Sleeplessness reduces arousal. That can be a good thing, as when sitting in a car that’s arcing off the road outside Kampala at 3 AM. A restless flight into Entebbe airport did the trick, so the seconds were an endless expanse with lots of time to think. The driver was asleep. I could take the wheel, But what if he started awake? That would be tricky with a brake I couldn’t reach and contested steering and a couple of oncoming trucks. I had a seat belt and we were heading for a cozy-looking ditch so I let nature take its course.
They sent me to the doctor that morning, a health maintenance organization: skilled, meticulous care, responsive to the patient as a human being and a trivial expense for the people who sent the car. In darkest Africa you have a right to health. Uganda has ratified the International Covenant on Economic, Social, and Cultural Rights – the right to health is Article 12. Ugandans wrote the covenant directly into their constitution. Under constitutional Article XIV(b), the state “shall endeavour to ensure rights, opportunities and access to health care.” In Uganda’s constitution, medical services are a national objective and directive principle of state policy, Objective XX. Uganda’s no exceptional case – human rights are the state of the nation-building art.
The project I was there for went ahead without a hitch. It was volunteer food security work, the best work I’ve ever done for free. As soon as I finished – it’s always that way – my hip, or back, went out, revealing tissue where I thought there was only bone and reducing me to howling fetal helplessness, just in time for the return flight. Back home in the states I did not seek medical attention. It wasn’t worth the risk.
Here in America you have to avoid the health care system as you avoid the correctional system. They’ll treat you with abandon and demand exorbitant surprise payments based on secret rules, and maybe find some agonizing malady that costs too much and cut you off for crossing some “i” or dotting some “t” on a form, and then to survive you’ve got to beggar yourself and your loved ones with snowballing debt. Or they’ll dose you with some lethal snake oil that’s corruptly deemed safe. That’s with the best plan money can buy. The industry’s a viper’s nest. Fifty-nine million of us have no health care coverage at all. People in 48 countries live longer than we do. It’s not because we’re fat or prone to vice. We’ve been taking better care of ourselves but we’re still being killed by the perfidy and waste that plagues our health care.
With education, food, and housing it’s the same, you have to watch your step. The state has weaned us off security at home. You used to hear about freedom from want or fear but those are quaint old Norman Rockwell virtues, long revoked. It so happens that those freedoms are among your human rights. In our patriotic murk here in America we’ll occasionally hear about human rights, when some enemy breaches them, or when we ostentatiously uphold them, always vaguely. We never go into the detail of chapter and verse. Just eight percent of Americans can tell you where our human rights are written down (in the Universal Declaration of Human Rights.) Half of us do not believe that any such document exists. You can get perfectly respectable schooling here and never know your rights. The state prefers that human rights be a warm glow in our hearts, and not specific binding obligations. That’s why we never, ever hear about the International Covenant on Economic, Social and Cultural Rights (CESCR).
The CESCR is one of a pair of treaties that define the state’s duties to the people. The International Covenant for Civil and Political Rights (CCPR) protects people from arbitrary state coercion. The CESCR makes states responsible for the living conditions they permit. Together the two covenants bind states to keep the promises of the Universal Declaration of Human Rights (UDHR).
When a state becomes a party to the CESCR it acknowledges peoples’ self-determination, free disposition of natural wealth, and specific listed rights:
• The right to work (Article 6)
• The right to minimal standards for working conditions (Article 7)
• The right to form and join trade unions (Article 8)
• The right to social security, including social insurance (Article 9)
• The right to protection of the family (Article 10)
• The right to an adequate standard of living (Article 11)
• The right to physical and mental health (Article 12)
• The right to education (Articles 13 and 14)
• The right to cultural life and benefits of science (Article 15).
It sounds like so much motherhood and apple pie, perhaps, but the state’s decree is not enough. In acceding to the treaty, states commit to progress. If the strongest share nothing else with the weak, they can share this commitment to advancement. It’s the least that a country can do.
The United States is one of 28 countries that have not ratified the CESCR. We’ve fallen in with a motley group, by no means all laggards: some Micronesian specks on the map, much of the Mideast, Singapore, Hong Kong, Andorra, Botswana, Bhutan, Myanmar, they’ve all demurred so far, for diverse reasons. But none of them pretend to be a shining example for the world, as we do.
