cedaw reservations rebecca j. cook

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

2010 Thomson Reuters. No claim to original U.S. Government Works. 1

30 Va. J. Int'l L. 643

Virginia Journal of International LawSpring, 1990

RESERVATIONS TO THE CONVENTION ON THE ELIMINATIONOF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

Rebecca J. Cooka

Copyright 1990 by the Virginia Journal of International Law Association; Rebecca J. Cook

I. INTRODUCTIONThe Convention on the Elimination of All Forms of Discrimination Against Women1 (the Women's Convention) is thedefinitive international legal instrument requiring respect for and observance of the human rights of women; it is universalin reach, comprehensive in scope and legally binding in character. It was adopted in December 1979 by the United NationsGeneral Assembly and came into force in September 1981 after ratification by the twentieth state party. This was within twoyears of its adoption, faster than any previous human rights convention had come into force.

As of February 2, 1990, 100 countries had ratified or acceded to the Women's Convention.2 The rate and extent of ratificationare tempered, *644 however, by recognition of the acute problem of substantive reservations.3 The volume of reservationsbrings this Convention among the most heavily reserved of international human rights conventions, with at least 23 of 100states parties making a total of 88 substantive reservations.4 An additional 25 reservations have been made to article 29 ondispute settlement.5

The claim that the Women's Convention came into effect rapidly in part because, under its article 28(2), it accommodatesreservations that are not incompatible with the object and purpose of the Convention must be qualified by the fact that twentyof its states parties have made a less than full commitment.6 The issue of reservations is legally contentious not simply withinthe general body of international treaty law but also within the legal regime of the Women's Convention itself; the reservationsmade by states parties have attracted a total of ninety-five objections, filed principally by a core of three states parties.7 Theproblem that the objections identify is that a treaty designed to prohibit all forms of discrimination has member states whichpurport to accept less than that goal. The Women's Convention may face the paradox of maximizing its universal applicationat the cost of compromising its integrity. Indeed, the legal issue of the propriety of reservations to this Convention goes to theheart of both values of universality and integrity.

The Women's Convention is one of a series of treaties inspired by a vision of the importance of protection of humanrights through international *645 law. It is historically proximate to the International Convention on the Elimination ofAll Forms of Racial Discrimination8 (the Race Convention), and a jurisprudential partner to the two Covenants that giveeffect to the Universal Declaration of Human Rights,9 namely the International Covenant on Civil and Political Rights10 (thePolitical Covenant) and the International Covenant on Economic, Social and Cultural Rights11 (the Economic Covenant). ThePolitical Covenant, the Economic Covenant, the Race Convention and the Women's Convention provide the universal basis forinteraction with the various regional human rights conventions such as the European Convention for the Protection of HumanRights and Fundamental Freedoms12 (the European Convention), the American Convention on Human Rights13 (the AmericanConvention), and the African Charter on Human and Peoples' Rights (the African Charter).14Human rights treaties of this nature are distinguishable from historic international treaties of trade, commerce and territorialtransfer, which tend to be bilateral and are contractually finite in nature. These historic treaties create mutual privileges forstates parties that are concluded in principle on a basis of reciprocity, and are interpreted on conservative grounds protective ofstate sovereignty and limited reduction of legal autonomy. Multilateral human rights treaties have universal legislative effect



in international law with obligations erga omnes. Human rights treaties may also be regional for purposes of agreement andenforcement, but their regionalism is not an end in itself, but simply a means to the end of universal elevation and globalmaintenance of individual human rights and dignity.

Accordingly, it has been recognized that the jurisprudence of international human rights conventions is distinguishable from thatapplicable to other international treaties. The Vienna Convention on the Law of Treaties (the Vienna Convention) has beenwidely ratified and is recognized beyond its ratifying membership as being generally declaratory of prevailing international lawon treaty interpretation. Its article 60(5) recognized that the normal rules of termination or suspension of a treaty do not applyto provisions relating to the protection *646 of the human person contained in treaties of a humanitarian character ... TheInternational Court of Justice (ICJ) in its 1951 Advisory Opinion on Reservations to the Genocide Convention explained thatthe contracting parties to human rights treaties adopt such conventionsfor a purely humanitarian and civilizing purpose. [They] have, one and all, a common interest, namely, the accomplishmentof those high purposes which are the raison d'etre of the convention. Consequently, in a convention of this type one cannotspeak of individual advantages or disadvantages to States, or the maintenance of a perfect contractual balance between rightsand duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundationand measure of all its provisions.15

