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Harold Koh’s Transnationalism—Treaties: CEDAW as a Case Study (Part 2)

By Ed Whelan
April 13, 2009

[Given the unusual length of this post, I have boldfaced key passages.]


In June 2002, Harold Koh testified before the Senate Foreign Relations Committee to urge that the Senate give its consent to CEDAW.  He then expanded and revised his testimony into a law-review article.  (Koh, “Why America Should Ratify the Women’s Rights Treaty (CEDAW),” 34 Case W. Res. J. Int’l L. 263 (2002).)  Let’s look at several aspects of what Koh said in his testimony—and, even more remarkably, what he didn’t say.


First are Koh’s reasons for supporting CEDAW.  Lamenting that the United States “is now the only established industrialized democracy in the world that has not ratified the CEDAW treaty,” Koh declares that “this is a national disgrace for a country that views itself as a world leader on human rights.”  U.S. ratification is needed for “two simple reasons”:  “First, ratification would make an important global statement regarding the seriousness of our national commitment to these issues [of women’s human rights].  Second, ratification would have a major impact in ensuring both the appearance and the reality that our national practices fully satisfy or exceed international standards.”  (Emphasis added.)


Second, Koh opposes virtually all the conditions on ratification that previous administrations—including the Clinton administration in which he served—had proposed.  Although he doesn’t say so specifically in his testimony, the conditions that he opposes include, most importantly, the declaration that CEDAW is non-self-executingi.e., that it would have no domestic legal effect.  (Koh’s law-review article makes this clear.  See 34 Case W. Res. J. Int’l L. at 271.)   In his testimony, Koh states that the “only” condition that “seems to me advisable to protect the integrity of our national law” is one specific understanding on free speech.  In his law-review article, that condition is the only one that “is even arguably advisable.”  (34 Case W. Res. J. Int’l L. at 271 (emphasis added).) 


Third, Koh briskly dismisses “some myths and fallacies” about CEDAW.  For example, it’s “flatly untrue,” he says, that “CEDAW supports abortion rights.”  “To the contrary, on its face, the CEDAW treaty itself is neutral on abortion,” and “several countries in which abortion is illegal—among them Ireland, Rwanda, and Burkina Faso—have ratified CEDAW.”  Also, “some have falsely suggested that ratification of CEDAW would require decriminalization of prostitution,” but “the text of the treaty is to the contrary.”  And among other “preposterous” claims is that CEDAW “would somehow require the United States to abolish Mother’s Day.”


Most striking about Koh’s testimony is his utter failure even to acknowledge, much less confront, the CEDAW committee’s interpretations of CEDAW on abortion, prostitution, and, yes, even Mother’s Day (as well as on a broad range of other issues).  As I outlined in my previous post, by the time of Koh’s testimony, the CEDAW committee had already offered these interpretations of CEDAW on abortion:


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.”


If, as Koh testifies, “on its face, the CEDAW treaty itself is neutral on abortion,” that fact ought to make it imperative to address the CEDAW committee’s contrary interpretations.


Worse, Koh presents Ireland’s ratification of CEDAW as supposed proof that CEDAW is “neutral on abortion.”  But Koh somehow doesn’t see fit to call to the attention of the Senate Foreign Relations Committee the inconvenient fact that in June 1999, in yet another of its Concluding Observations, the CEDAW committee stated that it “is concerned that, with very limited exceptions, abortion remains illegal in Ireland” and that it “urge[d] the Government [of Ireland] to facilitate a national dialogue on women's reproductive rights, including on the restrictive abortion laws.”  (¶¶ 185, 186.)


Likewise on the issue of prostitution:  Koh doesn’t inform his audience that the CEDAW committee had (in February 1999) expressed its concern that prostitution is illegal in China and recommended decriminalization of prostitution.  (¶¶ 288, 289.)


As for the “preposterous” claim that CEDAW “would somehow require the United States to abolish Mother’s Day”:  That claim is based squarely on this statement made by the CEDAW committee to Belarus in February 2000:  “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.”  (¶ 361.)  In his testimony, Koh doesn’t acknowledge this CEDAW committee statement and instead claims that “CEDAW’s central aim is to support motherhood”—non sequitur alert!—“by promoting women’s freedom to make choices on an equal basis with men.” 


