On the Viability of Shariah-Based Reservations to the CEDAW

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On the Viability of Shariah-Based Reservations to the

CEDAW

Muhammad Ibrahim Khan mail.ibrahimk@gmail.com Student number: 12097802

Master’s thesis: Public International Law Supervised by: Dr. N. (Natasha) Nedeski

Submitted on: 26 July 2019

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Summary

The preamble of the United Nations’ Charter contains the aspiration to both “ reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,” and also to “practice tolerance and live together in peace with one another as good neighbours as well to unite our strength to maintain international peace and security.” Yet these two equally admirable aspirations may occasionally conflict; the respect for the differences united in the second aspiration often yields competing criteria for defining and achieving the universality of the first aspiration.

As a result, many international treaties have become contested ground in which the tension between cultural specificity and universal values has played out through the system of reservations and objections; states propose reservations for themselves against portions of treaties which they contend violate the cultural values of their peoples, while other states often respond by objecting to these reservations and asserting that they are invalid.

This thesis investigates the theory and implications behind reservations to the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) which are made upon the basis of Shariah law. It looks at both general reservations invoking the right to nullify any provision later determined to violate Shariah, and at specific reservations which are made against particular provisions and which often include the underlying rationale for reserving. In addition, the objections made by non-Islamic countries to these reservations are examined as well. By presenting these conflicts against the backdrop of the general rules for reservations, this thesis contributes to the literature on formulating Shariah-based reservations by illustrating the superiority of specific over general reservations in the Islamic context and by demonstrating the practical limitations of even these specific reservations under the present regime of international law.

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Preface

During my undergraduate studies, I took a number of courses on international human rights law, an experience which awoke my interest to understand certain issues raised by international human rights law in more detail. Writing a thesis to complete my LLM, I took advantage of this opportunity and chose to investigate the topic of reservations to human rights treaties, specifically in the light of Shariah reservations. I was drawn to this particular side of the topic due to the fact that I have studied Islamic law and therefore possess a handful of knowledge concerning the position of Muslim countries and their ability and intention to make reservations justified by the Shariah.

Writing specifically about Shariah-based reservations, whether valid or not, highlights the extraordinary bias given to European conceptions of human rights. This does not suggest that Shariah conceptions relating to the rights of the human should replace the biased framework currently in existence; instead, it suggests that what is at stake in this question of the Shariah’s relation to human rights is whether an entire functioning framework which can deliver results compatible with human rights law is to be rejected and discarded by the arbiters of international law on the basis of these few, designated points of irreconcilability.

Human rights law is a special field of international law, where the treaty bodies exercise the competence of monitoring, but when the Human Rights Committee made a declaration in a general comment extending their mandate for assessing the validity of reservations, that circumstance completely changed the discourse, and as a result, the topic of reservations became more complicated. This created the basis for treaty bodies, state-parties, other actors of international law to declare that Shariah reservations are against the object and purpose of a treaty. This awoke in me a curiosity to examine certain Shariah reservations, in order to decide wherein does the problem between human rights law and the Shariah lie, and what could be done in order to make these Shariah reservations acceptable.

Muhammad Ibrahim Khan July 2019

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Acknowledgements

I owe special debt of thanks to my family and friends for their unwavering support throughout my time in studies, especially the support of my elder brother Mohsin Jameel Khan, who mentored me and guided me through the process of applying for an LLM at the University of Amsterdam.

I would like to extend a heartfelt thanks to Mr. Jon for his editorial support, helping me bring my thoughts to the page and helping me to clarify what I hoped to discover in my studies.

I also wish to express my gratitude to my supervisor Dr. Natasha Nedeski, without whose tireless feedback, encouragement, and guidance this thesis would not be possible.

Finally, I would like to thank mw. Prof. dr. M. Y. A. (Marjoleine) Zieck, Professor of International Refugee Law at the University of Amsterdam, without whom this year at the University of Amsterdam would simply not have been possible.

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List of Abbreviations

ICJ: International Court of Justice UN: United Nations

ILC: International Law Commission ICC: International Criminal Court

ICCPR: International Covenant on Civil and Political Rights ECHR: European Court on human rights

CEDAW: Convention on all forms of discrimination against women ECJ: European Court of Justice

TEU: Treaty on the European Union

VCLT: Vienna Convention on the Law of Treaties GC: General Comment

MOFA: Ministry of Foreign Affairs HRC: Human Rights Committee

AJIL: American Journal of International Law IAHR: Inter American Court on Human Rights UDHR: Universal Declaration of Human Rights PCJ: Permanent Court of Justice

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Chapter 1 1. Introduction and Background

Reservations to human rights treaties are a puzzle, especially when these reservations are formulated on the basis of Islamic Law, or Shariah. Reservations to treaties formalizing human rights law are supposed to be in line with the contemporary theory of reservations, a theory which traces back to the advisory opinion by the International Court of Justice(ICJ) on reservations to the Convention on the Prevention and Punishment of the Crime of Genocide1

(hereafter: The Genocide Case), where the issue of reservations and their effects on treaty participation by reserving states emerged for the first time.

Traditionally, the integrity of a treaty formed under international law has depended upon the unambiguous and unanimous acceptance of the treaty in its entirety, with no reservations possible; either all of the other states must accept the reservation as an amendment to the treaty; the reserving state must withdraw its reservation; or the reserving state cannot become party to the treaty. If the reservation was accepted, the treaty was modified and became binding upon all state parties in its final, modified form. However, this traditional approach was contradicted by the practice by the Organization of American States, which disregarded the unanimity rule at the 1928 Havana Convention in which every state party had to decide to either accept or object to every reservation by another state2. Under the traditional conception of international law, a treaty would only enter into force on the basis of reciprocity3. However, human rights law has been treated differently over the past several decades, with no reciprocity recognized between states on the basis of a single state’s reservations to a treaty, a point which will be discussed and elaborated in detail later.

Reservations in bilateral treaties have different consequences than reservations in multilateral treaties, based on the Vienna Convention on the law of treaties (VCLT). In a bilateral treaty,

1_{International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the crime}

of Genocide (Advisory Opinion), ICJ Reports (1951), 28 May 1951. < https://www.icj-cij.org/files/case

related/12/012-19510528-ADV-01-00-EN.pdf > accessed 8 June 2019.

2_{Liesbeth Lijnzaad, Reservations to UN-Human Rights Treaties Ratify and Ruin, (ISBN 0-7923-3256-3, Asser}

Institute, 1994) at 16.

