CEDAW Reservations Rebecca J. Cook

RESERVATIONS TO THE CONVENTION ON THE ELIMINATION OF ALL..., 30 Va. J. Int'l L.
643
30 Va. J. Int'l L. 643

Virginia Journal of International Law
Spring, 1990
RESERVATIONS TO THE CONVENTION ON THE ELIMINATION
OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
Rebecca J. Cooka
Copyright 1990 by the Virginia Journal of International Law Association; Rebecca J. Cook
I. INTRODUCTION
The Convention on the Elimination of All Forms of Discrimination Against Women1 (the Women's Convention) is the
definitive international legal instrument requiring respect for and observance of the human rights of women; it is universal
in reach, comprehensive in scope and legally binding in character. It was adopted in December 1979 by the United Nations
General Assembly and came into force in September 1981 after ratification by the twentieth state party. This was within two
years of its adoption, faster than any previous human rights convention had come into force.
As of February 2, 1990, 100 countries had ratified or acceded to the Women's Convention.2 The rate and extent of ratification
are tempered, *644 however, by recognition of the acute problem of substantive reservations.3 The volume of reservations
brings this Convention among the most heavily reserved of international human rights conventions, with at least 23 of 100
states parties making a total of 88 substantive reservations.4 An additional 25 reservations have been made to article 29 on
dispute settlement.5
The claim that the Women's Convention came into effect rapidly in part because, under its article 28(2), it accommodates
reservations that are not incompatible with the object and purpose of the Convention must be qualified by the fact that twenty
of its states parties have made a less than full commitment.6 The issue of reservations is legally contentious not simply within
the general body of international treaty law but also within the legal regime of the Women's Convention itself; the reservations
made by states parties have attracted a total of ninety-five objections, filed principally by a core of three states parties.7 The
problem that the objections identify is that a treaty designed to prohibit all forms of discrimination has member states which
purport to accept less than that goal. The Women's Convention may face the paradox of maximizing its universal application
at the cost of compromising its integrity. Indeed, the legal issue of the propriety of reservations to this Convention goes to the
heart of both values of universality and integrity.
The Women's Convention is one of a series of treaties inspired by a vision of the importance of protection of human
rights through international *645 law. It is historically proximate to the International Convention on the Elimination of
All Forms of Racial Discrimination8 (the Race Convention), and a jurisprudential partner to the two Covenants that give
effect to the Universal Declaration of Human Rights,9 namely the International Covenant on Civil and Political Rights10 (the
Political Covenant) and the International Covenant on Economic, Social and Cultural Rights11 (the Economic Covenant). The
Political Covenant, the Economic Covenant, the Race Convention and the Women's Convention provide the universal basis for
interaction with the various regional human rights conventions such as the European Convention for the Protection of Human
Rights and Fundamental Freedoms12 (the European Convention), the American Convention on Human Rights13 (the American
Convention), and the African Charter on Human and Peoples' Rights (the African Charter).14
Human rights treaties of this nature are distinguishable from historic international treaties of trade, commerce and territorial
transfer, which tend to be bilateral and are contractually finite in nature. These historic treaties create mutual privileges for
states parties that are concluded in principle on a basis of reciprocity, and are interpreted on conservative grounds protective of
state sovereignty and limited reduction of legal autonomy. Multilateral human rights treaties have universal legislative effect
2010 Thomson Reuters. No claim to original U.S. Government Works.
RESERVATIONS TO THE CONVENTION ON THE ELIMINATION OF ALL..., 30 Va. J. Int'l L. 643
in international law with obligations erga omnes. Human rights treaties may also be regional for purposes of agreement and
enforcement, but their regionalism is not an end in itself, but simply a means to the end of universal elevation and global
maintenance of individual human rights and dignity.
Accordingly, it has been recognized that the jurisprudence of international human rights conventions is distinguishable from that
applicable to other international treaties. The Vienna Convention on the Law of Treaties (the Vienna Convention) has been
widely ratified and is recognized beyond its ratifying membership as being generally declaratory of prevailing international law
on treaty interpretation. Its article 60(5) recognized that the normal rules of termination or suspension of a treaty do not apply
to provisions relating to the protection *646 of the human person contained in treaties of a humanitarian character ... The
International Court of Justice (ICJ) in its 1951 Advisory Opinion on Reservations to the Genocide Convention explained that
the contracting parties to human rights treaties adopt such conventions
for a purely humanitarian and civilizing purpose. [They] have, one and all, a common interest, namely, the accomplishment
of those high purposes which are the raison d'etre of the convention. Consequently, in a convention of this type one cannot
speak of individual advantages or disadvantages to States, or the maintenance of a perfect contractual balance between rights
and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation
and measure of all its provisions.15
The Inter-American Court in a 1982 Advisory Opinion recognized that the object and purpose of human rights treaties is
the protection of the basic rights of individual human beings, irrespective of their nationality, both against the State of their
nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit
themselves to a legal order within which they, for the common good, assume various obligations not in relation to other States,
but toward all individuals within their jurisdiction.16
The European Commission on Human Rights, applying the European Convention in a 1960 case, emphasized that the obligations
of states parties are
of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement
by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties
themselves ...17
*647 A significant feature of the Women's Convention is that it not only amplifies particular areas of the general field of
discrimination (all forms of which are ultimately to be eliminated), but also specifies a number of means that are to be pursued
to achieve this end. It establishes through article 17 a monitoring body, the Committee on the Elimination of Discrimination
Against Women (CEDAW),18 whose task is continually to observe states parties' behavior and performance. The treaty therefore
operates in the context of progressive development and strives in good faith towards the ultimate result of the elimination of
all forms of discrimination against women.
The Women's Convention imposes obligations of result and obligations of means. Article 2 of the Women's Convention
condemns discrimination against women in all its forms and provides that states parties agree to pursue, by all appropriate
means and without delay a policy of eliminating discrimination against women by undertaking constitutional, legislative,
administrative and other measures. States parties shall also refrain from discriminatory acts or practices, provide sanctions
where appropriate prohibiting all discrimination against women, protect the rights of women on an equal basis with those of
men and, for instance, modify or abolish existing laws, regulations, customs and practices that discriminate against women.
Article 3 requires states parties to take ... all appropriate measures ... to ensure the full development and advancement of
women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis
of equality with men. Article 24 underscores articles 2 and 3 by requiring states parties to adopt all necessary measures ...
aimed at achieving the full realization of the rights recognized in the present Convention. Articles 2, 3 and 24 accordingly
impose obligations of means to be pursued without delay toward the ultimate result.19
*648 The thesis of this article is that the object and purpose of the Women's Convention are that states parties shall move
progressively towards elimination of all forms of discrimination against women and ensure equality between men and women.
Further, states parties have an obligation to provide the means to move progressively toward this result.20 Although the Women's
Convention envisions that states parties shall move progressively towards elimination of all forms of discrimination against
women and ensure equality between men and women, reservations to the Convention's substantive provisions pose a threat to
the achievement of this goal. Further, states parties have an obligation to provide the means to move progressively toward this
result.21 Accordingly, reservations that contemplate the provision of means towards the pursuit of this goal will be regarded
as compatible with the object and purpose of the treaty as provided by article 28(2) of the Women's Convention and article
19(c) of the Vienna Convention.22 Similarly, any reservation that contemplates enduring inconsistency between state law or
practice and the obligations of the Women's Convention is incompatible with the treaty's object and purpose.23
II. TREATY RESERVATIONS
A. Formulating Reservations
A basic principle of international law is pacta sunt servanda (agreements *649 are to be kept). The principle predictably
pervades the law of treaties,24 and has been codified in article 26 of the Vienna Convention, which states that e very treaty
in force is binding upon the parties to it and must be performed by them in good faith.25 Good faith performance requires
states parties to observe and apply a treaty in accordance with its proper interpretation. Michel Virally described the role of
good faith as threefold:
1. good faith forms the foundation of pacta sunt servanda, the principle that makes it possible to ascertain the legal meaning
of a state's behavior;
2. assessment of good faith provides a mechanism for determining the extent of the legal obligations assumed by states or other
subjects of international law; and
3. the duty to act in good faith protects those who trust the appearance reasonably created by the behavior of other international
legal actors, and those who have made a genuine mistake and are thus the innocent victims of deceptive appearances.26
Article 31 requires that a treaty be interpreted in good faith ... in light of its object and purpose. As Kennedy has written,
[t]hroughout the Convention, absolute duty is coupled with a good faith lubricant, and the formal triggers for duty or release
from duty to perform are paired with an exception for unjust results.27 One of the most important means of limiting treaty
obligations is through reservations. The role of reservations under the regime of international human rights conventional law
highlights the constant tension between encouraging universal participation in a human rights convention and protecting the
integrity of the convention.28 Wide acceptance of such a convention affords it credibility and the capacity to become normative
under customary law even for nonsignatory states. Such states may deny the normative effect of the convention by pointing to
the exemptions states parties have made through reservations, but the cumulative impact of general adherence and states parties'
objections to reservations made by other states may leave a balance in *650 favor of the convention's positive influence on
contemporary customary international law.
Tolerance of reservations to international human rights conventions has been encouraged on pragmatic grounds.29 Treaties on
human rights are likely to jeopardize the sovereignty of states parties without at the same time offering them a commercial
advantage that may render a compromise of sovereignty worthwhile.30 Most states are apprehensive about the possible
consequences of accepting a human rights treaty, not least because such treaties may have a dynamic force and interpretation of
their scope and impact is less certain than that of commercial treaties.31 States realize that they may not be able to withdraw and
may be found in breach, with harmful or humiliating consequences. Reservations are seen to offer an assurance that the state
can protect its interest to the fullest extent possible. Further, reservations may reduce uncertainties in human rights conventions,
particularly when they are accepted by other states; there may be apparent overlap between a true reservation and a state's
interpretive declaration of the meaning or scope of an obligation.32 A reservation precluding retroactivity, for instance, may
clarify the Convention's object and purpose and therefore be compatible with it.33 States may accept human rights treaties
subject to genuine interpretative declarations intended to guard against misinterpretations that are foreseeable.34 In addition,
multilateral human rights treaties *651 have a universal legislative effect in international law with obligations erga omnes.35
This article examines treaty reservations under the Vienna Convention, the Belilos judgment of the European Court of Human
Rights, and the ICJ's Advisory Opinion on Reservations to the Genocide Convention.36 International jurisprudence on treaty
reservations provides that a valid reservation to a treaty becomes a part of that treaty and affects the treaty relations among the
reserving state and other states parties. Article 2(d) of the Vienna Convention defines a reservation as any 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.
Article 19 of the Vienna Convention37 limits the power to make and accept reservation depending on their compatibility with the
object and purpose of the treaty.38 Article 20 of the Vienna Convention addresses acceptance of and objections to reservations,
and provides that a reservation authorized by a treaty does not require acceptance unless the treaty so provides. Paragraph 5 of
article 20 states that unless the treaty otherwise provides, a reservation is considered to have been accepted by a state that has
raised no objection to it by the end of twelve months after it was notified of the reservation or by the date of its own expression
of consent to the treaty, whichever is later.
Article 20(4)(a) has the effect of dividing a multilateral treaty into a series of separate bilateral treaties between two states
parties which are bound by the original treaty as modified by the reservation of one that has been accepted by the other.39
Objection to a reservation does *652 not preclude the entry into force of the treaty between the reserving and objecting states,
except regarding the provision(s) to which the reservation was made, unless the latter denies a treaty relationship in a definitive
form. The binding nature of the reserved treaty would appear to be a natural consequence of the rule in article 19(c)40 that
only compatible reservations may be formulated; that is, the reserving state has committed itself in good faith to act compatibly
with the treaty, and is therefore in principle bound jointly with another party to the treaty, even if the other party does not find
the reservation compatible.
The implication of a state remaining a treaty partner with another state whose reservation it declares to be objectionable is
that the reservation is not incompatible with the object and purpose of the treaty, unless the objecting state so declares.41
Legal uncertainty is raised, however, when a state declares that another state's reservation is objectionable because of its
incompatibility with the object and purpose of the treaty, but otherwise considers itself to be in a treaty relation with the reserving
state.42
Article 21 of the Vienna Convention43 defines the legal effects of *653 reservations and of objections to reservations. The
result that the reservation becomes part of the treaty and has to be interpreted as such was emphasized by the Inter-American
Court in the Death Penalty Opinion in its observation that it is consequently impossible to interpret the treaty correctly, with
respect to the reserving State, without interpreting the reservation itself.44 Principles of treaty interpretation are therefore
applicable both to the terms of the treaty and to the language of the reservation. Article 21(3) excluding the application between
an opposing and reserving state of a provision to which an opposed reservation relates appears to have the same legal effect on
treaty relations that follows between any state and a reserving state from acceptance of or non-objection to the reservation.45
The Belilos judgment of the European court of Human Rights turns on the extent to which the Vienna framework of analysis
is tightened through the European Convention, which provides for more specificity through Article 64.46 The purported
reservation of Switzerland, *654 contained in its exemptive interpretive declaration, was held not to be specific and was
accordingly held to be invalid. Switzerland was thereby regarded as having no reservation or effective declaration and
accordingly was to be bound by every term of the Convention including that to which it had purported to invoke an exemption.
This raises the question under the Women's Convention and under comparable human rights conventions that contain no explicit
requirement that a reservation must be specific of whether the provision of specificity is an implied condition of formulation
of a reservation: that is, whether the European Convention simply makes explicit what is otherwise implicit in human rights
treaty provisions that allow reservations.47 There is clear logic to support the proposition that a reservation that is not finite is
not an adequate reservation, but such logic may be resisted by the experience of history and international law that countries
are not taken to limit their sovereignty except by express consent.48 It may accordingly be argued that an unclear reservation
compromises the specificity and effectiveness, not of the reservation itself but of acceptance of the treaty provision or of the
treaty itself to which the reservation is made.49
The Belilos judgment discloses an additional means by which a purported reservation may be approached.50 The Court in that
case did not necessarily accept that the Swiss interpretive declaration constituted a reservation, but considered that
the court must see to it that the obligations arising under the [European] Convention are not subject to restrictions which would
not satisfy the requirements of Article 64 as regards to reservations. Accordingly, it will examine the validity of the interpretive
declaration in question, as in the case of a reservation, in the context of this provision.51
The Court found that the declaration did not satisfy the requirements of article 64 of the European Convention in two regards.
Article *655 64(1) requires specificity and article 64(2) requires a reservation to contain a brief statement of the law involved,
and the Swiss declaration was deficient in both regards.52 The Belilos judgment provides a foundation for a general rule of
interpretation that a purported reservation that does not specify in adequate detail the exemption a state party claims affords
that party no relief.
In the Belilos judgment the Swiss declaration was found not to be the sine qua non of acceptance of the Convention and therefore
severable from state party acceptance. Regarding the Women's Convention, if a state's reservation is a condition of acceptance,
and the purported reservation is found by another state party either not to constitute a reservation or to be an invalid reservation,
the latter will not be in a treaty relationship with the reserving state party. If the provision purportedly reserved is considered,
however, to constitute jus cogens, or if the reserving state showed an intention to be bound by the Convention notwithstanding
ineffectiveness of its purported reservation, a preferred view would be that the state remains a party bound by the provision
it claimed to reserve.
The European Court's application of the specificity criterion of reservations in the Belilos judgment appears to refine the
provision in the Vienna Convention that a reservation must be compatible with the object and purpose of the Convention to
which it is made. Accordingly, a purported reservation that fails this quality control criterion should serve neither as a reservation
nor as a limitation on the reserving state's acceptance of the treaty. Treaty acceptance imports acceptance of the treaty condition
of making a valid reservation, and a purported reservation that fails to satisfy the condition will not be treated as a reservation.
It is a general principle of construction that a reservation is read narrowly or contra proferentem. In order to demonstrate
compatibility with the object and purpose of a treaty, a reservation may be expected to satisfy implied criteria of specificity.
The Vienna Convention provides that a reservation is identified as a matter of substance and not mere form so that what is
described as other than a reservation may be treated as a reservation.53 It equally follows that a statement is not necessarily to
be treated as a reservation merely because a state describes its discomfort with a potential application of a treaty as a reservation
to it.54 Whether language constitutes *656 a true and valid reservation is a matter for independent determination.55 It remains
open to a state to contend, however, that its purported reservation is the sine qua non of its general acceptance of a treaty, so
that the general acceptance and the purported reservation either stand or fall together.56
The Vienna Convention addresses the legal consequences of states parties' responses to others' reservations, but is silent as to
the implication of non-reservations (that is, purported reservations that are not accepted as such, as in the Belilos judgment),
leaving them to be governed by the general law. Because purported reservations to human rights conventions are designed to
excuse states parties from obligations that otherwise may be binding erga omnes,57 it may follow that the formulation of an
invalid reservation provides no such excuse and that the state party is accordingly bound by the general treaty provisions. A
state cannot invoke other states parties' acceptance of its purported reservation as giving it effect under the Vienna Convention.
B. Acceptance and Rejection of Reservations

