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[Senate Executive Report 107-9]
[From the U.S. Government Publishing Office]

107th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                       107-9

======================================================================

 
 CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST 
                                 WOMEN

                                _______
                                

               September 6, 2002.--Ordered to be printed

                                _______
                                

          Mr. Biden, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                             together with

                     MINORITY AND ADDITIONAL VIEWS

                    [To accompany Treaty Doc. 96-53]

    The Committee on Foreign Relations to which was referred 
the Convention on the Elimination of All Forms of 
Discrimination Against Women, adopted by the United Nations 
General Assembly on December 18, 1979, and signed on behalf of 
the United States of America on July 17, 1980, having 
considered the same, reports favorably thereon and recommends 
that the Senate give its advice and consent to ratification 
thereof, subject to four reservations, five understandings, and 
two declarations as set forth in this report and the 
accompanying resolution of advice and consent to ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Entry Into Force.................................................3
 IV. Committee Action.................................................4
  V. Major Provisions.................................................4
 VI. Committee Comments...............................................5
VII. Summary of Provisions in the Resolution of Advice and Consent....7
VIII.Text of Resolution of Advice and Consent to Ratification........11

 IX. Minority Views of Senators Helms, Lugar, Hagel, Frist, Allen, 
     Brownback, and Enzi.............................................14
  X. Additional Views of Senators Helms, Brownback, and Enzi.........20
 XI. Additional Views of Senator Frist...............................24
XII. Additional Views of Senator Allen...............................26

                               I. PURPOSE

    The purpose of the Convention is to achieve the elimination 
of discrimination against women. The Convention obligates 
States Parties to condemn discrimination against women, to take 
all appropriate measures to end discrimination in a range of 
areas, including the political and economic spheres.

                             II. BACKGROUND

    The Convention on the Elimination of All Forms of 
Discrimination Against Women (hereafter ``CEDAW,'' ``Women's 
Convention,'' or ``Convention'') was adopted by the United 
Nations General Assembly on December 18, 1979, and entered into 
force on September 3, 1981. The Convention sets forth 
internationally accepted principles and measures to achieve 
equal rights for women throughout the world. As of August 1, 
2002, 170 nations were party to the Convention.
    Women's rights and the equality of men and women are 
addressed in general terms in various international instruments 
such as the Universal Declaration of Human Rights and the 
International Covenants on Civil and Political Rights and on 
Economic, Social and Cultural Rights. A small number of 
treaties deal with certain specific rights and issues affecting 
women. None of these documents, however, are as comprehensive 
as the Convention.
    During the Carter Administration, the United States played 
an active role in the negotiating process leading to the 
Convention and strongly supported the concept of a 
comprehensive and effective international instrument to achieve 
the elimination of discrimination against women. The United 
States signed the Convention on July 17, 1980. President Carter 
submitted the Convention to the Senate on November 12, 1980, 
for its advice and consent to ratification. It has been pending 
before the Senate since then.
    Prior to the 107th Congress, the Committee held hearings on 
the Convention in 1988 and 1990.\1\ It did not proceed to a 
Committee vote on the Convention in 1988 and 1990 because 
neither the Reagan Administration nor the first Bush 
Administration indicated that they supported ratification. The 
Clinton Administration endorsed ratification of the Convention. 
In September 1994, the Committee held another hearing, and that 
same month ordered the Convention reported by a vote of 13-
5.\2\ The full Senate did not act on the Convention during the 
remaining days of the 103rd Congress. Under Senate Rule XXX, 
the Convention was returned to the Committee. No action was 
taken in the Committee during the 104th through 106th 
Congresses.
---------------------------------------------------------------------------
    \1\ S. Hrg. 100-1039 (1988); S. Hrg. 101-1119 (1990).
    \2\ See Exec. Rpt. 103-38 for a review of the Committee's 
consideration of the Convention in 1994. The hearing record is set 
forth in S. Hrg. 103-892 (1994).
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Bush Administration position

    The Bush Administration has indicated that it supports the 
Convention, but that it is currently undertaking a review of 
the Convention to ascertain whether additional reservations, 
understandings, and declarations may be required in addition to 
those proposed by the Committee. The Administration has had 
considerable time to consider its position. The chronology of 
action on the Convention in the past year--which demonstrates 
the time afforded the Administration by the Committee--deserves 
elaboration.
    By letter dated June 29, 2001, Chairman Biden invited the 
Secretary of State to submit the Administration's priorities 
for treaties pending in the Senate during the 107th Congress 
(this letter reiterated an invitation first issued by then-
Chairman Helms in March 2001). In the letter, the Chairman 
indicated that he expected to convene hearings on the 
Convention in the coming year, and that the Department would be 
invited to testify. By letter dated February 7, 2002, the 
Department of State responded. The letter placed CEDAW in 
``category III''--those treaties which the Administration 
``believes are generally desirable and should be approved.'' In 
other words, the Administration indicated its support for U.S. 
ratification of the Convention.
    On that basis, Chairman Biden proceeded with plans for a 
hearing on the treaty. By letter dated March 7, he informed the 
Secretary of State that a hearing would be held after the 
Easter recess, and that a State Department representative would 
be invited to testify. In mid-April, a formal invitation was 
issued to the Under Secretary of State for Global Affairs to 
testify at a hearing scheduled for May 15. As the hearing date 
neared, the State Department indicated that it had not decided 
who would testify. The hearing was postponed, and a new 
invitation was issued to the Under Secretary for a hearing 
scheduled for June 12 (later rescheduled for June 13). At the 
end of May, the Department of State orally requested an 
additional delay, contending that the Justice Department had 
just commenced a review of the treaty. By letter dated June 4, 
2002, the State Department formally requested a delay; the 
letter, however, reiterated the Administration's support for 
ratification of the Convention.
    Subsequent communications have been received from the 
Departments of State and Justice on the Convention, in response 
to letters from Chairman Biden inquiring about the scope and 
timing of the Administration's review of the Convention. 
Although these letters have been generally unresponsive--and 
have failed to reply to several direct questions posed--the 
letters have not renounced the Administration's previous 
expressions of support for ratification of the Convention. The 
letters do indicate that the Administration is conducting a 
review of certain issues raised by the Convention and the CEDAW 
Committee (the advisory panel created by the Convention), and 
have urged that the Committee delay consideration of the 
Convention until this review is completed.
    Because of the limited time remaining in the 107th 
Congress, and because the Administration refused to provide any 
information about when its review would be completed, the 
Chairman decided to proceed with a hearing in mid-June, and the 
Committee vote in July.

                         III. ENTRY INTO FORCE

    Pursuant to Article 27, the Convention entered into force 
on September 3, 1981 after the twentieth nation ratified or 
acceded to it. If the United States ratifies the Convention, it 
will become a party on the thirtieth day after the date of the 
deposit of the instrument of ratification.

                          IV. COMMITTEE ACTION

    On June 13, 2002, the Committee conducted a hearing on the 
Convention; the hearing was chaired by Senator Boxer. Testimony 
was received from five members of the House of Representatives 
(Representatives Jo Ann Davis, Carolyn Maloney, Juanita 
Millender-McDonald, Constance Morella, and Lynn Woolsey), and 
six witnesses from the private sector. The private sector 
witnesses included senior State Department officials from the 
last three presidential administrations who were involved with 
human rights or UN matters.
    On July 30, 2002, the Committee considered the Convention, 
and ordered it favorably reported by a vote of 12-7, with the 
recommendation that the Senate give its advice and consent to 
the ratification of the Convention, subject to 4 reservations, 
5 understandings, and 2 declarations set forth in the 
resolution of advice and consent to ratification. Ayes: 
Senators Biden, Sarbanes, Dodd, Kerry, Feingold, Wellstone, 
Boxer, Torricelli, Nelson, Rockefeller, Smith, and Chafee. 
Nays: Senators Helms, Lugar, Hagel, Frist, Allen, Brownback, 
and Enzi.

