Introduction

In March 2009, a massive blacklisting of construction workers in the United Kingdom was exposed. The Information Commissioner's Office (ICO), the national data protection authority in the United Kingdom, raided the offices of the Consulting Association (TCA) to reveal that forty-four companies, including major multinational corporations, conspired in the blacklisting of more than 3,200 individuals. The system required collaboration among several actors. The construction firms collected information on workers without their knowledge or consent and reported it to TCA. TCA, founded and funded by construction firms, oversaw this massive institutionalized blacklisting by systematically compiling, analyzing, and selling data about workers. These data were then used by firms in hiring and firing decisions, since the list included information about workers who were deemed “trouble makers, criminal elements or other undesirable people” (Department for Business, Innovation and Skills 2009, 9), which in effect meant employees who raised their voices on health and safety issues in the workplace and/or were active in the trade union movement. As a result, thousands of workers went unemployed for years or were forced to look for jobs as unskilled workers, unable to seek employment in the industry to which they devoted years of careful work.

Several aspects of this story make it a rather shocking incident. These include the extent and nature of blacklisting in a country that has had a long commitment to democratic values and protection of individual rights, the complicity of the police in this crime, the inability to prosecute the blacklisters under British law, and the “ruined lives” that resulted from this institutionalized blacklisting (Ewing Reference Ewing2010a, 12). But it was not just the scene or the severity of these crimes that is noteworthy; it is also the response of those it victimized. Losing hope in the UK justice system, two blacklisted workers recently took their cases to the European Court of Human Rights (ECtHR, or the Court). Moreover, a new grassroots organization, the Blacklist Support Group (BSG), responded to the TCA raid by launching a public campaign committed to exposing blacklisting practices as fundamental violations of human rights.

In recent years, similar trends have arisen around the world, as labor activists have used human rights frameworks to draw attention to precarious working conditions and restrictions on labor activism (Compa and Diamond Reference Compa and Diamond1996; Gross Reference Gross2003; Gentile and Tarrow Reference Gentile and Tarrow2009; Savage Reference Savage2009; Kang Reference Kang2012). In Europe, this trend has been specifically marked by the judgments of the ECtHR in the past decade. The Court, after years of shunning labor cases, has become unprecedently progressive in response to the increasing number of trade union rights cases brought before it. Although there is a growing body of literature on the legal impact of these international human rights frameworks for workers, there been no research on the transformative effects of these cases on labor activism on the ground.

In this study, I present ethnographic work on BSG activism and build upon two areas of sociolegal scholarship—the vernacularization of human rights and legal mobilization—to analyze whether and how labor activists mobilize international human rights law. I show that there is a two-tier process through which human rights laws and norms travel into local contexts. Legal advocacy groups initiate vernacularization by identifying litigation opportunities at the international level and making international human rights norms accessible to local labor activists. Next, grassroots activists reach a broader audience by molding these human rights norms into their campaigns through demonstrations, lobbying activities, and the creation of media stories.

Second, my findings suggest that mobilizing international human rights law presents some unique conditions for labor activists at the grassroots level. I argue that labor activists’ strategic mobilization of human rights differs from efforts to build a broad-based human rights movement. Other scholars have shown that movement leaders try to persuade members to see their victimization through a human rights lens (Merry Reference Merry2006b) and that they try to recruit new members using human rights discourse (Chua Reference Chua2015). My study, however, suggests that the BSG activists aim at persuading outsiders, rather than their own members, to see their victimization as a human rights violation. Workers understand human rights less as a cause around which to build a movement and solidarity ties than as a strategic point of entry into a civil discourse that has increasingly failed to hear workers’ rights claims. Consequently, BSG activists take a calculated and measured approach toward human rights, retaining their skepticisms on the promises of human rights law. Contrary to the claims of labor scholars that the use of human rights frameworks and judicial means individualizes the labor movement (Lichtenstein Reference Lichtenstein2003; McCartin Reference McCartin2005; Savage Reference Savage2009), BSG's strategic mobilization of human rights helps establish new alliances and leverage public opinion.

The following section builds on legal mobilization theory and theories on the localization of human rights to elaborate the strategic mobilization of human rights. Next, after a brief discussion on research methods, I analyze the transformations in the domestic and international political environment to explain why labor activists in the United Kingdom have sought remedies at the ECtHR. I delineate the context of post-1980 antiunion policies at the domestic level and the changing political positioning of the ECtHR vis-à-vis trade union rights. Then, I turn to the legal mobilization of the BSG and its strategic use of human rights law and language to analyze the on-the-ground impact of these litigation efforts for the movement.

Mobilizing Labor's Human Rights

Socioeconomic rights have historically lagged behind in human rights frameworks (Jhabvala Reference Jhabvala1984; Alston Reference Alston2005; Freeman Reference Freeman2011). Within the UN system, civil and political rights are protected under a much more stringent legal system, whereas socioeconomic rights are viewed as objectives to be attained depending on the availability of resources. The human rights protection by the Council of Europe (CoE) system similarly delegates the protection of socioeconomic rights to the European Social Charter (ESC), which has a much weaker monitoring system that lacks a robust structure of judicial supervision.Footnote ¹ Labor rights occupy a distinct position within the human rights system. On the one hand, the International Labor Organization (ILO) was established as early as 1919 to provide decent work and justice for workers. Although the ILO has played a significant role in setting standards and providing guidance on labor rights (Gravel, Duplessis, and Gernigon Reference Gravel, Isabelle and Bernard2002), its implementation mechanism is notoriously weak, as critics denounce the ILO as “a ‘90-pound weakling of UN agencies’, ‘a toothless tiger’” (Helfer Reference Helfer2006).Footnote ² Labor rights have received much less attention from human rights activists as well. This trend has started to change in the past two decades. There is a growing effort among workers to promote labor rights as human rights, and international courts have started to respond to these demands for change from below (Langford Reference Langford2008; Dorssemont, Lörcher, and Schömann Reference Dorssemont, Lörcher and Schömann2013; Fudge Reference Fudge2015). Yet, we know little about whether and how these new human rights norms are localized and how they transform the mobilization strategies of labor activists.Footnote ³

