At last? Ratification of the Economic Covenant as a congressional-executive agreement. (A Critical Juncture: Human Rights & U.S. Standing in the World Under the Obama Administration)

 I. INTRODUCTION                                                  107 II.THE ECONOMIC COVENANT AND ECONOMIC, SOCIAL, AND CULTURAL      110 RIGHTS IN THE UNITED STATES     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                   133 CONGRESSIONAL-EXECUTIVE AGREEMENT     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 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 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 Racial Discrimination ("Race Convention"). (15) Even if some of the substantive rights set out in these treaties are assured under domestic law, accordingly, this may leave the United States in violation of international law since anything the treaty requires that does not happen to coincide with existing U.S. law will be unenforceable.

Ratifying the Economic Covenant as a non-self-executing treaty would indisputably leave the United States in violation of international law. Unlike the Race Convention and the Civil Covenant, (16) the Economic Covenant does not reinforce rights already well-established in American jurisprudence. Ratifying the Economic Covenant as a non-self-executing treaty, therefore, would leave the United States without any federal minimum standard for those rights, which is in clear violation of its international obligations.

II. THE ECONOMIC COVENANT AND ECONOMIC, SOCIAL, AND CULTURAL RIGHTS N THE UNITED STATES

Economic, social, and cultural rights refer to a range of affirmative obligations that a state owes its own people, from the assurance of basic needs (such as food, shelter, and healthcare) to access to education and decent jobs. (17) These are not merely aspirations or policy objectives; they are legally recognized claims that an individual has against a state. The Economic Covenant does not require a particular form of economic organization. (18) Free market economies like the United States, as well as those of Western Europe, are fully compatible with its basic principles.

This Part begins by setting out the origins of economic rights. It then explains each article of the Economic Covenant and how each relates to existing U.S. laws, as well as to existing American needs. This Part then explains why the United States should ratify the Covenant and concludes by addressing the admittedly formidable obstacles to ratification.

A. Origins

The underlying notion of economic rights--that no one should suffer from want or deprivation when others have the means to prevent it, or that a community should take care of its own--can be traced to the earliest teachings of the world's major religions. (19) The religious idea of charity, however, was the obligation of one individual to another, rather than the obligation of the State to an individual. (20) It was voluntary, and if the donor declined to give, the donee had no legal claim or entitlement. (21) But the recognition that the poor, the sick, the very old, and the very young have some claim against the larger community is a widespread norm.

(15) International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195, available at http://www.unhcr.orgirefworldidocid/3ae6b3940.html. In a declaration accompanying its ratification, the Senate noted that "existing U.S. law generally complies with the Covenant; hence, implementing legislation is not contemplated." S. REP. No. 102-23 (1992), reprinted in 31 I.L.M. 645, 657.

(16) See id.

(17) ICESCR, supra note 2, at 11-12.

(18) Id.

(19) See Isaiah 58:6-8; 2 Corinthians 9:7; 9:60 The Qur'an; JEANNE WOODS & HOPE LEWIS, HUMAN RIGHTS IN THE GLOBAL MARKET PLACE 45 (2006). Similarly, Buddhism has historically advocated that alms be given for religious purposes, including care of the poor. THE CALCUTTA REVIEW (E. Lethbridge ed., 1876).

Economic rights can be traced more recently to the 18th Century Enlightenment philosophers. The notion that the vulnerable had a claim against the State is grounded in the work of Jean-Jacques Rousseau (22) and appears in the French Declaration of the Rights of Man and of the Citizen (23) and the French Constitution of 1791. (24) Economic rights became part of the modern welfare state in the late 19th century, when the arch-conservative Otto von Bismarck established basic health insurance and social security in Germany to preempt the appeal of socialism. (25)

There are several references to human rights in the United Nations Charter, drafted in 1945. (26) Although the Charter is a legally binding treaty, the specific obligations that it imposes are unclear. The Universal Declaration, (27) drafted in 1948, is more specific, but it was originally intended as an aspirational statement. (28) It was expected that a legally binding instrument based on the Universal Declaration would be drafted, but the Cold War precluded agreement about rights in general, and economic rights in particular. Instead, two covenants were drafted in the 1960s. The legally binding Civil Covenant and Economic Covenant are multilateral treaties under which ratifying states ensure the human rights of their own people.

The bifurcation of rights into two covenants was further justified by the differences in "the nature of the legal obligation and the systems of supervision that could be imposed." (29) The Civil Covenant addresses negative rights, such as freedom of religion and freedom from arbitrary arrest or detention. (30) The Economic Covenant addresses positive rights, such as the right to health and the right to education. (31) Both kinds of rights are considered interdependent and equally important. (32)

While it is a mistake to overstate the distinction between positive and negative rights, law that prescribes and law that prohibits usually require different approaches. The states accordingly agreed to "recognize" economic rights, which would be achieved through "progressive realization," while at the same time agreeing that the civil and political rights set out in the Civil Covenant were to be implemented immediately. (33) There are exceptions. Article 2 of the Economic Covenant, for example, prohibits discrimination. (34) Courts can certainly decide if a particular group is being discriminated against in housing or education. (35) While the Civil Covenant assures a right to a trial for those accused of crimes, if there is no functioning judicial system in a particular state, that right can only be realized "progressively." (36) In general, however, the bifurcation of rights is justified on practical and functional grounds.

