The UN Women's Treaty: the Case Against Ratification

The UN Women’s Treaty: The Case against Ratification

Christina Hoff Sommers Resident Scholar American Enterprise Institute

AEI Social and Cultural Studies Working Paper 2010-01, March 23, 2010 http://www.aei.org/paper/100094

The UN Women’s Treaty: The Case against Ratification*

Christina Hoff Sommers

In the late 1970s, a United Nations committee drafted a treaty called the Convention on the Elimination of All Forms of Discrimination against Women. CEDAW (pronounced SEE-daw) commits signatory nations to abolishing discrimination against women and also to ensuring their “full development and advancement” in all areas of public and private life.1 The document was adopted by the General Assembly and submitted to the UN’s member states in 1979. Since then nearly every nation has ratified what has come to be known as the “Women’s Treaty” or the “Women’s Magna Carta.” The only holdouts are three Islamic states (Iran, Sudan, and Somalia), a few Pacific islands, the Vatican, and . . . the United States. America’s failure to ratify CEDAW has not been for lack of high- level political support. President Jimmy Carter submitted it to the Senate for ratification in 1980. Many powerful legislators of both parties have favored it over the years. In 1993, sixty-eight senators, including Republicans Orrin Hatch, John McCain, and Strom Thurmond, urged President Bill Clinton to secure ratification.2 Nine years later the Bush administration told the Senate Foreign Relations Committee that CEDAW was “generally desirable” and “should be ratified.”3 Its supporters have included not only political leaders, but women’s groups such as the National Organization for Women, as well as influential broad-based groups such as AARP, AFL-CIO, the American Bar Association, and the League of Women Voters. Even the Audubon Society has endorsed CEDAW.4 Some ascribe the U.S. failure to ratify the treaty to one man: the late Senator Jesse Helms of North Carolina. To Helms, CEDAW was a terrible

* This working paper is an extended version of Christina Hoff Sommers, “The U.N. Women’s Treaty as a Threat to Freedom,” in New Threats to Freedom, ed. Adam Bellow (West Conshohocken, PA: Templeton Press, May 2010).

treaty “negotiated by radical feminists with the intent of enshrining their radical anti-family agenda into international law.”5 As chairman of the Senate Foreign Relations Committee from 1995 to 2001, Helms refused even to hold hearings on the matter. In 1999, ten women from the House of Representatives marched into his committee room, disrupted a hearing, and demanded that he schedule CEDAW hearings. Pounding his gavel, Chairman Helms reprimanded the placard-carrying women for their breach of decorum. “Please be a lady,” he said to the leader, Representative Lynn Woolsey from California.6 He then instructed the guards to eject the group from the room. (Among the shaken protesters was future Speaker of the House Nancy Pelosi.) Representative Woolsey would later tell the press that Helms “held CEDAW hostage so that women across the globe continued to be victimized and brutalized.”7 But Senator Helms never wavered. At a 2002 Senate hearing, he described the treaty as harmful to women as well as a direct threat to American sovereignty. “It will never see the light of day on my watch.”8 Helms’ watch is now long over, and CEDAW supporters can see daylight. President Barack Obama and Vice President Joe Biden are strong supporters. So are Senators John Kerry, chairman of the Foreign Relations Committee, and Barbara Boxer, chairwoman of the subcommittee with jurisdiction over CEDAW. Secretary of State Hillary Clinton is an enthusiast, as is Harold Koh, former dean of the Yale Law School and now the State Department’s chief legal adviser. An influential advocate of “transnational jurisprudence,” Koh invokes the sad irony that “more than half a century after Eleanor Roosevelt pioneered the drafting of the Universal Declaration of Human Rights, her country still has not ratified . . . CEDAW.”9 The State Department has notified the Senate that it favors ratification and that among the many human rights treaties the United States is considering, CEDAW is its top priority.10 The treaty is now at the Justice Department undergoing interagency review, and Secretary Clinton could submit it to the Senate Foreign Relations Committee soon.11 “The prospects for ratification have never been better,“ says the United Nations Association of the United States.12

The possibility that the Senate will at last seriously consider CEDAW has energized dozens of activist groups and inspired an impressive volume of reports, fact sheets, petitions, position papers, and talking points praising the treaty’s merits. There is even a pro-CEDAW rap song.13 The visible opposition consists of a few Catholic advocacy organizations, two conservative women’s groups, five or six Republican senators, and a handful of worried libertarians and academic skeptics of “international law.” So U.S. ratification of CEDAW, followed naturally by a triumphant address by President Obama in some international forum, seems inevitable. Except that it is not. For many years, Senator Helms’s adamant opposition to CEDAW made support an easy gesture for many senators who may have shared his qualms but not his temerity. Now that ratification has become a live prospect, there will be a real debate and actual votes—and public opinion, not just interest-group positioning, will come into play. Americans are clearly committed to helping women in the developing world: no nation on earth gives more to foreign aid or has more philanthropies and religious groups dedicated to women’s causes. The ratification debates will involve many heated claims and abstruse legal issues, but two basic questions will decide the matter. First, will ratification really improve the well-being of women throughout the world? Second, for better or worse, how will ratification affect American life? Effects Foreign and Domestic Vice President Biden and Senator Boxer are emphatic about how CEDAW would affect American laws and customs—not at all. In 2002 (when Biden, then senator, chaired the Foreign Relations Committee), the two made a simple and stirring case for the treaty in a San Francisco Chronicle op-ed. They reminded readers of honor killings in Pakistan, bride burnings in India, and female genital mutilation in sub-Saharan Africa. By signing the treaty, they said, the United States would demonstrate its commitment to helping women secure their basic rights and increase its leverage with countries that are notoriously oppressive to women. And, contrary to critics’ fears, CEDAW would have no effect on