Studies show that international human rights law can become an important resource for activists by empowering social movements and propelling transnational activism, which, in turn, lead to improved human rights practices (Keck and Sikkink Reference Keck and Sikkink1998; Risse-Kappen, Ropp, and Sikkink Reference Risse-Kappen, Ropp and Sikkink1999; Brysk Reference Brysk2002; Simmons Reference Simmons2009; Tsutsui, Whitlinger, and Lim Reference Tsutsui, Whitlinger and Lim2012). While most of these earlier studies focus on civil and political rights, that is, freedom from torture, women's rights, and freedom of speech, recent work suggests that there has been an increase in claiming socioeconomic rights in international and domestic courts from the 1980s onward (Gauri and Brinks Reference Gauri and Brinks2008; Langford Reference Langford2008; Yamin and Gloppen, Reference Yamin and Siri2011; Langford et al. Reference Langford, Cousins, Dugard and Madlingozi2013; Rodríguez Garavito and Rodríguez-Franco, 2015). Findings from these works parallel earlier research in many ways, although scholars have also pointed out that the resources and engaged citizenship required to achieve these positive outcomes may place marginalized groups in a disadvantaged position (Robins Reference Robins2008).

Though many labor scholars agree that organized labor has been in decline since the 1980s in many parts of the world, there is no consensus on the desirability of resort to human rights. Some labor scholars have been enthusiastic that human rights provide labor activists a new opportunity to demand their rights through an internationally recognized framework and a renewed focus on labor issues (Compa and Diamond Reference Compa and Diamond1996; Gross Reference Gross2003; Gentile and Tarrow Reference Gentile and Tarrow2009; Mantouvalou Reference Mantouvalou, Gearty and Mantouvalou2011). Others, however, point out that the narrow and selective focus of the newly popularized labor rights in human rights frameworks could harm workers’ interests. Caraway (Reference Caraway2006) contends that human rights provisions, such as the ILO conventions, prioritize the freedom rather than the empowerment of trade unions. Thus, they fail to address fundamental problems of labor, such as union fragmentation and decreased bargaining power in an increasingly globalized economy, while promoting freedom of expression, or freedom of association. Moreover, human rights law individualizes the collective nature of labor conflicts (Ewing Reference Ewing1998; Gearty Reference Gearty, Gearty and Mantouvalou2011), it is often argued, and depoliticizes “class-based” strategies that labor activists have traditionally used (McCartin Reference McCartin2005; Savage Reference Savage2009). As Savage (Reference Savage2009, 9) puts it, relying on human rights “foster[s] a sense of individualism in workers rather than the sense of collective worker power required to transform society.”

Critics have also drawn attention to the symbiotic relationship between neoliberalism and judicialization, whereby international legal frameworks have become guardians of private property and trade rights while turning a blind eye to labor rights issues (Gill Reference Gill1995; Munck Reference Munck, Saad-Filho and Johnston2005). After all, the judicialization of politics increased precisely as social welfare states in Europe began retreating from their redistributive role, and the increased demand for flexible labor (temporary or subcontracted work, often with no benefits or welfare safety nets) left workers in a vulnerable position. Labor scholars, particularly in the United Kingdom, have pointed out that collective bargaining and union membership have fallen drastically as employment tribunals have expanded their jurisdiction and started to take a more prominent role in adjudicating workplace disputes (Colling Reference Colling2006). In short, according to critics, there seems to be nothing to celebrate about the institutional shift “away from the traditional vehicles for labor rights, such as social citizenship, the welfare state, trade unions, and collective bargaining, which are in decline in many parts of the world, to legal and constitutional mechanisms” (Fudge Reference Fudge, Campbell, Ewing and Tomkins2011, 9).

Skepticism regarding using legal frameworks to address deep-seated power imbalances seems prudent. Yet, even the most restrictive contexts are not totalizing in their effects, and the very tools of control can sometimes be used for counterhegemonic purposes (Scott Reference Scott1985; Mitchell Reference Mitchell1991). Utilizing human rights frameworks does not mean that workers are beguiled by the promise of law (Lovell Reference Lovell2012), or that they completely buy into the “myth of rights” (Scheingold Reference Scheingold1974). Activists can invoke rights language and engage in litigation tactics while being aware of the “ever-present risk of co-optation and disempowerment” (Madlingozi Reference Madlingozi, Langford, Cousins, Dugard and Madlingozi2014, 113). Following the sociolegal scholarship on law and social change, I analyze the ways in which human rights law can be constitutive of collective mobilization.

Strategic Mobilization and Vernacularization of Human Rights

In this study, I build on legal mobilization and vernacularization of human rights theories to argue that there is a two-tier process through which human rights become translated into local contexts and that labor activists use human rights frameworks strategically to leverage public opinion and build alliances.

By legal mobilization, I refer to the efforts to mobilize the law—including, but not limited to, litigation and changing rights discourses as well as organizational opportunities and institutional resources—for social change. McCann's (Reference McCann1994) interpretive approach to law and social change, which builds on the work of Scheingold (Reference Scheingold1974), laid the foundations of this theory. Legal mobilization theory conceptualizes law as a discursive tool “that structures social relations and shapes the knowledge, understandings, aspirations, and strategic gambits of legal ‘users or claimants’” beyond what we find in legal documents and courtrooms (Lovell, McCann, and Taylor Reference Lovell, McCann and Taylor2015, 3). Scholars have demonstrated that while law, for the most part, sustains the existing hierarchies of power, it also has the potential to become a resource for activists when combined with other forms of activism.

Although this framework emerged out of US-based studies on law and social change (Scheingold Reference Scheingold1974; Zemans Reference Zemans1983; McCann Reference McCann1994), it has been adopted by many legal mobilization scholars working on domestic courts outside of the United States (Epp Reference Epp1998; Gauri and Brinks Reference Gauri and Brinks2008) and international courts (Cichowski Reference Cichowski2007; Simmons Reference Simmons2009). This latter group of scholars specifically focused on the role of “legal support structures,” such as legal advocacy groups and financial sources, that enable litigation efforts to push for changes in legislative or institutional frameworks.Footnote ⁴ My study corroborates the importance of legal support structures for legal mobilization at an international level, as there is a dense legal advocacy network in the United Kingdom that has played an important role in leading trade unions to utilize the ECtHR, despite the historical skepticism of trade unions toward using judicial means (Wedderburn Reference Wedderburn1965; Conley Reference Conley2014).

