[Senate Executive Report 107-9]
[From the U.S. Government Publishing Office]
107th Congress Exec. Rept.
SENATE
2d Session 107-9
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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.
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\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:
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\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\
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\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.
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\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.'')
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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.