MSBA backs ratification of CEDAW, a long-stalled UN convention on the elimination of discrimination against women.
On December 11, 2015, the Minnesota State Bar Association (MSBA) unanimously passed a resolution supporting efforts to end discrimination against women here and abroad through the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). A few hours before this landmark vote, the Minneapolis City Council had taken the same step. Most recently, on March 2, 2016, the St. Paul City Council and Edina City Councils followed suit.
The genesis for this initiative is the inspiring work of Raphael Lemkin, a jurist, linguist, and author, to end crimes against whole groups of people. During the Holocaust, there was no word to describe what was happening to the Jews of Europe—the effort to exterminate an entire people. Lemkin, a Polish Jew, believed that there had to be a word to describe a crime so heinous, and he coined the word ‘genocide,’ geno from the Greek meaning tribe or group, and cide from the Latin verb cidere, to kill.
Once Lemkin had the word to label and describe the crime, he became determined to have a law to prevent and prosecute it, and in 1948 the United Nations passed the Convention on the Prevention and the Punishment of the Crime of Genocide.
What happened to this Convention in the United States? In order for a UN convention, resolution, or treaty to become U.S. law, it must receive 67 votes for ratification from members of the U.S. Senate. (The House does not vote on international agreements.) The late Sen. William Proxmire of Wisconsin was asked to take on the task of getting the Convention ratified.1 He never anticipated the challenge that confronted him. He gave 3,211 speeches on the floor of the Senate, a speech a day for 19 years, until it was finally ratified.
Pulitzer prize-winning author and United States Ambassador to the United Nations Samantha Power writes, “Although Proxmire believed that ratification of the genocide ban would spur Senate ratification of other human rights treaties such as the International Covenant on Economic, Social, and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the Child; and later the international treaty to ban landmines, none has passed.”2
It is in the spirit of Raphael Lemkin and William Proxmire that current national efforts to ratify CEDAW have come about.
Although the U.S. government has failed to ratify CEDAW ( pronounced SEE-daw), momentum is building locally as communities band together to support U.S. ratification. The MSBA has joined the ranks of nearly 200 other organizations throughout the country, including the American Bar Association (ABA) and dozens of cities, to garner attention and demonstrate support for CEDAW. These initiatives represent the will of millions of Americans who decry the fact that 189 nations of the world have ratified CEDAW – and only six have not: Sudan, Somalia, Iran, Tonga, Palau, and the US. Countries with widely differing conditions for women have ratified CEDAW, including those at the bottom as well as those at the top, always with the goal to improve women’s situations in the respective countries. Yemen, for example, ranked as the world’s worst country in its treatment of women, courageously ratified the Convention in 1984.3 On the other end of the spectrum, Iceland, among the best, ratified the Convention in 1985 and continues to make progress in its goal of achieving full equality for women.4 The Nordic states, recognized for their advances in treatment of women, ratified the Convention nearly 20 years ago.
The platform for the concept of a “Women’s Treaty” emerged at the First World Conference on Women in Mexico City in 1975. As a result of that conference, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination Against Women on December 8, 1979.
Until the adoption of CEDAW, no treaty fully addressed women’s rights within political, cultural, economic, social, and family life. CEDAW is the most comprehensive international agreement advocating for the advancement of women. It establishes women’s rights in areas not previously subject to international standards. The treaty also provides a universal definition of discrimination against women so that those who would discriminate on the basis of sex cannot claim that no clear definition exists. It calls for action in nearly every field of human endeavor: politics, law, employment, education, health care, commercial transactions, and domestic relations. CEDAW also establishes an international committee for periodic review of the progress being made by its adherents.
CEDAW is known as a human rights treaty for women.
An Overview of CEDAW
In 1946, the United Nations began to examine the unequal treatment of women around the world through the UN Commission on the Status of Women. The commission recognized that discrimination was widespread and that many distinctions based on sex resulted in the unequal treatment of women. As noted above, the convention was adopted in 1979 by the United Nations General Assembly to ensure that men and women would enjoy basic and equal rights in all respects—economic, social, cultural, civil and political. Further, the convention addresses equal access for women living in poverty to food, health, education, training, and employment opportunities.
