Would Ratifying the ICESCR Restore America’s Leadership on Human Rights Advancement?
By Martha Davis and Stephen Hopgood. If you enjoy this piece, you can read more Political Pen Pals debates here.
Ratifying the ICESCR Benefits the United States Both Domestically and Internationally
By Martha Davis – Distinguished Professor of Law, Northeastern University School of Law
For more than forty years, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) has languished somewhere in a dusty filing cabinet in the Senate Foreign Relations Committee. The ICESCR was signed by President Carter in 1977 and he promptly forwarded it to the Senate for its advice and consent, but there has been no action on the pending treaty since 1979.
The ICESCR is one of three core documents of the International Bill of Rights. The others – the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) – have long been accepted as setting meaningful human rights standards for the U.S. In 1948, the U.S. joined other UN members in unanimously endorsing the UDHR, and in 1992, the U.S. ratified the ICCPR, which focuses on rights such as freedom from torture and fair government procedures. The ICESCR, addressing rights to health, food, housing, education, and labor rights, continues to wait for its day in the Senate.
There are good reasons for that day to come soon, and fewer and fewer reasons for the U.S. to continue to exempt itself from the ICESCR’s commitments.
International Dialogue and Human Rights
The need for open, international dialogue around economic, social, and cultural (ESC) rights has never been greater, heightened by global threats such as climate change and the COVID-19 pandemic. The standards set out in the ICESCR are important backstops at a time when fundamental human rights might be compromised in the interests of expediency or in service of the powerful. This is exemplified by the ongoing need to promote more equitable distribution of COVID vaccines or the global challenge of dealing with climate migration. While U.S. ratification of the ICESCR would not resolve these issues, it would put the U.S. at the table when the 170+ parties to the ICESCR are implementing policy on these contemporary issues that impinge on equal enjoyment of critical ESC rights worldwide.
Restoring U.S. Credibility
Additionally, as a party to the ICESCR, the U.S. would not only be at the table, but would be in a position to exercise leadership. The Committee on ESC Rights, which monitors country compliance with the ICESCR, consists of experts elected from among member nations. Upon ratification, the U.S. can nominate a member for the committee. Through ratification, the U.S. will gain a stronger position as a voice for human rights internationally. Instead of being accused of hypocrisy for criticizing others while failing to adopt the full range of human rights commitments for its own people, the U.S. could model ESC rights engagement and implementation for other UN member states. This opportunity should be particularly attractive as the U.S. is trying to restore its credibility in international human rights circles after the international withdrawals of the Trump years.
U.S. Obligations Would Expand to Require “Progressive Realization”
These positives arising from US ratification are available at low cost to the U.S. In short, this is low-hanging fruit. President Carter’s signature on the ICESCR already obligates the U.S. to refrain from taking acts that would undermine the purposes of the treaty. As a party to the treaty, the U.S. obligations would expand to require “progressive realization” of the rights in the Covenant. Improvements, over time, in feeding and housing our people, expansions in access to health care, and increasingly humane working conditions, are already key parts of a good government agenda in the U.S., federally and state-wide. Arguably, the U.S is already implementing ESC rights even without ICESCR ratification, offering real benefits to people in terms of health and well-being. If that is true, the U.S. is putting in the work but forgoing half of the reward. Ratifying the treaty, with the opportunities that it provides for showcasing U.S. progress on the international stage and engaging in dialogue about global challenges, would only enhance these ongoing efforts.
Relationship Between the State and Federal Government
In ratifying the ICESCR, the U.S. would not need to accept those parts of the treaty that are inconsistent with our existing law, provided that any exemptions from the treaty’s terms do not go against its core purposes. In ratifying other human rights treaties such as the ICCPR, the U.S. explained that under our federal system, certain policy areas are reserved to state governments. Ratification would not alter the federal-state balance around economic, social, and cultural rights. Instead, the treaty would provide a further basis for dialogue and collaboration between the local, state, and federal governments in their work to realize those rights.