American law: “Ratification of the treaty would not impose a single new requirement in our laws—because our Constitution and gender discrimination laws already comply with the treaty requirements. But U.S. participation could advance the lives of millions of women elsewhere.”14 Koh made the same argument in a 2002 article in the Case Western Reserve Journal of International Law. He invoked recent atrocities against women in Afghanistan, Bosnia, and Haiti and pointed to the many ways CEDAW has protected women from domestic violence and sex trafficking in countries like Nepal, Tanzania, and Sri Lanka. He also emphasized CEDAW’s negligible domestic impact: “The treaty provisions are entirely consistent with the letter and spirit of the United States Constitution and laws, both state and federal.”15 These arguments were summarized forcefully by Nicholas Kristof, a vigorous advocate for the rights of women in the developing world, in a 2002 New York Times column: “Frankly, the treaty has almost nothing to do with American women, who already enjoy the rights the treaty supports—opportunities to run for political office, to receive an education, to choose one’s own spouse, to hold jobs. Instead it has everything to do with the half of the globe where to be female is to be persecuted until, often, death.”16 In sum, CEDAW has little or nothing to do with the United States. It is a foreign policy initiative—in Senator Boxer’s words, “a diplomatic tool for human rights.”17 CEDAW opponents see the treaty’s consequences in exact opposite terms. They say American ratification would do little to help women in oppressive societies. Signatories like Saudi Arabia, Burma, Yemen, and North Korea have done almost nothing to reform their laws, policies, and traditional practices—even when admonished by the UN’s CEDAW Compliance Committee. By contrast, the United States takes its international treaty obligations seriously: if we ratified CEDAW we would be morally committed to abide by its rules. But many of those rules are antithetical to American values, and any good-faith effort to incorporate

them into American law would conflict with our traditions of individual freedom. CEDAW’s most famous provision, for example, (discussed in detail below) instructs governments to “take all appropriate measures to modify the social and cultural patterns” of its citizens when these are based on “stereotyped roles for men and women.”18 Under CEDAW, even private behavior—such as how couples divide household and childcare chores— is subject to government oversight and modification. But as conservative civil rights lawyer Kathryn Balmforth said in 2002 Senate testimony, “American civil rights law is crafted . . . to balance society’s interests in preventing discrimination with other equally important societal interests such as right to speech, free exercise of religion, privacy, and parental rights.”19 CEDAW, she said, does not acknowledge these fundamental rights. “Its language is so sweeping, that it threatens to overrun them and any other standing in its path.” The treaty also mandates programs and policies that American voters have explicitly rejected, such as paid maternity leave, government-funded daycare, and equal pay for comparable work. Said Balmforth, “It would be the sheerest folly to subordinate, in even the slightest degree, our right to make our own laws in this purely domestic area to any international treaty body.”20 The pro-CEDAW side has heard complaints like Balmforth’s many times and has drawn up detailed fact sheets refuting them.21 Amnesty International, for example, insists that critics are wrong to suggest that CEDAW would supersede American law or traditions. On the contrary, says its “fact sheet,“ the United States could ratify it subject to caveats. If some provision in the treaty conflicts with our laws, we can simply exempt ourselves from it. Furthermore, the treaty would not be “self- executing”—once ratified, it would not become the law of the land until our legislators took action to make it law. 22 Amnesty is correct that a nation can ratify a treaty such as CEDAW with caveats—called reservations, understandings, and declarations (RUDs). The Clinton administration, for example, proposed nine RUDs— including one that the United States “does not accept any obligation under the Convention to regulate [the] private conduct [of American citizens]

except as mandated by the Constitution and U.S. law” and another that we do not accept an obligation “to put women in all combat positions.”23 It also rejected treaty provisions that mandate paid maternity leave, comparable worth policies, and the like. To further protect American autonomy, the administration added, “No new laws would be created as a result of CEDAW.” As the Amnesty International fact sheet says, “Such language upholds U.S. sovereignty and grants no enforcement authority to the United Nations.” So, it seems, the critics are wrong. With the help of RUDs, we can show our support for women’s rights abroad while protecting American sovereignty and liberties at home. Advantage CEDAW. But here is the problem. Legal experts disagree about the power of RUDs to insulate the United States from provisions of a treaty it has committed itself to honor. The legitimacy and role of reservations to international human rights treaties is one of the most contested areas of international law. CEDAW itself states, “A reservation incompatible with the object and purpose of the present Convention shall not be permitted.”24 It is not even clear that Amnesty International officials believe RUDs are effective—at least not when they are talking to other activists. When the National Organization for Women (NOW) met with several human rights groups in 2009 to plan the pro-CEDAW campaign, it expressed concern that RUDs would make it difficult to enforce treaty provisions in the United States. But as NOW (somewhat indiscreetly) reported on its website on August 31, 2009, “Representatives from groups who have advocated for ratification over the years, suggest that RUDs have little meaning and could potentially be removed from the treaty at some point.”25 Amnesty is right to say that CEDAW is not self-executing and that the CEDAW Committee has no enforcement authority of its own. But the UN Division on the Advancement of Women, the agency that monitors the treaty’s implementation, is emphatic that the treaty is obligatory, not hortatory: “Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice.”26 Moreover, many

American legislators—and judges—will feel obligated to bring our laws in line with a treaty we have agreed to honor. But according to Biden, Boxer, and Koh, none of these arcane questions about international law really matter anyway. American laws, they insist, are already in full or near-full compliance with the Women’s Treaty. The treaty will therefore have few if any domestic consequences. This argument, however, brings us to the most striking feature of the CEDAW debates: the treaty’s most engaged and knowledgeable proponents—activist women’s groups—disagree with the for-export-only argument emphasized by public officials and human rights groups like Amnesty. NOW, the Feminist Majority Foundation, and their sister organizations agree with conservative critics that CEDAW would have a dramatic impact on American laws and practices. “U.S. women have endured denials of their basic rights long enough—please do not make them wait any longer,” wrote NOW President Terry O’Neil in an emotional letter to President Obama urging immediate ratification.27 Feminist activists see the treaty as an opportunity for American women to secure rights the Constitution has not delivered. The Feminist Majority Foundation has released a video explaining how American women can use CEDAW to bring about a “sea change” in our laws.28 It shows Congress debating the 2009 “stimulus bill” and explains how CEDAW can lead to “gender-fair budgets.” State-mandated quotas, the narrator explains, have led to gender-balanced legislatures in South Africa, Iraq, and Rwanda. Images of beaming women in the Rwandan parliament are juxtaposed with the sorry picture of the U.S. Senate, with only seventeen women members out of one hundred. The video also compares images of young Afghan women hideously disfigured from acid attacks with photos of corpses of American women brutally murdered by intimate partners. Says the narrator, “Clearly we need CEDAW.” Janet Benshoof, president of the Global Justice Center, agrees and she speaks for many in the feminist establishment when she says, “If CEDAW were fully implemented in the United States it would revolutionize our rights. . . . American women need legal tools to fight patriarchy.”29

