Testimony of Catherine Albisa on behalf of the National Economic and Social Rights Initiative for the North American Consultation on Women and Housing by the United Nations Special Rapporteur on Housing, Miloon Kothari – October 15-17, 2005

My name is Catherine Albisa. I am a human rights attorney with over 15 years of experience in both constitutional and human rights law as applied in the United States, and currently the Executive Director of the National Economic and Social Rights Initiative (NESRI). On behalf of NESRI, an organization dedicated to the implementation of economic and social rights in the United States, I would like to thank the Special Rapporteur and the coordinating committee for hosting this consultation.
There are several organizations submitting testimony with significant expertise on the question of housing rights both domestically and internationally. I will therefore limit my testimony to the overall framework of implementing economic and social rights in the U.S., addressing in particular three points:

• Current U.S. commitments to international economic and social human rights standards.
• Implementation within the U.S. federal structure.
• Steps needed towards the realization of economic and social rights.

Current U.S. Commitments

The United States played a central role in creating the founding human rights document -- the Universal Declaration of Human Rights (UDHR). Indeed, Eleanor Roosevelt, the wife of U.S. president Franklin D. Roosevelt, chaired the Human Rights Commission that drafted the Declaration. The UDHR includes recognition for a wide range of economic and social rights. However, the UDHR has not been formally recognized as binding in the U.S. The highest level decision on this question came from the California Supreme Court. In Fujii v. State, 38 Cal. 2d 718 (1952), that Court found that the UDHR was merely aspirational.

Subsequent to the UDHR, the members of the United Nations drafted the two principal human rights treaties – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR reaffirms and encompasses the economic and social rights in the Declaration and provides greater detail on each of them. Specifically the ICESCR includes guarantees of:

• The right to health ensuring the right to the highest attainable standard of physical and mental health including access to all medical services, nutrition, sanitation, safe workplace conditions, and clean water and air.
• The right to food guaranteeing freedom from hunger and access to safe and nutritious food.
• The right to housing ensuring access to a safe, secure, habitable, and affordable home with freedom from forced eviction.
• The right to work guaranteeing the opportunity to have fulfilling and dignified work under safe and healthy conditions and with fair wages affording a decent living for oneself and ones family.
• The right to education ensuring an education that enables all persons to participate effectively in a free society and is directed to the full development of the human personality.
• The right to social security guaranteeing that everyone regardless of age or ability to work is guaranteed the means necessary to procure basic needs and services.

The United States has signed and ratified the ICCPR, and has signed, but not yet ratified the ICESCR. When a country has signed but not yet ratified a treaty, it is obligated under international law to refrain from violating the “object and purpose of that treaty.”1 Additionally, the U.S. has signed but not ratified the Convention on the Rights of the Child (only the U.S. and Somalia have failed to ratify this Convention) which includes extensive economic and social rights protections.

The United States is also a member of the Organization of American States (OAS), a regional body similar to the United Nations in its purpose and structure. Members of the OAS are obligated to ensure the rights contained in the American Declaration on the Rights and Duties of Man, which also includes the six rights mentioned above. Both the Inter-American Court and the Inter-American Commission on Human Rights have found that the American Declaration is not an aspirational document, but rather one that creates binding obligations for the member nations. Nonetheless, the U.S. government rejects the position. Additionally, the OAS system has also produced a series of treaties, all of which have reaffirmed and incorporated these rights. The United States has not yet ratified these, but has signed the principal treaty – the American Convention on Human Rights.

Where does this leave us? On a global level, the US played a key historical role in creating and developing economic and social human rights standards. On a national level, the federal government has been slow to guarantee these rights to the American people. Although, the American Declaration is applicable to the U.S. under regional law, the federal government rejects that position and has yet to actually ratify an international economic and social rights treaty (with the exception of those that address discrimination in economic and social rights guarantees). In short, the U.S. lags behind many nations in affording economic and social rights guarantees to its people, which is reflected in troubling socio-economic indicators including:

• The highest rate of child poverty among industrialized nations,
• Over 45 million people without health insurance,
• Over 36 million people suffering food insecurity,
• a shortfall of 5 million affordable housing units and 14% of households with critical housing needs,
• 20% of the population being functionally illiterate,
• The longest working hours in the industrialized world, and
• Working families that cannot afford basic needs such as housing and health care.

Given the vast resources within the U.S., these failures to guarantee basic rights are not due to practical constraints, but rather to policy choices that fail to take into account basic human rights standards and reflect the absence of a basic commitment to the full range of human rights protections.