New Domestic Causes of Action
Finally, current domestic law also indicates that ratification of the ICESCR would not create new domestic causes of action in U.S. courts. Advocates could use ICESCR standards to push for greater recognition of these rights domestically. Without additional congressional legislation, plaintiffs would not be able to bring direct claims in domestic courts. The impacts of treaty ratification would be positive but indirect, and would not upset existing domestic enforcement mechanisms.
In the past, the U.S. government has taken the position that ESC rights are just aspirational goals that should not be mistaken for actual rights. However, in 2021, that position is simply untenable. Economic and social rights, like the right to education, have been reviewed and enforced by our own state courts, and foreign courts like the South African Constitutional Court have developed workable approaches to addressing the rights to housing and to medicines. More than two generations after President Carter’s signature on the treaty, the time has come to free the ICESCR from the U.S. Senate’s storage area and bring it into the sunlight for debate and ratification. The upsides for the U.S. in terms of human rights leadership both internationally and domestically are great, while the domestic costs given the current U.S. law are slim to none.
In Response To Martha Davis
By Stephen Hopgood – Emeritus Professor of International Relations at SOAS, University of London
It’s not difficult to understand why human rights advocates and scholars want the United States to ratify the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Relentless forward momentum — a sense that we are always making progress — has been a mainstay of the human rights movement from its inception. Stasis, retrenchment, and decline are not an option. The model for this narrative of human rights progress was established in the 1970s: highlight an abuse, turn it into a violation by embedding it in international law, use campaigns and data to shame states into meeting their new legal obligations, and then move on to legalize the next right.
This strategy has been wildly successful at embedding a human rights culture in a few liberal-democratic societies and within some parts of the global normative discourse. The achievements of those arguing for women’s rights, LGBTQ rights, disability rights, and more, are unthinkable without the wider cultural changes — in which human rights-like ideas were key — that expanded the circle of empathy and compassion, beginning in previous centuries. Although I have been one of those skeptical about how well this has worked to stamp out human rights abuses, many distinguished scholars have made powerful claims with data to explain how this approach works to improve human rights outcomes. So, why would I argue that getting the Senate to ratify the ICESCR is a mistake?
A Strategy Out of Step with Current Events
Firstly, even if we grant that some conventions have been broadly successful at changing state practice — let’s say, the torture convention, despite the U.S.’s recent lapse — the attempt to improve people’s economic and social wellbeing through the use of a global rights convention is a much more difficult ask. In the West, the core constituencies supporting human rights advocacy domestically and internationally are the middle classes, often by funding and working for human rights organizations. If these supporters really want to change the economic and social well-being of their fellow citizens in the United States, they already have the perfect means of doing it: elect Bernie Sanders. They can also spend their time and money trying to protect the Democrats’ Senate and House majorities and cajoling Joe Manchin and Krysten Sinema to get with the program.
This targets the core area of contestation within modern liberal democratic politics: the production and distribution of the benefits of economic activity through tax, healthcare, affordable housing, unemployment benefits, schooling, and so on. The American middle class is under pressure like never before, with its own position in the rapidly digitizing and globalizing economy profoundly uncertain. Given that liberal, progressive, pro-democratic voices have struggled in recent years to implement radical redistributive agendas, what reason is there to think that ratifying the ICESCR will do anything to better the economic prospects of the marginalized in American society?
Think of the fight over something like the Affordable Care Act. While the provision of universal health coverage is a no-brainer in Western Europe, it is intensely controversial in the world’s richest industrial democracy. Which politician engaged in this struggle for the soul of America, with Donald Trump waiting in the wings to run in 2024, is going to start waving the ICESCR around as an argument that the United States should improve the economic well-being of ordinary Americans? Not one. Not only would it have no resonance within U.S. domestic politics, but it would also be attacked as another example of the “experts” — in this case, human rights lawyers, activists, and scholars — seeking to use international law to rob regular Americans of their sovereignty and their birthright. This plays into the Senate’s historical narrative about human rights treaties going back at least to the Bricker Amendment.