The Inter-American Court in a 1982 Advisory Opinion recognized that the object and purpose of human rights treaties is

the protection of the basic rights of individual human beings, irrespective of their nationality, both against the State of theirnationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submitthemselves to a legal order within which they, for the common good, assume various obligations not in relation to other States,but toward all individuals within their jurisdiction.16

The European Commission on Human Rights, applying the European Convention in a 1960 case, emphasized that the obligationsof states parties are

of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringementby any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Partiesthemselves ...17

*647 A significant feature of the Women's Convention is that it not only amplifies particular areas of the general field ofdiscrimination (all forms of which are ultimately to be eliminated), but also specifies a number of means that are to be pursuedto achieve this end. It establishes through article 17 a monitoring body, the Committee on the Elimination of DiscriminationAgainst Women (CEDAW),18 whose task is continually to observe states parties' behavior and performance. The treaty thereforeoperates in the context of progressive development and strives in good faith towards the ultimate result of the elimination ofall forms of discrimination against women.The Women's Convention imposes obligations of result and obligations of means. Article 2 of the Women's Conventioncondemns discrimination against women in all its forms and provides that states parties agree to pursue, by all appropriatemeans and without delay a policy of eliminating discrimination against women by undertaking constitutional, legislative,administrative and other measures. States parties shall also refrain from discriminatory acts or practices, provide sanctionswhere appropriate prohibiting all discrimination against women, protect the rights of women on an equal basis with those ofmen and, for instance, modify or abolish existing laws, regulations, customs and practices that discriminate against women.Article 3 requires states parties to take ... all appropriate measures ... to ensure the full development and advancement ofwomen, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basisof equality with men. Article 24 underscores articles 2 and 3 by requiring states parties to adopt all necessary measures ...aimed at achieving the full realization of the rights recognized in the present Convention. Articles 2, 3 and 24 accordinglyimpose obligations of means to be pursued without delay toward the ultimate result.19



*648 The thesis of this article is that the object and purpose of the Women's Convention are that states parties shall moveprogressively towards elimination of all forms of discrimination against women and ensure equality between men and women.Further, states parties have an obligation to provide the means to move progressively toward this result.20 Although the Women'sConvention envisions that states parties shall move progressively towards elimination of all forms of discrimination againstwomen and ensure equality between men and women, reservations to the Convention's substantive provisions pose a threat tothe achievement of this goal. Further, states parties have an obligation to provide the means to move progressively toward thisresult.21 Accordingly, reservations that contemplate the provision of means towards the pursuit of this goal will be regardedas compatible with the object and purpose of the treaty as provided by article 28(2) of the Women's Convention and article19(c) of the Vienna Convention.22 Similarly, any reservation that contemplates enduring inconsistency between state law orpractice and the obligations of the Women's Convention is incompatible with the treaty's object and purpose.23

II. TREATY RESERVATIONS

A. Formulating ReservationsA basic principle of international law is pacta sunt servanda (agreements *649 are to be kept). The principle predictablypervades the law of treaties,24 and has been codified in article 26 of the Vienna Convention, which states that e very treatyin force is binding upon the parties to it and must be performed by them in good faith.25 Good faith performance requiresstates parties to observe and apply a treaty in accordance with its proper interpretation. Michel Virally described the role ofgood faith as threefold:1. good faith forms the foundation of pacta sunt servanda, the principle that makes it possible to ascertain the legal meaningof a state's behavior;

2. assessment of good faith provides a mechanism for determining the extent of the legal obligations assumed by states or othersubjects of international law; and

3. the duty to act in good faith protects those who trust the appearance reasonably created by the behavior of other internationallegal actors, and those who have made a genuine mistake and are thus the innocent victims of deceptive appearances.26

Article 31 requires that a treaty be interpreted in good faith ... in light of its object and purpose. As Kennedy has written,[t]hroughout the Convention, absolute duty is coupled with a good faith lubricant, and the formal triggers for duty or releasefrom duty to perform are paired with an exception for unjust results.27 One of the most important means of limiting treatyobligations is through reservations. The role of reservations under the regime of international human rights conventional lawhighlights the constant tension between encouraging universal participation in a human rights convention and protecting theintegrity of the convention.28 Wide acceptance of such a convention affords it credibility and the capacity to become normativeunder customary law even for nonsignatory states. Such states may deny the normative effect of the convention by pointing tothe exemptions states parties have made through reservations, but the cumulative impact of general adherence and states parties'objections to reservations made by other states may leave a balance in *650 favor of the convention's positive influence oncontemporary customary international law.

