A New Strategy for Ratification

The substantive provisions of the International Covenant on Economic, Social and Cultural Rights, which claim that the social conditions for human dignity include the rights to work, food, health care and housing, might galvanize a constituency in support of US ratification. The fact that this has not yet happened does not mean it is impossible. Nonetheless, a realistic assessment of the prospects for ratification would suggest that the task is formidable. A number of hurdles have to be overcome.

First, there is a long history within the United States of supporting civil and political rights and disparaging the idea of economic, social and cultural rights. This argument is deeply embedded in both the Congress and the Department of State, and there is a vast corpus of supporting articles by lawyers, philosophers, columnists and social scientists. Philip Alston suggests that the issue is not "the actual extent to which economic, social and cultural rights are currently being enjoyed in the United States but, rather, the acceptability of using the notion of human rights (with whatever implications that may have) as one of the principal underpinnings of future American policy endeavors in this domain."(82) At issue is whether asserting economic and social rights by supporting the International Covenant on Economic, Social and Cultural Rights will result in greater recognition of these rights in the United States, either by successful ratification or in other ways.

In 1986 the Catholic Church in the U.S. called for "the development of a new cultural consensus that the basic economic conditions of human welfare are essential to human dignity and are due persons by right." It acknowledged, however, that "securing economic rights for all will be an arduous task."(83) Yet, many of the rights in the International Covenant on Economic, Social and Cultural Rights have been enacted into law in the United States. Moreover, the fears of socialist subversion and the use of treaties to force racial integration in the U.S. have proven unfounded. The process of globalization is making Americans more aware of the rest of the world, and the U.S. has begun to ratify major international human rights treaties.

Second, the reservations, understandings and declarations that have been attached to the human rights treaties ratified by the United States have set a noxious precedent. The government has to date limited the domestic applications of the treaties it has ratified to existing US law. This means that the United States is participating in the implementation of the treaties it has ratified without being held accountable to the international standards that these treaties assert. In the ratification struggle considerable pressure will have to be brought to bear on the President and on the Senate in order prevent reservations, understandings and declarations that in effect nullify the Covenant.

The strongest argument in this regard may be pointing to the hypocrisy of the US government by embracing human rights law to judge other nations while refusing at home to accept the same standards. U.S. citizens ought to be ashamed, and they ought to argue strenuously that the government put an end to this double standard. A related argument is that these rights are being defined through their implementation by the Committee on Economic, Social and Cultural Rights. If the United States wishes to be part of that process, in order to argue effectively in the international community for its own understanding of these rights, it needs to ratify the Covenant.

Third, it must be acknowledged that advocacy about economic and social issues in the United States has generally been about meeting human needs rather than securing human rights. It is evident that NGO advocates of human rights do not generally include the full range of economic, social and cultural rights in their assertions. This could be merely a practical consideration, but a study in 1987 of NGOs concluded that: "virtually no policy advocacy is undertaken in the name of economic rights, and although some of the organizations' literature has occasional references to the right to food or shelter, these are very few indeed. It is fair to say as a generalization—with too few exceptions to invalidate it—that the organizations of the international human rights movement [in the U.S.] do not interpret economic needs as rights."(84) I am not aware that this situation has improved in the 1990s.

Therefore, achieving US ratification of the International Covenant on Economic, Social and Cultural Rights will require convincing NGOs that ratification is an effective action to aid and empower women who have suffered from discrimination, children who have been neglected, the homeless, and the millions of Americans who cannot afford adequate health care under the present system. A broad coalition involving religious groups, labor organizations, and health and education associations was organized in support of the Convention on the Rights of the Child.(85) Can this coalition be persuaded that supporting ratification of the International Covenant on Economic, Social and Cultural Rights will achieve at least some of the gains for children, as well as others, that motivated support for the Convention on the Rights of the Child?

Fourth, NGOs that have collaborated in lobbying for ratification of human rights treaties must be convinced that it is the appropriate time to support ratification of the International Covenant on Economic, Social and Cultural Rights. At least until recently, the NGO Human Rights Treaty Ratification Working Group in Washington, DC has been committed to a schedule of support for ratification that gives priority to the Convention on the Elimination of All Forms of Discrimination Against Women and to the Convention on the Rights of the Child. Perhaps, given the strength of the opposition to these Conventions, the Working Group will now reconsider this NGO strategy.

The difference between the International Covenant on Economic, Social and Cultural Rights and the two Conventions that are so strongly opposed by a coalition of conservative Christian NGOs suggests an important reason for giving priority to ratification of the Covenant. Both of the Conventions are stalled largely because they are perceived by conservative Christians to undermine family values. Whatever one may think of that contention, the International Covenant on Economic, Social and Cultural Rights clearly affirms family values and thus may not elicit the vehement opposition that has surfaced in opposition to the Conventions protecting the rights of women and children.

Fifth, opponents to ratification of the International Covenant on Economic, Social and Cultural Rights have argued that the federal government should not interfere in this area of law, as education, health care, and other issues of public welfare are traditionally the concern of state governments. If ratification of the Covenant is understood to mean the assumption of responsibility for public welfare by the federal government, then state opposition to ratification is assured. But if authority for implementing the treaty is delegated to the states, then state governments might see ratification as a way of strengthening their hand vis-à-vis the federal government.

Such an approach to ratification would require that the treaty be self-executing and remain the responsibility of the federal government, in so far as reporting to the Committee on Economic, Social and Cultural Rights is concerned. But the standards and procedures for realizing the Covenant, at least in the first instance, could be left to the states. A strategy in support of this sort of ratification of the Covenant would rest on grassroots advocacy in each state. Governors and legislatures would be lobbied to pass resolutions supporting ratification. To mount such a campaign the support of NGOs with broad constituencies would be essential.

Sixth, US ratification of this Covenant or any human rights treaty will require strong political leadership from both the President and the Senate. Ratifying the International Covenant on Economic, Social and Cultural Rights will not be possible unless the President is strongly in favor of it. Moreover, to be successful there must be a change in the Senate and a new Chairman of the Senate Foreign Relations Committee. As long as Senator Helms remains in this powerful position, he will be able to thwart any attempt to ratify this Covenant or any other human rights treaty.

The results of the election in the autumn of 2000 were not encouraging, but a campaign to ratify the International Covenant on Economic, Social and Cultural Rights must anticipate a long and arduous struggle. Lobbying at the state level can begin once there is a clear strategy that key political leaders and major NGOs support.

There are persuasive moral, political and legal reasons to advocate for U.S. ratification of the International Covenant on Economic, Social and Cultural Rights. This analysis suggests that at least some of the arguments against ratification can be anticipated and rendered less effective by a careful choice of strategy.

bob@rtraer.com © Robert Traer 2016