Coccia has observed that the difference between acceptance of and objection to a reservation is currently rather obscure.58 The
obscurity arises not simply from apparent contradictions in the provisions of the Vienna Convention concerning formulating,
accepting and objecting to reservations but also from identification of when formulating an incompatible reservation to a
multilateral human rights treaty constitutes a wrongful act that incurs the legal responsibility of the reserving state party to other
states parties.59 An additional source of obscurity is the determination of which states parties have accepted a reservation or
waived their right to complain of the wrong done to them by the objectionable reservation and when they have preserved the
right to complain before a tribunal that has jurisdiction over the *657 reserving state.60
The law of state responsibility interacts with provisions of the Vienna Convention that govern when a state incurs liability for
breach of the treaty, including a human rights treaty. Under the regime of the Vienna Convention, the compatibility rule for
reservations embodied in article 19(c) and the rules on the acceptance of and objection to reservations contained in article 20(4)
are not easy to reconcile.61 The former provides that a state may not formulate a reservation incompatible with the object and
purpose of the treaty concerned but the latter provides that a reserving state becomes a party to the treaty regarding all other
states that expressly accept the reservation, do not object to it, or that object without expressing a definite intention to preclude
the entry into force of the treaty between the reserving state and itself. Article 20 does not take into account the content or
compatibility of the reservation. This apparent contradiction has invited three interpretations.
The first is that the only real test for the admissibility of a reservation is acceptance by other states.62 According to this
interpretation, the content of the reservation is relevant only to the interpretation of the rights and obligations of the treaty
parties inter se.63
A second interpretation seeks to differentiate the scope of Articles 19 and 20 of the Vienna Convention. According to this
interpretation, article 19 governs the permissibility of a reservation, an incompatible reservation being impermissible and
therefore illegal.64 Article 20, on the other hand, concerns the issue of the opposability of a permissible reservation and this
involves inquiring into the reactions of the Parties to that reservation and the effects of such reaction.65
Yet a third construction respects the rule of article 19(c) of the Vienna Convention that a state may not formulate an incompatible
reservation and the rule that such formulation constitutes a breach of an international legal obligation arising either pursuant to
the Vienna Convention or customary international law that the Convention codifies. Formulation of an incompatible reservation
is a wrongful act *658 entailing the reserving state's international responsibility regarding the other states parties. The
reservation is not necessarily a breach of the treaty itself but rather a breach of the legal norm embodied in the Vienna Convention
that prohibits the formulation of incompatible reservations.66 The ILC's Draft Articles on State Responsibility provide in article
3 that there is an international wrongful act of a State when: (a) conduct consisting of an action or omission is attributable to
the State under international law; and (b) that conduct constitutes a breach of an international obligation of that State.67
Compatibility of a reservation with the object and purpose of a treaty is a legal issue suitable for judicial resolution. Whether a
state party to a treaty may complain of incompatibility depends initially, however, on that party's reaction to the reservation. An
objecting state may claim that the reserving state has incurred responsibility for its wrongful act of violating the compatibility
rule of reservations, but states that have expressly or tacitly accepted the reservation cannot subsequently assert the reserving
state's responsibility regarding themselves.
Denial of an accepting state's right subsequently to claim incompatibility of the reservation may rest upon two grounds. The
first deems the accepting state to have waived its subjective right of complaint, whereas the second invokes acceptance as
precluding wrongfulness of the reservation. A limitation of any legitimating effect of consent is that no consent can make lawful
a violation of jus cogens.
The significance of an objection to a reservation is twofold. First, it reserves the right of complaint of the objecting state against
the reserving state's exclusion from its treaty obligations of duties that would otherwise be binding in its relations with the
objecting state.68 Second, and more importantly, the objection reinforces the norm from which the reserving state attempts to
free itself through its reservation and weighs against a judicial finding that the norm reserved is not or is no longer a norm of
customary international law and that the *659 reservation itself, perhaps in conjunction with similar reservations formulated
by other states, evidences a contrary rule of customary international law.69 Objections to reservations both uphold the legally
binding character of the norms reserved, and preclude the norm implicit in the reservation from being found to be legally
obligatory.70
It has been observed that the real scope of the compatibility rule of Article 19(c) is limited by the consent of states since
it applies only when such consent is lacking71 Thus, a tribunal will adjudicate whether the reserving state has violated the
compatibility rule only when a complaining state has objected to the reservation.
In its Advisory Opinion on Reservations to the Genocide Convention, the ICJ affirmed what has been called a modern softer
approach to reservations.72 The majority of the Court decided that a contracting State which has made a reservation can,
while still maintaining it, be regarded as being a party to the Convention, when there is a divergence of views between the
contracting parties concerning this reservation, some accepting the reservation, others refusing to accept it if the reservation
is compatible with the object and purpose of the Convention.73
While the majority of the ICJ stressed the authority which would result from the participation of as many states as possible,
the joint dissenting judges focused on the integrity of the relevant Convention and endorsed a harder, traditional contractual
approach. Under this approach a reservation constituted a counter-offer which required new acceptances, failing which a
state making the reservation could not become a party to the treaty.74 They recognized the importance of the integrity of
multilateral conventions, the legal basis of which is the common consent of the parties.75 The underlying principle of consent
was fundamental, with the result that a strict rule of unanimous acceptance was held to be applicable to reservations.76 In
the absence of an express provision to the contrary, the joint dissenting judges *660 held, no reservation to a multilateral
convention is valid unless it has been accepted by all states parties.77
C. Principles of Interpretation
There are at least four general principles that can be used to interpret treaty reservations.78 As in the case of municipal canons of
statutory construction, the principles guide but do not necessarily govern the interpretation of treaty reservations. The principles
are:
1. The textual principle. This principle gives primacy to the ordinary meaning of the text of a treaty.79 Regarding the textual
principle, a 1984 Advisory Opinion of the Inter-American Court of Human Rights has observed that
this method of interpretation respects the principle of the primacy of the text, that is, the application of objective criteria of
interpretation. In the case of human rights treaties, moreover, objective criteria of interpretation that look to the texts themselves
are more appropriate than subjective criteria that seek to ascertain only the intent of the Parties.80
2. The contextual principle. This principle requires that attention be given not only to the text but to the interrelationship of
all parts of the text, including the preamble, annexes and subsequent agreements and practice, as required by article 31(2) and
31(3) of the Vienna Convention. Contextual interpretation requires an article of a treaty to be read consistently with another
article, not in a way that undermines or neutralizes it.81
*661 3. The object and purpose principle. This principle requires treaties to be interpreted in order that their object and purpose
be given fullest weight and effect in a manner that is consistent with the normal sense of the words and with other parts of
the text. Determination of the object and purpose or multiple objects and purposes of a treaty is difficult and controversial.
It is legally necessary to undertake this task, however, for purposes both of interpretation of the Women's Convention to give
effect to its object and purpose and in particular for satisfaction of the goal of its article on reservations. Article 28(2) of the
Women's Convention provides that a reservation incompatible with the object and purpose of the present Convention shall not
be permitted. Accordingly, approaches to determining how to give effect to the object and purpose of the present Convention
are central to determination of the legal validity of reservations. The general object and purpose of human rights treaties are
to protect individual rights. Where an article, such as article 28(2) of the Women's Convention, provides for limitations or
qualification of those rights, it will be construed narrowly so as to give maximum effect to the purpose of protecting individual
rights.82 Where there is uncertainty about the object and purpose of a treaty, the travaux preparatoires may be considered as a
supplementary means of confirming meanings not clear from the text or context.83
Article 32 of the Vienna Convention defines the role of supplementary means of treaty interpretation including the preparatory
work of the treaty and the circumstances of its conclusion, which may be invoked in order to confirm the meaning derived by
applying Article 31. The travaux prparatories may be especially useful when the application of Article 31 (a) leaves the meaning
ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. *662 They are a supplementary
means to be used when the meaning is not clear from the text or context.
4. The dynamic principle. This principle is particularly significant to human rights conventions and provides that the object
and purpose of a treaty are to be served through whatever means are appropriate to unforeseeable future circumstances. The
European Court in Marckx v. Belgium, 2 Eur.Hum.Rts.Rep. 330, 346 (1979) applied this principle to enable an unmarried
mother to legitimate her child in the same way as a married woman and stated that the Convention must be interpreted in
light of present day conditions. Under the Women's Convention, CEDAW is afforded the capacity to measure states parties'
conformity to their different obligations in changing circumstances. Article 18(1) imposes a duty on states parties periodically
to submit to the Secretary-General of the United Nations, for consideration by CEDAW, a report on the legislative, judicial,
administrative or other measures which they have adopted to give effect to the provisions of the Convention and on the progress
made in this respect. Such reports may indicate factors and difficulties affecting the degree of fulfillment of obligations under
the Convention. Thus, the Convention may be understood to have an elastic or dynamic component, and its terms and obligations
may appropriately be construed in accordance with the dynamic principle of interpretation.
These principles of treaty interpretation have at their root the more general principle of effectiveness. The effectiveness principle
is a mechanism of interpretation used by courts to give a treaty the fullest weight and effect consistent with its language and text.
In applying the principle of effectiveness, it is important to keep in mind the distinction between the concepts of obligations of
result and obligations of means.84 An obligation of result imposes a duty upon a state to achieve a defined practical outcome
by means of its own choice.85 An obligation of means may be seen either as an obligation to take *663 appropriate steps
towards the advancement of an identified goal or as reinforcing an obligation of result by mandating that the end be secured
through specified means.86 The ILC points out that the decisive criterion for concluding the obligation has been fulfilled or
breached is a comparison between the particular course of conduct required by the obligation and the conduct actually adopted
by the State.87
If the ordinary meaning of the reservation is to eliminate all means by which states can progressively develop toward the ultimate
goal of the Convention, the reservation is incompatible with the Convention's object and purpose. Further, if a state party rejects
its obligation of result by a reservation in a substantive area, it must be determined within the context of the particular state's
situation whether that reservation is inconsistent with the object and purpose of the Convention and therefore not permissible.
If the reservation addresses the timing of the achievement of the result, for example, it is not incompatible, even though the
state party may have breached its good faith obligation to implement the convention.
III. THE WOMEN'S CONVENTION
A. Background
The Women's Convention was adopted unanimously by the U.N. General Assembly on December 18, 1979.88 Adoption of
the Women's Convention was the culmination of work initiated in 1972 when the Commission on the Status of Women
(the Commission) *664 asked the U.N. Secretary-General to invite members to transmit their views concerning the nature
of new international legal instruments on women's equality with men.89 The Commission, a functional body of the U.N.
Economic and Social Council (ECOSOC), also established a working group to facilitate drafting.90 A 1973 working paper91
expressed concern about the inadequacy of earlier instruments designed to advance women's status92 including the Convention
Against Discrimination in Education,93 the Convention for the Suppression of Traffic in Persons and of the Exploitation of the
Prostitution of Others,94 the Convention on the Political Rights of Women,95 the Convention on the Nationality of Married
Women,96 the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages97 and the
Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value.98 The working paper
noted that the 1967 Declaration on the Elimination of Discrimination Against Women99 (the Women's Declaration) was not
legally binding on states even though it had moral force,100 and found existing instruments that could be legally binding were
not yet widely ratified.101 In addition, the working paper stated that, despite these instruments, i nequality of the sexes is,
in fact, still part of the idealized heritage of a large part of public opinion *665 which sees in this nothing that is odious or
persecutory while discrimination based on other differences such as race and religion is not considered permissible.102
The arguments in favor of a single comprehensive convention included the desire to make states legally bound to eliminate
de facto discrimination,103 to integrate and improve existing instruments, to streamline the implementation procedures and
include all manifestations of inequality based on sex that were not currently covered, and to hasten the elimination of
discrimination through the proclamational, political and educational value generated by publicizing the broad and subtle nature
of discrimination against women.104
The arguments against a single instrument included practical considerations: first, about whether the objective of achieving
equality between women and men might be better served by regional instruments and, second, about means by which a new
instrument could be integrated with existing instruments.105 Some states favored a convention that covered only areas of sex
discrimination that were not yet subject to international agreements.106 Moreover, if membership in the Race Convention was
an indication, states which systematically practiced sex discrimination would not ratify a new instrument.107 Despite these
arguments,108 the Commission decided in 1974 to prepare a draft convention for the elimination of discrimination against
women.109
1. Definition: Discrimination Against Women
For the purposes of the Women's Convention, a legal definition of discrimination against women was required.110
Discussion of the *666 development of the Women's Declaration into the Women's Convention showed an intention to
define discrimination against women, for purposes of legal application.111 Article 1 of the Women's Declaration contains an
explanation of why discrimination is objectionable, but does not offer a legal definition in observing that d iscrimination
against women, denying or limiting as it does their equality of rights with men, is fundamentally unjust and constitutes an
offence against human dignity.112
The Working Group to the Commission on the Status of Women,113 the Commission itself,114 and the Working Group of the
Third Committee115 all applied to the definition of discrimination against women elements of Article 1 of the Race Convention,
which defines racial discrimination to mean:
any distinction, exclusion, restriction or preference based on *667 race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an
equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other
field of public life.116
As finally adopted into Article 1 of the Women's Convention, the definition reads:
the term discrimination against women shall mean any distinction, exclusion or restriction made on the basis of
sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field.117
This definition departs from the Race Convention definition of racial discrimination in two material regards.118 First,
discrimination against women omits any reference to preference. Second, the Race Convention applies to certain distinctions
drawn in the political, economic, social, cultural or any other field of public life,119 whereas the Women's Convention
governs certain distinctions in the political, economic, social, cultural, civil or any other field.120 Accordingly, the Women's
Convention is not confined to governmental obligations regarding public life, but imposes obligations in the private or civil
field.121
The omission of preference in the definition of discrimination against women was a matter of extensive discussion. The
original draft Convention submitted to the Commission on the Status of Women by the Philippines was modeled directly on the
Race Convention, *668 and included preference in its definition of discrimination.122 In the subsequent draft proposed in
collaboration with the U.S.S.R., preference was omitted from the definition.123 This text was proposed to the Commission,
however, with an alternative text of Article 1 that included preference in the definition of discrimination.124 Opinions were
divided between the proposed and the alternative text, with a slight majority in favor of the latter.125 Denmark, Portugal and the
World Young Women's Christian Association specified that they favored the alternative because of its inclusion of preference
of men over women as constituting discrimination against women.126 Countries including Finland favored the alternative text
because of its similarity to the Race Convention,127 and alternative drafts submitted by Benin,128 Belgium,129 Indonesia130
and the All-African Women's Conference131 included preference in their definition.
A sense of necessity to compromise in order to advance agreement on a text eventually took hold. Therefore, for the sake of
advancement of the whole enterprise, the proposed text omitting preference was adopted by the Commission without vote.132
Countries originally favoring inclusion of preference in the definition of discrimination were satisfied that states parties to
the eventual Convention would be obliged to act against discriminatory preferences under, for example, article 4 on temporary
special measures.133
More significant to the contrast between the Race Convention and the Women's Convention is that the latter obliges states
parties to act *669 to affect the private or civil field of conduct.134 The strongest emphasis on the need to combat private
discrimination against women came from the United Nations Educational Scientific and Cultural Organization (UNESCO),
which was constantly vigilant lest states lose sight of the need to commit themselves to influence the private and family sectors
of national life.135
Obligations on states parties to equalize private relationships are outlined in article 5(a), which requires governmental action
through appropriate measures to modify social and cultural patterns of conduct based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women.136 Article 5(b) requires state action to ensure that
family education will contribute to parents and children gaining proper understanding of equality of the sexes within the family.
More specifically, article 15(2) requires that states parties shall accord to women, in civil matters, a legal capacity identical
to that of men.... In particular, they shall give women equal rights to conclude contracts and to administer property.... Article
15(3) provides that States Parties agree that all contracts and all other private instruments of any kind with a legal effect
which is directed at restricting the legal capacity of women shall be deemed null and void. This article shows a forceful
intention to intervene in private contractual, property and other interactions with a view to eliminating discrimination against
women. For instance, rules of interstate succession cannot exclude women from being successors to estates nor from undertaking
their administration. Indeed, the provision may even threaten the execution of wills directed at restricting the legal capacity
10
of women, for instance by requiring legislation to the effect that unjustified exclusions of women from succession or fair
entitlement shall be corrected or held voidable or void.
Article 16 affects matters relating to marriage and family relations. It addresses private matters by requiring states parties to
ensure, on a basis of equality of men and women, the same rights to enter marriage, *670 the same rights and responsibilities
during marriage, and the same rights and responsibilities with respect to children and at dissolution of marriage. Ample evidence
exists, therefore, of an intention in the Convention that states parties eliminate discrimination in private and family matters.
The definition of discrimination was intended to empower the Convention to be effective to liberate women to maximize
their individual and collective potentialities, and not merely to be brought to the same level of protection of rights that men
enjoy. This objective is reflected in the inclusion in the definition of discrimination of the provision that offensive conduct is
that which distinguishes on the basis of sex and which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms....137 Achieving the same status for married and unmarried women is a goal separate from that
of securing equal developmental opportunities for women and men. This further confirms that the definition is concerned not
simply with equalizing the sexes but with affording women maximum opportunities for growth in all areas.
2. Scope of the Convention: All Forms of Discrimination
The inclusion in the title of the Convention of the phrase all forms138 expresses a determination to adopt a treaty to eliminate
such discrimination in all its forms and manifestations described in paragraph 15 of its preamble. The preamble139 makes
clear that the Convention fits into a general framework of international human rights conventions that prohibits discrimination
on several grounds, including sex, and a series of conventions designed to eliminate specific forms of discrimination against
women.140
In addressing all forms of discrimination, the Women's Convention is intended to be comprehensive by recognizing that women
are not only subject to specific inequalities but that they are also subject to pervasive forms of discrimination woven into
the social fabric. Thus, the Women's Convention progresses beyond the earlier specialized conventions141 by addressing the
pervasive nature of sex discrimination. *671 It also develops modern general conventions on human rights by identifying the
need to confront the social, cultural and religious causes of sex inequality and by addressing all forms of sex discrimination.142
The Working Group responsible for preparation of the Women's Convention constantly expressed awareness that international
human rights provisions, both general and specific, provided only patchwork coverage, since existing conventions had not
been systematically adopted.143 The aim of the Women's Convention was to afford states an opportunity they were morally
obliged to accept to commit themselves to the realization of women's potentials through a single unifying instrument. Some
respondents to the evolving proposal of a unifying instrument resisted it on the ground that significant modern general human
rights conventions, including the U.N. Charter, already rendered discrimination on grounds of sex unlawful.144 Without denying
this, the majority acknowledged that discrimination against women persisted and considered it essential that an instrument be
designed to address discrimination against women in all of its manifestations.145 This view was strengthened by the perception
that in many regions blatant discrimination against women had been supplemented by more subtle forms of discrimination,
sometimes presented in benign terms. For instance, praise of women's roles in homemaking and childrearing led to disregard of
women's work in calculation of a country's gross national product and to women's invisibility as contributors to national wealth.
In order to extend beyond the existing conventions aimed at specific forms of discrimination, the Convention is designed to
prohibit discrimination in all its forms and manifestations whether in fact or law. Awareness of the potential for women to
experience discrimination through practices not required or sanctioned by law permeates the *672 preamble to the Women's
Convention. Realization of the need to change practices not themselves based on law is given effect particularly in articles
2 and 3 of the Convention. Article 3 looks beyond penal and other laws and regulations to require that action be taken in all
fields to ensure the full development and advancement of women ... on a basis of equality with men.146 As a result, practices
11
detrimental to women (e.g., lack of obstetric services) that are not addressed by the article 1 definition of discrimination, are
prohibited by article 3.
Article 2 requires states parties to eliminate all forms of discrimination against women. It defines the potential sources
of discrimination broadly to include any legally sanctioned activities that may be taken by any person, organization or
enterprise.147 Article 2 emphasizes the duty to embody principles of equality in national constitutions and legislation,148 to
adopt appropriate legislative and other measures, including sanctions prohibiting all discrimination against women,149 and
to repeal national penal provisions that discriminate against women.150 It also requires modification or abolition of other forms
of de jure discrimination contained in laws, regulations, customs and practices.151
The scope of the Convention covers discrimination in practice because the framers were concerned that in situations of poverty
women have the least access to food, health, education, training and opportunities for employment and other needs.152 As
a result, the Convention entitles women to equal enjoyment not only of the first generation of civil and political rights but
also the second generation of economic, social and cultural rights.153 Article 10 advances the theme of equality in education
by requiring states parties to ensure, among other things, equal access for women to educational establishments that have the
same academic standards, qualifications of staff, and school premises and equipment as are available to men. Article 11(1)
addresses state responsibilities towards women in employment including, inter alia, rights to equal remuneration, promotion
*673 opportunities and job security. Article 12 requires state parties to take all appropriate measures to eliminate discrimination
in matters of health care and ensure that women have appropriate services in connexion with pregnancy, confinement and the
post-natal period. Article 13 concerns elimination of discrimination in areas of economic and social life including equal rights
to family benefits, to financial services such as bank loans and to recreational activities.
The existence of a monitoring or enforcement mechanism in a convention can engender reservations because, being liable
to answer to an international body on which it is not necessarily represented, a State will endeavour to have the range of its
obligations defined as precisely as possible.154 The accountability of states parties to the Women's Convention may have
encouraged states parties to make reservations to forestall criticism from the progress reports submitted by states to CEDAW
concerning the steps they have taken to implement the Convention.
B. The Reservations Article of the Women's Convention
In attempting to frame a comprehensive instrument, the Commission had to address a pervasive problem facing international
human rights conventions: whether the primary goal of the convention is to maximize the universal application of the
instrument155 or to protect its integrity.156 This problem was addressed by determining whether and how to include an article
on reservations. Difficult calculations were made of the interaction between the quantity of adhering states and the quality or
extent of their acceptances of obligations. Protecting the integrity of the Convention by excluding potential states parties who
would not accept a full commitment would reduce universal adherence and, thus, the effectiveness of the Convention. The
compromise was to encourage widespread acceptance by allowing compatible reservations to the obligations of membership.
The approach that the Women's Convention takes to reservations *674 resulted from a compromise of preferences, which
differed substantially in the earliest stages of drafting. When the U.N. Secretary-General was preparing its initial working
paper157 for consideration by the Commission on the Status of Women, the Philippines urged that reservations of whatever
kind shall not be permitted.158 Equally responsive to draft proposals were a number of East European countries159 that had
rejected the unanimity rule on reservations that existed prior to the Vienna Convention.160 Instead they adhered to the view
that every State had the sovereign right to make reservations unilaterally and at will, and to become a party to treaties subject
to such reservations, even if they were objected to by other contracting States.161 A third view was offered by Finland, citing
the possibility of partial ratification of any single convention, in order to accommodate different priorities of states with respect
to equality rights of men and women.162
12
Consistent with its position, the Philippines proposed a draft convention that was silent on reservations for consideration at the
1974 meeting of the Commission.163 Since the draft addressed only matters of substance and did not include provisions for
implementation, no firm conclusion can be reached regarding the approach to reservations of countries sympathetic to the draft.
The 1973 working paper prepared by U.N. Secretary-General summarized measures of implementation provided by existing
U.N. instruments on human rights (for instance regarding reporting and complaints procedures that were eventually rejected in
the 1979 Women's Convention) but made no reference to reservations.164 An alternative working paper for a draft convention
was prepared jointly by the Philippines and the U.S.S.R.165 Some draft provisions of an implementing character were attached,
but they made no mention of reservations. The hopes of several government representatives on the Commission on the Status
of Women that a convention would be adopted as a contribution to *675 the U.N. 1975 International Women's year were
not realized.166
In preparation for the 1976 deliberations of the Commission, the U.N. Secretary-General prepared a working paper reflecting
responses received from forty governments, four U.N. specialized agencies and ten non-governmental organizations to a
further draft convention.167 Regarding the Final Provisions of that draft convention on implementation, which were silent
on reservations,168 Sweden expressed the opinion that it was advisable to accommodate states making a limited number of
reservations. The intention was that reservations be valid only for a relatively short period during which state legislation
and related measures could be undertaken to clear the road for an acceptance of the Convention without reservations.169
The United Kingdom considered it essential that reservations be more generally accommodated, provided that they were not
incompatible with the object and purpose of the Convention, in accordance with accepted international practice embodied in
article 19 of the Vienna Convention.170
A number of representatives saw no need to include a reservation provision in the text of the Women's Convention in light of
prevailing treaty law established by article 19.171 Other representatives referred, however, to article 20 of the Race Convention
and suggested that the precedent of expressly incorporating a provision on reservations be followed.172 When Denmark
proposed an additional article on reservations for the draft Women's Convention, the proposal was adopted without a vote.173
Closely following the text of the Race Convention, the additional article proposed that the Secretary-General of the U.N.
shall receive and circulate to all ... Parties to the present Convention the text of any reservations made by States at *676 the
time of ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the date
of the said communication, notify the Secretary-General that it does not accept it.174
The second paragraph of the additional article provided that
a reservation incompatible with the object and purpose of the present Convention shall not be permitted, nor shall a reservation
the effect of which would inhibit the operation of the Ad Hoc Group established by the Convention [i.e., what became the
Committee on the Elimination of Discrimination Against Women] be allowed. A reservation shall be considered incompatible
or inhibitive if at least two thirds of the States Parties to the Convention object to it.175
The reservation provision that was adopted in principle as part of the Women's Convention was further discussed when ECOSOC
received the Commission's December 1976 comments on the draft Convention.176 Japan urged greater clarity and simplicity,
along the lines of the Vienna Convention, pointing out that the provision allowing any state to object to a reservation was too
broad, since it was doubtful whether a state that was not yet a party to the Convention should have a right to register an objection.
Regarding the second paragraph, Japan considered it unclear whether a reservation became incompatible only if two-thirds or
more of the states parties objected to it or whether there could also be reservations that were considered incompatible with the
object and purpose of the Convention when two-thirds of the states parties had not objected to them.177 Japan also pointed out
that when two-thirds of the states parties objected to a reservation, which was thereby considered incompatible, it remained
13
unresolved whether the state remained a party to the Convention without the reservation, whether the ratification or accession
of the reserving state was itself considered nullified, or whether the state had to withdraw from the Convention.178
The last point reflects objections to the Genocide Reservations Opinion179 which influenced the formulation of the Vienna
Convention. *677 Because it was accepted during discussions of the Women's Convention that the Vienna Convention
provided applicable background treaty law, the Japanese observation on the lack of certainty in the draft was not pursued. The
earlier Japanese observation on the incongruity of the draft provisions, namely that a reservation incompatible with the object
and purpose of the Convention shall not be permitted and that a reservation shall be considered incompatible or inhibitive if
opposed by two-thirds of the states parties, reflects the distinction drawn by Bowett between reservations that are inherently
impermissible without regard to objection and those that are identified as incompatible by states parties' objection.180 A
simplification proposed by Hungary that the Convention provide that a reservation should only be considered incompatible if
at least two-thirds of states parties object to it181 begs the distinction between compatibility and inherent permissibility. The
Japanese difficulty has not been resolved, and continues to affect interpretation of the prevailing reservation provision.
The reservation provision was refined considerably at the October and November 1979 meetings of the Working Group of the
