The U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Issues in the U.S. Ratification Debate
Released: 2015-07-23T00:00:00

Introduction

U.S. policymakers and members of the public have contentiously debated U.S. ratification of the United Nations (U.N.) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, or the Convention) since it was drafted in 1979. CEDAW is the only international human rights treaty that specifically focuses on the rights of women. As of July 22, 2015, 189 countries have ratified or acceded to the Convention. The United States is the only nation to have signed but not ratified CEDAW. President Jimmy Carter signed the Convention and submitted it to the Senate in 1980. The Senate Foreign Relations Committee (SFRC) held hearings on CEDAW in 1988, 1990, 1994, and 2002, and reported it favorably in 1994 and 2002. To date, the treaty has not been considered for advice and consent to ratification by the full Senate. Other countries that are not parties to CEDAW include Iran, Palau, Somalia, Sudan, and Tonga.

The Senate may consider providing advice and consent to U.S. ratification of CEDAW during the 114 th Congress. The Barack Obama Administration has expressed support for the Convention, calling it "an important priority." In a May 2009 letter to the SFRC, the Obama Administration identified CEDAW as a human rights treaty on which it "supports Senate action at this time." Most recently, Secretary of State John Kerry stated that he supported U.S. ratification of the Convention.

U.S. policymakers generally agree with CEDAW's overall objective of eliminating discrimination against women around the world. Many, however, question whether the Convention is an appropriate or effective mechanism for achieving this goal. Opponents are concerned that U.S. ratification would undermine national sovereignty and require the federal government or, worse, the United Nations to interfere in the private conduct of citizens. They argue that the Convention is ineffective, and emphasize that countries with reportedly poor women's rights records—including China and Saudi Arabia—have ratified CEDAW. Supporters, however, contend that the Convention is a valuable mechanism for fighting women's discrimination worldwide. They argue that U.S. ratification will give CEDAW additional legitimacy and empower women who aim to eliminate discrimination in their own countries.

This report addresses CEDAW's background, objectives, and structure and provides an overview of U.S. policy toward the Convention. It examines issues that have been raised in the U.S. ratification debate, including the treaty's impact on U.S. sovereignty, the effectiveness of the Convention, and its possible use as an instrument of U.S. foreign policy. It also describes controversial provisions and CEDAW Committee recommendations addressing the role of women in society and women's equal access to education and healthcare.

Background and Structure

U.N. member states adopted several treaties addressing aspects of women's rights prior to adoption of CEDAW in 1979, including the Convention on the Political Rights of Women (1952) and the Convention on the Consent to Marriage (1957). In 1967, after two years of negotiations, the U.N. General Assembly adopted the Declaration on the Elimination of Discrimination Against Women, a nonbinding document that laid the groundwork for CEDAW. Subsequently, the U.N. Commission on the Status of Women drafted CEDAW, which the General Assembly adopted on December 18, 1979. The Convention entered into force on September 3, 1981, after receiving the required 20 ratifications.

Objectives

CEDAW calls on States Parties to take all appropriate measures to eliminate discrimination against women in all areas of life. This includes equality in legal status, political participation, employment, education, healthcare, and the family structure. Article 2 of the Convention specifies that States Parties should undertake to "embody the principle of equality of men and women in their national constitutions or other appropriate legislation ... to ensure, through law and other appropriate means, the practical realization of this principle." The Convention defines discrimination against women as

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

It specifically calls for equal pay with men, more attention to the equality of rural women, the freedom to choose a marriage partner, and the suppression of trafficking in women and girls.

The Committee on the Elimination of Discrimination Against Women

The Committee on the Elimination of Discrimination Against Women (the Committee) was established in 1982, under Article 17 of CEDAW, as a mechanism to monitor the progress of the Convention's implementation. It is composed of 23 independent experts who are elected at a meeting of States Parties to the Convention by secret ballot, with consideration given to the principle of equitable geographic distribution. Each State Party may nominate one expert, and if elected, the expert serves a four-year term. The majority of the Committee members are women who, according to the Convention, should have "high moral standing and competence" and "represent different forms of civilization as well as principal legal systems." The Committee is led by a Chairperson, three Vice Chairpersons, and a rapporteur, which are elected by Committee members. The Chairperson directs the discussion and decision-making process of the Committee and represents the Convention at international conferences and events. The Committee reports annually on its activities to the U.N. General Assembly through the U.N. Economic and Social Council and meets twice a year at the U.N. Office in Geneva. As one of seven U.N. human rights treaty bodies, the Committee is financed from the U.N. regular budget. It was previously supported by the U.N. Division for the Advancement of Women, but since January 2008 it has been serviced by the U.N. Office of the High Commissioner for Human Rights.

