Invalid reservations and human rights treaties The role of treaty monitoring bodies

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Invalid reservations and human rights treaties

The role of treaty monitoring bodies

Xanne Vermeulen

Xanne.vermeulen@student.uva.nl Student No.: 12847224

European and International Law: Public International Law

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Abstract

This thesis will evaluate the role of treaty monitoring bodies in addressing the issue of invalid reservations made to human rights treaties. With a special focus on the Committee on the Elimination of Discrimination Against Women it will seek to demonstrate how the role of the treaty monitoring bodies has developed in assessing reservations, determining its invalidity, as well as dealing with the legal consequences of an invalid reservation. Invalid reservations made to human rights treaties has been a widely debated area of international law. Over time it has become widely accepted that treaty monitoring bodies have a role in assessing the validity of reservations. This can be recognised in both the practice of the treaty monitoring bodies such as the CEDAW as well as throughout the Reports of the Special Rapporteur on the Law and Practice Relating to Reservations to Treaties. However, a lack of consensus remains about what the legal consequences are attached to the finding of invalidity by treaty monitoring bodies. Although the severability doctrine is increasingly invoked by States parties in objections, it cannot be seen as customary international law as there is no widespread practice nor opinion

juris. The ILC Guide to Practice includes Guideline 4.5.3.4, suggesting the severability

doctrine is lex ferenda. However, the way in which the Guideline is formulated is impractical and perhaps not desirable for treaty monitoring bodies. Indeed, the CEDAW does not seem to be changing its practice as it is neither applying the severability doctrine nor the Guideline 4.5.3.4 as a whole.

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issue of regulating reservation made to human rights treaties. Where a bilateral treaty establishes contractual obligations between the parties, a human rights treaty is of a non-reciprocal nature, that is, it establishes obligations on the State party vis-à-vis its citizens. The legal effect and validity of reservations in bilateral treaties is determined by the other party, whereas due to its specific nature questions arise of how reservations made to human rights treaties should be regulated. More specifically, who assesses the validity and determines the consequences of an invalid reservation?

This issue was first discussed in the International Court of Justice Reservations to the Genocide

Convention Advisory Opinion. 2_{The United Nations General Assembly referred the question}

of whether objections would regulate the legal effects of reservations made to multilateral treaties and, if so, whether and how the relation between an objecting state and the state making the reservation would be altered. 3_{The ICJ acknowledged that the nature of multilateral treaties}

differs from that of the law of contracts, namely that the intention of multilateral treaties is to ensure widespread ratification and not regulating inter-state relations.4_{It found that}

reservations to multilateral treaties, including human rights treaties, should be allowed, but only to the extent that these are compatible with the object and purpose of the Convention.5_It

was for the other States parties to assess the compatibility and object to it if found incompatible.6_{The legal consequences could be resolved between the objecting and reserving}

State party in a third-party procedure.7

In 1969 the Vienna Convention on the Law of Treaties was adopted, largely recognised as the codification of customary international law on the practice relating to treaties.8_{Within the}

1_{The Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, Art. 2(1)(d) (herein after}

referred to as VCLT).

2_{Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime}

of Genocide, ICJ, Reports 1951.

3_{Ibid, p.17.} 4_{Ibid, p. 21.} 5_{Ibid, p. 24.} 6_{Ibid, p. 29.} 7_{Ibid, p. 20.} 8_{VCLT (n 1).}

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5 VCLT are Articles 19 to 23 relating to reservations. The Articles incorporate both the ‘object and purpose’ test as established in the Reservations to the Genocide Convention Advisory

Opinion as well as the ‘objections system’.9_{As more human rights treaties were drafted and}

adopted, it became clear that the ‘object and purpose’ test was an underdeveloped one and especially not suitable for those human rights treaties that sought to protect a range of social, cultural and political rights.10_{Subsequently, if the State party did object to a reservation, it did}

not result in any legal consequences since Article 21 does not establish legal consequences of objections to reservations when it concerns a multilateral treaty.11

With an overall lack of State practice in objecting to invalid reservations and the fact that no third party-procedure was established to deal with the legal consequence of invalid reservation, lingering gaps in the law of reservations in relation to human rights treaties persisted. This was an important reason for the International Law Commission to include the topic of “The Law and the Practice Relating to Reservations to Treaties” in its agenda.12_{The ILC, established by}

the General Assembly, has the task of initiating studies and making recommendations in light of progressive development of international law and its codification.13_{Over the years, Alain}

Pellet the appointed Special Rapporteur on this particular topic, has published many different draft guidelines on the practice of reservations with the final Guide to Practice adopted in 2011.14_{Within these reports, the role of the treaty monitoring bodies in both the assessment of}

the validity of a reservation and the regulation of the legal consequences of an invalid reservation, changes over time.

The main purpose of treaty monitoring bodies is to monitor the implementation of the convention by its States parties. In fulfilling this purpose, the treaty monitoring bodies communicate with State Parties through reporting procedures on the progress of the State party in ensuring the implementation of the treaty. As invalid reservations impede on the substantial implementation of the respective convention, treaty monitoring bodies have expressed concern over invalid reservations and have sought ways through which to engage with the issue.

9_{VCLT (n 1) Articles 19-21.}

10_{Isabelle Buffard and Karl Zemanek, 'Object and Purpose of a Treaty: An Enigma, The' (1998) 3 Austrian Rev}

Int'l & Eur L 311, p. 314.

11_{VCLT (n 1) Article 21.}

12_{Alain Pellet, First Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/470, Yrbk}

ILC (1995), II(1).

13_{United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI Article 13(1)(a).}

14_{Alain Pellet, Seventeenth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/647}

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6 This thesis will assess the role of treaty monitoring bodies in the assessment of the validity of reservations and its role of ascribing legal consequences to an invalid reservation. It will do so by providing an overview of the general practice of the treaty monitoring bodies in relation to invalid reservations and how the ILC has depicted the role of treaty bodies over the years. With a focus of the Committee on the Elimination of Discrimination Against Women, the thesis will make an assessment on how the final Guide to Practice has contributed to the role of treaty monitoring bodies in dealing with the legal consequences of an invalid reservation. Specifically, it will examine whether the final Guideline 4.5.3.4 adopted has the potential of providing a viable option for the Committee on the Elimination of Discrimination Against Women in attaching legal consequences to an invalid reservation.