Whole.182 In the course of reaching compromises among differing preferences, the parties effectively stripped the provision of
the features that identified its origins in the Race Convention. A number of delegations repeated earlier views that the provision
was unnecessary in light of the Vienna Convention. Others disagreed with the proposed 90-day objection period, apparently in
deference to the Vienna Convention provision that allows objections to be notified within one year of receipt of communication
of a reservation.183 The U.K. undertook the responsibility to propose a compromise formula designed to satisfy delegates who
had expressed concerns about the reservation provision *678 to the Working Group.184 The formula applied the style of
minimalist or bare bones drafting, and the Working Group adopted the formula into the article as a whole.185 The final text
of Article 28 of the Convention reads:
1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States
at the time of ratification or accession.
2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.
3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the United
Nations who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.
C. Determining Compatibility
In determining the compatibility of reservations, it is important to place particular emphasis on the principle of good faith.186
Many groups promoting women's rights are skeptical whether states that have gone through the formal motions of ratifying the
Women's Convention possess a serious intention to implement it. Japan, for instance, has been criticized for passing equal pay
legislation that includes no sanctions for its infringement,187 even though, according to article 2(b) of the Women's Convention,
states parties agree to adopt legislative and other measures, including sanctions where appropriate.188 The principle of good
faith is also important in determining the legal effect of reservations, and objections to reservations, to the Women's Convention.
It is easy to impute bad faith to countries that have ratified the Convention with substantive reservations and to argue accordingly
for their exclusion from membership in the Convention. Reservations should be both made and interpreted in good faith.
*679 If groups interested in improving women's status discount the principle of good faith or reduce expectations of its efficacy,
they undermine other principles of international law that they need to invoke in order to eliminate discrimination against women.
Article 28(2) of the Women's Convention permits reservations provided that the reservation is not incompatible with the object
and purpose of the Convention.189 The implication of article 28(2) is that tests of incompatibility of reservations are objective
and justiciable and do not turn simply on whether other states parties have expressly or tacitly accepted a particular reservation
or have objected to it.190 The task of determining whether a reservation is compatible with the object and purpose of a treaty
14
will be approached by judicial techniques of treaty interpretation, including recourse to the provisions of a treaty, its preambular
language and perhaps its travaux prparatoires.191
The meaning and compatibility of a reservation are matters of substance and not mere form. Courts will be influenced by the
detrimental impact a reservation is liable to have on the obligation of result to eliminate all forms of discrimination against
women, on the obligation of means to provide measures to achieve that result, and perhaps also by the symbolic significance
for the integrity of the treaty that a reservation may possess. Whereas the objective character of norms of international law
is relevant to set the general context of the issue, courts will also have to consider specific domestic circumstances of each
reserving state when assessing the compatibility of its reservations. A country's culture, political system, religious traditions
and economy are all examples of relevant considerations.
If, within the reserving state, the impact of the reservation is minor, so as to approach if not actually fall under the principle de
minimis non curat lex, the reservation can be tolerated in the name of promoting universal membership in the Convention. If,
however, the impact on women is significant in denying equality or equality of opportunity with men, the reservation must be
rejected and the cause of integrity *680 of the Convention must prevail.192 The significance of a reservation is determined
prospectively by an interaction of qualitative and quantitative factors. A minor quantitative exclusion may be permissible,
such as in the case of reservations by Belgium, Luxembourg, Spain and the United Kingdom stating that succession to the
monarchy shall favor males over females without regard to order of birth.193 This clearly postpones the succession of the
Monarch's oldest daughter to the youngest son, and the symbolism of the discrimination reflects the values and perceptions
of more than the few individuals directly concerned.194 Such a symbolic though quantitatively limited reservation may be
compared to a reservation of qualitatively trivial impact on women that affects them in sizeable numbers. A reservation that,
for instance, precludes women eligible for regular training and promotion in the military from hand to hand military combat
roles195 may be permissible, provided that, as in the case of a quantitative exclusion, the party to the Convention otherwise
maintains progressive development towards elimination of cultural and related environments that have historically conditioned
the prevailing discrimination.
To propose that compatibility of reservations is specific to the circumstances of individual countries, and that countries with
such features as a large differential literacy rate between men and women or with many households headed by women are
different from other countries, suggests that legal determination of compatibility arises not from the object and purpose of the
Convention per se, but from specific applications of treaty provisions to individual countries. In other words, compatibility may
seem determinable not as a function of interpretation of the treaty as a whole, but from socio-political measurements of effects
of reservations on women. It is proposed, however, that the universal aspiration of the Convention compels *681 recognition
that states parties are located at different points on the road to achievement of the Convention's obligation of result and that
they may progress at different rates.
The Women's Convention mandates relative assessments of reservations for the purpose of legal determination of compatibility.
This is implicit in the approach to eliminating discrimination taken in the Convention, which is designed not simply to
bring women to a level of rights enjoyed by men, but to permit women to maximize the potential for their development and
self-realization without regard to comparisons between their optimal achievements and those of men. Similarly relevant are
obligations of states parties. In those societies where women have an advanced capacity for development and self-realization,
relatively few additional obligations under the Convention are assumed. In those societies, however, where women suffer
multiple discriminations, a state assumes a larger obligation. Accordingly, performance of states parties under the Convention,
and the compatibility of their reservations, will be specific to their circumstances. There are, however, certain reservations
which, despite the particular circumstances of a given state party, will clearly be unacceptable.
This approach is consistent with the Vienna Convention. It recognizes a flexible system by which each state party individually
decides whether another state party's reservation to a convention is compatible with its object and purpose, so that a state may
find the same reservation compatible concerning a second state but incompatible concerning a third. Similarly, a determination
of compatibility under the Women's Convention can take account of how far a reservation made by a particular country will
violate or comply with the obligation to eliminate all forms of discrimination in that country.
15
Canada made a proposal on determination of the compatibility of reservations with the Convention that considers objective and
nationally subjective features. Canada suggested that the following factors might be relevant to the determination:
(a) [w]hether the reservation is made to one of the general provisions, that is, the definition of discrimination in article 1 or the
general obligations of States parties set forth in articles 2, 3 and 24;
(b) [w]hether the reservation is in regard to a particularly crucial aspect of equality with men, such as the right to equal legal
capacity set forth in article 15;
(c) [w]hether the reservation is in regard to a provision that affects many women in a very significant facet of national life; [and]
*682 (d) [t]he nature of the reservation itself, that is, whether it involves a reservation in toto to the provision in question or
is of a very specific nature.196
Setting standards by which to measure compatibility with duties under the Convention is made possible by reference to objective
measures that are applicable to all states parties. For instance, the International Labour Office (ILO) has established a series
of standards including equality in employment and occupation,197 and equal remuneration.198 In the field of health care, the
World Health Organization has proposed indicators of national progress that allow international comparisons to be made.199
The proportion of the gross national product that countries devote to health care can be measured and placed at a point on a scale
of international experience. Likewise, objective measurements may be made of what percentage of available resources a state
party spends to achieve equality of the sexes, to eliminate discrimination against women, and to improve the status of women.
Such states parties' activities can be measured as establishment of governmental agencies to monitor and promote the status of
women, and appointment and training of officers, in proportion to national population, to serve within such agencies. Many of
these means of measurement are explained in the Nairobi-Forward Looking Strategies for the Advancement of Women.200 The
World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development
and Peace held in Nairobi in 1985, adopted the strategies by consensus.201 The Commission on the Status of Women continues
to monitor the implementation of the Nairobi Forward-Looking Strategies, and their Reports provide *683 objective standards
by which to monitor the extent to which states parties have eliminated discrimination against women.202
Gauging a state party's performance during a given period of time or assessing its performance relative to other states in the
same geographical region is an additional means of comparing progress towards elimination of discrimination.203 A standard
of comparative compliance is consistent with recognition that states parties commence their activities from different stages of
achievement and that their obligations are to pursue progressive development in the context of their own national circumstances.
The principle of non-retrogression is implied in human rights conventions: a state party's most basic obligation is not to undo
its existing achievements in the promotion of human rights.204 This principle underscores the duty in the Women's Convention
of progressive development; a country is obliged not to retreat from its observance of non-discrimination duties under the
Convention and, further, to advance progressively towards the ultimate goal. Article 18 requires that all states parties, including
those with reservations, report within one year after their adherence to the Convention. Thereafter, a state must report at least
every four years or when CEDAW so requests. If a reporting country invokes its reservation to justify its retrogression with
respect to an aspect of women's status as determined by objective standards of measurement, then it is arguably in breach of
its obligation.
D. Demands of Universality and Integrity
The approaches to enforcement of the Women's Convention favoring integrity at the possible cost of universality, and favoring
universality at the possible cost of integrity, may appear incompatible.205 However, the approaches are not necessarily
inconsistent.206 Reservations offer a middle path by which a convention's universality can be served by selective amendments
that permit a state party to adjust its relations with other states parties while preserving the Convention's *684 integrity.207
16
Reservations may be viewed in different ways. for example, reservations may be seen as meeting the claim of sovereign states to
bargain for treaty membership on their own terms, or as a limited concession that may be yielded in order to build an integrated
world order.208 Reservations may also be seen differently depending on whether they are made to treaties that are a codification
of jus cogens or customary international law or to treaties that represent a progressive development of international law.209
The claim that the Women's Convention must preserve its integrity is founded on background claims that human rights treaties
reflect or constitute jus cogens, that is peremptory norms, and that derogations through reservations to substantive provisions
are unacceptable.210 A stronger ground for this claim is that obligations of nondiscrimination on grounds of sex are now part
of customary international law211 as codified in numerous prevailing conventions such as the U.N. Charter, the Covenants212
giving force to the Universal Declaration,213 the regional human rights conventions,214 and the more specialized international
conventions.215 Any reservations to these customary international law obligations, reflected in and reinforced by these human
rights instruments, require arguments of a high legal order to establish their acceptability.
The preamble to the Women's Convention notes the role of the U.N. Charter, the Universal Declaration, the International
Covenants, and U.N. and specialized agencies' resolutions, declarations and recommendations in promoting equality of rights
of men and women. The preamble expresses concern, however, that despite these various instruments extensive discrimination
against women continues to exist.216 The preamble concludes with an expression of determination to adopt the measures
required for the elimination of such discrimination in all its forms and manifestations.217 Accordingly, *685 the Women's
Convention is to not be taken as just another international convention which allows discrimination against women to continue
because countries have been able to selectively or partially condition their acceptance. Instead, this Convention is an instrument
through which states parties demonstrate an unqualified positive commitment to women's equality with men.
Arguably, therefore, the Women's Convention cannot tolerate a violation of its integrity. Countries unwilling to assume a
complete commitment to its goals should not abuse the treaty by a pretense of commitment; they may retain more general
commitments under such instruments as the U.N. Charter and the human rights Covenants. These general commitments are
monitored and enforceable under separate mechanisms. Countries unwilling or unable to accept the Women's Convention may,
nevertheless, give a good account of their conformity to human rights obligations under these other international regimes.
Although, for instance, the Political Covenant218 does not expressly provide for reservations, having no article comparable to
article 28 of the Women's Convention, a number of states parties to that Covenant have ratified or acceded with reservations.219
Countries seeking to derogate from human rights commitments may therefore propose reservations that are compatible with
the object and purpose of such other Conventions. The Women's Convention can preserve its integrity by a strict application
of the compatibility test for proposed reservations.
The argument for the universal application of the Women's Convention derives its force from the realities of international life.
The Vienna Convention establishes a presumption in favor of treaty relations even with states whose treaty reservations other
parties to the treaty find objectionable.220 Promotion of ideals accommodates some over-ambition and far reaching language.
The fullest demands of the Women's Convention exceed, perhaps, what its proponents will be satisfied to achieve in practice. It
may be urged as a truism that half a *686 loaf is better than no loaf. Insistence on ideal levels of equality may leave a country
unable to fulfill all of the demands within the obligatory scheme of the treaty. The Women's Convention fits into a framework
of international human rights treaties the collective objectives of which are to advance the goal of human rights by whatever
means are possible, and to employ encouragement and persuasion to eliminate discrimination within countries that fall short of
intended levels of performance. An alternative approach of exclusion, elitism, condemnation and intolerance towards countries
unable to meet specified standards appears ineffective and perhaps counter-productive to advance human rights.
Universality and integrity are twin ideals. Neither is absolute. To place the goals of integrity and universality in opposition to
one another is perhaps to adopt a classical but static approach to reservations to multilateral conventions.221 This is especially so
where human rights are concerned. A dynamic approach would indicate the desirability of interpreting the Women's Convention
from a point closer to the universality end of the integrity-universality spectrum to render as many provisions of the Convention
17
binding on as many states parties as possible. The spirit of the Women's Convention may be subsequently realized when states
parties that entered the treaty with reservations determine that legal and other evolutions have occurred domestically that set
the stage for the withdrawal of their reservations. Hence, an approach to the Convention that emphasises universality may, in
time, also serve the goal of integrity; universality can be viewed as complementary to integrity and not in opposition to it.222
This approach favors a gradualistic commitment over an absolutist or extremist position. A feature of the Women's Convention
that reveals its affinity to the Economic Covenant is its use of the concept and requirement of progressive development towards
its ultimate goal. This permits states parties to be members of the Covenant while progressing towards its ultimate goals.
Since such a lesser commitment may be accommodated under pre-existing human rights conventions, a gradualistic commitment
may be criticized for appearing to pay inadequate respect to the goals of the Convention as a distinctive international instrument.
The preamble to the Women's Convention reflects the disappointment felt by participants in its development that extensive
discrimination against *687 women continues to exist.223 The Convention accordingly may be said to require that states
parties make a fundamental commitment to its integrity by pursuit of women's equality that may not be satisfied by piecemeal
or significantly reserved acceptance.
The Women's Convention imposes an obligation of result to achieve the elimination of all forms of discrimination against
women.224 It also imposes an obligation of means, however, by requiring that states parties establish means to achieve the
ultimate goal of equality. The Convention requires that every state party must commit itself to progressive development in the
context of its own circumstances to the achievement of this goal. Accordingly, the Convention imposes an obligation of means as
its initial goal towards satisfaction of its ultimate goals. Reservations may therefore be accommodated that temporarily frustrate
the elimination of certain forms of discrimination against women. They cannot be accommodated, however, if they contemplate
that discrimination against women will remain an enduring feature of the reserving state's law or practice, or if they deny a
commitment to material means of making progressive development towards the Convention's ultimate goals. Thus, reservations
denying means to the elimination of discrimination are most suspect. For example, article 2 of the Women's Convention is
the primary article addressing domestic means of its implementation, and reservations to this article must therefore receive
particularly critical assessment.
IV. ASSESSING THE WOMEN'S CONVENTION'S RESERVATIONS
A. General Obligations: Article 2 and Generally
As of February 1990, a few states parties have reserved generally to their obligations under article 2 and generally to the entire
Convention.225 Article 2 requires states parties to pursue, by all appropriate means and without delay, a policy of eliminating
discrimination against women ... The clearest instance of a general reservation is that t he Government of the People's
Republic of Bangladesh does not consider as binding upon itself the provisions of articles 2 ... as they conflict with Sharia law
based on Holy Quran and Sunna.226 *688 Egypt's reservation expresses willingness to comply with article 2 provided that
such compliance does not run counter to the Islamic Sharia.227 More problematic are Iraq's reservations to article 2(f) and (g),
which are unexplained.228 Article 2(f) requires states parties to take all appropriate measures including legislation to modify or
abolish existing laws, regulations, customs and practices which constitute discrimination against women. Article 2(g) requires
repeal of Penal laws that discriminate on the basis of sex.
Libya has filed a general reservation stating that there should be no conflict between accession and the laws or personal status
derived from Islamic Shariah.229 Tunisia has filed a general declaration stating that it shall not take any organizational
or legislative decision in conformity with the requirements of this Convention where such a decision would conflict with
the provisions of Chapter 1 of the Tunisian Constitution.230 Article 6 of Chapter 1231 requires equal treatment before the
law of all citizens and therefore could be taken to amplify the Women's Convention in domestic law. The first article of the
Chapter explains that Islam is the official religion and insofar as Islam is interpreted to require the elimination of discrimination
18
against women it would not conflict with the Women's Convention and not be a limitation of Tunisia's obligations under the
Convention.232
New Zealand on behalf of The Cook Islands reserves the right not to apply article 2(f) and article 5(a) [requiring the elimination
of social and cultural patterns of conduct and sterotyped sex roles that are detrimental to women] to the extent that the customs
governing the inheritance of certain Cook Islands chiefly titles may be inconsistent with those provisions.233 Malawi withdrew
its general reservation in January, 1990, stating that o wing to the deep-rooted nature of some traditional customs and practices
of Malawians, the Government of the Republic of Malawi shall not, for the time being consider itself bound by such provisions
of the Convention as require immediate *689 eradication by sic such traditional customs and practices.234
Reservations made on grounds of culture are suspect in view of the decision of the Human Rights Committee in the Lovelace
case.235 In accordance with Canada's Indian Act as it then provided, Mrs. Sandra Lovelace, a Canadian Maliseet Indian, lost
her status and residence rights upon her marriage to a non-Indian. On the other hand, an Indian man who married a nonIndian woman did not lose his Indian status or rights of residence on reserved land.236 Mrs. Lovelace claimed, inter alia, that,
as a member of a minority group whose culture existed only on its reserved land, she and other women forfeited residence
rights by marrying non-Indian men and were denied the right, in community with the other members of their group, to enjoy
their own culture guaranteed by article 27 of the Covenant.237 The Human Rights Committee found that there had been a
violation of the Mrs. Lovelace's protected rights to cultural identity and experience, and that any restrictions on an individual's
enjoyment of his or her culture must have both a reasonable and objective justification238 under the Covenant. This suggests
that reservations to the Women's Convention made in order to preserve cultural values of a nation, region or people must be
shown as necessary for that purpose by objective criteria. Preservation of cultural practices may be suspect under the Women's
Convention, however, when they are hostile to women's equality. Thus article 5(2) of the Women's Convention provides that
all appropriate measures be taken to modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary ... practices which are based on ... stereotyped roles for men and women.
Reservations to article 2 that exclude the establishment of means to amend national laws and culture to eliminate discrimination
against women are highly questionable since one of the primary objectives of the Convention is an obligation of means. In
other words, exclusion of the means to move towards its ultimate goals obstructs and compromises compliance with the object
and purpose of the Convention.
The issue of reservations in favor of nationally prevailing laws and *690 practices is of profound significance to the Women's
Convention. It has a parallel in a United States' proposal over a decade old to ratify the Political Covenant with all the reservations
required to ensure that existing national law would not have to be modified by virtue of that ratification.239 In 1978, the President
of the United States presented a ratification proposal to Congress, noting that w henever a provision of the Covenant is in
conflict with United States law, a reservation, understanding or declaration has been recommended.240 Article 2(2) of the
Political Covenant contains an obligation, comparable to that of article 2(b) of the Women's Convention, to adopt legislative or
other measures necessary to give effect to the rights recognized in the Covenant. A respected commentator observed how the
President's proposal approached article 2 of the Political Covenant, saying that:
[t]he proposed U.S. group of reservations is intended to deprive that requirement of any effect whatsoever for
the United States. It would do so by reducing the obligations of the United States under the Covenant so that it
would be under no requirement to adopt any measures beyond existing law. It thus turns upside down the rule
of the Covenant as well as the general principle of treaty law that a party may not invoke its internal law as
justification for failure to perform a treaty.241
The same inversion of the intent of the Women's Convention may arise under a reservation, such as was presented by
Bangladesh, that proposes to negate the Convention's major requirement that states parties undertake to amend their legal,
religious and customary systems, by legislative means if necessary, in order to achieve the object and purpose of the Convention.
19
These states parties appear to adopt a policy of making reservations because no change at all in existing domestic law is
desired.242
Preservation of religious or customary laws appears basic to the reserving states in question under the Women's Convention
and may be regarded as the sine qua non of their adherence. Bangladesh entered its reservation to article 2 and other provisions
of the Convention as they conflict with Sharia law....243 Accordingly, the *691 apparent acceptance of the Convention is
subject to unwillingness to implement its obligations of both results and means. It might be appropriate to inquire of states
parties with such reservations whether they consider them essential to or severable from their acceptance of the Convention.
It is interesting to reflect that the United States, rather than ratify the Political Covenant with a questionable reservation in
favor of preserving domestic law, has chosen, at least for the time being, not to ratify. Nevertheless some states parties to the
Women's Convention that have objected to others' reservations to article 2 have expressly stated, consistently with article 20(4)
(b) of the Vienna Convention, that they consider themselves to be in treaty relationships with the reserving states.244 This may
constitute a tribute to the universal aspirations of the Women's Convention rather than to preservation of its integrity. It has
been noted that irrespective of the legal issue, the regime of the Covenant is surely weakened when a state purports to accept
its obligations and at the same time seeks to rule out any change in its law that would be required to meet those obligations.245
General exemptions from obligations such as those of Libya and Tunisia and broad reservations to article 2 noted above may be
considered in light of the approach to purported reservations offered by the Belilos judgment. Although the Women's Convention
contains no explicit requirement that a reservation of general character shall not be permitted, as provided in article 64(1) of
the European Convention,246 it may be argued that a wide-ranging declaration of non-observance conflicts with the stronger
general intention disclosed in ratification of or accession to the Women's Convention. If the declaration is found not to operate
as a valid reservation, Tunisia may be unable to invoke it. Moreover, because the Women's Convention is a human rights
instrument of transcending significance, a state party's intention to adhere may be taken to prevail over any derogation founded
on a vaguely worded reservation. Although the Libyan and Tunisian exemptions, or a broadly worded article 2 reservation, are
not denied legal efficacy, they would not necessarily provide a legal basis for nonobservance of a provision running close to the
very object and purpose of the Convention. Generally worded declarations or reservations may be construed not to permit the
declaring state to *692 claim a legal justification for its refusal or failure to respect the fundamental goal of the Convention
to which the state claims to be a party.
This construction is consistent both with other states parties' willingness to accept the reservations, and with the willingness
of states parties that have objected to them to treat the declaring or reserving states as parties to the Convention. This is also
consistent with the presumption that a state party acts in good faith, and with the object and purpose of a treaty, including any
reservations. In interpreting the treaty to give effect to its object and purpose, it avoids the absurd result of a state party to a
treaty not being legally required to meet the treaty's cardinal obligations.
B. Public Life: Article 7
It may not be immediately apparent that women's exclusion from service in the armed forces is an important source of
discrimination against women contrary to article 7, which prohibits discrimination in public life. Article 7 states that
States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of
the country and, in particular, shall ensure to women, on equal terms with men, the right:
(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;
(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform
all public functions at all levels of government;
(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.
20
It is of symbolic significance, however, that where the profession of arms carries dignity and prestige because it involves the
defense of national integrity and honor, women are denied participation by force of law. More pragmatically, in many countries
the military exerts considerable political power, and indeed may constitute the government. Aspirations in the Women's
Convention to afford women political development, particularly in article 7 on access to political and public office, serve a
democratic ideal, but even in civilian democracies, tenure of military rank and experience of the exercise of military authority
can attract political credibility. Women have few prospects of equality with men where they are legally excluded from military
careers or advancement.
*693 Specific inequities arise where military veterans enjoy preferential access to civilian employment and benefits from
affirmative action programs that favor them over competitors in the labor force. Such programs are not necessarily inequitable
in themselves; the disadvantage consists of women's exclusion from military veteran status. Similarly, advantages available to
families of military veterans preclude women from benefiting their families because they lack access to such programs.
Austria has expressly reserved the application of article 7(b) of the Convention regarding public office and public functions as
far as service in the armed forces is concerned247 on unstated but presumably traditional grounds. Thailand has reserved the
right to apply article 7 in all matters which concern national security, maintenance of public order and service or employment
in the military or paramilitary forces.248 New Zealand, on behalf of itself, the Cook Islands and Niue, invoked a reservation
in favor of their domestic policies regarding recruitment into or service in the armed forces, concerning service on armed
forces aircraft or vessels and in situations involving armed combat.249 This appears to reflect such stereotypical notions as
the difficulty of accommodating women on naval ships and in armed combat.250 Countries making such reservations overlook
how little military activity now involves armed combat. It remains questionable, particularly if the dynamic principle of treaty
interpretation is used, whether these reservations could be invoked to deny women access to military and national security
positions in the long run.
C. Nationality: Article 9
Women's capacity to possess citizenship and nationality separate from their husbands' affects both their capacity to be
represented by state subjects of international law and their ability legally to transmit such capacity to their children. The ability
to invoke the protection of a country with which they retain a genuine and effective link251 while they reside in another may
be an important source of security for women who go to live in a country where they are disadvantaged as aliens.
Article 9 of the Women's Convention requires that:
*694 1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure
in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically
change the nationality of the wife, render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to the nationality of their children.
Explanations on reservations to this article vary.252 A traditional explanation is that family solidarity and cohesiveness is served
by the family having the same nationality, which should be that of its leader, who traditionally has been an adult man. Another
explanation is the prevention of statelessness that would arise when a woman's original national law attributes to her on marriage
her husbands's nationality, but her husband's national law recognizes her separate nationality and does not extend its nationality
to her. The Republic of Korea,253 Iraq254 and Tunisia255 consider themselves not to be bound by this article.
Egypt's reservation to article 9(2) was made to afford a child born within marriage its father's nationality in order to prevent
a child's acquisition of two nationalities, since this may be prejudicial to his future.256 This goal would be served, of course,
if the child had only its mother's nationality, but another explanation is offered:
21
[I]t is clear that the child's acquisition of his father's nationality is the procedure most suitable for the child and
that this does not infringe upon the principle of equality between men and women, since it is the custom for a
woman to agree, on marrying an alien, that her children shall be of the father's nationality.257
Since Egypt claims that its existing law does not infringe upon equality *695 of men and women,258 it is questionable why
it reserved with respect to this article.
The proposition that the man's nationality should govern his wife and his child was rejected by the Inter-American Court on
Human Rights and the Human Rights Committee. The Inter-American Court referred to article 9 in an Advisory Opinion sought
by Costa Rica on a number of amendments proposed to the naturalization provisions of its Constitution.259 One of the proposed
amendments would have distinguished the naturalization provisions governing foreign women and foreign men who marry
Costa Ricans. The Court noted that the proposed amendment follows the formula
adopted in the current Constitution, which gives women but not men who marry Costa Ricans a special status for purposes
of naturalization. This approach or system was based on the so-called principle of family unity and is traceable to two
assumptions ... [that] all members of a family should have the same nationality. The other derives from notions about paternal
authority and the fact that authority over minor children was as a rule vested in the father and that it was the husband on whom
the law conferred a privileged status of power, giving him authority, for example to fix the marital domicile and to administer
the marital property. Viewed in this light, the right accorded to women to acquire the nationality of their husbands was an
outgrowth of conjugal inequality.260
The Court unanimously expressed the opinion that this proposed naturalization amendment which favors only one of the
spouses, does constitute discrimination incompatible with article 17(4) [on equality of rights and responsibilities within