The convention contains 30 articles and is organized into six parts. Part I, Articles 1 through 6, relate primarily to domestic (i.e., national) prohibitions of sex-based discrimination. The convention defines discrimination as “any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
Part II, Articles 7 through 9, provide for women as equal citizens of the state. Part III, Articles 10 through 14, ensure that the state will provide equal access to education, vocational training, employment, health care, banking, and considerations in rural development. Part IV, Articles 15 and 16, guarantee women equal treatment before the law and in marital matters. Part V, Articles 17 through 22, establish the Committee on the Elimination of Discrimination Against Women and call for periodic reviews of countries’ progress. The final section, Part VI, Articles 23 -30, describes the administration of the convention.
Countries that ratify CEDAW agree to take all appropriate measures to implement the treaty’s provisions. Ratifying countries submit a report on steps towards treaty implementation one year after ratification and every four years thereafter. The CEDAW Committee, comprised of international experts, reviews each report and comments on each country’s progress.
CEDAW AND U.S. Legislation
The United States has attempted to address, by way of legislation, many of the issues identified within CEDAW’s text. For example, Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate on the basis of sex, among other classifications. The law also prohibits retribution against a complainant who alleges discrimination. Title VII was amended to include prohibitions against discrimination toward pregnant women. The Equal Pay Act of 1963 makes it illegal to pay differing wages to women and men if they perform equal work. Title VI of the Civil Rights Act prohibits discrimination in programs that receive federal assistance. Voting rights were extended in equal form to women in 1920 through the 19th Amendment. State law, such as Minnesota’s Women’s Economic Security Act, also seeks to address women’s issues.5 However, the fact remains that without CEDAW ratification, the United States is not bound by CEDAW’s provisions to comprehensively address all forms of discrimination against women.
Though CEDAW has yet to be ratified by the US, it is certainly not new to U.S. politics. President Jimmy Carter signed the convention draft on July 17, 1980. It was then transmitted to the Senate Foreign Relations Committee, where it sat dormant until a vote in 1994. At that time, it passed with bipartisan support, 13-5. It then lay dormant for 18 more years. In 2002, the Senate Foreign Relations Committee again voted on it, and again it passed in a bipartisan vote of 12-7 but, as before, it was never sent to the full Senate. The Bush Administration did not take a formal position on CEDAW, though the State Department reported to the Senate Foreign Relations Committee that the treaty is “generally desirable and should be ratified.”
The current administration and Senate Foreign Relations chair support ratification of CEDAW.
Some may think that the U.S. government’s apparent lack of urgency when it comes to CEDAW is reflects a perceived lack of importance in ratifying the convention. Would anything really change if the US signed on? But, in fact, CEDAW has a proven track record of success.
In countries that have ratified CEDAW, women have partnered with their governments to improve the status of women and girls and have shaped policies to create greater safety and opportunity for women and their families. For example, Mexico responded to an epidemic of violence against women by using CEDAW terms in a General Law on Women’s Access to a Life Free from Violence. By 2009, all 32 Mexican states had adopted the measure. Kenya has used CEDAW to address differences in inheritance rights, eliminating discrimination against widows and daughters of the deceased. Kuwait’s Parliament chose to extend voting rights to women in 2005 following a recommendation by the CEDAW committee to eliminate discriminatory provisions in its electoral law.
Around the world, CEDAW has been used to reduce sex trafficking, domestic violence, and female genital mutilation; ensure primary education for girls and vocational training for women; ensure the right to vote; end forced marriage and child marriage; improve health care services and save lives during pregnancy and child-birth; allow women to own and inherit property; and ensure the right to work and own a business without discrimination.
While some might argue that gender discrimination is no longer relevant to women’s issues in the United States, it is sadly undeniable that women in the United States continue to struggle with inequality on many fronts. The state of Minnesota is no exception. Affirming CEDAW at the state and national levels will provide an opportunity to affirm the importance of ending all forms of discrimination against women.