The Committee is responsible for reviewing the reports on national CEDAW implementation submitted by States Parties. Countries are required to submit an initial report within the first year of ratification or accession, followed by a report every four years. The reports identify areas of progress as well as concerns or difficulties with implementation. The Committee engages in an open dialogue and exchange of ideas with the reporting country and compiles recommendations and conclusions based on its findings, which include general recommendations on cross-cutting issues of concern. The general recommendations are nonbinding, and there is no mechanism for their enforcement. The Committee has made over 30 general recommendations since 1986 covering a wide range of issues affecting women, such as improvement in education and public information programs, elimination of female circumcision, equality in marriage and family relations, and preventing violence against women.

Optional Protocol

On October 6, 1999, the U.N. General Assembly adopted an Optional Protocol to strengthen the Convention. The Protocol entered into force in December 2000, and has been ratified by 106 countries. It is a stand-alone treaty that can be signed or ratified by countries that are not party to the main treaty. It includes a "communications procedure" that permits groups or individuals to file complaints with the CEDAW Committee. It also incorporates an "inquiry procedure" that allows the Committee to explore potential abuses of women's rights in States Parties to CEDAW.

U.S. Actions

Successive U.S. Administrations and Members of Congress have supported the Convention's overall objective of eliminating discrimination against women. They have disagreed, however, as to whether the Convention is an effective or appropriate means of achieving this goal.

Obama Administration Position

The Obama Administration has expressed support for the Convention. On January 15, 2009, Susan Rice, U.S. Permanent Representative to the United Nations, stated at her Senate confirmation hearing that CEDAW "will be an important priority" for the Administration. In May of the same year, the Obama Administration identified CEDAW as a human rights treaty on which it "supports Senate action at this time," prompting some to speculate that the Administration may transmit the treaty to the Senate Foreign Relations Committee (SFRC) for its advice and consent. In March 2010, Secretary of State Hillary Clinton announced that the Administration "will continue to work for the ratification of CEDAW."

At a November 2010 Subcommittee on Human Rights and the Law hearing, then- Ambassador-at-Large for Global Women's Issues Melanne Verveer supported U.S. ratification of CEDAW, noting that it is critical to U.S. efforts to "promote and defend the rights of women" worldwide. At the same hearing, a representative from the Department of Justice Civil Rights Division expressed support for CEDAW ratification to "express more forcefully our [the United States'] commitment to the rights of women in the United States and to further opportunities for girls and women around the world." Secretary of State John Kerry also expressed his support for U.S. ratification of CEDAW at his January 2013 nomination hearing before SFRC. Most recently, in a February 2015 report to the U.N. Human Rights Council, the Administration reaffirmed its support for the Convention, stating that "the principles endorsed in CEDAW are consistent with our domestic and foreign policy objectives and are strongly supported in federal and state law."

Previous Administration Positions

President Carter signed the Convention on July 17, 1980, and submitted it to the Senate for advice and consent on November 12 of the same year. The Reagan and first Bush Administrations did not support ratification, and the Convention remained pending in the SFRC.

Clinton Administration

The Clinton Administration supported CEDAW ratification and in 1994 sent a treaty package to the Senate for advice and consent to ratification. The package included nine proposed reservations, understandings, and declarations (RUDs) to the Convention. (RUDs often accompany U.S. ratification of a treaty. See text box.) The SFRC reported the Convention favorably, but it never came to vote in the full Senate because of opposition from several Senators. The reservations recommended by the Clinton Administration addressed the following issues:

"private conduct," which made 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"; "combat assignments," which stated that the United States "does not accept an obligation under the Convention to put women in all combat positions"; "comparable worth," which made clear that the United States would not accept the doctrine of comparable worth based on the Convention's broad description; and "paid maternity leave," which stated that the United States could not guarantee paid maternity leave as the Convention stipulates because it is not a requirement under federal or state law.

The three understandings submitted by the Clinton Administration stated that (1) the United States will fulfill its obligations under the Convention in a "manner consistent with its federal role," recognizing that issues such as education are the responsibility of state and local governments; (2) the United States will not accept Convention obligations that restrict freedom of speech or expression; and (3) the United States and other States Parties may decide the nature of the health and family planning services referred to in the Convention, and may determine whether they are "necessary" and "appropriate." The Clinton Administration's proposed declarations included a "non-self-executing" provision, which stated that no new laws would be created as a result of CEDAW, and a "dispute settlement" provision, which stated that the United States was not bound by Convention Article 29(1) that refers unresolved disputes to the International Court of Justice.

George W. Bush Administration

The Bush Administration stated that it supported the Convention's goal of eradicating discrimination against women on a global scale but had several concerns with the Convention. These concerns were outlined in 2002, when the SFRC held hearings on potential CEDAW ratification. Then-Secretary of State Colin Powell wrote a letter to the SFRC stating that the Convention was under the State and Justice Departments' review because of concerns regarding "the vagueness of the text of CEDAW and the record of the official U.N. body [the CEDAW Committee] that reviews and comments on the implementation." In particular, the Administration cited "controversial interpretations" of the CEDAW Committee's recommendations to States Parties. Powell's letter specifically noted a Committee report on Belarus that "questioned the celebration of Mother's Day," and a report on China that "called for legalized prostitution." These positions, Powell argued, were "contrary to American law and sensibilities."