The most detailed assessment of CEDAW’s effects on American law appears in a fifty-page booklet, Human Rights for All: CEDAW, first published in 2001 by the Working Group on Ratification of CEDAW, a consortium of more than one hundred national associations, including the United Nations Association of the United States. The publication includes several pages that spell out how CEDAW would transform the American legal system. For example, current American law promises equality of opportunity—but not equality of outcome. “How CEDAW would help?” ask the authors of Human Rights for All. They reply emphatically, in bold , capitalized, red letters. “CEDAW Calls Upon State Parties to Adopt Temporary Special Measures Aimed at Accelerating De Facto Equality Between Men and Women.”30 Without mentioning the word “quota” or “comparable worth,” they spell out the implications. “CEDAW ratification would reflect the country’s commitment to maintaining temporary special measures that advance the equal participation of women in civil, political, economic, social, and cultural arenas until that goal is achieved.” Several specific changes are promised. In compliance with CEDAW, the United States would introduce paid maternity leave, overturn state rulings against reverse discrimination, and institute gender quotas for public office and in the foreign service. Furthermore, many state laws pertaining to education, family, or health would be federalized. Human Rights for All supports Janet Benshoof’s claim that the effects of CEDAW would be revolutionary. “Under CEDAW,” she tells her co- activists, “we could . . . sue the government to address the shameful fact that there is only one woman on the Supreme Court, no women running the Pentagon and a Congress with only 16 percent women.” The numbers changed in the months after her article was written: a Supreme Court vacancy was filled by a woman, a few additional women joined the Senate and House, and a woman became a top Pentagon official. But if the CEDAW guide is to be trusted, treaty ratification will mean that women’s groups can litigate all areas of American life that fail to evince statistical parity between the sexes. It is possible, of course, that CEDAW’s most fervent enthusiasts are exaggerating the treaty’s revolutionary potential. At the same time, it is

clear that the practicing politicians and mainstream organizations working for ratification are downplaying the domestic implications in order to assemble the necessary legislative coalition (two-thirds of the Senate under the Constitution’s treaty provision). The conflicting political strategies are dramatized by the fact that Amnesty International and the American Bar Association are themselves members of the Working Group on Ratification of CEDAW—and that a version of their “Fact and Myth” sheet is included, with glaring inconsistency, in the 2001 edition of Human Rights for All. In 2004, the working group published a new edition, adding a foreword by Harold Koh. In this version, the reassuring “Fact and Myth” section remains, but the section detailing the impact on American law is deleted. What is certain is that, after sixty-seven consensus-seeking senators voted to ratify CEDAW and turned to other legislative business, the feminist groups and lawyers who have forthrightly declared their ambitions would no longer be confined to law journals, women’s studies departments, and feminist websites. They would be the new “mainstream.” And they would have new allies: UN officials and international NGOs would join them in cultivating American pastures under the legal and moral authority of the Women’s Treaty. To see what would be in store, we must turn to the treaty’s own text and intellectual provenance. Back to the Future The circumstances of CEDAW’s creation are submerged in the current ratification debates but essential to making sense of those debates. The Women’s Treaty is a product of a unique and unsettled moment in the American women’s movement—a moment when a radical version of feminism was briefly ascendant but soon to be eclipsed by its very success. CEDAW contains many worthy and indeed noble declarations, but its key provisions are 1970s feminism preserved in diplomatic amber. Releasing those aged provisions in twenty-first-century America would be strange at best, and at worst would threaten the freedoms that women have gained and the uses they are making of those freedoms.

In the early 1970s, the UN General Assembly declared 1975 “International Women’s Year” and authorized the first World Conference on Women. Thousands converged in Mexico City for both the official UN conference and a parallel conference called the Tribune held a few miles away. The UN conference was formal, orderly, and decorous. The Tribune, by contrast, was a raucous affair, attracting some four thousand feminist activists, writers, and intellectuals. The fifteen hundred American participants included feminist luminaries of that era such as Betty Friedan, Gloria Steinem, Angela Davis, Jane Fonda, and Bella Abzug.31 Foreign Affairs gave a detailed account of some of the many quarrels that broke out between Western feminists and women’s activists from the developing world. The Westerners believed that “all women are subject to colonization” and spoke of themselves as members of an inferior “caste.”32 The Third World women were taken aback by facile comparisons between the sometimes-uncomfortable circumstances of privileged middle-class Americans and those of the impoverished, often essentially enslaved women in their own countries. And they were alarmed by the bitter gender politics. When members of the official U.S. delegation from the UN conference came across town to visit the Tribune, the male delegates were harangued, shouted down, and driven out. One hapless fellow who identified himself as a population expert was unable to complete his remarks because the American feminists demanded to know if he had had a vasectomy. When he said, “Yes,” there was thunderous applause. At a later Tribune event, all men were banished from the room so the women could engage in an impromptu “consciousness-raising” session. “The Third World women were outraged,” said Foreign Affairs. “Female chauvinism is the last thing we want,” complained an Indian journalist. The women from the developing countries also accused the Westerners of “denigrating woman’s maternal role” and weakening marriage.33 Soon women from the Soviet Union joined the fray and made it clear that they did not share the Western feminist goal of eliminating gender roles. In fact, they sought the “liberation of their femininity.” Most of them had been forced into the workplace by the communist system—yet they