marriage] and article 24 [on equal protection of the law] of the [American] Convention.261 The Human Rights Committee
in the Aumeeruddy Cziffra decision considered that a Mauritian woman's inability (in contrast to a Mauritian man's ability)
to transmit her nationality to her children constituted sex discrimination in the field of family life and cannot be justified on
*696 grounds of national security.262
Discriminatory nationality laws between the sexes might have a marginal impact among static, perhaps isolated, populations
but will be of major significance in countries where sizeable numbers of immigrants, such as workers, refugees and students,
have intermarried. A reservation to the Women's Convention that upholds the imposition of a husband's alien nationality on
a married woman, and the related withdrawal of the nationality of the country in which she and her family have lived and in
which she intends to rear her children, will cause a comprehensive withdrawal of legal rights and capacities that the Women's
Convention is designed to prevent. Such reservations, if permitted, would undermine the object and purpose of the Convention.
The reservations themselves, founded on a stereotype of women's domestic roles, indicate an attitude or perception that states
parties to the Women's Convention undertake to strive to change. It is inconsistent with adherence to the Women's Convention
and its principle of progressive development for a country to anchor women's enduring incapacity in such a stereotypical attitude.
D. Employment: Article 11
Article 11, concerning state responsibilities towards women in employment, addresses rights to equal remuneration as well as
rights to the promotion opportunities and job security that men enjoy. Article 11 states in full that
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in
order to ensure, on a basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of
employment;
22
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions
of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training
and recurrent training;
*697 (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well
as equality of treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other
incapacity to work, as well as the right to paid leave;
(f) The right to protection of health and the safety in working conditions, including the safeguarding of the function of
reproduction.
(2). In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective
right to work, States Parties shall take appropriate measures;
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and
discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority
or social allowances;
(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with
work responsibilities and participation in public life, in particular through promoting the establishment and development of a
network of child-care facilities;
(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and
technological knowledge and shall be revised, repealed or extended as necessary.
Some reservations to the Women's Convention are designed to preclude women from night work in a manner consistent with
the 1919 Convention Concerning the Employment of Women during the Night263 prepared by the ILO. For instance, Austria,
which ratified *698 the 1919 Night Work (Women) Convention264 in June 1924 and ratified the 1948 revision265 in late 1950,
ratified the Women's Convention subject to a reservation that excluded women from being eligible for night work.266
It may be incongruous that when adhering to a convention eliminating all forms of discrimination against women, states parties
consider it necessary to reserve a power of discrimination that is compatible with obligations assumed under these earlier
conventions.267 The inference may be that the earlier conventions required distinctions regarding women on protective grounds
that may be discrimination as defined in the Women's Convention. Article 11 must be interpreted in the context of the entire
Convention and not in a way that neutralizes its force.
The paradox of the Women's Convention covering all forms of discrimination is that a form of discrimination may be an
exclusion on grounds of sex that the earlier humanitarian conventions intended to achieve. Modern feminist sensitivity has
arisen in reaction to historic protection of women.268 The instruments that once were protective now seem to be instruments
of discrimination. The notion that women cannot work in mines or at night represents potential discrimination. Health reasons
are no longer seen as convincing with respect to discrimination that denies women access to employment at more highly paid
rates. The modern approach tolerates women's exclusion from such positions only when equally remunerative alternatives are
available.
*699 E. Legal Capacity: Article 15
23
Article 15 of the Women's Convention obliges states parties to accord women equality with men before the law in such civil
matters as contractual capacity, control of property, and the right to choose a residence and domicile. It states in full that
1. States Parties shall accord to women equality with men before the law.
2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to
exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and
shall treat them equally in all stages of procedure in courts and tribunals.
3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at
restricting the legal capacity of women shall be deemed null and void.
4. States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons
and the freedom to choose their residence and domicile.
A number of states parties have entered reservations to article 15, and others have covered the scope of article 15 through
reservations to articles 2 and 7.269
The legal capacity of women in western countries is little more than a century old. The English Married Women's Property Act
of 1882270 is often taken as a symbolic threshold of married women achieving a capacity to control property in their own right
and thus to contract, to buy services for themselves and to participate in economic life for their own purposes. Historians and
anthropologists may question whether women's autonomy existed prior to 1882 and whether it was truly achieved thereafter.
Evidence shows, however, that in many parts of the world prevailing legal orders continue to deny women independent
capacities, specifically the ability to engage in market interactions and acquire health, educational and comparable services
essential to self-realization.271 A number of legal systems require husbands' authorization, for instance, for the provision of
*700 reproductive health services to wives,272 and similar vestiges of women's commercial dependency on husbands or fathers
remain in many countries, even though they are slowly and successfully being challenged.273
Limits on women's legal capacities are explicit in some reservations to the Women's Convention.274 Thailand reserved to article
15(3) on women's capacity regarding contracts and other private instruments by simply stating that the Royal Thai Government
does not consider itself bound by the provisions of article 15, paragraph 3 ...275 Brazil reserved its obligations under paragraph
4 on freedom of movement and choice of residence and domicile.276 Turkey made reservations to paragraphs 2 (contractual
capacity) and 4 in so far as they are incompatible with provisions of the Turkish Civil Code on family relations.277
Legal, proprietary and contractual capacities liberate women to act as full participants in both money and barter economies.
They permit the valuation of women's labor and allow retention of the fruits of women's industry outside the home. Whereas
women working inside the home may similarly gain recognition of the value of their work, although they are personally unpaid,
because their services can be related to market scales, the ability to gain recognition, value and influence outside the home
offers the potential for independent economic development.
*701 Family structures have historically been related to the control of legal capacities. Women have frequently been precluded
from property ownership and inheritance through legal disabilities. Families accordingly devalued daughters because they could
not inherit family leadership and property. Law reflected and reinforced the stereotype that sons inherit land and sustain the
family, whereas daughters leave home upon marriage and lose their tribal identity.278 It was thought that daughters might have
value when successfully traded in arranged marriages, but otherwise were a charge on family assets through obligations of
dowry. Elimination of discrimination against women's control of property is necessary in many countries for unmarried and
married women's status within their families. This allows an equal participation of women in their families and in the outside
world to the extent of their personal abilities.
Reservations to article 15 regarding civil and contractual capacity appear incompatible with the object and purpose of the
Women's Convention. The article protects women's opportunities to control land, other property and profits for paid labor. It
24
may be that countries whose populations are overwhelmingly rural may reserve women's commercial rights with less impact
on women than countries whose populations are largely urban and suburban. In rural countries, commercial disadvantage will
affect women less in the short term, but as these countries urbanize such disadvantages will restrict many more women in the
long term. Most important to rural populations is control and inheritance of land.279 Civil disabilities that women experience
in land acquisition, inheritance and control will affect their lives profoundly.280
States parties' reservations that limit women's legal capacity deny the Convention effectiveness and, if permitted, would
undermine the object and purpose of the Convention. In objecting to the Thai, Brazilian and Tunisian reservations to article 15,
Sweden stated that [i]ndeed the reservation in question, if put into practice, would inevitably result in discrimination against
women on the basis of sex, which is contrary to everything the Convention stands for.281 France has now withdrawn its timelimited reservations to paragraphs 2 and *702 4 of article 15 because it has changed its relevant domestic law to comply
with these paragraphs.282 Ireland has also withdrawn its paragraph 4 reservation now that its domestic law conforms to that
paragraph.283
F. Family Life: Article 16
Article 16 is the principal provision of the Women's Convention requiring states parties to eliminate discrimination against
women in matters affecting marriage and family relations. It is the most heavily reserved of the substantive articles. The article
states that
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage
and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in
all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibily on the number and spacing of their children and to have access to the
information, education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar
institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment *703
and disposition of property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be
taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
This is a key provision in view of the intention of the Convention to address discrimination in private as well as public
interactions and which occurs de facto as well as de jure.284 A state party that proposes not to be bound by this provision
would seem to leave its women in jeopardy of suffering discrimination in the most personal and pervasive aspects of their
lives. Accordingly, an unexplained reservation seems to strike at the heart of the Convention's purpose. Brazil, for instance,
stated without explanation that t he Government of the Federative Republic of Brazil hereby expresses its reservations to ...
25
article 16, paragraphs 1(a), (c), (g) and (h) of the Convention ...285 The Republic of Korea reserved also without explanation
paragraphs 1(c), (d), (f) and (g)286.
Bangladesh addressed the provision on family law, and other provisions, with the statement that [t]he Government of the
People's Republic of Bangladesh does not consider as binding upon itself the provisions of articles ... 16.1(c) and (f) as they
conflict with Sharia law based on Holy Quran and Sunna.287 The implication of this reservation is that Islamic religious law
as understood in Bangladesh renders it necessary for that state party to discriminate against women.
Another view of the Sharia is presented, however, in the reservation that Egypt has made to article 16.288 It presents the Sharia
in a light more sympathetic to women's equality, although it raises the argument that women are separate but equal. This may
trigger apprehension in the minds of those familiar with the separate but equal arguments of South Africa in the South West
Africa case289 and governmental *704 descriptions of the status of the black populations of the United States before the
civil rights movement became effective. The Egyptian reservation explains that Egypt's adherence to article 16 concerning the
equality of men and women in all matters relating to marriage and family relations during the marriage and upon its dissolution
must be without prejudice to the Islamic Sharia provisions whereby women are accorded rights equivalent to those of their
spouses so as to ensure a just balance between them. This is out of respect for the sanctity deriving from firm religious beliefs
which govern marital relations in Egypt and which may not be called in question and in view of the fact that one of the most
important bases of these relations is an equivalency of rights and duties so as to ensure complementarity [sic] which guarantees
true equality between the spouses and not a quasi-equality that renders the marriage a burden on the wife. This is because the
provisions of the Islamic Sharia lay down that the husband shall pay bridal money to the wife and maintain her fully out of his
own funds and shall also make a payment to her upon divorce, whereas the wife retains full rights over her property and is not
obliged to spend anything on her keep. The Sharia therefore restricts the wife's rights to divorce by making it contingent on a
judge's ruling, whereas no such restriction is laid down in the case of the husband.290
To the extent that the Sharia may give women advantages over men in marriage, perhaps for the sake of redressing or
compensating advantages enjoyed by men in certain regards, it is not in conflict with the aim of the Women's Convention. It is
unclear, however, whether provisions of the Sharia beneficial to women fall within the scope of article 23, which provides that:
[n]othing in this Convention shall affect any provisions that are more conducive to the achievement of equality between men
and women which may be contained:
(a) In the legislation of a State Party.
Reservations to article 16, including the Egyptian reservation and the similarly worded Iraqi reservation to article 16,291 raise the
question whether the Women's Convention is aimed at equal rights for *705 women, or identical rights. The provision of equal
rights regarding the discharge of different domestic tasks of equal value may be claimed to satisfy the Women's Convention,
so that a reservation according women rights equivalent to the rights of their spouses so as to ensure a just balance between
them292 is not incompatible.
It might, however, be argued that this form of reservation reflects a patriarchal model of society that preserves sex role
stereotyping and is therefore contrary to article 5(a) and perhaps even to the object and purpose of the Convention.293 The
reservation may maintain spouses' equal rights to respect for the dignity and performance of their respective tasks, but the
tasks themselves may be significantly different. The specification of tasks may preserve a patriarchal social model in which
men and women are segregated respectively into public and private spheres, the husbands' tasks being as family leaders and
breadwinners, and the women's tasks being as keepers of the home and rearers of the children. The women's tasks may culturally
be deemed inappropriate for men while women are presumed to benefit from the protection of a male breadwinner.
Even though the tasks are said to be of equal value to the family and to be accorded equal respect and protection in law, they are
not identical and may indeed be significantly different and unequal by other than legal measures. They are differently recognized
and valued economically294 and provide different opportunities of access to commercial, civic and political paths to personal
26
growth and self realization. The distribution of tasks is based upon attitudes and preconceptions that contradict central goals
of the Women's Convention.295
When family or domestic laws maintain inequality of marriage partners' functions and of recognition of contributions to the
family, women risk suffering the discrimination the Women's Convention is directed to overcome. The denial of women's
domestic, social and economic significance is particularly harmful in the many families in *706 the world that are headed by
women.296 Women's capacities as single parent breadwinners to protect their families and to develop themselves are impaired
through regimes of family law based on male ascendancy and leadership. Women suffer legal disabilities in the ownership
and inheritance of property and face legal obstacles in undertaking trade and employment and obtaining health services. Such
repressive family laws often impose constraints that have wide ramifications for a woman's status.
A fundamental object and purpose of the Women's Convention is that states parties eliminate such family laws. Reservations
permitting such laws might well be interpreted according to the contextual principle as a basis for denial of acceptance of the
Convention as a whole. Article 27 of the Vienna Convention codifies the long accepted rule of customary international law that a
party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Moreover, domestic law
has to be interpreted to the greatest extent possible to avoid violating a state's international obligations. Reservations providing
exemption from article 16 commitments require rigorous scrutiny to insure that they are not interpreted in a way that denies
the effectiveness of the object and purpose of the treaty.
G. The Pattern of Reservations
Reservations to one article of the Women's Convention are more questionable when made by states that have also reserved
other articles. For example, reservations to article 16 on family life are more suspect when made by states that have reserved
article 2 on general obligations, article 9 on nationality, and article 15 on legal capacity. Reservations to article 16 in themselves
may deny or subvert the unique character of the Women's Convention as an instrument among other human rights conventions
in that the article requires states parties to tackle discrimination in the private lives and relationships of their citizens, and not
simply in public sector activities. Since the preamble to the Convention points to the ineffectiveness of preexisting human rights
conventions to relieve women's inequality,297 it is evident *707 that the Women's Convention intends to step further than
others, notably in penetrating private spheres of personal and family life. States parties' refusals to accept this step by reserving
combinations of articles that attempt to achieve it indicate refusal to accept a primary purpose of the Women's Convention.
To paraphrase a relevant observation on the Political Covenant:
[t]he critical legal issue raised is not whether specific reservations are admissible. It is rather whether a whole
series of reservations ... designed to avoid any need to modify [domestic] law can be regarded as in conformity
with the object and purpose of the Covenant, especially with the obligation of means....298
When an individual state qualifies its acceptance of the Women's Convention by a pattern of reservations that evidences
a systematic purpose not to be bound by its major goals, it becomes difficult if not impossible to apply the technique of
interpretation of a reservation derived from the Belilos judgment299 that an individual reservation not be taken as an intention
to derogate substantively from the states' general purpose to be bound by the Convention. The repetition of a state's assertion of
its legal authority to apply its domestic law in preference to the principles advanced in the Convention soon becomes explicable
as a refusal rather than a willingness to be bound by the Convention. That is, when a state's obligations under the Convention
are trivial or minor in contrast to the treaty obligations it declines to accept, it is unconvincing for the state to claim party status
and for other states parties to claim that they are in a legal relationship under the Convention with the reserving state. The state's
participation in the Convention may be an act of legal form but a fiction of legal, political and social substance.
IV. TOWARD RESOLUTION
Legal assessment of reservations to the Women's Convention is currently based on a body of law permeated by uncertainties and
varied, sometimes inconsistent, theoretical approaches situated at different points on the spectrum between aims of universal
application of the Convention and of preservation of its integrity. Women continue to experience discrimination in the very areas
27
that states parties to the Convention have committed themselves to eliminate. Discrimination *708 is particularly subversive
of the Convention when states parties justify it by reference to reservations made under the regime of the Convention itself.
Resolution of the status of contentious reservations might be possible in some arenas. It is evident from the reports of their
biennial meetings that states parties to the Convention have little intention to address the ineffectiveness of the Convention that
results from reservations made to the commitment that membership in the Convention professes. The third meeting of states
parties in 1986 was fruitful from the point of view of reservations. This meeting adopted a resolution expressing concern that
some of the reservations might be incompatible with the Convention, requested the Secretary-General to seek the views of
states parties and decided to place the issue of reservations on the agenda of the next meeting.300 The fourth meeting in 1988301
and the fifth meeting in 1990302 of states parties took no substantive action on reservations. The opportunity to request that the
General Assembly seek an advisory opinion from the ICJ on the compatibility of certain reservations was missed.
Members of CEDAW have asked penetrating questions of states parties presenting their national reports about their reservations,
in order to determine the extent to which the goals of the Convention are impeded due to their reservations.303 Moreover,
CEDAW encourages states parties to review and amend their laws and policies in compliance with the Convention in order to
facilitate withdrawal of reservations.304 However, CEDAW possesses only limited investigational powers. The Legal Adviser
of the UN has given an opinion that neither the Secretary-General, as depository, nor CEDAW has the *709 power to determine
the compatibility of reservations.305
Judicial resolution of legal issues surrounding reservations may be approached through the contentious jurisdiction of
international tribunals in some instances. Article 29(1) of the Women's Convention provides that a dispute concerning
application of the Convention which is not settled by negotiation shall be submitted to arbitration, and that if agreement cannot
be reached through arbitration, the dispute may be referred to the ICJ. However, as previously noted, article 29(2) permits states
parties to reserve with respect to this provision, and 25 have done so.306 Where a method of dispute resolution is not available
under the Convention itself, states parties and other claimants may seek adjudication under general international law.307
Where disputing states parties accept the jurisdiction of the ICJ or, for instance, the Inter-American Court on Human Rights,
whether on an enduring or ad hoc basis, such tribunals will have jurisdiction, subject to the ordinary rules of international law,
including those regarding the reciprocal effect of an individual state's reservation to a tribunal's jurisdiction.308 Ordinarily, only
states parties to the relevant international conventions that establish judicial bodies will be entitled to request adjudication, but
under the Political Covenant309 states may accept the Optional Protocol,310 which empowers private individuals to complain
to the Human Rights Committee established by that Covenant.311 The breadth of jurisdiction the Committee may exercise is
revealed in the recent decision in the Broeks case.312
In the Broeks case, the claimant complained of discrimination on *710 grounds of sex in a Netherlands social security law, and
alleged a violation of the Political Covenant. The defendant state responded that the interest alleged to have been violated was
protected not under the invoked Covenant but under the Economic Covenant.313 Further, the state contended that the Human
Rights Committee, constituted under the Political Covenant and operating under the Optional Protocol, could not admit any
claims by an individual applicant the substance of which was addressed by the Economic Covenant.314
The disputants recognized the considerable overlap of subject matter and the interrelated drafting history of provisions of both
Covenants. The Committee took note of this and expressed its view
that the International Covenant on Civil and Political Rights would still apply even if a particular subject-matter is referred to
or covered in other international instruments, for example, the International Convention on the Elimination of All Forms of
Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, or, as in the present
case, the International Covenant on Economic, Social and Cultural Rights.315
28
The Committee concluded that it had jurisdiction. Accordingly, where provisions of the Women's Convention, including its
substantive reservations, coincide with those of the Political Covenant, issues related to their enforcement may be adjudicated
by the Human Rights Committee. This procedure may prove to be a valuable form of recourse regarding the validity,316
compatibility and applicability of reservations to the Women's Convention.
Another approach to assessing the validity of reservations to the Women's Convention is through the advisory opinion
jurisdiction of the ICJ and, for instance, the Inter-American Court of Human Rights. The ICJ under Chapter IV of its Statute may
give an advisory opinion on any legal question at the request of whatever body may *711 be authorized by or in accordance
with the Charter of the United Nations to make such a request.317 Observance and implementation of the Women's Convention
is monitored by CEDAW, which reports to ECOSOC, which, in turn, acts subject to the approval of the General Assembly.
Neither CEDAW nor ECOSOC is competent to seek an advisory opinion, but the ICJ held in its Genocide Reservations Opinion
that the General Assembly is competent not only to request the Court's opinion, but also to enforce that opinion.318
The Inter-American Court of Human Rights has powers to interpret the American Convention,319 and, according to its article
64(1), other treaties concerning the protection of human rights in the American States. In the Other Treaties case320 on the
scope of article 64(1), the Court held that in principle it had the power to interpret any treaty as long as it is directly related to
the protection of human rights in a Member State of the inter-American system.321
Accordingly, a variety of judicial, arbitral and administrative means are available through which to tackle the issue of
compatibility of reservations to the Women's Convention, and to achieve a level of judicial or other consensual resolution.
Attention must be given to refinement and perhaps amplification of these means, but the threshold question is whether
and where the political will exists to use them. Conditioning the answer to the question of political will are the competing
agendas of universality and integrity of the Women's Convention. Universality is served by maximizing membership in the
Women's Convention without fastidious scrutiny of each state party's commitment that may be compromised through its
reservations. Integrity is served by requiring full or close to full commitment to the Women's Convention by states parties and
the marginalization or exclusion of states unwilling to apply the principles of the Convention. The latter orientation requires
the political will to force the issue *712 of compatibility of reservations to judicial or other resolution and to risk reducing
membership in the Convention in the cause of protecting the certainty that its members are truly committed to its integrity.
Footnotes
a
J.D., 1982, Georgetown University. LL.M., 1987 Columbia University. Assistant Professor (Research) & Director International
Human Rights Programme, Faculty of Law, University of Toronto.
This article is written in partial fulfillment of the requirements for the degree of Doctor of Juridical Science in the Faculty of Law,
Columbia University.
I would like to thank Oscar Schachter, Lori Damrosch, Bernard Dickens, Andrew Byrnes and Marcia Kran for their comments on
various drafts of this article. I am grateful to Inge Creydt, Billie Heller, David Stuart and Kristen Timothy for providing the reports
necessary for the completion of this article and to the inspiration of Lily Boeykens, Loes Brunott, Elizabeth Evatt, Norma Forde,
Arvonne Fraser, Aziza Hussein, Isabel Plata and Rose Ukeje. This article was completed in part through assistance from the Faculty
of Law, University of Toronto and the Social Sciences and Humanities Research Council of Canada.
Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 34 UN GAORSupp. (No. 21)
(A/34/46) at 193, UN Doc. A/RES/34/180 (entry into force 3 September 1981) [hereinafter Women's Convention].
Report of the Committee on the Elimination of Discrimination Against Women, UN Doc. A/45/38 (8 February 1990). See also
Multilateral Treaties Deposited with the Secretary-General, Status as of 31 December 1988, at 164-65, UN Doc. ST/LEG/SER.E/7
(1989) [hereinafter Treaties Deposited with the Secretary-General], noting that as of the end of 1988, 95 states had become parties
to the Convention via ratification or accession.
29
Reservations to Article 29(1) of the Women's Convention on dispute resolution are expressly permitted by Article 29(2). See supra
note 1. The description substantive reservation is used here to refer to reservations other than those made pursuant to Article 29(2).
Therefore substantive reservations include modifying reservations, which permit treaty provisions to prevail in modified forms,
and excluding reservations, which dissolve the obligation altogether. See F. Horn, Reservations to Multilateral Treaties 80 (1988).
States parties and the type of reservations (either substantive or non-substantive) they have made are listed in Appendix I.
The particular articles of the Women's Convention to which states parties have reserved are listed in Appendix II. Compare with
the Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (1965) [hereinafter Race Convention],
which has 127 states parties. As of 1988, only two states parties have made substantive reservationsAfghanistan and the German
Democratic Republic. See Reservations, Declarations and Statements of Interpretation made by states parties to the International
Convention on the Elimination of all Forms of Racial Discrimination, UN Doc. CERD/C/60/Rev. 1 at 17 (1988).
See supra note 4 and accompanying text.
See Treaties Deposited with the Secretary-General, supra note 2, at 174-75.
Race Convention, supra note 5.
GA Res. 217A(III), U.N.Doc. A/810 (1948).
10
GA Res. 2200(XXI), 21 UN GAORSupp. (No. 16) at 52, UN Doc. A/6316 (1966).
11
Id. at 49.
12
213 U.N.T.S. 221 (1955).
13
OASTS at 1 (1969), reprinted in 9 I.L.M. 99 (1970) and 65 Am.J.Int'l L. 679 (1971).
14
OAU Doc. CAB/LEG/67/3/Rev. 5 (1981), reprinted in 21 I.L.M. 58 (1982).
15
Advisory Opinion on Reservations to the Genocide Convention, 1951 I.C.J. 15 (Advisory Opinion of May 28) [hereinafter Genocide
Reservations Opinion].
16
The Effect of Reservations on the Entry Into Force of the American Convention, 1982 Inter-Am.Ct.Hum.Rts., para. 29 (Arts. 74 &
75, Advisory Opinion No. OC-2/82 of Sept. 24) reprinted in 22 I.L.M. 37 (1983) [hereinafter Effect of Reservations Opinion]. See
Buergenthal, The Advisory Practice of the Inter-American Human Rights Court, 79 Am.J.Int'l L. 1, 20-23 (1985).
17
Austria v. Italy, Application No. 7881/60, 4 Eur.Y.B.Hum.Rts. 116, 140 (1960).
18
For an analysis of the work of CEDAW, see Byrnes, The Other Human Rights Treaty Body: The Work of the Committee on the
Elimination of Discrimination Against Women, 14 Yale J.Int'l.L. 1 (1989).
19
Women's Convention, supra note 1. Under the European Convention regime, states are left a margin of appreciation in determining
the most appropriate means to achieve a result, sometimes to the detriment of women. For example, the European Commission in
Lindsay v. United Kingdom, (Application No. 111089/84) 9 Eur.Hum.Rts.Rep. 555, 559 (1987) declined to find that U.K. law, in
taxing married couples as a single taxable unit, bore unfavorably on married women as opposed to married men regarding taxation
of investment income, considering that national authorities should be able to determine their tax aims and the means by which they
are to be pursued. Compare with the decision in Abdulaziz, Cabales and Balkandali, 94 Eur.Ct.H.R. (ser. A) (1985) at 39, in which
the European Court held that the relevant U.K. immigration rules making it easier for lawfully settled men to obtain permission for
their non-national wives to join them than for lawfully settled women to be joined by their non-national husbands was contrary to
article 14 (nondiscrimination) taken together with article 8 (family life). The Court explained that
[a]lthough the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extend
differences in otherwise similar situations justify a different treatment, the scope of this margin will vary according
to the circumstances, the subject matter and its background.... [T]he advancement of the equality of the sexes is today
30
a major goal in the member-States of the Council of Europe. This means that very weighty reasons would have to be
advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.
Id. at para. 78.
20
I.G. Merrills, The Development of International Law by the European Court of Human Rights 152-7 (1988).
21
See Article 21 of the Draft Articles on State Responsibility, Report of the International Law Commission on the Work of its
29th Session (9 May-29 July 1977), 32 UN GAORSupp. (No. 10) at 38, UN Doc. A/32/10 (1977) [hereinafter I.L.C.Report (29th
Session) ]; Article 21 of the Draft Articles on State Responsibility, Report of the International Law Commission on the Work of
its 32nd Session (5 May-25 July 1980), 35 U.N. GAORSupp. (No. 10) at 65, UN Doc. A/35/10 (1980) [hereinafter I.L.C.Report
(32nd Session) ].
22
Vienna Convention on the Law of Treaties, 23 May, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].
23
Id.
24
See Treatment of Polish Nationals in Danzig, 1932 P.C.I.J. (ser. A/B) No. 44, at 24 (Advisory Opinion of Feb. 4).
25
Vienna Convention, supra note 22, at art. 26.
26
Virally, Review Essay: Good Faith in Public International Law, 77 Am.J.Int'l L. 130, 132-33 (1983).
27
Kennedy, The Sources of International Law, 2 Am.J.Int'l L. & Pol'y 1, 43 (1987).
28
Note, Reservations to Multilateral Treaties: The Goal of Universality, 71 Iowa L.Rev. 295, 300-6 (1985).
29
See O. Schachter, M. Nawaz and J. Fried, Toward Wider Acceptance of U.N. Treaties 147-48 (1971). The authors point out that
of the treaties surveyed, those which permit reservations, or do not prohibit reservations, have received proportionately larger
acceptances than treaties which either do not permit reservations to a part or whole of the treaty, or which contain only one substantial
clause, making reservations unlikely. Id. at 150.
30
See Imbert, Reservations and Human Rights Conventions, 6 Hum.Rts.Rev. 28, 30 (1981).
31
Id.
32
See, e.g., Belilos v. Switzerland, 132 Eur.Ct.H.R. (ser. A) 21-24 (1988) [hereinafter Belilos Case].
33
E.g., the Belgian reservation to article 15(2) and 15(3) of the Women's Convention on the legal capacity of women to make contracts
and administer property states:
The application of article 15, paragraphs 2 and 3, shall not affect the validity of the interim provisions enacted for couples married
before the entry into force of the Act of 14 July 1976 concerning the reciprocal rights and duties of husbands and wives and their
marriage contracts, in cases where, in accordance with the option available to them under that Act, they have declared that they are
maintaining in toto their prior marriage contracts.
UN Doc. CEDAW/SP/13/Rev. 1 at 8 (1989) [hereinafter CEDAW Paper].
34
A French declaration states that the preamble to the [Women's] Conventionin particular the eleventh preambular paragraph [on
peace and disarmament]contains debatable elements which are definitely out of place in this text, UN Doc. A/39/486 at 7 (1984).
35
Obligations to observe rights that all states have an interest in protecting constitute obligations erga omnes. See Case Concerning
the Barcelona Traction, Light and Power Co. (Belgium v. Spain), 1964 I.C.J. 6, at 36 (Judgment of July 24) [hereinafter Barcelona
Traction Case].
36
Genocide Reservations Opinion, supra note 15.
37
Article 19 provides that