Every nine seconds, a woman in the United States is assaulted or beaten.6 Women constitute 94 percent of the victims of murder-suicides in the United States.7 Thirty-three percent of women and 9 percent of men will experience sexual harassment in their lifetime.
In the United States, 2.4 million women report injuries from current or former intimate partners each year. The Centers for Disease Control and Prevention have found that nearly one in five women (19.3 percent) has been raped in her lifetime and one in four has been the victim of severe physical violence by an intimate partner. In Minnesota alone, a 2010 National Intimate Partner and Sexual Violence Survey (NISVS) conducted by the Centers for Disease Control and Prevention estimated that 684,000 Minnesota women will be subjected to a rape, physical violence, and/or stalking by an intimate partner in their lifetimes. Victims of intimate partner violence lose a total of 8.0 million days of paid work each year and the cost of intimate partner violence exceeds $8.3 billion annually.8
Furthermore, although the Trafficking Victims Protection Act has played a pivotal role in combating human trafficking, the FBI has identified the Twin Cities as one of 13 U.S. cities with a high incidence of child prostitution.9 Indeed, a November 2010 study found that on any given weekend night in Minnesota, 45 girls under age 18 are sold for sex through internet classified websites and escort services.10
Maternal health is an ongoing concern in the US. The report State of the World’s Mothers, which ranks nations in health disparities between rich and poor women and children in cities around the world, ranks the US as 61st in the world on lifetime risk of maternal death, behind all other developed countries.
The same report ranks the US 89th in the world on political status of women (i.e. the participation of women in national government). In the US today, women hold fewer than 20 percent of seats in the Congress. On this indicator, nearly half of all countries in the world perform better than the United States.
Women also face widespread inequity in the area of economic security. In 2014, female full-time workers made only 79 cents for every dollar earned by men, a gender wage gap of 21 percent.11 Comparing equal jobs, women in 1979 earned 62 percent of men’s wages, and as of 2010, women earn 81 percent of what their male counterparts earn—progress, yes, but still not parity.12 This is not simply an issue for women relegated to the lower end of the pay scale. Jennifer Lawrence, the world’s highest-paid actress, recently expressed her outrage with earning a portion of what her male counterparts earned for the same production.
In the legal profession too, women continue to earn less than men. On average, women equity partners earn $66,000 less than their male counterparts and income partners average $25,000 less, according to a 2010 study by the ABA Commission on Women in the Profession.13 Women also continue to lag behind men on credit for rainmaking and client revenue, according to a 2015 survey conducted by the National Association of Women Lawyers.14 This evident gender gap in revenues generated from client billings persists even as women report overall higher working hours.15
Poverty also affects women at a higher rate than men, especially in the United States. Of the 37 million Americans living in poverty today, 56 percent are women.16 The gap in poverty rates between men and women is wider in the US than in any other first-world country.17 Absent global recognition and accountability, these inequities, among others, will persist.
At the 1995 Beijiing Women’s Conference, Hillary Clinton said,
As long as discrimination and inequities remain so commonplace around the world—as long as girls and women are valued less, fed less, fed last, overworked, underpaid, not schooled, and subjected to violence in and out of their homes—the potential of the human family to create a peaceful, prosperous world will not be realized.18
It is abundantly clear that discrimination and inequities persist, more than two decades after that landmark conference. Women remain vulnerable in almost every arena of public and private life.
Opposition to CEDAW generally stems from a traditionalist view of the role of women as mothers. Some opponents cite an unsubstantiated fear that CEDAW will result in an increase in access to abortion services and contraception or to changes in traditional family values and the definition of family. Other opponents cite ungrounded fear of mandatory inclusion of women in military roles or an onslaught of frivolous lawsuits. These oppositions to CEDAW are misplaced and are founded on misconceptions regarding the convention.
Importantly, CEDAW is a “non-self-executing” treaty. This means that any legislation to implement specific treaty provisions that are not already part of U.S. law would come before the House and Senate in the same manner as any other bill. The CEDAW committee’s formal “conclusions” are only recommendations about how countries can move forward on women’s equality and have no force of law in themselves; thus, no changes in United States domestic law would be required for the United States to be in treaty compliance.