continued to do all the work at home. “Now they want pleasure and beauty; they want to dress up and be courted, perhaps to emphasize motherhood and domestic life”34 The disputes over femininity, family, and motherhood that erupted at the 1975 conferences were nothing new to the women’s movement. Since the movement’s beginning in the early eighteenth century, reformers have held radically different views on gender roles. “Egalitarian feminists” stressed the essential sameness of the sexes and sought to liberate women from conventional social roles. By contrast, “social feminists” were not opposed to gender distinctions. Indeed, they embraced them, looking for ways to give wives and mothers greater power, respect, and influence in the public sphere as well as more protection from abuse and exploitation in their domestic roles.35 Social feminism has always enjoyed a distinct advantage over its more radical sister: great majorities of women like it. It clearly had a following among some of the non-Western and Soviet women at the Mexico conference in 1975. And an updated version of it informs the lives of most American women today. They want the same rights and opportunities as men—but few make the same choices as men. To give one example, according to a 2009 Pew survey, “A strong majority of all working mothers (62%) say they would prefer to work part time. . . . An overwhelming majority [of working fathers] (79%) say they prefer full- time work. Only one-in-five say they would choose part-time work.”36 The rowdy egalitarian feminists at the 1975 Tribune included the leaders of the then-raging feminist revolution in the United States—the “Second Wave of Feminism” as it is now called, which had begun in 1963 with the publication of Betty Friedan’s canonical The Feminine Mystique. Postwar America certainly needed a feminist correction. In the fifties and early sixties, women were locked out of many fields and allotted second- class status in higher education, employment, and the law. Those who preferred paths other than wife and mother, or who found the stereotypes of femininity stultifying, were trapped. Feminists like Friedan and Gloria Steinem urged American women to live “not at the mercy of the world, but as builder and designer of that world.”37 Women listened, and by the

1980s, they were entering the workplace in record numbers; filling the colleges, law schools, and medical schools; starting businesses; joining sports teams; and generally enjoying freedoms and opportunities far beyond those of any women in history. But the women’s movement suffered a serious setback. After scoring a series of landmark legal victories in the 1960s and early 1970s, they failed to pass the Equal Rights Amendment (ERA). In 1975, the ERA seemed to be on a fast track to ratification. But as political scientist Jane Mansbridge explains in her meticulous study, Why We Lost the ERA, Americans became disenchanted when they began to understand the worldview of its feminist sponsors: radical sexual egalitarianism.38 The egalitarian feminists who dreamed of a fully androgynous society are found today in university women’s studies programs, law schools, and a network of activist organizations that sprang into being in those heady days. From their perspective, the fact that so many seemingly free and educated women continue to aspire to conventional female roles is evidence that women are still captive to a repressive patriarchal culture. The egalitarians are relatively small in number, but they wield considerable influence. Many journalists and politicians listen to them, and if someone in academia commits the solecism of suggesting the possibility of innate sex differences, they react with fury—former Harvard president Larry Summers is only their most famous victim. But the defeat of the ERA reduced them to guerrillas in the intellectual hills. What they now see in CEDAW is the opportunity to return to revolutionary leadership on the broad political plains. It is not for nothing that the Women’s Treaty is sometimes called a “global ERA.” What CEDAW Says: Article 5(a) CEDAW requires signatory countries to remove all barriers that prevent women from achieving full equality with men in all spheres of life—law, politics, education, employment, marriage, and “family planning.” It defines discrimination against women to be “any distinction, exclusion or restriction made on the basis of sex.”39 Some of its more specific provisions are highly laudable, such as its requirement that

signatories “suppress all forms of traffic in women and exploitation of prostitution.”40 Others are, from an American standpoint, unexceptionable, such as the requirement that signatories “accord to women equality with men before the law.”41 But CEDAW’s central provision, Article 5(a), is pure 1970s egalitarian feminism. This provision, celebrated by feminist legal scholars for its radicalism and sheer audacity, is the key to understanding what the Women’s Treaty envisages: “States Parties shall take all appropriate measures . . . [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”42 The spirit of Article 5(a) pervades CEDAW. Throughout the treaty, the drafters show a determination to eradicate gender stereotypes, especially those that associate women with care-giving and motherhood. The treaty instructs signatories “to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children.”43 It also calls for the “elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education . . . in particular, by the revision of textbooks and school programmes.”44 States are advised to provide paid maternity leave as well as “the necessary supporting social services to enable parents to combine family obligations with work responsibilities . . . in particular through promoting the establishment and development of a network of child-care facilities.”45 And the battle against stereotypes requires special efforts to guarantee equal results in the workplace and in government. According to Article 4, “Temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination.” The UN’s CEDAW Committee interprets this as mandating “positive action, preferential treatment or quota systems to advance women’s integration into education, the economy, politics and employment.”46 Signatory governments are also required to “take all appropriate measures” to ensure women’s “right to equal remuneration . .

. in respect of work of equal value”47 (which means “comparable worth” policies, according to the CEDAW Committee).48 The original records of what went on during the CEDAW drafting process in the late seventies are incomplete, and participants are identified by country rather than name. What remains has been gathered in the Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women.49 The record indicates an ongoing struggle between confident and forceful egalitarians, mostly from the United States and Scandinavia, and the less vocal social feminists from developing countries and the USSR.50 The drafting committee did not invent the treaty out of whole cloth: it relied on earlier UN women’s rights instruments—in particular the 1967 UN Declaration on the Elimination of Discrimination against Women (DEDAW). CEDAW is based on DEDAW—but with a critical difference. DEDAW is a social feminist document. It demands equal respect for men and women as well as the same rights and opportunities—but it also pays tribute to “the part [women] play in the family and particularly in the rearing of children.” It also provides that, “Measures taken to protect women in certain types of work, for reasons inherent in their physical nature, shall not be regarded as discriminatory.”51 In CEDAW, all such passages were eliminated and replaced by egalitarian provisions— emphasized by the addition of “all forms of” to the new document’s title. Here is the 1967 DEDAW provision on the need to eliminate prejudice against women: “All appropriate measures shall be taken to educate public opinion and to direct national aspirations towards the eradication of prejudice and the abolition of customary and all other practices which are based on the idea of the inferiority of women.”52 In CEDAW, the moderate suggestion for public education campaigns against sexist prejudices is transformed into something akin to the radical spirit of the 1975 feminist Tribune. Consider article 5(a) once again: “States Parties shall take all appropriate measures . . . [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all

