Voices Online Edition -- Vol. XXII, No. 1
Compliance with Human Rights or Compliance with an Ideology?
Why the US should not sign the UN Convention for the Elimination of all Discrimination Against Women
by Rita Joseph
The United States has been slammed in recent years as a bad citizen of the world’s community of nations for its refusal to sign on to the Kyoto Protocol on Global Warming and to the Draft Protocol on the Biological Weapons Convention. The most strident criticisms are directed at the refusal to date to sign the UN Convention for the Elimination of all Discrimination Against Women (CEDAW). But US refusals may be more a matter of wily self-preservation than of isolationist recalcitrance.
Perhaps the Americans understand better than anyone else the possibilities of the language of treaties. Perhaps they understand the likelihood, even the inevitability, of finding that ten years down the track the treaties signed today will be reinterpreted by UN treaty-monitoring committees.
Ironically, the US finds itself in this situation precisely because it takes its international treaty obligations seriously. Countries like Zaire and China, on the other hand, sign on to everything, with no intention of complying where it doesn’t suit them.
Because the US is the most litigious society in the world as well as the richest and most transparent, it is always the first to recognize the legal and economic implications of any new UN proposals.
Let me give some examples of ongoing disputes that dog the US delegation at the UN. Does Zionism constitute a form of racism? And are countries obliged to pay compensation to the descendants of past victims of discrimination, such as to African-Americans for crimes of slavery? The US is awake to the immense consequences such proposals would entail.
Similarly, the US, fearful of the prospect of espionage and theft of intellectual property, has declined to submit to UN inspections of its biological weapons facilities. The US also balked at the financial penalties proposed for non-compliance with Kyoto benchmarks, and rejected the Rome Statute establishing the new International Criminal Court. The US is loath to have its soldiers tried before a possibly hostile “foreign” court endowed with immense discretionary power.
Distorting universal principles with ideology
My own experience of many UN meetings is that consensus documents are never reached easily -- there is no such thing as a laid-back, laissez-faire treaty-making process. On the contrary, the wording of treaty and convention documents is always painstakingly negotiated. The intention is to reach universal agreement for what are understood to be universal principles.
Real problems arise, however, when committees, exceeding their mandate, try to invent and enforce additional new obligations they claim to be able to read into the original treaty. Some international lawyers favor such “creative new interpretations”. But other jurists have cautioned UN committees against too broad an interpretation of treaties. Australian Herbert Golsong, for example, slams expansive readings as acts “of usurpation of overreaching power” beyond the confines of the Vienna Convention on the Law of Treaties (1969).
Article 31 of the Vienna Convention provides that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty…”
The UN CEDAW Committee, which monitors the elimination of discrimination against women, has made an art form of extrapolating dubious new obligations from those already recognized. Examples:
• The Committee has interpreted an innocuous agreement (Article 12 CEDAW) that provides women with health care and adequate nutrition during pregnancy and lactation as requiring Croatia and Italy to override the conscientious objections of doctors who do not want to perform abortions;
• The Committee reprimanded Belarus for celebrating Mothers’ Day, declaring that it was in breach of the Convention because it encouraged women’s traditional roles;
• The Committee recommended to Kyrgyzstan “that lesbianism be reconceptualized as a sexual orientation”;
• The Committee condemned China for “perpetuating the identification of women with children” by naming the central policy-making bureau “The National Working Committee on Women and Children”. China was also chastised for labor laws that “overemphasize the protection of women”;
• The CEDAW Committee directed China to increase the number of men’s vasectomies to achieve numerical equality with women’s tubal ligations.
Such ideological pedantry is a ludicrous and cruel response to the terrible reality of many women in China today. Forced sterilization and abortion, as well as torture and imprisonment for religious and political beliefs, are some of the atrocities routinely perpetrated against Chinese women.
No UN reform no US signature
Increasingly radical pronouncements by UN committees are bringing the treaty-monitoring system into disrepute, and dissipating the international respect initially earned. Is it any wonder that countries such as the US might approach signing more treaties with some skepticism?
