CEDAW and the Status of Women’s Rights as Human Rights in the United States
The Convention on the Elimination of Discrimination Against Women and the Status of Women’s Rights as Human Rights in the United States By Debra DeLaet (Executive Director, Iowa United Nations Association)
The Committee on the Elimination of Discrimination Against Women held its 82nd session from June 13 through July 1, 2022. The Committee, comprised of 23 independent experts on women’s rights from countries across the globe, is the treaty-monitoring body for the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The CEDAW Committee works with States parties (countries that have ratified the treaty) to ensure that they are working towards fulfilling their treaty obligations. Countries that have joined the treaty are required to submit regular reports to the Committee on the steps that they are taking to implement provisions of the treaty. The Committee reviews these reports in public sessions and makes recommendations to the State parties for measures to further their implementation of treaty provisions.
Like other international human rights treaties, the treaty-monitoring process relies on constructive dialogue between the CEDAW Committee and participating countries. The Committee’s recommendations are non-binding and based on the consent of the States parties. Whereas critics have argued that the non-binding nature of international human rights treaties renders them meaningless, CEDAW has contributed to concrete policy changes expanding the rights of women in countries across the globe, including the expansion of “citizenship rights in Botswana and Japan; inheritance rights in Tanzania; property and political participation in Costa Rica; … a law in Rwanda prohibiting sex-based discrimination in access to land; … domestic violence laws in Turkey, Nepal, South Africa, and the Republic of Korea;… anti-trafficking laws in Ukraine and Moldova”; and gender-responsive budgeting for rural development in Sri Lanka, among others policies. In response to observations from the CEDAW Committee, China adopted measures to reduce fetal sex identification procedures and sex-selective abortions.
In addition to making recommendations to State parties, the Committee also issues general recommendations to offer clarification regarding treaty provisions and to highlight issues of concern related to women’s rights. For States that have ratified CEDAW’s Optional Protocol, the Committee has the authority to receive from individuals or groups of individuals regarding claims that their rights under CEDAW have been violated by the State party and to initiate inquiries into situations involving grave or systematic violations of women’s rights under CEDAW.
CEDAW has near-universal membership, with 189 States parties. A striking omission from the list of parties to the treaty is the United States, the only industrialized country in the world that has not ratified CEDAW. The other United Nations members that have not joined CEDAW are Iran, Palau, Somalia, Sudan, Tonga, and the Holy See. The United States has failed to ratify CEDAW despite playing a leading role in drafting the treaty. Indeed, the United States was the first country to sign CEDAW when it was brought up for signature in 1980. However, the U.S. Senate has failed to ratify the Convention due to the lack of bipartisan support, with Democrats generally in favor of ratification and Republicans staunchly opposed. Democratic support for CEDAW has been insufficient to reach the two-thirds majority required for ratification. Some of the U.S. resistance is rooted in fears that participation in international human rights treaties erodes national sovereignty. There is also partisan disagreement over women's rights. Among Republicans, political opposition to ratification has been particularly strong among social conservatives opposed to abortion.
The issue of abortion has remained at the center of ongoing global discussions regarding women’s rights and the U.S. failure to join CEDAW. On July 1, the final day of its 82nd session, the CEDAW Committee issued a statement that publicly criticized the U.S. Supreme Court’s June 24 ruling in Dobbs v. Jackson Women's Health, in which the Court struck down Roe v. Wade. The Committee specifically urged the United States to ratify CEDAW in order to respect, protect, fulfill, and promote human rights for women and girls, including the right to health. The Committee’s statement highlighted the fact that unsafe abortion is a leading cause of maternal morbidity and mortality globally. The Committee called upon all States parties to end the criminalization of abortion and to allow lawful abortion at least in cases of rape, incest, threats to the lives of women and girls, and cases involving severe fetal impairment. According to the Committee, forced pregnancy and forced both constitute gender-based violence against women “and, in certain circumstances, to torture or cruel, inhuman or degrading treatment.”
The Committee echoed the statement by Michelle Bachelet, the UN High Commissioner For Human Rights, who issued the following statement on Dobbs. V. Jackson: “Access to safe, legal and effective abortion is firmly rooted in international human rights law and is at the core of women and girls’ autonomy and ability to make their own choices about their bodies and lives, free of discrimination, violence and coercion.” Notably, the U.S. Supreme Court ruling is out of alignment with global trends. As High Commissioner Bachelet’s statement indicates, over fifty countries have liberalized restrictive abortion legislation in recent decades. Importantly, the Council on Foreign Relations has documented evidence that abortion rates decline in countries where it is legal and increase in countries where abortion is restricted. The evidence that abortion declines when the procedure is legal is even more pronounced when one excludes the data from China, where the legacy of China’s one-child policy and the practice of forced abortion has led to persistently high rates of abortion, and India, a country with a high rate of sex selective abortion due to a cultural preference for boys.
Two of the more prominent cases of the liberalization of national abortion laws are Ireland and Mexico. Historically, Ireland has had one of the most restrictive abortion laws in Europe, codified in the 8th Amendment to the Irish Constitution which banned abortion. The death of Savita Halappanavar in 2012 from an infection she contracted after being denied an emergency abortion during a miscarriage ignited public outrage and a campaign to legalize abortion in Ireland. In 2018, more than 66% of Irish voters voted to repeal the 8th Amendment. Subsequently, the Irish Parliament legalized abortion prior to twelve weeks of pregnancy and when necessary to protect the health of the mother. In Mexico, the country’s Supreme Court issued a landmark ruling to decriminalize abortion in September 2021. This ruling has expanded legal access to abortion for millions of women in Mexico. The Supreme Court ruling in Mexico also set a precedent for the freeing of women who had been imprisoned for seeking abortions. The cases of Ireland and Mexico are particularly noteworthy because the liberalization of abortion laws has taken place in predominantly Catholic countries with strong religious and cultural opposition to abortion. It is also noteworthy that the Court’s ruling in Mexico makes explicit reference international human rights standards.
This global comparison demonstrates that the United States is going against global trends when it comes to promoting women’s rights as human rights. The U.S. retreat on women’s rights has broader foreign policy implications as well. Harold Hongju Koh, Sterling Professor of International Law at Yale Law School and former Legal Advisor of the Department of State, has demonstrated that joining CEDAW would strengthen U.S. foreign policy by enhancing our legitimacy and ability to act as a global leader in the realm of human rights. U.S. ratification of CEDAW also would enhance the ability to promote human rights in the domestic realm, partly by drawing attention to the intersection of race and gender. Black women and women of color are more likely to face barriers to the fulfillment of their human rights, including in the realm of sexual health and reproductive justice.
You can take action to advocate for gender equality by reaching out to your elected representatives here. We encourage you to tailor your letters to members of Congress, and specifically to your senators, by specifically calling for the United States to ratify CEDAW.
Thank you for your advocacy on behalf of women’s rights as human rights.