At Last? Ratification of the Economic Covenant as a Congressional-Executive Agreement

• Author: Barbara Stark
• Position: Professor of Law and John Dewitt Gregory Research Scholar, Hofstra Law School
• Pages: 107-142

At Last? Ratification of the Economic Covenant as a

Congressional-Executive Agreement

Barbara Stark*

I. INTRODUCTION ......................................................................................... 107

II. THE ECONOMIC COVENANT AND ECONOMIC, SOCIAL, AND CULTURAL

RIGHTS IN THE UNITED STATES .................................................................. 110

A. Origins ............................................................................................. 110

B. The State’s Obligations .................................................................. 112

1. Self-Determination (Article 1) ................................................ 113

2. General Provisions (Articles 2–5) .......................................... 114

3. Substantive Obligations (Articles 6–15) ................................ 116

4. Monitoring (Articles 16–25) ................................................... 125

5. Ratification .............................................................................. 125

C. Why the United States Should Ratify the Economic Covenant .... 126

1. Ratification Is Practical .......................................................... 127

2. Ratification Is the Right Thing to Do .................................... 129

D. Obstacles to Ratification ................................................................ 130

III. THE ECONOMIC COVENANT SHOULD BE RATIFIED AS A

CONGRESSIONAL-EXECUTIVE AGREEMENT ................................................. 133

A. The United States’ History Regarding Human Rights ................. 133

B. Why a Congressional-Executive Agreement? ................................. 135

C. A National Floor for Economic Rights .......................................... 136

D. Economic Rights Are Justiciable ................................................... 141

IV. CONCLUSION .......................................................................................... 142

I. INTRODUCTION

The Obama Administration has signaled a sea change for human rights

in the United States. Treaties moribund for decades have been revived. The

Administration, for example, has advised Senator John Kerry, Chair of the

Senate Foreign Relations Committee, that it “supports action at this time on

the Convention on the Elimination of All Forms of Discrimination Against

* Professor of Law and John Dewitt Gregory Research Scholar, Hofstra Law School. I am deeply

grateful to Hofstra Law School for its generous support; to the international reference librarian

Patricia Kasting and law student Meggan Johnson for invaluable research assistance; and to

Sharisse Carter for her skill and patience in preparing the manuscript.

108 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 20:107

Women.”1 But the same letter states: “The Administration does not seek

action at this time” on the International Covenant on Economic, Social, and

Cultural Rights (“Economic Covenant”).2 The Economic Covenant, along with

the International Covenant on Civil and Political Rights (“Civil Covenant”)3

and the Universal Declaration of Human Rights,4 comprise the International

Bill of Rights. This Article examines the legal, historical, and practical

reasons for the Obama Administration’s reluctance to “seek action” on the

Covenant and explains why, despite these reasons, it should. Indeed, the

United States has never needed the Economic Covenant more.

Part I introduces the Economic Covenant and explains why the United

States should ratify it. The Covenant is a straightforward exposition of

Franklin D. Roosevelt’s “freedom from want,”5 an international instrument

setting out what he referred to as the “Second Bill of Rights.”6 It requires

nation-states to recognize the rights of their people to the basic necessities of

life, including work, an adequate standard of living, education, health, and

social security.7 Every industrialized democracy except the United States has

ratified it.8

Domestically, the Covenant resonates with the ground-breaking

initiatives of the Obama Administration for universal healthcare, job-

1 Letter from Richard R. Verma, Assistant Sec’y of Legislative Affairs, to the Hon. John F. Kerry,

Chairman of the Comm. on Foreign Relations (May 11, 2009), available at

http://www.gc.noaa.gov/documents/gcil_bd_2009TreatyPriorityList.pdf.

2 Id.; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21

U.N. GAOR Supp. No. 16 at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, 6 I.L.M 368 (1967)

(entered into force Jan. 3, 1976) [hereinafter ICESCR], available at

http://www2.ohchr.org/english/l aw/pdf/cescr.pdf.

3 On April 2, 1992, the United States ratified the Civil Covenant. For the text of the Resolution of

Ratification, see International Covenant on Civil and Political Rights, Apr. 2, 1992, G.A. Res.

2200A (XXI), 21 U.N. GAOR Supp. No. 16 at 52, U.N. Do c. A/6316 (1966), 999 U.N.T.S. 171, 6

I.L.M. 368 (1967) (entered into force Mar. 23, 1976) [hereinafter ICCPR], available at

http://www2.ohchr.org/english/law/ccpr.htm.

