The High Price of Compromise


Be careful what you wish for, so the maxim goes.

Indeed, in recent years, advocates for women's rights have had much to wish for regarding the Bush administration's foreign policy. Despite a rhetorical commitment to empowering women in countries like Afghanistan, the Administration has systematically undermined women's rights at home and abroad, including eschewing international conventions that are protective of women's rights, such as the Convention on the Elimination of Discrimination Against Women (CEDAW). CEDAW, a treaty adopted by the United Nations General Assembly in 1979, is often described simply as "an international bill of rights for women." While President Carter signed the Convention and forwarded it onto the Senate in 1980, the U.S. has still not ratified the Convention nearly thirty years later. Having signed but failed to ratify CEDAW, the United States joins the ranks of the eight remaining countries, including Iran and Sudan, that have yet to ratify the Convention. In fact, the United States holds the awkward and ignominious title of being the only country to have signed, but not ratified, CEDAW.

But with the recent Democratic sweep of Congress and the upcoming election next year, political tides – and the political fortunes of women's rights as a foreign policy priority – are shifting. Sensing this shift, women's rights advocates have wisely begun trying to push Congress to revisit an old battleground. Amnesty International USA and Human Rights Watch, in particular, have launched campaigns to press Congress to resurrect the issue of U.S. ratification of CEDAW throughout the fall.

Inklings of a similar campaign have emerged within the Senate itself. When Senator Joseph Biden (D-DE) – who, as the chairman of the Senate Foreign Relations Committee, championed the cause of U.S. ratification in the Senate in 2002 – proposed legislation to designate an International Women's Day, in March 2007, he took the opportunity to re-inject the debate on CEDAW ratification into Senate discourse: "Access to education, economic security, employment non-discrimination, eradication of poverty, equality before the law, access to HIV/AIDS prevention and other health care services…are all critical benchmarks of women's progress," said Senator Biden. "That's why International Women's Day is also a perfect opportunity for the Administration to review its position and support ratification of the International Women's Rights Treaty."

Although the renewed efforts to secure U.S. ratification of CEDAW are certainly commendable, pro-ratification advocates must tread carefully. History looms large in this debate and brings with it dangerous accoutrements – in particular, the so-called "Helms Understanding," which interprets CEDAW as expressly not "creat[ing] any right to abortion," first proposed by Sen. Jesse Helms in the 1994 hearings, and later attached to the 2002 version of the Convention reported by the Foreign Relations Committee to the Senate. In the context of the 2002 ratification debate, this abortion-neutral interpretation of CEDAW version was supported by most of the major women's rights and human rights groups in the United States.

But there is growing recognition within the international community, if not domestically, that CEDAW's language on gender equality – particularly its broad ranging anti-discrimination provision – evokes a positive duty for the state to ensure non-criminalized access to abortion services. In other words, CEDAW does suggest the right to an abortion. And as such, U.S. ratification of a watered-down version of CEDAW might actually be detrimental for women's reproductive rights abroad, by entrenching a significant international precedent for interpreting the Convention as abortion neutral. In turn, this would significantly diminish CEDAW's usefulness as a tool women's rights advocates can use to push for reproductive rights reform.

Background: Reproductive Rights in the Convention

By ratifying the Convention, countries undertake a positive legal duty to "pursue, by all appropriate means and without delay, a policy of elimination of discrimination against women." Although the term "abortion" is absent from its text, CEDAW explicitly addresses women's access to reproductive services as an important aspect of women's equality. The Convention's definition of gender discrimination is far-reaching – the Convention indicates that any distinction that has "the effect or purpose" of negatively impacting women in the political, economical, social or cultural arenas constitutes discrimination. Therefore, the Convention's definition of discrimination has been interpreted to include policies that are gender-neutral on their face but that, as applied, have a disparate impact on women. Moreover, the Convention specifically obligates State parties to guarantee women's right to determine "the number and spacing of their children."

And recently, the Convention has been interpreted as protective of women's rights with respect to abortion. In May 2006, the Colombian Constitutional Court interpreted the country's constitution in light of Colombia's legal obligations as a CEDAW signatory to overturn the country's total ban on abortion, holding that abortions were now legal in certain circumstances. Specifically, the Court held that criminalizing health services that only women need, such as abortion, violates CEDAW's non-discrimination provision. The European Parliament, meanwhile, voted for the removal of limitations on abortion by EU members citing CEDAW as grounds that there is an "international legal framework" under which EU nations should recognize abortion as a "fundamental right."

The Ratification Debate in the United States

The debate on U.S. ratification of CEDAW first arose in the Senate in 1994, when the Senate Foreign Relations Committee held hearings on CEDAW at the request of the Clinton Administration. The Convention was reported favorably out of the Committee, but was never brought to a vote in the Senate. Then, in 2002, under the leadership of Senator Biden, the Senate Foreign Relations Committee again held hearings on the issue of ratification. During these hearings, the Committee heard testimony from many women's rights advocates, including non-governmental organizations, academics, and other relevant agencies. In June of 2002, the Committee reported the Convention favorably to the Senate by a vote of 12 to 7. Even though the Convention as reported was subject to four reservations and five understandings, including the Helms Understanding, the issue of ratification was never brought to a full vote in the Senate.

