The time has come for the United States to ratify the Convention on the Elimination of All Forms of Discrimination Against Women.

• Published date: 22 March 2010
• Author: Heyman, Michael G.
• Date: 22 March 2010

TABLE OF CONTENTS
                 I. INTRODUCTION
                 II. CEDAW IN THE UNITED STATES
                III. AMERICAN EXCEPTIONALISM AND SOVEREIGNTISM
                 A. American Sovereigntism
                 1. The "Sovereignty" Shibboleth
                 IV. BRIDGING THE GAP TO THE PRESENT
                 A. Federalism Dialogues
                 1. An Example of Failed Federalism
                 B. Institutionalized Federalism: Rewriting the Narrative
                 C. Mediating Federalism: An Example from Canada
                V. CONCLUSION
                

1. INTRODUCTION

The United States plays an odd role in the international community. It is, simultaneously, its most involved and most reclusive member, seeking to maintain stability in a troubled world, yet remaining strangely apart from many of the legal institutions of that world. This odd role is exemplified by the United States' failure to ratify key United Nations treaties (1) or its doing so only after burdening the treaty with numerous reservations, understandings, and declarations ("RUDs"). (2) In all this, the United States frequently reflects what has been aptly called "American Exceptionalism," (3) a notion that, although somehow different from much of the world, the United States will nevertheless satisfy its international obligations without the bother of binding itself to international obligations. Thus, though an active participant in the drafting of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), and despite having signed it in 1980, the United States has let the agreement languish in that legal limbo to which the United States has frequently consigned such matters. Indeed, much of the American narrative on international law is marred by a startling parochialism, often inconsistent with its international leadership aspirations. (4) But why is that?

This Article will attempt to answer that question. Part II examines the remarkable venom that runs through much of the American narrative about CEDAW. It is odd that a United Nations convention would produce that reaction, but it is evident from the rants in the lowliest blogs to the statements made in the highest reaches of government. Part III develops the notion of American Exceptionalism more fully, as it helps to explain much of the substantive content of that narrative. This part explores the sentiment justifying why CEDAW and those who implement it have been so deeply criticized: it is an international product, overseen and implemented by those from elsewhere.

This merges into the main argument against ratification--that CEDAW encroaches impermissibly on American sovereignty. As the argument goes, it displaces domestic norms with external ones, thus depriving Americans of decision-making authority over the content of their laws. But that is wrong structurally and substantively. By adopting those norms, they become domestic; indeed, no divide exists between "American" norms and "outside" norms, as laws migrate as surely as people do. (5) Thus, Part IV will address two requirements that need to be met before the United States can ratify CEDAW. First, it must accept a federalist construct in which dialogue takes place among the different forms of government: federal, state, and local. Doing so will necessitate an acknowledgement that no norms will be imposed on anyone, for this is not a hierarchical process.

Second, the United States must create the institutions that further that dialogue. Many models exist, and the United States must adopt an appropriate one. This Article will review some choices that other countries have made. More importantly, though, it will insist that scholars and policymakers re-cast this dialogue, recognizing the inaptness of a persistent American Exceptionalism in the current world, but not deriding those for whom it has virtue.

II. CEDAW IN THE UNITED STATES

On July 17, 1980, the Carter administration signed CEDAW. Addressing the Senate several months later, President Carter noted that though it presented some questions of compatibility with United States law, he, the Department of Justice, and the Department of State saw no serious obstacles to ratification. (6) Unfortunately, despite those sanguine notes, no action was taken on the Convention until 1988, when it was "under review" during the Reagan and Bush administrations. (7) During 1988, the Subcommittee on Terrorism, Narcotics, and International Operations of the Senate Committee on Foreign Relations held a hearing on issues related to CEDAW. (8)

After the transition to the first Clinton administration, sixty-eight Senators sent a letter to the President in 1993, recommending ratification of the Convention. (9) Despite that, and despite the approval of ratification by the Senate Committee on Foreign Relations and the placement of the matter on the agenda for a full vote, (10) that Congressional session ended with no action taken. However, during that session, Senators Helms, Kassebaum, Brown, Coverdell, and Gregg filed a minority report, inveighing against the Convention as "yet another set of unenforceable international standards that would further dilute--not strengthen--international human rights standards for women around the world." (11)

