Delegating Implementation of the ICESCR to the States

The International Covenant on Economic, Social and Cultural Rights raises questions for Americans not only because of the history of socialist advocacy on behalf of economic rights, but also because within the American federal system of law such rights are primarily the purview of states. Barbara Stark suggests that the federalist issue, if properly developed, may be used to support ratification of the Covenant. This new strategy builds on the fact that "economic rights" are well-established at the state level and argues that state governments might support U.S. ratification of the International Covenant on Economic, Social and Cultural rights, if the federal government gave states the primary responsibility of implementing the treaty.

Stark argues that state constitutions and courts have historically accepted at least limited notions of economic rights. The shift to the federal level came with President Roosevelt's New Deal and economic measures designed to solve the problems of the Depression. In the past thirty years the "New Federalism" has returned to the states substantial welfare responsibilities, and this has led to legislation and court decisions at the state level on public entitlements.

State courts have, in fact, recognized a broad range of [state] "constitutional" economic rights, finding that people are constitutionally entitled to free public education, welfare, affordable housing, health benefits, and abortions. The states, in trying to meet these obligations, have created benefit programs and agencies to administer them, which further legitimate and define emerging economic rights. Because of their traditional responsibilities, and the attendant institutional structures developed to meet them, the states have become the most promising source of economic rights in the 1990s.(78)

Of course, the rights asserted at the level of states have not always been adequately recognized in principle, or in practical state initiatives. Stark argues that, "The lack of adequate models—or methods for devising them—and the drastic reduction of financial support have left many states foundering, desperately seeking new approaches."(79)

Stark's creative proposal is ratification of the International Covenant on Economic, Social and Cultural Rights as a self-executing treaty with responsibility for compliance, at least in the first instance, delegated to the states.

Upon ratification, the Covenant would become directly binding on the states. State courts would decide whether state governments were meeting their obligations . . . and the substantive norms of the Covenant would basically be interpreted as if they appeared in the text of the state constitution. In some states . . . [the Covenant] would build on state constitutional jurisprudence, particularly in the areas of public education, welfare, and housing in which state courts have been most active.(80)

Those bringing claims to court would rely either on the state constitution or on the Covenant. Federal jurisdiction would be limited to establishing a minimum level of standards necessary for national compliance with the Covenant and, of course, to hearing challenges based on the U.S. Constitution.

The thrust of US policy to date concerning the ratification of human rights instruments has been, as Louis Henkin noted, to limit the effect of a treaty to issues of federal jurisdiction in order to assuage "states rights" sensibilities.(81) This raises the obvious question as to whether or not states would support the ratification of the International Covenant on Economic, Social and Cultural Rights under any circumstances. Even if states were given responsibility for implementing the Covenant, why would they support ratification? What benefits might ratification have for state governments?

Three possible arguments come to mind. First, although the federal government would remain responsible for reporting to the Committee on Economic, Social and Cultural Rights, states would have considerable freedom to work out how progressively to realize the standards of the Covenant. The framework of accountability under the Covenant is not a matter of enforcing a particular policy or program but of expecting and encouraging policies and programs that take reasonable steps. Furthermore, the Covenant acknowledges that the realization of economic rights is related to economic circumstances, which are not entirely under the control of governments. There is considerable room for states to argue that they are doing the best they can.

Second, if the Committee on Economic, Social and Cultural Rights was critical of the steps being taken by states to implement the Covenant, the responsibility for remedial action would rest on the federal government rather than on the states. This might actually help states put pressure on the federal government to fund programs administered by the states to realize the basic economic rights of American citizens.

The third reason why states might find this approach appealing is that the initiatives taken by states to comply with the provisions of the Covenant could be asserted as a defense in response to lawsuits brought in state courts against the state government. If a state were sued on the grounds that its realization of economic rights fell below the standards of the Covenant, certainly part of its defense would be the policies and programs it had initiated in order to fulfill the obligations imposed by the treaty.

Of course, state governments may well desire to be free of responsibilities for economic and social rights, but this is hardly an option available to them. The choice before state governments is what sort of legal framework will satisfy their citizens, their state constitutions, and the requirements imposed on the states by the federal government. Perhaps ratification of the International Covenant on Economic, Social and Cultural Rights, as a self-executing treaty with primary implementation delegated to the states, would have some appeal for state governments. If so, then an effective strategy for ratifying the Covenant would be garnering state support. © Robert Traer 2016