Certainly the United States would be wise not to sign on to the UN Convention for the Elimination of all Discrimination Against Women until the UN treaty-monitoring committee system is reformed. The committees are exceeding their original mandate. They are now reinterpreting articles in treaties that the UN members signed up to 40 years ago, and are trying to impose on member countries these ideologically driven reinterpretations of what was originally agreed.
The treaty committees, for example, are now imposing a single “gender perspective” on all provisions. They have embraced “gender mainstreaming” -- the ethically dubious feminist tool for political indoctrination that asserts that all human rights are relative, culturally constructed, and in need of reinterpretation over time.
This constitutes a disturbing move, away from the timeless and truly universal human rights of the original UN Universal Declaration toward non-universal pseudo-human rights defined by a particular ideology.
For example, the CEDAW (women’s rights) Committee recently condemned Italy for allowing doctors to claim conscientious objection when refusing to perform abortions. Yet the irony is that the right to conscientious objection is one of the most fundamental human rights originally recognized by the UN. A universally agreed right to legal protection for the child before as well as after birth (1959) also preceded the contemporary bias of this CEDAW Committee toward legalizing abortion.
UN Committees need reform
In short, US citizens must not be deceived into believing that every human rights treaty committee opinion is Holy Writ. These committees have considerable limitations, which include:
1. Too many members of these committees, particularly nominees from poorer countries, have been nominated as a reward for services rendered -- like a pension, or an honorarium, as one Human Rights Commissioner, senior UN adviser, and Harvard Professor Shahid Husain, once told me in Geneva.
2. Scrutiny of the official transcripts of the Treaty Committee meetings reveal some appalling standards of logic and rational debate. For example, in February 1999, when Columbia was still reeling from a disastrous earthquake that came on top of prolonged internal war and endemic drug-trafficking, one CEDAW Committee noted that the budget allocation to the National Office of Equity for women was only 1 million pesos. Is that sufficient, she asked, to meet the needs and interests of women? Another expert demanded to know what specific obstacles were impeding the passage of five bills for establishing quotas for women in Congress! Yet another expert declared that unlike in dealing with natural disasters, with abortion, it is very clear that what the government has to do is to decriminalize it so women can enjoy their rights to life and health. (No mention, mind, of safe water supplies, urgent sanitation needs, adequate basic medicine and food for women.)
3. The committees continue to be dominated by ideologues with the zeal of Australia’s Elizabeth Evatt, who for many years put her own radical feminist stamp on the Human Rights Committee’s consideration of abortion “rights”, lesbian “rights” and sexual autonomy “rights” for adolescents.
Legitimate national sovereignty threatened by treaty bodies exceeding their mandate
The national sovereignty concept was designed to provide checks and balances on the power of the UN to impose such anomalies. There can be no denying that states such as China, Burma and North Korea have often abused the privileges of national sovereignty to cover up substantial human rights violations. However, in response to UN committees who insist it is time for countries to give up some of their sovereignty, the late Jeane Kirkpatrick, former US Ambassador to the UN, warned that the UN Charter was planned and constructed by clear-headed realists who understood that a guarantee of the sovereignty of nations is absolutely essential to make the UN work.
The UN International Bill of Rights affirms that human rights are to be both universally recognized and universally applied. This was the triumph of the original Universal Declaration: that sovereign states reached agreement freely and responsibly. Yet today, the majority of States’ parties, recognizing that adolescents, by virtue of their immaturity, have a prior right to be protected from premature sexual initiation and from exploitation, are resisting deliberately misleading assertions by UN bodies -- such as that “the sexual and reproductive rights of adolescents are the same as those of adults”.
Furthermore, most countries reject the idea that special protection and support for families, as proclaimed in the Universal Declaration, should now be condemned by UN committees as discriminatory toward homosexuals.
