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2016
The implementation of the Convention on the
Elimination of all forms of Discrimination Against
Women (CEDAW) in Bangladesh
Paola Frassinetti Alves de Miranda
[email protected]
Recommended Citation
Alves de Miranda, Paola Frassinetti, The implementation of the Convention on the Elimination of all forms of Discrimination Against
Women (CEDAW) in Bangladesh, Doctor of Philosophy thesis, Law, University of Wollongong, 2016. http://ro.uow.edu.au/theses/
4639
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Faculty of Law, Humanities and the Arts
School of Law
The Implementation of the Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW) in Bangladesh
Paola Frassinetti Alves de Miranda
This thesis is presented in fulfilment of the requirements for the
award of the Degree of Doctor of Philosophy
of the
University of Wollongong
February 2016
ABSTRACT
In this thesis I studied the effectiveness of CEDAW’s regime of reservations to
protect treaty integrity. Specifically, I examined Bangladesh’s reservation to
CEDAW to illustrate the effects of impermissible reservations to the Convention, in
particular, regarding the implementation and monitoring process of CEDAW. To do
this, I conducted a qualitative analysis of relevant documents on the monitoring and
implementation process of CEDAW in Bangladesh. The analysis focused on the
challenges faced by the CEDAW Committee in effectively discharging its mandate
and the interpretation of the provisions of CEDAW, according to their relevance to
the implementation of the ‘object and purpose’ of the Convention.
CEDAW is silent on two crucial issues that affect the monitoring process of the
Convention: CEDAW does not provide the Committee with powers to determine the
validity of reservations and it does not establish which provisions represent its
‘object and purpose’. The Committee is, thus, limited to only request state parties to
withdraw reservations made to core provisions of the Convention, without the power
to give legal effect to a reservation that affects the object and purpose of the
Convention. These omissions make it difficult for the Committee to successfully
address impermissible reservations to the Convention.
This thesis examined the issues described above. After studying the reservation
regime, as applied by CEDAW, I examined and interpreted the Convention’s
provisions. The study finds that Articles 1, 2, 3 and 24 of CEDAW express the
‘object and purpose’ of the Convention. Articles 5 to 16 do not express the ‘object
and purpose’ but failure to comply with them might still undermine the
implementation of the Convention. Accordingly, I have created a classification of the
i
Articles of CEDAW that distinguishes between Articles that express its ‘object and
purpose’ from those that are less significant to the implementation of the Convention.
The findings of the study and the proposed classification of Articles add to
existing discussions about the monitoring and implementation process of CEDAW in
the reserving states. For example, Bangladesh’s reservation to Article 2 denies
compliance with the object and purpose of the Convention due to an alleged conflict
with the Muslim Personal Law. Although the reservation may affect the
implementation of the entire Convention, in the review of Bangladesh’s periodic
reports, the CEDAW Committee is limited to only address the impermissibility of the
reservation and waits for an individual act of the state to withdraw the reservation
and keep its obligation to the implementation of the Convention.
An examination of the effects of Bangladesh’s reservation to the
implementation of CEDAW demonstrated that several obstacles imposed by
religious personal laws to the achievement of substantive equality and nondiscrimination have not been properly assessed by the CEDAW Committee. The
examination also shows that existing practices and guidelines adopted by the
Committee for the preparation and submission of reports by Non-Governmental
Organizations (NGOs) and UN specialized agencies may affect the monitoring of
CEDAW in the reserving states.
Against this background I discuss why the current format adopted for the
submission of reports restricts the scope and quality of the information provided by
NGOs and UN agencies. I also discuss why this can diminish the access of the
Committee to information from which to formulate its questions and to identify areas
where the state party is not complying with its obligations to CEDAW. In light of
this discussion, the thesis proposes a new format for preparation and submission of
ii
reports by NGOs and UN agencies, aiming to facilitate compliance with CEDAW
and, in turn, strengthen the monitoring and implementation process of the
Convention.
This thesis contributes to existing knowledge on the implementation and
monitoring process of CEDAW in reserving states. It undertakes a detailed
examination of the implementation of CEDAW in Bangladesh, develops a
classification of the Articles of CEDAW according to their relevance to the
implementation of the Convention, and proposes a new format for the preparation
and submission of reports to enhance the effectiveness of the information submitted
by NGOs and UN specialized agencies to the CEDAW Committee.
iii
ACKNOWLEDGEMENTS
First and foremost I thank God for the wisdom and perseverance that He has
bestowed upon me throughout my life and indeed during this research. ‘I can do
everything through him who gives me strength.’(Philippians 4:13)
I would also like to thank my principal supervisor, Professor Luke McNamara,
and my co-supervisor, Professor Vera Mackie, for their guidance, encouragement
and enduring patience throughout this journey.
I am especially grateful to the University of Wollongong for providing
scholarship funding. I would like to acknowledge the support I received from the
Faculty of Law’s staff.
Finally, my deepest appreciation goes to my husband Magno Queiroz, my
parents Iron and Auricelia, and my brother Igor. Without their continuous love, this
journey would not have been as fulfilling.
v
DEDICATION
To my husband
For his unconditional love, guidance and support during this journey.
To my loving parents and beloved brother
For inspiring me to always go further and aim for the things that I love.
And
To Apollo
For being there when I needed him.
vi
TABLE OF CONTENTS
ABSTRACT .................................................................................................................. i
THESIS CERTIFICATION ........................................................................................ iv
ACKNOWLEDGEMENTS ......................................................................................... v
DEDICATION ............................................................................................................ vi
TABLE OF CONTENTS ........................................................................................... vii
LIST OF ACRONYMS ............................................................................................... x
1.
INTRODUCTION ................................................................................................ 1
1.1.
Problem .......................................................................................................... 1
1.2.
Significance .................................................................................................. 10
1.3.
Research questions and objectives ............................................................... 17
1.4.
Research design and methodology ............................................................... 18
1.4.1. The 1969 Vienna Convention regime of reservations and human rights
treaties ............................................................................................................... 23
1.4.2. Interpreting the ‘object and purpose’ of CEDAW ................................. 27
1.4.3. The monitoring and
implementation
process
of CEDAW: A
conversation ....................................................................................................... 29
1.4.3.1. Monitoring the implementation of CEDAW in Bangladesh ........... 30
1.4.3.2. The implementation process of CEDAW ....................................... 31
1.5.
2.
Limitations of the research data ................................................................... 34
INVALID RESERVATIONS AND HUMAN RIGHTS TREATIES ................ 37
2.1.
Background history of the ‘object and purpose’ test in the 1969 Vienna
Convention ............................................................................................................. 45
2.2.
The VCLT regime of reservations and human rights treaties ...................... 52
2.2.1. The role of treaty bodies in interpreting reservations to human rights
treaties ............................................................................................................... 64
2.3.
3.
Concurrent competence to decide on the validity of reservations ............... 74
INTERPRETATION OF CEDAW ..................................................................... 80
3.1.
The origins of CEDAW ............................................................................... 87
3.2.
The CEDAW Committee ............................................................................. 90
3.2.1. The work of the Committee with reservations ....................................... 92
vii
3.3.
Equality, non-discrimination and state obligation: Guiding the interpretation
and implementation of CEDAW ............................................................................ 99
3.3.1. The principle of state obligation .......................................................... 101
3.3.1.1. State parties’ obligations under CEDAW: Discussing Article 2 of
the Convention ............................................................................................. 103
3.3.2. The principle of equality ...................................................................... 108
3.3.2.1. Equality of opportunity, equality of access to opportunity and
equality of results ......................................................................................... 110
3.3.3. The principle of non-discrimination .................................................... 115
3.4.
Interpreting CEDAW and discriminating between the Convention’s Articles
.................................................................................................................... 128
4.
THE MONITORING PROCESS OF CEDAW IN BANGLADESH ............... 132
4.1.
Outlining the challenges with the treaty body system ............................... 136
4.2.
Engaging in a conversation: Bangladesh and the CEDAW Committee
discuss the reservation.......................................................................................... 141
4.3.
Acceptance of (and objections to) Bangladesh’s reservation to CEDAW:
When ‘object’ means to ‘accept’.......................................................................... 155
4.4.
NGOs in Bangladesh: ‘Empowering’ women and debating the reservation to
CEDAW ............................................................................................................... 162
4.4.1. NGO participation in the monitoring process of CEDAW .................. 167
4.5.
5.
Bangladesh’s reservation and the commitment to CEDAW ...................... 171
RELIGIOUS PERSONAL LAWS AND THE IMPLEMENTATION OF
CEDAW IN BANGLADESH .................................................................................. 173
5.1.
Overview of ‘Islamic-based’ reservations to CEDAW .............................. 177
5.2.
Bangladesh’s legal framework and religious personal laws: Compromising
the achievement of substantive equality and non-discrimination ........................ 186
5.2.1. Religious personal laws in Bangladesh ............................................... 193
5.2.1.1. Muslim Personal Law and gender equality in Bangladesh ........... 196
5.3.
Restriction of information and the effectiveness of the CEDAW Committee .
.................................................................................................................... 205
5.3.1. NGO reports: objectivity versus relevance of information .................. 207
5.3.2. UN specialised agencies and the CEDAW Committee ....................... 211
viii
5.4.
Improving the quality of information through greater focus and substance ....
.................................................................................................................... 214
6.
CONCLUSION ................................................................................................. 218
6.1.
Findings and contributions to the field....................................................... 220
6.2.
Summary of recommendations .................................................................. 231
6.3.
Concluding remarks and future direction ................................................... 232
BIBLIOGRAPHY .................................................................................................... 234
ix
LIST OF ACRONYMS
ASK
Ain O Salish Kendra
BMP
Bangladesh Mahila Parishad
BRAC
Bangladesh Rural Advancement Committee
CAT
The Convention Against Torture and Other Cruel Inhuman or
Degrading Treatment or Punishment
CED
Convention on Enforced Disappearances
CEDAW
The Convention on the Elimination of all forms of Discrimination
Against Women
CIB
Citizen’s Initiative of Bangladesh
CRC
The Convention on the Rights of the Child
CRPD
The Convention on the Rights of Persons with Disabilities
CSW
Commission on the Status of Women
DC
District of Columbia
FAO
Food and Agriculture Organization of the UN
HRC
Human Rights Committee
ICAO
International Civil Aviation Organization
ICCPR
International Covenant on Civil and Political Rights
ICERD
The International Convention on the Elimination of All Forms of
Racial Discrimination
ICESCR
The International Covenant on Economic, Social and Cultural
Rights
ICJ
International Court of Justice
ICRMW
The International Convention on the Protection of the Rights of all
Migrant Workers and members of their families
ICTY
International Criminal Tribunal for the former Yugoslavia
IFAD
International Fund for Agricultural Development
ILC
International Law Commission
ILO
International Labour Organization
IMF
International Monetary Fund
IMO
International Maritime Organization
ITU
International Telecommunication Union
IWRAW
International Women’s Rights Action Watch
MFA
Migrant Forum Asia
x
NGOs
NPAW
Non-governmental Organizations
National Policy for the Advancement of Women
NSW
New South Wales
OHCHR
United Nations Office of the High Commissioner for Human
Rights
OP –
CEDAW
Optional Protocol to CEDAW
RD-12
Rural Development Program of the Bangladeshi Government
SPT
Subcommittee on the Prevention of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
STD
Steps Toward Development
UN
United Nations
UNESCO
UN Educational, Scientific and Cultural Organization
UNGA
United Nations General Assembly
UNIDO
UN Industrial Development Organization
UPU
Universal Postal Union
USCCR
United States Commission on Civil Rights
VCLT
Vienna Convention on the Law of Treaties
WHO
World Health Organization
WMO
World Meteorological Organization
WPO
World Intellectual Property Organization
WTO
World Tourism Organization
xi
1. INTRODUCTION
1.1. Problem
The Convention on the Elimination of all forms of Discrimination Against
Women (CEDAW)1, also known as the ‘Women’s Convention’, has a total of 188
state parties, representing more than 90 per cent of the member states of the United
Nations (UN) 2, and a total of 61 filed reservations.3 This means that 32 per cent of
CEDAW’s state parties have entered reservations to the Convention. Currently, this
is the highest number of reservations of the ‘nine core’ international human rights
treaties adopted under the auspices of the UN.4
A reservation is defined as
1
See Convention on the Elimination of all forms of discrimination against women (CEDAW).
Opened for signature on December 1979 (Entered into force on September 1981). Available at:
<http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm> [last accessed 10 February 2016]
[hereinafter ‘CEDAW Convention’].
2
See United Nations Treaty Collection, Convention on the Elimination of all forms of
Discrimination
Against
Women.
Status
as
at
12.08.2014.
Available
at:
<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV8&chapter=4&lang=en> [last accessed 10 February 2016].
3
See United Nations, Division for the Advancement of Women, Department of Economic and
Social Affairs, ‘Convention on the Elimination of all forms of discrimination against women:
Declarations,
Reservations
and
Objections
to
CEDAW’.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
4
The ‘nine core’ human rights treaties are: 1. The International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD), adopted in December 1965; 2. The International
Covenant on Civil and Political Rights (ICCPR), adopted in December 1966; 3. The International
Covenant on Economic, Social and Cultural Rights (ICESCR), adopted in December 1966; 4. The
Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), adopted in
1979; 5. The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment (CAT), adopted in 1989; 6. The Convention on the Rights of the Child (CRC), entered
into force in September 1990; 7. The International Convention on the Protection of the Rights of all
Migrant Workers and members of their families (ICRMW), adopted in December 1990; 8. The
Convention on the Rights of Persons with Disabilities (CRPD) and 9. The Convention on Enforced
Disappearance (CED), adopted in December 2006. See Office of the United Nations High
Commissioner for Human Rights, The core international human rights instruments and their
monitoring
bodies.
Available
at:
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx> [last accessed 10
February 2016].
1
a unilateral statement, however phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that State. 5
Reservations express an individual state’s desire to depart from specific terms
of a treaty against the general agreement of all parties to be bound equally by the
terms of what was supposed to be a ‘common’ document. Thus, the right to enter a
reservation to a treaty strikes at the heart of the concept of a multilateral convention.
If a large number of states make reservations to exclude or to modify the legal effect
of certain provisions of the treaty, considered to be ‘core’ provisions, consistency in
the regulation of specific areas of law is impaired.6 Lijnzad has observed that,
Reservations restrict the potential domestic effect of a human rights treaty, and a large number
of reservations made by many States will turn a human rights instrument into a moth-eaten
guarantee7
The Committee on the Elimination of Discrimination Against Women
(CEDAW Committee), which oversees the implementation of CEDAW, has
addressed the problem concerning the number of reservations made to the
5
See International Law Commission, Texts and instruments. Law of Treaties, Draft articles on the
Law
of
Treaties
with
commentaries,
1966,
p.235
para.2.
Available
at:
<http://legal.un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf> [last accessed 10
February 2016] [hereinafter ‘1966 Vienna Convention’].
6
See e.g. Schabas, William A., ‘Reservations to Human Rights Treaties: Time for Innovation and
Reform’ (1994) 32 Canadian Yearbook of International Law 39-82; Goodman, Ryan, ‘Human Rights
Treaties, Invalid Reservations and State Consent’ (2002) 96(3) American Journal of International
Law, 531-560; Linderfalk, Ulf, ‘On the meaning of the ‘Object and purpose’ criterion in the context of
the Vienna Convention on the Law of Treaties’ (2003) 72 Nordic Journal of International Law, 429–
448; Moloney, Roslyn, ‘Incompatible reservations to human rights treaties: severability and the
problem of state consent’ (2004) 5(1) Melbourne Journal of International Law, 155-168; Pellet,
Alain, ‘Reservations to treaties and the integrity of human rights’ In: Sheeran, Scot; Rodley, Sir Nigel,
Routledge handbook of international human rights law (Routledge, 2013) p.323-338.
7
See Lijnzaad, Elizabeth, Reservations to UN-Human Rights Treaties: Ratify and Ruin (Martinus
Nijhoff, 1995) p.3.
2
Convention and has stated that some of them critically affect the implementation of
the ‘object and purpose’ of CEDAW. According to Article 28(2) of CEDAW,
reservations will be invalidated if they are ‘incompatible’ with the object and
purpose of the Convention. However, CEDAW does not establish a treaty-specific
regime of reservations. The Convention neither defines the meaning of the term
‘object and purpose’, nor indicates which provisions should be regarded as
representing the object and purpose of CEDAW.
The International Law Commission (ILC) has developed a Guide to Practice
on Reservations to Treaties8 to aid treaty bodies, governments and international
organizations in dealing with reservations to treaties and in complying with the
regulation for entering reservations in the exiting conventions.9 The ILC Guide
suggests that the object and purpose of a treaty is the ‘provision of the treaty essential
to its raison d’être’.10 The Guide also adds that a reservation that affects the object
and purpose of a treaty is an incompatible reservation. This is the case even when the
provisions that express the object and purpose, previously accepted by the reserving
state, are later part of a dispute settlement and the reservation has the effect of
excluding the state from this settlement.11
In order to understand the object and purpose of CEDAW, it is important to
understand the principles that inform the interpretation of the Convention. While the
nine core UN human rights treaties protect and promote the human rights of all
people, CEDAW is the first legally binding international instrument that prohibits
8
See International Law Commission, Report of the International Law Commission on the work of
its Sixty-Third Session, General Assembly Official Records: sixty-six session, Supplement no.10.
A/66/10/Add.1 (26 April – 3 June and 4 July to 12 August 2011) [hereinafter, ‘Guide to Practice’].
9
See Edwards, Jr, Richard W, ‘Reservations to treaties: The Belilos case and the work of the
International Law Commission’ (2000) 31 University of Toledo Law Review 195-207.
10
Ibid, p.18, Guideline 3.1.5.
11
Ibid, p.19, Guideline 3.1.5.7.
3
discrimination against women and requires state parties to take affirmative steps to
advance the equality of women.12 Therefore, the principle of equality is central to the
Convention.
To address that matter, CEDAW promotes a model of ‘substantive equality’,
expressed in Articles 1, 2 and 3, which encompasses: equality of opportunity
(Articles 1 and 2), equality of results (Article 2) and equal access to opportunities
(Articles 2 and 3). The Convention is based on the interrelation of substantive
equality with two other principles: the principle of ‘state obligation’ and the principle
of ‘non-discrimination’. Although ‘…each of them is a distinct element in itself, they
are also interdependent. Taken together, they provide a holistic framework for
achieving women’s rights’.13 The conceptual framework that validates these
principles is the recognition that ‘formal equality’, often concerned with ‘the content
of laws and practices and their even-handed application’,14 is not sufficient to ensure
the equal enjoyment of rights between men and women.
The CEDAW Committee has argued in General Recommendations Nos 19 and
21, that a reservation entered against Articles 5 to 16 has a greater effect on the
implementation of CEDAW when Articles 2, 3 and 24 are affected as well15 and
12
See D’Cunha, Jean, Gender equality, human rights and trafficking: A framework of analysis and
action (ASEM Seminar on Promoting Gender Equality to Combat Trafficking in Women and
Children, UNIFEM/UNESCAP, 2002); Facio, Alda; Morgan, Martha I, ‘Equity or equality for
women? Understanding CEDAW’S Principles’ (2009) 60(5) Alabama Law Review 1133-1170;
Cusack, Simone; Pusay, Lisa, ‘CEDAW and the rights to non-discrimination and equality’ (2013)
14(1) Melbourne Journal of International Law 54-92.
13
See UN Women, UN Women in East and Southeast Asia Region. UN Entity for Gender Equality
and the Empowerment of Women, The principles of CEDAW. Available at: <http://www.unwomeneseasia.org/projects/Cedaw/printprinciplecedaw.html> [last accessed 10 February 2016].
14
See Byrnes, Andrew, ‘Article 1’ In: Freeman, Marsha A; Chinkin, Chirstine; Rudolf, Beate (ed.),
The UN Convention on the Elimination of All Forms of Discrimination Against Women: A
Commentary (Oxford University Press, 2012) p.54.
15
See United Nations, Division for the Advancement of Women, Convention on the Elimination of
all forms of Discrimination Against Women, General recommendations made by the Committee on
the
Elimination
of
Discrimination
against
Women.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
4
stressed in the General Recommendation No 28 that reservations against Article 2
are ‘in principle incompatible with the object and purpose of the Convention’.16
Articles 2, 3 and 24 of CEDAW are as follows:
Article 2
States Parties condemn discrimination against women in all its forms, agree to pursue by all
appropriate means and without delay a policy of eliminating discrimination against women
and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or
other appropriate legislation if not yet incorporated therein and to ensure, through law and
other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate,
prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to
ensure through competent national tribunals and other public institutions the effective
protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to
ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person,
organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.
February 2016].
16
See United Nations, Division for the Advancement of Women. Convention on the Elimination of
all forms of Discrimination Against Women. General recommendations made by the Committee on
the
Elimination of Discrimination against Women. General Recommendation no. 28.
CEDAW/C/2010/47/GC.2 (19 October 2010) p.10, paras. 41; 43.
5
Article 3
States Parties shall take in all fields, in particular in the political, social, economic and cultural
fields, all appropriate measures, including legislation, 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
States Parties undertake to adopt all necessary measures at the national level aimed at
achieving the full realization of the rights recognized in the present Convention.
Although General Recommendations Nos 19, 21 and 28 address central aspects
concerning the relevance of specific Articles to CEDAW, there is still no
interpretation or express determination of the relevance of the individual Articles to
the implementation of the object and purpose of CEDAW. For instance, although the
CEDAW Committee refers to Article 2 as expressing the object and purpose of
CEDAW, it does so with reference to reservations, without mentioning the relevance
of that Article to the implementation of the Convention. In addition, the Committee
uses euphemisms, such as ‘reservations to Article 2 are in principle…’[emphasis
added], which undermines the significance of the recommendation and leaves a gap
for questioning. Are all reservations to Article 2 incompatible with CEDAW? Are
there exceptions?
Leaving the object and purpose of CEDAW undetermined erodes the
Convention’s capacity to guide state behaviour and can damage the strength and
6
legitimacy of CEDAW as an international human rights convention. In turn, the
CEDAW Committee struggles to monitor the implementation of the Convention in
the state parties and to address reservations entered against important provisions of
the Convention.
CEDAW also does not provide a treaty-specific regime of reservations. Thus,
the Convention is governed by the residual reservation rules of the 1969 Vienna
Convention on the Law of Treaties (VCLT). The VCLT adopted a flexible approach
to treaty reservations, applicable to treaties of all types, under which reservations are
presumed permissible and their acceptance is achieved easily.17 Impermissible
reservations are those which are attached to provisions of a treaty to which
reservations are prohibited, are formulated irrespective of the type of reservations
permitted by the treaty, are incompatible with the object and purpose of a treaty
(Article 19, paragraphs a, b and c, VCLT).18 Thus, incompatible reservations are
impermissible reservations attached to provisions that express the raison d’être of the
treaty.
In addition, Articles 19–23 of the VCLT contemplate a system where a treaty
contains reciprocal obligations among states and its system of reservations and
objections can be used to achieve identifiable consequences. In this regime,
objections function as the main tool against impermissible reservations. However,
CEDAW is composed of non-reciprocal obligations and it does not provide definite
rules regarding the consequences of impermissible reservations, which makes the
application of the VCLT rules on reservations a challenging and incoherent process.
17
See Hilton, Daniel, ‘Default Breakdown: The Vienna Convention on the Law of Treaties
inadequate framework on reservations’ (1994) 27(2) Vanderbilt Journal of Transnational Law 419–
451.
18
See supra note 8, Guideline 3.1.
7
The lack of coherence is caused by normative ambiguities in the VCLT rules
themselves in the context of impermissible reservations to human rights treaties.19
The drafters of the VCLT presumed that most reservations would not incorporate
substantive changes to treaties, but would be triggered by incompatibilities of
procedural or jurisdictional provisions of the treaty with constitutional or
administrative rules of the signatory states. Thus, the treaty would ‘remain the master
agreement providing guidance for the international community’.20
The Vienna Convention considers that states will only formulate permissible
reservations.21 Nonetheless, a review of the reservations made to CEDAW suggests
that a significant number of those reservations are arguably impermissible. For
example, although the CEDAW Committee has stressed the relevance of Article 2 to
the object and purpose of CEDAW, states including Egypt, Libya, Saudi Arabia,
Nigeria, Pakistan and Bangladesh have made reservations to CEDAW which affect
compliance with Article 2 of the Convention.22
Article 2 of CEDAW describes a framework for the achievement of equality and
non-discrimination in all areas of a woman’s life. It establishes the implications of
equality and non-discrimination for the interpretation and implementation of
CEDAW. Hence, reservations that affect Article 2 will potentially affect states
19
See Aust, Anthony, Modern Treaty Law and Practice (Cambridge University Press, 2d ed., 2007).
20
See Piper, Catherine Logan, ‘Reservations to Multilateral Treaties: The Goal of Universality’
(1985-1986) 71 Iowa Law Review 315.
21
See International Law Commission. Texts and instruments, Law of Treaties, Draft articles on the
Law
of
Treaties
with
commentaries,
1966.
Available
at:
<http://legal.un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf> [last accessed 10
February 2016].
22
See United Nations, Division for the Advancement of Women, Department of Economic and
Social Affairs, ‘Convention on the Elimination of all forms of Discrimination Against Women:
Declarations,
Reservations
and
Objections
to
CEDAW’.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016]; Organization of Islamic Cooperation, OIC. Member states. Available at: <http://www.oicoci.org/member_states.asp> [last accessed 10 February 2016].
8
parties’ compliance with all the provisions of CEDAW.
Bangladesh’s reservation to CEDAW is illustrative. The reserving state denies
compliance only with Article 2 of the Convention. In this case, the reservation does
not expressly affect the entire Convention, but may nonetheless have this effect,
which makes it even more difficult to assess whether the state is upholding its treaty
obligations. The text of the reservation is as follows: ‘The Government of the
People’s Republic of Bangladesh does not consider as binding upon itself the
provisions of article 2 ... as they conflict with Sharia law based on Holy Quran and
Sunna’.23 Although not a ‘sweeping reservation’ per se,24 in that it does not expressly
derogate from the entire Convention, Bangladesh’s reservation may have the effect of
a sweeping reservation for denying compliance with all the paragraphs of Article 2.
Sweeping reservations denote an apathetic approach to treaty observance.
Consequently, it is reasonable to question the effectiveness of CEDAW as a
regulatory mechanism in states that entered reservations that will potentially have the
effects of sweeping reservations and to ask whether its rules and institutions mitigate
the problems they are designed to address. This suggests that further discussion is
needed to understand whether CEDAW is able to constrain state practices and
protect treaty integrity, to ultimately achieve compliance with the principles of
equality and gender discrimination.
23
See United Nations, Division for the Advancement of Women, Department of Economic and
Social Affairs, ‘Convention on the Elimination of all forms of discrimination against women:
Declarations,
Reservations
and
Objections
to
CEDAW’.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
24
See Redgwell, Catherine J.,‘Reservations to Treaties and Human Rights Committee General
Comment No 24(52)’ (1997) 46 International and Comparative Law Quarterly 390, 391. Other
authors have referred to this type of reservation as an ‘across-the-board’ reservation, see, for example,
Zemanek, Karl, ‘Alain Pellet’s Definition of a Reservation’ (1998) 3(2) Austrian Review of
International & European Law 295. The ILC also references the ‘across-the-board’ reservation in its
Draft Guide to Practice, 1.1.1 and accompanying commentary.
9
1.2. Significance
The issue of reservations to CEDAW has been the subject of academic
research and debate for a long time.25 CEDAW’s reservation rules as well as the
Convention’s object and purpose have been extensively examined. It has been
demonstrated that a large number of reservations to CEDAW arguably affect
essential provisions to the successful implementation of the Convention.26 This thesis
aims to build on and add to the previous works on CEDAW’s regime of reservations.
The thesis reports a case study of CEDAW’s regime of reservations. It
examines how a reservation to Article 2 affects the monitoring and implementation
process of the Convention. By investigating the monitoring and implementation
process of CEDAW in Bangladesh, the thesis contributes to debates on the
effectiveness of the CEDAW regime of reservations to protect gender equality and
non-discrimination. Bangladesh’s reservation stands as an example in the dialogue
concerning the effectiveness of CEDAW in the reserving states.
Bangladesh’s reservation has unique characteristics. A reservation to Article
2 of CEDAW may have the effect of a sweeping reservation because of the
significance of Article 2 for compliance with the principles of equality and nondiscrimination. In this instance, the reservation to a single Article may facilitate a
lack of respect for the full panoply of women’s rights protected under the treaty. A
close examination of Bangladesh’s reservation provides access to the universality
25
See Cook, Rebecca J, ‘State accountability under the Convention on the Elimination of all forms
of Discrimination Against Women’ In: Cook, Rebecca J (ed), The Human Rights of Women: National
and International perspectives (Pennsylvania University of Pennsylvania Press, 1994) p.228–256;
Riddle, Jennifer ‘Making CEDAW Universal: A critique of CEDAW’s reservation Regime under
Article 28 and the effectiveness of the reporting process’ (2002) 34(3) George Washington
International Law Review 605–638; Keller L M, ‘The Convention on the Elimination of
Discrimination Against Women: Evolution and (non)implementation worldwide’ (2004) 27(1) Tomas
Jefferson Law Review 35–43; Arat, Zehra, ‘Women’s Rights as Human Rights’ (2008) 45 (2–3) UN
Chronicle 9–13.
26
Ibid.
10
versus integrity debate on human rights treaties in the context of CEDAW.
In the 1951 Advisory Opinion to the Genocide Convention, the International
Court of Justice (ICJ) argued over a particular characteristic of UN treaties: the aim
of ‘universality’, which meant that there should be no complete exclusion of any
state on the grounds of objection to a proposed reservation.27 The ICJ also observed
that the parties could not sacrifice the object of the Convention for an aspiration to
secure as many participants as possible.28 In a few words, this is the universality
versus integrity debate of UN human rights treaties.
The universality versus integrity debate is facilitated by the reservation rules
found in the 1969 Vienna Convention on the Law of Treaties (VCLT), which
provides little guidance as to how the rules related to reservations found in Articles
19–23 should be applied. The VCLT regime of reservations contemplates a system
where a treaty embodies reciprocal obligations among states and reservations and
objections can be used to achieve identifiable consequences. As a result, the VCLT
regime of reservations fails to protect the integrity of treaties made up of nonreciprocal obligations, such as human rights treaties. As Simma explains,
[w]hen human rights are violated there simply exists no directly injured State because
international human rights law does not protect States but rather human beings or groups
directly. Consequently, the substantive obligations flowing from international human rights
law are to be performed above all within the State bound by it, and not vis-à-vis other States.29
27
See International Court of Justice, Reports of Judgments, Advisory Opinions and Orders,
Reservations to the Convention on the prevention and punishment of the crime of genocide. Advisory
opinion of May 28th, 1951 (1951) [hereinafter ‘1951 Advisory Opinion’] p.24.
28
Ibid.
29
See Simma, Bruno, ‘From Bilateralism to Community Interest in international law’ In: Recueil
des Cours: Collected Courses of the Hague Academy of International Law (1994 ed.) Vol.250
(BRILL/Martinus Nijhoff, 1997) p.296-97.
11
Thus, the starting point in the study of CEDAW’s regime of reservations is the
Vienna Convention and its shortcomings for dealing with invalid reservations,
particularly to human rights treaties. Without a clear understanding of the law
governing reservations, the institutions that promote and protect women’s rights (and
human rights in general as well) have little chance to create a stable system based on
accountability.
By looking into Bangladesh’s reservation, this thesis illustrates existing debates
on the effectiveness of CEDAW’s regime of reservations. The examination goes
beyond describing the scope of the reservation and provides an analysis of state
practice to achieve equality and non-discrimination.
Bangladesh is part of a group responsible for a third of the reservations entered
to CEDAW. Islamic states and Islamic countries30 have entered at least 2431 of the 61
reservations made to CEDAW.32 Therefore, studying Bangladesh’s reservation to the
Convention will shed light on the current challenges with the monitoring and
implementation process of CEDAW in the reserving states and on the effectiveness
30
In this thesis the term ‘Islamic country’ refers to a country where the majority of its people is
Muslim but with a regulatory system that recognises diverse religious traditions and practices;
whereas ‘Islamic states’ refers to states that establish Islam as the official state religion, despite which
religion is followed by the majority of its population. See Lapidus, Ira, ‘The Golden Age: The
political concepts of Islam’ (1992) 524 (13) Annals of the American Academy Political and Social
Science 13-25; Mayor, Ann, Islam and human rights: Tradition and Politics (London, Pinter
Publishers, 1995); Poljarevic, Emin, ‘Exploring the Islamic State’ (2008) 7(4) European Political
Science 487–493.
31
See United Nations, Division for the Advancement of Women, Department of Economic and
Social Affairs, ‘Convention on the Elimination of all forms of discrimination against women:
Declarations,
Reservations
and
Objections
to
CEDAW’.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016]; Organization of Islamic Cooperation, OIC. Member states. Available at: <http://www.oicoci.org/member_states.asp> [last accessed 10 February 2016].
32
See United Nations, Division for the Advancement of Women, Department of Economic and
Social Affairs, ‘Convention on the Elimination of all forms of discrimination against women:
Declarations,
Reservations
and
Objections
to
CEDAW’.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed February
2016].
12
of CEDAW’s regime of reservations. Also, it may assist in the development of
specific frameworks or recommendations for the analysis of the implementation of
CEDAW in reserving states.
An examination of Bangladesh’s commitment to addressing the reservation to
Article 2 includes an understanding of the state’s legislation and Sharia Law. In
particular, I consider how they influence the achievement of substantive equality and
non-discrimination nationally. The aim of this examination is to illustrate how
religious and customary practices influence a reserving state’s compliance with
CEDAW.
This thesis also seeks to enhance our understanding of the CEDAW
Committee’s engagement with reserving states, allowing for a more detailed
assessment of the impact of the Committee’s management of reservations on the
successful implementation of the Convention. The CEDAW Committee has used
general recommendations since the early 1990s to interpret and address the relevance
of CEDAW provisions, and to offer guidance on which provisions are considered
crucial for the implementation of the Convention.33 However, currently, there is no
accurate differentiation between the meaning and value to be attached to the
Convention’s Articles, particularly how they impact on the achievement of
substantive equality and non-discrimination.
The lack of a defined set of rules establishing the meaning and relevance of the
Convention’s Articles encourages state parties to interpret CEDAW according to
their own perspectives and interests. This, in turn, makes it difficult for the CEDAW
33
See United Nations, Division for the Advancement of Women, Convention on the Elimination of
all forms of Discrimination Against Women, General recommendations made by the Committee on
the Elimination of Discrimination against Women, General recommendation n 19. Available at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016].
13
Committee to continuously address the influence of the CEDAW provisions to the
achievement of equality and non-discrimination for women.34
As a monitoring agent, the Committee is under the generic rules that govern
the UN treaty body system. The monitoring procedures of the treaty body system can
be summarised as follows:
a) the reporting procedures, by which states must submit reports regularly to the
treaty bodies on the implementation of the treaty provisions;35
b) the communication procedures, by which individuals alleging that their rights
have been violated by a state party can complain to the treaty bodies,
provided the state party has accepted the given Committee’s competence to
do so;36
c) the inquiry procedures, allowing a treaty body to initiate inquiries into
allegations of serious or systematic violations of their Conventions37 and the
state-to-state complaints procedure, by which a state may complain to the
treaty bodies about violations committed by another state. (Article 29,
CEDAW)
CEDAW establishes that state parties should ‘report on the legislative, judicial,
administrative or other measures’ which they have adopted and ‘which give effect to
the provisions of this Convention’ (Article 9) and also requires information ‘on the
34
See chapter 3 of this thesis for further details.
35
See Committee on the Elimination of Discrimination Against Women, Overview of the current
working methods of the Committee on the Elimination of Discrimination Against Women. Note by
the Secretariat. CEDAW/C/2004/I/4/Add.1 (7 November 2003).
36
Ibid.
37
See Office of the High Commissioner for Human Rights, Committee on the Elimination of
Discrimination
Against
Women.
Inquiry
Procedure.
Available
at:
<http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/InquiryProcedure.aspx> [last accessed 10
February 2016].
14
progress made’ and on ‘factors and difficulties’ encountered (Article 18). Therefore,
in addition to their obligation to implement the substantive provisions of the
Convention, each state party is also under an obligation to submit regular reports to
the CEDAW Committee on how the rights expressed in the Convention are being
implemented, at least every four years, as established by CEDAW (Article 18,
paragraph b).
The report preparation process is the only monitoring procedure common to all
human rights Conventions. It offers an occasion for each state party to assess what
has been achieved, and what more needs to be done, to promote and protect human
rights in the country. The reporting process should encourage and facilitate, at the
national level, popular participation, public scrutiny of government policies and
programs and constructive engagement with civil society conducted in a spirit of
cooperation and mutual respect, with the aim of advancing the enjoyment by all of
the rights protected by the respective Convention.
It is important to observe that, as part of the communications procedure, the
CEDAW Committee receives information from UN specialized agencies and from
non-governmental organizations (NGOs). They submit reports on the implementation
of the Convention by the state parties. Since state party reports very rarely go beyond
what is mentioned in their constitutions and legal instruments, the information that
can be provided by NGOs has the potential to add to or contradict the assessment and
arguments of the state parties.
The implementation of CEDAW in a state party may encounter several
obstacles, such as the state’s legislation and common practices in society. These
elements may conflict with the achievement of substantive equality and nondiscrimination domestically. Therefore, an examination of Bangladesh’s engagement
15
with CEDAW’s regime of reservations will highlight areas where Bangladesh’s
compliance with the Convention may be deficient.
These insights are likely to be particularly relevant to NGOs, such as the
Bangladesh Mahila Parishad38 and the Ain O Salish Kendra (ASK)39 when
addressing Bangladesh’s compliance with CEDAW. In addition, since its second
session, the CEDAW Committee has invited UN specialized agencies to cooperate
with its work by providing reports containing country-specific information and
generally contributing to the implementation of the Convention.40 The most recent
report has been submitted by UNESCO to the Committee’s forty-eighth session.41
Thus, the reports produced by UN specialized agencies might also benefit from
additional information on the social, political or economic practices in Bangladesh
which conflict with the implementation of CEDAW.
In this thesis I examine the procedural and substantive challenges faced by the
CEDAW Committee to effectively discharge its mandate in monitoring the
implementation of CEDAW in a reserving state. This will include an examination of
38
Bangladesh Mahila Parishad is considered the largest Bangladeshi women’s human rights
organization. The BMP is well networked with other civil society organizations and has adopted
CEDAW as basis for its work. See Bangladesh Mahila Parishad. Available at:
<http://www.mahilaparishad.org> [last accessed 10 February 2016]; Norwegian Agency for
Development Cooperation, NORAD, Mid Term Review of Bangladesh Mahila Parishad (Norway,
Norad, 2013).
39
See Banu D, BRAC-Ain o Salish Kendra Joint Legal Aid Programme: A Comprehensive Review
(Dhaka, Bangladesh, BRAC-Research and Evaluation Division, 2003); Ain O Salish Kendra, Annual
Report 2010. Available at: <www.askbd.org/web/wp-content/uploads/2011/11/AnnualReport_10.pdf>
[last accessed 10 February 2016]; Ain O Salish Kendra. Available at: <http://www.askbd.org/web/>
[last accessed 10 February 2016].
40
See Committee on the Elimination of Discrimination Against Women. Convention on the
elimination of all forms of Discrimination Against Women. Overview of the current working methods
of the Committee on the Elimination of Discrimination against Women. Taken from A/59/38. Annex
X. p.6 para.28.
41
See Committee on the Elimination of Discrimination Against Women, Convention on the
elimination of all forms of Discrimination Against Women. Reports provided by the specialized
agencies of the United Nations system on the implementation of the Convention in areas falling within
the scope of their activities. UN Educational, Scientific and Cultural Organization
CEDAW/C/48/3/Add.1 (5 January 2011).
16
the format and working procedures of the treaty bodies and of the outputs of a
consultation process that lasted from 2009 to 2012, when the Office of the High
Commissioner for Human Rights (OHCHR) produced a comprehensive package of
proposals on ways and means to strengthen the treaty body system. 42 Any reform,
however, needs to take into account the context of the implementation of each
convention in each state party in order to address the singularities facing the
monitoring and implementation process in each case.
Examining the engagement of the CEDAW Committee with Bangladesh will
ultimately demonstrate how the current working methods adopted by the CEDAW
Committee impact on the effectiveness of the Committee’s work. Thus, both existing
processes and the effectiveness of the Committee will be taken into account. This
analysis aims to extend current understanding on the influence of the CEDAW
Committee on a reserving state’s compliance with CEDAW’s regime of reservations.
1.3. Research questions and objectives
The primary objective of this thesis is to understand the effectiveness of
CEDAW as a regulatory mechanism in the reserving states. I discuss the CEDAW
Committee and Bangladesh’s engagement with the monitoring and implementation
process of CEDAW to examine Bangladesh’s commitment to the implementation of
CEDAW and the effectiveness of the CEDAW Committee as a monitoring and
regulatory agent. To do that I address one central research question and a subquestion, as follows:
42
See Pillay, Navanethem, Strengthening the United Nations Human Rights Treaty Body System: A
report by the United Nations High Commissioner for Human Rights (OHCHR, June 2012) p.37-93.
17
1. Is CEDAW able to constrain reserving states’ practices to protect equality
and non-discrimination?
1.1. How does Bangladesh’s reservation to Article 2 of CEDAW affect the
effectiveness of the monitoring and implementation process of the
Convention?
1.4. Research design and methodology
The research design adopted to answer these research questions incorporates
two key components. The first is a review of relevant primary sources and expert
secondary commentary to support:
a) the analysis of the 1969 Vienna Convention regime of reservations and
human rights treaties; and
b) the interpretation of the object and purpose of CEDAW.
The second component is a case study of Bangladesh’s compliance with
CEDAW, with a focus on illuminating:
a) the impact of Bangladesh’s reservation to Article 2 of CEDAW; and
b) the monitoring and implementation process of CEDAW in Bangladesh.
The primary concern of this thesis is to assess whether the reservation system
impedes the realisation of the goals of the international human rights treaty system.
A case study approach – based on CEDAW as the focus treaty and Bangladesh as the
focus country – has been adopted for the following reasons.
Key characteristics of CEDAW make it more susceptible to reservations (and,
therefore, a good vehicle for examining the nature and effects of the treaty
18
reservation system in the human rights context). They are: repeating the criterion of
compatibility as established in the 1969 VCLT; not defining which provisions
express its object and purpose; and the use of objections as the only tools to protect
the integrity of the Convention. In fact, CEDAW has been the subject of more
reservations than any other human rights treaty.43 For this reason (that is, the large
number of reservations made to the Convention), CEDAW is a perfect illustrative
example of the current challenges faced by the UN monitoring system in protecting
the integrity of human rights conventions.44
Previous studies indicate that the UN monitoring system is struggling to
manage reservations made against core provisions of human rights treaties and to
achieve effective treaty implementation in the reserving states.45 The deficiencies of
the system have been on the UN agenda for several years. This subject has also been
the focus of prior research.46 Although there is extensive discussion in the literature
43
See De Pauw, Marijke, ‘Women’s rights: from bad to worse? Assessing the evolution of
incompatible reservations to the CEDAW Convention’ (2013) 29(77) Utrecht Journal of International
and European Law 51-65.
44
See e.g. Cook, Rebecca J, ‘Reservations to the Convention on the Elimination of all forms of
Discrimination Against Women’ (1990) 30(3) Virginia Journal of International Law University of
Virginia law School 643–716; Chinkin, Christine, ‘Reservations and Objections to the Convention on
the Elimination of All Forms of Discrimination against Women’ In: Gardner, JP (ed.), Human Rights
as General Norms and a State’s Right to Opt Out (British Institute of International and Comparative
Law, 1997); Schopp-Schilling, Hanna Beate, ‘Treaty Body Reform: The Case of the Committee on
the Convention for the Elimination of all forms of Discrimination Against Women’ (2007) 7(1)
Human Rights Law Review 201-224; Yahyaoui Krivenko, Ekaterina, Women, Islam and International
law: Within the context of the Convention on the Elimination of all forms of Discrimination Against
Women (Martinus Nijhoff Publishers, 2008).
45
See Statement by Ms. Navanethem Pillay. United Nations High Commissioner for Human Rights
to the General Assembly. Third Committee. New York, 21 October 2009. Available at:
<http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=9562&LangID=E> [last
accessed 10 February 2016]; Pillay, Navanethem, Strengthening the United Nations Human Rights
Treaty Body System: A report by the United Nations High Commissioner for Human Rights (OHCHR,
June 2012).
46
See e.g. O’Flaherty, Michael, ‘Reform of the UN Human Rights Treaty Body System: Locating
the Dublin Statement’ (2010) 10(2) Human Rights Law Review 319-33; O’Flaherty, Michael;
O’Brien, Claire, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept
Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7(1) Human
Rights Law Review 319–335.
19
on the effects of reservations to treaty implementation, detailed examinations through
case studies can improve our understanding of the problems related with human
rights treaty implementation and reveal contextual factors that need to be taken into
account when investigating solutions to those problems.
One of the key benefits of a case study methodology is that it allows for a
complex social phenomenon (in the case of this thesis, the impact of reservations on
treaty implementation) to be analysed in its operation contexts, using a variety of
data sources. In this way, the dynamic interaction of treaty bodies, state parties,
NGOs, UN specialized agencies and individuals in the monitoring and
implementation process of human rights conventions can be taken into account by
the researcher. 47
In order to ground this thesis’ analysis of the implementation of CEDAW in
reserving states, and thereby make a contribution to the existing literature, I have
chosen to focus on the experience and performance of a specific reserving state:
Bangladesh. A country specific focus will allow for a fine-grained and context
sensitive analysis of a reserving state party’s compliance with CEDAW and
interactions with the CEDAW Committee.
The number of states that have entered reservations to CEDAW is large, but
there is one common element to almost forty percent of the reservations: Islamic
states and countries made twenty-four of a total of sixty-one reservations to
CEDAW. A significant number of states used Sharia Law as a justification for their
reservations. Prior research has argued against the use of Sharia as a justification
47
See Yin, Robert K, Case study research: design and methods (Sage, 2014).
20
because of its vague nature.48 It is not the ‘letter of the law’ but the interpretation
given to the law that determines how and if Sharia will conflict with CEDAW.
Bangladesh is one state. By focusing on Bangladesh in this thesis it will be possible
to attend to the complex interaction of Bangladesh’s reservation to CEDAW, the
obligations attached to the Convention, the practices of the CEDAW Committee, as
well as the intricacies of both Sharia law and the relevant domestic laws of
Bangladesh.
A study of Bangladesh’s reservation to CEDAW will provide an opportunity
for improving existing understanding of the impact of reservations on treaty
implementation. Despite having ratified CEDAW, Bangladesh made a reservation to
Article 2. An alleged conflict with the Sharia Law is the reason for the reservation to
the Convention. Religion is not only a fundamental aspect of Bangladesh’s
reservation but it is also responsible, in great part, for the current status of gender
equality in the state. Interpretations of the Sharia Law in Bangladesh’s patriarchal
society allow and support discrimination against women, the continuity of women’s
disadvantaged position in society and the reservation to CEDAW.
Bangladesh’s reservation to Article 2 of CEDAW is regarded by the CEDAW
Committee as incompatible with the object and purpose of the Convention,49 which
makes the treaty monitoring process an even more challenging task. Nonetheless, the
state maintains an ongoing dialogue with the Committee regarding the
implementation of the Convention. This conversation with the Committee results in
48
See Abiad, Nisrine, Sharia, Muslim states and international human rights treaty obligations: A
comparative study (2008, British Institute of International and Comparative Law).
49
See United Nations, Division for the Advancement of Women. Convention on the Elimination of
all forms of Discrimination Against Women. General recommendations made by the Committee on
the Elimination of Discrimination against Women. General Recommendation no. 28.
CEDAW/C/2010/47/GC.2 (19 October 2010).
21
the production of continuous periodic reports by Bangladesh and several comments
and recommendations by the Committee.
Bangladesh has submitted eight periodic reports, since the Convention was
ratified in 6 November 1984,50 and the reservation to Article 2 has been subject of
debate in the review of seven of them (with the eighth report still to be reviewed by
the Committee). These documents offer a significant perspective on the progress and
on ‘factors and difficulties’ encountered with the implementation of CEDAW (Art.
18, CEDAW), thus providing crucial data on the relationship developed by
Bangladesh and the CEDAW Committee and their commitment with the monitoring
and implementation process of the Convention. These documents will represent the
primary corpus of data in the analysis of Bangladesh’s implementation of the
Convention.
Bangladesh’s reservation to Article 2 has been chosen as case to illustrate the
problematic with the implementation of CEDAW in reserving states because: a) it
has been justified on the grounds of conflict with a religious law (cultural
differences) and b) for the significant data that has been produced and is available for
analysis. The findings from this study will produce insights of wider significance in
relation to impermissible reservations made to CEDAW and those that are justified
on incompatibility between the Sharia Law and the Convention.
This study emphasises a close understanding of CEDAW’s capacity to
constrain a reserving state’s practices to protect the implementation of the
Convention. To do this, the thesis reviews UN documents produced over the past 30
50
See United Nations Treaty Collection. Convention on the Elimination of all forms of
Discrimination Against Women. Status as at: 10 February 2016. Available at:
<https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV8&chapter=4&lang=en> [last accessed 10 February 2016].
22
years. In particular, I examine Bangladesh’s periodic reports to the CEDAW
Committee, the Committee’s comments to the state party and general
recommendations nos. 19, 21 and 28. Additionally, NGOs’ shadow reports and UN
specialized agencies’ reports that refer to the implementation of CEDAW in
Bangladesh are also examined. In order to understand the context of the monitoring
and implementation process of CEDAW in Bangladesh, relevant research studies and
theoretical debates are also analysed.
Bellow, I describe the development of the discussions on: the 1969 Vienna
Convention regime of reservations and human rights treaties; the interpretation of the
object and purpose of CEDAW; Bangladesh’s reservation to Article 2 of CEDAW;
and the monitoring and implementation process of CEDAW in Bangladesh.
1.4.1. The 1969 Vienna Convention regime of reservations and human rights
treaties
The starting point of this research is a theoretical examination of the 1969
Vienna Convention regime of reservations. When conventions do not establish a
treaty-specific reservation regime, as in the case of CEDAW, they are governed by
the residual reservation rules of the 1969 VCLT. As Aust argues, ‘Although the
[Vienna] Convention does not occupy the whole ground on the law of treaties, it
covers the most important areas and is the starting point of any description of the
modern law and practice of treaties’.51
In chapter 2 I will discuss the history and development of the VCLT regime of
reservations, focusing on its applicability to human rights treaties. The thesis will
51
See Aust, Anthony, Modern Treaty Law and Practice (Cambridge University Press, 2d ed., 2007)
p.6.
23
discuss the specific characteristics of the VCLT regime of reservations and its
application to human rights treaties. The main purpose of chapter 2 is to identify the
characteristics and shortcomings of the law of reservations as they influence the
monitoring and implementation process of CEDAW.
Particularly relevant to this discussion are Articles 19 to 21 of the VCLT, as
their application to the workings of the CEDAW Committee results in gaps in the
process of monitoring impermissible reservations to CEDAW. The requirements for
a reservation to be both permissible and accepted are listed, respectively, in Articles
19 and 20.4 (a), (b) of the Vienna Convention.52 Articles 19 to 21 are as follows,
Article 19
Formulation of reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:
(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 failing under subparagraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.
Article 20
Acceptance of and objection to reservations
1. A reservation expressly authorized by a treaty does not require any subsequent acceptance
by the other contracting States unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and the object and
purpose of a treaty that the application of the treaty in its entirety between all the parties is an
52
Supra note 7, ‘Vienna Convention’.
24
essential condition of the consent of each one to be bound by the treaty, a reservation requires
acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization and unless it
otherwise provides, a reservation requires the acceptance of the competent organ of that
organization.
