Koh Wars: Koh’s Not-So-Great Testimony in Favor of CEDAW

by Julian Ku

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. 

(Emphasis his)

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?


11 Responses

  1. Julian,

    Though since I am not a US scholar I personally really don’t care about the Koh nomination one way or the other, there’s a further point that could be made in his favor.

    Namely, it is true as you say that the interpretations of the various human rights treaty bodies of their respective treaties are not binding. (I am personally unaware of anyone who say that they are). They are certainly endowed with some persuasive authority, and have been treated as such, for instance by the ICJ in the Wall case.

    But more importantly, not everything that a treaty body says in its concluding observations on the reports of states parties is actually a legal interpretation of the text of their treaty. The various expert committees generally wish to promote dialogue with the states parties, and thus refrain from engaging in a ‘violations approach’ to their treaty. They therefore frequently produce recommendations of various kinds, without necessarily implying that the recommended measures are actually required, as a legal matter, by the treaty. In other words, they often give the state party mere policy advice on the issue at hand, that the state party is free to disregard after considering it.

    To my mind at least, most of the CEDAW statements that have been cited by Mr. Whelan in his critique of Mr. Koh are manifestly of this policy nature. For instance, the CEDAW committee ‘recommended’ Mexico to revise its abortion laws; ‘expressed concern’ that the abortion laws in Italy were overly restrictive; ‘urged’ Ireland to engage in ‘national dialogue’ on reproductive rights Ditto re Mothers’ Day or whatever in Belarus.

    Again, these are not legal interpretations of the treaty, which is why it is perfectly fine to ignore them completely when actually interpreting the treaty. From the examples cited by Whelan, the CEDAW committee engaged in only one such legal interpretation regarding abortion, in its report on Colombia, where it considered the Colombian laws which prohibited abortion with no exception whatsoever for situations where the health or life of the mother were in peril, or where the pregnancy was the result of rape, to be a violation of the CEDAW.

  2. Julian —

    What do you make of the fact that, as Whelan notes, within a year of his testimony, Koh was counsel of record on an  amicus brief urging the Supreme Court to rely on (among other things) CEDAW interpretations in Lawrence v. Texas.  If the committee interpretations were relevant to interpreting the U.S. Constitution in that case, wouldn’t the other interpretations be relevant as well?


  3. I’d like to highlight that my post addresses the possibility that Professor Ku raises:
    The second possibility is that Koh regarded the CEDAW committee’s interpretations as so patently insignificant that they weren’t worth mentioning.  The evidence also seems clearly to foreclose that possibility.  When Koh in his law-review article tries (unsuccessfully) to explain away the CEDAW committee’s statement on Belarus and Mother’s Day, he doesn’t argue that the CEDAW committee’s interpretations of CEDAW are entitled to no weight.  Further, in the amicus brief that Koh submitted as counsel of record in the Supreme Court in Lawrence v. Texas in January 2003 (a mere seven months after his testimony before the Senate Foreign Relations Committee), Koh emphasized the interpretive authority of the CEDAW committee in support of his argument that “five of the six major U.N. human rights treaties have been interpreted by their respective supervisory organs to cover sexual orientation discrimination.” (Brief at 24-25 (emphasis added).)  He cites two of the CEDAW committee’s “Concluding Observations” in support of that proposition, (Brief at 25 n. 49), and his brief cites five other “Concluding Observations” of other treaty committees.  Further, such interpretations are a critical part of the “transnational legal process” that Koh urges “American lawyers, scholars, and activists” to “make better use of”:  “Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.”  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1502 (2003) (emphasis in original).)

  4. If you think that Koh’s acknowledgment of the existence of CEDAW poses some kind of threat to our way of life, then perhaps you should be worried.  Personally, I’m a lot more worried about executive branch nominees who don’t know that waterboarding is torture than I am about one who might tacitly condemn Mothers Day. 

  5. One other observation:  The CEDAW committee’s Concluding Observations that Harold Koh cited in his Lawrence v. Texas amicus brief in support of the proposition that “five of the six major U.N. human rights treaties have been interpreted by their respective supervisory organs to cover sexual orientation discrimination” stated (in the case of Kyrgyzstan) that the “Committee recommends that lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished” and (in the case of Sweden) that the “Committee commends the Government for passing legislation that provides residence permits to individuals who have a well-founded fear of persecution on the basis of sexual orientation or gender, particularly in cases that involve discrimination against women.” 
    In other words—in response to the point made by Mr. Milanovic in the first comment—Koh himself treated as interpretations the same sort of Concluding Observations that he declined to call to the attention of the Senate Foreign Relations Committee in his testimony.  Further, any such recommendations will presumably reflect the CEDAW committee’s broader vision of what CEDAW means.

