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U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy

Published online by Cambridge University Press:  27 February 2017

Philip Alston
Philip Alston*
Affiliation:
Centre for Advanced Legal Studies, Australian National University
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Extract

In January 1989, in the follow-up to the Conference on Security and Co-operation in Europe (the so-called Helsinki process), the United States signed the Vienna Declaration, in which it recognized “that the promotion of economic, social, cultural rights … is of paramount importance for human dignity and for the attainment of the legitimate aspirations of every individual.” To that end, the United States in signing the declaration undertook, inter alia, to guarantee “the effective exercise” of economic, social and cultural rights and to consider acceding to the International Covenant on Economic, Social and Cultural Rights. These undertakings seem to warrant renewed consideration of proposals that have been made at various times over the past quarter of a century for the United States to ratify the Covenant on Economic, Social and Cultural Rights.

Type
Research Article
Information
American Journal of International Law , Volume 84 , Issue 2 , April 1990 , pp. 365 - 393
Copyright
Copyright © American Society of International Law 1990

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Footnotes

*

While the author has been rapporteur of the United Nations Committee on Economic, Social and Cultural Rights since its creation in 1987, the views expressed herein are solely his own. An earlier version of this analysis was presented as part of an expert panel, “U.S. Ratification of the Human Rights Treaties Now!,” held in the U.S. Senate Foreign Relations Committee Room, Washington, D.C., on Mar. 16, 1989. The author wishes to thank Professor Henry Steiner for perceptive comments on an earlier draft.

References

1 Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the Conference on Security and Co-operation in Europe, Held on the Basis of the Provisions of the Final Act Relating to the Follow-up to the Conference, 28 ILM 527, 534, para. 14(1989).

2 Id. at 533, para. 13(a) and (b).

3 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966) [hereinafter Covenant].

4 Dec. 16, 1966, 999 UNTS 171.

5 Opened for signature Mar. 7, 1966, 660 UNTS 195, reprinted in 5 ILM 352 (1966).

6 Nov. 22, 1969, reprinted in Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System 25, OEA/Ser.L/V/II.71, doc. 6, rev. 1 (1988).

7 Message from the President Transmitting Four Treaties Pertaining to Human Rights, S. Exec Docs. C, D, E and F, 95th Cong., 2d Sess., at III (1978).

8 See, for example, the reports of the panel discussions organized at the Annual Meetings of the American Society of International Law in 1968, 1976 and 1986: The United Nations Human Rights Covenants: Problems of Ratification and Implementation, 62 ASIL Proc. 91 (1968); U.N. Human Rights Covenants Become Law: So What?, 70 ASIL Proc. 103 (1976); and Human Rights: The 1966 Covenants Twenty Years Later, 80 ASIL Proc. 408 (1986).

9 See text at notes 100-09 infra.

10 “As the representative of the Justice Department, I am here to assure you that, subject to the proposals that we have made, there are not any legal obstacles to our becoming a party to these treaties.” International Human Rights Treaties: Hearings Before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. 35 (1979) [hereinafter Hearings] (statement of Jack Goldklang, Office of Legal Counsel, Department of Justice).

Louis Henkin had expressed a similar view a few months earlier:

I can . . . dispose quickly of constitutional objections to ratification. In principle, there are no constitutional objections. The treaty makers can adhere to the human rights covenants. There are no constitutional objections based on federalism or on the separation of powers or on some notion that the subject is not of international concern.

Henkin, The Covenant on Civil and Political Rights, in U.S. Ratification of the Human Rights Treaties: With or Without Reservations? 20, 21 (Lillich, R. ed. 1981)Google Scholar [hereinafter Lillich].

11 See Lillich, supra note 10, passim; Weissbrodt, United States Ratification of the Human Rights Covenants, 63 Minn. L. Rev. 35 (1978); and Schachter, The Obligation to Implement the Covenant in Domestic Law, in The International Bill of Rights: The Covenant on Civil and Political Rights 311, 321-25 (Henkin, L. ed. 1981)Google Scholar.

