BINDING THE U.S.

BY CUSTOM: ARE ECONOMIC, SOCIAL AND CULTURAL RIGHTS NOW

RECOGNIZED AS CUSTOMARY INTERNATIONAL LAW?

William L. Felder

America when will you be angelic?

When will you take off your clothes?
When will you look at yourself through the grave?
When will you be worthy of your million Trotskyites?
America why are your libraries full of tears?
America when will you send your eggs to India?
I’m sick of your insane demands.
When can I go into the supermarket and buy what I need with my good looks?
America after all it is you and I who are perfect not the next world.
- Allen Ginsberg1

Often, Americans view the issues of economic and social despair as the problems of others.

While the United States leads the world in charitable giving, the general American consciousness

of the problem of poverty is mostly limited – it is viewed as a tragedy, but not as a violation of

basic human rights. The media generously reports moments of mass tragedy, but often fails to

report the continuous, grating desperation of an entire existence spent without food, shelter, and

basic medical treatment. American politicians often remind the people about their right to speak,

assemble and bear arms, but then fail to remind us that almost twenty percent of the nation’s

youth live in poverty.2 Americans live in a nation where, on a given night, some people choose in

which of their many houses their children should sleep, while other children sleep in a shelter or

on the street. Even with these troubles, the U.S. enjoys a comparatively high standard of living,

but the alleviation of economic and social hardships has only come as a byproduct of the nation’s

overall economic successes, not as a result of focused governmental efforts. As the nation

continues to recover from our recent financial troubles, it should be evident that reliance on a

1
Allen Ginsberg, America, in CONTEMPORARY AMERICAN POETRY 164 (A. Poulin, Jr., ed., 6th ed. 1996).
2
U.S. Bureau of the Census, Income, Poverty, and Health Insurance Coverage in the United States: 2009, Report
P60, n. 238, Table B-2, pp. 62-7.
Felder 2

continuously growing economy must not be the only method for curtailing the problem of

poverty in the U.S. and abroad. Attention must be placed on the protection of the freedom from

want, and the exercise of the individual’s economic, social and cultural rights.

The freedom from want is a uniquely American ideal that found its way into the

Universal Declaration of Human Rights as enumerated economic and social rights. Over the

years, the U.S. has contentiously only upheld one category of the rights enumerated in this

declaration. The civil and political rights, which are more aligned with the founding principles of

our nation, have always been broadly supported by the country, while the economic, social and

cultural rights have been categorically rejected by the U.S. as basic human rights. These rights

have been viewed not as basic human rights or fundamental freedoms, but as goals to hopefully

be attained, or an ideal. However, recent statements made by the U.S. indicate that the executive

branch’s mindset is shifting more in line with international norms. In a speech before the U.N.

General Assembly in 2007, President George W. Bush recommitted the U.S. to protecting

several of the economic and social rights contained in the UDHR. More recently, in a letter to the

President of the General Assembly of the U.N., the Obama administration outlined the continued

commitment of the U.S. to the principles in the UDHR. Given these recent actions, it is apparent

that the position of the U.S. government with respect to economic, social and cultural rights has

shifted profoundly.

These statements indicate that the opinion of the U.S. government is now in alignment

with the general consensus within the U.N. – that civil and political rights, together with

economic, social and cultural rights, are indivisible, interdependent and equal. These statements

indicate that the U.S. government has suspended its long denial that economic, social and

cultural rights are, in fact, basic human rights and require equal promotion and protection along
Felder 3

with the other rights listed in the UDHR. Most importantly, these recent statements effect a

profound reversal, and constitute the consent by the U.S. government to the norms created by the

UDHR as binding principles of customary international law.

Before examining the status of Articles 22-27 of the UDHR in light of these recent

statements by the U.S. government, it is necessary to examine the historic context of the U.S.

relationship with the UDHR, and the fundamental characteristics of customary international law.

A. Creation and Implementation of the Universal Declaration of Human Rights

The concept of the universality of human rights is a relatively new one. Prior to 1945,

enforcement of human rights by international law was sporadic and limited. The natural law

movement of the 18th century had popularized certain rights as inherent in humanity, which were

enshrined in several state constitutions. However, economic and social rights only began to

appear in constitutions in the early 1900’s. Even then, the protection of human rights was seen as

an exclusively domestic matter, and motivations for external enforcement remained mostly

political and pragmatic, rather than idealistic in nature. But the effects of a global depression and

a second World War impressed upon at least one international leader the importance of universal

human rights. In his now famous 1941 State of the Union address, American President Franklin

Delano Roosevelt introduced four essential freedoms upon which the world of the future should

be founded: the freedom of speech and expression, the freedom of religion, the freedom from

want, and the freedom from fear.3 Three years later, in his 1944 State of the Union address,

Roosevelt expanded his notion of freedom from want, relating it to general liberty, stating: “true

individual freedom cannot exist without economic security and independence.”4 He followed this

3
See 87 Cong. Rec. 1, 46-47 (1941)
4
See 90 Cong. Rec. 1, 57 (1944)
Felder 4

statement with a list of rights included in this category: the right to a useful and remunerative

job; the right to earn enough to provide adequate food, clothing, and recreation; the right of every

farmer to raise and sell his products; the right of every businessman to trade in an atmosphere of

freedom from unfair competition and domination by monopolies; the right of every family to a

decent home; the right of adequate medical care; the right to protection from economic fears of

old age, sickness, accident, and unemployment; and the right to a good education.5 These rights

would generally become known as social and economic, or “second generation” rights.

Human rights were almost completely excluded from mention in the Charter of the

United Nations. In preliminary drafts of the Charter, human rights were mentioned only once, at

the suggestion of the United States delegation. Britain and the Soviet Union rejected the proposal

that promotion of human rights be listed among the organizations main purposes, but allowed it

to be included in the provisions dealing with economic and social questions.6 During the debate

over the Charter itself, the pressure of numerous countries outside of the five main players (the

future permanent members of the U.N. Security Council) for the inclusion of protection and

promotion of human rights was intense. But little attention was paid to their concerns – the

Soviets were busy with the pragmatic difficulties of securing their position in Poland, and the

U.S. was keen to avoid a powerful international organ.7 This recalcitrance on the part of the U.S.

