Transcript: The United State and CEDAW
STEPHANIE OLSZEWSKI: Welcome to "That's Illegal!" a podcast about international law in the age of nationalism. This podcast is produced by the Global Justice Center or GJC. The Global Justice Center is a legal, human rights non-profit based in New York City. Our work focuses on moving international humanitarian laws from paper to practice. Our staff consists of lawyers with international law expertise who work regularly with partners at the EU and the UN.
Given the recent development of countries turning increasingly nationalistic and the rise in global tensions, we thought it would be a good idea to sit down and talk about the importance of international law, why we have it, and why we should implement it. So every week we're going to take a look at the latest news and break down the legality of what happened, using the framework of international law.
This week we’ll be discussing how the new political landscape ushered in by the 2016 presidential election presents an opportunity to reconsider the status of women’s rights in the United States. We’ll be discussing how international law could be a useful tool to ensure greater protections for women against gender discrimination.
Let’s start with the basics. What is CEDAW?
GRANT SHUBIN: CEDAW is an international human rights treaty. It stands for the Convention on the Elimination of all Forms of Discrimination Against Women. There are 197 countries in the world; 189 of those are state parties to CEDAW. It’s one of the broadest enforceable human rights treaties. The US, Iran, Somalia, Sudan, Palau, Tonga, and the Holy See have not ratified it.
STEPHANIE OLSZEWSKI: Does that mean that North Korea signed it?
GRANT SHUBIN: Yes. Saudi Arabia and Yemen have signed it. Many countries that have horrible human rights records are state parties to CEDAW. Obviously, the US is not one of them.
AKILA RADHAKRISHNAN: Oftentimes, when countries sign treaties, they put in reservations, understandings, and declarations, which are ways for countries to limit the application of the treaty. There is no human rights treaty with as many reservations as CEDAW. It has very broad and progressive mandates around religion’s impediment to gender equality. It also has progressive provisions around reproductive rights and equality in family life. Many countries have put in serious reservations to the treaty.
STEPHANIE OLSZEWSKI: Can you tell me about the origin of CEDAW?
GRANT SHUBIN: CEDAW came into force in 1979. Typically, for a treaty to be enforced, it takes 30 signatures.
AKILA RADHAKRISHNAN: There is the Universal Declaration of Human Rights, which was championed by Eleanor Roosevelt. It’s the very first human rights treaty. Much like CEDAW, it guaranteed basic rights to everybody. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are both much like CEDAW. The Universal Declaration and these two covenants form the International Bill of Human Rights. After those were put into place, we discovered that it was necessary to specify the rights of certain minority groups or groups that deserve special attention. CEDAW is the treaty for women.
GRANT SHUBIN: In 1979, CEDAW was referred to as the Women’s Bill of Rights.
STEPHANIE OLSZEWSKI: What are CEDAW’s articles?
GRANT SHUBIN: CEDAW has 30 articles—16 of which are what we call substantive that talk about substantive areas where countries are supposed to end discrimination against women. It’s intentionally designed to be as broad as possible and touch on every aspect of a woman’s life. These substantive articles cover things such as employment, education, health, political participation. Human rights treaties have committees. Every year, a treaty body committee gets together to look at how states parties have been putting into effect these substantive articles. The committee is designed to hold countries to account in making sure that CEDAW is fully realized.
AKILA RADHAKRISHNAN: The articles are somewhat general—much like many constitutions. They say that you have a right to health. This committee that examines the individual countries also issues detailed guidance around what this means. They also issue thematic general recommendations. There is one of violence against women, which cuts across many of the CEDAW categories. There is one on women in conflict and post-conflict situations. There is one on temporary special measures.
CEDAW provides not only that the government needs to take active steps to eliminate discrimination and achieve equality. It provides this whole idea that, in fact, there are temporary measures that should be put in place to speed up the achievement of equality, recognizing that women’s equality is something that has been hampered by years and years of discrimination and inequality. For example, CEDAW asks to recognize the fact that around the world, women’s political participation is low. The international average of women in international legislature is around 21%. You can put in a gender quota until you achieve some parity—at least, get up to 30% or 40%. At this point you can take these special measures away but you can accelerate equality.