In American lore, there are two kinds of rights, ours and theirs: the dual covenants came of tensions between individualist American rights and the collectivist ones asserted by Soviets. The UN split the draft treaty in two, so the story goes, consigning the suspect, Bolshy rights to the CESCR. It wasn’t quite that simple. There was plenty of cold-war gamesmanship, of course. As the treaties took shape, a tag team of Soviet gadflies reveled in America’s embarrassments: A.P. Pavlov needled us about housing predation and ruinous health-care cost, plus ça change…, and Alexander Bogomolov had a ball when the NAACP petitioned the UN for redress.
But the primary split wasn’t red versus blue. The battle lines united the superpowers against the rest of the world. Neither superpower wanted the CESCR. Pavlov called it “weak and completely unacceptable.” The Russians tried to negate each article with countervailing duties to the state, or provisos that the state would see to it that rights are granted. Soviet Delegate, Alexander Borisov, played dumb or worried every jot and tittle. The US resisted more passively. To head off preparation of the covenants, America tried to put their reporting provisions into the UDHR: that way the declaration would gauge compliance instead, but toothlessly, with no basis in binding treaty law. Our government then tried to strip the covenant of legal, “self-executing” force. When the majority decided on a binding treaty, the US largely sat out the work of drafting it.
Eleanor Roosevelt chaired the UN Human Rights Commission at the time. Her minder, James Hendrick, described what the State Department wanted: a “carbon copy” of the Declaration of Independence and the Bill of Rights. The CCPR gave America’s citizens far too many rights. The CESCR was even worse. Either convention would subject the state to international scrutiny, and judge the state’s treatment of the people. Our statists would never accept that without a fight. The American Bar Association said it best, in 1967: “The regulation by a state of relations between it and its own citizens… constitutes the very essence of domestic jurisdiction.” In America’s naive youth it was thought that citizens should regulate the state and not the other way around. The state did not own citizens then, citizens chose to constitute their state. But now the state doles out your rights like food stamps, only so much and no more.
Charles Malik of Lebanon summed up the debate and the global majority view: “I’m not arbitrarily setting the state against the individual. But which, I ask, is for which? I say the state is for the individual.” The issue pitted the statist superpowers against humanists from older civilizations. The majority ruled. The humans prevailed. Mrs. Roosevelt slipped America’s leash and sided with the world. The treaties took shape over tea at her house. The world’s other founders are all but unknown here at home: Malik, John Humphrey, René Cassin, Chang Peng-Chung. They weren’t working for America, they were working for its people, against the express wishes of the state.
Conservatives fought the threat of foreign rights with the Bricker Amendment, a well-funded popular movement to keep treaty law from granting rights at home. In 1954 President Eisenhower preserved constitutional treaty powers by defeating the amendment in Congress, at the price of the Dulles Doctrine. With the Dulles Doctrine, the State Department promised to keep the government free from human rights obligations. ((Lash, Joseph P., “Eleanor, the Years Alone”, New York: W.W. Norton Co., 1972, Ch. III passim))
Despite the superpowers dragging their feet, the UN General Assembly approved both covenants in 1966. The wider world took our resistance in stride and went ahead without us. Europe and Latin America built human rights into their regional institutions and began to lay down precedents and case law. In the 1980s the UN set out the state’s obligations in the Siracusa Principles and the Limburg Principles, so that each covenant entailed a set of detailed, concrete standards states must meet. Our UN Ambassador Jeane Kirkpatrick dug in her heels for her government, but the rights that she derided as “a letter to Santa Claus” came to seem more like an entrance exam for some posh school that we can’t get into. The new standards made it clear that our country wasn’t up to snuff. Meanwhile new countries used human rights as a nation-building template. America was obliged to approve, but fledgling nations increasingly went elsewhere seeking practical human-rights advice. Our pretension to a crucial leading role in human rights was wearing thin.
The nearest we came to freedom from want was 1976. The time seemed right. We had imposed civil rights on our white supremacists, so their fight against human-rights treaty law became a lost cause. President Kennedy had skirted the Dulles Doctrine, letting the Senate dip a toe in the water with an easy one, a treaty abolishing slavery. We had already swallowed some economic and social rights to join the Organization of American States. Yet we weren’t feeling wholly secure in our rights: hints of COINTELPRO’s secret police state had come out. The sacrifice of Richard Nixon, and his pardon, didn’t lift the people’s mood. Seizing the moment, Jimmy Carter campaigned as a champion of human rights and won.