delegation was effectively reversed by the persistent lobbying of several American non-

governmental organizations, the end of the war in Europe, and the discovery of the first

concentration camps.8 Not only was the promotion and protection of human rights afforded a

place in the preamble, but they were also included in Article 1, among the founding purposes of
5
Id.; see also Johan D. van der Vyver, The Binding Force of Economic and Social Rights Listed in the Universal
Declaration of Human Rights, 30 Hamline J. Pub. L. & Pol’y 125, 134-35 (2008) [hereinafter Binding Force]
(summarizing the rights enumerated in Roosevelt’s 1944 State of the Union address).
6
MARY ANN GLENDON , A W ORLD MADE NEW 6 (2001).
7
Id. at 16.
8
Id. at 17-18.
Felder 5

the U.N. Finally, the member nations pledged, in Article 56, to promote these rights and

freedoms.9

Although given a place of prominence in the Charter, the human rights protected were ill-

defined, and enforcement to ensure their protection and promotion had not been created. In 1948,

the first of these two issues was resolved with the drafting and adoption of the Universal

Declaration of Human Rights. Carrying on her late husband’s legacy, Eleanor Roosevelt, as the

Chairman of the Human Rights Commission responsible for drafting the UDHR, explained its

intended role as a declaration; an inspiration for the creation of a binding international treaty, not

one itself:

It is of primary importance that we keep clearly in mind the basic

character of the document. It is not a treaty; it is not an
international agreement. It is not and does not purport to be a
statement of law or of legal obligation. It is a declaration of basic
principles of human rights and freedoms to be stamped with the
approval of the General Assembly by formal vote of its members,
and to serve as a common standard of achievement for all peoples
of all nations.10

Unfortunately, it would take 18 years before a mechanism would be ready to provide

enforcement of these ideals. This mechanism would take the form of two independent covenants,

divided between civil and political rights and social, economic and cultural rights. These

covenants, the International Covenant on Civil and Political Rights and the International

Covenant on Economic Social and Cultural Rights, would not enter into force until the late

1970’s.

In drafting the UDHR, the Commission ensured that economic and social rights, in

addition to civil and political rights, were included. The express intent of the Commission in

drafting the UDHR was to give these two sets of rights equal standing, and to indicate their

9
Id. at 18.
10
Eleanor Roosevelt, Adoption of the Declaration of Human Rights, http://www.udhr.org/history/ergeas48.htm.
Felder 6

interdependence and relatedness. But, this vision was subverted by the failure of the international

community to develop a singular covenant to implement the declaration. This perspective was

reinforced at the 1993 World Conference on Human Rights in Vienna, Austria, where the

conference concluded that, “All human rights are universal, indivisible and interdependent and

interrelated. The international community must treat human rights globally in a fair and equal

manner, on the same footing, and with the same emphasis.”11 Polarization between these two

categories of human rights remains, with wealthier nations like the U.S. viewing economic and

social rights as goals for which a country should strive, but unequal to the civil and political

rights guaranteed in the U.S. Declaration of Independence and U.S. Constitution.12 On the other

hand, countries with fewer means argue that civil and political rights are of little use to an

individual who is starving, homeless, and ill. Thus, this bifurcation of essential human rights

continues globally today.

Although the U.S. was instrumental in ensuring the inclusion of economic and social

rights in the UDHR, it has traditionally refused to recognize these as human rights. Preeminent

among the early reasons was the impact of the ideological battles surrounding the Cold War –

communism versus capitalism.13 As such, these rights are still sometimes referred to as

“workers” rights and “red” rights.14 Although the Cold War has been over for close to two

decades, supporters of nationalized health care or of increased welfare are often derided as

“socialists.” Also at issue was the theory of progressive implementation – this requirement
11
Vienna Declaration and Programme of Action, Part I, p. 5, U.N. Doc. A/CONF.157.23, reprinted in 32 I/L.M.
1661 (July 12, 1993).
12
Although some scholars argue that the rights enshrined in the Declaration of Independence require that an
individual’s basic economic and social needs be met. Thus a country with the economic means necessary to fulfill
economic and social rights has the obligation to do so. Linda M. Keller, The American Rejection of Economic
Rights as Human Rights and The Declaration of Independence: Does the Pursuit of Happiness Require Basic
Economic Rights?, 19 N.Y.L. Sch. J. Hum. Rts. 557 (2003).
13
Philip Alston, Economic and Social Rights, in HUMAN RIGHTS: AN AGENDA FOR THE NEXT C ENTURY 137, 148
(Louis Henkin & John Lawrence Hargrove eds., 1994).
14
Johan D. van der Vyver, Human Rights in the Twenty-First Century: A Global Challenge, 8 Emory Int'l L. Rev.
787, 799 (1994) (book review).
Felder 7

imposed a responsibility for governments to take positive action to address the essential demands

required to ensure the protection of economic, social and cultural rights. These, and other

reservations, have precluded the U.S. Senate from ratifying the ICESCR.15

Because of this national history with respect to economic, social and cultural rights,

President Bush’s speech before the General Assembly of the U.N. in 2007 represented a major

shift with respect to the status of the second generation rights enumerated in the UDHR. He

opened his speech by quoting the preamble of the UDHR, and stating that the “standards of the

Declaration must guide our work in this world.”16 In summarizing the challenges facing the

international community, he argued, “When millions of children starve to death or perish from a

mosquito bite, we’re not doing our duty in the world.” He then lists “hunger and disease,

illiteracy and ignorance, and poverty and despair” as several of the conditions from which the

nations of the world must work to free people.17 President Bush cited three of the Articles from

the UDHR specifically to discuss state practice taken by the U.S. government in support of these

principles. While previous administrations had made general statements in support of the UDHR,

and careful overtures about considering the ratification of the ICESCR, President Bush clearly

affirmed the principles of the UDHR, illustrated U.S. state practice in their support, and indicated

that this practice should be undertaken out of obligations created by the UDHR.