GRANT SHUBIN: An example of this is in Rwanda. After the conflict, they set a quota for women to be on their Supreme Court and represented in their parliament. Rwanda has since reached that threshold and took the quota away. People continue to elect women because they’re doing their job as well as anyone would be able to do their job. It took away some of the stigma of that historical patriarchal attitude.
STEPHANIE OLSZEWSKI: Can you give us more examples of how CEDAW is used to advance women’s rights?
GRANT SHUBIN: In Botswana and Japan, for instance, they used CEDAW to create broader citizenship rights for women. Tanzania used CEDAW to improve inheritance rights. In Costa Rica, access to political participation and property rights were pushed forward by referring to CEDAW. This was all done through that review process. These issues come up in these particular countries during their review. Countries take the input from the CEDAW committee and try to make changes to enforce CEDAW.
AKILA RADHAKRISHNAN: In 1999, Colombia was review by the CEDAW committee. Women’s rights groups submitted information about Colombia’s blanket abortion ban. They had a law that prohibited abortion in all circumstances. CEDAW issues a specific recommendation to Colombia, saying that it needs to change its abortion laws and allow for exceptions. Women’s rights activists used that as one of their handles and challenged the abortion law through the court system. It went up to the Colombian constitutional court. Because Colombia’s constitution incorporates international law, the court changed this abortion law. There are these very specific and concrete examples of how these generalized provisions can change women’s lives.
STEPHANIE OLSZEWSKI: What is “rural women”?
GRANT SHUBIN: CEDAW recognizes that the situation of rural women is different from that of urban women. Rural women have different relationships to society. For instance, if domestic work is not taken into consideration in a country’s GDP, then that’s going to misrepresent the work that’s done. Worldwide, most of that work falls on rural women.
AKILA RADHAKRISHNAN: The right to healthcare involves being able to get it. If you live in a rural area, it might be harder to get to a hospital. There might be less hospitals and clinics. You have a state that maybe has only one clinic that can provide abortion services. Rural women might need to travel for days to get there. CEDAW asks to take that into consideration in understanding how rural women have access to the same rights. This is part and parcel of an interesting concept that exists within CEDAW—the idea that there are intersecting forms of discrimination. This is the core of intersectionality. If you are a woman, you face discrimination. And if you belong to a particular race or a minority, this will layer on top of it. CEDAW has been progressive in trying to figure out how you’re supposed to address these intersecting forms of discrimination.
GRANT SHUBIN: When Akila says that CEDAW has been progressive, she means the treaty but also the committee. The committee is issuing these general recommendations and evaluating countries. They are taking a 2017 view of what intersectionality looks like. If you hear an international lawyer say “CEDAW has been proactive in this,” then we’re going to be talking about the committee.
STEPHANIE OLSZEWSKI: Let’s talk about the US. Why have we not signed it?
GRANT SHUBIN: The US signed the treaty in 1979 when it was first open for ratification. That was something done by Jimmy Carter. In order for a treaty to become enforceable in the US, it takes 2/3 of Senators to vote for it.
AKILA RADHAKRISHNAN: In the US, the president can unilaterally sign any treaty. Constitutionally, the president has the power to sign, which is what Jimmy Carter did. It has to then go to the Senate for an advice and consent process. Only if it gets through that process and a gets a majority, then US gets to ratify the treaty.
GRANT SHUBIN: It was just signed for the US for a long time. Clinton took the convention to the Senate Committee on Foreign Relations. They voted to put it to a vote, and Jesse Helms crushed it. W. Bush was for it originally as well. He put it to the committee. That committee voted to put it to the floor. But he changed his mind.
AKILA RADHAKRISHNAN: The last time it was up for anything in the Senate was 2002 under George W. Bush. The Obama administration had expressed their desire to have the treaty ratified. There is some support for the treaty. However, it never made it anywhere through the Senate, including through the Judiciary Committee. The reason the US should ratify CEDAW has been framed in terms of the US showing leadership because it would be important for women around the world.
STEPHANIE OLSZEWSKI: It’s a bit arrogant.