4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:
(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.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a
reservation is considered to have been accepted by a State if it shall have raised no objection to
the reservation by the end of a period of twelve months after it was notified of the reservation
or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
Article 21
Legal effects of reservations and of objections to reservations
1. A reservation established with regard to another party in accordance with articles 19, 20 and
23:
(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
25
apply as between the two States to the extent of the reservation.
In light of recent developments in the area of reservations, particularly the
culmination of the ILC’s study on reservations to treaties, this thesis seeks to provide
further elucidation on the specific legal issues surrounding reservations to human
rights treaties. The study enhances our understanding of the performance of treaty
bodies in establishing their capacity to assess the permissibility and validity (legal
effects) of reservations.
Reservations have been on the ILC’s agenda for a long time. However, the
growing number of treaties, reservations and the practice of human rights monitoring
bodies have provoked intense study of the subject. The ILC’s Special Rapporteur on
reservations to treaties, Alain Pellet, has issued seventeen reports addressing various
aspects concerning reservations. The reports culminated in the adoption of the Guide
to Practice on Reservations to Treaties.53 To understand the Guide to Practice, it is
important to have knowledge of the 17 reports of the Special Rapporteur, produced
between 1995 and 2011. However, the most significant discussion for the purposes
of dealing with CEDAW are his thoughts on reservations to ‘normative treaties’,
which are examined in chapter 2.
With the exception of the CEDAW Committee’s work, the intervention of
another member state or dispute resolution mechanism, there is limited recourse
when it comes to determining the permissibility of a reservation. Therefore, the
purpose and value of objections to reservations made to human rights treaties are
elements examined in this thesis to understand the effectiveness of CEDAW’s
regime of reservations. In fact, currently, objections are still the only form to
53
Supra note 8, ‘Guide to Practice’.
26
effectively determine the validity of reservations made to UN human rights treaties.
Additionally, as Seibert-Fohr notes, ‘Objections may inform the question
whether a reservation is inadmissible. It is an important form of state practice which
evidences opinion juris and informs the meaning of the ‘object and purpose’.54 Thus,
objections also play an important role in the examination of the object and purpose of
CEDAW.
1.4.2. Interpreting the ‘object and purpose’ of CEDAW
In the third chapter I examine the CEDAW provisions according to the
‘General rule of interpretation’, expressed in Article 31 of the VCLT. I provide an
interpretation of the CEDAW Articles according to their significance to the
implementation of the object and purpose of CEDAW, aiming to develop a
framework for the analysis of Bangladesh’s reservation to CEDAW.
Article 31 of the VCLT is as follows:
Article 31. General rule of interpretation,
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the
text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection
with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion
of the treaty and accepted by the other parties as an instrument related to the treaty.
54
See Seibert-Fohr, Anja, ‘The potentials of the Vienna convention on the law of treaties with
respect to reservations to human rights treaties’ In: Ziemele, Ineta (ed.), Reservations to human rights
treaties and the Vienna Convention regime: Conflict, harmony or reconciliation (Martinus Nijhof,
2004) p.205.
27
3.There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or
the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of
the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended. 55
According to paragraph 1, in the process of interpretation of CEDAW, there
are three sources from which practitioners may seek the meaning of the Convention:
the Convention’s terms, the context of those terms, and the Convention’s object and
purpose. In the study of CEDAW’s context I will provide an outline of CEDAW’s
origin and examine the text of the Convention. For the interpretation of the text of
CEDAW, I will examine international law doctrine and practice where the principles
of state obligation, substantive equality and non-discrimination are elements of the
discussion. After their significance to the creation, interpretation and implementation
of CEDAW is examined, I will review the comments and recommendations of the
CEDAW Committee on the subject of reservations to CEDAW.
Furthermore, since the term ‘object and purpose’ carries subjective meanings, I
apply Guideline 3.1.5, adopted in the ILC’s Guide to practice on reservations to
treaties, to establish the meaning of the term object and purpose. Guideline 3.1.5
suggests that the object and purpose is represented by the provisions that express the
raison d’être of the treaty.
55
Supra note 5, ‘Vienna Convention’.
28
Against this background, aiming to provide a definition that achieves the most
basic meaning of the term object and purpose, applicable for the interpretation of
CEDAW, I draw a distinction between provisions that:
a) express the ‘object and purpose’ of CEDAW;
b) are ‘significant’ to the implementation of the ‘object and purpose’ but do
not express it; and
c) are ‘procedural’, for establishing acts to be observed by state parties and
the CEDAW Committee.
The remaining chapters of the thesis will examine the monitoring and
implementation process of CEDAW. This will be structured in two parts: the
‘monitoring process’ and the ‘implementation process’ of CEDAW.
1.4.3. The monitoring and implementation process of CEDAW: A conversation
Examination of the monitoring and implementation process of CEDAW begins
with a discussion of the engagement between the CEDAW Committee and
Bangladesh. In reviewing the dialogue between Bangladesh and the CEDAW
Committee I aim to understand how the current obligations attributed to Bangladesh
and to the CEDAW Committee (Articles 2, 18, 21 and 24 of CEDAW) are
accomplished. I will consider how successful the CEDAW Committee has been in
providing Bangladesh with authoritative guidance on the meaning of the provisions
expressed in CEDAW. I will also examine Bangladesh’s implementation of
CEDAW.
To this end, I survey the communications between Bangladesh and the
CEDAW Committee, in particular, to: a) understand the interaction between
29
Bangladesh and the CEDAW Committee; b) assess the CEDAW Committee’s views
on Bangladesh’s reservation; and c) examine Bangladesh’s performance in
complying with its obligations to CEDAW, and how/whether the reserving state
addresses the CEDAW Committee’s recommendations.
1.4.3.1. Monitoring the implementation of CEDAW in Bangladesh
Although the CEDAW Committee is the treaty body responsible for
monitoring the implementation of CEDAW, in the monitoring process of the
Convention other agents hold roles outside the scope of the Committee, which may
influence Bangladesh’s compliance with the Convention. For instance, even though
state parties are not invested with the capacity of monitoring agents, they are the only
human rights stakeholders with the competence to determine the invalidity of a
reservation in the UN human rights regime.
Thus, understanding the impact of state party objections in protecting the
integrity of CEDAW against reservations is a significant step in the study on the
effectiveness of the CEDAW’s regime of reservations. These objections also serve as
informative tools regarding the permissibility and validity of the reservation.
The monitoring process of CEDAW should not be seen as an exclusive treaty
body and state member relationship. NGOs turn to the Convention’s monitoring
process as a tool to redress gender-based inequalities and advance domestic political
change. They use CEDAW as a reference point when advocating for policies and
programs aimed at achieving equality and non-discrimination domestically. NGOs
are crucial sources of information to the CEDAW Committee on the implementation
of CEDAW. In chapter 4 I will examine the position adopted by national and
30
international women’s NGOs on Bangladesh’s reservation to the implementation of
CEDAW.
UN specialized agencies also have an important role in treaty monitoring. They
are invited by the CEDAW Committee to assist with information regarding state
parties’ compliance with the Convention. Thus, within the scope of their activities,
UN agencies may contribute significantly to the monitoring process of CEDAW. The
engagement of UN specialized agencies with the CEDAW Committee will be
examined in chapter 5, as I explain in the following section.
1.4.3.2. The implementation process of CEDAW
Bangladesh has argued that a conflict between CEDAW and the Muslim
personal law was the cause for the reservation against Article 2. Thus, the
implementation process of the Convention in Bangladesh will focus on the reserving
state’s performance in addressing the reservation. The thesis will examine how
religious personal laws affect the achievement of equality and non-discrimination in
the country. In order to study the influence of religious personal laws to the
implementation of CEDAW in Bangladesh I will:
a) explain how the conflict between Article 2 of CEDAW and domestic norms
in Bangladesh was and is negotiated in order to obtain successful adoption
of the CEDAW provisions;
b) trace the conflict between Article 2 of CEDAW and Bangladesh’s domestic
norms;
c) discuss the effects of the conflict between CEDAW and Bangladesh’s
domestic norms on the state party’s efforts to ensure national compliance
with the Convention.
31
d) Bangladesh’s national implementation of the recommendations given by
the CEDAW Committee and how far the output of those recommendations
has been integrated into all national efforts to protect women’s rights.
Chapter 5 is structured in three parts. Part I will explore several questions
concerning reservations made to CEDAW by Islamic countries and Islamic states
grounded on conflicts with the Muslim personal law. I will discuss existing literature
on Muslim countries and human rights compliance, focusing on CEDAW. I will also
outline the normative parameters within which the conflicts between gender equality
and current discriminatory interpretations of the Sharia Law might be addressed.
Part II of chapter 5 will discuss the impact of discriminatory interpretations of
religious personal laws on women’s rights in Bangladesh. In this thesis,
interpretation of religious personal laws are considered to be ‘discriminatory’ to the
extent that they exclude women’s access to the rights established in Article 2 of
CEDAW. Focusing on social and political dimensions of gender equality and
religion in Bangladesh’s society, I will examine how patriarchal notions of equality,
derived from religious principles, affect the public and private lives of women in
Bangladesh.
The extent to which religious personal laws curtail women’s human rights may
be conditioned by class structures, regional customs and by the state enforcing or
promoting discriminatory practices in the public and private arenas. 56 Thus, in this
study I will consider whether and how religious personal laws may affect women
56
See Sullivan, Donna J, ‘Gender equality and religious freedom: Toward a framework for conflict
resolution’ (1991-1992) 24 New York University of International Law and Politics 825.
32
living in urban environments and women living in rural Bangladesh in different
ways.
Part III of chapter 5 will analyse the accuracy, quality and relevance of the
CEDAW Committee’s comments, questions and recommendations to Bangladesh in
the review of the state party’s periodic reports. This analysis seeks to demonstrate
how the CEDAW Committee has addressed Bangladesh’s reservation to CEDAW
and the influence of religious personal laws on the implementation of the
Convention.
The general effectiveness of the Committee’s comments to the reserving state
is significantly affected by the quality of the information received by the Committee
on the implementation of CEDAW. Thus, I will examine current working methods
adopted by the CEDAW Committee for the submission of data on the
implementation of CEDAW. I will also analyse the common practice and guidelines
currently adopted by the CEDAW Committee for the preparation and submission of
reports by NGOs and UN specialized agencies. This is followed by a review of past
and current theoretical studies and discussions on the relevance of the information
provided by reserving states, NGOs and UN specialized agencies to the CEDAW
Committee.
This discussion aims to provide a framework for assessing the effectiveness of
the current working methods adopted by the CEDAW Committee for the submission
of information on the implementation of CEDAW. The analysis will specially
examine the quality of the information provided to the Committee and ultimately, the
impact on the Committee’s assessment on the implementation of CEDAW in
Bangladesh.
33
1.5. Limitations of the research data
NGOs can submit their reports to the Committee prior to or at the session
concerned, as well as email their reports to the International Women’s Rights Action
Watch (IWRAW) Asia Pacific, a non-governmental organization that has made
arrangements with the Committee to distribute NGO shadow/alternative reports
electronically and/or in hard copy directly to experts in advance of the session.57
Therefore the shadow reports examined in this thesis were those available via
the OHCHR and by the IWRAW Asia Pacific. Specifically, the reports examined
were:
a) Ain O Salish Kendra; Bangladesh Mahila Parishad; Steps Toward
Development, Shadow Report to the Fifth Periodic Report of the
Government of Bangladesh (May 2004);
b) Citizens’ Initiative on CEDAW-Bangladesh, Combined sixth and seventh
Alternative Report to the UN CEDAW Committee, 2010.
The CEDAW review process begins when a working group of the CEDAW
Committee first meets to identify gaps in state parties’ reports. The working group
prepares a list of issues and questions that is then sent to the reporting state. The state
is required to provide a written reply to the questions in a session prior to the session
in which the periodic report will be reviewed (the pre-session).
The NGOs can submit topics, in written or oral form, for the Committee to
question the state party as part of the list of issues and questions. The pre-session is
also the last chance to get the state party’s government to submit written information
57
See United Nations, Division for the Advancement of Women. NGO Information Note. Available
at: <www.un.org/womenwatch/daw/cedaw/NGO_Information_note_CEDAW.pdf> [last accessed 10
February 2016].
34
on certain subjects that may have been overlooked in the periodic reports.58
The OHCHR did not, however, provide the documents submitted to the
CEDAW pre-sessional working groups prior to the 58th pre-session, which took place
from 21 to 23 October 2013. Therefore, it is not possible to identify whether NGOs
participated in the pre-sessions for the review of Bangladesh’s fifth periodic report,
which was conducted in 2004 or the review of the Combined sixth and seventh
periodic reports, which was conducted in 2011.59
After taking part in the pre-sessional working group, NGOs and national
human rights institutions may submit reports to the CEDAW Committee and also
make an oral presentation of ten minutes, during the session scheduled for the review
of the periodic report. While this is a very short presentation, it can be used to
comment on relevant issues that have not been addressed properly by the state party
or that may have been left out of the shadow reports.60
If NGOs and national human rights institutions participated in any form in the
31st Session, scheduled for the review of Bangladesh’s fifth periodic report, and in
the 48th Session, scheduled for the review of Bangladesh’s sixth and seventh
combined reports, it is not registered in the documents submitted to the CEDAW
58
See United Nations, International Human Rights Instruments, Chapter IV: Rules of procedure of
the Committee on the Elimination of Discrimination Against Women, In: Compilation of rules of
procedure adopted by human rights treaty bodies HRI/GEN/3/Rev.328 (May 2008) p.93-126.
59
See Office of the High Commissioner for Human Rights, Sessions for CEDAW – Convention on
the Elimination of all forms of Discrimination Against Women. Available at:
<http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/SessionsList.aspx?Treaty=CEDAW> [last
accessed 10 February 2016].
60
See Office of the United Nations High Commissioner for Human Rights, Committee on the
Elimination of Discrimination Against Women, Information Note prepared by OHCHR for NGO
Participation.
Available
at:
<http://www2.ohchr.org/english/bodies/cedaw/docs/NGO_Participation.final.pdf> [last accessed 10
February 2016].
35
Committee for the respective sessions as available by the OHCHR.61 Therefore, in
chapter 4 the participation of NGOs in the monitoring and implementation process of
CEDAW in Bangladesh is examined from the perspective provided by the shadow
reports listed previously. Although the number of shadow reports is limited, they
refer to the state party’s latest periodic reports. Therefore, they provide a current
representation of how information is chosen, structured and submitted to the
CEDAW Committee by the NGOs.
61
See Office of the United Nations High Commissioner for Human Rights, CEDAW – Convention
on the Elimination of all forms of Discrimination Against Women. 31 Session (06 July 2004 – 23 July
2004).
Available
at:
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=200&Lan>
[last accessed 10 February 2016]; Office of the High Commissioner for Human Rights, CEDAW –
Convention on the Elimination of all forms of Discrimination Against Women. 48 Session (17
January
2011
–
04
February
2011).
Available
at:
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=345&Lang
=en> [last accessed 10 February 2016].
36
2. INVALID RESERVATIONS AND HUMAN RIGHTS TREATIES
In 1949, upon establishment of the International Law Commission, the United
Nations Secretary-General’s Survey of International Law62 contained a section on the
‘Law of the Treaties’, which observed that ‘persuasive reason may be adduced in
support of the view that it is desirable to include the entire subject of treaties within
the orbit of codification.’63 The law of treaties was listed among the topics for
codification64 and in its first session, the ILC appointed J.L. Brierly as Special
Rapporteur for the subject.65
In the years after its first session, the ILC considered a series of reports by
Brierly and his successors as Special Rapporteur on the Law of the Treaties. They
were Sir Hersch Lauterpacht and Sir Gerald Fitzmaurice. After which, in 1961, the
Commission appointed Sir Humphrey Waldock as Special Rapporteur on the Law of
the Treaties.66 From 1962 to 1966 Sir Humphrey Waldock carried on an intensive
examination of the Law of the Treaties and during this period sets of Articles were
62
See United Nations General Assembly. Memorandum submitted by the Secretary General. Survey
of International Law in Relation to the Work of Codification of the International Law Commission:
Preparatory work within the purview of article 18, paragraph 1, of the International Law Commission
- Memorandum submitted by the Secretary-General A/CN.4/1/Rev.1 (1949).
63
Ibid., p. 52, para. 91.
64
According to Article 15 of the Statute of the International Law Commission, ‘codification’, in
terms of international law, is defined as ‘the more precise formulation and systematization of rules of
international law in fields where there already has been extensive State practice, precedent and
doctrine’. See Statute of the International Law Commission, Adopted by the General Assembly in
resolution 174 (II) of 21 November 1947, as amended by resolutions 485 (V) of 12 December 1950,
984 (X) of 3 December 1955, 985 (X) of 3 December 1955 and 36/39 of 18 November 1981.
Available at: <http://legal.un.org/ilc/texts/instruments/english/statute/statute_e.pdf> [last accessed 10
February 2016].
65
See Rosene, Shabtai, The Law of the Treaties: A guide to the legislative history of the Vienna
Convention (Oceana Publications, 1970); Stanford, J. S., ‘The Vienna Convention on the Law of
Treaties’ (1970) 20 (1) University of Toronto Law Journal 18-47; Rosene, Shabtai, Developments in
the law of treaties: 1945-1986 (Cambridge University Press, 1989).
66
Ibid.
37
provisionally adopted by the Commission, submitted to governments for comment
and then re-examined in the light of these comments.
The United Nations Conference on the Law of Treaties took place in Vienna,
in two sessions, from 26 March to 24 May 1968 and from 9 April to 22 May 1969.
The Vienna Convention was opened for signature on the following day. 67 Finally,
after 18 years (1949–1966), 292 meetings and with the work of four Special
Rapporteurs, in its eighteenth session in 1966, the ILC adopted seventy-five draft
articles on the Law of Treaties, as well as accompanying commentary.68
The VCLT regulates the creation, effects and interpretation of international
agreements and is conceived as being responsible for the establishment of the
modern regime dealing with reservations to treaties under international law. 69 Its
preamble, 85 articles and one annex, deal with the following subjects:
a) Scope of the Convention, Use of terms, Non-retroactivity rule (Articles 1
to 5);
b) The conclusion and entry into force of treaties and reservations to treaties
(Articles 6 to 18);
c) Reservations to treaties (Articles 19 to 23);
d) Entry into force and provisional application to treaties (Articles 24 to 25);
e) The observance, application and interpretation of treaties (Articles 26 to
67
See United Nations Conference on the Law of Treaties. Final Act of the United Nations
Conference on the Law of Treaties, Extract from the Official Records of the United Nations
Conference on the Law of Treaties, First and Second Sessions (Documents of the Conference)
A/CONF.39/26.
68
See International Law Commission, Report of the of the International Law Commission on the
work of its Eighteenth Session, General Assembly Official Records: twenty-first session, Supplement
no. 9 A/6309/Rev.1 (4 May-19 July 1966) In: International Law Commission, Yearbook of the
international Law Commission, Vol.2 A/CN.4/SER.A/1966/Add.l (1966) p.173-268.
69
See Daniel, Jose, The Vienna Convention on the Law of Treaties and humanitarian law (1972)
12(136) International Review of the Red Cross 367-380; Sinclair, Ian, The Vienna Convention on the
Law of Treaties (Manchester University Press,1984); Villiger, Mark L, Commentary on the 1969
Vienna Convention on the Law of Treaties (Martinus Nijhoff, 2009).
38
38);
f) Amendment and modification of treaties (Articles 39 to 41);
g) The invalidity, termination and suspension of treaties (Articles 42 to 72);
h) Miscellaneous provisions relating to treaties, such as the effect of a treaty
with regard to third parties (Articles 73 to 75) and
i) Depositaries, notifications, corrections and registration of treaties (Articles
76 to 80).
As noted in chapter 1, this thesis examines the effects of impermissible
reservations on the monitoring and implementation process of CEDAW. In order to
understand this issue Articles 19 to 21 of the VCLT will be discussed in this chapter.
I will, however, primarily focus on Article 19, paragraph (c).
According to Article 21, paragraphs a, b the legal effect anticipated by the
Vienna Convention for a reservation is the entry into force (or not) of the treaty
between the reserving state and other state parties and the exemption of obligations
to the extent of reservations between states based on acceptance or objection (Article
21, paragraphs a, b). Swaine observes that under this system objections serve as a
form of insurance whereby non-reserving states are able to ‘recapture some of the
insurance benefits that reserving states capture in exempting their future conduct’.70
This practice, however, developed based on the notion that reservations would be
permissible71 and that treaty obligations are reciprocal.
70
See Swaine, Edward T., ‘Reserving’ (2006) 31(2) Yale Journal of International Law 311.
71
In this thesis the term ‘permissible’ refers to reservations that are not prohibited by a convention
(Article 19, paragraph a, VCLT), are specifically permitted by a convention (Article 19, paragraph b,
VCLT) and are compatible with the object and purpose of a convention (Article 19, paragraph c,
VCLT).
39
The current practice of states making objections based on impermissibility will
hardly protect the integrity of human rights treaty obligations. The VCLT regime of
reservations does not account for the primary fact that the beneficiaries of human
rights treaties are the people and not the states. Human rights treaties are nonreciprocal in nature.72
With human rights treaties the people under the jurisdiction of a state are the
ones to lose by a reservation made and not the other members of a convention. In this
scenario, non-reserving states have little incentive to object to a reservation. Neither
their people nor their legal obligations to the treaty will be harmed by the reserving
state attempt to evade compliance with a particular obligation. In sum, there is no
legal duty to object, nor will the objecting state’s legal obligations be affected and
thus, impermissible reservations stand.
According to Article 19(c) of the Vienna Convention it is prohibited to enter
reservations ‘incompatible’ with the object and purpose of a treaty, but the VCLT
does not discern how to interpret a treaty’s object and purpose. In fact, Article 31 of
the Convention suggests that a treaty’s object and purpose should be interpreted in
light of its object and purpose.73 Thus it can be said that the VCLT borders on the
self-referential.74
72
Exceptions may occur. Article 41 of the International Covenant on Civil and Political Rights,
which provides for reciprocity of inter-state complaints with regard to human rights breaches may be
referred to in this regard. See International Covenant on Civil and Political Rights, ICCPR. Opened
for signature on December 1966. Entered into force on March 1976. Available at:
<http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> [last accessed 10 February 2016].
73
See Schabas, William A, ‘Reservations to Human Rights Treaties: Time for Innovation and
Reform’ (1994) 32 Canadian Yearbook of International Law 48; Swaine, Edward T., ‘Reserving’
(2006) 31(2) Yale Journal of International Law 315.
74
See Hernandez, Gleider I; Simma, Bruno, ‘Legal consequences of an impermissible reservation to
a human rights treaty: Where do we stand?’ In: Cannizzaro, Enzo (ed.), The Law of Treaties: Beyond
the Vienna Convention (Oxford University Press, 2011) p.64.
40
The VCLT also fails to identify the criteria to determine the compatibility of a
reservation and fails to specify the consequences for a reservation identified as
incompatible with the object and purpose of a treaty as well. The vagueness of the
object and purpose test adds to lack of consequences for when a reservation is
objected to for its ‘impermissibility’.
The Vienna Convention does not shed light on how the object and purpose of a
treaty should be reckoned. It does not provide the effects for impermissible
reservations and for objections, and does not suggest an arbiter to rule on such
matters. The 1969 VCLT is, thus, riddled with gaps and so is CEDAW. The
‘Women’s Convention’ does not provide any clues for these issues either.
CEDAW uses the approach of the VCLT to allow reservations, unless they are
incompatible with the object and purpose of the Convention. CEDAW does not
provide a meaning for the term object and purpose, nor does it describe the
provisions that express the object and purpose of the Convention (Article 28,
paragraph 2).75 CEDAW also fails to determine the body with the competence to
determine the legal effects of an impermissible reservation.
The CEDAW Committee is left with the task to assess the permissibility of
reservations, without the power to determine the validity76 of reservations.
Consequently, the Committee struggles to deal with reservations made against
important provisions of the Convention and to monitor implementation of the treaty
by the state parties.
75
The CEDAW regime of reservations will be examined in chapters 3 and 4. See supra note 12,
‘CEDAW Convention’.
76
Debating the ‘validity’ of a reservation is discussing whether a reservation has been considered
either valid or invalid and what legal effect is to be attributed to an invalid reservation. Note that all
compatible reservations are permissible and thus valid; whereas, incompatible reservations are
impermissible and thus invalid. The debates question what legal effect should be attributed to an
invalid reservation.
41
Without an identification of the provisions that express the object and purpose
of CEDAW, without establishing the body with competence to determine the
incompatibility of reservations and with no indication as to the effects of an
incompatible reservation to the Convention, Article 28(2) of CEDAW remains
without much effect77 and the debates on the incompatibility of reservations to the
Convention seem to have no end.
In light of the conundrum formed with the applicability of the Vienna
Convention regime of reservations to CEDAW, and to human rights treaties in
general, this chapter will discuss three lacunae in the Vienna Convention, namely the
vagueness of the object and purpose test, the lack of a defined legal effect for
objections and for impermissible reservations, and the failure to designate the
consequences for the state party that has entered an impermissible reservation.
Although states claim the right to determine the validity of a reservation (legal
effects of permissible/impermissible reservations), in human rights treaties the status
of invalid reservations is obscure, even when the reservations are objected to based
on impermissibility. Reservations of questionable validity gain the same status as
valid reservations because the VCLT does not address the consequence for a
reservation determined to be invalid beyond the traditional reciprocal application of
the reservation between the reserving and objecting states.
As I will discuss further in this chapter, the doctrines of permissibility and
opposability have traditionally been used to define the legal effects of a reservation.
However, they have little resonance in the context of human rights treaties, for
77
Article 28(2), CEDAW states ‘A reservation incompatible with the object and purpose of the
present Convention shall not be permitted.’ See supra note 12, ‘CEDAW Convention’.
42
neglecting the rules to object to incompatible reservations and how they are utilized
in the context of human rights treaties.78
Thus, to examine the application of the VCLT regime of reservations to the
monitoring process of CEDAW, the history of the Vienna Convention regime of
reservations should be understood. Accordingly, this chapter begins with the
historical background of the development of the VCLT regime of reservations. I will
account for significant factors that have had an influence on the development of the
regime of reservations, particularly the 1951 Advisory Opinion on Reservations to
the Convention on the Prevention and Punishment of the Crime of Genocide.79
As part of the work undertaken in relation to reservations, since 1951 the ILC
has been carrying out studies and debates on reservations to international treaties. It
was ultimately decided that the work would culminate in a ‘Guide to Practice’ with
guidelines and model clauses that could be used together with the existing rules on
treaty law in the development of future treaties.80 The ‘Guide to Practice on
Reservations to Treaties’81 reflects residual rules and practices that may be applied in
the absence of special provisions on the permissibility and validity of reservations to
treaties and interpretive declarations.
The Guide proposes a concurrent competence between state parties and treaty
monitoring bodies to determine the permissibility and validity of a reservation
78
See e.g. Goodman, Ryan, ‘Human Rights Treaties, Invalid Reservations and State Consent’
(2002) 96 (3) American Journal of International Law 531–560; Moloney, Roslyn, ‘Incompatible
reservations to human rights treaties: severability and the problem of state consent’ (2004) 5(1)
Melbourne Journal of International Law 155–168; Swaine, Edward T, ‘Reserving’ (2006) 31 Yale
Journal of International Law 307-366; Bowett, Derek William, ‘Reservations to non-restricted
multilateral treaties’ (1976) 48(1) British Yearbook of International Law 67-90.
79
Supra note 27, ‘1951 Advisory Opinion’.
80
See International Law Commission, Report of the International Law Commission on the work of
its Fiftieth Session, General Assembly Official Records: fifty-third session, Supplement no.10.
A/53/10 (20 April – 12 June and 27 July to 14 August 1998) para.482.
81
Supra note 52, ‘Guide do Practice’.
43
(Guideline 3.2.4). According to Guideline 3.2.4, states parties would have to take
into account the competence of the treaty body to not only identify the object and
purpose of a convention, but to determine the incompatibility of a reservation as
well. Thus, the Guide extends the power of treaty bodies beyond their competence to
‘comment’ on the acceptability of reservations.82
However, due to the consensual nature of international law, only through
express acceptance by state parties can Guideline 3.2.4 be formally recognized,
usually via an amendment or an optional protocol to a treaty. As I will discuss later,
although treaty bodies aim for a more prominent role as ‘guardians’ of their
respective treaties, state parties do not recognize the monitoring bodies with
competence to determine the compatibility of reservations or the effects of an
incompatible reservation.
Thus, in the analysis of the applicability of the Vienna Convention regime of
reservations to human rights treaties, I will consider, where appropriate, the
comments made by Alain Pellet, the ILC’s Special Rapporteur on reservations to
treaties, on the application of the VCLT regime of reservations to human rights
conventions and will also review the ILC’s ‘Guide to Practice on Reservations’,83
while making sense of the paradox between universality versus integrity of human
rights treaties and state consent.
The analysis conducted in this chapter will provide the theoretical background
on the reservations regime, particularly, on the object and purpose test established by
the Vienna Convention. This will serve to examine CEDAW’s regime of reservations
as well as the identification and interpretation of CEDAW’s object and purpose.
82
See Pellet, Alain (Special Rapporteur), Second Report on Reservations to Treaties A/CN.4/477 &
Corr.1 & 2 and Add.1 & Corr.1-4 (10 May and 13 June 1996) p.80 para.240.
83
Supra note 52, ‘Guide do Practice’.
44
Subsequently, Bangladesh’s reservation to CEDAW will illustrate how the
monitoring and implementation process of the Convention suffers from the current
regime of reservations, which allows for incompatible reservations to stand and
reinforces weak accountability for reserving states that do not comply with treaty
obligations.
2.1. Background history of the ‘object and purpose’ test in the 1969 Vienna
Convention
The issue of reservations to multilateral treaties goes back to the 1951
International Court of Justice Advisory Opinion on reservations to the Genocide
Convention.84 Although the Advisory Opinion did not set forth a system of
reservations, it clearly merits attention here not only as background for the VCLT
regime of reservations, but also for representing a historical moment at which the
discussions of reservations fundamentally changed.
Usually, when states objected to reservations the UN Secretary-General
informed the reserving states that they could no longer be party to the Convention,
due to the objections presented. However, as Fenwick explains,
The Secretariat of the United Nations confronted with reservations to the Genocide Convention
had called attention to the lack of unanimity, both as to the procedure to be followed by a
depositary in obtaining the necessary consent to a proposed reservation, by other parties to the
Convention and as to the legal effect of an objection made by one of the parties 85
In 1950 the United Nations General Assembly requested an Advisory Opinion
84
Supra note 40, ‘Genocide Convention’.
85
See Fenwick, Charles, Reservations to Multilateral Conventions: The Report of the International
Law Commission (1952) 46(1) The American Journal of International Law 119-123.
45
from the International Court of Justice on three specific questions regarding this
matter. Questions 1, 2 and 3 are as follows,
Question 1:
Can the reserving State be regarded as being a party to the Convention while still maintaining
its reservation if the reservation is objected to by one or more of the parties to the Convention
but not by others?86
Question 2:
If the answer to Question 1 is in the affirmative, what is the effect of the reservation as between
the reserving State and:
(a) the parties which object to the reservation ?
(b) those which accept it ?...87
Question 3:
What would be the legal effect as regards the answer to Question 1 if an objection to a
reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?…88
The ICJ replied with:
a State which has made and maintained a reservation which has been objected by one or more
of the parties to the Convention but not by others, can be regarded as being party to the
86
Supra note 58, ‘1951 Advisory Opinion’, p.10.
87
Ibid., p.15.
88
Ibid., p.16.
46
Convention if the reservation is compatible with the object and purpose of the Convention;
otherwise, that State cannot be regarded as party to the Convention 89
[…]
if a party to the Convention objects to a reservation that it considers to be incompatible with
the object and purpose of the Convention, it can, in fact, consider that the reserving state is not
a party to the Convention […] On the other hand, if a party accepts the reservation as being
compatible with the object and purpose of the Convention it can, in fact, consider that the
reserving state is a party to the Convention90
[…]
an objection to a reservation made by a signatory state that has not yet ratified the Convention
can have the legal effect indicated in the reply to Question 1, only upon ratification. Until that
moment it merely serves as notice to the other state of the eventual attitude of the signatory
state. Such an objection made by a state which has not signed or acceded is without legal
effect…91
Thus, the Court ruled that a state that has made and maintained a reservation
which has been objected to by any number of state parties to a convention but not by
all, can be regarded as a member to the convention if the reservation follows the
logic of compatibility with the object and purpose of the convention. In the Advisory
Opinion the ICJ argued over a particular characteristic of the United Nations treaties:
the aim of ‘universality’. According to this there should be no complete exclusion of
any state on the grounds of objection to a proposed reservation.
The ICJ also observed that neither could the parties sacrifice the object of the
Convention for an aspiration to secure as many participants as possible. As follows,
89
Ibid., p.18.
90
Ibid.
91
Ibid., p.19.
47
The object and purpose of the Convention thus limit both the freedom of making reservations
and that of objecting to them. It follows that it is the compatibility of a reservation with the
object and purpose of the Convention that must furnish the criterion for the attitude of a State
in making the reservation on accession as well as for the appraisal by a State in objecting to the
reservation92
The Court identified that when making a reservation or raising an objection
states must account for the object and purpose of a treaty. Thus, not only
universality, but also the integrity of treaties should be preserved. However, the ICJ
failed to discuss who would determine the object and purpose of a particular treaty
and did not address who would be competent to be the arbiter of reservations.93
Following the ICJ Advisory Opinion, the ILC gave priority to a study of the
question of reservations to multilateral conventions.94 In a report to the UN General
Assembly, the Commission stated that the object and purpose test, applied by the ICJ
in its Advisory Opinion, would not be suitable for application to multilateral
conventions in general.95 Thus, the first three ILC Rapporteurs did not take over the
principles elaborated by the ICJ in their proposals on reservations to treaties.
The second Brierly Report of 1951 proposed the strict unanimity rule. 96 This
92
Ibid., p.24.
93
See Koh, Jean Kyongun, Reservations to multilateral treaties: How international legal doctrine
reflects world vision (1982-1983) 23 Harvard International Law Journal 85.
94
See International Law Commission, Report of the International Law Commission on its Third
Session Agenda for the third session A/CN.4/40 (1951) para.4 and Official Records of the General
Assembly, Sixth Session. Supplement No.9. A/1858 (16 May to 27 July), In: International Law
Commission, Yearbook of the international Law Commission, A/CN.4/SER.A/1951/Add.l (1951) Vol
2, p.125-131.
95
See International Law Commission, Reservations to multilateral conventions. Report of the
International Law Commission to the General Assembly. Report of the International Law Commission
covering the work of its third session A/1858 (16 May – 17 July 1951) In: International Law
Commission, Yearbook of the International Law Commission Vol.2 A/CN.4/SER.A/1951/Add.l
(1951) p.125-130.
96
See International Law Commission, Yearbook of the international Law Commission, 2 (1951),
Document A/CN.4/SER.A/1951/Add.l, p.1.
48
position was followed by Lauterpacht, in his second Report of 195497 and by
Fitzmaurice, in its first Report of 1956.98 In sum, under the unanimity rule a
reservation was valid only if the treaty concerned allowed it and if all the members of
the treaty accepted the reservation.99
However, Waldock, the final Rapporteur on the topic before the adoption of
the VCLT, acknowledged the framework set out by the ICJ in 1951.100 His first
Report of 1962 placed his proposals on reservations within the current practice of
states, which moved away from the unanimity rule.
In 1962, after an intricate debate, the ILC concluded that where a treaty was
silent on the matter of reservations, the compatibility of the reservation with the
object and purpose of a treaty provided a suitable criterion to determine the
legitimacy of the reservation.101 The ILC’s proposal adopted the ICJ’s notion of
compatibility with the object and purpose of the convention and allowed for each
state to decide on the admissibility of a proposed reservation rather than admissibility
depending on majority acceptance.102 This thereby gave the freedom for each state
party to choose whether or not the reservation proposed would be applicable in its
97
See International Law Commission, Yearbook of the international Law Commission, 2 (1954),
Document A/CN.4/SER.A/1954/Add.l, p.123.
98
See International Law Commission, Yearbook of the international Law Commission, 2 (1956),
Document A/CN.4/SER.A/1956/Add.l, p.104.
99
For theoretical discussions on the unanimity rule see e.g., Sinclair, Ian, Vienna Convention on the
Law of Treaties (Mellan Schill, 2nd Ed., 1984) Chapter 3, 51-77; Klabers, John, ‘On human rights
treaties: Contractual conceptions and reservations’ In: Ziemele, Ineta (ed.), Reservations to Human
Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (Martinus
Nijhoff Publishers, 2004) p.149-182; Fon, Vincy; Parisi, Francesco, ‘The Hidden Bias of the Vienna
Convention on the International Law of Treaties’ (2008) 4(1) Review of Law and Economics 18- 406;
Pellet, Alain, ‘Article 19: Convention of 1969’ In: Corten, Olivier; Klein, Pierre (ed.) The Vienna
Conventions on the Law of Treaties (Oxford University Press, 2011).
100
See International Law Commission, Yearbook of the international Law Commission, 2 (1962),
Document A/CN.4/SER.A/1962/Add.l, p.27.
101
See International Law Commission, Yearbook of the international Law Commission, 1(2) (1966)
Document A/CN.4/SER.A/1966, p. 295; 326; 340.
102
Ibid.
49
relation with the reserving state party.
In 1965 the ILC’s proposal was put forward,103 resulting in draft Article 16 of
the 1966 VCLT, which was as follows,
Formulation of reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:
(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 paragraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.
104
In its commentary on the draft Article 16, the ILC argued that, although it had
agreed with the principle of compatibility with the object and purpose of the treaty as
suitable for adoption as a general criterion,105 it also found that, ‘[t]he difficulty lies
in the process by which that principle is to be applied, and especially where there is
no tribunal or other organ invested with standing competence to interpret the
treaty.’106 Thus, each individual state’s acceptance or rejection of a reservation is the
only way of settling the matter, suggesting that ‘[t]he subjectivity inherent in this
103
The final Report of the International Law Commission on reservations was adopted in 1966. See
the final ILC Report of 1966 in, International Law Commission. Yearbook of the international Law
Commission, 2 (1996) Document A/CN.4/SER. A/1966/Add.1, p.205.
104
In the 1966 Draft of the VCLT, Articles 16 and 17 dealt with the right to enter a reservation and
its acceptance by the other state parties to a treaty, which is currently regulated in Articles 19 and 20
of the Vienna Convention.
105
See International Law Commission, Yearbook of the International Law Commission Vol.2
A/CN.4/SER.A/1966/Add.1 (1966) p.203-208.
106
Ibid., p.203-208.
50
approach provides considerable flexibility.’107 As Lijnzaad observes, ‘the claim that
a particular reservation is contrary to the object and purpose is easier made than
substantiated’.108
In the Tenth Plenary Meeting of the United Nations Conference on the Law of
Treaties,109 the debates of text of the ILC draft Article 16 began. The Mexican
delegation proposed to expressly envisage the consequences of a judicial decision
which recognizes the incompatibility of a reservation.110 There were even attempts to
draw consequences from the incompatibility of a reservation.111 The delegation from
Japan argued that ‘the new rules embodied in article 16 and article 17 might lead to
undesirable situations which would have the effect of permitting virtually any
reservation that any party wished to make’.112
Mr. Brazil, the representative of Australia, recalled that:
[the Australian delegation was] still not convinced that the present articles 16 and 17 were a
satisfactory solution to that problem; it would prefer the inclusion of a clause providing for
107
See Villiger, Mark L, Commentary on the 1969 Vienna Convention on the Law of Treaties
(Martinus Nijhoff, 2009) p.273.
108
See Lijnzaad, Elizabeth, Reservations to UN-Human Rights Treaties: Ratify and Ruin (Martinus
Nijhoff, 1995) p.82-83.
109
See United Nations Conference on the Law of Treaties, Official Records. Tenth plenary meeting.
Extract from the Official Records of the United Nations Conference on the Law of Treaties, Second
Session (Summary records of the plenary meetings and of the meetings of the Committee of the
Whole) (9 April to 22 May 1969) A/CONF.39/SR.10 paras.29-82.
110
See United Nations Conference on the Law of Treaties, Official Records. Extract from the
Official Records of the United Nations Conference on the Law of Treaties, Second Session (Summary
records of the plenary meetings and of the meetings of the Committee of the Whole) (9 April to 22
May 1969) A/CONF.39/SR.10 p.113 para.63.
111
For examples see the comments made by Japan, United Kingdom and China. For Japan’s
comments see United Nations Conference on the Law of Treaties, Official Records. Tenth plenary
meeting. Extract from the Official Records of the United Nations Conference on the Law of Treaties,
Second Session (Summary records of the plenary meetings and of the meetings of the Committee of
the Whole) (9 April to 22 May 1969) A/CONF.39/SR.10 p.109-110 para.26-29; For United
Kingdom’s comments in the same document see p.113-114 para. 70-76. For China’s comments in the
same document see p.121 para. 1-7.
112
See International Law Commission, Yearbook of the International Law Commission Vol.2
A/CN.4/SER.A/1966/Add.1 (1966) p.29 para.29.
51
some machinery of control, such as had been proposed by the Japanese delegation. His
delegation would therefore have to abstain from voting on articles 16 and 17
113
Despite the arguments presented and seven abstentions during the voting, the
text of Article 16 was adopted without amendments, by 92 votes to 4. The text of
draft Article 16 is currently observed in Article 19 of the 1969 VCLT. Universality
became the prime objective of the law of reservations, which functioned on a largely
subjective basis, hence the flexible approach taken to the right to enter reservations
to an international treaty.
In the next section I discuss the topic of invalid reservations to human rights
treaties before moving to a more specific analysis of reservations to CEDAW. The
discussion will consider available literature on the effects of invalid reservations and
the competence to determine the validity of reservations within the scope of human
rights treaties.
2.2. The VCLT regime of reservations and human rights treaties
The 1969 Vienna Convention attempted to devise a fixed, all-encompassing set
of rules to govern the permissibility and legal effects of reservations to all kinds of
treaties. Taking into consideration the need for a more flexible system of
reservations, the unanimity rule was discarded and a new reservations regime was
introduced, which is codified in Articles 19 to 23 of the 1969 Vienna Convention.
Article 19 of the VCLT provides that a state can formulate reservations when
signing, ratifying, accepting, approving or acceding to a treaty, unless: ‘(a) the
reservation is prohibited by the treaty; (b) the treaty provides that only specified
113
Ibid., p.30 para. 34.
52
reservations, which do not include the reservation in question, may be made; or (c) in
cases not failing under subparagraphs (a) and (b), the reservation is incompatible
with the object and purpose of the treaty.’114 Thus, Article 19 establishes the limits of
permissibility115 of a reservation.
Article 19(a) deals with the express prohibition of reservations. Article 19(b)
has settled for the solution that only preclusive authorizations116 imply a prohibition
of reservations to those treaty provisions that are not mentioned by the provision.
Thus, when conventions, such as CEDAW, do not express the provisions against
which no reservation can be made, the reasoning of the VCLT is that any provision
can be subjected to a reservation. In the words of Frank Horn,
[t]he Vienna Convention now stands for a quite liberal view. Whenever there is a slight doubt
as to the admissibility of reservations, the presumption is in favor to a liberty to formulate
reservations117
Article 19(c) reflects the view taken by the ICJ on the 1951 Advisory Opinion
on reservations to the Genocide Convention. As discussed previously, the Court was
concerned to protect the integrity of human rights instruments from erosion due to
broad reservations that diluted the most fundamental provisions of the treaties.
Article 21 of the VCLT leaves for state parties the onus of assessing the
permissibility and determining the legal effects of reservations by stating that a
114
Supra note 7, ‘Vienna Convention’.
115
Supra note 94.
116
An authorization of certain reservations does not preclude the formulation of other reservations,
except when the authorization explicitly admits only individualized reservations.
117
See Horn, Frank, Reservations and interpretative declarations to multilateral treaties (Elsevier
Science Publishers, 1988) 114.
53
reservation modifies for the reserving state and for the objecting state the provisions
of the treaty to which the reservation relates to the extent of the reservation.118 This,
Article address the legal effects of only valid reservations and in the context of
relationships between states, which has little relevance to human rights treaties.
Human rights treaties differ from other international treaties due to certain
distinctive characteristics. According to the ICJ:
In such a convention [Genocide Convention] the contracting States do not have any interests of
their own; they merely have, one and all, a common interest, namely, the accomplishment of
those high purposes which are the raison d’être of the convention. Consequently, in a
convention of this type one cannot speak of individual advantages or disadvantages to States,
or of the maintenance of a perfect contractual balance between rights and duties. 119
Thus, human rights treaties differ from the standard treaties because of the
content and the beneficiaries of the norms. ‘The object of human rights treaties is not
the exchange of reciprocal obligations between the states, but rather objective
obligations towards the individuals under the jurisdiction of the states parties.’120
Human rights treaties recognize individuals as the subjects of international law and
with that recognition grant them the benefit of obligations imposed on the states.
In short, human rights obligations are for the benefit of individuals, rather
than states. Thus, the substantive provisions of the treaty will have to be fulfilled
between a state and its subjects, and not between different states. The lack of a direct
interest for states and the objective interest of individuals under the jurisdiction of
118
Supra note 7, ‘Vienna Convention’.
119
Supra note 40, ‘1951 Advisory Opinion’, p.12.
120
See Lijnzaad, Elizabeth, Reservations to UN-Human Rights Treaties: Ratify and Ruin (Martinus
Nijhoff, 1995) 110.
54
state parties suggest that the validity of reservations to human rights treaties is not
found within the bounds of reciprocity.
Objections do not make much sense in the context of the non-reciprocal
rights and obligations observed in human rights treaties. Article 21(3) of the VCLT
explains that ‘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’121 This rule, however, is not appropriate when considering reservations
to human rights treaties, since the states receive no reciprocal benefits from one
another. Will the objecting state not comply with the provisions affected by the
reservation vis-à-vie the reserving state? How would that work?
Instead, when objecting to reservations made to human rights treaties, state
parties maintain their obligations to the covenant and to the people under their
jurisdiction. The absence of reciprocal obligations does not equate with the complete
absence of benefits exchanged between state parties to a human rights treaty. The
most essential benefit is the accomplishment of those ‘high purposes’, which are the
raison d’être of the conventions.
However, if a reserving state does not comply with a provision in a human
rights covenant the remaining state parties to the convention will not have their legal
obligations to the treaty affected and will only be harmed in their interests if their
common goal is in fact the regulation and protection of human rights at an
international level. The existence of a common goal between the members of an
international agreement cannot be assured, nonetheless.
Although it is not the focus of this thesis to examine the states’ interests as
121
Supra note 7, ‘Vienna Convention’.
55
parties to human rights treaties, this is a topic that merits comment in this thesis.
Elaborating on the interests of reserving and non-reserving states may not solve the
problems created by the applicability of the regime of reservations to human rights
treaties. The point of such discussion, however, is to better understand the status quo
before accounting for an analysis of the monitoring and implementation process of
CEDAW and its regime of reservations.
Flodd argued that ‘UN effectiveness is due to the fact that, as members of a
community, states pursue goals whose achievement depends highly on avoiding
political isolation.’122 Koskenniemi has also made this argument.123 Their views
attribute the success of the human rights movement and its institutions to politics.
However, the motives behind becoming a party to an international law-making
system may also include a state’s desire to be a relevant member of the international
community and also the aim to avoid criticism for not being part of such an
agreement.124
Although not a primary interest, political considerations are a part of state acts
in an international environment. They influence objections to reservations, as much
as they influence reservations.125 Thus, the motivation of states as parties to the treaty
122
See Flood, Patrick James, The Effectiveness of UN Human Rights Institutions (Praeger
publishers,1998) Preface.
123
See Koskenniemi, Martti, ‘The Fate of Public International Law: Between Technique and
Politics’ (2007) 70(1) Modern Law Review 1-30.
124
See e.g., Lijnzaad, Elizabrth, Reservations to UN-Human Rights Treaties: Ratify and Ruin
(Martinus Nijhoff, 1995); Marks, Susan, Three Regional Human Rights Treaties and Their Experience
of Reservations’ In: Gardner, J.P.; Chinkin, Christine M., (ed.), Human Rights as General Norms and
a State’s Right to Opt Out: Reservations and Objections to Human Rights Conventions (BIICL, 1997)
p.35-63; Boerefijn, Ineke, ‘Impact on the Law on Treaty Reservations,’ In: Kamminga, Menno T;
Scheinin, Martin (eds.), The Impact of Human Rights Laws on General International Law (Oxford
University Press, 2009) p.63-97; Schabas, William A., ‘Reservations to Human Rights Treaties: Time
for Innovation and Reform’ (1994) 32 Canadian Yearbook of International Law 39-82.
125
See e.g. Aust, Anthony, Modern Treaty Law and Practice (Cambridge University Press, 2d ed.,
2007) p.133-34; Swaine, Edward T., ‘Reserving’ (2006) 31(2) Yale Journal of International Law 307366; Hathaway, Oona Anne, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111(8) Yale Law
Journal 1935-2042; Schmidt, Markus G, ‘Reservations to United Nations Human Rights Treaties–The
56
or in their individual relationships with the other members will, ultimately, impact on
their interests to object or not to a reservation. Therefore the purpose and value of
objections based on invalidity must be considered. This is because the Vienna
Convention does not contemplate what happens to a reservation in the instance
where it has been objected to based on impermissibility and invalidity.
Once it is admitted that a state cannot formulate a reservation against the
provisions of Article 19, than the question arises of what happens if a state
formulates a reservation in spite of these prohibitions. What is the legal effect of an
impermissible reservation? In addition, are the other states prevented from
acquiescing to a reservation formulated in spite of the prohibitions of Article 19?126
Technically, the Vienna Convention allows state parties to come to their own
conclusion regarding the acceptability of reservations, even if it affects the object and
purpose of a treaty. Under the VCLT there are no provisions against state parties
from accepting reservations that are contrary to Article 19(c). In fact, under Article
20(5) of the VCLT if objections are not raised within twelve months of states being
notified about the reservation, the reservation is formally considered as having been
accepted by the state parties to the treaty.127
Thus, objections are not restricted by the type of reservations they may affect.
They have, however, limited legal effects. Nonetheless, objections are at the heart of
the debates over the consequences of impermissible reservations and this is not
restricted to the scope of human rights treaties.
Case of the Two Covenants’ In: Gardner, J.P.; Chinkin, Christine M., (ed.), Human Rights as General
Norms and a State’s Right to Opt Out: Reservations and Objections to Human Rights Conventions
(BIICL, 1997) p.20-34; Koh, Jean Kyongun, ‘Reservations to Multilateral Treaties: How International
Legal Doctrine Reflects World Vision’ (1982) 23(1) Harvard International Law Journal 71-116.
126
See Pellet, Alain, ‘Article 19: Convention of 1969’ In: Corten, Olivier; Klein, Pierre (ed.) The
Vienna Conventions on the Law of Treaties (Oxford University Press, 2011) p.478.
127
Supra note 7, ‘Vienna Convention’.
57
The ‘permissibility doctrine’ suggests that incompatible reservations are void
ab initio, which originates from Article 19(c) of the VCLT. 128 However, this leads to
one question: if the reservation is void, will the reserving state remain a party to the
treaty without the benefits of the reservations or be excluded from treaty
participation? In the literature it is possible to identify suggestions to answer this
question.
According to the ‘backlash doctrine’, an incompatible reservation invalidates
the state’s instrument of ratification and therefore the state is excluded from the
treaty.129 A second trend of thought considers that the normal consequence of an
incompatible reservation is not that the covenant will not be in effect at all for a
reserving party. Rather, such a reservation will generally be severable in the sense
that the covenant will be operative for the reserving party without benefit of the
reservation. This is known as the ‘severability doctrine’. 130 The severability doctrine,
however, fails to account for state consent and, as I will discuss in the next section, it
is not an alternative that will gain state parties acceptance with ease or gain any
acceptance at all. Finally, an alternative view suggests that the state remains bound to
the treaty, except for the provision to which the reservation relates.131
The permissibility doctrine limits states parties’ freedom to object to
128
See e.g. Krivenko, Ekaterina Yahyaoui, Women, Islam and International law: Within the context
of the Convention on the Elimination of all forms of Discrimination Against Women (Martinus Nijhoff
Publishers, 2009) 83; Swaine, Edward T., ‘Reserving’ (2006) 31(2) Yale Journal of International Law
315; International Law Commission, Yearbook of the international Law Commission, Vol. 2(1)
A/CN.4/SER.A/1995/Add.1 (1995) p.143 para.106; Bowett, Derek William, ‘Reservations to nonrestricted multilateral treaties’ (1976) 48(1) British Yearbook of International Law 84.