In his law-review article (34 Case W. Res. J. Int’l L. at 274-275 n. 51 (emphasis added)), Koh finally acknowledges the CEDAW committee’s report on Belarus and tries to spin its statement this way:


[The CEDAW committee’s statement] spoke negatively about a Belarusian holiday that discouraged women from working in the marketplace, by celebrating and encouraging only those mothers who work in the home.  Rather than denigrating motherhood, the CEDAW’s central aim is to support motherhood, by promoting women’s freedom to make choices on an equal basis with men.  Nothing in that goal conflicts with the American tradition of celebrating both Mother’s Day and Father’s Day every year, as expressions of this country’s commitment to full gender equality, consistent with the nondiscrimination goals of the CEDAW.


The trusting reader wouldn’t know that the “Belurusian holiday” was in fact “Mothers’ Day,” nor would he know that nothing in the CEDAW committee’s statement substantiates Koh’s assertion that the generic “Mothers’ Day” holiday in fact “celebrat[ed] and encourage[ed] only those mothers who work in the home.”  Further, only the distrustful, skeptical reader would note that Koh’s lawyerly closing phrase—“consistent with the nondiscrimination goals of the CEDAW”—makes his entire assurance question-begging:  the open issue is whether, under the CEDAW committee’s reading, the “American tradition of celebrating both Mother’s Day and Father’s Day every year” is consistent with those goals.


Koh suggests that it is “preposterous” that anyone, in the name of “eliminating discrimination against women,” would do away with Mother’s Day in the United States.  What sort of unhinged ideological fanatic, he insinuates, would ever propose something so cockamamie?  Well, how about the ACLU activist who recommended way back in 1974 (see point 5 here) that “Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles”?  You may even have heard of her.  Her name was Ruth Bader Ginsburg.


Why, one must ask, did Koh not address the CEDAW committee’s interpretations at all in his testimony to the Senate Judiciary Committee?  Let’s consider the three theoretical possibilities.


The first possibility is that Koh was unaware of the CEDAW committee’s interpretations at the time of his testimony.  There’s compelling evidence against that proposition.  For starters, the CEDAW committee’s interpretations were, for obvious reasons, a leading part of the case of the opponents of CEDAW.  Only an utterly incompetent and ill-informed advocate of CEDAW—not a brilliant scholar who had “studied and argued for ratification of [CEDAW] for more than a decade,” both in his academic capacity and as a senior State Department official in the Clinton administration—would have been unaware of them.  Further, Koh himself refers to supposed “myths and fallacies that have been circulated” about CEDAW, and his law-review article appends to this proposition a footnote referring the reader to “a typical compendium of such objections,” Patrick F. Fagan’s February 2001 “How U.N. Conventions on Women’s and Children’s Rights Undermine Family, Religion, and Sovereignty”—a document that is replete with references to the CEDAW committee’s interpretations.  The possibility that Koh first became aware of this document and of other “typical” documents of the sort in the period between his testimony and publication of his law-review article is beyond farfetched.  And that preposterous possibility also wouldn’t explain why, apart from the single Belarus example, Koh does not discuss the CEDAW committee’s interpretations in his law-review article.


The second possibility is that Koh regarded the CEDAW committee’s interpretations as so patently insignificant that they weren’t worth mentioning.  The evidence also seems clearly to foreclose that possibility.  When Koh in his law-review article tries (unsuccessfully) to explain away the CEDAW committee’s statement on Belarus and Mother’s Day, he doesn’t argue that the CEDAW committee’s interpretations of CEDAW are entitled to no weight.  Further, in the amicus brief that Koh submitted as counsel of record in the Supreme Court in Lawrence v. Texas in January 2003 (a mere seven months after his testimony before the Senate Foreign Relations Committee), Koh emphasized the interpretive authority of the CEDAW committee in support of his argument that “five of the six major U.N. human rights treaties have been interpreted by their respective supervisory organs to cover sexual orientation discrimination.” (Brief at 24-25 (emphasis added).)  He cites two of the CEDAW committee’s “Concluding Observations” in support of that proposition, (Brief at 25 n. 49), and his brief cites five other “Concluding Observations” of other treaty committees.  Further, such interpretations are a critical part of the “transnational legal process” that Koh urges “American lawyers, scholars, and activists” to “make better use of”:  “Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.”  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1502 (2003) (emphasis in original).)


The only remaining possible explanation that I can see for Koh’s failure in his Senate Foreign Relations Committee testimony to address the CEDAW committee’s interpretations of CEDAW is that Koh deliberately chose not to be—let’s put the matter as delicately as possible—forthright with the members of the committee and the public generally.  Given the exclusion of the first two possibilities, that explanation would seem logically compelled. 


Next:  Putting the CEDAW picture together.


(Eighth 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, the domestic legal status of treaties, and CEDAW (Part 1).)

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