AKILA RADHAKRISHNAN: It’s arrogant considering that we have terrible protections in the US for gender. We need CEDAW. That’s the rhetoric that was employed. On top of it, the US decided that it was more important to get CEDAW passed even over conservative opposition—even if it limited what CEDAW can do. When the Clinton administration submitted it to the Senate Judiciary Committee in the 1990s, they had a series of nine reservations, understandings, and declarations. Some of the major ones that the Senate and the Clinton administration were agreeing on were ones that limited CEDAW to only regulate state conduct. CEDAW has provisions that ask you to regulate provisions to regulate the conduct of private actors, which is important in the context of sexual harassment laws. The US wanted to limit CEDAW to be understood to not regulate private conduct—except as far as the US Constitution regulates private conduct. Another one was to say that CEDAW has nothing to do with telling the US whether they had to put women in combat positions in the military. They also rejected the notion of “comparable worth,” which we call equal pay. CEDAW has an expensive definition of what women should be paid for equal work. We explicitly rejected that definition in our reservation. They also rejected CEDAW’s provisions on paid maternity leave. There was an understanding that they wanted to put in that CEDAW was abortion neutral. They said that CEDAW doesn’t say anything about abortion. The US can decided—when it comes to women’s healthcare—what is necessary and appropriate care that needs to be provided. CEDAW has been very good in ensuring women’s access to reproductive care, so this would not only be problematic in terms of its implementation in the US, but it could also hamper the understanding of CEDAW around the world. The other one that is a central tenant of how the US signs human rights treaties is that they put in an understanding that CEDAW is self-executing. This is a constitutional issue within the US. Our constitution recognizes international law as a part of the law of the US. A doctrine of self-execution has developed around it. What that means is that unless a treaty is deemed to be self-executing, you, as an individual, do not have rights under that treaty in the US—unless Congress incorporates that provision into US law. In other countries, when you ratify CEDAW, you can assert rights. In the US, unless a particular treaty provision is self-executing or has been specifically incorporated into the US law, then you cannot do that.
STEPHANIE OLSZEWSKI: Are there any treaties we ratified that are self-executing?
GRANT SHUBIN: Not in human rights.
AKILA RADHAKRISHNAN: There is a very large area of law around the treaty that the US signed on consular relations. You can see the absurdity of this doctrine when we talk about this issue. In the Vienna Treaty on Consular Relations, there is one provision that says that you as a national have a right for your consulate to be notified. When you sign a treaty like that, it seems pretty evident that would be an individual right. However, the US Supreme Court found that was a non-executing provision; therefore, anyone who’s arrested in the US doesn’t actually have a right under this treaty. This is a huge issue in international law. The International Court of Justice said the opposite, and it found the US in violation of this provision twice—in respect to both nationals from Germany and nationals from Mexico.
GRANT SHUBIN: A lot of the pushback against CEDAW in the US has been the idea that it’s going to undermine family values, free market capitalism, and sovereignty. Those are all wrong. It’s not the case that CEDAW wipes clean the US constitution or starts giving orders to the president. Human rights treaties put obligations on the governments but it can do that in the style of that government. We shouldn’t be as scared of these international mechanisms to make our lives better as we are.
AKILA RADHAKRISHNAN: The US has been active in writing these treaties and negotiating these treaties—even in promoting these treaties. USAID spends millions of dollars encouraging other countries to implement CEDAW. We have bought into this system because we have created the system. We just don’t think we need it. The US has been at the forefront pushing for these systems and mechanisms to be created. But we caught our citizens off from these protections by pretending as if everything that we already have is better than what is in these treaties. That is false. They do, in fact, offer more protections. People in the US deserve those protections because that’s the fundamental tenant behind the idea of human rights. The US is cutting us off.
It’s important to keep in mind that when you look at the interpretation and enforcement of a treaty, the courts look at the legislative history of its ratification in the Senate. Unless the Senate explicitly takes those reservations and understandings away, we’re stuck with them.
STEPHANIE OLSZEWSKI: Speaking about our constitution, what rights would women in American have under CEDAW that they don’t currently have under our constitution?