                          V. MAJOR PROVISIONS

    The Convention contains the most specific obligations 
adopted to date by the international community in the area of 
gender discrimination. Current U.S. law is largely consistent 
with the provisions of the Convention because the U.S. 
Constitution and federal law provide strong guarantees of equal 
protection as well as effective protections against 
discriminatory conduct.
    Through its broad definition of the term ``discrimination 
against women'' in Article 1, the Convention seeks to promote 
equal rights and freedoms for women, regardless of marital 
status, in all fields including political, economic, 
educational, social, cultural, and civil.
    Article 2 sets forth the fundamental obligation of States 
Parties to pursue a policy of eliminating discrimination 
against women by embodying the principle of equality of men and 
women in their national constitutions or other appropriate 
legislation, adopting legislation and other measures 
prohibiting discrimination against women, establishing legal 
protections for women, ensuring that no public authorities or 
institutions discriminate against women, and taking steps to 
eliminate measures or practices that constitute discrimination 
against women. Article 3 requires States Parties to take ``in 
all fields . . . all appropriate measures'' including 
legislation to ensure the full development and enhancement of 
women. The Convention, in article 4, also permits ``temporary 
special measures'' to accelerate de facto equality between men 
and women.
    Articles 5 through 16 outline specific steps that the 
parties must undertake in a variety of fields. These include 
providing equal rights for women in political and public life, 
equal access to education, non-discrimination in employment and 
pay, guarantees of job security in the event of marriage and 
maternity, and access to adequate health care facilities. The 
Convention underlines the equal responsibilities of men with 
women in the context of family life and stresses the social 
services needed--especially child care facilities--for 
combining family obligations with work responsibilities and 
participation in public life.
    Articles 17 through 22 establish a framework under the 
treaty for reviewing the implementation by States Parties. 
Article 17 establishes the Committee on the Elimination of 
Discrimination Against Women, consisting of 23 experts of high 
moral standing and competence. These experts are selected from 
among nationals of States Parties, but serve in their personal 
capacity. The Committee generally meets once a year to receive 
and review reports from the Parties regarding implementation. 
Although the Committee can make recommendations, it has no 
competence under the Convention to consider complaints or 
petitions from individuals or governments, and no power to 
enforce its recommendations.

                         VI. COMMITTEE COMMENTS

    The Convention is a landmark treaty, designed to advance 
the rights of women around the world. It builds on the 
principles of nondiscrimination found in earlier international 
documents, including the Universal Declaration of Human Rights 
and the International Covenant on Civil and Political Rights. 
Because of its comprehensive nature, the Convention has become 
an important instrument in the struggle for equal rights for 
women around the globe.
    The treatment of women in Afghanistan under Taliban rule 
serves as a reminder that the struggle for women's rights is 
far from complete. Although women in the United States enjoy 
equal opportunity and equal protection of the law, these rights 
are not universally guaranteed elsewhere. The Convention 
provides an important means to advance these rights.
    The Committee believes that U.S. ratification of CEDAW will 
serve several important purposes.
    First, it will reaffirm the commitment of the United States 
before the eyes of the world to the principle of equality 
between men and women and to the promotion and protection of 
women's rights at home and abroad. The United States has long 
been a leader in advancing women's rights. But, as witnesses 
with recent experience in international diplomatic conferences 
testified before the Committee, women from other countries are 
discouraged by the failure of the United States to join the 
Convention. This failure undercuts the effectiveness of our 
message in promoting women's rights.
    Second, ratification will enhance the ability of the United 
States to press for women's rights globally. To be sure, as the 
world's leading nation, the United States already has a 
powerful voice, and can speak out for such rights whether or 
not it is a party to the Convention. But U.S. ratification will 
give our diplomats a tool--a means to press other governments 
to fulfill their obligations under the Convention. If we are a 
party, when U.S. diplomats raise women's rights and are 
confronted with rebuttals from foreign officials that the 
United States is seeking to advance ``Western values'' which 
have no applicability in their land, U.S. diplomats can reply 
with a strong rejoinder: your government adhered to the 
Convention freely, and it is required to keep its international 
commitments.
    Third, ratification will further empower women in foreign 
nations who seek to use CEDAW to press for women's rights in 
their respective countries. With the United States adding its 
voice in promoting adherence to CEDAW obligations, women in 
many countries will be further encouraged to press vigorously 
for fulfillment of CEDAW obligations. This argument was made 
forcefully to the Committee in a letter, dated June 12, 2002, 
to Senator Boxer by the then-Afghan Minister for Women's 
Affairs, Dr. Sima Samar (Dr. Simar is now Chairman of the Human 
Rights Commission in Afghanistan). She stated as follows:

          I understand that the U.S. Senate is now considering 
        whether the United States should join 169 other 
        countries in ratifying [the Convention]. I believe it 
        will be important for me and other Afghan women if you 
        do take this step. We will then be able to tell our 
        countrymen that the United States, where women already 
        have full legal rights, has just seen the need to 
        ratify this treaty. This treaty will then truly be the 
        international measure of the rights that any country 
        should guarantee to its women. We will be able to refer 
        to its terms and guidelines in public debates over what 
        our laws should say. Your advisers to many of our 
        leaders here will be able to cite its provisions in 
        their recommendations. And perhaps we women will 
        achieve full human rights for the first time in a 
        generation.

    During the last decade of the Cold War, the Helsinki Final 
Act--a document in which Soviet Bloc states committed to 
protect human rights--served to embolden advocates throughout 
Eastern and Central Europe, who used the document to press 
their Communist governments for protection of civil liberties. 
So, too, CEDAW can serve as a tool which will allow women and 
women's rights advocates around the world to seek an end to 
discrimination against women.
    Fourth, the advancement of women promotes stability and 
economic growth for societies as a whole. A recent UN-sponsored 
study of the Arab world (a study conducted by Arab scholars) 
concluded that an important reason for economic 
underdevelopment in the region was the lack of empowerment of 
women. Commenting on the lack of equal opportunity in both the 
political and economic spheres, the report noted that 
``[s]ociety as a whole suffers when a huge proportion of its 
productive potential is stifled, resulting in lower family 
incomes and standards of living.'' \3\ Secretary of State 
Powell stated the case well. Speaking on International Women's 
Day earlier this year, he said:
---------------------------------------------------------------------------
    \3\ UN Development Program, Arab Human Development Report 2002, at 
3 (2002).

          Women's issues affect not only women; they have 
        profound implications for all humankind. Women's issues 
        are human rights issues. They are health and education 
        issues. They are development issues. They are 
        ingredients of good government and sound economic 
        practice. They go to the heart of what makes for 
        successful, stable societies and global growth. Women's 
        issues affect the future of families, societies and 
        economies, of countries and of continents. We, as a 
        world community, can not even begin to tackle the array 
        of problems and challenges confronting us without the 
        full and equal participation of women in all aspects of 
        life . . . It is not just popular opinion, but plain 
        fact: countries that treat women with dignity, that 
        afford women a choice in how they live their lives, 
        that give them equal access to essential services, give 
        them an equal opportunity to contribute to public 
        life--these are the countries that are the most stable, 
        valuable and capable of meeting the challenges of the 
        new century.\4\
---------------------------------------------------------------------------
    \4\ Remarks of Secretary Powell at a reception to mark 
International Women's Day (Mar. 7, 2002).

    Most fundamentally, the Convention's promise of providing 
equal rights to women addresses a question of basic fairness 
which women have been asking for centuries: why should rights 
be denied to half the population simply because of their 
gender? The Convention provides a response: women's rights are 
human rights, which should be accorded on a universal basis.

