Wednesday, December 07, 2022

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 Abstract

Excerpted From: Rangita de Silva de Alwis and Melanne Verveer, Time Is A-wasting”:  Making the Case for CEDAW Ratification by the United States, 60 Columbia Journal of Transnational Law 1 (2021) (328 Footnotes) (Full Document)

deSilvadeAlwisandVerveerNearly two decades ago, U.S. Secretary of State Madeleine Al-bright called the ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (the “CEDAW” or the “Convention”) “long past time,” with then-Senator Joseph Biden noting that “[t]ime is a-wasting.” In this Article, we argue that the timing is now auspicious for a historic reckoning with our past, including the ratification of this important anti-discrimination treaty.

In recent history, the twin forces of the #MeToo Movement and the Black Lives Matter (“BLM”) Movement have made it clear that the United States must ratify the CEDAW and reclaim its role as a global leader in women's human rights. For four decades, Congress failed to rally enough votes to ratify the CEDAW; but today, from grassroots movements to the White House, the political push for ratification is finally building momentum. Grasping this opportunity would announce to the world that the United States is ready to reenter the international community as a role-model and leader, poised to undo the mistakes of prior disengagement.

The CEDAW operates by binding ratifying countries to a set of shared principles and affirmative measures--a sort of international bill of rights for women. It focuses on non-discrimination, women in the public sphere, women's social and economic rights, and the position of women in the family unit. President Jimmy Carter signed the CEDAW on July 17, 1980 and submitted it to the Senate for consideration shortly thereafter. The United States played a central role in the negotiation process leading up to the drafting of the Convention. Despite the fact that the U.S. Senate Foreign Relations Committee recommended ratification in 1994, the Senate adjourned that year without ratifying the treaty. Later, in 2002, the Senate Foreign Relations Committee held consultations on ratifying the CEDAW. During consultations, then-Senator Biden lamented that “[t]ime is a-wasting,” remarking on the substantial delays in the U.S. ratification process. More recently, the Obama Administration pushed for ratification, calling the Convention an “important priority.” Despite this sense of urgency, the Obama Administration was not able to get the treaty ratified by the Senate due to a lack of bipartisan support.

Today, the United States is one of only a handful of countries that has yet to ratify the CEDAW, rendering it “strange bedfellows” with Sudan, Somalia, Iran, Tonga, and Palau.

President Biden has made it clear that he seeks to bring the United States over to the right side of history on the CEDAW. During his most recent presidential campaign, Biden called the CEDAW the most important international vehicle for advancing gender equality and argued that it is “simply embarrassing that the United States has not ratified the [C]onvention.” As president, Biden promised to “push the Senate to ratify this important treaty, so that we can better advance the rights of women and girls here at home and around the world.”

President Biden's National Strategy for the COVID-19 Response and Pandemic Preparedness (2021) further illustrates the Administration's commitment to joining the United Nations (“U.N.”) Secretary General's efforts to place women and girls at the center of global recovery. Specifically, the National Strategy posits that the United States will “enhance humanitarian relief and support for the capacity of the most vulnerable communities to prevent, detect, respond to, mitigate, and recover from impacts of COVID-19, such as ... gender-based violence.” The fact that the Administration views this objective as a way to signal U.S. leadership evinces that women are central to its multilateralism.

There are multiple benefits to ratification. As then-Senator Biden observed in 2002, “the U.S. Constitution and existing Federal laws will satisfy the obligations of the treaty.” Many scholars, most notably Harold Koh, have pointed out the clear foreign policy gains presented by ratification, as the United States can help intensify global efforts to improve the status of women's human rights. In this Article, we develop three more reasons as to why now--during the Biden Administration--presents an opportune chance for the United States to finally ratify the CEDAW.