Tolerance of reservations to international human rights conventions has been encouraged on pragmatic grounds.29 Treaties onhuman rights are likely to jeopardize the sovereignty of states parties without at the same time offering them a commercialadvantage that may render a compromise of sovereignty worthwhile.30 Most states are apprehensive about the possibleconsequences of accepting a human rights treaty, not least because such treaties may have a dynamic force and interpretation oftheir scope and impact is less certain than that of commercial treaties.31 States realize that they may not be able to withdraw andmay be found in breach, with harmful or humiliating consequences. Reservations are seen to offer an assurance that the statecan protect its interest to the fullest extent possible. Further, reservations may reduce uncertainties in human rights conventions,particularly when they are accepted by other states; there may be apparent overlap between a true reservation and a state's



interpretive declaration of the meaning or scope of an obligation.32 A reservation precluding retroactivity, for instance, mayclarify the Convention's object and purpose and therefore be compatible with it.33 States may accept human rights treatiessubject to genuine interpretative declarations intended to guard against misinterpretations that are foreseeable.34 In addition,multilateral human rights treaties *651 have a universal legislative effect in international law with obligations erga omnes.35

This article examines treaty reservations under the Vienna Convention, the Belilos judgment of the European Court of HumanRights, and the ICJ's Advisory Opinion on Reservations to the Genocide Convention.36 International jurisprudence on treatyreservations provides that a valid reservation to a treaty becomes a part of that treaty and affects the treaty relations among thereserving state and other states parties. Article 2(d) of the Vienna Convention defines a reservation as any unilateral statement,however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby itpurports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.

Article 19 of the Vienna Convention37 limits the power to make and accept reservation depending on their compatibility with theobject and purpose of the treaty.38 Article 20 of the Vienna Convention addresses acceptance of and objections to reservations,and provides that a reservation authorized by a treaty does not require acceptance unless the treaty so provides. Paragraph 5 ofarticle 20 states that unless the treaty otherwise provides, a reservation is considered to have been accepted by a state that hasraised no objection to it by the end of twelve months after it was notified of the reservation or by the date of its own expressionof consent to the treaty, whichever is later.

Article 20(4)(a) has the effect of dividing a multilateral treaty into a series of separate bilateral treaties between two statesparties which are bound by the original treaty as modified by the reservation of one that has been accepted by the other.39

Objection to a reservation does *652 not preclude the entry into force of the treaty between the reserving and objecting states,except regarding the provision(s) to which the reservation was made, unless the latter denies a treaty relationship in a definitiveform. The binding nature of the reserved treaty would appear to be a natural consequence of the rule in article 19(c)40 thatonly compatible reservations may be formulated; that is, the reserving state has committed itself in good faith to act compatiblywith the treaty, and is therefore in principle bound jointly with another party to the treaty, even if the other party does not findthe reservation compatible.

The implication of a state remaining a treaty partner with another state whose reservation it declares to be objectionable isthat the reservation is not incompatible with the object and purpose of the treaty, unless the objecting state so declares.41Legal uncertainty is raised, however, when a state declares that another state's reservation is objectionable because of itsincompatibility with the object and purpose of the treaty, but otherwise considers itself to be in a treaty relation with the reservingstate.42

Article 21 of the Vienna Convention43 defines the legal effects of *653 reservations and of objections to reservations. Theresult that the reservation becomes part of the treaty and has to be interpreted as such was emphasized by the Inter-AmericanCourt in the Death Penalty Opinion in its observation that it is consequently impossible to interpret the treaty correctly, withrespect to the reserving State, without interpreting the reservation itself.44 Principles of treaty interpretation are thereforeapplicable both to the terms of the treaty and to the language of the reservation. Article 21(3) excluding the application betweenan opposing and reserving state of a provision to which an opposed reservation relates appears to have the same legal effect ontreaty relations that follows between any state and a reserving state from acceptance of or non-objection to the reservation.45

The Belilos judgment of the European court of Human Rights turns on the extent to which the Vienna framework of analysisis tightened through the European Convention, which provides for more specificity through Article 64.46 The purportedreservation of Switzerland, *654 contained in its exemptive interpretive declaration, was held not to be specific and wasaccordingly held to be invalid. Switzerland was thereby regarded as having no reservation or effective declaration andaccordingly was to be bound by every term of the Convention including that to which it had purported to invoke an exemption.