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2 reservations are not, strictly speaking, possible because both parties must agree to a reservation made by the other state and because the effect of this reservation will modify the entire agreement, for both parties, before the treaty enters in force. Where a reservation in a bilateral treaty is not accepted, the treaty must then be re-negotiated4.

By contrast, in multilateral treaties, reservations have a valid use as tools to achieve greater participation between states in the formal proceedings of international law. This could potentially be true even for human rights treaties because reservations allow reserving states to participate, fostering the universal application of human rights law, while also respecting the particularity and cultural dignity of each party, which is itself a goal of human rights law. However, unlike the supposedly secular reservations made in earlier incarnations of human rights law, reservations made by Muslim-majority states according to the Shariah have been fiercely objected to by numerous states parties to those same human rights treaties under which the Shariah-based reservations have been made, and those objecting states have often cited the object and purpose test, as well as the alleged vagueness of these reservations, in articulating their objections to the Shariah-based reservations. These Shariah-based reservations have been challenged and confronted, not only by the reserving states’ fellow treaty members, but by the supposedly neutral treaty bodies charged with monitoring and enforcing the treaties as well.

Therefore, this study purports to examine, in depth, the content of Shariah reservations in order to analyze and assess their validity in the context of human rights law. The operational research question of this study is to ask whether Shariah-based reservations can be properly articulated according to the rules of reservations or whether they are instead incompatible with the object and purpose of the human rights treaties. More broadly, this question encompasses the scope of these treaties’ jurisdiction; in other words, whether these treaties actually promulgate a universal basis for articulating, promoting, and defending human rights, or whether they instead represent a one-sided, culturally-biased basis of human rights law which illegitimately suppresses alternative bases for human rights law, such as the Shariah5. For the purpose of discussing these Shariah reservations, I intend to use CEDAW as a potential basis for the integrity and coherence of these reservations due to the fact that it is almost universally ratified, by states from all regions of the world. In contrast, quite often the reservations to CEDAW are

4_{Fjorda Shqarri, Reservations to Treaties, Prohibited Reservations and some Unresolved Issues Related to Them,}

March [2015], (Vol 6, No 2 S2), Mediterranean Journal of Social Sciences, at 98.

5_{Imran Ahsan Nyazee, Islamic Law and Human Rights, [2003], Islamabad Law Review at 16}

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3 based on religious arguments as justification for the reservations6_{. However, I acknowledge}

that no complete understanding of the validity of Shariah-based reservations to human rights treaties can be made without reference to the Arabic-language texts and traditions which form the foundation and living tradition of the Shariah; if the Shariah is only ever engaged with in translation, then it can never be sufficiently understood so as to determine whether Shariah-based reservations to human rights treaties are or are not coherent.

This study is particularly timely because it addressed the potential ramifications of reservations made on the behalf of nearly 1.6 billion human beings. If Shariah-based reservations are valid, then this poses tremendous structural challenges for the current enforcement regime of human rights. If invalid. then they pose the challenge of reconciling the human rights goal of achieving the principle of universality with the indisputable suppression of the preferences and lived-experience of over a billion human beings. In either case, the mission of securing human rights throughout the globe, as it is currently understood, will need to be radically redefined.

1.1 Research Question and Sub-Questions

Human rights have been the central focus of international law since the end of the Second World War, which brought all nations together to form the United Nations and to acknowledge the need for universal human rights norms7_{. Along with the rapid globalization of trade and}

growing interdependence among states, the struggle for human freedoms has begun to adopt a universal nature as well. However, the use of reservations has presented a paradox, creating disorder in treaty law by introducing uneven application while also ensuring respect for cultural differences and more widespread acceptance by the states. Thus, the law of reservations has been “shaped” by universality and integrity8,two opposite notions reflecting two dimensions of the international legal order: “a world composed of autonomous states versus an integrated world order.”9

6_{Professor Donders, Y. M., Cultural Pluralism in International human rights law: The role of reservations,}

INTERFACES Research Paper 02 [2013], ACIL 2013-02, Introduction at 3.

7_{See preamble of the United Nations Charter and the Universal Declaration of human rights.}

8_{Jean Kyongun Koh, Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World}

Vision, [1982], 23 HARV. INT’L L. J. 71, 71.

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4 The codification of human rights through treaties has encountered the same internal clash, and as a result, the law of reservations aims to “bridge the gap”10_{between the need for universal}

acceptance of the human rights norms, and the necessity of a common understanding of the content of those norms. Arguably, a preferable outcome involves the majority of states consenting to human rights treaties with reservations and integrating over time, rather than one where only a few ratify them with immediate, full integration11.

However, the quest by Muslim states for Shariah reservations to human rights treaties, especially to the CEDAW, is not welcomed by the treaty bodies and other state parties. This research is intended to answer the question, to what extent are Shariah reservations valid in human rights law as exemplified by the CEDAW? In answering this question, the thesis will be guided with the sub-questions:

First, what are the rules for reservations in general? If reservations are always suspect, then resistance to Shariah reservations may be based less upon antipathy towards the Shariah and more upon a general disfavor for reservations.

Reservations take place in the context of multilateral treaties; the question is raised: how are treaty bodies used to assess the compatibility of reservations with the underlying treaties? Because human rights are afforded a different standard of review than other forms of international law, are general reservations even compatible with human rights law? Does the theory of severance remain applicable in the context of human rights?

Finally, what allowance do the universal aspirations of human rights law make for the respect of all cultures and ways of life? Can the liberal regime of human rights distinguish between the aspects of a culture it opposes and the underlying integrity and dignity of that culture?

1.2 Method and Materials

This thesis is mainly organized around the works of previous scholars, written in order to situate the problem of Shariah-based reservations within the body of inquiry which has already

10_{Catherine Logan Piper, ‘‘Reservations to Multilateral Treaties: The Goal of Universality’ Iowa Law Review}

REV. 295 [1985] 71.

11_{Pierrick Devidal, ‘‘Reservations, Human Rights Treaties in the 21stcentury: from Universality to Integrity’,}

University of Georgia School of Law [2003] at 4

<https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&artic le=1013&context=stu_llm> accessed 17 July 2019. See Lijnzaad supra note 2 at 38.

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5 explicated the reservations regime in international human rights law generally. During the literature review, much of the preparatory work was focused on learning and applying the views contained within articles, books, and other secondary sources towards reservations in general in order to acquire a comprehensive understanding of the criteria by which the validity of Shariah-based reservations in human rights law would be judged.

