Which economic, social, and cultural rights are guaranteed in international human rights documents?

In the Universal Declaration of Human Rights (UDHR), Article 16 and Articles 22 through 27 encompass economic, social, and cultural rights.

Article 16 of the UDHR sets forth the right to marry, to have free choice in marriage, and to found a family.

Article 22 states “Everyone is entitled to the realization of the economic, social and cultural rights indispensable for his dignity.” Article 23 articulates the right to work, to choose employment, and to form labor unions.

Article 24 sets forth the right to rest and leisure and of reasonable limitation of working hours.

Article 25 includes a person’s right to a “standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”

Article 26 states that individuals have the right to education, free and compulsory at the elementary level, with technical and professional education generally available, and higher education equally accessible on the basis of merit.

Article 27 describes the right to freely participate in the cultural life of the community, to enjoy the arts, and to share in scientific advancement.

Article 28 and 29 include the right to a social and international order that enables these rights to be realized and refers to one’s duties to one’s community.

These rights are further elaborated in the International Covenant on Economic, Social and Cultural Rights. They are also articulated in specialized human rights treaties such as the Convention on the Rights of the Child (CRC) and the Conven tion on the Elimination of All Forms of Discrimination Against Women (CEDAW), treaties that focus on the needs of particularly disadvantaged, marginalized, and vulnerable groups of people all over the world.

Do any of these human rights documents have the force of law?

The Universal Declaration is a resolution of the General Assembly of the United Nations, which creates a high expectation that it will be taken seriously. However, a declaration does not create obligations that are technically binding in law. Never - the less, since the Universal Declaration is so widely used as the primary statement of what are considered human rights today, it is often regarded as having legal significance and considered “customary” international law and as the authentic interpretation of the references in the UN Charter.

The specific rights in the UDHR have been codified into the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). A covenant is a treaty which, under the rules of international law, creates legal obligations on all states that ratify it. Similarly, the Convention on the Rights of the Child (CRC) and Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) also are treaties that are binding on the states that ratify them.

Therefore, citizens worldwide should put pressure on their governments to ratify these treaties and to abide by the obligations they set forth. For example, a right to health care is mandated by the ICESCR, meaning that a basic and adequate health care entitlement should be guaranteed to all citizens and residents of countries ratifying the treaty.

Not all countries are in equal positions to provide for their citizens. How is this dealt with in the International Covenant on Economic, Social, and Cultural Rights (ICESCR)?

The ICESCR states that each state party to the covenant should “undertake steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant, by all appropriate means, including particularly the adoption of legislative measures.”

It also states that state parties must guarantee these rights without discrimination with respect to race, color, sex, language, religion, political or other opinion, and social status.

Is the United States a party to the International Covenant on Economic, Social and Cultural Rights?

No. The United States signed the Covenant in 1979 under the Carter administration but is not fully bound by it until it is ratified. For political reasons, the Carter administration did not push for the necessary review of the Covenant by the Senate, which must give its “advice and consent” before the US can ratify a treaty. The Reagan and Bush administrations took the view that economic, social, and cultural rights were not really rights but merely desirable social goals and therefore should not be the object of binding treaties. The Clinton Administration has not denied the nature of these rights but has not found it politically expedient to engage in a battle with Congress over the Covenant. If the Covenant were to be considered at this point in time, it would likely result either in the defeat of ratification or in accompanying the ratification with reservations that would empty it of any meaningful obligations. Several organizations in the USA mobilized community groups to put pressure on the Congress to ratify the ICESCR in connection with the 50th anniversary of the UDHR in 1998.

Although the US has not ratified the ICESCR, does it have any obligations as a signatory of this Covenant?

Yes. According to the law of treaties, a government that has signed but not ratified a treaty (like the Covenant) must “refrain from acts which would defeat the object and purpose of [the] treaty...until it shall have made its intention clear not be become a party ....” Unfortunately, courts in the USA are not likely to attach much importance to this rule if an action were brought before that claims the USA is defeating the object and purpose of the Covenant.

What would it mean to ordinary people if the US Senate gave its advice and consent and the USA ratified the Covenant?

It would mean four things:

1. The USA would be required to “take steps...to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized” in the Covenant.

2. The USA must ensure that the rights in the Covenant are enjoyed without discrim ination based on race, color, sex, religion, political or other opinion, national or social origin, property, birth or other status. (In most countries, “other status” includes disability and in some countries also refers to sexual orientation.)

3. The USA would be required to report to the UN Committee on Economic, Social and Cultural Rights on measures adopted and progress made in achieving the observance of the Covenant rights. The 18-member Committee, on which a US expert could have a seat if elected, would examine this report and pose questions. The Committee would then formulate its general observations on how the USA might do better, if it concludes that the USA is not doing enough to realize the rights in the Covenant.

4. Finally, the rights in the Covenant would become part of the “Supreme Law of the Land; and the Judges in every State shall be bound thereby,” according to Article VI, Clause 2 of the US Constitution. Thus, in theory, anyone whose rights under the Covenant were violated would be able to bring a case before the courts.

Source: Adapted from Human Rights Education: The Fourth R, 9:1 (Spring 1998), a publication of Amnesty International USA's Huma Rights Educators' Network. Original work was written by Shulamith Koenig and the staff of The People's Decade for Human Rights Education (1998), 526 West 111th Street, Suite 4E, New York, NY USA 10025. Web site: http://www.pdhre.org.