AKILA RADHAKRISHNAN: Our constitution does not explicitly prohibit discrimination against women. The only specific prohibition against women is in the 19th amendment—when it comes to the right to vote. All we have in the US for women’s protection is an implied understanding that the 14th amendment’s equal protection includes sex.
GRANT SHUBIN: If a law is passed in the US, and someone wants to challenge it, judges can either look at something easily or they can look at something very rigorously. Depending on what the law addresses, it’s going to then tell the judges what to do. That is a fundamental feature of American jurisprudence. If you have a law that prohibits driving 30 miles per hour, then you’re discriminating against people who want to drive 30 miles per hour. But that’s okay with us. Judges will say that people who drive over 30 miles per hour aren’t special; this law is valid. Laws based on racial differences are theoretically permitted under American law but they get what’s called strict scrutiny. Judges look go through that law in minute detail, making sure that law is as narrow as it possibly can be to affect a very important government interest. It’s a very rigorous legal evaluation that rarely ever passes. If you ever write a law that discriminates against these protected classes, it is not easy to pass. It happens sometimes—such as in the famous case of US versus Korematsu. In WWII, when we had the Japanese internment camps, that passed strict scrutiny.
AKILA RADHAKRISHNAN: We don’t have unequivocal protection. They said that the government has a compelling interest in doing something about this issue and regulating the presence of Japanese people within the US; it was a matter of security in this context.
GRANT SHUBIN: Gender gets a middle level of scrutiny. The lowest level is rational basis and has to be connected to a legitimate government interest. The highest level of scrutiny is narrowly tailored to achieve a compelling government interest. Intermediate scrutiny can be any broader than necessary to achieve an important government interest. Obviously, this is subjective. Gender protections are easily watered down because you’re depending on white male judges looking at what is an important government interest.
AKILA RADHAKRISHNAN: When women are trying to do things like men, it generally gets strict scrutiny. It usually comes in under the 14th amendment equal protection. In Virginia, there was a case when a woman wanted to go to the Virginia Military Institute. It was only for men. The court used strict scrutiny to find that the institute had to admit women. An early case (that was lost by Ruth Bader Ginsburg) on discrimination based on pregnancy resulted in the court saying that it’s not discrimination between men and women, which is why it’s not equality. It’s discrimination between pregnant women and non-pregnant persons. Therefore, it’s not gender-based discrimination. That is an example of how we understand gender when it comes to our constitutional protections. It is a full antithesis to how CEDAW looks at gender equality. Within the US, reproductive rights are a very important area where CEDAW would be useful in redefining ideas and laws within the US. According to CEDAW, under a right to health, a state can’t place barriers to health services only needed by women. In the US, abortion jurisprudence has come out of our jurisprudence on contraception, which comes out of an implied right to privacy. It’s a due process right not a right under equal protection. At the time, privacy was considered strict scrutiny.
In addition to saying that women have equal rights, CEDAW requires that the right to equality needs to be both de jure (in law) and de facto (in effect). CEDAW asks you to look at the impact of the law and see if it has a discriminatory impact. When it comes to abortion, a lot of these laws discriminate against women.
STEPHANIE OLSZEWSKI: Since we are not going to get this passed through the Senate any time soon, is there anything that people can do in America to get these protections?
AKILA RADHAKRISHNAN: Certain cities have ratified CEDAW and tried to put CEDAW into place. It’s a way to say that if our federal government isn’t doing it, we still believe that gender equality is important. It’s a great first step. Unfortunately, those cities can’t actually sign international treaties. Enforcement mechanism that exists can’t be applied. It can be an important stepping stone to get people to recognize how CEDAW can change the situation of women’s rights.
GRANT SHUBIN: The opportunity to ratify CEDAW is always possible. In order for it to be done in the US, you need Senators to know that CEDAW is something you care about. You call your Senator and let them know it’s important to you. It’s that easy and that difficult.
AKILA RADHAKRISHNAN: We have a resurgence of the understanding that women’s rights in America aren’t as law protecting as we thought they were. It’s important to use this moment of realizing that we don’t just want to be on the defensive. Make demands on the people that we are electing.
STEPHANIE OLSZEWSKI: Thank you so much for joining us. Tune in next time for more discussions on international law.