Economic Rights in Canada and the United States
Rhoda E. Howard-Hassmann and Claude E. Welch, Jr., Editors
2006 | 288 pages | Cloth $47.50 | Paper $24.95
Public Policy | Law
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Table of Contents
Introduction: Looking at Ourselves
—Rhoda E. Howard-Hassmann and Claude E. Welch, Jr.
PART I. PHILOSOPHY, LAW, AND POLITICS OF ECONOMIC RIGHTS
Justifying Socioeconomic Rights
2. International Law of Economic, Social and Cultural Rights: A U.S. Perspective
3. On the Margins of the Human Rights Discourse: Foreign Policy and International Welfare Rights
—David P. Forsythe and Eric A. Heinze
PART II. POVERTY
4. Homelessness in Canada and the United States
—Barbara Wake Carroll
5. Welfare Racism and Human Rights
—Kenneth J. Neubeck
6. The Movement to End Poverty in the United States
—Mary Bricker-Jenkins and Willie Baptist
PART III. CONTENTIOUS AND EMERGING ISSUES
7. So Close and Yet so Different: The Right to Health Care in the United States and Canada
—Virginia A. Leary
8. International Labor Rights and North American Labor Law
—James B. Atleson
9. Deconstructing Barriers: The Promise of Socioeconomic Rights for People with Disabilities in Canada
—Sarah Armstrong, Mindy Noble, and Pauline Rosenbaum
10. The Economic Rights of Migrants and Immigrant Workers in Canada and the United States
PART IV. A EUROPEAN COMPARISON
11. The Netherlands: A Walhalla of Economic and Social Rights?
—Peter R. Baehr
Appendix 1. International Covenant on Economic, Social and Cultural Rights
Appendix 2. Excerpts from President Franklin Delano Roosevelt's State of the Union Address, January 6, 1941
Appendix 3. Excerpts from President Franklin Delano Roosevelt's State of the Union Address, January 11, 1944
Excerpt [uncorrected, not for citation]
Looking at Ourselves
Rhoda E. Howard-Hassmann and Claude E. Welch, Jr.
In 1910, the novelist Anatole France wrote of his country, "We in France are . . . citizens. Our citizenship is [an] . . . occasion for pride! For the poor it consists in supporting and maintaining the rich in their power and their idleness. At this task they must labor in the face of the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread." Only the poor were inconvenienced by the prohibition on sleeping under bridges.
Anatole France's aphorism shows the danger of assuming that equality before the law can result in an outcome that satisfies common-sense ideas of substantive material security. Indeed, his comment reflects an earlier observation by Karl Marx. In unequal economic situations, said Marx, an "equal" right was a right of inequality. "Right by its very nature can consist only in the application of an equal standard: but unequal individuals . . . are measurable only by an equal standard in so far as they are brought under an equal point of view . . . and nothing more is seen in them, everything else being ignored. . . . To avoid all these defects, right instead of being equal would have to be unequal." The only right that made sense to the proletariat (the working class) according to Marx's collaborator, Friedrich Engels, was the "spontaneous reaction against the crying social inequalities" that characterized life in their times. The debate about the relationship between equality of opportunity and substantive material equality has continued since Marx and Engels's time. In human rights terms, we are now interested in minimal economic security, recognizing that economic equality is impossible.
The international human rights regime includes a set of laws regarding economic rights, most especially those that are enumerated in the 1976 International Covenant on Economic, Social and Cultural Rights (hereafter ICESCR), included in this book as Appendix 1. These include inter alia the right to work and to just and favorable conditions of work (Articles 6 and 7); the right to join and form trade unions (Article 8); the right to social security, including social insurance (Article 9); specific rights for the family, special protection to mothers before and after childbirth and to children and young persons (Article 10); the right to "an adequate standard of living," including food, clothing, housing, and "the continuous improvement of living conditions" (Article 11); and the right to the "highest attainable standard of physical and mental health" (Article 12). This volume contains chapters on how Canada and the United States realize—or violate—these rights.
In law, there is generally an expectation that once a rule is made, it should be respected. International human rights lawyers try to establish economic rights as justiciable rights, as firmly protected as civil and political rights. Standards can be changed and made law. For example, David Weissbrodt, the author of Chapter 2, was elected chairperson in 2001 of the UN Sub-Commission on the Promotion and Protection of Human Rights, which deals especially with economic rights. The philosophical justification for economic rights is still not as robust and widely accepted as is the justification for civil and political rights, but progress is also being made in that direction. Brian Orend, in Chapter 1, offers a strong defense of economic rights, rooted in his conception of the vital needs and fundamental interests of all human beings.
For many countries, it is difficult to provide economic rights because of shortages of three kinds of resources—(1) material; (2) institutional; and (3) organizational. Therefore, as Weissbrodt explains, the ICESCR stresses "progressive implementation" of economic rights, rather than immediate. States are required to implement economic rights as their resources permit. It would seem, however, that Canada and the United States should be able to implement the full range of economic rights immediately. Both are extremely wealthy countries. In 2002, the per capita gross domestic product of the United States was US$36,300, while the comparable figure for Canada was US$29,300.
Capitalist Societies and Class Inequalities
That Canada and the United States, like other wealthy developed countries, do not protect the basic economic rights of all their citizens is in part a function of their economic structure. The economies of both countries are capitalist. One can use this word without implying that one is an old-fashioned Marxist, dedicated to the overthrow of the capitalist system and its replacement by communism. Communism has been discredited by its application over several decades in the former Soviet Union and other states in Eastern and Central Europe, and its substantial modification in China. Capitalism is the most efficient and productive economic system known to humankind, and it is because capitalism developed so early in Western Europe and North America that those two regions of the world are so prosperous.
