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When Belief in Exceptionalism becomes Exemptionalism

American politicians often point to American exceptionalism by claiming the United States is unique and implying that it is not just different but better than other countries.  In international law and the law of nations, this belief in American exceptionalism has morphed over the past decades into American exemptionalism, or the assumption that the United States is being «above» or an «exception» to the law. Case in point: the international Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). As it celebrates its 40th anniversary this year, the United States still has not ratified the treaty – one of just a handful of states with respect to international women’s rights that put the “land of the brave and the free” into the same category such as Somalia, Sudan, Iran, the Holy See, Palau and Tonga, and makes it the only established industrialized democracy in the world failing to do so. 

It is an irony of history that CEDAW, an international treaty that human rights’ scholars have dubbed the “International Women’s Bill of Rights”, was actually drafted with the significant input of an American woman, Patricia Hutar. Appointed by the Nixon Administration to lead a bipartisan delegation in Geneva, Hutar as a skilled negotiator was instrumental in convincing several communist countries to approve the text. When the United Nations General Assembly adopted the convention on 18 December 1979, CEDAW became the most comprehensive international agreement addressing women’s rights within political, civil, cultural, economic, and social life.  While US President Jimmy Carter signed the Convention on July 17, 1980, the United States has never ratified it. This marked a shift from the 1970s, when the United States was a leading proponent of women’s rights internationally, with Republicans and Democrats as the two major US parties both supporting a wide array of women’s rights policies, including an Equal Rights Amendment to the U.S. Constitution, publicly funded child care and equal pay for women – none of which have been achieved in the United States some forty years later. 

What changed? For one the American Republican Party, which in the 1980s stopped supporting women’s rights on many levels at home and abroad.  A number of key Republican lawmakers, such as the late Senator Jesse Helms, who from 1995-2001 was Chairman of the Senate Foreign Relations Committee, made it their personal mission to prevent the United States from ratifying CEDAW.

Under the American constitution, while the president has the power to make treaties, the “advice and consent” of the United States Senate is needed before a treaty can be ratified. And it is not enough to have a simple majority of the 100 US Senators in support of a treaty’s ratification; instead a two-thirds supermajority, meaning 67 Senators in favor, are needed.  This has proved an impossible obstacle to overcome in the US legislative body for the past four decades.  As a matter of fact, the effort to secure the US Senate’s support has been stalled at the committee level: the issue of American ratification of CEDAW has never made it past the Senate Foreign Relations Committee, where it has been stuck since 1980.  Over the decades, the Foreign Relations Committee held hearings on the treaty in 1988, 1990, 1994, 2002 and 2010, but only when a Democrat held the chairmanship of the committee. The committee even recommended twice, under the Clinton Administration in 1994 and under the Bush Administration in 2002, that it be ratified. Under the Obama Administration in 2010, an additional effort was made by the Senate Judiciary Committee to move CEDAW ratification finally forward.  However, the full Senate never took the issue up, as the issue became more and more partisan in a political system increasingly polarized between Democrats, advocating for the ratification of CEDAW, and Republicans opposed. And that despite the fact that a poll in 2010, the last time formal hearings were held, found 89 percent of respondents supporting CEDAW ratification then.

Over the years, opponents such as the Home School Legal Defense Association and Concerned Women for America (whose 40th anniversary not accidentally mirrors the treaty’s) have cited a multitude of reasons why the United States should not ratify CEDAW, many of which were countered by its proponents such as Amnesty International or the Leadership Conference on Civil and Human Rights.  The main arguments brought forward against CEDAW ratification by the United States are largely reflective of the increasingly insurmountable political cultural divide between US conservatives and progressives.  Quite a number of them reflect patriarchal “family values” anchored in traditional gender roles for men and women, often using the bible and Christian beliefs as a justification to cement gender stereotypes as “inherent” or of divine and biological origin, thus “natural law”. Consequently, many of those opposing CEDAW feel that it would destroy the traditional family structure in the United States by redefining “family” or that it would undermine the role of parents in child rearing by for example threatening to abolish single-sex schools and requiring gender-neutral textbooks. A core reason for the rejection of CEDAW by these groups also centers on women’s sexuality and reproductive rights, such as the claim that CEDAW supports abortion through its promotion of access to family planning, or that the treaty would require the legalization of prostitution.