First a general and historical overview will be given of how the treaty monitoring bodies have dealt with the issue of invalid reservations and how the ILC has portrayed the role of treaty monitoring bodies (Chapter II), proceeding to make an in-depth assessment of how the CEDAW specifically has approached the issue of invalid reservations (III) to then assess whether the Guide to Practice 2011 Guidelines on the role of treaty monitoring bodies in ascribing consequences to invalid reservation are feasible and/or desirable (IV). Chapter II will be of a descriptive nature whereas Chapters III and IV include both descriptive and normative elements. Throughout the thesis both primary and secondary sources are used.

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II. The general practice of human rights treaty bodies and the work of the ILC

This chapter is of a descriptive nature as it will discuss the general practice of the human rights treaty bodies in both assessing the permissibility of reservations as well as dealing with the legal consequences of an invalid reservation. Section A will provide relevant information on the general structure of human rights treaty bodies. Section B will discuss the general practice of the human rights treaty bodies in dealing with invalid reservations as well as its legal consequences. The author has used both the treaty body database as well as secondary sources to seek material relevant for these sections. Section C will discuss the different ILC Reports of the Special Rapporteur on the Law and Practice Relating to Reservations to Treaties and will seek to demonstrate the how the role of the treaty monitoring bodies in regard to invalid reservations has changed over time. The author has considered all ILC Reports on Law and Practice Relating to Reservations to Treaties as well as secondary sources in seeking to obtain more background information.

A. Human rights treaty bodies

i) Structure and function

With the exception of the Committee on Economic, Social and Cultural Rights, all human rights treaty monitoring bodies are established under the corresponding human rights convention and consist of between 10 to 25 experts whose main purpose is to monitor the implementation of the convention by its States parties.15_{In fulfilling this purpose, the treaty}

monitoring bodies communicate with State Parties through reporting procedures on how the State party is ensuring the effective implementation of the treaty, to conclude by providing recommendations called ‘Concluding Observations’ on how the State party may improve the implementation. The bodies may issue general recommendations or comments with the purpose of clarifying issues of implementation. Although pacta sunt servanda requires states

15_{International Convention on the Elimination of All Forms of Racial Discrimination, Adopted and opened for}

signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965. Entry into force 4 January 1969, Article 8 (ICERD);International Covenant on Civil and Political Rights, General Assembly Resolution 2200 A (XXI), adopted 16 December 1966, entry into force 23 March 1976, Article 28 (ICCPR); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, Article 17 (CAT); Convention on the Elimination of All Forms of Discrimination Against Women, adopted GA Res. 34/180, 18 December 1979 entry into force 3 September 1981, Article 17 (CEDAW); Convention on the Rights of the Child (CRC), adopted GA Res. 44/25, 20 November 1989, entry into force 2 September 1990, Article 43; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Adopted by General Assembly resolution 45/158 of 18 December 1990, Article 72; Convention on the Rights of Persons with Disabilities Adopted by the General Assembly by it Resolution 61/106, at its 76th plenary meeting on 13 December 2006, A/RES/61/106, Article 34.

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8 parties to give weight to decisions, such as Concluding Observations, General Comments and Views, taken by a monitoring body, the decisions are not of legally binding status.16

With the exception of the Committee on Migrant Workers, the treaty bodies may receive individual complaints or communications given certain requirements are met.17_A

communication procedure provides the individual whose right under the respective convention has been violated the ability to bring forward a claim against the State party alleged of violating the right, provided, inter alia, that the State party is also party to the respective Optional Protocol.

ii) Reservations and human rights treaties

None of the nine main human rights conventions explicitly prohibit reservations to be made to provisions of the treaty.18_{With a varying degree of detail, most of the conventions include a}

provision regarding the permissibility of reservations namely that these must be in accordance with the object and purpose of the convention.19_{However, certain conventions such as the}

Convention Against Torture, for example are silent on reservations and therefore the customary law on the permissibility of reservations applies. Codified in the VCLT, Article 19 likewise requires reservations to be compatible with the object and purpose of the treaty.20_{None of the}

conventions mention an explicit object and purpose. This is unsurprising as not only is it hard to define specifically, what is considered to be part of its object and purpose may also develop over time which demands a flexible interpretation of ‘object and purpose’.21_{In general, a}

16_{Leena Grover, Helen Keller and Geird Ulfstein, UN Human Rights Treaty Bodies: Law and Legitimacy}

(Cambridge University Press, 2012), Chapter 9 p. 422.

17_{Ibid (n 15) ICERD Article 14; Optional Protocol to the International Covenant on Civil and Political Rights,}

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 9; Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, Adopted by General Assembly resolution A/54/4 on 6 October 1999 and opened for signature on 10 December 1999, Human Rights Day. Entry into force 22 December 2000; Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Adopted on 18 December 2002 at the fifty-seventh session of the General Assembly of the United Nations by resolution A/RES/57/199 entered into force on 22 June 2006; Optional Protocol to the International Covenant on Economic, Social and Cultural Rights : resolution / adopted by the General Assembly, 5 March 2009, A/RES/63/117; Optional Protocol to the Convention on the Rights of the Child on a communications procedure, Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/66/138 of 19 December 2011, entered into force on 15 April 2014.

18_{Ibid (n 15).} 19_{Ibid (n 15).}

20_{VCLT (n 1) Article 19(c).}

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9 reservation is against the object and purpose of the treaty if it impedes on the raison d’être, or in other words the core content, of the treaty.22

Given the expertise of the treaty body members on the respective human rights convention, it would be reasonable to argue that a treaty body is indeed competent to determine whether a reservation is compatible or incompatible with the object and purpose of that convention.23

Moreover, in adequately fulfilling its function of monitoring the implementation of the respective Convention by the State party the Committee must determine the extent of the States parties’ obligations in the respective implementations. In order to determine the extent of the State parties’ obligations, it per definition, requires an assessment of the legality of its reservations which exclude or modify the legal effect of a provision thus modifying its obligations.24

B. General practice of the human rights treaty bodies in approaching the issue of invalid reservations

Established 1969, the Committee on the Elimination of Racial Discrimination was the first human rights treaty monitoring body.25_{In dealing with reservations, Article 20 paragraph 2 of}

the ICERD states that a reservations which is incompatible with the object and purpose of the Convention shall not be permitted, a reservation is deemed incompatible when at least two thirds of the States parties object to it within 90 days of receiving notification of the reservation.26_{This provision is in line with the ‘objections regime’ first elaborated in the}

Reservations to the Genocide Convention Advisory Opinion.27_{This regime of assessing the}

validity of a reservation was quickly recognised as problematic due to the reasons that it depended on other State parties’ vigilance, a lack of objections made within the given time frame and the fact that some declarations were legally speaking reservations, however, were

22_{Alain Pellet, Seventeenth Report on the Law and Practice Relating to Reservations to Treaties (n 14) Guideline}

3.1.5.