The following year Carter’s fervent lip service led to some awkward moments at the Commission on Security and Cooperation in Europe (CSCE). At the CSCE conference in Belgrade, allies joined our enemies in pointing out that America loves to talk about human rights but they won’t put anything in writing. Chastened, Carter signed both covenants as soon as he got home, but to convince the free world he had to get them ratified in time for the next conference, in Madrid.
To grease the skids and avoid controversy, Carter’s State Department festooned the conventions with caveats, a shyster’s recital of ifs, ands, or buts. They made reservations meant to bend the rules for states; understandings meant for Congress; and “declarations” and “statements” with no meaning whatever in law. The State Department marked up the treaty like third-graders signing a plaster cast:
• What we couldn’t slip into the treaty itself, we put in a declaration: the treaty has no legal force, we said, it’s not self-executing.
• We backed away from any hint of obligations on the state. Goals, that’s what they are, we said.
• With another declaration that was pointless in law, we reminded everyone that we have property rights. For good measure we declared that twice.
• Article 5 set us off. That article tries to make it clear that the treaty cannot be used to limit rights. In response, we affirmed our American freedom of speech. It wasn’t the non sequitur it seemed, if you knew what we were thinking: we were anxious to make sure that the cultures we hate could not inhibit hate speech with their rights.
• Article 28 guarantees rights even in federal states, so that progress won’t be balked by petty local autocrats or fiefdoms. Perhaps we felt singled out, because we hashed the article with some gibberish about jurisdiction and subject matter and competent authorities and jurisdiction and constituent units and subject matter. Between the lines we promised all deliberate speed.
The import was clear: no change. The state had no intention of permitting the rights it proclaimed. Government provisos would subvert the Constitution’s supremacy clause to negate the covenant. The state was clinging to the Dulles Doctrine: how our state treats its people is none of the wider world’s business.
Carter finally submitted the treaties to the Senate in November 1979. The Foreign Relations Committee considered ratification in four days of hearings. By the time the committee took it up, Iranians were parading US hostages for the cameras, inflation had driven the Fed’s lending rate past 13 per cent, and the opposition scented blood. The doomed hearings went unnoticed but the proceedings show how the state puts the kibosh on our rights. ((U.S. Congress. Senate. Committee on Foreign Relations. International Human Rights Treaties. Hearings, 96th Congress, 1st session. November 14-16, 19, 1979. Washington, U.S. Government Printing Office, 197))
The CESCR took more punishment from the outset. There was something fishy about it. Testimony variously described the problem: a non-Western bias; Soviet Marxist ideology; an infatuation with democratic socialism; ideological appeasement of the third world. The American Bar Association blamed the UN’s majority rule: with all that democracy, nobody gets what they want.
In the hearings Senator Jesse Helms set out to amend the treaty itself, proposing to tear up and renegotiate decades of multilateral diplomacy. He wanted explicit property ownership rights enshrined worldwide. He didn’t trust Article 5(2), which leaves all existing rights intact.
At the time we were busy toppling Central American reformers, and Helms grilled the State Department about Nicaragua. They had nationalized some private enterprises, compensating the owners in accordance with international law. They tinkered with their banking system. We cut off their aid but Cubans helped them meet their basic human needs. These were brazen acts of self-determination, and signing the convention would only make it worse.
The committee put Phyllis Schlafly up to speak and she delivered a remarkable stemwinder. She told us what would happen if we put America’s head in the noose. The covenant would bankrupt us for world equality, she said. Equality would wreak further havoc in our very homes. Non-discrimination would undercut the husband’s duty to support his wife. The covenant promised maternity leave, which is for societies “in which all mothers have a continuing obligation to remain in the labor force, as in Communist countries.” We had no say in writing these grotesque rules, as many lesser nations had joined the UN and shouted us down with promiscuous majority rule. Knowing this, we tried to sign up “fingers crossed,” as Schlafly – accurately – put it. We’d be a laughing stock, caught out in double dealing. The world would hold us to our pledge, and we would see: we gave our sacred rights away to gloating Commies.