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
31
(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.
38
See Genocide Reservations Opinion, supra note 15, at 24.
39
In its entirety, article 20(4) provides that

(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that
other State if or when the treaty is in force for those States;
(b) 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;
(c) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other
contracting State has accepted the reservation.
40
Vienna Convention, supra note 22, at art. 19(c).
41
Id.
42
Practice under the Women's Convention to date shows that this is the usual form of objections to reservations declared to be
incompatible with the object and purpose of the Convention. When making their objections, Mexico and the Federal Republic of
Germany (FRG) usually explain that those objections cannot be interpreted as precluding entry into force of the Convention as
between them and the reserving state. Sweden, in making its objections is usually silent as to treaty relations, leaving article 20(4)
(b) of the Vienna Convention to govern; see CEDAW Paper, supra note 33, at 29-39. See generally Shelton, State Practice on
Reservations to Human Rights Treaties, 1983 Can.Hum.Rts.Yb. 205 (1983).
43
The article provides that

1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: [sic]
(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates
to the extent of the reservation; and
(b) modifies those provisions to the same extent for that other party in its relations with the reserving State.
2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.
3. 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.
44
Restrictions to the Death Penalty (Articles 4(2) and 4(4) American Convention on Human Rights), (Advisory Opinion No. OC-3/83
of Sept. 8, 1983), Inter-Am.Ct.H.R., reprinted in 23 I.L.M. 320, 336 [hereinafter Death Penalty Opinion].
45
Vienna Convention, supra note 22, at art. 21. In the arbitration on the Delimitation of the Continental Shelf (United Kingdom v.
France), 54 I.L.R. 6, 18 I.L.M. 397 (Ad Hoc Court of Arbitration, June 30, 1977), the court applied article 21(3) to modify the
application of article 6 of the 1958 Geneva Convention on the Continental shelf to the extent of the French reservation and British
objection. Edwards, Reservations to Treaties, 10 Mich.J.Int'l L. 362, 366-70 (1989).
Sir Ian Sinclair points to the parallelism of the language of article 21(1) and 21(3) of the Vienna Convention, and answers his
question, is there any difference in the legal effect of a reservation accepted by a party and one objected to by another party in
circumstances where the latter has not opposed entry into force of the treaty as between itself and the reserving State? by observing
that [m]ost commentators ... believe that ... the legal effects of an objection to and acceptance of the reservation are identical,
when the treaty remains in force between the objecting and reserving States. I. Sinclair, The Vienna Convention on the Law of
Treaties 76-77 (2d ed. 1984).
Under the Women's Convention, the FRG has attempted to preclude states whose reservations it opposes from invoking them
regarding duties. The FRG has observed:
[i]n relation to the Federal Republic of Germany, these reservations may not be invoked in support of a legal practice which does
not pay due regard to the legal status afforded to women and children in the Federal Republic of Germany in conformity with the
above-mentioned articles of the Convention.
CEDAW Paper, supra note 33, at 36. The legal consequence of this attempt to change the effect of article 21(3) of the Vienna
Convention is unknown.
32
46
Article 64 of the European Convention provides:

1. Any State may, when signing this convention or when depositing its instrument of ratification, make a reservation in respect
of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the
provision. Reservations of a general character shall not be permitted under this article.
2. Any reservation made under this article shall contain a brief statement of the law concerned.
47
Belilos Case, supra note 32, at 31.
48
Id. at 34.
49
See generally Bourguignon, The Belilos Case: New Light on Reservations to Multilateral Treaties, 29 Va.J.Int'l.L. 347 (1989);
Edwards, supra note 45, at 370-78, 384-94; Marks, Reservations Unhinged: The Belilos Case Before the European Court of Human
Rights, 39 Int'l & Comp.L.Q. 300 (1990).
50
51
Id.
52
Id. at 26-28.
53
Vienna Convention, supra note 22, at art. 2(1)(d). See generally, Mcrae, The Legal Effect of Interpretative Declarations, 49
Brit.Y.B.Int'l L. 155 (1978).
54
Vienna Convention, supra note 22, at art. 2(1)(d).
55
See Alparslan Temeltasch v. Switzerland, Application No 9116/80 31 Eur.Comm'n on Hum.Rts., at 146-47, 151 [paras. 71, 73,
92] (1982) [hereinafter Temeltasch Case] for a determination by the European Commission that an interpretive declaration can be
regarded as a reservation, depending on the intention of the author of the declaration. For a detailed discussion of the decision, see
Imbert, Reservations to the European Convention on Human Rights Before the Strasbourg Commission: The Temeltasch Case, 33
Int'l and Comp.L.Q. 558 (1984).
56
See, e.g., Vienna Convention, supra note 22, at art. 19(c).
57
See Barcelona Traction Case, supra note 35, at 36.
58
Coccia, Reservations to Multilateral Treaties on Human Rights, 15 Cal.W.Int'l L.J. 1, 36 (1985).
59
Vienna Convention, supra note 22, at art. 19(c).
60
Id.
61
Coccia, supra note 58, at 22. See supra notes 37 & 39 for the text of articles 19 and 20, respectively.
62
Coccia, supra note 58, at 23.
63
Id.
64
Id. at 24.
65
Id., quoting Bowett, Reservations to Non-Restricted Multilateral Treaties, 48 Brit.Y.B.Int'l L. 67, 80.
66
This proposition may be reinforced regarding human rights conventions. The concurring opinion of Judge De Meyer in the Belilos
judgment said
[t]he object and purpose of the European Convention on Human Rights is not to create, but to recognize [sic], rights which must be
respected and protected even in the absence of any instrument of positive law. It is difficult to see how reservations can be accepted
33
in respect of provisions recognizing rights of this kind. It may even be thought that such reservations, and the provisions permitting
them are incompatible with the ius cogens [sic] and therefore null and void.
67
I.L.C. Report (32nd Session), supra note 21, at art. 3.
68
See, e.g., FRG objections, supra note 45.
69
Customary international law is commonly defined to consist of norms followed in state practice because they are believed to be
legally binding. The norms are jus dispositivum as opposed to jus cogens.
70
Coccia, supra note 58, at 30.
71
Id. at 33.
72
Genocide Reservations Opinion, supra note 15, at 21, as quoted in Kennedy, supra note 27, at 34 n. 65.
73
74
See Malkin, Reservations to Multilateral Conventions, 7 Brit.Y.B.Int'l L. 141, 142-3, 159-162 (1926).
75
Genocide Reservations Opinion, supra note 15, at 31-32.
76
Id. at 35.
77
Id. at 43. The singular dissenting opinion argued that reservations should not be permitted to humanitarian conventions. Id. at 53-55.
78
See generally Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other
Treaty Points, 23 Brit.Y.B.Int'l.L. 238 (1957); Merrills, supra note 20, at 63-109.
79
See Vienna Convention, supra note 22, at art. 31(1). In the Advisory Opinion on the Interpretation of the Convention of 1919
Concerning Employment of Women During the Night, 1932 P.C.I.J. (ser. A/B) No. 50, reprinted in 3 World Court Rep. 99, 376
(1932-35) [hereinafter Night Work Opinion] the textual principle of interpretation was applied to the detriment of some women.
The Court interpreted the term to apply to all women working at night regardless of their position.
80
Death Penalty Opinion, supra note 44, at para. 50.
81
In Re Aumeeruddy-Cziffra and Nineteen Other Mauritian Women (Communication No. R.9/35), 36 U.N.GAORSupp. (No. 40) at
134, U.N.Doc. A/36/40, reprinted in 2 Hum.Rts.L.J. 139-43 (1983) [hereinafter Aumeeruddy-Cziffra Case]. The Human Rights
Committee decided that the Mauritian immigration laws, limiting the rights of foreign husbands but not foreign wives, constituted
sex discrimination contrary to articles 2, 3 and 26 on sexual discrimination and equality before the courts and articles 17 and 23
on noninterference with and protection of family life.
82
Merrills, supra note 20, at 103-8. The Inter-American Court on the subject of the object and purpose of the American Convention
explained:
The convention has a purposethe international protection of the basic rights of human beingsand to achieve this end it establishes
a system that sets out the limits and conditions by which the States Parties have consented to respond on the international plane
to charges of violations of human rights. This court, consequently, has the responsibility to guarantee the international protection
established by the Convention within the integrity of the system agreed upon by the States. This conclusion, in turn requires that the
Convention be interpreted in favor of the individual, who is the object of international protection, as long as such an interpretation
does not result in a modification of the system [emphasis added].
Government of Costa Rica (In the matter of Viviana Gallardo,), Decision of Nov. 13, 1981, Inter-American Court of Human Rights,
No. 6/10/81, para. 16 (1981).
83
Compare with the way in which travaux preparatoires were used by the majority and dissent in the Night Work Opinion, supra
note 79 at 17-19, 27-28.
34
84
Article 21 of the Draft Articles on State Responsibility discusses obligations of results and means toward the achievement of those
results. See I.L.C.Report (29th Session), supra note 21, at art. 21. An example of the application of this principle is provided by the
Airey case, 32 Eur.Ct.H.R. (ser. A) (1979) where Mrs. Airey claimed a breach of article 6(1) of the European Convention on the
right to a fair trial because she had been denied legal assistance in seeking a judicial separation from her alcoholic husband. The
European Court stated that [t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are
practical and effective, at para 24. See generally Schachter, the Obligation of the Parties to Give Effect to the Covenant on Civil
and Political Rights (Editorial Comments), 73 Am.J.Int'l L. 562 (1979).
85
I.L.C.Report (32nd Session), supra note 21, at art. 21. Article 21 provides that:
(1) There is a breach by a State of an international obligation requiring it to achieve, by means of its own choice, a specified result,
if, by the conduct adopted, the State does not achieve the result required of it by that obligation.
(2) When the conduct of the State has created a situation not in conformity with the result required of it by an international obligation,
but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the State, there is
a breach of the obligation only if the State also fails by its subsequent conduct to achieve the result required of it by that obligation.
The I.L.C. explains that a comparison of the result achieved with the result which the State ought to have achieved is the only
general and basic criterion for establishing whether an obligation of result has been achieved. See supra note 21, at 29.
86
Id. at art. 20. Article 20 provides that: [t]here is a breach by a State of an international obligation requiring it to adopt a particular
course of conduct when the conduct of that State is not in conformity with that required of it by that obligation.
87
Id. at 29.
88
Women's Convention, supra note 1. See generally Burrows, The 1979 Convention on the Elimination of All Forms of Discrimination
Against Women, 32 Neth.Int'l L.Rev. 419 (1985); Cook, The International Right to Nondiscrimination on the Basis of Sex: A
Bibliography, 14 Yale J. Int'l L. 161 (1989).
89
Res. 5 (XXIV), 52 U.N.ESCORSupp. (No. 6) at 70, UN Doc. E/5109 and E/CN.6/568 (1972). In passing this resolution, the
Commission had before it a study of provisions in existing conventions that relate to the status of women which showed that since
1945 more than twenty different international instruments on women's status had been adopted. See generally Galey, Promoting
Nondiscrimination Against Women: The U.N. Commission on the Status of Women 23 Int'l Stud. Q. 273 (1979); N.H. Hevener,
International Law and the Status of Women (1983).
90
52 U.N.ESCORSupp. (No. 6), supra note 89, at 25-26.
91
54 U.N.ESCORSupp. (No. 5) at para. 2; UN Doc. E/CN.6/573 (1973).
92
For the status of ratifications of and accessions to conventions relating to women as of Dec. 31, 1971, see International Instruments
and National Standards Relating to the Status of Women: Study of Provisions in Existing Conventions That Relate to the Status of
Women 24 UNESCOR, UN Doc. E/CN.6/552 Annex 1 (1972). See generally McDougal, Lasswell and Chen, Human Rights for
Women and World Public Order: The Outlawing of Sex Based Discrimination, 69 Am.J.Int'l L. 497, 509-31 (1975).
93
429 U.N.T.S. 93 (1960).
94
96 U.N.T.S. 272 (1950).
95
193 U.N.T.S. 135 (1953).
96
309 U.N.T.S. 65 (1957).
97
521 U.N.T.S. 231 (1962).
98
ILO Convention, no. 100; 165 U.N.T.S. 303 (1951).
99
GA Res. 2263, 22 U.N. GAORSupp. (No. 16) at 35, U.N.Doc. A/6716 (1967).
35
100
54 U.N.ESCORSupp. (No. 5), supra note 91, at para. 9.
101
Id. at para. 11. The Convention on the Political Rights of Women had only been ratified by half of the states members of the U.N.
102
Id. at para. 16.
103
Id. at para. 23.
104
Id. at paras. 24-26.
105
106
Id. at para. 34.
107
Id. at para. 33.
108
Id. at para. 117.
109
U.N.Doc. E/CN.6/589 at para. 84 (1974).
110
The meaning of discrimination, and, conversely, equal treatment recognized in contemporary international law regarding race is
set out in the dissent of Judge Tanaka in the South West Africa Cases, Second Phase (Ethiopia v. S.A.; Liberia v. S.A.), 1966
I.C.J. 3, 248-324 (1966), reprinted in I. Brownlie, Basic Documents on Human Rights, 441, 457-70 (2nd ed. 1981). The influential
definition is based on the premise that all human beings are equally valuable; however, the notion of equality does not necessarily
preclude different treatment of individuals on the basis of objectively identifiable differences in circumstances, such as, for example,
sex. Equality is a relative rather than absolute principle and depends upon the specific needs of particular individuals, according to
Judge Tanaka. Therefore, to achieve equality of their citizens before the law, states are required to treat equally what are equal and
unequally what are unequal. 1966 I.C.J. at 306; Brownlie at 461. In other words, unequal treatment does not constitute a violation of
the principle of equality in international law if it is objectively justifiable according to the criterion of justice or reasonableness and
if it is in proportion to the existing differences. Instead, legal equality permits and requires special treatment according to different
needs. For a case holding that differential treatment was objectively justified, see Hendrika S. VOS v. Netherlands Communication
No. 218/1986 (Views adopted on March 29, 1989 at the 35th Session of the Human Rights Committee). See generally W. McKean,
Equality and Discrimination under International Law 258-63 (1985).
The normative nature of the principle of equality was implicitly recognized by the European Court of Human Rights when it
determined whether an arbitrary distinction had been made by Belgium in its use of languages in education. See Case Relating to
Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits) 1 E.H.R.R., Series A, No. 6, 252 1968
(Judgment of July 23). In its decision, the Court stated that Article 14 of the European Convention which generally provides the
right to non-discrimination does not prohibit distinctions in treatment which are founded on an objective assessment of essentially
different factual circumstances. Id. at 284. The Court decided that the French text of the European Convention, which reads
sans distinction aucune, could not be interpreted literally because this would result in a finding of discrimination whenever
national authorities failed to secure to all citizens complete equality of treatment. Id. at 293. A more restrictive interpretation was
appropriate: The principle of equality of treatment is violated if the distinction has no objective and reasonable justification or
if there is an unjustified distinction. Id. at 284.
111
54 U.N.ESCORSupp. (No. 5), supra note 91, at paras. 9 and 23.
112
GA Res. 2263, supra note 99. The 1975 Declaration of Mexico on the Equality of Women and their Contribution to Development
and Peace observed in paragraph 1 that equality between women and men means equality in their dignity and worth as human
beings as well as equality in their rights, opportunities and responsibilities. See Report of the world Conference of the International
Women's Year, Mexico City, June 19-July 2, 1975 U.N.P.Sales No. E.76.IV.1, chap. I.
113
U.N. Doc. E/CN.6/574 at 7 (1974).
114
U.N. Doc. E/CN.6/589, supra note 109, at para. 34. See also U.N. Doc. E/CN.6/608, annex 2 at 30 (1976).
36
115
U.N. Doc. A/C.3/32/L.59, annex I at 13 (1977).
116
Race Convention, supra note 5, at 353.
117
Women's Convention, supra note 1, at 194.
118
For a discussion of the definition of racial discrimination, see Meron, The Meaning and Reach of the International Convention on
the Elimination of All Forms of Racial Discrimination, 79 Am.J.Int'l L. 283, 286-91 (1985).
119
Race Convention, supra note 5.
120
Women's Convention, supra note 1, at art. 1.
121
The description civil is generally taken to mean the alternative to public; that is, civil is synonymous with private. This
understanding of civil reflects Continental practice, which is preferable to that in the common law tradition, where civil is
sometimes used in contrast to military, i.e., the Civil Service is contrasted with the Military Service.
122
54 U.N.ESCORSupp. (No. 5), supra note 91. For a discussion of affirmative action in the Race Convention, see Meron, supra note
118, at 305-11.
123
U.N. Doc. E/CN.6/AC.1/L.4/Add. 4 at 1 (1974).
124
U.N. Doc. E/CN.6/589, supra note 109, at para. 34.
125
U.N. Doc. E/CN.6/591 at para. 30 and n. 5 (1976).
126
Id. at para. 31.
127
Id.
128
129
Id. at 3.
130
Id. at 92.
131
Id. at 100.
132
U.N. Doc. E/CN.6/AC.1/L.4, supra note 123, at para. 32.
133
Article 4 provides:
1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall
not be considered discrimination as defined in the present Convention, but shall in no way entail, as a consequence, the maintenance
of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment
have been achieved.
2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting
maternity shall not be considered discriminatory.
134
For a discussion of the public and private reach in the Race Convention, see Meron, supra note 118, at 291-305.
135
See generally Meron, supra note 118.
136
Women's Convention, supra note 1, at art 5(a). This provision is one of the more important provisions in obligating states parties
to attack the causes of discrimination. Compare the Race Convention which has been criticized for dealing with the symptoms and
not the causes of discrimination. Reisman, Responses to Crimes of Discrimination and Genocide: An Appraisal of the Convention
on The Elimination of Racial Discrimination 1 Den.J.Int'l. L. & Policy 29, 63-64 (1971).
37
137
138
The title of the Women's Declaration did not contain these terms, supra note 99.
139
Women's Convention, supra note 1, at paras. 1-4.
140
See generally UN Study of Provisions in Existing Conventions that Relate to the Status of Women, U.N. Doc. E/CN.6/552 (1972);
see also Hevener, supra note 89.
141
See, e.g., 1904 International Agreement for the Suppression of the White Slave Traffic, May 14, 1904, 35 Stat. 1979, 1 L.N.T.S. 83
reprinted in Agreement Between the United States and Other Powers for the Repression of the Trade in White Women, 2 Am.J.Int'l
L.Supp. 363 (1908), which had a self-evident focus and purpose that reflected preoccupations of a particular culture and time. See
also supra notes 92-98 and accompanying text.
142
See UNESCO, Report of the Meeting of Experts on the Social and Cultural Factors that Impede the Promotion of Equality and the
Application of the Convention on the Elimination of All Forms of Discrimination Against Women, SHS-87/CONF. 805/11 at para.
13 (1987) [hereinafter UNESCO Report] that explains that it has taken the international community several decades to progress
from recognizing specific forms of sex discrimination through specialized treaties to more pervasive forms of sexual inequality
through the Women's Convention.
143
54 U.N.ESCORSupp. (No. 5), supra note 91.
144
145
Id.
146
147
Id. at art. 2(e).
148
Id. at art. 2(a).
149
Id. at art. 2(b).
150
Id. at art. 2(g).
151
Id. at art. 2(f).
152
Id. at Preamble, para. 8.
153
See generally Alston, A Third Generation of Solidarity Rights: Progressive Development or Erosion of International Human Rights
Law?, 29 Neth.Int'l L.Rev. 307 (1982).
154
Imbert, supra note 30, at 31.
155
The Genocide Reservations Opinion favored the universality rule because [t]he object and purpose of the Genocide Convention
imply that it was the intention of the General Assembly and of the States which adopted it that as many states as possible should
participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application,
but would detract from the authority of the moral and humanitarian principles which are its basis. See supra note 15, at 24.
156
The Genocide Reservations Opinion explained the notion of integrity of the Genocide Convention as a traditional concept
involv[ing] the proposition that no reservation was valid unless it was accepted by all the contracting parties without exception, as
would have been the case if it had been stated during the negotiations. See supra note 15, at 21.
157
54 U.N.ESCORSupp. (No. 5), supra note 91, at para. 15.
38
158
Id. at para. 112.
159
Id. at para. 7.
160
For overviews of international law on reservations prior to the Vienna Convention, see, e.g., W. Bishop, Reservations to Treaties,
103 Recueil de Cours 245 (1961); G. Fitzmaurice, Reservations to Multilateral Conventions, 2 Int'l & Comp. L.Q. 1 (1953); A
McNair, The Law of Treaties 158-177 (1961); J. Ruda, Reservations to Treaties, 146 Recueil de Cours 95, 111-178 (1975).
161
Sinclair, supra note 45, at 56.
162
U.N.Doc. E/CN.6/591, supra note 125, at para. 113.
163
Id. at Annex 1.
164
165
Draft Convention, supra note 123.
166
At its 1975 meeting, the Third Committee of the U.N. General Assembly adopted a resolution welcoming the results of the 1975
world conference of the International Women's Year held at Mexico City and requesting the Commission to complete the draft
Women's Convention in 1976. The U.N. General Assembly adopted this resolution on 15 December 1975. GA Res. 3521 (XXX);
see also U.N.Doc. E/CN.6/591, supra note 125, at para. 5.
167
See supra note 125.
168
Alternative draft conventions to the one suggested by the Commission submitted by Benin, Indonesia, the All-African Women's
Conference, and Belgium were equally silent on the issue of reservations in their Final Provisions. Id. at 83-99.
169
Id. at para. 166.
170
Id.
171
Id.
172
Id. See generally Cassesse, A New Reservations Clause (Article 20 of the United Nations Convention on the Elimination of All
Forms of Discrimination Against Women), Recueil d'Etudes de droit international en hommage de Paul Guggenheim 266-30 (1968).
173
U.N.Doc. E/CN.6/591, supra note 125, at paras. 214 and 215.
174
Id. at 11.
175
Id. at 12.
176
Draft Convention on the Elimination of Discrimination Against Women, Report of the Secretary General, U.N.Doc. A/32/218
(1977).
177
Id. at para. 158.
178
Id.
179
Genocide Reservations Opinion, supra note 15.
180
D. Bowett, Reservations to Non-Restricted Multilateral Treaties, 48 Brit.Y.B.Int'l L. 67, 71 (1976-77). But see J. Koh, Reservations
to Multilateral Treaties: How International Legal Doctrine Reflects World Vision, 23 Harv.Int'l L.J. 71, 73-76 (1982) (distinguishing
the criteria to determine the validity of reservations as purposive, on the basis of the compatibility of their substance, or
subjective, according to consent or acceptance of the reservations by the parties to the treaty).
39
181
U.N.Doc. A/32/218, supra note 176, at Add. 2, para. 24.
182
Draft Convention on the Elimination of Discrimination Against Women; Report of the Working of the Whole on the Drafting of
the Convention on the Elimination of Discrimination Against Women, U.N.Doc. A/C.3/34/14 at 16-18 (1979).
183
Id. at 16. Australia was particularly exercised about the reservations because of certain domestic complexities involving its federal
system. It favored the draft modeled on the Race Convention because domestic mechanisms had been established to implement such
a provision. Alternatively, Australia expressed concern over using the Vienna Convention model in the context of the Women's
Convention, but later withdrew its objections at a subsequent meeting of the working group.
184
Id. at 18.
185
Id.
186
The I.C.J. characterized the principle of good faith as [o]ne of the basic principles governing the creation and performance of legal
obligations. See Nuclear Tests Cases (Aust. v. Fr.), 1974 I.C.J. 253, 268 (Judgment of Dec. 20).
187
Yamashita, On Japanese Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, 5 Bull.
of Pre-School Educ. Dept. 81, 95 (1985); see also UNESCO Report, supra note 151, at para. 40.
188
Women's Convention, supra note 1. As a result Japan might be in breach of its obligation to provide appropriate means.
189
See supra note 6 and accompanying text.
190
The manner in which an individual state party responds to another's reservation will affect the reserving state party's powers of
legal action regarding the objecting state. See infra notes 201-14 and accompanying text. This response in itself, however, does not
determine whether the reservation is compatible with the object and purpose of the treaty. A test of subjective acceptability would
frustrate and nullify the legal principle embodied in article 19 of the Vienna Convention.
191
See supra notes 78-87 and accompanying text.
192
193
CEDAW Paper, supra note 33, at 22. No states parties have considered these reservations offensive enough to object to them. Other
states parties to the Women's Convention led by monarchies, such as Sweden and Thailand, or by the same royal house, such as the
United Kingdom, including Australia, Canada, Mauritius and New Zealand, have not considered it necessary to reserve succession
to their respective monarchies (see appendix II).
194
Gamble, Reservations to Multilateral Treaties: A Macroscopic View of State Practice, 74 Am.J.Int'l L. 372, 390-91 (1980)
distinguishes between minor and major substantive reservations in terms of whether they modify a crucial, pivotal portion of the
treaty or, in a few cases whether [they] modified so much of the treaty that the treaty was, in effect, gutted and classifies reservations
to the Convention on the Political Rights of Women, supra note 52, that preserve male succession to the throne as minor.
195
CEDAW Paper, supra note 33, at 7.
196
Status of the Convention on the Elimination of All Forms of Discrimination Against Women, Report of the Secretary General, UN
Doc. A/41/608 at 6 (1986).
197
ILO, Equality in Employment and Occupation: General Survey of the Reports on the Discrimination (Employment and Occupation)
Convention (No. 111) and Recommendation (No. 111), 1958, (1988).
198
ILO, Equal Remuneration: General Survey of the Reports on Equal Remuneration Convention (No. 100) and Recommendation
(No. 90), 1951, (1986).
199
World Health Organization, Development of Indicators for Monitoring Progress Towards Health for All by the Year 2000, Health
For All Series no. 4 (1981).
40
200
Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality,
Development and Peace, U.N.Doc. A/Conf. 116/28 at 1-89 (1985) [hereinafter Report of the World Conference]. For an analysis
of the links between the Women's Convention and the Nairobi Forward-Looking Strategies, see Stump, Re-examining the UN
Convention on the Elimination of All Forms of Discrimination Against Women: The UN Decade for Women Conference in Nairobi,
10 Yale J.Int'l L. 384 (1985).
201
Report of the World Conference, supra note 200, at 164.
202
Report of the Secretary General, Progress at the National, Regional and International Levels in the Implementation of the Nairobi
Forward-Looking Strategies for the Advancement of Women, E/CN.6/1990/5 (22 Nov. 1989).
203
E.g., European Committee for the Equality Between Men and Women, Collection of the Council of Europe's Work Relating to
Equality between Women and Men (1950-1988) (1989); P. Boucaud, the Council of Europe's Standard-Setting Activities Relating
to the Equality of the Sexes (1989).
204
See H. Lauterpacht, International Law and Human Rights 153 (1950).
205
206
Note, supra note 28, at 297.
207
208
Koh, supra note 180, at 105-116.
209
Teboul, Remarques Sur Les Rservs aux Convention de Codification, 86 Revue Generale de Droit Int'l Public 679, 684-688 (1982).
210
See, e.g., Genocide Reservations Opinion, supra note 15. See also Coccia, supra note 58, at 16-18, 30-32; Schachter, International
Law in Theory and in Practice, 178 Recueil des Cours 1, 339-42 (1982).
211
Coccia, supra note 58, at 34; Schachter, supra note 210, at 333-338.
212
U.N.Doc. A/6316, supra note 10.
213
214
215
See, e.g., supra notes 50-55 and accompanying text.
216
Women's Convention, supra note 1, at para. 6.
217
Id. at para. 15.
218
219
Multilateral Treaties Deposited with the Secretary General, Status as at 31 December 1988, UN.Doc. ST/LEG/SER.E/7 at 131-142
(1989). Of the reservations to the Political Covenant, only one (by Austria) pertains specifically to article 26, which prohibits
discrimination on grounds including sex, at 131. As well, Belgium has made the sole reservation to article 3, which ensures the
equal enjoyment of civil and political rights by men and women, at 130-131. However, other reservations to the Political Covenant
potentially effect the treatment of women, e.g., Belgium's reservation to article 23(2) concerning the right to marry and found a
family, at 132.
220
Article 20(4)(b) of the Vienna Convention favors treaty relations even in the face of an objection to a reservation.
221
See K. Holloway, Modern Trends in Treaty Law 507-8.
41
222
See Koh, supra note 180, at 303.
223
Women's Convention, supra note 1, at para 6.
224
Schachter, The Obligation of the Parties to Give Effect to the Covenant on Civil and Political Rights, 73 Am.J.Int'l L. 462, 464-65
(1979).
225
See UN Doc. A/43/605 (1988); see also CEDAW Paper, supra note 33.
226
CEDAW Paper, supra note 33, at 8. See generally An-Na'im, The Rights of Women and International Law in the Muslim Context,
9 Whittier L. Rev. 491 (1987); An-Na'im, Islamic Law, International Relations, and Human Rights: Challenge and Response, 20
Cornell Int'l L.J. 317, 330 & 31 (1987). Obligations of states with reservations based on religion and custom are particularly vexing
for CEDAW. See Byrnes, supra note 18, at 54.
227
228
Id. at 14.
229
Id. at 16.
230
Id. at 19.
231
16 Constitutions of the Countries of the World: Tunisia 5 (A. Blaustein and G. Flanz ed. 1977).
232
Id. at 4.
233
Id. at 17.
234
235
Lovelace v. Canada, Communication No. R.6/24, 36 U.N. GAOR Supp. (No. 40) at 166, U.N.Doc. A/36/40, reprinted in 2
Hum.Rts.L.J. 158 (1981) [hereinafter Lovelace Opinion].
236
Id. at para. 1.
237
Id. at para. 13.2.
238
Id. at para. 16.
239
Schachter, supra note 210, at 464.
240
Id.
241
Id. at 465; see also Vienna Convention, supra note 22, at art. 27.
242
243
244
Id. at 33 (Mexico).
245
246
European Convention, supra note 46.
247
CEDAW Paper, supra note 33, at 7 & 8.
42
248
Id. at 19. See Initial Report of Thailand, CEDAW/C/5/Add. 51 at 17-18.
249
250
See also the Australian reservation regarding armed combat, id. at 7.
251
The test for nationality was established in the Nottebohm Case (Liechtenstein v. Guatemala), 1955 I.C.J. 4, 22 (Judgment of April 6).
252
Countries which have not reserved this article are not necessarily in compliance. For example in Gabon, which ratified the Women's
Convention without reservations, a Gabonese woman must renounce her nationality in order to marry a foreigner, and if she divorces
she cannot have her nationality reinstated. Moreover, a foreign woman who marries a Gabonese man cannot retain her nationality.
Implementation in Africa of the Convention on the Elimination of All Forms of Discrimination Against Women, Doc. E/ECA/
CM.13/27 at para. 33 (1987).
253
CEDAW Paper, supra note 33, Add. 1 at 18.
254
Id. at 14.
255
Id. at 20.
256
Id. at 11.
257
Id.
258
Id.
259
Amendments to the Naturalization Provisions of the Constitution of Costa Rica, 1984 ser. A: Judgments and Opinions No. 4,
[hereinafter Naturalization Opinion] paras. 31-68 (Advisory Opinion of Jan. 19) reprinted in 5 Hum.Rts.L.J. 161 (1984); see
generally on the need to avoid normative conflict, T. Meron, Human Rights Law Making in the United Nations 129-213 (1986).
260
Naturalization Opinion, supra note 259, at para. 64.
261
Id. at para. 68.
262
See Aumeeruddy-Cziffra Case, supra note 81, at para. 9; see also the decisions in Abdulaziz, Cabales and Balkandali, supra note 19.
263
I.L.O. Convention (No. 4) Concerning the Employment of Women During the Night, 1919, 38 U.N.T.S. 67.
264
Id. at 76.
265
ILO Convention (No. 89) Concerning Night Work of Women Employed in Industry (Revised), 1948, 81 U.N.T.S. 147. In 1948, as
a result of the Night Work Opinion, 1932 P.C.I.J. (ser. A/B) No. 50, the 1919 Convention was amended to establish a more flexible
definition of the term night.
266
CEDAW Paper, supra note 33, Add. 1 at 7-8. The governments of New Zealand, Cook Islands and Niue have withdrawn a similar
reservation. Id. at 43.
267
Certain types of protection of women are discriminatory because they prevent women from freely choosing employment and keep
them in low paying jobs traditionally held by women; see Wadstein Implementation of the UN Convention on the Elimination of
All Forms of Discrimination Against Women 6 Neth.Q.Hum.Rts. 5, 16 (1988). But see ILO Official Bulletin, Vol. LXVIII, ser. A,
no. 1, 40-42 (1985) for the view that ILO conventions with protective provisions which allow for differential treatment between
women and men are compatible with the Women's Convention.
268
For a discussion of the negative implications of protectionist labor laws on women and an argument in favor of sex neutral labor
laws, see Williams, Equality's Riddle: Pregnancy and Equal Treatment/Special Treatment Debate, 13 N.Y.U.Rev.L. & Soc.Change
325 (1985).
43
269
CEDAW Paper, supra note 33, at 8, 15, 19-21 (1988).
270
Married Women's Property Act, 1882, 45 & 46 Vic., ch. 75.
271
Greater employment opportunities and higher wages do not necessarily benefit women in the absence of legal capacity to exercise
control over the income from employment, see Loufti, Development with Women: Action, Not Alibis 126(1), Int'l Lab.Rev. 111,
121 (1987).
272
See Cook and Maine, Spousal Veto over Family Planning Services, 77 Am.J.Pub.Health 339 (1987).
273
A woman successfully challenged a Peruvian procedural law providing that when a woman is married, only the husband is entitled
to represent the matrimonial property before the courts. The challenge came under the International Covenant on Civil and Political
Rights. The Human Rights Committee concluded that this Peruvian law violated article 3 (non-discrimination in the enjoyment of
rights guaranteed by the Covenant), article 14(1) (right to equality before the courts), and article 26 (equality before the law and
equal protection of the law). The Committee called on the Peruvian government to remedy these violations. Ato del Avellan v. Peru,
Comm. No. 202/1986, Report of the Human Rights Committee in 1989, A/44/40, Annex X.C, p. 196 (Human Rights Committee)
28 October 1988.
274
Some states parties to the Women's Convention such as Brazil, Thailand and Turkey that have entered reservations to article 15
have refrained from ratifying or even signing the Political Covenant, article 3 of which requires an undertaking to ensure the equal
rights of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. See U.N.Doc A/6316,
supra note 10.
275
276
Id. at 7.
277
Id. at 20.
278
Lovelace Opinion, supra note 235.
279
Reservations to article 14 on the rights of rural women have been made only by France and are relatively limited; see supra note
33 at 13.
280
For example, in Rwanda, which ratified the Women's Convention without reservations, a woman cannot contract, buy or sell property
or, for example, open a bank account without her husband's authorization. Supra note 252, at para. 51 (1987).
281
282
Id. at 42.
283
Id. at 40.
284
See supra notes 133-149 and accompanying text. See also Women's Convention, supra note 1, at art. 2.
285
286
Id. at 18.
287
Id. at 8; see generally for discussion on conflicts between religious rights and women's rights, Sullivan, Advancing the Freedom of
Religion or Belief Through the UN Declaration on the Elimination of Religious Intolerance, 82 Am.J.Int'l L. 487, 514-518 (1988).
288
289
1966 I.C.J. 3, supra note 110.
44
290
CEDAW Paper, supra note 33 at 11.
291
Id. at 14.
292
Id.
293
It might also be argued that the reservation is contrary to the Naturalization Opinion, supra note 259; see generally Meron, supra
note 259.
294
Data collected by the U.N. Secretary-General, presented for consideration at the July 1985 UN World Conference to Review
and Appraise the Achievements of the United Nations Decade for Women held in Nairobi, Kenya, quantified the unrecognized
contribution that women make to industrialized national economies through unpaid housework to range between 25 and 40 per cent
of the gross national product. UN Doc. A/Conf.1/16/5 Add. 2 at para. 14 (1984).
295
See generally UNESCO Report, supra note 142, at paras. 30-65.
296
Evidence shows, for instance, that in parts of rural Africa such as Zimbabwe over half of households are headed by women, U.S.
Bureau of the Census and U.S. Agency for Int'l Dev., Women of the World: Sub-Saharan Africa, O.W.Dev.C 3.2 W84/5 114 (1984).
In Jamaica, about one third of households in both urban and rural areas are run by women, U.S. Bureau of the Census and U.S.
Agency for Int'l Dev., Women of the World: Latin America and the Caribbean O.W.Dev.C 3.2 W84/4 123 (1984).
297
Women's Convention, supra note 1, at para. 6.
298
See Schacter, supra note 224, at 465.
299
Belilos case, supra note 32.
300
CEDAW/SP/10 (1986).
301
CEDAW/SP/14 (1988).
302
CEDAW/SP/17 (7 Feb. 1990).
303
For the kinds of questions on reservations asked by CEDAW members and the kinds of responses, see, e.g., the considerations of the
reports of Austria, UN Doc. A/40/45 at para. 193 (1985); Bangladesh, UN Doc. A/42/38 at para. 512 (1987); Korea, UN Doc. A/42/38
at para. 157 (1987); and Thailand, UN Doc. CEDAW/C/L.7/Add. 6 at paras. 5 & 23 (1990). See generally, Byrnes, supra note 18,
at 51-56; Caron, Les travaux du comite pour l'elimination de la discrimination a l'egard des femmes, 2 Revue Quebecoise de Droit
Int'l 295, 297-98 (1985); Cortes, Monitoring Progress in the Implementation of the Convention on the Elimination of All Forms of
Discrimination Against Women: The CEDAW, 8 Asian Newsletter on Hum.Rts.Docs. 1, 8-11 (1984); Oeser, Legal Questions in the
Committee on the Elimination of Discrimination Against Women, 14 Bull. of the GDR Committee for Hum.Rts. 86, 93-96 (1988).
304
See, e.g., the consideration of the reports of France, UN Doc. A/42/38 at para. 393 (1987); Korea, UN Doc. A/42/38 at paras. 147
& 154 (1984) and Spain, UN Doc. A/42/38 at para. 260 (1987).
305
UN Doc. A/39/45, Report of CEDAW, 3rd session, vol. II, Annex III at 55 (1984).
306
See Appendix I. Bylerussia, Ukraine, and the Soviet Union withdrew their reservations to the dispute settlement provisions in 1989.
CEDAW Paper, supra note 33, at 40-46.
307
Saint Lucia has objections to states parties that have made substantive reservations that raise bona fide questions about compatibility
with the object and purpose of the Convention also reserving the dispute settlement provision under article 29(2). Saint Lucia finds
objectionable the reservations entered by Brazil, Egypt, France, Jamaica, Mauritius, Thailand, Tunisia and Turkey, not because they
are necessarily incompatible with the Convention but because the countries entering them have also reserved compulsory settlement
of the dispute on the issue, UN Doc. A/41/608 at 12 (1986).
308
Norwegian Loans Case (France v. Norway), 1957 I.C.J. 9.
45
309
310
GA Res. 2200 A(XXI) (1966).
311
Id. at art. 2.
312
Communications No. 172/1984, S.W.M. Broeks v. The Netherlands (Views adopted on 9 April 1987 at the twenty-ninth session);
see generally Scott, Interdependence and Permeability of Human Rights Norms: Towards A Partial Fusion of the International
Covenants on Human Rights, 27 Osgoode Hall L.J. 770 (1989).
313
Broeks v. The Netherlands, supra note 312, at para. 8.
314
Specifically, the Netherlands argued that:

the Government considers it incompatible with the aims of both the Covenants and the Optional Protocol that an individual complaint
with respect to the right of social security, as referred to in article 9 of the International Covenant on Economic, Social and Cultural
Rights, could be dealt with by the Human Rights Committee by way of individual complaint under the Optional Protocol based on
article 26 of the International Covenant on Civil and Political Rights.
Id.
315
Id. at para. 12.1.
316
See generally Shelton, supra note 42.
317
I.C.J. Charter, art. 65(1).
318
Genocide Reservations Opinion, supra note 15, at 20.
319
9 I.L.M. 99, supra note 13, at art. 52.
320
Other Treaties Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), InterAmerican Court of Human Rights, ser. A: Judgments and Opinions, No. 1, (Advisory Opinion No. oc-1/82 of Sept. 24, 1982)
reprinted in 22 I.L.M. 51 (1983).
321
Id. at para. 21. The Court contrasted its Advisory Opinion jurisdiction with the more limited jurisdiction of the European Court of
Human Rights, established under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Only
the Committee of Ministers may request an opinion from the European Court, and the opinion may deal only with legal questions
concerning the interpretation of the European Convention and its Protocols, id. at para. 16. See generally, Buergenthal, supra note
16, at 5.
APPENDIX I
Angola
Antigua and Barbuda
Argentina D
Australia R O Ghana
Austria
R O
Belgium
Bhutan
Brazil
D R O
Bulgaria D
Burkina Faso
Phillipines
Guatemala
Poland D
Portugal
Guinea
Republic of Korea R O
Guines-Bissau
Guyana
Haiti
Romania D
Rwanda
Saint Kitts and Nevis
Honduras
Saint Lucia
Hungary D
Saint Vincent and
Greece
Bangladesh R O
Barbados
R O
STATES PARTIES AS OF 2 FEBRUARY 1990 *