This raises the question under the Women's Convention and under comparable human rights conventions that contain no explicitrequirement that a reservation must be specific of whether the provision of specificity is an implied condition of formulationof a reservation: that is, whether the European Convention simply makes explicit what is otherwise implicit in human rightstreaty provisions that allow reservations.47 There is clear logic to support the proposition that a reservation that is not finite isnot an adequate reservation, but such logic may be resisted by the experience of history and international law that countriesare not taken to limit their sovereignty except by express consent.48 It may accordingly be argued that an unclear reservationcompromises the specificity and effectiveness, not of the reservation itself but of acceptance of the treaty provision or of thetreaty itself to which the reservation is made.49

The Belilos judgment discloses an additional means by which a purported reservation may be approached.50 The Court in thatcase did not necessarily accept that the Swiss interpretive declaration constituted a reservation, but considered that

the court must see to it that the obligations arising under the [European] Convention are not subject to restrictions which wouldnot satisfy the requirements of Article 64 as regards to reservations. Accordingly, it will examine the validity of the interpretivedeclaration in question, as in the case of a reservation, in the context of this provision.51

The Court found that the declaration did not satisfy the requirements of article 64 of the European Convention in two regards.Article *655 64(1) requires specificity and article 64(2) requires a reservation to contain a brief statement of the law involved,and the Swiss declaration was deficient in both regards.52 The Belilos judgment provides a foundation for a general rule ofinterpretation that a purported reservation that does not specify in adequate detail the exemption a state party claims affordsthat party no relief.

In the Belilos judgment the Swiss declaration was found not to be the sine qua non of acceptance of the Convention and thereforeseverable from state party acceptance. Regarding the Women's Convention, if a state's reservation is a condition of acceptance,and the purported reservation is found by another state party either not to constitute a reservation or to be an invalid reservation,the latter will not be in a treaty relationship with the reserving state party. If the provision purportedly reserved is considered,however, to constitute jus cogens, or if the reserving state showed an intention to be bound by the Convention notwithstandingineffectiveness of its purported reservation, a preferred view would be that the state remains a party bound by the provisionit claimed to reserve.

The European Court's application of the specificity criterion of reservations in the Belilos judgment appears to refine theprovision in the Vienna Convention that a reservation must be compatible with the object and purpose of the Convention towhich it is made. Accordingly, a purported reservation that fails this quality control criterion should serve neither as a reservationnor as a limitation on the reserving state's acceptance of the treaty. Treaty acceptance imports acceptance of the treaty conditionof making a valid reservation, and a purported reservation that fails to satisfy the condition will not be treated as a reservation.It is a general principle of construction that a reservation is read narrowly or contra proferentem. In order to demonstratecompatibility with the object and purpose of a treaty, a reservation may be expected to satisfy implied criteria of specificity.The Vienna Convention provides that a reservation is identified as a matter of substance and not mere form so that what isdescribed as other than a reservation may be treated as a reservation.53 It equally follows that a statement is not necessarily tobe treated as a reservation merely because a state describes its discomfort with a potential application of a treaty as a reservationto it.54 Whether language constitutes *656 a true and valid reservation is a matter for independent determination.55 It remainsopen to a state to contend, however, that its purported reservation is the sine qua non of its general acceptance of a treaty, sothat the general acceptance and the purported reservation either stand or fall together.56

The Vienna Convention addresses the legal consequences of states parties' responses to others' reservations, but is silent as tothe implication of non-reservations (that is, purported reservations that are not accepted as such, as in the Belilos judgment),leaving them to be governed by the general law. Because purported reservations to human rights conventions are designed toexcuse states parties from obligations that otherwise may be binding erga omnes,57 it may follow that the formulation of aninvalid reservation provides no such excuse and that the state party is accordingly bound by the general treaty provisions. Astate cannot invoke other states parties' acceptance of its purported reservation as giving it effect under the Vienna Convention.



