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

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