12 See generally Farer, International Law: The Critics Are Wrong, Foreign Pol’y, No. 71, Summer 1988, at 22.

13 See text at notes 27-44 infra.

14 The Committee was established pursuant to ESC Res. 1985/17, 1985 UN ESCOR Supp. (No. 1) at 15, UN Doc. E/1985/85.

15 See Alston & Simma, Second Session of the UN Committee on Economic, Social and Cultural Rights, 82 AJIL 603 (1988).

16 See text at notes 54-76 infra.

17 The most notable example is Maurice Cranston. See, e.g., Cranston, Are There Any Human Rights?, Daedalus, No. 4, 1983, at 1:

[O]ne can justify the existence of. . . universal human rights, provided one does not do what the UN did in 1948, and which fashionable opinion has continued to do; that is, to postulate as human rights universal claims to amenities like social security and holidays with pay. Such things are admirable as ideals, but an ideal belongs to a wholly different logical category from a right. If rights are to be reduced to the status of ideals, the whole enterprise of protecting human rights will be sabotaged.

Id. at 12.

18 Covenant, supra note 3, Arts. 16 and 17.

19 ESC Res. 1988/4, para. 6. For all the relevant Council resolutions and decisions, see UN Doc. E/C. 12/1989/4.

20 See notes 14-15 supra.

21 UN Doc. E/C.12/1989/CRP.2/Add.1, General Comment No. 1, paras. 2-3. 22 Restatement (Third) of the Foreign Relations Law of the United States §701 Reporters’ Note 8 (1987).

23 See Human Rights: Status of International Instruments as at 1 March 1989, UN Doc. S T / H R / 5 (1989).

24 The members of the group are Australia, Austria, Belgium, Canada, Denmark, Finland, France, the Federal Republic of Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Turkey, the United Kingdom and the United States. This listing, which is based on UN practice, is taken from New Zealand Ministry of Foreign Affairs, United Nations Handbook 1988, at 7-8 (1988).

25 See Power & Quinn, Ireland’s Accession to the United Nations’ Human Rights Covenants, Irish L. Times, February 1989, at 36.

26 World Bank, World Development Report 1988, at 222 (Turkey), 223 (the United States), and 289 (Malta) (1988).

27 N.Y. Times, Nov. 5, 1981, at 1 and 29.

28 Jacoby, The Reagan Turnaround on Human Rights, 64 Foreign Aff. 1066 (1986).

29 N.Y. Times, note 27 supra.

30 Department of State, Country Reports on Human Rights Practices For 1981, 97th Cong., 2d Sess. 2 (1982).

31 Review of State Department Country Reports on Human Rights Practices for 1981: Hearing Before the Subcomm. on Human Rights and International Organizations of the House Comm. on Foreign Affairs, 97th Cong., 2d Sess. 7 (1982) (statement of Elliott Abrams, Assistant Secretary of State, Bureau of Human Rights and Humanitarian Affairs) [hereinafter Abrams].

32 E.g., Department of State, Country Reports on Human Rights Practices for 1988,101st Cong., 1st Sess. 4 (1989) (“We have found that the concept of economic, social, and cultural rights is often confused, sometimes willfully by repressive governments . . .”).

33 Abrams, note 31 supra, at 13.

34 Id. at 14.

35 Id. at 15.

36 Id. at 16 (emphasis in original).

37 Lillich, U.S. Ratification of the Human Rights Covenants: Now or Ever?, 80 ASIL Proc. 419, 420 (1986).

38 Statement by Ambassador Patricia M. Byrne to the Third Committee of the UN General Assembly, Nov. 9, 1988, Dep’t of State Press Release USUN 129-(88), at 1. For a comparable rejection of the concept of economic, social and cultural rights in a speech to the UN Commission on Human Rights, see UN Doc. E/CN.4/1986/SR.29, paras. 13-18 (Ms. Byrne, United States).

