Thursday, November 10, 2011

Change in United States’ Policies through Ratification of ICESCR?

Change in United States’ Policies through Ratification of ICESCR?
Taken into account the recent demonstrations all around the country, it seems obvious that something in the United States’ policies needs to change. The decisions of those who run the country no longer reflect the needs of the general public. The more difficult question is how to bring about change? One possibility is to look to the International Covenant on Economic, Social and Cultural Rights (ICESCR) for an answer. In 1977, the United States already became a signatory State to the covenant in pursuit of fighting poverty in the country. Ratification however, has not happened.
The ICESCR seeks to ensure an adequate standard of life to all individuals within a treaty party’s control. Some might argue that the United States is one of the wealthiest nations in the world, and even the poor need not suffer from poverty as compared to the poor in developing countries. The United States’ government already provides housing and foodstuffs for those who cannot afford it. Why is it so hesitant to ratify the ICESCR and implement all of the rights recognized by the treaty into domestic law? The answer seems to lie in the governmental body that is responsible for (not) giving its consent and advice for ratification: the Senate.  As a practical matter, wealthier citizens would have to provide for those who cannot afford an adequate standard of living on their own. Upon ratification of the ICESCR and implementation into domestic law, tax monies would have to be allocated in a way to positively ensure the rights to all individuals. If those politicians, who generally belong to the group of wealthier citizens, need to make funds available to ensure the realization of economic, social and cultural rights of others they might simply pursue their own interests over those of the poor.
Moreover, becoming a treaty party upon ratification after 24 years of merely being a signatory State might add to the credibility of the United States politics among the international society. United States’ politicians tend to point fingers at foreign governments and critique the way they treat their peoples. Why not start changes within the borders to ensure an adequate standard of living to every United States’ citizen?
Certain rights recognized by the ICESCR already seem to be in accord with the United States’ domestic standards. In particular a person’s right to primary education or everyone’s right to form a trade union or strike, to name a few. Others, however, are far from what the treaty seeks to realize. Particularly, the ICESCR provision which constitutes a person’s right to mental and physical health to the highest attainable standard seems to be at issue within the United States’ politics. Unfortunately, for some it is not only a matter of receiving the best attainable medical assistance but rather any medical assistance. Due to the lack of adequate health insurance or insufficient financial background many patients do not get the medical attention when they need it. Since the federal government already provides for certain medical expenses, why not improve the existing system to assure timely assistance to all?
Certainly, the ratification of any international treaty may seem like sacrificing a part of a nation’s sovereignty. This is especially true in a case like the ICESCR where an international monitoring body exists to ensure the State’s compliance with the treaty. But how much of its sovereignty would the United States really have to give up upon ratification of the ICESCR? Since it is already a signatory State to the covenant, international law regulates that it cannot take any actions that undermine the general object and purpose of the treaty. Yet, this leaves those provisions of the treaty that require affirmative government action in order to realize the rights recognized by the covenant. To assure those rights certain resources are necessary. The current financial situation undeniably does not allow for everyone to be endowed with caviar and champagne for dinner. But this is not the standard of adequacy the ICESCR seeks to achieve. The major concern within the United States – voiced by the demonstrators around the country – is the gap between the rich and the poor. Taken into account that the United States is nonetheless still one of the wealthiest nations in the world, the funding of programs seems like nothing more than the mere reallocation of subsidies. The ICESCR itself provides for the progressive implementation of rights to give States Parties the time to establish essential programs for the realization of rights.
One concluding thought: until now, the United States has failed to ratify the ICESCR partly on the ground that the United States’ Constitution and domestic laws do not allow for a system that takes from the wealthy in order to provide an adequate standard of life for the poor. What the United States Constitution and domestic laws do provide for are numerous limitations to rights granted to United States’ citizens on principles of national peace and security. Last year’s events in France, Great Britain or Greece demonstrate how poverty coupled with desperation can threaten a whole nation’s peace and security. If the United States is hesitant to ratify the ICESCR on political or moral grounds – maybe it should consider ratification and implementation on grounds of national peace and security?
Thea Muehe,
Candidate LL.M. in Global Law and Technology,
 Suffolk University Law School

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