Although this thesis uses previously-existing secondary sources in order to create the theory of reservations which it uses, rather than create one a new out of whole cloth, it uses primary sources such as treaties (VCLT) and court decisions (The Genocide Case) to establish the factual framework for how this theory has actually been articulated and applied throughout the history of twentieth century international law, and where these factual frameworks have suggested places of comity or incompatibility with the specifically Shariah-based reservations of Muslim countries, based upon the treatment of secular reservations. Both sources, secondary and primary alike, have helped me to clarify the complex issues involved in the debate of reservations, allowing me to formulate the conclusions and recommendations of this study.

1.3 Arrangements of the Chapters

The chapters of this thesis will unfold as follows: The first chapter introduces the background of reservations, unfolding the historical evolution prior and after the VCLT. It further explains the main research question including sub-questions, which I believe are crucial to study in order to link the relevant issues.

The second chapter is generally descriptive, describing and discussing the general regime of reservations in public international law both prior to and subsequent from the entrance into force of the VCLT and the resultant rules enshrined in articles 19-23 VCLT, along with their customary value. This is because the reservation regime prior to VCLT is founded on the legal basis of the Genocide Case, which later was clarified, settled, and codified in the VCLT. From here, the scope of the thesis narrows to the regime of reservations as specifically applied to human rights law.

The guiding focus is to inquire the fact that reservations that are made regarding human rights law are treated in a different manner than reservations, generally. This chapter shall undertake to define what, within human rights law, merits this higher level of scrutiny than ordinary international law, so as to see later why human-rights-based objections to Shariah-based reservations may carry a different weight than objections more generally.

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6 Chapter three is devoted to tying the struggle between member states over the viability of Shariah-based reservations to the research sub-questions of the thesis: what are the rules of reservations; how do treaty bodies mediate disputes over treaty interpretation; and how can the universal scope of human rights be reconciled with the human right of all peoples to their particular culture and religion?

The fourth chapter will elaborate upon the specific shariah reservations studied, as well as their analysis. For further record, other Shariah reservations to the CEDAW, not analyzed in the study, are attached in Annex 1 as examples reservations to which this study may be relevant.

Finally, chapter five draws some general observations from the study by concluding the issues and regarding the future of Shariah reservations.

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Chapter 2 2. General Regime of Reservations in International Law

2.1 Reservation

Quote: "Reservation" means 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’’12.

While this definition appears to be simple and straightforward, scholars such as Horn have challenged the absolute validity of such stipulative definitions for international law.13 However, the aim of the present study is not to interrogate or assess the validity of this definition, but to investigate the validity of one particular basis for reservations, the Shariah. Therefore, this study will spend less time parsing out the definition of a reservation than it will defining the scope and limitations of such reservations.

The term ‘‘phrased or named’’ would be discussed at a later stage in the chapter four about interpretative declaration. The second area is ‘‘exclude or modify’’ where there, is no disagreement regarding the exclusion. However, the element of modification is possible in two ways by means of restrictions or extension. The restriction fits with the concept of reservations. But the extension of a provision beyond the treaty obligations by means of modification would be termed as a unilateral declaration, whereby a state formulates an extensive reservation to bind itself only, to the extended level14.

2.2 Practice Prior to Vienna Convention

In the traditional practice of international law, the one which existed prior to the formation of a general regime by the UN, maintaining the integrity of a treaty required that all reservations be accepted unanimously by all parties to the treaty or else the reserving state would be left with the choice either to withdraw the reservation or to stand not a party to the treaty.15 It is not

12_{Vienna Conventions on the Law of Treaties, United Nations, Treaty Series, vol.1155, p.331, 23 May 1969,}

entry into force 27 January 1980, Article 2.

13_{Frank Horn, ‘‘Reservations and Interpretative Declarations to Multilateral treaties’, Uppsala University Press,}

[1986] at 40: ‘’There is nothing in the notion of stipulative definitions ______with universal and absolute validity.

14_{Lijnzaad, supra note 2, at 33.}

15_{Malcolm N. Shaw, International Law, (Eight Edition, Cambridge University Press, 2017) at Page 695. See also}

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8 possible to bring a reservation in bilateral treaties because if accepted the agreement stands amended and if not the agreement tis disputed and need renegotiation. In case of multilateral treaties, the reservations bring either identical treatment or equivalent obligations. This contractual understanding of reservations, in which every party must agree to identical and complete versions of a treaty, was endorsed by the League of Nations16.However, this restrictive approach was abandoned by the International Court of Justice in its advisory opinion on the Genocide Convention case17 with a question; whether a reserving state can be regarded as a party to the convention? The court decided that: Quote:

‘’A state which has made and maintained a reservation which has been objected to by one or more parties to the convention but not others, can be regarded as being party to the

Convention if the reservation is compatible with the object and purpose of the Convention……18_’’

This flexible approach by the court was a pragmatic step, intended to ensure that states would not refuse to participate in the post-war framework for international law under the aegis of the UN on account of a perceived destruction of their national sovereignty. A further end of the decision was to facilitate an increasing comfort by states with a move from the unanimity rule to the majority rule in the execution of multilateral treaties19_.

2.3 The Vienna Convention on the Law of Treaties VCLT

The current regime of reservations in international law is codified in articles 19-23 of the VCLT20, endorsed by the International Law Commission (ILC)21.

16_{Catherine Redgwell, Universality or Integrity? Some Reflections on reservations to General Multilateral}

Treaties, British Yearbook of International Law, [1993], Volume 64, Issue 1, 245, 246.

17_{William A. Schabas, Genocide Convention, Reservations Advisory Opinion, Max Plank Encyclopedia of}

Public international Law, Para 9. <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e136> accessed 6 June 2019. See also Advisory Opinion, ICJ supra note 1.

18_{Advisory Opinion, ICJ supra note 1, p. 15. Page 29.}

19_{Yearbook of International Law Commission, vol. II, [1951] at Page 130, Para 33,34(1-5).}

20_{Olivier Corten and Pierre Klein, A commentary, The Vienna Conventions on the Law of Treaties, Volume I,}

Oxford University Press, [2011] at 421.

21_{Yearbook of International Law Commission, vol. II, Chapter V: Reservations, 1993 at Para 53}

<http://legal.un.org/docs/?path=../ilc/documentation/english/reports/a_52_10.pdf&lang=EFSXP> accessed 8 June 2019.

