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 25) .......................................... 114
3. Substantive Obligations (Articles 615) ................................ 116
4. Monitoring (Articles 1625) ................................................... 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, 17901966 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 restorationof
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 INTL 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, 51923 (1991).
13 Id.
14 See generally RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §
111 (1987).

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