The Bush Administration further maintained that the vagueness of the CEDAW text opened the door for broad interpretation by international and domestic entities and that the 1994 RUDs proposed by the Clinton Administration did not address these interpretation issues. It also emphasized the importance of ensuring the Convention would not conflict with U.S. constitutional and statutory laws in areas typically controlled by the states. In light of these concerns, the Administration urged the SFRC not to vote on the Convention until a full legal review was complete. The review began in mid-April 2002. On February 7, 2007, the Administration transmitted a letter to the Senate stating that it did not support the Senate taking action on the Convention at that time.

Senate Actions

CEDAW has been pending in the SFRC for over 30 years. The committee held hearings in 1988 and 1990 but did not vote to recommend the Convention for advice and consent of the full Senate. With support from the Clinton Administration, the SFRC held another round of ratification hearings in June 1994. The committee reported the Convention favorably with a vote of 13 to 5 in September 1994, but the 103 rd Congress adjourned before it could be brought to vote in the full Senate. The Republican Party was elected as the majority in the 104 th Congress, and the incoming chairman of the Foreign Relations Committee, Senator Jesse Helms, did not allow further consideration of CEDAW because of his concerns regarding its possible impact on U.S. sovereignty and U.S. laws, including those related to abortion and family planning.

In June 2002, the debate over U.S. ratification of CEDAW gained momentum as the SFRC again held hearings on ratification of the Convention. On July 30, 2002, the committee reported the Convention favorably by a vote of 12 to 7, subject to four reservations, five understandings, and two declarations. These included the nine RUDs recommended by the Clinton Administration in 1994, plus two additional understandings. The first additional understanding included a proposal from Senator Jesse Helms, who was then the ranking minority Member, which stated 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 second additional understanding addressed the impact of the CEDAW Committee on U.S. law, stating, "the CEDAW Committee has no authority to compel parties to follow its recommendations." The 107 th Congress adjourned before the Senate could vote on the Convention. (See Appendix B for a timeline of SFRC consideration of CEDAW.)

On November 18, 2010, the Senate Judiciary Committee's Subcommittee on Human Rights and the Law held a public hearing, "Women's Rights Are Human Rights: U.S. Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)," representing the first Senate hearing on CEDAW in eight years.

Though it has no direct role in providing advice and consent to ratification of treaties, the House of Representatives has demonstrated a continued interest in CEDAW. In March 2015, Representative Carolyn Maloney introduced H.Res. 145 expressing the sense of the House of Representatives that the Senate should ratify the Convention. Similar House resolutions were introduced in the 106 th through 113 th Congresses.

Issues and Policy Options for the Senate

Some policy decisions and issues may continue to play a role in the debate if the Senate considers providing its advice and consent to ratification during the 114 th Congress.

Possible Impact on U.S. Sovereignty

For many policymakers, the question of U.S. ratification of CEDAW touches on the broader issue of national sovereignty. The minority views in the 2002 SFRC report on the Convention, for instance, state that CEDAW represents "a disturbing international trend" of favoring international law over U.S. constitutional law and self-government, thereby undermining U.S. sovereignty. Opponents are particularly concerned that if the United States ratifies the Convention, the CEDAW Committee would have authority over the actions of the U.S. government and private citizens regarding discrimination against women. Many critics, for example, have taken issue with the Committee's recommendations regarding abortion, Mother's Day, and prostitution.

CEDAW advocates maintain that U.S. ratification would not affect national sovereignty. During Senate debate in 2002, for instance, proponents argued that the Convention would impose a "minimal burden" on the United States given that the Constitution and other existing federal and state laws already meet the obligations of the Convention. Supporters also emphasize that the United States would likely file several reservations, understandings, and declarations (RUDs) to the Convention, including a non-self-executing declaration that would require Congress to enact implementing legislation to bring CEDAW's provisions into use—thereby addressing any potential conflicts with existing U.S. laws. Advocates further contend that the actions of the CEDAW Committee would not affect domestic laws or the private lives of U.S. citizens. They maintain that the Committee relies primarily on individual countries to fulfill their obligations under the Convention and that it has no established rules for enforcing its recommendations or addressing treaty noncompliance. In order to alleviate ongoing concerns regarding the Committee's role, during the 2002 Senate ratification debate then-SFRC Chairman Senator Joseph Biden proposed an understanding stating the CEDAW Committee does not have the authority to compel States Parties to follow its recommendations.