129
See Moloney, Roslyn, ‘Incompatible reservations to human rights treaties: severability and the
problem of state consent’ (2004) 5(1) Melbourne Journal of International Law 155-168.
130
See Baratta, Roberto, ‘Should invalid reservations to human rights treaties be disregarded?’
(2000) 11(2) European Journal of International Law 413-425.
131
See Goodman, Ryan, ‘Human Rights Treaties, Invalid Reservations and State Consent’ (2002)
96(3) American Journal of International Law 531-560.
58
reservations. Under this doctrine, states parties would not have competence to
determine the legal effects of a reservation that affects the object and purpose of a
covenant, since an incompatible reservation would be void ab initio. Thus, it would
be necessary to legally define the entity with competence to identify the object and
purpose of a treaty and the validity of the incompatible reservations. This would
restrict even more the power of state parties to accept or reject reservations.
Additionally, Article 20(5) of the VCLT, which indicates that a state party’s silence
on a reservation is equivalent to ‘consent’ or ‘acceptance’, will have no effect if a
reservation is deemed impermissible.
On the other extreme of the permissibility doctrine there is the ‘opposability
doctrine’, which proposes that if a reservation is objected to by another state party to
an agreement then there will be no treaty relations between the reserving and
objecting state.132 Thus, in cases when there are no objections to incompatible
reservations, according to the opposability doctrine, the reserving state will become a
party to the treaty despite the impermissible reservation, which in turn, will become a
permissible reservation if there is no objection (Article 20, paragraph 5,VCLT).
Thus, objections to impermissible reservations based on invalidity will produce the
same effects as objections to permissible/valid reservations.
As Craven argues, ‘[i]f a state can become party to the Convention entirely
independently of the views of other contracting states, it makes little sense then to
132
See e.g. Horn, Frank, Reservations and interpretative declarations to multilateral treaties
(Elsevier Science Publishers, 1988); Lijnzaad, Elizabeth, Reservations to UN-Human Rights Treaties:
Ratify and Ruin (Martinus Nijhoff, 1995); Baratta, Roberto, ‘Should Invalid Reservations to human
rights treaties be disregarded?’ (2000) 11(2) European Journal of International Law 413-425;
Korkelia, Konstantin, ‘New Challenges to the Regime of Reservations under the International
Covenant on Civil and Political Rights’ (2002) 13(2) European Journal on International Law 437477; Hernandez, Gleider I; Simma, Bruno, ‘Legal consequences of an impermissible reservation to a
human rights treaty: Where do we stand?’ In: Cannizzaro, Enzo (ed.), The Law of Treaties: Beyond
the Vienna Convention (Oxford University Press, 2011).
59
suggest that the reservation may be opposable.’133 The opposability doctrine then
does not solve the problem of invalid reservations.
Given the incomplete character of the rules embodied in the Vienna
Convention and the difficulties experienced by state parties and monitoring bodies
regarding reservations to international treaties, the ILC decided to place the topic of
reservations back on its agenda134 and in 1994, the ILC established a Special
Rapporteur on reservations. The Special Rapporteur, Alain Pellet, issued seventeen
reports addressing various aspects concerning reservations. The reports culminated in
the adoption of the ‘Guide to Practice on Reservations to Treaties’.135
The Guide to Practice is observed in the Addendum to the ILC’s Report for
2011.136 It is described as ‘a code of recommended practice’ to ‘guide’ the practice of
states.137 Comprising a total of 630 pages in the ILC’s 2011 Report, the Guide
suggests 179 guidelines and commentaries on these guidelines.138 The Guide is a
non-binding document that aims to assist states in formulating reservations and
interpretative declarations, and reacting thereto.139
In regard to the effects of an impermissible reservation, Guideline 4.5.1
133
See Craven, Matthew, ‘Legal differentiation and the concept of the human rights treaty in
international law’ (2000) 11(3) European Journal of International Law 508.
134
See International Law Commission, Yearbook of the international Law Commission, Vol 2(2)
A/CN.4/SER.A/1951/Add.l (1993) p.96-96 para.427-430; 440.
135
Supra note 52, ‘Guide do Practice’.
136
See International Law Commission, Report of the of the International Law Commission on the
work of its Sixty-Third Session, General Assembly Official Records: sixty-six session, Supplement
no.10. A/66/10/Add 1 (26 April – 3 June and 4 July to 12 August 2011).
137
Ibid p.401, Guideline 3.2.2, Commentary (2).
138
See International Law Commission, Report of the of the International Law Commission on the
work of its Sixty-Third Session, General Assembly Official Records: sixty-six session, Supplement
no.10. A/66/10/Add 1 (26 April – 3 June and 4 July to 12 August 2011).
139
See Wood, Michael, ‘Institutional aspects of the Guide to practice on Reservations’ (2013) 24(4)
European Journal of International Law 1099-1112.
60
declares that when a reservation does not meet the conditions of formal validity and
permissibility it is null and void, and therefore does not have any legal effect.
Subsequently, it is proposed that unless the author of an invalid reservation ‘has
expressed a contrary intention or such an intention is otherwise established, it is
considered a contracting State or a contracting organization without the benefit of the
reservation.’140
Criticism can be made of this approach, however. A reservation is an
expression of a state’s interest to not be bound by certain provisions of a treaty.
Therefore, unless a treaty body requests from the reserving state a new declaration
(Guideline 4.5.3, paragraph 1) the reservation is, in itself, an explicit declaration to
not be bound by the treaty as a whole. As De Pauw observes,
It is possible that a State’s ratification of a human rights treaty was dependent on its reservation
made. In that case, the severability doctrine cannot be reconciled with the principle of State
consent, which is considered to be the foundation of international treaty law. 141
According to the Guide, an impermissible reservation is considered invalid and
with no legal effects. However, there is no tool to bind the state to all treaty
provisions without its consent. Thus, if the author of the reservation insists on
maintaining it the reservation is preserved until the state party decides to withdraw it.
Therefore, universality still prevails over the integrity of treaties.
In regards to the right to object to reservations, Guidelines 2.6.12, 2.6.13 and
4.5.2 of the ILC’s Guide establish, respectively:
140
Supra note 52, ‘Guide do Practice’, Guideline 4.5.3(2) p.24.
141
See De Pauw, Marijke, ‘Women’s rights: from bad to worse? Assessing the evolution of
incompatible reservations to the CEDAW Convention’ (2013) 29(77) Utrecht Journal of International
and European Law 55.
61
2.6.12. Time Period for formulating Objections
Unless the treaty otherwise provides, a State or an international organization may formulate an
objection to a reservation within a period of twelve months after it was notified of the
reservation or by the date on which such State or international organization expresses its
consent to be bound by the treaty, whichever is later.
2.6.13. Objections formulated late
An objection to a reservation formulated after the end of the time period specified in guideline
2.6.12 does not produce all the legal effects of an objection formulated within that time period.
[…]
4.5.2. Reactions to a reservation considered invalid
1. The nullity of an invalid reservation does not depend on the objection or the acceptance by a
contracting State or a contracting organization.
2. Nevertheless, a State or an international organization which considers that a reservation is
invalid should formulate a reasoned objection as soon as possible.
Therefore, the ILC’s Guide maintained the VCLT timeframe of twelve months
to formulate objections to a reservation. However, an incompatible reservation is still
considered invalid, even without state parties’ objecting to it. So, theoretically, the
invalid reservations would not create any relationship between the reserving state and
the remaining state parties to the treaty, as far as the reservation extends. In this case,
objections are a more significant instrument when the reservations are valid, since
invalid reservations are automatically stripped of any legal effects. Nonetheless, the
Guide recommends states parties to object to an invalid reservation ‘as soon as
62
possible’, which suggests that objections are regarded as having a significant weight
as a declaration of the state parties’ understanding of the reservation.142
As observed, the VCLT regime of reservations gives to states parties the
competence to determine the validity of reservations and the consequences of the
reservations in a state-to-state relationship. This system, however, does not answer
the needs of the non-reciprocal rights and obligations conveyed in human rights
treaties. The growing number of reservations to human rights treaties poses a threat
to the protection of the rights and obligations established by the respective covenants.
This threat is not well addressed by the current regime.
As human rights treaties are often silent on the procedure to determine the
validity (legal effects) of reservations (e.g. ICCPR and CEDAW), the establishment
of treaty bodies raises the question of whether such bodies are competent to perform
such task. In this regard, Alain Pellet has already argued that human rights treaty
bodies possess this competence as part of their mandates just as the state parties to an
international treaty have a concurrent competence under general rules of
international law.143
The following sub-section examines the role of treaty bodies in interpreting
reservations to human rights treaties. This is an issue that has been specifically
addressed in the context of human rights treaties for decades. Thus, I will not attempt
to resolve such complex debate in one chapter. I will, instead, focus the debate on the
role of treaty bodies in interpreting reservations to human rights treaties and in the
142
See International Law Commission, Report of the of the International Law Commission on the
work of its Sixty-Third Session, General Assembly Official Records: sixty-sixth session, Supplement
no.10 A/66/10/Add 1 (26 April – 3 June and 4 July to 12 August 2011) p.57 para.8.
143
See International Law Commission, Report of the International Law Commission on the work of
its forty-ninth session A/52/10 (12 May – 18 July 1997) In: International Law Commission, Yearbook
of the International Law Commission Vol.2(2) A/CN.4/SER.A/1997/Add.l (Part II) (1997).
63
increasing need for a new regulatory mechanism that gives power for treaty bodies to
monitor the permissibility and determine the validity of reservations, as part of their
monitoring work.
Besides surveying existing literature, I will consider historical developments
in case law, the Human Rights Committee General Comment n.24 and the CEDAW
Committee’s observations on this matter. I will also look into the ILC’s
understanding of the position of human rights treaty bodies within the regulatory
framework of the Vienna Convention’s regime of reservations and discuss the ILC’s
Guide to Practice approach to this issue. This discussion will assist in the study of the
CEDAW Committee’s competence to monitor states parties’ accountability for noncompliance with the object and purpose of CEDAW, which will be illustrated later in
the thesis with the analysis of Bangladesh’s implementation of the Convention.
2.2.1. The role of treaty bodies in interpreting reservations to human rights
treaties
Debates over the competence of treaty monitoring bodies to examine and
determine the validity of reservations go back decades in history. In the
Temeltasch144 and in the Belilos cases the European Commission of Human Rights
assumed the competence to decide on the compatibility of reservations to the
European Convention of Human Rights and Fundamental Freedoms.145 In particular,
the Temeltasch case established the Commission’s authority to deal with reservations
and interpretative declarations, on the basis of the essential characteristics of the
144
See Temeltasch v. Switzerland (1982) DR 31, 120.
145
See Case of Belilos v. Switzerland ECHR (1988) Series A 132.
64
European Convention.146
In the Temeltasch case, the European Commission considered a declaration
made by Switzerland on Article 6(3)(e) to the European Convention.147 Switzerland
intended to use the declaration to remove the obligation to provide the free assistance
of an interpreter if a person charged with a criminal offence could not understand or
speak the language used in court. After determining that the Swiss interpretative
declaration was a reservation, the European Commission considered the validity of
the reservation.
The Commission based its competence to determine the validity of the Swiss
reservation on ‘the very system of the Convention’.148 The Commission made it clear
that it is competent to determine the validity of a reservation entered by states parties
to the Convention. This precedent paved the way for other cases in which the
European Convention’s supervisory bodies, namely the European Court of Human
Rights and the European Commission (or Commission of Ministers of the Council of
Europe),149 would have to decide on the validity of reservations.
146
See European Convention on Human Rights. Opened for signature on 4 November 1950. Entered
into force on 1 June 2010 (As amended by the provisions of Protocol No. 14, CETS no. 194).
Available at: <http://www.echr.coe.int/Documents/Convention_ENG.pdf> [last accessed 10 February
2016]. Also see Korkelia, Konstantin, ‘New Challenges to the Regime of Reservations under the
International Covenant on Civil and Political Rights’ (2002) 13(2) European Journal on International
Law 437-447.
147
See Council of Europe. List of the declarations made by: Switzerland. Complete chronology as of
3/7/2015.
Treaty
n.5:.
Available
at:
<http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?CL=ENG&CM=5&NT=005&VL
=1&MA=999&PO=SWI> [last accessed 10 February 2016].
148
Supra note 161, p.145.
149
Until the entry into force of Protocol 11 of the European Convention on Human Rights,
individuals could not access the European Court of Human Rights directly. First, individuals should
apply to the Commission. If the Commission understood that the case was well-founded it would
launch a case in the Court on the individual’s behalf. Protocol 11 abolished the Commission and
enlarged the Court, allowing individuals to have direct access to it. See Council of Europe, Protocol
No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms,
restructuring the control machinery established thereby. (Strasbourg, 1994). Available at:
<http://conventions.coe.int/treaty/en/Treaties/Html/155.htm> [last accessed 10 February 2016]. For
theoretical analysis see Petaux, Jean, Democracy and Human Rights for Europe: The Council of
65
The competence to examine the compatibility of a reservation was also
confirmed for the European Court of Human Rights in 1988, in the judgment on the
Belilos case. The Belilos case concerned an application against Switzerland by Mrs
Belilos, before the Convention for the Protection of Human Rights and Fundamental
Freedoms, alleging a breach of Article 6, paragraph 1 of the Convention. In its
decision of 29 April 1988, the Court held that an interpretive declaration made by
Switzerland (concerning Article 6, paragraph 1 of the Convention) in its instrument
of ratification was legally equivalent to a reservation. It further held that the
reservation was invalid under the rules on reservations of the European
Convention.150
In the context of the UN human rights monitoring system, one of the earliest
initiatives to determine the role of a treaty monitoring body with regard to
reservations occurred in 1976 in connection with the work of the Committee on the
Elimination of Racial Discrimination (ICERD Committee).151 One of the questions
referred to the Office of Legal Affairs of the UN by the ICERD Committee was
whether the Committee had the authority to decide upon the compatibility of
reservations made to the Convention on the Elimination of Racial Discrimination. In
response, the Office of Legal Affairs was clear, ‘stating that the Committee had no
competence to decide on the compatibility of reservations, as the Committee was not
a representative organ of states parties.’152
Europe's Contribution (Council of Europe publishing, 2009); Callewaert, Johan, The accession of the
European Union to the European Convention on Human Rights (Council of Europe publishing, 2014).
150
See Case of Belilos v. Switzerland ECHR (1988) Series A 132.
151
See United Nations Office of Legal Affairs, Legal Effects of Statements of Interpretation and
Other Declarations Made at the Time of Ratification or Accession ST/LEG/SER.C/14 In: United
Nations, UN Juridical Yearbook (1976) p.219-220.
152
See Korkelia, Konstantin, ‘New Challenges to the Regime of Reservations under the
International Covenant on Civil and Political Rights’ (2002) 13(2) European Journal on International
66
The CEDAW Committee also referred to the Office of Legal Affairs a
question as to the role of the Committee to interpret incompatible reservations and
thus monitor Article 28(2) of CEDAW.153 In response to the question, the Office of
Legal Affairs stated,
the functions of the Committee do not appear to include a determination of the incompatibility
of reservations, although reservations undoubtedly affect the application of the Convention and
the Committee might have to comment thereon in its reports in this context 154
When deciding upon the competence of the CEDAW Committee, the Office of
Legal Affairs acknowledged the relevance of reservations to the ‘application’ of
CEDAW, which can be understood as referring to the monitoring and
implementation process of the Convention, and the need for the Committee to
express its considerations on incompatible reservations.
However, both in the
ICERD’s and in the CEDAW Committee’s cases the Office of Legal Affairs
followed Article 20 of the VCLT, according to which states parties retain the
competence to determine the compatibility of reservations to treaties in a reciprocal
relationship with the reserving state.155
Law 447.
153
Article 28(2) of CEDAW prohibits reservations unless they are incompatible with the object and
purpose of the Convention. See Convention on the Elimination of all forms of discrimination against
women (CEDAW). Opened for signature on December 1979 (Entered into force on September 1981).
Available at: <http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm> [last accessed 10
February 2016].
154
See United Nations Office of Legal Affairs, ‘Legal Opinion of the Treaty Section of the Office of
Legal Affairs of the United Nations Secretariat upon an Inquiry by the Committee Concerning the
Implementation of Article 28 of the Convention on the Elimination of All Forms of Discrimination
Against Women’, In: Official Records of the General Assembly, 39th Session, Supplement No. 45,
A/39/45 (1984) p.56.
155
See e.g., Lijnzaad, L, Reservations to UN-Human Rights Treaties: Ratify and Ruin (Martinus
Nijhoff, 1995) p.302-303; Korkelia, Konstantin, ‘New Challenges to the Regime of Reservations
under the International Covenant on Civil and Political Rights’ (2002) 13(2) European Journal on
67
Treaty bodies continued to claim a more prominent role, however. In 1994, in
their fifth meeting, the chairpersons of the treaty bodies stated that treaty bodies
should seek explanations from state parties regarding the reasons for making and
maintaining reservations to human rights treaties and most significantly, they
recommended that ‘treaty bodies state clearly that certain reservations to
international human rights instruments are contrary to the object and purpose of
those instruments and consequently incompatible with treaty law’.156
In regard to treaty bodies’ engagement with reserving states Pellet observed
that:
the [treaty] bodies[…] are anxious to engage in a dialogue with the state authors of the
reservations to encourage them to withdraw the reservations when these appear to be abusive,
rather than to rule on their impermissibility[…] This is, for example, the practice of the
Committee on the Elimination of Discrimination Against Women. 157
I would not go so far to say that treaty bodies were not interested in ruling on
the inadmissibility of a reservation, but they were indeed limited by the powers
conferred on them by their respective covenants. The position adopted by the
CEDAW Committee with respect to its competence to judge the admissibility of
International Law 437-477; Shelton, Dinah, ‘The legal status of normative pronouncements’ In:
Hestermeyer, Holger [et. al] (ed.) Coexistence, Cooperation and Solidarity: liber amicorum Rudiger
Wolfrum (Koninklijke Brill NV, Vol. 2, 2011) p.553-576.
156
See United Nations General Assembly, Human Rights Questions: Implementation of human
rights instruments. Effective Implementation of International Instruments on Human Rights, including
Reporting Obligations under international instruments on human rights Forty-ninth session A/49/537
(19 October 1994) p.9 para.30.
157
The treaty bodies referred by Pellet are: The Human Rights Committee; The Committee Against
Torture; The Committee on the Elimination of Racial Discrimination; The Committee on Economic,
Social and Cultural Rights and the Committee on the Rights of the Child. See Pellet, Alain (Special
Rapporteur), Seventh Report on Reservations to Treaties A/CN.4/526 and Add.1–3 (5 and 9 April, 16
May and 14 June 2002) p.15 para.50.
68
reservations is one example. In a report, where it discussed the issue of reservations
to the Convention, the CEDAW Committee argued that,
Despite the prohibition of such reservations [incompatible reservations], there is no explicit
mechanism, beyond the mechanism of objections by other States parties, in the Vienna
Convention or in the Convention on discrimination against women itself by which a
reservation can be adjudged incompatible with the Convention.158
A similar understanding can be found in the work of the ILC. In the
‘Preliminary conclusions on reservations to normative multilateral treaties, Including
human rights treaties’, from 1997, the ILC recognized that monitoring bodies have
an implicit competence to ‘comment upon and express recommendations’ with
regard to the admissibility of reservations. However, this cannot affect the traditional
modalities of control by the contracting parties.159
When addressing the efficacy of objections in determining the validity of
reservations, the HRC argued in General Comment n.24160 that objections are not
enough to determine the compatibility of a reservation, especially because most
states do not submit objections at all161 and when they exercise their right to object,
158
See Committee on the Elimination of Discrimination Against Women, Reservations to the
Convention of all forms of Discrimination Against Women. Sixteenth session. CEDAW/C/1997/4 (12
November 1996) p.7 para.13.
159
See International Law Commission, Report of the International Law Commission on the work of
its forty-ninth session A/52/10 (12 May – 18 July 1997) In: International Law Commission, Yearbook
of the International Law Commission Vol. 2(2) A/CN.4/SER.A/1997/Add.l (Part II) (1997) p.57
para.5.
160
See Human Rights Committee, International Covenant on Civil and Political Rights. General
Comment adopted by the Human Rights Committee under Article 40, paragraph 4 of the International
Covenant on Civil and Political Rights. General Comment 24 (52)1 CCPR/C/21/Rev.1/Add.6 (11
November 1994) [hereinafter ‘General Comment 24’].
161
Ibid., p.7 para.17.
69
[the objection] often does not specify a legal consequence, or sometimes even indicates that the
objecting party nonetheless does not regard the Covenant as not in effect as between the parties
concerned162
This problematic is often observed in other human rights conventions, such as
CEDAW. This issue can be illustrated with Bangladesh’s reservation to Article 2 of
the Convention.163 Although three states objected to Bangladesh’s reservation,
claiming that the reservation is incompatible with the object and purpose of the
Convention, none of the objecting states requested that CEDAW would not come
into force between them and the reserving state. I will discuss this in more detail in
chapter 4, but it is safe to say that the objections raised against Bangladesh’s
reservation serve more as informative instruments regarding the incompatibility of
the reservation, rather than principal mechanisms to determine invalidity.
The CEDAW Committee, although limited by the competence conferred by the
Convention, has primarily voiced its concerns on incompatible reservations through
the use of general comments and through responses to periodic reports, the latter
aimed at specific reserving states. The Committee has been continuously engaging
state parties in a conversation on the implementation of CEDAW164 and has been
162
Ibid.
163
See United Nations, Convention on the Elimination of all forms of Discrimination Against
Women. Meeting of state parties to the Convention on the Elimination of all forms of Discrimination
Against Women. Ninth Meeting. Declarations, Reservations, Objections and notifications of
withdraw of reservations relating to the Convention on the Elimination of all forms of Discrimination
Against Women. CEDAW/SP/1996/2 (8 February 1996) p.42 and 44; United Nations, Division for the
Advancement of Women. Department of Economic and Social Affairs, Convention on the Elimination
of all forms of discrimination against women: Declarations, Reservations and Objections to CEDAW.
Objections (Unless otherwise indicated, the objections were made upon ratification, accession or
succession.)
Sweden,
17
March
1984.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
164
See the analysis of the working methods and of the CEDAW Committee in Chapters 3 and 4 of
this Thesis.
70
emphatic as to the relevance of particular provisions to the object and purpose of
CEDAW, such as Article 2.165 However, state parties’ explanations for the
reservations often ‘may not be acceptable and do not solve the problem of the
impermissibility’.166
Although the Committee has expressly argued that reservations against Article
2 are incompatible and thus impermissible, to this day reservations entered by
Bangladesh, Egypt and Saudi Arabia (among others) to Article 2 have not been
withdrawn. Without the competence to determine the validity of reservations, the
Committee is limited to discussing the incompatibility without attributing legal
effects to the impermissible reservations.167 With the current regulations, if the object
and purpose of CEDAW is contravened there are no means to rectify the
incompatible reservation other than to urge the reserving state to withdraw it.168
The debate as to which entity – state, court or treaty body – has the ultimate
165
See United Nations, Division for the Advancement of Women, Convention on the Elimination of
all forms of Discrimination Against Women, General recommendations made by the Committee on
the
Elimination
of
Discrimination
against
Women.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016]; United Nations, Division for the Advancement of Women. Convention on the
Elimination of all forms of Discrimination Against Women. General recommendations made by the
Committee on the
Elimination of Discrimination against Women. General Recommendation no. 28.
CEDAW/C/2010/47/GC.2 (19 October 2010) p.10, paras. 41;43.
166
See Fitzmaurice, M, ‘On the Protection of Human Rights, the Rome Statute and Reservations to
Multilateral Treaties’ (2006) 10 Singapore Yearbook of International Law and Contributors 156.
167
For the CEDAW Committee’s comments on Bangladesh’s reservation see Committee on the
Elimination of Discrimination Against Women. Consideration of Reports submitted by states parties
under Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women.
Third and fourth periodic reports of states parties. Bangladesh. CEDAW/C/SR.358 (27 March 1998)
p.3 para.12. For the CEDAW Committee’s observations on Egypt’s reservation see Committee on the
Elimination of Discrimination Against Women. Concluding observations of the Committee on the
Elimination of Discrimination against Women. Forty-fifth session. Egypt CEDAW/C/EGY/CO/7 (5
February 2010) p.3 para.14. For the CEDAW Committee’s observations on Saudi Arabia’s reservation
see Committee on the Elimination of Discrimination Against Women. Concluding observations of the
Committee on the Elimination of Discrimination against Women. Fortieth session. Saudi arabia
CEDAW/ C/SAU/CO/2 (8 April 2008) p.2 para.9. Other state parties that also had their reservations
deemed incompatible by the CEDAW Committee include Morocco, Algeria, Bahrain and Democratic
People’s Republic of Korea.
168
It is important to note, however, that the Committee’s comments regarding the compatibility of
the states parties’ reservations do not affect the relationship between the reserving states and the
remaining members of the Convention, which could only happen with the use of objections.
71
competence to assess reservations to human rights treaties using the Vienna
Convention is a prolonged one. Alston and others have spent many years analysing
the development, strengths and weaknesses of the treaty bodies as part of the human
rights regime.169 Overall, their analyses show that one of the strong criticisms of the
treaty bodies by states is attributed to their positions as independent organs of the UN
system. Meaning that they do not serve as representatives of states parties’ interests.
However, Flood understands that treaty bodies represent the covenant itself and
if state parties want the covenant to be carried out through the action of the treaty
bodies, then treaty bodies would, in fact, represent state parties’ interests to see the
treaty in effect.170 On the other hand, the author also observes that ‘since the expert
members of the treaty monitoring bodies serve in their personal capacity they cannot
in any direct sense represent anyone but themselves.’ 171
Nonetheless, the VCLT flexible approach taken to the right to enter
reservations to international treaties allows states parties to enter reservations that
can easily go to the root of the treaty or render it inoperative in the ratifying state. As
a consequence, reservations are a growing threat to compliance with human rights
treaties, especially when they affect the implementation of provisions regarded as the
object and purpose of the covenants. In response to this threat in General Comment
169
See e.g. Alston, Phillip, ‘Beyond ‘Them’ and ‘Us’: Putting Treaty Body Reform into
Prospective’ In: Alston, Phillip; Crawford, James (eds.), The Future of UN Human Rights Treaty
Monitoring (Cambridge University Press, 2000), p. 501-525; Charlesworth, Hillary, ‘The United
Nation’s Human Rights System’ In: C. Reus-Smit, Chris (ed.), Keynote 05: The Challenge of UN
Reform (RSPAS: ANU, 2005) 11-17; Alston, Phillip, ‘The Historical Origins of the Concept of
‘General Comments’ In: Human Rights Law reprinted In: Steiner, Henry J; Alston, Phillip and
Goodman, Ryan, International Human Rights in Context: Law, Politics, Morals (Oxford University
Press, 3d ed., 2008) 873-876; Engstrom, Viljam, Understanding Powers of International
Organizations: A Study of the Doctrines of Attributed Powers, Implied Powers and Constitutionalism
- With a Special Focus on the Human Rights Committee (Thesis) (ABO Academy University Press,
2009) p.213-273.
170
See Flood, Patrick James, The Effectiveness of UN Human Rights Institutions (Praeger
publishers,1998) p.47.
171
Ibid.
72
n.24 the HRC, asserted ‘It necessarily falls to the Committee to determine whether a
specific reservation is compatible with the object and purpose of the Covenant’.172
In practice, General Comment n.24 redefined the scope of the HRC’s powers.
Although there is no express provision in the International Covenant on Civil and
Political Rights (ICCPR) that provides the Committee with power to determine the
compatibility of reservations, the HRC claimed this power aiming to improve the
performance of its functions and for considering that it was unsuitable for state
parties to make such a determination.173
The reasoning used by the Committee in General Comment n.24 was
challenged by the US, the United Kingdom (UK) and France.174 In the discussion on
the powers of the Committee to determine the compatibility of reservations to the
ICCPR, the absence of attributed powers (powers conferred on the HRC by the
ICCPR itself) was raised in the objections of the United Kingdom and the United
States.
The United Kingdom and United States used similar reasoning and emphasized
that any binding competence could not come into being in face of the absence of law
(the VCLT regime of reservations). Instead, an amendment of the Covenant would
be required.175
In their understanding, in order to provide the HRC with the competence to
determine the compatibility of a reservation, the ICCPR would have to be amended
or another Protocol to the existent Convention would have to be created, since the
172
Supra note 182, p.7 para.18.
173
Ibid.
174
See United Nations General Assembly, Report of the Human Rights Committee. Vol.1. General
Assembly Official Records. Suppl. N.40 A/51/40 (1997) p.104-106.
175
See United Nations General Assembly, Report of the Human Rights Committee on its work on
the Fiftieth session. Vol.1. General Assembly Official Records. Suppl. N.40 A/50/40 (4 February
1996) p.126, 132-133 para. 12(a).
73
treaty body does not have the power to assume this competence by its own decision
as it excludes state consent. In its Second Report, Alain Pellet voiced support for this
view176 and added: ‘This may be seen as an unfortunate situation, but it is a
fundamental characteristic of international law as a whole and, as such, affects the
implementation of any treaty, irrespective of its object.’177
2.3. Concurrent competence to decide on the validity of reservations
The VCLT regime of reservations is based on a bilateral pattern of
relationships between states, which makes it not well suited to effectively manage
impermissible reservations to human rights treaties. In human rights treaties, there
are no immediate advantages to be obtained with the signature of a treaty, as happens
with international treaties that create economic bonds between the signatory states.
Thus, state parties may not feel compelled to object to reservations, since such
reservations will primarily affect the nationals of the reserving state. 178 It is therefore
‘difficult to rely on traditional inter-state mechanisms, such as state responsibility for
the breach of treaties, counter-measures or dispute settlement between states, to
ensure their [human rights obligations] fulfillment.’179
Boyle and Chinkin note that ‘while consensus negotiations aim to produce a set
menu for everyone, human rights negotiators prefer to offer an à la carte selection
176
See Pellet, Alain (Special Rapporteur), Second Report on Reservations to Treaties A/CN.4/477 &
Corr.1 & 2 and Add.1 & Corr.1-4 (10 May and 13 June 1996) p.74-75 para.204-205.
177
Ibid., para.205.
178
For instance, a reservation that limits the rights established in a human rights treaty may directly
affect the interests of other states if such a reservation limits the rights of their nationals on the
territory of the reserving state. Therefore, an objection to an incompatible reservation would serve to
protect the rights of the objecting state’s own nationals.
179
See Keller, Helen; Ulfstein, Geir, ‘Introduction’ In: Keller, Helen; Ulfstein, Geir (ed.) UN
Human rights treaty bodies: Law and Legitimacy (Cambridge University Press, 2012) p.2.
74
from a gourmet menu.’180 In light of the non-reciprocal nature of human rights
treaties and the obligations set forth by these agreements, they have been greatly
affected by reservations and the result has been detrimental to the advancement of a
consistent international human rights system.181 In this context, it is argued that
‘human rights treaties belong to a specific regime to which a different system of
reservations should apply’.182
In this regard Pellet notes, ‘the categorization of a treaty as a human rights (or
disarmament or environmental protection) treaty is not always problem-free; a family
law or civil status convention may contain some provisions which relate to human
rights and others which do not.’183 If only on the basis of non-reciprocity, it may be
argued that other treaties, with similar non-reciprocal nature (e.g. the United Nations
Framework Convention on Climate Change184) may also claim a different regime of
reservations. Therefore, non-reciprocity is not enough for the establishment of a new
regime of reservations.
Although states still decide on the validity of a reservation and its legal effects,
the supervisory system for human rights treaties is not primarily based on inter-state
action, but on a combination of both collective and individual approaches to
180
See Boyle, Alan; Chinkin, Christine, The making of international law (Oxford University Press,
2007) p.159.
181
See chapters 3 and 4 of this thesis for an analysis on the effects of incompatible reservations to
the overall working process of the CEDAW Committee and to the implementation of CEDAW in
Bangladesh.
182
See De Pauw, Marijke, ‘Women’s rights: from bad to worse? Assessing the evolution of
incompatible reservations to the CEDAW Convention’ (2013) 29(77) Utrecht Journal of International
and European Law 54.
183
See Pellet, Alain (Special Rapporteur), Second Report on Reservations to Treaties A/CN.4/477 &
Corr.1 & 2 and Add.1 & Corr.1-4 (10 May and 13 June 1996) p.55 para.81.
184
See United Nations Framework Convention on Climate Change. Opened for signature on 9 May
1992.
Entered
into
force
on
21
March
1994.
Available
at:
<http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conve
ng.pdf> [last accessed 10 February 2016].
75
protection. It is in this scenario where monitoring bodies exercise their work. In light
of this reasoning, it is reasonable to ask about the role and effectiveness of treaty
bodies in monitoring compliance with human rights treaties. If treaty bodies’
findings carried significant legal weight state parties could be more inclined to accept
them. However, states need to first consent to the competence of treaty bodies to
make binding decisions.
Universality of treaties cannot remain a primary aim at the expense of treaty
integrity nor, more importantly, at the expense of the human rights of the individuals
under the jurisdiction of state parties. Thus, common ground must be achieved.
While non-reciprocity may not be enough for the establishment of a new regime of
reservations to human rights treaties, it might be enough to give competence to treaty
monitoring bodies to assess and determine the validity of reservations made to
human rights treaties in agreement with state parties.
Establishing a concurrent competence does not harm state consent since
decisions will be made concurrently between states and treaty bodies, while the
monitoring bodies would enjoy powers that are necessary to the effective exercise of
their functions. The ILC’s Guide to Practice applied similar reasoning185 in guideline
3.2.4.
When a treaty establishes a treaty monitoring body, the competence of that body is without
prejudice to the competence of the contracting States or contracting organizations to assess the
permissibility of reservations to that treaty, or to that of dispute settlement bodies competent to
interpret or apply the treaty. 186
185
Supra note 52, ‘Guide do Practice’.
186
Ibid., p.19.
76
Therefore, according to the ILC’s Guide, treaty monitoring bodies have
concurrent competence to assess the compatibility of a reservation and,
consequently, the object and purpose of a treaty. Perhaps the coexistence of these
two forms of control therefore does not necessarily pose a problem, but rather an
opportunity where states and treaty bodies’ assessments can become a useful and
complementary guide for each other. As Pellet observes,
The control of the compatibility of a reservation with the object and purpose of the treaty by
independent bodies constitutes a guarantee of a more objective assessment of this rather
subjective test. Monitoring constitutes consequently a clear progress in the application of the
Vienna rules and therefore contributes to ensuring the integrity of the treaty in question by
permitting an objective assessment of the compatibility of a given reservation with the object
and purpose of the treaty – whether a human rights treaty or not.187
However, since in international law state parties have to consent to be bound
by any rule, treaty bodies continue to struggle to effect any changes in states’
behaviour, particularly concerning the withdrawal of an incompatible reservation. In
light of this discussion, in chapter 4 I will analyze the CEDAW Committee’s
working methods and its engagement with Bangladesh, in order to illustrate how the
current law on reservations and the CEDAW regime of reservations − including the
rules stated in the Optional Protocol to CEDAW (OP-CEDAW)188 − affect the
Committee’s capacity to effectively protect the integrity of the Convention.
187
See Pellet, Alain, ‘The ILC Guide to Practice on Reservations to Treaties: A general presentation
by the special Rapporteur’ (2012) Working Paper n 15/12 Jean Monet Working Paper Series 30.
188
See Office of the High Commissioner for Human Rights, Optional Protocol to the Convention on
the Elimination of all forms of Discrimination Against Women. Adopted in 6 October 1999. Entered
into force in 22 December 2000. A/RES/54/4 (15 October 1999) [hereinafter ‘Optional Protocol to
CEDAW’].
77
Consequently, notwithstanding the 1951 Advisory Opinion from the ICJ; 18
years of deliberation by the ILC which resulted in the conclusion of the Vienna
Convention;189 extensive literature on reservations,190 and the most recent addition of
the ILC’s Guide to Practice on Reservations, the competence to examine the validity
of a reservation is still under debate. States are the only ones with competence to
determine the legal consequences of an impermissible reservation and thus determine
its validity. As a result, ‘in the event of incompatibility of a reservation with the
object and purpose of a treaty, it is primarily the reserving State that has the
responsibility of taking action.’191
Ultimately, the issue of compatibility with the ‘object and purpose’ of a treaty
remains a question of law, reviewable on the judicial plane by the ICJ. However, the
ICJ has limited jurisdiction and mandate, which creates barriers for a more active
role in human rights cases.192
189
Supra note 7, ‘Vienna Convention’.
190
See eg, Redgwell, Catherine, ‘Universality or integrity? Some reflections on reservations to
general multilateral treaties’ (1993) 64 British Yearbook of international law 245-282; Hilton, Daniel,
‘Default Breakdown: The Vienna Convention on the Law of Treaties inadequate framework on
reservations’ (1994) 27(2) Vanderbilt Journal of Transnational Law 419–451; Lijnzaad, L,
Reservations to UN-Human Rights Treaties: Ratify and Ruin (Martinus Nijhoff, 1995); Buffard,
Isabelle; Zemanek, Karl, ‘The ‘Object and Purpose’ of a Treaty: An Enigma?’ (1998) 3 Austrian
Review of International and European Law 311-343; Baratta, Roberto, ‘Should Invalid Reservations
to human rights treaties be disregarded?’ (2000) 11(2) European Journal of International Law 413425; Linderfalk, Ulf, ‘On the meaning of the ‘Object and purpose’ criterion in the context of the
Vienna Convention on the Law of Treaties’ (2003) 72 Nordic Journal of International Law 429–448;
Ziemele, Ineta, Reservations to human rights treaties and the Vienna Convention Regime: conflict,
harmony or reconciliation (Martinus Nijhoff, 2004); Fon, Vincy, ‘Treaty formation and Reservations’
(2010) 8 SSRN Working Paper Series Social Science Research Network. Available at:
<http://ssrn.com/abstract=1665251> [last accessed 10 February 2016].
191
See United Nations General Assembly, International Law Commission, Forty-ninth session,
Reservations to Treaties: Texts of a draft resolution and draft conclusions adopted by the Drafting
Committee on first Reading A/CN.4/L.540 (4 July 1997) p.3 para.10.
192
Individuals have no right of direct access to the ICJ. Only states can invoke the Court’s ruling.
An exception to this rule refers to the capacity of the UN to present cases before the Court.
Additionally, the ICJ is only allowed to hear contentious cases – and both parties must consent to
jurisdiction. See Statute of the International Court of Justice. Art.36(2). Available at: <http://www.icjcij.org/documents/index.php?p1=4&p2=2&p3=0> [last accessed 10 February 2016]. For more on this
subject see generally, Schwebel, Stephen M, ‘Human rights in the world court’ (1997) 24(5)
Vanderbilt Journal of Transnational Law 945-970; Duxbury, Allison, ‘Saving Lives in the
78
In the next chapter I will examine the CEDAW Articles according to the
definition provided by the ILC’s Guide to the term ‘object and purpose of a treaty’.
This analysis aims to identify the Articles that express the object and purpose of
CEDAW, or, according to guideline 3.1.5.7, the ‘goals’ of CEDAW without which
the reason for its existence would be impaired. Additionally I will discuss how the
remaining provisions can be categorised, taking into account their characteristics and
relevance to the implementation of the object and purpose of the Convention.
Studying and identifying the object and purpose of CEDAW will allow for the
analysis of CEDAW’s regime of reservations and ultimately, of Bangladesh’s
reservation to the Convention.
International Court of Justice The Use of Provisional Measures to Protect Human Rights’ (2000)
31(1) California Western International Law Journal 141-176; Higgins, Rosalyn, ‘Human Rights in
the International Court of Justice’ (2007) 20(4) Leiden Journal of International Law 745-751.
79
3. INTERPRETATION OF CEDAW
CEDAW was adopted in 1979 by the UN General Assembly and entered into
force in 1981.193 The 30 articles of the Convention cover the identification of actions
to end gender discrimination at the national level and highlight the need for proactive
measures for the advancement of women through equal rights in all areas of their
lives.
The Convention provides the basis for achieving gender equality through
ensuring women’s equal access to, and equal opportunities in, political and public
life. To that end, state parties ‘agree to take all appropriate measures, including
legislation and temporary special measures, so that women can enjoy all their human
rights and fundamental freedoms.’194
The Convention stresses the need to eradicate sex discrimination in whatever
form and requires countries to take ‘all appropriate measures’195 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 the basis of
equality with men’ (Article 3).196 Thus, ‘the Convention takes women’s
disadvantaged position into consideration and expects state parties to cater to the
193
See Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).
Opened for signature on December 1979 (Entered into force on September 1981). Available at:
<http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm> [last accessed 10 February
2016].
194
See Convention on the Elimination of all forms of Discrimination Against Women. Text of the
Convention. Available at: <http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm> [last
accessed 10 February 2016].
195
Ibid.
196
Ibid.
80
difference, thus requiring a concept of substantive equality to underpin all initiatives
for women’s advancement’.197
The ‘Women’s Convention’ has attracted a great number of reservations with
the potential to modify or exclude provisions that are key to the implementation of
the Convention. Some of these reservations are regarded by the CEDAW Committee
as critically affecting the ‘object and purpose’ of the Convention.198
The reservation system as codified in Articles 28 and 29 of CEDAW is as
follows,
a) Article 28 states that the Office of the Secretary-General will collect and
circulate reservations to all member states of the Convention. The same
Article establishes that reservations will be invalidated if they are against the
‘object and purpose’ of the Convention.
b) Article 28(3) provides that states can remove reservations upon notification to
the Secretary-General, who will notify the other member states, and
c) Article 29(1) establishes that disputes over the compatibility of reservations
will be settled by arbitration or in proceedings before the ICJ, if necessary.
Three groups stand out among the reservations that might critically affect the
implementation of the object and purpose of CEDAW. They are:
197
See Saksena, Anu, ‘CEDAW: Mandate for substantive equality’ (2007) 14(3) Indian Journal of
Gender Studies 483.
198
See The Convention on the Elimination of all forms of Discrimination Against Women,
CEDAW, UNTS 1249. Opened for signature on December 1979. Entered into force on September
1981. Available at: <http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm> [last
accessed 10 February 2016]. Additionally you can also see Byrnes, Andrew C, ‘The other human
rights Treaty Body: The work of the Committee on the Elimination of Discrimination Against
Women’ (1989) 14(1) Yale Journal of International Law 1-67; Schopp-Schilling, Hanna Beate,
‘Treaty Body Reform: The Case of the Committee on the Convention for the Elimination of all forms
of Discrimination Against Women’ (2007) 7(1) Human Rights Law Review 201-224.
81
a) ‘Broad reservations’, which make no reference to specific provisions that
would be affected by the reservation and thus have the potential to affect the
entire Convention (e.g. Saudi Arabia’s reservation). Saudi Arabia’s
reservation provides, ‘In case of contradiction between any term of the
Convention and the norms of Islamic Law, the Kingdom is not under
obligation to observe the contradictory terms of the Convention’.199
b) ‘Shadowed reservations’, which indicates provisions that might be affected in
case they conflict with either the state party’s legislation or its religion and
cultural practices. In such cases, the possible conflict with the state’s
legislation has not been determined and consequently, there is no certainty as
to whether the state party will implement the provisions affected by the
reservation (e.g. Turkey’s reservation). Turkey’s reservation reads as follows:
Reservations of the Government of the Republic of Turkey with regard to the articles of the
Convention dealing with family relations which are not completely compatible with the
provisions of the Turkish Civil Code, in particular, article 15, paragraphs 2 and 4, and article
16, paragraphs 1 (c), (d), (f) and (g), as well as with respect to article 29, paragraph 1. In
199
Saudi Arabia ratified the Convention on the Elimination of All forms of Discrimination Against
Women on 7 September 2000. However, Saudi Arabia formulated a sweeping reservation with the
ratification. The full text of the reservation is as follows, ‘1. In case of contradiction between any term
of the Convention and the norms of islamic law, the Kingdom is not under obligation to observe the
contradictory terms of the Convention. 2. The Kingdom does not consider itself bound by paragraph 2
of article 9 of the Convention and paragraph 1 of article 29 of the Convention.’ See United Nations,
Division for the Advancement of Women, Department of Economic and Social Affairs, Convention
on the Elimination of all forms of discrimination against women, Declarations, Reservations and
Objections to CEDAW. Available at: <http://www.un.org/womenwatch/daw/cedaw/reservationscountry.htm> [last accessed 10 February 2016]; Committee on the Elimination of Discrimination
Against Women. Consideration of Reports Submitted by state parties under Article 18 of the
Convention on the Elimination of all forms of Discrimination Against Women, Initial and Second
Periodic Reports of State Parties: Saudi Arabia CEDAW/C/SAU/2 (29 March 2007) p.10-48;
Committee on the Elimination of Discrimination Against Women. Concluding observations of the
Committee on the Elimination of Discrimination against Women. Saudi Arabia
CEDAW/C/SAU/CO/2 (08 April 2008). Additionally, see Mtango, Sifa, ‘A State of oppression?
Women’s Rights in Saudi Arabia’ (2004) 1 Asia Pacific Journal on Human Rights and the Law 49–
67.
82
pursuance of article 29, paragraph 2 of the Convention, the Government of the Republic of
Turkey declares that it does not consider itself bound by paragraph 1 of this article.200
[emphasis added]
c) Reservations that specify the provisions affected and the reason for the
conflict with the Convention’s provision(s) are clarified, but such reservations
prevent compliance with the state parties’ obligations to the Treaty. Although
not ‘broad’ or ‘sweeping’ reservations, these reservations may have the effect
of a sweeping reservation for being attached to a core provision of the treaty
(e.g. Bangladesh’s reservation).201
Since its establishment, the CEDAW Committee has been involved in
addressing reservations like the ones described above, which detract from the
integrity of CEDAW. In 1987 the Committee adopted General Recommendation n.
4, which expressed: ‘concern in relation to the significant number of reservations that
appeared to be incompatible with the object and purpose of the Convention’.202
In 1992, in General Recommendation n.20, the Committee requested state
parties to address the permissibility and validity of reservations made to CEDAW,
‘[w]ith a view to strengthening the implementation of all human rights treaties’.203
200
See United Nations, Division for the Advancement of Women, Department of Economic and
Social Affairs, Convention on the Elimination of all forms of Discrimination Against Women,
Declarations,
Reservations
and
Objections
to
CEDAW.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
201
Ibid.
202
See General Recommendations adopted by the Committee on the Elimination of Discrimination
Against Women. Sixth Session (1987). General Recommendation n.4: Reservations. Available at:
<http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_
5826_E.pdf>[last accessed 10 February 2016].
203
See General Recommendations adopted by the Committee on the Elimination of Discrimination
Against Women. Sixth Session (1987). General Recommendation n.20: Reservations to the
83
The Committee appealed to the state parties, the only human rights stakeholders with
the competence to attribute legal effects to reservations, to act upon the reservations
that are undermining the strength and legitimacy of the Convention. However, as
discussed in the previous chapter, state parties rarely will resort to ‘objections’ and it
is even more rare for states to determine the invalidity of a reservation, even when
objecting on the grounds of incompatibility with the object and purpose of a treaty.
General Recommendation n.19 and General Recommendation n.21 commented
on the significance of Articles 9, 15 and 16 to the achievement of gender equality
and non-discrimination. They also commented that a reservation entered against
Articles 5 to 16 has a greater effect on the implementation of CEDAW when Articles
2, 3 and 24 are affected as well.204 Thus, General Recommendations 19 and 21
attempt to address reservations that might represent an obstacle to the successful
implementation of crucial provisions of CEDAW.
General Recommendation n. 28 successfully indicated that any reservation to
Article 2 is subject to impermissibility for being incompatible with the ‘object and
purpose’ of CEDAW. However, General Recommendation n. 28 still failed to
address which provisions represent the ‘object and purpose’ of the Convention.
In sum, General Recommendations nos. 4, 19, 20, 21 and 28 addressed the
significance of reservations to treaty integrity. General Recommendation n. 28
finally
addressed
the
incompatibility
of
reservations.
However,
the
Recommendations failed to determine what the Committee understands as being the
Convention.
Available
at:
<http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_
4730_E.pdf>[last accessed 10 February 2016].
204
See United Nations, Division for the Advancement of Women, Convention on the Elimination of
all forms of Discrimination Against Women, General recommendations made by the Committee on
the
Elimination
of
Discrimination
against
Women.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016].
84
object and purpose of CEDAW or the significance of the Convention’s provisions in
relation to the object and purpose of CEDAW.
Generally speaking, the term ‘object and purpose’ of a treaty refers to the
agreement’s essential aims and motivations. Beyond this basic notion, the literature
has not provided an adequate and detailed definition. Those who have tried argued
that, ‘[i]nstead of reducing the potential of future conflicts [debating the meaning of
‘object and purpose’] […] plants the seed of them.’205
However, the ILC’s Guide to practice on reservations suggests in Guideline
3.1.5.7 a definition for the object and purpose of a treaty, according to which the
object and purpose of CEDAW is represented by the provisions that express the
raison d’être of the Convention.206 This thesis adopts Guideline 3.1.5.7 in the
analysis of the object and purpose of CEDAW.
In light of this understanding, to identify the raison d’être of CEDAW, the
Convention should go through a process of interpretation, after which the meaning
and significance of the Convention’s Articles would be identified. Thus, the
interpretation of CEDAW’s text is a valuable tool in monitoring reservations and to
the analysis of state party’s compliance with the object and purpose of the
Convention.
International Law scholarship has been focusing on the question of how
treaties should be interpreted especially with reference to Article 31 of the VCLT. 207
Thus, text, context, object and purpose, and the preparatory works of a treaty are
205
See Buffard, Isabelle; Zemanek, Karl, ‘The “Object and Purpose” of a Treaty: An Enigma?’
(1998) 3 Austrian Review of International and European Law 311-343.
206
See supra note 52, ‘Guide to Practice’.
207
See e.g. Gardiner, Richard, Treaty Interpretation (Oxford University Press, 2008); Van Damme,
Isabelle, ‘Treaty interpretation by the WTO Appellate Body’ (2010) 21(3) European Journal of
International Law 605-648; Waibel, Michael, ‘Demystifying the art of interpretation’ (2011) 22(2)
European Journal of International Law 571-588.
85
elements to be examined when looking for the meaning of a treaty’s provisions. For
the context of a treaty, Article 31, paragraph 2, also establishes the relevance of the
Preamble, which explains the treaty’s aims and often the philosophy adopted in
drafting the document. Article 31(2), reads as follows, ‘[t]he context for the purpose
of the interpretation of a treaty shall comprise, in addition to the text, including its
preamble and annexes[…]’
According to Gardiner the VCLT rules for treaty interpretation are not a ‘stepby-step formula for producing an irrefutable interpretation’.208 They are not ‘simple
precepts that can be applied to produce a scientifically verifiable result’.209
Therefore, judgement by the interpreter is a critical component in determining how
these elements come into play.
In the interpretation of a treaty’s terms, the context of those terms and the
treaty’s ‘object and purpose’, it is important to consider effectiveness as a
prerequisite of international law. Therefore, the interpreter should provide an
understanding that facilitates coherence in monitoring compliance with international
treaties.
In this chapter I will apply the rules for treaty interpretation, as expressed in
Article 31 of the VCLT, in order to provide an interpretation that facilitates
coherence in monitoring the compliance of state parties to CEDAW provisions. In
the first part of this chapter I will discuss the origins of CEDAW and provide a
context to the Convention. This discussion will be followed by a review of the
history of the creation of CEDAW.
208
See Gardiner, Richard, Treaty Interpretation (Oxford University Press, 2008) p.9.
209
Ibid.
