August 5, 2006
United Nation's Treaties: Bad for the United States
Korean War Medal The United States hasn’t gotten our money’s worth from our dues to the UN. But my dad did get a nifty UN medal. He got some others with a “V” device. But US troops are still in Korea.
The UN continues its poor track record. A few years ago Charmaine wrote an article detailing how the UN thinks and presents global legislation. None of it good for the US of A.
And the UN has improved little since then.
Beware of big sister: Charmaine Yoest exposes a troubling treaty with a teflon title. Get ready for more shenanigans at the UN
AN OBSCURE TRIBUNAL known as The Committee has urged China and Mexico to decriminalize prostitution, chided the tiny nation of Belarus for reintroducing Mother’s Day–the holiday promotes a “sexual stereotype”–prodded the U.K. to begin sex education in primary school, and informed the Irish that “the time had come” to revise their restrictive abortion law.
Although The Committee can express displeasure with any U.S. policy that strikes its fancy; it currently has little impact in this country. But that may soon change. Its mission is to assess the status of women in countries that have ratified the UN’s Convention on the Elimination of All Forms of Discrimination against Women, known as CEDAW Iraq, Cuba, and other global model citizens have ratified the convention, but the United States hasn’t–at least not yet.
Senators Barbara Boxer (D-CA) and Joseph Biden (D-DE), member and chairman respectively of the Senate Foreign Relations Committee, are trying to change this. They have held hearings aimed at ratifying the convention. Kofi Annan, secretary-general of the UN, described CEDAW as a “key pillar of international human rights law,” which stands as a milestone” in the quest to define “the universal norms of gender equality.” The United States is the only western industrialized democracy that has nor ratified….
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Thank you (foot)notes:
The article first appeared in the Women’s Quarterly, Autumn, 2002.
The pressure to ratify is mounting. Congresswoman Lynne Woolsey (DCA) alleges that CEDAW opponents simply want women “barefoot and pregnant.” The treaty is, in fact, a classic Trojan Horse – it is presented as an elevated document enshrining principles of timeless truth, similar to the Declaration of Independence, but the guts of the document are a utopian wish list: government wage-setting embodied in comparable worth, government-run child care, gender-blind military service, and quota-determined political parity for women.
Stereotyping will be eliminated primarily through “the revision of textbooks and school programs and the adaptation of teaching methods.” (No maternal images, please.) Indeed, The Committee told Ireland’s representatives that their report was “disturbing” because it stated that “child care was primarily the responsibility of parents.” Iceland, on the other hand, reassured The Committee that indeed they did require “gender sensitivity training” for “day mothers,” the government workers in Iceland’s day care and kindergarten for all two- to six-year-olds. page 3
As this is being written, the margin for passage appears quite close. In February of this year, the State Department wrote to Biden and Boxer saying that the treaty is “generally desirable” and that it should be approved. They restated this position in June, just before the hearings on the treaty, but did not send a representative to testify. Apparently, the Justice Department is giving the treaty close examination. Nevertheless, the Stare Department’s website includes information about the treaty under the banner headline, “America’s Commitment to Women!”
Biden and Boxer assert that ratification “would not impose a single new requirement in our laws.” This might be true. Technically, maybe–in a static, apolitical world. In the real world, the treaty’s mandate for viewing anything less than a statistically verifiable equivalence in the home, workplace, and political arena as discrimination, enforced by affirmative action, quotas, and comparable worth formulas is a somewhat pesky detail. Supporters of the treaty respond that “States Parties” to the Convention may ratify with “reservations, understandings, and declarations” which allow them to abstain from provisions that contradict national norms.
This, however, patently ignores Article 28, which states that “a reservation incompatible with the object and purpose of the present Convention shall not be permitted.” The description of the legal ramifications of the treaty varies with the audience. Those documents aimed at persuading the uncommitted emphasize the nonbinding nature of the treaty. Articles written for the initiated sound a different note. Witness Annan’s “key pillar of international law” description. CEDAW commitments, writes Marilou McPhedran, a lawyer at the International Women’s Rights Project, are “legal obligations” that endure even through regime changes. In other words: Signing the treaty might impinge on our national sovereignty.
But even beyond questions of legality is this issue of “universal norms. With a concept that aspires to universality in play, echoing moral theorist Alasdair Maclntyre, we have to ask: Whose gender? Which equality? One member of The Committee, legal scholar Savitri Goonesekere, has written in “A Rights-Based Approach to Realizing Gender Equality” that redefining gender equality with the language of human rights elevates their claims “to a level of legal entitlement requiring national and international response. Concerns, when conceived of as claims of human rights, become fundamental, immutable, and priority claims.”