While legal support structures hold strong explanatory power in legal mobilization, solely focusing on elite preferences may generate an inadequate picture of law and social change. Emphasizing the constitutive nature of law and mobilization, many other legal mobilization scholars (McCann Reference McCann1994; Gallagher Reference Gallagher2006; Holzmeyer Reference Holzmeyer2009; Vanhala Reference Vanhala2011; Lovell, McCann, and Taylor Reference Lovell, McCann and Taylor2015; Rodríguez-Garavito and Rodríguez-Franco Reference Rodríguez-Garavito and Rodríguez-Franco2015) have adopted a bottom-up approach to explore how litigation strategies can be used in conjunction with other forms of activism at the grassroots level, such as campaigning, protest activities, lobbying, and developing media stories. As such, activists push not just for legislative changes, but also for changes in the dynamics of mobilization in a broader sense, including developing new strategies, aspirations, norms, and discourses by workers and other actors.

In recent years, an increasing number of scholars have adopted this bottom-up approach in comparative studies, ranging from South Africa (Madlingozi Reference Madlingozi, Langford, Cousins, Dugard and Madlingozi2014) to Colombia (Rodríguez Garavito and Rodríguez-Franco 2015). Findings from these studies also signal the need to examine the indirect effects of legal mobilization beyond policy outcomes by paying attention to how legal strategies can help build advocacy coalitions and reshape social understandings of socioeconomic rights.

Research exploring how these broader dynamics between law and social change play out at the international level, however, has been scarce. This research takes legal mobilization theory a step further by studying the unique dynamics of activism at an international human rights court around an issue that has historically fallen outside of human rights frameworks, namely, trade union rights. I argue that litigation at an international human rights court led grassroots activists to take on a broader campaign to claim labor rights as human rights. Their strategic mobilization of human rights allowed them to establish new alliances, gain purchase in the media, and engender a discursive change in labor rights by building a more positive image for trade unionists in an attempt to counter hostile popular perceptions.

Another strand of sociolegal research, focusing on the vernacularization of human rights, is useful to make sense of the various forms in which local groups challenge, shape, and utilize human rights (Merry Reference Merry2006a; Levitt and Merry Reference Levitt and Merry2009; Chua Reference Chua2015).Footnote ⁵ Drawing on case studies conducted by a group of international scholars in four countries, Levitt and Merry (Reference Levitt and Merry2009) show that human rights norms resonate more with local groups in hybrid forms, situated within preexisting ideologies, belief systems, and values. Yet, they also note that in certain cases, vernacularization is met with “resistance or indifference” (Levitt and Merry Reference Levitt and Merry2009, 457; see also Merry and Stern Reference Merry and Stern2005). Legal experts and human rights activists play a key role in this process as intermediaries or translators between local and international norms (Merry Reference Merry2006b). Legal advocacy groups are therefore pivotal not only because they compose part of the legal “support structures” (Epp Reference Epp1998), but also due to their dual role in vernacularizing new sets of meaning-making mechanisms to “rights holders” and in amplifying human rights norms to reflect the real experiences and grievances of people on the ground.

Actors involved in the process of vernacularization do not form a homogenous group, but are differentiated into multiple layers based on their ideological orientations, positions within existing power hierarchies, social class, knowledge of language, transnational connections, and so forth (Merry and Stern Reference Merry and Stern2005; Merry Reference Merry2006b). At times, they may even come into conflict with one another based on their attitudes toward vernacularization (i.e., dismissal, resistance, adoption), or because their loyalties may be closer to local communities or international NGOs or networks (Merry and Stern Reference Merry and Stern2005; Merry Reference Merry2006a).

My study of BSG activism suggests that the intermediaries involved in vernacularizing human rights within the trade union movement are composed of two tiers. The legal advocacy networks taking cases to the ECtHR from the United Kingdom constitute the first level of vernacularization. In the face of weak protections against blacklisting in British law, these groups were the first to target the ECtHR for remedy once blacklisting was exposed in 2009. They serve a dual role of driving litigation efforts at the domestic and international level, as well as by identifying human rights law as an opportunity for workers. Hence, in addition to undertaking legal action, they inform the workers about their new set of rights under human rights law. BSG activists serve as the second tier of intermediaries by facilitating a discursive change in labor rights, recasting the symbolic associations between human rights and labor rights through campaigns, demonstrations, lobbying, and creation of media stories. Consequently, the BSG not only helps bring international human rights from an ivory tower down to the grassroots level, but also advances its own cause by altering public perceptions of trade union members as bearers of human rights.

Much of the evidence for the vernacularization of human rights draws on mobilization around civil and political rights, such as women's rights (Levitt and Merry Reference Levitt and Merry2009; Merry et al. Reference Merry, Levitt, Rosen and Yoon2010) or sexual orientation and gender identity issues (Chua Reference Chua2015). In some of these contexts, local activist groups adopt human rights language to secure funding, resources, and support from international organizations (Levitt and Merry Reference Levitt and Merry2009). Activists can also approach human rights pragmatically, repurposing their meanings as necessary (Merry Reference Merry2006a, 44). In case studies ranging from New York (Merry et al. Reference Merry, Levitt, Rosen and Yoon2010) to Myanmar (Chua Reference Chua2015), however, transnationally connected NGOs and activists—not just legal advocacy groups—spearheaded the adoption of human rights language through workshops and seminars. Activists organize these training sessions to teach and encourage members to articulate their grievances through human rights language, for instance, by pointing out to a woman that her partner forcing her to have a sexual relationship is a case of rape and a violation of her body (Merry Reference Merry2006a, 43–44). The principal function of the vernacularization of human rights as a mobilization technique in these case studies is to foster the formation of a new collective identity around human rights and to recruit new members to the movement.

BSG activists’ role in strategic mobilization of human rights differs from that of a “translator” persuading members to see themselves as “rights-bearing subjects” (Merry et al. Reference Merry, Levitt, Rosen and Yoon2010, 125). Instead, labor activists assume a new collective identity among labor activists situationally and even unintentionally. While some members of the BSG began identifying themselves as human rights activists owing to their campaigning, solidarity within the group is still formed primarily around traditional class-based identity. Hence, BSG activists’ vernacularization of human rights is strictly one-directional, toward a broader audience, rather than their own members.