39 Statement by Ambassador Patricia M. Byrne, supra note 38, at 1.

40 Schifter, Building Firm Foundations: The Institutionalization of United States Human Rights Policy in the Reagan Years, 2 Harv. Hum. Rts. Y.B. 3, 16 (1989).

41 ESC Res. 5 (I), 1 UN ESCOR Ann. (No. 8) at 163 (1946); ESC Res. 9 (II), 2 UN ESCOR Ann. (No. 14) at 400 (1946), para. 4, as amended by the Council; and ESC Res. 1979/36,1979 UN ESCOR Supp. (No. 1) at 26, UN Doc. E/1979/79.

42 Address by Paula Dobriansky, Deputy Assistant Secretary for Human Rights and Humanitarian Affairs, before the American Council of Young Political Leaders, Washington, D.C. (June 3, 1988), reprinted in Dep’t of State, Bureau of Public Affairs, Current Pol’y, No. 1091, 1988, at 2.

43 Schifter, The Semantics of Human Rights, Dep’t of State, Bureau of Public Affairs, Current Pol’y, No. 1041, 1988, at 1.

44 Id. at 2.

45 Schifter, note 40 supra, at 16 n.64 (emphasis in original).

46 See Commonwealth of Australia, United Nations Conference on International Organization, San Francisco, U.S.A., from 25th April to 26th June, 1945: Report by The Australian Delegates, Cmd. 24 (Group E), No. F.4311, at 21-22 (1945), for a statement of Australian policy on this issue.

47 See X v. Major and Aldermen of Haarlem, 10 Neth. Y.B. Int’l L. 494 (1979); and Non-Discrimination in Dutch Social Security Law, Interrights Bull., NO. 3, 1988, at 38-39.

48 Starck, Europe’s Fundamental Rights in Their Newest Garb, 3 Hum. Rts. L.J. 103, 114-15 (1982).

49 See, e.g., Erikson & Fritzell, The Effects of the Social Welfare System in Sweden on the Weil-Being of Children and the Elderly, in The Vulnerable 309 (Palmer, Smeeding & Torrey eds. 1988).Google Scholar

50 For the Protocol, adopted on Nov. 14, 1988, see 28 ILM 161 (1989). The signatory states, as of Dec. 31,1988, were Argentina, Bolivia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Mexico, Nicaragua, Panama, Peru and Uruguay. See Acevedo, Introductory Note, id. at 156, 159 n.2. Under the terms of Article 21 (3) of the Additional Protocol, it will enter into force when 11 states parties to the American Convention on Human Rights have ratified (or acceded to) it.

51 Schifter, note 40 supra, at 16 n.62.

52 Amuzegar, Rights and Wrongs, N.Y. Times, Jan. 29, 1978, §E, at 17, col. 1. (At the time, Amuzegar was Iran’s representative to the International Monetary Fund.)

53 While the Carter administration did try to advance economic, social and cultural rights, it did so, in the words of its representative to the UN Commission on Human Rights in 1979 and 1980, “in a token, not well-thought-out manner.” Shestack, An Unsteady Focus: The Vulnerabilities of the Reagan Administration’s Human Rights Policy, 2 Harv. Hum. Rts. Y.B. 25, 40 (1989).

54 Message of the President, note 7 supra, at viii.

55 Hearings, note 10 supra, at 36 (J. Goldklang, Department of Justice).

56 Id. at 28 (R. B. Owen, Legal Adviser, Department of State).

57 Id.

58 Id. at 5 (C Yost).

59 Id. at 169.

60 Id. at 173.

61 Id.

62 Id. at 110.

63 Id. at 111.

64 Id. at 352 (O. Garibaldi).

65 These and related claims were analyzed in some detail in Alston & Quinn, The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 156 (1987).

