Koh Wars: Koh’s Not-So-Great Testimony in Favor of CEDAW
Ed Whelan’s latest post on Koh’s nomination to be Legal Advisor lands a sharp and potentially serious blow. Reviewing Koh’s writings and his testimony to the Senate in favor of Convention on the Elimination of Discrimination Against Women, Whelan argues that Koh’s testimony deliberately omitted discussion of important interpretations of CEDAW by the Committee on the Elimination of Discrimination Against Women:
The only remaining possible explanation that I can see for Koh’s failure in his Senate Foreign Relations Committee testimony to address the CEDAW committee’s interpretations of CEDAW is that Koh deliberately chose not to be—let’s put the matter as delicately as possible—forthright with the members of the committee and the public generally. Given the exclusion of the first two possibilities, that explanation would seem logically compelled.
Yikes! Is Whelan attacking Koh’s integrity? It sure sounds like it. But is it fair?
I agree with Whelan that CEDAW, if it is ratified and given self-executing status, could have a larger impact on domestic U.S. law than Koh suggests in his testimony. But I don’t think Koh’s omission of the Committee’s interpretation is necessarily misleading. The Committee is created under Article 17 of CEDAW “[f]or the purpose of considering the progress made in the implementation of the present Convention….” Its interpretations of the Convention have no binding force (although some folks have tried to argue that they should). Nor does it have any power other than to issue reports to the UN Economic and Social Council. So I think it is understandable for Koh to focus his testimony on the text of the treaty, rather than on the committee’s interpretations of the treaty. And the substance of Koh’s testimony is accurate: the text of the treaty is neutral on abortion, negative on prostitution, and silent on Mother’s Day. And I really think Koh, in good faith, believes that the treaty will have very little effect on these issues.
Of course, it would have been better testimony if Koh had acknowledged and rebutted the CEDAW committee’s reports, since it would have given a clearer picture of how the Convention is being implemented overseas and of the range of possible interpretations. My own guess is that Koh didn’t include that stuff because he was not engaged in scholarship, he was engaged in advocacy when he testified before the Senate. The parts that Whelan zeroes in on sounds a lot like the ABA’s Section on Individual Rights’ talking points for supporters of CEDAW. Koh was plainly in advocacy mode, not scholarship mode.
Still, given that one of the most important jobs of the Legal Advisor is to review the legal implications of treaties like CEDAW and to advise the Secretary and Senate about them, one (fervently) hopes Koh will take a different approach as the Legal Advisor. This testimony was not Koh’s best moment. Whelan deserves credit for raising questions about it. Will Koh or his defenders respond?