CEDAW does not address the issue of abortion. Ireland, Burkina Faso, and Rwanda, for example, are countries that prohibit abortion and yet they have ratified CEDAW. Furthermore, the Senate Foreign Relations Committee added an “understanding” to the terms of CEDAW, that were it to be ratified, CEDAW would not include a right to abortion.
Since the Supreme Court recently legalized same-sex marriage, a national conversation surrounding family values is happening outside of the framework of CEDAW. The intent of CEDAW is to promote social equality for women, which does not contravene traditional family values. In practice, this means that wives and husbands, mothers and fathers would have equal footing under the law.
CEDAW does not seek to regulate any constitutionally protected interests with respect to family life. In a fact sheet on CEDAW, Amnesty International noted that
[b]oth CEDAW and the U.S. Constitution recognize the restraints of any governing authority to interfere with an individual’s most basic decisions regarding family. CEDAW simply urges State Parties to adopt education and public information programs, which will eliminate prejudices and current practices that hinder the full operation of the principle of the social equality of women. The treaty simply calls for the recognition of the ‘common responsibility of men and women in the upbringing and development of their children’ and maintains the parents’ common responsibility to promote what is in the best interest of the child.19
Additionally, any argument opposing CEDAW ratification for fear of influencing women’s participation in armed combat has little traction. In December 2015, Defense Secretary Ash Carter announced that all U.S. combat jobs would be open to women starting in 2016.20
Finally, while implementation of CEDAW could—and hopefully would—raise legal standards in the United States, a flurry of frivolous lawsuits is highly improbable. United States law already governs discrimination in public and private employment, prohibiting policies and practices that unintentionally discriminate against women.
Time for Action
The MSBA’s purpose in supporting CEDAW, like that of hundreds of organizations and millions of American citizens, is to generate a groundswell throughout the country. It is expected that we can then find a “Proxmire for CEDAW,” that is to say, a member of the U.S. Senate who will champion CEDAW passage in the Senate the way the late Sen. Proxmire successfully championed the Genocide Convention until its passage nearly two decades later. Minnesotans are lending their voices to this landmark opportunity in the hope that our senators, whoever they may be when the time is right, will take on this role to enact women’s rights as human rights.
TARA KALAR works in the Office of Chief Counsel at the Minnesota Department of Transportation. She provides legal advice to the Office of Civil Rights and the Office of Aeronautics. She is the co-chair of the MSBA’s Human Rights Committee.
ELIZABETH M. MESKE is an attorney with Knutson Flynn & Deans, PA, a private law firm providing legal counsel and representation to public school districts throughout Minnesota. Elizabeth is a member of the MSBA’s Human Rights Committee and Labor and Employment Law Section.
ELLEN J. KENNEDY, Ph.D., is the founder and executive director of World Without Genocide at Mitchell Hamline School of Law, St. Paul. Kennedy is also an adjunct professor there and is the Minnesota representative to AMICC, a national organization that advocates for the International Criminal Court. She also serves on the Human Rights and Relations Commission for the City of Edina, Minnesota.
1 See the excellent discussion in A Problem from Hell: America and the Age of Genocide, Samantha Power, Chapter 7, “Speak Loudly and Looking for a Stick,” 155-170, Harper Perennial, 2002.
2 Power, op. cit., p. 16.
9 The Federal Bureau of Investigation’s Efforts to Combat Crimes Against Children, Chapter 4: Non-Cyber Sexual Exploitation of Children.
10 The Schapiro Group, “Adolescent Girls in the United States Sex Trade. Tracking Study Results for November 2010.
11 See Institute for Women’s Policy Research. 2015. “Women’s Median Earnings as a Percent of Men’s Median Earnings, 1960-2014 (Fulltime, Year-round Workers) with Projection for Pay Equity in 2059 IWPR Publication #Q026 (Updated September 2015).
12 BLS 2010. “Highlights of Women’s Earnings in 2009”, Washington, D.C. [http://www.bls.gov/cps/cpswom2009.pdf]
13 New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women (http://worklifelaw.org/Publications/SameGlassCeiling.pdf)