other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” The Travaux Preparatoires reveals that Sierra Leone was alone in objecting to the change: “Customary practices would have to be carefully studied to ascertain whether in fact they were based on the idea of inferiority of women. . . . [S]ome customary practices by women were not based on inferiority of one of the sexes. “53 The idea that there could be customs of femininity that were innocuous and not demeaning seems to have been ignored or overruled, with the American feminists leading the way. The Committee If the United States were to ratify CEDAW, we would be subject to an initial evaluation of our compliance with the treaty’s provisions, followed by regular four-year progress reviews by the CEDAW Committee, which consists of twenty-three experts of “high moral standing and competence in the field covered by the Convention.”54 They are elected by signatory nations including Cuba, Burma, and Nigeria, where elementary women’s rights are routinely violated. Countries under review submit detailed reports outlining their progress toward fulfilling the treaty’s requirements. Their representatives then meet with the Committee, where they are questioned, challenged, sometimes rebuked, and provided with official recommendations for improvement. Today, any country, no matter how free and democratic, is out of compliance with the treaty as long as significant gender roles are still discernible in its institutions, including private institutions. If, for example, more women than men routinely take care of children, the Committee recommends ways to turn things around, usually with government-imposed quotas and “awareness raising” campaigns. The UN publishes detailed accounts of exchanges between the Committee and countries under review. It is hard to read them and not conclude that the United States would be in for a rough time. Consider, for example, what happened when Iceland was scrutinized in July 2008. Iceland is a very small country, but it has one of

the most extensive gender-equity bureaucracies in the world. As Hanna Gunnsteinsdottir, head of Iceland’s Department of Equality and Labor, tried to explain to the CEDAW Committee, her country has equity ministers, equity councils, equity advisers, and a Complaints Committee on Gender Equality whose rulings are binding.55 Every other year, a state- mandated “National Symposium on Gender Equity” educates citizens about sex-role stereotyping. More than 80 percent of Icelandic women are in the labor force, and parents enjoy paid maternity and paternity leave, including one month of pre-birth leave. Its current prime minister is the first openly lesbian head of government in the world. No wonder Iceland is ranked first in the World Economic Forum’s 2009 Global Gender Gap Report.56 It would appear to be a model of egalitarianism. Yet it falls short. The Committee praised the island nation for its “strides” toward gender parity, but several members found it to be remiss in its efforts to stamp out sexism. Hanna Beate Schopp-Schilling of Germany was concerned that, despite the government’s multiple gender and equity committees, the parliament of Iceland itself had no committee on gender equity. The expert from Algeria wanted to know why so few women were full professors at the University of Iceland. Magalys Arocha Dominguez, from Cuba, was unhappy that many Icelandic women held part-time jobs and spent much more time than men taking care of children. She was also displeased by survey findings that Iceland’s women were allowing family commitments to shape their career choices: “What government measures have been put in place to change these patterns of behavior?”57 CEDAW proponents such as Vice President Biden, Senator Boxer, and Harold Koh praise its work with women in the developing world. But in practice the Committee devotes disproportionate energies to monitoring democracies and urging them to realize egalitarian ideals in all spheres of life. It recently advised Spain to organize a national “awareness raising campaign against gender roles in the family.”58 Finland was urged “to promote equal sharing of domestic and family tasks between women and men.”59 Slovakia was instructed to “fully sensitize men to their equal participation in family tasks and responsibilities.”60 Liechtenstein was closely questioned about a “Father’s

Day project”61 and reminded of the need to “dismantle gender stereotypes.”62 The Committee sounds far more reasonable when reviewing countries where women are truly oppressed, like Nigeria, Niger, Mauritania, or Yemen. Such nations often send delegates who present their homelands as models of gender equity. “Mauritanian women and men are equal before the law in all spheres,” reported one.63 The Yemeni delegation spoke of legal reforms, new programs, and strategies for women’s empowerment. To its credit, the Committee respectfully but firmly pressed these delegates on matters such as child marriage, polygamy, legal wife beating, stoning, female genital mutilation, and high maternal mortality rates. Members often give the delegations concrete ideas on how to improve women’s lives. In its 2007 review, Niger was advised to offer families micro-credits for each daughter enrolled in school and to try to limit female genital mutilation by finding alternative employment for the older women who perform the procedure for a living.64 The same Committee that sounded so absurd when it rebuked Liechtenstein for recognizing Father’s Day was impressive in its exchanges with Yemen about how to address female illiteracy. Experts on international women’s rights are divided on the efficacy of these reviews for repressive countries. Most believe they do some good. They point out that these countries are getting a strong sense of where they stand in relation to a set of universal standards. Furthermore, the Committee issues a final report after each review, which helps local women’s advocacy groups foment change. But critics note that many of the world’s most repressive nations show little or no intention of abiding by the treaty. Yemen ratified CEDAW in 1984 without reservations. It has undergone six Committee reviews. Yet in 2009, for the fourth year in a row, it came in last in the World Economic Forum’s annual Global Gender Gap Report. Sixty-one percent of females are illiterate, compared to 24% of males. Girls as young as eight years old can be legally married, and its penal code specifies that any man who kills a female relative suspected of adultery should not be prosecuted for murder.65 In the 2008 review, exasperated Committee members repeatedly asked the Yemeni delegation