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2.3.1 Right to make reservations, compatible to object and purpose

Article 19 of the VCLT allows a state to make a reservation at specific points, namely when the state is signing, ratifying, accepting, approving or acceding,22 and it has later been determined that this list includes two additional categories: when a state formally confirms a treaty and upon notification by a state of succession to a treaty23. However, a reservation cannot be made if it is explicitly prohibited by the treaty24. If a treaty provides that specific reservations can be formulated,25 then states have full discretion to make the offered reservations. Among reservations not explicitly entertained by the uniform treaty or the treaty is silent, these must not be incompatible with the object and purpose of the treaty or else they will not be valid26. This provision 19(c) of the VCLT is referred as compatibility test for admissible reservations. In the Genocide case, the ICJ mentioned that an unlimited liberty to formulate reservations was not desirable. Therefore, the compatibility test was introduced, conditioning the admissibility of the reservation compatible with the object and purpose of the treaty27.

About this article 19(c), Liesbeth explains the obligation implied in the object and purpose rule leads to distinguish between the core and non-core obligations of the treaty. According to her, the reservations not against the object and purpose are permitted but accessing the compatibility of a reservation is subjective with no formal mechanisms available and the rule is without safeguards28_.

2.3.2 Tacit Acceptance

On the other hand, Art. 20(4), abandoning the traditional rule of unanimity, provides that a reservation that is not incompatible with the object and purpose of a treaty, or otherwise excluded by the treaty, will be effective in the execution of the treaty regime, notwithstanding any objections made by other members.29 There is an exception to this elimination of the traditional rule of unanimity; Art. 20(2) requires unanimity for reservations made to treaties

22_{VCLT, supra note 12, Article 19.}

23_{Report of International Law Commissions, Guide to Practice on Reservations to Treaties, (A/66/10) [2011],}

Definitions: Reservations means ---when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty or by a state when making a notification of succession to a treaty ---.

24_{See supra note 12 VCLT, Article 19(a). See also Article 120 of Statute of the International Criminal Court.} 25_{See the convention relating to the Status of the Refugees, 1951, Article 22.}

26_{See supra note 12 VCLT, Article 19 (b) & (c), See also Shaw, supra note 15, at 697.} 27_{Horn, supra note 13, at 205-206.}

28_{Lijnzaad, supra note 2, at 82 & 84.}

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10 between a limited number of negotiating states in which “the application of the treaty in its entirety between all parties is an essential condition of the consent of each one to be bound by the treaty” 30.

Further, in Art. 20(5) of the VCLT, the principle of tacit acceptance is introduced, whereby in twelve months, if a state has raised no objection to a reservation, then the reservation will be considered as accepted, resulting in the reserving state becoming a party to the treaty31. It is further assumed that the states not objecting have, in addition to accepting the reservation after the twelve-month period, also accepted the entrance of the reserving party into the treaty after this time. However, a treaty may itself contain a different time limit more than twelve months which would render art 20.5 inapplicable.

The legal effects of reservations and of objections to a reservation are outlined in Article 21 of the VCLT. This declares that a reservation made in accordance with Articles 19,20 and 23, with regard to the state’s obligations to another state party, modifies the treaty provisions to the extent created by the reservation between the reserving state and the other party32. This is called reciprocity which brings identical obligations to the treaty parties under article 21(a) of the VCLT. However, this does not alter the legal effect of provisions of the treaty between the non-reserving parties, which remain bound by the complete text of the treaty33.

2.3.3 Legal effect of Reservations

Article 21(3) states that a state may object to a reservation to a treaty while allowing the treaty relations to enter into force between itself and the reserving state, except to the extent to which treaty relations are created by provisions in the treaty which are subject to the reservation34. This article was applied in the Anglo-French Continental Shelf case, where France had three reservations to article 6 of the Geneva Convention on the Continental Shelf, 1958, to prevent a delimitation of the continental shelf by other states on equidistance principle, whereas the United Kingdom’s acceptance of the treaty was accompanied by a refusal to accept any

30_{Shaw, supra note 15, at 697. See also supra note 12 VCLT, Article 20(2).}

31_{VCLT, supra note 12, Article 20(5): ‘’ For the purposes of paragraphs 2 and 4 and unless the treaty otherwise}

provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

32_{Ibid, Article 21(b).} 33_{Ibid, Article 21(2).} 34_{Ibid, Article 21(3).}

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11 reservations to the treaty35_{. France contended that an objection to a reservation excluded the}

entire clause to which the reservation relates from application between the two parties. Conversely, the United Kingdom argued that the objection annulled the reservation altogether and that the article continued to apply in its unmodified form. The court rejected both of these submissions and decided the case by applying Article 21(3) VCLT and determining that Article 6 of the Geneva Convention on the Continental Shelf, 1958, was inapplicable only to the extent of reservation36. From this case emerges the principle that a reserving state can have treaty relations with another party apart from relations arising from reserved article and that, further, the reservation only excludes the force of those exact portions of the articles to which the reservation is made and not, necessarily, to the articles in their entirety.

Secondly, reciprocity is the most important element in the legal effects of a reservation, operating as a basic concept in the law of treaties. The scope and effect of any exclusion or modification of treaty provisions for unconcerned states is described by Article 21.2 of VCLT: Quote: ‘’The reservation does not modify the provisions of the treaty for the other parties to

the treaty inter se’’37. Because neither a reservation accepted under Article 21.138 nor one objected to under Article 21.339 expressly prevents the entry of treaty relations in force, this has led scholars to question whether there is a meaningful difference between these two modes40_{. Because of the entry of the treaty into force in both cases, any relevant difference will}

have to occur in the execution and enforcement of the treaty after it has taken effect since the initiation of the treaty is the same in each scenario.

To resolve this puzzle, it is necessary to understand the purposes for which states make objections.41. Typically, state parties use objections to further their own political interests and ideologies, as well as for making their objections formal in order to oppose the integration of

35_{A. E. Boyle, ‘‘The Law of Treaties and the Anglo-French Continental Shelf Arbitration’, (Vol. 29, No. 2/3,}

Apr-Jul [1980]), The International and Comparative law quarterly, at 502, 504, pp. 498-508, Accessed: <https://www.jstor.org/stable/758976?seq=7#metadata_info_tab_contents> 10 June 2019.

36_{Ibid, at Page 505.}

37_{VCLT, supra note 12, Article 21(2).}

38_{Ibid, ‘‘A reservation established with regard to another party in accordance with articles 19, 20 and 23’’} 39_{Ibid, ‘‘When a State objecting to a reservation has not opposed the entry into force of the treaty between itself}

and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation’’.