The conditions of the BSG's mobilization of human rights in the United Kingdom are shaped by labor activists’ traditional mistrust of human rights law driven primarily by activism at the grassroots, that is, not by transnational advocacy networks or human rights organizations. The two-tier process of the vernacularization of human rights thus resembles a division of activist labor. Litigation efforts are led by a group of transnationally connected legal advocacy groups, who initially identified the ECtHR as the target institution due to weak domestic laws against blacklisting. The on-the-ground mobilization, on the other hand, is initiated by grassroots activists supported by trade unions but not by other human rights organizations or transnational networks. Moreover, human rights law has become a legal resource for labor activists in Europe only within the past fifteen years. Therefore, until recently, human rights law has neither constituted an element of labor activists’ repertoire of mobilization strategies, nor has it been a part of their cultural “tool kit.”Footnote ⁶ And, despite recent progressive ECtHR judgments, these remedies are still quite limited, given the sustained structural assault on trade unions since the 1980s. Consequently, BSG activists cautiously and strategically integrate human rights language in their campaigns to shape public opinion even as traditional ideologies and values based on class animate their movement ties and recruitment mechanisms.

This suggests that the strategic mobilization of human rights is distinct from the strategizing and calculation suggested by game-theoretical approaches to social movements (Fireman and Gamson Reference Fireman, William, Zald and McCarthy1979; Opp Reference Opp1999). The latter starts from the assumptions that activists freely pick and choose which strategies to employ in order to maximize their interests, and that the highly abstract rules of the game constraining actors’ preferences can be replicated with minor changes across time and space (Hall and Taylor Reference Hall and Taylor1996). By contrast, I argue that the BSG movement's use of human rights takes place within a historical and political context in which (1) trade unions are seen as a regressive force in the economy, (2) the ECtHR has come to have a direct impact on the UK domestic legal system, (3) a committed group of lawyers has taken strategic action at the international level, (4) human rights language has become globally resonant, and (5) labor activists have given up on their socialistic ideals. A comparison among different cases, therefore, would need to account for the ways in which the strategic mobilization of human rights is embedded within the historically and culturally contingent configurations of those institutional settings.

Research Design and Methodological Approach

This study presents original ethnographic research to analyze the legal mobilization of trade union activists from the United Kingdom at the ECtHR. I situate my ethnographic study of the BSG activists within the changing domestic political context in the transition period from the Thatcherite era to the Blairite era, as well as the changing political positioning of the ECtHR.

My ethnographic research is based on a field study I conducted in three cities in the United Kingdom over six months during the summer of 2013 and the fall of 2014. I was primarily based in London, where most BSG activism was taking place, but also traveled to Newcastle and Bristol for union meetings and interviews. I conducted thirty-four semistructured interviews: eleven with BSG activists,Footnote ⁷ eight with lawyers and activists from trade unions, twelve with lawyers and activists from legal advocacy networks, and three with academics who contributed to taking cases to the ECtHR. The trade unionists I interviewed include those from national trade unions, such as the National Union of Rail, Maritime and Transport Workers (RMT); UNITE the Union; the General, Municipal, Boilermakers and Allied Trade Union (GMB); and UNISON, as well as other large trade union federations, such as the Trade Union Congress (TUC) and the International Trade Union Confederation (ITUC). In addition to interviewing the lawyers who represented trade union rights cases at the ECtHR, I also interviewed lawyers and activists from pro-labor institutions, including the Institute of Employment Rights (IER) and the International Centre for Trade Union Rights, and legal advocacy organizations, such as the AIRE Centre, Interights, and Liberty, as well as academics who are part of the legal advocacy networks.

Qualitative methods, including participant observation and in-depth interviews (McCann Reference McCann1994; Holzmeyer Reference Holzmeyer2009; Chua Reference Chua2015) as well as ethnography (Levitt and Merry Reference Levitt and Merry2009), are commonly used by researchers to study legal mobilization and vernacularization of human rights. While interviews compose an important part of the ethnography that gives voice to my respondents, I am mindful of the limitations of interviewing as a method that relies solely on the discursive consciousness of respondents. Interviews allow respondents to reflect on their actions, but they may also obscure the “unconscious cognitive processes” that shape motivations and intentions (Vaisey Reference Vaisey2009, 1688). My study of the BSG is aimed at understanding why and how activists use human rights language. Therefore, to a large extent, participant observation suited my research goals better than conducting formal interviews. It allowed me to explore the strategic decision-making processes and the new identity formations within the BSG. Since I had easy access to campaigns and meetings organized by the BSG, I also gathered data from observing discussions and engaging in informal talk, rather than formally asking the BSG activists what they thought about litigation strategies, campaign efforts, or human rights.

I conducted participant observation in seminars, meetings, protest activities, and labor trials at national courts primarily related to BSG activism, and also related to other trade union rights activities. Furthermore, I collated and analyzed written documents of labor activism, both from online sources and in the form of printed brochures, pamphlets, and posters. In addition to formal BSG meetings, I attended seminars and workshops composed of (1) training sessions organized by legal advocacy networks to inform workers and trade unions about human rights law, and (2) conferences or talks organized by academics, politicians, and legal experts to discuss the evolving human rights law on labor rights and the policy outcomes. Thus, these seminars and workshops provided a pivotal source of data to observe the vernacularization of human rights law. Since the language with which BSG members express their grievances changes depending on the audience they speak to, observing them in multiple arenas was essential for my research. During both formal and informal internal meetings of the BSG, I closely analyzed how BSG activists strategized, and whether and how they engaged with human rights when they were not trying to influence media coverage.