if its government understood the treaty or took any of its provisions seriously.66 Is CEDAW likely to improve the circumstances of women in places like Yemen (and for that matter Cuba)? In particular, would U.S. ratification make it more effective? Are there better ways for America to advance women’s rights than through a UN treaty? There is lots of room for argument on these points, and there are many disagreements among feminists and human rights advocates. As for CEDAW’s effects on American life, however, there is no doubt: they would be momentous. Fallout If the United States ratifies CEDAW, there will be a three-ring circus each time we come up for review. American laws, customs, and private behavior will be evaluated by twenty-three UN gender ministers to see if they comply with a feminist philosophy that is thirty years out of date. The Committee will pounce on all facets of American life that do not show statistical parity between the sexes. That many American mothers stay home with children or work part-time will be at the top of their list of “discriminatory practices.” Committee members like Cuba’s Magalys Arocha Dominguez will want to know what our government has done to change our patterns of behavior. The American delegation will then enter a “consultative dialogue” with the Committee to develop appropriate remedies. Although the Committee’s remedies will not be “self-executing,” they will get plenty of help in the execution phase from organizations like NOW, the Feminist Majority, and the National Women’s Law Center. Groups that Americans know nothing about will take CEDAW as a legal mandate to implement their worldview. One such organization is the National Council for Research on Women (NCRW), a network of more than one hundred women’s research and policy centers (members include the Wellesley Center for Research on Women, Harvard’s Radcliffe Institute of Advanced Study, and Stanford’s Michelle Clayman Institute for Gender Research).

In 2006, the NCRW published a major report on the state of the women of the world entitled Gains and Gaps: A Look at the World’s Women. It includes statistics on honor killings in Pakistan, acid burning in Bangladesh, and genital mutilation in Mali. While it concedes that women in developing countries face a “relatively more dire situation,” it insists that American women are “far from standing above the problems faced by women around the world.” As the authors explain, “Deeply ingrained gendering occurs in all societies,” and the Untied States is no exception.67 The NCRW website features a list of abiding American injustices that make its work “crucial”: Women are still massively underrepresented in the sciences. There are too few female tenured professors. Women are underrepresented in corporate leadership. Women are still underpaid. Too few women lawyers make partner. Men still dominate the airwaves.68 The hundreds of feminist scholars and activists in the NCRW realize that closing these gender gaps is not a matter of removing barriers—those were taken down in the 1970s. For these committed egalitarians, innocent explanations for remaining differences —differences many would regard as freely chosen—are ruled out a priori. That there are fewer women than men in engineering, on corporate boards, or on Sunday morning political talk shows must be the result of unconscious bias, hostile climates, and internalized oppression. The members of the NCRW have produced volumes of research to “prove” ubiquitous discrimination and hundreds of initiatives to address it. And they have a special word for anyone who challenges their agenda: backlasher. The American Association of University Women (AAUW), one of the NCRW’s more influential member organizations, recently issued a warning to “adversaries” who get in the way of its equity initiatives: “[O]ur adversaries know that AAUW is a force to be reckoned with. . . . We are issuing fair warning—we ARE breaking through barriers [AAUW’s

emphasis]. We mean it; we’ve done it before; and we are ‘coming after them’ again . . . and again and again, if we have to! All of us, all the time.”69 CEDAW would give the activists and lawyers of NCRW, NOW, and the Feminist Majority the license to sue, reeducate, and resocialize their fellow citizens—opportunities that have eluded them under the Constitution. For them, the task of dismantling what some of them call “gender apartheid” will be exhilarating and gratifying. For the hapless majority, it would be oppressive. Civil rights are likely to be sacrificed in the name of a “higher good”: full gender integration. And don’t count on the American Civil Liberties Union (ACLU) to speak up on behalf of freedom. The ACLU’s “Women’s Rights Project” now drives its agenda, and CEDAW ratification is at the top of the list. What Would Eleanor Do? But let’s say, just for the sake of argument, that the Obama administration and the U.S. Senate ratify the Women’s Treaty subject to RUDs that effectively protect our institutions from the ministrations of the Committee and deny the feminist network its “tool” to dismantle the American patriarchy. Why should the United States be lending its authority to a human rights instrument that treats the conventions of femininity as demeaning to women? Few women anywhere want to see gender roles obliterated. The late Elizabeth Warnock Fernea was an expert on feminist movements in the contemporary Muslim world. In her travels through Saudi Arabia, Morocco, Turkey, and Iraq, she met great numbers of advocates working to improve the status of women—and who were proud of their roles as mother, wife, and caregiver. Fernea called it “family feminism,” but it was classic social feminism—the style of women’s liberation that hard-line egalitarians disdain but that great majorities of women find ennobling and empowering.70 Harold Koh suggests that by abjuring “the Women’s Rights Treaty” Americans are betraying the legacy of Eleanor Roosevelt—the leader of the group that created the celebrated Universal Declaration of Human Rights of 1948. But Koh is confused about Roosevelt’s legacy. She was a

20 lifelong, died-in-the-wool social feminist, energetically committed to women’s rights as well as to the protection, not elimination, of their social roles and callings. She saw men and women as different but equal. And no woman, she said, should feel “humiliated” if she gives priority to home and family—“this was our first field of activity and it will always remain our most important one.”71 Gender researchers in the NCRW organizations will say that Roosevelt was captive to the prejudices of her time. Maybe so. But it is more likely that this deeply humane and large-souled woman, whose vision helped create the Universal Declaration of Human Rights, also had a clear vision of where women’s emancipation might lead. Social feminism appears to be the universal feminism of women. Why, then, should we give ideologues the moral high ground over ourselves and over many others who yearn to be as free as we have become?