4 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, pt. 1, U.N. Doc. A/810, at 71

(Dec. 10, 1948) [hereinafter Universal Declaration]. The United States signed the Declaration in

1948. Id.

5 THE STATE OF THE UNION MESSAGES OF THE PRESIDENTS, 1790–1966 2855, 2860 (Fred L. Israel

ed., 1966). In his 1944 State of the Union Message, President Roosevelt elaborated on the

substance of "freedom from want," stating that it included “[t]he right to a useful and

remunerative job . . . [t]he right of every family to a decent home . . . [t]he right to adequate

medical care . . . [t]he right to adequate protection from the economic fears of old age, sickness,

accident, and unemployment; [t]he right to a good education.” Id. at 2875, 2881.

6 See generally CASS SUNSTEIN, THE SECOND BILL OF RIGHTS (2004).

7 ICESCR, supra note 2, art. 11 (standard of living), art. 13 (education), art. 12 (health), art. 9

(social security).

8 Status . . . International Covenant on Economic, Social and Cultural Rights, UNITED NATIONS

TREATY COLLECTION,

http://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&lang=en&mtdsg_no=IV-

3&src=TREATY#EndDec (last visited Feb. 22, 2011).

Spring 2011] AT LAST? 109

creation, educational reform, and expanded benefits for the most vulnerable.9

Abroad, the Covenant’s ratification would contribute to the “restoration” of

America’s reputation as a champion of human rights.10

The two major obstacles to ratification are the Tea Party and Goldman

Sachs. The angry group of “patriots” and the financial services superstar are

stand-ins, of course, for right-wing ideologues and the ultra-rich, who have

not only grown fatter during the current famine, but now have the additional

security of being “too big to fail.”11 This Article uses stand-ins to give them a

human face and bring them down to human scale. The Covenant faces

difficult, but not insurmountable, obstacles. Ratification is no more

improbable than the election of a black president.

Part II explains why the United States should not only ratify the

Economic Covenant, but ratify it as a congressional-executive agreement.

This is contrary to the past practice of ratifying human rights treaties as

“non-self-executing” Article II treaties.12 As a result, the human rights

treaties that the United States has already ratified are unenforceable in

domestic courts.13 They do not become part of domestic law until and unless

legislation implements them. 14 No legislation has been enacted to implement

the Civil Covenant or the Convention on the Elimination of All Forms of

9 See Health Reform in Action, WHITE HOUSE, http://www.whitehouse.gov/healthreform (last

visited Oct. 31, 2010); The Recovery Act, WHITE HOUSE, http://www.whitehouse.gov/recovery (last

visited Oct. 31, 2010); Education, WHITE HOUSE, http://www.whitehouse.gov/issues/education

(last visited Oct. 31, 2010). See generally Civil Rights, WHITE HOUSE,

http://www.whitehouse.gov/issues/civil-rights (last visited Oct. 31, 2010); Poverty, WHITE HOUSE,

http://www.whitehouse.gov/issues/poverty (last visited Oct. 31, 2010); Seniors & Social Security,

WHITE HOUSE, http://www.whitehouse.gov/issues/seniors-and-social-security (last visited Oct. 31,

2010).

10 Harold Koh, former Dean of Yale Law School, now Legal Adviser to the State Department, has

emphasized the importance of this restoration. Harold Koh, Restoring America’s Human Rights

Reputation, 40 CORNELL INT’L L.J. 635 (2007). As he recently observed:

Today, a vast majority of our allies believe that our policies on Guantánamo

are illegal. And a recent foreign policy survey showed that many Americans

believe that the ability of the United States to achieve its foreign policy goals

has decreased significantly over the last few years and that improving

America's standing in the world should become a major goal of U.S. foreign

policy.

Harold Koh , Repairing Our Human Rights Reputation, 31 W. NEW ENG. L. REV. 11, 12 (2009).

11 David Cho, Banks “Too Big to Fail” Have Grow n Even Bigger, WASH. POST, Aug. 28, 2009,

available at http://www.washingtonpost.com/wp-

dyn/content/article/2009/08/27/AR2009082704193.html.

12 Lori Fisler Damrosch, The Role of the United St ates Senate Concerning “Self-Executing” and

“Non-Self-Executing” Treaties, 67 CHI.-KENT L. REV. 515, 519–23 (1991).

13 Id.

14 See generally RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §

111 (1987).