Other experts amplified the warning. Sore losers here at home were turning to a malign UN to negate and destroy the lawmaking authority of Congress. The promise of human dignity and well-being will erode our liberties: as restive groups clamor for more and more rights, an emboldened government will frogmarch us to progress in defiance of constitutional restraint. No fear was too fanciful to voice. Under Article 1, self-determination would lead to secession. Under Article 2, nondiscrimination rules would outlaw nepotism. (How would prosperous men provide for their dimwitted sons?) The best efforts demanded in Article 2 would subvert the essence of public life in America: the vicious conniving through which our politics expresses the national spirit. The covenant would hobble us abroad as well. Social and economic obligations would turn our foreign aid into demeaning conditional grants unworthy of America’s benevolent, no-strings largess.
The State Department half-heartedly backed the treaty. The treaty is for states where citizens have few domestic remedies, so State said. We sign it only to help the huddled masses overseas. Joining up would be a feather in our cap abroad but inconsequential here at home. The treaty’s goals dovetail with our policies. We comply fully right now. So when we ratify the treaty, no further effort will be needed. Accordingly, the Justice Department undertook to keep extraneous rights out of reach of the people and the courts. It wouldn’t do to upset our intricate body of law, they explained. The state has seen to all these rights, as Commissar Pavlov would say.
The Senate did not ratify the treaties for President Carter. We eventually ratified the CCPR, in 1992, but not the CESCR. Civil and political rights were permissible, but not economic, social, or cultural rights, or even goals. America opted out of these unwelcome rights and the wider world moved on, but in the eyes of the world, our state is shirking its duties. In 1993 UN members expressed their consensus in the Vienna Declaration:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
All of them, all human rights. As even our handpicked Secretary-General Ban Ki-Moon would later say, states can’t pick and choose the peoples’ rights. But in America the state picked a few of our rights, American ones, and withheld the rest.
Our unnatural “collectivist” rights sank without a ripple here at home. We’ve even managed to forget where those rights came from. In 1941 Franklin D. Roosevelt gave his Four Freedoms message to Congress. One of those freedoms was freedom from want. He was serious. In 1944, before Congress, FDR proposed a full-fledged economic Bill of Rights. He said, “true individual freedom cannot exist without economic security and independence.” The rights he proposed were the following:
• The right to a useful and remunerative job in the industries, or shops or farms or mines of the nation;
• The right to earn enough to provide adequate food and clothing and recreation;
• The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
• The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home and abroad;
• The right of every family to a decent home;
• The right to adequate medical care and the opportunity to achieve and enjoy good health;
• The right to adequate protection from the economic fears of old age, sickness, accident and unemployment;
• The right to a good education.
He boiled it all down to security. “For unless there is security here at home there cannot be lasting peace in the world.” So these rights may be alien to us, but they’re hardly un-American. They surfaced, briefly, when Bill Bradley tried to run for president. Bradley made security an overarching theme. Al Gore fought Bradley harder than he fought George Bush, and then security was guns and bombs again.
What if the Communists won? What if the covenant came to be adopted as supreme law of the land? The treaty, itself, involves only the mildest suasion. Our state’s compliance with the treaty would be reviewed and judged by the Economic, Social and Cultural Rights Committee, 18 members chosen to represent the world. The UN Economic and Social Committee (ECOSOC) elects them by secret ballot. Selected for their expertise in human rights, members serve in their personal capacity for renewable four-year terms. They don’t get pulled up short by diplomatic cables. On a five-year cycle paced by required state reports, the committee measures each state by the covenant’s standards and suggests ways to improve. The committee works with non-governmental advocacy groups to balance the position of the state with voices of the people.
Even though we’ve kept out of ECOSOC’s reach, America got a taste of global scrutiny at the Human Rights Council in Geneva. Starting in 2010, under a procedure called Universal Periodic Review (UPR), UN members examined reports from the US government and independent advocacy groups. Then the members questioned US government representatives about the state’s compliance with its obligations and its duties. Domestic press accounts of the Human Rights Council define it as a feces-flinging mob of tyrannical rogue states, typically in a subordinate clause in the topic sentence, but awkwardly, our ordeal included dressings-down from Japan, Switzerland, Commonwealth countries, and NATO allies. Much of the spectacle centered on our putative civil and political rights, adopted as supreme law of the land and shredded in perfect bipartisan concord after 9/11. Yet much criticism focused on derelictions of an economic, social, or cultural sort.
The council picked at scabs we never touch: re-segregation in housing and education; the hopeless underclass from which we muster troops; forced eviction, by demolition, or by our trick of letting mother nature flush them out with storms.