Gabon
Panama
German Democratic
Paraguay
D
Peru
Republic
46
Bylerussian Soviet
Socialist Republic
Iceland
Indonesia
Grenadines
Senegal
Iraq D R O
Canada
Cape Verde
Sierra Leone
R O
Spain R O
Sri Lanka
Chile
Ireland
Italy
China D
Colombia
Congo
Jamaica D R O
Japan
Kenya
Costa Rica
Lao People's Democratic

Republic
Cuba
Sweden +
Tanzania
Thailand D R O
Togo
Tunisia D R O
Cyprus R O
Liberia
Czechoslovakia D
Libyan Arab Jamahiriya
Turkey D R O
Uganda
Democratic Yemen D
Denmark
Ukranian Soviet Socialist

Republic
Dominica
Dominican Republic
Ecuador
Luxembourg R
Madagascar
Malawi
Mali
Egypt D R O
Mauritius D R O
El Salvador D
Equatorial Guinea
Mexico +
Ireland R O
Uruguay
Mongolia D
New Zealand, Cook
Ethiopia
Federal Republic of
Germany R +
Finland
France
KEY
Union of Soviet Socialist

Republics
United Kingdom of Great
Britain and Northern
D R O
Venezuela D
Islands and Niue R O

Nicaragua
Vietnam D
Yugoslavia
Nigeria
Norway
Zaire
Zambia
Footnotes
R
reservation(s) to substantive article(s) deposited
dispute settlement reservation deposited
objection(s) to this state party's reservation(s) deposited
objection(s) made by this state party
Source: Report of the Committee on the Elimination of Discrimination Against Women, UN Doc. A/45/38 (8 February 1990).
APPENDIX II
SUBSTANTIVE RESERVATIONS, OBJECTIONS AND WITHDRAWALS as of February 2, 1990 *
Article Reserved
State
Withdrawal
Objection
Generally
Malawi
FRG, Mexico
Sweden
Libyan Arab Jamahiriya
FRG
Tunisia **
1
(Definition)
United Kingdom
United Kingdom
Bangladesh
(Policy)
FRG, Mexico
Sweden
47
Egypt
New Zeland (per Cook Islands)
Iraq
2(f)
United Kingdom
Iraq
2(g)
5(a)
(Stereotyped Roles)
5(b)
7
(Public Life)
United Kingdom
New Zealand
(per Cook Islands)
France
Belgium
FRG
Mexico
FRG, Mexico
Sweden
FRG, Mexico
Sweden
Mexico
France
Luxembourg
Thailand
FRG, Sweden
**
Spain
United Kingdom
Austria
FRG
Republic of
Korea
United Kingdom
Iraq
7(b)
9
(Nationality)
9(1)
FRG, Mexico
Ireland
Turkey **
Cyprus
Egypt
Iraq
Jamaica
Thailand
9(2)
Tunisia
Thailand
10
(Education)
10(c)
11
(Employment)
FRG, Mexico,
Sweden
Mexico
FRG, Mexico
FRG, Mexico
FRG, Mexico
FRG, Mexico
Sweden
FRG, Sweden
FRG, Sweden
United Kingdom
Austria
United Kingdom
Mauritius
11(1)(b)
FRG, Mexico
Ireland
Thailand
(11)(1)(c)
11(1)(d)
Canada
11(2)
11(2)(b)
Mauritius
United Kingdom
Australia
FRG, Sweden
Ireland
Ireland
FRG, Mexico
FRG, Mexico
New Zealand, Niue and the Cook

Islands
13
(Economic & Social
Life)
13(a)
United
Kingdom
13(b)
Ireland
Bangladesh
FRG, Mexico
Sweden
Ireland
48
13(c)
14(2)(c)
(Rural Development)
14(2)(h)
15
(Legal Capacity)
15(2)
Ireland
France
France
United Kingdom
Belgium
France
**
15(3)
France
Turkey
Belgium
FRG, Mexico
France
France **
Ireland
Thailand
15(4)
FRG, Mexico
Sweden
FRG, Sweden
Brazil
Ireland
16
(Family)
Tunisia
Turkey
Egypt
**
FRG, Sweden
FRG, Mexico
FRG, Mexico
Iraq
FRG, Mexico
Sweden
FRG, Mexico
Sweden
Thailand
16(1)
16(1)(a)
16(1)(c)
United Kingdom
Brazil
Bangladesh
FRG, Sweden
FRG, Mexico
Sweden
FRG, Sweden
Brazil
France
16(1)(e)
France **
Republic of Korea
Tunisia
Turkey
Ireland
Republic of Korea
Tunisia
Turkey
Bangladesh
16(1)(f)
Bangladesh
16(1)(d)
16(1)(g)
16(1)(h)
FRG, Mexico
FRG, Sweden
FRG, Mexico
France
FRG, Mexico
FRG, Sweden
FRG, Mexico
FRG, Mexico,
Sweden
FRG, Mexico,
Sweden
Ireland
Republic of Korea
Tunisia
Turkey
Brazil
France
Luxembourg
Mauritius
Republic of Korea
Tunisia
Turkey
Brazil
FRG, Mexico
FRG, Sweden
FRG, Mexico
FRG, Sweden
FRG, Mexico
FRG, Mexico
FRG, Sweden
FRG, Mexico
FRG, Sweden
France
Tunisia
FRG, Sweden
49
Footnotes
*
Sources: UN Doc. CEDAW/SP/13/Rev. 1 (1989), supra note 33; UN Doc. A/43/605 Annex 1 (1988).
**
Statements thus marked are officially called declarations.
End of Document
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See supra note 4 and accompanying text.

See Treaties Deposited with the Secretary-General, supra note 2, at 174-75.

Race Convention, supra note 5.