While conducting my participant observation in these settings, I was often the only woman among mostly white, male blacklisted workers. Sometimes, the wives of the blacklisted workers, woman journalists, and activists from other campaigns would also be present at these events. Since I was a regular participant in their events, after a while, I became a familiar face among them. Yet, as blacklisted workers, they were always aware of the possibility of being subjects of surveillance. In one instance, during an informal hangout after a meeting, one of the blacklisted workers put me on the spot and half-jokingly suggested that, since there is always at least one spy among them, I must be the spy. Other than this one incident, I generally felt very welcome, and I often participated in their demonstrations by holding up signs or helping with setup.Footnote ⁸

Changing Legal and Political Contexts

The United Kingdom provides a conducive environment for activists to look for remedies at the international level. Despite being a founding member of several human rights and labor organizations, such as the CoE and the ILO, and having ratified the twin covenants on human rights without any reservations, the United Kingdom is also one of the leading European states to have instituted neoliberal policies undermining organized labor (Wedderburn Reference Wedderburn1991; Smith Reference Smith2009; Ewing Reference Ewing2010b). Cases taken to the ECtHR by labor activists in the United Kingdom have been quite successful at the level of litigation and have set precedents at the Court. The next section shows that these cases became political resources for labor activists due to the human rights commitments made by the Blair government, albeit unintentionally.

Legal Mobilization of Human Rights From Below: The Blacklist Support Group

Vernacularizing Human Rights

Legal Advocacy Groups: Strategic Litigation and First Step in Vernacularization

Legal professionals have been central in initiating the mobilization of human rights. This experienced group of lawyers is ideologically very committed to claiming labor rights as human rights and these lawyers undertake strategic human rights litigation both at domestic and national courts. Their work is very similar to “cause lawyering” in the United States, described by Scheingold and Sarat (Reference Scheingold and Sarat2004, 4) as “directed at altering some aspect of the social, economic, and political status quo.” Additionally, they play a key role in making international laws accessible to workers, who then mobilize human rights for a broader audience.

Following the 2009 ICO raid, Keith Ewing, a prominent labor law scholar and the president of the IER, wrote an important report commissioned by UCATT on blacklisting in the construction industry (Ewing Reference Ewing2010a). Ewing evaluated the 2010 Blacklist Regulations in this report and identified several problems with the new legislation. While many of the issues he identified, namely, blacklisting still not being a criminal offense and there being no clear guidance for the destruction or forfeiture of the list, had been recognized by the ILO's Committee of Experts (2012), the government failed to take action on these issues. The report framed the issue as a grave human rights violation and pointed to the ECtHR as the ultimate destination should other efforts fail. David Smith, an applicant of the ECtHR cases and the Secretary of the BSG, told me that when he first read Ewing's report, he thought “now we know what to do!” Hence, this report was very influential not only in informing the blacklisted workers about their rights protected under the Convention, but also in facilitating the use of human rights language strategically in campaign activities.

Dave Smith filed one of the two cases currently pending at the ECtHR, upon exhausting domestic remedies. His file at TCA was seventeen pages long and covered information about his trade union activities, including his work as an elected trade union health and safety representative. As a result of his futile attempts to find work on construction sites starting in 1999, he was forced to look for employment elsewhere, and later become the secretary of the BSG. In his 2014 application to the ECtHR, Smith alleged that his blacklisting breached Articles 8 and 11 of the Convention protecting private life and freedom of association, respectively. The other case was brought by another blacklisted worker, Terence Brough, and regarded the absence of legal protection against his blacklisting in 1988. Brough was labeled a “militant troublemaker” in the blacklist report due to his trade union activities, and there was clear evidence that he was denied work by a firm that checked his details with the TCA. His appeals in domestic courts have been declined, since refusing a worker employment on the basis of trade union membership was not unlawful in the United Kingdom until 1992. He alleges that the lack of legal protection against blacklisting at the time of his own inclusion in a TCA report violated Article 11 (right to freedom of association) and Article 14 (freedom from discrimination).

When Smith's lawyers first approached him and communicated their willingness to represent his case, they knew from the beginning that they were going to lose the case in domestic courts, but the lawyers explained to him that they were taking over his case pro bono because they wanted to take the case to the ECtHR in order to “change the law in human rights.” The lawyers I spoke with similarly explained that they engage in strategic litigation at the ECtHR, noting that they file suits for only those cases that they believe have a chance at setting precedents or those that they can use to leverage legislative changes at the domestic level. In that sense, their strategy is not to flood the Court with individual cases. Instead, they aim to have the Court recognize the collective dimension of labor rights, in which they have been successful.

The legal professionals who take trade union rights cases to the ECtHR comprise a very small number, especially when compared to actors in domestic legal mobilization. The fact that it is a small group has been an advantage in allowing the lawyers to engage in strategic litigation and freeing them from worry about inexperienced lawyers muddying the waters. Commenting on the small number of barristers who take these cases to the ECtHR, John Hendy, a prominent barrister who has been involved in almost all trade union rights cases at the ECtHR, said that “we have been very lucky [to be able to] preserve a monopoly [on taking cases to the ECtHR], which means that we have been able to devise the strategy” and engineer cases.

There is a dense legal advocacy network that supports ECtHR litigation in the United Kingdom. Liberty, an organization that advocates for civil liberties, the TUC, and the European Trade Union Confederation make third-party interventions in support of the applicants, where necessary. These third-party interventions, which are similar to amicus curiae briefs in the United States, specifically contribute to making a case that the issue not only matters for British society, but has important implications for declining trade union rights around Europe. Moreover, academics who work on labor law, such as Keith Ewing, Tonia Novitz, and Alan Bogg, also provide substantial pro bono support to ECtHR applications on labor rights cases.

The pro-labor organizations and legal professionals serve as “translators” by communicating human rights law to workers through various mediums. The IER is an influential pro-labor organization that brings academics, legal professionals, and union leaders together to collaborate on furthering labor rights in the United Kingdom. It organizes conferences and seminars, publishes journals, and conducts research related to human rights law specifically for the use of trade unions and labor activists. These events and the written material they produce inform workers on the growing body of labor rights protected under the Convention and the latest ECtHR judgments on a range of issues, from privacy in the workplace to the right to strike. Recently, the IER and the Haldane Society of Socialist Lawyers held a joint conference entitled “Blacklisting: The Secret War Between Big Business and Trade Union Activists.” Similarly, International Union Rights, a journal published by the pro-labor organization ICTUR, recently had a special issue on blacklisting to inform workers and lawyers about domestic and international struggles and the legal protections against blacklisting. Hence, the pro-labor organizations and legal professionals create opportunities for activists to seize on an internationally recognized framework to express their grievances.