The Obama administration wasted little time in continuing this new direction. The

administration attached an annex to a letter requesting candidature in the 2009 election for

membership on the Human Rights Council, detailing the human rights pledges and commitments

15
Binding Force, supra note 5, at 171. Another issue likely to prevent U.S. action is the fact that social and
economic rights traditionally fall to the individual states to preserve and protect. As a result, the federalist structure
of the U.S. government would prevent ratifying the ICESCR without a federalism reservation, which would leave
the treaty without any threat of domestic implementation.
16
George W. Bush, Address To The U.N. General Assembly (Sept. 25, 2007),
http://merln.ndu.edu/archivepdf/nss/WH/20070925-4.pdf.
17
Id.
Felder 8

of the U.S.18 In this document’s preamble, the administration discusses the commitments and

obligations attached to the UDHR, leaving little room to debate its norm-setting qualities:

The deep commitment of the United States to championing the

human rights enshrined in the Universal Declaration of Human
Rights is driven by the founding values of our nation… As the
United States seeks to advance human rights and fundamental
freedoms around the world, we do so cognizant of our own
commitment to live up to our ideals at home and to meet our
international human rights obligations.19

In making specific pledges, the administration committed to both national and international

advancement of human rights generally, and then enumerated several economic and social rights

as requiring proactive enforcement.20

B. Customary International Law: Theory

1. Custom as a Source of International Law

Since the creation of statist structures, the foundational assumption for norm creation has

been the existence of free will. The analogous assumption underlying the creation of

international norms is the existence of state sovereignty.21 While there is some disagreement as to

both the definition and the source of state sovereignty, it is commonly accepted as a pragmatic

fact. The protection of this sovereignty, and also establishing the formal equality of states in law,

were the traditional goals of international law.22 When principles of traditional international law
18
Letter from Susan E. Rice, Permanent Representative of the U.S., to the President of the Gen. Assembly, United
Nations (Apr. 22, 2009), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/312/64/PDF/ N0931264.pdf?
OpenElement.
19
Id. at 2.
20
Id. at 3-4 (discussing Article 23 protections for workers and Article 25 rights to health).
21
The notion of state sovereignty fits into a larger group of state fundamental rights recognized by the natural-law
doctrine, a prevailing eighteenth and nineteenth century viewpoint that still has many proponents today. This
doctrine ascribes to the state certain rights, as if it exists as a personality. Like an individual before subjecting herself
to the jurisdiction of a state, the state itself has certain rights prior to entering into the international community. The
state voluntarily enters into the international community in order to protect certain rights – most importantly the
right of sovereignty and equality. HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 153 (The Lawbook
Exchange, Ltd. 2010) (1952).
22
ANTONIO CASSESE , INTERNATIONAL LAW 88 (2001).
Felder 9

were considered during the formulation of the United Nations, there was considerable discussion

over the recognition of state sovereignty and the equality of member and non-member states.23

Ultimately, this discussion was codified in the U.N. Charter, stating: “The Organization is based

on the principle of the sovereign equality of all its Members.”24 The principles of sovereignty and

sovereign equality continue to serve as the foundation for the whole body of international legal

standards.25

The international community generally recognizes two principle methods for creating

legally binding rules: treaties and custom. Both modes of creation rest on the consent of the state

actors and stem directly from the way in which state actors consent – either explicitly or

implicitly. Treaties, as they are only applicable to the contracting parties, necessarily rely on the

explicit consent of the participating parties to be legally bound. Custom also relies ultimately on

consent, but the consent is implicit.26 While the treaty process allows states to come together with

the intent of creating binding standards on all those who participate in the treaty negotiations and

the ratification process, custom emerges when states act with the primary purpose of maintaining

some economic, social or political interest, yet through their actions, participate in the norm-

setting process.27 Succinctly put, custom is created as the unintentional outgrowth of states acting

in their own self-interest – “custom is unconscious and unintentional lawmaking.”28 Although

23
Entry into the international community necessarily requires the state to also submit to international law, and thus
to cede a portion of its sovereignty. It does so only based on the assumption that other members of the international
community will accept the same restriction of their sovereignty. This principle, that the common consent of states
forms the basis of international law, is explained by Hans Kelsen: “An essential element of this view is the idea that
the international community, or the legal order constituting this community, i.e., general international law, is based
on the common consent of the states, or, which amounts to the same, on a contract of the members of this
community.” Kelsen, supra note 21, at 153.
24
U.N. Charter art. 2, para. 1.
25
Cassese, supra note 22, at 88.
26
Additionally, a state may object to a customary norm in order to prevent it from acquiring a binding effect on that
state, even if it is binding on the rest of the world. However, this objection must be made at the time of the norm’s
creation (or the state’s creation if later in time) and it must be continuous. See Cassese, supra note 22, at 123.
27
Cassese, supra note 22, at 119.
28
Kelsen, supra note 21, at 308.
Felder 10

treaties have become far more common and play an important role in the development of

international, there remains no unique hierarchical structure between the two sources. 29 As such,

custom remains an important source of binding international legal norms.

2. Elements of Customary International Law

Customary international law is created by the co-existence of two discrete, yet

interrelated, elements: general state practice (usus), and the conviction on the part of the state

actors that such action is a duty or the exercise of a right, opinion juris sive ex necessitate

(hereafter opinio juris).30 This theory in international law evolved from similar natural law

formulations of promises or pacts – that the individual whose freedom is to be curtailed by

obligations must have both the physical and moral faculty to be bound.31 The first element, usus,

simply refers to the fact that certain acts or omissions have been repeatedly performed virtually

universally over a certain period of time. The second element requires that state actors undertake

the practice because they believe that they are applying an established norm or exercising an

established right.32 For a norm to achieve binding effect as a part of customary international law,

both of these elements must be satisfied.

The first element of custom is based on the simple assumption that one is obligated to

behave in a similar way to the way others generally behave. Thus, the way state actors generally

behave with respect to a certain situation, if virtually universal over a given period of time,
29
Id. at 304. While custom is the older and the original source of international law, norms generated by custom are
no greater nor are they superseded by rules created by treaty. Conflicts between the two sources are settled by the
three general principles that govern the relationships between all legal norms: (1) a later law repeals and earlier one;
(2) a specific law prevails over a general one; and (3) a later law, general in character, does not supersede and
earlier, specific one. Cassese, supra note 22, at 117. However, some scholars divide customary international law into
jus cogens and jus dispositivum, arguing that only jus dipositivum may be replaced by treaty, and that only jus
cogens may override an existing treaty, but this difference is not within the scope of this comment. See Kelsen,
supra note 21, at 322-23.
30
Most authors refer to both the act of duty and the exercise of a right as opinio juris, but some refer to the exercise
of a right as opinio necessitatis; see Cassese, supra note 22, at 119.
31
SAMUEL PUFENDORF, On the Law of Nature and of Nations in Eight Books, in THE POLITICAL WRITINGS OF
SAMUEL PUFENDORF 95, 172 (Craig Carr ed., Michael Seidler trans., Oxford University Press 1994) (1729).
32
Cassese, supra note 22, at 119.
Felder 11

generates a norm with respect to that situation in that period of time.33 Many international law

scholars refer to this as the objective, or “material” element of custom.34 It is objective in that one

only needs to observe the behavior of state actors over a period of time to determine the general

state practice.

The process of identifying general state practice, while objective, lacks clear, definite

standards for determining when a behavior commonly shared among state actors becomes usus.

