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Ratification of Treaty Would Subject U.S. Economic and Social Policies to Official UN Scrutiny

HUMAN RIGHTS, LAW & JUSTICE

by Jim Kelly

Wednesday, June 3, 2009

Though the United States has signed the International Covenant on Economic, Social and Cultural Rights (ICESCR), it has not yet ratified the treaty. This means that the U.S. is not currently bound to its provisions; nor is the U.S. subject to review by the Committee on Economic, Social and Cultural Rights (the “Committee”), the treaty body that is responsible for monitoring state compliance with the terms of the treaty. However, under the present Administration and Congress, it is likely that a push will be made to ratify the ICESCR. As the most recent session of the Committee indicates, ratification of the ICESCR would significantly impact U.S. national sovereignty in a broad range of economic and social policy areas.

The Committee recently concluded its 42nd Session , at which it considered the periodic reports of five nations who, as required by the ICESCR, are required to submit reports to the Committee. The Session, which was held in Geneva on May 4 – 22, included a review of the combined fourth and fifth periodic reports from the United Kingdom of Great Britain and Northern Ireland.

Following the submission of their periodic reports, the Committee requested that the U.K. and Northern Ireland answer a set of specific questions concerning particular domestic economic, social, and cultural policies. These questions included requests for detailed information about the following U.K. and Northern Ireland policies and legislation:

  • refugee and asylum-seeker policies, including employment opportunities for these groups;
  • migrant policies, including the protection of and provision for economic, social and cultural rights of “undocumented” migrants;
  • minimum wage standards with assurances that these standards meet an undefined “adequate standard of living;”
  • legislation and policies regarding paid leave from employment;
  • legislation on the right to strike;
  • the legality of corporal punishment of children in the home;
  • various welfare policies, particularly in regards to poverty, homelessness and social security;
  • policies addressing the inequalities in universal access to health care;
  • policies aimed at combating obesity;
  • an explanation for the differing rates of university tuition between British nationals and foreign students; and
  • policies implemented to preserve “regional and minority languages.”

After considering the submissions of the U.K. and Northern Ireland, as well as supplemental submissions from various NGOs and other advocacy groups, the Committee issued its “Concluding Observations ” reflecting on the U.K. and Northern Ireland’s performance in successfully implementing the ICESCR. While the Committee commended the U.K. on a handful of aspects of its performance, these positive comments were far outweighed by areas of concern and recommendations for improvement highlighted by the Committee. Examples of such areas of concern include:

  • the difficulties which a de-centralized system of governance employed by the U.K. pose to devising a “national strategy to implement the Covenant;”
  • the fact that the U.K. has not yet made the rights contained in the ICESCR fully justiciable in its court system;
  • the discrimination potential in many of the U.K.’s counter-terrorism policies;
  • the legality of “physical punishment” of children within the home;
  • the fact that abortion has not yet been legalized in Northern Ireland;
  • the limited employment opportunities available for asylum-seekers;
  • the lack of protection for the minority Irish language; and
  • the lack of legislation allowing for the “progressive introduction of free education” at the university level.


If the U.S. were to become party to the ICESCR, it would be subject to the same type of scrutiny that is displayed in the Committee’s treatment of the U.K. and Northern Ireland. Ratification would give the UN and NGOs a platform for criticizing the domestic policies of the U.S., which, like the U.K. are arguably some of the most generous in the world. Further, ratification would significantly restrict U.S. sovereignty in regards to domestic economic and social policies. Theoretically, the vague “rights” contained in the ICESCR would also be justiciable in U.S. courts according to Article VI of the U.S. Constitution , which states that all treaties made by the U.S. government shall be considered “supreme law of the land; and the judges in every state shall be bound thereby.”

Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.



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