86
I will then analyse the position adopted by the CEDAW Committee on the
subject of reservations to the Convention, aiming to demonstrate the Committee’s
interpretation on the application of the Convention’s provisions. I will later examine
the principles of state obligation, substantive equality and non-discrimination. This
will provide a framework for the analysis of CEDAW’s text and the CEDAW
Committee’s arguments on the object and purpose of the Convention. In light of this
analysis, I draw a distinction between the Articles of CEDAW according to their
relevance to the implementation of the object and purpose of the Convention.
3.1. The origins of CEDAW
Between 1949 and 1959, the Commission on the Status of Women (CSW)210
elaborated the Convention on the Political Rights of Women,211 adopted by the
General Assembly on 20 December 1952; the Convention on the Nationality of
Married Women,212 adopted by the Assembly on 29 January 1957; the Convention
on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages,213 adopted on 7 November 1962 and the Recommendation on Consent to
210
The Commission on the Status of Women (CSW) was established in 1946 as a commission to
protect women’s rights. Their goal was to promote the principle that women and men are equal and to
create proposals to ensure the development of women.
211
See United Nations. Convention on the Political Rights of Women. Adopted in December 1952.
Entered
into
force
in
March
1953.
Available
at:
<http://treaties.un.org/doc/Treaties/1954/07/19540707%2000-40%20AM/Ch_XVI_1p.pdf>
[last
accessed 10 February 2016].
212
See United Nations. Convention on the Nationality of Married Women. Adopted in January
1957.
Entered
into
force
in
August
1958.
Available
at:
<http://treaties.un.org/doc/Treaties/1958/08/19580811%2001-34%20AM/Ch_XVI_2p.pdf>
[last
accessed 10 February 2016].
213
See United Nations. Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages. Opened for signature November 1962. Entered into force in December
1964.
Available
at:
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/MinimumAgeForMarriage.aspx> [last accessed
10 February 2016].
87
Marriage, Minimum Age for Marriage and Registration of Marriages, 214 adopted on
1 November 1965. Each of these treaties protected and promoted the rights of
women in areas in which the Commission considered such rights to be particularly
vulnerable.
However, many in the international community came to see this approach to
women’s equality via general human rights treaties as fragmentary and felt the need
for a treaty that focused exclusively on eliminating discrimination against women.215
As a consequence, on 5 December 1963, the UN General Assembly adopted
Resolution 1921 (XVIII), in which it requested the Economic and Social Council to
invite the CSW to prepare a draft declaration that would combine in a single
instrument ‘international standards articulating the equal rights of men and
women’.216
The CSW prepared a Declaration on the Elimination of Discrimination against
Women, adopted in 1967. 217 However, this Declaration did not bind the signatory
states to any commitment. There were no obligations attached to it. It was a
statement of political intent. Five years later, in 1972, the General Assembly asked
the CSW to consider working on a binding treaty.
214
See United Nations. Recommendation on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages. General Assembly Resolution 2018 (XX) of 1 November 1965. Available
at:
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/RecommendationOnConsentToMarriage.as>
[last accessed 10 February 2016].
215
See UN Women, Convention on the Elimination of all forms of Discrimination Against Women.
Short
history
of
CEDAW
Convention.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/history.htm> [last accessed 10 February 2016]. For
scholarly discussion see Galey, Margaret E, ‘International enforcement of women’s rights’ (1984) 6
Human Rights Quarterly 463-490; Stamatopoulou, Elissavet, ‘Women’s rights and the United
Nations’ In: Peters, Julie; Wolper, Andrea (eds.), Women’s rights, human rights: International
feminist perspectives (Routledge, 1995) 36 – 50.
216
See Ghosh, Ratna, ‘The short history of women’ In: Abdi, Ali A.; Shultz, Lynette(eds.),
Educating for human rights and global citizenship (State University of New York Press, 2008) p.86.
217
See United Nations General Assembly, Declaration on the Elimination of Discrimination Against
Women A/RES/2263 (7 November 1967).
88
In 1975, in Mexico City, the most significant steps in the development of
CEDAW were taken. At that time the First World Conference on Women was held,
(as part of the United Nations’ International Women’s Year) which adopted the First
World Plan for Action that called upon the international community to create an
international treaty on women’s rights. Governments were asked to develop
strategies that would achieve gender equality, eliminate gender discrimination and
integrate women into development and peace-building. It was argued at the First
World Conference on Women that:
even if legislative measures were a prerequisite of real equality, they were not, by themselves,
sufficient to guarantee women genuine and lasting equality. A variety of social and economic
measures and changes had to be taken. For example, women’s numerical participation in the
labour force could be a misleading indicator of equality, as women were employed in the
lowest-paid jobs.218
This idea that equality on paper does not necessarily represent equality in real
life came to be the foundation of the principle of ‘substantive equality’ and a guide to
the development of CEDAW. The process of compiling an overall treaty was
facilitated by the First World Conference on Women and was elevated to one of the
priority areas on the UN agenda. Then, after a few years of drafting and discussions,
CEDAW was adopted by the UN General Assembly on 18 December 1979.219
The Convention includes rights recognized in earlier treaties applying
218
See United Nations, Report of the World Conference of the International Women’s Year
E/CONF.66/34 (19 June – 2 July 1975) p.133 para.71.
219
See The Convention on the Elimination of all forms of Discrimination against Women, CEDAW.
Opened for signature in December 1979. Entered into force in September 1981. Available at:
<http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm> [last accessed 10 February
2016].
89
specifically to women and also incorporates the rights stated in the International
Covenant on Economic, Social and Cultural Rights220 and the International Covenant
on Civil and Political Rights.221 Both treaties already include provisions stating the
international obligation of non-discrimination (Article 2 of each) and prohibiting
discrimination on the basis of sex (Article 3 of each), but they do not address
specifically the obstacles to women’s enjoyment of human rights in equality with
men. This is CEDAW’s aim.
3.2. The CEDAW Committee
Article 17 of CEDAW establishes the CEDAW Committee, which began
operating in 1982. The Convention states that the Committee serves the purpose of
‘[c]onsidering the progress made in the implementation of [CEDAW]’ (Article 17).
The Committee describes its own mandate in similar terms: ‘[t]he Committee’s
mandate is very specific: it watches over the progress for women made in those
countries that are the states parties to the 1979 Convention on the Elimination of All
Forms of Discrimination against Women’ and ‘[m]onitors the implementation of
national measures’ to fulfil states parties’ legal obligations under the Convention.222
The Committee works through a process of ‘constructive dialogue’, which
follows a series of steps. They are as follows: a state party submits a report to the
Committee; the Committee then provides the state with questions to be discussed at
220
See Covenant on Economic, Social and Cultural Rights, CESCR. Opened for signature on
December
1966.
Entered
into
force
in
January
1976.
Available
at:
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> [last accessed 10 February
2016].
221
Ibid.
222
See UN Women. Convention on the Elimination of all forms of Discrimination Against Women.
Committee on the Elimination of Discrimination Against Women. Available at:
<http://www.un.org/womenwatch/daw/cedaw/committee.htm> [last accessed 10 February 2016].
90
hearings in Geneva; the state presents written and oral reports at this hearing; and
after considering these reports, the Committee produces its own report which
identifies areas of progress and areas of concern with the state’s implementation of
the Convention and offers conclusions and recommendations.
The Committee’s conclusions and recommendations are not binding
interpretations of the treaties and are not legally enforceable within the jurisdiction of
state parties.223 This is true even under CEDAW’s Optional Protocol.224 However, in
the absence of specific legislation, individuals who seek to enforce a decision of a
human rights treaty body may attempt to fit their case in generally available national
remedies and procedures.
Human rights advocates can employ the Committee’s recommendations in
national courts to, for example, assist and influence the interpretation of legislation in
accordance with the spirit of CEDAW or provide precedents around the provisions of
CEDAW.225 An example of how a treaty body’s decision can serve as basis for a
case in a national court is observed in Vuolanne v. Finland226 and in Torres v.
Finland.227
223
See generally, Tomuschat, Christian, Human Rights: Between Idealism and Realism (Oxford
University Press, 2003) 812-813; International Law Association, International Human Rights Law
and Practice (Berlim Conference, 2004) pp.15-27; van Alebee, Rosanne; Nollkaemper, André, ‘The
legal status of decisions by human rights treaty bodies in national law’ In: Keller, Hellen; Ulfstein,
Geir (edt.), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press,
2012) 356-413.
224
Supra note 212, ‘Optional Protocol to CEDAW’.
225
For examples of references made by domestic Courts about the relevance and utility of treaty
body findings see Kavanagh v Governor of Mountjoy Prison [2002] IESC 11 (1 March 2002);
Residents of Bon Vista Mansions v Southern Metropolitan Local Council [2002] 6 BCLR 625 (5
September 2001).
226
See Antti Vuolanne v. Finland , Communication No. 265/1987. CCPR/C/35/D/265/1987 (2 May
1989).
227
See Torres v. Finland. Communication No. 291/1988. CCPR/C/38/D/291/1988 (5 April 1990).
91
Although not legally binding, a finding by the HRC was accepted as a basis of
liability in Finnish courts. Vuolanne and Torres sought compensation from Finland
because they were unable to challenge their detention before a court. The HRC
understood that Article 9(4) of the ICCPR had been violated in their case. While
Vuolanne instigated a civil claim, Torres instigated a procedure for administrative
disputes, and was eventually granted compensation by the Supreme Administrative
Court.228 Now, ‘on the basis of this jurisprudence, under Finnish law, a finding of a
violation of the ICCPR in a HRC decision may create an obligation for the state to
pay compensation.’229
Additionally,
although
not
binding,
the
CEDAW
Committee’s
recommendations will form a body of case law that can be used in interpreting the
provisions of CEDAW and clarifying state parties’ obligations, even more so when a
state party’s ratification of the Convention is conditioned on a reservation. In the
next section I discuss the CEDAW Committee’s decisions regarding reservations to
the Convention. The focus is on the Committee’s understanding of the object and
purpose of CEDAW.
3.2.1. The work of the Committee with reservations
A relevant number of the reservations made to CEDAW jeopardize the integral
and effective implementation of substantive provisions of the Convention. These
228
See Heyns, Christof; Viljoen, Frans, The impact of the United Nations Human Rights Treaties on
the Domestic Level (Kluwer Law International 2002) p.288.
229
See Alebeek, Van; Nollkaemper, André, ‘The legal status of decisions by human rights treaty
bodies in national law’ In: Keller, Helen; Ulfstein, Geir (eds.), UN Human Rights Treaty Bodies
(Cambridge University Press, 2012), p.368.
92
reservations render the commitment of state parties to comply with the core
obligations of the treaty more symbolic than genuine.230
In order to elucidate the provisions considered to be crucial for the
implementation of CEDAW, since 1994 the CEDAW Committee has been involved
in interpreting the Convention and addressing which reservations affect its ‘object
and purpose’. The Committee has engaged states parties on the subject of
reservations during the review of state parties’ periodic reports, in the ‘Concluding
Comments’ to the state parties’ reports231 as well as with the production of ‘General
Recommendations’.
A number of the ‘Concluding Comments’ include statements indicating the
Committee’s determination that certain reservations are contrary to the ‘object and
purpose’ of the Convention or concern articles that are ‘central’ to the Convention.232
With the adoption of General Recommendations Nos 19 and 21, the CEDAW
Committee addressed the relevance of Articles 2, 3 and 24.
230
See Cook, Rebecca J, Women International Human Rights Law: The way forward, In: Cook,
Rebecca J (ed), Coomaraswamy, Radhika; Charlesworth, Hilary; Romany, Celina (et al) The Human
Rights of Women: National and International perspectives (University of Pennsylvania Press, 1994)
Chapter 1; Riddle, Jennifer, ‘Making CEDAW Universal: A critique of CEDAW’s reservation
Regime under Article 28 and the effectiveness of the reporting process’ (2002) 34(3) George
Washington International Law Review 605–638; Keller, Linda M, ‘The Convention on the
Elimination of Discrimination Against Women: Evolution and (non)implementation worldwide’
(2004) 27(1) Thomas Jefferson Law Review 35–43; Schopp-Schilling, Hanna Beate, ‘Treaty Body
Reform: The Case of the Committee on the Convention for the Elimination of all forms of
Discrimination Against Women’ (2007) 7(1) Human Rights Law Review 201-224; Arat, Zehra F
Kabasakal, ‘Women’s Rights as Human Rights’ (2008) 45(2-3) UN Chronicle 9–13; Buenguer,
Michael L, ‘Human Rights Conventions and Reservations: An Examination of the Critical Deficit in
the CEDAW’(2014) 20 Buffalo Human Rights Law Review 67-90.
231
See chapter 3 of this thesis for a discussion of the Concluding Comments of the Committee to
Bangladesh’s periodic reports.
232
See Schopp-Schilling, Hanna Beate, ‘Treaty Body Reform: The Case of the Committee on the
Convention for the Elimination of all forms of Discrimination Against Women’ (2007) 7(1) Human
Rights Law Review 201-224.
93
Articles 2 and 3 establish a comprehensive obligation to eliminate discrimination in all its
forms in addition to the specific obligations under articles 5–16.233
The Committee has noted with alarm the number of States parties which have entered
reservations to the whole or part of article 16, especially when a reservation has also been
entered to article 2 … Consistent with articles 2, 3 and 24 in particular, the Committee requires
that all States parties gradually progress to a stage where, by its resolute discouragement of
notions of the inequality of women in the home, each country will withdraw its reservation, in
particular to articles 9, 15 and 16 of the Convention. 234
This position was reaffirmed in the Committee’s statement adopted for the
Fiftieth Anniversary of the Universal Declaration of Human Rights, in 1998, when it
concluded that Article 2 was ‘central to the object and purpose of the Convention’235
and that ‘reservations to Article 16 are incompatible with the Convention.’236
Therefore, ‘[c]onsistent with articles 2, 3 and 24 in particular, the Committee
requires that all States parties gradually progress to a stage where ... each country
will withdraw its reservation, in particular to Articles 9, 15 and 16 of the
Convention’.237
233
See United Nations, Division for the Advancement of Women, Convention on the Elimination of
all forms of Discrimination Against Women, General recommendations made by the Committee on
the Elimination of Discrimination against Women. General recommendation n.19. Available
at:<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016].
234
See United Nations, Division for the Advancement of Women, Convention on the Elimination of
all forms of Discrimination Against Women, General recommendations made by the Committee on
the Elimination of Discrimination against Women. General recommendation n 21. paras. 41; 43.
Available at: <http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last
accessed 10 February 2016].
235
See United Nations General Assembly, Fifty-third session. Report of the Committee on the
Elimination of Discrimination against Women. Eighteenth and Nineteenth Sessions. Supplement n. 38
A/53/38/Rev.1 (14 May 1998) p.49 para.16.
236
Ibid, p.49 para.17.
237
Ibid, p.48 para.12.
94
Article 2 of CEDAW expresses the state parties’ general obligations in
implementing the Convention, while Articles 3 and 24 reaffirm the relevance of the
general obligations stated in Article 2 by requesting the implementation of equality
and non-discrimination in all spheres of life. Article 5 expresses that states must take
all appropriate measures, including legislation, to change social and cultural patterns
of conduct and eliminate prejudices and customary practices based on stereotypes or
ideas about the inferiority of women.
In essence, Articles 6 to 16 describe the areas of a woman’s public and private
life where the goals of ‘substantive equality’ and ‘non-discrimination’ must be
observed, according to the state parties’ obligations established in Article 2, as
follows,
a) Article 6, suppression of all forms of traffic, exploitation and prostitution of
women.
b) Article 7, equality with men in the political and public life of the country.
c) Article 8, government representation.
d) Article 9, equality to acquire, change or retain their nationality.
e) Article 10, equality with men in the field of education.
f) Article 11, equality with men in the field of employment and prevention of
discrimination against women on the grounds of marriage or maternity.
g) Article 12, equal access to health care services, including those related to
family planning.
h) Article 13, equal rights to family benefits, bank loans, mortgages and other
forms of financial credit as well as to participate in recreational activities,
sports and all aspects of cultural life.
i) Article 14, application of the provisions of CEDAW to women in rural
95
areas.
j) Article 15, equality with men before the law.
k) Article 16, elimination of discrimination against women in all matters
relating to marriage and family relations.
Articles 17 to 22 describe the role of the Committee on the Elimination of
Discrimination Against Women. Article 23 stresses that any domestic legislation or
international agreements shall be prioritized over CEDAW if they are more
beneficial in achieving ‘equality’ between men and women. Articles 25 to 30 refer to
the administration of the Convention.
In General Recommendation no. 28, on the Core Obligations of States Parties
under Article 2 of the Convention on the Elimination of all forms of Discrimination
Against Women the CEDAW Committee stressed the relevance of Article 2 to the
implementation of CEDAW and argued that:
Article 2 is crucial to the full implementation of the Convention since it identifies the nature of
the general legal obligations of States parties. The obligations enshrined in article 2 are
inextricably linked with all other substantive provisions of the Convention. 238
…
Article 2 expresses the obligation of States parties to implement the Convention in a general
way. Its substantive requirements provide the framework for the implementation of the specific
obligations identified in paragraphs 2 (a)–(f) and all other substantive articles of the
Convention
238
See United Nations, Division for the Advancement of Women. Convention on the Elimination of
all forms of Discrimination Against Women. General recommendations made by the Committee on
the
Elimination of Discrimination against Women. General Recommendation no. 28.
CEDAW/C/2010/47/GC.2 (19 October 2010) p.3, para.6.
96
…
Article 2 of the Convention should be read in conjunction with articles 3, 4, 5 and 24 and in the
light of the definition of discrimination embedded in article 1. 239
The Committee then added:
The main element of the chapeau of article 2 is the obligation of States parties to pursue a
policy of eliminating discrimination against women. This requirement is an essential and
critical component of a State party’s general legal obligation to implement the Convention. 240
When arguing specifically about reservations to Article 2, the Committee
stressed that it:
considers reservations to article 2 or to subparagraphs of article 2 to be, in principle,
incompatible with the object and purpose of the Convention and thus impermissible in
accordance with article 28, paragraph 2. States parties that have entered reservations to article
2 or to subparagraphs of article 2 should explain the practical effect of those reservations on
the implementation of the Convention and should indicate the steps taken to keep the
reservations under review, with the goal of withdrawing them as soon as possible. 241
The consequence of a reservation’s ‘impermissibility’ is that the Committee
may examine a state party’s implementation of the reserved provision. The state
party could refuse to discuss that provision on the basis of its having entered a
reservation. However, the Committee expects to have a dialogue about progress on
239
Ibid., p.7 para.30.
240
Ibid., p. 6, para.24.
241
See United Nations, Division for the Advancement of Women. Convention on the Elimination of
all forms of Discrimination Against Women. General recommendations made by the Committee on
the Elimination of Discrimination against Women. General Recommendation no. 28.
CEDAW/C/2010/47/GC.2 (19 October 2010) p.10 para. 41.
97
the specific issues reserved and whether and when the reservations could be
withdrawn.242
After careful review of the arguments expressed by the Committee about the
relevance of specific Articles of CEDAW to the implementation of the Convention, I
conclude that when the Committee argued that reservations to Article 16 were
‘incompatible’ with CEDAW, the term ‘incompatible’ was used loosely. In the same
document, where reservations to Article 16 were argued to be ‘incompatible’ with
CEDAW, Article 2 was specifically addressed as ‘central’ to the ‘object and purpose’
of the Convention.
Additionally, as noted above, on two separate occasions the significance of
Article 16 to the implementation of CEDAW was attached to compliance with the
obligations expressed in Article 2. The same Article 2 was mentioned on several
occasions as being essential and critical in ensuring the implementation of all of the
Articles of the Convention and reservations against it were deemed ‘incompatible’
with the ‘object and purpose’ of the Convention.
Furthermore, according to the comments made by the CEDAW Committee,
Articles 5 to 16 are more ‘significant’ to CEDAW when Articles 2, 3 and 24 are also
affected by a reservation, which demonstrates a distinction between those provisions
according to their relevance to the implementation of the ‘object and purpose’ of
CEDAW.
Therefore, I understand that when the CEDAW Committee used the term
‘incompatible’ with reference to reservations entered against Article 16 it meant that
reservations to that provision were not in accordance with the overall intent of the
Convention, which is different from arguing that reservations to Article 16 affected
242
Ibid., p. 10, paras. 41–42.
98
the provisions that express the ‘goals’ of a treaty, without which the reason for the
existence of the treaty would be impaired (‘object and purpose’ of CEDAW).
In order to examine the Committee’s understanding of the ‘object and purpose’
of CEDAW, in the next section I analyse the most relevant characteristics of the
Convention. The focus is on the principles of substantive equality, nondiscrimination and state obligation as instruments to guide the interpretation and
implementation of CEDAW.
3.3. Equality, non-discrimination and state obligation: Guiding the
interpretation and implementation of CEDAW
The 30 articles of CEDAW address the identification of actions to end gender
discrimination at the national level and the need for pro-active measures for the
advancement of women through equal rights in all areas of their lives. The
‘Women’s Convention’ recognizes that ‘despite legal rights being granted to women
in many countries, discrimination persists, and women’s access to legal rights is
curtailed by a denial of their rights to economic and social development.’243
As Cook has noted, ‘CEDAW is an international instrument, universal in
reach, comprehensive in scope and legally binding in character.’244 The Preamble of
the Convention refers to equal rights for men and women, but it also provides that it
is necessary to go beyond the rights and principles expressed in its text, looking
forward to address factors that threaten not just de jure but also de facto inequality.
243
See Economic and Social Commission for Asia and the Pacific, Proceedings of the expert group
meeting on regional implementation and monitoring of the Beijing Platform for Action and the
Outcome of the 23rd Special Session of the General Assembly (2–4 December 2002) p.31.
244
See Cook, Rebecca J, ‘Reservations to the Convention on the Elimination of all forms of
Discrimination Against Women’ (1990) 30(3) Virginia Journal of International Law 643–716.
99
Therefore, CEDAW addresses the elimination of gender discrimination by
results and does not just stop at frameworks of equality that are strong on paper.
States should demonstrate what they have achieved in terms of real change for
women. Article 2 of the Convention stresses the need for the state party to ensure the
practical realisation of rights. In this way CEDAW stresses that equality must inform
the practice of institutions.245
The Articles of CEDAW are structured based on the interrelation of three
principles: 1. the principle of state obligation; 2. the principle of substantive equality
and 3. the principle of non-discrimination. It is explained, that, although ‘each of
them is a distinct element in itself, they are also interdependent. Taken together, they
provide a holistic framework for achieving women’s rights.’246
In fact, as observed in the discussion of the origins of CEDAW, the necessity
for a more effective approach for the achievement of equality and non-discrimination
resulted in the development of CEDAW. The principles of non-discrimination and
equality, as well as the state obligations to implement ‘equality and nondiscrimination’ are crucial to the interpretation of all the provisions of the
Convention. Given their relevance to the Convention, it might prove to be illogical to
try to interpret individual Articles of CEDAW if they are not understood according to
245
See generally, Bacchi, Carol, The politics of affirmative action: women, equality and category
politics (Sage Publications, 1996); Braig, Marianne; Wolte, Sonja, Common ground or mutual
exclusion? Women’s movements in international relations (Zed Books, 2002); Flowers, Petrice R, in
Refugees, Women, and Weapons: International Norm, Adoption and Compliance in Japan (Stanford
University Press, 2009) Chapter 4; Renzeti, Claire M; Curran, Daniel J; Mayer, Shana, Women, men
and society (Pearson, 6th Ed., 2012).
246
See UN Women, UN Women in East and Southeast Asia Region, UN Entity for Gender Equality
and the Empowerment of Women, The principles of CEDAW. Available at: <http://www.unwomeneseasia.org/projects/Cedaw/principlescedaw.html> [last accessed 10 February 2016].
100
an understanding of equality and non-discrimination, as addressed by the
Convention.247
In the next subsection I will examine the principles of state obligation, equality
and non-discrimination through the development of a theoretically grounded
framework. This analysis aims to assist in the interpretation of the CEDAW
Committee’s Comments and Recommendations on the issue of reservations to the
Convention and to determine the specific provision(s) which express the ‘object and
purpose’ of CEDAW.
3.3.1. The principle of state obligation
The obligations to respect, protect and fulfil are known as the three types of
obligations in international human rights law. This tripartite typology was introduced
by Henry Shue248 and further developed by Asbjorn Eide, who acted as the UN’s
247
Relevant theoretical studies on CEDAW which approach the value of the principles of equality,
non discrimination and state obligation include Cook, Rebecca J, ‘State accountability under the
Convention on the Elimination of all forms of Discrimination Against Women’, In: Cook, Rebecca J.
(ed.), Human rights of women: National and International perspectives (University of Pennsylvania
Press, 1994) Chapter 9; Pentikainen, Merja, ‘The prohibition of discrimination and the 1979 UN
Convention on the Elimination of all forms of Discrimination Against Women’. In: Hannikainen,
Lauri; Nykanen, Eeva (ed.) New Trends in Discrimination Law: International Perspectives (Turku
Law School, 1999) 59-82; Braig, Marianne; Wolte, Sonja, Common ground or mutual exclusion?
Women’s movements in international relations (Zed Books, 2002); Cook, Rebecca J; Howard,
Suzannah, ‘Accommodating women’s differences under the women’s antidiscrimination convention’
(2007) 56(4) Emory Law Journal 1039-1091; Facio, Alda; Morgan, Martha I, ‘Equity or equality for
women? Understanding CEDAW’S Principles’ (2009) 60(5) Alabama Law Review 1133-1170; Shetal,
Vohra-Gupta, The Convention on the Elimination of all forms of discrimination against women
(CEDAW): Does it achieve gender equality? Examining Critical Success Factors Through a Feminist
Policy Analysis Framework (University of Houston, 2009); Renzeti, Claire M; Curran, Daniel J;
Mayer, Shana, Women, men and society (Pearson, 2012). Also see Office of the High Commissioner
for Human Rights; Edwards, Alice (external consultant), Displacement, Statelessness, and Questions
of Gender Equality and the Convention on the Elimination of All Forms of Discrimination against
Women (Background paper prepared for a joint United Nations High Commissioner for Refugees and
the UN Committee on the Elimination of Discrimination against Women seminar, held at the United
Nations in New York, 16-17 July 2009) 2009. It might be useful to see IWRAW – International
Women’s Rights Action, IWRAW Asia Pacific Knowledge Portal, Convention on the Elimination of
all forms of Discrimination Against Women 2009. Available at: <http://www.iwrawap.org/convention/doc/cedaw.pdf> [last accessed 10 February 2016].
248
See Shue, Henry, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (Princeton
University Press, 2nd ed, 1996).
101
Special Rapporteur for ‘Food’ during the early 1980s.249
According to the obligations to respect, protect and fulfil states are responsible
for bringing their domestic laws and practice into conformity with their obligations
under international law. This responsibility is fully consistent with the principle of
state sovereignty, since it does not purport to force any state to assume legal
obligations against its will. It simply ‘seeks to ensure that states effectively fulfil
legal obligations they have already assumed under international law’.250
Eide explained that the obligation to ‘respect’ requires states to abstain from
violating a right; the obligation to ‘protect’ requires states to prevent third parties
from violating that right and the obligation to ‘fulfil’ requires the state ‘to take
measures to ensure that the right is enjoyed by those within the state’s
jurisdiction’.251 The obligations to ‘respect’, ‘protect’ and ‘fulfil’ can be a helpful
analytical tool in implementing and uncovering the ‘object and purpose’ of a human
rights treaty because:
[c]ategorising obligations under human rights law into obligations to respect, protect and fulfil
clarifies the nature and scope of the obligations. Dividing human rights obligations in this way
highlights the fact that states have an active role to play in the implementation of human rights,
rather than a mere obligation of non-interference.252
249
See Eide, Asbjorn, UN Special Rapporteur for the Right to Food, The Right to Adequate Food as
a Human Right: Final Report E/CN.4/Sub.2/1987/23 (1987).
250
See An-Na’im, Abdullahi Ahmed, ‘State responsibility under international human rights law to
change religious and customary laws’, In: Cook, Rebecca J. (ed.), Human rights of women: National
and International perspectives (University of Pennsylvania Press, 1994) Chapter 7, p.167.
251
Eide, Asbjorn, UN Special Rapporteur for the Right to Food, The Right to Adequate Food as a
Human Right: Final Report E/CN.4/Sub.2/1987/23 (1987) paras. 67; 69.
252
See Lynch, Philip, Human Rights Law Resource Manual. (HRLC, 2006) Chapter 3, p.6.
Available at: <www.hrlrc.org.au/files/revised-ch-3-implementation-of-human-rights.doc> [last
accessed 10 February 2016].
102
Therefore, understanding how the principle of state obligation is addressed in
CEDAW will assist in finding the ‘object and purpose’ of the Convention and in
examining Bangladesh’s obligations to ‘respect’ and ‘fulfil’ the commitment to
implement CEDAW. It will also assist in discussing the current opportunities for
state parties to CEDAW to ‘protect’ the Convention against ‘incompatible’
reservations (which might result in the violation of gender equality and nondiscrimination in the reserving states).
3.3.1.1. State parties’ obligations under CEDAW: Discussing Article 2 of the
Convention
In essence, Articles 2-4 of CEDAW set out the broad principles of state
obligation under the Convention while Articles 5-16 provide the substance and
context to which these obligations of the state should be applied. As Cook has noted,
‘Article 2 is the general undertaking article that applies with respect to the rights
recognized in Articles 5–16 of the Women’s Convention’.253
Article 24 of CEDAW is an endorsement of the value attached to Article 2, as
it expresses that each state party to CEDAW will ‘undertake all necessary measures,
at the national level, aimed at achieving the full realisation of the rights recognized in
the present Convention’.254 Therefore, Article 24 gives support to the state parties’
obligations described in Article 2.
253
See Cook, Rebecca J, ‘State accountability under the Convention on the Elimination of all forms
of Discrimination Against Women’, In: Cook, Rebecca J. (ed.), Human rights of women: National
and International perspectives (University of Pennsylvania Press, 1994) Chapter 9 p.230.
254
See The Convention on the Elimination of all forms of discrimination against women (CEDAW).
Opened for signature on December 1979 (Entered into force on September 1981). Available at:
<http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/378/07/IMG/NR037807.pdf?OpenElement> [last accessed
10 February 2016].
103
The clause ‘states parties … agree to pursue by all appropriate means and
without delay, a policy of eliminating discrimination against women’, expressed in
the chapeau of Article 2, imposes an obligation of result. The seven paragraphs of
the same article express obligations of means.255 The obligations of means and
results are also categorized as ‘positive’ and ‘negative’ obligations.
Positive obligations require a positive intervention by the state, where the state
interferes to prevent acts of discrimination. Thus, violation of CEDAW will occur
from, for example, passivity on the part of the national authorities after being
informed about conduct of discrimination against women. Negative obligations
require the state to refrain from interfering in a given situation. Violation of CEDAW
will occur, for instance, if the exercise of a right expressed in the Convention is
limited by the state.256 In regard to the state parties obligations under CEDAW:
The State is required to fulfil both positive and negative obligations. It is required to ensure
non-interference in the exercise of the rights in the CEDAW Convention (negative obligation);
at the same time, it is mandated to adopt measures designed to achieve de facto equality as
well as the full development and advancement of women (positive obligation). 257
255
See Cook, Rebecca J, ‘State accountability under the Convention on the Elimination of all forms
of Discrimination Against Women’, In: Cook, Rebecca J. (ed.), Human rights of women: National
and International perspectives (University of Pennsylvania Press, 1994) Chapter 9 p.232; IWRAW –
International Women’s Rights Action Watch Asia Pacific, State Obligations and the CEDAW
Convention:
General
undertakings.
Available
at:
<http://www.iwrawap.org/protocol/obligations.htm> [last accessed 10 February 2016]; World Organization Against
Torture (OMCT). Seeking remedies for torture victims: A handbook on the individual complaints
procedure of the UN Treaty Bodies, Part V; Chiongson, Rea Abada, Do our laws promote gender
equality? A handbook for CEDAW-Based Legal Reviews (UNIFEM- East and Southeast Asia
Regional
Office,
2010).
Available
at:
<http://cedawseasia.org/docs/FINAL_CEDAW_Handbook.pdf> [last accessed 10 February 2016].
256
See generally Boreli, Sylvia, ‘Positive obligations of the states and the protection of human
rights’ (2006) 15(3) Interights Bulletin International Centre for the Legal Protection of Human Rights
101-103.
257
See IWRAW – International Women’s Rights Action Watch Asia Pacific, State Obligations and
the CEDAW Convention: General undertakings. Available at: <http://www.iwrawap.org/protocol/obligations.htm> [last accessed 10 February 2016].
104
However, state parties are not liable under CEDAW for failing to implement
the means prescribed in the Convention. So as long as the state is acting with
diligence to discharge its obligations as requested by the Convention, it will be
considered to have fulfilled its dues, even if substantive equality has not been
achieved.258
Therefore, a state will not be in violation of its obligations under CEDAW if it
fails to ensure compliance by all individuals with the law prescribed by that treaty in
its territory, as states can never guarantee that discrimination against women will
never occur. Adding to this discussion the CEDAW Committee argued that:
[u]nder general international law and specific human rights covenants, States may also be
responsible for private acts if they fail to act with due diligence to prevent violations of rights
or to investigate and punish acts of violence, and for providing compensation. 259
This notion has been accepted to incorporate the acts of private actors by the
258
See Division for the Advancement of Women. Convention on the Elimination of all forms of
Discrimination Against Women. General recommendations made by the Committee on the
Elimination of Discrimination against Women. General Recommendation no. 19, para.9. Available at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016]; Cook, Rebecca J, ‘State accountability under the Convention on the Elimination of
all forms of Discrimination Against Women’, In: Cook, Rebecca J. (ed.), Human rights of women:
National and International perspectives (University of Pennsylvania Press, 1994) Chapter 9; Scheinin,
Martin, ‘Women’s Economic and Social Rights as Human Rights’. In: Hannikainen, Lauri; Nyk, Eeva
(ed.), New Trends in Discrimination Law: International perspective (Publications of Turku Law
School, 1999) p.1-28; Crawford, James, The International Law Commission's Articles on State
Responsibility - Introduction, Text and Commentaries (Cambridge University Press, 2002); Erturk,
Yakin, ‘Due-diligence standard: what does it entail for women’s rights?’, In: Benninger-Budel,
Carin(ed.), Due diligence and its application to protect women from violence (Martinus Nijhoff
Publishers, 2008); Edwards, Alice, Violence against women under international human rights law
(Cambridge University Press, 2011) p.149-178.
259
See Division for the Advancement of Women. Convention on the Elimination of all forms of
Discrimination Against Women. General recommendations made by the Committee on the
Elimination of Discrimination against Women. General Recommendation no. 19, para.9. Available at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016].
105
CEDAW Committee and even in regional human rights Courts.260 However, in the
words of Edwards, ‘it remains vague in many respects … Although private acts can
now be brought within the purview of international human rights law, a close linkage
with the state is still required’.261
The CEDAW Committee examined a case of discrimination perpetrated by
private actors in 2005. Because of the deficient response of the Mexican authorities
to widespread abduction, murder and rape of women in Ciudad Juárez,262 the
Committee understood that the crimes did not constitute isolated or sporadic
incidents. In fact, they had not been eradicated, effectively punished or remedied for
over a decade. The Committee found that there was a grave violation of CEDAW, of
General Recommendation no 19 and of the UN Declaration on the Elimination of
Violence Against Women.263
In order to address the violation of CEDAW, the Committee adopted general
recommendations, aiming to strengthen coordination between the various levels of
government.264 The CEDAW Committee acted within the limits allowed by the
260
See Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras [1988] Ser. No. 1.
(I-ACtHR) Available at: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_04_ing.pdf> [last
accessed 10 February 2016]; European Court of Human Rights, M.C v. Bulgaria, 3927/98 [2004] 40
ECHR 20. Available at: <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-61521> [last
accessed 10 February 2016].
261
The OP-CEDAW entered into force on 22 December 2000. The Protocol contains two
procedures: communication and an inquiry procedure. The first procedure offers the individual or a
group of individuals the possibility to submit a complaint to the CEDAW Committee claiming that a
state party has violated the complainant’s rights under the Convention. It provides a means of seeking
redress for specific violation(s) which result from an act or omission by a state party. For the Optional
Protocol to CEDAW see supra note 176, ‘Optional protocol to CEDAW’. For the comment quoted
see Edwards, Alice, Violence against women under international human rights law (Cambridge
University Press, 2011) p.167-168.
262
See Committee on the Elimination of Discrimination Against Women. Thirty-second session.
Report on Mexico produced by the Committee on the Elimination of Discrimination against Women
under article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico.
CEDAW/C/2005/OP.8/MEXICO (2005).
263
Ibid., p.41.
264
Ibid.
106
‘Women’s Convention’. As expressed previously, although CEDAW addresses the
protection of women’s human rights in both the public and private spheres, when
discriminatory practices are perpetrated by non-state actors, the only way the acts
may be found to be within the scope of international law is if the state party is held
responsible for not acting with ‘due diligence’ in executing the means specified in
Article 2 of the Convention, in order to prevent the discriminatory practices.265
However a doctrine that widens state responsibility for the actions of private
actors or non-state actors has been gaining gradual acceptance in the literature.
According to adherents of this doctrine, the current protection for the acts of nonstate actors fails those who are violated in the private sphere.266 As Roth explains:
implicit in this approach is that a state has some duty to protect those within its territory from
private acts of violence and illicit force. When the state makes little or no effort to stop a
certain form of private violence, it tacitly condones that violence. This complicity transforms
265
See Byrnes, Andrew; Graterol, Maria Hermina, ‘Violence against Women: Private Actors and the
Obligation of Due Diligence’ (2006) 15(3) Interights Bulletin International Centre for the Legal
Protection of Human Rights 156-157; Byrnes, Andrew; Bath, Eleanor, ‘Violence against Women, the
Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination against Women Recent Developments’ (2008) 8(3) Human Rights Law
Review 517-533; Knox, John H, ‘Horizontal Human Rights Law’ (2008) 102(1) The American
Journal of International Law 1-47; Baderin, Mashood A; Ssenyonjo, Manisuli, International Human
Rights Law: Six Decades after the UDHR and beyond (Ashgate Publishing, 2010) p.404-410;
Edwards, Alice, Violence Against Women under International Human Rights Law (Cambridge
University Press, 2011) p.168.
266
See for examples, Engle, Karen, ‘International human rights and feminism: When discourses
meet’ (1992) 13(3) Michigan Journal of International Law 517-610; Romany, C, ‘State
Responsibility goes private: A feminist Critique of the Public/Private Distinction in International
Human Rights Law, In: Cook, R (ed.), Human Rights of Women: National and International
Perspectives (University of Pennsylvania Press: 1994) Chapter 4; Charlesworth, H; Chinkin, C, The
Boundaries of International Law: a feminist analysis (Manchester University Press, 2000); Joseph,
Sarah, ‘An Overview of Human Rights Accountability of Multinational Enterprises’, In Kamminga,
Menno and Zia-Zarifi, Sam (eds), Liability of Multinational Corporations under International Law
(Kluwer Law International, 2000); Lacey, N, ‘Feminist Legal Theory and the rights of women’ In:
Knop, Karen (ed.), Gender and Human Rights (Oxford University Press, 2004) Chapter 2; Marshal,
Jill, ‘Positive Obligations and Gender-Based Violence: Judicial Developments’ (2008)10
International Community Law Review 143-169.
107
what would otherwise be wholly private conduct into a constructive act of the state
267
Under this doctrine of state responsibility in international law, a state will be in
violation of its obligations under international human rights law if it fails to ensure
compliance with that law in its territory by, for instance, failing to prevent violations,
control and regulate private actors, investigate, prosecute, punish the violators and
provide effective remedies to victims. This understanding is applied to the
examination of Bangladesh’s compliance with CEDAW in chapters 4 and 5.
3.3.2. The principle of equality
CEDAW provides standards based on the notion that ‘equal treatment’ is not
about treating all people the same, but about treating people differently in order to
address their different needs. As a consequence, it is no longer sufficient for the state
to provide equal access to services. Instead, the state needs to ensure these services
adequately meet the different needs of all individuals and groups of people under its
jurisdiction.268
267
See Roth, Kenneth, ‘Domestic Violence as an international human rights issue’, In: Cook,
Rebecca J. (ed.), Human rights of women: National and International perspectives (University of
Pennsylvania Press, 1994) Chapter 13 p.239.
268
See generally, Brodsky, Gwen; Day, Shelagh, ‘Beyond the social and economic rights debate:
substantive equality speaks to poverty’ (2002) 14(1) Canadian journal of Women and Law 185-220;
Braig, Marianne; Wolte, Sonja, Common ground or mutual exclusion? Women’s movements in
international relations (Zed Books, 2002); Saksena, Anu, ‘CEDAW: Mandate for substantive
equality’ (2007) 14(3) Indian Journal of Gender Studies 481-498; Kilgour, Maureen A, ‘The UN
Global Compact and the substantive equality for women’ (2007) 28(4) Third World Quarterly 751773; Flowers, Petrice R, In: Refugees, Women, and Weapons: International Norm, Adoption and
Compliance in Japan (Stanford University Press, 2009) Chapter 4; Facio, Alda; Morgan, Martha I,
‘Equity or equality for women? Understanding CEDAW’S Principles’ (2009) 60(5) Alabama Law
Review 1133-1170; Renzeti, Claire M; Curran, Daniel J; Mayer, Shana, Women, men and society
(Pearson, 6th Ed., 2012).
108
Discussing the ‘Miller-Wohl’ controversy,269 Krieger and Cooney argue in
favour of ‘affirmative’ policies put into practice by the states’ governments. They
understand that, in some situations, equal treatment actually results in inequality for
women. They argue that, ‘[i]n these situations, positive action to change the
institutions in which women work is essential to achieving women’s equality because
those institutions are, for the most part, designed with a male prototype in mind’.270
Formal equality, often manifested in a gender-neutral framing, policy or law
does not consider women’s disadvantaged positions in society. Thus, formal equality
is not sufficient to ensure that women enjoy the same rights as men. For example,
laws that mandate a minimum wage may raise general wage levels, but they do not
fully address the pay gap between men and women, which leads to women being
paid less for equal work. Equality ‘on paper’ does not necessarily lead to equal
results.
In order to address the imbalance that often exists between reality and practice,
CEDAW requires that the differences and inequalities between men and women are
taken into account through laws and policies created to transform the unequal power
relations between women and men. For this to happen, not only should there be equal
opportunities for women but there should be equal access to the opportunities as
well.
269
In her first year of work Tamara Buley got pregnant and missed a few days work at Miller-Wohl
Co. – retailer of young women’s clothes based in Secaucus, New Jersey, USA – due to morning
sickness. Following the company policy of denying any sick leave to employees during their first
year, Buley was fired. Buley filed a successful discrimination complaint with the Montana Human
Rights Commission, which considered that the company had violated the Montana Maternity Leave
Act (MMLA) by firing Ms Buley instead of granting her unpaid disability leave. Miller-Wohl
challenged the decision in federal court, arguing that equality is synonymous with equal treatment and
that any law, such as the MMLA, which deviates from the equal treatment principle, is dangerous for
women. See Miller-Wohl Co. v. Comisssioner of Labour & Indus, State of Montana, 515 F. Supp.
1264, 1265 (D. Mont. 1981).
270
See Krieger, Linda J; Cooney, Patricia N, ‘The Miller-Wohl Controversy: Equal Treatment,
Positive Action and the Meaning of Women's Equality’, In: Weisberg, D Kelly (ed) Feminist Legal
Theory: Foundations (Temple University Press, 1993) p.157.
109
CEDAW promotes the model of substantive equality and consolidates three
approaches to it: equality of opportunity (Articles 1 and 2), equal access to
opportunity (Articles 2 and 3) and equality of results (chapeau of Article 2).271 The
concept of substantive equality as applied by the Convention is seen as ‘directed at
eliminating
individual,
institutional
and
systemic
discrimination
against
disadvantaged groups which effectively undermines their full and equal social,
economic, political, and cultural participation in society’.272
In the next sub-section, I examine how CEDAW addresses the model of
substantive equality for women through equal opportunities, equal access to
opportunities and equal results. This analysis aims to identify the provisions that are
attached to the principle of ‘substantive equality’, hence providing a framework for
the interpretation of the CEDAW Committee’s Comments and Recommendations on
reservations to the Convention and ultimately assist in the interpretation of CEDAW.
3.3.2.1. Equality of opportunity, equality of access to opportunity and equality
of results
The Convention’s approach to equality of opportunity and equality of access to
opportunity considers that all women, regardless of their race, ethnicity and other
features have the right to equality of opportunities with men of access to the
271
See Brodsky, Gwen; Day, Shelagh, ‘Beyond the social and economic rights debate: substantive
equality speaks to poverty’ (2002) 14(1) Canadian Journal of Women and Law 185-220; Braig,
Marianne; Wolte, Sonja, Common ground or mutual exclusion? Women’s movements in international
relations (Zed Books, 2002); Saksena, Anu, ‘CEDAW: Mandate for substantive equality’ (2007)
14(3) Indian Journal of Gender Studies 481-498.
272
See Kapur, Ratna, Subversive sites: feminist engagements with law in India (Sage Publications,
1996) p.176.
110
resources of a country or community. This has to be secured by a framework of laws
and policies, and supported by institutions and mechanisms for their operation.273
In addition, the principle of ‘substantive equality’ emphasises that the measure
of a state’s action to secure the human rights of women and men needs to ensure
‘equality of results’ (Article 2, paragraph 1 of CEDAW).274 Article 2 of CEDAW
enjoins states parties to ensure the practical realisation of rights and states that ‘the
indicators of equality are not in policies, law or institutions that have been created to
give opportunities to women, but in what these laws and policies have achieved.’275
This is the premise of the principle of equality of results.
It should be observed though, that these results may be quantitative and/or
qualitative in nature; that is, ‘women enjoying their rights in the various fields in
fairly equal numbers with men, enjoying the same income levels etc. and/or women
enjoying freedom from violence, equality in decision-making and political
273
See Kilgour, Maureen A, ‘The UN Global Compact and the substantive equality for women’
(2007) 28(4) Third World Quarterly 751-773; Flowers, Petrice R, in Refugees, Women, and Weapons:
International Norm, Adoption and Compliance in Japan (Stanford University Press, 2009) Chapter 4;
Facio, Alda; Morgan, Martha I, ‘Equity or equality for women? Understanding CEDAW’S Principles’
(2009) 60(5) Alabama Law Review 1133-1170; Renzeti, Claire M; Curran, Daniel J; Mayer, Shana,
Women, men and society (Pearson, 6th Ed., 2012); United Nations Entity for Gender equality and
empowerment of women. 20011-2012 Progress of the World’s Women: In pursuit of justice. UN
Women. Available at: <http://progress.unwomen.org/pdfs/EN-Report-Progress.pdf> [last accessed 10
February 2016].
274
See generally, Brodsky, Gwen; Day, Shelagh, ‘Beyond the social and economic rights debate:
substantive equality speaks to poverty’ (2002) 14(1) Canadian journal of Women and Law 185-220;
Braig, Marianne; Wolte, Sonja, Common ground or mutual exclusion? Women’s movements in
international relations (Zed Books, 2002); Saksena, Anu, ‘CEDAW: Mandate for substantive
equality’ (2007) 14(3) Indian Journal of Gender Studies 481-498; Kilgour, Maureen A, ‘The UN
Global Compact and the substantive equality for women’ (2007) 28(4) Third World Quarterly 751773; Flowers, Petrice R, in Refugees, Women, and Weapons: International Norm, Adoption and
Compliance in Japan (Stanford University Press, 2009) Chapter 4; Facio, Alda; Morgan, Martha I,
‘Equity or equality for women? Understanding CEDAW’S Principles’ (2009) 60(5) Alabama Law
Review 1133-1170; Renzeti, Claire M; Curran, Daniel J; Mayer, Shana, Women, men and society
(Pearson, 6th Ed., 2012); United Nations Entity for Gender equality and empowerment of women.
20011-2012 Progress of the World’s Women: In pursuit of justice. UN Women. Available at:
<http://progress.unwomen.org/pdfs/EN-Report-Progress.pdf> [last accessed 10 February 2016].
275
See Facio, Alda; Morgan, Martha I, ‘Equity or equality for women? Understanding CEDAW’S
Principles’ (2009) 60(5) Alabama Law Review p.147.
111
influence.’276 As also noted by the CEDAW Committee, ‘[p]ursuit of the goal of
substantive equality also calls for an effective strategy aimed at overcoming
underrepresentation of women and a redistribution of resources and power between
men and women’.277
Finally, the primary provisions of CEDAW that establish the definition
(Articles 1-3) and implications (Articles 4-16) of the principle of ‘substantive
equality’ are:
a) Article 1 – Discrimination: defined as any act that has the ‘effect or
purpose’ of impairing or nullifying women’s enjoyment and exercise of
their rights in equality with men;
b) Article 2- States must pursue a policy of eliminating gender discrimination
by all appropriate means, in public and private spheres. This includes the
practice of the state or any private ‘person, organization or enterprise’;
c) Article 3 - States shall take all appropriate measures, including legislation,
to ensure women’s full development and advancement with equal
enjoyment of their rights;
d) Article 4 - ‘Temporary special measures’ should not be considered a form
of discrimination, when their ultimate goal is to achieve de facto gender
equality;
e) Article 5-16 - States must take all appropriate measures, in political, private
and public fields, to change social and cultural patterns based on
276
See Division for the Advancement of Women, Convention on the Elimination of all forms of
Discrimination Against Women. General recommendations made by the Committee on the
Elimination of Discrimination against Women. General Recommendation no. 25, on article 4,
paragraph 1, of the Convention on the Elimination of all forms of Discrimination Against Women, on
temporary
special
measures,
para.9.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025
%20(English).pdf> [last accessed 10 February 2016].
277
Ibid.
112
stereotypes or ideas about the inferiority of women. This affects the right to
vote, nationality, access to education and work, etc.
As seen above, the goal of CEDAW is to address all the situations in which
discrimination against women hampers equal and non-discriminatory recognition,
enjoyment or exercise by women of human rights and fundamental freedoms. The
state parties to the Convention undertake an obligation to ensure the practical
realisation of this principle by, among other means, incorporating the principle of
equality of men and women into legislation, as well as adopting other measures to
prevent and prohibit all forms of discrimination against women, in public and private
spheres. (Article 2)
The principles of equality and non-discrimination do not mean that all
distinctions between people are illegal under international law. Differentiations are
legitimate and lawful provided that they pursue a legitimate aim, such as affirmative
action278 to deal with ‘factual inequalities, and are reasonable in the light of their
legitimate aim.’279 These are considered ‘special measures’, as mentioned in Article
278
In general, ‘affirmative action’ is a term used to identify policies or programs aimed at levelling
the playing field for minorities in the pursuit of jobs, admission to colleges or universities or even
government contracts. However, ‘affirmative action’ policies are implemented differently in different
countries. For instance, in the United States affirmative action tends to refer to ‘quota systems’.
Whereas in Australia, it is commonly observed in widening the opportunities for the widest possible
pool of applicants to be considered for any position, and then appointments are made on merit. For
more information on ‘affirmative action’ see Gamson, William A; Modigliani, Andre, ‘The changing
culture of affirmative action’, In: Burtein, Paul (ed.), Equal employment opportunity: Labour market
discrimination and public policy (Aldine de Gruyter, 1994) Chapter 25; Bacchi, Carol, The politics of
affirmative action: women, equality and category politics (Sage Publications, 1996); Sheridan,
Allison, ‘Patterns in the policies: affirmative action in Australia’ (1998) 13(7) Women In Management
Review 243–252.
279
See Office of the High Commissioner for Human Rights, Human Rights in the Administration of
Justice: A manual on human rights for Judges, Prosecutors and Lawyers (United Nations, 2003)
p.655.
113
4 of CEDAW.280
Sometimes states undertake affirmative action in order to address specific
conditions that are causing or maintaining discriminatory practices towards women.