Grassroots Mobilization of Human Rights Language

The BSG pursues multiple avenues to combat blacklisting, with litigation one among many. In this section, I demonstrate the different ways in which BSG activists have creatively framed their labor rights strategically as human rights, thereby serving as the second stage in the vernacularization of human rights. The analysis shows that the BSG engages with human rights to advance its cause in the national agenda, rather than to raise human rights consciousness among its members. The strategic use of human rights in legal mobilization by BSG activists has contributed to forming new alliances, gaining national attention, and the cultivation of a new collective identity primarily among movement leaders.

The BSG's vernacularization of human rights has taken the form of a direct action strategy. BSG activists routinely mold human rights language in their campaign efforts, rather than solely turning to international law for adjudicating claims. Numerous campaigns the BSG organized in collaboration with the trade unions aimed at leveraging publicity for its cause and the lack of legal remedies at the domestic level. One such example is the campaign that activists called “crocodile tears,” a series of protest tours that consisted of naming and shaming these managers, either by invading their offices or holding protests outside their offices. One of the slogans shouted and portrayed in banners was “Nuremberg defense on blacklisting won't wash.” This reference to Nazi Germany was directly used in the legal team's submission to the ECtHR in response to the government's observations on the blacklisting case, where the legal team reminded the Court that the Convention was put together in the aftermath of the Holocaust in order to prevent “the development of totalitarian regimes” in the future (Brough v. The UK, Reply on Behalf of the Applicant).

Similarly, to draw attention to the inability to bring lawful criminal charges against blacklisting firms, the BSG, together with the Campaign Opposing Police Surveillance (COPS), conducted a “citizens’ arrest” by visiting the offices of the construction giant Sir Robert McAlpine (see Figure 1). The purpose of the action was to symbolically arrest Cullum McAlpine, who had admitted during the investigations by parliament that he was the first chairman of TCA. The protest signs held up during the “arrest” made clear references to the human rights protected under the Convention. Thus, at a time when its call for criminal charges was being ignored by domestic courts, the BSG mobilized human rights to legitimate its claims under international law and brought trade unions on board in its mobilization efforts.

Figure 1. Citizen's Arrest Warrant

BSG activists have consistently and strategically framed their grievances as human rights violations in media coverage. Steve Acheson, the chairman of the BSG, said to the press after a High Court hearing: “These directors, they've worked outside the law, they've breached our human rights. They know what they've done wrong, they know what they were inflicting upon thousands of families and I'd like to see some of them face prison sentences.” In an editorial, BSG Secretary Dave Smith wrote to ICTUR (Smith Reference Smith2014, 3), “[b]lacklisting is no longer an industrial relations issue; it is a human rights conspiracy between multinational construction firms, the police, and the security services.” The use of human rights language in public declarations has been a conscious effort to steer public opinion in recognizing blacklisting as an egregious crime.

Human rights have become quite politicized in the United Kingdom in recent years. ECtHR judgments on highly contentious issues, such as prisoners’ rights to vote and the treatment of terrorism suspects, have been widely covered in the media. Much of the debate on these judgments has spurred outrage among conservatives, and media coverage has led to heated discussions on judicial interference and sovereignty. Most notably, in the fall of 2014, the Conservatives published a planFootnote ¹⁸ as part of their election campaign to undermine the enforceability of ECtHR rulings in the United Kingdom by scrapping the HRA, and they pledged to move forward with it after winning the May 2015 elections with the majority vote. Yet, despite the alarming possibility of the United Kingdom pulling out of the European Convention system, the media coverage and the government's actions nevertheless testify to the importance of human rights on the national agenda. While UK public opinion views the ECtHR very unfavorably (Voeten Reference Voeten2013), human rights have become such a globally resonant discourse to talk about social injustice that even the Conservatives do not openly oppose them. Instead, they dispute the content of what counts as human rights. As Prime Minister David Cameron said prior to the 2015 elections, referring to the Convention: “When that charter was written, in the aftermath of the second world war, it set out the basic rights we should respect. But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong” (Bowcott Reference Bowcott2014). Some of the rights that the ECtHR has included are the rights to strike and to collective bargaining. These rulings have provided a new avenue to labor activists at a time when trade unionists were portrayed as the villains. Hence, the BSG specifically has seized on this contentious aspect of human rights to gain leverage on public attention.

Lobbying, specifically with the Labour Party, also constituted an important campaign strategy the BSG and trade unions pursued. BSG pressure on Labour Members of Parliament (MPs) yielded successful results. In an official statement, the Scottish Affairs Committee, House of Commons (2014) popularized one of the demands of the BSG by calling for blacklisting the blacklisters, or disqualifying the blacklisting firms from all publicly funded work and, indeed, the Welsh government has already taken steps to deny blacklisting companies public-sector contracts in Wales (Dickins Reference Dickins2013). The Scottish government, the Welsh Assembly, the Northern Ireland Assembly, and other local authorities are undertaking similar changes in their procurement policies (Smith Reference Smith2014). Moreover, the Labour Party, under the newly elected leadership of Jeremy Corbyn, recently announced that it would be undertaking new ethical guidelines to ban all Labour-run councils from entering into public contracts with blacklisting firms (Simpson Reference Simpson2016).

At the same time, the BSG's vernacularization of human rights has facilitated a discursive change among politicians. Indeed, the new Labour leadership is particularly keen on supporting blacklisted workers, since the new Shadow Chancellor John McDonnell has been a founding member of the BSG since 2009. Finally, Labour MPs have adopted the human rights language used by BSG activists, advancing it in the popular media, with one MP prominently describing the findings in the ICO report as “one of the worst cases of organized human rights abuses in the UK ever” (Smith and Chamberlain Reference Smith and Chamberlain2015, 41).

