International Human Rights Law: Is the U.S. Lagging Behind?
By Katherine Haas, From Volume 1, Issue 2
One of the most notable developments of international law in the last few decades has been the establishment of a frame- work for enforcement of human rights.
Nations across the globe have agreed to adhere to hundreds of documents, including declarations, treaties, covenants, and conventions, that guarantee human rights to all. Although the U.S. has participated in this pro- cess, it has also opted out of some of the most important international human rights agreements, one of which is the International Covenant on Economic, Social and Cultural Rights (ICESCR). As the rest of the world has begun to ac- cept the indivisibility of human rights, the U.S. has lagged behind, refusing to recognize economic and social rights as legitimate. Although some very small steps of progress have been made in this area under the Obama administration, by refusing to ratify the ICESCR the United States contin- ues to hold back what could be a source of strength for the international human rights movement, allowing itself to be left behind by human rights promoters around the world.
Since the end of World War II, when the horrors of the ho- locaust led to a rise in the popularity and significance of the concept of universal rights, the touchstone for a concrete definition of that concept has been the Universal Declara- tion of Human Rights (UDHR). The Declaration, almost unanimously approved by the United Nations General As- sembly on December 10, 1948, was the product of a two- year drafting process in which all UN member states had the opportunity to contribute. No country voted against the Declaration, although several, namely Saudi Arabia, South Africa, and those of the Communist bloc, abstained.1 At the time of its adoption, many nations, including the Unit- ed States, spoke of the document in quite a laudatory fash-ion. Eleanor Roosevelt, then an official UN representative of the United States and chairwoman of the Human Rights Committee, expressed the hope that it would become “the Magna Carta of all mankind.”2 Since then, the Declara- tion’s moral authority has only increased. December 10 has been declared Human Rights Day, and claims such as that made on the Declaration’s 60th anniversary, that “the Dec- laration is universal, enduring and vibrant” abound.3
Among the almost universal praise given to the UDHR, which is indeed an important document and the guide for the work of many who wish to promote human rights, it is easy to forget that the Declaration is just that: a declaration. It is not a legally binding treaty. Although it was recognized that there would need to be such a treaty when the UDHR was written, a comprehensive, binding document never surfaced. Rather, the constituent rights of the UDHR were split apart and two separate treaties were created: the Inter- national Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). While the U.S. did ratify the IC- CPR in 1992 (almost 30 years after it was written), it has never ratified ICESCR.4 For the United States, half of the human rights expressed in the Declaration remain merely optional.
Part of the reason for this split is the notion that there are two separate classes of human rights. The first are civil and political rights. These rights make up the first half of the UDHR and constitute the ICCPR. They include things
like the right to life, the prohibition of slavery, torture, and arbitrary arrest, freedom of expression and freedom of religion, and equality before the law.5 These rights are fre- quently characterized as negative, meaning that rather than requiring governments to take certain actions, they require governments not to take actions. Under the provisions of the ICCPR, governments will not torture, will not violate freedom of expression, will not arbitrarily arrest their citi- zens. The second class of human rights is that of economic, social, and cultural rights. These are the rights contained in the second half of the UDHR, and in the ICESCR. They include things like the right to work and to a living wage, the right to form trade unions and to strike, the right to ad- equate food, clothing, and housing, the right to the highest attainable level of health, and the right to an education.6 Unlike civil and political rights, these rights are character- ized as positive. They require that governments take action to either provide for rights directly, or to create the condi- tions under which private entities can do so.
