Legal Analysis of CEDAW RDUs

Legal Analysis of CEDAW RDUs

Joint Position of the Lawyers Committee for Human Rights and the NOW Legal Defense Fund

September 26, 1994

Article 2 :

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to ths end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practices of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization of enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.

and

Article 3 :

States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

and

Article 5 :

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

Proposed Administrative Reservation:

The Constitution and laws of the United States establish extensive protections against discrimination, reaching all forms of governmental activity as well as significant areas of non-governmental activity. However, individual privacy and freedom from governmental interferences in private are recognized as among the fundamental values of our free and democratic society. The United States understands that by its terms the Convention requires broad regulation of private conduct, in particular under Articles 2, 3, and 5. The United States does not accept any obligation under the Convention to enact legislation or to take any other action with respect to private conduct except as mandated by the Constitution and laws of the United States.

NOW LDEF/LCHR Comment

This proposed reservation is undesirable. Even if there were a conflict between U.S. law and CEDAW which required the U.S. to enact new laws to meet the requirements of CEDAW, the mere fact that a treaty establishes standards to which the U.S. does not currently adhere is not a sufficient reason for a reservation. The purpose of treaties is to undertake new obligations or to make a commitment to the international community to adhere to existing obligations. If the U.S. ratifies CEDAW subject to this broad limitation that implies a lack of political commitment to observe international standards, its actions will rightly be decried by the international community. It suggests that the U.S. views these international norms as being applicable only in other countries and sees no room for improvement in its own rights performance. If the concern of the Administration is that CEDAW might require the U.S. to forbid private discrimination which is protected by the Constitution, it is our position that, under settled principles, CEDAW may not be construed so as to forbid what is protected under the Constitution. At most, a reservation saying that under this article the U.S. is not required to forbid private discrimination which is protected under the Constitution

Article 2 (for text, see above)

and

Article 7 (b) :

State Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.

Proposed Administrative reservation

Under current U.S. law and practice, women are permitted to volunteer for military service without restriction, and women in fact serve in all U.S. armed services, including in combat positions. However, the United States does not accept an obligation under the Convention to assign women to all military units and positions which may require engagement in direct combat.

NOW LDEF/LCHR Comment

This reservation is objectionable. Although the Department of Defense ("DoD") and the military policies on women in combat remain in flux, legal restrictions on women's participation in the military have now been lifted. See, e.g., Defense Authorization Act of 1994. The military's desire for flexibility is not an appropriate reason for taking a blanket reservation permitting continued discrimination. After 15 years of conducting its own detailed studies, the DoD has found that women are fully capable of performing combat roles. In both Panama and the Persian Gulf, women proved that they could perform in combat as well as men. See Department of Defense, Conduct of the Persian Gulf War, Final Report to Congress, App. R at R-4 (April 1992); Bureau of International Organization Affairs, U.S. Dep't of State, U.S. Report to te UN on the Status of Women 1985-1994 93-94 (1994). Rather than abdicating any obligation to open direct combat positions to women, the U.S. should, at a minimum, commit to continuing current efforts to open all combat positions to women. In doing so, the U.S. would fulfill the good faith requirement of taking "appropriate measures" as the phrase was construed during drafting of the Convention. See A/32/218 at 4 (1977).

Despite recent advances for women, both the Army and the Marines continue to exclude women from infantry, armor and field artillery units, and thus block women from advancing along the three main routes to those branches' senior leadership. The military's policy of restricting women's participation in direct combat units denies women significant opportunities for job advancement. Most three-star and four-star positions require combat experience; at the end of FY 1993, there were 114 three-star and four-star admirals and generals in the four combined services. None were women. Further, contrary to the proposed reservation, women cannot volunteer for military service without restriction, as women are precluded from certain designated combat positions.

Article 11 (1) (d) :

1) States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work.