A useful analogy likens the creation of general practice as footsteps create a path, which is then

habitually followed – it is almost impossible to determine at which exact point the path

emerges.35 Four factors aid in conducting a quantitative analysis of state practices for

classification as “general”: duration, repetition, continuity, and generality.36 In some cases, these

four factors can be equally frustrating in their application, and some writers have suggested that,

while these factors make the determination of general state practice more “visable”, there is little

evidence that “these elements are necessary for the actual formation of a rule of customary

law.”37

The second element of custom, known alternatively as the subjective, the psychological

or the moral element, is, of the principles of international law, one of the most difficult to

identify and define. Although there is general agreement that it plays an important role in the

creation of customary international law, there is little agreement about its character or in

resolving several problems with its formulation.38 At its most basic, opinio juris is the indication

that there is a uniting of the will among the various states – a tacit consent to be bound by a

33
Kelsen, supra note 21, at 307.
34
ANTHONY A. D’AMATO , THE C ONCEPT OF C USTOM IN INTERNATIONAL LAW 49 (1971); see also M ICHAEL
BYERS , CUSTOM, POWER AND THE POWER OF RULES 130 (1999).
35
PITT COBBETT , LEADING CASES ON INTERNATIONAL LAW 5 (4th ed. 1922).
36
D’Amato, supra note 34, at 56.
37
Id. at 66.
38
Byers, supra note 34, at 18.
Felder 12

certain principle.39 Also, opino juris requires a certain degree of state consciousness of intent to

be legally bound by their actions.40 While most scholars agree that there must be some subjective

element to create binding custom, several issues arise in attempting to determine state intent. 41

The first of two general issues with the necessity of opinio juris is its apparent

circularity42 - if the creation of custom requires state actors to be conscious of their accordance

with existing binding international law, then how can it ever be created? One instructional

solution to this paradox suggests that state actors may act out of a feeling of obligation or right

even if the state does not believe a legal norm is being applied.43 This solution may seem to be

over-inclusive, for social courtesy may cause a state to act out of feeling of moral obligation

without creating binding law. But this criticism ignores the interplay between the two elements.

If there is a general state practice to act in a certain way out of a feeling of obligation, regardless

of the original source of that obligation, then a binding custom is present.

An alternative objective analysis of opinio juris would require a concurrent or advance

articulation of international legality.44 This would certainly seem to alleviate some of the

vagueness from the current subjective requirements. But the subjectivity would simply shift to

the requirements of an “articulation.” Instead of leaving flexibility to state actors and the courts

to determine if states acted under the color of law, they would ask instead whether state actors

39
Among positivists, opinio juris is viewed as the only necessary element. Overt acts of the state serve only to
illustrate implied consent. They argue that, if opinio juris can be clearly established, there need not be any long
duration, frequency or generality of state practice. See D’Amato, supra note 34, at 50.
40
This presumed consciousness is discussed with respect to the Lotus Case, below. Some scholars find this element
to be so difficult to determine that it becomes functionally useless in predicting developments in international law.
These difficulties, however, exist primarily when attempts are made to determine whether a new custom has
replaced an old one – opino juris remains useful for the identification of existing customary law, for if we can say
that a state is acting in accordance with its conviction that it is in conformity with existing international law, then we
already know that the international law is. See id. at 47, 56.
41
Analysis of this element is by its nature subjective, and ultimately vague, but this has not deterred scholars, courts
and state actors from requiring it as an element of custom creation.
42
At least one author refers to this as the “chronological paradox.” Byers, supra note 34, 130.
43
Kelsen, supra note 21, at 307.
44
D’Amato, supra note 34, at 74.
Felder 13

accurately and effectively articulated the purposes behind their actions. While this alternate

formulation may not solve the circularity problem or the inherent vagueness of opinio juris, it

also illustrates that, in situations where state actors have clearly articulated their intention to act

under the color of law, the element of opinio juris is certainly present.

The second issue with current formulations of the opinio juris requirement is that,

because both state actions and statements may indicate satisfaction of this element, the

requirement of general state practice becomes subsumed and irrelevant. Yet there would still be

need for some element like opinio juris to determine the legal relevancy of the state actions or

statements.45 In simple cases, general state practice is determined by observing the universality of

a particular state action, while intent is determined by listening to concurrent statements about

the intent behind these actions. But these are the cases where the standards of customary

international law appear to already be known to state actors.46 While it is important to analyze

both state action and statements, and to use both to illustrate practice and intent, only when the

objective and subjective elements coexist can binding custom be said to emerge.

The bipartite nature of custom, and the inherent complexity of both state organs and the

international system, necessitates some overlap between the two elements of customary

international law. Statements may often not be accurate indications of a state actor’s intent,

because diplomats may not be privy to executive branch intentions, or may just not mean what

they say.47 State action might, in these cases, be a far more accurate and trustworthy indication of

state intention. Yet action alone is difficult to interpret, and the need for some form of statement

becomes necessary again. Thus it appears (and is adopted for the purposes of this comment) that
45
Byers, supra note 34, at 136. This objection to the bipartite definition of custom conflates method, i.e. state action
or statement, with purpose, i.e., state practice or intent. An action can be used to display intent, just as a statement
can be a state practice. There must be a clean separation in the inquiry between action as state practice, and
statements as evidence of intent. D’Amato, supra note 34, at 74.
46
Id.
47
Byers, supra note 34, at 135.
Felder 14

a balancing of action and statement, practice and intent, provides the most pragmatic means for

determining custom.

C. Customary International Law: International Judicial Applications

Some of the most instructive sources for a framework of how the international

community determines if an international norm has become binding customary international law

are the decisions of the judicial branch of the U.N., the International Court of Justice. Established

by the U.N. Charter, the court is authorized by that statute to apply not only international

conventions, but also international custom, as evidence of a general practice accepted as law.48

As such, its decisions have formed the structure by which binding custom is assessed in the

international community, and they serve as a lodestar by which the status of the principles of the

UDHR may be assessed. Three cases effectively illustrate the role of custom in international law:

the Lotus Case, the North Sea Continental Shelf Cases, and the Nicaragua Case.

