JENNIFER MANNE
[Fall 2006, Volume VIII, Issue 1]

Why is the United States particularly reluctant to ratify major international treaties that bind countries to uphold human rights while claiming to be the world’s champion for these rights? Unlike many of its closest allies in Western Europe and much of the non-Western world, the United States since the mid-1950s has been exceedingly slow to ratify many of the most important international human rights conventions and covenants. The United States for example first signed the Genocide Convention in 1948 but did not officially ratify it until four decades later; similarly, although every other member state in the United Nations (UN) has ratified the Convention on the Rights of the Child, the United States still fails to even engage in a serious debate about the merits of this treaty. In some cases, the United States is in the company of such rogue nations as Syria, North Korea, and Iran in its refusal to support these human rights instruments.

Beyond the failure of the United States to ratify the Genocide Convention, the existing scholarship on the American relationship to international human rights law is underdeveloped.1In this essay, I examine the opposition to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in order to illuminate the larger factors shaping America’s problematic relationship with international human rights treaties.

CEDAW is often referred to as the “international bill of rights for women.” This major UN human rights convention consists of thirty articles that “protect the right of women to enjoy fundamental human rights on an equal basis with men.” CEDAW defines gender discrimination in both public and private life and suggests methods for improving the status of women in areas as diverse as healthcare, prostitution, the role of women in the family and equality in the workforce. The UN Commission on the Status of Women (CSW) began drafting the UN Convention on the Elimination of All Forms of Discrimination Against Women in 1975, and the General Assembly adopted a final version of the treaty in 1979. The monitoring mechanism used to enforce CEDAW requires that states party to the treaty submit a monitoring report during the first year after ratification and every four years following the first report. Ratifying nations are also expected to implement policies that foster gender equality in areas where the monitoring reports show that it is lacking.

In 1980 President Jimmy Carter signed CEDAW on behalf of the United States, but the Reagan Administration ignored the Convention until 1988, when Senator John Kerry presided over the first congressional hearing on the treaty. In 1990, 1994 and 2002, the Committee on Foreign Relations again held hearings on CEDAW. Two of these hearings led to the approval of the treaty by the Committee, but the full Senate has never ratified it.

The failure of the United States to ratify CEDAW is due to a complex dynamic of American concerns surrounding international law and domestic politics. Three singular characteristics of American human rights policy – fear, reluctance, and unilateralism – figured significantly in the CEDAW debates. After briefly framing the historical, legal and structural issues that affect ratification, this essay focuses on the domestic debates over CEDAW in the United States. Exploring the domestic politics that have prevented the United States from ratifying CEDAW reveals the ways in which a socially conservative agenda on women’s issues has shaped the contours of the CEDAW ratification debates and the nature of American leadership, both real and perceived, in global human rights politics.

EXCEPTIONALISM AND INTERNATIONALHUMAN RIGHTS

In an apparent paradox, most American policymakers believe that the United States leads the international community in the advancement of human rights while maintaining an “exceptionalist” status outside of that community. Through both rhetoric and policy, many American policymakers promote the notion domestically and internationally that the United States willingly assumes the role of a global leader in international human rights and regards this commitment as a priority when constructing foreign policy. These policymakers simultaneously undermine this role by frequently failing to fulfill the responsibilities that a leadership position necessitates, including participating in international organizations, honoring international law, providing resources and support for humanitarian interventions, and ratifying and complying with international treaties. The justification they offer is that America is somehow morally superior to other nations and thus must follow its own noble purposes.

The use of “country reports” provides one illustration of the “exceptionalist” attitude of the United States with respect to international human rights. Created by the Carter administration, these annual reports rate other countries’compliance with international human rights norms. While these reports may be a pragmatic way for the United States to include human rights standards in its foreign policy, the fact that America is critiquing the domestic affairs of other nations reflects the United States’ self-image as a moral arbiter on these issues.

Similarly, the United States’ failure to ratify CEDAW and other major human rights conventions creates a puzzling inconsistency between the self-perception of the United States as an exemplary leader on international human rights issues and actual U.S. human rights policy. Despite all the controversies surrounding it, the fact that the United States still refuses to ratify CEDAWraises many questions about the U.S. commitment to women’s rights as a human rights issue. When placed in the context of US human rights policy, the American response to CEDAW provides a lens with which to probe the reality behind America’s self- image as the global leader on international human rights issues.