Proposed Administration Reservation:

U.S. law provides strong protections against gender discrimination in the area of remuneration, including the right to equal pay for equal work in jobs that are substantially similar. However, the United States does not accept any obligation under this Convention to enact legislation the doctrine of comparable worth as that term is understood in U.S. practices.

NOW LDEF/LCHR Comment:

This proposed reservation is unnecessary. During drafting of the Convention, it was understood that the phrase "appropriate measures" would obligate a State to make a good faith effort to implement a provision of the Convention. See A/32/218 at 4 (1977). Instead of taking a blanket reservation to enacting comparable worth legislation, the U.S. should commit to bringing U.S. law into conformity with the international standards of wage equity evidenced by article 11(1)(d), General Recommendation No. 13 (encouraging State Parties to ratify ILO Convention No. 100), and ILO Convention No. 100 ("equal remuneration" interpreted as "rates of remuneration established without discrimination based on sex"). At a minimum, the U.S. should state that it will continue to implement the object and purpose of Article 11(1)(d) by developing legislative measures where appropriate.

Federal legislation is currently silent on the issue of comparable worth, see County of Washington v. Gunther, 452 U.S. 161 (1981), lower courts construing Title VII have held that it cannot redress broader pay inequities. E.g., AFSCME v. Washington, 770 F. 2d (40) (9th Cir. 1985). However, there continue to be significant developments expanding the implementation of comparable worth principles to redress wage discrimination in female-dominated occupations. For example, over twenty states have adjusted their wages to correct for sex or race bias. See Institute for Women's Policy Research, Pay Equity Remedies in State Governments: Assessing Their Economic Effects (1994). Further, the Fair Pay Act of 1994 (H.R. 4803) currently pending in Congress would expand the protections of the Equal Pay Act to cover work of "equivalent" value in both the public and private sector. Ratification of the Convention without the proposed reservation would reiterate the U.S. commitment to increase women's access to fair wages.

Article 11 (2) (b) :

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, State Parties shall take appropriate measures:

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.

Proposed Administration Reservation

Current U.S. law contains substantial provisions for maternity leave in many employment situations but does not require paid maternity leave. Therefore, the United States does not accept the obligation under article 11(2)(b) to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.

NOW LDEF/LCHR Comment

Rather than take this broad reservation, the U.S. should make a commitment to take appropriate steps to expand the availability of paid maternity leave. Such an undertaking would fill a significant gap in U.S. law. The Family and Medical Leave Act ("FMLA"), 29 U.S.C. 2601-54, mandates that employers of 50 or more employees provide twelve weeks of unpaid leave after childbirth or for other family of medical purposes. However, no federal law provides for paid maternity or parental leave, nor does U.S. law require an employer to reinstate a woman who has taken maternity leave without loss of seniority or allowances. Laws such as the FMLA and the Pregnancy Discrimination Act, 42 U.S.C. 2000e(k), are of little practical benefit to most women, given that few can afford unpaid parental leave.

Paid maternity and parental leave policies are already in place in many industrialized countries, including Germany, France, Italy, Canada, Austria, Belgium, the Netherlands, Luxembourg, the United Kingdom, Ireland, Denmark, Finland, Greece, Portugal, Japan, Sweden, and Spain. While the number of U.S. employers offering paid maternity leave is small, the Congress has already made a commitment to study the issue. In 1993, Congress established a Commission on Leave to conduct a comprehensive study of, among other things, "policies that provide temporary wage replacement during periods of family and medical leave." 29 U.S. 2632.

Articles 1-30

Proposed Administration Understanding

The United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. To the extent that state and local governments. exercise jurisdiction over such matters, the Federal Government shall, as necessary, take appropriate measures to ensure the fulfillment of this Convention.

