Letter to Senate Foreign Relations Committee
Regarding CEDAW RDUs
September 26, 1994
Senator Claiborne Pell
Senate Foreign Relations Committee
United States Senate
Dear Senator Pell:
We are writing to thank you for holding a hearing on the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"). We recognize and applaud your longstanding advocacy for the international human rights and, in particular, the rights of women. As you are well-aware, the struggle for equality for women has yet to result in full equality in this country, and the struggle continues today. U.S. ratification of this important international treaty will reiterate the commitment of the United States to the full equality of women. The Lawyers Committee for Human Rights and NOW Legal Defense and Education Fund join in strongly urging ratification of CEDAW.
We share the Administration's view that the substantive provisions of this treaty are consistent with the letter and spirit of the United States Constitution and laws, both state and federal. The United States can and should accept virtually all of CEDAW's obligations and undertakings without qualification.
We are deeply troubled,
however, by the reservations, declarations, and understandings ("RDUs")
proposed by the Administration. We believe that only one understanding,
that relating to limitations of free speech, expression and association,
is advisable. The remaining RDUs, eight in number, are all designed to
support the Administration's view that this treaty should not, in any way,
change, or commit us to change, anything in U.S. law or practice, now or
in the future. This approach is troubling as there are several areas where
the U.S. is not in compliance and lags behind much of the industrial world
in guaranteeing full equality to women. The Administration appears to have
sought to identify such areas and then, by its RDUs, to preclude any
obligation to work to improve the record of the United States in these
areas. At a minimum, the Administration should commit publicly, and on the
record, to seek improvement of its performance in each area, rather than
seek to preclude all change through the use of RDUs.
We are very disappointed to observe that the qualifications proposed by the Administration reflect the same three principles as did the qualifications attached to the Convention on the Elimination of All Forms of Racial Discrimination (the "Race Convention") and as did those attached by the previous Administration to the International Covenant on Civil and Political Rights (the "ICCPR"). Each of these principles is misguided.
The first principle -- that the United States will undertake to do only what it is already doing -- is incompatible with the object and purpose of the treaty. The purpose of treaties generally is to undertake new obligations or to make the commitment to the international community to adhere to existing obligations. The mere fact that the treaty establishes standards to which the U.S. does not currently adhere is not sufficient reason for a reservation. A specific reservation should be added if a particular treaty provision is found to be unacceptable. But there should not be a wholesale rejection of change. If the United States ratifies CEDAW subject to broad limitations that imply a lack of political commitment to observe international standards, it's actions will rightly be decried by the international community. It will suggest that the U.S. views these International norms as being applicable only to other countries. In fact, there has been just such a reaction by other countries in regard to the RDU's the U.S. attached to the ICCPR - at least 10 countries have filed objections with the United Nations.
The second principle -- declaring the articles of CEDAW not to be self executing -- is both constitutionally unnecessary and inconsistent with the spirit of article 6 of the Constitution as the framers conceived it. There is no reason for insisting that neither the Executive nor the courts should give effect to the treaty until Congress adopts legislation. Adoption of this declaration would undermine one of the principal reasons why the Constitution made treaties the law of the land and gave the President and the Senate the power to make such treaties. While some articles of CEDAW may require Congress to pass appropriate implementing legislation, others do not. Determination of which provisions are, and which are not, self-executing should be made article by article after ratification and by each branch of the government for purposes within its responsibility.
The third principle, reflected in the "states' rights understanding," is also unnecessary and undermines the full implications of the treaty. There are few, if any, matters covered by the Constitution that are subject exclusively to state jurisdiction. Under the Fourteenth Amendment and other Constitutional provisions, these matters are subject to the treaty and Legislative powers of Congress and the jurisdiction of federal courts. If the intention is to clarify that the obligations of CEDAW may in some cases be implemented by the states, the Administration should simply say so; it requires no declaration upon ratification, and to make such a declaration only causes confusion.
In the attached appendix, we have included a brief analysis setting forth our joint position on the RDUs proposed by the Administration. Overall, the Administration's qualifying language applies one set of rules to the United States and another set of rules to the rest of the world. No other nations, including our closest allies, have taken this view. We believe it is wrong, and undermines the basic purpose of the treaty. Other countries, including our allies, will continue to view ratification in this manner as hypocritical. They will see it as an attempt by the U.S. to obtain the benefit of being a party to the treaty without undertaking the obligations that accompany that status.
Furthermore, we are concerned that U.S. ratification subject to the principle of "no domestic application" may be imitated cynically by other states, which seek the diplomatic benefit of ratification but cling to the view that adherence to international human rights standards violates their sovereignty. The universal application of human rights is a matter of intense struggle in the world today. Many nations seek to excuse their denial of these rights under the guise of cultural relativity. The U.S. which has long been a leader in calling for the universal application of human rights (rights which in many instances are modeled on those first recognized in the U.S.), cannot insist that other nations respect human rights as the universal inheritance of every person while refusing to grant those rights to its own citizens.
We respectfully request that this statement be submitted for the record.
Lawyers Committee for Human Rights
Deborah A. Ellis,
NOW Legal Defense and Education Fund
Director, Program and Policy
Lawyers Committee for Human Rights
Martha F. Davis,
Senior Staff Attorney
NOW Legal Defense and Education Fund
cc: Senator Paul S. Sarbanes
Legal Analysis of CEDAW RDUs