Strategies -- and counter-strategies
Among the UN Secretariat’s strategies for imposing new rights are the following:
1. To use the machinery of the UN Treaty Monitoring Bodies to reinterpret treaties that national governments have already ratified in such a way as to make the new ideologically determined “human rights” part of the domestic law of each ratifying nation;
2. In the case of a federal system like the United States, to use the central government’s foreign affairs power to override the legislation of the various States;
3. To use the Supreme Court to enforce the authority of the central government over any challenge by a state government;
4. To introduce dubious new international human rights into domestic law through the back door -- i.e., through “judicial activism”: progressive introduction of these “rights” by national judiciaries, thus bypassing regular -- and more accountable -- democratic law-making processes through elected legislatures. (At the Implementing Human Rights Conference, at Australian National University, in December 1997, Australian High Court Justice Michael Kirby sketched out just such a scenario for judicial activism on controversial women’s rights.)
In view of the threat to genuine democracy, social prudence would seem to require that the position of the United States concerning the UN proposals should be based on four propositions:
First: The US is prepared to discuss any and every criticism and proposal put forward by the UN Human Rights Treaty Monitoring Bodies;
Second: The US will enact those proposals that its citizens believe deserve support or redress, and oppose those with which they disagree;
Third: The US will pursue issues raised by the UN treaty-monitoring bodies exclusively through their own domestic political processes, and recognize only the jurisdiction of their own constitutional bodies;
Fourth: The US will regard any reinterpretation by the UN treaty-monitoring bodies (of particular articles of human rights instruments that the US has ratified) as discussion papers, but never as a source of international law, binding on the domestic jurisdiction of their national government.
On a lighter note, let me tell you of one Australian encounter before the UN CEDAW Committee in July 1997. On the strength of an outrageously biased shadow report, Australia came in for some peculiar criticisms. (The report was largely the work of the Women’s Electoral Lobby, a feminist political organization, and soured, I suspect, by the fact that Australian Prime Minister John Howard had just discontinued the annual $50,000 hand-out to this radical feminist cause made by his predecessor, Paul Keating.) The CEDAW Committee was “deeply concerned” that single women and lesbian couples in Australia were being “denied” their human right to have children through IVF (in vitro fertilization). Bingo! One more, spanking brand new, instant human right! And then came the bitter complaint to that same committee by a privileged few disgruntled women’s groups that Australia’s sex-discrimination laws contain an exemption for competitive sports!
Unreformed CEDAW Committee a mockery of genuine human rights
But there is, of course, a serious side to all this. It is a mockery of genuine human rights discourse that UN committees waste valuable time and resources dealing with vexatious complaints from pampered, highly articulate, well-financed women trying to embarrass their governments and to enforce policies summarily from on high, rather than through the tedious democratic process of convincing the electorate of the need for change.
Meanwhile, there are terrible atrocities being perpetrated against women around the world -- and the UN and its treaty-monitoring bodies seem powerless to redress them.
I am thinking especially here of one particular conversation I had at the UN in New York with a UNICEF official who had just returned from a long stint in a refugee camp in central Africa. With tears in her eyes, she told of the powerlessness with which her team had had to watch as the food and medicine they distributed to women and children were obediently handed over to a militant group who terrorized the camp, sold the confiscated food and medicine, and used the money to buy guns and ammunition to re-arm for their next sortie.
Nor can I ever forget the anguish of my young Algerian friend, Amira Masdoua, as she recounted to me the terrible herding of a group of women and girls for a forced march into slavery.
And I am haunted also by Dr. Margaret Ogola’s accounts of desperate Kenyan mothers making final heroic journeys to bring their babies and toddlers to her Cottolengo Hospice for HIV-Positive Orphans.
There are so many stories I have heard -- stories of real tragedy for women from Burma, China, Tibet, Indonesia, Nigeria, Vietnam, Ethiopia -- accounts of cruelty and injustice and helplessness beyond anything that the vast majority of American women could even begin to understand.
In the face of so many intractable problems, tweaking the hair of a benign US government who has given its head for washing into the incompetent hands of the UN CEDAW Committee, may, I suppose, provide a little light relief.
Perhaps it may even foster for just a little longer the cherished illusion that the UN is doing something really useful.
Rita Joseph has represented family concerns at UN conferences, and writes and lectures on social issues especially concerning women and families, and has made a special study of the Holy Father's writings on family and on women. She has previously lectured at the John Paul II Institute for Marriage and Family Studies in Melbourne. Rita and her husband live in Canberra, Australia.
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