The Federal Structure and Human Rights Implementation

As in the case of any country, human rights commitments are made on the national level. In the U.S., however, the national Constitution is limited to civil and political rights, and limits Congress from addressing many areas affecting economic and social human rights. Moreover, even where Congress has authority under the Constitution’s Spending Clause and can regulate programs around food, housing, welfare, etc, the current trend, both within the judiciary and the legislature, is to provide more flexibility and authority to the States regarding how to implement those programs

Thus, within the U.S. federal context, many policy choices affecting economic and social rights are made at the individual state level. National programs are usually implemented as part of a federal/state partnership with considerable discretion given to state officials, and there are a wide range of state and local programs that do not involve federal level government in any way. Given this general practice, the reach of international human rights standards must extend beyond the federal government and become part of state government as well.

The federal government has consistently recognized that human rights obligations extend to state and local actors. Indeed the U.S. State Department website clarifies that human rights obligations will be “implemented at the appropriate government level – federal state or local.”2 Specifically, through the treaty ratification process and other representations on the international stage, the federal government has committed the individual States to meeting US human rights obligations. For example, as early as 1951 the U.S. ratified the Charter of the Organization of American States with the following reservation:

That the Senate give its advice and consent to ratification of the Charter with the reservation that none of its provisions shall be considered as enlarging the powers of the Federal Government of the United States or limiting the powers of the several states of the Federal Union with respect to any matters recognized under the Constitution as being within the reserved powers of the several states.

This approach became a pattern and each time the Senate has given its advice and consent to ratify a major human rights treaty, it has done so with the following understanding:

That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant. 3

Additionally, when the US issued its first report in 1994 to the United Nations Human Rights Committee regarding its compliance with the International Covenant on Civil and Political rights, the federal government stated that, it was:

a government of limited authority and responsibility…. [and that] state and local governments exercise significant responsibilities in many areas, including matters such as education, public health, business organization, work conditions, marriage and divorce, the care of children and exercise of the ordinary police power… Some areas covered by the Covenant fall into this category.4

The report then explained that the United States had, through its ratification process, put other governments on notice that the:

United States will implement its obligations under the Covenant by appropriate legislative, executive and judicial means, federal or state, and that the federal government will remove any federal inhibition to the abilities of the constituent states to meet their obligations in this regard.5

Thus, the judicial and political trend towards strengthening and amplifying the role of individual states – often referred to as “states rights” -- has been integrated into national level human rights policy. Unless there is individual state participation in the implementation of human rights standards, the United States will fall short of meeting its human rights obligations to its own people. Moreover, with regard to economic and social fields state level officials are the primary decision-makers and the individual state role is of particular importance. It is important to note, however, that the federal government has not created any mechanism to ensure enforcement by states.

There are several political, legal, and budgetary limitations to ensuring adherence to human rights at the individual state level which must be overcome. I will only address three:

• This first limitation is current political priorities. Currently, existing resources are disproportionately directed toward the custodial function of the state, in particular prisons and foster care for primarily poor children taken from their parents. The trend towards over-incarceration in the U.S. is well-documented. Because the vast majority of the prison population has been incarcerated in racially biased ways for non-violent offenses, this trend can and should immediately be reversed.6 The trend towards terminating parental rights for poor parents also has a significant impact on an individual state’s protection of economic and social rights. In the realm of housing in particular, for example, homeless families lose custody of children who are then placed in a foster care system that requires more resources per child than it would to provide housing for the family. State courts addressing this irrational policy have made statements such as “[i]t has been shown time and again that it is more economical to house an intact family than to provide child protective services for a single child.” Tilden v. Hayward 1990 WL 131162 Del.Ch.,1990. Sep 10, 1990 at p. 17, (Nonetheless, the court concluded it was not within the court’s authority to order housing assistance for the families at issue.). Re-directing these resources in a more constructive and rights based manner, would immediately improve the economic and social rights situation in the individual states without requiring addressing any significant constitutional or overall budgetary allotment issues. However, there are no indications at this time of a policy shift in these arenas.
• The second limitation is legal. Where legislatures fail to address economic and social rights, there is little recourse to the judiciary. The national Constitution does not recognize economic and social rights. While there is national legislation that affords some important entitlements, these entitlements have never been universal (for example our public health insurance program has never been extended to all families who cannot reasonably afford private insurance) and are currently shrinking rather than growing. At the state level, almost all state constitutions include some economic and social rights protection in their text, but the jurisprudence is sorely underdeveloped. Other than in the arena of education, all but a few state courts have been reluctant to guarantee these rights, and even in the arena of education implementation has yet to be wholly successful. State level legislation has also tended to follow the flawed national model.
• The third limitation is budgetary. The overwhelming majority of states within the U.S. have faced serious budgetary crises in the last several years, and budget shortfalls are continuing.7 Because states are required to balance their budgets, these budget shortfalls usually translate into immediate reduction of services.8 Without additional federal budgetary assistance (or a re-directing of priorities at both the federal and state level from the custodial to ensuring rights as noted above), states are severely challenged to meet basic needs and fulfill their human rights obligations. However, recent priorities at the federal level do not indicate any movement towards assisting states in meeting their obligations, and the increasing federal deficit due to a combination of tax cuts and spending related to war and terrorism make it unlikely that federal support will materialize in the near future. In order to meet basic economic and social rights standards, while at the same time implementing sound fiscal policy that takes into account our budget deficit, a new approach must be adopted at the national level which reorganizes priorities in a serious and responsible manner. In particular, tax cuts for the wealthiest households need be repealed.9

Steps Towards the Realization of Economic and Social Rights in the U.S.