In ratifying the ICCPR but not the ICESCR, the United States demonstrates its approval of the concept that there are two different types of human rights and even refuses to acknowledge that economic and social rights are rights at all. This has been the case for some time. In 1948 Eleanor Roosevelt said “my government…does not consider that the economic and social and cultural rights stated in the Dec- laration imply an obligation on governments to assure the enjoyment of these rights by direct governmental action.”7 In February 2003 the United States showed that its opinion had not changed when it was the only member of the United Nations to vote against a resolution acknowledging “the right of everyone to have access to safe and nutritious food” and “the fundamental right of everyone to be free from hunger.”8 That the U.S. holds this position is usually explained by historical context. According to Jason Opeña Disterhoft, Demand Dignity Campaigner with Amnesty In- ternational USA, U.S. hostility toward economic and social rights “has a lot to do with the continuing legacy of the Cold War… and the demonization of our so-called enemies.”9
This dichotomized concept of human rights is far from the only popularly held view. There is another that runs counter to it, supported by human rights activists around the world. According to this theory, known as the indivisibility of hu- man rights, it is not possible for a person to fully enjoy one type of rights without enjoying the others. For instance, al- though one may supposedly enjoy the right to equality be- fore the law, if one lives in a village in a developing country, miles away from the legal services available in that country’s capital, and does not have enough money to pay for the bus fare to get there, does one really enjoy that right? In this case, the lack of the social or economic right to a decent
wage infringes upon the civil or political right of equality before the law. In another instance, although one may sup- posedly enjoy the social or economic right to safe working conditions, if one does not have the civil or political right of free expression, and thus cannot demand those rights in the case that they are violated, does one really enjoy the right to safe working conditions at all? Here, the lack of a civil or political right creates an inability to guarantee a social or economic right. From these and other examples, it can be seen that the legal division of human rights into two classes does not necessarily reflect the reality of how they are ex- perienced on the ground. To choose to validate one set of rights and not the other is, in many cases, to repudiate both.
There are many arguments that can be, and have been, made against the legitimacy of economic and social rights. One possible objection is that since the state’s resources are limited, it is unrealistic to saddle the government with the duty of providing a certain level of economic well being for each citizen. Another is that guaranteeing economic and so- cial rights would mean allowing the government to expand so much that it would inevitably infringe upon civil and po- litical rights. Though valid considerations, these objections are not forceful enough to outweigh the benefits that come from acknowledging that civil, political, economic, social, and cultural rights are indivisible, and should be guaranteed to all people.
For one, ratification of the International Covenant on Eco- nomic, Social, and Cultural Rights does not necessarily entail complete submission to every provision without com- ment. Reservations, understandings, and declarations can be made. The U.S. has already done this in the case of the ICCPR.10 Furthermore, Disterhoft points out that some of the ICESCR’s constituent rights, such as the right to an ed- ucation, are already effectively guaranteed in the U.S. Even for those rights that are not guaranteed in the U.S., such as health care, there is evidence that many Americans already believe they should be rights. According to a 2007 survey by the Opportunity Agenda, 72% of respondents strongly agreed that healthcare should be a human right.11
The biggest concern that most have with the ICESCR is that it would require drastic and immediate changes in gov- ernment policy. The text of the Covenant already guards against this, saying that the parties must “take steps” to- ward “achieving progressively” the rights listed.12 The U.S. could choose to make this even clearer by including with its ratification a declaration that it considered the treaty as a statement of “the obligation to promote rather than an im- mediate legal commitment to perform,” something that the State Department recommended when President Carter first submitted the Covenant to the Senate for ratification in the late 1970s.13 Finally, it is not as if ratifying the ICESCR is something that is unheard of among developed democra- cies, or for that matter, any type of nation. One hundred and sixty countries, including Canada, Ireland, France, Germany, and the United Kingdom, are legally bound by the document. In not ratifying the ICESCR, the U.S. is in many ways the odd one out.
The fact that the U.S. is one of only a handful of nations that will not ratify the ICESCR also means that it risks its own legitimacy as a human rights promoter. Distherhoft believes that “the U.S. is being left behind when it comes to the human rights movement.”14 Around the world it is rapidly becoming the case that “it’s just intuitive that the two sides of the UDHR are indivisible.”15 Economic and social rights are being acknowledged and promoted, with or without U.S. approval. As Disterhoft puts it, “Civil society around the world is not waiting for U.S. ratification.”16 It is true that some progress has been made under the Obama Administration. For instance, in an interview with the Wall Street Journal, Secretary of State Hillary Clinton publicly called several economic and social rights, including “the right to a good job and shelter over your head and a chance to send your kids to school and get health care when your wife is pregnant,” human rights.17 Although such a signal is certainly a step in the right direction, it is far from ratifica- tion of the ICESCR, something that is still unlikely to happen in the near future.