The BSG has formed new alliances with other human rights activists during its campaigns, thereby increasing its organizational capacity. One of the primary aims of the movement was to initiate an independent public inquiry into blacklisting to uncover police collaboration with TCA in spying on blacklisted workers. Recently, a former undercover officer publicly admitted to spying on a number of trade union activists, and new evidence from the ICO documented that the police secretly attended clandestine TCA meetings (Boffy Reference Boffy2014; Smith and Chamberlain Reference Smith and Chamberlain2015; see also Scottish Affairs Committee, House of Commons 2015). Finally, before the last general election in May 2015, Home Secretary Theresa May ordered a public inquiry into undercover officers spying on political campaigners, and the blacklisted workers were recently granted core participant status in the inquiry. In a public statement, the BSG noted that “an opportunity like this only comes along once in a generation” and that “[i]f our liberal democracy is to have any meaning then we deserve to know in whose interests the state acts” (Labour Representation Committee 2015). Since other high-profile political campaigners also have stakes in this inquiry, it has the potential to become a top national issue. These groups include women activists who have been sexually abused by undercover officers who presented themselves as activists, and the family of Stephen Lawrence, a young black man killed in a racially motivated crime. The renowned human rights lawyer Imran Khan is representing both the BSG and the Lawrence family in the inquiry. The BSG has already been working together with some of these activists who are part of COPS in some of its campaigns to draw attention to police collusion in blacklisting, as mentioned above. Thus, through collaborating with other activists, the BSG has become part of a nationwide investigation of human rights abuses.

BSG activists’ engagement with human rights in multiple forms of mobilization has not only allowed them to change trade union strategy and political discourse on trade unions, but also ensured that human rights have become a constitutive element of their movement. Strategic use of human rights yielded tangible results, such as success in lobbying efforts, forming new alliances, and leveraging public opinion. Next, I show that it also cultivates new aspirations and norms among labor activists and alters their perception of their activist identity, albeit unintentionally.

Strategic Mobilization of Human Rights: A Dual Consciousness?

BSG activists take a measured approach to human rights and use it solely for shaping public perceptions. One important indication of this strategic use of human rights language is the absence of human rights references in the private meetings I attended when there were no journalists present. During conversations and meetings among blacklisted workers, they do not articulate their grievances or concerns using human rights language. Discussions regarding how to compel trade unions to pay more attention to blacklisting, how to have a BSG activist elected to a trade union's executive board, or how to reduce the wage gap between agency work under an umbrella organization and direct employment rarely include human rights language.

The BSG is a grassroots activist network, organized in a nonhierarchical way and its decision-making processes are bottom-up. Yet, some BSG activists, such as the secretary or the chairman, make more appearances in the media than others. These more prominent figures in the media put a special effort into using human rights language, even if the blacklisted workers themselves do not necessarily use this language in private meetings. During our interview, Dave Smith explained why the BSG uses human rights language as a strategic framework: “The only claim you can take to the employment tribunals is victimization for trade union activities…. That's the [employment] law that you have to use. But the newspapers aren't interested in that. They are interested in human rights violations at Crossrail.” Hence, it uses this framework strategically when talking to the press or in devising campaign slogans.

During internal meetings, BSG discussions feature more traditional forms of workers’ mobilization, such as class struggle or class-based solidarity. Even when they share stories of their victimization due to blacklisting, the members describe having sought employment as unskilled workers, or the shame they face in their families for being unemployed, without any reference to human rights. During one of the meetings, one BSG activist referred to the blacklisters as “fat, greedy” employers, which resonates more with the traditional class-based descriptions of the top-hat wearing bourgeoisie, but the members reserve remarks such as “human rights abusing wretches” for when they are in front of cameras.

As a result of human rights litigation and campaigns that are undertaken in alliance with other human rights activists, a new form of collective identity is being shaped around human rights. This new identity is being formed organically, rather than being instructed in a top-down manner. The BSG leaders, who speak to the media and more often work alongside other human rights activists, more openly embrace this new identity. As Dave Smith noted during our interview, “You know, I now call myself a human rights activist.” It would, however, be premature to argue that a human rights identity has been broadly endorsed by many other blacklisted workers. Even among BSG leaders, this new identity in no way replaces the old ones formed around class consciousness and trade union membership. In their public declarations, BSG activists are careful to tie human rights language together with traditional descriptions of their class identity. This effort is best exemplified in the words of John Bryan, a blacklisted bricklayer and UCATT steward from Bermondsey. He explains:

Ordinary people just fighting and struggling to get a decent job and a safe job, that's all we were doing. Fighting for a decent wage and a safe job and you were blacklisted for asking what is just basic human rights. I thought by being a councilor I could help that fight for building workers, for working people in general to improve our conditions and now I found I was being blacklisted for that as well. Bankers and the rich people are not blacklisted for fighting for their class. All I was doing was fighting for my class, local people, building workers and people of Bermondsey, that's all I was doing.

BSG activists often resort to human rights as an empowering frame in their media narratives in order to transcend victimhood. As Jim Lafferty, spokesperson for the BSG, explains: “This is not about being a victim. This is about ensuring justice for those honest building workers who raised genuine concerns about safety. This is about multinational companies not being above the law. This is about equality and fairness: human rights for trade-union members.” While mobilizing human rights has aimed at legitimation and public attention, it also mediates the righteous anger many workers have. In his public response to an out-of-court settlement blacklisting firms offered to workers, Jack Fawbert, a blacklisted carpenter, wrote:

£4000 from you criminals for decades of human rights abuses that forced many decent people, including myself, out of the industry, leading to me suffering years of deprivation to build another career in education, seeing my kids on free school meals and the family nearly splitting up. And for what? For simply representing my fellow workers on a building site as a UCATT shop steward and legally appointed safety rep.

While engaging with human rights law and language in multiple fronts, activists have tended to retain their skepticism and their belief in rank-and-file mobilization as the most important form of activism for workers. After his trial regarding his arrest during a blacklist protest, Dave Smith said to the press, “It seems that it is one law for big business and another law for the rest of us. Multinationals and the secret police can conspire against trade unions and destroy evidence that would be used in court cases, and nothing happens. But if we dare to protest about the human rights scandal, we get arrested.” Activists, therefore, exhibit a dual consciousness regarding human rights law and language. On the one hand, they use it strategically to leverage public attention; on the other hand, they are very aware of the limits of human rights law and what it can offer them.