Effectiveness of the Convention

A major point of contention among supporters and opponents of U.S. ratification is whether CEDAW is an effective mechanism for addressing women's rights internationally. Opponents generally recognize that global discrimination against women is a problem that should be eliminated, but they do not view the Convention as an effective way to achieve this goal. They emphasize that many countries widely believed to have poor women's rights records ratified the Convention. Some also contend that the Convention hurts rather than helps women struggling to achieve human rights internationally—arguing that CEDAW serves as a "facade for continuing atrocities" in countries that have ratified it.

Supporters of U.S. ratification maintain that CEDAW is an effective mechanism for improving women's rights globally. They contend that the Convention is a formal mechanism through which to draw attention to women's issues on both a national and international level, particularly in developing countries. To support this position, they cite studies and research conducted on CEDAW's implementation. The U.N. Development Fund for Women (UNIFEM) (now UN Women), for example, found that some countries, including Brazil and Colombia, incorporated language into their national constitutions to reflect CEDAW provisions or objectives. In June 2000, York University and the International Women's Rights Project (IWRP) conducted the First CEDAW Impact Study, which highlighted evidence of CEDAW's effectiveness at the national level and identified circumstances that contributed to successful implementation of the Convention. The study found that in Turkey CEDAW was cited in numerous court cases regarding discrimination against women; while in Nepal, the Ministry of Women and Social Welfare formed a taskforce to review all laws that were inconsistent with the Convention. In addition, a 2010 study by the International Center for Research on Women found that

in Saudi Arabia , CEDAW is being used to draft a new law that allows women lawyers to try family cases in court (under current law they cannot do so); in the Philippines in 2009, the government introduced the Magna Carta of Women (Republic Act No. 9710), a comprehensive women's rights law that relies heavily on CEDAW provisions and definitions; in Costa Rica in 2003, the Constitutional Chamber of the Supreme Court ruled that the Legislative Assembly President had not named a proportionate number of women to the Assembly's permanent committees, which was inconsistent with the Costa Rican constitution and Article 7 of CEDAW; and in Zambia in 1997, the High Court ruled in Longwe v. Intercontinental Hotels that the Intercontinental Hotel discriminated against women under the Zambian constitution and Articles 1, 2, and 3 of CEDAW because it refused to allow women to enter the premises unaccompanied by a male companion.

Despite such progress, supporters have acknowledged that much work needs to be done to achieve full implementation of CEDAW. In particular, the IWRP impact study identified several barriers to the Convention's implementation, including (1) the alienation of national governments from civil society, (2) lack of support from governments, (3) difficulty in implementing gender-integrated policies, and (4) lack of public awareness. Similarly, UNIFEM acknowledged that CEDAW's effectiveness is "largely dependent on the political will of governments."

Both supporters and opponents of U.S. ratification have expressed concern with some of the RUDs filed by States Parties that appear to undermine the intent and effectiveness of the treaty. For instance, several countries—including Egypt, Iraq, Malaysia, and Syria—submitted reservations stating that certain provisions would not apply if they are deemed incompatible with Islamic Shari'a law or values. Similarly, Niger filed a reservation to a provision calling on States Parties to modify social and cultural patterns related to the conduct of men and women, while North Korea filed a reservation to a provision that calls on States Parties to modify or abolish existing laws that constitute discrimination against women. When filing their own reservations, other States Parties—including Canada, France, and the United Kingdom—formally objected to the inclusion of these reservations, stating that they conflict with Article 28(2) of CEDAW, which states that a reservation incompatible with the object and purpose of the Convention shall not be permitted.

Many CEDAW proponents acknowledge the concerns regarding RUDs; however, they maintain that the benefits of the Convention's almost universal ratification outweighs the drawbacks of conditions imposed by some States Parties. Supporters also emphasize that a number of governments have decided to withdraw or modify RUDs because their national laws, policies, or priorities have changed. Examples of countries that have withdrawn reservations include the Bahamas, France, Germany, and Ireland.

CEDAW as an Instrument of U.S. Foreign Policy

CEDAW proponents contend that U.S. ratification will increase the credibility of the United States abroad and enhance its ability to champion women's rights in other countries. They argue that U.S. nonratification leads other governments to question the U.S. commitment to combating discrimination against women, thereby hindering its ability to advocate women's rights internationally. For example, at a 2010 hearing before the Senate Subcommittee on Human Rights and the Law, then-Ambassador Verveer stated that CEDAW nonratification "deprives us [the United States] of a powerful tool to combat discrimination against women ... because as a non-party, it makes it more difficult for us to press other parties to live up to their commitments under the treaty." At the same hearing, Wazhma Frogh, a women's rights activist from Afghanistan, stated that U.S. failure to ratify CEDAW "is of huge international significance," and noted that conservative elements in Afghanistan "use American's failure to ratify CEDAW to attack [Afghan] women's rights defenders."