In the context of the 2002 debates, pro-ratification advocates accepted an abortion-neutral rendering of the Convention for the sake of political expediency. For example, Human Rights Watch, a leading advocacy organization for women's rights, issued a statement urging the Senate to ratify the treaty, noting, "CEDAW does not take a position on abortion." Prominent law professor Harold Koh, when testifying before the Senate Foreign Relations Committee, proffered the assertion that "that CEDAW supports abortion rights by promoting access to family planning…is flatly untrue." In an article calling for U.S. ratification of CEDAW, Koh went so far as to suggest that the Convention's textual neutrality on abortion was so clear-cut that it "renders superfluous" the proposed "Helms Understanding," which clarifies that "nothing in this Convention shall be construed to reflect or create any right to abortion."

Ironically, only conservative commentators who rallied against U.S. ratification of CEDAW recognized the Convention as pro-abortion. For example, the National Right to Life organization issued a statement that CEDAW's "definition of sex-discrimination condemns any limits on abortion…because all such limits ‘apply only' to women." This is, in fact, a correct interpretation – one also adopted by the Committee on CEDAW itself-of the Convention's broadly framed anti-discrimination provision.

Weighing in on the Debate: The Danger of Compromise

With six out of the seven original pro-ratification members of the Senate Foreign Relations Committee returning, the issue of ratification and the ensuing debate are likely to reemerge. Unfortunately, certain advocates, such as Amnesty International USA, appear poised to re-endorse an abortion neutral version of the Convention. On its ratification campaign website, Amnesty derides as a "myth" the supposition that "CEDDAW supports abortion through its promotion of access to ‘family planning'" and presents as unequivocal "fact" that "CEDAW does not address the matter of abortion." Though the Working Group on the Ratification of CEDAW "has never taken a position on any of the reservations, understandings, or declarations" that have been attached to CEDAW, Sarah Albert, co-chair of the Working Group, says, "This is a basic human rights treaty, not a question of abortion or liberalizing abortion laws."

When the issue of ratification resurfaces in the Senate, advocates should pay attention to the actual costs and benefits of a U.S.-ratified, abortion-neutral CEDAW on women abroad. U.S. ratification with this condition would establish a significant international precedent for interpreting the Convention not only as silent on abortion, but rather as anti-abortion, since the Helms Understanding states that the Convention "does not create any right to abortion." In turn, anti-abortion advocates abroad could wield this watered-down interpretation to stymie growing international recognition of the Convention as a powerful legal instrument for promoting and protecting reproductive rights.

"Although the United States has long claimed to be at the forefront of the women's rights movement, failing to ratify [CEDAW] hurts women in the U.S. and diminishes the US's credibility when it critiques other countries' records on women's rights," Human Rights Watch claims. Particularly given that such pro-ratification campaigns have conceptualized ratification of CEDAW as a foreign policy initiative with which the U.S. could more effectively promote women's rights abroad, advocates need to look seriously at the costs of U.S. ratification of a watered down CEDAW. In his opening statement in the 2002 Senate Foreign Relations Committee's hearings on ratification of CEDAW, Sen. Biden explained, "For the United States, the treaty can be a powerful tool to support women around the world in the fight for equal rights. Our voice on women's rights will be enhanced by becoming a party, because we will be empowered to call nations to account on their compliance with the treaty."

Since prominent advocates have emphasized that ratification is needed as a foreign policy tool in order to increase U.S. effectiveness and credibility in protecting women's rights abroad, advocates should use any new campaign to ratify CEDAW as an opportunity to change their campaign rhetoric to better protect women's reproductive rights. Otherwise, by establishing an international standard for interpreting the Convention as silent on the issue of abortion, U.S. ratification might provide anti-choice activists around the world a tool for debunking current decisions, like the Colombia's constitutional court's landmark decision, that employ CEDAW as legal authority for liberalizing abortion laws.

Too High a Price?

U.S. ratification of a truncated CEDAW runs the risk of becoming a fixed reference point for international interpretation of the Convention. The 2002 ratification debates entrenched testimony from figures such as law professor Harold Koh supporting an interpretation of CEDAW that is silent on abortion. Thus, if the opportunity for ratification indeed reemerges in the Senate, pro-ratification advocates must weigh the cost to women's reproductive rights abroad if the U.S. were to ratify the Convention as silent on the matter of abortion against the potential benefits for women of American endorsement of the Convention.

If the true goal of proponents of U.S. ratification of CEDAW is to improve the lives of women abroad, then these advocates should shift their focus away from ratification of the so-called "abortion neutral" interpretation of CEDAW and instead push for a reading of CEDAW in its pro-abortion interpretation. Given the U.S.'s dominance in the international political arena, the precedent that would be established upon U.S. ratification of an abortion neutral CEDAW could endanger the Convention's role as a critical advocacy tool for women around the world in advancing their reproductive rights.

A renewal of efforts to ratify CEDAW as "abortion neutral" is dangerous as the Convention is, in fact, not neutral on this issue. Although the U.S. should ratify CEDAW in its pro-abortion interpretation, arguably, ratifying CEDAW without such an interpretation could pose greater harm to reproductive rights abroad than if the U.S. were to continue to not ratify it at all. Only when ratified as the pro-abortion treaty that it is can the Convention continue to flourish as an international standard that is protective of women's reproductive rights.

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