23_{Valentina Carraro, ‘Electing the experts: Expertise and Independence in the UN human rights treaty bodies’}

(2019) 25(3) European Journal of International Relations, pp. 826–851.

24_{William A. Schabas, ‘Reservations to the Convention on the Rights of the Child’ (1996) 18(2),}

Human Rights Quarterly, p. 488; Economic and Social Council, Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights Fifty-sixth session, ‘Specific Human Rights Issue: Reservations to human rights treaties’ E/CN.4/Sub.2/2004/42, para 37.

25_{ICERD (n 15).} 26_{Ibid, Article 20(2).}

27_{Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime}

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10 never notified to other states parties as reservations.28_{In 1976 the Director of the Divisions of}

Human Rights by the Office of Legal Affairs opined that the CERD did not possess the authority to determine the permissibility of a reservations.29

Other treaty bodies also posed the question of who may assess the validity of a reservation as well as what the legal consequences are of an invalid reservation. For example, the Committee on the Rights of the Child during its First Session in 1991 asked the Secretariat to provide a note on this issue.30_{In its response, the Secretariat found that it was for the States parties to}

assess the compatibility of reservations.31_{It is therefore not surprising, given this common}

response, that general practice of treaty monitoring bodies during this time was of a more inquisitive nature. That is, the Committees sought information on the reason for the reservation to then inquire whether the State party would consider removing the reservation, without mentioning the issue of compatibility.32_{This is still a contemporary approach of some}

Committees where the issue of a reservation, that can be interpreted as being incompatible with the object and purpose of the convention, is often approached by expressing concern and urging the State to withdraw a reservation without making an explicit assessment nor determination on the compatibility of the reservation with the object and purpose of the Covenant. 33

28_{For example, many States parties made objections to Yemen’s reservations more than a decade after accession;}

Liesbeth Lijnzaad ‘Reservations to UN-human rights treaties: ratify and ruin?’ (1994) Rijksuniversiteit Limburg. p. 180.

29_{United Nations Juridical Yearbook 1976, Chapter VI. Selected legal opinions of the Secretariat of the United}

Nations and Related Intergovernmental Organizations, p. 200.

30_{Committee on the Rights of a Child, First Session Summary Records of the 1}st_{to the 27}th_Meetings,

CRC/C/1991/SR.1-27/ Corrigendum/Add.1, 20 April 1994.

31_{Committee on the Rights of a Child, Second Session, Report adopted by the Committee at its 46th Meeting, on}

9 October 1992, CRC/C/10, paragraph 49.

32_{See General Assembly, Report of the Human Rights Committee, Official Record Forty-Second Session, (1987)}

A/42/40, paragraph 234; UN Committee on the Elimination of Racial Discrimination (CERD), Consideration of Reports Submitted by States Parties Under Article 9 of The Convention, Concluding Observations on Switzerland, 1998, CERD/C/304/Add.44; CERD, Report of the Committee on the Elimination of Racial Discrimination Fifty-sixth and Fifty-seventh session, Concluding observations on Nepal, 2000, CERD/C/304/Add.107; CERD, Report of the Committee on the Elimination of Racial Discrimination Sixtieth and Sixty-first session, Concluding Observations on Yemen, 2002, CERD/C/61/CO/10.

33_{See UN Committee on Economic, Social and Cultural Rights (CESCR), UN Committee on Economic, Social}

and Cultural Rights: Report on the Twenty-fifth, Twenty-sixth and Twenty-seventh Sessions (23 April-11 May 2001, 13-31 August 2001, 12-30 November 2001), 6 June 2002, E/2002/22; E/C.12/2001/17; UN Committee on Economic, Social and Cultural Rights (CESCR), Report of the UN Committee on Economic, Social and Cultural Rights, Thirtieth and Thirty-first Sessions (5-23 May 2003, 10-28 November 2003), 2004, E/2004/22; E/C.12/2003/14; UN Committee on Economic, Social and Cultural Rights (CESCR), Committee on Economic, Social and Cultural Rights : report on the 40th and 41st sessions, 28 April-16 May 2008, 3-21 November 2008, 2009, E/2009/22; E/C.12/2008/3. Consideration initial report USA UN Committee Against Torture (CAT), Report of the UN Committee against Torture: third Session (8-19 November 1999) and Twenty-fourth Session (1-19 May 2000), 2 January 2000, Supplement No. 44 (A/55/44), paragraph 179(b). UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), Report of the Committee on [the Protection of] the Rights of All Migrant Workers and Members of Their Families, 5th session (30 October-3 November 2006) ; 6th session (23-27 April 2007), 1 August 2007, A/62/48.

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11 On the other hand, certain human rights bodies have taken a more explicit approach. For example, in 1994 the Human Rights Committee adopted the controversial General Comment No. 24.34_{In the General Comment the Committee found that it has the power to determine the}

compatibility of a reservation with the object and purpose as it is necessary for the Committee to know the extent of the State parties’ obligation. 35_{Moreover, in dealing with the legal}

consequences of an invalid reservation, it found that it would generally be severable, that is, the State would remain party to the Convention without the benefit of the reservation.36_Those

opposing General Comment No. 24 found that it was at odds with the law of consent and that the Committee went too far in asserting its own authority.37_{The Human Rights Committee is}

the only treaty monitoring body that has applied the severability approach.38_{For example, in}

Communication of Kennedy v Trinidad and Tobago the HRC found that the reservation made by Trinidad and Tobago to the First Optional Protocol, with the effect of denying a specific group of people the ability of issuing a communication, was contrary to the object and purpose of Optional Protocol and therefore severed the reservation.39

The CRC in its Second Session emphasised the importance of entering into a dialogue with State parties in State Reporting procedures to seek clarification on reservations made.40_Even

though it received a note from the Secretariat that it was the responsibility of States parties to assess the compatibility of reservations, from the outset of its Concluding Observations it has been common practice of the CRC to express concern that it deems a reservation to be incompatible with the object and purposes of the Convention and urging the removal thereof.41

Analogously, the practice of aforementioned Committees that have, in general, taken an approach of not explicitly assessing the compatibility of a reservation, is not static. To name a

34_{UN Human Rights Committee (HRC), 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, 4 November 1994, CCPR/C/21/Rev.1/Add.6.

35_{Ibid, paragraph 18.} 36_Ibid.