But capitalism also breeds its own set of inequalities. In particular, capitalism divides the population into owning and nonowning classes. In general, it stratifies the population into rich, middle class, and poor. Those too incapacitated or lacking in opportunity to have any type of job at all are the worst off. They are the ones who are often homeless, especially if they also suffer the debilitating effects of mental illness, as Barbara Carroll points out in Chapter 4. But even the working poor in Canada and the United States frequently live insecure lives on the margins of society. Income distribution figures show a picture far different from average income in both Canada and the United States. In 2000, the top 10 percent of American households had an income 15.7 times the bottom 10 percent, while in Canada, in 1998, the figure was 10 times. These inequalities are not inevitable consequences of the way capitalist societies are organized. They are the consequence in large part of conscious political decision making, often by individuals with their own material self-interest in mind.
To be a member of the working class, or to be unemployed, in Canada or the United States is often to live on the margins of society. The margins became even more remote from the center in the late twentieth and early twenty-first centuries. Poverty was exacerbated by declining social supports and the proliferation of low-wage, dead-end jobs, at the same time that the number of secure, unionized industrial jobs declined. The rate of unionization dropped in the United States from 35.5 percent at the end of World War II to 13.2 percent in 2004. More than half of the full-time employed workers in the United States in 2001 made less than $35,000 per year. Lacking incomes that could support a family, many Americans did not bother trying to form families at all.
The enormous retail chain Wal-Mart employed 1.2 million people in the United States in 2004 whose average income was less than $18,000. One-third of Wal-Mart's employees could not afford company-sponsored health care. This is a tragedy in a country that does not have any provision for universal medical insurance, as Virginia Leary explains in Chapter 7. The investigative journalist Barbara Ehrenreich worked for a time at Wal-Mart. She discovered there a class of people so poor that they could never afford permanent accommodation with decent kitchens, and so relied on fast food lacking in nutritive value: one of her colleagues, a fellow "associate" at Wal-Mart, ate hot dog buns for lunch. It is difficult for comfortable middle-class people (including academics) to imagine the situation of Caroline Payne, an otherwise responsible individual rendered unemployable because she lacked health insurance and therefore lacked teeth.
These class inequalities are grafted onto older sets of inequalities, so that particular sections of the population suffer the worst. In both Canada and the United States, Native Americans suffer from endemic poverty. Native Americans were forced off their lands by colonizers, sometimes subjected to genocide, granted highly exploitative "treaties" with their conquerors, and in Canada denied the civil and political rights that could enable them to seek economic betterment. Race is also a marker of inequalities; to be black in both countries, and to be Hispanic in the United States, is to experience greater poverty than whites. Indeed, Kenneth Neubeck argues in Chapter 5 that racism is a factor in shaping American welfare policies. Women are less well paid than men, and female-headed families are the poorest of the poor. In Canada in 1995 56.8 percent of single-parent female-headed families were considered poor. Migrants, both legal and illegal, often lack even the minimal protections that labor and other laws provide to citizens, and their incomes are accordingly low for both Canada and the United States, as Vic Satzewich documents in Chapter 10. People with disabilities-at least those among them who cannot compete in the labor market-often also live on the margins of society, as Chapter 9, by Sarah Armstrong, Mindy Noble, and Pauline Rosenbaum, shows for Canada.
Great strides have been made since the 1960s in both North American countries to ameliorate the disadvantages consequent upon gender and race or ethnicity, and latterly also sexual orientation. But there has been no significant social movement dedicated to ameliorating the condition of the poor as such. Indeed, in the fiscally conservative 1990s, the poor in many North American jurisdictions suffered cuts to their entitlements. In the Canadian province of Ontario, those subsisting on welfare were subject to the shock of 21.6 percent cuts in their incomes in the 1990s. Between 1975 and 1995, Canadians endured a 15 percent decline in sickness benefits and a 13 percent decline in unemployment benefits; Americans also endured a 13 percent decline in unemployment benefits. There are antipoverty movements in both countries, but they have not attracted significant backing. Many people in both countries believe that the poor are partly, or even mostly, to blame for their own fate: the poor should be able to avail themselves of formal equality of opportunity to find jobs and thereby support themselves at an adequate level.
Mary Bricker-Jenkins and Willie Baptist describe in Chapter 6 the movement to end poverty in the United States. They particularly note that poverty is not a race-specific phenomenon, as the figures cited earlier confirm. To organize the poor is decidedly an uphill struggle, although the movement can draw upon the international law of economic rights both for educational purposes and to legitimize itself. Bricker-Jenkins and Baptist express confidence that efforts to organize the poor as a national group can succeed. But without the "threat power" and capacity to disrupt everyday social relations that characterized the civil rights and black power movements of the 1960s, a poor people's social movement may well be something that the ruling elite can ignore.
The Imperative of Self-Criticism
From within Canada and the United States, there is comparatively little criticism of the economic structure of capitalism, compared to the debates that take place in those Western European countries that possess strong socialist—and some even communist—political parties. In the United States, there have historically been reformers such as Jacob Riis, the late nineteenth century New York photographer and crusader against poverty; the Chicago welfare reformer Jane Addams; and the left-wing political thinker of the 1960s and 1970s, Michael Harrington. Academic critics such as William Julius Wilson have noted the importance of social class, as opposed to skin color, in determining the life chances of African Americans.
But from the late eighteenth century until well into the twentieth, governments in the United States persecuted left-wing political parties and trade unions, thus preventing any critical, anticapitalist party from taking strong enough root to effectively regulate the workings of capitalism. At least 700 people were killed in American labor struggles between 1870 and 1940, 500 labor activists were deported during the post-World War I Palmer raids, and the political left was effectively intimidated during the McCarthy period of the 1950s. In Canada, in 1961, the New Democratic Party (NDP), a fairly strong national social democratic political party, was formed. It united a predecessor called the Cooperative Commonwealth Confederation with some trade unions. From the 1960s to the 1980s, the NDP sometimes held the balance of power in Canada's then-tripartite parliamentary system and was sometimes able to influence the ruling party to introduce reforms that protected citizens' economic rights. Provincial governments controlled by the NDP also introduced economic rights, such as health care in Saskatchewan, as Leary describes.