For example, if the policies for women to have access to undergraduate courses at
universities are found to discriminate against women, impair their enjoyment of
equal rights to that of men to access education, the state should take specific action to
correct those policies. As explained by the Human Rights Committee, ‘as long as
such action is needed to correct discrimination in fact, it is a case of legitimate
differentiation under the Covenant’.281
Therefore, elimination of discrimination against women through special
measures, such as ‘affirmative action’, may be a necessary step in the removal of
obstacles preventing women from enjoying or exercising human rights and
fundamental freedoms on a basis of equality with men.282 As emphasized by the
Human Rights Committee, ‘non-discrimination, together with equality before the law
and equal protection of the law without any discrimination, constitute a basic and
general principle relating to the protection of human rights’.283
280
See Office of the High Commissioner for Human Rights, ‘The right to equality and nondiscrimination in the administration of justice’ In: Office of the High Commissioner for Human
Rights. Professional Training Series no.7. Training Manual on Human Rights Monitoring (United
Nations, 2001) Chapter 13.
281
See United Nations, International Human Rights Instruments. Compilation of the General
Comments and General Recommendations adopted by human rights treaty bodies. General Comment
No. 18. HRI/GEN/1/Rev.7 (12 May 2004) pp.135-136 para.8.
282
See Pentikainen, Merja, ‘The prohibition of discrimination and the 1979 UN Convention on the
Elimination of all forms of Discrimination Against Women’, In: Hannikainen, Lauri; Nykanen, Eeva
(ed.) New Trends in Discrimination Law: International Perspectives (Turku Law School, 1999) p. 5982; Bayefsky, Anne F, ‘The principle of equality or non-discrimination in international law’ (1990)
11(1/2) Human Rights Law Quarterly 5; Andreevska, Elena; Aziri, Etem, ‘Principle of equality in
international law: The right to equality’ (2009) 16(2) Lex et Scientia 228-238.
283
See United Nations, International Human Rights Instruments. Compilation of the General
Comments and General Recommendations adopted by human rights treaty bodies. General Comment
No. 18 HRI/GEN/1/Rev.7 (12 May 2004) p.134, para.1.
114
3.3.3. The principle of non-discrimination
CEDAW describes, in Article 1, discrimination against women as:
Any act of distinction, exclusion or restriction which has the intent/purpose or effect of
nullifying, impairing or denying the enjoyment of rights 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.
The definition of gender discrimination, as stated in Article 1, helps us greatly
in understanding that discrimination can occur in the recognition, in the enjoyment,
or in the exercise of a right.284 Discriminatory acts may occur in families,
workplaces, and other sectors of society. Discrimination may happen anytime,
anywhere.
For instance, players in the private housing sector (such as private landlords
and credit providers) may directly or indirectly deny access to housing or mortgages
on the basis of gender while some families may refuse to send girls to school solely
because of their sex. Therefore, state parties must adopt measures to ensure that
individuals and entities in the private sphere do not discriminate on any prohibited
grounds.
It is implied in this understanding that there must be some mechanism through
which a woman can denounce the violation of her right and obtain redress for it.
Thus, it is part of the state parties’ obligations to CEDAW to provide the conditions
so that women can enjoy the rights recognized in the Convention and to create the
mechanisms for denouncing their violation and obtaining redress.
284
See Facio, Alda; Morgan, Martha I, ‘Equity or equality for women? Understanding CEDAW’S
Principles’ (2009) 60(5) Alabama Law Review 1143.
115
According to Article 1 of CEDAW:
a) Discrimination can exist as distinctions, exclusions, or restrictions.
b) Discriminatory acts include those that have either the ‘purpose’ or the ‘effect’
of violating the human rights of women.
c) Discriminatory acts should be eliminated in both private and public spheres
of a woman’s life.
Laws and policies that are clearly discriminatory as well as laws and policies
that are sex-neutral but result in discriminatory conduct against women contravene
the definition of discrimination as stated in Article 1 of CEDAW. To illustrate this
argument I discuss two different cases: first, the practice of ‘virginity testing’ in
women over 16 years old in South Africa285 and second, sex discrimination in the
workplace. As explained by the CEDAW Committee,
[g]ender-neutral laws, policies and programs unintentionally may perpetuate the consequences
of past discrimination. They may be inadvertently modeled on male lifestyles and thus fail to
take into account aspects of women’s life experiences which may differ from those of men. 286
In South Africa the Children’s Act of 2005287 regulates the practice of virginity
285
Virginity testers, usually older women, conduct vaginal exams to determine if a female’s hymen
is intact and assess other physical features held to be indicative of the ‘innocence’ and ‘purity’ of the
individual tested such as her muscle tone and the firmness of her breasts. See George, Erika R,
‘Virginity Testing and South Africa’s HIV/AIDS Crisis: Beyond Rights Universalism and Cultural
Relativism Toward Health Capabilities’ (2008) 96(6) California Law Review 1447-1518.
286
See Division for the Advancement of Women, Convention on the Elimination of all forms of
Discrimination Against Women. General recommendations made by the Committee on the
Elimination of Discrimination Against Women. General Recommendation no. 25, on article 4,
paragraph 1, of the Convention on the Elimination of all forms of Discrimination Against Women, on
temporary
special
measures.
Note
1,
p.
9.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025
%20(English).pdf> [last accessed 10 February 2016].
116
testing. According to the law, virginity testing for males and females older than 16
years old is allowed if the children have given their ‘consent’. However, Article
12(5), b of the Children’s Act establishes that the ‘consent’ should be given after the
child has been ‘counselled’. Article 12, paragraphs 4 and 5 state:
(4) Virginity testing of children under the age of 16 is prohibited.
(5) Virginity testing of children older than 16 may only be performed(a) if the child has given consent to the testing in the prescribed manner;
(b) after proper counseling of the child; and
(c) in the manner prescribed.
Although the Children’s Act allows virginity testing only in boys and girls over
16 years old, girls ranging from the ages of ten to 18 years are in practice subjected
to this testing. Rural areas and townships, such as Kwa-Zulu Natal and Eastern Cape,
have a growing prevalence of this practice or it is already widespread.288
Opponents of testing maintain that, there are no means to differentiate
‘counselling’ from ‘coercion’. They argue that it is difficult to determine whether
girls would opt out of testing if there was no strong parental persuasion or social
sanction.289
The justification for virginity testing is to minimise HIV/AIDS infection and to
287
See Children’s Act 38 of 2005. Assented to 8 June 2006. As amended by Children’s Act 41 of
2007.
Available
at:
<http://www.capetown.gov.za/en/CityHealth/Documentation/Documents/Act_Childrens_Act_38_of_
2005_%28as_amended_march_2010%29.pdf> [last accessed 10 February 2016].
288
See Centre for the Study of Violence and Reconciliation: People Opposing Women Abuse;
Western Cape Network on Violence Against Women, South African Shadow Report on the
implementation of the Convention on the Elimination of Discrimination Against Women, CEDAW’s
Committee 48th Session (04 February 2011).
289
See Commission on Gender Equality, Consultative Conference on Virginity Testing, Report 5
(2000) p.27.
117
avoid teenage pregnancy. While one can observe a rationale behind testing as a
strategy for managing the pandemic of HIV/AIDS, these tests also infringe the
human rights of girls and perpetuate female oppression through strict monitoring and
control of female sexuality.
Erika George explains that virginity testing has become one of the country’s
most celebrated and politically charged public health initiatives in response to the
pandemic of AIDS. Hugo argues that in South Africa, where it is estimated that
approximately 5.5 million of the country’s 48 million people are infected with
HIV/AIDS, communities look to the past for solutions to the crises.290
One of the strongest arguments supporting virginity testing today is that it tries
to address the spread of HIV/AIDS. According to popular belief the South African
Government has failed to do so and this only fuels the arguments in support of
virginity testing. Additionally, ‘Testers believe that by encouraging girls to guard
their virginity, they will curb unwanted pregnancy and HIV infection rates.’291
Leclerc-Madlala also suggests that some girls appreciate the social support and
solidarity that develops among participants. She notes that with this added emotional
support they are more likely to remain sexually inactive and withstand pressure from
boys to engage in sex.292
However, members of the South African Human Rights Commission on
Gender Equality have condemned the practice of virginity testing. They are
290
See Hugo, Nicola, ‘Virginity testing and HIV/AIDS: Solution or human rights violation?’ (2012)
Consultancy
Africa
Intelligence
(CAI).
Available
at:
<http://www.consultancyafrica.com/index.php?option=com_content&view=article&id=1066:virginity
-testing-and-hivaids-solution-or-human-rights-violation-&catid=59:gender-issues-discussionpapers&Itemid=267> [last accessed 10 February 2016].
291
See George, Erika R, ‘Virginity Testing and South Africa’s HIV/AIDS Crisis: Beyond Rights
Universalism and Cultural Relativism Toward Health Capabilities’ (2008) 96(6) California Law
Review 1447-1518.
292
See LeClerc-Madlala, Suzanne, ‘Virginity Testing: Managing Sexuality in a Maturing HIV/AIDS
Epidemic’ (2001) 15(4) Medical Anthropology Quarterly 533-552.
118
concerned that virginity testing places the expectation of subservience on young girls
in regard to their sexuality, which is contradictory to dominant HIV/AIDS campaigns
based on ‘empowering’ women to protect themselves.293 They also argue that
although it is important for the South African people to protect their cultural
practices,
[c]ulture however is not static, but dynamic. We therefore need to question many of our
cultural practices and interrogate in a constructive manner the extent to which they conform
with the constitution ... The founding values of our constitution include amongst others, human
dignity, the achievement of equality and non-sexism. The Commission is not convinced that
virginity testing, as it is currently practiced, promotes these values. 294
Taking into account the human rights violations that result from the practice of
virginity testing, the CEDAW Committee urged South Africa to amend the
Children’s Act. The Committee expected future changes to:
prohibit virginity tests for the child girl irrespective of their age and to design and implement
effective education campaigns to combat traditional and family pressures on girls and women
in favour of this practice in order to comply with its international obligations. 295
293
See South African Human Rights Commission, Harmful Social and Cultural Practices –
Vitginity Testing? Children’s Bill [B70 –B2003] Submission to the Select Committee on Social
Services
(NCOP).
Available
at:
<http://www.sahrc.org.za/home/21/files/30%20SAHRC%20Submission%20on%20Childrens%20Bill
%20-%20Virginity%20Testing%20%28Parl.%29%20Oct%202005.pdf> [last accessed 10 February
2016].
294
See South African Human Rights Commission, Harmful Social and Cultural Practices –
Vitginity Testing? Children’s Bill [B70 –B2003] Submission to the Select Committee on Social
Services
(NCOP).
Available
at:
<http://www.sahrc.org.za/home/21/files/30%20SAHRC%20Submission%20on%20Childrens%20Bill
%20-%20Virginity%20Testing%20%28Parl.%29%20Oct%202005.pdf> [last accessed 10 February
2016] p.6.
295
See Convention on the Elimination of all forms of Discrimination Against Women. Committee
on the Elimination of Discrimination against Women, 48th session. Concluding observations of the
Committee on the Elimination of Discrimination against Women: Africa CEDAW/C/ZAF/CO/4 (4
119
Therefore, although the Children’s Act 38 of 2005 allows virginity testing, this
practice is still considered discriminatory (as it should be the legislation that
regulates it). Boys are far less commonly tested296 and it inflicts harm on the
principle of equality, recognised by both the South African Constitution297 and
CEDAW, to which South Africa is a signatory state.
A distinct example of sex discrimination that results from distinctions,
exclusions, or restrictions is commonly found hidden in gender neutral policies in the
workplace. Hidden under the idea of work policies or practices, certain differential
treatment may be held as forms of discrimination against women, such as: promotion
and bonus criteria for men over women with the imposition of requirements for late
night work or travel, which discriminate against workers with family responsibilities.
The Hopkins v. Price Waterhouse case illustrates why the practices described
above may be found to be discriminatory against women. The plaintiff was Ann
Hopkins. In 1982, Price Waterhouse was considering 88 candidates for partnerships.
Hopkins was the only woman candidate.
Partners were asked to make one of three recommendations (admission, denial,
or hold for further consideration) and comment on candidates’ appraisal. The
recommendations for Hopkins were as follows: 13 admissions, 8 denials, 3 holds,
and 8 no opinions. Additionally, several partners commented on Hopkins’ poor
interpersonal skills. The final decision was to hold the nomination for consideration
in the next year.
February 2011) p.5 para. 23.
296
See Behrens, Kevin G, ‘Virginity testing in South Africa: a cultural concession taken too
far?’(2014) 33(2) South African Journal of Philosophy 177-187.
297
See South African Government Information. Constitution of the Republic of South Africa, 1996.
Available at: <http://www.info.gov.za/documents/constitution/1996/index.htm> [last accessed 10
February 2016].
120
In an attempt to improve her chances for the following year, Hopkins was
advised by her male supervisor to walk, talk and dress in a more feminine manner.
The supervisor also suggested that she wear make-up, style her hair, and wear
jewellery. Hopkins resigned shortly thereafter, and filed a suit alleging sex
discrimination.298
The question before the Court was whether the interpersonal skills rationale
constituted a legitimate non-discriminatory basis on which to deny her partnership,
or was merely a pretext to disguise sex discrimination. The Court required Price
Waterhouse to show by clear and convincing evidence that the denial of partnership
would have occurred without the discrimination she had demonstrated. Price
Waterhouse failed to meet this burden.
The cases discussed above are just two examples of discriminatory practices
perpetuated by law, policies, programs, general practices or predominant cultural
attitudes in either the public or private sector, which create relative disadvantages for
women and privileges for men. However, the definition of ‘discrimination’ stated in
Article 1 of CEDAW also helps us to identify the weaknesses of formal or so called
‘neutral’ laws and policies. According to the Women’s Convention, discriminatory
actions include those that intentionally discriminate, also known as ‘direct
discrimination’, such as laws that provide that married women cannot freely dispose
of their property, as well as Acts that, without having the intent to do so, result in
discrimination against women, namely ‘indirect discrimination’.
In the understanding of International Women’s Rights Action Watch
298
See Supreme Court of the United States. Price Waterhouse v. Hopkins. 490 U.S 228. Argued: 31
October 1988. Decided: 1 May 1989. For discussion on the case see Sur, Gina; Kleiner, Brian H, ‘Sex
Discrimination in employment: everyone’s problem’ (1995) 14(6/7) Equality, Diversity and Inclusion:
An International Journal 54-60; Hopkins, Ann Branigar, So ordered: making partner the hard way
(University of Massachusetts Press, 1996); Anzalone, Christopher A, Supreme Court Cases on gender
and sexual equality: 1787-2001 (M E Sharp, 2002) p.181-187
121
(IWRAW), ‘[a] law or policy may not have the intention of denying a woman the
enjoyment of rights but if it has the effect of doing so then it constitutes
discrimination.’
299
Article 1 of CEDAW explicitly mentions forms of ‘direct
discrimination against women’, as acts with the intent of:
nullifying, impairing or denying the enjoyment of rights of women, irrespective of their marital
status … of human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field.
The distinction between ‘direct’ and ‘indirect’ sex discrimination was
acknowledged by the CEDAW Committee in General Recommendation no. 25. The
Committee considered that state parties have an obligation ‘to ensure that there is no
direct or indirect discrimination against women’.300
In General Recommendation no.19, the CEDAW Committee identified genderbased violence301 as another form of ‘direct discrimination against women’ and
defined it as ‘violence that is directed to a woman because she is a woman or that
affect women disproportionately’. Gender-based violence is a concept often used to
describe practices and behaviour such as rape, sexual abuse, sexual harassment,
299
See IWRAW – International Women’s Rights Action, IWRAW Asia Pacific Knowledge Portal,
Convention on the Elimination of all forms of Discrimination Against Women (2009) p.6. Available
at: <http://www.iwraw-ap.org/convention/doc/cedaw.pdf> [last accessed 10 February 2016].
300
See Division for the Advancement of Women, Convention on the Elimination of all forms of
Discrimination Against Women. General recommendations made by the Committee on the
Elimination of Discrimination against Women. General Recommendation no. 25, on article 4,
paragraph 1, of the Convention on the Elimination of all forms of Discrimination Against Women, on
temporary
special
measures.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025
%20(English).pdf> [last accessed 10 February 2016].
301
Gender-based violence is a concept often used to describe practices and behaviour such as rape,
sexual abuse, sexual harassment, domestic violence, trafficking and sexual war crimes. Both women
and men can be victims of gender-based violence, however, women are usually in the majority among
those affected. See United Nations General Assembly. 85th plenary meeting. Declaration on the
Elimination of Violence against Women. A/RES/48/104 (20 December 1993).
122
domestic violence, trafficking and sexual war crimes. Both women and men can be
victims of gender-based violence but women are usually in the majority among those
affected.302
As mentioned previously, Article 1 of CEDAW also regulates ‘indirect gender
discrimination’. Acts of indirect discrimination ‘have the effect of violating the
human rights of women’. Examples are requirements such as being within particular
age limits, being able to work full-time or having particular types or length of
experience that impact adversely upon women employees.303
A form of ‘indirect discrimination’ is observed in Bangladesh’s Evidence
Act,304 Chapter X, Section 155(4), which provides that when a man is prosecuted for
rape or an attempt to ravish, it may be shown that the ‘prosecutrix’ (victim) was of
generally ‘immoral character’. Therefore, Bangladesh’s Evidence Act allows the
defence to introduce ‘character evidence’ about a woman victim of rape and allows
procedures such as the ‘two-finger test’ (an inspection to detect if the hymen has
been torn, which is part of a medical evidence collection procedure to establish rape)
to be used in the courtroom to cast doubt on the moral character of the victim.
Human Rights Watch has denounced that the ‘two-finger test’ as having no
scientific value. An obvious reason for this is that doctors’ fingers may be of
different sizes, meaning that the perception of laxity will differ from one doctor to
the next. A number of other concerns have been raised about the finger test’s forensic
302
See United Nations General Assembly, 85th plenary meeting. Declaration on the Elimination of
Violence against Women. A/RES/48/104 (20 December 1993).
303
See McColgan, Aileen, Just wages for women (Claredon Press, 1997); McColgan, Aileen,
Discrimination Law: text, cases and materials (Hart Publishing, 2005); Dyle, Oran, ‘Direct
discrimination, indirect discrimination and autonomy’ (2007) 27(3) Oxford Journal of Legal Studies
537-553; Forshaw, Simon; Pilgerstofen, Marcus, ‘Direct and indirect discrimination: Is there
something in between?’ (2008) 37(4) Industrial Law Journal 347-364.
304
See Evidence Act. Came into force 15 March 1872. Available
<http://bdlaws.minlaw.gov.bd/pdf_part.php?id=24> [last accessed 10 February 2016].
123
at:
value, with the general conclusion being that women’s bodies come in different
shapes and sizes, and that the insertion of a finger cannot lead to a conclusion about a
woman’s sexual past.
Doctors have indicated that the presence or absence of the hymen is not
necessarily a conclusive sign that penetration has or has not taken place. 305 In spite of
scientific evidence against this method, in cases where it may be necessary to
establish the occurrence of rape, the ‘Two-Finger Test’ can be used in judicial trials
to demonstrate that the victim was not a virgin at the time of the alleged assault and
that element can be considered to reduce the weight of the evidence.306
In addition, Chapter II, Section 54 of the same Act states ‘if the accused person
has a bad character is irrelevant, unless evidence has been given that he has a good
character, in which case it becomes relevant.’307 Therefore, while the bad character
of the victim is relevant, the bad character of the accused is not.
The concept of ‘indirect discrimination’ has been used internationally from the
1970s onwards first and foremost within European Community law. 308 However, an
example from Australia illustrates how employment practices of government
305
See Human Rights Watch, Dignity on Trial: India’s Need for Sound Standards for Conducting
and Interpreting Forensic Examinations of Rape Survivors (2010) p. 37-40. For more information see
Ali, Md Ayub, ‘The two-finger test abomination’ (2013) In: Bangladesh, Law and Rights, Dhaka
Tribune. Available at: <http://www.dhakatribune.com/law-amp-rights/2013/sep/25/two-finger-testabomination> [last accessed 10 February 2016]; Rahman, Mohamad Rubaiyat, Bimanual Test (Two
Finger Test) of Rape Victims: South Asia Case Study (Bangladesh legal Aid and Services Trust,
2013).
306
See Evidence Act. Came into force 15 March 1872. Available
<http://bdlaws.minlaw.gov.bd/pdf_part.php?id=24> [last accessed 10 February 2016].
307
at:
Ibid.
308
See Preschal, Sacha; Burrows, Noreen, Gender Discrimination Law of the European Community
(Dartmouth Publishing Company, 1990) p.12-21; Ellis, Evelin, European Community Sex Equality
Law (Claredon Press, 1991) p.68-77; Frostel, Katarina, ‘Gender difference and the non-discrimination
principle in the CCPR and the CEDAW’. In: Hannikainen, Lauri; Nykanen, Eeva (ed.), New Trends in
discrimination law’ International perspectives (Turku Law School, 1999) p.29-57; Wallace, Chloe J,
‘European integration and legal culture: indirect sex discrimination in the French legal system’ (1999)
19(3) Legal Studies 397-414.
124
departments, though seemingly neutral, may have an exclusionary effect on protected
groups.
A neutral retrenchment policy of ‘last hired-first fired’ was found to be
discriminatory against women, in the case of Australia Iron and Steel Pty. Ltd. v.
Banovic.309 The High Court held that since the Australia Iron and Steel Pty Ltd did
not take into consideration the effect of past discriminatory recruitment policies of
the company, which resulted in fewer women than men being employed in positions
of seniority and so immune from retrenchment than would have otherwise been the
case, indirect discrimination had occurred, in violation of the Anti-Discrimination
Act 1977 (New South Wales, Australia). The policy of ‘last hired-first fired’ was
considered unreasonable and the plaintiff was awarded a sum total of $AU1 million.
Another example comes from the United States. In 1971, the United States
Supreme Court found in the case of Griggs v. Duke Power Co310 that the
performance tests at issue in Griggs amounted to ‘indirect discrimination’. The
results from the Wonderlic Test (a cognitive ability test, which rates mental ability)
and the Bennett Mechanical Comprehension Test (a psychological aptitude test that
is designed to measure job performance in mechanical fields) were applied as a
requisite to allow non-high-school graduates to transfer to other departments. The
Court found that the tests would necessarily discriminate against African-Americans,
309
See Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 (5
December 1989). For more jurisprudence and further discussion on the policy of ‘last hired, first fired’
see, Joseph, Ellen R, ‘Last hired, first fired seniority layoffs and the Title VII: Questions of Liability
and Remedy’ (1975) 11(3) Columbia Journal of Law and social problems 343-402; United States
Commission on Civil Rights. Layoffs and Civil Rights: Report of the United States Commission on
Civil Rights (USCCR, 1977).
310
See Supreme Court of the United States, Griggs v. Duke Power Co. [1971] 401 U.S. 424.
125
who only had access to education of lower quality at that time.311
The concept of ‘indirect sex discrimination’ has gained broader ground within
international human rights law312 and with the influence of CEDAW, the concept of
‘indirect sex discrimination’ has gained worldwide usage and has been implemented
in the domestic law of countries such as Australia,313 England,314 Scotland and
Wales.315
The concept of ‘indirect sex discrimination’ is relevant because it manages, at
least to some extent, to address the social differences between women and men. It
plays an important role particularly in connection with the allocation of social and
work-related benefits, in the areas of political participation and in education.316
CEDAW also prohibits the total and the partial negation of a right. One
example of the partial negation of a woman’s human right is laws that allow women
to be citizens of a country but do not allow women to pass citizenship to their
311
See Connolly, Michael, Townshed-Smith on Discrimination Law: Text, Cases and Materials (2 nd
Ed., Cavendish Publishing, 2004) p.240-242; Cihon, Patrick J; Castagnera, James Ottavio,
Employment and Labor Law (8th Ed., Cengage Learning, 2014) p.124-125.
312
See generally, Article 1 of the International Convention on the Elimination of all forms of Racial
Discrimination. Opened for signature on 21 December 1965 (Entered into force on 4 January 1969).
Available at: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx> [last accessed 10
February 2016]; UN Women. United Nations Entity for gender equality and the empowerment of
women. Fourth World Conference on Women. Platform for Action and the Beijing Declaration,
p.105-106. Available at: <http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf> [last
accessed 10 February 2016].
313
See The Sex Discrimination Act (Entered into force in March 1984) Available at:
<http://www.comlaw.gov.au/Details/C2012C00313> [last accessed 10 February 2016].
314
The Equality Act of 2010 is valid within England, Scotland and Wales. See Equality Act. Entered
into force 01 October 2010. Available at: <http://www.legislation.gov.uk/ukpga/2010/15> [last
accessed 10 February 2016].
315
Ibid.
316
See Docksey, Chris, ‘Sex discrimination: Indirect discrimination and the protection of mothers’
(1981) 10 Industrial Law Journal 188-190; McColgan, Aileen Just wages for women (Claredon Press,
1997); Dyle, Oran, ‘Direct discrimination, indirect discrimination and autonomy’ (2007) 27(3) Oxford
Journal of Legal Studies 537-553; Forshaw, Simon; Pilgerstofen, Marcus, ‘Direct and indirect
discrimination: is there something in between?’ (2008) 37(4) Industrial Law Journal 347-364. For
Jurisprudence, European Court of Justice, Bilka-Kaufhaus v. Weber von Hartz [1986] 170/84 ECR
1607.
126
daughters and sons, as in Algeria.
The People’s Democratic Republic of Algeria entered a reservation against
Article 9(2) of CEDAW because, according to the Algerian Nationality Code and the
Algerian Family Code, a child only takes the nationality of the mother when: the
father is either unknown or stateless; the child is born in Algeria to an Algerian
mother and a foreign father who was born in Algeria; or when a child is born in
Algeria to an Algerian mother and a foreign father who was not born on Algerian
territory the child may, under article 26 of the Algerian Nationality Code, acquire the
nationality of the mother providing the Ministry of Justice does not object.317
In order to understand what is meant as the object and purpose of CEDAW, in
the previous sections I have addressed the relevance of the principles of substantive
equality, state obligation and non-discrimination to the achievement of women’s
human rights in the state parties to CEDAW. Against this background, in the
following section, I will review the CEDAW Committee’s comments and
recommendations on reservations to CEDAW. After this I will distinguish the
provisions of CEDAW that express its ‘object and purpose’, those that are
‘significant’ for the implementation of the Convention, and those that might be
classified as ‘procedural’.
317
See United Nations, Division for the Advancement of Women, Department of Economic and
Social Affairs, ‘Convention on the Elimination of all forms of discrimination against women:
Declarations,
Reservations
and
Objections
to
CEDAW’.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
127
3.4. Interpreting CEDAW and discriminating between the Convention’s
Articles
A first step in the interpretation process was to apply the ‘General rules of
interpretation’, as expressed in Article 31 of the VCLT, to examine the ‘text’ and the
‘context’ of CEDAW. As part of this process the arguments expressed by the
CEDAW Committee regarding reservations made to CEDAW and the principles of
state obligation, substantive equality and non-discrimination were studied.
When reviewing the history of the Convention, it was demonstrated that
CEDAW was created to achieve one basic ideal: to obtain a consensus between states
in order to promote equality between men and women by eliminating gender
discrimination through a binding agreement and not merely a formal declaration of
intent. Therefore, the development of state obligations in order to achieve the ideals
of equality and non-discrimination constituted the goals of the drafters of the
Convention.
Further, it was observed in the discussions of the CEDAW Committee that the
term ‘object and purpose’ is only used with a degree of certainty when referring to
Article 2 of the Convention. The Committee also indicates that Articles 5 to 16 are
‘significant’ to CEDAW due to the obligations stated in Article 2, which are
enlightened by Article 1 and endorsed in Articles 3 and 24.318 Such distinctions
318
See United Nations, Division for the Advancement of Women, Convention on the Elimination of
all forms of Discrimination Against Women, General recommendations made by the Committee on
the Elimination of Discrimination Against Women, General recommendation n 19. Available at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016]; United Nations, Division for the Advancement of Women, Convention on the
Elimination of all forms of Discrimination Against Women, General recommendations made by the
Committee on the Elimination of Discrimination against Women. General recommendation n 21,
paras.
41;
43.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016]; United Nations, Division for the Advancement of Women. Convention on the
Elimination of all forms of Discrimination Against Women. General recommendations made by the
Committee on the Elimination of Discrimination against Women. General Recommendation no. 28.
128
between the provisions of CEDAW are evidence of a separation between Articles
that are ‘significant’ to the implementation of the Convention and those that actually
express its ‘object and purpose’.
According to Article 28 of CEDAW, reservations entered against provisions
considered to express the object and purpose of the Convention are ‘incompatible’
with the Treaty and, therefore, should be withdrawn. Articles that express the ‘object
and purpose’ of CEDAW are distinct from those that are ‘significant’ to the
implementation of the Convention because in practice reservations entered against
provisions considered to be ‘significant’ to CEDAW, even though they might
eventually create difficulties in implementing the Treaty in the reserving state, are
not regarded as ‘incompatible’ with the Convention.
Thus, in light of the definition provided for the term ‘object and purpose’ in
Guideline 3.1.5, adopted in the ILC’s Guide to practice on reservations to treaties,319
I understand that the object and purpose of CEDAW is not represented by provisions
only considered to be ‘significant’ to the implementation of the Convention but only
those without which the reason for the existence of the Convention would be lost.
Subsequently, it is necessary to discriminate between the provisions according to
their value to the implementation of CEDAW.
When interpreting the CEDAW Committee’s arguments on reservations to the
Convention according to the principles of state obligation, substantive equality and
non-discrimination in guiding the interpretation and implementation of CEDAW, I
conclude that the provisions which best express CEDAW’s ‘object and purpose’ are
CEDAW/C/2010/47/GC.2 (19 October 2010) p.3, para.6; United Nations General Assembly, Fiftythird session. Report of the Committee on the Elimination of Discrimination against Women.
Eighteenth and Nineteenth Sessions. Supplement n. 38 A/53/38/Rev.1 (14 May 1998) pp.48-49,
paras.12;16;17.
319
Supra note 52, ‘Guide to practice’.
129
Articles 1, 2, 3 and 24. These are not only ‘significant’ to the implementation of the
Convention, but express the reason for the existence of CEDAW.
In retrospect, Article 1 of CEDAW not only introduces the need for ‘equality
of opportunity’, but also describes the meaning of the principle of ‘nondiscrimination’. Article 2 describes how the principle of ‘substantive equality’ should
be achieved via compliance with the state parties’ obligations to the Treaty, requiring
that they effectively demonstrate that women enjoy the same opportunities as men in
all spheres of life, in both the public and private spheres. Consequently, Article 2 of
CEDAW expresses not only the principle of ‘substantive equality’ but the principle
of ‘state obligation’ as well. Articles 3 and Article 24 are endorsements of the
necessity to achieve practical realisation of equality between men and women, as
expressed in Article 2.
However, in order to provide a classification of the CEDAW provisions it is
important to remember the scope of Articles 5 to 16 of the Convention. Articles 5 to
16 specify the obligations to eliminate discrimination and achieve equality as
expressed in Article 2, with a focus on particular fields, such as: trafficking,
exploitation and prostitution of women (Article 6); equality with men in the political
and public life of the country (Article 7); government representation (Article 8) and
so on.
Article 4 expresses that ‘Special Measures’ can/should be applied by the state
parties in order to shift the balance and achieve ‘equality’ between men and women.
Articles 17 to 22 describe the role of the CEDAW Committee. Article 23 stresses
that any domestic legislation or international agreements shall by prioritized over
CEDAW if they are more beneficial in achieving ‘equality’ between men and
women. Articles 25 to 30 relate to the Administration of the Convention.
130
In conclusion, according to the study conducted above, an appropriate
categorisation of CEDAW provisions is as follows:
a) Articles 1; 2; 3 and 24 – express the ‘object and purpose’ of the
Convention;
b) Article 5 to 16 – are ‘significant’ to the implementation of the object and
purpose;
c) Articles 4; 17 to 23 and 25 to 30 – are procedural provisions, for describing
procedural conduct, such as ‘special measures’ to the achievement of
equality between men and women and aspects relating to the general
administration of CEDAW and the CEDAW Committee.
In the next chapter I will examine how Bangladesh uses CEDAW’s reservation
system and how the reservation to Article 2 reflects on the implementation of
CEDAW in the state party. To do so, a series of logical steps will be followed and
part of this study is the examination of the compatibility of Bangladesh’s reservation
to CEDAW, based on the classification of the Articles of the Convention developed
in this chapter.
131
4. THE MONITORING PROCESS OF CEDAW IN BANGLADESH
Universal ratification of the main United Nations (UN) human rights treaties might be
appearing on the horizon, but ratification in itself is largely a formal, and in some cases an
empty gesture. The challenge now is to ensure that the promises contained in the treaties and
affirmed through ratification are realized in the lives of ordinary people around the world. 320
In the previous chapter of this thesis I argued that the challenges related to the
implementation of CEDAW are significant and unlikely to be resolved in the short
term. Inconsistencies with concepts and definitions have resulted in a number of
challenges with the interpretation and, consequently, the implementation of the
Convention in the state parties, particularly in the reserving states. I offered a
categorisation of the Articles of CEDAW applicable to the interpretation of all
reservations made to the Convention, aimed at facilitating this difficult task. After
interpreting the Convention, the next step in the study of the effectiveness of the
CEDAW regime of reservations is to assess the impact of the Convention at the
domestic or country level.
The effectiveness of any regulatory system reflects the capacity of its rules and
institutions to actually address and mitigate the problems they are designed to
address. Following this line of argument, I examine, in this and in the following
chapter, whether CEDAW influences practices of Bangladesh towards protecting the
principle of equality by eliminating gender discrimination, according to Articles 1, 2,
320
See Heyns, Christof; Viljoen, Frans, The Impact of the United Nations Human Rights Treaties on
the Domestic Level (Kluwer Law International 2002) p.1.
132
3 and 24 of the Convention, or whether ratification of the treaty remains ‘an empty
gesture’.
In this chapter I begin to address and examine the engagement of Bangladesh
and the CEDAW Committee with the monitoring and implementation process of
CEDAW. This analysis has the potential to reveal pitfalls with the Convention’s
regime of reservations as well as shedding light on the areas that should receive more
attention from human rights stakeholders.
Since CEDAW adopted the residual reservation rules of the 1969 VCLT, I will
discuss how these rules influence the monitoring process of CEDAW. This
discussion includes an assessment of the performance and views of the human rights
stakeholders involved with the monitoring process of CEDAW in Bangladesh,
namely the CEDAW Committee, state parties and NGOs.
The success of the CEDAW Committee in monitoring the implementation of
the Convention is closely tied to the effectiveness of the treaty body monitoring
system and to the working methods developed and adopted by the Committee. To
understand the challenges concerning the monitoring process of human rights
conventions according to the current model of the UN treaty body system, I will
outline the problems faced by the system and the most recent proposals for reform.
Subsequently, I will survey the communications between Bangladesh and the
CEDAW Committee and assess the challenges with the monitoring process of
CEDAW in Bangladesh.
In reviewing the communications between Bangladesh and the CEDAW
Committee, I will focus on the Committee’s comments regarding Bangladesh’s
reservations and the influence of religious personal laws to examine the performance
of the CEDAW Committee in monitoring the implementation of CEDAW, while
133
referring to the Committee’s limited competence to manage reservations made to the
Convention. I will also assess how Bangladesh addresses the CEDAW Committee’s
comments and recommendations in regard to the reservation.
The implementation of CEDAW in Bangladesh will be analysed in the next
chapter, where I will discuss the status of women’s equality in Bangladesh. I will
review the accuracy of the CEDAW Committee’s comments to the reserving state
and Bangladesh’s commitment to implementing CEDAW. This chapter, however,
focuses on the monitoring mechanisms to the implementation of the Convention. It
assesses the positions adopted by the CEDAW Committee, state parties and NGOs as
‘agents of transformation’ in that they may potentially promote Bangladesh’s
compliance with CEDAW.
As discussed in chapter 2, objections are the only mechanism with the potential
to determine the legal effects of reservations. Although treaty bodies are still
restricted to discussing the permissibility of reservations, member states can in fact
determine the validity of reservations. Attributing legal effects to a reservation is a
challenging task that may be seen as a two-edged sword. On the one hand, it can
protect the integrity of the object and purpose of treaties; on the other hand, it may
eventually, affect the state-to-state relationship outside the scope of human rights
conventions.
In this context, I will examine the significance of the objections lodged by
Sweden, Mexico and Germany to Bangladesh’s reservation. I will also demonstrate
how the reciprocity system of rights and obligations established by the VCLT can be
observed in the context of Bangladesh’s reservation to CEDAW.
NGOs also play an important role in the monitoring process of CEDAW.
Shadow reporting is an important tool for NGOs supporting women’s rights. The
134
information shared through shadow reports may supplement or present alternative
information to the periodic government reports that state parties are required to
submit under CEDAW. Thus, shadow reports promote government accountability
and are crucial sources of information regarding a state party’s compliance with
CEDAW.
Following the analysis of the objections lodged by Sweden, Mexico and
Germany to Bangladesh’s reservation, I will review the shadow reports submitted by
ASK; BMP and STD321 to Bangladesh’s Fifth periodic report. I will also review the
Citizens’ Initiative on CEDAW-Bangladesh to the Combined sixth and seventh
alternative report.
Besides the shadow reports submitted by NGOs on Bangladesh’s
implementation of CEDAW, the Committee also takes into account the information
provided by UN specialized agencies322 on the state parties’ implementation of the
Convention (Articles 22, CEDAW and Articles 2, 7, OP-CEDAW). So far only three
agencies have submitted reports to the CEDAW Committee on Bangladesh’s
implementation of CEDAW: the Food and Agriculture Organization of the United
Nations (FAO),323 the International Labour Organization (ILO)324 and the United
321
For references and general information on the NGOs see chapter 1, section 1.5.
322
See United Nations System, Chief Executives Board for Coordination, Directory of United
Nations
System
Organizations:
Specialized
Agencies,
Available
at:
<http://www.unsceb.org/members/specialized-agencies> [last accessed 10 February 2016].
323
See Committee on the Elimination of Discrimination Against Women, Convention on the
Elimination of all forms of Discrimination Against Women. Reports provided by the specialized
agencies of the United Nations system on the implementation of the Convention in areas falling within
the scope of their activities. Food and Agriculture Organization of the United Nations (FAO)
CEDAW/C/2004/II/3/Add.1 (3 May 2004).
324
See Committee on the Elimination of Discrimination Against Women, Convention on the
elimination of all forms of Discrimination Against Women. Reports provided by the specialized
agencies of the United Nations system on the implementation of the Convention in areas falling within
the scope of their activities. International Labor Organization (ILO) CEDAW/C/2004/II/3/Add.4 (11
May 2004).
135
Nations Educational, Scientific and Cultural Organization (UNESCO).325
However, the reports did not comment on Bangladesh’s reservation or how
religious personal laws may influence the achievement of gender equality. The
analysis presented in these reports will be examined in the next chapter, where I
review the working methods adopted by the Committee in its relationship with the
UN specialized agencies as well as with NGOs. I will also study the current
guidelines for the submission of reports to the Committee, and assess how the
information provided by the agencies and by non-governmental organizations may
influence the supervisory work conducted by the Committee.
The goals of this chapter are to analyse the CEDAW Committee’s assessment
of Bangladesh’s compliance with CEDAW and Bangladesh’s engagement with the
CEDAW regime of reservations. To do this, I examine the views expressed by the
CEDAW Committee, by state members to CEDAW, and by NGOs. I will
investigate, in particular, how the agents involved in the monitoring process of
CEDAW influence the effectiveness of CEDAW’s regime of reservations in
protecting treaty integrity against impermissible reservations.
4.1.
Outlining the challenges with the treaty body system
The challenges faced by the UN treaty body system in adequately promoting
respect for the protection and the fulfilment of human rights treaties have been
discussed in the literature.326 Problems with late or non-submission of periodic
325
See Committee on the Elimination of Discrimination Against Women, Convention on the
elimination of all forms of Discrimination Against Women. Reports provided by the specialized
agencies of the United Nations system on the implementation of the Convention in areas falling within
the scope of their activities. UN Educational, Scientific and Cultural Organization
CEDAW/C/48/3/Add.1 (5 January 2011).
326
See Alston, Phillip; Crawford, James, The future of UN Human Rights Treaty Monitoring
(Cambridge, Cambridge University Press, 2000); Bayefsky, Anne F (eds.), The UN Human Rights
136
reports by states and delays in processing them have been well documented, as well
as clear inefficiencies in states having to report on similar issues to different treaty
bodies. States also argue that there is a lack of useful advice from the Committees on
ways to address specific issues faced by the state parties domestically.327
In 2012 the OHCHR made progress in addressing the format and working
methods of the treaty bodies and how they impact on the effectiveness of the system
in monitoring the implementation of the human rights conventions.328 The UN High
Commissioner’s Office consulted all the human rights stakeholders in order to
account for the major problems facing the treaty body system and consider possible
suggestions for ways to address those problems. In summary, it was found that the
major obstacles for a more effective UN treaty body system were:
a) non-compliance with reporting obligations;
b) backlogs in the consideration of reports and individual complaints; growth
in the volume of documentation;
Treaty system in the 21st century (Kluwer Law International, 2000); Bayefsky, Anne F, The UN
Human Rights Treaty System: Universality at the crossroads (Kluwer Law International, 2001); Gaer,
Felice D, ‘A voice not an echo: Universal Periodic Review and the UN Treaty Body System’ (2007)
7(1) Human Rights Law Review 109–139; Schopp-Schilling, Hanna Beate, ‘Treaty Body Reform: The
case of the Committee on the Convention for the Elimination of all forms of Discrimination Against
Women’ (2007) 7(1) Human Rights Law Review 201–224; Bowman, Michael, ‘Towards a Unified
Treaty Body for Monitoring Compliance with UN Human Rights Conventions? Legal Mechanisms
for Treaty Reform’ (2007) 7(1) Human Rights Law Review 225–249; O’Flaherty, Michael; O’Brien,
Claire, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on
the High Commissioner’s Proposal for a Unified Standing Treaty Body’, (2007) 7(1) Human Rights
Law Review 319–335; O’Flaherty, Michael, ‘Reform of the UN Human rights Treaty Body System:
Locating the Dublin Statement’ (2010) 10(2) Human Rights Law Review 319−335; Cerna, Christina;
McCosker, Sarah; Rodley, Nigel; Salama, Ibrahim, ‘Duplication and Divergence in the work of the
United Nations Treaty Bodies’ (2011) 105 Proceedings of the One Hundred Fifth Annual Meeting of
the American Society of International Law 507−520; Morijn, John, ‘Reforming United Nations
Human Rights Treaty Monitoring Reform’ (2011) 58(3) Netherlands International Law Review
295−333.
327
See Alston, Phillip; Crawford, James, The future of UN Human Rights Treaty Monitoring
(Cambridge, Cambridge University Press, 2000); O’Flaherty, Michael, ‘Reform of the UN Human
rights Treaty Body System: Locating the Dublin Statement’ (2010) 10(2) Human Rights Law Review
319−335.
328
See Pillay, Navanethem, Strengthening the United Nations Human Rights Treaty Body System: A
report by the United Nations High Commissioner for Human Rights (OHCHR, June 2012).
137
c) issues concerning national resources, capacity and coherence in the
preparation of the periodic reports;
d) the need for coherence and consistency from the treaty bodies when
issuing implementation advice and guidance to states; and
e) higher costs for the functioning of the treaty bodies.329
The consultation process also resulted in the elaboration of a comprehensive
package of proposals on ways and means to strengthen the treaty body system. The
key proposals were the following:
a) the development of a comprehensive reporting calendar;
b) the promotion of a simplified and aligned reporting process;
c) the creation of a joint treaty body working group to make decisions on
cases brought by individual communications;
d) strengthening of the expertise of Treaty Body members;
e) improvement of the implementation rates by state parties through: 1)
Systematisation of a coordinated and more inclusive follow-up procedure;
2) Development of a specific, inter-committee ‘treaty body follow up
mechanism’ for all Treaty Bodies or the establishment of a dedicated unit
on follow-up or senior level ‘Treaty Body Follow-Up Coordinator’ post
within OHCHR; 3) Treaty Bodies were also urged to develop indicators to
monitor implementation and to conduct studies, in conjunction with
OHCHR, to identify obstacles to treaty implementation, and 4) The idea of
follow-up visits to monitor implementation was also indicated;
f) enhancement of the visibility and accessibility of Treaty Bodies trough the
329
Ibid p.20−28.
138
usage
of
modern
technologies,
such
as
webcasting and
video
conferencing.330
This most recent package of proposals on ways to strengthen the treaty body
system is innovative for taking into consideration the opinions of all the system
stakeholders, which should, arguably, result in a more coherent, coordinated and
effective system. As observed by O’Flaherty:
The observation in the statement concerning the need for all parties to reform to be willing to
engage in open minded deliberation in a constructive spirit of consensus-building recognises
that reform requires a generosity of spirit on the part of all its protagonists. 331
It is important to note, however, that the issues that the proposals aim to
address have been a topic of concern since the mid 1980s. Within the UN,332 the
most sustained contributions on the means to address the obstacles faced by the
treaty body system between the late 1980s and the mid-1990s are those of an
independent expert appointed by the UN Secretary-General Philip Alston, who
served in that position from 1989 to 1996.333 After that, the more relevant
330
Ibid p.37−93.
331
See O’Flaherty, Michael, ‘Reform of the UN Human rights Treaty Body System: Locating the
Dublin Statement’ (2010) 10 (2) Human Rights Law Review 331.
332
From outside the UN see Bayefsky, Anne F (eds.), The UN Human Rights Treaty system in the
21st century (Kluwer Law International, 2000); Bayefsky, Anne F, The UN Human Rights Treaty
System: Universality at the crossroads (Kluwer Law International, 2001); Scheinin, M, ‘The Proposed
Optional Protocol to the Covenant on Economic, Social and Cultural Rights A Blueprint for UN
Human Rights Treaty Body Reform without Amending the Existing Treaties’ (2006) 6 (1) Human
Rights Law Review 131–142; Bassiouni, M Cherif; Schabas, William A (eds.), New challenges for the
UN human rights machinery: what future for the UN treaty body system and the Human Rights
Council procedures? (Intersentia, 2011); Morijn, John, ‘Reforming United Nations Human Rights
Treaty Monitoring Reform’ (2011) 58 (3) Netherlands International Law Review 295–333.
333
See Alston, Philip, Effective Implementation of International Instruments on Human Rights,
Including Reporting Obligations Under International Instruments on Human Rights, Initial Report of
139
contributions arose from the 2004 ‘High-Level Panel on Threats, Challenges and
Changes’334 and the 2009 ‘Dublin Statement’.335
It appears, therefore, that there is reluctance or difficulty in implementing the
required reforms. Only time will tell if the proposals on ways to strengthen the treaty
body system will be successfully implemented by the UN and whether they will
receive the necessary support from the treaty bodies and from other stakeholders of
the monitoring system.
Nonetheless, any reform needs to take into account the challenges faced with
the monitoring and implementation process of each convention in order to address
the different rates of progress with implementation. The issues facing the monitoring
and implementation process of CEDAW are discussed in this thesis as part of the
study of CEDAW’s regime of reservations.
In the next section, I will review the communications between the CEDAW
Committee and Bangladesh with the aim of understanding the CEDAW Committee’s
guidance to Bangladesh on the implementation of CEDAW and Bangladesh’s
responses to the CEDAW Committee’s comments and recommendations. This
analysis aims to shed light on the discussion regarding the effectiveness of the
CEDAW Committee as monitoring agent of the Convention.
the Secretary-General’s Independent Expert, A/44/668 (8 November 1989); Alston, Philip, Effective
Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments, Final
Report on Enhancing the Long-Term Effectiveness of the United Nations Human Rights Treaty
System, E/CN.4/1997/74 (27 March 1996).
334
See UN General Assembly, Report of the High-Level Panel on Threats, Challenges and Changes.
A More Secure World: Our shared Responsibility, A/59/565 (2 December 2004) p.74 para.283.
335
See Office of the United Nations High Commissioner for Human Rights, The Dublin Statement
on the process of strengthening of the United Nations human rights treaty body system. Available at:
<http://www2.ohchr.org/english/bodies/HRTD/docs/DublinStatement.pdf> [last accessed 10 February
2016].
140
4.2.
Engaging in a conversation: Bangladesh and the CEDAW Committee
discuss the reservation
At the time of the ratification of CEDAW in 6 November 1984, Bangladesh
made reservations against Articles 2, 13 and 16 of the Convention.336 In the review
of the combined Third and Fourth Periodic Reports, Bangladesh withdrew its
reservation to Article 13(a), but kept the reservations against Articles 2 and 16.337 In
July 1997, records show that the Government of Bangladesh notified the UN
Secretary-General that it had decided to withdraw the reservation relating to Article
16.338 However, the reservation to Article 2 was still maintained.
In response to the reservation to Article 2, the CEDAW Committee expressed
its concern in the Concluding comments to the Second Periodic Report submitted to
Bangladesh.
The Committee also asked the Government to study article 2 of the Convention with a view to
including in its subsequent reports its comments on the legislation or other structures that were
preventing it from implementing that article. The Committee asked what proposals the
Government had for withdrawing its reservation, which appeared to contravene articles 27, 28
and 29 of the Constitution of Bangladesh. 339
336
See United Nations, Division for the Advancement of Women. Department of Economic and
Social Affairs, Convention on the Elimination of all forms of discrimination against women:
Declarations, Reservations and Objections to CEDAW. Note 19. Available at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm#N19> [last accessed 10
February 2016].
337
See Committee on the Elimination of Discrimination Against Women. Seventeenth Session.
Summary Record of the 357th Meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Third and fourth periodic reports of Bangladesh. CEDAW/C/SR.357 (27 March 1998),
p.2 para.4.
338
Ibid.
339
See Committee on the Elimination of Discrimination Against Women. Twelfth Session.
Concluding Comments of the Committee on the Elimination of Discrimination Against Women.
Second periodic report of states parties: Bangladesh. Excerpted from Supplement No. 38. A/48/38 (18
January - 5 February 1993) p.6.
141
In reply to the questions formulated by the Committee, Mr Pasha,
representative of Bangladesh, said that three particular areas of family law – namely
inheritance, marriage and divorce – conflicted with Article 2 of CEDAW and since
they ‘derived directly from the Koran and Shariah there was no programme to
change them, nor was there any programme to change Hindu laws on such matters
that might also conflict with various provisions of the Convention’.340 Pasha stressed
that, ‘[t]he provisions of Islamic law in force in Bangladesh did not conflict with the
spirit or substance of the Convention except in the case of article 2 … in respect of
which Bangladesh had expressed reservations.’341 Since the areas of family law that
conflicted with CEDAW derived from Sharia Law, Bangladesh would not make any
attempts to address the existing conflict with Article 2 of the Convention.
Although a conflict with the Sharia Law was alleged as the reason for
Bangladesh’s reservation, the state party also argued that Muslim Personal Law was
in agreement with the ‘substance’ of CEDAW. If that was the case, it is unclear why
it Bangladesh reserves a provision that represents the substance of the Convention. It
is clear that Muslim Personal Law has a strong influence in Bangladesh. This
demonstrates that addressing the alleged conflicts between Sharia Law and CEDAW
is crucial to the implementation of the Convention in Bangladesh.
A couple of months later, in July 1997, during the Seventeenth session of the
CEDAW Committee, when analysing the Third and Fourth Periodic Reports
submitted by Bangladesh, Mrs Cartwright, member of the Committee at that time,
urged Bangladesh to withdraw its reservation against Article 2 of CEDAW. She
340
Ibid, p.6 para.24.
341
Ibid, p.7 para.27.
142
requested the Government of Bangladesh to ‘give very early consideration to
withdrawing its reservation to article 2 of the Convention, which was incompatible
with the object and purpose of the Convention.’342
In reply, Bangladesh demonstrated that it was open to the idea of withdrawing
the reservation to CEDAW. Mr Ahmed, representative of the reserving state, claimed
that the government of Bangladesh had not refused to withdraw its reservation
against Article 2 and that this provision would be reviewed in order to determine
whether there are any conflicts with Muslim personal law.343 This was the first time
Bangladesh had made a commitment to addressing the conflict between CEDAW
and Muslim personal law, with a view to possibly withdrawing the reservation.