Notes

1 Office of the United Nations High Commissioner for Human Rights (OHCHR), “Introduction,” Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), December 18, 1979, available at www2.ohchr.org/english/law/cedaw.htm (accessed March 21, 2010). 2 Nora O’Connell and Ritu Sharma, “Treaty for the Rights of Women Deserves Full U.S. Support,” Human Rights Brief 10, no. 2, available at www.wcl.american.edu/hrbrief/10/2women.cfm (accessed March 21, 2010). 3 CEDAW Task Force of the Leadership Conference on Civil and Human Rights, “History of the Treaty for the Rights of Women,” available at www.womenstreaty.org/facts_history.htm (accessed March 21, 2010). 4 Leila Rassekh Milani, Sarah C. Albert, and Karina Purushotma, eds., CEDAW: The Treaty for the Rights of Women (Working Group on Ratification of the U.N. Convention on the Elimination of All Forms of Discrimination against Women, 2004), 70, available at www.womenstreaty.org/CEDAW%20Book-%20WHOLE%20BOOK.pdf (accessed March 21, 2010). 5 106th Cong., 2nd sess., Senate, Congressional Record 146, no. 58 (May 11, 2000), S3926, available at www.gpo.gov/fdsys/pkg/CREC-2000-05-11/pdf/CREC-2000-05-11- senate.pdf (accessed March 21, 2010). 6 Helen Dewar, “’Ladies’ of the House Rebuffed; Lawmakers Crash Senate Hearing; Helms Summons Police,” Washington Post, October 28, 1999. 7 “Feminists Accused of Pushing Agenda at U.N.,” Washington Times, August 11, 2006.

8 106th Cong., 2nd sess., Senate, Congressional Record 146, no. 58 (May 11, 2000), S3926. 9 Harold Hongju Koh, “Foreword,” in CEDAW: The Treaty for the Rights of Women, 4. 10 U.S. State Department, “Treaty Priority List for the 111th Congress,” May 11, 2009, available at www.oceanlaw.org/downloads/2009TreatyPriorityList.pdf (accessed March 21, 2010). 11 See U.S. State Department, ”Thirtieth Anniversary of the United Nations’ Adoption of CEDAW,” news release, December 18, 2009, available at www.state.gov/r/pa/prs/ps/2009/dec/133893.htm (accessed March 21, 2010); and United States Mission to the United Nations, “Statement by Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, on the 30th Anniversary of the Convention on the Elimination of All Discrimination against Women (CEDAW),” December 18, 2009, available at www.usun.state.gov/briefing/statements/2009/133840.htm (accessed March 21, 2010). 12 United Nations Association of the United States of America, “Talking Points: The Treaty on the Rights of Women (CEDAW),” available at www.unausa.org/Page.aspx?pid=934 (accessed March 21, 2010). 13 Feminist Majority Foundation, “CEDAW: The Secret Treaty,” 2009. 14 Joseph R. Biden Jr. and Barbara Boxer, “Senate Needs to Ratify the Treaty for the Rights of Women,” San Francisco Chronicle, June 13, 2002. 15 Harold Hongju Koh, “Why America Should Ratify the Women’s Rights Treaty,” Case Western Reserve Journal of International Law 34, no. 3 (Summer 2002). 16 Nicholas Kristof, “Women’s Rights: Why Not?” New York Times, June 18, 2002. 17 Quoted in Catherine Powell, “CEDAW, Federalism, and Democracy in U.S. International Lawmaking,” Opinio Juris, available at www.opiniojuris.org/2008/03/21/cedaw-federalism-and-democracy-in-us- international-lawmaking (accessed March 21, 2010). 18 OHCHR, CEDAW, article 5. 19 Kathryn Balmforth, statement ( Senate Committee on Foreign Relations hearing, 107th Cong., 2nd sess., June 13, 2002), available at http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=107_senate_hearings&docid=f:80461.wais (accessed March 21, 2010). 20 Ibid. 21 See, for example, Amnesty International, “CEDAW Fact Sheet,” available at www.amnestyusa.org/violence-against-women/ratify-the-treaty-for-the-rights-of- women-cedaw/page.do?id=1108216 (accessed March 21, 2010); Citizens for Global Solutions, “Myths about CEDAW,” available at www.globalsolutions.org/cedaw (accessed March 21, 2010); and American Bar Association “Convention on the Elimination of All Forms of Discrimination against Women: Fear vs. Fact,” available at www.abanet.org/irr/fear_fact.html (accessed March 21, 2010). 22 Amnesty International, “CEDAW Fact Sheet.” 23 Leila Rassekh Milani, Sarah C. Albert, and Karina Purushotma, eds., CEDAW: The Treaty for the Rights of Women, 97–98.

24 OHCHR, CEDAW, article 28-2. 25 National Organization for Women, “Don’t Be Deceived: Only a ‘Clean’ CEDAW Should Be Ratified,” August 31, 2009, available at www.nowfoundation.org/issues/global/083109cedaw.html (accessed March 21, 2010). 26 From “Overview of the Convention” section of the website for CEDAW when it was a division of the Department of Economic and Social Affairs, available at www.un.org/womenwatch/daw/cedaw (accessed March 21, 2010). CEDAW’s jurisdiction has since been placed under the OHCHR. 27 National Organization for Women, “NOW Urges Obama to Take Lead in Securing U.S. Ratification of CEDAW,” available at http://www.now.org/ (accessed March 25, 2010). 28 Feminist Majority Foundation, “CEDAW: The Secret Treaty.” 29 Janet Benshoof, “Twisted Treaty Shafts U.S. Women,” On the Issues: The Progressive Woman’s Magazine (Winter 2009), available at www.ontheissuesmagazine.com/2009winter/2009winter_5.php (accessed March 21, 2010). 30 Leila Rassekh Milani, ed, Human Rights for All: CEDAW (Working Group on Ratification of the U.N. Convention on the Elimination of All Forms of Discrimination against Women, 2001), 35 , available at http://www.endabuse.org/userfiles/file/Maternal_Health/cedaw.pdf (accessed March 21, 2010). 31 Jennifer Whitaker, “Women of the World: Report from Mexico City,” Foreign Affairs 54, no. 1 (October 1975). See also Joachim Jutta, Agenda Setting, the UN, and NGOs (Washington, DC: Georgetown University Press, 2007). 32 Jennifer Whitaker, “Women of the World: Report from Mexico City,” 174–75. 33 All quotes in corresponding paragraph from ibid., 178. 34 Jennifer Whitaker, “Women of the World: Report from Mexico City,” 180. 35 See Christina Hoff Sommers, “Feminism, Freedom and History,” in Culture and Civilization, vol. 1, ed. Irving Louis Horowitz (New Brunswick, NJ: Transaction Publishers, 2009), 211–28, available at www.aei.org/docLib/Feminism.pdf (accessed March 21, 2010). 36 Kim Parker, “The Harried Life of the Working Mother,” Pew Research Center, October 1, 2009, available at www.pewsocialtrends.org/pubs/745/the-harried-life-of-the- working-mother (accessed March 21, 2010). 37 Betty Friedan, The Feminine Mystique (New York: W. W. Norton, 1963), 432. 38 Jane Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986). 39 OHCHR, CEDAW, article 1. 40 Ibid., article 6. 41 Ibid., article 15-1. 42 Ibid., article 5(a). Emphasis added. 43 Ibid., article 5(b). 44 Ibid., article 10(c). 45 Ibid., article 2(c).

