeguards against China’s T&C exports. The use of safeguards by the EU and the US raises a number of questions that impact on the future use of trade remedies by other countries. The use of safeguards also poses challenges for the multilateral trading system. This paper analyses the use of safeguards against China’s T&C exports with a view to anticipating the future use of safeguards in the quota-free trading environment for T&C.     

Kant, Copyright and Communicative Freedom

The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture.     

Nozick’s Reply to the Anarchist

Central to Nozick’s Anarchy, State and Utopia is a defense of the legitimacy of the minimal state’s use of coercion against anarchist objections. Individuals acting within their natural rights can establish the state without committing wrongdoing against those who disagree. Nozick attempts to show that even with a natural executive right, individuals need not actually consent to incur political obligations. Nozick’s argument relies on an account of compensation to remedy the infringement of the non-consenters’ procedural rights. Compensation, however, cannot remedy the infringement, for either it is superfluous to Nozick’s account of procedural rights, or it is made to play a role inconsistent with Nozick’s liberal voluntarist commitments. Nevertheless, Nozick’s account of procedural rights contains clues for how to solve the problem. Since procedural rights are incompatible with a natural executive right, Nozickeans can argue that only the state can enforce individuals’ rights without wronging anyone, thus refuting the anarchist.     

Childhood Maltreatment,Intimate Partner Violence,Work Interference and Women’s Employment

This study examined the long-term effects of childhood maltreatment, intimate partner violence (IPV) and work interference on women’s employment in a sample of 135 housed or homeless women. Work interference (defined as a partner’s interference with or restraint of a woman’s working) was reported by 60% of women who had experienced IPV and was more common among non-Hispanic White women. Abuse history of any type was not predictive of women’s employment or receiving job training, but child sexual abuse history and lifetime IPV were predictive of non-Hispanic White women’s not looking for a job. Receiving job training was negatively correlated with women’s current mental health. The study suggests different but overlapping pathways to the outcome of underemployment for racial/ethnic minority and majority women—namely, macro level factors and individual vulnerability factors, respectively. The need for trauma-informed services for unemployed and/or homeless women is highlighted.     

Becoming-Animal,Becoming-Detainee: Encountering Human Rights Discourse in Guantanamo

The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say, of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places; secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove particularly useful here.     

The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?

Academic literature repeatedly calls for the EU's accession to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (hereinafter Convention 1 ). Similarly, the Lisbon Treaty provides that the EU must accede to the Convention. [Correction made here after initial online publication.] This might seem odd as the European Court of Justice (hereinafter ECJ 1 ) has over the years developed abundant case‐law on human rights protection in the EU, and the EU has not so long ago adopted a, albeit non‐binding, catalogue of human rights (the Charter of Fundamental Rights of the EU (hereinafter Charter)). But after all these years, cases, and Treaty amendments, the EU is in fact going back to the ECJ's 1996 landmark opinion which recommended the EU's formal accession to the Convention, 1 already proposed in 1979 by the Commission. 1 One reason for this might be that, in the meantime, human rights issues have multiplied in the application of EU law, especially in areas such as the Second and Third Pillars where—at least initially—fewer human rights protection guarantees were foreseen.     

In what format and under what timeframe would China take on climate commitments? A roadmap to 2050

Balancing China’s energy needs to fuel its rapid economic growth with the resulting potential impacts of climate change presents an enormous climate policy dilemma, not simply for China but for the entire world. This is the major reason why the role of China is an issue of perennial concerns at international climate change negotiations. In response to these concerns and to put China in a positive position, this paper maps out a realistic roadmap for China’s specific climate commitments toward 2050. Taking many factors into consideration, the paper argues that China needs to take on absolute emissions caps around 2030. However, it is hard to imagine how China could apply the brakes so sharply as to switch from rapid emissions growth to immediate emissions cuts, without passing through several intermediate phases. To that end, the paper envisions that China needs the following three transitional periods of increasing climate obligations before taking on absolute emissions caps that will lead to the global convergence of per capita emissions by 2050: First, further credible energy conservation commitments starting in 2013 and aimed at cutting China’s carbon intensity by 46–50% by 2020; second, voluntary “no lose” emission targets starting in 2018; and third, binding carbon intensity targets as its international commitment starting in 2023. Overall, this proposal is a balanced reflection of respecting China’s rights to grow and recognizing China’s growing responsibility for increasing greenhouse gas emissions as China is on its way to becoming the world’s largest economy.     

The United Nations Convention on the Rights of the Child and the Punishment of Children Under English Law – Public and Private Vices?

The punishment of children in the domestic sphere and in the public domain is an issue of concern for those with care of children or whose interests lie in the protection of children’s human rights. How children are treated when they are judged to have broken rules reveals fundamental approaches to the welfare of those who have yet to reach adulthood. The effect of the United Nations Convention on the Rights of the Child in respect of how children are punished, whether in the home or as transgressors of criminal law, may be examined through two distinct but linked spheres: the private and home life context of domestic or personal punishment, and the public domain of state punishment of children in terms of criminal responsibility under English Law. Both spheres reveal attitudes towards the rights of children which suggest how human rights are accorded to particular groups in applying international obligations to a state’s domestic provision. This article seeks to explore some issues of compliance with Article 19 (the physical chastisement of children), Article 37 (the imprisonment of children being a ‚last resort’) and Article 40 (the minimum age of criminal responsibility) of the United Nations Convention on the␣Rights of the Child. The application of the rights of children and the operation of the ‚best interests’ of the child in applying Articles 19, 37 and 40 suggests that there are issues in relation to non-compliance which indicate a diminution of the separate rights of children under English Law in particular and in the operation of the best interests of the child. Penny Booth is a Reader in Law at Staffordshire University Law School.     

Gender Equality, Citizenship, and the EU's Constitutional Future

Abstract:  While gender equality has been a matter of some concern for EU law and policy makers over the past half century, this concern has tended, at least historically, to focus upon equal treatment in employment and has not yet materialised into the delivery of a broader package of civil, political, and social rights for women. Taking the concept of EU citizenship as a framework within which to view the promotion of gender equality, this article assesses the debate on the constitutional future of the EU. This is with a view to examining the possible amelioration of women's social position through the exploitation of opportunities that the constitutionalisation of EU law presents. Looking at women's citizenship through the lens of political rights to participate in the debate on the EU's future, together with examining substantive aspects of the Constitutional Treaty for their gender equality content, the article suggests that a more comprehensive endeavour by all institutional actors to engage in gender mainstreaming is needed in order to give effect to a broader form of equality between women and men.