The failures of both Canada and the United States to protect the economic rights of all their citizens demand reflection on the part of Canadian and American human rights jurists and scholars. Yet, remarkably little attention is paid to this category of rights, as Louis Henkin observed about the United States in 1981: "Few judges . . . have been prepared to declare basic human needs—subsistence, education—to be fundamental rights. . .. Even when some societal responsibility for individual welfare was finally accepted, it was seen as secondary and supplemental. Especially in austere, conservative times, that responsibility is seen only as residual, only to help those who cannot help themselves, and only with respect to minimum necessities at poverty levels. The primary responsibility for individual welfare . . . was on the individual."
Yet, as the eminent Sudanese American scholar Abdullahi An-Na'im has pointed out, if Americans (and Canadians) do not heed their own violations of human rights, they will undermine their credibility in international discussions: "[A]ll cultures must be held to the same standards . . . of all . . . human rights. . .. [I]n the United States . . . racism and economic and social rights are large problems for the majority culture. So American human rights advocates should be equally concerned with all human rights issues that are problematic in their own situation. . . . Only by engaging in such an 'internal discourse' can American human rights advocates gain the moral credibility required to encourage such discourse elsewhere."
As editors, we agree with An-Na'im, and we recall the Socratic principle "Know yourself." Economic Rights in Canada and the United States attempts to make a start in analyzing the weak protection of economic rights in Canada and the United States. We recognize the serious criticisms made of the concept of human rights, particularly its historical and philosophical beginnings in the Western liberal tradition that originally privileged civil and political rights over economic and social rights. These criticisms are by no means limited to persons from Africa, the Asia-Pacific area, or other "developing" or "southern" parts of the world. Indeed, philosophical and practical debate is in many respects as vigorous in the "developed" or "northern" parts of the globe. At the heart of contention is the issue of what claims on resources come first. Are there priorities among human rights, regardless of the 1993 assertion that they are "universal, indivisible and interdependent and interrelated"?
We agree with Henry Shue that there are certain basic rights whose fulfillment is requisite to the enjoyment of all others, namely subsistence and security. Orend's view that human rights respond to basic needs and fundamental interests strengthens Shue's point of view. To insist on economic rights is not to engage in "rights inflation," as Michael Ignatieff suggests. Civil and political rights are indeed strategically crucial to the attainment of economic rights, as Ignatieff argues, but economic rights are also intrinsically valuable. One of the purposes of Economic and Social Rights in Canada and the United States is to show how fundamental these rights are to any reasonable conception of human dignity. Ignatieff argues that human rights rely on the "basic intuition that what is pain and humiliation for you is bound to be pain and humiliation for me." Poverty, ill health, homelessness, and general lack of minimum economic security are both painful and humiliating. Minimum economic rights should be attainable for all in wealthy societies.
To "know oneself," countries like Canada and the United States must be willing to turn their critical scrutiny inward. It is telling that the United States' Department of State annually publishes a massive report on human rights conditions in close to 200 countries, but is barred from examining its own, as the impetus for these reports is foreign policy. Examination of internal human rights policy is a task of civil society in America, performed by a myriad of public interest and not-for-profit groups such as the American Civil Liberties Union and Human Rights Watch. But to resolve violations, the public sector—the government—plays the central role. We must thus concentrate less on the law of economic and social rights and more on their implementation.
Particularly heavy burdens of justification with respect to human rights performance fall upon the United States. The United States has set itself up as a paragon of achievement to which other states should—perhaps must—aspire. Such preaching about morality has rarely been absent from American history. Witness the bold assertion of the Declaration of Independence with respect to truths that were "self-evident." Witness also Woodrow Wilson's Fourteen Points intended to provide an appropriate framework within which the combatants could heal the rancor of World War I. During World War II, Franklin Delano Roosevelt proclaimed the Four Freedoms, discussed further in the following section. In the 1970s, Jimmy Carter's electoral promises brought human rights front and center after the moral sleaze and realpolitik of the Nixon-Kissinger years. Republican presidents added their own voices to these prior Democratic assertions. Ronald Reagan stressed the need for democracy in the Soviet Union before it collapsed, and George W. Bush emphasized the evils of authoritarianism in Iraq. All these examples can be brushed aside by non-Americans, however, as manifestations of America's desire to preach to the world, to set itself up as a human rights paragon while turning a blind eye to continuing inequalities and abuses within its own borders. While hypocrisy is not unknown among other governments and their leaders, it is particularly resented when coupled with American economic and military power and a rarely restrained propensity to hold up the United States as the ideal.
Assessing Conformity to International Law
Are there ways in which states can be successfully pressured to improve their performance? This question is central to Economic Rights in Canada and the United States. As editors and authors, we begin with the organizing framework provided by the ICESCR.
International human rights law combines several elements. Most important are treaties negotiated and ratified by governments. States pledge faithfully to carry out the obligations specified in the agreements. There are no enforcement mechanisms, however, unlike in domestic settings. International society is usually described as "anarchic," depending on its members to police themselves. When countries are unwilling or unable to meet their human rights obligations, little can be done internationally. Yet this does not stop the use—and abuse—of human rights as a tool of global politics.