The complexity and uncertainty of international treaty ratification contribute to the United States’failure to ratify CEDAW. While the length and difficulty of the ratification process presents a clear obstacle to ratification, uncertainty about the exact impact of an international treaty on United States domestic law further prolongs the process. This gives rise to many hypothetical concerns about the treaty among policymakers and creates a general hesitance among American officials to ratify.

American policymakers and citizens frequently misunderstand the domestic legal implications of treaty ratification. The principle of self-execution in United States law often leads to confusions about the ability of a treaty to alter existing federal or state law once ratified.6 Historical precedent suggests that like most other human rights conventions, CEDAW would be non-self-executing. In the case of CEDAW, the United States government specifically proposed a legal addendum in the form of a declaration that identifies CEDAW as a non-self-executing treaty. Despite these legal realities, many senators, government officials, and political activists nonetheless fear that CEDAW ratification could lead to immediate radical changes ranging from the legalization of prostitution to state-sponsored abortion.

Though ratification cannot by itself alter U.S. law, the fear that CEDAW may have an indirect or long-term impact on domestic law is in fact a realistic one. As a non-self-executing treaty, CEDAW would not become a part of domestic law upon ratification, but it would establish norms that may be used to further specify general concepts in the U.S. Constitution. Frequently, language contained in treaties such as CEDAW influences judicial interpretations of existing U.S. laws. In order to safeguard against any unforeseen consequences for domestic law that could arise from the treaty, the United States has drafted numerous reservations, understandings and declarations that clarify its own interpretation of the CEDAW text in areas where the treaty’s language is vague. These nine proposed legal addenda include four reservations, three understandings and two declarations that address many issues of deep concern to CEDAW opponents.

CEDAW AND THE STATUS OFWOMEN

Despite these reservations and limitations, CEDAW has continued to attract considerable opposition in the United States and remains unratified today. The fears that emerge in the arguments by CEDAW’s opponents reveal the powerful ways in which domestic politics shapes American engagement with CEDAW and the global human rights agenda. CEDAW opponents most often employ two contradictory arguments regarding the treaty’s potential effect on domestic law. The first of these arguments raises concerns about the long-term effects of ratification on American laws. A second point of contention among CEDAW opponents is that the treaty will not eliminate gender discrimination in the United States.

The “Helms Understanding” attached to CEDAW provides an excellent case for examining a curious paradox: policymakers draft specific legal addenda to protect existing United States domestic law and yet continue to claim that a treaty poses a radical threat to American law. The “Helms Understanding” states that “the United States understands that Article XII permits states party to the treaty to determine which health care services are appropriate in connection with family planning, pregnancy, confinement and the post-natal period, as well as when the provision of free services is necessary and does not mandate the provision of particular services on a cost-free basis.” Considering that Senator Helms actually drafted this understanding, it seems impossible that he or his fellow CEDAW opponents would interpret this clause as imposing an obligation on the United States to fund abortion, birth control, or other health services for women should the Senate ratify CEDAW. Despite these clear indications of CEDAW’s inability to directly affect abortion laws in the United States, Helms and his supporters continually portray CEDAW as a likely catalyst for the expansion of legalized abortion in the United States, leaving some puzzling questions about the actual intentions of some CEDAW opponents.

CEDAW opponents also argue that the treaty will not advance the status of women in the United States. However, they undermine the sincerity of this argument by claiming that CEDAW could radically alter United States law on issues such as abortion and gay rights. These contradictory arguments are based on a significant but puzzling perception of the domestic implications of U.S. ratification on the part of CEDAW opponents. As Harold Hongju Koh, the former Assistant Secretary of State for Human Rights during the Clinton Administration and longtime CEDAW supporter has argued: “On the one hand they are saying this convention does not do anything at all. It is nothing. On the other hand, they are saying it would have this sweeping effect and force a radical change in our society.”10

CEDAWAND THE SOCIALCONSERVATIVES

Domestic arguments against CEDAW focus on five major areas of particular interest to those who ascribe to a socially conservative agenda: abortion, prostitution, gay and lesbian rights, the rights of women within the family and the status of women in the economy. Although gay and lesbian rights and abortion are the only particularly visible gender-related political controversies in American society, the CEDAW debates provoked equally intense controversy over all five areas of concern. This article will examine the arguments surrounding abortion and gay and lesbian rights in order to briefly demonstrate the complexity of such controversy.

