Introduction
The reservations to human rights treaties by States are rampant, even more so in human rights treaties that focus on women’s rights. The issue is the legitimacy of these reservations under Public International Law and specifically the Law of Treaties. This article will address this issue briefly.
Meaning of Reservations
A reservation is defined by Article 2 (d) of the Vienna Convention on the Law of Treaties (VCLT) as:
“a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”.
The above definition has five basic elements. The first element is the “unilateral statement”. This element indicates that reservation is made unilaterally as opposed to bilaterally or multilaterally. The second element is “by a State” and clearly indicates the author of the reservation, which is the State. This is not to say that international organisations cannot make reservations about treaties if they are parties to a treaty. However, this indicates the scope of this particular convention. The third element of the definition indicates the time a reservation can be made. According to the above definition, a reservation can be made during the signing, ratifying, accepting, approving or acceding to a treaty. This means reservations cannot be made at any time but rather at the pre indicated times. The fourth and most important element of the definition indicates the effect of reservations: the exclusion or modification of the legal effect of certain provisions of a treaty. So, reservations affect the selected provisions of the treaty by rendering them inapplicable or modifying their application. Finally, as can be noted by the fifth and final
The Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations governs the issue of International Organisers as parties to treaties including the matter of reservation.
element of the definition, the effect of reservations is only applicable to the State that made the application. This means the exclusion or modification of a certain provision does not apply to all State Parties but just the State that made the unilateral statement.
Legal Regime or the Rules on Reservations to Treaties
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- General
Under Public International Law, the basic law governing treaties throughout their life cycle is the Vienna Convention on the Law of Treaties. This treaty regulates reservations to treaties in a detailed manner, including which reservations are allowed and prohibited, the procedure on how to make reservations, the acceptance of and objection to reservations (and the legal effects thereof) and withdrawal of reservations.
According to Article 19 of the Convention, a reservation is generally allowed unless the particular treaty prohibits it. The treaty indicates that only specified reservations, not including the reservation made, can be made, or it is incompatible with the object and purpose of the treaty.
Although the first two criteria above are clear, there is a need to clarify the third criterion, “incompatibility with the object and purpose of the treaty”. The questions that must be asked here are “when is a reservation deemed to be incompatible with the object and purpose of a treaty?” and “how do we discover or determine the object and purpose of a treaty?”. The International Law Commission shed some light on these issues in a document it adopted in 2011 titled “Guide to Practice on Reservations to Treaties”. According to this guide, a reservation is said to be incompatible with the object and purpose of a treaty if it has an effect on or affects the essential elements of a treaty which is necessary to its general concept in a way that it hinders the reason for the existence of the treaty. The guide also answers the second question and indicates that the object and purpose of a treaty can be discovered by taking into account the terms of the treaty within the context and the title and preamble of the treaty in good faith. In addition, if one is unable to discover the object and purpose in this manner, the preparatory work of the treaty, the circumstances of its conclusion, and at times the subsequent practice of the parties can be analysed to make the discovery.
The next issue that needs to be addressed regarding reservations is the effect of reservations which may be considered to be prohibited as they qualify within one of the criteria above. States may object to a reservation that a treaty has not been expressly authorised. Unless the objecting State clearly opposes the entry into force between it and the reserving State, the objection results in the inapplicability of the provisions to which the reservation relates between the States (International Law Commission, 2011). This means that there is no automatic effect if a State has made a reservation deemed to be against the treaty’s object and purpose or prohibited by the treaty and rather depends on the actions of the other State Parties. Additionally, even if States register their objections, the effect regarding entry into force or exclusion of the provisions would be between the objecting and reserving State only.
- Human Rights Treaties
In addition to the above rules regarding reservations to treaties in general, the Human Rights Committee has, in response to the multitude of reservations made to the International Covenant on Civil and Political Rights (ICCPR), recommended the applicability of other rules regarding human rights treaties. It did this in General Comment No. 24. According to this comment, the effect of an unacceptable reservation to a human rights treaty (in particular the ICCPR) is different from such reservations being made to other non- human rights treaties. In this case, the effect is such that the reservation will be null and the treaty will be fully applicable to the reserving State without taking into account the reservation (Human Rights Committee, 1994).
The Committee also indicated that as a result of the special character of human rights treaties, determination of the compatibility of a reservation with the object and purpose of a treaty must be established objectively taking into account legal principles (Human Rights Committee, 1994). In the case of the ICCPR, the task of making this determination was left to the treaty body for the treaty i.e. the Committee.
Despite the headway the above general comment seems to have made, it is highly controversial. It has raised issues regarding its indication, powers of the Committee and other monitoring organs as well as the applicability of differing rules to Human Rights Treaties as opposed to other treaties (Shaw, 2008). In fact, the International Law Commission has reasserted the applicability of the VCLT to all treaties alike including human rights treaties (Shaw, 2008).