40_{Coccia Massimo, ‘‘Reservations to Multilateral Treaties on Human Rights’, 15 Cal. W. International Law}

Journal, No. 1, [1985] at 35, Accessed

<https://heinonline.org/HOL/LandingPage?handle=hein.journals/calwi15&div=7&id=&page= > 15 June 2019.

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12 certain reservations into the normal framework of Customary International Law42_{. In other}

words, states can use objections to build a record providing resources to integrate their own opinions into customary law or to prevent the integration of other views into customary law, even if the effect of the objection within the treaty regime itself is limited.

2.3.4 Objections to a Reservation:

Article 20.4.b states: Quote:

‘’An objection by another contracting state to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is

definitely expressed by the objecting state’’43.

This Article preserves the treaty relations in comparison to absence of treaty relations, even where reservations and objections prevent the states from entering into full treaty relations. On the other hand, the objections can be made to all reservations, as it is the choice of a state to accept or object the modification of a treaty. This can create a situation comparable to the Continental Shelf case between the UK and France, wherein a party objects to all reservations but remains bound by all of those parts of each individual provisions which are not affected by the reserving state’s reticence.

In the application of Art. 20(4)(b) VCLT, the court said that there is no distinction between permissible and impermissible reservations based upon whether or not a case falls under general international law. Whether a treaty is made under general international law treaty or under international human rights law, it seems that this article is applicable in all cases44. Further, the reservations regime accepted by VCLT is applicable on all multilateral treaties, including human rights treaties45 In case, a state in not party to the VCLT, the legal regime can be established under customary international law as discussed next.

2.4 Customary Value of Rules on Reservations:

Article 4 of the VCLT states that:

42_Ibid.

43_{VCLT, supra note 12, Article 20(4)(b).} 44_{A. E. Boyle, supra note 35, at 506 pp. 498-508.}

45_{Francoise. Hampson asserts that there is no suggestion in the VCLT for a special regime to be applicable on}

human rights treaties, ‘‘Specific human rights issues, reservations to human rights treaties’, Final Working Paper (E/CN.4/Sub.2/2004/42), [2004], Accessed: <https://digitallibrary.un.org/record/526572?ln=en> 20 June 2019.

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‘’the convention applies only to treaties which are concluded by states after the entry into force of the present Convention with regard to such states’’.46

This is especially relevant in the case of the International Covenant on Civil and Political Rights (ICCPR),47 which entered into force on 1976 and is therefore prior to the VCLT in 198048. In case of Convention on elimination of all forms of discrimination against women CEDAW49, however, which entered in force in 1981, whether or not a state is party to the VCLT can affect whether its ability to make reservations and objections is defined solely by Customary International Law or by the additional requirements of the VCLT.

In context of Customary International Law, the tribunal in the Palmas case stressed the dynamic and open-ended nature of international law. Moreover, it is said that there should be a difference for the validity of a rule for when it is first created versus its later application50. The same point was discussed by the ICJ in its Advisory Opinion on the continued presence of South Africa in Namibia, that interpretations of obligations created under League of Nations must be interpreted and in light of the contemporary international legal system51.

Therefore, if the rules on reservations provided by the VCLT are not applicable, they are instead drawn from Customary International Law. When the Human Rights Committee (HRC) used notions of VCLT in its assessment of reservations, none of the state reserved against this, even non-parties to VCLT52. However, for non-signatories, this non-reservation occurred in the absence of an obligation to oppose the use of the VCLT framework because the rule on presumed acceptance itself comes from the VCLT and these states could not be said to have shoehorned themselves into the VCLT by entering into a separate treaty. Further, because the Genocide case also didn’t provide any guidance to treat the reservations in a particular way the

46_{VCLT, supra note 12, Article 4.}

47_{International Covenant on Civil and Political Rights Entry in force of ICCPR, adopted GA resolution 2200A,}

16 December 1966, entry into force 23 March 1976. Accessed:

<https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> 20 June 2019.

48_{VCLT, supra note 12.}

49_{Convention on all Elimination of All Forms of Discrimination Against Women, adopted GA resolution 34/180,}

18 December 1979, entry into force 3 September 1981.

50_{In case of (Islands of Palmas arbitration), Permanent Court of Justice, 4 April 1928, at Page 14, Accessed:}

<https://pcacases.com/web/sendAttach/714> 22 June 2019.

51_{In case of (Southwest Africa, Legal consequences of the continued presence of South Africa in Namibia), 21}

June 1971; ICJ Reports 1971.

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14 use of the VCLT was merely filling a vacuum53_{. The only channel for enacting a universally}

binding law on reservations is to develop these rules within International Customary Law,54

rather than attempting to create a separate framework for human rights law by using a treaty regime that does not apply universally (not to treaties prior to its adoption, not to treaties by non-signatories)55. Unfortunately, it takes a long time to formulate substantial innovations to International Customary Law, and such formulations may well never occur without sufficient, appropriate state-led effort.

In the North Sea Continental Shelf Cases, the ICJ said that for the convention to be applicable to third-parties, a considerable proof would be required through customary law56_{. On the basis}

of the Belilos case discussed earlier, including on other hand, the court provides a basis for making the VCLT rules universal by arguing that the rules on reservations in VCLT have become customary in nature57_.

2.5 Why Reservations to human rights treaties

The denial of legal effect to some obligations is the most obvious reason for making a reservation58. There are several reasons for formulating a reservation at the time of ratification. E.g. state interests, prior domestic legislation, political issues, lack of resources to fulfil the obligations, and others factors which may make compliance undesirable or infeasible. Historically, states often resolve conflicts arising from reservations by bringing reservations to the dispute settlement clauses if such are provided for in the treaty; In fact, the first AO on the Genocide Case was made on the basis of reservations by states which were then brought to the relevant to dispute settlement clause59. In the case of CEDAW, several countries have a reservation on Article 29, thereby inviting the ICJ to exercise jurisdiction for settling the disputes arising from matters of interpretation in the treaty.

Another reason for why states may make reservations, relevant particularly to developing countries is lack of expertise in a country’s diplomatic corps, or else within its domestic

53_Ibid.

54_{In case of (Fisheries Case, UK v. Norway), 18 December 1951, ICJ Reports 1951.}

55_{G.J.H. Van Hoof, ‘‘Rethinking the Sources of International Law’, [1983], IJsselstein, at 113-116.}

56_{In case of [North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of}

Germany v. the Netherlands)], 20 February [1969], ICJ Reports 1969.