46 Committee on the Elimination of Discrimination against Women, “General Recommendation No. 13: Equal Remuneration for Work of Equal Value,” 8th sess., 1989, available at www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom13 (accessed March 21, 2010). 47 OHCHR, CEDAW, article 11-1(d). 48 Committee on the Elimination of Discrimination against Women, “General Recommendation No. 13: Equal Remuneration for Work of Equal Value.” 49 Lars Rehof, Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (Boston: Martinus Nijhoff, 1993), 50–85. 50 The Soviet Union, for example, proposed that the treaty recognize “the protection of motherhood” as a social good. Norway objected that such a provision would “bind women so closely to that role.” The United States rejected the motherhood provision on the grounds that “family responsibility should be shared by the mother and father.” In any case, said the American drafter, “The word motherhood is discriminatory against men and unacceptable in United States Law.” When Colombia, Egypt, Guinea, Senegal, and Venezuela supported a provision that called for special protection for women, the Americans pushed back, noting the “inconsistency between requests for equality of opportunity on the one hand and requests for special protection on the other.” This view prevailed. 51 United Nations General Assembly, “Declaration on the Elimination of Discrimination against Women,” November 7, 1967, available at www.lawphil.net/international/treaties/dec_nov_1967.html (accessed March 21, 2010). 52 OHCHR, CEDAW, article 3. 53 Lars Rehof, Guide to the Travaux Preparatoires, 80. 54 From “Committee on the Elimination of Discrimination against Women” section of the website for CEDAW when it was a division of the Department of Economic and Social Affairs, available at www.un.org/womenwatch/daw/cedaw/committee.htm (accessed March 21, 2010). 55 Please refer to the CEDAW 41st sess. (June 30–July 18, 2008) documents for Iceland, available through www2.ohchr.org/english/bodies/cedaw/cedaws41.htm ; see also http://www.un.org/News/Press/docs/2008/wom1692.doc.htm. (both accessed March 21, 2010). 56 Ricardo Hausmann, Laura D. Tyson, and Saadia Zahidi, The Global Gender Gap (Geneva: World Economic Forum, 2009), available at www.weforum.org/pdf/gendergap/report2009.pdf (accessed March 21, 2010). 57 From “Committee on Elimination for Discrimination against Women” available through http://www.un.org/News/Press/docs/2008/wom1692.doc.htm. (accessed March 21, 2010). 58 Committee on the Elimination of Discrimination against Women, “Concluding Observations of the Committee on the Elimination of Discrimination against Women: Spain,” 44th sess. (July 20–August 7, 2009), 4. 59 Committee on the Elimination of Discrimination against Women, “Concluding Observations of the Committee on the Elimination of Discrimination against Women:

Finland,” 41st sess. (June 30–July 18, 2008), 6, available at www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-FIN-CO-6.pdf (accessed March 21, 2010). 60 Committee on the Elimination of Discrimination against Women, “Concluding Observations of the Committee on the Elimination of Discrimination against Women: Slovakia,” 41st sess. (June 30–July 18, 2008), 7, available at www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-SVK-CO-4.pdf (accessed March 21, 2010). 61 Committee on the Elimination of Discrimination against Women, “Responses to the List of Issues and Questions with Regard to the Consideration of the Second and the Third Periodic Reports: Liechtenstein,” 39th sess., pre-session working group (July 23– August 10, 2007), 12. 62 Committee on the Elimination of Discrimination against Women, “Concluding Observations of the Committee on the Elimination of Discrimination against Women: Liechtenstein,” 39th sess. (July 23–August 10, 2007), 4. 63 Ms. Mint Khattri of Mauritania, Committee on the Elimination of Discrimination against Women, “Summary Record of the 788th Meeting,” 38th sess. (May 25, 2007), 4, available at www.arabhumanrights.org/publications/countries/mauritania/cedaw/cedaw-c-sr-788- 07e.pdf (accessed March 21, 2010). 64 Committee on the Elimination of Discrimination against Women, “Concluding Comments of the Committee on the Elimination of Discrimination against Women: Niger,” June 11, 1997. 65 Committee on the Elimination of Discrimination against Women, “Concluding Observations of the Committee on the Elimination of Discrimination against Women: Slovakia,” 41st sess. (June 30–July 18, 2008), 7, available at www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-YEM-CO-6.pdf (accessed March 21, 2010). 66 Committee on the Elimination of Discrimination against Women, “Summary Record of the 833rd Meeting,” August 4, 2008. 67 National Council for Research on Women (NCRW), Gains and Gaps: A Look at the World’s Women (New York: NCRW, 2006), 4. 68 NCRW, “Here’s Why the Work of Women’s Research Is Still Crucial!” available at www.ncrw.org/about/Why%20Research%20Matters.htm (accessed March 21, 2010). 69 American Association of University Women, “Breaking through Barriers,” Current Topics Briefing #5, June 30, 2008, available at www.aauwne.homestead.com/files/Breaking_through_Barriers.pdf (accessed March 21, 2010). 70 Elizabeth Fernea, In Search o f Islamic Feminism (New York: Random House, 1998). 71 Eleanor Roosevelt, “Women in Politics,” Good Housekeeping (April 1940), in Allida Black, ed., Courage in a Dangerous World: The Political Writings of Eleanor Roosevelt (New York: Columbia University Press, 1999), 70.