Who, then, is doing the defining of these immutable, legal entitlements? The Committee, if you read the fine print. As it turns out, the “experts in human rights,” who are given the job of overseeing implementation of the treaty, don’t take too kindly to reservations about any aspect of the treaty. And they are not shy about saying so. Their General Recommendation in 1987 stated that The Committee “suggests that all States Parties concerned reconsider such reservations with a view to withdrawing them.” At least a third of “States Parties” have lodged reservations, some related to the treaty’s provisions on equality in nationality and citizenship, others to family property issues, and many related to the treaty’s statements on equality in marriage and family. By 1994, The Committee had become even more assertive, asking states to “indicate the stage that has been reached in the country’s progress to removal of all reservations to the Convention.” In other words, ratifring with reservations is just a “stage,” like adolescence, on the path to “transformation” (a favored word).
IN 1992, when CEDAW was previously under consideration in the Senate, the Foreign Relations Committee drew up four reservations for the United States. The first stated that Americans are guaranteed “freedom from governmental interference in private conduct,” which the treaty’s mandates regarding marriage and family life might infringe. The second rejected the treaty’s mandate for equal military service, which would include combat assignments for women. The third rejected comparable worth obligations, and the fourth rejected the mandate for paid maternity leave.
Following ratification, the United States would be required to report to The Committee within a year and every four years thereafter, or “whenever the Committee so requests” (Article 18b). In this way Cuba’s human rights expert on The Committee could provide oversight of discrimination against American women.
Elite opinion-makers shrug off concerns about The Committee’s oversight function as so much hyperbolic hyperventilation. This Gallic sang-froid ignores, again, the record of The Committee’s own stated intentions. Speaking to a UNICEF function, the current chairman of The Committee, Charlotte Abaka of Ghana, remarked on “the importance of disseminating the concluding observations of the CEDAW Committee in order to place pressure on States Parties to implement them.” This is real-world politics; regardless of The Committee’s actual legal power, which is currently debatable, it has immense power in its use of the microphone.
Legal scholars argue that legal enforcement will come, but it is not entirely necessary–there are other tactics. This is underscored by tactician McPhedran who has written about utilizing the “politics of shame.” One entirely predictable scenario: “Committee Excoriates United States for Undermining Women’s Rights!”
AMNESTY INTERNATIONAL trumpets the vision on its website: “Imagine the many ways women in the United States could use CEDAW to improve women’s rights once the U.S. ratifies CEDAW!” The Presbyterian Church (USA) describes CEDAW as a “legal landmark and potent tool for systematically uprooting gender inequality and oppression” and has a whole series of liturgies designed around the convention. A Ms. magazine report on CEDAW says, “U.S. advocates see it as a tool for ensuring parity in the workplace, the courts, and other social and economic spheres.” And the plans are coming to a neighborhood near you: The Women’s International League for Peace and Freedom (dedicated to “worldwide sisterhood for peace”) includes as part of its Strategic Plan of Action exploring the possibility of creating a CEDAW international law badge for the Girl Scouts.
OPTIMISTS appear to assume that the United States would have a representative on The Committee, but this is not a given. Each state presents a nominee and, from this slate of 170, the 23 members are selected in an election held at the United Nations. In addition to such bastions of human rights as China, Egypt, and Nigeria (Saudi Arabia’s representative recently rotated off), the current committee includes representatives from Sr. Kitts and Nevis, a country of 45,000 people, 101 square miles; and Sri Lanka, a country of 19 million people, the precise population of the state of New York.
By comparison, the population of the United States is 281 million. At our own Constitutional Convention, the question of proportional representation was debated extensively and considered so important that our bicameral Congress resulted. In contrast, the micro-political system of The Committee, as delineated in Article 19 of the convention, is uncomplicated and free of accountability. Except for the details on elections and periods of meetings, The Committee is self-governing and can “adopt its own rules of procedure.” And although Ecumenical Women 2000, in its “Myths and Realities” report on CEDAW, claims that The Committee “does not issue specific recommendations to individual member countries,” some very specific recommendations to individual member countries are readily accessible on the United Nations website, going back through eighteen sessions. For example, on June 14 of this year, The Committee began a session with representatives from Tunisia by chastising them for their country’s reservations to the treaty, which related to laws on nationality, choice of residence, and women’s equality in marriage, and urged them to address their “patriarchal stereotypes.” Tunisian law has a Personal Status Code that identifies the husband as the head of the household, obligating him to provide for his wife and children. The experts then asked if Tunisia would use quotas to increase women’s participation in political life. They were, however, pleased with Tunisia’s Commission for Monitoring the Image of Women in the Media.
In the same session, representatives of Belgium were chastised for their country’s reservations to the treaty, which related to the matrimonial property of rural women, even though their gender policies, which include quotas and affirmative action, were applauded as “exemplary.” However, even with quotas, the experts noted that some segments of the Belgian workforce were still dominated by men–legal mechanisms to promote women simply were not enough; they had to show numerical results. “The Convention,” one expert urged, “should be a living instrument.