57_{Coccia, supra note 40, at Page 11 and 15. See also Lijnzaad, supra 3 at 75.} 58_{Horn, supra note 13, at 91.}

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15 legislative body responsible for passing laws to align the state’s internal policies with its external commitments60_{.Ordinarily, a state either needs to amend its existing laws through its}

legislature after making new commitments internationally which invalidate the previous laws, or else the legislature must make anticipatory changes to its laws in preparation for an imminent new treaty commitment. Ideally, a state should adopt pre-emptive measures prior to ratification so that there is no need for bringing reservations61. However, it should be noted that in present situation, this approach will practically mean longer delays for the execution of the treaty, as states spend time making anticipatory changes62.

Now that I have discussed the general law on reservations, it is time to look into reservations particularly on human rights treaties specifically. There are special characteristics applicable to human rights regime. After discussing the general discourse on human right law, we will analyze a number of specific Shariah reservations on CEDAW made by Muslim states in order to access their validity in human rights law.

There are several important issues that remain unresolved. In particular, what effect does an impermissible reservation have? Are states the only competent actors to decide the compatibility of the reservation with a treaty and what role is played by a general reservation? What happens between parties when one party accepts impermissible reservations by another? This must all be discussed after introducing the reservations regime in human rights law.

2.6 Reservations Regime in International Human Right Law

According to the advisory opinion on Genocide case, international law regime is applicable in multilateral human right treaties which was subsequently incorporated in the VCLT63. The regime is often applied strictly with the notion of object and purpose test by the treaty bodies.

2.6.1 Object and Purpose test in human rights law

It is assumed that every treaty has a purpose for which it was executed. The object and purpose test is derived from the Genocide case, where the treaty had the single purpose of banning

60_{Coccia, supra note 40, at 20. Generally, reservations are overseen by Ministry of Foreign Affairs (MOFA).}

62_{Dutch ratification of CEDAW was presented in Parliament in 23 April 1985 and was approved in 2 July 1991.} It was later ratified on 23 July 1991.

63_{Olivier De Schutter, International Human Rights Law, (Second edition, Cambridge University Press) [2014],} at 120.

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16 genocide. Therefore, no reservation to the treaty which made the instance of genocide more likely could be valid under the treaty because such a reservation ran counter to the reason for negotiating, entering, and executing the treaty in the first place. However, in cases of human rights treaties with several purposes, the rule appears overly simplistic and this difficulty weighing, balancing, and arranging multiple treaty purposes on the basis of the treaty alone is addressed by the VCLT, which offers additional criteria for assessing the validity of reservations64.

There is no need to apply the object and purpose test when a reservation is made contrary to jus cogens65_{or erga omnes obligations; it simply turns to be an invalid reservation. Likewise,}

if a reservation is against UN Charter, it is invalid under Article 103. Reservations apply to treaties and not to disembodied sets of rules, and therefore, and in case of a customary rule, as opposed to one created by treaty, any reservation against the would be invalid. In all these 3 situations there is no need to apply object and purpose test because another rule has dealt with the reservation.

A question arises from the object and purpose test regarding the relationship between each individual provision of a treaty and its overall object and purpose. If it is established that every single provision in an anti-discrimination treaty helps to fight against discrimination, every provision would be considered as part of object and purpose and none could be reserved against66_{. Interestingly, the object and purpose is a negative obligation, where it is mandated}

that a reservation not be contrary to the object and purpose of a treaty without a symmetrical obligation that a reservation actively contribute to the object and purpose67.

Sometimes, a state may formulate a reservation in accordance with the prevailing views of its people, expressed either in its own domestic law or in religious law on a general level, as Shariah-based reservations are. While it may be legitimately inquired whether a Shariah reservation is compatible with the object and purpose of human rights treaties for implementing at national level68, a more immediate problem is presented by Article 27 VCLT:

65_{VCLT, supra note 12, Article 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory}

norm of general international law.

66_{Lijnzaad, supra note 2, at 82.} 67_{Lijnzaad, supra note 2, at 84.}

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17

‘’A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’’69_.

Since Article 27 is not a rule of jus cogens, however, the scope of its limitations to reservations is balanced by the reciprocal views, needs, and interests of other state parties.70. The prohibition on invoking internal law to form the basis for reservations is meant to prevent one state from dictating its own internal law to others; this does not preclude, however, a state using its internal law, especially if grounded within a tradition shared by other members, from using this tradition to define, delimit, and develop the terms of a treaty, provided that this is done with reciprocity.

2.6.2 Reciprocity in Human Rights Law

Reciprocity is the main different factor in regime of reservations in human rights law. The exclusion of legal effects from some obligations in the treaty stands to prove the reason for an advantage in making a reservation71. By means of accepting a reservation, it implies a mutual and equivalent changes for the accepting state party in treaty relations whereas one can say that the law of treaties generally operates by an active function of reciprocity72_{. This rule is present}

in article 21.1 of the VCLT. Article 21.A.a VCLT provides legal basis for the reciprocity73_.

This reciprocal nature in law of treaties is applicable in general international law but in human rights it is pointless because the subject matter is not a state but individual. The question is whether reciprocal changes serves any purpose for the protection of human rights or whether there is any reciprocal relationship on the basis of human rights treaty74. It is assumed that when a state commits to guarantee the human rights in its jurisdiction, the substantive reciprocity offered by VCLT contradicts with the commitment. Article 21(1)(b) or (3) doesn’t operate either for accepting or objecting party, as is made clear by guideline 4.2.575. So, one

69_{VCLT, supra note 12, Article 27.} 70_Ibid.

71_{Frank Horn, ‘‘Reservations and Interpretative Declarations to Multilateral Treaties’, Amsterdam [1988], at 91.} 72_{Lijnzaad, supra note 2, at 66,67.}

73_{The legal effect of a reservation for reserving state and the other party is defined in Article 21.A.a VCLT where}

a reservation ‘‘modifies for the reserving State in its relations with that other state party the provisions of the treaty to which the reservation relates to the extent of the reservation’’.

75_{Guidelines to Practice on Reservations to Treaties, International Law Commission, [2011]: 4.2.5:}

(Non-reciprocal application of obligations to which a reservation relates): ‘’The content of the obligations . . . remains unaffected when reciprocal application is not possible because of the content of the reservation’’.

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18 can say that reservations in human rights law only changes the extent of obligations for the reserving state only76_.