For many decades, the principle of economic rights was used by the Soviet Union as an ideological weapon of the Cold War. The Soviet Union claimed that the economic rights of its citizens were constitutionally protected. In practice, although housing was very cheap and health care free, the quality of each was abysmal. Without any civil and political rights, Soviet citizens could not call their government to account and demand that its actions in the economic realm conform to its ideology. The Soviet Union's hypocrisy regarding economic rights rendered it easy for the United States to ignore criticism of its own serious shortcomings. The United States, in turn, touted the supremacy of civil and political rights. The rights promulgated in the 1948 Universal Declaration of Human Rights were separated into two Covenants, dividing civil and political from economic, social, and cultural rights. This separation was a clear reflection of the Cold War, in which the United States saw itself as the leader of the democratic, capitalist West. For several decades, the human rights debate was mired in this false either/or dichotomy of which category of rights—economic, social and cultural or civil and political—ought to take precedence.
The end of the Cold War ushered in a major transition in the global balance of power. It appeared that democracy and capitalism had triumphed. The United States emerged at the top of the heap, its power unquestionably great, suggesting that its was the only correct path to the protection of human rights. Yet democracy and capitalism do not necessarily protect economic rights. The devastating condition of the poor in the United States—most especially the African American poor, as Neubeck shows—is obvious to all informed observers and puts the lie to American claims to moral superiority in the arena of human rights.
This, then, is the political background to the formal international discussion of economic rights, focused around the ICESCR. The ICESCR was drafted and came into force two centuries after the American Declaration of Independence was penned, but only six years before the Canadian Charter of Rights and Freedoms (henceforth Charter) was adopted. The different historical contexts are meaningful. Thus, while the 1787 American Constitution spoke broadly of goals, such as to "promote the general Welfare," it did so only in the Preamble. The role of the national government, limited to a small number of essential functions (e.g., diplomacy, coinage, tariffs, and interstate commerce), was one of coordination of former colonies with divergent backgrounds and interests. Its role grew gradually, largely as a result of emergencies such as the Civil War, the Great Depression, and international conflict. By contrast, the Canadian Charter is a modern document. It was written at a time when women's rights, native peoples' rights, and new ideals such as multiculturalism dominated many Canadian and international discussions of the meaning of social justice. Yet despite its modernity, despite the fact that it was drafted in a country with a highly developed social welfare system, and despite Canada's ratification of the ICESCR, the Charter does not protect economic rights. This is surprising, given the obligations of the ICESCR.
Each country that ratifies the ICESCR pledges to implement its provisions, yet the Covenant's capacity to monitor states' achievements is extremely weak in comparison to its companion International Covenant on Civil and Political Rights. The latter provides for an eighteen-member committee of independent experts, which meets three times annually to review reports from the ratifying countries and forwards its observations both to the countries themselves and to the UN General Assembly. No similar provision originally existed for the ICESCR, for which an optional protocol had to be drafted to create an oversight group.
The resulting agenda for action by the Committee on Economic, Social and Cultural Rights, and for the governments that implement policies, is extensive but not exhaustive. The committee has myriad areas on which it can work and on which it is pressured by civil society. Developments subsequent to the drafting and ratification of the ICESCR have been incorporated into new international declarations and/or treaties, usually as a result of pressures from below. Likewise, as editors, we had to choose from myriad issues in putting together Economic Rights in Canada and the United States. The result is a volume that is extensive but not exhaustive; our coverage is necessarily selective and reflects the context of the early twenty-first century. For example, the chapters by Bricker-Jenkins and Baptist, on the antipoverty movement in the United States, and by Armstrong, Noble, and Rosenbaum, on the rights of persons with disabilities, reflect the rise of relatively new human rights issues in North America, as well as recent developments at the United Nations.
Given the loose definitions of human rights found in the ICESCR, how is effectuation of its provisions to be measured? The most significant efforts to define standards have come from the Committee on Economic, Social and Cultural Rights and from Western European academic lawyers. The most important steps in monitoring and advocacy have come through national and international nongovernmental organizations and through intergovernmental organizations, although few report or act on economic, social, and cultural rights as well as civil and political rights. Amnesty International, which was established in 1961 in Britain with a focus on prisoners of conscience, the death penalty, and torture, has broadened its mandate to include economic rights, along with all the other rights contained in the Universal Declaration. Amnesty's annual report covers all countries. Freedom House, a private, nonpartisan American organization, concentrates on civil and political rights, ranking states and summarizing them as "free," "partly free," and "not free," but does not report on economic rights. Human Rights Watch, an American organization, does not aim to be global in its coverage, concentrating instead on those countries in which it focuses its efforts, sixty-nine in 2002. Human Rights Watch does include both Canada and the United States among the countries on which it focuses but concentrates mainly on violations of civil and political rights.
There are also numerous publications under intergovernmental auspices. Through the European Convention on Human Rights and the European Social Charter, the Council of Europe produces regular reports. The UN Development Report appears annually through the UN Development Program and is notable for its Human Development Index, based on three indicators. These are life expectancy at birth; the adult literacy rate and the combined gross enrollment rates in the primary, secondary, and tertiary educational levels; and the standard of living by gross domestic product (GDP) per capita. The yearly report of the United Nations Educational, Scientific and Cultural Organization (UNESCO) is a valuable source for data on education. The World Bank's annual development report includes data relevant to economic and social rights. Its 2000 report (its cover completely black save for the title) concentrated on human rights. The World Health Organization publishes its annual World Health Report, again a survey relevant to Economic Rights in Canada and the United States.
With one exception, consistent and universal monitoring by individual governments has been nonexistent. Acting under congressional mandate, the U.S. Department of State has published country-by-country reports on human rights since the mid-1970s. These reports are organized idiosyncratically, however, categorizing rights by respect for the integrity of the person; respect for civil liberties; discrimination based on race, sex, disability, language, or social status; and worker rights. Of these categories, only worker rights are directly relevant to this volume, and it is telling that the United States provides very little protection for workers and trade unions, as James Atleson shows in Chapter 8. China has offered several critiques of human rights practices in the United States since 1997, a year China faced a U.S.-backed possible censure in the UN Commission on Human Rights. A European Yearbook of Human Rights has been published by a consortium of academic research institutes annually since 1985, but tends to focus on issue areas rather than country assessments. Finally, several academics have focused on quantitative analysis of economic and social rights.