There are several important steps that should be taken at the national level to demonstrate a commitment to address current obstacles to the realization of economic and social rights in the U.S. The first is obvious. The U.S. must recognize this set of rights and commit to them as a human rights concern. Specifically the U.S. should:

• Ratify the International Covenant on Economic, Social and Cultural Rights,
• Ratify the Convention on the Rights of the Child,
• Recognize its obligations under the American Declaration on the Rights and Duties of Man,
• Ratify regional treaties protecting economic and social rights, such as the American Convention on Human Rights and the San Salvador Protocol.

Second, the U.S. must address the current structural limitations it has embedded in national human rights policy. Specifically, it must lift the current reservations, understandings and declarations that impair enforcement of human rights. While it is appropriate and within the discretion of the national government to have individual states in a federal system be the primary enforcers of human rights, it is not appropriate to create obstacles to ensuring that enforcement.

For example, currently human rights treaties are ratified subject to a “federalism” understanding which strips the federal government of power to mandate the states to protect rights not enumerated in the federal constitution. In the U.S. federal system, unless the constitution explicitly gives the federal government authority over a particular issue, that authority is reserved for the individual states. As a constitutional matter, the federal government normally has authority over matters addressed in international treaties.10 The federalism understanding, however, explicitly limits federal authority by claiming that the enactment of the treaty does not affect the pre-existing balance of power between the individual states and the federal government. There is also a “non-self-execution” declaration which strips courts of the ability to hear a cause of action brought under a human rights treaty, and effectively takes the judiciary out of process of enforcing human rights not already contained in domestic legislation. Given that implementing domestic legislation for human rights treaties has been scarce, this poses a significant problem. Thus, in addition to ratifying and committing to human rights obligations in the arena of economic and social rights, the U.S. should:

• Remove the federalism understanding from existing human rights treaties, and ratify any future treaties without such an understanding, and
• Remove the non-self-execution declaration from existing human rights treaties as well as ratify any future treaties without such a declaration, or in the alternative, enact domestic implementing legislation that affords recourse to the courts for failure to meet human rights obligations.

Once the legal framework is altered to reflect both a formal commitment to human rights standards, and a commitment to an enforcement structure that can be effective, the U.S. will be better positioned to begin the process of progressively implementing economic and social rights.

Endnotes

1. Vienna Convention on the Law of Treaties, Art. 18.

2. See, http://www/state.gov/s/l/38637.htm

3. U.S. reservations, declarations, and understandings, ICCPR, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992); see also, U.S. reservations, declarations, and understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Cong. Rec. S17486-01 (daily ed., Oct. 27, 1990); U.S. reservations, declarations, and understandings, International Convention on the Elmination of All Forms of Racial Discrimination, 140 Cong. Rec. S7634-02 (daily ed., June 24, 1994).

4. Initial reports of States parties due in 1993: United States of America. 24/08/94. CCPR/C/81/Add.4, (State Party Report).

5. Id. The treaty obligations, however, still remain in effect upon the federal government. The Human Rights Committee noted “with satisfaction the assurances of the [US] Government that its declaration regarding the federal system is not a reservation and is not intended to affect the international obligations of the United States.” Concluding Observations of the Human Rights Committee : United States of America. 03/10/95. CCPR/C/79/Add.50; A/50/40,paras.266-304. (Concluding Observations/Comments). The Senate’s approach to human rights treaties “merely displaces the primary implementation burden from the national government to each of the states…, encourag[ing] unique enforcement solutions tailored to each state’s specific situation.” Comment, Rogue States Within American BorderS: Remedying State Noncompliance with the International Covenant on Civil and Political Rights, 90 Cal. L. Rev. 165, 173 (2002).

6. Punishment and Prejudice: Racial Disparities in the War on Drugs, Human Rights Watch, June 8, 2000.

7. State Fiscal Crises: Cuts Still Loom, Center for Budget and Policy Priorities, February 15, 2005.

8. Id. States may also increase revenues through taxation, but that alternative is less often chosen.

9. . New Tax Cuts Primarily Benefiting Millionaires Slated To Take Effect In January: Should They be Implemented While Katrina Costs Mount?, Center for Budget and Policy Priorities, September 19, 2005.

10. Missouri v. Holland, 252 US 416 (1920).