Celebrations of Barack Obama’s election as president of the United
States erupted in countries around the world. From Europe to Africa to
the Middle East, people were jubilant. After suffering though eight
years of an administration that violated more human rights than any
other in US history, Obama spells hope for a new day.
While George W. Bush was president, I wrote “Cowboy Republic: Six Ways
the Bush Gang Has Defied the Law,” which chronicled his war of
aggression, policy of torture, illegal killings, unlawful Guantanamo
detentions and secret spying on Americans. When the book was published,
it seemed unimaginable that we could elect a president who would turn
those policies around. But the election of Obama holds that potential.
This is the first in a series of articles in which I will suggest how
the Obama administration can start undoing some of the damage Bush
wrought, by ratifying three of the major human rights treaties and the
Rome Statute for the International Criminal Court.
Although the US government frequently criticizes other countries for
their human rights transgressions, the United States has been one of the
most flagrant violators. We have refused to ratify the International
Covenant on Economic, Social and Cultural Rights (ICESCR); the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW); and the Convention on the Rights of the Child (CRC).
And while the United States worked with other countries for 50 years to
create the International Criminal Court, it has failed to ratify that
treaty as well. When we ratify a treaty, it becomes part of US law under
the Supremacy Clause of the Constitution.
In this article, I will explain why the United States should ratify the
ICESCR, which is particularly relevant now that we are in the midst of
the most serious economic crisis since the Great Depression.
In 1941, President Franklin D. Roosevelt, whose New Deal helped lift us
out of the Depression, gave his famous Four Freedoms speech, focused on
freedom of speech and expression, freedom to worship, freedom from want
and freedom from fear. Roosevelt fleshed out the freedom from want and
fear principles in his Economic Bill of Rights. It contained equality of
opportunity, the right to a job and a decent wage, the end of special
privileges for the few, universal civil liberties, guaranteed old-age
pensions, unemployment insurance and medical care.
FDR’s Bill of Rights formed the basis for the Universal Declaration of
Human Rights, which Eleanor Roosevelt helped draft, and which the UN
General Assembly adopted in 1949. The Declaration embraced two types of
human rights: civil and political rights on the one hand; and economic,
social and cultural rights on the other.
These rights were codified in two binding treaties: the International
Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
The United States ratified the ICCPR in 1992. But it has refused to
commit itself to the protection of economic, social and cultural rights.
Since the Reagan administration, there has been a policy to define human
rights in terms of civil and political rights, but to dismiss economic,
social and cultural rights as akin to social welfare or socialism.
Indeed, the United States’s inhumane policy toward Cuba exemplifies this
dichotomy. The US government has criticized civil and political rights
in Cuba while disregarding Cubans’ superior access to universal housing,
health care, education and public accommodations and its guarantee of
paid maternity leave and equal pay rates.
The refusal to enshrine rights such as employment, education, food,
housing and health care in US law is the reason the United States has
not ratified the ICESCR. This treaty contains the right to work in just
and favorable conditions, to an adequate standard of living, to the
highest attainable standards of physical and mental health, to
education, to housing, and to enjoyment of the benefits of cultural
freedom and scientific progress. It also guarantees equal rights for men
and women, the right to work, the right to form and join trade unions,
the right to social security and social insurance and protection and
assistance to the family.
In the United States, more than ten million people are unemployed, two
to three million families are homeless each year, and 46 million have no
health care benefits. Untold numbers lost their retirement savings when
the stock market crashed. Obama has pledged to give the rebuilding of
our economy top priority after he is sworn in as president. He promised
to create jobs and to ensure that all Americans are covered by health
insurance. When Obama said he would cut taxes for 95 percent of the
people, but end the tax cuts for the rich, he was criticized for wanting
to “spread the wealth.” But Obama’s plan is fully consistent with our
progressive income tax system. After the election, 15,000 physicians
called for a single-payer health care plan, which Obama and Congress
should seriously consider.
The United States’s flouting of the United Nations in its unilateral war
on Iraq, and torture of prisoners in Afghanistan, Guantanamo Bay, Cuba
and Iraq has engendered widespread condemnation in the international
community. Yale Law School Dean Harold Koh, citing Professor Louis
Henkin, summarized the hypocrisy of the United States in the area of
human rights as follows: “In the cathedral of human rights, the US is
more like a flying buttress than a pillar – choosing to stand outside
the international structure supporting the international human rights
system, but without being willing to subject its own conduct to the
scrutiny of the system.”
We should encourage President-elect Obama to send the ICESCR to the
Senate for advice and consent to ratification. Becoming a party to that
treaty will help not only the people in this country; it will also
engender respect for the United States around the world.
By Marjorie Cohn.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and the
president of the National Lawyers Guild. Her new book, “Rules of
Disengagement: The Politics and Honor of Military Dissent” (with
Kathleen Gilberd), will be published this winter by PoliPointPress. Her
articles are archived at www.marjoriecohn.com. The next article in this
series will explain why the United States should ratify the Convention
on the Elimination of All Forms of Discrimination Against Women.