37_{Rosanne van Alebeek and André Nollkaemper in Leena Groover et al. UN Human Rights Treaty Bodies : Law}

and Legitimacy (Cambridge University Press, 2012) Chapter 8, p. 407; Marijke de Pauw ‘Women’s rights: from bad to worse? Assessing the evolution of incompatible reservations to the CEDAW Convention’ (2013) 29/77 Merkourios 51, p. 56.

38_{The severability doctrine will be discussed in chapter IV.}

39_{UN Human Rights Committee, Kennedy v. Trinidad and Tobago, Communication 845/1998, U.N. Doc.}

A/57/40, Vol. II.

40_{UN Committee on the Rights of the Child (CRC), Report of the UN Committee on the Rights of the Child,}

Second Session (28 September-9 October 1992), 19 October 1992, CRC/C/10 para 53.

41_{UN Committee on the Rights of the Child (CRC), UN Committee on the Rights of the Child: Concluding}

Observations, Indonesia (20 September to 8 October 1993), 25 October 1993, CRC/C/3/Add.10; UN Committee on the Rights of the Child (CRC), UN Committee on the Rights of the Child: Concluding Observations, Saudi Arabia, 17 March 2006, CRC/C/SAU/CO/2.

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12 few examples, the CESR in its Concluding Observations on Kuwait in 2013 found its reservations to Articles 2 and 9 incompatible with the object and purpose of the Covenant, recommending the removal of the reservations.42_{The CAT, in its General Comment No. 3}

explicitly stated that reservations to Article 14 of the Convention are incompatible with the object and purpose of the Convention.43_{In its Concluding Observations on Bangladesh in 2019}

it referred to its General Comment No. 3 when it considered the State parties’ reservation to Article 14, recommending that the State Party should withdraw its reservation.44_These

examples are from the past decade, demonstrating that the behaviour of treaty monitoring bodies is still developing.

C. Reports of the ILC Special Rapporteur: The Law and Practice relating to Reservations to Treaties

i) The First to the Ninth Report (1995-2004)

The question of reservations to treaties in general was first brought to the attention of the ILC by its Working Group in 1992.45_{The main reason was that in many different areas of the law}

relating to reservations, mostly governed by the VCLT, lingering issues with the reservations regime remained as the VCLT was found inadequate in providing reasonable solutions.46_In

1993 the ILC decided to include the topic of ‘the law and practice relating to reservations to treaties’ in the program of work and appointed Alain Pellet as the Special Rapporteur.47_Within

the Reports on the law and practice relating to treaties, there is specific a section dealing with the practice and proposed guidelines on the issue of reservations to human rights treaties.

The First Report exposed the problems which the Special Rapporteur encountered in addressing the issue of the practice of states and reservations in general.48_{Specifically, in the}

42_{UN Committee on Economic, Social and Cultural Rights (CESCR), Concluding observations on the second}

periodic report of Kuwait, 19 December 2013, E/C.12/KWT/CO/, paragraph 6.

43_{CAT (n 15); Committee against Torture (CAT), General comment no. 3, 2012: Convention against Torture and}

Other Cruel, Inhuman or Degrading Treatment or Punishment: implementation of article 14 by States parties, 13 December 2012.

44_{Committee against Torture (CAT), Concluding observations on the initial report of Bangladesh,}

CAT/C/BGD/CO/1, 2019.

45_{Yrbk ILC (1992), II(2), at 54, paragraph 368.} 46_Ibid.

47_{Alain Pellet ‘The ILC Guide to Practice on Reservations to Treaties: A General Presentation by the Special}

Rapporteur’ (2013) 24(4) The European Journal of International Law, p. 1063; UNGA ‘Resolution Adopted by The General Assembly [on the report of the Sixth Committee (A/48/612)]’ (1994) A/RES/48/31; Yrbk ILC (1993), II(2), at 96–97, paras 427–430 and 440. This decision was approved by GA res. 48/31 of 9 Dec. 1993, paragraph 7.

48_{Alain Pellet, First Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/470, Yrbk}

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13 context of reservations to human rights treaties it recognised the complexity added by General Comment No. 24 but that it was also apparent that certain actors were of the opinion that the VCLT Articles on reservations were not suitable for human rights treaties.49_{In the Second}

Report the Special Rapporteur concluded that the VCLT was suitable in dealing with this issue and that the issue of an invalid reservation was to be resolved between the States parties to a convention.50_{Within the VCLT framework, in its consideration of the Second Report the}

Special Rapporteur noted that in case of an invalid reservation, ‘it is the reserving State that has the responsibility for taking action’.51

Although recognising that, if it was part of the agreed upon competence, a human rights treaty body was able to determine the permissibility of a reservation, it could not take the reserving State’s role in determining the consequences of an invalid reservation.52_{From the First to the}

Ninth Report, the framework of the draft did not go beyond the framework of the VCLT.53

ii) The Tenth Report to the Thirteenth report (2005-2008)

In the 2005 Tenth Report draft guideline 3.1.12 related specifically on the assessment of the compatibility of a reservation to a human rights treaty.54_{Perhaps not progressive in and of}

itself, it was defined as a distinct move away from the argument that the VCLT framework was applicable to human rights treaties as it included guidelines that go beyond the existing VCLT framework.55_{In the subsequent Twelfth and Thirteenth Reports The guidelines on the role of}

49_{Ibid, paragraph 414 and 424.}

50_{Alain Pellet, Second Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/477,}

Yrbk ILC (1996), II(1), para 124 – 132.

51_{Report of the ILC on the Work of its 49th Session, Yrbk ILC (1997), II(2), ‘Preliminary Conclusions of the}

International Law Commission on Reservations to Normative Multilateral Treaties Including Human Rights Treaties’, section 10.

52_{Second Report on the Law and Practice Relating to Reservations to Treaties (n 47) paragraph 131.}

53_{First Report on the Law and Practice Relating to Reservations to Treaties (n 46); Second Report on the Law}

and Practice Relating to Reservations to Treaties (n 47); Alain Pellet, Third Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/Yrbk ILC (1998), II(2); Alain Pellet, Fourth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/499, Yrbk ILC (1999), II(1); Alain Pellet, Fifth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/508, Yrbk ILC (2000), II(2); Alain Pellet, Sixth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/ CN.4/518, Yrbk ILC (2001), II(1); Alain Pellet, Seventh Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/526, Yrbk ILC (2002), II(1); Alain Pellet, Eight Report on the Law and Practice Relating to Reservations to Treaties, Doc. Doc. A/CN.4/535, (2003); Alain Pellet, Ninth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/544 (2004).

54_{Alain Pellet, Tenth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/558 and}

Add. 1–2 (2005).