NOW LDEF/LCHR Comment

The proposed language is not constitutionally necessary, nor is it desirable. Federal authority in this area is clear. Missouri v. Holland, 252 U.S. 416 (1919). Under the Constitution and international law, the federal government has the responsibility and the authority to carry out obligations under CEDAW. Although the federal government has the ultimate responsibility to see that these obligations are carried out, it can leave some implementation to the states so long as the United States government sees to it that this is done. There are few, if any, matters covered by CEDAW that are subject exclusively to state jurisdiction. Under the Fourteenth Amendment and other constitutional provisions, these matters are subject to the treaty and legislative powers of Congress and the jurisdiction of the federal courts.

Article 5 (for text, see above)

and

Article 7 :

States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

(a) To vote in all elections and public referends and to be eligible for election to all publicly elected bodies;

(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.

and

Article 8 :

States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.

and

Article 13 :

States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to family benefits;

(b) The right to bank loans, mortgages and other forms of financial credit;

(c) The right to participate in recreational activities, sports and all aspects of cultural life.

Proposed Administrative Understanding

The Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under Articles 5, 7, 8 and 13, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.

NOW LDEF/LCHR Comment

Under the First Amendment of the U.S. Constitution, the government may only penalize speech that incites to imminent lawless action. Similar limits apply to restrictions of expression and association. An understanding emphasizing that U.S. compliance cannot restrict the free speech, expression or association protections of the First Amendment would be appropriate.

Article 12

1. State Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph 1 of this article, State Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.

Proposed Administration Understanding

The United States understands that Article 12 permits State Parties to determine which health care services are appropriate in connection with family planning, pregnancy, confinement and the post-natal period, as well as when the provision of free services is necessary, and does not mandate the provision of particular services on a cost-free basis

NOW LDEF/LCHR Comment

This understanding is unnecessary. Article 12 makes clear that State Parties shall decide which health services are "appropriate" and when it is "necessary" to grant free services. Given the lack of conflict between U.S. law and the requirements of Article 12, the proposed understanding is superfluous.

Articles 1-30

Proposed Administrative Declaration

The United States declares that, for purposes of its domestic law, the provisions of the Convention are non-self-executing.

NOW LDEF/LCHR Comment

This declaration is not constitutionally required and it is undesirable. There is no reason for insisting that neither the Executive nor the courts should give effect to a treaty until Congress adopts legislation. To do so would go against the spirit of Article 6 of the Constitution as the framers intended it. It would undermine one of the principle reasons why the Constitution made treaties the law of the land, and gave the President and the Senate the power to make such treaties without the consent of the House of Representatives. Incorporation of this declaration will unnecessarily delay U.S. compliance with some provisions and set up unnecessary political obstacles to U.S. compliance generally. Many of the articles will in fact require Congressional Implementation, but some might not. Determination of what is or is not self-executing should be made article by article after ratification and by each branch of government for purposes within its responsibility.

Article 29 (1) & (2) :

1. Any dispute between two or more State Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the. parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State Party may at the time of signature or ratification of this convention or accession thereto declare that it does not consider itself bound by paragraph 1 of this article. The other States Parties shall not be bound by that paragraph with respect to any State Party which has made such a reservation.

Proposed Administration Declaration

With reference to Article 29 (2), the United States declares that it does not consider itself bound by the provisions of Article 29 (1). The specific consent of the United States to the jurisdiction of the International Court of Justice concerning disputes over the interpretation or application of this Convention is required on a case-by-case basis.

NOW LDEF/LCHR Comment

This proposed declaration is objectionable. When the United States ratified the International Covenant on Civil and Political Rights, it declared that it accepted the competence of the Human Rights Committee to receive and consider communications in which one State Party claimed that another State Party was not fulfilling its obligations under the Covenant. Since the dispute is submitted to the International Court of Justice. The U.S. is already party to over 75 treaties which provide for submission of disputes to the Court. There is no basis to suspect that the Court will fail to render a fair and impartial verdict under those treaties, or under CEDAW. If the U.S. is committed to the rule of law, there is no reason to resist the jurisdiction of the Court.