Whither the United States on Economic, Social, and Cultural Rights?

The Issue

The U.S. government has long had an ambivalent approach toward economic, social, and cultural rights (ESCR). The United States played a central role in articulating these rights and ensuring that they were included in the 1948 Universal Declaration of Human Rights (UDHR), and President Jimmy Carter later signed the International Covenant on Economic, Social, and Cultural Rights (ICESCR). However, Washington has not ratified this covenant and has sometimes opposed and often heavily qualified its support for these rights in international forums. Many human rights scholars and advocates, as well as some U.S. officials, have argued that greater support for these rights would improve U.S. standing in the international community and thus potentially win greater backing, particularly from the Global South, for other U.S. international priorities. Others have contended that greater acceptance of these rights would help address important domestic problems.¹ This paper briefly explores the history of U.S. positions on these rights, with a focus on developments since the Obama administration, and recommends the posture Washington should take on these rights going forward.

A Brief History of U.S. Views on Economic, Social, and Cultural Rights

The UDHR encompasses civil and political rights as well as ESCR.² It is generally recognized that these rights are interrelated and indivisible—that is, that the full promise of the UDHR cannot be realized by giving attention to only one type of rights. Nevertheless, largely due to tensions between the Soviet bloc and the West and their differing views on which rights in the UDHR were most important, the international community subsequently established separate treaties for each group of rights.³ These are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).⁴

It is widely agreed that President Franklin Delano Roosevelt (FDR)’s “second Bill of Rights” in his 1944 State of the Union address (which reflected to some extent the economic and social programs enacted during the Great Depression) was a primary inspiration for the rights later described in the second half of the Universal Declaration of Human Rights and the ICESCR. Eleanor Roosevelt forcefully advocated for their inclusion during the drafting of the UDHR.⁵ These include rights to social security (Article 22); work, just and favorable working conditions, protection against unemployment, a just wage, and trade unions (Article 23); rest and leisure, “including reasonable limitation of working hours and periodic holidays with pay” (Article 24); a standard of living that ensures health and well-being, including food, clothing, housing, and medical care, as well as necessary social services and security in cases of “unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond [one’s] control” (Article 25); education, which should be free at the elementary and “fundamental” stages (Article 26); and participation in “cultural life” (Article 27).⁶ Importantly, the UDHR provides that the realization of these rights should occur “in accordance with the organization and resources of each State,” an acknowledgement that fulfillment of these rights is contingent on a country’s political structure and economic capacity. These rights are described with greater specificity in the ICESCR.

After the UDHR’s adoption, the United States gradually retreated to the view that these provisions should not be understood as binding rights but as nonbinding aspirations.⁷ This interpretation was reinforced by the fact that the Soviet Union generally pointed to ESCR to explain its approach to human rights, while the U.S. argued for an emphasis on civil and political rights, which are generally consistent with its own constitution, including the Bill of Rights, and subsequent U.S. jurisprudence. At the same time, given the general U.S. aversion to ratification of international treaties—as reflected in the debates around the Bricker Amendment in the 1950s⁸—there was little appetite until the mid-1970s to explicitly affirm the rights in the ICESCR even though many elements of President Lyndon Johnson’s War on Poverty effectively aimed to realize some of them.

Although President Carter signed the ICESCR and ICCPR and transmitted them to the Senate for ratification, the United States has failed to ratify the former and has often sought to distance itself from ESCR.⁹ For instance, while the first congressionally mandated Country Reports on Human Rights Practices, issued by the Department of State under the Carter Administration, included descriptions of countries’ respect for ESCR, the Reagan administration deleted descriptions of countries’ practices on those issues, arguing that civil and political rights should be prioritized over economic, social, and cultural ones.¹⁰ Reporting on ESCR in these reports has generally been limited since then and tends to focus on prison conditions, conflict-related abuses, internally displaced persons, discrimination and societal abuses, and labor rights. Such prioritization of civil and political rights is also reflected in the fact the U.S. Senate eventually ratified the ICCPR in 1992 but not the IESCR. Some in the United States have firmly opposed ratification of the ICESCR on the grounds that its provisions allegedly amount to “socialism.”¹¹

U.S. positions on ESCR in UN resolutions and programs have similarly alternated between qualified support and opposition. For instance, while the Clinton administration endorsed the Vienna Declaration and Program of Action, which included recognition of the importance of ESCR, Washington has generally opposed ratification of the ICESCR and other treaties that effectively integrate ESCR into their terms.¹² Despite such ambivalence on the international stage, some commentators have pointed out that the United States has extensively implemented ESCR provisions domestically, especially at the state, county, and city levels.¹³

An important exception to the generally skeptical U.S. posture on ESCR is reflected in the ratification of the Convention on Elimination of All Forms of Racial Discrimination (CERD), which includes articles that expressly call for the realization of ESCR for those groups covered by the convention.¹⁴ The United States did not issue any specific reservations, understandings, or declarations regarding these provisions within its instrument of ratification.¹⁵ Thus, the United States has recognized and bound itself to advance ESCR within this context. That said, the objective of CERD is to remedy discrimination suffered by these groups with regard to ESCR, not to ensure that all persons enjoy these rights.