In Part I, we assess how ratification of the CEDAW aligns with a historic public reckoning on equality and addresses a legacy of systemic racism and sexism in the United States. We survey the CEDAW's most recent questions to States Parties, drawing upon examples from Brazil, Canada, and Sweden to explore the ways in which the CEDAW upholds an agenda of inalienable intersectionality that seeks to advance the status of women at the margins. This focus on minority women could herald a renewed engagement with civil rights groups and social movements on the interplay between race and gender.

In Part II, we explore how the United States' strong bipartisan commitment to the Women, Peace, and Security (“WPS”) agenda and how its global security goals can be advanced by ratifying the CEDAW. From the United Kingdom to Afghanistan, the CEDAW has played a role in strengthening commitments to the WPS agenda. The United States has emerged as a global leader in WPS, both by spearheading U.N. Security Council Resolutions to condemn sexual violence against women and girls in armed conflict, and by codifying its commitment to pursuing the WPS agenda in domestic law.

Additionally, in Part II we examine how the CEDAW complements the U.N. Security Council Resolutions on Women, Peace, and Security. The United States must be swayed by both the human rights arguments of the CEDAW in addressing all forms of violence against women, as well as the national security argument put forth by Secretary Rice--that “sexual violence profoundly affects not only the health and safety of women, but the economic and social stability of their nations.” Addressing violence against women within an intersectional framework of gender equality, we conclude, is both a national security priority and an inalienable human rights obligation.

In Part III, we argue that the CEDAW matters--that it is a vital part of the human rights agenda and has had a tremendous impact on legislation and policy advancing the legal status of women around the world. Some recent scholars have questioned the role of human rights treaties in combating gender-based discrimination, claiming that the causal factors in reform cannot be easily tied to the Convention. We resist this argument. By tracing the CEDAW's vernacularization, we contend that the CEDAW's impact on the landscape of women's human rights cannot be underestimated. We find that the implementation of the CEDAW takes different shape-shifting forms, from de jure translation into laws, to shaping a new lexicon in countries that are in the midst of political transition. Ratifying the Convention will fulfill both domestic and foreign policy goals at a time when we are committed to reclaiming American values and preventing the rollingback of prior gains.

In our Conclusion, we maintain that the ratification of the CEDAW is the natural evolution of the Biden Administration's commitment to the reauthorization of the Violence Against Women Act (the “VAWA”).

Ultimately, the arc of American engagement, both in foreign and domestic policy, must bend toward ratifying the CEDAW. After decades of lawmakers failing to muster the political will for ratification, the demand for change has now reached a fever pitch. President Biden can use this opportunity to cement his legacy as a fierce advocate of not only the human rights of American women, but also those of all women around the world.

[. . .]

A week after the U.S. Presidential Elections, President-Elect Joe Biden tweeted: “When I'm speaking to foreign leaders, I'm telling them: America is going to be back. We're going to be back in the game.” For the reasons discussed in this Article, the Biden Administration must make ratifying the CEDAW a leading part of America's “back in the game” foreign policy agenda. Further, we contend in this concluding Section that ratifying the CEDAW would be a natural outgrowth of President Biden's commitment to the Violence Against Women Act (the “VAWA”) of 1994

[. . .]

Indeed, ratifying the CEDAW is the next step for the agenda established by President Biden in his landmark effort to first pass and now reauthorize the VAWA. Ratification would cement President Biden's legacy as an unyielding advocate for the elimination of discrimination against women and equality for all domestically.

The VAWA, introduced by then-Senator Biden, was first signed into law in 1994 “to address domestic violence, sexual assault and stalking through legislation.” The U.S. Department of Justice's Bureau of Justice Statistics reports that since the promulgation of the VAWA, intimate partner violence declined by 64% from 1994 to 2000.