  6. This is all so dispiriting. Okay, per Julian, is this “a sharp and potentially serious blow,” legitimately “attacking Koh’s integrity” – “not Koh’s best moment,” and something that reflects in some way on how Koh would advise the Secretary and the Senate if confirmed as Legal Adviser?
    I don’t want to debate the advisability of ratifying CEDAW, because that issue isn’t being joined; instead, this is being put in terms of character and fitness for office.  Focusing on the testimony, for sake of convenience, the issues being posed are (1) whether Koh was being forthright and (2) whether Ed Whelan deserves credit for raising questions on that score.

    I would say “yes” and “decidedly not.” It’s bizarre to claim that Koh’s omission from his prepared testimony of facts that are not inconsistent with that testimony (as Marko observes) shows a lack of forthrightness. It’s almost more bizarre to suggest that the disclosure and forthrightness are to be judged solely based on Koh’s prepared testimony, as though the Senate hearing consisted solely of a PDF over which the Committee stumbled.

    To my understanding, the way hearings work is that various people show up, listen to each other (ideally), say things (sometimes, if one’s lucky, designed to address different topics, so as to make the exercise marginally less boring), and then they get questioned if they’re lucky — since that allows them to extend their air time. Perhaps unsurprisingly, that’s how it worked for Dean Koh. On the day he shows up, witnesses testifying before him had already talked about the CEDAW Committee and its various evils; Senator Boxer, for her part, explained that nothing the Committee does is legally compelling. Eventually Koh participated, more or less read his testimony under time pressure (his light indeed went off), and indicated that he would be happy to address other issues or take questions. Later, given the chance, he actually did address the issue of the CEDAW Committee’s role and why it didn’t alter his analysis. This is all pretty apparent on the face of the hearing print, which is publicly available (for the HTML version, see http://frwebgate5.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=746339366184+0+1+0&WAISaction=retrieve). 

    So is it “logically compelled” that Koh was being less than forthright with the Senate?  Here’s a rival hypothesis: Koh elected not to address every issue, for the simple reason that he would not have permitted to do so anyway; no one on the Committee could possibly have been hoodwinked, since anyone paying attention had heard Representative Davis, among others, trot out the Committee’s dirty laundry, and it was as inevitable as death and taxes that those opposing the treaty would bring it all to the Senate’s attention; and Koh made a reasonable decision to focus on what the treaty actually required and to address, given the chance, questions about the Committee. Just a guess, admittedly. I have yet to develop a hypothesis as to why the actual hearing hasn’t been part of the discussion, or why we think this reflects somehow on how he would likely perform his functions as Legal Adviser, but my suspicion is that it’s a clever way of converting a substantive disagreement into what appears to be an ethical one.

  7. Ed,

    Your point is well taken that the testimony should be construed in light of the whole hearing.  And that the CEDAW committee’s views had definitely been aired at the hearing, so it is understandable that Koh did not address the issue in his comments.  I think you rightly make the point that, in light of the overall hearing, there is no chance Koh is thinking he can mislead the Senate by ignoring the CEDAW committee.  So I withdraw any implication that I agree with Whelan’s claim that Koh was deliberately misleading the Senate.

    At the same time, though, wouldn’t you agree that Koh was a bit sloppy in his analysis by not rebutting the CEDAW committee in his prepared comments (or in his later law review article)?  Given the importance he himself places on these types of committees in his scholarship and, as Ed Whelan points out, in his amicus brief in Lawrence, it is odd that he didn’t explain why their views don’t matter here since he does devote lots of his written testimony to flatly rejecting the various claims about CEDAW, all of which flow from the CEDAW Committee reports.  As an advocate, I totally understand why he approached it the way he did.  But he was not being precisely just an advocate here, he was also drawing on his credibility as an expert in human rights treaties and in human rights law in general.  So wouldn’t it have been more complete, fairer testimony if he had included an explanation of the status of the CEDAW Committee in his written testimony? He had plenty of room since he devotes substantial time in his prepared testimony to dismissing CEDAW “fallacies.”  Sen. Boxer’s brief statement barely addressed the issue, and indeed, her statement seem a bit confused in claiming that CEDAW could never override federal statutes. 