Bolivians embarrassed us about our treatment of indigenes, tactlessly adverting to our inveterate chiseling and treachery. It would have been easy to dismiss it as a grasping red-Indian gambit, but Germany and Norway horned in, too. Norway pried into the misery of our sickly brown helot caste, and Japan seconded Bolivians in pointing out the disparate racial treatment that our equal opportunity leaves untouched. Class came up as well as race. Russia cited indelicate facts about our spreading third-world poverty. The council turned over all sorts of rocks. With no Article 8 protections and labor laws a dead letter, our H2A and H2B visas permit a handy modern form of slavery. Bolivia and Mexico brought that up in the least private forum in the world. In the good old days we could have had some death squads chop them up but now we have to be polite.
Many countries pointed out that we have failed even to sign most core human rights conventions. The international community seemed bemused to see us opt out of the rudiments of modern civilization. They asked when, exactly, America is going to go beyond lip service and lectures and let us humans exercise our rights.
The panel noted that America has no national human rights institution. What that body must do is set out in the Paris Principles. President Clinton signed Executive Order 13107 but no one’s fooled, except soup-hoarding New World Order bumpkins – there’s no fearsome world tribunal there at all. To diffuse human-rights responsibilities throughout the government, the order created a low-priority interagency working group, a tempting dumping ground for misfits, and gutted it, in Section 6:
Nothing in this order shall create any right or benefit, substantive or procedural, enforceable by any party against the United States, its agencies or instrumentalities, its officers or employees, or any other person… This order does not supersede Federal statutes and does not impose any justiciable obligations on the executive branch.
That is our sole guarantor of human rights. The world is pointedly waiting for a real one.
Our human rights sanctimony makes us a cruel joke worldwide but Americans’ appalling ignorance shields our government from ridicule at home. Europeans old and new pulled that thread, asking when we will teach human rights in the schools, as our state has pledged to do.
Obama’s State Department took it with aplomb. The old Bush-era style was to proclaim human rights compliance with a trancelike fixity that Kim Il-sung’s top echelon would envy. Obama’s envoys were different. No superstitious jingoes, these were clearly the best and the brightest. Our urbane delegation candidly acknowledged great struggle — though they could hardly do otherwise with our galloping misery, collapsing services, and hair-raising atrocities and torture. Yet State cooked up a remarkable twist on American exceptionalism: America handles human rights uniquely, they said. Unlike other countries that pledge to improve, America complies with the treaties first, then ratifies in glory. Under this ingenious dodge, failure itself relieves the state of the duties and scrutiny of treaty law. In the grand tradition of outclassed Ivy-League overachievers, State ducked responsibility and salved the national ego with a sort of paralyzing perfectionism. In detailing executive priorities, State made no mention of the CESCR. Forget about freedom from want, we’re not ready for that. “Too bad, Mr. and Mrs. America!” — as Phyllis Schlafly said to Congress back in 1979.
Our institutional human rights void did not faze US diplomats a bit. State had a clever answer for that too. Here, again, America does it differently. Rather than impose a monolithic human rights bureaucracy, we let a thousand flowers bloom. Official neglect spawns multiple protections of stupendous complementarity, much greater than the sum of the many little parts. In this way, presumably, sadistic Maricopa County gulags and Texan “plenty guilty” legal doctrines interact synergistically with the wistful resolutions of the one-horse college town of Carrboro, North Carolina, providing unmatched protection for our peoples.
No one so much as cracked a smile throughout.
Such mild reproof can be ignored at home but under the CESCR, America’s standing in the world would rise or fall with a new and more rigorous test: whether the state meets the minimal needs of the people. If too many are deprived of essential food, health care, education or shelter, the state is held to be breaching obligations. With state duties set out in such stark relief, the courts might elect to view domestic law quite differently.
BP’s rupture of the earth’s crust at Macondo well makes a helpful test case. When BP cut the last corner and poisoned the Gulf, the coastal peoples who live by tourism or fishing were deprived of their means of subsistence. This violates Article 1(2). Rubber-stamp regulation permitted a spill and response that tainted and decimated fisheries. As the CESCR has been applied, the minimum core of the right to food requires that the government not destroy or contaminate food sources.
