Maryland Human Rights Authority

In 1981, Jeanne Kirkpatrick, then-U.S. ambassador to the United Nations, gave a speech in which she mocked the Universal Declaration of Human Rights (UDHR), calling it a “letter to Santa Claus.” Kirkpatrick wasn’t talking about the negative rights of the Declaration, the rights to free speech, self-determination, and non-discrimination. Those were embraced by the U.S. and, albeit imperfectly, articulated in our Constitution. Kirkpatrick mocked the positive rights–the rights to  health care, food, employment, housing, education, and the then-recently adopted right to development.The U.S. ambassador could be forgiven for stating what most Americans believed–that if these rights were guaranteed by the government, individual initiative, innovation, and industry would cease. The government would become a large welfare state that simply gave people what they needed until it went broke. What Kirkpatrick failed to understand was that positive human rights, economic rights, carry with them unique standards–standards that are different from those we use to judge negative rights enforcement.

The right to unemployment “insurance” is a good example. The Declaration of Human Rights indicates that a worker has the right to “protection from unemployment” (Art. 23.1) and the right to “security in the event of unemployment…in circumstances beyond his control”  (Art. 25.1). The treaty that was designed to give legal teeth to this  political aspiration, the International Covenant on Economic, Social and Cultural Rights (ICESCR), indicates simply that everyone has the right to “social security, including social insurance.” (ICESCR Art. 9).

The ICESCR also indicates that to achieve this economic right, the state must undertake steps to the “maximum of its available resources, with a view to achieving progressively the full realization” of the right. (ICESCR 2.1). General Comment No. 3 to the ICESCR further states that these steps should be “deliberate, concrete and targeted … towards meeting the obligations,” and the state must establish a “minimum core” obligation in the area, and avoid “any deliberately retrogressive measures” relative to the goal unless justified by a totality of the circumstances.

So how are we in the U.S. doing in this regard? In 1975, 81 percent of the unemployed in the U.S. received unemployment insurance. Currently, 37 percent of the unemployed receive it–38 percent in Maryland. The primary reason for this, according to a Department of Labor study, is state UI rule changes (like increasing the base-period earnings requirements, tightening up non-monetary eligibility rules, etc.).

While the U.S. never ratified the ICESCR, it did create the unemployment insurance system in 1934 that became the inspiration for the UDHR and ICESCR, and it has committed through the UN Charter to promoting human rights. It is difficult to understand how, in a country where $70 million was spent to persuade voters in the 2010 election, that our resources and the totality of our fiscal state over the last 35 years justifies this. In human rights terms, the state has systematically engaged in “deliberately retrogressive measures” relative to the right to security in the event of unemployment.