1. The Lotus Case

The Lotus Case represents one of the first judicial explanations of customary

international law. The court explains both the equality of conventions and customs, and also the

necessity of opinio juris to form binding law. The case arose from a collision between two

steamers, one French and the other Turkish, in international waters, resulting in the deaths of

eight Turkish nationals. The case was brought before the Permanent Court of International

Justice in 1927 by agreement of the two nations. At issue was whether Turkey had jurisdiction to

bring criminal proceedings against the French officer on duty at the time of collision. The French

government made three arguments, of which two involved an examination of customary

48
U.N. Charter art. 38, para. 1.
Felder 15

international law. The court found Turkey to have jurisdiction because there was no international

law in conflict.49

In the second argument considered, France contended that, because the collision occurred

on the high seas, the state under whose flag the vessel sailed had exclusive jurisdiction.50 The

court found that there is no rule of international law that prevents a state from regarding an

offense committed on a ship bearing its flag as one that occurs in its territory and, therefore,

subject to its jurisdiction.51 However, the court reasoned that this could be overcome if there was

some rule of customary international law that establishes exclusive jurisdiction of a state over a

vessel that flies its flag. Relying on the French claims, the court examined scholarly opinions,

precedent and convention to determine if custom created an international law. With terse

explanation, the court distinguished most of the French examples, and concluded that there is no

general state principle supporting the French argument, and as such, no customary international

law.52

The third argument considered by the court was “whether a rule specially applying to

collision cases [had] grown up, according to which criminal proceedings regarding such cases

come exclusively within the jurisdiction of the State whose flag is flown.”53 The French

government argued that jurisdictional arguments arising out of collision cases were frequently

encountered in civil courts, but not in criminal proceedings. As such, criminal proceedings were

only brought in the State whose flag was flown, and that this was an indication of tacit consent to

exclusive criminal jurisdiction.54 The court assumed that this was a satisfaction of the first

element of custom – that this was the general practice of states with respect to criminal
49
Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 27.
50
Id. at 24.
51
Id. at 25.
52
Id. at 27.
53
Id. at 28.
54
Id.
Felder 16

proceedings arising from collisions. But even assuming this general practice, the court found that

there was no evidence that the states acted because they “recognized themselves as being obliged

to do so; for only if such abstention were based on their being conscious of having a duty to

abstain would it be possible to speak of an international custom.”55

One significant issue illustrated by this reasoning is that states are presumed to have a

consciousness with respect to their actions. In assessing the presence of opinio juris, the court

requires that the state actors “recognize” obligations. It is impossible for a state to “recognize”

anything, and even if the state cognitive function is derived from that of its decision-makers, it

would still be impossible to ascertain what each decision maker was thinking when they

abstained from prosecution.56 Yet state actions can often convey “recognition.” Executive

statements, passage of legislation, and judicial opinions can all convey state recognition of a

perceived legal norm. For example, the existence of frequent diplomatic exchanges declining

enforcement of criminal jurisdiction over collision cases would have illustrated a perception of a

legal norm requiring abstention from prosecution.57

2. The North Sea Continental Shelf Cases

In a later case, the Chamber of the International Court of Justice states that its decision in

the North Sea Continental Shelf Cases was “the judicial decision which has made the greatest

contribution to the formation of customary law in this field.”58 The dispute brought before the

International Court of Justice in this case was whether the equidistance principle, defined in

55
Id.
56
D’Amato, supra note 34, at 82.
57
Another issue illustrated by this decision is that, for a state to be conscious of having a duty, that same duty must
exist prior to the state action. Yet, the state must act prior to the duty being created. This paradox seems to preclude
the creation of new international norms. However, it is possible for a state to be conscious of a duty long before it is
established as a general state principle. The existence of usus is necessary to establish the universality of principle,
while the existence of opinio juris is necessary to establish that the same principle is binding. This paradox
mistakenly conflates the two purposes.
58
Gulf of Maine, 1984 I.C.J. 246, at 293.
Felder 17

Article 6 of the 1958 Geneva Convention on the Continental shelf, applied to the delineation of

the continental shelf between the Federal Republic of Germany on one hand, and Denmark and

the Netherlands on the other. The court determined that the convention did not apply to the

Federal Republic of Germany as they had not ratified it, nor was the equidistance principle a rule

of customary international law.59

The disagreement arose due to the fact that a delineation based on the equidistance

principle would unfairly cut out the Federal Republic’s portion of the continental shelf as its

shoreline was concave. Both Denmark and the Netherlands stood to gain more of the continental

shelf as a result of their convex shorelines.60 Thus, the dispute centered on the equity of the

equidistance principle as applied to these particular circumstances. Both Denmark and the

Netherlands contended that the matter was governed by the equidistance principle as a result of

Article 6, which contained a rule that in the absence of agreement by the parties, all continental

shelf boundaries had to be drawn by means of an equidistance line unless "special

circumstances" were recognized to exist. They contended that this situation did not constitute a

special circumstance.61

After disposing of the claim that the treaty applied to the Federal Republic, the issue

remained as to the status of the equidistance principle as a rule of customary international law.62

The court began this examination by determining if Article 6 set out the basis of a general rule.

The court noted three issues which arose from this investigation. First, the equidistance principle

is set out as a secondary means for resolving disputes, after interstate dialogue and agreement.

Second, the Article mentions special circumstances for which the rule would not apply, without

59
Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, at 46.
60
Id. at 17.
61
Id. at 24.
62
Id. at 41.
Felder 18

defining what these circumstances might be. Finally, unlike the first three Articles of the

convention, Article 6 was subject to reservations.63 While these issues do not necessarily prevent

the equidistance principle from becoming general law, the court determined that Article 6 did not

possess the norm-creating character necessary to support emergent customary international law.64

The court then considered whether the general participation in the convention illustrated

that the equidistance principle had become a general state practice, and a rule of customary

international law. While the convention had achieved relatively widespread support, the number

of state actors that had ratified the treaty was hardly sufficient to consider its rules general

practice.65 The court also considered the amount of time between the ascension of the treaty and

the present case. After noting that there was no established length of time necessary to create a

binding norm, the court determined that, in a short period of time, state practice “should have

been both extensive and virtually uniform.”66 In assessing this state practice, the court looked to

15 cases which had been cited where states concerned used the equidistance principle to

determine the delineation of boundaries, but found that there was no evidence that the states

acted because they felt legally compelled to use the principle.67 The court summarized its

findings by explaining the necessity of opinio juris in the creation of customary international

law:

Not only must the acts concerned amount to a settled practice, but they must also
be such… as to be evidence of a belief that this practice is rendered obligatory by