Reports on the economic human rights performances of states are also available through the UN Committee on Economic, Social and Cultural Rights, described earlier, to which States Party to the ICESCR must report periodically. As a State Party, Canada reports to this body and, as of mid-2003, had made three full reports, with a fourth in preparation. Having signed but not ratified the Covenant, the United States has no such obligation. Thus, the United States illustrates its exceptionalist position on international relations, about which David Forsythe and Eric Heinze write in Chapter 3. Although both countries are derelict in their domestic protection of economic rights, only Canada is subject to United Nations' monitoring and criticism. Without giving Canada credit it does not deserve, it seems overall to be a better protector of economic rights than the United States, although there may be some exceptions, such as policies for the homeless, as Carroll argues.
The authors in this book analyze a number of key economic rights, discussing domestic protection and violation in the United States and Canada. Human rights discourse in the West has been carried out largely by those trained in law. This is a result in part of the relative primacy of the emphasis on civil and political rights, in which the rule of law is central. Many law schools publish human rights journals. This contrasts with the relative rarity of scholarly attention to human rights in political science (except in international relations) or sociology. The single major book we have located dealing with human rights in Canada and the United States was written largely by and for legal scholars. We adopt a different approach to human rights. While several distinguished lawyers have contributed chapters to Economic Rights in Canada and the United States, so too have well-known political scientists, sociologists, and persons from other social science disciplines.
Human rights discourse also tends to focus on individuals and individual cases, rather than on underlying conditions. Nongovernmental organizations chronicle abuses of specific persons or groups, calling for change, while international human rights treaty bodies respond to "communications" in which harms done to individuals or groups can be documented. But human rights can be violated unintentionally as a result of social structure, as well as intentionally by individuals or governments. We believe that human rights abuses arising from widespread structural, social, and political conditions should be analyzed by social scientists as well as by legal scholars, so that the resulting dialogue can contribute more fully to understanding the particular human rights problems of wealthy capitalist societies.
Canada and the United States provide an ideal basis on which to show how nations similar in most respects—"probably as alike as any other two peoples on earth"—differ with respect to implementing social and economic rights. Considering both countries' affluence, neither is very close to implementing the aspirations of the ICESCR. As discussed earlier, the United States has long depicted itself as unique, claiming a distinctive position globally. Indeed, it is distinctive among wealthy industrialized countries in paying far less attention to economic rights than most others. Canada, by contrast, occupies an intermediate position between the United States and highly industrialized Western European states, such as the Nordic states, France, or the Benelux countries. The political systems of these countries include social democratic political parties, which sometimes form governments, and they demonstrate a more corporatist attitude to social relations than is found in either North American country.
The purpose of Economic Rights in Canada and the United States is not explicitly to compare Canada and the United States. Rather, it is to show that both countries are derelict in their protection of economic rights. Nevertheless, there are some noticeable differences in their attitudes to this category of rights, especially the right to health care, as Leary explains. Canada has had a national health insurance program since 1966. The United States still does not have such a program, and the attempt in 1993 by then-president Bill Clinton and his wife, Hillary Clinton, to introduce one failed miserably. In 2002, about 43.6 million Americans, or 15.2 percent of the population, were uninsured. This is not an insignificant difference, and Canadians, aware of this, balk at any suggestion that their universal program of health insurance should be modified in directions that might bring it closer to the U.S. system. In this section, we explore some ideas about why there is a difference between the two countries in regard to economic rights such as health care.
Both Canada and the United States are highly developed, Western, capitalist countries. They have a common historical background in British colonial rule and a resulting constitutional heritage of the British legal and parliamentary systems. Their economies are also highly interdependent. Both have supported international law and institutions, albeit with significantly greater enthusiasm north of the border. In short, Canada and the United States are countries that invite comparison across numerous dimensions.
The United States, however, broke away from the British model in 1776. While Canada remained a colony, subject to the common-law British tradition, with its incremental and decidedly incomplete approach to human rights, the United States drafted its own Constitution, including a Bill of Rights. This Constitution, with its various amendments, is one of the world's most inspiring guarantors of civil and political rights, but there is no mention in it of economic rights. Nor do American courts interpret the reference in the Constitution's Preamble to the promotion of general welfare as an enforceable provision.
Nevertheless, the United States has contributed to the international debate on economic rights. During World War II, then-president Franklin Delano Roosevelt proclaimed his Four Freedoms, included in this book as Appendix 2. These were freedom of speech and expression, the freedom of each person to worship God in his own way, freedom from want, and freedom from fear. In his 1944 State of the Union Address, a selection from which is in this volume as Appendix 3, President Roosevelt advocated more widespread old-age pensions and unemployment insurance for American citizens and a broadening of opportunities for adequate medical care. His wife, Eleanor Roosevelt, presided over the formulation of the United Nations' first human rights document, the Universal Declaration of Human Rights, which contained many of the economic rights that later became international law in the 1976 ICESCR. Yet sixty-two years after Roosevelt proclaimed the Four Freedoms, his visionary approach to economic rights had little influence on American political culture.
Canada entered the international debate on economic rights at about the same time as the United States. One of the drafters of the first version of the Universal Declaration of Human Rights was John Humphrey, a Canadian legal scholar working with Eleanor Roosevelt at the United Nations. Humphrey inserted economic rights into the Declaration, over the objections of Canadian politicians, the country's legal community, and its business elite. At that time, human rights were not protected in Canada itself. The political culture in English Canada was one of an easy belief in the rectitude of the English-speaking, Anglo-Scottish ruling class, while in French Canada, the Church still ruled both institutional and ideational life. Human rights only gradually became a Canadian value, the first Bill of Rights not being introduced into Parliament until 1960.