   VII. SUMMARY OF PROVISIONS IN THE RESOLUTION OF ADVICE AND CONSENT

    In transmitting the treaty to the Senate in 1980, the 
Carter Administration indicated that the treaty raised several 
issues with regard to whether U.S. domestic law conformed to 
the terms of the treaty, and noted that the United States had 
the option of changing U.S. law or submitting reservations to 
the treaty. The Administration recommended, among other things, 
a reservation relating to federalism, and a declaration that 
the substantive provisions of the treaty are not self-
executing. The Carter Administration did not, however, make any 
specific recommendations as to appropriate language for 
implementing legislation or reservations. (Exec. R, 96th Cong., 
2d Sess., Nov. 1980, at pp. VIII-IX).
    In the 103rd Congress, the Clinton Administration undertook 
a thorough review of the Convention, and recommended that the 
Senate include nine conditions (four reservations, three 
understandings, and two declarations) in the resolution of 
advice and consent. The resolution approved by the Committee 
includes these provisions in the resolution. The resolution 
includes two other conditions: an understanding first proposed 
by Senator Helms in 1994 related to abortion, and an 
understanding proposed by Senator Biden this year related to 
the CEDAW Committee.
    The provisions of the resolution are summarized below.

                              RESERVATIONS

1. Private Conduct

    The Convention's definition of discrimination in Article 1 
covers activities of private organizations, associations and 
individuals as well as those of federal and state governments. 
When read in conjunction with obligations under other articles 
of the Convention (Articles 2, 3 and 5), the effect of this 
definition is to reach into areas that are not regulated by the 
federal government. For example, Title VII of the Civil Rights 
Act of 1964 does not apply to private employers with fewer than 
15 employees, religious institutions, or tax-exempt private 
clubs. Similarly, Title IX of the Education Act Amendments of 
1972 does not apply to private institutions that receive no 
federal funds. This reservation therefore makes clear that the 
United States does not accept any obligation under the 
Convention to regulate private conduct except as mandated by 
the Constitution and U.S. law.

2. Combat Assignments

    Article 2 obligates States Parties to pursue ``by all 
appropriate means . . . a policy of eliminating discrimination 
against women.'' Although women can serve in all non-combat 
positions in the U.S. armed forces, and attend all the military 
academies without restriction, the Defense Department and the 
military services have policies which preclude women from 
serving in units and positions that have missions which require 
routine engagement in direct combat. This reservation clarifies 
that the United States does not accept an obligation under the 
Convention to put women in all combat positions.

3. Comparable Worth

    Article 11(1)(d) of the Convention provides women with the 
right to ``equal remuneration, including benefits, and to equal 
treatment in respect of work of equal value, as well as 
equality of treatment in the evaluation of the quality of 
work.'' This provision reflects a potentially broad definition 
of the concept of equal pay for women.
    Pay equity is an established principle in U.S. law and 
practice. The Equal Pay Act of 1963 (29 U.S.C. 206(d)(1)) 
mandates equal pay for men and women performing jobs of equal 
skill, effort and responsibility under similar working 
conditions unless the pay differential is justified by one of 
four exceptions. The United States has not, however, adopted 
the concept of comparable worth. Although the Convention does 
not use the term ``comparable worth,'' the proposed reservation 
makes it clear that the United States does not accept an 
obligation under the Convention to adopt the doctrine of 
comparable worth.

4. Paid Maternity Leave

    Article 11(2)(b) requires States Parties to take 
appropriate measures to ``introduce maternity leave with pay or 
with comparable social benefits without loss of former 
employment, seniority or social allowances.'' Although current 
U.S. law and practice provide for maternity and parental leave 
benefits in many employment situations, and the Family and 
Medical Leave Act of 1993 provides certain employees unpaid 
leave in certain circumstances, including the birth or adoption 
of a child, federal law does not require employers to provide 
paid leave or leave with comparable social benefits in 
connection with pregnancy or childbirth. Similarly, although 
the Family and Medical Leave Act provides a qualified employee 
pre-existing benefits for the duration of the leave at the 
level and under the same conditions as provided prior to 
commencement of the leave and provides such employees the right 
to return to his or her job or to an equivalent job, no federal 
law requires employers to hold vacant the position of a woman 
who has taken maternity leave or to reinstate her without loss 
of seniority or allowances. This reservation therefore states 
that the United States does not accept an obligation under 
Article 11 to introduce maternity leave with pay or with 
comparable social benefits without loss of former employment, 
seniority or social allowances.

                             UNDERSTANDINGS

1. Federal-State Implementation

    Articles 2(d) and 24 taken together would require the 
federal government to ensure that state and local governments 
comply with the Convention. Many of the specific areas covered 
by the Convention (such as education) are within the purview of 
state and local governments, rather than the federal 
government. Although U.S. law does not proscribe the federal 
government from committing its constituent units to the goal of 
non-discrimination, U.S. law does provide limitations on the 
federal role in some areas. To reflect this situation, this 
understanding makes clear that the United States will carry out 
its obligations under the Convention in a manner consistent 
with the federal nature of its form of government. This 
understanding is identical to one approved by the Senate in its 
resolution of advice and consent to ratification of the 
Convention on the Elimination of Racial Discrimination.

2. Freedom of Speech, Expression and Association

    The Convention contains provisions requiring regulation of 
private conduct in a manner which is beyond the power of the 
government. For example, Article 5 obligates the parties to 
modify practices which are based on ``the idea of the 
inferiority or the superiority of either of the sexes.'' The 
First Amendment to the Constitution guarantees individuals the 
right to disseminate such ``ideas.'' Article 7 requires parties 
to take measures to ensure that women have the right, on equal 
terms with men, to participate in non-governmental 
organizations and associations concerned with the public and 
political life of the country. Such an obligation could extend 
beyond the scope of the government's authority or implicates 
rights of association protected by the First Amendment. 
Therefore, this understanding clarifies that the United States 
does not accept any obligation under the Convention to restrict 
freedom of speech, expression and association to the extent 
that they are protected by the Constitution and U.S. laws.

3. Free Health Care Services

    Article 12, paragraph 1, obligates States Parties to take 
all appropriate measures to ensure equal access for women to 
health care services ``including those related to family 
planning.'' Article 12, paragraph 2, requires Parties to ensure 
to women ``appropriate services in connection with pregnancy, 
confinement and the post-natal period, granting free services 
where necessary.'' Paragraph 1 mandates equality of access to 
family planning services, but does not require the affirmative 
provision of such services generally or of any specific 
services (such as contraceptive devices). Similarly, paragraph 
2 does not require the provision of any particular services, 
but allows each State Party to decide which services are 
``appropriate'' and whether and when it is ``necessary'' to 
make services freely available. This understanding reflects 
this reading of Article 12.

4. Abortion

    As noted in the discussion of the third understanding, 
Article 12 contains certain obligations with regard to health 
care services and services in connection with pregnancy. In 
1994, the Committee approved an understanding, sponsored by 
Senator Helms, which states that ``nothing in this Convention 
shall be construed to reflect or create any right to abortion 
and in no case should abortion be promoted as a method of 
family planning.'' The Committee again recommends inclusion of 
this understanding, as it reflects the plain meaning of the 
text of the treaty, which does contain the word abortion.

