The time has come for the United States to ratify the Convention on the Elimination of All Forms of Discrimination Against Women, commonly known as Cedaw, particularly after women voters asserted themselves so effectively in recent US elections. The convention obliges signatories to “ensure the full development and advancement of women” and expressly extends its antidiscriminatory provision to all areas of economic and social life.
This international agreement was signed by President Jimmy Carter and sent to the Senate for confirmation 32 years ago in November and has sat there ever since. When people become aware of this for the first time, they often ask, Does the treaty matter? The answer is: Yes, it matters a lot, because the US will continue to lack moral authority to advance human rights with other countries until we set our own house (and Senate) in order.
The international human-rights movement gained great impetus after the horrors of World War II, when there was a consensus among the victors that respect for human rights and dignity must become so ingrained in our societies as to make a repetition of those horrors unthinkable. The United Nations Charter committed the countries of the world to “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
Signing the charter was followed by the adoption of the Universal Declaration of Human Rights, which sets forth the broad understanding of the international community on civil and political rights, as well as economic and social rights, but without expressly creating binding substantive obligations for the signatories. The US, with the leadership of Eleanor Roosevelt, was an early leader in articulating universal human rights.
Today there are nine basic international agreements that make up the core of international human-rights law, built on the UN Charter and the Universal Declaration of Human Rights, of which only three (marked by asterisks) have been adopted by the US.
The nine treaties deal with *civil and political rights, economic and social rights; *racial discrimination, discrimination against women; *torture, children’s rights, the rights of migrant workers; “enforced disappearance”; and the rights of people with disabilities. There are also numerous protocols to the treaties, some procedural and others making substantive additions.
Under the US Constitution, the president has the power to make treaties but only with the advice and consent of the Senate, which requires a two-thirds vote of the senators present. The Senate can make its consent conditional on amendments to the text signed by the president. The Senate can also clarify its intentions about the treaty by stating its understanding of the meaning of the treaty provisions, or grant its consent subject to certain reservations. These qualifications have come to be known as RUDs, or reservations, understandings and declarations.
The US reluctance to ratify international human-rights conventions took root in the rotten soil of 1950s racial segregation and the fear of John Bricker, a Republican senator from Ohio, among others, that ratification would force the South to give up segregation. Bricker sought to have the Constitution amended to limit the powers of the president to enter into treaties or executive agreements with foreign states.
President Dwight D. Eisenhower and Secretary of State John Foster Dulles, fearful that the Bricker amendment would pass and be sent to the states for their approval, headed off that drastic result by agreeing to a lesser limitation: a commitment from the executive branch not to sign international human-rights conventions. This commitment was honored by later presidents until it was partly abandoned by John F. Kennedy in the 60s and more forcefully by Carter in the 80s, when he signed and sent numerous international human-rights treaties to the Senate for ratification.
The spirit of the commitment still hovers, and it was christened the Ghost of Senator Bricker by the great American human-rights thinker, Louis Henkin. A further breach in the Bricker dam occurred in 1988, when the Senate, as requested by President Ronald Reagan, agreed to ratify the Convention on the Prevention and Punishment of the Crime of Genocide. Even then, ratification was less than wholehearted, as the Senate’s consent came with a package of RUDs.
Besides the three treaties that have been approved by the White House and the Senate, three others have been signed by the US but have not received the advice and consent of the Senate. Prominent among them is Cedaw, the treaty on women’s rights. Of the 193 members of the United Nations, 187 have agreed to be bound by the treaty. The US, along with Iran, Palau, Somalia, Sudan and Tonga, are the missing six countries.
Why do we find ourselves in such dubious company? After all, our laws already prohibit discrimination on the basis of gender and protect equality of opportunity for men and women. To the extent that the treaty does not track domestic law exactly, the Senate can — and did in the 1990s — carve out reservations.
In the 90s, the Senate Foreign Relations Committee recommended that the Senate agree to ratify Cedaw, with 10 reservations, understandings and declarations. The four reservations relate to protection of privacy as it is understood under the Constitution; our right to make gender-based decisions on combat assignments; our reluctance to accept a legal requirement of paid maternity leave; and our nonacceptance of the doctrine of “comparable worth” or “pay equity” for men and women.
The four understandings relate to how treaty obligations can play out in America, where certain powers are reserved to state and local governments — a statement that freedom of speech, expression and association, as we understand them, trump the Cedaw provisions (notably the ones on affirmative action) and nonacceptance of any requirement that contraception be provided on a cost-free basis or of any recognition of a right to abortion.
The two declarations require that Cedaw not be self-executing (that it takes effect only through legislation) and declines to have the US bound by the treaty’s dispute resolution provisions, which would confer jurisdiction on the International Court of Justice in certain cases.
A legitimate and difficult question arises for human-rights advocates: Would we rather have the treaty ratified, with objectionable RUDs, or would we rather continue to be regarded as something of a rogue state in terms of women’s rights, as one of the six countries that have not agreed to Cedaw?
I come down squarely on the side of joining the nations that have embraced women’s rights by ratifying Cedaw, even if it means conceding for the moment that our internal debates on women’s rights are still continuing, and that certain issues must remain on the table for now. Only by ratification can we enhance our ability to advance the agenda of international human rights.
We welcome your comments on this article. What are your thoughts?
Anthony C. Gooch is a retired partner at the international law firm Cleary Gottlieb Steen & Hamilton. He has written and co-authored numerous books and articles on legal topics and serves on several boards and councils, including the board of the Chamber Music Society of Lincoln Center, the Rockefeller University Council and the Investment Management Committee of the board of regents of Sewanee: The University of the South.
Gooch formerly served as board chairman of the International Institute of Rural Reconstruction, an organization that works to better the conditions of the rural poor and their communities in Africa and Asia.
An honors graduate from the University of the South in Sewanee, Tenn., Gooch also holds a law degree and a master of laws from New York University and a master’s degree in international affairs from Columbia University as well as a diploma from the College of Europe in Bruges, Belgium.