B. Acceptance and Rejection of ReservationsCoccia has observed that the difference between acceptance of and objection to a reservation is currently rather obscure.58 Theobscurity arises not simply from apparent contradictions in the provisions of the Vienna Convention concerning formulating,accepting and objecting to reservations but also from identification of when formulating an incompatible reservation to amultilateral human rights treaty constitutes a wrongful act that incurs the legal responsibility of the reserving state party to otherstates parties.59 An additional source of obscurity is the determination of which states parties have accepted a reservation orwaived their right to complain of the wrong done to them by the objectionable reservation and when they have preserved theright to complain before a tribunal that has jurisdiction over the *657 reserving state.60

The law of state responsibility interacts with provisions of the Vienna Convention that govern when a state incurs liability forbreach of the treaty, including a human rights treaty. Under the regime of the Vienna Convention, the compatibility rule forreservations embodied in article 19(c) and the rules on the acceptance of and objection to reservations contained in article 20(4)are not easy to reconcile.61 The former provides that a state may not formulate a reservation incompatible with the object andpurpose of the treaty concerned but the latter provides that a reserving state becomes a party to the treaty regarding all otherstates that expressly accept the reservation, do not object to it, or that object without expressing a definite intention to precludethe entry into force of the treaty between the reserving state and itself. Article 20 does not take into account the content orcompatibility of the reservation. This apparent contradiction has invited three interpretations.

The first is that the only real test for the admissibility of a reservation is acceptance by other states.62 According to thisinterpretation, the content of the reservation is relevant only to the interpretation of the rights and obligations of the treatyparties inter se.63

A second interpretation seeks to differentiate the scope of Articles 19 and 20 of the Vienna Convention. According to thisinterpretation, article 19 governs the permissibility of a reservation, an incompatible reservation being impermissible andtherefore illegal.64 Article 20, on the other hand, concerns the issue of the opposability of a permissible reservation and thisinvolves inquiring into the reactions of the Parties to that reservation and the effects of such reaction.65

Yet a third construction respects the rule of article 19(c) of the Vienna Convention that a state may not formulate an incompatiblereservation and the rule that such formulation constitutes a breach of an international legal obligation arising either pursuant tothe Vienna Convention or customary international law that the Convention codifies. Formulation of an incompatible reservationis a wrongful act *658 entailing the reserving state's international responsibility regarding the other states parties. Thereservation is not necessarily a breach of the treaty itself but rather a breach of the legal norm embodied in the Vienna Conventionthat prohibits the formulation of incompatible reservations.66 The ILC's Draft Articles on State Responsibility provide in article3 that there is an international wrongful act of a State when: (a) conduct consisting of an action or omission is attributable tothe State under international law; and (b) that conduct constitutes a breach of an international obligation of that State.67

Compatibility of a reservation with the object and purpose of a treaty is a legal issue suitable for judicial resolution. Whether astate party to a treaty may complain of incompatibility depends initially, however, on that party's reaction to the reservation. Anobjecting state may claim that the reserving state has incurred responsibility for its wrongful act of violating the compatibilityrule of reservations, but states that have expressly or tacitly accepted the reservation cannot subsequently assert the reservingstate's responsibility regarding themselves.

Denial of an accepting state's right subsequently to claim incompatibility of the reservation may rest upon two grounds. Thefirst deems the accepting state to have waived its subjective right of complaint, whereas the second invokes acceptance asprecluding wrongfulness of the reservation. A limitation of any legitimating effect of consent is that no consent can make lawfula violation of jus cogens.



The significance of an objection to a reservation is twofold. First, it reserves the right of complaint of the objecting state againstthe reserving state's exclusion from its treaty obligations of duties that would otherwise be binding in its relations with theobjecting state.68 Second, and more importantly, the objection reinforces the norm from which the reserving state attempts tofree itself through its reservation and weighs against a judicial finding that the norm reserved is not or is no longer a norm ofcustomary international law and that the *659 reservation itself, perhaps in conjunction with similar reservations formulatedby other states, evidences a contrary rule of customary international law.69 Objections to reservations both uphold the legallybinding character of the norms reserved, and preclude the norm implicit in the reservation from being found to be legallyobligatory.70

It has been observed that the real scope of the compatibility rule of Article 19(c) is limited by the consent of states sinceit applies only when such consent is lacking71 Thus, a tribunal will adjudicate whether the reserving state has violated thecompatibility rule only when a complaining state has objected to the reservation.