The legal professionals are similarly cautious about the promises of human rights litigation. Commenting on the limited effectiveness of human rights law, Declan Owens, one of the lawyers representing blacklisted workers at the ECtHR, said that using human rights frameworks is like a “Trojan horse,” explaining that it may just be an entry point to gain more attention to the labor cause, allowing in the long run to bring a whole set of other issues. Thus, he specifically noted that the aim of the ECtHR application is not only obtaining a compensation award and setting a precedent, but also gaining more advantage in lobbying efforts and raising labor issues, once again, to the top of national agenda. Victoria Philipps, a solicitor who works on ECtHR cases, similarly noted that the litigation opportunity at the ECtHR is “just another weapon in the armory.” Thus, these committed labor lawyers view themselves as the “legal arm” of a broader fight for the labor cause. Hence, both the lawyers and the activists have a keen understanding of the limits of human rights law and do not view litigation at the ECtHR as a replacement for direct action.

Neither the lawyers nor the activists entertain any utopian ideals about the success of winning a case at the ECtHR or the results of the domestic litigation procedures. Instead, during interviews, both the lawyers and activists repeatedly pointed out that the ECtHR is only one among many strategies to achieve social justice for workers. At meetings, activists often express their disbelief in a legal system that does not allow them to “lock up” the people who ruined their lives, and they express concerns about the lengthy proceedings. During an informal conversation, a BSG activist referred to all the formal efforts of litigation and lobbying as “little more than a cover” and explained that what ultimately matters is the rank-and-file mobilization. McCann (Reference McCann1994) argues that this “double consciousness” of the lawyers and activists, where they use litigation as a tactic and take many cases to court but do not sacrifice a legal realist perspective and see courts siding with the powerful, does not have to be inherently contradictory. On the contrary, he states that these are “interrelated components of strategic legal interaction” (McCann Reference McCann1994, 233; see also Matsuda Reference Matsuda1987). Lawyers and activists can strategically use the law, despite its limitations and problems, without being duped by the promise of the remedies it provides.

In short, the collective identity forged through the embodied mobilization of human rights language supplemented existing bases for solidarity held among BSG activists. Trade union membership and class consciousness remained important sources of group affiliation and potent motivations for activism, even as human rights produced new political directions for the group's efforts.

Conclusion

This research weaves three areas of scholarship—legal mobilization, vernacularization of human rights, and labor studies—to document the ways in which human rights law has become a political resource for labor activists and how these activists mobilize human rights strategically. The ethnographic study of BSG activism builds on other studies emphasizing the role of transnationally linked “intermediaries” to suggest that human rights law travels into the local context through layers. In this case, I find a two-tier process whereby norm translation is first filtered through, or mediated by, legal advocacy groups that identify litigation opportunities at the international level and make human rights norms accessible to local labor activists. Next, grassroots activists vernacularize these norms for public through campaign efforts.

Groups that are particularly skeptical of human rights can mobilize human rights strategically. Strategic mobilization differs from other human rights movements, as vernacularization efforts are not directed toward the members of the group, but toward a broader audience. BSG activists did not utilize human rights language when building their movement or when recruiting new members. The primary basis for their collective identity and their solidarity ties within the movement were still based on class consciousness. Their use of human rights language in their campaign efforts was instead oriented toward convincing the public that trade unionists are bearers of human rights. Amid heated nationwide debates on the legitimacy of the ECtHR regarding civil and political rights issues, the BSG seized on this controversy to insert trade union rights in popular understandings of human rights, which normally omit or marginalize labor rights. This dynamic raises important questions for further empirical research, including the investigation of whether labor activists facing similar levels of repression in other European countries, North America, and beyond mobilize human rights strategically. These findings also raise questions regarding the strategic mobilization of human rights by other social justice movements that have been skeptical of human rights frameworks for different reasons, such as indigenous groups or groups that advocate for other socioeconomic rights.

The legal mobilization of human rights has transformed labor activism in important ways. Critics of human rights and litigation efforts contend that “courts are, at the end of the day, never an instrument of total societal revolution” and are “never a substitute for direct political action” (Baxi Reference Baxi and Verma2000, 161). Labor scholars, in particular, have been skeptical of the individualizing and mainstreaming effect of human rights litigation on labor. This research moves away from a narrow litigation-focused analysis to document the creative ways in which grassroots labor activists utilize human rights. By mobilizing human rights law strategically in their campaigns, BSG activists established new networks, strengthened existing ties with legal professionals, academics, and other pro-labor organizations, leveraged media attention, and forged a new collective identity. My analysis of legal mobilization at the international level suggests that although litigation is not a substitute for direct political action, it can be a valuable resource for resistance movements working for egalitarian social change.

In some ways, blacklisting may seem like an issue that fits within the civil and political rights bias of human rights frameworks more easily than do other labor rights. Being denied a job solely based on one's position within a trade union or one's complaints regarding health and safety in the workplace can be rather neatly framed as a form of discrimination or a violation of one's right to freedom of assembly. How effective a framework can human rights be in addressing other labor rights violations, such as the rights to a living wage or to health and safety in the workplace? Although there may not be a simple answer to that question, several lessons can be drawn from this research. First, it is important to note that trade union rights serve an enabling role for all other labor rights protection. Claiming trade union rights as human rights is, to use the metaphor of Declan Owens, like a Trojan horse: it may open up the possibility to bring a host of other labor rights claims. Strong trade unions are guarantors of fair wages, social security, health and safety at work, and other labor rights, as unions demand these rights collectively, adding strength to the efforts of otherwise isolated workers.

Finally, human rights are malleable and open to interpretation. As discussed above, the ECtHR's own estimation of which labor rights count as human rights has changed quite dramatically over the past three decades. This research, however, shows that activists aim not only at changing the opinion of the courts regarding trade unions, but also at the court of public opinion. The ability to succeed in the latter task depends on a variety of factors. The repressive domestic conditions against trade union activism, the new human rights commitments made under the Blair government, the rise and resonance of human rights discourse globally and in the United Kingdom, the leading role of legal advocacy networks in claiming labor rights as human rights, and the strong grassroots campaign put forth by BSG activists have all created a conducive environment to lead a human rights campaign in the United Kingdom. Further empirical research may investigate how these conditions play out for grassroots campaigns in comparative perspective.