This appeared to represent a significant shift from the position previously
adopted by Bangladesh’s representative at the time of the state’s Second periodic
report. Previously, Bangladesh had demonstrated no intention to change domestic
legislation that was in conflict with Article 2 of CEDAW. Ahmed’s comments,
however, suggested the possibility of reviewing Article 2 in order to verify whether
there were any conflicts with Muslim personal law. So, were there any conflicts that
substantiated the reservation in the first place? In the next chapter my analysis of the
conflicts of women’s human rights and interpretations of religious personal laws
aims to shed light on this question.
In 2003, in the review of Bangladesh’s Fifth Periodic Report to CEDAW,344
342
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Third and fourth periodic reports of states parties. Bangladesh.
CEDAW/C/SR.358 (27 March 1998) p.3.para 12.
343
Ibid, p.8 para 51.
344
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Fifth periodic report of states parties. Bangladesh.
CEDAW/C/BGD/5 (3 January 2003).
143
the Government of Bangladesh argued that it was still assessing whether its
reservation to Article 2 was in direct conflict with Muslim personal law. Although
there was no declared conflict between the Muslim personal law and CEDAW, the
reserving state persisted with the reservation to the Convention. Bangladesh’s
reasoning for the reservation did not provide answers to the issues raised by the
CEDAW Committee.
In addition, Bangladesh also suggested that because the country was still
governed by the Civil and Criminal Procedure Codes345 enacted during the period of
British rule, ‘followers from different religious backgrounds give discriminatory
interpretations to the law [in the areas of marriage, divorce, custody, alimony and
property inheritance].’346 Thus, personal religion dictates how the law should or
should not be applied. Bangladesh demonstrated the existence of a conflict between
the interpretation of its domestic legislation and CEDAW. However, there was no
mention of what, if anything, would be done to address this conflict.
In the review of Bangladesh’s Fifth Periodic Report, the CEDAW Committee
requested from Bangladesh a timetable for withdrawing the reservation against
Article 2 and also asked what had been preventing the state party from withdrawing
the reservation.347 In addition, the Committee questioned why Bangladesh had
345
See The Code of Civil Procedure. Act No. V. Entered into force in 1908. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=86> [last accessed 10 February 2016]; The
Criminal Procedure Code. Act. No. V. Entered into force in 1898. Available at:
<http://bdlaws.minlaw.gov.bd/pdf_part.php?id=75> [last accessed 10 February 2016].
346
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Fifth periodic report of states parties. Bangladesh.
CEDAW/C/BGD/5 (3 January 2003) p.10.
347
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Fifth periodic report of states parties. Bangladesh. CEDAW/C/SR.653 (12 August 2004)
pp.5-8 paras.22; 25; 39; 43.
144
chosen to opt out of the inquiry procedure, as part of the OP-CEDAW348 and
observed that ‘the definition of discrimination provided by the State party conflicted
with the definition set forth in the Convention.’349
It appears that the lack of any reasonable argument for maintaining the
reservation to Article 2 was catching up to Bangladesh. The CEDAW Committee
was not convinced that there was a valid reason why the reservation had not been
withdrawn. The Committee had already argued in General recommendations nos 19
and 21 that Article 2 has great relevance to the implementation of Articles 5 to 16 of
CEDAW.350 Thus, Bangladesh’s reservation potentially affected the implementation
of the entire Convention.
Bangladesh has also chosen to opt out of the inquiry procedure, as part of OPCEDAW,351 which makes it more difficult to properly monitor the Convention. OPCEDAW was adopted by the UN General Assembly in October 1999. The Protocol
does not create any new rights but strengthens the Convention by establishing two
procedures: the communications procedure (Article 2) and the inquiry procedure
(Article 8).
The communications procedure allows individual women, or groups of
women, to submit claims of violations of rights protected under the Convention to
the Committee. The inquiry procedure enables the Committee to initiate inquiries
into situations of grave or systematic violations of women’s rights. The Protocol
348
Ibid., p.5 para. 22.
349
Ibid., p.5 para. 24.
350
See United Nations, Division for the Advancement of Women, Convention on the Elimination of
all forms of Discrimination Against Women, General recommendations made by the Committee on
the
Elimination
of
Discrimination
Against
Women.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> [last accessed 10
February 2016].
351
See supra note 188, ‘Optional Protocol to CEDAW’.
145
includes an ‘opt-out clause’ for the inquiry procedure, allowing states, upon
ratification or accession, to declare that they do not agree to answer before the
Committee’s authority to investigate alleged systemic violations of women’s rights.
The ‘opt-out’ clause of the inquiry procedure allows states to avoid further
scrutiny by the CEDAW Committee about cases of grave or systematic violation of
women’s human rights that may have occurred in their territories. Given that
Bangladesh opted out of the inquiry procedure, the CEDAW Committee cannot
invite the state party to assist in the examination of any information received by the
Committee or ask for the production of any observation with regard to the
information received. Opting-out of the inquiry procedure may be interpreted as lack
of commitment to implementing CEDAW as well.
In reply to the comments made by the CEDAW Committee Bangladesh argued
that the only reason for the reserving state to have opted out of the OP-CEDAW was
to ‘minimize duplication in dealing with the various UN human rights bodies and
authorities.’352 The reserving state also added that the Constitution of Bangladesh, in
Articles 10, 27, 28, 32 and 39 ‘reflected the ideals’ of CEDAW.353 Bangladesh
assured the Committee that ‘the outlook of its people and society had evolved, as
had their support for the advancement of women. In step with those changes, women
themselves had become more independent and assured and were standing their
352
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Fifth periodic report of states parties. Bangladesh CEDAW/C/SR.653 (12 August 2004)
p.9 para.56.
353
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Combined Sixth and Seventh periodic reports of states parties. Bangladesh.
CEDAW/C/BGD/6-7 (24 March 2010) p.25 para.70.
146
ground against discriminatory treatment’.354
However, it is important to note that no additional reports are requested under
the Optional Protocol.355 As explained above, by accepting the inquiry procedure the
state party is agreeing to participate in investigations of women’s rights violations
and to produce reports on the status of women’s rights. In light of this, the
Committee asked the state party whether it intended to withdraw its declaration to
opt-out of the inquiry procedure. This question has not yet been addressed by
Bangladesh, and the reserving state remains absent from the inquiry procedure of
OP-CEDAW.
Since Bangladesh also argued that its Constitution, particularly Articles 10, 27,
28, 32 and 39, reflected the ideals of CEDAW, it is important to examine each
provision. Article 10 regulates the ‘participation of women in all spheres of public
life’ as a ‘Fundamental Principle of State Policy’. Article 27 regulates ‘Equality
before the law’ as a fundamental right. Article 28 establishes the ‘Prohibition of
Discrimination on the grounds of religion’. Article 32 regulates the ‘Protection of the
right to life and personal liberty’ and Article 39 establishes the protection of
‘Freedom of thought and of conscience and speech’.356
However, none of these provisions provides a definition of discrimination and,
as discussed in the previous chapter, the path to achieving equality is through nondiscrimination. This allows different interpretations to be given, not only to the
354
Supra note 367, p.10 para.60.
355
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 969th meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Combined Sixth and Seventh periodic reports of states parties. Bangladesh.
CEDAW/C/SR.969 (9 February 2011) p.4 para.15.
356
See Constitution of the People’s Republic of Bangladesh. Came into force in 4 November 1972.
Available at: <http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=367> [last accessed 10
February 2016].
147
Constitution, but also to other laws in the country that might be relevant to protecting
women’s rights.357
Article 28 (1) is a positive exception. ‘The State shall not discriminate against
any citizen on grounds only of religion, race, caste, sex or place of birth.’358 In other
words, the state may undertake affirmative action measures to ensure equality. The
state is not prevented from making special provisions in favour of women or children
or for the advancement of any unprivileged section of the society.
However, Article 27 of the Bangladeshi Constitution, expressly addressed by
the state party as representing the ‘ideals’ of CEDAW, may be subject to
discriminatory interpretations. Article 27 states that ‘All citizens are equal before law
and are entitled to equal protection of law’.359 If the concept of equality, as
understood by existent interpretations of the Muslim Personal Law, is applied to the
interpretation of Article 27, a situation comparatively different from the
interpretation derived from the principle of equality as conceptualized in CEDAW
may arise.
Shariah Law recognizes the legal status of women and men as being equal
before Allah and the Ummah (Islamic community). However, as Akstinien
357
For example, Dowry Prohibition Act. Entered into force in 26 December 1980. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=607> [last accessed 10 February 2016];
Criminal
Code.
Entered
into
force
in
06
October
1980.
Available
at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=11> [last accessed 10 February 2016];
Entered
into
force
in
26
December
1980.
Available
at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=607> [last accessed 10 February 2016];
Prevention of Oppression against Women and Children Act. Entered into force in 14 February 2000.
Available at: <http://www.hsph.harvard.edu/population/trafficking/bangladesh.traf.00.pdf> [last
accessed 10 February 2016]; The Acid Control Act, 2000. Came into force in 2000. Available in
Bengali at: <http://sgdatabase.unwomen.org/uploads/Acid%20Control%20Act%202002.pdf> [last
accessed 10 February 2016]. Also see The UN Secretary General Database on violence against
women, Acid Control Act 2000 and Acid Crime Prevention Acts 2002. Available at:
<http://www.endvawnow.org/en/articles/607-acid-attacks.html> [last accessed 10 February 2016].
358
Supra note 348.
359
Ibid.
148
observes, ‘This ‘equality’ however, is not conceived in an absolute sense. Although
all people are considered equal before Allah, with no distinction as to gender,
language, race or religion; equality in religion is not the same as equality in
society.’360
According to the Shariah Law, women and men are not equal in their marital
life nor in the context of family relations.361 Since Muslim Personal Law governs
legal issues such as marriage, divorce, child custody and inheritance,362 the rights and
duties of Muslim women are deeply affected with respect to fundamental social and
family practices.363
Although Bangladesh had defended its Constitution on the grounds that it
reflected the substance of CEDAW, in the Fifth Periodic Report the reserving state
observed that interpretations arising from doctrines of personal religion impair the
achievement of equality for women: ‘[f]ollowers of different faiths come under
somewhat different provisions of laws and as a result discriminatory situations arise
in areas of marriage, divorce, alimony, custody and guardianship.’364
Although the state party had agreed that ‘discriminatory situations’ happen as a
consequence of interpretations of the national law influenced by religion, it is
360
See Akstiniené, Aisté, ‘Reservations to human rights treaties: Problematic aspects related to
gender issues’ (2013) 20(2) Jurisprudence 456.
361
See Al-Hibri, A. Islam, ‘Law and Custom: Redefining Muslim Women’s Rights’ (1997) 12(1)
American University Journal of International Law and Policy 1-44.
362
See e.g. Aktar, Sharmin, ‘Protecting Divorced Muslim Women’s rights through maintenance: A
comparative analysis based on the present legislative reforms among the Muslim community’ (2012)
3 Northern University Journal of Law 23-48.
363
See Sawad, Ahmed Ali, ‘Reservations to Human Rights Treaties and the Diversity Paradigm:
Examining Islamic Reservations’ (Thesis submitted for the degree of doctor of Philosophy, University
of Otago, 2008) p.191-361.
364
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Fifth periodic report of states parties. Bangladesh CEDAW/C/SR.653 (12 August 2004)
p.10.
149
reasonable to ask why the state party has not yet provided a definition for the term
‘discrimination’? Providing a definition for ‘discrimination’ is crucial to avoid
different interpretations of the law that might be harmful to the achievement of
women’s rights. Therefore, the state party’s inaction may be regarded as an
infringement of the state’s obligation’s under CEDAW.365
In the review of the combined Sixth and Seventh Periodic Reports, Bangladesh
restated its ‘commitment’ to review and consider the possible withdrawal of the
reservation against Article 2 of CEDAW.366 However, that has been a commitment
of the state party since July 1997, when the representative of Bangladesh addressed
the considerations of the CEDAW Committee to the state party’s combined Third
and Fourth Periodic Reports.367
Bangladesh’s Eighth periodic report, submitted to the CEDAW Committee in
27 May 2015, has not yet been reviewed by the Committee, but nonetheless warrants
discussing here. The withdrawal of the reservation on Article 2 is still under
consideration:
Withdrawal of existing reservation on Article 2 … was considered and the LC was requested to
review the merit of the reservation and to provide appropriate recommendations. Following the
examples of other Muslim Countries, the LC opined, “The Government of Bangladesh
withdraws her reservation from Article 2 … of the Convention on the Elimination of All Forms
365
See chapter 3, section 3.3.1.
366
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Combined Sixth and Seventh periodic reports of states parties. Bangladesh.
CEDAW/C/BGD/6-7 (24 March 2010).
367
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Third and fourth combined periodic reports of states parties.
Bangladesh. CEDAW/C/SR.358 (27 March 1998) p.8 para.51.
150
of Discrimination Against Women. However, Bangladesh shall apply the provisions of these
articles in compatibility and harmony with her Constitution and existing laws”. The
Government is considering the recommendation.368
However, unlike the previous reports, in the eighth periodic report Bangladesh
stated with clarity why the withdrawal of the reservation had become such a timeconsuming process:
The personal laws are in light with the religious provisions of different religious faiths, which
in some cases have discriminatory provisions in marriage and divorce, inheritance,
guardianship, etc. Modification of personal laws needs agreements by the leaders of all
religious faiths. The society is not yet ready to accept such modification and the Government
being mindful of the possible repercussion of the conservative religious groups, [is] taking
cautious steps.369
There are two contradictory aspects to this consideration. The reserving state
claims that it is necessary to be cautious in considering the withdrawal of the
reservation, and yet, the state argues that it is impotent in the face of the yet strong
political support for religious personal laws.
Bangladesh argues that because of a lack of enforcement of existing legislation,
there are limits to the government’s commitment to eliminating discrimination
against women. The state argued that because of women’s lack of knowledge, the
cost and time involved in legal processes, and the patriarchal attitude of (as well as
lack of commitment by) the members of the judiciary and law enforcement agencies,
368
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Eight report of state parties due in 2015. Bangladesh.
CEDAW/C/BGD/8 (27 May 2015) p.10-11 para.44.
369
Ibid, p.11 para 47.
151
‘the inequality in some personal laws outweighs the equality in civil laws.’370
The reserving state endeavoured to explain how discrimination against women
still exists in the public spheres of the country, and noted an even worse reality: law
enforcement agents maintain and support this practice. Thus, the political power of
religious leaders appears strong enough to exert influence over government agencies.
There is an implication here that, in an Islamic state, religious doctrines will
have great political influence over state affairs. However, in its Eighth periodic
report Bangladesh expressed the view that fundamentalist religious groups practise
discriminatory interpretations of the law and that these interpretations are adopted by
law enforcement agencies. In these circumstances it is doubtful whether enforcement
of any new legislation that is favourable to women’s rights is feasible. It is unlikely
that any substantive progress with women’s rights will be achieved. As Chaturvedi
and Montoya observe,
given the differences between Islamic culture and the Western conceptions of women’s rights,
Muslim countries [and Muslim states] that limit the influence of religious factions on
government processes will expand women’s rights while Muslim countries that do not limit
religious influence will either remain stagnant or weaken women’s rights. 371
Given the comments of the reserving state in its latest periodic report, the
argument made by Chaturvedi and Montoya appears to be valid in the socio-political
context of Bangladesh. Bangladesh’s government observed that the steps taken to
promote gender equality via new laws and national programs are continuously
370
Ibid, p.11 para.49.
371
See Chaturvedi, Neilan S; Montoya, Orlando, ‘Democracy, oil or religion: Expanding women’s
rights in the Muslim world’ (2013) 6 Politics and Religion 597.
152
obstructed by discriminatory religious practices and argues that ‘[s]ociety is not yet
ready to accept changes and some more time is necessary to change the social
norms’.372
Even if more time is necessary, the reserving state has not indicated any
changes that could be implemented in order to address the influence of
discriminatory interpretations of religious personal laws in state affairs and, in turn,
to withdraw the reservation to CEDAW. Thus, it remains a task for the CEDAW
Committee, NGOs and state parties to ask difficult questions, such as: what will the
government do to address the discriminatory religious practices that still prevail in
society? If legal and policy measures are not enough, how does the government plan
to address the socio-cultural factors that make women vulnerable to discrimination?
From the Second periodic report to the Eighth periodic report, Bangladesh
expressed completely opposed arguments. While in the Second report the state
argued that it ‘would not’ do anything to withdraw the reservation because of the
Sharia Law, in the Eight report the state argued that it ‘could do’ little to withdraw
the reservation because of the Sharia Law.
At first, Bangladesh showed no intent to withdraw the reservation. Then, the
reserving state indicated a willingness and commitment to withdrawing the
reservation. However, it has also demonstrated limited power to act against
discriminatory practices that originate in religious personal laws. Monitoring the
implementation of CEDAW in a reserving state is, by itself, a challenging job, but
monitoring compliance with CEDAW in a reserving state that declares its impotence
against a major cause for discrimination in the country is an even more daunting task.
372
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Eight report of state parties due in 2015. Bangladesh.
CEDAW/C/BGD/8 (27 May 2015), p.12 para.54.
153
Bangladesh’s repeated commitments to considering withdrawal of the
reservation have been made alongside elusive arguments that do not address directly
the question of whether the state party will or will not withdraw the reservation.
Instead, the state party has often provided subtle support for the reservation based on
the existence of alleged women’s personal growth, in terms of their capacity to
defend their human rights,373 or by claiming that the Constitution already reflects the
‘substance’ of CEDAW.
As mentioned above, the CEDAW Committee has repeatedly suggested that
Bangladesh should not only remove the reservation against Article 2, but also abolish
any discriminatory laws and enact necessary legislation to implement the state
party’s obligations under CEDAW. However, despite the efforts of the Committee,
Bangladesh’s reservation still stands. With the exception of the 2009 Amendment to
the Citizenship Act of 1951,374 which allows women to pass citizenship to their
children, no significant improvement has been made regarding reform of religious
personal laws, including inheritance law.
As discussed in chapter two of this thesis, the CEDAW Committee is not a
contractual party to the Convention. Instead, the Committee is a supervisory body
that monitors the implementation of CEDAW. Thus, it has limited capacity to
address the permissibility of Bangladesh’s reservation and request the withdrawal of
the reservation.
The Committee does not have the competence to determine the validity of, and
373
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Fifth periodic report of states parties. Bangladesh. CEDAW/C/SR.653 (12 August 2004)
p.10 para.60.
374
See Bangladesh Parliament. Citizenship Act, 1951 (Act II of 1951) Amendment. Published on 5
March 2009. Available at: <http://www.refworld.org/docid/4a8032182.html> [last accessed 10
February 2016].
154
thus attribute any legal effects to, the reservation. This power is restricted to state
members to CEDAW and to the ICJ by request. State parties to CEDAW can make
use of objections to determine the legal consequences of Bangladesh’s reservation to
the state’s bond to the Convention.
The state parties to CEDAW may or may not accept Bangladesh’s reservation.
If the state parties find the reservation to be impermissible, they may ‘object’ to it. In
contrast to the CEDAW Committee, state parties to CEDAW have the option of
determining whether CEDAW will or will not enter into force between them and
Bangladesh (Articles 20 to 22 of the 1969 VCLT).375 Consequently, objections to
reservations made to the Convention are a crucial part of the monitoring process of
the Convention.
In the next section I will examine arrangements for the ‘acceptance’ of, and
‘objection’ to reservations to CEDAW. Further I review state parties’ objections to
Bangladesh’s reservation and discuss the effectiveness of the objections to protect
the integrity of the Convention.
4.3.
Acceptance of (and objections to) Bangladesh’s reservation to CEDAW:
When ‘object’ means to ‘accept’
According to Article 19 of the VCLT states cannot formulate reservations that
are prohibited by the treaty, which fall out of the scope of reservations permitted by
the treaty, or when they are incompatible with the object and purpose of the treaty.
However, CEDAW only prohibits reservations entered against its object and purpose
and does not determine which reservations are allowed under the Convention.
Therefore, state parties may object to reservations based only on their
375
Supra note 7, ‘Vienna Convention’.
155
impermissibility due to incompatibility with the object and purpose of the
Convention.
In terms of the time frame for lodging objections, according to Article 20(5) of
the VCLT, a state party to an international treaty has a period of twelve months to
object to a reservation and after that time the silence is equivalent to consent or
acceptance. Consequently, inaction from a state party on a reservation will result in it
being precluded from making further objections.
However, CEDAW does not specify a time frame for its state parties to react to
a reservation. In this regard Article 29(1) reads as follows:
Any dispute between two or more States Parties concerning the interpretation or application of
the present Convention which is not settled by negotiation shall, at the request of one of them,
be submitted to arbitration. If within six months from the date of the request for arbitration the
parties are unable to agree on the organization of the arbitration, any one of those parties may
refer the dispute to the International Court of Justice by request in conformity with the Statute
of the Court.
Thus, it can be inferred from Article 29(1) of CEDAW that if a state party to
the Convention does not object to a reservation within twelve months of being
notified, although it might preclude its right to ‘object’ to the reservation according
to the VCLT rules, the state party can still submit its disagreement to arbitration and,
if not satisfied with the result, to the ICJ.
As seen in chapter 2, the 1969 VCLT sets rules for reservations to treaties and
does not distinguish between different categories of treaties. These rules are based on
the notion of reciprocity of rights and obligations between the state members of the
treaties. However, human rights treaties create ‘an objective regime of protection of
156
human rights’.376 Human rights treaties are non-reciprocal in nature. Thus, states will
have no immediate benefit when objecting to a reservation made to a human rights
treaty. In such situations, states may see no interest in objecting, other than to
maintain treaty integrity.
However, a state may seek to object to a reservation that limits the rights of
their nationals on the territory of the reserving state. In this case, objecting would be
in the interest of the nationals of the objecting state and not to limit similar human
rights guarantees of the nationals of the reserving state living in the territory of the
objecting state.377 However, generally the absence of reciprocity may discourage
states from objecting to impermissible reservations.378
So far, only three state parties to CEDAW have objected to Bangladesh’s
reservation against Article 2. The objecting states are Germany,379 Mexico380 and
Sweden.381 All three identified the incompatibility of Bangladesh’s reservation with
the object and purpose of CEDAW. However, none of the objections requested the
prevention of entry into force of CEDAW. In its objection Germany declared:
376
See Korkelia, Konstantin, ‘New Challenges to the Regime of Reservations under the
International Covenant on Civil and Political Rights’ (2002) 13(2) European Journal on International
Law 439.
377
Ibid.
378
See Church, Joan; Schulze, Christian; Strydom, Hennie, Human rights from a comparative and
international law perspective (Usina Press, 2007) p.186.
379
See United Nations, Convention on the Elimination of all forms of Discrimination Against
Women. Meeting of state parties to the Convention on the Elimination of all forms of Discrimination
Against Women. Ninth Meeting. Declarations, Reservations, Objections and notifications of
withdraw of reservations relating to the Convention on the Elimination of all forms of Discrimination
Against Women. CEDAW/SP/1996/2 (8 February 1996) p.42.
380
Ibid, p.44.
381
See United Nations, Division for the Advancement of Women. Department of Economic and
Social Affairs, Convention on the Elimination of all forms of discrimination against women:
Declarations, Reservations and Objections to CEDAW. Objections (Unless otherwise indicated, the
objections were made upon ratification, accession or succession.) Sweden, 17 March 1984. Available
at: <http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10
February 2016].
157
The Federal Republic of Germany considers that the reservations made […] by Bangladesh
regarding article 2 … [is] incompatible with the object and purpose of the Convention (article
28, paragraph 2) and therefore objects to [it].382
Later, the objecting state argued that, ‘[p]ursuant to article 28, paragraph 2, of
the Convention, reservations that are incompatible with the ‘object and purpose’ of
the Convention shall not be permitted.’383 However, despite considering the
reservation incompatible with CEDAW, Germany stated that the ‘objection shall not
preclude the entry into force of the Convention as between … Bangladesh and the
Federal Republic of Germany.’384
Mexico also objected to the reservation made by Bangladesh to CEDAW but
did not want to make any comments on the participation of Bangladesh as a state
party to the Convention.385 Similarly, Sweden objected to Bangladesh’s reservation
alleging its incompatibility with the object and purpose of the Convention. However,
the Swedish government did not make any comments on the participation of
Bangladesh as state party to the Convention or whether the objection would preclude
382
Supra note 371, p.42.
383
See Convention on the Elimination of all forms of Discrimination Against Women. Meeting of
States Parties to the Convention on the Elimination of All Forms of Discrimination against Women.
Fourteenth meeting. Declarations, reservations, objections and notifications of withdrawal of
reservations relating to the Convention on the Elimination of All Forms of Discrimination against
Women. CEDAW/SP/2006/2 (10 April 2006) p.39.
384
Supra note 371.
385
See United Nations, Convention on the Elimination of all forms of Discrimination Against
Women. Meeting of state parties to the Convention on the Elimination of all forms of Discrimination
Against Women. Ninth Meeting. Declarations, Reservations, Objections and notifications of
withdraw of reservations relating to the Convention on the Elimination of all forms of Discrimination
Against Women. CEDAW/SP/1996/2 (8 February 1996) p.44. Also see United Nations. Division for
the Advancement of Women. Department of Economic and Social Affairs, Convention on the
Elimination of all forms of discrimination against women: Declarations, Reservations and Objections
to CEDAW. Objections (Unless otherwise indicated, the objections were made upon ratification,
accession
or
succession.)
Mexico.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
158
the entry into force of CEDAW between Bangladesh and Sweden.386
As seen above, although Germany, Mexico and Sweden objected to
Bangladesh’s reservation and argued for the incompatibility of the reservation with
CEDAW, none of the objections changed the relationship between Bangladesh and
the objecting states as parties to the Convention. In this regard, Lijnzaad observed
that, ‘[i]t is hard to see why a state objecting to a[…] reservation would not oppose
entry into force.’387 There are reasons, nonetheless.
Objections to reservations are often delicate acts because, before objecting to a
reservation, the objecting state has to evaluate if the objection is worth making,
considering the risks it might involve.388 For instance, if the relations between the
two states are tense for other reasons, objections could be perceived as an unfriendly
act. Therefore, objecting to the reservation, without precluding the establishment of
treaty relations, is a way of expressing disagreement in a ‘friendly’ manner. In cases
like these, objections do not represent substantial pressure on the reserving state to
withdraw its reservation. Instead, they function primarily as ‘declarations’ or an ‘atypical form of acceptance’.389
As noted previously, ‘the motivation of states as parties to the treaty or in their
individual relationships with the other members will, ultimately, impact on their
386
See United Nations, Division for the Advancement of Women. Department of Economic and
Social Affairs, Convention on the Elimination of all forms of discrimination against women:
Declarations, Reservations and Objections to CEDAW. Objections (Unless otherwise indicated, the
objections were made upon ratification, accession or succession.) Sweden. Available at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
387
See Lijnzaad, L, Reservations to UN-Human Rights Treaties: Ratify and Ruin (Martinus Nijhoff,
1995) p.52.
388
See Clark B, ‘The Vienna Convention Reservations Regime and the Convention on
Discrimination Against Women’ (1991) 85(2) American Journal International Law 301-302.
389
See Lijnzaad L, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (The Netherlands,
Martinus Nijhoff, 1995) p.47-54.
159
interests to object or not to a reservation.’390 Objectivity is impaired when analysis of
the compatibility of a reservation is left to individual state parties. Member states
might have, besides the legal reasons, also economic, political and other extra-legal
considerations to take into account before objecting to a reservation and deciding on
the entry into force of the Convention between the reserving state and the objecting
state.
Although Germany, Mexico and Sweden objected to Bangladesh’s reservation,
they did not oppose entry into force of CEDAW between them and Bangladesh.
According to the current residual reservation rules of the VCLT (Article 21,
paragraph 3), CEDAW would enter into force between Germany, Mexico, Sweden
and Bangladesh without the obligation of the objecting states to comply with Article
2. However, as Simma observes, ‘[r]eciprocal non-application of a reserved
provision by another State Party [to a human rights treaty] would not only be absurd
but also legally inadmissible.’391
Under treaties with reciprocal rights and obligations the provisions affected by
the reservation will not come into effect between the reserving and the objecting
state. However, human rights treaties are non-reciprocal and therefore an objecting
state’s obligation will not be changed or reduced. The objecting state will continue to
fulfil the same obligations to its own nationals.
Thus, it is no surprise that states did not make use of arbitration to settle their
different opinions regarding Bangladesh’s reservation. The use of arbitration
represents an even greater chance for conflicting views regarding the permissibility
390
See chapter 2, p.52-53.
391
See Simma, Bruno, ‘International human rights and general international law: A comparative
analysis’ In: Collected courses of the Academy of European Law (Kluwer Law International, Vol.4,
Book 2, 1995) p.181-182.
160
of a reservation to be translated into conflicts in the state-to-state relationships.
Further, states would still maintain their original obligations to the Treaty.
Although the objections to Bangladesh’s reservation have no apparent legal
effect, it should be noted that any objection carries the weight that the objecting state
gives to the reservation. Hence, even in cases when the objections do not prevent the
entry into force of the Treaty they are often considered as statements concerning the
state of the law. Therefore, the objections may prevent or minimise the formation of
customary law opposable to the objection.
Despite the apparent inefficacy of the objections submitted by Germany,
Mexico and Sweden, their arguments represent an important element in the study
conducted in this thesis. The objections to Bangladesh’s reservation express the
opinions of state parties that are under the same regulations as the reserving state
about the compatibility of the reservation to Article 2 of CEDAW.392
In addition to the opinions expressed by CEDAW state parties regarding
Bangladesh’s reservation to the Convention, the views shared by NGOs, particularly
those that are actively involved with women’s rights in the state party, also represent
an important element to be considered in the study of the impact of Bangladesh’s
reservation to the implementation of CEDAW in the country.
As I discuss further below, NGOs have been successfully ‘translating’
CEDAW into the domestic reality of Bangladesh when advocating for policies
directed at promoting and ensuring respect for women’s human rights in the
reserving state. With the use of shadow reports NGOs also act as ‘watchdogs’,
392
It should be stressed that the relationships between Bangladesh and the objecting states outside
the ambit of CEDAW are not under analysis in this thesis. For instance, the present argument on the
inefficacy of objections in pressuring Bangladesh to withdraw its reservation does not analyse the
possible consequences of the objections on economic partnerships that were or could be formed
between Bangladesh and the objecting states.
161
increasing the transparency of state actions and the participation of society in the
promotion of gender equality in the public and private spheres. Therefore, NGOs
play a key role in the monitoring process of CEDAW and they are also responsible
for exerting increasing pressure on Bangladesh’s leaders and policymakers to
advance gender equality and non-discrimination in the country’s public and private
spheres.
4.4.
NGOs in Bangladesh: ‘Empowering’ women and debating the reservation
to CEDAW
After the war of independence of Bangladesh in 1971, ‘the state inability to
contain poverty, illiteracy and corruption has posed limitations on the civil rights of
women.’393 With the assistance of foreign donors, who actively took part in
rebuilding the weak and damaged economy and the socio-political structure of
Bangladesh at the time, ‘women’s issues’ became tagged as development, which
helped to promote the process of ‘empowerment of women’ in the region and the
general interest and involvement of NGOs with women’s rights.394
The concept of ‘empowerment’ is a controversial topic and it has a long history
in the social sciences. In this thesis, ‘women’s empowerment’ is a term used to mean
a mechanism to improve women’s lives in the public and private spheres. This
393
See Murshid, Tazeen Mahnaz, ‘Women, Islam and the state in Bangladesh: Subordination and
resistance’ (2004) Bengali studies and reports. Swadhinata Trust. Available at:
<http://www.swadhinata.org.uk/document/WomenBdeshTazeen.pdf> [last accessed 10 February
2016].
394
See White, Sarah C, Arguing with the crocodile: gender and class in Bangladesh (Zed Books,
1992); Blair, Harry, ‘Civil society, Democratic Development and International donors: A case study
in Bangladesh’. Paper presented at the American Political Science Association (New York, 1-4
September 1994); Feldman, Shelley, ‘NGOs and civil society: (Un)stated contradictions’ (1997) 554
ANNALS of the American Academy of Political and Social Science 46-65; Hashmi, Taj ul-Islam,
Women & Islam in Bangladesh: Beyond Subjection & Tyranny (Palgrave Macmillan, 1999) Chapter
5; Islam, M Rezaul; Morgan, William J, ‘Non-governmental organizations in Bangladesh: their
contribution to social capital development and community empowerment’ (2012) 47(3) Community
Development Journal 369-385.
162
concept is accompanied by freedom and self-determination, enabling women to be
independent of men.395
NGOs devoted to working for women’s rights in Bangladesh are numerous and
varied, ranging from village-based groups with 10 to 15 members, working on
manual activities like sewing and handicrafts, to vast national organizations, such as
the Bangladesh Mahila Parishad with its 150,000 members. Their methods of work
and the interpretations given to the idea of ‘empowering women’ differ as well.
Studies conducted in the 1980s to the mid-1990s demonstrate how the notion of
empowering women has been addressed by NGOs in Bangladesh.396
Under the influence of a few NGOs, many illiterate women in rural
Bangladesh were no longer subservient to the village elders, known as Matbars
(members of the village courts who are next in hierarchy to the members of the
Union Parishad (lowest electoral unit) nor to the Mullas (influential to the village
elders for endorsing activities in the name of Sharia law).397 Many of them have
acquired courage to speak to the local village councils and defy village elders who
seek their votes in local and national elections.398
395
See Gholipour, Aryan; Rahimian, Ashraf; Mirzamani, Azam; Zehtabi, Mona, ‘IMPACT Model
of Women’s empowerment’ (2010) 3(1) International Business Research 57-65; Nazneen; Sohela,
Sultan, Maheen; Hossain, Naomi, ‘National’s Discourses of women’s empowerment in Bangladesh:
Enabling or constraining women’s choices?’ (2010) 53(2) Gender and empowerment 239-246. For
discussions on the measurement of ‘empowerment’ see Kabeer, Naila, The Conditions and
consequences of choice: Reflections on the measurement of women’s empowerment. (Discussion
paper n. 108. United Nations Research Institute for Social Development, 1999); Syed, Jawad,
‘Reconstructing gender empowerment’ (2010) 33(3) Women’s Studies International Forum 283-294.
396
See e.g. Chen M A, A quiet revolution: Women in transition in rural Bangladesh (Vermont,
Schenkman Books, 1983); Westergard K, ‘People’s empowerment in Bangladesh: NGOs strategies’
(1996) 72 Journal of Social Studies 27-57; Kabeer, Naila, The Conditions and consequences of
choice: Reflections on the measurement of women’s empowerment. (Discussion paper n. 108. United
Nations Research Institute for Social Development, 1999).
397
See Chen M A, A quiet revolution: Women in transition in rural Bangladesh (Vermont,
Schenkman Books, 1983).
398
See Westergard K, ‘People’s empowerment in Bangladesh: NGOs strategies’ (1996) 72 Journal
of Social Studies 27-57.
163
As Hashimi explains, ‘under the overpowering influence of the rural Mullas…
the average Bangladeshi Muslim has been programmed to accept the subjection of
women in every sphere of life as natural, efficacious’.399 The author further argues
that ‘[t]he persecution of hundreds of poor rural women by village Mullas and their
patrons (powerful village elders) in the name of “Islamic Justice” through village
courts (salish) in the recent past (1990-5) further aggravates the situation’.400
Therefore, by acquiring courage to speak to the local village councils and defy
village elders, women in rural Bangladesh might be putting their lives at risk. This
fact alone demonstrates the powerful influence of the NGOs that work to empower
women with the confidence to voice their own opinions in face of those that
continuously try to oppress them.
As Naher explains, the growing influence of NGOs came with a price and the
work developed by women’s organisations became the central focus of attacks by
some Islamist groups in Bangladesh between 1993 and 1994.
This development was, on the one hand, related to the increasing prominence of religious
discourse in socio-political life in Bangladesh, and on the other hand, an outcome of attempts
by different groups and institutions to gain or retain patriarchal control over women. The
religious groups that opposed NGOs in general and women's participation in NGO programs in
particular, claimed to be defending Islam and women’s honour.401
399
See Hashimi, Taj I, Women and Islam in Bangladesh: Beyond subjection and tyranny (New
York, Palgrave Mcmillian, 1999) p.62.
400
Ibid, p.63.
401
See Naher, Ainoon, ‘Defending Islam and women’s honour against NGOs in Bangladesh’ (2010)
33 Women’s studies International Forum 316.
164
Despite attacks from Islamist groups, the 1990s was a period of continued and
accelerated proliferation of NGOs, many of which targeted women and girls in
different sectors such as family planning, education and micro-credit.402 In fact,
‘NGOs in Bangladesh are currently very involved in the direct provision of
services’403 An example is the Bangladesh Rural Advancement Committee (BRAC),
the world’s largest development NGO.404
Goetz examines how BRAC’s development programs influenced the
development of different notions of ‘empowerment of women’ at an institutional
level.405 Goetz observes that ‘empowering women’ is not always a goal or even a
concept understood by development workers involved with projects or programs
created by BRAC and RD-12 (Rural Development Program of the Bangladeshi
government). She examined how both institutions approached the idea of
empowering women and the role women development workers play in promoting
women’s interests in development programs.406
Goetz also observed that women working for those institutions were concerned
primarily with the disbursement and recovery of loans, and few of the female
development agents believed they had a mission to empower women. From the two
organizations studied, BRAC is making more explicit adjustments in terms of the
behaviour of their women staff, whereas RD-12 has no agenda for using their women
402
See Davis, John K, ‘NGOs and development in Bangladesh: Whose sustainability counts?’
(2006) Global Poverty: Sustainable solutions. Proceedings of the Anti-Poverty Academic Conference,
Murdoch University.
403
See Gauri, Varun, ‘NGOs in Bangladesh: Activities, resources and governance’ (2005) 33(12)
World Development 2050.
404
See BRAC. Who we are. Available at:
are#.UGOv_RgVrZs> [last accessed 10 February 2016].
405
<http://www.brac.net/content/who-we-
See Goetz A M, Women development workers: implementing rural credit programmes in
Bangladesh (New Delhi, Sage Publications, 2001).
406
Ibid.
165
staff as social pioneers.407 Goetz concludes that hiring a large number of women does
not by itself lead to gender equality. More has to be done at the institutional level,
particularly addressing patriarchal strategies in policy implementation.408
In a different study, Nazneen, Hossain and Sultan examined BRAC from the
perspective of its clients. They argue that for BRAC, ‘rural poor women are
empowered through engagement with the market and taking part in productive
activities, reflecting the central importance of microfinance’.409 They then explain
that ‘[a]nalysis of [BRAC] annual reports suggests that empowerment is seen as an
outcome of the inputs they provide’ and that ‘[BRAC] reports are full of stories of
women improving their material conditions or community status’.410
The study states that in the BRAC reports, many women who joined the
organisation felt that by taking out a loan their lives had changed, because they were
able to make investments in business and send their children to school. This suggests
that different ‘needs’ of women are connected with different dimensions of
empowerment of the Bangladeshi women joining BRAC. In this case,
‘empowerment’ comes from the capacity of generating a source of income.
As mentioned above, the approach taken by women’s NGOs in Bangladesh to
the idea of empowerment of women is varied. The studies conducted by Goetz and
also by Nazneen, Hossain and Sultan demonstrate that although women development
workers might not be much concerned with their role in empowering women,
through the disbursement and recovery of loans they generate independent sources of
407
Ibid., p.195 – 257.
408
Ibid., p.291 – 328.
409
See Nazneen S, Sultan M; Hossain N, National Discourse on women’s empowerment in
Bangladesh: Continuities and Change (Pathways of Women’s Empowerment and Institute of
Development Studies, United Kingdom, 2011) p.21.
410
Ibid.
166
income to each client of BRAC and assist with the promotion of different notions of
empowerment.
‘There is no “one-size-fits-all” approach to women’s empowerment’.411
Despite their different approaches, NGOs working in Bangladesh have assumed a
position of ‘agents of development’,412 targeting women as key sites of investment
and promoting the significance of education and employment programs as arenas of
women’s empowerment. Arguably, they represent a key element in shaping state
practices and the view of women in the public and private spheres in Bangladesh.
As Gauri notes, ‘[t]he role of the NGO as lobbyist is potentially a powerful
one. The prevalence of NGOs all over Bangladesh, and the importance of the
services they provide for their communities, placed them in a unique position to
influence the government at both a local and national level.’413 Thus, the opinions
expressed by NGOs actively involved with advocacy and consciousness raising are
an important component of the discussion of the impact of Bangladesh’s reservation
to CEDAW on the implementation of the Convention.
4.4.1. NGO participation in the monitoring process of CEDAW
As part of the communications procedure of the OP-CEDAW (Articles 2 and
7), the CEDAW Committee receives information from NGOs on the record of state
parties through shadow reports. They can challenge ‘where the state party’s
411
See Pathways of women’s empowerment, Empowerment: A journey, not a destination, UK Aid,
2006. Available at: <http://www.capacity.org/capacity/export/sites/capacity/documents/topicreadings/PathwaysSynthesisReport.pdf> [last accessed 10 February 2016].
412
See Kabeer N, ‘The Quest for National Identity: Women, Islam and the State in Bangladesh’
(1991) 37 Feminist Review 53–54; Shehabuddin E, Reshaping the holy: Democracy, development and
Muslim women in Bangladesh (New York, Columbia University Press, 2008) p.111-120.
413
See Gauri, Varun, ‘NGOs in Bangladesh: Activities, resources and governance’ (2005) 33(12)
World Development 2051.
167
government may be trying to mislead the Committee’.414
A well documented shadow report is a powerful tool for NGOs. It offers NGOs
an official platform to review the accuracy and veracity of the information presented
by the state as well as providing the CEDAW Committee with the additional
information it needs to address specific gaps in the state party’s policies and specific
barriers to the achievement of gender equality in the public and private spheres of a
woman’s life.
In 2004 the NGOs ASK, BMP and STD jointly submitted a shadow report to
the CEDAW Committee, expressing their common understanding that the
government of Bangladesh should withdraw the reservation against Article 2 of
CEDAW.415 The NGOs argued that Bangladesh’s reservation is inconsistent with the
country’s constitutional guarantees of equality and non-discrimination, as well as
with the ‘National Policy for the Advancement of Women’ (NPAW). The NPAW
enunciates a commitment to gender equality and covers a range of areas, such as the
prevention of violence against women, women’s education, employment, food
security, gender responsive budgeting, the rights of the disabled and distressed
women, and the protection of women from the adverse effects of climate change.416
414
See International Women’s Rights Action Watch, Shadow Reporting to UN Treaty Bodies.
Available at: <http://www1.umn.edu/humanrts/iwraw/reports.html> [last accessed 10 February 2016].
415
See Ain O Salish Kendra; Bangladesh Mahila Parishad; Steps Toward Development, Shadow
Report to the Fifth Periodic Report of the Government of Bangladesh (May 2004). Available at:
<http://www.iwraw-ap.org/resources/pdf/bangladesh_SR.pdf> [last accessed 10 February 2016].
416
See Government of the People’s Republic of Bangladesh, National Women Development Policy,
2011,
March
2011.
Available
at:
<http://www.dhakasoft.com/mspvaw/images/policyandact/National%20Women%20Development%20Policy%202011%2
0English.pdf> [last accessed 10 February 2016]; Bhuiyan S J, National Policy for the Advancement of
Women, 2008. Urban Primary Health Care Services Delivery Project, UPHCP Bangladesh, 2008.
Available
at:
<http://www.uphcp.org/index.php/training/downloadfile/NationalPolic%20forWomenAdvancement.d
oc> [last accessed 10 February 2016]; Office of the High Commissioner for Human Rights,
Bangladesh Country Statement. UN CEDAW Meeting, Geneva, 2011, p.3. Available at:
<http://www2.ohchr.org/english/bodies/cedaw/docs/statements/Bangladesh48.pdf> [last accessed 10
February 2016].
168
ASK, BMP and STD also stressed that Bangladesh has a relevant number of
citizens who are not Muslims and to whom Sharia Law does not apply. They then
argued that it would be in the interest of the entire population for Bangladesh to
withdraw ‘its remaining reservation to CEDAW’.417
In the ‘Combined Sixth and Seventh Alternative Report’, the Citizen’s
Initiative of Bangladesh (CIB) argued that, ‘Article 2 is fundamental to
implementation of all other provisions of CEDAW. Reservations placed on it,
therefore, appear to negate Bangladesh’s commitment to the elimination of all forms
of discrimination’.418 They also stressed that the reservation against Article 2 of
CEDAW goes against the guarantees provided under Articles 10, 19, 27, 28, and 29
of Bangladesh’s Constitution.419
As seen above, in the Sixth and Seventh periodic reports, Bangladesh argued
that its Constitution was in conformity with CEDAW, particularly Articles 10, 27, 28
and 29. 420 However, the CIB stated that Bangladesh’s reservation is in conflict with
the state’s commitment to implement CEDAW and contradicts its own Constitution.
In this situation, the NGO used the same information used by the state party, but
instead of defending the reservation, the NGO argued against it.
In a different document prepared for the CEDAW Committee, the Migrant
417
See Ain O Salish Kendra; Bangladesh Mahila Parishad; Steps Toward Development, Shadow
Report to the Fifth Periodic Report of the Government of Bangladesh (May 2004), p.11. Available at:
<http://www.iwraw-ap.org/resources/pdf/bangladesh_SR.pdf> [last accessed 10 February 2016].
418
See Citizen’s Initiative on CEDAW-Bangladesh, Combined sixth and seventh Alternative Report
to
the
UN
CEDAW
Committee,
2010,
p.17.
Available
at:
<http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/Citizens_Initiative_Bangladesh_CEDAW48
.pdf> [last accessed 10 February 2016].
419
Ibid.
420
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Combined Sixth and Seventh periodic reports of states parties. Bangladesh.
CEDAW/C/BGD/6–7 (24 March 2010) p. 25 para.70.
169
Forum Asia (MFA)421 argued that Bangladesh’s reservation influenced labour
migration of Bangladeshi women.422 The MFA requested the government of
Bangladesh to consider withdrawing its reservation to CEDAW in order to improve
the empowerment of women in the region and facilitate migration abroad.423 The
MFA discussed Bangladesh’s policies in accounting for underlying societal causes
for gender inequity and inequality, with a focus on the labour migration of women in
Bangladesh.
The reservation of the government of Bangladesh in Article 2 [of CEDAW] has sustained the
existing code of family laws, which ultimately put female labour migrants in a disadvantaged
condition in terms of access to and control over resources. This provision has a major bearing
on female labour migration in the context of the increasing cost of migration.424
As seen above, the reports examined show that NGOs have argued against the
reservation made by Bangladesh to Article 2 of CEDAW. The incompatibility with
the ‘object and purpose’ of the Convention and its negative implications for Articles
10, 19, 27, 28 and 29 of the reserving state’s Constitution were the core arguments
used. The opinions expressed by the NGOs are consistent with the arguments put
forward by the CEDAW Committee and by Germany, Mexico and Sweden.
421
See Migrant Forum Asia. Available at: <http://www.mfasia.org/> [last accessed 10 February
2016].
422
See Migrant Forum Asia, CEDAW and the female labour migrants of Bangladesh, 2009-2010.
Available
at:
<www2.ohchr.org/english/bodies/cedaw/docs/ngos/MFA_for_the_session_Bangladesh_CEDAW48.p
df> [last accessed 10 February 2016].
423
Ibid, p.19.
424
Ibid, p.17.
170
4.5.
Bangladesh’s reservation and the commitment to CEDAW
Bangladesh’s persistence in maintaining the reservation can be considered, by
itself, a demonstration of a lack of commitment to the monitoring process of
CEDAW. The state party refuses to withdraw a reservation that affects the
implementation of Article 2, which in addition to Articles 1, 3 and 24, expresses the
object and purpose of the Convention. In the words of Yahyaoui Krivenko, ‘[if] a
state refuses to comply with one or another provision of this Article [Article 2], it
will inevitably find itself sooner or later violating other provisions of the
Convention.’425
Article 2 is the Article that expresses the core commitments of the state parties
to the Convention. Thus, entering, and persisting in maintaining, a reservation
against it may have, in practice, the same consequences as placing a reservation
against any (or every) other provision of the Convention.
In its Eighth periodic report to the CEDAW Committee, Bangladesh argued
that religious interpretations of the law are still responsible for discrimination against
women that continues both in public and private spheres in the country. Bangladesh
argued that even the judicial system is influenced by patriarchal and discriminatory
views of the laws, which subsequently leads to a failure of the system to deliver
equal treatment for women who try to access the courts for redress.
Bangladesh’s government attempted to show caution in addressing the
pervasive effects of discriminatory interpretations of religious personal laws, but the
state also indicated that it had limited power to act against discriminatory practices
promoted by interpretations of religious personal laws. Recent news published by
425
See Yahyaoui Krivenko, Ekaterina, Women, Islam and International law: Within the context of
the Convention on the Elimination of all forms of Discrimination Against Women (Martinus Nijhoff
Publishers, 2008) p.123.
171
Human Rights Watch shows that the country’s ‘security forces have carried out
enforced disappearances, killings and arbitrary arrests, particularly targeting
opposition leaders and supporters, with impunity’.426 It seems that the state is under
increasing pressure to maintain current political leaders in power and enforce their
own agenda, which supports Bangladesh’s alleged caution in the Eighth periodic
report.427
Bangladesh has not proposed any changes that would or could be implemented
in order to address the dominance of religious groups in political decision-making.
Also, it has not identified any practical measures that could be implemented to
achieve the withdrawal of the reservation to Article 2 of CEDAW.
Against this background, in the next chapter I will study how religious personal
laws affect the achievement of equality and non-discrimination in Bangladesh. This
discussion aims to assess the effectiveness of the CEDAW regime of reservations in
achieving Bangladesh’s compliance with the Convention. I will examine the impact
of religious personal laws on women’s rights and, in turn, address how religious
personal laws affect the reserving state’s compliance with CEDAW. Looking into
Bangladesh’s compliance with their obligations to promote gender equality and nondiscrimination is important for enhancing the current understanding of the accuracy
of the CEDAW Committee’s comments to reserving states.
426
See Human Rights Watch, ‘Bangladesh’. Available at: <https://www.hrw.org/asia/bangladesh>
[last accessed 10 February 2016].
427
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Eighth report of state parties due in 2015. Bangladesh.
CEDAW/C/BGD/8 (27 May 2015), pp.11–12 para. 47; 54.
172
5. RELIGIOUS PERSONAL LAWS AND THE IMPLEMENTATION OF
CEDAW IN BANGLADESH
The CEDAW Committee’s review of Bangladesh’s periodic reports identified
issues for the achievement of gender equality and non-discrimination in the country.
The discriminatory interpretations of religious personal laws, in particular, provoked
much debate in the review process from the Second to the Seventh periodic
reports.428
However, as discussed in the previous chapter of this thesis, Bangladesh is
reluctant to bargain any aspect of Muslim personal law that may conflict with Article
2 of CEDAW. In the Eighth periodic report Bangladesh informed the Committee that
the reservation to CEDAW is still intact because religious leaders who support
discriminatory interpretations of personal laws still receive great political and social
support.429 In turn, the reservation to Article 2 stands.
Bangladesh argued that religious fundamentalist groups are pressuring the
government to maintain the reservation.430 There are also allegations from HRW that
those same groups are behind kidnaps and deaths of people who oppose current
political forces in the country.431 According to Bangladesh, despite any interest the
government might have in withdrawing the reservation to CEDAW, religious groups
428
See chapter 4, section 4.2 for an examination of the engagement between Bangladesh and the
CEDAW Committee in the review of the periodic reports.
429
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Eight report of state parties due in 2015. Bangladesh.
CEDAW/C/BGD/8 (27 May 2015) pp.10–11, para. 44-47.
430
Ibid, p.10 para.45.
431
See
Human
Rights
Watch,
‘Bangladesh’.