66 Hearings, note 10 supra, at 54.

67 Id. at 93.

68 Id. at 306 (O. Garibaldi).

69 Annex to UN Doc. E/CN.4/1987/17, reprinted in 9 Hum. Rts. Q. 122 (1987).

70 UN Doc. E/CN.4/SR.232, at 11 (1951) (Mr. Cassin, France).

71 Hearings, note 10 supra, at 254 (N. Redlich).

72 See text at note 54 supra.

73 See generally S. Scheingold, The Politics of Rights: Lawyers, Public Policy and Political Change (1974).

74 Hearings, note 10 supra, at 5.

75 Id. (R. B. Owen).

76 The study referred to is the “Luxembourg Income Study” and the eight countries analyzed were Australia, Canada, the Federal Republic of Germany, Norway, Sweden, Switzerland, the United Kingdom and the United States. See Smeeding, Palmer & Torrey, Patterns of Income and Poverty: The Economic Status of Children and the Elderly in Eight Countries, in The Vulnerable, note 49 supra, at 89,115-16. The Australian Human Rights and Equal Opportunity Commission recently undertook a “National Inquiry into Homeless Children”; its report states that “it was clear to the Commission that a large number of Australian children were being denied these fundamental rights [to enjoy special protection, to receive adequate housing, and to be protected against all forms of neglect, cruelty and exploitation].” Our Homeless Children: Report of the National Inquiry into Homeless Children 3, para. 1.3 (1989).

77 In a comparative analysis of approaches to rights in the United States and France, Louis Henkin has observed that “[b]oth countries now recognize and realize welfare rights: in France such rights are constitutional, while in the United States they are only legislative entitlements” (emphasis added). Henkin, Revolutions and Constitutions, 49 La. L. Rev. 1023, 1049 (1989). He has also suggested that “[i]f France can constitutionalize economic-social rights, the United States can consider entrenching such rights, if only in state constitutions or by adhering to international agreements.” Id. at 1055. See also Henkin, Economic-Social Rights as “Rights”: A United States Perspective, 2 Hum. Rts. L.J. 223 (1981).

78 See, e.g., Klein & O’Higgins, Defusing the Crisis of the Welfare State: A New Interpretation, in Social Security: Beyond the Rhetoric of Crisis 203 (Marmor, T. & Mashaw, J. eds. 1988)Google Scholar, who write:

Initial assaults appear to have been repelled, reflecting a fact ignored in the rhetoric comparing current events to the 1930s or even the 1830s. . . . In other words, a wide range of programs now exists, has existed for several decades, and is a part of the day-to-day reality and expectation of the population.

Id. at 204.

79 Good, Freedom from Want: The Failure of United States Courts to Protect Subsistence Rights, 6 Hum. Rts. Q. 335 (1984); see also Woodward, Affirmative Constitutional Overtones: Do Any Still Sound for the Poor?, 7 Hum. Rts. Q. 268 (1985); and Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U.L.Q. 695.

80 Tribe, L., American Constitutional Law 1671 (2d ed. 1988)Google Scholar.

81 National Conference of Catholic Bishops, Economic Justice for All: Pastoral Letter on Catholic Social Teaching and the U.S. Economy 43 (1986).

82 Even many of those who advocate more active and sustained governmental intervention in favor of the poor and disadvantaged are not necessarily favorably disposed to an economic rights approach in the United States. See Fighting Poverty: What Works and What Doesn’t, esp. chs. 11 and 12 (Danziger, S. & Weinberg, D. eds. 1986 Google Scholar); and Simon, Rights and Redistribution in the Welfare System, 38 Stan. L. Rev. 1431 (1986). For a contrary view, see Bowles, S. & Gintis, H., Democracy and Capitalism: Property, Community and the Contradictions of Modern Social Thought (1986)Google Scholar.