Supporters also maintain that the United States might be viewed as hypocritical because it expects countries to adhere to international standards that it does not itself follow. In support of this position, some point to U.S. statutes that require foreign assistance to be based on a recipient country's compliance with "internationally recognized human rights." Many also hold that U.S. ratification would give the United States additional fora in which to combat discrimination against women, particularly if a U.S. citizen were elected to the CEDAW Committee. Serving on the Committee, supporters argue, would provide the United States with an opportunity to share its expertise and experience in combating discrimination against women with other countries.

Critics contend that the United States is already an international leader in promoting and protecting women's rights and that CEDAW ratification would not affect its ability to advocate such issues internationally. They argue that current U.S. laws and policies regarding gender discrimination serve as an example of the United States' commitment to women's equality. In addition, many assert that CEDAW and, more broadly, other human rights treaties, are meant for countries with lesser human rights records than the United States. Some critics have also voiced reluctance to bring the question of U.S. obligations under international human rights treaties to other countries, particularly those with poor human rights records. Many opponents are also concerned that the CEDAW Committee could be used as a platform for unfounded political criticisms of the United States. Moreover, they contend that U.S. ratification would not affect the laws and policies addressing discrimination against women in other countries. They further emphasize that improvements in the status of women in nations such as China and Sudan can be made only by the governments of these countries.

Family Structure and Parental Rights

Many opponents of CEDAW are concerned that U.S. ratification would undermine U.S. privacy laws and policies—particularly those relating to family structure and the rights and responsibilities of parents. Some, for example, have taken issue with provisions that they believe could be interpreted to undermine traditional family roles. Article 5(a), for instance, calls on States Parties to take all appropriate measures

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices ... 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;

(b) To ensure that family education includes ... recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

Such language has prompted critics to contend that CEDAW obligates governments, families, and individuals to adhere to a predetermined or artificial set of values, regardless of whether they align with national law, family traditions, or personal convictions. Specifically, some argue that the Convention dismisses "established moral and ethical principles" that are based on human nature and experience, and discriminates against the "traditional" family and a "diversity of cultures and religious beliefs."

CEDAW proponents counter that the Convention does not obligate States Parties to redefine or regulate gender roles or family structures. They note that Article 5 calls on States Parties to take "all appropriate measures" [emphasis added], thereby leaving it to governments to determine what actions are appropriate based on their domestic laws and policies. Some further argue that Article 5 addresses gender stereotypes in the context of their possible link to violence against women. To support this position, they point to the CEDAW Committee General Recommendations on Violence Against Women. Recommendation 19, for instance, relates "traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles" to "practices involving violence or coercion." Consequently, some contend, Article 5(b) addressing family planning education primarily refers to public education, grant, or information programs that aim to combat violence against women.

Another area of concern is CEDAW's possible impact on the role of women as mothers and caregivers. Many opponents are particularly critical of the CEDAW Committee's recommendation to Belarus in 2000 that expressed concern regarding the "continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mother's Day ... which it sees as encouraging women's traditional roles." Some point to this statement as evidence of CEDAW redefining the family and the role of women in society. In response to such concerns, supporters argue that the Committee was not criticizing Mother's Day; rather, it was responding to Belarus's celebration of the holiday as the only response to the obstacles women face in that country. Proponents further emphasize that the Committee has reviewed the reports of many other countries that celebrate Mother's Day and made no similar comments.

A number of critics also contend that U.S. ratification of CEDAW may undermine parental rights. Opponents have taken issue with Article 16(d), which says that States Parties shall take all appropriate measures to ensure that women receive "the same rights and responsibilities as parents ... in matters relating to their children; in all cases the interest of the children shall be paramount." Opponents are concerned that such language could be interpreted to give the CEDAW Committee authority to determine what is in the best interest of U.S. children, thereby undermining the rights and responsibilities of parents. Proponents, however, contend that CEDAW supports the role of parents in child-rearing, emphasizing that it calls for the "common responsibility of men and women in the upbringing and development of their children." Furthermore, they argue that CEDAW would not affect parental rights because the U.S. Constitution limits government interference in private matters, including parenting.

Recognizing the concerns of many CEDAW opponents regarding the Convention's possible impact on the private lives of U.S. citizens—particularly relating to family and parenting—in 1994 the Clinton Administration proposed a "private conduct" reservation to the Convention. It stated 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." Some CEDAW supporters object to the inclusion of the proposed reservation, arguing that the United States should strive to adhere to the treaty's provisions regarding gender stereotypes. They contend that a private conduct reservation implies a "lack of political commitment" by the United States and indicates that it views CEDAW as "applicable only in other countries."