55_{Bruno Simma, Gleider Hernandez, The Law of Treaties Beyond the Vienna Convention, Part I Chapter 4 Part}

I Conclusion of Treaties, 4 Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?’ in Enzo Cannizzaro, The Law of Treaties Beyond the Vienna Convention (OUP, 2011) p. 71.

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14 human rights treaty bodies and invalid reservations remained similar to those established in the Tenth Report.56_{Namely, if a treaty monitoring body has the competence it may assess the}

validity of a reservation, a reiteration of the obligation on States to cooperate with monitoring bodies, but that the role in determining legal consequences is still that of the reserving state.57

iii) The Fourteenth Report (2009)

In 2007 the Special Rapporteur had a meeting with the human rights treaty monitoring bodies.58

The report of the meeting was drawn up by Pellet and added to the Fourteenth Report.59

Therefore, it provides as background information to better understand why the Special Rapporteur started shifting its narrative on the issue. During the meeting, the practice of human rights bodies and the principal aspects to the issue of human rights treaties and reservations were discussed.60_{In relation to assessing a reservation, it was clear that the treaty bodies had}

the competence to do so and that it would be beneficial to enter into a “reservations dialogue”.61

This resulted in the draft guideline 3.2 which formally established that a treaty monitoring body may assess, within its respective competence, the permissibility of the reservation.62

The commentary suggests that the Special Rapporteur had taken the view that indeed, in order for a treaty body to properly perform its duty of monitoring implementation, it must know the extent of its jurisdiction which requires an assessment of the permissibility of a reservation.63

However, draft guideline 3.2.2 states that the competences of the treaty bodies should be specified and that even for existing treaty bodies, States parties should adopt guidelines specifying the nature and limits of the bodies’ competence.64

Another issue that was discussed in the meeting with the human rights bodies, was that of the legal consequences of an invalid reservation.65_{The working group had in its 2007 Report of}

56_{Alain Pellet, Eleventh Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/574}

(2007); Alain Pellet, Twelfth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/584 (2007); Alain Pellet, Thirteenth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/600 (2008).

57_{Tenth Report on the Law and Practice Relating to Reservations to Treaties (n 51).}

58_{Alain Pellet, Fourteenth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/614}

and Add. 1–2 (2009).

59_{Ibid, Add. 1-2.} 60_Ibid.

61_{Ibid, Section 3(d), paragraph 35.}

62_{Fourteenth Report on the Law and Practice Relating to Reservations to Treaties (n 55) draft guideline 3.2.} 63_{Ibid, commentary section (6).}

64_{Ibid, guideline 3.2.2.} 65_{Ibid (n 55) Section 3(e).}

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15 the Meeting of the Working Group on Reservations to Human Rights Treaties was of the opinion that the consequence should be that the State remains party to the convention without the benefit of the reservation unless ‘its contrary intention is incontrovertibly established’.66

Pellet considered these recommendations in its Fourteenth Report, however, did not reiterate this position. Pellet did not include any guidelines on the legal consequence of a treaty body finding a reservation invalid because a thorough study was needed to assess the effects of such a guideline.67

iv) The Joint Fifteenth and Sixteenth Report (2010)

The Fifteenth Report was a continuation of the draft guidelines established in the previous reports and its addendum dealt with the novel topic of the legal effects of an invalid reservation.68_{Draft guideline 4.5.2 on the status of the author of an invalid reservation in}

relation to the treaty specifies that unless a contrary intention can be identified, the State party who formulated the invalid reservation will not benefit from the said reservation.69_The

intention will be identified through considering all relevant factors, including statements made by the State when it formulated the reservation.70_{This resembles the 2007 Report of the}

Meeting of the Working Group on Reservations to Human Rights Treaties opinion.71_The

Special Rapporteur based the draft guideline on the practice of states, regional courts and human rights bodies that have shown increasing supported the principle of ‘severability’72_as

well as the states who were persistent objectors to the principle arguing that it was not in line with the principle of consent. Pellet argued that this draft guideline would offer a middle solution, namely reconciling the principle of state consent and attaching legal consequences to invalid reservations.73

66_{Report of the Meeting of the Working Group on Reservations to Human Rights Treaties, Nineteenth meeting}

of chairpersons of the human rights treaty bodies, HRI/MC/2007/5 (2007), Para 16(7).

67_{Fourteenth Report on the Law and Practice Relating to Reservations to Treaties (n 55) draft guideline 3.2.1}

commentary section (5).

68_{Alain Pellet, Fifteenth Report on the Law and Practice Relating to Reservations to Treaties, Doc. A/CN.4/624}

and Add. 1, Sixteenth Report on the Law and Practice Relating to Reservations to Treaties Doc. A/ CN.4/626 and Add. 1 (2010).

69_{Ibid, draft guideline 4.5.2 [4.5.3].} 70_Ibid.

71_{2007 Report of the Meeting of the Working Group on Reservations to Human Rights Treaties (n 63).} 72_{See Chapter IV, Section A.}

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16

v) The Seventeenth Report and final Guide to Practice on Reservations (2011)

In 2011 the Seventeenth and final report of the Special Rapporteur on the topic was adopted. The final guidelines relevant to the role of the treaty monitoring bodies in both assessing reservations as well as the consequences that arise should the body find a reservation invalid, include Guidelines 3.2 to 3.2.3 and 4.5.3.74_{Guideline 3.2 and its subsection 3.2.2 are largely}

the equivalent of the draft 3.2 and 3.2.2 guidelines discussed in the Fourteenth Report, with the exception of excluding the recommendation that States parties should adopt guidelines specifying the nature and limits of existing treaty bodies’ competences.75_{Guideline 3.2.3}

requires the parties to give ‘consideration’ to the assessment of the treaty body, as the views of treaty bodies are of a non-binding nature.76

The legal effect of a treaty monitoring body finding a reservation invalid is included in Guideline 4.5.3.4. It finds that if a treaty body expresses the view that the reservation made by the State party is invalid, that the State should express its intention whether it intends not to be bound by the treaty without the reservation within twelve months after the assessment has been made. 77_{If it does not express the intention not to be bound without the benefit of the}

reservation, it is considered a State party without the benefit of the reservation.78_{In seeking to}

find a middle ground between severability and the principle of state consent, the ILC has taken a step closer to the position of the human rights bodies and step further away from its original position expressed in the 1997 preliminary conclusions.79_{The difference between draft}

guideline 4.5.2 in the Fifteenth Report and the final 4.5.3.4 Guideline, is that the final Guideline explicitly addresses treaty monitoring bodies and includes a time frame of 12 months for the author of the invalid reservation to express its intention.