Nevertheless, from this less than inspiring early history, Canada emerged in the last quarter of the twentieth century as a strong supporter of the international law of human rights, ratifying the ICESCR in 1976. Canada tends to accept judgments against it by the United Nations' Human Rights Committee, which oversees civil and political rights. For example, Canada accepted the committee's instructions in the 1981 Sandra Lovelace case to restore Native women's rights. The rights in question were to live on reserves and retain Native status, even after marriage to non-Natives. In 1982, Canada rewrote its constitution and introduced its Charter of Rights and Freedoms. As already discussed earlier, the Charter did not protect economic rights.
Canada does have a reputation for being more peaceful, law-abiding, and rights-protective than the United States. Many readers of this book will have seen Michael Moore's 2002 movie Bowling for Columbine. Moore made this film after two students massacred thirteen people at Columbine High School in Littleton, Colorado, in April 1999. In one scene in this film, Moore visits Canada. He portrays a much friendlier, more trusting society than the United States, at one point showing a Canadian happily greeting Moore as he walks unannounced through the Canadian's unlocked door. While attractive to many Americans, this picture was probably quite surprising to Canadians, among whom are many with alarm systems on their doors. In fact, the rate of theft in Canada in 2001 was almost 90 percent of the rate in the United States in 2000. The homicide rate, however, was significantly lower, at 1.8 homicides per one hundred thousand people in 2001, as compared to 5.5 homicides per one hundred thousand people in the United States in 2000, or about one-third the American rate. In 1996, 21.9 percent of Canadian households owned at least one gun, as compared to 48.5 percent of American households.
Much of the alleged contrast between Canada and the United States, then, is a myth. Poverty rates in Canada approach those in the United States. In 1991, 21.0 percent of Americans and 21.6 percent of Canadians were considered poor before taxes and transfer payments. On the other hand, there may be some differences in Canadian attitudes to the poor. When transfer payments are taken into account, the poor in Canada are better off than the poor in the United States, although they are worse off than the poor in many countries in Western Europe. Only 5.6 percent of Canadians were considered poor in 1991 after taxes and transfers, as opposed to 11.7 percent of Americans who remained poor. These differences between Canada and the United States in post-transfer rates of poverty may have lessened after the financial retrenchments in Canada during the 1990s.
Canadians pay much higher rates of income tax than do Americans, in part to support their more expansive system of health care and social safety nets. Exact comparisons are difficult, but some illustrative figures exist. In 1997, taxes constituted 36.8 percent of Canada's GDP, as compared to 29.7 percent of the United States'. In 1999, the combined federal and provincial income tax rate in Canada for income over CAN$63,050 was 46.1 percent, while at a comparable level the figure for the United States was 34.5 percent. Federal tax cuts enacted in the United States in 2001 (often necessitating increased state and local taxes) accentuate the contrast with Canada.
If a more sincere commitment to economic rights exists in Canada than in the United States, it may be a result of a difference in political culture. In the United States, there is no viable political party to the left of the Democrats. The two-party system effectively means that all new political tendencies must either be folded into the Democrats or the Republicans or disappear. Individuals in the Democratic Party who hold social democratic views find them watered down in bargaining with other members of the party. Trade unionism—the single biggest protection of the economic rights of workers, as Atleson explains—hardly exists in the United States. In 1999, 13.9 percent of American workers belonged to trade unions, while in Canada the figure was 30.1 percent.
This does not mean that Canada has been free of the kind of politics that have permeated American conflict over what is now known as economic rights. For example, Canada deported labor leaders immediately after World War I. As did political leaders in the United States, Canadian politicians feared the left-wing politics sweeping over Europe in the aftermath of the War and the Bolshevik Revolution in Russia. Again like the United States, after World War II, Canada engaged in a period of persecution and harassment of left-wing thinkers and activists.
The persecution of leftist activists was somewhat offset by a tendency in Canada toward communitarian and corporatist thinking that was absent in the United States and that promoted a sense of civic obligation toward all. In one older reading of this tendency, Canada was characterized by a "feudal remnant." In feudal societies, the nobility were obliged to help provide for peasants' minimal economic needs in return for loyalty and military support. So in Canada, a country that never experienced a bourgeois revolution as did the United States, remnants of this ethic remained in both the quasi-feudal seigneuries of pre-Conquest Quebec, and among the Anglo elite of English Canada. Added to this were the strong Catholic Church in Quebec and the Protestant beliefs of the Christian socialists who started the Co-operative Commonwealth Federation. Socialist and Communist immigrants could also be found among the farmers of the Canadian West, as well as among the urban workers of Montreal and Toronto.
The idea that Canadians are ideologically different from Americans has some currency. A common contrast is the reputed Canadian stress on "peace, order and good government" as opposed to the American stress on "life, liberty, and the pursuit of happiness." Canadians are thought to trust the state more than do Americans and to be less individualistic. Seymour Martin Lipset, an American sociologist who studied Canada in depth, attributed this contrast to the differential effects of the American Revolution on both countries. While the United States, he argued, celebrates "the overthrow of an oppressive state," Canada "commemorates a defeat." Thus, Lipset continued, "Canada . . . was formed as a counterrevolutionary monarchical society that valued hierarchy in class relations and religion and authority and deference in politics.. . . In contrast, the United States was founded as a nation seeking to explicate a set of political and religious ideals that emphasized liberty, saw danger in concentrated government power, and increasingly stressed populism and equality of opportunity and of social relations." As proof of his thesis, Lipset noted that "crossnational polls . . . continue to reveal Americans as less favoring large welfare programs and an active role for government in the economy than the citizens of Canada."