State Reservations to Women’s Rights Treaties and their Legitimacy
There are many reservations made by States to human rights treaties and human rights treaties focusing on the rights of women. Although reservations are not problematic by their nature, they become problematic when they are against the above-discussed rules on the reservation, which is the case for many of these reservations (Shaw, 2008). It is to be noted that only a small number of States have withdrawn these illegitimate or invalid reservations (Akstiniene, 2013).
In order to hold a substantive discussion of this issue, the reservations to the Convention on the Elimination of Discrimination against Women (CEDAW) and their legitimacy will be assessed.
- The Case of CEDAW
The CEDAW is a treaty with one of the highest number of reservations in the UN human rights system (Akstiniene, 2013). As a result of the high number of reservations, the CEDAW Committee has provided a statement on reservations, in which it indicated that a reservation shows the unwillingness of a State to comply with accepted human rights norms (CEDAW, 1998).
According to Article 28 of the CEDAW, a reservation that is incompatible with the object and purpose of the convention is not allowed. However, despite this provision, as well as the rule under the VCLT, many States have made reservations, which can be deemed to be against the object and purpose of the CEDAW.
Many State Parties have made reservations to Article 2 of the CEDAW either in its entirety or certain sub provisions (UN, 2006). Article 2 of the CEDAW condemns discrimination against women in all forms and requires State Parties to undertake various measures to ensure the elimination of discrimination against women. As it can be understood from the title of the convention as well as the reading of the convention, the object and purpose of the treaty is to eliminate all forms of discrimination against women. In this regard, this provision is one of the core provisions of the Convention aimed at eliminating discrimination against women. As such,
UN CEDAW (1998), “Statements on Reservations to the Convention on the Elimination of All Forms of Discrimination against Women adopted by the Committee on the Elimination of Discrimination against Women” in “Report of the Committee on the Elimination of Discrimination against Women”, Eighteenth and Ninteenth sessions, General Assembly Official Records, A/53/38/Rev.1.
it is clear that reservations to this provision that affect its effectiveness are against the object and purpose of the convention.
Another common reservation to the CEDAW relates to Article 16 of the convention (UN, 2006). Article 16 of the convention requires State Parties to take measures to eliminate discrimination against women in matters relating to marriage and family relations. Reservations to this provision can also be said to be against the object and purpose of the convention. This can be seen from the overall goal of the convention i.e. elimination of all forms of discrimination against women discussed above. Additionally, the preamble of the convention specifically addressing this issue indicates the need to change the traditional role of men and women in the family in order to ensure full equality between men and women (CEDAW, 1979).
The Committee on the CEDAW has also reflected the above view in reaction to the reservations. It has indicated that Article 2 and Article 16 are core provisions of the Convention and the reservations to these provisions are impermissible and has called on States to either modify or withdraw their reservations (UN Women, n.d).
However, despite the illegitimacy or impermissibility of the reservations to the convention, as well as the statements of the Committee on CEDAW, there have only been a few withdrawals of reservations to these core provisions (UN Women, n.d).
Conclusion
Reservations to human rights treaties, including those with a focus on the rights of women, are high. Among these reservations, a multitude of these reservations go against the rules on reservation indicated under the VCLT, as well as the particular treaties themselves. Despite their impermissibility or illegitimacy, these reservations have not been withdrawn by States and continue to be in effect. This poses an obstacle in the international fight to ensure the respect for human rights in general and ensure equality and eliminate discrimination against women around the world. As such, there is a need to campaign for the withdrawal of such reservations by States.
Bibliography
Akstiniene, A. (2013). “Reservations to Human Rights Treaties: Problematic Aspects Related to Gender Issues”. Jurisprudence, Vol. 20, No. 2.
Convention on the Elimination of All forms of Discrimination against Women, 1979.
Human Rights Committee. (1994). CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, Fifty- Second Session of the Human Rights Committee, CCPR/C/21/Rev.1/Add.6.
International Law Commission. (2011). Guide to Practice on Reservations to Treaties, Sixty- Third Session of the International Law Commission.
Shaw, M. (2008). “International Law”, Sixth Edition, Cambridge.
- (2006, April 10). “Declarations, reservations, objections and notifications of withdrawal of reservations relating to the Convention on the Elimination of All Forms of Discrimination against Women”. Fourteenth Meeting of States Parties to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/SP/2006/2.
UN CEDAW (1998). “Statements on Reservations to the Convention on the Elimination of All Forms of Discrimination against Women adopted by the Committee on the Elimination of Discrimination against Women” in Report of the Committee on the Elimination of Discrimination against Women, Eighteenth and Ninteenth sessions, General Assembly Official Records, A/53/38/Rev.1.
UN Women. (n.d). “Reservations to CEDAW”. Retrieved on April 23, 2022 from https://www.un.org/womenwatch/daw/cedaw/reservations.htm?msclkid=0c7ad9b7c4a811ec8240534dfa733350
Vienna Convention on the Law of Treaties, 1969.