63
Unlike the first three articles of the convention, which were not subject to reservation, Article 6 was. Because
Denmark and the Netherlands were attempting to illustrate that through Article 6, the equidistance principle
emerged as a new customary international law, it was problematic for the court that states entering into the treaty
had the option of entering reservations not to follow the same principle. While other provisions included standards
and rules of customary law, and were also not excluded from reservation, they related to general rules only
incidental to continental shelf rights. The court reasoned that these were mentioned in the convention to ensure that
they were not subsumed by specific continental shelf rights.
64
Continental Shelf, supra note 59, at 42.
65
Id.
66
Id. at 43.
67
Id. at 43-44.
Felder 19

the existence of a rule of law requiring it. The need for such a belief… is implicit
in the very notion of the opinio juris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation. The
frequency, or even habitual character of the acts is not in itself enough. There are
many international acts, e.g., in the field of ceremony and protocol, which are
performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.68

The Court consequently concluded that the Geneva Convention was not in its origins or

inception declaratory of a mandatory rule of customary international law requiring the use of the

equidistance principle, nor had state practice up to that date been sufficient for the purpose of

creating the same.69

3. The Nicaragua Case

In the early 1980’s, the U.S became embroiled in hostilities in Nicaragua while

attempting to fight a covert war against the Nicaraguan government by supporting Contra

guerillas.70 The International Court of Justice held that the U.S. had violated international law,

and awarded reparations to Nicaragua. The case become infamous as the U.S. refused to

participate in the proceedings after the court determined that it had jurisdiction. After the

judgment, the U.S. used its powerful position on the Security Council to prevent Nicaragua from

receiving any compensation. Key to the court’s findings on the merits was the determination of

the United States’ obligations under customary international law. In determining these, the court

indicated that resolutions and declarations may be considered state practice for the purpose of

creating or illustrating rules of customary international law. More generally, the court indicated

that expressions or articulations could indicate opinio juris.

68
Id. at 44.
69
Id. at 46.
70
Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, at 11 [hereafter Nicaragua].
Felder 20

Upon concluding that it did have jurisdiction in the case, the court proceeded to consider

the applicable rules of customary international law to the dispute.71 The court notes that, although

both parties assert the same principles as to the use of force, this, by itself, does not establish

custom. The court must establish for itself that the principles are both in general practice and are

undertaken under the color of law. In evaluating general practice, the court made an important

caveat –it was not to be expected that state practice apply rules perfectly. The court deems it

sufficient that conduct be generally in conformity, and that actions inconsistent with the rule be

considered breaches, not recognitions of a new rule. In fact, if states defend their inconsistent

conduct by appealing to exceptions or justifications, their actions actually confirm the general

state practice.72

Both parties agreed, and the court determined that the applicable principles as to the use

of force found in the U.N. Charter generally correspond to those of customary international law.

Both parties therefore accepted an obligation to refrain from the threat or use of force against the

territorial integrity or political independence of any other state. But just the agreement of the two

parties does not establish general practice or opinio juris, and the court has to be satisfied that

these exist for such an abstention to have this binding character. The court deduced that, with

caution, this opinio juris may be determined by the attitude of the parties and of other states

towards resolutions and declarations - particularly resolution 2625 (XXV) entitled "Declaration

on Principles of International Law concerning Friendly Relations and Co-operation among States

in Accordance with the Charter of the United Nations". Consent to such resolutions must be

regarded as an acceptance of the validity of the binding nature of the rules contained in the

resolution, and, as such, one of the forms of expression of an opinio juris. The court proceeded

71
Id. at 87.
72
Id. at 98.
Felder 21

to then examine several other instruments to which the U.S. was a party to illustrate that the

abstention from the use of force was opinio juris.73 After this examination, the court determined

that, while there were few multilateral treaties to which the U.S. was a party that constrained the

use of force, the country’s actions, in acquiescing to use of force provisions, were enough to

deduce that these principles against the use of force were a part of customary international law

and had binding effect. Just because the U.S. had objected sporadically to use of force

provisions, and intervened in third-party conflicts, did not overwhelm its acceptance of the

legally binding effect of the international custom – in fact, the court found that in the past

situations where the U.S. violated use of force provisions, it clearly indicated that it was doing so

in spite of its support of the general norm, and argued why those circumstances were

exceptions.74 Thus even the character of a country’s action in opposition to an established norm

can indicate opinio juris. Therefore, the U.S. was bound by customary international law to

refrain from the unauthorized use of force.

D. Binding Force of the Universal Declaration on the United States

As noted above, the UDHR was, from its inception, never intended to impose legal

obligations on states at the time of its adoption. Rather, because it was presented as a moral

authority, state practice in adherence to the UDHR would fall into the category of actions out of

moral belief, not out of legal obligation. Legal obligation – enforcement of these moral principles

with the power of binding international law – arose first from the subsequent conventions which

formed legally binding treaties among the ratifying and ascending states. In addition to the

conventions, many argue that, with the passage of time, many parts of the UDHR, if not the

73
Id. at 100-01.
74
Id. at 109.
Felder 22

entire declaration, have become binding as a part of customary international law.75 However,

even those most supportive of this position disagree as to which specific norms in the declaration

have achieved status as customary international law. Even if the UDHR generally has been

accepted and given status as customary international law, the duties to which it binds the states

of the world are ill-defined.

Because the rights of the UDHR are universally respected at least as goals for state actors

to strive for, their protection and promotion has achieved the status of general state practice,

although not necessarily binding. The UDHR has been frequently quoted since its formulation 6

decades ago as the defining document of human rights protection and promotion. It serves as the

foundation for most of the modern world’s codifications, both international and domestic, of

human rights protection.76 Some scholars go so far as to call it the “Magna Carta of

humankind.”77 It is quoted regularly in both national and international court opinions.78 Because

of the duration, repetition, continuity, and generality of its application, the UDHR clearly

constitutes state practice, and satisfies the usus element of customary international law.

The almost universal ratification and ascension to the devices created to enforce the

values described in the UDHR – the ICCPR and the ICESCR – provides clearer evidence that the

protection and promotion of the rights articulated by the UDHR are general state practice. If both

of these conventions had been signed and ratified by all the nations of the world, the moral

beliefs outlined by the UDHR would have become binding law through the treaty process, as

members of the drafting Commission assuredly hoped would happen. To date, 160 nations have

75
Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25
Ga. J. Int’l & Comp. L. 287, 319 (1996).
76
Id. at 289.
77
Id. at 326.
78
A comprehensive review of citations to the UDHR in various legal systems is made by Hurst Hannum. See id. at
292-311.
Felder 23

ratified or ascended to the ICESCR79 and 167 nations have ratified or ascended to the ICCPR.80

This widespread support not only illustrates that the promotion and protection of the rights in the