    So while I withdraw an implication in my post that Koh was really trying to mislead the committee, I still think the testimony was not Koh’s best moment.  The CEDAW committee’s reports lie at the heart of the objections to the convention and Koh himself believes those reports (or at least some parts of those reports) should have some persuasive force in domestic interpretations of CEDAW.  So they can’t really be that easily dismissed as mere preposterous fallacies, the way his written testimony does, even if their reports don’t have tremendous interpretive importance.   As Legal Advisor, as you know better than i do, his assessment of the likely interpretive effects of treaties like CEDAW will have some weight. 

  8. The link above to Harold Koh’s answers to hearing questions on CEDAW was a dead link, so I am going to try to re-post the link here.

    Hopefully this is the transcript Ed Swaine is referring to, because it’s a bit messy to read.

    On the CEDAW Committee specifically, Koh states the following in response to Sen. Biden:

    “I want to say something about the CEDAW committee, because I am, I think, the only person here who has actually appeared before one of these treaty committees. The concerns that are being expressed about these treaty committees were also expressed about the treaty committee for the Torture Convention, the treaty committee for the Race Discrimination Convention, and the treaty committee for the Covenant on Civil and Political Rights. In each case, it was argued that somehow they would take over our sovereignty.

    In fact, particularly once U.S. experts were put on those
    committees, those committees have done a good job. I have
    actually appeared before one and submitted the U.S. report to
    the other. It has been a very valuable exercise for the U.S.
    Government in demonstrating exactly how much we have done to meet international standards. So, I think the suggestion that somehow these committees are going to run wild and invade our sovereignty, when in fact we have various ways of ensuring that our National interests are protected, and when in fact our own practices are so fully compliant with most of the treaty provisions already, just rebuts the criticism that is being made here.”

    Dean Koh also mentions the CEDAW committee specifically in response to Senator Brownback again later in the hearing.

  9. I admittedly have not gone through and read all that Dean Koh has written on the CEDAW Committee or other human rights committees, but I would be surprised if anywhere he says that the US is bound as a matter of law by the interpretation by any of these committees.  Even in those cases where states open themselves up to individual petitions under the committee process, by their terms the decisions are not binding.  Rather, their force is derived from their persuasive power.  There is a decidedly disturbing thread in this debate about Dean Koh (and I mean the wider debate, not necessarily the debate here on Opinio Iuris) that looking to the opinions of individuals or bodies outside the US is somehow a threat to our sovereignty.  Judges (and other members of the government) do, and should, look at a wide variety of opinions in order to hone their own opinions.  Some opinions of foreign individuals and and institutions are faulty, and some are persuasive — just as opinions expressed by law professors, economists, scientists, and a multitude of other professions vary in their quality — and of course we will not always agree on which ones are well founded and which aren’t.  The point is that at the end of the day it is a US judge making the decision — or a US President, in the case of the executive branch.  This seems like a lot of smoke with very little fire. 

  10. Julian:  I find Ed Swaine’s defense of Koh’s testimony to be unpersuasive, for reasons that I hope to have time to elaborate later today.

  11. Julian: 
    Ed Swaine finds it “bizarre to suggest that [Koh’s] disclosure and forthrightness are to be judged solely based on Koh’s prepared testimony.”  As you put it (in your initial comment responding to Swaine), Swaine thinks that Koh’s submitted testimony “should be construed in light of the whole hearing.” 
    Swaine is confusing the question whether Koh’s testimony was forthright with the distinct question whether Koh actually expected that his testimony would deceive the Senate Foreign Relations Committee.  By analogy, under Swaine’s logic, it would be a defense to a charge of perjury (rather than a bad joke) for the alleged perjurer to show that he knew or believed that the testimony of others would clearly discredit his false statement.
    Swaine’s defense also fails on the facts.  Yes, a hypothetical attentive observer of the entire hearing would have reason to regard various of Koh’s assertions as not trustworthy.  But beyond the fact that real senators and staffers flit in and out of hearings, the hearing hardly succeeded in dispelling the confusion that Koh’s material omissions caused. 
    I also see nothing in Koh’s oral testimony that redeems the defects in his written testimony.  Swaine contends that Koh “actually did address the issue of the CEDAW Committee’s role and why it didn’t alter his analysis.”  Perhaps I’m somehow missing it, but although Koh does make a couple comments about the CEDAW committee, I see nothing along the line that Swaine suggests.
    You are right, Julian, that by failing to explain the status of the CEDAW committee (and to address its various statements that cut against his assertions) in his written testimony, Koh didn’t live up to the role that one would expect from an academic expert.  But Koh’s failing was worse than being an advocate.  He provided the sort of advocacy that helps earn a lawyer a reputation as a shyster.

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