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Harold Koh’s Transnationalism—Treaties: CEDAW as a Case Study (Part 1)

By Ed Whelan
April 13, 2009

As an illustration of how transnationalists in general and Harold Koh in particular aim to use “human rights” treaties as covert vehicles for overriding the ordinary processes of representative government on basic matters of domestic social and economic policy, let’s consider CEDAW—the Convention on the Elimination of All Forms of Discrimination Against Women. 


Nations that are party to CEDAW “agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.”  (Art. 2.)  The operative term “discrimination against women” is defined (in Art. 1) to mean:


any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.


The remaining provisions of CEDAW largely address various of the fields in which this grand principle shall operate.  In addition, Part V establishes a CEDAW committee “[f]or the purpose of considering the [ongoing] progress made in the implementation” of CEDAW.” 


The United Nations General Assembly adopted CEDAW, and proposed it as an international treaty, in December 1979.  In July 1980, President Carter signed CEDAW on behalf of the United States.  The Senate, however, has never given its consent to CEDAW.  Pursuant to its terms, CEDAW became effective in September 1981 as an international treaty among those nations that had agreed to it. 


By June 2002, when Harold Koh gave testimony before the Senate Foreign Relations Committee urging that the Senate consent to CEDAW, 169 nations had become parties to CEDAW.  By that same time, the CEDAW committee, exercising its supervisory role over the implementation of CEDAW, had issued a series of reports (styled “Concluding Observations”) interpreting the meaning of CEDAW.  Here are just a few of many available examples* of the CEDAW committee’s interpretations on issues involving abortion, prostitution, lesbianism, religion, Mother’s Day, “gender studies,” “redistribution of wealth,” comparable worth (not to be confused with equal pay),  and quotas:


Abortion (Mexico, May 14, 1998)

“408. The Committee recommends that the Government consider the advisability of revising the legislation criminalizing abortion and suggests that it weigh the possibility of authorizing the use of the RU486 contraceptive, which is cheap and easy to use, as soon as it becomes available.”

“426. The Committee recommends that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion.”


Abortion (Colombia, Feb. 5, 1999)

“393. The Committee notes with great concern that abortion, which is the second cause of maternal deaths in Colombia, is punishable as an illegal act. No exceptions are made to that prohibition, including where the mother's life is in danger or to safeguard her physical or mental health or in cases where the mother has been raped. The Committee is also concerned that women who seek treatment for induced abortions, women who seek an illegal abortion and the doctors who perform them are subject to prosecution. The Committee believes that legal provisions on abortion constitute a violation of the rights of women to health and life and of article 12 of the Convention.”


Abortion (Italy, Aug. 12, 1997)

“353. The Committee expressed particular concern with regard to the limited availability of abortion services for women in southern Italy, as a result of the high incidence of conscientious objection among doctors and hospital personnel.”


Prostitution (China, Feb. 5, 1999) 

“288. The Committee is concerned that prostitution, which is often a result of poverty and economic deprivation, is illegal in China.”

“289. The Committee recommends decriminalization of prostitution.”


Lesbianism (Kyrgyzstan, Feb. 5, 1999)

“128. The Committee recommends that lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished.”


Religion (Ireland, June 25, 1999)

“180. The Committee notes that although Ireland is a secular State, the influence of the Church is strongly felt not only in attitudes and stereotypes but also in official State policy. In particular, women's right to health, including reproductive health, is compromised by this influence.”


Mother’s Day (Belarus, Feb. 4, 2000)
“361. The Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers' Day and a Mothers' Award, which it sees as encouraging women's traditional roles. It is also concerned whether the introduction of human rights and gender education aimed at countering such stereotyping is being effectively implemented.”


“Gender Studies” (Austria, June 30, 2000)

“232. … The Committee also calls upon the Government to introduce affirmative action to increase the appointment of women to academic posts at all levels and to integrate gender studies and feminist research in university curricula and research programmes.”


“Redistribution of wealth” (Mexico, May 14, 1998)

“403. … In view of the relatively high growth levels of the Mexican economy that have been mentioned, the Committee would welcome a more equitable redistribution of wealth among the population.”


Comparable worth (Denmark, Jan. 31, 1997)

“267. Temporary special measures should be maintained and strengthened, particularly in the areas of reducing unemployment among women; ensuring that women and men receive equal pay for work of equal value; increasing women's participation in private-sector decision-making; increasing the number of female university professors and researchers; and encouraging men to devote more time to child care and housework. Such initiatives should include quantitative targets, time limits for their achievement, specific measures and sufficient budgetary resources.”


Quotas (Austria, June 30, 2000)

“238. The Committee is concerned at the decrease in women's representation in the legislature in the recent elections. The Committee recommends that the Government undertake in this respect temporary special measures, in accordance with article 4, paragraph 1, of the Convention, and consider, inter alia, the use of federal funding for political parties as an incentive for the increased representation of women in Parliament, as well as the application of quotas and numerical goals and measurable targets aimed at increasing women's political participation.”

In my next post, I’ll examine Harold Koh’s remarkable June 2002 testimony arguing that the Senate should consent to CEDAW without conditioning its consent on the various reservations, understandings, and declarations that past administrations, including the Clinton administration, had proposed—including, most importantly, the declaration that CEDAW would be non-self-executing (i.e., would not be binding as domestic law).


* Concluding Observations of the CEDAW committee are available on this United Nations website.  (Click on CEDAW, then on Concluding Observations/Comments.)  I have drawn my quotations directly from that website.  In addition to the examples I provide, a list of roughly 200 other examples of striking interpretations by the CEDAW committee is organized by subject here.  (I have not cross-checked that entire list against the United Nations database; I’ll note also that the list uses a slightly different dating system—evidently, date of committee meeting on particular country rather than date of report—for the CEDAW committee’s Concluding Observations.)


(Seventh in a series.  Previous posts:  Overview of series, what “transnationalism” is, what customary international law is, the transnationalist game on customary international law, the scope of the treaty power, and the domestic legal status of treaties.)

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