Obama: Bring the U.S. into the 21st Century on Gender Equality

By Marjorie Cohn, AlterNet. Posted December 22, 2008.

CEDAW, like the three human rights treaties the United States has ratified -- the International Convention on the Elimination of All Forms of Racial Discrimination, the Torture Convention, and the International Covenant on Civil and Political  Rights -- contains a declaration that the treaty is non-self-executing,which means that it requires implementing legislation to make it effective.  Scholars including Professor Louis Henkin maintain that the Senate's general practice of appending non-self-executing declarations to ratification violates the Supremacy Clause, which mandates that treaties shall be the supreme law of the land. The opposition to ratification stems not only from the belief that the United States should not ratify any treaty with provisions inconsistent with U.S. constitutional jurisprudence; it also demonstrates a refusal to require our government to change or enact laws that comport with the obligations we would undertake by ratifying a treaty.  

Finally, there is a declaration that the United States will only submit on a case-by-case basis to the jurisdiction of the International Court of Justice to resolve disputes about the interpretation of CEDAW. According to the Vienna Convention on the Law of Treaties, RUDs which are incompatible with the object and purpose of a treaty are void. The RUDs proposed by the Senate committee are not only incompatible with the mandate of equality in CEDAW, they shun the primary object of the treaty: non-discrimination against women. Professor Cherif Bassiouni has said: "The Senate's practice of de facto rewriting treaties, through reservations, declarations, understandings, and provisos, leaves the international credibility of the United States shaken and its reliability as a treaty-negotiating partner with foreign countries in doubt."  

Yet, in spite of the RUDs, CEDAW continues to languish in Committee. Early in 2002, President George W. Bush called CEDAW "generally desirable" and said it "should be approved." Yet once the right-wing pressure geared up, Bush backed down. Five months later and shortly before the Senate Foreign Relations Committee voted 12-7 to approve the treaty, Secretary of State Colin Powell reported that the treaty was "complex" and "vague."  Attorney General John Ashcroft, no champion of women's rights, was charged with "reviewing" CEDAW. Bush never sent CEDAW to the Senate for advice and consent to ratification.  

More than 120 organizations, including AARP, the League of Women Voters, Amnesty International, and the World Federalist Association, support ratification.  The city of San Francisco voted in 1998 to adopt the treaty, and its provisions are in force there. City departments have incorporated the treaty into hiring practices as well as budgets for juvenile rehabilitation programs and public transportation.  

President-elect Barack Obama has said he supports ratification of CEDAW as well as the Equal Rights Amendment. He has promised increased enforcement by his Office of Civil Rights to ensure effective protection from sex discrimination. President-elect Obama should not hesitate to send CEDAW to the Senate for advice and consent to ratification, without the proposed RUDs that would eviscerate its protections.  

It took nearly 150 years for women to gain the right to vote in this country. There is no principled reason our government should resist full equality for women.  The United States must climb on board and ratify the Convention on the Elimination of All Forms of Discrimination Against Women.

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Marjorie Cohn is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.

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