The VAWA has been updated and reauthorized several times with bipartisan backing--first in 2000, then in 2005 and 2015, and now again reauthorized by the House of Representatives in 2021. Most recently, the day after the Atlanta spa shootings on March 16, 2021, the House voted to renew the landmark Act. The latest reauthorization of the VAWA includes explicit protections for lesbian, gay, bisexual, and transgender survivors of domestic violence for the first time, as well as prohibits anyone convicted of stalking from purchasing a firearm. It also provides authority to tribal courts to prosecute nonindigenous people for offenses such as violence against indigenous women and sex trafficking of indigenous women. The most recent changes to the Act include more intersectional protections that are sensitive to the rise in gender-based violence during the pandemic.

The CEDAW is the natural extension of this crucial domestic project, bringing the goals of the VAWA to the international stage. The VAWA's values are similar to General Recommendation 19 of the CEDAW, which was promulgated by the CEDAW Committee in 1992. Others share our sentiment that the CEDAW advances similar goals. Among them is Samuel Bagenstos, who, testifying before Congress in support of CEDAW Ratification in 2010 in his capacity as then-Assistant U.S. Attorney General, stated: “One of the key goals of the Women's Treaty [the CEDAW] is to end violence against women. Congress and the Administration and this Committee have shared that goal.”

Most importantly, violence against women in the United States is part of a global pattern of the subordination of women. As Harold Koh argued in Why America Should Ratify the Women's Rights Treaty:

In recent years, the United States [C]ongress and a number of states have enacted versions of the Violence against Women Act as a mark of a national commitment to end violence and discrimination against women. This commitment should not stop at the water's edge ... America simply cannot be a world leader in guaranteeing progress for women's right unless it is also a part to the global women's treaty [the CEDAW].

In the past two years, the COVID-19 pandemic has made the need for a global effort to end violence against women even more dire. As we noted in Section I, the COVID-19 pandemic is exacerbating existing inequalities and eroding many of the human rights gains of the past decades. In fact, one of the dramatic effects of the pandemic has been an international increase in domestic violence.

In the United States, there has been a sharp increase in incidents of domestic violence during the pandemic due to lockdown orders and the inability to access resources. While the National Commission on COVID-19 and Criminal Justice reported an eight percent rise in reports of domestic violence, the National Domestic Violence Hotline reported a nine percent increase in calls during the U.S. lock-downs from March to May 2020. The New York City Police Department too reported an increase in reports of gender-based violence.

The United Nations also observed that the lockdowns led to an increase in violence against women, especially domestic violence across the globe. The multilateral body even coined a term, the “Shadow Pandemic,” to describe the rise of violence against women and girls in the shadow of the COVID-19 outbreak.

The U.N. reports that ambassadors from 124 U.N. Member States and Observers have responded to the Secretary-General's call to action to combat this “Shadow Pandemic.” To examine a few critical reformist efforts, recently, in December 2020, Lebanon revised its domestic violence law to guarantee custody rights to women facing violence. Following suit, Egypt strengthened its anti-female genital mutilation (“FGM”) law by introducing steeper penalties for those engaged in FGM, including sanctions against the medical profession. More recently, in July 2021, the Egyptian Parliament discussed tougher punishments for sexual harassment. Lebanon also criminalized sexual harassment, including online harassment. Furthermore, Iran is in the process of introducing its first ever bill on domestic violence in Parliament.

As the Biden Administration and Congress celebrate the reauthorization of the VAWA, they must now look to the horizon--to the ratification of the CEDAW. Ratifying the Convention will give the Biden Administration significantly more legitimacy in its effort to end violence against women and would demonstrate the solidarity needed to achieve this noble goal. As President Biden himself stated, the renewal of the VAWA “should not be a Democratic or Republican issue--it's about standing up against the abuse of power and preventing violence.”

The effort in which we are engaged can be likened to the positive efforts by women's rights advocates several decades ago, who sought to move their governments to ratify the CEDAW in different corners of the world. This effort has been described as follows: “Trying to get your government to ratify [the] CEDAW is a political process that makes you see the ramification of this quite extensive and encompassing document.”