The CEDAW text does not directly address abortion, let alone its moral underpinnings or potential government support; even so, those who oppose CEDAW ratification interpret Articles XII and XVI as encouraging abortion. They even claim that these articles require ratifying states to provide this service to all women for free. Article XII of CEDAW requires that states “take appropriate measures” to eliminate discrimination against women in the field of health care by providing equal access to health services “including those related to family planning.” Article XVI states that:

States Parties shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations and in
particular shall ensure, on a basis of equality of men and women:
e) The same rights to decide freely and responsibly on the number and spacing
of their children and to have access to the information, education and means to
enable them to exercise these rights.

The term “abortion” does not appear in the text of either article. Most policymakers recognize that both abortion and birth control fall under the category of family planning services. But while these clauses can be interpreted as a reference to abortion, they clearly do not require that a nation provide free abortion for its female citizens.

The CEDAW Committee clarified Article XII in its 1999 General Commentary on CEDAW, arguing that “other barriers to women’s access to appropriate health care include laws that criminalize medical procedures only needed by women and mandate punishment for women who undergo those procedures.” This clarification of the CEDAW text specified that Article XII encourages states to decriminalize medical procedures for women, presumably including abortion. The recommendation goes on to state that “…if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.” These recommendations do not instruct states to fund abortions but instead suggest that the state should not prevent women from receiving necessary medical procedures. Several nations that ratified CEDAWand participate regularly in the CEDAWmonitoring process, including Ireland and Burkina Faso, maintain laws that prohibit abortion. The CEDAW Committee has never mandated that these nations repeal their laws.

Fears of CEDAW opponents regarding abortion in the United States focus on two aspects of extant law. First, they say that CEDAW would support legalized abortion and thus undermine the pro-life movement’s efforts to outlaw this practice in the United States. Second, they argue that CEDAW would require the U.S. government to support the cost of abortions to women as part of “equality in healthcare.” Though ratification of CEDAW could not mandate government-funded abortion in the United States without additional Congressional legislation, conservative opposition groups fear that this would inevitably follow ratification. These opponents claim that CEDAW ratification would lead directly to the expansion of abortion in the United States.

Statements by conservative policymakers, think tanks and journalists clearly indicate that CEDAW opposition groups believe that ratification would affect U.S. abortion laws. In the 2002 Senate Foreign Relations Committee hearing on CEDAW, Katherine Balmforth, the former director of the World Policy Institute, states that “the [CEDAW] committee routinely instructs countries to liberalize their abortion laws. They have issued an interpretive document which coyly states that Article XII of CEDAWprohibits criminalization ‘of medical procedures only needed by women.’” In 1994 Cecilia Royals of the National Institute of
Womanhood testified that Article XVI(e) of CEDAW“seeks to establish an international right to abortion.” In a commentary from the Chicago Sun-Times, Thomas Roeser wrote that “because the treaty obliges nations to legalize abortion as a woman’s right, if the Senate passes a partial-birth abortion ban as the House has done, these actions could well be adjudged by the treaty as null and void.”

The perception that CEDAW ratification would weaken the pro-life movement has become more influential since the treaty was first formulated. In 1978 the Director of International Women’s Programs at the U.S. Department of State reviewed a preliminary UN Draft of CEDAW. Though reproductive rights were included in this version of the CEDAW text, the Director’s report does not interpret any clause as endorsing abortion. It was only in 1994 that Ellen Smith of Concerned Women for America stated that Article XVI “could quite reasonably be construed to mandate public financing of abortion on demand without restrictions.” The conservative anti-abortion activist Phyllis Schlafly also prepared a statement for the 1994 hearing that cited Article XVI(e) as an “abortion-on-demand” clause. In the 2002 hearing and the media coverage of this event, CEDAW opponents regularly cited expanded abortion laws as a plausible consequence of ratification.

Conservative opponents of CEDAW also claim that the treaty encourages “lesbianism” and could require the United States to legalize gay marriage. The belief that CEDAW promotes gay marriage does not result from any clause in the text of CEDAW but rather from recommendations the CEDAW Committee made in response to several monitoring reports. Specifically, the CEDAW Committee recommended to Kyrgyzstan in 1999 that “lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished.” During the 2002 hearing, Katherine Balmforth stated in her testimony, “The committee has instructed Kyrgyzstan to legalize lesbianism.” Senator Joseph Biden responded to this claim by noting that decriminalization does not mean legalization. Biden said, “You decriminalize something, you say you do not go to jail for it…All that calls for is what the American Constitution says about lesbianism…We have not legalized being a lesbian in a way that we have affirmatively passed legislation saying, by the way, to be a lesbian is a good thing…We have said, the fact that you may be a lesbian does not allow this country or any State to lock you up in jail.”