The United States and the Right to Development

Along with the elaboration of the UDHR through various human rights treaties, including the ICESCR, the international community launched a related discussion about a “right to development”—that is, the right of a country to enjoy economic development. Although it was not originally conceived in human rights terms, some began to frame it as such by the 1980s, drawing largely on the economic, social, and cultural rights listed in the UDHR and the right to self-determination found in other UN documents. In 1986, the UN General Assembly adopted a Declaration on the Right to Development, and there have been numerous resolutions and actions taken since to reaffirm and give further meaning to this concept.¹⁶

The United States cast the sole “no” vote to the 1986 declaration—although there were abstentions by Denmark, the Federal Republic of Germany, Finland, Iceland, Israel, Japan, Sweden, and the United Kingdom—and has generally maintained its opposition to resolutions focused specifically on the Right to Development (RtD) ever since.¹⁷ (However, it has also joined consensus on various UN documents referring to this right, including the Rio Declaration on Environment and Development and the Vienna Declaration and Program of Action.¹⁸) U.S. statements on the topic typically note that Washington strongly supports development—including by advancing the UN Sustainable Development Goals and providing substantial foreign assistance—but also assert that the term “right to development” does not have an agreed international meaning, is not specifically recognized as a human right in any treaty, and (in contrast to human rights) applies to states or societies rather than individuals.¹⁹ Thus, the United States has sought to distinguish ESCR from RtD.

In recent years, the People’s Republic of China has donned the mantle of leadership on resolutions affirming RtD, which is consistent with its general efforts to focus the multilateral human rights system on the primacy of states rather than individuals in an attempt to shield itself and other repressive governments from human rights scrutiny.²⁰ In addition to the economic incentives provided under the China’s Belt and Road Initiative, this has garnered significant support among countries in the Global South for many of Beijing’s multilateral positions.

Recent Changes in the U.S. Position on ESCR

The Obama administration was committed to going further in its embrace of ESCR. President Barack Obama signaled as much in his speech to the Nobel Prize committee, in which he echoed the words of FDR:

“A just peace includes not only civil and political rights—it must encompass economic security and opportunity. For true peace is not just freedom from fear, but freedom from want. . . . [S]ecurity does not exist where human beings do not have access to enough food, or clean water, or the medicine and shelter they need to survive. It does not exist where children can’t aspire to a decent education or a job that supports a family.”²¹

This broad endorsement of ESCR was reflected in the first U.S. submission to the Universal Periodic Review (UPR) in 2010, which devoted an entire section to ESCR, including subsections on education, health, and housing. As noted in the report, “But as a matter of public policy, our citizens have taken action through their elected representatives to help create a society in which prosperity is shared, including social benefits provided by law, so that all citizens can live what [Franklin] Roosevelt called ‘a healthy peacetime life.’”²² The United States took a similar approach in its second UPR report, which identified the “economic, social, and cultural measures” it had taken in response to other governments’ ESCR recommendations made during the first U.S. UPR process. These measures extended beyond the topics covered in the first UPR report to include access to food, water, and sanitation.²³

This more positive perspective on ESCR was articulated with greater specificity by then-Assistant Secretary of State for Democracy, Human Rights, and Labor Michael Posner in a speech to the American Society for International Law in 2011.²⁴ As he described, “Human rights do not begin after breakfast. But without breakfast, few people have the energy to make full use of their rights. As Martin Luther King once noted, an integrated lunch counter doesn’t help the person who can’t afford to eat there.” Posner then laid out several principles that would guide U.S. diplomacy on support for ESCR going forward:

“First, economic, social and cultural rights addressed in U.N. resolutions should be expressly set forth, or reasonably derived from, the Universal Declaration and the International Covenant on Economic, Social and Cultural Rights. While the United States is not a party to the Covenant, as a signatory, we are committed to not defeating the object and purpose of the treaty.

Second, we will only endorse language that reaffirms the “progressive realization” of these rights and prohibits discrimination.

Third, language about enforcement must be compatible with our domestic and constitutional framework.

Fourth, we will highlight the U.S. policy of providing food, housing, medicine and other basic requirements to people in need.