5. CEDAW Committee

    Article 17 of the Convention creates the Committee on the 
Elimination of Discrimination Against Women (hereafter the 
``CEDAW Committee''), made up of 23 experts appointed by 
nations party to the Convention. These experts act in their 
personal capacity to consider reports submitted by parties 
under Article 18 (Article 18 requires parties to submit reports 
periodically on measures they have taken to give effect to the 
Convention). The Committee is required to report annually to 
the UN General Assembly, and, under Article 21, may ``make 
suggestions and general recommendations based on the 
examination of the reports and information received'' from the 
parties. As the State Department concedes, the CEDAW Committee 
has no authority to compel parties to follow its 
recommendations.\5\ The understanding reiterates that point.
---------------------------------------------------------------------------
    \5\ Letter from Secretary Powell to Senator Biden, July 8, 2002 
(``State Parties have always retained the discretion on whether to 
implement any recommendations made by the Committee.'')
---------------------------------------------------------------------------

                              DECLARATIONS

1. Non-Self-Executing

    Existing U.S. law provides extensive protections against 
gender-based discrimination and remedies sufficient to satisfy 
most of the requirements of the Convention. In addition, 
federal, state and local laws provide a comprehensive basis for 
challenging discriminatory statutes, regulations and other 
governmental actions, as well as certain forms of 
discriminatory conduct by private actors, in court. In view of 
this, there is no need to establish additional legal causes of 
action in order to enforce the requirements of the Convention. 
This declaration therefore states that the provisions of the 
Convention are not-self-executing.
    The intent of such a declaration is two-fold: to indicate 
that the Convention will be implemented pursuant to 
Constitutional and statutory law, and to clarify that it will 
not create a new or independently enforceable private right of 
action in United States courts. The Senate has approved a 
similar declaration in giving advice and consent to other human 
rights treaties, such as the Convention Against Torture, the 
Covenant on Civil and Political Rights, and the Convention on 
the Elimination of Racial Discrimination.

2. Dispute Settlement

    Article 29(1) provides that any dispute between States 
Parties concerning the interpretation or application of the 
Convention, which is not settled by negotiation, shall at the 
request of one of them be submitted to arbitration. If the 
parties to the dispute are unable to agree to the organization 
of such arbitration within six months, any such party may refer 
the dispute to the International Court of Justice. Article 
29(2) provides that a State Party may declare at the time of 
ratification that it does not consider itself bound by the 
provisions of Article 29(1). This declaration states that the 
United States does not consider itself bound by Article 29(1) 
and that the specific consent of the United States to the 
jurisdiction of the Court is required on a case-by-case basis.

     VIII. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO RATIFICATION

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE CONVENTION ON THE 
                    ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST 
                    WOMEN, SUBJECT TO RESERVATIONS, UNDERSTANDINGS AND 
                    DECLARATIONS.

    The Senate advises and consents to the ratification of the 
Convention on the Elimination of All Forms of Discrimination 
Against Women, adopted by the United Nations General Assembly 
on December 18, 1979, and signed on behalf of the United States 
of America on July 17, 1980 (Treaty Doc. 96-53), subject to the 
reservations in section 2, the understandings in section 3, and 
the declarations in section 4.

SECTION 2. RESERVATIONS.

    The advice and consent of the Senate is subject to the 
following reservations, which shall be included in the 
instrument of ratification:
          (1) The Constitution and laws of the United States 
        establish extensive protections against discrimination, 
        reaching all forms of governmental activity as well as 
        significant areas of non-governmental activity. 
        However, individual privacy and freedom from 
        governmental interference in private conduct are also 
        recognized as among the fundamental values of our free 
        and democratic society. The United States understands 
        that by its terms the Convention requires broad 
        regulation of private conduct, in particular under 
        Articles 2, 3 and 5. The United States does not accept 
        any obligation under the Convention to enact 
        legislation or to take any other action with respect to 
        private conduct except as mandated by the Constitution 
        and laws of the United States.
          (2) Under current U.S. law and practice, women are 
        permitted to volunteer for military service without 
        restriction, and women in fact serve in all U.S. armed 
        services, including in combat positions. However, the 
        United States does not accept an obligation under the 
        Convention to assign women to all military units and 
        positions which may require engagement in direct 
        combat.
          (3) U.S. law provides strong protections against 
        gender discrimination in the area of remuneration, 
        including the right to equal pay for equal work in jobs 
        that are substantially similar. However, the United 
        States does not accept any obligation under this 
        Convention to enact legislation establishing the 
        doctrine of comparable worth as that term is understood 
        in U.S. practice.
          (4) Current U.S. law contains substantial provisions 
        for maternity leave in many employment situations but 
        does not require paid maternity leave. Therefore, the 
        United States does not accept an obligation under 
        Article 11(2)(b) to introduce maternity leave with pay 
        or with comparable social benefits without loss of 
        former employment, seniority or social allowances.

SECTION 3. UNDERSTANDINGS.

    The advice and consent of the Senate is subject to the 
following understandings, which shall be included in the 
instrument of ratification:
          (1) The United States understands that this 
        Convention shall be implemented by the Federal 
        Government to the extent that it exercises jurisdiction 
        over the matters covered therein, and otherwise by the 
        State and local governments. To the extent that State 
        and local governments exercise jurisdiction over such 
        matters, the Federal Government shall, as necessary, 
        take appropriate measures to ensure the fulfillment of 
        this Convention.
          (2) The Constitution and laws of the United States 
        contain extensive protections of individual freedom of 
        speech, expression, and association. Accordingly, the 
        United States does not accept any obligation under this 
        Convention, in particular under Articles 5, 7, 8 and 
        13, to restrict those rights, through the adoption of 
        legislation or any other measures, to the extent that 
        they are protected by the Constitution and laws of the 
        United States.
          (3) The United States understands that Article 12 
        permits States Parties to determine which health care 
        services are appropriate in connection with family 
        planning, pregnancy, confinement and the post-natal 
        period, as well as when the provision of free services 
        is necessary, and does not mandate the provision of 
        particular services on a cost-free basis.
          (4) Nothing in this Convention shall be construed to 
        reflect or create any right to abortion and in no case 
        should abortion be promoted as a method of family 
        planning.
          (5) The United States understands that the Committee 
        on the Elimination of Discrimination Against Women was 
        established under Article 17 ``for the purpose of 
        considering the progress made in the implementation'' 
        of the Convention. The United States understands that 
        the Committee on the Elimination of Discrimination 
        Against Women, as set forth in Article 21, reports 
        annually to the General Assembly on it activities, and 
        ``may make suggestions and general recommendations 
        based on the examination of reports and information 
        received from the States Parties.'' Accordingly, the 
        United States understands that the Committee on the 
        Elimination of Discrimination Against Women has no 
        authority to compel actions by States Parties.

SECTION 4. DECLARATIONS.

    The advice and consent of the Senate is subject to the 
following declarations:
          (1) The United States declares that, for purposes of 
        its domestic law, the provisions of the Convention are 
        non-self-executing.
          (2) With reference to Article 29(2), the United 
        States declares that it does not consider itself bound 
        by the provisions of Article 29(1). The specific 
        consent of the United States to the jurisdiction of the 
        International Court of Justice concerning disputes over 
        the interpretation or application of this Convention is 
        required on a case-by-case basis.

   IX. MINORITY VIEWS OF SENATORS HELMS, LUGAR, HAGEL, FRIST, ALLEN, 
                          BROWNBACK, AND ENZI

                               BACKGROUND

    In 1994, Senators Helms, Kassebaum, Brown, Coverdell and 
Gregg filed Minority Views expressing their concern about the 
substance of the Convention on the Elimination of All Forms of 
Discrimination Against Women (``the Convention'') when it was 
reported by this Committee (see Exec. Rept. 103-38, p. 53).

    In 2002, the Convention's substance continues to generate 
concern for the minority, as set out below. The minority 
registers an additional concern over the majority's haste in 
ordering the Convention to be reported before receiving 
Executive Branch views.

