Four years after the fall of the Berlin Wall symbolized the fall
of Communism, the Clinton Administration intends to present for
ratification a treaty shelved at the height of the Cold War because
of its embrace of socialist principles. The International Covenant
on Economic, Social and Cultural Rights establishes the rights to
housing, food, a fair wage, paid vacations, health care, and other
expensive benefits. The treaty was signed in 1977 by Jimmy Carter
and has been pending in the Senate Foreign Relations Committee
since 1978. This treaty should remain on the shelf. If ratified, it
could become law and have the same force as legislation passed by
both houses of Congress and signed by the President.
The International Covenant on Economic, Social and Cultural
Rights was passed by the United Nations General Assembly in 1966
with the support of the Soviet Union and the Third World
non-aligned movement. Presidents Johnson, Nixon, and Ford refused
to sign it, but Jimmy Carter reversed that policy and signed the
document on October 5, 1977, as part of his international human
rights agenda. In a speech to the World Conference on Human Rights
this June, Secretary of State Warren Christopher declared that the
treaty "constitutes [an] important advance," which the Clinton
Administration views as a "solemn commitment to be enforced."
As a practical matter, signing a treaty laden with economic
rights is foolish. It accepts as a premise that government can
create wealth. If the 75-year communist experiment proved anything,
it is that government gets in the way of producing goods and
services. Abundant health care, housing, and food are byproducts of
wealth created by private individuals pursuing a profit. Even the
most hard- core former communists in Russia and China have come to
"Supreme Law of the Land." Unfortunately, the treaty may do more
than simply put the U.S. on record in support of bankrupt ideas.
These ideas may actually become part of U.S. law. Article VI,
section 2 of the U.S. Constitution states, "... all treaties made,
or which shall be made, under the authority of the United States,
shall become the supreme law of the land." Once the Senate ratifies
international treaties, they sometimes become the basis for
American case law as practiced in state and federal courts. One
factor courts consider is whether the cooperation of the other
signatories is needed to enforce the agreement.
The classic legal example of this involves the 1918 Migratory
Birds Treaty covering the U.S. and Canada. In a landmark case two
years later, the state of Missouri challenged the right of the
federal government to mandate closed seasons and other treaty
measures to protect migratory birds like geese. The Supreme Court,
however, agreed with the argument that the birds were valued both
as food and as destroyers of insects, and that preserving them was
in the national interest. Protecting this interest required the
cooperation of Canada. The Court ruled that the Migratory Birds
Treaty was part of federal law and therefore pre-empted Missouri
state law. (Missouri v. Holland, 252 U.S. 416 (1920).)
Another important consideration often taken into account by the
courts is whether the terms of the treaty can be met without
spending federal money. Article I, section 7, clause 1 of the U.S.
Constitution states, "All bills for raising revenue shall originate
in the House of Representatives." In the case of the International
Covenant, enforcing the right to housing and other economic rights
would require the government to appropriate funds. This cannot be
done without additional legislation from Congress.
Based on these considerations, no reasonable judge would
conclude that the International Covenant is meant to apply to
domestic law. However, not all judges are reasonable. For example,
in the early 1950s, a state appellate court struck down the
California Alien Land Law solely on the grounds that it conflicted
with the human rights provisions of the U.N. Charter. The state's
highest court rejected the rationale, but upheld the decision based
on the U.S. Constitution. (Sei Fujii v. State, 38 Cal. 2d 718
There have been other examples of U.N. documents being cited in
court cases. For example, several courts have cited the U.N.
Standard Minimum Rules for the Treatment of Prisoners when deciding
cruel and unusual punishment cases, although none have based their
decisions on that document. (See, e.g., Estelle v. Gamble, 429 U.S.
97 (1976).) And the Supreme Court in 1963 made a passing reference
to the Universal Declaration of Human Rights to support the right
of dueprocess for a man denied a passport by the State Department.
(Zemel v. Rusk, 381 U.S. 1 (1963).)
Reading New Meaning. Activist judges use broadly worded
documents like the International Covenant to achieve a variety of
social goals. One such document on the U.S. statute books is the
National Environmental Policy Act. In a recent decision, federal
Judge Charles Richey read new meaning into the broad language of
that Act, applying its provisions for environmental impact
statements to the North American Free Trade Agreement, and thus
endangering early ratification of the agreement by Congress.
Ignoring congressional intent, past practice, and years of judicial
precedent, Judge Richey's ruling in favor of radical
environmentalists could cause a foreign policy crisis with Mexico
if it leads to U.S. rejection of the agreement. (See Marshall
Breger, "Trade on Trial: NAFTA in the Dock," Heritage Foundation
Backgrounder Update No. 199, July 12, 1993.)
Clinton's proposal to ratify this treaty ignores centuries of
Western intellectual and economic history, while at the same time
embracing the theories of Karl Marx and Vladimir Lenin. Their ideas
are enshrined in the Soviet Constitution of 1936, written at the
behest of Josef Stalin. It contained many of the rights in the
International Covenant, including the right to housing, education,
medical care, a job, and leisure time. This cynical document
identified rights that were never meant to be granted. For decades,
though, it gave Soviet totalitarian governments the cover that
justified their accumulation of power and property.
For years, legal activists have tried to get American courts to
recognize this concept of economic rights. Generally, the courts
have refused. (See, e.g., Harris v. McRae, 448 U.S. 297 (1980) (no
constitutional right of poor women to have taxpayer-funded
abortions); Lindsey v. Normet, 405 U.S. 56 (1972) (no
constitutional guarantee of free housing).) This could change if
courts decide that the International Covenant is U.S. law.
Ratification of this treaty could be a costly disaster. It would
violate the intellectual spirit of freedom and individual liberties
that has characterized America since its founding.