In its Advisory Opinion on Reservations to the Genocide Convention, the ICJ affirmed what has been called a modern softerapproach to reservations.72 The majority of the Court decided that a contracting State which has made a reservation can,while still maintaining it, be regarded as being a party to the Convention, when there is a divergence of views between thecontracting parties concerning this reservation, some accepting the reservation, others refusing to accept it if the reservation

is compatible with the object and purpose of the Convention.73

While the majority of the ICJ stressed the authority which would result from the participation of as many states as possible,the joint dissenting judges focused on the integrity of the relevant Convention and endorsed a harder, traditional contractualapproach. Under this approach a reservation constituted a counter-offer which required new acceptances, failing which astate making the reservation could not become a party to the treaty.74 They recognized the importance of the integrity ofmultilateral conventions, the legal basis of which is the common consent of the parties.75 The underlying principle of consentwas fundamental, with the result that a strict rule of unanimous acceptance was held to be applicable to reservations.76 Inthe absence of an express provision to the contrary, the joint dissenting judges *660 held, no reservation to a multilateralconvention is valid unless it has been accepted by all states parties.77

C. Principles of InterpretationThere are at least four general principles that can be used to interpret treaty reservations.78 As in the case of municipal canons ofstatutory construction, the principles guide but do not necessarily govern the interpretation of treaty reservations. The principlesare:

1. The textual principle. This principle gives primacy to the ordinary meaning of the text of a treaty.79 Regarding the textualprinciple, a 1984 Advisory Opinion of the Inter-American Court of Human Rights has observed that

this method of interpretation respects the principle of the primacy of the text, that is, the application of objective criteria ofinterpretation. In the case of human rights treaties, moreover, objective criteria of interpretation that look to the texts themselvesare more appropriate than subjective criteria that seek to ascertain only the intent of the Parties.80

2. The contextual principle. This principle requires that attention be given not only to the text but to the interrelationship ofall parts of the text, including the preamble, annexes and subsequent agreements and practice, as required by article 31(2) and31(3) of the Vienna Convention. Contextual interpretation requires an article of a treaty to be read consistently with anotherarticle, not in a way that undermines or neutralizes it.81

*661 3. The object and purpose principle. This principle requires treaties to be interpreted in order that their object and purposebe given fullest weight and effect in a manner that is consistent with the normal sense of the words and with other parts ofthe text. Determination of the object and purpose or multiple objects and purposes of a treaty is difficult and controversial.



It is legally necessary to undertake this task, however, for purposes both of interpretation of the Women's Convention to giveeffect to its object and purpose and in particular for satisfaction of the goal of its article on reservations. Article 28(2) of theWomen's Convention provides that a reservation incompatible with the object and purpose of the present Convention shall notbe permitted. Accordingly, approaches to determining how to give effect to the object and purpose of the present Conventionare central to determination of the legal validity of reservations. The general object and purpose of human rights treaties areto protect individual rights. Where an article, such as article 28(2) of the Women's Convention, provides for limitations orqualification of those rights, it will be construed narrowly so as to give maximum effect to the purpose of protecting individualrights.82 Where there is uncertainty about the object and purpose of a treaty, the travaux preparatoires may be considered as asupplementary means of confirming meanings not clear from the text or context.83

Article 32 of the Vienna Convention defines the role of supplementary means of treaty interpretation including the preparatorywork of the treaty and the circumstances of its conclusion, which may be invoked in order to confirm the meaning derived byapplying Article 31. The travaux prparatories may be especially useful when the application of Article 31 (a) leaves the meaningambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. *662 They are a supplementarymeans to be used when the meaning is not clear from the text or context.