UDHR are accepted as general state practice, but it also possibly serves to provide an indication

of overwhelming international opinion such that non-signatory nations may still be bound by the

norms established under these two conventions by customary international law. Similar to the

reasoning of the ICJ in the Nicaragua Case, the UDHR and the subsequent conventions serve as

indications not only of general state practice, but also as evidence of opinio juris.81 Because the

conventions have been ratified and implemented in the vast majority of states, the norms

contained within them are general state practice undertaken under the color of law.82 The fact

that one or two nations have abstained would not deter from their status as customary

international law, and those abstaining states, absent clear rejection of the norms in question,

would still be bound by the principles articulated by the conventions. Unlike the convention

disputed in Continental Shelf, the ICESCR and the ICCPR both have widespread international

support. Of the industrialized nations, only the U.S. has failed to ratify the ICESCR. As the ICJ

stated, state practice which is “extensive and virtually uniform” will create binding norms of

customary international law if they are undertaken with opinio juris.83 Kelsen argues that “the

assumption that such a consent has actually been given by all the states is a political fiction.”84 A

79
Status of Treaties, International Covenant on Economic, Social and Cultural Rights, http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en (last visited Dec. 8, 2010).
80
Status of Treaties, International Covenant on Civil and Political Rights, http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (last visited Dec. 8, 2010).
81
Nicaragua, supra note 70, at 100 (holding that the U.N. Charter, plus resolutions of the U.N. General Assembly
can form the basis of customary international law).
82
This is also reflected in the Restatement: “Practice accepted as building customary human rights law includes:
virtually universal adherence to the United Nations Charter and its human rights provisions, and virtually universal
and frequently reiterated acceptance of the Universal Declaration of Human Rights even if only in principle;
virtually universal participation of states in the preparation and adoption of international agreements recognizing
human rights principles generally, or particular rights…” Restatement (Third) Of The Foreign Relations Law Of The
United States § 701, n.2 (1987).
83
Continental Shelf, supra note 59, at 43.
84
Kelsen, supra note 21, at 311.
Felder 24

newly created state, though never able to consent to the norms of customary international law,

would be bound by those norms nonetheless. As such, the widespread ratification of the two

conventions has converted their norms into binding customary international law.

Even though the ICESCR enjoys widespread support, because it allows countries to enter

the covenant with reservations, it may not be sufficient to illustrate universal state practice for

the purpose of creating customary international law. In Continental Shelf, the ICJ found the use

of the equidistance principle to not be a rule of customary international law primarily because

there was a general lack of state acceptance, and the presentation of the rule in the treaty allowed

for reservations.85 As to the lack of state acceptance, the court indicated that there had only been

a short time period between the introduction of the treaty and the present case, and there were

also very few countries to have ratified the treaty.86 This aspect of the Continental Shelf ruling is

easily distinguishable. With respect to the ICESCR, the covenant is the later embodiment of

principles announced by the UDHR over 60 years ago. The overwhelming majority of countries

in the world have either ratified or ascended to the ICESCR. The weight of global opinion is,

therefore, that the articles of the ICESCR are enforceable global norms. As to the second issue,

the Continental Shelf court could find no evidence indicating that states employing the

equidistance principle believed that they were acting out of legal obligation. This lack of

evidence, combined with the fact that a state could enter the overall treaty while not agreeing to

follow the equidistance principle, indicated to the court that the use of the equidistance principle

in solving disputes was not binding.87 The ICESCR also allows for reservations, but, given the

overwhelming international state support for the declaration as a whole, this only means that the

contents of the covenant must be evaluated on a right by right basis to ensure that an individual

85
Continental Shelf, supra note 59, at 46.
86
Id. at 42.
87
Id. at 43.
Felder 25

right is recognized as a general state practice.88 Thus the rights in the ICESCR should be

presumed internationally enforceable unless a party state has entered a reservation regarding that

right, or a non-party state has consistently rejected the legally binding effect of that specific

right.

Because the ICESCR is presumed to have binding effect as a customary norm, the only

way a non-party state, like the U.S., might be able to remain outside of the established norms is if

it had consistently rejected the specific norms within the ICESCR and their UDHR equivalents.

In the case of the U.S., the failure to ratify the ICESCR and the consistent rejection of social,

economic and cultural rights as legal obligations would indicate a lack of consent. Although the

U.S. signed the ICESCR, thereby pledging to support the effective exercise of economic, social

and cultural rights, it has consistently refused to recognize this set of rights as equal to the civil

and political rights – which they recognized by signing and ratifying the ICCPR. Furthermore,

the U.S. has failed to ratify the ICESCR over the past 6 presidential administrations. In doing so,

it has ensured that the portions of the UDHR pertaining to this class of rights have not attained

binding status with respect to the U.S.89 Furthermore, the U.S. government has historically

denied categorically the existence of economic, social and cultural rights as a class. These

specific rejections, and the refusal to ratify the convention, suffice to indicate an objection by the

U.S. government to these international norms.

Although ratification of the ICESCR would be the swiftest and surest way to bind the

U.S. to the principles of the UDHR, Bush’s speech to the U.N. in 2007, and the current

88
One typical reservation the U.S. enters is a “federalism reservation” which indicates that the federal government
will only implement an international agreement to the extent it is authorized by the U.S. Constitution. If the matters
covered are in the province of the state and local governments, the federal government will take measures to support
the state and local governments for the fulfillment of the international agreement. See R ICHARD B. LILLICH ET AL.,
INTERNATIONAL HUMAN RIGHTS 115 (4th ed. 2006).
89
Although, this refusal to ratify does not, by itself, necessarily indicate a rejection of the norms established by the
conventions.
Felder 26

administration’s 2009 letter to the President of the General Assembly constitute acceptance of

the principles of the UDHR on behalf of the U.S., reversing decades of recalcitrance. The U.S.

Constitution grants the executive branch almost absolute power in conducting international

relations on behalf of the U.S. government.90 As such, U.S. executive actions would be the

clearest indicator of state recognition with respect to international legal norms. Unlike the Lotus

case, where there was a lack of clear evidence of the government’s recognition of the

international custom’s binding status, these two executive statements indicate a clear

governmental perception of the UDHR’s principles as binding. President Bush referred to the

UDHR as a “guide” and a “promise” before discussing three of the articles containing social and

economic rights in depth. He further categorized allowing millions of children around the world

to starve to death as a failure of “our duty.”91 The language used in the Obama administration’s

letter was far clearer. The preamble to the annex recognizes the country’s cognizance of its

commitment “to meet our international human rights obligations,” and includes the furtherance

of the UDHR as one of these obligations.92 Thus, the language of both Bush’s speech and the

Obama administration’s letter indicate that the U.S. feels an obligation under international to

conform to the principles of the UDHR, and, more specifically, to protect economic, social and

political rights.