B. The State's Obligations

The Economic Covenant begins with a preamble, rooting it in the U.N. Charter and the Universal Declaration, followed by thirty-one articles. (37) It is divided into five parts, as is this section. Part I of the Covenant consists solely of Article 1, setting out the right to self-determination. Part II, consisting of Articles 2-5, explains how the substantive obligations set out in Part III are to be met. Part III, consisting of articles 6-15, sets out the actual substantive obligations that the State assumes. Part IV explains how implementation of the Covenant is monitored and Part V sets out the procedures for ratification, accession, and amendment.

This section explains each article of the Economic Covenant and provides examples of state compliance, which are drawn from programs already in effect in the United States. The United States does not seek to comply with the Covenant through these programs, of course, since the United States is not yet a party. (38) The point of these examples is to show that the norms of the Covenant are, in fact, norms that are widely accepted in the United States. Most Americans do not want mentally ill people to sleep on the street or children to go hungry. That the United States has taken some measures to address these matters does not mean that it does not need to ratify the Covenant, however. The measures the United States has taken are too often uncoordinated, haphazardly supported, and easily revoked. (39) The Covenant provides a much-needed framework for a secure safety net, a solid floor.

1. Self-Determination (Article 1)

Article 1 of the Economic Covenant provides that: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." (40) The same right is set out in the Civil Covenant, (41) emphasizing its importance and its multifaceted character as a civil, political, and an economic right. Since the United States has already ratified the Civil Covenant that sets out the same obligation, in theory, ratification of the Economic Covenant would not give rise to any new claims. (42)

While self-determination originally referred to the right of peoples in colonial states to be free of their colonizers, the right has more recently been asserted by members of groups, such as ethnic minorities, within states against their own governments. (43) This is more problematic, since these groups' secession may threaten the integrity, if not the very existence, of the state itself. (44) While some have suggested that the right of self-determination only applies against foreign states, (45) the Human Rights Committee has affirmed the applicability of this Article outside of the decolonization context. (46)

The Obama Administration has already taken steps to address long-pending claims of Native Americans. A settlement agreement has recently been announced in a thirteen-year-old class action lawsuit, Cobell v. Salazar. (47) "The lawsuit claims that the federal government mismanaged individual Indians' trust accounts. (48) Under the terms of the settlement, the federal government will create a $1.4 billion Accounting/Trust Administration Fund and a $2 billion Trust Land Consolidation Fund. (49) The settlement also creates an Indian Education Scholarship fund of up to $60 million to improve access to higher education for Native Americans. (50)

In addition, in December 2009, the Senate Committee on Indian Affairs approved the Native Hawaiian Government Reorganization Act of 2009, (51) clearing the way for the full Senate's consideration. The Act makes clear that Native Hawaiians should have the same opportunities (52) for self-determination as other indigenous peoples in the United States. (53)

Ratification of the Economic Covenant would provide broad legal support for Cobell-type claims, as well as Hawaiian-type legislative reform. It would also enable the United States to participate in shaping the emerging international jurisprudence of self-determination.

2. General Provisions (Articles 2-5)

Articles 2-5 of the Covenant are general provisions that apply to the substantive rights addressed in Articles 6-15. Article 2 establishes the standard to which a state will be held. The state "undertakes to take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights" set out in the Covenant. (54) Thus, the state is not expected to immediately assure the rights that follow. At the same time, the state is required to "take steps" to demonstrate some progress toward realizing the right. (55) As clarified in the guidelines, this has two concrete requirements: 1) no backsliding (once a right is assured, it should not be withdrawn or scaled back) and 2) the state must assure a minimum level of core rights, (56) In addition, Article 2, along with Article 3, assures non-discrimination in the provision of all other rights. (57) As noted above, this is often justiciable.

Articles 4 and 5 limit derogation from economic, social, and cultural rights. Article 4 provides in pertinent part that "the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society." (58) As Philip Alston has observed, this imposes a rigorous standard: "[L]imitations must, in the first place be 'determined by law' in accordance with the appropriate national procedures and must not be arbitrary or unreasonable or retroactive. The limitations must also 'be compatible with the nature' of these rights." (59) Article 5 extends the prohibition against derogation in three important ways. First, it extends this prohibition to non-state third parties. (60) Second, it extends the prohibition to activities indirectly aimed at derogation, such as indenture. (61) Third, it prohibits derogation from any other rights on the pretext that the Covenant requires such derogation. (62)

3. Substantive Obligations (Articles 6-15)

a. The Right to Work

In …