46
2)
reservations couched in general terms “often directed to ensuring
the continued paramountcy of certain domestic legal provisions;
and
3)
reservations affecting the competence of the Human Rights
Committee.
171
A relatively recent and controversial example of reservations falling within each of
these three categories are the five
reservations, five understandings and three
declarations made by the United States upon ratification
of the Covenant in June
1992.
172
Redgwell quotes Shelton, who foresaw a number of objections to the
U.S. reservations, “[…] because the Covenants are deemed to constitute
minimum standards of state conduct toward individuals and groups […]”.
173
There have been objections; by the end of December 1993 there were objections
made by 11 other state parties, but none of them were made within the 12 months
of communication of the U.S. reservations, i.e. the time limit in VCLT.
174
Article
20(5) VCLT stipulates that if a state has not indicated its objection to a
reservation within 12 months of the notification of it, then it is considered to have
accepted the reservation. The 12 months start running when the state parties are
notified by the depositary of receipt of communications relating to the treaty.
175
The U.S. explanation for attaching conditions to the ratification was to make
reservations wherever incompatibilities between the Covenant(s) and domestic
law were found. The Human Rights Committee, as well as a couple individual
state
parties of the Covenant, was critical of the U.S.’s approach. One of the
objecting state parties was Sweden, who lodged a very strongly worded
objection, which stated,
inter alia
, “Reservations of this nature contribute to
undermining the basis of international treaty law.”
176
As indicated, one of the
explicit rationales for the U.S. reservations was to ensure the continued
paramountcy
of certain domestic provisions, where these differ from the
Covenant. This is exactly one of the Committee’s three points that it fears will
impair the implementation of a human rights treaty (see above). It is perhaps not
necessary to stress that the very purpose of becoming a state party to the
standard setting human rights treaties is to ensure a higher standard or protection
than the state offered previous to such signing and ratification.
171
G.C. 24(52), para.1.
172
Redgwell, pp. 394-397.
173
Redgwell, p. 394
(
quoting D. Shelton in
“Issues Raised by the United States
Reservations, Understandings and Declarations”
in H. Hannum & D. Fischer (eds)
U.S.
Ratification of the International Covenants on Human Rights (
1993
)
).
174
Redgwell, p. 406.
175
See article 78(c) VCLT.
176
Redgwell, p. 396.
47
5.7.2 Reservations to CEDAW and the Example of
the Maldives’
Reservation
The Women’s Convention, CEDAW, has a considerable number of participating
states.
177
It has more state parties than other human rights treaties
178
and this is
perhaps because of all the publicity it has received.
179
CEDAW is also a
convention with a high rate of reservations made to it.
180
The drafters of CEDAW
restated the general rule in article 19(c) VCLT, the compatibility test, in article
28(a) CEDAW. Scholars have discussed the reasons for
the fact that there are so
many reservations lodged to the convention. They have come up with various
explanations, mostly concerning culture, tradition, customs of different countries,
and called it cultural relativism.
181
Some States have suggested that CEDAW
should be afforded a lesser status than other treaties because its subject matter is
culturally sensitive, even if not articulated in these terms in the debate. The
standpoint is made clear though through their responses to the Secretary-
General, arguments in the debate and through some of the reservations made.
182
Its been said that the Convention was thought to be a
mere statement of intent or
other document of rhetoric, rather than as establishment or codification of
international legal norms. Japan and Turkey are pointed out as examples of states
with the tolerant view referred to above, and who therefore held the position that
some reservations seemed “quite reasonable”.
183
The reservations with the broadest scope seem to have been entered by Muslim
states and concern the conflict with Shariah (Islamic law).
184
An example of a
reservation of this kind to CEDAW is entered by the Maldives.
185
The reservation
177
As of the 28 March 2001 there were 167
state parties to CEDAW, according to “Status of
Ratifications of Principal International Human Rights Treaties As of 28 March 2001”, Source:
<
http://www.unhchr.ch/pdf/report.pdf
> (23 April 2001, at 17.45).
178
CEDAW has more state parties than the “Twin Covenants”, i.e. ICESCR and ICCPR,
CERD and CAT. Only the CRC, the Convention on the Rights of the Child, has more state
parties to it than CEDAW, according to “Status of Ratifications of Principal International
Human Rights Treaties As of 28 March 2001”, Source:
<
http://www.unhchr.ch/pdf/report.pdf
> (23 April 2001, at 17.45).
179
Mårsäter & Åkermark, p. 382.
180
Clark, p. 282.
181
Clark, pp. 286-288.
182
Clark, p. 286.
183
UN Doc. A/41/608, at 14, referred to in Clark, p. 286, note 35.
184
Clark, p. 284.
185
The wording of the reservation lodged by the Maldives; “
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