74_{Alain Pellet, Seventeenth Report on the Law and Practice Relating to Reservations to Treaties Doc. A/CN.4/647}

and Add. 1 (2011).

75_{Ibid, guideline 3.2.2.} 76_{Ibid, guideline 3.2.3.} 77_{Ibid, 4.5.3.4.} 78_{Ibid, 4.5.3.2.}

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17

III. The Practice of the Committee on the Elimination of Discrimination Against Women

This chapter will demonstrate the practice of the Committee on the Elimination of Discrimination of Women (CEDAW) in both assessing the validity of a reservation and dealing with the consequences of an invalid reservation. First (Section A) it will provide a descriptive historical background of the CEDAW and elaborate on its competences. In the second section (Section B) it will assess the practice of the CEDAW on invalid reservations. It will demonstrate this through the use of the primary sources which are relevant. The author has also utilized secondary sources in establishing what materials are deemed to be of relevance to the issue at hand.

A. The Committee on the Elimination of Discrimination Against Women

The Convention on the Elimination of All Forms of Discrimination of Women was adopted in 1979.80_{It has become a widely ratified Convention, currently counting 189 States parties.}81

The CEDAW is simultaneously also subject to a large number of reservations.82_{Many of which}

can be interpreted as being against the object and purpose of the CEDAW.83_{Although the}

overall objective of the CEDAW is the elimination of discrimination against women the object and purpose is not one static specific objective. The object and purpose can be found in its normative content without which the Convention would not have meaning.84_{Even though}

Article 28(2) does not permit a reservation which is contrary to the object and purpose of the Convention, there is no further specification on the consequences if such an incompatible reservation is made.

Article 17 established the Committee on the Elimination of Discrimination Against Women, currently consisting of twenty-three experts whose main function is to monitor the progress made in the implementation of the Convention by States parties.85_{The Committee monitors}

such progress mainly through its reporting procedures and provides Concluding Observations on how the State party may improve the implementation of the Convention.86_{The Committee}

80_{CEDAW (n 15).} 81_{See CEDAW database.} 82_{Ibid, Reservations.}

83_{See Reservations of Qatar, Algeria, United Arab Emirates on Article 16 and Article 2.}

84_{Ulf Linderfalk, ‘On the Meaning of the ‘Object and Purpose’ Criterion, in the Context of the Vienna Convention}

on the Law of Treaties, Article 19’ (2003) 72 Nordic Journal of International Law pp. 429-448, p. 434.

85_{CEDAW (n 15) Article 17.} 86_{Ibid Article 18(1).}

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18 may issue general recommendations which seek to provide guidance to States parties on the implementation of the Convention as well as statements which seek to “clarify and confirm its position with respect to major international developments”.87_{Finally, through the}

establishment of the Optional Protocol the Committee is able to receive and consider communications from individuals or groups of individuals.88

B. The CEDAW and invalid reservations

i) General Recommendations, Statements and Decisions

The Committee first addressed the issue of incompatible reservations in 1987 in its General Recommendation No. 4, expressing concern on the number of incompatible reservations and asking States parties to reconsider these.89_{In General Recommendation No. 21 it noted with}

alarm the number of states that had entered reservations to Articles 2 and 16, often based on cultural or religious beliefs and explicitly called on States parties to remove reservations made to these Articles.90_{Similarly, in General Recommendation No. 23 it demanded that States}

parties who made a reservations to Articles 7 and 8 give reasons for the reservations and include a timetable for their removal.91_{General Recommendation No. 28 and 29 reiterate that any}

reservation to Article 2 and 16 is in principle incompatible with the object and purpose of the Convention.92

In 1998 the Committee adopted a Statement on Reservations to the CEDAW.93_{It expressed its}

grave concern of the number and extent of impermissible reservations formulated to the Convention, reiterating that reservations to Articles 2 and 16 are of such a nature and should be withdrawn.94_{It stated that although the Special Rapporteur}95_{considers the control of the}

87_{Ibid, Article 21(1); Committee on the Elimination of Discrimination against Women ‘Ways and means of}

expediting the work of the Committee on the Elimination of Discrimination against Women’ (2009) CEDAW/C/2009/II/4, para 36.

88_{Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (n 16).} 89_{Committee on the Elimination of Discrimination against Women ‘General Recommendation No. 4’ (1987)}

A/42/38.

90_{Committee on the Elimination of Discrimination against Women ‘General Recommendation No. 21’ (1994)}

A/49/38.

A/52/38.

CEDAW/C/GC/28, Committee on the Elimination of Discrimination against Women ‘General Recommendation No. 29’ (2013) CEDAW/C/GC/29.

93_{Committee on the Elimination of Discrimination against Women ‘Statement on Reservations to the Convention}

on the Elimination of Discrimination against Women adopted by the Committee on the Elimination of Discrimination against Women’ (1998) A/53/38/Rev.1.

94_{Ibid, paragraphs 11, 17, 24.} 95_{See Chapter II, Section C, i.}

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19 permissibility of a reservation is the primary responsibility of the States parties, it expressed its concern on that even when a State party objects to an invalid reservation there is reluctance on part of the reserving State to remove it.96_{Thereby it expressed that it did not deem the}

‘objections regime’ satisfactory in ensuring States parties remove invalid reservations.

In regard to assessing permissibility of a reservation, the Committee had assessed and determined a reservation as incompatible with the object and purpose in Concluding Observations for the first time in 1987 Concluding Observations on South Korea.97_However,

the first statement explicitly mentioning its competence to assess a reservation was adopted by the Committee in its Report of the Committee on the Elimination of Discrimination against Women on its forty-first session. Decision 41/I provides that the determination of the permissibility of reservations falls within the functions of the Committee under the reporting procedure as well as under the Optional Protocol, which include individual communications and inquiry procedures.98

ii) Individual communications

In order for an individual communication to be considered by the Committee, the State party to the Convention must also be a State party to the Optional Protocol.99_{In accordance with}

Article 2 of the Optional Protocol, communications may be submitted by an individual or group of individuals who are under the jurisdiction of a State party and claim to be victims of a violation of any of the rights stipulated in the Convention.100_{The purpose of the}

Communications procedure is to provide direct access to an enforcement mechanism and therefore furthering its overall purpose of eliminating all forms of discrimination against women. Occasionally, a communication will present itself where the author alleges a reservation made by the State party to be invalid and the violation on part of the State party thereof. A valid reservation would bar the admissibility of the communication on the alleged

96_{Statement on Reservations (n 90) paragraph 24.}

97_{Report of the Committee on the Elimination of Discrimination against Women on its Sixth Session, Concluding}

Observations on South Korea (1987) UN Doc. A/42/38 para 134.