Lipset's thesis was, however, challenged by Canadian scholars. Carefully constructed national surveys show that Canadians are less deferential to government than are Americans and are more individualistic. Moreover, to argue that national "characters" in the late twentieth century could be traced to events that occurred two hundred years earlier is to ignore significant social change of various kinds. These include the processes of urbanization and industrialization and huge immigration movements into both countries from parts of the world other than Britain.
In any case, even if Canadians do have a more corporatist or communitarian value system than Americans, its beneficial effects should not be exaggerated. Large numbers of people lived in dire poverty in Canada until well after World War II. Blacks and members of other racial minorities were denied the equal opportunity and legal standing that might have helped them better their economic status. People of Chinese and Japanese ancestry were long denied the right to vote, a political right crucial to the attainment of economic benefits. Women and children were almost entirely dependent for their economic well-being on men. Corporatist thinking often took the form of a patronizing charity, its recipients dependent on the givers' interpretation of their worthiness.
Nor has poverty disappeared in Canada. In the late twentieth century there were still low-income mothers who compromised their own nutrition at the end of the month, when their welfare checks fed their children but not themselves. In 1996, 21.1 percent of Canadian children lived in poverty, although by 2001, the rate of child poverty was 15.7 percent, as compared to more than 20 percent in the United States. A 1994 study estimated that 1.2 percent of Canadian children were malnourished. By comparison, in 2002, 11.1 percent of American households were found to be "food insecure," with 3.5 percent of households experiencing "food insecurity with hunger."
If indeed it exists, the greater Canadian commitment to the common good may also be a consequence of the more homogeneous (until very recently) racial structure of Canada, compared to that of the United States. Canada does not have a good historical record of welcoming strangers into its midst. The great migrations of Eastern Europeans, especially Poles and Ukrainians, into Canada in the early twentieth century coincided with a social eugenics movement to reduce the number of "feeble-minded" in the country. Immigrants who often could not speak English were counted among these "feeble-minded." (This was also the policy in the United States, the elites of both countries being influenced by the eugenics movement of the late nineteenth and early twentieth centuries.) In an effort to maintain the country as a white colony, Canada enacted legislation excluding Chinese immigrants in 1923, one year before the U.S. Chinese Exclusion Act. Since the late 1960s, Canada has had a much more open immigration policy, so that by 2000 three-fourths of its immigrants were from regions other than Europe, and in the 2001 census 13.5 percent of the population identified itself as members of "visible minorities" (with another 3.3 percent identifying itself as Aboriginal). In an attempt to adjust to this, the federal government instituted an official policy of multiculturalism in 1971. Nevertheless, nonwhite immigrants experience much difficulty in economically catching up with native born Canadians. And black males are particularly disadvantaged, even if they are native-born. A 1999 study showed that native-born black males earned 24 percent less than native-born male Canadians as a whole, even after controlling for educational level and work experience.
If Canada is not able to maintain its collective commitment to the common welfare in the future, it may end up, like the United States, as a country in which black males, as a group, suffer severe violations of human rights, both civil/political and economic. If the poor are not seen as part of "us"—if they are not seen as related to those who make decisions and distribute resources—then they may be deemed less worthy of assistance
That Canada and the United States are more similar than different is not surprising: both are capitalist countries. They rely on free market economies in which the intention of private producers is to make a profit. As we noted at the beginning of this introduction, such economies are the most efficient known to mankind. Yet they produce class inequalities—inequalities in access to basic economic rights—that must be ameliorated by public policy if all citizens are to be protected under international human rights law. In their public policies, neither Canada nor the United States has ever addressed the problem of class inequality as a human rights issue. Nor has either one instituted constitutionally protected economic rights. Yet there is little by way of social movements in Canada and the United States to pressure the respective governments to institute economic rights as legally enforceable human rights. The Kensington Welfare Rights Movement, described by Bricker-Jenkins and Baptist, is unfortunately a rare instance of organization of the poor by the poor.
Margaret Keck and Kathryn Sikkink suggest that human rights social movements succeed when there is evidence of direct harm from human rights abuses, as in torture; when core values such as equality are undermined; and when the causal chain between the action or inaction and the harm is short and obvious. These conditions do not apply to violations of economic rights in Canada and the United States. Direct harm such as starvation-as opposed to the slow harm of malnutrition-rarely occurs in North America. The core value with regard to economic well-being is equality of opportunity, not the idea of a solid floor below which no Canadian or American should sink. The link between public policy measures such as cuts in welfare allowances and poverty "on the ground" involves other factors such as family dynamics, individual initiative, and racial or ethnic status. Without compelling evidence of direct harm, attacks on core values, and a short causal chain, it is difficult to generate a large social movement in favor of economic rights.
There are also many people in North America whose interests would be harmed were economic human rights better protected. The business and property-owning classes might well rebel if minimum wages, unemployment insurance benefits, and social welfare payments were raised to a level at which recipients might live a life of dignity instead of a life spent scraping by. The ordinary taxpayer might be concerned about increased taxes and how such increases would affect her or his standard of living. Among both groups, some might also worry that too great a stress on economic rights would create a society of irresponsible people, unwilling to earn their own way in society. Yet ordinary taxpayers often do not realize how their own economic security has been ensured by earlier rights-seeking activities. Had trade unions not demanded limited hours of work, minimum wages, and other social benefits in the late nineteenth and early twentieth centuries, there would be no stable, working middle class in the early twenty-first. Atleson documents how the recognition that labor rights are human rights impelled early legislation protecting trade unions in the United States, yet the American government and legal profession frequently do not remember that connection now.
Unfortunately, then, there is so far no indication that "ordinary" Canadians and Americans view economic rights as of the same importance as civil and political rights. Human rights are wrested from below. But in this case, "below" comprises those people whose economic betterment might impose a real monetary cost on their fellow citizens. Even in rich societies, wealth is not infinite. The rich prefer to stay rich. Middle-income citizens enjoy their standard of living but worry about economic insecurity in times of unemployment, illness, or old age. Human rights that directly attack the pocketbook meet much more resistance than human rights that only indirectly affect citizens' financial interests.