CEDAW was revisited by the Foreign Relations Committee in 2002, and on July 30 of that year by a vote of twelve to seven, that committee again ordered it reported. (12) This time, though, the opposition was better mobilized and farther reaching, and its targets were more diverse. For example, two days after committee approval, the editorial page of the Wall Street Journal implored the country to "let Cedaw die." (13) Insisting that CEDAW would do nothing positive, the editorial proclaimed that it would "force upon America a militant feminist vision that the country long ago rejected." (14) The target was not only the abstract text of CEDAW itself, but also the foreign sources of the treaty and the foreigners who implemented it. Invoking horror notions, the editorial recounted stories of gender-based abuse from such countries as Saudi Arabia and Pakistan. (15)

But the editorial also trumpeted, now ironically, the success story of Afghanistan as a "brilliant example of a revolution in women's rights." (16) Obviously targeting the CEDAW Committee, (17) it attributed that success to the fact that the "U.S. went in and blew up the misogynist mullahs running the place," rather than resorting to a "20,000 page CEDAW report" on giving Afghan women access to better burkhas. (18)

The editorial is an easy target and would not be too troubling were that shrillness confined to such sources. But it is not. During the Senate committee's 2002 consideration of CEDAW, it received comments from the Secretary of State, the Department of Justice, and dissenting members of the committee, all strikingly similar to the Journal's comments. For example, Colin Powell, though supporting "CEDAW's general goals" felt it nevertheless raised "troubling questions." (19) Specifically, the administration was concerned with the CEDAW Committee reports on Belarus, China, and Croatia. (20) Thus, again, CEDAW was consigned to a lower priority than other treaties, as the review process continued. (21)

The Department of Justice was somewhat more explicit. Again, emphasizing the need to act without "undue haste," (22) it warned that the CEDAW Committee "has exploited CEDAW's vague text to advance positions contrary to American law and sensibilities." (23) Again, it asked the Senate committee to vote against sending the Convention to the full Senate prior to a complete review by the Department of Justice. (24) No vote took place within the full Senate, and the comments of the minority members of the Senate committee are instructive, sounding themes now familiar in this context.

First, Senators Hehns, Brownback, and Enzi claimed that CEDAW would pave the way for private actions to be used to achieve malign public policies. For example, they cited a failed effort to achieve enlarged abortion rights as the kind of effort that CEDAW would support, with the goal of "enshrining unrestricted access to abortion in the United States." (25) Second, they said that CEDAW conflicted with deeply ingrained notions of self-government, thus "exalting international law over constitutionally-based domestic law and local self-government." (26)

Finally, the Senators attacked the CEDAW Committee itself, strenuously rejecting the "meddling in all of these areas" by that committee. (27) Moreover, they railed against both the committee members and the fact that they were "sent by dictatorships which oppress women." (28) That point was more fully developed by Senator Allen, who embellished on this ad hominem attack directed at the States Parties themselves. He recited the failures of various signatories, such as Afghanistan, China, Cuba, and Saudi Arabia, (29) but did not mention that CEDAW had been ratified by 185 States Parties. (30)

Again, this smacks of political posturing aimed at pleasing either real or perceived constituencies, but several critical facts remain. First, CEDAW has not been ratified by the United States, as is the case with other human rights treaties. Second, the sentiments expressed by these sources appear much more broadly in the American narrative in this area, as they have for perhaps centuries. (31) Finally, very distinct themes are present in that narrative, making CEDAW a likely candidate for such resistance.

Perhaps known to few CEDAW proponents, this debate is waged on a Manichean battleground. Focusing on China, Belarus, and Croatia, Colin Powell sounded notes heard frequently. He chafed at the CEDAW Committee Report (32) recommending that China decriminalize prostitution. However, he did not note that the recommendation was linked to health concerns and concerns about violence against women and problems of the trafficking and exploitation of prostitution. (33)

The report on Belarus commented on that country's reintroduction of symbols (such as Mother's Day) that reinforced sex-role stereotypes. (34) Again, the surrounding materials...