Ironically, a potential representative of the United States might feel right at home on The Committee. Many members are women who hold degrees from prestigious U.S. colleges and universities. Servitor Goonesekere, the representative from Sri Lanka, received postgraduate training in the United States, at Harvard Law School. Another member has an M.Ed. from New York University; another a Ph.D. from Bryn Mawr. Despite having benefitted personally from American opportunities, The Committee continues to make sweeping generalizations like the following: “No political system has conferred on women both the right to and the benefit of full and equal participation. Page 4
Perhaps “full and equal participation” is defined by The Committee’s own model. With a 96 percent female composition–a new Swedish judge became the first man to serve–they are strikingly unhampered by gender diversity. The Committee’s aspirations for the political sphere are not quite so ambitious, but they are adamant: full and equal means that “neither sex should constitute less than 40 percent of the members of a public body.”
AS THE CO-AUTHOR OF Au pouvoir, citoyennes!: Liberte, egalite, parite, the 1992 book that galvanized the French movement toward establishing a system of political parite sociologist Francoise Gaspard is The Committee’s spiritual godmother on this issue of gender and political quotas. Since the passage of a law in 1999 that established parite, French political parties now must field an equal number of men and women candidates for elections. This concept is enshrined in Article 7, which requires that states parties “shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country.”
Gaspard herself has stated that she is not happy with parite–she feels it sets the bar too low. Related to her work with CEDAW, Gaspard has declared in speeches that “each government must have a ministry for women’s rights.” Trend-setting Denmark’s 2002 report to The Committee was provided by a representative from Denmark’s Ministry for Gender Equality. (The presentation even included a discussion with The Committee of the eating disorders of Danish children.)
But as Belgium’s experience illustrates, demonstrating procedural mechanisms will not satisfy The Committee; states must demonstrate numerical equality. According to an Impact Study on the effects of CEDAW, done by the Centre for Feminist Research and the International Women’s Rights Project, based at York University in Toronto, the “uniqueness” of the convention is in “its mandate for the achievement of substantive equality for women, which requires not only formal legal equality, but also equality of results in real terms.” Hence, The Committee’s continued emphasis on the use of “temporary special measures” to achieve gender equality in its instructions to states.
In 1997, The Committee’s General Recommendations included a lengthy discussion of their interpretation of political equality. “The critical issue,” they argued, “is the gap between the de jure and de facto, or the right as against the reality. . . .” The problem is “centuries of male domination of the public sphere.” The solution is “setting numerical goals and quotas and targeting women for appointment to public positions.” This is the only way to achieve true democracy.”
The quotas apply in the workplace as well. Citing the International Labor Organization Convention No. 100, Equal Remuneration for Men and Women Workers for Work of Equal Value, which was passed in 1951 (but also not ratified by the United States), The Committee chided its member states in 1989 to begin adopting “job evaluation systems” that compare male-dominated jobs with female-dominated jobs in order to establish gender equality.
Meanwhile, as the United States Senate considers ratification, other American institutions have charged ahead. The University of Minnesota houses the International Women’s Rights Action Watch, an organization that is “a global network of individuals, dedicated to monitoring the implementation of CEDAW.” Funded by the Ford, MacArthur, and Carnegie foundations, they publish Women’s Watch, a newsletter detailing the impact of the treaty worldwide.
Most significant is a massive new project just released from the American Bar Association. The ABA has just released the “CEDAW Assessment Tool,” 175 pages plus appendices, funded almost entirely by the United States Agency for International Development, to be used to score countries on their compliance with the treaty. Going through the treaty article by article, the document offers a one to five scale with which to rate both de jure and de facto compliance in separate categories.
The document is extremely helpful in outlining exactly how the treaty is intended to be used. The ABA has finally provided guidance on the hotly contested issue of how national sovereignty is affected by the treaty. On page 80, assessors are instructed to ask, as it relates to Article 2 of the convention: “Is CEDAW directly applied and given effect in courts as part of national law? What training programs exist to educate judges and other legal professionals about CEDAW’s precedence over national law?” They are to query what “national machinery” has been established, and what portion of the national budget allocated, for implementing CEDAW.
All protestations to the contrary, this question of national sovereignty related to CEDAW is clearly a live issue: The American Bar Association is acting as an advocate for the precedence of United Nations law over United States law. Its supporters may continue to claim otherwise and pretend the treaty doesn’t contradict the Constitution, but the evidence is now in. If ratified, CEDAW would be the new stare decisis–the standard that guides American law: Once a court has ruled a certain way, the ruling stands as part of legal precedent.
THERE IS MUCH in the work of The Committee that is commendable: They criticized China for its forced abortion policy; they have challenged many countries to confront the practice of female genital mutilation; and they’ve emphasized the importance of educating girls worldwide. However, there is still so much obvious, unambiguous suffering and exploitation of women around the world: When little girls are being stolen and sold into sexual slavery, and then dying from AIDS, must we harangue other countries about their marital name-change laws?[at the time of publication] Charmaine Yoest [was] an author and Mellon Fellow at the University of Virginia.