And there is even greater hostility to the idea that citizens of rich democracies should share their wealth with people who live in other countries. This inability to overcome the constraints of direct financial interest is what often strikes commentators from the "rest" of the world as hypocritical about Western human rights policies. Economic human rights are indeed the "stepchild" of the international human rights movement, Forsythe and Heinze argue. As they point out, even those Western democracies, such as Canada, that are more oriented to the global "South" than is the United States have not formed an alliance to promote economic rights on the international scene. Canada's moralistic foreign policy preaching about its democratic and multicultural values conceals a policy based on national interest, especially trade promotion. As for Americans, it seems to outsiders that they are steeped in hypocrisy. The Information Office of the State Council of the People's Republic of China concluded its study of the United States' human rights record for 2000 with these words: "China would like to offer this advice to the U.S. government: abandon your old ways and make a new start, take effective measures to improve the human rights record in your own country, take steps to promote international cooperation in human rights, and stop ordering other countries on the pretext of safeguarding human rights."
We believe that both our countries should pay more attention to economic rights, both to defuse international accusations of hypocrisy and to protect our fellow citizens. We admire social democratic states that protect economic rights more carefully than does either of our own two societies, even though the protections in such states are far from perfect. Social democracy combines concern for economic rights with a firm commitment to civil and political rights, a commitment that is lacking in communist states such as the former Soviet Union or present-day China. We also acknowledge that capitalist economic systems are here to stay. Capitalism should be regulated, however, and states should protect the human rights of their citizens over the interests of private corporations or the extremely wealthy property-owning class.
The advantages of the capitalist economic system must be acknowledged. Capitalism creates wealth. As Orend notes, in wealthy societies, most adult citizens are able to take care of their own economic needs without resort to state support. In democratic capitalist societies, moreover, citizens are able to win substantial economic benefits from their governments, even if those benefits are not recognized as rights. Canada and the United States both offer social programs that promote economic security, even if economic rights are not recognized. In both countries, minimal levels of benefits are provided for the poor and unemployed, for the disabled, and for (some) low-income parents with children. In both countries there are old-age pensions. In both countries there is universal, free education at the primary and secondary levels. In the United States, many citizens benefit from state health benefits. Indeed, if one takes into account the different manner in which the United States promotes its citizens' economic security, for example, via tax deductions on mortgage interest (but not on rent), it may be that the difference between the United States and Canada, or the Netherlands, our European comparison state, is not as great as is often thought. Christopher Howard suggests that if all such measures are taken into account, the United States in 1997 spent $4,809 per capita on its citizens' welfare, compared to $4,443 spent by Canada and $4,495 by the Netherlands.
Capitalism, moreover, is not necessarily a recipe for a dog-eat-dog society. Canadians and Americans both have vibrant civil societies and large volunteer sectors. These volunteers not only help the weak but also act as their advocates. But even when volunteer action is combined with social programs, that is not enough to protect the economic rights of the most disadvantaged citizens. Per capita figures hide race, ethnic, gender, and other inequalities, as well as masking programs such as Social Security for the aged that benefit the wealthy as well as the poor. A particularly shocking example of racially biased outcomes of public policy is seen in rates of AIDS in the United States. In 2002, the AIDS diagnosis rate was almost eleven times higher among African Americans than among whites. Excluding assaults, homicides and accidents, in 2001 AIDS was the biggest killer of African Americans aged twenty-five to thirty-nine.
Conscientious fulfillment of the ICESCR's provisions requires much more—and more dedicated—social action than presently exists in either Canada or the United States. Public policies to protect human rights must be directed in particular to the poor and other marginalized groups. Being destitute or even a member of the working poor often entails not merely economic disadvantage compared to the upper and middle classes but actual denial of economic rights. Many men, women, and children are locked into poverty. In both countries, being disabled can also mean not enjoying fundamental economic rights, as Armstrong, Noble, and Rosenbaum show for Canada.
Structural economic inequalities produce human rights abuses that pass largely unnoticed, especially when combined with racial minority, immigrant, or other such disadvantaged statuses. We believe that more than lip service must be offered to those needing affirmative action or employment equity, whether they be women, native peoples, the disabled, or members of racial minorities. Such individuals must benefit from policies that (at least for varying periods of transition) allow for positive discrimination. We also advocate more progressive income taxes, together with their mirror, "negative" income taxes. In the United States, universal health insurance is also a key necessity. In both countries, a social safety net that embraces the working poor as well as the truly destitute is needed, as are more universal, affordable systems of child care. The United States also needs a national system of paid parental leave similar to that which already exists in Canada. Both state-financed and private pensions should be universal and portable, with periodic adjustments for the cost of living. Wages must be fair, adequate to maintain at least a basic standard of living. Within the workplace, labor conditions must be healthful, and workers must enjoy freedom of association. Taken together, these obligations dictate a considerable policy agenda: social democracy.
Nevertheless, there is no guarantee that even in the best case, exemplified by Western European countries with strong social democratic traditions, states will or can protect all human rights. In Chapter 11, Peter Baehr warns us that all may not be what it seems in one such country, the Netherlands. We agree that Western Europe is not perfect. Indeed, like citizens of Canada and the United States, citizens of the Netherlands endured severe cuts to their social benefits between 1975 and 1995, with declines of 15 percent in sickness benefits and 13 percent in unemployment benefits. This reflects a pattern of retrenchment in almost all Western countries in the late twentieth century, as governments found themselves no longer able to sustain the social welfare commitments of the post-World War II period. But European social democracies do provide a contrast to the United States and, to a lesser extent, to Canada. They suggest a model to strive for, other than the stridently capitalist social structure of the United States. They answer to some extent the criticism from the "rest" that Western countries disregard economic rights.