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Hastings Law Journal

Abstract

This Article examines cultural arguments made in opposition to the ratification by the United States of the Convention on the Elimination of Discrimination Against Women (CEDAW). The failure of the United States to ratify CEDAW has been conventionally understood as grounded in concerns that the Convention is incompatible with U.S. constitutionalism- particularly notions of federalism and limited government. However, as this Article demonstrates, opponents of CEDAW who testified during the ratification debate grounded their objections explicitly in terms of culture and traditional gender roles. In particular, CEDAW opponents expressed fear that ratification would disrupt traditional cultural understandings of women's role in the family and in society.

By veiling traditional cultural understandings of women behind the lofty claim of constitutionalism, the United States has largely been able to avoid serious international criticism of its failure to ratify CEDAW. By contrast, countries that have more explicitly relied on cultural or religious objections to women's human rights in their reservations to CEDAW have attracted significant international criticism.

Powell argues that understanding how constitutional objections in the United States have masked cultural assumptions about women is particularly urgent in light of renewed attention to women's human rights and constitutionalism in the context of new constitutional frameworks in Afghanistan and Iraq. The Article discusses the value of identifying cultural objections to CEDAW in the United States as a means of moving beyond the corrosive culture clash view of the West/Rest dichotomy.

The Article also points to the need for criticism and revision of the international human rights framework to realize process-oriented principles concerning transparency and women's participation in the making, implementation and interpretation of international treaties. By drawing on feminist readings of John Rawls's work, the Article suggests how new, more participatory modes of deliberation over human rights treaty norms could facilitate the involvement of disenfranchised groups-such as women-in debates over treaty norms.

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