BP offered scanty settlements that forced fishermen to work in its toxic waste, forbidding respiratory protection as a condition of employment and suppressing diagnosis or treatment of chemical exposure. This breaches Article 7(b), which guarantees safe and healthy working conditions. BP spread toxic dispersants in an unprecedented experiment in public health and environmental intervention. It remains to be seen how that arbitrary action comports with our right to health under Article 12, or with the state’s obligation to improve environmental hygiene. BP had imprisoned workers trucked to the spill zone in containers, like livestock, and penned in the sweltering miasma until needed. With the slave states’ tradition of reliance on convict labor, prisoners know better than to refuse a work detail but Article 6 requires that work be freely chosen or accepted under conditions safeguarding fundamental political and economic freedoms.
The state ceded police powers to BP, and BP used them to coercively suppress public investigation of the disaster. Federal officials in state jurisdictions helped intimidate observers while making false claims about the danger and extent of the spill. The Coast Guard denied watercraft access for sampling or independent observation. Residents were forbidden to take samples on their damaged property. As BP hired local scientists and gagged them with nondisclosure agreements, out-of-state scientists resorted to covert sampling with the help of local people. Under Article 15(2), states undertake to respect the freedom indispensable for scientific research.
BP even hired local law enforcement to choke off free inquiry. When even the police are private property, the “sacred right” of property gets murky. But BP’s proprietary clampdown makes it clear that the region as a whole belongs to them.
In practice our sacred property rights are marvelously flexible things. Panicked by collapsing housing markets, the state of Florida created a special-purpose foreclosure court that authorizes fraudulent documentation from firms with no legal standing to foreclose. In most other states, fraudulent evictions proceed with no court review at all. The resulting mass illegal forced evictions breach Article 11(1) by failing to respect legal security of tenure. Though UN special procedures have focused on forced evictions as ‘gross violations of human rights,’ we Americans are to have no redress. The sale of a residence gained by eviction cannot be reversed.
The covenant is silent on property rights. Here that’s thought to be a sop to the third world, to accommodate more primitive societies. Could be. The third world knows a lot about disgraces like the Gulf Coast spill. Foreign capital suborns the colonial government, suspends the state’s protective role, and secures a free hand in land and resource exploitation. The pervasive corruption of the Minerals Management Service fits a classic third-world pattern. Corruption entrenches a class of “indigenous colonizers,” in Ken Saro-Wiwa’s mordant term: “Accidents Happen,” as Senator Lieberman said; the Hon. Joe Barton apologized to BP; government bank overseers posed for photos taking a chainsaw to prudential rules. Booms and busts wrench the economy and hollow it out. Your people’s home becomes a blighted wasteland brutally repressed. It’s called the resource curse.
Resource-exploitation tensions show in the covenant’s drafting. Article 1(2) qualified peoples’ free disposition of their wealth and resources with the provisions of international law. Article 1(2) encourages mutual benefit too, but as third-world peoples know, law trumps mutual benefit every time. So the majority of the world imposed Article 25: “Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.” Colonized by stateless enterprises and held helpless by America’s comprador state, the Gulf Coast’s northern shore is now part of the third world. Article 25 means something now. Northern Gulf Coast people might come to see why the global majority took its defiant stand.
In modern America, the resource curse is not restricted to the downtrodden natives of the Gulf Coast states. Mountaintop removal razes Appalachian peoples’ lands. Uranium mining kills Indian miners and contaminates tribal lands. Elsewhere, the extractive technique of fracking is used to force gas out of deep shales. Natural-gas concessionaires press individual landowners to cede all control over land use with no right of refusal. They will drill anyway if you don’t consent. Sometimes flammable water comes from the tap, showers become gas chambers and the right to decent housing is held in contempt. The practice is poisoning groundwater in several states, having been exempted from oversight under the Safe Drinking Water Act. The covenant might complicate the frackers’ sacrosanct American property rights: in Comment No. 15, the ECOSOC rights committee declared a universal right to water for personal and domestic use.
The measure of our rights is development. To assess it the UN compiles the Human Development Index (HDI), a composite of income, health, and education data. Based on 2009 data, the US ranked 13th. We slipped from our best showing, a tie for second in 1980, as more and more countries overtook us. A reformulated index bumped us up to fourth in 2010 (we look better when you set literacy aside and look at all the years we spend in school instead.) However, the new index shows the same slow slide.