As we write these final lines, we are witnesses to the tragic fall of the Afghanistan government and its takeover by the Taliban. We watch with fear the plight of our friends and all women and girls whose lives are at grave risk and their future imperiled. Malala, the most famous victim of Taliban's brutal attacks on women writes: “Like many women, I fear for my Afghan sisters.”

On October 30th, in the waning hours of the withdrawal of the international troops, the CEDAW Committee (together with the U.N. Committee on the Rights of the Child) issued a statement calling upon the Taliban to actualize their promises to protect Afghan women and girls and to abide by the human rights principles enshrined in the CEDAW and the Convention on the Rights of the Child. Both Committees condemned the targeted attacks on women and girls who had contributed to the advancement of Afghanistan. Furthermore, the CEDAW Committee held the Taliban and all other authorities accountable to the human rights protections enshrined in the CEDAW and drew attention to the observations made in the CEDAW Committee's Concluding Observations to Afghanistan's third periodic report in March 2020 and adopted by the Committee at its seventy-fifth session (10-28 February 2020). In view of the unfolding events in Afghanistan, the prophetic nature of those recommendations in 2020 now has greater moral urgency. We highlight two recommendations, women's security and girls' education; two areas that unite both Republican and Democratic lawmakers. The Committee underscored CEDAW's General Recommendation No. 35 on conflict-related violence in an effort to recommit Afghanistan to its national action plan on Security Council Resolution 1325 on the primacy of women's participation in peace and conflict resolution. The CEDAW Committee went further in invoking the importance of full inclusion in asking that “women, including those belonging to ethnic and religious minorities, participate in peace, transitional justice and reconciliation processes ....” The Committee also “expressed its deep concern that schoolgirls and schools for girls continue to be targeted in the course of armed conflict” and highlighted the “Safe Schools Declaration,” an intergovernmental commitment endorsed by Afghanistan to safeguard students, teachers, school and universities from the impact of armed conflict. As the clock wound down on the withdrawal of the military, the fact that the U.N. human rights treaty bodies drew attention to CEDAW's Concluding Observations underscores the moral authority of the CEDAW to draw attention to the rights of women and girls at the hour of their gravest threat.

When co-author Melanne Verveer, as U.S. Ambassador on Global Women's Issues, met with the Afghan Minister of Justice to advocate for the implementation of Afghanistan's Elimination of Violence Against Women Law, she argued that Afghanistan had an obligation to comply with the CEDAW. The Minister looked at her with great consternation and said: “I have told those people in the foreign ministry to stop ratifying these treaties.” His response demonstrated a recognition that treaties such as the CEDAW do in fact bring obligations with which ratifying nations are expected to adhere in their domestic policies.

Our friend, the Honorable Naheed Farid, Chair of the Afghanistan Parliament's Standing Commission for Human Rights, Civil Society and Women's Affairs, wrote to us a few days before the fall of Kabul, emphasizing that women would continue the fight for democracy and the rule of law. The CEDAW is part of the rule of law in Afghanistan. While the world stands united in its concern for the future of Afghanistan's women and watching our efforts on their behalf, U.S. lawmakers can signal their support to Afghan women and underscore the importance of gender equality to domestic and global security by ratifying the Convention.

The United States must now ratify the CEDAW to reverse the history of gender and intersectional inequality and to secure a more sustainable future. In T.S. Eliot's words, “What might have been and what has been / Point to one end, which is always present.” The fate of our collective future and the injustices of our shared past point to this very moment. The time is now for CEDAW Ratification.


Rangita de Silva de Alwis is the Associate Dean of International Affairs at the University of Pennsylvania Law School and the Hillary Rodham Clinton Fellow on Gender Equity at the Georgetown Institute for Women, Peace, and Security.

Ambassador Melanne Verveer was appointed by President Obama as the first U.S. Ambassador on Global Women's Issues. She is the founding Executive Director of the Georgetown Institute for Women, Peace, and Security. She is also the co-founder of Seneca Women.


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