98_{Committee on the Elimination of Discrimination against Women ‘Decision 41/I’ (2008) UN Doc. A/63/38, Part}

II, Chap I.

99_{Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (n 17)}

Article 1.

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20 violation of that provision, however, when it concerns an invalid reservation the Committee may nonetheless decide to consider the merits of the communication.101

In the three communications discussed below, the issue of an incompatible reservation was either the central or an important aspect to both the author and the State party to the communication. The author has selected these on the basis of assessing all CEDAW communications.

a) Ragan Salgado v UK

The author of the communication claimed to have been a victim of violations of Articles 1, 2(f) and 9(2) of the Convention by the United Kingdom of Great Britain and Northern Ireland.102

The author alleged to have suffered from sex-discrimination on the basis that the British Nationality Act 1948 did not allow for mothers with British nationality to transmit the nationality to their children who were born abroad, comparatively the Act did not impose such a restriction on fathers.103_{Although the subsequent 1981 Act repealed this provision, the}

requirements imposed under that Act nonetheless denied the author to transmit British nationality to her son.104

Apart from arguments of ratione temporis and the failure to exhaust domestic remedies, the State party stated that the communication was ‘manifestly ill founded’ in relation to Article 9 as it had issued a reservation.105_{The reservation concerned the 1981 Act where ‘the United}

Kingdom’s acceptance of Article 9 shall not, however, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue in force beyond that date.’106

It argued that section 5 of the 1948 Act concerned such a ‘temporary or transitional provision’ and that it therefore should incur no responsibility under the Convention.107

101_{OHCHR ‘Individual Complaint Procedures under the United Nations Human Rights Treaties’ (2013) Fact}

Sheet No. 7/Rev 2., p. 9.

102_{Decision of the Committee on the Elimination of Discrimination against Women under the Optional Protocol}

to the Convention on the Elimination of All Forms of Discrimination against Women, Ragan Salgado v UK, ‘Communication No. 11/2006’ (2007) CEDAW/C/37/D/11/2006, para 1.

103_{ibid para 1.} 104_{ibid para 2.2.}

105_{ibid para 4.9, 4.14, 4.18.} 106_{ibid para 4.18.}

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21 The State Party asserted that in accordance with the VCLT it was for the State parties to determine the compatibility of this reservation and that the Committee had never raised any concerns with this reservation in any of its Concluding Observations.108_Responding

specifically to the argument of the reservation to Article 9, the author commented that these “temporary or transitional provisions” had lasted for more than 20 years and that the subsequent Acts should have resulted in the revocation of the reservation to Article 9.109_{The author asserted}

that therefore the reservation was incompatible with the object and purpose of the Convention and it was within the competence of Committee to make a binding determination on the permissibility of the reservation.110

The Committee found the communication inadmissible on grounds of ratione temporis and a failure to exhaust all domestic remedies.111_{It moreover saw ‘no reason to find the}

communication inadmissible on other grounds’.112_{The Committee may have concluded that it}

was unnecessary to discuss the permissibility of the reservation given the Communication would be inadmissible regardless.

b) SOS Sexisme v France

The authors of the communication, represented by SOS Sexisme, claimed that the inability to transmit a family name as a woman to their children under French Law violates the Convention as it amounts to discrimination.113_{Although initially not basing the claim on specific articles}

of the Convention, after receiving the Committee’s interim decision, SOS Sexisme claimed that Articles 2, 5 and 16(1)(g) were violated by France.114_{France had entered a reservation to}

Article 16(1)(g) which concerned the right to choose a family name.115_{The author stated that}

although France had made a reservation to Article 16(1)(g) of the Convention, it had no effect as Article 17 of the Optional Protocol does not allow for any reservation to be made.116_The

author did not mention issues of compatibility of the reservation, which is surprising given the

108_ibid.

109_{ibid para 5.2.} 110_{ibid para 7.5.} 111_{ibid para 8.7 (a).} 112_{ibid para 8.6.}

to the Convention on the Elimination of All Forms of Discrimination against Women, SOS Sexisme v France, Communication No. 13/2007 (2009) CEDAW/C/44/D/13/2007, para 1.

114_{ibid para 8.} 115_ibid. 116_ibid.

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22 Committee has often reiterated it deemed reservations to Article 16 in principle impermissible.117

France argued that Article 17 of the Optional Protocol referred only to reservations made to that Protocol and not to reservations made to the Convention.118_{Hence it found that the}

reservation had to be taken into account and would render the communication inadmissible. France furthermore argued that the Committee was prohibited from considering the case under articles other than Article 16(1)(g) as this would entail a failure to apply the lex specialis principle, which would have potentially ‘detrimental consequences as far as reservations and declarations are concerned’.119_{It also found that issues of ratione temporis, the definition of}

‘victim’ under Article 2 of the Optional Protocol, a failure to exhaust domestic remedies and the fact that it found the issue to have been previously examined by the European Court of Human Rights, should bar the communication from being found admissible.120

The Committee agreed with the State party on the principle of lex specialis and examined the communication under Article 16(1)(g).121_{Whist not once mentioning the fact that France had}

entered into a reservation to that provision specifically, it found the communication inadmissible on other grounds.122_{The approach of the Committee members in the of the}

Communication was perhaps to first ensure that the Communication was admissible on all other grounds before making an assessment of the permissibility of the reservation.

Certain Committee members did not agree with this approach and therefore formed an individual opinion. The Committee members in the individual opinion found that for four authors seeking to take their mothers’ name, Article 16(1)(g) was not relevant.123_Moreover,

the individual opinion found that an ‘examination of the compatibility of reservations with the Convention is necessary only in the case that the Committee considers the applicability of the Article in relation to which a reservation has been entered’ and therefore did ‘not agree with the approach of the Committee … making no assessment of the reservation to the said provision’.124 117_{See Section B, i.} 118_{ibid para 9.2.} 119_{ibid para 9.3.} 120_{ibid para 4.1, 4.3, 4.9.} 121_{ibid para 10.3.} 122_{ibid para 10.13.} 123_{ibid para 11.4.} 124_{ibid para 11.8.}