Proponents’ efforts in pushing against these narratives and advocating for the ratification of CEDAW focus usually on highlighting the limited impact CEDAW would have in the United States. They point out that CEDAW would not seek to regulate any constitutionally protected interests with respect to family life, that single-sex schools are not prohibited and only educational equality is sought, or reassure skeptics that CEDAW does not address the matter of abortion and that the US State Department has declared CEDAW to be “abortion neutral”.

One core argument by conservatives in opposing CEDAW ratification has been the fear that America’s exceptionalism was threatened by an international treaty such as CEDAW superseding American federal and state laws and thus relinquishing US sovereignty to the international community. The same argument has been also used to oppose the American ratification of other core international  treaties, including several conventions on core human rights, including the International Convention on Economic, Social and Cultural Rights, or the Convention on the Rights of the Child, both of which the United States have likewise signed by not ratified.

Yet, previous US administrations advocating for CEDAW ratification have made clear that the US Constitution remains the “supreme law of the land,” thus clarifying exemptions for how CEDAW would apply to American citizens.  This understanding of US exemptionalism (supporting an international treaty as long as US citizens are exempt from a number of treaty provisions) has already been elaborated in a set of 11 American “reservations, understandings and declarations” (RUDs) approved in 1994 and 2002 by the Senate Foreign Relations Committee. Under CEDAW, a long list of countries have declared such reservations, many of them significant and thus undermining the universality of the treaty’s provision – a core problem of international human rights law.  Many US legal experts feel that these reservations and objections, particularly the one that addresses women’s reproductive freedom, have actually gutted CEDAW and compromised its future implementation in the United States.

It is for this reason that these same voices say the United States is better off not ratifying CEDAW, as non-ratification keeps the discourse about the continued lack of substantial equality between American men and women alive, especially in light of continued political resistance to internalize the anti-discrimination norms exemplified by CEDAW.

As is the case with other international treaties, in which the United States has opted not to participate, some of the real action and implementation force, even without formal CEDAW ratification on the federal level, happens on the sub-national level in counties and cities.  A CEDAW Task Force of almost 200 American organizations, which continue to engage policy makers and the public, have had most success with their campaign Cities for CEDAW in urging local jurisdictions to adopt local measures reflecting CEDAW and other human rights principles. In 1998, San Francisco became the first US city to do so, with new initiatives on domestic violence and family friendly workplaces being developed as a result. Since then, eight other US cities or counties have likewise adopted local CEDAW ordinances, with another 33 local US jurisdictions passing CEDAW resolutions, and another 31 exploring such actions.

While compared to many women around the world American women enjoy greater opportunities and status, few would dispute that 40 years after CEDAW substantive equality of men and women in the political, economic, cultural and civic spheres remains elusive in the United States. More than one in three American women (35.6%) report having experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime, with 85% of US domestic violence victims being female. While women form nearly half of the American workforce, they continue to earn on average only 79 cents for every full-time dollar paid to men, with the wage gap even wider for women of color. The United States also remains the only advanced economy without government-mandated paid maternity leave, without mandatory health care and with a severe lack of affordable child- and elder-care options, further increasing the burden on women that work. Since two new conservative judges have joined the US Supreme Court under the Trump Administration, Roe vs. Wade, the seminal court decision from 1973 securing a woman’s right to have access to abortion, is potentially being put into question, with ever more Republican-controlled states approving measures curtailing women’s access to safe abortions. The US-administration itself has meanwhile stripped federal support for family planning programs, making it harder for women’s health clinics all over the United States to stay afloat and for patients to afford birth control and other women’s reproductive health services.

In this context, the recent establishment of a “Commission on Unalienable Rights” by the State Department, which includes prominent opponents to women’s and LGBTQ rights, has many CEDAW advocates worried. They see this as the latest version of a misguided belief in American exceptionalism and exemptionalism with respect to international human and women’s rights efforts and argue that instead of upholding and protecting internationally recognized definitions of human rights, by setting up this body, the US might redefine them more narrowly as “natural law and natural rights” and legitimize the continued roll-back of gender, reproductive rights and LGBTQ rights at home and abroad.  The ratification of CEDAW by the United States has therefore today, 40 years into its existence, become more elusive than ever. 

Contenido publicado en BOELL

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