                               PROCEDURE

    No hearings on the Convention were held between September 
27, 1994 and June 13, 2002. On the latter date, the majority 
held a hearing on the Convention with private witnesses. The 
majority declined the Executive Branch's request to postpone 
hearings on the Convention until an Executive Branch review of 
the Convention has been concluded. The majority also opted 
against inviting U.S. Department of State witnesses eventually 
proffered by the Executive Branch for the June 13, 2002, 
hearing.

    On July 8, 2002, Secretary of State Colin Powell wrote to 
Senator Biden, Committee Chairman, and noted that the 
Convention raises a number of issues that must be addressed 
before the Senate provides its advice and consent. Secretary 
Powell wrote that it is necessary for the Executive Branch to 
determine what reservations, understandings and declarations 
may be required as part of the ratification process. Secretary 
Powell also wrote that ``a careful review is appropriate and 
necessary'' and that the Departments of State and Justice were 
conducting a review ``as expeditiously as possible.''

    On July 15, 2002, Senator Helms wrote to the Chairman to 
request that Committee action on the Convention be deferred 
until the Senator's return to Washington.

    On July 19, 2002, Assistant to the President for National 
Security Affairs Condoleeza Rice wrote to The Honorable Joseph 
Pitts, a member of the U.S. House of Representatives, and set 
forth the importance of Executive Branch review of the 
Convention prior to Senate action.

    On July 26, 2002, Assistant Attorney General for 
Legislative Affairs Daniel J. Bryant wrote to the Chairman, 
referencing Secretary Powell's July 8 letter, to request that 
the Chairman await completion of the Administration's review 
[of the Convention] ``before commencing a committee vote on 
CEDAW.'' In the alternative, Assistant Attorney General Bryant 
urged Committee members to vote against ordering the Convention 
reported until completion of the review.

    The full texts of the Powell and Bryant letters are 
included as attachments to this section.

    On July 30, 2002, the majority took up the Convention at 
the Committee's Business Meeting and ordered it reported by a 
vote of 12-7. The State Department-Justice Department review of 
the Convention had not been completed at the time of the vote, 
and the minority understands that, as of the date of filing of 
this Report, the Executive Branch review had not been 
completed.

    The minority's strong preference was to defer Committee 
action on the Convention until after completion of the 
Executive Branch review and Senator Helms' return. Instead, the 
majority ordered the Convention reported without hearing 
Executive Branch witnesses, and without an updated Executive 
Branch legal analysis reflecting domestic and international 
legal developments since 1994 which could affect the 
Convention's application in the United States.

    The Convention is the most ambitious multilateral 
convention on women ever undertaken by the international 
community. The minority feels that the current Administration's 
legal analysis, together with the Administration's views about 
whether a package of reservations, understandings and 
declarations can be crafted that would permit United States 
adherence to the Convention, would have been--and remain--
critical to a thorough understanding of the Convention's 
potential impact on the American people and their institutions.

    The minority recommends that the Senate defer action on the 
Convention until the Administration's analysis and views are 
available.

                               SUBSTANCE

    As the Carter Administration indicated in 1980 when it 
submitted the Convention to the Senate for advice and consent, 
important issues concerning division of Federal-State powers 
are presented by several of its provisions. The Convention has 
also generated vigorous debate about the implications of U.S. 
compliance with regard to important social issues such as 
abortion on demand (including restrictions on Federal funding), 
comparable worth salary laws, women in the military, same-sex 
marriage, health care, single-sex education and potential 
government intrusion into areas traditionally within the scope 
of family privacy. That debate perforce must continue, given 
that these issues have not, unfortunately, been laid to rest by 
Committee action on the Convention.

    As stated above, in 1994 the minority of Committee members 
voting against reporting the Convention included Senators 
Helms, Kassebaum, Brown, Coverdell and Gregg. The 1994 minority 
felt that the Convention represented yet another set of 
unenforceable international standards that would further 
dilute--not strengthen--international human rights standards 
for women around the world. The 1994 minority also noted that 
many parties to the Convention had abysmal human rights 
records, especially for women. Some were even designated by the 
U.S. Department of State as state sponsors of terrorism.

    The minority in 1994 noted that the United States has the 
strongest record on opportunities and rights for women in the 
world, and that ratification of the Convention, rather than 
improving that record, would raise divisive social issues such 
as those noted above. Moreover, the 1994 minority felt that the 
Convention's definition of ``discrimination against women'' is 
so broad that it would apply to private organizations and areas 
of personal conduct not covered by U.S. law.

    In 2002, the minority feels that the Convention raises a 
number of complex and important issues which should have been 
explored further in one or more hearings with the current 
Administration's witnesses, and--assuming an Administration 
desire to go forward with the Convention following its review--
which should be addressed in an appropriate resolution of 
ratification.

                                   Jesse Helms. Richard G. Lugar. Chuck 
                                       Hagel. Bill Frist. George Allen. 
                                       Sam Brownback. Michael B. Enzi.

    [The letters referred to above follow:]

      
      
                            The Secretary of State,
                                  Washington, July 8, 2002.
Hon. Joseph R. Biden, Jr., Chairman,
Committee on Foreign Relations,
U.S. Senate.

    Dear Mr. Chairman:

    Thank you for your letters of June 17 to Attorney General Ashcroft 
and me regarding the Foreign Relations Committee's June 1 hearing 
concerning the Convention on the Elimination of All Forms of 
Discrimination Against Women (CEDAW). This replies to both letters.

    Addressing the issues confronting women--from suffrage to gender-
based violence--is a priority of this Administration. We are committed 
to ensuring that promotion of the rights of women is fully integrated 
into American foreign policy. Our recent actions in Afghanistan 
underscore this commitment to promote the rights of girls and women who 
suffered under the draconian Taliban rule, including in education, 
employment, healthcare, and other areas. It is for these and other 
reasons that the Administration supports CEDAW's general goal of 
eradicating invidious discrimination against women across the globe.

    The vagueness of the text of CEDAW and the record of the official 
U.N. body that reviews and comments on the implementation of the 
Convention, on the other hand, raise a number of issues that must be 
addressed before the United States Senate provides its advice and 
consent. We believe consideration of these issues is particularly 
necessary to determine what reservations, understandings and 
declarations may be required as part of the ratification process.

    As you are aware, the Committee on the Elimination of 
Discrimination Against Women prepares reports and recommendations to 
State Parties. Portions of some of these reports and recommendations 
have addressed serious problems in useful and positive ways, such as 
women and girls who are victims of terrorism (Algeria) \1\ and 
trafficking in women and girls (Burma). \2\ However, other reports and 
recommendations have raised troubling questions in their substance and 
analysis, such as the Committee's reports on Belarus (addressing 
Mother's Day), \3\ China (legalized prostitution), \4\ and Croatia 
(abortion). \5\
---------------------------------------------------------------------------
    \1\ Concluding Observations on the Committee on the Elimination of 
Discrimination Against Women: Algeria, 27/01/99, paragraphs 77-78.
    \2\ Concluding Observations on the Committee on the Elimination of 
Discrimination Against Women: Myanmar, 28/01/2000, paragraphs 119-120.
    \3\ Concluding Observations on the Committee on the Elimination of 
Discrimination Against Women: Belarus, 31/0-1/2000, paragraph 361.
    \4\ Concluding Observations on the Committee on the Elimination of 
Discrimination Against Women: China, 03/02/99, paragraphs 288-289.
    \5\ Concluding Observations on the Committee on the Elimination of 
Discrimination Against Women: Croatia, 14/05/98, paragraphs 109, 117.