Ratifying the ICESCR would have benefits not only for the U.S. and its citizens who are currently denied their economic and social rights, but also for people around the world fight- ing for those same rights. The fact that a nation as powerful and significant as the United States is not bound by the IC- ESCR significantly weakens the Covenant, and prevents it from reaching its full potential. The United States is certain- ly not the only nation to blame for the severing of political and civil rights from economic and social ones, nor is it the only nation which could do a great deal to change that situ- ation. Notably, although China is a party to the ICESCR, it has refused to ratify the ICCPR. But the fact remains that while the U.S. is supposedly a world leader in the area of hu- man rights, it still denies that half of the rights contained in the Universal Declaration are rights at all. With the simple act of ratifying ICESCR, it could make a significant con- tribution to promoting human freedom and dignity around the world.
1For a detailed account of the drafting and voting process, see Johannes Morsink, The Universal Declaration of Hu- man Rights: Origins, Drafting, and Intent (Philadelphia:
University of Pennsylvania Press, 199)
2U.N. GAOR, 3rd Sess., 180th plen. mtg. at 862, U.N. Doc. A/PV.180 (1948)
3“Human Rights Day: Justice and Dignity for All,” United Nations, accessed January 8, 2011, http://www.un.org/ events/humanrights/2007. 4United Nations Treaty Collection, available at http://trea- ties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en
5International Covenant on Civil and Political Rights, 16 December 1996, Arts. 6, 8, 7, 9, 19, 18, 14, Office of the United Nations High Commissioner for Human Rights, http://www2.ohchr.org/english/law/ccpr.htm
6International Covenant on Economic, Social, and Cul- tural Rights, 16 December 1996, Arts. 6, 7, 11, 12, 13, Of- fice of the United Nations High Commissioner for Human Rights, http://www2.ohchr.org/english/law/cescr.htm
7Eleanor Roosevelt, Statement to the United Nations General Assembly on the Universal Declaration of Hu- man Rights,9 December 1948, available at http:// www.gwu.edu/~erpapers/documents/displaydoc.cfm?_ t=speeches&_docid=spc057137.
8U.N. General Assembly, 58th Session, “Resolution 186 (2003) [The right to food]” (A/RES/58/186). Text available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/ N03/505/74/PDF/N0350574.pdf?OpenElement. Voting record available at http://unbisnet.un.org:8080/ipac20/ ipac.jsp?profile=voting&index=.VM&term=ares57226.
9Jason Disterhoft, interview with the author, January 11, 2011
10For full text of Declarations and Reservations, see UN Treaty Collection, http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 4&chapter=4&lang=en#EndDec
11“Human Rights in the United States,” Belden, Rus- sonello & Stewart for The Opportunity Agenda, August 2007, http://opportunityagenda.org/files/field_file/ Human%20Rights%20Report%20-%202007%20pub- lic%20opinion.pdf, p. 14.
12International Covenant on Economic, Social, and Cultur- al Rights, 16 December 1966, Art. 2 Sec. 1, Office of the United Nations High Commissioner for Human Rights, http://www2.ohchr.org/english/law/cescr.htm
13Robert B. Owen, Statement to the Senate Committee on Foreign Relations, International Human Rights Treaties, Hearings, 14, 15, 16, and 19 November, 1979, at 28.
14Jason Disterhoft, interview with the author, January 11, 2011.
15Jason Disterhoft, interview with the author, January 11, 2011.
16Jason Disterhoft, interview with the author, January 11, 2011. 17Matthew Kaminski, “The Hillary Doctrine,” The Wall Street Journal, 14 August 2009, http://online.wsj.com/ article/SB10001424052970203863204574348843585706 178.html.