In addition to this advisory opinion by ICJ on Genocide convention details the reason of human rights treaties being special. It states: ‘‘…. contracting States do not have any interests of their own; they …. have …. a common interest, namely, the accomplishment of those high purposes which are …in… convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.77’’

Reciprocity in law of treaties is like the law of contract78. It implies for states to balance their interests in international law by way of a new equilibrium whenever a balance is disturbed by a unilateral act of a state79. Every treaty is characterized on the basis of formal reciprocity and this the element which is reflected in the VCLT.

By means of accepting a reservation, it implies a mutual and equivalent changes for the accepting state party in treaty relations whereas one can say that the law of treaties generally operates by an active function of reciprocity80. This rule is present in article 21.1 of the VCLT.

This debate brought me to another important area to understand the role of interpretative declarations and other relevant issues. I will answer these issues describing them as sub-questions which will help me to answer my main question. In order to examine the validity of a reservation, I need to clarify the difference between the interpretative declaration and reservation which is not always an easy task. How to determine whether a statement made by a state should be taken as a declaration only or it should be considered as a reservation and if so, does this means that an invalid interpretative declaration would be an invalid reservation or not? Before that let me answer briefly the question, what are the rules on reservations?

77_{Advisory Opinion, International Court of Justice, supra note 1, I.C.J. Reports 1951 at 23 P.15.} 78_{A.D. McNair, ‘‘The functions and differing legal character of treaties’, [1930] 100,106.} 79_{Lijnzaad, supra note 2, at 67.}

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19

Chapter 3 3. Shariah Reservations and CEDAW Committee

3.1 What are the Rules on Reservations

Article 19(a) and 19(b) of the VCLT expressly lay down two principles for the issuance of reservations : that reservations may be made if the treaty itself indicates that they may be and that if the treaty provides for only specific reservation, then only those may be made to that treaty81. In the second situation, where the treaty itself limits the scope of possible reservations, there is no need for any additional rule from the VCLT to be applied. In the first situation, the reservations must further be found to comply with the object and purpose of the treaty, as described in Article 19(c).

3.2 Object and Purpose Disputes Over Shariah-Based Reservations to the

CEDAW

These limitations are relevant to the discussion of Shariah-based reservations because many of the non-Islamic state parties to CEDAW took the issue with numerous Shariah-based reservations on the grounds that they violated the object and purpose of the treaty82. For example, Belgium objected to the Brunei Darussalam reservation to paragraph 2 of article 9 CEDAW, which is formulated on the basis of Shariah, by stating that this provision of the treaty is of a fundamental nature and that the reservation creates uncertainty in terms of obligations under the convention. Therefore, the reservation was alleged to be incompatible with the object and purpose of the treaty. In addition to this Belgium, to support its position, referred to article 28(2) CEDAW and article 19(c): ‘’an incompatible reservation is not permitted’’83_.

In its objection to Brunei Darussalam’s reservation to article 9 paragraph 2 CEDAW, the Canadian government stated that it also believes that the said provision is part of the object and

81_{VCLT, supra note 12, Article 19.}

82_{Anjali Sara Bonner, ‘‘Muslim States' Reservations to CEDAW and Possibilities for the Reconciliation of}

Shariah Law with International Women's Rights Norms’, (3 H.K. J. LEGAL STUD. 27, 48) [2009] at 34.

83_{Objections of the Belgium to Saudia Arabian CEDAW reservations, 21-August-2001, Accessed:}

<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en> 16 August 2019.

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20 purpose of the treaty and that the reservation, according to article 28(2) CEDAW, is an incompatible reservation and is therefore not permitted.

Canada also objected to the Kingdom of Bahrain’s reservation to articles 2 and 16 of the CEDAW, stating that any reservation on the basis of religious or cultural reasons would be incompatible with the object and purpose of the convention and therefore impermissible. These reservations, made with a general reference to Shariah, do not specify the scope of restrictions and do not clearly define to the extent to which Bahrain commits itself to be bound by the obligations of the convention. Given the intractability of resolving such conflicts between state parties regarding the meaning and interpretation of a treaty, third-party treaty bodies often help to break these interpretive impasses and to reconcile the contradictory views of state parties.

3.3 To what extent are treaty bodies competent to assess the compatibility

of reservations?

In EU system, article 19(1) TEU provides complete mandate to ECJ for interpretation.

Quote: ‘’The Court of Justice of the European Union shall include the Court of Justice, the

General Court and specialized courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.’’84

In case of International Human Rights Law, there is no well-organized structure for the supervisions85. It has been witnessed that the human rights treaties with the force of supervisory bodies has demonstrated in a powerful play of improving the human rights protection globally86. Through general comments (GC) and general recommendation on state reports and interpreting the scope of particular human right, in all as the acquis the system is strengthened. The treaty bodies are composed of experts who are independent and impartial with the mandate of monitoring and interpretation of the treaty, but this mandate doesn’t extend to establish new obligations by filling the lacunas in any present treaty87.

84_{Consolidated Version of the Treaty on European Union, Article 19, Accessed:}

<https://eurlex.europa.eu/eli/treaty/teu_2012/oj> 22 July 2019.

85_{Lijnzaad, supra note 2, at 64.} 86_{Lijnzaad, supra note 2, at 79.} 87_Ibid.

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21 These supervisory organs cannot authoritatively declare the reservations as being incompatible, as was said by the Office of legal Affairs in their advice to CEDAW Committee88_{. However,}

in course of work, supervisory bodies may discuss the compatibility of reservations. The supervisory organs are entitled to interpret a reservation restrictively assuming that the reservation is compatible with object and purpose. However, it is the responsibility of the states to object to incompatible reservations, and reserving states should refrain from making an invalid reservation contrary to the object and purpose of the treaty89.

Traditionally, it has been the right of states to negotiate the compatibility of reservations, but the treaty bodies do possess independent rights of review and judgment in their supervisory role90_{. HRC in GC 24 introduced a new regime of assessing reservation by granting powers to}

committee itself91:

Quote: ‘’ Because of the special character of a human rights treaty, the compatibility of a

reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this

task.’’92

Article 28.2 CEDAW provides the object and purpose test which is similar to article 19.c of the VCLT but the question is; whether the committee has competence to assess the compatibility of reservations by applying object and purpose93. The treaty section of UN secretariat submitted a legal opinion on the subject matter by saying that the committee doesn’t have the function of assessing the compatibility of reservations94. According to the legal opinion, the article 28.2 CEDAW is similar to article 19.c VCLT where states are considered to be guardian of the convention and its object and purpose.