    State Parties have always retained the discretion on whether to 
implement any recommendations made by the Committee. The existence of 
this body of reports, however, has led us to review both the treaty and 
the Committee's comments to understand the basis, practical effect, and 
any possible implications of the reports. We are also examining those 
aspects of the treaty that address areas of law that have traditionally 
been left to the individual States. The complexity of this treaty 
---------------------------------------------------------------------------
raises additional important issues, and we are examining those as well.

    In mid-April, when the Administration learned that the Committee 
had set a hearing date for consideration of CEDAW, the Departments of 
State and Justice began a review of this Convention to assess the need 
for reservations, understandings, and declarations different from or in 
addition to those reported out by the Committee in Exec. Rept. 103-38 
in October, 1994. Given the passage of time since the last Senate 
hearing and the breadth of the issues touched upon by the Convention, 
we believe that a careful review is appropriate and necessary. This 
review is proceeding as expeditiously as possible.

    Although the Administration supports CEDAW's general goals, it 
believes that eighteen other treaties are either in urgent need of 
Senate approval or of a very high priority. In addition to the 
seventeen treaties listed in higher categories on the treaty priority 
list that are still pending, the Moscow Treaty on the reduction of 
strategic arms, which was transmitted to the Senate in June, is among 
our most pressing national security needs and foreign policy interests. 
At the same time as the Administration is carrying out its review of 
CEDAW, we hope we can work with the Committee on these high priority 
treaties. Once our review of CEDAW is complete, we look forward to 
presenting our views to your Committee.

    I would like to take this opportunity to thank you for recently 
guiding the two Protocols to the Rights of the Child Convention through 
the advice and consent process at the U.S. Senate. This is a good 
example of successful cooperation between your Committee and the 
Administration to advance treaties that are high priorities for our 
Nation's foreign policy.
        Sincerely,
                                   Colin L. Powell,
                                        Secretary of State.

                                 ______
                                 

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                  Office of the Assistant Attorney General,
                                         Washington, July 26, 2002.
Hon. Joseph R. Biden, Jr., Chairman,
Committee on Foreign Relations,
U.S. Senate.

    Dear Chairman Biden:

    I write in response to your letters of June 17 and July 11, 2002 
concerning the Convention on the Elimination of All Forms of 
Discrimination Against Women (CEDAW), upon which the Foreign Relations 
Committee is considering voting in the near future. While the 
Department of State typically takes the lead in responding to 
correspondence from the Senate Committee of Foreign Relations, at your 
insistence I am responding directly on behalf of the Department of 
Justice.

    As indicated in Secretary Powell's July 8 letter to you, the 
Administration is currently reviewing CEDAW to determine what 
reservations, understandings, and declarations (RUDs) may be required 
in addition to those reported out by the Committee in Exec. Rept. 103-
38 in October 1994. While this review is not yet complete, the 
Administration is certain that the 1994 RUDs are insufficient to 
address the various concerns raised by CEDAW. For example, the 1994 
RUDs do not address the controversial interpretations advanced by the 
official U.N. implementation committee after those RUDs were issued. 
Among other things, that committee questioned the celebration of 
Mother's Day in a January 2000 report to Belarus:

        The Committee is concerned by the continuing prevalence of sex-
        role stereotypes and by the reintroduction of such symbols as a 
        Mother's Day and a Mother's Award, which it sees as encouraging 
        women's traditional roles. \1\

    \1\ Concluding Observations of the Committee on the Elimination of 
Discrimination Against Women: Belarus, 31/01/2000, paragraph 361.

And in a March 1999 report to China, it called for legalized 
---------------------------------------------------------------------------
prostitution:

        The Committee is concerned that prostitution, which is often a 
        result of poverty and economic deprivation, is illegal in 
        China. . . . The Committee recommends decriminalization of 
        prostitution. \2\

    \2\ Concluding Observations of the Committee on the Elimination of 
Discrimination Against Women: China, 03/02/99, paragraphs 288-289.

    These are but two examples of the instances in which this committee 
has exploited CEDAW'S vague text to advance positions contrary to 
---------------------------------------------------------------------------
American law and sensibilities.

    Nor does your recent draft resolution of ratification address these 
concerns. It does not, for example, address whether other interpretive 
bodies, whether foreign, international, or, indeed, domestic, could 
adopt similarly bizarre interpretations of CEDAW's vague text, or what 
deference, if any, these bodies would accord the official U.N. 
implementation committee. (As we have recently witnessed in the Pledge 
of Allegiance case, there are, regrettably, judges who will engage in 
aggressively counterintuitive interpretations of legal texts.) The 
implementation committee, moreover, has now begun ``[t]he process of 
interpreting the substantive articles of the Convention'' and to 
``formally . . . interpret the rights guaranteed in the Convention.'' 
\3\ Your draft resolution, however, does not address the effect of 
these formal interpretations on domestic and international law. These 
concerns remain, regardless of whether, in the words of your draft 
resolution, the implementation committee has the ``authority to compel 
actions by State parties.''
---------------------------------------------------------------------------
    \3\ Fact Sheet No. 22, Discrimination Against Women: The Convention 
And The Committee, available at [www.unhcr.ch/html/menu6/2/fs22.htm].

    It is crucial, therefore, that we fully understand the implications 
of these rulings on parties that join CEDAW after they have been 
issued, as well as the consequences of any rulings that might issue 
after a state becomes party to the treaty. In addition, we must fully 
understand the numerous other issues raised by CEDAW, such as its 
implications on current U.S. constitutional and statutory law and areas 
of law traditionally regulated by the States. The complexity of this 
treaty raises many other important issues that are not addressed in 
---------------------------------------------------------------------------
your draft resolution, which we are examining as well.

    This is not the first Administration, nor the first Senate, to 
recognize the magnitude of the issues raised by CEDAW. As you know, 
this treaty has been before the United States Senate for twenty-two 
years. During this time period, it has been before a Democratic Senate 
with a Democratic President (President Carter), a Republican Senate 
with a Republican President (President Reagan), a Democratic Senate 
with a Republican President (President Reagan), a Democratic Senate 
with another Republican President (President George H.W. Bush), a 
Democratic Senate with a Democratic President (President Clinton), and 
a Republican Senate with a Democratic President (President Clinton). In 
other words, regardless of which party controlled either the Senate or 
the Presidency, the Senate has declined to act on this treaty for 
twenty-two years. In this context, it would be imprudent to act with 
undue haste before we have had an opportunity to conduct a full and 
fair review of this treaty, particularly in light of the recent actions 
taken by the U.N. implementation committee (and the future actions that 
it has announced its intention to take).

    As Secretary Powell explained in his July 8 letter to you, the 
Administration is in the process of conducting a review of CEDAW in 
order to determine the scope of the additional RUDs that may be 
required to address these issues, and will share our views with you 
once our review is complete. The Administration is conducting this 
review thoroughly and expeditiously. Any vote at this time, however, 
would be premature, particularly in light of the more than thirty other 
treaties currently before the committee that are higher priorities for 
our national security and foreign policy. Accordingly, we respectfully 
request that you await completion of the Administration's review before 
commencing a committee vote on CEDAW. Should you decline to do so, we 
respectfully urge members of the committee to vote against sending 
CEDAW to the full Senate until our review is complete.

    Thank you for your attention to this matter.
        Sincerely,
                                  Daniel J. Bryant,
                                Assistant Attorney General.

cc: The Honorable Jesse Helms, Ranking Minority Member,
   The Honorable Richard Lugar.

       X. ADDITIONAL VIEWS OF SENATORS HELMS, BROWNBACK, AND ENZI

    This Foreign Relations Committee Report should not be 
relied on by any U.S. federal, state, or local authority, 
including courts, as Senate legislative history for the United 
Nations Convention on the Elimination of All Forms of 
Discrimination Against Women.

    This Report is not reliable for the following reasons.