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23 This statement reflects Decision 41/I, that the Committee has the competence to assess the permissibility of the reservation in an individual communication. However, it also suggests that the Committee members should assesses the validity of the reservation from the moment it finds it applicable and regardless of the Communication being inadmissible on other grounds. In light of the challenge in dealing with invalid reservations, one can understand why the Committee members in the individual opinion advocate making a determination on the validity with perhaps a view to encourage the State party to remove the said reservation should the Committee find it is indeed invalid. However, whether such a determination, in the specific context of a Communication, will encourage the State party to merely withdraw its reservation is not a certainty.125

c) J.S. v UK

The present Communication is similar to Communication No. 11/2006 discussed above. The author claimed to be a victim of violations to Articles 1, 2, 3 and 9 of the Convention by the UK.126_{The author, a son of a British mother, claimed that the 1948 Act and the subsequent}

Acts were discriminatory towards women.127_{As previously discussed, the UK had made a}

reservation to Article 9.128_{The State party also raised other issues barring admissibility, such}

as the exhaustion of domestic remedies.129_{The Committee held that indeed the author had}

failed to exhaust all available domestic remedies and that therefore the communication was inadmissible.130_{Similarly, it stated that it deemed it unnecessary ‘to examine any other}

inadmissibility grounds’.131

iii) Concluding observations

This section will provide an overall indication of how the Committee dealt with invalid reservations in concluding observations. It will look specifically at the UK and France, the

125_{See Chapter IV, Section B, ii.}

to the Convention on the Elimination of All Forms of Discrimination against Women, J.S. v UK, ‘Communication No. 38/2012’ (2012) CEDAW/C/53/D/38/2012, para 1.1.

127_{ibid para 3.1.} 128_{ibid para 4.12.} 129_{ibid para 4.1.} 130_{ibid para 7.} 131_{ibid para 6.4.}

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24 States parties to the communications, in assessing whether the Committee has mentioned the issue of the alleged invalid reservations made by the States parties.

Part of the reporting procedure for the Committee is to provide concluding observations regarding the progress made by a State party. In 1987, in its first concluding observations in general and on South Korea specifically, it held that its reservations to Articles 9 and 16 were incompatible with the object and purpose of the Convention.132_{Over the past decade this has}

become standard practice where the CEDAW, in discussing reservations that are deemed invalid by the Committee in Concluding Observations, explicitly states that these are incompatible with the object and purpose of the Convention and urging the withdrawal of these reservations.133_{On the other hand, the Committee has not followed a consistent pattern of}

explicitly stating it finds reservations to Articles 2 and 16 incompatible with the object and purpose in Concluding Observations. For example, in the Concluding Observations on Algeria it used more implicit terminology suggesting a reservation was invalid reservations to Articles 2 and 16 ‘obstacles for the full implementation of the Convention’.134_{There are different}

reasons for inconsistency in practice, including a conscientious decision on part of the Committee who takes into account the most conducive way to enter into a dialogue with the State party.135

a) The United Kingdom of Great Britain and Northern Ireland

The UK was the State party in both Communication No. 11/2006 and 38/2012 discussed above. In its first period report concluding observations, the Committee inquired whether the amendments to the 1948 Act would encourage the UK to withdraw its reservation.136_{In the 7}th

132_{Report of the Committee on the Elimination of Discrimination against Women on its Sixth Session (1987) UN}

Doc. A/42/38 para 134.

133_{See for example, UN Committee on the Elimination of Discrimination Against Women (CEDAW), UN}

Committee on the Elimination of Discrimination against Women: Concluding Comments, Mauritania, 11 June 2007, CEDAW/C/MRT/CO/1; UN Committee on the Elimination of Discrimination Against Women (CEDAW), Concluding observations of the Committee on the Elimination of Discrimination against Women - Israel, 16 December 2011, CEDAW/C/ISR/CO/5; UN Committee on the Elimination of Discrimination Against Women (CEDAW), Concluding observations on the eighth periodic report of Bangladesh, 18 November 2016, CEDAW/C/BGD/CO/8.

134_{UN Committee on the Elimination of Discrimination Against Women (CEDAW), UN Committee on the}

Elimination of Discrimination against Women: Concluding Comments, Algeria, 26 January 1999, CEDAW/C/DZA/1 and Corr.1 and Add.

135_{Hanna Beate Schoepp-Schilling, ‘Reservations to the Convention on the Elimination of All Forms of}

Discrimination against Women: An Unresolved Issue or (No) New Developments?’ in Ineda Ziemele, ed., Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (Martinus Nijhoff Publishers, 2004), p. 35.

136_{Report of the Committee on the Elimination of Discrimination against Women on its Ninth Session (1990)}

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25 period report, the Committee urged the UK to withdraw all its reservations, although not specifically mentioning nor assessing the validity of the Article 9 reservation.137_{The UK has}

yet to withdraw its reservation. One could argue that it would be beneficial as a means of encouraging the removal of the reservation, for the Committee to mention this specific reservation and the fact that it has been 34 years since it made the reservation concerning “temporary or transitional provisions”.

b) France

France was the State party in Communication No. 13/2007 discussed above. The Committee had in its concluding observations in the second periodic report on France first expressed its concern about the reservation made to, inter alia, Article 16(1)(g).138_{The subsequent}

concluding observations urged France to take the steps necessary for the withdrawal of all its reservations to the Convention.139_{In the concluding observations on the sixth periodic report,}

it was encouraged by the Committee to remove the reservation made to Article 16(1)(g).140

Never explicitly stating in France’s concluding observations that it found the reservation incompatible with the object and purpose, nonetheless the Committee has often reiterated the position that any reservation made to the core articles of the Convention, inter alia, Article 16, is by definition against the object and purpose of the Convention and therefore incompatible.141

It is perhaps therefore that it does not feel the necessity in reiterating this with each individual States parties’ concluding observation but rather urges the removal thereof. In 2013, after the Communication, France withdrew all its reservations including the reservation made to Article 16(1)(g).

137_{Committee on the Elimination of Discrimination against Women ‘Concluding observations on the seventh}

periodic report of the United Kingdom of Great Britain and Northern Ireland’ (2013) CEDAW/C/GBR/CO/7, para. 11.

138_{Report of the Committee on the Elimination of Discrimination against Women on its Twelfth and Thirteenth}

Session (1994) CEDAW/SP/1994/2 para. 325.

139_{Report of the Committee on the Elimination of Discrimination against Women on its Twenty-eighth and Ninth}

Session (2003) A/58/38 para. 252.

140_{Committee on the Elimination of Discrimination against Women ‘Concluding comments of the Committee on}

the Elimination of Discrimination against Women: France’ (2008) CEDAW/C/FRA/CO/6, para. 11.

Invalid reservations and human rights treaties The role of treaty monitoring bodies

Invalid reservations and human rights treaties

Abstract

Table of Contents