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Is the United States Committed to International Women's Rights?

By May 11, 2009

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Today, the United Nations will fill vacancies on its 18-member Human Rights Committee. The United States is angling for a spot--and given that election to the committee is essentially uncontested, one would think that the U.S. Department of State wouldn't have to make much of a case for inclusion.

It largely didn't, making a series of fairly vague and weak commitments to uphold U.N. human rights treaties. But looking at the domestic human rights section on page two ("Commitment to Advancing Human Rights and Fundamental Freedoms in the United States"), I can spot two areas in which the Obama administration has parted ways with past administrations (including both the Bush and Clinton administrations):
1. The United States executive branch is committed to working with its legislative branch to consider the possible ratification of human rights treaties, including but not limited to the Convention on the Elimination of Discrimination Against Women and ILO Convention 111 Concerning Discrimination in the Respect of Employment and Occupation.
The United States is one of only eight countries not to ratify the Convention on the Elimination of Discrimination Against Women (CEDAW), the other seven being three small Pacific islands and theocratic states of Iran, Qatar, Somalia, and the Sudan. In this respect the United States has taken a position on women's human rights that falls somewhere to the right of Saudi Arabia, which ratified the treaty in 2000 (though it is worth noting that Saudi Arabia clearly has not taken its CEDAW treaty obligations very seriously). The treaty was first adopted in 1981, so this is a bipartisan, multi-administration problem--President Reagan was the first to fail to bring the United States on board, but the Clinton administration failed to remedy this problem, even when it had a Democratic majority in the Senate.

Excuses for not ratifying the treaty vary, but most have to do with Article 12, section 1:
Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
The interpretation of "family planning" varies, but some critics of CEDAW are concerned that the treaty could be interpreted as defining access to birth control and abortion as human rights.

But in practice, the reason CEDAW has never been adopted most likely has more to do with the failure of the Equal Rights Amendment (ERA) and the subsequent backlash against it. Because the CEDAW asserts the same rights as the ERA, but in greater detail, the same leaders tend to oppose both initiatives--and the same supporters of both initiatives tend to be lukewarm about it.

The failure of the United States to ratify the U.N. International Labor Organization's Convention 111, which has been on the table since 1958, is far more mysterious given the fact that it overlaps with existing federal legislation (most notably the Equal Pay Act of 1963 and the Civil Rights Act of 1964).

The possibility that the Obama administration might seek ratification of both treaties is promising, and could indicate a historic level of commitment to international women's rights law. The degree to which this commitment might be attributable to Secretary of State Hillary Clinton, whose 1995 speech at the 4th U.N. World Conference on Women in Beijing indirectly but eloquently called for the ratification of both CEDAW and Convention 111, is open to conjecture--but if she's prepared to be an advocate for international women's rights, she's heading up the right department.


May 13, 2009 at 10:52 pm
(1) Twiss Butler says:

You rightly zero in on the defeated Equal Rights Amendment has having some connection with the reluctance of US officials under both Democratic and Republican administrations to ratify the CEDAW Convention. The sticking point is both simple and profound – and never openly discussed: the embarassing fact that from the founding of the country to the present day, men have denied to women the same guarantee of equal protection of the law that all American men receive as a constitutional birthright. CEDAW requires prohibition of sex discrimination – but in the US, SEX DISCRIMINATION AGAINST WOMEN AS A CLASS IS NOT UNCONSTITUTIONAL – and never openly discussed or cited to explain why laws against aspects of sex discrimination are so hard to get enforced, as the recent Ledbetter case showed. As lawyers, both Obama and Clinton, as well as the Supreme Court are content to go along with the public’s mistaken assumption that the ratification of the 19th Amendment in 1920 completed women’s quest for equal citizenship. That is also why men can play kickball with laws curtailing women’s access to abortion. While such laws targeting pregnancy, a condition affecting only women,are a perfect form of sex discrimination, leaving men’s reproductive options untouched, they can be dishonestly attributed to protecting the state’s interest in life or whatever. Roe v. Wade acceded to men’s demand for the convenience of legalized abortion, but left those so inclined free to devise limitless methods of legal harassment of women. For more information regarding women’s non-status under the US Constitutiomn, see http://www.equality4women.org.

Twiss Butler

June 2, 2009 at 9:30 am
(2) Michael Farris says:

The author of this blog and Twiss Butler both misunderstand basic truths about American law–perhaps deliberately so.

The American Bar Association has the following language on their website describing the constitutional rule that bans gender discrimination as a matter of American constitutional law:

This level of scrutiny was addressed in Reed v. Reed 404 U.S. 71 (1971), a case challenging an Idaho statute that required that males be preferred to equally qualified females as administrators of estates. The Court found that the statute represented “the kind of arbitrary legislative choice forbidden by the Equal Protection Clause,” and established that sex-based discrimination was entitled to higher scrutiny under the Constitution, later to be understood as “middle tier” level scrutiny.

Tom the blogger apparently thinks that the only way that America can protect human rights is through international law. This is preposterous. In fact, the use of international law is intrinsically a violation of a fundamental human right.

Every person has the basic human right to live in a nation that is self-governing. That means that only Americans and American legislators have the moral authority to make laws for America. If we allow international law to govern the domestic affairs of this country, we lose the ability to change the law through the normal electoral process.

Americans have rejected these treaties, not because of any lack of desire to grant equal protection of the law for women, but because we want American law to control all domestic policy questions.

It is the desire to protect human rights that has led us to reject international law.

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