Abortion

A significant issue in the CEDAW ratification debate centers on whether the Convention takes a position on abortion or is "abortion neutral." Many who support U.S. ratification hold that the treaty is abortion neutral because the word "abortion" is never mentioned in the Convention's text. This point of view was shared by the Clinton Administration, which declared the treaty abortion neutral in 1994. Supporters also emphasize that many countries where abortion is regulated or illegal, including Burkina Faso, Colombia, and Ireland, ratified the Convention without associated reservations, understandings, or declarations (RUDs), and regularly report to the CEDAW Committee.

Many opponents of U.S. ratification argue that while CEDAW does not include the word "abortion," parts of the Convention text could be interpreted to undermine current U.S. abortion law. Specifically, some have taken issue with Article 12(1), which states that countries "shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure ... access to health care services, including those related to family planning." Critics have also expressed concern regarding Article 16(1)(e), which requires that States Parties take all appropriate measures to ensure that women have the right to "decide freely and responsibly on the number and spacing of their children." Opponents suggest that such language could lead to the abolishment of state parental notification laws, require federal funding for abortions, or obligate the U.S. government to promote and provide access to abortion. Two States Parties to the Convention—Malta and Monaco—explicitly stated in their reservations to CEDAW that they do not interpret Article 16(1)(e) as imposing or forcing the legalization of abortion in their respective countries.

CEDAW supporters counter such criticisms by emphasizing that Articles 12 and 16 call on States Parties to take all " appropriate measures" [emphasis added], thereby leaving it up to States Parties to determine what actions are appropriate based on their domestic laws and policies. To support this view, some have cited the negotiating history of CEDAW, which appears to demonstrate the intent of some countries to keep the Convention's text intentionally ambiguous so that the treaty could be ratified by countries with a wide range of domestic laws and policies.

CEDAW Committee Recommendations Related to Abortion

The CEDAW Committee's recommendations to States Parties regarding abortion are a particularly controversial aspect of the U.S. ratification debate. Many opponents of CEDAW, particularly pro-life advocates, are strongly critical of the Committee because, in their view, it calls on States Parties to support and encourage abortion despite the fact that it is never mentioned in the CEDAW text. As evidence of this, critics point to the Committee's General Recommendation 24, which elaborates on CEDAW Article 12(1) addressing women's equal access to health care, including family planning services. The Committee recommends that "when possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion." Opponents also criticize Committee recommendations to individual countries that appear to encourage the decriminalization or legalization of abortion and oppose conscientious objector policies. In 1998, for example, the Committee recommended to Mexico that "all states ... should review their legislation so that, where necessary, women are granted access to rapid and easy abortion." More recently, in 2007, the Committee urged Poland "to ensure that women seeking legal abortion have access to it, and that their access is not limited by the use of the conscientious objection clause." In addition, opponents have suggested that the Committee's interpretation of CEDAW could be used as a basis for challenging abortion laws in the United States and other countries. In particular, some critics have expressed concern with a May 2006 decision by the Constitutional Court of Colombia, which cited CEDAW when it determined that abortion should not be considered a crime in all circumstances (such as rape or incest and when the life of the mother is in danger).

As mentioned previously, many CEDAW supporters emphasize that the purpose of the Committee is to consider the progress of States Parties' implementation of the Convention. They point out that CEDAW has no established mechanism for noncompliance and that it relies primarily on States Parties to fulfill their treaty obligations. Further, proponents contend that many of the Committee recommendations to States Parties demonstrate its overall opposition to abortion as a method of family planning. In 2006, for example, the Committee expressed concern that in the Former Yugoslav Republic of Macedonia "abortion continues to be used as a method of birth control." Similarly, in 2007 the Committee noted with concern that in Greece "due to inadequate access to family planning and contraceptive methods, abortion is often used by women and adolescent girls as a method of birth control." Moreover, supporters maintain that the overall goal of the Committee is to encourage States Parties to reduce abortion rates through education and family planning. Consequently, some argue, the Committee makes recommendations regarding abortion only in very specific circumstances, such as when (1) a nation demonstrates a high rate of abortion, indicating that voluntary family planning education and resources are needed to reduce the abortion rate; (2) a country appears to rely on abortion as a method of family planning; or (3) a country reports that unsafe and illegal abortions contributed to high mortality rates.

The U.S. "Helms Understanding" on Abortion (2002)

In June 2002, under the chairmanship of former Senator Joseph Biden, the SFRC held hearings on CEDAW ratification. On July 30, 2002, the committee reported the Convention favorably by a vote of 12 to 7, subject to several RUDs. One of the understandings was a proposal from Ranking Member Senator Jesse Helms that stated "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." This "Helms understanding" was included as a compromise to alleviate the concerns of pro-life advocates who were concerned that CEDAW ratification could affect U.S. abortion laws.