83 Days, Affirmative action, in Civil Liberties in Conflict 85, 99 (Gostin, L. ed. 1988)Google Scholar.

84 Hearings, note 10 supra, at 325 (O. Garibaldi).

85 R. Lee, The United Nations Conspiracy 108 (1981).

86 Kamerman & Kahn, Social Policy and Children in the United States and Europe, in The Vulnerable, note 49 supra, at 351, 375.

87 Martin, A Human Rights Agenda: The Routine and the Special, 28 Va. J. Int’l L. 885, 887 (1987-88) (“Pick out one or two of the currently pending treaties to push and leave the others aside for now. The International Covenant on Civil and Political Rights holds the greatest promise”).

88 See Foreign Assistance Act of 1961, as amended, §116(d)(1) (22 U.S.C. §2151n (1982)), and §502B (22 U.S.C. §2304) (1982)).

89 The indivisibility of the two sets of rights has been recognized ever since the adoption of the Universal Declaration of Human Rights, GA Res. 217A- (III), UN Doc. A/810, at 71 (1948). The Assembly was even more explicit on that point in 1950, when it observed that “the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent.” GA Res. 421 E (V), 3d preambular para., 5 UN GAOR Supp. (No. 20) at 43, UN Doc. A/1775 (1950). For a more recent statement, see GA Res. 32/130, para. 1(a), 32 UN GAOR Supp. (No. 45) at 150, UN Doc.A/32/45 (1977) (“All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic, social and cultural rights”).

90 See, e.g., Schifter, note 43 supra.

91 Conference on Security and Co-operation in Europe: Final Act, Aug. 1, 1975, 73 Dep’t St. Bull. 323 (1975), reprinted in 14 ILM 1292 (1975).

92 73 Dep’t St. Bull, at 325.

93 Concluding Document of the Vienna Meeting, note 1 supra, at 533, para. 13(a).

94 Kampelman, Preface to Social and Economic Rights in the Soviet Bloc: A Documentary Review Seventy Years After the Bolshevik Revolution, at xi (Urban, G. ed. 1988)Google Scholar.

95 Id. at viii.

96 Urban, Introduction to Social and Economic Rights in the Soviet Bloc, supra note 94, at 3–4.

97 Id. at 4.

98 See notes 23–25 supra.

99 In his 1944 State of the Union Message, President Roosevelt used the following words to advocate the adoption by the United States of an “economic Bill of Rights”:

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not freemen.” People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

Among these are:

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 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.

All of these rights spell security. And after this war is won, we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

America’s own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world.

90 Cong. Rec. 55, 57 (1944).

100 See supra note 10.

101 Sohn, L. & Buergenthal, T., International Protection of Human Rights (1973)Google Scholar; and Lillich, R. & Newman, F., International Human Rights: Problems of Law and Policy (1979)Google Scholar.

102 The only book on the subject in English is Mower, A. G. Jr., International Cooperation for Social Justice: Global and Regional Protection of Economic/Social Rights (1985)Google Scholar. For a review of some of its shortcomings, see Forsythe, Book Review, 8 Hum. Rts. Q. 540 (1986). For an important contribution to the U.S. literature, see Trubek, Economic, Social and Cultural Rights in the Third World: Human Rights Law and Human Needs Programs, in 1 Human Rights in International Law: Legal and Policy Issues 205 (Meron, T. ed. 1984)Google Scholar [hereinafter Meron].

103 See, e.g., Johnson, Human Rights in Divergent Conceptual Settings: How Do Ideas Influence Policy Choices?, in Human Rights: Theory and Measurement 41 (Cingranelli, D. ed. 1988)Google Scholar (“Economic and social well-being may or may not be desirable governmental policy but it certainly is not ‘a right’ in any sense in which Americans have understood that term,” id. at 48; “emphasis on economic and social rights and duties . . . [is] antithetical to fundamental postulates of the American conception of human rights,” id. at 54); and McNitt, Some Thoughts on the Systematic Measurement of the Abuse of Human Rights, in id. at 89 (“There is a tendency for those on the left,” this writer says, “to include economic rights, income, health and physical conditions in their definition of human rights. We in the West [sic] live in a conservative society which defines human rights in legal and political terms. If we hope to influence that society we must adopt a similar restrictive definition,” id. at 92).