Available
at:
<https://www.hrw.org/report/2014/04/29/democracy-crossfire/opposition-violence-and-governmentabuses-2014-pre-and-post> [last accessed 10 February 2016].
173
strongly oppose it and the government can do little besides acting in a ‘cautious
manner’.432
Notions of gender equality and non-discrimination vary according to the
interpretations of religious personal laws in Bangladesh. The state party’s reservation
only promotes the continuity of this reality. Thus, examining the effects of religious
personal laws on women’s human rights in Bangladesh is an important step in the
study of the state’s compliance with the Convention.
In this chapter I examine the effects of current interpretations of religious
personal laws on Bangladeshi women’s rights to equality and non-discrimination, as
established in CEDAW. This chapter begins with a review of the debates regarding
reservations made to CEDAW grounded on conflicts with religion, specifically with
Muslim personal law.
Bangladesh’s reservation illustrates
current
debates on
Sharia-based
reservations to the Convention (such as the reservations entered by Egypt, Libya,
Saudi Arabia, Nigeria, Pakistan, Cameroon, the Maldives, the United Arab Emirates,
Jordan, Bahrain, Mauritania, Malaysia, and Lebanon).433 Currently, these
reservations account for forty per cent of the reservations made to CEDAW. Thus,
understanding the implications of religious personal laws for the achievement of
gender equality can shed light on the effectiveness of the CEDAW regime of
reservations to constrain reserving states’ practices to implement the Convention.
432
Supra note 444.
433
See United Nations, Division for the Advancement of Women, Department of Economic and
Social Affairs, ‘Convention on the Elimination of all forms of discrimination against women:
Declarations,
Reservations
and
Objections
to
CEDAW’.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016]; Organization of Islamic Cooperation, OIC. Member states. Available at: <http://www.oicoci.org/member_states.asp> [last accessed 10 February 2016].
174
There has been extensive debate in the literature on the characteristics, causes
and consequences of reservations that argue for a conflict between religion and
international human rights conventions.434 Existing studies examine, in particular,
how the difference between cultures is a central component in the debates regarding
the universality versus integrity of human rights treaties.435
Although claims of differences between cultures are legitimate, I also
acknowledge that governments might use the difference of culture and religious
traditions to avoid the implementation of human rights conventions that could
endanger their status quo.436 Hence, in this thesis I do not follow theories that rely
solely on the difference of cultures to explain the relation of Muslim states and
countries with CEDAW’s regime of reservations. Taking into account the significant
number of reservations made to the Convention on the grounds of conflict with
Muslim personal law, I understand that differences between cultures and religious
traditions are a factor, but not the only factor to be considered in the examination of
the effectiveness of the CEDAW regime of reservations in protecting treaty integrity.
Against this background, I examine whether and how Bangladesh has
complied with the state parties’ obligations to CEDAW. In particular, I ask whether
Bangladesh’s government is acting with due diligence or is being negligent towards
434
See Alston, Phillip, ‘The United Nations and the elliptical notion of the universality of human
rights’ (1987) Is Universality in Jeopardy? Report of a symposium on December 16 (United Nations
Department of Public Information, UNDPI, 1985); Donnelly, Jack, ‘Human Rights and Asian Values:
A Defence of “Western” Universalism’ In: Bauer, Joanne R; Bell, Daniel A(eds) The East Asian
Challenge for Human Rights (Cambridge University Press, 1999) 60-87; Suboti´c, Milica, Cultural
Relativism for Universality of Human Rights (University of Sarajevo/ University of Bologna, Center
for Interdisciplinary Postgraduate Studies, 2005).
435
See e.g. Ignatieff, Michael, ‘The attack on human rights’ (2001) 80(6) Foreign Affairs Council of
Foreign Relations 102-116; Jackson, David Karpp, ‘The utopia and reality of sovereignty: social
reality, normative IR and ‘Organized Hypocrisy” (2008) 34 Review of International Studies 313-335.
436
See e.g., Porter, Jean, ‘Protecting individual rights: a deeply catholic tradition (really)’ (2006)
133(19) Commonwealth 12-14; Keys, Barbara, ‘Congress, Kissinger and the origins of human rights
diplomacy’ (2010) 34(5) Diplomatic history 823-851.
175
the pervasive influence of discriminatory interpretations of religious personal laws in
the country. To understand this issue, I review Bangladesh’s cultural-legal system.
Specifically, I look into Bangladesh’s Constitution and pertinent laws in the country
to assess the position of religious personal laws in Bangladesh’s legal framework.
Then, I discuss how religious personal laws in Bangladesh regulate marriage,
separation, divorce and guardianship. In light of this discussion, I will examine the
effects of current interpretations of personal laws on gender equality and nondiscrimination in the country.
This examination will reveal significant issues to be addressed by the CEDAW
Committee as part of the monitoring process of the Convention. It will also provide
the basis for the analysis of the accuracy of the CEDAW Committee’s comments and
questions to Bangladesh.
As discussed above, the accuracy, quality and significance of the treaty bodies’
comments and questions to state parties play a significant role in improving the
effectiveness of the UN monitoring system. Thus, when studying the effectiveness of
the CEDAW regime of reservations to protect treaty integrity, it is important to
assess the significance of the CEDAW Committee’s comments to Bangladesh.
Subsequently, I will look into the CEDAW Committee’s current main sources
of information on the implementation of CEDAW: the state party, NGOs and UN
specialised agencies. I will examine the current methods adopted by the Committee
for the submission of documents discussing the implementation of CEDAW and how
these methods affect the Committee’s assessment.
176
5.1. Overview of ‘Islamic-based’ reservations to CEDAW
Islamic states and Islamic countries do not always enter reservations grounded
on conflicts with Muslim personal law or necessarily enter any reservation at all. In
fact, Islamic states and Islamic countries have adopted different positions and
approaches on human rights Conventions: ‘[s]ome states have ratified Conventions
without reservations and some have made reservations that have nothing to do with
Islam.’437
Albania, Algeria, Azerbaijan, Brunei Darussalam, Benin, Burkina Faso, Chad,
and others have not entered reservations or have not argued a conflict with Muslim
personal law in their reservations.438 This indicates that not all Muslim states and
countries react to CEDAW in the same way. These differences often result from the
level of incorporation of Islam into the legislation of each member state and from
different interpretations that may derive from relevant provisions of the Sharia law in
each case.439 Turkey and Saudi Arabia’s reservations to CEDAW illustrate this
discussion.
Turkey had originally made a reservation against Article 15, paragraphs 2 and
4; Article 16, paragraphs 1 (c), (d), (f) and (g) as well as to Article 29, paragraph 1.
On 20 September 1999, the government of Turkey withdrew the reservation against
437
See Meyer, Ann Elisabeth, ‘Islamic reservations to human rights conventions: A critical
assessment’ (1998) 15 Recht van de Islam 25.
438
See United Nations. Division for the Advancement of Women. Department of Economic and
Social Affairs, Convention on the Elimination of all forms of discrimination against women:
Declarations,
Reservations
and
Objections
to
CEDAW.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
439
See Mayer, Ann Elisabeth, ‘Internationalizing the conversation on women’s rights: Arab
countries face the CEDAW Committee’ In: Haddad, Yvonne Yazbeck; Stowasser, Barbara Freyer,
Islamic Law and the challenges of modernity (Altamira Press, 2004) p.133-155; Krivenko, Ekaterina
Yahyaoui, ‘Islamic views of women’s rights: An international Lawyer’s perspective’ (2009) 2(1)
Journal of East Asia and International Law 103-128.
177
Article 15, paragraphs 2 and 4; Article 16, paragraphs 1 (c), (d), (f) and (g), only
maintaining the reservation to Article 29, and declared a possible conflict between
Article 9 and the Turkish Law on Nationality.440 Saudi Arabia’s reservation, on the
other hand, affects any provision of the Convention that may conflict with Muslim
personal law, specifically Articles 2 and 9.441
In Turkey and in Saudi Arabia there is a clear distinction in the relationship
between the state and religion. This ultimately refers to the establishment of
secularism versus the adoption of an official state religion and the restrictions on
freedom of religion.
Turkey has an overwhelming Muslim majority population. While Muslims
constitute 99 percent of Turkey’s population, the country is still a constitutionally
secular democracy with a separation of religion from all public spheres of life.442 The
Preamble to the Constitution of Turkey affirms that ‘there shall be no interference
whatsoever by sacred religious feelings in state affairs and politics.’ Article 2
declares that ‘the Republic of Turkey is a democratic, secular and social state.’443
Powell argues that, ‘[t]here is a wide range of views concerning Islamic law in
Turkey, but it could be argued that the three most influential approaches are the
official state position, that of Ya ar Nuri zt rk, and that of Fethullah G len’.444 The
440
For the reservation and declaration regrading Article 9 see note 454. For the Turkish Law on
Nationality see Turkish Citizenship Law. Law No. 5901. Adopted on 29 May 2009. Available at:
<http://www.refworld.org/docid/4a9d204d2.html> [last accessed 10 February 2016].
441
Supra note 454.
442
See Central Intelligence Agency (CIA). The World Factbook. Middle East: Turkey. People and
Society. Available at: <https://www.cia.gov/library/publications/the-world-factbook/geos/tu.html>
[last accessed 10 February 2016].
443
See Turkey Constitution. Adopted in 1982. Last amendment in May 2007. Available at:
<http://www.servat.unibe.ch/icl/tu00000_.html> [last accessed 10 February 2016].
444
See Powell, Russell, ‘Evolving views of Islamic law in Turkey’ (2013) 28(2) Journal of Law and
Religion 479.
178
Dyanet or the Directorate of Religious Affairs445 interprets Islam as a religious and
moral system that speaks to all aspects of life. However, religion is not to be imposed
on the legal system, but should be separate from civil laws.446 Ya ar Nuri zt rk and
Fethullah G len’s interpretations of Islam in Turkey address secularism as a natural
product of Islam and not in confrontation with Islam.447
While Turkey is a model of a secular Islamic country, it can be argued that
Saudi Arabia is on the other extreme. Saudi Arabia’s legal system is based on Sharia
Law448 and the ‘Basic Law’449 establishes Quran and Sunna as the country’s
Constitution (Articles 6-8).450 There is no practice of non-Muslim religions in public,
only in the privacy of people’s homes. In fact, Saudi Arabia religious Police
(Mutawwa’in) has been accused of raiding non-Muslim religious gatherings on
private property.451 According to Amnesty International, non-Muslim worshippers
445
The Directorate of Religious Affairs is an official institution, established in 1924 and founded by
the Grand National Assembly of Turkey. The duties of the Diyanet are ‘to execute the works
concerning the beliefs, worship, and ethics of Islam, enlighten the public about their religion, and
administer the sacred worshiping places’. See Republic of Turkey. Presidency of religious affairs.
Basic principles and objectives. Available at: <http://www.diyanet.gov.tr/en/category/basicprinciples-and-objectives/23> [last accessed 10 February 2016]; See Republic of Turkey. Presidency
of
religious
affairs.
Establishment
and
a
brief
history.
Available
at:
<http://www.diyanet.gov.tr/en/kategori/kurumsal/1> [last accessed 10 February 2016].
446
See Kars, Ayodgan, ‘Maqasid or Sharia? Secularism, Islamic reforms and ethics in modern
Turkey’ In: Duderija, Adis (ed.), Maqasid Al Sharia and contemporary reformist Muslim thought
(Palgrave Macmillan, 2014) p.127-150.
447
See Ylmaz, Ihsan, Muslim laws, politics and society in Modern nation states: Dynamic legal
pluralisms in England, Turkey and Pakistan (Ashgate, 2005); Powell Russell ‘Evolving views of
Islamic law in Turkey’ (2013) 28(2) Journal of Law and Religion 467-487.
448
See Fox, Johnatan, An introduction to religion and politics: Theory and practice (Routledge,
2013) p.177-193.
449
Charter divided into nine chapters, consisting of 83 Articles. The Basic Law addresses the areas
of law not foreseen by the Sharia. See Tarazi, A. Michael, ‘Recent Developments: Saudi Arabia’s
new basic laws: The struggle for participatory Islamic government’ (1993) 34 Harvard International
Law Journal 258-275.
450
See Basic Law of Governance. Royal Order No (A/91). Issued in 1 March 1992. Available at:
<https://www.sagia.gov.sa/Documents/Laws/Basic%20Law%20of%20Governance_En.pdf>
[last
accessed 10 February 2016].
451
See Nwankwo, Peter O, Criminology and criminal justice systems of the world: A comparative
perspective (Trafford Publishing, 2011) p.166.
179
risk arrest, lashing and deportation for engaging in overt religious activity that
attracts attention from the Police.452
Turkey and Saudi Arabia’s reservations to CEDAW reflect how Islam is
incorporated into their legal frameworks. This discussion suggests that the influence
of religion in state affairs can affect how a state party will respond to the
establishment of equality and non-discrimination as provided in CEDAW.
Many Islamic states and Islamic countries ratified CEDAW even though they
were dissatisfied with particular provisions and how the principles of ‘substantive
equality’ and ‘non-discrimination’ are codified in the Convention.453 Although their
justification for reserving the Convention can vary, as illustrated above, it is a fact
that about 40 percent of all reservations made to the Convention are from Islamic
states or Islamic countries and over 50 percent of these reservations were based on
alleged conflicts with Muslim personal law.454
While some of the reservations have specified the provisions of CEDAW
believed to be contrary to Sharia Law (such as reservations entered by Bangladesh,
Brunei Darussalam, Egypt, Iraq and Libya), others do not elaborate on the specific
452
See Amnesty International. Saudi Arabia: End secrecy, end suffering. Available at:
<https://www.amnesty.org/download/Documents/140000/mde230162000en.pdf> [last accessed 10
February 2016]; Amnesty International. Report 2014/2015. The state of the world’s human rights,
p.313-316.
453
See Meyer, Ann Elisabeth, ‘Islamic reservations to human rights conventions: A critical
assessment’ (1998) 15 Recht van de Islam 25-45; Krivenko, Ekaterina Yahyaoui, Women, Islam and
International law: Within the context of the Convention on the Elimination of all forms of
Discrimination Against Women (Martinus Nijhoff Publishers, 2009). For the reservations made by
Islamic states and Islamic countries see United Nations, Division for the Advancement of Women.
Department of Economic and Social Affairs, Convention on the Elimination of all forms of
discrimination against women: Declarations, Reservations and Objections to CEDAW. Available at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
454
See United Nations, Division for the Advancement of Women. Department of Economic and
Social Affairs, Convention on the Elimination of all forms of Discrimination Against Women:
Declarations,
Reservations
and
Objections
to
CEDAW.
Available
at:
<http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm> [last accessed 10 February
2016].
180
conflicts argued (such as reservations entered by Malaysia and Syria ) and there are
also general reservations potentially applying to the entire Convention (such as
reservations entered by Oman and Saudi Arabia). In light of this, it is reasonable to
ask: what contributes to the number of reservations made to CEDAW by Islamic
states and Islamic countries?
Bahrain, Brunei, Iraq, Jordan, Malaysia, Kuwait and the United Arab Emirates
(UAE) all have reservations to Article 9 of CEDAW.455 However, only Iraq,
Malaysia and UAE opposed a woman’s right to determine her own nationality.456
While Bahrain, Brunei, Iraq, Jordan and Malaysia argued for the existence of a
conflict between the Islamic Sharia as cause for the reservations; the UAE and
Kuwait’s reservations argue that their domestic laws apply on matters relating to
nationality.457 Article 9 of CEDAW reads as follows:
Article 9
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.
Islamic countries and states provide different arguments for reservations to
CEDAW. The literature suggests a number of possible reasons for this. Sawad argues
that, ‘[m]any in the Muslim world appear to believe that certain provisions in
455
Supra note 454.
456
Ibid.
457
Ibid.
181
CEDAW not only conflict with but, if accepted, have the potential to override and
replace Islamic Shari’ah with a different normative standard.’458
Brandt and Kaplan claim that countries with strong Islamic traditions enter
reservations to CEDAW because ‘Conventions like CEDAW … engender
reservations by states worried that they will not be responsible to answer to an
international group that may not include one of their own representatives’.459 That is,
states enter reservations aimed at protecting Muslim traditions, as they might not be
respected without an Islamic state or Islamic country as part of the international body
responsible for monitoring the implementation of the Convention.
Reservations to human rights treaties are also considered a way of limiting
interference in state sovereignty.460 Neumayer observes that ‘[g]iven that human
rights treaties typically set up norms, the purpose of which is to comprehensively and
broadly regulate domestic human rights observance by governments rather than
relations among nations they are more intrusive than other treaties.’ 461 Reservations
would be used to minimise ‘intrusion’ from international laws.
In this context Islamic reservations to CEDAW can be seen as a response to
CEDAW’s attempt to influence interpersonal relationships. For instance, Article 2 of
CEDAW mandates state parties to alter and change their domestic laws concerning
the way they regulate the private affairs of individuals to comply with gender
458
See Sawad A A, ‘Reservations to Human Rights Treaties and the Diversity Paradigm: Examining
Islamic Reservations’. PhD Thesis (New Zealand, University of Otago, 2008) p. 214.
459
See Brandt M; Kaplan J A, ‘The tension between women’s rights and religious rights:
reservations to CEDAW by Egypt, Bangladesh and Tunisia’ (1996) 12 (1) Journal of Law and
Religion 108.
460
See, for example, Jackson, Robert, Sovereignty: organized hypocrisy (Princeton University Press,
1999); Donnelly, Jack, ‘The relative universality of human rights’ (2007) 29(2) Human Rights
Quarterly: 281–306.
461
See Neumayer, Eric, ‘Qualified ratification: Explaining reservations to human rights treaties’
(2007) 36(2) Journal of Legal Studies 401
182
equality and non-discrimination. However, interpretations of the Muslim personal
law that strictly follow verse 2:229 of the Quran do not support equality in private
life. Verse 2:229 states: ‘[a]nd they (the women) have rights similar to those (of men)
over them in equity; but men have a rank above them.’462
Although CEDAW mandates state parties to ensure equal rights in family
relations (Article 16), the Islam does not allow an equal inheritance right to women.
In all capacities women receive one half of men’s share.463 Women’s NGOs in
Bangladesh make constant complaints about the reduced share allowed for
women.464 As observed in the ‘Alternative Report to the UN CEDAW Committee’,
prepared by the Citizens’ Initiative on CEDAW-Bangladesh, ‘[a] dualistic system of
rights leads to discrimination in the personal sphere because religious laws prevail in
matters of inheritance, marriage, divorce, and maintenance over civil laws,
notwithstanding constitutional guarantees of equality.’465
Countries with strong religious groups are also susceptible to enter reservations
to protect their own traditions and interpretations of the Muslim personal law.
Mahalingam notes that: ‘CEDAW represents the most comprehensive statement
regarding the political, economic, social, and cultural rights of women, and thus
presents a direct challenge to some of the most ardently held views of militant
Islamic fundamentalism.’466 It is important to understand what represents the basis
for religious fundamentalism. As Armstrong notes,
462
See The Holy Quran. Available in English at: <http://www.alislam.org/quran/search2/> [last
accessed 10 February 2016].
463
Ibid, Verse 4:12.
464
See Citizens’ Initiative on CEDAW-Bangladesh. Combined sixth and seventh Alternative Report
to the UN CEDAW Committee (2010) p.17-18.
465
Ibid, p.24.
466
See Mahalingam, Ravi, ‘Women’s rights and the war on terror: Why should the United States
view the ratification of CEDAW as an important step in the conflict with militant Islamic
fundamentalism’ (2004) 34(2) California Western International Law Journal 174.
183
[r]eligious fundamentalism represents a widespread rebellion against the hegemony of
secularist modernity ... The various fundamentalist ideologies show a worrying disenchantment
with modernity and globalization ... Indeed, every single fundamentalist movement that I have
studied in Judaism, Christianity, and Islam is rooted in a profound fear of annihilation. All are
convinced that the modern, liberal, secular establishment wants to wipe out religion ... But at
the root of all these movements is the same visceral dread that is rapidly being transformed in
some quarters into ungovernable rage.467
As discussed in the previous chapter, Bangladesh argued that pressure from
Islamic fundamentalist groups is a major reason for the state maintaining its
reservation to CEDAW.468 Over the past few years, newspaper articles have been
publishing news about attacks on secularists in Bangladesh.469 In 2013, Nadia
Sharmin, a news reporter for Ekushey Television, was attacked by a group of
Islamist activists. According to Motwani, ‘[t]o them, Sharmin’s presence represented
one of the many facets of modern day Bangladesh that they were protesting against,
namely the free mixing of males and females.’470
The British Broadcasting Corporation (BBC) drew attention to this issue and
467
See Armstrong, Karen, ‘Resisting modernity’ (2004) 25(4) Harvard International Review 40.
468
Supra note 444.
469
See Mustafa, Sabir, ‘Hefazat-e Islam: Islamist coalition’ (2013) Asia. BBC News. Available at:
http://www.bbc.com/news/world-asia-22424708 [last accessed 10 February 2016]; Bucomb, Andrew,
‘Bangladesh protests: 15 die in clashes as Islamic conservatives battle with police battle over
implementation of anti-blasphemy law’ (2013) Asia. Independent. Available at:
<http://www.independent.co.uk/news/world/asia/bangladesh-protests-15-die-in-clashes-as-islamicconservatives-battle-with-police-over-8604881.html> [last accessed 10 February 2016]; Karim, Maj
Gen Afsir, ‘Wahhabism in South Asia’ (2014) India Defence Review. Available at:
<http://www.indiandefencereview.com/news/wahhabism-in-south-asia/> [last accessed 10 February
2016]; Stark, Alexandra, ‘Bangladesh on the brink: Between terrorism and democracy’ (2015) The
Pulse. The Diplomat. Available at: <http://thediplomat.com/2015/09/bangladesh-on-the-brinkbetween-terrorism-and-democracy/> [last accessed 10 February 2016].
470
See Motwani, Esham, ‘The rise of Islamic fundamentalism in Bangladesh and its implications
form
women’
(2013)
South
Asia
Masala.
Available
at:
<http://asiapacific.anu.edu.au/blogs/southasiamasala/2013/05/28/the-rise-of-islamic-fundamentalismin-bangladesh-and-its-implications-for-women/> [last accessed 10 February 2016].
184
reported the following in its website: ‘Death threats to secular bloggers are on the
rise in Bangladesh. A few years back, hardline Islamists demanded a blasphemy law
to stop bloggers they perceive to be anti-Islamic from writing about Islam.’471
Although these crimes are still under investigation, the news articles mentioned,
along with several others referred to in this chapter, 472 corroborate Bangladesh’s
claims over the ongoing pressure from religious fundamentalist groups.
Despite the wide range of reasons that may explain the number of reservations
made to CEDAW by Islamic states and Islamic countries, there may be a correlation
between them, especially when the reservations are expressly grounded on a conflict
with the Sharia Law.473 However, even in such cases there is an element that may
vary: Sharia plays a range of roles within a state’s legal system.474 Abiad observes
that the different roles of Sharia can be divided as follows: ‘(1) where Sharia is a
significant source of the substantive law in general; (2) where Islam is declared as
the religion of the state.’475
The role of Islam in Bangladesh’s legal system places the reserving state in a
category that would encompass both characteristics described by Abiad. Although
Bangladesh has declared Islam as the state religion (Article 2, paragraph a,
Constitution of Bangladesh), the National Constitution also establishes that the state
471
See BBC News, Asia. Bangladesh blogger Anata Bijoy Das hacked to death. Available at:
<http://www.bbc.com/news/world-asia-32701001> [last accessed 10 February 2016].
472
Supra note 485.
473
See Abiad, Nisrine, Sharia, Muslim States and international human rights treaty obligations: A
comparative study (British Institute of International and Comparative Law, 2008); Wolfrum, Rudiger,
‘Constitutionalism in Islamic countries: A survey from the perspective of international law’ In: Grote,
Rainer; Roder, Tillman J (eds.), Constitutionalism in Islamic countries: Between upheaval and
continuity (Oxford University Press, 2012).
474
Ibid.
475
See Abiad, Nisrine, Sharia, Muslim States and international human rights treaty obligations: A
comparative study (British Institute of International and Comparative Law, 2008) p.46.
185
is secular (Article 8).476 This, then, raises the question, how does religion affect the
state’s domestic legislation and how do the laws of Bangladesh regulate women’s
rights?
In the next section I will discuss the role of religious personal laws in
Bangladesh’s legal framework and discuss how the current legislation affects gender
equality and non-discrimination in the country. In particular, I examine the legal
norms for marriage, maintenance, separation, divorce, custody and guardianship and
discuss pertinent judicial rulings.
5.2. Bangladesh’s legal framework and religious personal laws: Compromising
the achievement of substantive equality and non-discrimination
General or secular laws and religious personal laws form the legal system in
Bangladesh. The secular laws, including the Constitution, the Child Marriage
Restraint Act,477 The Prevention of Oppression of Violence Against Women and
Children Act,478 The Acid Control Act,479 the Special Marriage Act,480 and the
476
See Constitution of the People’s Republic of Bangladesh. Entered into force in 16 December
1972. Available at: <http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=367> [last accessed 10
February 2016].
477
See The Child Marriage Restraint Act, 1929. Came into force 1 April 1930. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=149> [last accessed 10 February 2016].
478
See Prevention of Oppression against Women and Children Act. Entered into force in 14
February
2000.
Available
at:
<http://www.hsph.harvard.edu/population/trafficking/bangladesh.traf.00.pdf> [last accessed 10
February 2016].
479
See The Acid Control Act, 2000. Came into force in 2000. Available in Bengali at:
<http://sgdatabase.unwomen.org/uploads/Acid%20Control%20Act%202002.pdf> [last accessed 10
February 2016]. Also see The UN Secretary General Database on violence against women, Acid
Control
Act
2000
and
Acid
Crime
Prevention
Acts
2002.
Available
at:
<http://www.endvawnow.org/en/articles/607-acid-attacks.html> [last accessed 10 February 2016].
480
See The Special Marriage Act, 1872. Came into force 18 July 1872. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=25> [last accessed 10 February 2016].
186
Guardian and Wards Act, are applicable to all people regardless of their religion.481
Religious
personal
laws regulate marriage,
separation, divorce
and
guardianship according to each religious community. Hence, Muslims are governed
by the Muslim personal law. Hindus are governed by the Hindu Personal Law and
Christians are governed by the Christian Personal Law.
Family Courts have jurisdiction over cases involving separation, divorce,
restitution of conjugal rights, dower, maintenance, guardianship and custody of
children.482 According to Article 5 of the Family Courts Ordinance, the Family
Courts are subject to the Muslim Laws Ordinance of 1961. 483 However, following
the decision in Pochon Rikssi Das v. Khuku Rani Dasi and others,484 the Family
Courts can try cases lodged by any citizen, irrespective of religion.
The Family Court Ordinance has not taken away any personal right of any litigant of any faith.
It has just provided the forum for the enforcement of some of the rights as is evident from
section 4 of the Ordinance, which provides that there shall be as many Family Courts as there
are Courts of Assistant Judge and the latter courts shall be the Family Courts for the purpose of
this Ordinance.485
Thus, the matters tried in Family Courts refer to citizens of all faiths and it is
the respective personal law of the parts involved that should be applicable in judicial
481
See The Guardian and Wards Act, 1890. Came into force 1 July 1890. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64> [last accessed 10 February 2016].
482
See The Family Courts Ordinance, 1985. Entered into force in 30 March 1985. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=682> [last accessed 10 February 2016].
483
Ibid.
484
See Supreme Court of Bangladesh, Pochon Rikssi Das v. Khuku Rani Dasi and others 50 [1998]
DLR (HCD).
485
Ibid, p.47.
187
rulings.486 Personal laws, however, fail to observe the right to gender equality as
established in CEDAW. Thus, women are at a disadvantage when they lodge cases in
Family Courts against a male counterpart.487
All three sets of religious personal laws fail to protect women against
discrimination or directly harm the right to gender equality. Studies on current
interpretations of personal laws show that by discriminating against women, these
laws contribute to women’s social and economic disadvantage, obstructing their
public participation and perpetuating their subordination in Bangladesh’s patriarchal
society. 488
In Bangladesh, the right to equal treatment between men and women is
regulated according to the guarantees described in Articles 26 to 47 of the
Constitution of Bangladesh. However, according to the CEDAW Committee, the
definition of ‘discrimination’ provided by Bangladesh is contrary to the definition set
forth in CEDAW.489
Article 27 of the Constitution of Bangladesh reads: ‘[a]ll citizens are equal
before law and are entitled to equal protection of law.’ Article 28(2) estates:
‘[w]omen shall have equal rights with men in all spheres of the State and of public
486
See Islam, Zahidul, Strengthening Family Courts: An analysis of the confusions and uncertainties
thwarting the Family Courts in Bangladesh (Bangladesh Legal Aid and Services - BLAST, 2006) p.2.
487
See e.g., Aktar, Sharmin; Abdullah Abu Syead Muhammed, ‘A comparative study on Hindu Law
between Bangladesh and India’ (2007) 29(4) Asian Affairs 61-95; Krivenko, Ekaterina, Women, Islam
and International law: Within the context of the Convention on the Elimination of all forms of
Discrimination Against Women (Martinus Nijhoff Publishers, 2008); Pereira, Faustina, Civil Laws
governing Christians in Bangladesh: A proposal for reform (SAILS, 2011); Black, Ann; Esmaeili
Hossein; Hosen Nadirsyah, Modern perspectives on Islamic Law (Edward Elgar Publishing, 2013).
488
See Human Rights Watch, Will I get my dues...before I die? Harm to women from Bangladesh’s
discriminatory personal laws on marriage, separation and divorce (2012).
489
See Committee on the Elimination of Discrimination Against Women, Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Fifth periodic report of states parties. Bangladesh CEDAW/C/SR.653 (12 August 2004)
p.5 para.24.
188
life.’ The Constitution only addresses gender equality before the law in the public
sphere. There are no constitutional guarantees to equality in the private sphere.
In reply to the CEDAW Committee, Bangladesh argued that the Constitution,
in Articles 10, 27, 28, 32 and 39 ‘reflected the ideals’ of CEDAW.490 However, no
provision in the Constitution addresses gender discrimination in the private sphere.
This gap in the Constitution allows for discriminatory interpretations of
Constitutional norms and of pertinent laws applicable to women’s rights in the
private sphere, such as those that regulate marriage, maintenance, separation,
divorce, custody and guardianship, that is, the personal laws.
This can be observed in the judgment delivered in Md. Chan Mia v.
Rupanahar491 and Hosna Jahan (Munna) v. Md. Shajahan (Shaju). 492 In both cases
the husbands brought countersuits for restitution of conjugal rights. The High Court
pointed out that conjugal rights are reciprocal and therefore not in violation of the
equality clause of the Constitution.
The protection of equality only in the public sphere undermines the chances for
women to claim and obtain judicial protection against any discriminatory practice
perpetrated against them in the private sphere. In addition, it has the potential to
affect the interpretation and enforcement of criminal laws that aim to protect women
against acts of violence perpetrated in the private sphere, such as the Child Marriage
490
See Committee on the Elimination of Discrimination Against Women, Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Combined Sixth and Seventh periodic reports of states parties. Bangladesh.
CEDAW/C/BGD/6-7 (24 March 2010) p.25 para.70.
491
See High Court of Bangladesh, Md. Chan Mia v. Rupanahar (1998) 18 BLD (HCD) 329.
492
See High Court of Bangladesh, Hosna Jahan (Munna) v. Md. Shajahan (Shaju) 1998) 18 BLD
(HCD) 321.
189
Restraint Act,493 The Prevention of Women and Child Repression Act494 and The
Acid Control Act.495
In 2011, in the ‘Concluding Observations’ to the Combined Sixth and Seventh
Periodic Reports of Bangladesh, the CEDAW Committee addressed the protection
for equality only in the public sphere and the absence of legal protection for equality
in the private sphere.496 However, to this day, the state party has not made any
changes to the current regulation of the right to equality in the private sphere.
Additionally, as the Committee observed, ‘no steps had been taken to enable
the Supreme Court to determine whether any provisions of the personal laws
conflicted with the equality provisions of the Constitution.’497 In other words, the
state has not yet given the power for the highest court of the country to officially
recognize rules of religious personal laws as discriminatory towards women.
In theory, the Supreme Court of Bangladesh has the power to interpret the
Constitution and the laws made by the Parliament to ultimately enforce the
fundamental rights of citizens (Articles 102, 103 and 110 of the Constitution of
Bangladesh). The Supreme Court can declare any law that is inconsistent with any of
493
See The Child Marriage Restraint Act, 1929. Came into force 1 April 1930. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=149> [last accessed 10 February 2016].
494
See The Prevention of Women and Child Repression Act, 2000. Came into force in 14 February
2000. Available at: <http://www.hsph.harvard.edu/population/trafficking/bangladesh.traf.00.pdf> [last
accessed 10 February 2016].
495
See The Acid Control Act, 2000. Came into force in 2000. Available in Bengali at:
<http://sgdatabase.unwomen.org/uploads/Acid%20Control%20Act%202002.pdf> [last accessed 10
February 2016]. Also see The UN Secretary General Database on violence against women, Acid
Control
Act
2000
and
Acid
Crime
Prevention
Acts
2002.
Available
at:
<http://www.endvawnow.org/en/articles/607-acid-attacks.html> [last accessed 10 February 2016].
496
See Committee on the Elimination of Discrimination Against Women. Concluding observations
of the Committee on the Elimination of Discrimination against Women. Bangladesh
CEDAW/C/BGD/CO/7 (22 March 2011) p.3 para.13.
497
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Third and fourth periodic reports of states parties. Bangladesh.
CEDAW/C/SR.358 (27 March 1998) p.3 para.10.
190
the fundamental rights of the Constitution to be null and void by Article 26 and 101,
paragraph 1.
However, since the Constitution only protects gender equality in the public
sphere (Article 28, paragraph 2), the current legal framework of Bangladesh protects
discriminatory rules and interpretations of religious personal laws from any major
interventions from the Supreme Court. Additionally, with the Eighth Amendment,
which introduced Article 2(a) to the Constitution, making Bangladesh an Islamic
state, the ‘Principles of the Constitution’, set out in Articles 8 to 25, are often
interpreted to give preference to the religion of the state, which is Islam.498 This shift
from a secular state to a state guided by religious principles provides legitimacy to
discriminatory interpretations of personal laws, grounded on individual religious
backgrounds.
There is scope, however, for a different interpretation of Article 28(2) of the
Constitution of Bangladesh. If Articles 8, 12 and 28(1) are read as a whole it may be
understood that the ‘spirit’ of the Constitution499 aims to protect Bangladeshi citizens
from discrimination altogether, without interference of religious principles or
distinctions between the public and private spheres. Articles 8(1), 12(b), (c) and
28(1) of the Constitution of Bangladesh are as follows,
8. (1) The principles of nationalism, socialism, democracy and secularism, together with the
principles derived from those as set out in this Part, shall constitute the fundamental principles
498
See Schmidle, Nicholas, ‘Revolution: The Islamist challenge to secular Bangladesh’ (2007) 32(3)
Boston Review 28-32; Haque Khonder, Habibul, ‘The curious case of secularism in Bangladesh: What
is the relevance for the Muslim majority democracies?’ (2010) 11(2) Totalitarian movements and
political religions 185-201; Taher, Mohammad Abu, ‘Shadow or substance? Reflection of secularism
in the constitution of Bangladesh’ (2014) 22(1) Jurnal Syariah 87-106.
499
The ‘letter of the law’ is represented by the literal meaning of the rules in a given legislation.
Here, the ‘spirit of the law’ is the interpretation of the Constitutional norms as a whole. See Islam,
Mahmudul, Constitutional law of Bangladesh (Bangladesh Institutte of Law and International Affairs,
1995) p.31.
191
of state policy.
…
12. The principle of secularism shall be realised by the elimination of:
…
(b)
the
granting by the
State of political status in
favour
of any religion;
(c) the abuse of religion for political purposes;
…
28. (1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex or place of birth.
In light of this, the Supreme Court has scope to decide on the admissibility and
further annulment of religious personal laws that discriminate against women. In this
regard, the Supreme Court has declared:
[t]he Constitution of Bangladesh being the embodiment of the will of the Sovereign People of
the Republic of Bangladesh, is the supreme law and all other laws, actions and proceedings,
must conform to it and any law or action or proceeding, in whatever form and manner, if made
in violation of the Constitution, is void and non est. 500
However, there has as yet been no attempt to discuss the validity of personal
laws by the Supreme Court. The current socio-political climate in Bangladesh is also
not favourable to any decision that will ultimately affect the impact of personal laws
on women’s rights. As previously discussed, violent attacks, allegedly perpetrated by
religious fundamentalist groups, against those who oppose ancient views of Islam,
including the perceptions of gender equality, are causing increasing concern within
500
See Supreme Court of Bangladesh. High Court Division. Bangladesh Italian Marble Works
Limited v. Government of Bangladesh and others, (2006) 14 BLT. (Special) (HCD) 1. Available at:
<http://www.bangladeshsupremecourtbar.com/Fifth_Amendment.php> [last accessed 10 February
2016].
192
the government.501 Similarly, these attacks could also cause concern in members of
the judiciary.
The relevance of personal laws in Bangladesh’s legal framework calls for an
examination of their socio-legal impact on gender equality. In the next section I will
continue to explore the position of gender equality in Bangladesh’s legal system.
This examination draws on Bangladeshi case law and scholarly studies on Hindu,
Christian and Muslim personal laws. The goal is to understand how current
interpretations of personal laws in the country affect Bangladesh’s compliance with
CEDAW.
The areas covered by religious personal laws are vast. I will examine the rules
and interpretations that conflict with gender equality and non-discrimination as set
forth in CEDAW. In particular, the analysis focuses on the Muslim personal law. It
will provide a background to discuss in the next chapter the CEDAW Committee’s
comments regarding the conflicts between religious personal laws and gender
equality in the state party.
5.2.1. Religious personal laws in Bangladesh
Religious personal laws regulate the rights and duties of women with respect to
fundamental social and family practices in Bangladesh. However, as the state party
has observed, ‘personal laws that govern family life are a major impediment for
women in exercising their fundamental
human rights.’502 Discriminatory
501
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Eighth report of state parties due in 2015. Bangladesh.
CEDAW/C/BGD/8 (27 May 2015) p.11 para.45.
502
See Committee on the Elimination of Discrimination Against Women. Consideration of reports
submitted under Article 18 of the Convention. Fifth Periodic Report of state parties: Bangladesh
CEDAW/C/BGD/5 (3 January 2003) p.11.
193
interpretations of any personal law will create obstacles to the achievement of gender
equality and, consequently, to the implementation of CEDAW in the country. 503
Bangladesh has four major religious communities: Muslims, Hindus, Christians
and Buddhists. The Constitution, in Article 41, (1), (a), reads ‘[s]ubject to law, public
order and morality: (a) every citizen has the right to profess, practise or propagate
any religion’. Every community has the right to practice its own religion and live
according to the personal laws that govern their religions.
There are three major personal laws in Bangladesh, namely Muslim, Hindu and
Christian. Sunni Muslims constitute ninety per cent and Hindus make up nine and a
half per cent of the total population. The remainder of the population is
predominantly Christian and Theravada Buddhist.504
Gender equality has been the subject of considerable debate and discussion
involving Muslim, Hindu and Christian Personal Laws in Bangladesh.505 The central
aspect of these discussions is the apparent incompatibility between existing rules and
interpretations of personal laws and women’s right to equality and nondiscrimination.506 Examples of such inequality are discussed below.
According to Hindu personal laws, Hindu women can formally apply to the
503
See Al-Hibri, A. Islam, ‘Law and Custom: Redefining Muslim Women’s Rights’ (1997) 12(1)
American University Journal of International Law and Policy 1−44; Sawad, Ahmed Ali,
‘Reservations to Human Rights Treaties and the Diversity Paradigm: Examining Islamic
Reservations’ (Thesis submitted for the degree of doctor of Philosophy, University of Otago, 2008)
p.191−361.
504
See Bangladesh Bureau of Educational Information and Statistics.
<http://www.banbeis.gov.bd/bd_pro.htm> [last accessed 10 February 2016].
505
Available at:
See e.g., Tamanna, Nowrin, ‘Personal Status Laws in Morocco and Tunisia: A Comparative
Exploration of the Possibilities for Equality-Enhancing Reform in Bangladesh’(2008) 16(3) Feminist
Legal Studies 323-343; Krivenko, Ekaterina Yahyaoui, Women, Islam and International law: Within
the context of the Convention on the Elimination of all forms of Discrimination Against Women
(Martinus Nijhoff Publishers, 2009); Huda, Shahnaz, Combating gender injustice: Hindu Law in
Bangladesh (South Asian Institute of Advanced Legal and Human Rights Studies – SAILS, 2011);
Human Rights Watch, Will I get my dues...before I die? Harm to women from Bangladesh’s
discriminatory personal laws on marriage, separation and divorce (2012).
506
Ibid.
194
Family Court to seek a separate residence and maintenance from their husbands, but
only on limited grounds. Even those minimal rights are nullified if a Court finds that
the woman is ‘unchaste’, has converted to another religion, or fails to comply with a
Court decree ordering restitution of ‘conjugal rights’. 507 According to Ghosh,
‘[w]hile a Hindu man can terminate a marriage and marry again, his deserted wife is
condemned to live as a widow for the rest of her life.’508
Under the Divorce Act 1879, a Christian man can obtain divorce from his wife
on the grounds of adultery alone. However, a Christian woman is entitled to the same
relief only if she proves that her husband is guilty of one of the following: incest,
bigamy, rape, sodomy, bestiality, adultery coupled with violence towards the woman,
and adultery coupled with desertion for two years or more (Article 10). 509 The same
Act provides that the woman’s partner, with whom she allegedly betrayed her
husband, should be named as co-party in the divorce (Article 11). The husband may
also sue the woman’s partner for compensation for the ‘loss’ of his wife (Article 34).
A woman does not have the same right, however. Additionally, a Christian woman
has a right to maintenance during marriage and alimony after divorce, but this is tied
to her ‘chastity’.510
507
See The Hindu Married Women’s Right to Separate residence and Maintenance Act. Act No.
XIX
of
1946.
Entered
into
force
in
23
April
1946.
Available
at:
<http://bdlaws.minlaw.gov.bd/pdf/214.pdf> [last accessed 10 February 2016]. For more information
on Hindu Personal Law’s impact on women’s rights in Bangladesh see Huda, Shahnaz, Combating
Gender Injustice: Hindu Law in Bangladesh (The South Asian Institute of Advanced Legal and
Human Rights Studies, 2011).
508
See Ghosh, Partha S, The politics of personal law in South Asia: Identity, nationalism and the
uniform family code (Routledge, 2007) p.187.
509
See The Divorce Act. Act No.IV of 1869. Entered into force in April 1869. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=20> [last accessed 10 February 2016].
510
See The Divorce Act. Act No.IV of 1869. Entered into force in April 1869. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=20> [last accessed 10 February 2016]; The
Christian Marriage Act. Act No.XV of 1872. Entered into force in 18 July 1872. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=27> [last accessed 10 February 2016]; The
Married Women’s property Act. Act III of 1874. Entered into force in 24 February 1874. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=30> [last accessed 10 February 2016]; The
195
Hindu and Christian personal laws are patriarchal and therefore women are not
given the same rights that are given to men. It is not difficult to observe that the right
to ‘equality before the law’ prescribed in Article 27 of the Bangladeshi Constitution
is not observed in norms of Hindu and Christian personal laws in the country.
However, given that Bangladesh made a reservation to CEDAW grounded on an
alleged conflict between Muslim personal law and Article 2 of the Convention, I will
examine the implications of the Muslim personal law for gender equality and nondiscrimination in Bangladesh.
There are four doctrinal schools of Islamic traditions: Hanafi, Malik, Shafi’I
and Hanbali.511 The majority of the Muslim population in Bangladesh follows the
Hanafi school of thought.512 In light of this, when discussing the interpretation given
to the Sharia Law, the next section addresses Hanafi understandings of Muslim
Personal Law as reviewed in the literature.
5.2.1.1. Muslim Personal Law and gender equality in Bangladesh
According to prevailing interpretations of Shariah Law in Bangladesh, women
and men are not equal in their marital life or in the context of family relations.513 In
addition to embracing polygamy for men, current interpretations of Muslim personal
Succession Act. Act No. XXXIX of 1925. Entered into force in 30 September 1925. Available at:
<http://bdlaws.minlaw.gov.bd/pdf_part.php?id=138> [last accessed 10 February 2016].
511
See Melchert, Christopher, The formation of the Sunni schools of law: 9 th to 10th centuries C.E.
(Brill, 1997); Hallaq, Wael B., An Introduction to Islamic Law (Cambridge University Press, 2009)
p.31.
512
See Campo, Juan E., Encyclopedia of Islam (Facts on File, 2009) p.86; Aktar, Sharmin,
‘Protecting Divorced Muslim Women’s rights through maintenance: A comparative analysis based on
the present legislative reforms among the Muslim community’ (2012) 3 The Northern University
Journal of Law 23−48.
513
See Krivenko, Ekaterina Yahyaoui, ‘Islamic views of women’s rights: An international
Lawyer’s perspective’ (2009) 2(1) Journal of East Asia and International Law 103-128; MirHosseini, Ziba, ‘Justice, Equality and Muslim family laws: New Ideas, new prospects’ In: MirHosseini, Ziba; Vogt, Kari; Larsen, Lena; Moe, Christian (eds.), Gender equality in Muslim Family
Law (Palgrave Macmillan, 2013) 7-36.
196
law in Bangladesh promote several other discriminatory practices and traditions,
which include unequal provisions on inheritance rights and divorce, limited rights to
maintenance during marriage and after divorce and the lack of maintenance beyond
90 days after divorce.514
According to Article 6 of the Muslim Laws Ordinance, any man who wishes to
marry another wife may, with the consent of his first wife, require local government
arbitration councils to approve the polygamous marriage.515 However, in 2012,
women and lawyers interviewed by HRW expressed that in no case was an
arbitration council convened to approve a subsequent marriage. Similarly, activists
and lawyers stated that husbands often flouted divorce notice procedures without
penalty.516
In essence, HRW found that even the limited entitlements personal laws offer
women are poorly enforced by Family Courts.517 Female-headed households struggle
to access critical judicial support and to obtain economic security when marriages
514
For the laws valid to Muslim women see The Muslim Personal Law (Shariat), Application Act
1937. Act No. XXVI of 1937. Entered into force 7 October 1937. Entered into force in 24 February
1874. Available at: <http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=173> [last accessed 10
February 2016]; The Dissolution of Muslim Marriages Act, 1939. Act No. VIII of 1939. Entered into
force 17 March 1939. Available at: <http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=180>
[last accessed 10 February 2016]; The Muslim Family Laws Ordinance, 1961.Ordinance No. VIII of
1961.
Entered
into
force
in
02
March
1961.
Available
at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=305> [last accessed 10 February 2016]; The
Family Courts Ordinance, 1985. Entered into force in 30 March 1985. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=682> [last accessed 10 February 2016]; The
Muslim marriages and Divorces Registration Act, 1974. Act No. LII of 1974. Entered into force 24
July 1974. Available at: <http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=476> [last accessed
10 February 2016].
515
See The Family Laws Ordinance, 1961. Entered into force in 02 March 1961. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=305> [last accessed 10 February 2016].
516
See Human Rights Watch, Will I get my dues...before I die? Harm to women from Bangladesh’s
discriminatory personal laws on marriage, separation and divorce (2012) p.36−38.
517
See Human Rights Watch, Will I get my dues...before I die? Harm to women from Bangladesh’s
discriminatory personal laws on marriage, separation and divorce (2012); Manjoo, Rashida, Office
of the High Commissioner for Human rights. Special Rapporteur on Violence against women, its
causes and consequences finalises country mission to Bangladesh, 2013. Available at:
<http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13374> [last accessed 10
February 2016].
197
break down.518 This is especially true in a state where patriarchal traditions represent
a powerful force. They affect interpretations of current legislation to reinforce
women’s subordination to the domestic environment, depriving them of equal access
to employment.519
The Muslim Personal Law (Shariat) Application Act, 1937520 and The Muslim
Family Laws Ordinance, 1961521 govern all matters related to inheritance rights of
Muslim women in Bangladesh. Article 2 of The Muslim Personal Law Application
Act provides that questions related to succession and inheritance are governed by
Muslim personal law and the Quran is the primary source of the Sharia.522 In this
regard, Spectorsky observes:
One of the main difficulties with introducing material from the Qur’an is that so much of it is
open to different interpretations that it is hard to “start” anywhere: it is usually easy to see what
it says … but frequently harder to say what it means.523
518
See Hossain, Kamrul, ‘In Search of Equality: Marriage Related Laws for Muslim Women in
Bangladesh’ (2003) 5(1) Journal of International Women Studies 96-113; Mittra, Sangh; Kumar,
Bachchan, Encyclopaedia of women in South Asia: Bangladesh (Kalpaz Publications, 2004) p.211213.
519
See Begum, Afroza, ‘Equality of Employment in Bangladesh: A Search for the Substantive
Approach to Meet the Exceptional Experience of Women in the Contemporary Workplace’ (2005) 47
Journal of the Indian Law Institute 326-350.
520
See The Muslim Personal Law (Shariat), Application Act 1937. Act No. XXVI of 1937. Entered
into force 7 October 1937. Entered into force in 24 February 1874. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=173> [last accessed 10 February 2016].
521
See The Muslim Family Laws Ordinance, 1961.Ordinance No. VIII of 1961. Entered into force
in 02 March 1961. Available at: <http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=305> [last
accessed 10 February 2016].
522
Although there are debates regarding the sources of Islamic Law, it is accepted by the majority of
scholars that the Qu’ran is the primary source. See Hassan, Faroq A, ‘The Sources of Islamic Law’
(1982) 76 Proceedings of the 101st Annual Meeting (American Society of International Law) 65-75;
Spectorsky, Susan A, Women in classical Islamic Law: A survey of the sources (Brill, 2009); Souaiaia,
Ahmed, ‘On the sources of Islamic Law and Practice’ (2004) 20(1) Journal of Law and Religion 123147.
523
See Spectorsky, Susan A, Women in classical Islamic Law: A survey of the sources (Brill, 2009)
p.21.
198
Since the Quran is open to a multitude of interpretations it is easier to interpret
the legislation according to individual interests and ultimately damage women’s
rights with conservative and patriarchal interpretations of the law. I will not examine
the several meanings or interpretations that can possibly be given to the verses in the
Quran. Instead, I will demonstrate that interpretations of the Quran, primary source
of the Muslim Personal Law Application Act and the Muslim Family Laws
Ordinance, discriminate against women. These interpretations are enforced in the
Family Courts in Bangladesh.
Under the Muslim Personal Law Application Act, 1937 and the Muslim Family
Laws Ordinance, 1961, the provisions concerning inheritance in Bangladesh are
different for women and men. A daughter that is an only child inherits half the estate
of her deceased father or mother. However, when the inheritance is to be distributed
between a daughter and son, the daughter inherits half as much as the son.524 A wife
(or wives taken together) receives one-eighth of the deceased husband’s estate if
there is a child, and one-fourth if there is no child. In contrast, a husband inherits
one-fourth of his deceased wife’s estate.525
The right to maintenance for divorced Muslim women in Bangladesh is based
on classical Quranic interpretations. According to the Qu’ran there is a waiting
period involved between the three times a man can declare the divorce.526 Postdivorce maintenance for women is subject to the Iddat period (time during which a
woman is not allowed to marry after divorce or death of husband).527
524
See Holy Qur’an 4:11
525
See Holy Qur’an 4:12
526
See Holy Qur’an 2:230, 2:231.
527
See Holy Qur’an 2:228. For theoretical discussions see, Mohammadi, Fatemeh; Amirkhanloo,
Mohammad Sadegh; Mohammadi, Fatemeh, ‘A Comparative Study of the Iddah (Waiting Period) in
199
Women are entitled to maintenance, although 90 days after divorce is usually
the time limit528 and the obligation of the husband lapses when the wife is held to be
‘disobedient’.529 If a woman is considered to be ‘disobedient’ (‘disobedience’ can be
interpreted as being arrogant with the man, leaving her matrimonial house without
justifiable reason, and so on) she cannot divorce her husband for a period of two
years, on the grounds of the husband’s incapacity to provide maintenance.530 After
the waiting period is over, the man and woman are considered divorced. Although
the man is no longer responsible for the woman’s expenses, he remains responsible
for the maintenance of his children.