But a blanket endorsement of the UDHR still leaves the option for the U.S. to ignore

certain rights, claiming that it can embrace the document as a whole without binding itself to

every principle it contains. Due to the long-standing U.S. opposition to the “second generation”

rights, it would be most likely for the U.S. government to continue to claim that it rejects the

90
See U.S. v. Curtiss-Wright Corp., 299 U.S. 304, at 319 (1936) (recognizing the broad inherent presidential power
in the area of foreign policy). See also Dames & Moore v. Regan, 453 U.S. 654, at 686 (1981) (upholding
presidential authority to make executive agreements with foreign entities).
91
Bush, supra note 16, at 1.
92
Rice, supra note 18, at 2.
Felder 27

portions of the UDHR that form the ICESCR and require protection and promotion of these

rights. However, Bush’s letter cites three articles from the UDHR which enumerate social and

economic rights. Prior to quoting those articles, Bush states that the mission of the U.N.

“requires” taking action to protect those rights. He then explains the actions the U.S. has taken to

fulfill its duty. He cites Article 23, which grants “everyone… the right to work, to free choice of

employment, [and] to just and favorable conditions of work.”93 He then explains how the U.S.

has attempted to create new free-market trading regimes, and given aid to more impoverished

communities abroad.94 He cites Article 25, which states that “everyone has the right to a standard

of living adequate for the health and well-being of himself and of his family.”95 He then recounts

how the U.S. has used foreign aid to combat the spread of AIDS and malaria.96 Finally, he cites

Article 26, which states that “everyone has the right to education,”97 and then discusses U.S.

involvement in aiding other countries with school supplies and teacher training.98 For each of

these economic or social rights, Bush provided both a U.S. state practice and a statement of

intent that illustrates that these Articles of the UDHR should be considered binding with respect

to the U.S. as rules of customary international law.

In addition to committing the U.S. to the purpose of the UDHR generally, the Obama

administration’s letter also mentioned several individual rights to which it pledged to advance. In

addition to several civil and political rights, the letter mentioned promoting respect for worker’s

rights, to include addressing child labor issues and the promotion of worker organizations,99 and

93
Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc.
A/810 (Dec. 10, 1948) [hereafter UDHR].
94
Bush, supra note 16, at 3-4.
95
UDHR, supra note 93, art. 25.
96
Bush, supra note 16, at 3-4.
97
UDHR, supra note 93, art. 26.
98
Bush, supra note 16, at 3-4.
99
Rice, supra note 18, at 4. See also UDHR, supra note 93, art. 23 (pertaining to workers’ rights).
Felder 28

the fight against HIV/AIDS.100 This reaffirms the commitment made by Bush, and indicates that

the U.S. government now views those rights enumerated by Articles 23 and 25 of the UDHR as

human rights worthy of universal protection, ending its long objection to these norms, such that

they should now be considered legally binding upon the U.S. such that they form commitments,

obligations and duties. Because U.S. actors have indicated that they now subjectively believe that

the rights contained in Articles 23 and 25 are binding principles, and because they are part of

general state practice, they are now rules of customary international law binding upon the U.S.

While not mentioned in the Bush speech or in the Obama administration’s letter, Articles

22 and 24 describe rights the promotion of which has long been accepted by the U.S. as a legally

significant responsibility. Article 22 describes the right to social security, a program our country

has long supported and provided. Article 24 describes the right to adequate time for leisure,

another state practice the U.S. currently follows. Although only mentioned in the Bush speech,

the Article 26 right to education has also been supported by the U.S. Thus, through either

mention in Bush’s speech or the Obama letter, or through current U.S. state practice, promotion

of the rights contained in Articles 22-26 of the UDHR, the enumerated economic and social

rights, are now recognized by the U.S. as state practice undertaken out of perceived legal

obligation. As a result of this perceived obligation, the promotion and protection of these rights

should be binding on the U.S. as a matter of customary international law. Therefore, the U.S.

government has little reason to continue to refuse to ratify the ICESCR.101

E. Conclusion

100
Rice, supra note 18, at 4. See also UDHR, supra note 93, art. 25 (pertaining to the right to health).
101
One major issue with ratification will be the enforcement mechanisms in the convention, but the U.S. has, in the
past, used the ability to enter reservations to undercut a treaties full effect. This issue is not within the scope of this
comment. See Philip Alston, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need
for an Entirely New Strategy, 84 Am. J. Int’l L. 365, at 377 (1990) (discussing the Carter administration’s
ratification strategy).
Felder 29

As the 21st century continues, the world will grow smaller, and nations will become

increasingly more interdependent. The current U.S. preference for isolationism and

exceptionalism will not be tenable as international agreement becomes more necessary. But there

is reason for optimism. The Obama administration’s letter to the U.N. illustrates that the current

administration is working in the appropriate direction with respect to cooperation with the

international community in general, and with respect to the promotion and protection of the

rights enumerated by the UDHR specifically. Although the U.S. traditionally resisted the

ratification of the ICESCR and the protection and promotion of economic and social rights, this

letter and Bush’s speech indicate a reversal of this position such that the promotion and

protection of economic and social rights, as embodied by the UDHR, is now a binding obligation

on the U.S. as a matter of customary international law.

One option for enforcing this binding obligation is through judicial application in

domestic courts.102 The UDHR should be the first document consulted by the judiciary when

attempting to establish human rights norms. This application is only hampered by the lack of

lawyers and judges trained to look to the international dimension and apply it in domestic courts.

First, aggressive advocacy and professional education reform are necessary to remind

practitioners and judges of the status of binding customary international law in U.S. courts.

Second, demanding the regular use of international law as a supplement to domestic law must be

accomplished by filing claims using violations of economic and social rights as a cause of action.

Promoting the ratification of the ICESCR remains the most effective ways to ensure that the

rights contained in the UDHR are available to individuals when seeking redress in U.S. courts.103

102
Hannum provides a detailed discussion and survey of the application of customary international law in domestic
courts. Hannum, supra note 75, at 353.
103
Id.
Felder 30

Another option for enforcement would be for Congress to pressure the states into

protecting and promoting economic and social rights by withholding funds from those states that

refuse.104 This tactic would operate similarly to the way Congress established the drinking age.

Unfortunately, this would require the same political environment that would also allow the U.S.

to finally ratify the ICESCR. At this point in time, Congress is unlikely to do either. The problem

is ultimately a political one, and one can only hope that the statements made by both Bush and

the Obama administration are indications of political action to come.

104
Binding Force, supra note 5, at 172.