104 Symposium on Human Rights: An Agenda for the New Administration, 28 Va. J. Int’l L. 827 (1988).

105 Drinan, A Human Rights Agenda for the Next Administration, id. at 851, 854.

106 Livezey, L., Non–Governmental Organizations and the Ideas of Human Rights 89 (1987)Google Scholar. For a shorter version of the same study with a narrower focus, see Livezey, U.S. Religious Organizations and the International Human Rights Movement, 11 Hum. Rts. Q. 14(1989).

107 One rationalization for this position is reflected in the report of a conference involving a small number of American NGOs:

One participant felt strongly that it would be detrimental for U.S. human rights NGOs to espouse the idea of economic, social and cultural rights. Although they refer to important issues, they concern distributive justice rather than corrective justice, like civil and political rights. But distributive justice is a matter of policy, rather than principles; and human rights NGOs must deal with principles, not policies. Otherwise, their credibility will be damaged. Supporting economic demands will only undermine the ability of NGOs to promote civil and political rights, which are indispensable.

Rodríguez Bustelo, M. & Alston, P., Report of a Conference held at Arden House, in Harriman, N.Y., in 1986, at 28 Google Scholar (unpublished).

The most notable exception to the neglect of economic rights by American NGOs is the International League for Human Rights, whose President recently characterized U.S. human rights policy as being deeply flawed because it ignores economic and social rights. See Recent Developments in U.S. Human Rights Policy: Hearings Before the Subcomm. on Human Rights and International Organizations of the House Comm. on Foreign Affairs, 100th Cong., 2d Sess. 64, 65 (1988) (testimony of Jerome Shestack).

108 Lawyers Committee for Human Rights, 1988 Project: Human Rights and U.S. Foreign Policy: Report and Recommendations (1988).

109 Id. at 38.

110 In the past, the various Watch Committees have generally been reluctant to cite any of the United Nations human rights instruments as providing a legal foundation for their work. Nevertheless, a recent brochure describing the work of HRW stated:

Human Rights Watch evaluates the practices of governments according to standards that are recognized in international law. The principal international agreements that establish internationally recognized human rights include the Universal Declaration of Human Rights, adopted by the United Nations in 1948; the International Covenant on Civil and Political Rights adopted in 1966; the American Convention on Human Rights adopted in 1969; and the Helsinki accords, adopted in 1975.

Human Rights Watch, Questions and Answers 4 (ca. 1988). It is noteworthy that this statement follows the approach of the Reagan and Bush administrations in omitting reference to the International Covenant on Economic, Social and Cultural Rights. That Covenant has simply been “airbrushed,” as it were, out of the picture.

111 See Kirkpatrick, Establishing a Viable Human Rights Policy, in Human Rights and U.S. Human Rights Policy: Theoretical Approaches and Some Perspectives on Latin America 84 (American Enterprise Institute Studies in Foreign Policy, Wiarda, H. ed. 1982)Google Scholar.

112 Kristol, “Human Rights”: The Hidden Agenda, Nat’l Interest, Winter 1986/87, at 3, 6.

113 Higgins, The European Convention on Human Rights, in Meron, supra note 102, at 495, 497.

114 See supra note 102.

115 Assistant Secretary of State Richard Schifter put it in the following terms in testimony before Congress: “[I]n an ideal world it may very well be best for every country to ratify and abide by the Covenants. However, if one had to choose only one of these, it would be better to abide and not ratify, than to ratify and not abide.” Implementation of the Helsinki Accords: Hearing Before the Commission on Security and Cooperation in Europe, 100th Cong., 2d Sess. 10 (1988).