    First, it does not reflect the views of the present 
Administration. The majority declined to honor requests from 
the Departments of State and Justice, and from Senator Helms, 
to defer action on the Convention until the Administration's 
views could be presented to the Committee.

    Second, the draft resolution of ratification included in 
this Report is not supported by the Executive Branch. At the 
time of the Committee's action on this Report, the Executive 
Branch had informed the Committee that an indispensable review 
was underway of alternative measures necessary in any CEDAW 
resolution of ratification. Yet the majority declined to defer 
action on CEDAW until that review had been completed and the 
results made available to the Committee. As a result, the 
Committee has recommended ratification of a treaty without 
knowledge or identification of the protective measures 
necessary to avoid a potentially massive disruption of well-
settled U.S. domestic law. Such an act is an unfortunate 
failure to fulfill Committee responsibilities to the Senate and 
the nation.

    Third, this Report was approved without benefit of the 
testimony of a single Bush Administration witness. The majority 
declined to accept the Executive Branch witnesses offered for 
the June 13, 2002, hearing, and further declined to defer 
action on CEDAW to provide an opportunity for a Bush 
Administration witness to appear after that date. The Committee 
thus declined to consider the most relevant and expert 
testimony available on the subject.

    Fourth, neither the draft resolution of ratification 
included in this Report nor the explanation of CEDAW's 
provisions reflects the state of relevant U.S. law on the date 
of the Committee's vote to report CEDAW. Eight years of U.S. 
federal and state jurisprudence were not taken into account in 
preparation of the draft resolution of ratification. 
Precipitous action by the Senate, as recommended by the 
majority, will lead to unnecessary litigation in the United 
States of unknown proportions because the majority has no 
knowledge of the present vulnerability of U.S. domestic law to 
unintentional displacement. Even worse, the majority refused to 
wait for the Administration's legal review to be completed and 
presented, thus turning its back on the only mechanism 
available to predict the severity of CEDAW's disruptive impact 
and the protective measures necessary to avoid it.

    When CEDAW was reported by the Committee in 1994, Senators 
Helms, Kassebaum, Brown, Coverdell, and Gregg filed Minority 
Views.

    While recognizing the unfortunate prevalence of violence 
and human rights abuse against women around the world, and a 
shared desire to eliminate discrimination against women, the 
indicated Senators expressed concerns that CEDAW and treaties 
like it lead to dilution of moral suasion undergirding existing 
covenants on fundamental human rights, which, to be effective, 
are necessarily restricted in scope. The Senators also 
registered concern over CEDAW as an example of a disturbing 
trend among executive branch officials and non-governmental 
organizations to devote resources, energy, and political will 
to the ratification of multilateral treaties rather than to 
promotion of the norms represented by those treaties in the 
countries where they are under attack.

    In 2002, it is apparent that nothing has occurred since 
1994 to justify changing the views described above. On the 
contrary much has occurred since 1994 to underscore the wisdom 
of those views.

    Today, as in 1994, many Senators in the minority and 
several in the majority agree that nowhere are women better 
protected from discrimination than in the United States. CEDAW 
proponents often argue that U.S. ratification of CEDAW is 
essential to ensuring its protections outside our borders. This 
is a non sequitur, and an argument not borne out by experience 
with other multilateral agreements. Moreover, it conflicts with 
the constitutional standard for Senate action, namely, whether 
the contemplated action is good for the American people.

    Insofar as the level of our country's commitment to the 
protection of human rights abroad is concerned, we feel it is 
enough to note that as these lines were being drafted American 
forces were deployed in combat conditions in Afghanistan. It is 
through their personal heroism and sacrifice, not a 
multilateral treaty, that Afghan women have been relieved of 
the burden of an oppressive, anti-woman government whose 
equally lawless predecessor signed CEDAW in 1980.

    CEDAW proponents who lump the United States with oppressive 
dictatorships which have not ratified this treaty rob 
themselves of credibility by ignoring the fact that in 
ratifying CEDAW our country would find itself in the company of 
regimes like North Korea. They and their ilk have embraced 
CEDAW as a fig leaf for many years.

    CEDAW plainly represents a disturbing international trend 
exalting international law over constitutionally-based domestic 
law and local self-government. This trend gathered momentum 
during the Clinton Administration. It is illustrated by the 
Kyoto Protocol to the United Nations Framework Convention on 
Climate Change, the United Nations Convention on the Rights of 
the Child, and the Rome Statute Establishing a Permanent 
International Criminal Court. All of these instruments were 
opened for signature after the

Senate acted on CEDAW in 1994. The trend is in conflict with 
U.S. constitutional traditions of self-government. To undermine 
these traditions is to undermine the foundation of American 
federalism, which cost many years to establish and thousands of 
lives in a fratricidal civil war.

    Ratification of CEDAW will help lawyers and other pro-
abortion advocates reach the goal of enshrining unrestricted 
access to abortion in the United States. Recently a lawsuit 
entitled Center for Reproductive Law and Policy (CRLP) vs. Bush 
was filed in the United States District Court for the Southern 
District of New York (2001 U.S. Dist. LEXIS 10903). (N.B. In 
2002, CRLP opposed the efforts of a Pennsylvania man to prevent 
abortion of the unborn child he fathered with a Pennsylvania 
woman.)

    Although the New York case was dismissed, it illustrates 
pro-abortion strategy. Plaintiff CRLP stated in its complaint 
that ``[i]n order to prepare for the eventuality that [Roe v. 
Wade] may be overruled by the United States Supreme Court and 
that, consequently, the United States Constitution no longer 
protects women's right to choose abortion, CRLP has worked and 
will continue to work to guarantee that the right to abortion 
be protected as an internationally recognized human right . . . 
[under] customary international law . . . Customary 
international law also preempts inconsistent state statutes and 
policies (emphasis added). Thus, by working to establish the 
right of abortion as a human right in customary international 
law, CRLP fulfills its mission of protecting women's access to 
abortion [in the United States] from interference or 
prohibition by the States.'' (Complaint, paragraphs 76, 78).

    Julia Ernst, a plaintiff in this case, has written about 
CEDAW: ``Commentators are calling upon the United States 
judiciary to utilize international law as a guide to 
interpreting the U.S. Constitution (emphasis added), and 
domestic courts are increasingly taking international human 
rights law into account in their decisions. The United States 
should not deprive itself of the opportunity to participate in 
the formulation of these international legal principles. One of 
these opportunities entails participation in [CEDAW].'' 
(emphasis added) (3 Mich. J. Gender & L.299, 317).

    The CRLP case and views of one of its plaintiffs leave no 
doubt that despite assurances from CEDAW backers that the 
treaty is ``neutral'' on abortion, CEDAW proponents are not. 
Abortion activists will work to use CEDAW to neutralize the 
democratic will of federal and state legislators. The treaty 
will also be used to erode other traditional prerogatives of 
the states by intruding in issues like marriage and child-
rearing.

    Ratification of CEDAW will invite meddling in all of these 
areas by the CEDAW-established compliance ``Committee.'' The 
Committee, which is composed in part of gender activists sent 
by dictatorships which oppress women, has issued bizarre 
recommendations against Mothers Day in Belarus and in favor of 
legalization of prostitution in China. Using such 
recommendations, CEDAW

backers will press federal and state judges to adopt completely 
unforeseen and unintended interpretations of the treaty in 
order to force changes in well-settled U.S. law and policy.

    Finally, the minority opposes assumption by the United 
States of yet another financial burden on behalf of a growing 
United Nations bureaucracy.

    The Senate should decline to proceed to consideration of 
CEDAW.

                                   Jesse Helms. Sam Brownback. Michael 
                                       B. Enzi.