And fifth, we will emphasize the interdependence of all rights and recognize the need for accountability and transparency in their implementation, through the democratic participation of the people.”²⁵

This guidance was soon reflected in a change in position on some UN resolutions involving ESCR. For instance, after calling for a vote and then abstaining on a resolution recognizing the right to clean water and sanitation before the UN General Assembly in 2010, the United States joined consensus in approving a similar resolution before the UN Human Rights Council in 2011.²⁶ Generally, the Obama administration joined consensus on all UN resolutions involving ESCR—albeit almost always with explanations of position making clear, inter alia, that the United States is not a party to the ICESCR, that U.S. federal law generally does not recognize such rights, and that such rights are not justiciable in U.S. courts. Some have described this as the “yes, but” approach to ESCR.²⁷ The Obama administration’s full-throated support for the Sustainable Development Goals (SDGs) of the 2030 Agenda for Sustainable Development also demonstrated its commitment to advancing ESCR internationally, even if it did not expressly frame its support in human rights terms.²⁸

Although some early actions by the Trump administration suggested that it might continue with the Obama administration’s approach on ESCR, its later actions clearly indicated otherwise.²⁹ For instance, it chose to vote twice against a resolution on the right to food at the Human Rights Council on which the Obama administration had joined consensus.³⁰ It kept its distance from the SDGs, indicating that it supported the agenda in spirit but not specific goals.³¹ And just as the Bush administration had refused to join the Human Rights Council when it was established in 2006, the Trump administration chose to withdraw from it in June 2018, resulting in decreased engagement on resolutions that came before that body, including those involving ESCR. That said, the third U.S. UPR report, prepared by the Trump administration, continued to include a section on “economic, social, cultural rights and measures” that described the various actions being taken in the United States on these issues.³² And, although it did not reflect official administration policy, the report of the Commission on Inalienable Rights established by Secretary of State Mike Pompeo affirmed the importance of ESCR in the UDHR, while also noting that “it is reasonable for the United States to treat economic and social rights differently from civil and political rights” insofar as the former hinge to a significant extent on a country’s organization and resources.³³

Like the Obama administration, the Biden administration has more fully embraced ESCR and has generally supported UN resolutions on these issues—in some cases ones that the U.S. government had previously opposed. Soon after the United States rejoined the Human Rights Council in 2022, Secretary of State Antony Blinken addressed the body, noting, “We’ve heard repeatedly that the United States has often focused more on strengthening civil and political rights than we have on strengthening economic, social, and cultural rights. People around the world are looking to us to do both—and we hear that call.”³⁴ The following year, he said to the council that “upholding the Declaration’s vision also means continuing to advance economic, social, and cultural rights. The United States is committed to enabling people around the world to enjoy these rights.”³⁵ To that end, in April 2022, the United States joined consensus on a resolution sponsored by Portugal that affirmed the importance of ESCR.³⁶ In July 2022, it also joined consensus on a resolution it had opposed in prior years on the right to a clean, healthy, and sustainable environment.³⁷ And in September 2023, it joined consensus on a resolution led by China, Bolivia, Egypt, Pakistan, and South Africa on economic, social, and cultural rights within the context of addressing inequalities, an iteration of which it had opposed the prior year.³⁸ USAID administrator Samantha Power has also highlighted the fundamental connections between economic and political rights and sought to shape USAID programming accordingly.³⁹ Furthermore, the Biden administration has framed some of its domestic priorities and programs in terms of ESCR.⁴⁰

However, these shifts in position have generally not garnered greater support for other U.S. multilateral objectives.⁴¹ Some U.S. officials have noted that even in cases when the United States has endorsed resolutions incorporating or affirming ESCR, it has typically done so in conjunction with assertive negotiating tactics and detailed explanations of position that have painstakingly described the various conditions and caveats to such support. Thus, other governments have generally not seen the U.S. approach as indicative of a genuine change in posture and have not noticeably altered their stances on other U.S. multilateral priorities.⁴²

Views of U.S. Nongovernmental Human Rights Advocates

As with the U.S. government itself, since the UDHR was adopted there have been differing views among U.S. nongovernmental human rights advocates about the importance or value of ESCR. One commentator observed in 1990 that international human rights NGOs either deprioritized or refused to recognize ESCR for many of the same reasons as the Reagan and Bush administrations.⁴³ Aryeh Neier, one of the cofounders and later the executive director of Human Rights Watch, was a chief critic of ESCR, contending that framing economic issues in rights terms has the effect of diminishing the protection of political rights.⁴⁴ Ken Roth, Neier’s successor at Human Rights Watch, expressed similar concerns, although he did not advocate for ignoring ESCR:

“International organizations like Human Rights Watch are legitimately urged to pay more attention to economic, social and cultural rights. But practical prescriptions are often simplistic—typically involving only the rhetorical invocation of these rights. The strength of organizations like Human Rights Watch is not their rhetorical voice but their shaming methodology—their ability to investigate misconduct and expose it to public opprobrium. That methodology is most effective when there is relative clarity about violation, violator, and remedy. That clarity is best achieved when misconduct can be portrayed as arbitrary or discriminatory rather than a matter of purely distributive justice.”⁴⁵

Others, such as Leonard Rubenstein, the former executive director of Physicians for Human Rights, argued in response that international human rights organizations can and should go beyond targeting only arbitrary or discriminatory behavior involving ESCR. They should also partner with organizations in the Global South to advocate for policies that meet ESCR requirements, advocate for greater development resources from the developed world to fulfill ESCR, and monitor governments’ actions against ESCR.⁴⁶

Since these debates, greater consensus has emerged in the nongovernmental community on the importance and value of advocating for ESCR. Both Amnesty International and Human Rights Watch, which had previously prioritized civil and political rights in their advocacy, have fully embraced ESCR and have established organizational units and issued numerous reports focused on these issues.⁴⁷ Some U.S.-based NGOs and movements, such as the Center for Economic and Social Rights, have been established specifically to advocate ESCR.⁴⁸ And many U.S.-based NGOs have joined an international consortium comprising 300 social movements, nongovernmental organizations, and advocates from 80 countries that aims to coordinate and strengthen efforts on these issues.⁴⁹ Certain domestically oriented U.S. NGOs have also relied heavily on ESCR in their advocacy and succeeded in persuading federal, state, and local governments to frame certain issues in rights terms.⁵⁰ For instance, advocates persuaded the State of California to enact a law recognizing that every person in the state has a right to clean, safe, and affordable drinking water; they have continued to invoke this law in advocating for better access to clean water throughout the state.⁵¹

Conclusions and Recommendations

Given the significant challenges in getting the Senate to ratify human rights treaties in recent decades, the prospects for U.S. ratification of the ICESCR remain dim.⁵² This is thus not a sensible, near-term goal. There are, however, various ways in which the United States could further demonstrate its commitment to ESCR and thereby improve its standing in the international community on these rights. The U.S. government and nongovernmental human rights advocates should respectively:

1. Undertake a strategic review of the U.S. posture toward ESCR with the goal of demonstrating to a greater extent its support for these rights;
2. Continue to affirm the interdependence and indivisibility of ESCR and civil and political rights, as established by the UDHR;

3. Continue to find ways to support UN resolutions or programs that address or affirm ESCR, minimizing the extensive caveats and conditions that the United States typically articulates when it does so. Nevertheless, it is unrealistic to expect that other governments will change their positions on core U.S. multilateral priorities based merely on changes in the U.S. position on ESCR;
4. Continue to distinguish ESCR from the right to development, in part by continuing to emphasize that the rights in the UDHR and subsequent human rights instruments pertain to individuals, not states;
5. Address ESCR to a greater extent within the Department of State’s annual Country Reports on Human Rights Practices, highlighting areas where a foreign government has fallen well short of its ESCR obligations and commitments;
6. Further highlight in public statements the many ways in which U.S. development assistance and federal and state domestic programs speak to and advance ESCR, as has been done in U.S. submissions under the Universal Periodic Review;
7. Fully and expressly take ESCR into account when formulating positions on the policies and programs of multilateral development banks;
8. Continue to develop federal programs to address ESCR domestically and encourage state and local governments to do the same while speaking about these programs in rights terms. This would help further establish a bottom-up way of realizing ESCR that would be little different from what the United States might be expected to do if it ratified the ICESCR;
9. Undertake a Voluntary National Review of progress toward the Sustainable Development Goals, given that ESCR are effectively and thoroughly integrated into that agenda;⁵³ and
10. Continue nongovernmental advocacy for greater U.S. respect for ESCR, preferably focused on the specific, practical ways these rights may be advanced domestically and internationally.
     

Scott Busby is a senior associate (non-resident) with the Human Rights Initiative at the Center for Strategic and International Studies in Washington, D.C.

This report was made possible through the generous support of the Open Society Foundations. The author thanks the participants in the two roundtables convened by the Center for Strategic and International Studies on the U.S. position on economic, social, and cultural rights for their useful contributions. The author also wishes to thank Lauren Burke Preputnik, Roberta Cohen, Andrew Friedman, Todd Howland, Amanda Klasing, Harold Koh, Daniel Kronenfeld, Sarah Mendelson, Michael Posner, Lynn Sicade, and Michelle Strucke for their individual comments on the paper.

Please consult the PDF for references.