The International Covenant on Civil and Political Rights proved easier to ratify (by the US Senate in 1992) because it mirrored the image Western democracies like the United States had of themselves as the guardians of fundamental political freedoms. Economic freedoms were to be left to the market. Even in ratifying the ICCPR, the Senate attached a Reservation designed to prevent the ICCPR from being self-executing, significantly raising the legal bar for successful cases. The ICESCR was viewed much more — on the Republican Right in the United States — as a stealthy way for the Left to inveigle itself into capitalist societies. One might even argue that while progressive forces within the United States have been busy trying to make the world a better place, they’ve taken their eye off the ball domestically. Trump, the 6-3 Conservative majority on the Supreme Court, and blatant attempts to subvert democracy in Texas to prevent the majority from prevailing is where the focus should be.
A Potential Bridge to Nowhere
Second, there have been concerns within the human rights world itself about the extent to which Economic, Social, and Cultural rights are anything more than just nice things to have. This was particularly the case in the 1960s and 1970s. Human Rights Watch was reluctant for many years to take on ESC rights, considering them to be desirable but not the proper focus for a legally-oriented shaming strategy. This leaves aside the complex question of what cultural rights are, whether they can be justiciable at all without being converted into other rights — e.g., freedom of expression — to be litigated, as well as what happens when they clash with individual rights, as with many religious and traditional practices. Some scholars have argued that the ever-widening panoply of rights claims weakens their impact, while Amnesty International has recently appointed Agnès Callamard as its new Secretary-General, someone whose background is in civil and political rights.
Lastly, all of this would be enough to make anyone skeptical about ratifying the ICESCR, but there’s a further twist. Human rights are, to adopt language I have used elsewhere, past their sell-by date. At the international level, various developments make future legal and political progress unthinkable. Of these, the most important is simply that the United States’ unipolar moment came to an abrupt halt around 2011. Not only did 9/11 draw the U.S. into traditional great power warfighting, leading it down the path to Guantanamo and torture, but the rise of China to political near parity with the U.S. turned the hope for human rights into a faded dream. The world is now functionally bipolar in terms of who throws its muscle around and China, even as it must discover the cost effectiveness of using soft power to get its way (rather than threatening everybody all the time with dire consequences), is not going to reverse itself and embrace the human rights framework to discipline sovereign nations in the language of liberal individualism. Russia is only the foremost middle-range power hiding behind China’s diplomatic umbrella. Ratifying the ICESCR is an afterthought to an afterthought.
Fighting the battle of democracy in the United States and defeating Donald Trump in 2024, for example, is far more important than any good that ratifying the ICESCR might do. Only in this way can the United States hope to be a beacon for progressive values that will shine a light on growing authoritarianism elsewhere.
This article is part of Divided We Fall’s “Civility Without Borders” series, covering a range of topics fundamental to U.S. foreign policy. Through this series, we ask scholars, journalists, government officials, and activists to discuss the most pressing issues in international affairs. If you want to read more pieces like this, click here.
Martha Davis
Martha Davis is University Distinguished Professor of Law at Northeastern University, where she is a faculty co-director of the Program on Human Rights and the Global Economy. Her scholarly work focuses on local human rights implementation, particularly in the United States. Among other publications, she is the co-author, with Risa Kaufman and Johanna Kalb, of the textbook Human Rights Advocacy in the United States.
Stephen Hopgood
Stephen Hopgood is Emeritus Professor of International Relations at SOAS, University of London. He is the author of, Keepers of the Flame: Understanding Amnesty International and The Endtimes of Human Rights. He co-edited Human Rights Futures, with Jack Snyder, and Leslie Vinjamuri, which included his chapter, “Human rights on the road to nowhere.” He is also the author of, “When the music stops: Humanitarianism in a post-Liberal world order,” Journal of Humanitarian Affairs., v1, no1, (2019), “For a fleeting moment: The short, happy life of modern humanism,” in Michael Barnett (ed.) Humanitarianism and Human Rights: A World of Differences?, and “Human rights after the West: Goodbye to all that,” in Thomas G. Weiss and Rorden Wilkinson (eds.) Global Governance Futures.