In 1995, however, the Supreme Court of Bangladesh handed down a
progressive judgement in the case of Hefzur Rahman v. Shamsun Nahar Begum.
After considering several verses of the Quran and judicial precedents, the Court held
that after divorcing his wife a husband is bound to maintain her on a reasonable scale
until she marries another man.531
The custody of minors after divorce or death continues to be governed by the
Guardian and Wards Act of 1890.532 Article 17 of the Act stipulates that the personal
Iran Jurisprudence and the Laws of Other Countries’ (2013) 6(2) International Research Journal of
Applied and Basic Sciences 236-240.
528
See Huda, Shahnaz, ‘Personal Laws in Bangladesh: The need for substantive reforms’ (2004)
15(1) Dhaka University Studies 103−126.
529
See Tanzil-ur-Rahman, A Code of Muslim Personal Law (Hamdard Academy, 1978); Aktar,
Sharmin, ‘Protecting Divorced Muslim Women’s rights through maintenance: A comparative analysis
based on the present legislative reforms among the Muslim community’ (2012) 3 The Northern
University Journal of Law 23−48.
530
Ibid.
531
See Hefzur Rahman v. Shamsun Nahar Begum 47 DLR (1995) 54. For theoretical discussion on
the case see Hoque, Mohammed Ridwanul; Khaled, Mohiuddin, ‘Right to post-divorce maintenance
in Muslim Law: The Shamsun Nahar Revisited (1999) 4 Chittagong University Journal of Law 1–32.
532
See The Guardian and Wards Act, 1890. Came into force 1 July 1890. Available at:
<http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=64> [last accessed 10 February 2016].
200
law to which the minor is subject shall guide the Court’s decision, but the ‘welfare of
the child’ should be the dominant element to guide the ruling.
When the Guardian and Wards Act provides that the personal law of the child
should guide the decision prior to establishing that the ‘welfare of the child’ should
be the dominant element to guide the ruling, the Law allows for the magistrates to
choose between personal law or the welfare of the child in the decision. In addition,
Article 17 also allows for the meaning of the ‘welfare of the child’ to be subject to
the conceptions of the child’s religious personal law. This can be observed in a report
prepared by three Supreme Court Judges from Bangladesh in 2010.
Indeed, the principle of Islamic Law (in the instant case, the rule of hizam or the guardianship
of a minor child as stated in the Hanafi School) has to be taken into account, but deviation
from the principle seems permissible as the paramount consideration should be the child’s
welfare.533
The declaration above indicates that, although the child’s welfare is argued as
representing the main element to be considered in disputes over his/her guardianship,
the principles of the Muslim personal law may be dominant, since ‘deviations’ are
only permissible in certain occasions. Hence, the ‘child’s welfare’ may not be the
guiding element in the judicial ruling, but an exception to the rules and principles of
the religious personal law of the child.
However, there are cases of guardianship where if a conflict is observed with
the religious personal law of the child, it is the ‘child’s welfare’ that determines the
final ruling. For example, in Abdul Jalil v. Sharon Laily, the Court granted full
533
See Islam, Taffazul; Haque, Khairul; Rahman, Atoar, ‘The Third Malta Judicial Conference on
Cross-Frontier Family Law issues’ (2010) 16 The Judges Newsletter, Hague Conference on Private
International Law 16−19.
201
custody of three minor children, aged between 5 and 14 years to the mother, a British
Christian citizen. The Appellate Division held in this case that in a proceeding for
custody of a child it is not the rights of the parties but the rights of the child that are
at issue. The Court came to the conclusion that the custody should be decided upon
evidence as to where the interest and welfare of the children actually lie.534
However, Article 17 of the Guardians and Wards Act has not been reformed
and it is the responsibility of the magistrate to interpret what should prevail in the
final ruling: the ‘child’s welfare’ or religious personal law. This may be costly for
both the mother and child involved in a case of guardianship because it allows that
discriminatory rules and interpretations can be used to guide the kind of justice that
the mother and her child will receive.
According to Morshedul Islam, agnatic relations determine the guardianship of
a minor in Muslim personal law. Usually the father, and in his absence the
grandfather, are responsible for guardianship of the child. He adds:
In Muslim law guardianship of minor is of two types: guardianship of person and guardianship
of property of minor. Guardianship of person of minor generally rests on the mother or in
mother’s absence maternal grandmother.535
However, the ‘remarriage of mother to a stranger (person other than relations
of the husband’s family) disqualifies her from being appointed as guardian.’536 In
addition, there is a time limit for the female guardian. Classical Hanafi school
determines that for a male minor, the time of guardianship for the mother is seven
534
See Supreme Court of Bangladesh, Abdul Jalil v. Sharon Laily [1998] 18 BLD (AD) 21.
535
See Islam, Morshedul, ‘Legal protection of minor against abuse by its guardian in Bangladesh: A
Comparative study’ (2012) 3(15) Journal of Education and Practice p.158.
536
Ibid.
202
years and when the minor is a girl the guardianship lasts until she attains the age of
puberty. After that period, the child should be handed to the male guardians.537
The discussion above indicates that personal laws deprive women of equal
rights with men to property and to the guardianship of minors. Poor enforcement of
laws by Family Courts only adds to women’s struggle for equal access to the rights
conferred on them by law.538 Interpretations of religious personal laws in Bangladesh
hold a large share of responsibility for trapping women in ‘unwanted’ marriages,
because they fear destitution, and for impoverishing those women who face
separation or divorce.539
While there is no judicial remedy that can be used to determine the invalidity
of a particular norm of religious personal law, the Constitution of Bangladesh was
amended in 2011 and since then the right to ‘equality of opportunity’ to women
became a ‘fundamental right’ to be respected in all spheres of their life (Article 19,
paragraph 3). Therefore, the right to ‘equality of opportunity’ in the private sphere
can be judicially enforced. However, since in practice, women do not experience
equal results in judicial rulings,540 how will the right to ‘equality of opportunity’ ever
be judicially enforced?
Women’s unequal legal status in Bangladesh is only aggravated by a lack of
537
See Marghinani, Ali ibn Abi Bakr, The Hedaya or Guide: A commentary on the Mussulman
Laws. (Trans. Charles Hamilton) 2nd Ed. (Lahore, 1957); Kamal, Sultana, Law for Muslim Women in
Bangladesh
(United
Nations
Statistics
Division,
2010).
Available
at:
<http://unstats.un.org/unsd/vitalstatkb/Attachment390.aspx> [last accessed 10 February 2016].
538
See Human Rights Watch, Will I get my dues...before I die? Harm to women from Bangladesh’s
discriminatory personal laws on marriage, separation and divorce (2012); Manjoo, Rashida, Office
of the High Commissioner for Human rights. Special Rapporteur on Violence against women, its
causes and consequences finalises country mission to Bangladesh, 2013. Available at:
<http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13374> [last accessed 10
February 2016].
539
See Human Rights Watch, Will I get my dues...before I die? Harm to women from Bangladesh’s
discriminatory personal laws on marriage, separation and divorce (2012).
540
Ibid, p.2; 6; 8.
203
social and political will to deliver justice on violations to gender equality perpetrated
in the private sphere, under the legal guarantees of religious personal laws.541
Although Bangladesh’s government cannot determine that every individual will
respect gender equality, every state party to CEDAW should demonstrate that it has
acted diligently, using the necessary means in order to achieve the end result, which
is the elimination of discrimination against women in the public and private spheres
(Articles 2–4 of CEDAW). Bangladesh, however, through positive and negative acts
(inaction),542 reinforces the maintenance of discriminatory practices towards women
in the country when they are a consequence of discriminatory interpretations of
religious personal laws.
Bangladesh’s reservation to CEDAW protects the state from a commitment
that would be contrary to current discriminatory interpretations of the system of laws
enforced in the country. In light of the discussion above, I will examine next the
quality of the CEDAW Committee’s comments to Bangladesh regarding the
influence of religious personal laws on the implementation of CEDAW in the
country. Specifically, I will examine how the information submitted by NGOs and
UN specialised agencies affects the quality of the assessment conducted by the
Committee on the implementation of CEDAW.
541
See Huq, Shireen P., ‘Bodies as sites of struggle: Naripokko and the movement for women’s
rights in Bangladesh’ In: Kabeer, Naila (ed.), Inclusive Citizenship: Meanings and expressions (Zed
Books, 2005) 164-180.
542
Enforcing discriminatory rules towards women are examples of positive acts. Not providing legal
means for the Supreme Court of the country to rule determining religious personal laws as
discriminatory towards women is a form of inaction.
204
5.3. Restriction of information and the effectiveness of the CEDAW
Committee
Religious personal laws have a major impact on the implementation of
CEDAW in Bangladesh. Discriminatory interpretations of Muslim, Christian and
Indian Personal Laws harm women’s achievement of equality of opportunity, equal
access to opportunities and equality of results in both public and private spheres.
The Constitution of Bangladesh protects equality only in the public sphere and
is silent on the protection of equality in the private sphere (Article 28, paragraph 2).
Religious personal laws regulate the rights that concern the private sphere of
individuals. Interpretations of these laws, enforced in the courts of Bangladesh, deny
women equal rights to that of men in the areas of marriage, maintenance, separation,
divorce, custody and guardianship.
The lack of equal access to justice in the Family Courts stretches even further
the level of inequality faced by women. Unequal access to the justice system makes
dispute settlement a very challenging task for women, limiting their access to the few
rights that the personal laws confer on them. The absence of protection of equality in
the private sphere facilitates the perpetuation of systemic discriminatory practices
towards women because it protects patriarchal and conservative norms and
interpretations of the personal laws.
Given that a conflict with Muslim personal law was the cause for Bangladesh’s
reservation to Article 2, the alleged conflict should be under strict scrutiny by the
Committee. However, as demonstrated in the previous chapter, the comments,
questions and recommendations made by the CEDAW Committee to Bangladesh did
not address this issue properly.
In the review of Bangladesh’s compliance with the state parties’ obligations to
205
CEDAW, the Committee did not make significant connections between the state
party’s persistence in maintaining the reservation to CEDAW and the discriminatory
interpretations of religious personal laws enforced in the country. While the
Committee has continuously addressed the impact of the personal laws, the subject
has been discussed very lightly. For example, considering the discussion above,
pertinent and relevant questions with reference to this topic, which were never raised,
include:
a) Since Bangladesh recognised that religious personal laws impact the
achievement of equality and non-discrimination for women, how does the
state plan to prevent the discriminatory legislation to be judicially enforced?
b) Why does the Constitution only protect equality in the public sphere?
c) How can the right to ‘equality in the public sphere’ ever be judicially
enforced when, according to recent findings, women do not have equal
access to the judicial system?
Although these are key issues that affect the implementation of CEDAW in
Bangladesh, the Committee has not properly addressed them during the periodic
review process.
As observed in the previous chapter, when Bangladesh was questioned about
its commitment to addressing the discriminatory interpretations of religious personal
laws, the state party’s assessment was usually incomplete, sometimes paradoxical
and at times did not even address the questions raised. Hence, the information
provided by the state party lacks clear and trustworthy elements on the
implementation of the Convention. This makes the state party a biased source of
information on the implementation of CEDAW.
206
Since the CEDAW Committee needs independent information from which to
formulate its questions and identify the areas where the state party is not complying
with its obligations to CEDAW, the participation of NGOs and UN specialised
agencies in the monitoring process of CEDAW is welcomed and expected. In the
next section I review the current working methods adopted by the CEDAW
Committee for the submission of data by NGOs and UN agencies, specifically to
understand how the information provided to the Committee may affect the
assessment of the implementation of the Convention.
5.3.1. NGO reports: objectivity versus relevance of information
The CEDAW Committee does not provide any guidelines for NGOs to prepare
their reports.543 The IWRAW Asia-Pacific, on the other hand, has provided some
guidelines. It recommends that NGOs prepare the reports in the most concise
possible way following the order of the Articles of the Convention. This format is
consistent with the format of state parties’ periodic reports, which are also expected
to address issues related to the implementation of CEDAW according to the order of
appearance of the rights regulated in CEDAW.544
Considering the volume of documents the Committee receives for the review
of state parties’ periodic reports, ‘conciseness’ is a desirable feature for shadow
reports because the Committee needs to focus on key topics addressed by the NGOs
543
The CEDAW Committee instructed NGOs only on the means for submission of the reports and
not on their preparation. See Office of the High Commissioner for Human Rights, Committee on the
Elimination of Discrimination Against Women, Information Note prepared by OHCHR for NGO
Participation.
Available
at:
<http://www2.ohchr.org/english/bodies/cedaw/docs/NGO_Participation.final.pdf> [last accessed 10
February 2016].
544
See United Nations. International Human Rights Instruments. Compilation of guidelines on the
form and content of reports to be submitted by state parties to the international human rights treaties.
HRI/GEN/2/Rev.63 (June 2009) para.25.
207
and identify those that should be raised in the ‘List of issues and questions’ to the
state parties.545 However, the format adopted for the preparation of shadow reports
creates significant challenges for NGOs seeking to share relevant information with
the Committee. When the reports are prepared according to the order of the Articles
of CEDAW and in a concise manner, the amount of data shared and the way data is
shared can restrict the quality of the information to be accessed by the Committee.
When a particular CEDAW provision addresses a broad range of rights, such
as Article 2, a similarly broad range of potential issues will fall into the scope of that
Article. Thus, the NGO preparing the shadow report will have to choose carefully
which problems to address and after that, how to briefly discuss those problems. As a
result, some issues may not be appropriately addressed or not addressed at all in the
reports. For instance, Article 2(a), (f) of CEDAW establishes that state parties to
CEDAW should address the following issues:
(a) To embody the principle of the equality of men and women in their national constitutions
or other appropriate legislation if not yet incorporated therein and to ensure, through law and
other appropriate means, the practical realization of this principle
…
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women;
Considering the scope of paragraphs a and f of Article 2, when NGOs report on
the implementation of CEDAW in Bangladesh they could address questions such as:
why is the principle of equality in the private sphere not recognised as a fundamental
545
See United Nations, International Human Rights Instruments, Chapter IV: Rules of procedure of
the Committee on the Elimination of Discrimination Against Women, In: Compilation of rules of
procedure adopted by human rights treaty bodies HRI/GEN/3/Rev.328 (May 2008) p.93-126.
208
right in the Constitution and, therefore, enforceable in a court of law? Why are
discriminatory interpretations of religious personal laws enforceable in a court of
law? Is there any connection between religious personal laws and the inaction of the
government in providing legal and judicial protection to the right of equality in the
private sphere?
In the previous section I argued that the three questions above are very
important when examining the state party’s commitment to the achievement of
substantive equality and non-discrimination. How could NGOs appropriately address
them when they would have to succinctly discuss the state party’s conduct towards
the implementation of the other 15 Articles of the Convention? How can NGOs
effectively act as ‘watchdogs’ if they are restricted to share a limited amount of
information with the Committee? In addition, given the challenges NGOs face in
producing their reports, how can the Committee have access to quality information?
A standard example is as follows: the harsh reality faced by women who
access Bangladesh’s judicial system is cited in one of the shadow reports as an
obstacle to the implementation of CEDAW in the state party. Although religious
personal laws are addressed as a contributing factor for this problem, there is no
analysis or discussion explaining why this is an issue and how it is observed in
practice. The discussion begins and ends in just one sentence:
A dualistic system of rights leads to discrimination in the personal sphere because religious
laws prevail in matters of inheritance, marriage, divorce, and maintenance over civil laws,
notwithstanding constitutional guarantees of equality
546
546
See Citizens’ Initiative on CEDAW-Bangladesh, Combined Sixth and Seventh Alternative
Report
to
the
UN
CEDAW
Committee,
2010,
p.35.
Available
at:
<http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/Citizens_Initiative_Bangladesh_CEDAW48
.pdf> [last accessed 10 February 2016].
209
Information is ‘provided’ but not ‘discussed’. There is very little (if any)
analysis of possible connections between the facts argued. In addition, there is not
enough analytical support for the facts presented, which makes it difficult for the
Committee to properly establish the extent of the influence of certain issues on the
implementation of the Convention in the state party.
The current guidelines applied for the preparation of NGO shadow reports are
effective in providing objectivity to the information shared with the CEDAW
Committee. However, those guidelines also limit the extent and relevance of the
information the Committee has access to in order to appropriately assess any obstacle
to the implementation of CEDAW. In turn, this affects the accuracy of the
Committee’s comments and recommendations to the state party about how to address
those obstacles.
While lack of expertise or limited financial resources could be argued as
factors impacting the quality of NGOs’ shadow reports, I argue that the current
structure adopted by the CEDAW Committee to engage with NGOs is a key factor
influencing the quality of NGOs’ analysis and of the information shared with the
Committee. In this regard, the CEDAW Committee stated in the 45th Session
Statement on its work with NGOs that: ‘NGOs may provide comments and
suggestions to the State party’s reports in any way they see fit.’547
The Committee has not produced guidelines for NGOs to prepare shadow
reports and the IWRAW has not updated its set of guidelines. If the NGOs are
547
See Office of the United Nations High Commissioner for Human Rights. Committee on the
Elimination of Discrimination Against Women, Statement by the Committee on the Elimination of
Discrimination Against Women on it relationship with Non-Governmental Organizations. 45th
Session.
(18
January
–
5
February
2010)
p.2
para.7
Available
at:
<http://www2.ohchr.org/english/bodies/cedaw/docs/statements/NGO.pdf> [last accessed 10 February
2016].
210
expected to provide the CEDAW Committee with information that can effectively
challenge or add to what has already been argued by the state party, they should be
encouraged to provide a careful examination of the obstacles to the implementation
of CEDAW, taking into account the relevance of those obstacles to the
implementation of the Convention.
5.3.2. UN specialised agencies and the CEDAW Committee
According to Article 22 of CEDAW, UN specialised agencies ‘may be’ invited
to submit reports on the implementation of the Convention ‘when the implementation
of such provisions of the Convention as fall within the scope of their activities is
being considered.’ This norm is repeated in Rule 45 of the ‘Rules of Procedure of the
Committee on the Elimination of Discrimination Against Women.’548 Therefore, the
considerations of the UN specialised agencies on the implementation of CEDAW are
restricted to the scope of their own activities.
Additionally, UN agencies’ reports should be provided only after an invitation
made by the Committee. The agency invited to submit a report has to review the
implementation of CEDAW in every state party with a periodic report scheduled to
be reviewed in a particular session. According to the most recent revision of the
guidelines for submission of reports from UN specialised agencies to the CEDAW
Committee,549 the document submitted by the Agency should contain the following:
548
See United Nations General Assembly, Report of the Committee on the Elimination of
discrimination Against Women. Fifty-Sixth Session. Supplement No.38. Annex I, Rules of Procedure
of the Committee on the Elimination of Discrimination Against Women A/56/38 (2001).
549
See UN General Assembly, Sixty-First Session, Part I, Annex II, Report of the Committee on the
Elimination of Discrimination Against Women. Thirty-Fourth Session (16 January - 3 February 2006)
Thirty-Fifth Session (15 May - 2 June 2006) Thirty-Sixth Session (7 - 25 August 2006) A/61/38
p.79−80.
211
(a) Country-specific information on the situation of women in regard to relevant articles of the
Convention and their implementation in the State party, within the scope of work of the
reporting entity;
(b) Country-specific information about the State party’s implementation of the Convention and
follow-up to the Committee’s concluding comments in areas falling within the scope of work
of the reporting entity;
(c) Information about the efforts made by the concerned UN agency or body to promote
implementation of the provisions of the Convention and the Committee’s concluding
comments through its own policies and programmes. This information should indicate the
manner in which the entity concerned uses the Convention and the Committee’s concluding
comments in its policies and programming activities.
(d) As applicable, information about ongoing efforts towards supporting the ratification of the
Optional Protocol, and acceptance of the amendment to article 20, paragraph 1 of the
Convention concerning the Committee’s meeting time in the State party concerned, or efforts
to give publicity to the procedures available under the Optional Protocol.
550
The information that the CEDAW Committee expects to be provided in a
single report includes: country-specific efforts to implement CEDAW and the OPCEDAW and the agencies’ own efforts to apply the Committee’s Concluding
Comments in their programs. The agencies are required not only to review intricate
aspects that concern the implementation of CEDAW in the state parties, but also to
provide details of their own actions to comply with the Committee’s
recommendations.
The Committee finds it most beneficial to receive all this data in ‘succinct,
550
See UN General Assembly, Sixty-First Session, Part I, Annex II, Report of the Committee on the
Elimination of Discrimination Against Women. Thirty-Fourth Session (16 January - 3 February 2006)
Thirty-Fifth Session (15 May - 2 June 2006) Thirty-Sixth Session (7 - 25 August 2006) A/61/38 p.79.
212
country-specific, written reports’.551 In essence, the CEDAW Committee expects
‘succinct’ reports on all the state parties that have a periodic report scheduled for
review in the same session.
The current format adopted for the UN agencies’ reports can be illustrated with
UNESCO’s report to the Committee’s Forty-Eighth Session. In one of the reports,
only 21 pages long, the agency reviewed the implementation of CEDAW in
Bangladesh, Belarus, Israel, Kenya, Liechtenstein, Sri Lanka and South Africa and
dedicated less than three pages to Bangladesh’s legislative framework (including the
constitutional framework), policies and programs implemented by the state party
from 1990 to 2010.552
The large volume of information to be provided by the UN specialised
agencies and the expectation that all data should be handled in in one report impacts
the relevance, accuracy and quality of the analysis and, consequently, of the
information provided in the reports. Specifying a narrower scope for the information
to be provided by UN specialised agencies could result in a more detailed and
accurate analysis of the relevant obstacles to the implementation of CEDAW. The
current approach limits the quantity and quality of the information received because
it requires succinct reports to cover a broad set of issues. Determining a narrower
scope for the UN specialised agencies’ analyses could both restrict the volume of
information in the reports and improve the quality of the information.
551
Ibid., p.80.
552
See Committee on the Elimination of Discrimination Against Women, Convention on the
elimination of all forms of Discrimination Against Women. Reports provided by the specialized
agencies of the United Nations system on the implementation of the Convention in areas falling within
the scope of their activities. UN Educational, Scientific and Cultural Organization
CEDAW/C/48/3/Add.1 (5 January 2011) p.5−7.
213
5.4. Improving the quality of information through greater focus and substance
The lack of relevant information on the implementation of CEDAW in a state
party potentially results in an incomplete assessment of the current status of gender
equality and non-discrimination in the country. The OHCHR argued that one of the
key goals of the proposals of reform for the monitoring system and implementation
process of the human rights conventions is to ‘improve the impact of treaty bodies on
state parties and individuals or groups of individuals at the national level by
strengthening their work while fully respecting their independence’.553 It also
supported:
further institutionalized cooperation of treaty bodies with other United Nations entities to
provide the most efficient support to the State party and other stakeholders in the preparation,
review and follow-up to a State party review by a treaty body…While a solid partnership has
developed between the treaty bodies and United Nations entities, there is potential to
strengthen and systematize such cooperation to provide more efficient support to the State
party and other stakeholders in the preparation, review and follow-up processes.
554
When consulted by the OHCHR on their views of what was needed to
strengthen the treaty body system, NGOs argued that:
Treaty Bodies should formalize a process whereby NGOs, NHRIs and other specialized
agencies are given an opportunity to submit their own information regarding the
553
See Pillay, Navanethem, Strengthening the United Nations Human Rights Treaty Body System: A
report by the United Nations High Commissioner for Human Rights (OHCHR, June 2012) p.9.
554
Ibid p.62.
214
implementation of Views and contribute additional data to complement information provided
by States.
555
The comment above demonstrates that two elements play an important role in
the participation of NGOs in the strengthening process of the treaty body system.
First, there should be a formalisation of the process for the submission of information
about the status of the implementation of human rights conventions. Second, there
should be an improved opportunity for the submission of their own views regarding
the implementation of the conventions and additional data considered relevant for the
monitoring process. NGOs have expressed concerns with the current format adopted
for the submission of reports to the CEDAW Committee.
In order to be effective, any proposal to strengthen the participation of NGOs
and UN specialized agencies in the monitoring and implementation process of
CEDAW should address the problems caused by the guidelines currently adopted by
the CEDAW Committee: first, NGO shadow reports lack substance and the reports
from UN specialized agencies lack both focus and substance. The obstacles facing all
the treaty bodies, such as growth in the volume of documentation and higher running
costs556 should also be taken into account.
The analysis above indicates that to improve the CEDAW Committee’s access
to accurate and relevant information on the implementation of CEDAW, the
following should be considered: a) development of a specific set of guidelines for the
preparation of ‘shadow reports’ and b) revision of the scope of reports to be prepared
555
See Office of the High Commissioner for Human Rights, NGOs Statement: Strengthening the
Treaty
Body
Individual
Communications
Procedure,
p.7.
Available
at:
<http://www2.ohchr.org/english/bodies/HRTD/docs/NGO_Joint_statement_IC.pdf > [last accessed 10
February 2016].
556
See Pillay, Navanethem, Strengthening the United Nations Human Rights Treaty Body System: A
report by the United Nations High Commissioner for Human Rights (OHCHR, June 2012) p.20-28.
215
by UN specialized agencies so that the reports focus on one key subject or topic,
chosen by the CEDAW Committee.
In addition to the ‘Aligned models of interaction among Treaty Bodies,
National Human Rights Institutions and Civil society organizations’, as proposed in
the 2012 UN Report,557 the CEDAW Committee should develop a specific set of
guidelines for the preparation and submission of shadow reports. The guidelines
should prioritise the relevance of the obstacles to the implementation of CEDAW
and not the order of the Articles of the Convention. The order of the Articles of
CEDAW should be followed only when it facilitates the analysis of the arguments.
The discussion must prioritise the obstacles to the implementation of the Convention
and the Article(s) of CEDAW related to those obstacles.
In addition, NGOs should be encouraged to use any time allocated for their
participation in the pre-sessional Working Group meetings and in the review of the
state party’s periodic reports. If the NGOs cannot afford to send a representative to
participate in the sessions, they should be allowed to present their statement through
webcasting, a tool already being used by UN treaty bodies.558
As discussed above, the UN agency invited to examine the implementation of
CEDAW should provide a report on one specific and refined topic considered
relevant for the implementation of CEDAW in the state party. At the time of the
invitation, the CEDAW Committee should provide the Agency with the topic or area
of concern with respect to each state party with a periodic report scheduled to be
reviewed. Therefore, the UN Agency would be asked to focus their analysis on one
topic per state party.
557
Ibid., p.65-67.
558
See UN Treaty Body Webcast. Watch the treaty bodies sessions live. Available at:
<http://www.treatybodywebcast.org/> [last accessed 10 February 2016].
216
The suggestions above would be implicated in administrative actions and
reforms of guidelines, which is not expected to create additional expenditure.
However, if extra financial resources were needed, according to Rule 23 of the
‘Rules of Procedure of the Committee on the Elimination of Discrimination Against
Women’, the Secretary-General would have the responsibility of preparing an
estimate of the costs involved. The CEDAW Committee could put the cost estimate
to a vote.559 If put into practice, the suggestions discussed above are likely to
improve the substance and focus of the reports submitted by NGOs and UN Agencies
to the CEDAW Committee.
559
See United Nations, International Human Rights Instruments, Chapter IV: Rules of procedure of
the Committee on the Elimination of Discrimination Against Women, In: Compilation of rules of
procedure adopted by human rights treaty bodies HRI/GEN/3/Rev.3 (May 2008) p.103
217
6. CONCLUSION
In this thesis I have examined the effectiveness of the CEDAW regime of
reservations in protecting the integrity of the object and purpose of the Convention.
Bangladesh’s reservation to Article 2 of the Convention was studied to illustrate the
implementation and monitoring process of CEDAW in the reserving states. The
following research questions provided the focus of the study:
Is CEDAW able to constrain reserving states’ practices to protect equality and
non-discrimination?
How does Bangladesh’s reservation to Article 2 of CEDAW affect the
effectiveness of the monitoring and implementation process of the Convention?
To address these questions, I have framed theoretical debates and studies on: 1)
the application of the 1969 VCLT regime of reservations to human rights treaties, 2)
the interpretation of CEDAW’s provisions and 3) the monitoring and implementation
process of CEDAW in Bangladesh.
This study has uncovered several challenges affecting the implementation and
monitoring process of CEDAW in Bangladesh. These challenges refer to the gaps in
the CEDAW regime of reservations, to which the subsidiary norms of the 1969
Vienna Convention apply. Specifically, CEDAW is silent on how to determine the
validity of reservations when they are attached to core provisions of the Convention
and the effects of invalid reservations. The CEDAW Committee does not have the
authority to decide on this issue and only member states can do so. This affects the
interpretation of CEDAW, the performance of the CEDAW Committee in
monitoring the implementation of the Convention and the engagement of reserving
218
states with the monitoring and implementation process of CEDAW, particularly
towards the withdrawal of reservations to the Convention.
In addition, current guidelines for the preparation of reports by NGOs and UN
specialised agencies instruct them to provide relevant information, usually based on a
significant volume of data, in succinct form. NGOs are asked to prepare the reports
following the order of the Articles of CEDAW rather than according to the relevance
of the topics. UN agencies are expected to provide a report on approximately five to
ten state parties (the usual number of states that have a periodic report scheduled to
be reviewed by the Committee per session), without specifying what topic should be
the focus of the Agencies. The current format for the submission of reports to the
CEDAW Committee results in documents with information that lacks in substance
and focus, which undermines the assessment of the implementation of CEDAW.
Drawing from the analysis conducted in the previous chapters I have proposed
a classification for the Articles of CEDAW, applicable to the interpretation of all
reservations made to the Convention. In addition, I suggested two significant reforms
for the current format adopted by the CEDAW Committee for NGOs and UN
Agencies’ reports. Below I provide a synthesis of the analysis conducted in this
thesis.
Chapter 2 examined the application of the 1969 Vienna Convention regime of
reservations to human rights treaties. The primary focus was the limitations of the
VCLT regime of reservations to protect the object and purpose of human rights
treaties against impermissible reservations. The chapter discussed the effects of
invalid reservations and the competence of human rights treaty bodies to decide on
the admissibility and validity of reservations. While discussing the progress of the
studies on reservations to treaties, I have examined the 2011 ILC’s Guide to Practice
219
on Reservations to Treaties. The Guide’s definition for the ‘object and purpose’ of a
treaty, as stated in Guideline 3.1.5, was adopted for the analysis conducted in chapter
3.
Chapter 3 examined the history, the provisions and the principles of CEDAW.
In light of the CEDAW Committee’s decisions regarding the impact of reservations
to the Convention, I conducted a review of the Convention’s terms, the context of
those terms, and the Convention’s object and purpose. They were examined as part
of the interpretation of CEDAW’s provisions. Against this background I have
provided a classification of the Articles of CEDAW according to their relevance to
the raison d’être of the Convention.
In chapters 4 and 5 I addressed the monitoring and implementation process of
CEDAW in Bangladesh. The starting point was an examination of the engagement
between the CEDAW Committee and the reserving state. I discussed the state party’s
persistence in maintaining the reservation and its commitment in addressing the
impact of religious personal laws to gender equality in the country. The current
format adopted by the Committee for the submission of data on the implementation
of CEDAW was revised to identify whether it has any influence on the quality of the
Committee’s comments, questions and recommendations to Bangladesh.
6.1. Findings and contributions to the field
This thesis adds to extant knowledge on the implementation and monitoring
process of CEDAW. It provides a thorough examination of the implementation of
CEDAW in Bangladesh and contributes to research in this area in two respects. First,
it develops a classification of the Articles of CEDAW according to their relevance to
the implementation of the object and purpose of the Convention. Second, it proposes
220
and discusses two main reforms to address the effectiveness of the information
submitted by NGOs and UN specialized agencies to the CEDAW Committee.
Despite the ambiguities of the 1969 Vienna Convention, which were discussed
in chapter 1, CEDAW uses the approach of the VCLT to allow reservations, unless
they are incompatible with the Convention’s object and purpose (Article 28).
However, the object and purpose test does little to protect the integrity of the
Convention. There is no accepted definition for the term object and purpose, which
can lead to confusion about the interpretation of the Convention. Also, CEDAW does
not establish which provisions represent its object and purpose. These gaps in the
Convention provide opportunities for state parties to interpret the CEDAW
provisions according to their own interests and to attach reservations that affect the
implementation of fundamental rights protected under the treaty.
While the CEDAW Committee holds responsibility for interpreting the
Convention’s provisions, it is neither a member of the Convention nor does it have
the powers of a court. The Committee only holds the powers of a supervisory body
and, as a consequence, it cannot determine the validity of reservations made to
CEDAW. Even if the Committee understands that a reservation is incompatible with
the Convention, only state parties and the ICJ have the power to find a reservation
invalid and request the Convention not to come into force for a reserving state.
State parties can object to an incompatible reservation (Article 20, VCLT), as
well as request arbitration and submit a case to the ICJ (Article 29, paragraph 1,
CEDAW). However, as discussed in chapter 2, state parties do not benefit from
objecting to reservations made to human rights treaties. Human rights treaties are
non-reciprocal in nature, which means that an objecting state will always maintain its
obligations to the Convention. There are no reciprocal obligations between the states.
221
Extra-legal considerations are also taken into account when deciding on the
admissibility of a reservation. To prevent negative ramifications in the relationship
between states, it is expected that state parties to a human rights convention will
consider how objecting to a reservation might affect their relationship with the
reserving state outside the ambit of the Convention.
As seen in chapter 4, Bangladesh’s reservation has been objected to by
Germany, Mexico and Sweden. Although the three states argued the incompatibility
of the reservation as grounds for their objections, no state requested for CEDAW not
to enter into force between them and Bangladesh. When objections do not request the
prevention of entry into force of a convention, they have the same legal effect as
accepting a reservation. Due to this fact, objections are not considered effective
means of protecting the integrity of human rights conventions.
Despite the apparent inefficacy of the objections submitted by Germany,
Mexico and Sweden in pressuring Bangladesh to withdraw the reservation to Article
2 of CEDAW, their arguments represent an important element in the study of
Bangladesh’s reservation to the Convention. The objecting states understand that
Article 2 represents a core provision of CEDAW, against which no reservation
should be placed. Thus, by objecting, Germany, Mexico and Sweden corroborated
the findings of chapter 3, where I provided a classification that demonstrates which
Articles may be considered the object and purpose of the Convention. The remaining
provisions of CEDAW are also interpreted according to their relevance to the object
and purpose of the Convention. This interpretation follows the order of analysis
described below.
As discussed in the previous chapters, although the CEDAW Committee is
limited
to
only
address
the
permissibility
222
of
reservations,
in
General
Recommendations nos. 19 and 21 the Committee addressed the relevance of Articles
1, 2, 3 and 24 of CEDAW, especially when compared to the remaining provisions of
the Convention. In General Recommendation no 28, the Committee stressed that
reservations to Article 2 are, ‘in principle incompatible with the object and purpose
of CEDAW’ (emphasis added).
To better understand the Committee’s views on the CEDAW provisions, I
examined in chapter 3 the most relevant characteristics of the Convention according
to the principles of state obligation, substantive equality and non-discrimination. This
provided a framework for the interpretation of CEDAW.
Article 1 introduces the need for equality of opportunity and describes the
meaning of the principle of non-discrimination. Articles 2−4 of CEDAW set out the
broad principles of state obligations under the Convention. Articles 5−16 provide the
substance and context under which these obligations should be applied. Articles 17 to
22 describe the role of the CEDAW Committee. Article 23 stresses that any domestic
legislation or international agreements shall be prioritised over CEDAW if they are
more beneficial in achieving equality between men and women. Articles 25−30 refer
to the administration of the Convention.
Article 2 of CEDAW enjoins state parties to ensure that substantive equality
will be respected in both public and private spheres. In essence, Article 2 expresses
the state party’s obligations to guarantee equality of opportunity, equal access to
opportunities and equality of results in all spheres of a woman’s life.
Based on the analysis conducted in chapter 3, the interpretation of CEDAW’s
provisions demonstrated that Articles 1, 2, 3 and 24 are not only ‘significant’ to the
implementation of CEDAW, but express the goals or the object and purpose of the
223
Convention. Thus, a reservation made to any of these provisions may be deemed
impermissible, due to incompatibility with the object and purpose of CEDAW.
A reservation to Articles 5 to 16 may threaten the object and purpose of
CEDAW if the obstacles to achieve compliance with the Convention are not properly
assessed and addressed by the CEDAW Committee and the reserving state. A
reservation made to Articles 17–22 and to Articles 23–30 is relevant only to the
extent that it influences compliance with Articles 1, 2, 3 and 24. The findings of
chapter 3 support the CEDAW Committee’s understanding that Bangladesh’s
reservation to Article 2 of CEDAW is incompatible with the Convention.
Bangladesh’s reservation affects the implementation of a core provision that
represents the reason for the adoption of CEDAW. In such cases, universality of the
convention is achieved at the expense of the integrity of its main goals, namely
substantive equality and non-discrimination in all spheres of a woman’s life. Due to
the damaging effects of the state’s reservation to the effective implementation of
CEDAW, in the review of Bangladesh’s periodic reports, the CEDAW Committee
has argued for the incompatibility of the reservation to Article 2 and requested the
state to set a timeframe for its withdrawal.
The CEDAW Committee has repeatedly requested the reserving state to
withdraw the reservation against Article 2, to abolish any discriminatory laws and to
enact the necessary legislation to meet its international obligations under the
Convention. Despite the numerous requests from the CEDAW Committee,
Bangladesh’s reservation still stands. In its Fifth Periodic Report to CEDAW,
Bangladesh argued that it was still assessing whether its reservation was in direct
224
contradiction with Muslim personal law.560 However, in the same report the state
admitted that discriminatory rules and interpretations from religious personal laws
affect women’s right to equality in the country.561 Religious personal laws regulate
marriage, divorce, custody, maintenance and guardianship in Bangladesh.
Only in the Eighth periodic report did Bangladesh acknowledge that the
discriminatory practices that derive from religious personal laws outweigh
advancements of equality observed in other laws.562 The reserving state argued that
although the withdrawal of the reservation is under consideration, religious
fundamentalist groups are pressuring the government to maintain a patriarchal and
conservative agenda with respect to women’s rights. Withdrawing the reservation to
CEDAW would suggest that the state recognises women as equally relevant
members of society as men, with the right not to be discriminated against. This
would be at odds with the views of Islamic fundamentalist groups, which consider
women as subordinate to men, with their legitimate roles invariably exhausted inside
their homes.
The study of Bangladesh’s reservation to CEDAW provided the opportunity to
analyse the degree of commitment of the reserving state in addressing the reservation
to CEDAW and in complying with its obligations under the Convention. I have
560
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Fifth periodic report of states parties. Bangladesh.
CEDAW/C/BGD/5 (3 January 2003).
561
See Committee on the Elimination of Discrimination Against Women. Thirty first session.
Summary record of the 653rd meeting. Consideration of Reports submitted by states parties under
Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women
(continued). Fifth periodic report of states parties. Bangladesh CEDAW/C/SR.653 (12 August 2004)
p.10
562
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Eighth report of state parties due in 2015. Bangladesh.
CEDAW/C/BGD/8 (27 May 2015) p.11 para.49.
225
demonstrated in chapters 4 and 5 that Bangladesh’s reservation to CEDAW is the
result of a patriarchal system of laws that protects conservative and discriminatory
interpretations of religious personal laws in the country.
In fact, in the review of the Fifth periodic report, the state party addressed the
CEDAW Committee’s comments and argued that discriminatory interpretations of
the Civil and Criminal Procedure Codes are enforced in the courts of the country.563
In Bangladesh, patriarchal attitudes by members of the judiciary and law
enforcement agencies also contribute to women to be treated as inferior and having
their entitlements to equal access to justice denied.564
Despite the constitutional guarantees of equality of opportunity (Article 19,
paragraph 1) and equality before the law (Article 27), as well as statutory provisions,
such as the Prevention of Oppression of Violence Against Women and Children
Act565 and the Acid Control Act,566 women have not achieved equal access to the
justice system and equal opportunity to claim their entitlements, and remain
disempowered.567 Lack of access to justice also results in poor enforcement of
criminal laws that should protect women from acts of violence that are embedded in
563
See Committee on the Elimination of Discrimination Against Women. Consideration of Reports
submitted by states parties under Article 18 of the Convention on the Elimination of all forms of
Discrimination Against Women. Fifth periodic report of states parties. Bangladesh.
CEDAW/C/BGD/5 (3 January 2003).
564
Ibid.
565
See Prevention of Oppression against Women and Children Act. Entered into force in 14
February
2000.
Available
at:
<http://www.hsph.harvard.edu/population/trafficking/bangladesh.traf.00.pdf> [last accessed 10
February 2016].
566
See The Acid Control Act, 2000. Came into force in 2000. Available in Bengali at:
<http://sgdatabase.unwomen.org/uploads/Acid%20Control%20Act%202002.pdf> [last accessed 10
February 2016]. Also see The UN Secretary General Database on violence against women, Acid
Control
Act
2000
and
Acid
Crime
Prevention
Acts
2002.
Available
at:
<http://www.endvawnow.org/en/articles/607-acid-attacks.html> [last accessed 10 February 2016].
567
See Mittra, Sangh; Kumar, Bachchan, ‘Discrimination against women’ In: Mittra, Sangh; Kumar,
Bachchan (eds.), Encyclopaedia of women in South Asia: Bangladesh (2004, Kalpaz Publications).
226
gender relations that privilege patriarchal control over women, such as acid burns.568
In a state where the justice system still allows interpreters to treat men and women
unequally, there is little chance for proper accountability and punishment of men
responsible for acts of violence committed against women.
In chapter 4 I identified and discussed the link between discriminatory
interpretations of the laws and Bangladesh’s patriarchal society. These two elements
are intimately related and both responsible for women’s inability to get proper legal
knowledge and fair access to the justice system.569
The patriarchal system of laws and denial of rightful access to the justice
system is currently under constitutional protection in Bangladesh. The Constitution
of Bangladesh guarantees protection against discrimination only in the public sphere
(Article 28, paragraph 2). This directly impairs the chances for women to claim and
obtain judicial protection against discriminatory practices perpetrated against them in
the private sphere. Since Muslim, Hindu and Christian personal laws regulate aspects
that concern the private sphere of individuals, the constitutional protection of
equality in the public sphere ultimately safeguards the discriminatory rules in the
personal laws from reforms.
Besides protecting equality only in the public sphere, the Constitution of
Bangladesh does not give express powers for the Supreme Court to determine
whether any provisions of the personal laws are in conflict with the equality
568
See Taylor, Lisa, ‘Saving face: Acid attack laws after the UN Convention on the Elimination of
all forms of Discrimination Against Women’ (2001) 29(2) Georgia Journal of International and
Comparative law 395-426; Avon Global Center for Women and Justice; Committee on International
Human Rights; Virtue Foundation, Combating acid violence in Bangladesh, India and Cambodia
(Avon Global Center for Women and Justice at Cornell Law School and the New York City Bar
Association, 2011).
569
See
UNDP,
Access
to
justice:
Practice
note
(2004).
Available
at:
<http://www.unrol.org/files/Access%20to%20Justice_Practice%20Note.pdf> [last accessed 10
February 2016]; Sharmin, Shifat, ‘Women’s access to justice in Bangladesh: Obstacles and remedial
measures’ (2013) 18 Chittagong University Journal of Law 79-104.
227
provisions of the Constitution. This means that equality of opportunity and equality
before the law are formal entitlements that will only be observed in practice
according to the interpretation given to the law in each individual case put before the
Family Courts.
The CEDAW Committee and NGOs that reviewed the implementation of
CEDAW in Bangladesh have argued that Bangladesh’s reservation to Article 2 is
incompatible with the Convention, creating considerable obstacles to the
achievement and promotion of equality and non-discrimination in the country and,
consequently, to the implementation of CEDAW. Yet, Bangladesh did not make any
commitment to the withdrawal of the reservation.
In addition, Bangladesh is one of the state parties to the OP-CEDAW that has
chosen to not accept the inquiry procedure (Articles 8; 9 of the OP-CEDAW). An
inquiry may be conducted without the consent of a state party. However, by opting
out of the procedure Bangladesh denies assistance in the examination of any grave or
systematic violation of women’s human rights that allegedly happened or are
happening in the country.
As part of the study of the monitoring and implementation process of CEDAW
in Bangladesh, I have examined the CEDAW Committee’s scrutiny of Bangladesh’s
reservation to Article 2 and the influence of religious personal laws on the state’s
compliance with the Convention. The discussion in chapter 4 indicates that despite
the CEDAW Committee’s efforts to obtain the commitment of Bangladesh to
withdraw its reservation to CEDAW, the obstacles imposed by the discriminatory
interpretations of religious personal laws were not properly assessed. The CEDAW
Committee’s comments, questions and recommendations only addressed a small part
of the complex relationship between Bangladesh’s reservation and religious personal
228
laws. In the Committee’s arguments, there were few (if any) significant connections
between them.
In the review of the state party’s periodic reports, the Committee addressed the
incompatibility of the reservation to Article 2 and questioned Bangladesh’s
persistence in maintaining it. Bangladesh stated in its reservation to CEDAW that an
incompatibility with Sharia Law was the reason for the reservation. However, the
relationships of religious personal laws to the reservation to Article 2 and,
consequently, their influence on the implementation of CEDAW, received limited
attention by the Committee.
In order to understand the reasons that could justify the lack of sufficient
‘depth’ in the CEDAW Committee’s assessment, I have studied the documents
submitted to the CEDAW Committee by its main sources of information on the
implementation of the Convention: the state party, NGOs and UN specialised
agencies. I have found that the data presented by NGOs and UN specialised agencies
are very restricted, while the data presented by the state party seem biased by the
state party’s interests. This, in turn, limits assessments regarding the significance of
issues to the implementation of CEDAW.
Against this background, I have examined the current guidelines and working
methods adopted by the CEDAW Committee for the submission of reports by NGOs
and UN specialised agencies. Also, I examined whether and how the analysis
conducted in those reports influence the accuracy, relevance and quality of the
CEDAW Committee’s comments, questions and recommendations. I have found that
the structure for the organisation and communication of data regarding the
implementation of CEDAW has significant limitations that prevent NGOs and UN
229
agencies from providing substantive information on the state parties’ compliance
with the Convention.
The CEDAW Committee did not provide any guidelines for NGOs to prepare
their reports.570 NGOs’ shadow reports are structured according to the guidelines
prepared by the IWRAW Asia-Pacific. In particular, IWRAW Asia-Pacific suggests
that NGOs prepare the reports in the most concise possible way and organise the
information following the order of the Articles of CEDAW.571
However, the CEDAW Committee prepared guidelines for the submission of
reports by UN specialised agencies. The review conducted by the agencies should
contain information on the state party’s implementation of the Convention and
follow-up to the Committee’s Concluding Comments. It should also include the
Agencies’ efforts to apply the Committee’s Concluding Comments in their private
programs and ongoing efforts supporting the ratification of the OP-CEDAW. The
Committee does not describe which topic the Agency should focus on in its analysis
and expects the reports to be succinct and prepared according to the status of
implementation of CEDAW in each state party.
The analysis conducted in chapter 5 shows that the way NGOs and UN
agencies currently prepare their reports to the CEDAW Committee results in
restricted and limited information that can undermine the assessment conducted by
570
The CEDAW Committee instructed NGOs only on the means for submission of the reports and
not on their preparation. See Office of the High Commissioner for Human Rights, Committee on the
Elimination of Discrimination Against Women, Information Note prepared by OHCHR for NGO
Participation.
Available
at:
<http://www2.ohchr.org/english/bodies/cedaw/docs/NGO_Participation.final.pdf> [last accessed 10
February 2016].
571
See International Women’s Rights Action Watch, Producing Shadow Reports to the CEDAW
Committee: A Procedural Guide. Section ‘Organizing the Shadow Report’. (IWRAW, 2009).
Available at: <http://www1.umn.edu/humanrts/iwraw/proceduralguide-08.html#suggested> [last
accessed 10 February 2016].
230
the Committee. Based on that analysis, I proposed two main reforms to the current
format for submission of reports by NGOs and UN agencies. They are:
a) Proposal 1. The development of a specific set of guidelines for the
preparation of ‘shadow reports’.
As they are currently written, NGO shadow reports do not provide enough
analytical support for the topics reviewed. While the reports are helpful, they alone
are not enough to establish the real extent of certain issues on the implementation of
the Convention in the state parties. As I have suggested, the CEDAW Committee
would benefit from shadow reports structured according to the relevance of specific
issues to the implementation of the Convention, which do not necessarily follow the
order of the Articles of CEDAW.
b) Proposal 2. Revision of the scope of reports to be prepared by UN
specialised agencies.
When preparing their reports on the implementation of CEDAW, UN
specialised agencies are required to condense large volumes of information. Yet
there are no guidelines on the scope of the information required, which could affect
the quality of the analysis conducted by the agencies. Delineating the scope of the
information to be presented in the reports would provide UN specialised agencies
with the opportunity for a more detailed and accurate analysis of the relevant
obstacles to the implementation of CEDAW. These proposals were presented and
discussed in chapter 5.
6.2. Summary of recommendations
The discussion summarised above and detailed in the previous chapters
suggests that the CEDAW Committee would benefit from:
231
a) Developing a framework with a standard interpretation of all the CEDAW
provisions to inform the state parties on their obligations under the
Convention. The use of such a framework would leave little to no room for
opposing interpretations of provisions by the reserving states. This would
provide the Committee with a consistent platform to examine state parties’
commitment to the implementation process of the Convention, resulting in
more relevant and accurate comments, questions and recommendations.
b) Implementing reforms aimed at strengthening the scope and effectiveness
of the information provided by NGOs and UN specialised agencies.
6.3. Concluding remarks and future direction
In this thesis I have investigated the monitoring and implementation process of
CEDAW in Bangladesh. I have examined the performance of the CEDAW
Committee in monitoring the implementation of CEDAW and have assessed
Bangladesh’s compliance with the Convention. The discussion above outlined the
findings of the research, its contributions and recommendations for addressing
structural challenges with the monitoring and implementation process of CEDAW in
reserving states.
I have proposed an interpretation of the CEDAW provisions to facilitate the
analysis of reservations made to the Convention and the investigation of state parties’
compliance with their obligations to CEDAW. While Islamic states and Islamic
countries are responsible for the majority of reservations made to CEDAW, their
reasons for entering and maintaining reservations vary. In particular, the influence of
religion and religious laws in state affairs vary from country to country, was
demonstrated with respect to Saudi Arabia, Turkey and Bangladesh. The study of
232
Bangladesh’s reservation to CEDAW uncovered a number of nuances affecting the
implementation and monitoring of the convention in the reserving state. Also, I have
shown that the literature will benefit from studies that focus on specific obstacles that
are more likely to affect each reserving state’s compliance with the Convention. In
particular, it would be possible to identify the key reasons motivating each
reservation and assess effective means to approach the withdrawal of those
reservations that are central to the implementation of CEDAW.
Further, I have shown that significant reforms are necessary in order to address
the current deficiencies in the format adopted for the preparation of NGO and UN
agencies reports to the CEDAW Committee. I have proposed and discussed two
reforms that provide a platform for understanding the role of NGOs and UN agencies
in the relationship between reserving states and the CEDAW Committee. It is
important, however, to go beyond the proposed reforms and future studies could
investigate how, and under what conditions, NGOs and UN agencies are likely to
more effectively contribute to the monitoring and implementation process of
CEDAW. Should a more formal network between these organisations be established?
How would such a network be structured? This thesis contributes to the body of
research investigating the monitoring and implementation process of CEDAW and
uncovers opportunities for future studies to investigate the impact of various types of
reservations (such as those made against Articles that express the ‘object and
purpose’ versus those made to Articles that are significant but do not express the
‘object and purpose’) to the implementation of CEDAW. It also provides a platform
for further research to improve existing knowledge on the role of NGOs and UN
specialised agencies in the monitoring of the Convention in reserving states.
233
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