Though some pro-choice women's groups favoring U.S. ratification questioned whether the understanding was necessary or appropriate, they recognized that its inclusion could increase the chances of U.S. ratification—which they believed would improve the lives of women both domestically and abroad. Conversely, other women's groups that supported U.S. ratification opposed the inclusion of the Helms understanding because, in their view, it would encourage countries that have ratified CEDAW to view it as abortion neutral. They argued that such an interpretation could add legitimacy to efforts of other governments that prohibit abortion and infringe on women's reproductive rights.

Some pro-life opponents of U.S. ratification were satisfied that the Helms understanding would address their concerns regarding the Convention's impact on U.S. abortion laws. Many, however, believed that it would fail to ensure that domestic abortion laws would not be affected by U.S. ratification. In particular, they argued that abortion should be addressed as a "reservation" to the Convention instead of as an "understanding." (An understanding is an interpretive statement that is generally considered to have less authority than a reservation under international law.) Some also suggested that the inclusion of the Helms understanding would have no impact on the recommendations of the CEDAW Committee. They further argued that the understanding would most likely not prevent pro-choice organizations from advocating for fewer abortion restrictions in the United States.

Family Planning

A number of CEDAW opponents are concerned with specific references to family planning in the Convention text, including the following:

Article 10(h), addressing education, calls on States Parties to take all appropriate measures to ensure "access to specific educational information to help and ensure the health and well-being of families, including information and advice on family planning." Many fear that this could lead to mandatory sex education in both public and private U.S. schools. Article 12(1), addressing healthcare, calls on States Parties to take all appropriate measures to "eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning." Many are concerned that such language could require the U.S. government to distribute family planning materials or contraceptives at schools or in public. Some also assert that CEDAW's references to access to family planning could be interpreted to include abortion. Article (12)(2) calls on States Parties to "ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation." Some interpret this to mean that the U.S. government could be required to pay for family planning services, including abortion. Article 14(2)(b), addressing problems faced by rural women, calls on States Parties to take all appropriate measures to "have access to adequate health care facilities, including information, counseling and services in family planning." The concerns regarding this provision are similar to those expressed regarding Article 12(1).

CEDAW supporters counter these concerns by emphasizing that the Convention calls on States Parties to take "all appropriate measures" [emphasis added], thereby leaving it to governments to determine what constitutes access to family planning. In support of this, they point to the negotiating history of the Convention that indicates that the text was left intentionally ambiguous to allow for states with different family planning policies to ratify the Convention. To address the concerns of some Convention opponents, in 1994 the Clinton Administration proposed an understanding to CEDAW that said that 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.

Proponents argue that such an understanding allows for the United States to provide its own interpretation of family planning; however, others counter that its inclusion is "superfluous" because the CEDAW text already provides for such interpretations through its use of the terms "appropriate" and "necessary."

Consideration of Other Treaties

The Senate may consider providing its advice and consent to other treaties during the 114 th Congress—including the U.N. Convention on the Law of the Sea, the U.N. Convention on the Rights of the Child (CRC), and the U.N. Convention on the Rights of Persons with Disabilities (CRPD). These treaties, like CEDAW, have generated considerable debate because of concerns that they might undermine U.S. sovereignty and affect current U.S. laws and policies. In particular, the debate over U.S. ratification of CRC, which aims to protect the rights of children, includes many issues similar to CEDAW—including the Convention's possible effect on education, parental rights, and healthcare. Unlike CEDAW, however, CRC has not been submitted to the Senate by the President. Consequently, the Senate cannot yet consider providing its advice and consent to ratification.

Options for Treaties Already Submitted to the Senate

The Senate Foreign Relations Committee (SFRC) or the full Senate could consider providing its advice and consent to ratification of the Convention at any time because the treaty has already been submitted to the Senate. In practice, however, presidential support, sometimes accompanied by executive branch suggestions for conditions on ratification, has preceded Senate action. For example, the Senate considered the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights after being strongly urged to do so by Presidents Reagan (with respect to Genocide and Torture) and George H. W. Bush (with respect to Torture and Civil and Political Rights).

Options for the Senate include the following:

The SFRC continuing to take no action on CEDAW. The treaty may be left as it currently stands, as pending SFRC business, with the Senate neither giving nor rejecting advice and consent to ratification. The Senate giving its advice and consent to ratification without recommending any reservations, understandings, and declarations (RUDs). The Senate giving its advice and consent subject to the RUDs proposed by previous Administrations (Presidents Carter and Clinton) and/or by the current Administration. The Senate giving its approval for advice and consent, with RUDs proposed by the SFRC or by Members on the Senate floor. The Senate rejecting the treaty if more than one-third of the Senators present vote against U.S. ratification. The Senate requesting, by resolution, that the Convention be withdrawn and sent back to the President without any action.

Other Issues in the Ratification Debate

A number of other issues may arise in the CEDAW ratification debate if the Senate considers providing its advice and consent to ratification during the 114 th Congress. These issues involve the effect of the Convention on the private conduct of citizens, as well as its impact on current U.S. laws and policies.