While Senator Biden’s response to Ms. Balmforth seemed to clarify this misconception of CEDAW, opponents still claim that CEDAW would encourage or mandate the practice of gay marriage. Some conservatives may truly be misinformed or lack an understanding of the power of CEDAW to alter international law, but it seems more likely that many of them exaggerate the consequences of passing CEDAW in order to guarantee CEDAW’s failure and provide an opportunity for them to draw attention to their social agenda. The usefulness of such propaganda to ensure the treaty’s defeat is evident in several media commentaries. For
instance, in an article titled “CEDAW means Cede Law,” the well-known conservative columnist David Limbaugh said, “Does irrespective of marital status mean lesbian relationships must be elevated to marital status or am I reading too much into this? Well, we needn’t speculate, because we already have real life interpretations of the treaty’s provisions.”

Controversy regarding CEDAW ratification involves a wide range of gender discrimination issues that address both the social and economic equality of women. Because several of these issues, namely abortion and gay rights, are among the most contested topics in contemporary American politics, the United States’ reluctance to ratify this treaty may be understandable. However, it is important to remember that nearly all members of the UN have successfully ratified CEDAW, including both Western democracies that ascribe to cultural and societal traditions similar to those of the United States as well as Islamic nations that often enforce sharp gender distinctions and do not readily embrace social change or foreign customs. Thus, America’s failure to ratify CEDAW is curious as well as potentially damaging to its international authority in both human rights in general and women’s rights in particular.

AMERICA, LEADING WITHOUT RATIFICATION

Many CEDAW supporters believe that the United States’failure to ratify CEDAW demonstrates an unwillingness to participate in global efforts to codify human rights law and thus undermines the leadership role of the United States in the international community. In response to such arguments, some policymakers such as Ambassador Jean Kirkpatrick, the U.S. Ambassador to the UN under President Reagan, argue that each nation has the right to choose which treaties it will ratify and that this decision does not change the fact that the United States acts as an example to the international community through its observance of human rights domestically In addition, many opponents of international treaties such as CEDAW claim that while many nations will ratify a treaty, few actually observe its principles. While the United States may take the principles of these treaties more seriously than other nations, the lack of formal commitment to international human rights law calls into question American leadership in the international community.

Even though ratifying international agreements will not automatically make a country a leader in international human rights, the choice of the United States not to ratify these treaties makes such leadership difficult, if not impossible. Ambassador Linda Tarr-Whelan, the US representative to the UN Commission on the Status of Women (CSW) during the second Clinton Administration, observed an increasing resentment toward the United States at the CSW, particularly because of the United States’failure to ratify CEDAW. The leadership of former First Lady Hillary Rodham Clinton and Secretary of State Madeline Albright in UN gender equality initiatives, like the Beijing Fourth World Conference on Women, complicated the reaction to United States policy. Nevertheless, Tarr-Whelan argues that the United States’ failure to participate fully by ratifying the central convention on gender equality did not go unnoticed.

The United States’failure to ratify CEDAW is unfortunately not surprising in many respects. International fears, domestic consequences of treaty ratification and the uncertainty of how international law and domestic law may conflict have created an unfortunate pattern in dealing with human rights. Even a compelling issue such as genocide cannot seem to penetrate the entrenched fears of international law. Unfortunately, there is no sure method to counteract such inaction or to reverse the trend of American “exceptionalism” on human rights issues. The most promising way for the system to change would be for the American public to become actively aware and involved with policymaking decisions.

The United States may provide American women with unparalleled opportunities, but it cannot maintain a role as an international leader on gender equality and human rights issues without a more consistent commitment to the formal, legal institutions that govern the international community. The United States cannot lead an international community that it is not a part of. Ultimately, it cannot be a model for the international community if it does not agree, both in principle and in practice, to the standards of human rights that it exemplifies so well.

A graduate of Northwestern University, Jennifer Manne is currently a Fulbright Grantee in South Korea conducting research about mandatory STD testing for sex workers in U.S. military camptowns. She is completing a Masters program at Harvard University School of Public Health in the department of Population and International Health. She would like to express her appreciation to Professors Mark Bradley and Carl Smith for their assistance with this article.