However, it is non-disputed issue in contemporary international human rights law where treaty bodies composed of experts are profoundly considered to have competency to assess and

88_{Legal opinion by the Office of Legal Affairs at the UN Secretariat upon inquiry of the CEDAW Committee} about article 28 CEDAW, (A/39/45 Volume II Annex II),

90_{Office of Legal Affairs supra note 88.}

91_{Elena A. Baylis, ‘‘General Comment 24_ Confronting the Problem of Reservations to Human Rights Treaties’,} (Berkeley Journal of International Law) [1999] at 285.

92_{Human Rights Committee, General Comment 24, (CCPR/C/21/Rev.1/Add.6) adopted on 4 November 1994, at}

Para 18.

93_{E. Oeser, ‘‘Legal questions in the Committee on the Elimination of Discrimination against Women’, (14. Bull.} GDR Cttee) [1984], 86, (93,94 and 95).

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22 comment on reservations. Moreover, the committee of CEDAW in its general recommendation quite often have asked several countries to review their reservations or withdraw because reservations to Article 2 and 16 of the CEDAW are incompatible with the object and purpose of the treaty.

3.4 The Committee on General Recommendations and Its Response to

Shariah-Based Reservations

The Committee on General Recommendations (legally non-binding), in the assessment of state reports, has always expressed its opinion concerning the issue of reservations to CEDAW. In General Recommendation 4, the Committee concluded that many reservations “…appeared to be incompatible with the object and purpose of the Convention;” however, the Committee has been very careful in its use of terms and its description of its viewpoint its view, avoiding a final decision on the issue by simply suggesting that states parties with questionable reservations “…withdraw them”95.

In 1992, the Committee recommended that states parties consider the addition of a provision adding “…a procedure on reservations to the Convention comparable with that of other human rights treaties”96. For example, Article 20 of the Convention on the Elimination of All Forms of Racial Discrimination97_{, that a reservation shall be regarded as incompatible if it is objected}

by two thirds of the other state parties.

In General Recommendation 20, the committee recommended that, States parties should:

(a) Raise the question of the validity and the legal effect of reservations to the Convention in the context of reservations to other human rights treaties;

(b) Reconsider such reservations with a view to strengthening the implementation of all human rights treaties;

95_{General Recommendation No. 4, CEDAW Committee, ‘Reservations’, Sixth Session [1987] (UN Doc.}

A/42/38)

96_{General Recommendation No. 19, CEDAW Committee, 1992.}

97_{International Convention on the Elimination of All Forms of Racial Discrimination, General Assembly}

Resolution

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23 (c) Consider introducing a procedure on reservations to the Convention comparable with

that of other human rights treaties98_.

In 2010, the Committee, in its General Recommendation on Article 2, explicitly underlined the importance that it finds in Article 2, which it considers to be the very essence of the Convention, and that it therefore “…considers reservations to 2 or to subparagraphs of article 2 to be in principle, incompatible of the object and purpose of the Convention and thus impermissible under article 28, paragraph 2’’99.

However, the Committee has been careful and precise in its use of terms; even if a Shariah reservations is in conflict with the object and purpose of the treaty and is therefore said to be impermissible, the Committee does not declare them inadmissible or invalid under the general regime of international law. Moreover, being a treaty body, it merely suggests that states parties reconsider, review, modify, narrow or withdraw questionable reservations without mandating that states do so100.

In relation to Saudi Arabia, the Committee expressed its concern about the general reservation, which is so wide that it is contrary to the object and purpose of the Convention. The Committee urged Saudi Arabia to consider withdrawing its reservation, “…particularly in light of assurance by the delegation that there is no contradiction in substance between the Shariah and Convention101_{.” Although the Committee has no formal power to compel states to adopt its}

view, its recommendations and evaluations are carrying significant weight with many states. Several states have, in fact, withdrawn Shariah reservations due to Committee recommendations.

98_{General Recommendation No. 20, CEDAW Committee, ‘‘Reservations to the convention’, [1992], Accessed}

<https://www.refworld.org/docid/52d91fd34.html> 25 August 2019.

99_{General Recommendation No. 28, CEDAW Committee, ‘The Core Obligations of States Parties under Article}

2 of the Convention on the Elimination of All Forms of Discrimination against Women’, (Forty-Seventh Session [2010], UN Doc. CEDAW/C/GC/28) at para 41

100_{For example, Concluding observations of the CEDAW Committee’, Bahrain, UN Doc. CEDAW}

(C/BHR/CO/2) at para 17 & 31.

101_{CEDAW ‘Concluding observations of the CEDAW Committee’, Saudi Arabia (8 April 2008) UN Doc.}

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24 Libya withdrew its general reservation that accession could not conflict with the laws on personal status derived from the Islamic Sharia. It maintained the reservation on Article 2 and 16(c) and (d)102.

Maldives also changed its general reservation into a more specific reservation. Upon accession a general reservation was formulated that it would not comply with those provisions of the CEDAW Convention that may be considered contradictory to the Shariah. The current reservation only concerns article 16.

During the state reporting procedure, the Committee pays a lot of attention to Shariah reservations, providing a valuable addition to the formal objections by other states parties and making this procedure a more inclusive one that allows for dialogue and discussion on the scope, content of reservations, as well as their (in)compatibility with provisions of the CEDAW. This may sometimes lead to a change in the state’s position and a revision of its reservations103.

In conclusion we can say that the CEDAW Committee considers general and broad reservations, as well as reservations to Articles 2 and 16, to be contrary to the object and purpose of the Convention but that it provides a respectful venue for the articulation of Shariah-based reservations and that its advisory role allows it to make recommendations and critiques without being accused of trampling on the sovereignty or religious sensibility of participating states. This capacity for mediation indicates the most fruitful manner for reconciling universal values with the particularities of different cultures. In the case of Shariah, this may be due in part to the fact that the Islamic religion is itself universal in scope and that it accepts the possibility of values applicable to all humans everywhere. In this regard, Islam illustrates that the universal values ascribed to International Law are themselves the product a particular culture and history and that true universality can only be achieved if the various cultures of the world are mediated and allowed to contribute their perspective through an ongoing process, as provided by the CEDAW Committee.

102_{The text of reservations, objections were accessed at UN treaty collection data base, Accessed:}

<https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en> 27 August 2019.

103_{‘Report of the Working Group on the Universal Periodic Review Bahrain’ (22 May 2008), UN Doc.}

On the Viability of Shariah-Based Reservations to the CEDAW