Decriminalization of Prostitution

Article 6 of CEDAW says that States Parties shall take all appropriate measures, including legislation, to "suppress all forms of traffic of women and exploitation of prostitution of women." Some critics contend that the CEDAW Committee has made recommendations that contradict the intent of this provision and could obligate States Parties to decriminalize or legalize prostitution. Specifically, in 1999 the Committee expressed its concern in a report on China that prostitution "which is often a result of poverty and economic deprivation, is illegal," and recommended that it be decriminalized by the Chinese government. Supporters, however, assert that the Convention does not support prostitution, and emphasize that the Committee made the recommendation in an effort to reduce high levels of prostitution in China. They argue that regulating prostitution might make it easier for prostitutes who are victims of violence to come forward without fear of retaliation or shame, undergo treatment for sexually transmitted diseases, or receive access to education.

Definition of Discrimination

CEDAW opponents argue that the Convention's definition of discrimination against women is too broad and that it could apply to private organizations and areas of personal conduct not covered by U.S. law. A primary point of contention is the use of the phrase "any other field," which some interpret to mean that CEDAW could interfere in the private lives of individuals—including family life or religious practices. Critics have also expressed concern that such a broad definition could lead to an increase in "frivolous" lawsuits. Supporters, however, hold that the CEDAW definition of violence against women would not undermine U.S. laws regarding discrimination, particularly if the Senate files a non-self-executing declaration stating that no new laws would be created as a result of the treaty's ratification. They also emphasize that U.S. ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which includes a definition of racism, did not lead to an increase in the number of lawsuits. Still others maintain that applying the CEDAW definition to U.S. law would improve domestic discrimination laws; however, they acknowledge that to do so would likely require separate action by Congress or the Administration.

Equal Access to Education

Some opponents have taken issue with CEDAW provisions addressing equal access to education. Specifically, Article 10(b) calls on States Parties to take all appropriate measures to ensure that men and women receive "access to the same curricula ... examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality." Some contend that this provision could require U.S. parents to send their children to public schools instead of single-sex schools, private schools, or home schools. Some have also expressed concern with Article 10(d), which calls on States Parties to ensure "the elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education ... by the revision of textbooks and school programs and the adaptation of teaching methods." Some critics hold that implementation of this provision might lead to "gender re-education" in U.S. schools that could include re-writing curricula to reflect gender neutrality. CEDAW supporters argue that the intent of the text is to ensure that girls and boys have equal access to education services, facilities, and curricula, regardless of whether they attend a single or mixed-sex school. They also note that CEDAW does not specifically mention single-sex schools.

Same-Sex Marriage

Some CEDAW opponents who oppose same-sex marriage hold that Article 1, which defines discrimination against women as "any distinction, exclusion or restriction made on the basis of sex," could obligate the United States to legalize same-sex marriage because not allowing a woman to marry another woman could be viewed as a form of discrimination. Others, however, maintain that CEDAW's aim is to address discrimination against women rather than men. Consequently, they argue, a same-sex marriage claim in the context of CEDAW would be ineffective because the treaty applies only to women.

Appendix A. States Parties to the Convention on the Elimination of All Forms of Discrimination Against Women

Appendix B. Senate Committee on Foreign Relations Consideration of CEDAW: Timeline and Documentation

November 12, 1980 —Convention on the Elimination of All Forms of Discrimination Against Women, adopted by the U.N. General Assembly on December 18, 1979, and signed on behalf of the United States of America on July 17, 1980. Ex. R, 96-2. (Treaty Doc. 96-53.) December 5, 1988 —Public hearing. (S. Hrg. 100-1039.) August 2, 1990 —Public hearing. (S. Hrg. 101-1119.) September 27, 1994 —Public hearing. (S. Hrg. 103-892.) September 29, 1994 —Ordered reported, 13 in favor, 5 against. October 3, 1994 —Reported, with four reservations, four understandings, and two declarations, and with minority views. (Exec. Rept. 103-38.)

(Automatically re-referred under Paragraph 2 of Rule XXX of the Standing Rules of the Senate.)

June 13, 2002 —Public hearing. (S. Hrg. 107-530.) July 25, 2002 —Discussion during business meeting. July 30, 2002 —Ordered reported, 12 in favor, 7 against. September 6, 2002 —Reported with four reservations, five understandings and two declarations. (Exec. Rept. 107-9.)

(Automatically re-referred under paragraph 2 of Rule XXX of the Standing Rules of the Senate.)

Sources: Senate Committee on Foreign Relations, CRS.

Notes: Due to Senate computerization of Executive Clerk records, all treaties must conform to the same numbering system. In the case of treaties prior to the 97 th Congress, the new treaty number is denoted in parentheses. All votes are by voice unless otherwise indicated.