                 XI. ADDITIONAL VIEWS OF SENATOR FRIST

    I agree with my colleagues that there is no nation more 
committed to upholding the human dignity of women than the 
United States. And like my colleagues and the Administration, I 
am committed to furthering the rights of women both at home and 
abroad. But I cannot support ratification of this Treaty as 
reported by this Committee.

    Many issues with respect to this Treaty remain unaddressed. 
Our Constitutional prerogative of Advice and Consent under 
Article II, section 2, is not only a right but a responsibility 
and I regret that we could not hear from the Administration on 
its concerns and recommendations before proceeding to its 
consideration in Committee.

    Like my colleagues, I am troubled by the vagueness of the 
text of this Treaty. Nor is there anything clear or predictive 
about the evolving opinions of the Committee on the Elimination 
Against Discrimination Against Women (the Convention 
Committee), the official UN body charged with this Convention's 
interpretation. I do not believe that it makes sense to dismiss 
lightly the weight of authority given to these interpretations.

    As Senator Helms, my colleagues, and numerous legal 
scholars have pointed out, policy norms, interpreted by such 
official bodies, have increasingly entered the U.S. judicial 
system as customary international law. Some proponents of 
vaguely worded treaties have advanced the concept that modern 
interpretation of international law requires the incorporation 
of such interpretations into the U.S. legal system. Such a 
development would created an unwarranted loophole through which 
purported customary international law--such as pronouncements 
by official UN committees--would be held binding under U.S. 
domestic law with little or no scrutiny by our nation's 
lawmakers.

    CEDAW supporters have claimed that the treaty, as 
interpreted by the CEDAW Committee, represents customary 
international law. While such a claim would be widely 
presumptive and premature, it cannot be ignored. As a general 
rule, customary international law is treated as having the same 
supremacy as federal statutes over conflicting state and 
municipal law in the U.S. legal system. Under the Supremacy 
Clause and the doctrine of preemption, if a conflict arises 
between state law or previously enacted federal statute and a 
treaty provision, the treaty, the treaty will prevail.

    I find troubling the notion that UN committees, 
unaccountable to the U.S. political system could be empowered 
to proscribe enforceable rules of law under the guise of 
customary international law that claim sovereignty over the 
laws of our elected officials. Such a proposition is 
antithetical to the U.S. Constitution and America's most 
cherished ideas of due process, separation of powers in 
government, and the guarantee that legislators will be held 
accountable through the elective process.

    Furthermore, the text of the Convention itself purports to 
limit the Senate's constitutional right of Advice and Consent. 
Article 28, section 2 of the Convention states that ``a 
reservation incompatible with the object and purpose of the 
present Convention shall not be permitted.'' (Emphasis added) 
The scope and parameters of this Article are not, to me, self-
evident. I can only presume the interpretation of this Article 
would be subject to the Convention Committee. In my opinion, 
this Article conflicts with the constitutional role of the 
Senate to provide Advice and Consent, which includes making 
reservations which this Body may deem necessary to make the 
Convention consistent with the laws of this nation. Indeed, for 
that matter, that power must encompass any reservation that 
falls within our constitutional authority to mandate.

    I am not persuaded by the argument that we must ratify this 
Treaty because other nations have or have not ratified it. We 
must base our consent to this Treaty upon its merits or 
deficiencies. I would point out, however, that much of the 
world still lives in societies that do not honor basic 
democratic civil liberties. Many of the nations that have 
ratified this Convention continue to build records that 
catalogue some of the worst human rights violations ever 
committed against women.

    It is my hope that the Senate will not proceed with 
consideration of this Treaty unless and until we have the 
benefit of the Administration's views and recommendations on 
how best to address these issues of fundamental importance.

                                                        Bill Frist.

                 XII. ADDITIONAL VIEWS OF SENATOR ALLEN

    I am fully committed to ensuring that promotion of the 
rights of women is fully integrated into U.S. foreign and 
domestic policy and I support the general goal of eradicating 
discrimination against women in the U.S. and across the globe. 
However, I did not vote to send this treaty to the floor for 
full Senate consideration.

    First, the President's senior cabinet members--the 
Secretary of State and the Attorney General--have requested 
more time to consider the Convention and to propose an 
appropriate ratification package containing reservations, 
understandings, and declarations. The Senate should honor that 
request.

    The Constitutional role of the Senate in these matters is 
that of advice and consent, not initiation. The President has 
deferred his request for advice and consent until the Justice 
Department review is completed. The Senate should await that 
review before considering this Convention.

    There need be no rush to ratification. There is no 
emergency. This Convention has been on the Committee calendar 
for 22 years.

    Second, the vagueness of the text of the Convention, and 
the record of the official UN body that reviews and comments on 
the implementation of the Convention, raise a number of issues 
that must be addressed before the United States Senate provides 
its advice and consent.

    I believe consideration of these issues is particularly 
necessary to determine what reservations, understandings and 
declarations may be required as part of the ratification 
process.

    The Committee on the Elimination of Discrimination Against 
Women prepares reports and recommendations to State Parties. 
The existence of this body of reports should lead us to review 
both the Convention and the Committee's comments to understand 
the basis, practical effect, and any possible implications of 
the reports.

    We should also examine those aspects of the Convention that 
address areas of law that, in the United States, have 
traditionally been left to the individual States.

    For example, in a March 1999 report to China, the Committee 
called for legalized prostitution, saying: ``The Committee is 
concerned that prostitution, which is often a result of poverty 
and economic deprivation, is illegal in China . . . . The 
Committee recommends decriminalization of prostitution.''

    If the Senate ratifies this Convention, the United States 
would subject itself to criticism and condemnation by this 
Committee, which is composed of representatives of countries 
that are signatories of the Convention.

    To provide a preview of what the United States may expect, 
I give you a brief list of member states and signatories of the 
Convention that, potentially, will sit in judgment on United 
States' practices and conditions concerning women:

   Afghanistan signed the Convention in 1980. Until the 
        United States and allied forces recently liberated 
        Afghanistan, its women were oppressed by a series of 
        governments, denying them basic freedoms and education 
        opportunities.

   The Peoples' Republic of China signed the Convention 
        in 1980. It has an official policy of forced abortion 
        and sterilizations for the women of the country who 
        dare have more than one child.

   Cuba signed the Convention in 1980. In 1994 Castro 
        murdered 41 women, girls and others who attempted to 
        escape the tyrannical and repressive Castro regime 
        aboard the tugboat 13 de Marzo.

   Saudi Arabia signed the Convention in 2000. Yet it 
        treats its women as second-class citizens.

    These are not examples of enlightened thought. Indeed, our 
nation with its Constitutional foundation of freedom and 
opportunity for all her citizens--regardless of race, 
ethnicity, religion or gender--is the beacon of hope for the 
entire world. Our goal must be to lift the human rights of 
women, and indeed all our people to this standard, not lower 
the bar to that of repressive regimes.

    It is important that we fully understand the implications 
of the Committee, rulings on parties that join the Convention 
after they have been issued, as well as the consequences of any 
ruling that might result after a nation becomes party to the 
Convention.

    In addition, we must fully understand the numerous other 
issues raised by the Convention, such as its implication on 
current U.S. constitutional and statutory law and areas of law 
traditionally the prerogatives of the people in the States.

    As indicated in a July 8, 2002 letter from Secretary 
Powell, a July 26, 2002 letter from the Assistant Attorney 
General, and a July 19, 2002 letter from Condoleezza Rice, the 
Assistant to the President for National Security Affairs, the 
Administration is conducting a thorough and expeditious review 
of this Convention. The vote to order CEDAW reported was 
premature, particularly in light of the more than thirty other 
treaties currently before the Foreign Relations Committee that 
are higher priorities for our national security and foreign 
policy.

                                                      George Allen.
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