As the composite nature of the HDI shows, development’s a matter of choices. Our state has always opted to keep us richer but sicker, as Hans Rosling points out. Still, even at the peak of our recent boom, 30 per cent of us could not meet the expenses of a basic family budget, and corruption and collapse in the financial sector haven’t helped. The full effect of our slump and financial crisis is not yet clear. The poverty rate had passed 14 per cent as of 2009, according to the Census Bureau. The Bureau of Labor Statistics reports its most inclusive measure of joblessness as 17 per cent. By the old depression-era measures, depression days are here again.
For many countries development, itself, is a right, though not in the US. Development is something of a privilege here. We safeguard our traditional extremes of poverty and wealth. As measured by the Gini index, inequality here is greater than in developed countries, and clusters with middle-income banana republics and the kinder, gentler kleptocracies. For all our vaunted wealth, we’re a rich-world leader in child poverty — only Mexico’s is worse. Uniquely among the rich countries of the OECD, our youth are less educated than their elders, as the lucky fraction of our people that gets a secondary education slowly shrinks. Who decided we would be like this? It wasn’t me. It wasn’t anyone I know. People want their wealth shared out like Sweden’s, if you ask them. Nine in ten like the Swedish model better. We think it’s fair if the top fifth owns about a third of all the wealth. We think the top fifth actually owns 59 per cent of it all, but the joke’s on us: they own 84 per cent.
Here in America, basic human needs are used as bait by predatory enterprises. Your rights are a reward for good behavior – education, housing, even health – and they’re bound up with debt, your promise of future service. Rights are conditional, contractual, contingent. Commercial schools tap state coffers to fund worthless degrees with debt that cannot be expunged. Banks ramp the price of housing to draw buyers, and encumber them with ruinous debt. Health insurers cut off coverage whenever your misfortunes displease them.
Some of these abuses have broken down and the state is attempting to amend them. The state says that the only cure is markets. By markets the state means power relations rigged by industry-dictated laws that isolate buyers and subject them to colluding sellers. Commercial charters in these industries are functionally equivalent to strip-mining concessions, extractive industries for people’s future livelihood. The covenant’s guarantees would wreck this arrangement. The right to an adequate standard of living and to continuous improvement of living conditions; full development of the human personality and the sense of its dignity? It would be as if the rebels seized the mines that work the rich veins of want and fear on the slippery slope.
“Necessitous men are not free men.” FDR said so to Congress. To two thirds of the UN’s members, economic rights are the most basic ones, because people will submit for survival. Civil and political rights don’t last when desperate people struggle to subsist. Our survival’s now contingent on obedience to many tacit rules and petty private rulers. That’s why your bank cuts you off from redress in the courts, imposing captive arbitrators from its handpicked list. That’s how, if you go broke, your creditors can put you on a food budget of 300 dollars a month. That’s why they’ll fire you if you try to form a union, and you’ll starve before the Wagner Act protects you. The threat of destitution persists because it serves a purpose — it keeps your desperation quiet. So it seems that your rights are collective after all. But the collective to which you must subordinate yourself is the firm. The firm took the rights that were meant for you. It’s not accountable to you as it delimits your options and your life. Producer sovereignty, some call it — Edward Herman, Wharton’s apostate professor, coined the term.
Sovereign producers with the blessing of their state push more and more people to the edge, where you’re trapped in rapacious legal usury, your dicey wages mostly gone at once for fixed expenses and your solvency a matter of sheer luck. Lose a job or get sick, and you’re lost on a remorseless slide to peonage, stripped bare by courts that impose sumptuary penance, or just jail you, and attach your future wages for life. You’re made to bid frantically, all against all, for the few homes with adequate schools, fighting for the sort of vocational and obedience training that’s thought to give your child some edge in a glut of faceless labor. For those who don’t comply, it’s the abyss.
It’s different in the civilized world. Our periwigged, grudging clutch of rights is obsolete. No country has copied our constitution for a hundred years. Human rights law has been called the true revolutionary movement of the 20th century. Economic and social rights in particular would weaken many of the indirect controls on which our state relies. Controls would instead be imposed on the state — the covenant focuses global scrutiny and shame like a burning glass on peoples’ want and fear. In testimony to Congress, John L. Hargrove described how human rights threaten an oppressive state:
What they rightly fear is being caught in a web of living law from which they cannot extricate themselves without large cost, but in which they cannot remain without occasionally yielding to pressure for change.
He was talking about the Soviet state. Our own state also fears that pressure, rightly so. In 1991 America’s UN ambassador called these rights “a dangerous incitement.” People secure in their dignity, with recourse to the wider world, won’t stand for quite so much.