4. The dynamic principle. This principle is particularly significant to human rights conventions and provides that the objectand purpose of a treaty are to be served through whatever means are appropriate to unforeseeable future circumstances. TheEuropean Court in Marckx v. Belgium, 2 Eur.Hum.Rts.Rep. 330, 346 (1979) applied this principle to enable an unmarriedmother to legitimate her child in the same way as a married woman and stated that the Convention must be interpreted inlight of present day conditions. Under the Women's Convention, CEDAW is afforded the capacity to measure states parties'conformity to their different obligations in changing circumstances. Article 18(1) imposes a duty on states parties periodicallyto submit to the Secretary-General of the United Nations, for consideration by CEDAW, a report on the legislative, judicial,administrative or other measures which they have adopted to give effect to the provisions of the Convention and on the progressmade in this respect. Such reports may indicate factors and difficulties affecting the degree of fulfillment of obligations underthe Convention. Thus, the Convention may be understood to have an elastic or dynamic component, and its terms and obligationsmay appropriately be construed in accordance with the dynamic principle of interpretation.

These principles of treaty interpretation have at their root the more general principle of effectiveness. The effectiveness principleis a mechanism of interpretation used by courts to give a treaty the fullest weight and effect consistent with its language and text.In applying the principle of effectiveness, it is important to keep in mind the distinction between the concepts of obligations ofresult and obligations of means.84 An obligation of result imposes a duty upon a state to achieve a defined practical outcomeby means of its own choice.85 An obligation of means may be seen either as an obligation to take *663 appropriate stepstowards the advancement of an identified goal or as reinforcing an obligation of result by mandating that the end be securedthrough specified means.86 The ILC points out that the decisive criterion for concluding the obligation has been fulfilled orbreached is a comparison between the particular course of conduct required by the obligation and the conduct actually adoptedby the State.87

If the ordinary meaning of the reservation is to eliminate all means by which states can progressively develop toward the ultimategoal of the Convention, the reservation is incompatible with the Convention's object and purpose. Further, if a state party rejectsits obligation of result by a reservation in a substantive area, it must be determined within the context of the particular state'ssituation whether that reservation is inconsistent with the object and purpose of the Convention and therefore not permissible.If the reservation addresses the timing of the achievement of the result, for example, it is not incompatible, even though thestate party may have breached its good faith obligation to implement the convention.

III. THE WOMEN'S CONVENTION

A. BackgroundThe Women's Convention was adopted unanimously by the U.N. General Assembly on December 18, 1979.88 Adoption ofthe Women's Convention was the culmination of work initiated in 1972 when the Commission on the Status of Women(the Commission) *664 asked the U.N. Secretary-General to invite members to transmit their views concerning the nature



of new international legal instruments on women's equality with men.89 The Commission, a functional body of the U.N.Economic and Social Council (ECOSOC), also established a working group to facilitate drafting.90 A 1973 working paper91

expressed concern about the inadequacy of earlier instruments designed to advance women's status92 including the ConventionAgainst Discrimination in Education,93 the Convention for the Suppression of Traffic in Persons and of the Exploitation of theProstitution of Others,94 the Convention on the Political Rights of Women,95 the Convention on the Nationality of MarriedWomen,96 the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages97 and theConvention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value.98 The working papernoted that the 1967 Declaration on the Elimination of Discrimination Against Women99 (the Women's Declaration) was notlegally binding on states even though it had moral force,100 and found existing instruments that could be legally binding werenot yet widely ratified.101 In addition, the working paper stated that, despite these instruments, i nequality of the sexes is,in fact, still part of the idealized heritage of a large part of public opinion *665 which sees in this nothing that is odious orpersecutory while discrimination based on other differences such as race and religion is not considered permissible.102

The arguments in favor of a single comprehensive convention included the desire to make states legally bound to eliminatede facto discrimination,103 to integrate and improve existing instruments, to streamline the implementation procedures andinclude all manifestations of inequality based on sex that were not currently covered, and to hasten the elimination ofdiscrimination through the proclamational, political and educational value generated by publicizing the broad and subtle natureof discrimination against women.104

The arguments against a single instrument included practical considerations: first, about whether the objective of achievingequality between women and men might be better served by regional instruments and, second, about means by which a newinstrument could be integrated with existing instruments.105 Some states favored a convention that covered only areas of sexdiscrimination that were not yet subject to international agreements.106 Moreover, if membership in the Race Convention wasan indication, states which systematically practiced sex discrimination would not ratify a new instrument.107 Despite thesearguments,108 the Commission decided in 1974 to prepare a draft convention for the elimination of discrimination againstwomen.109

1. Definition: Discrimination Against WomenFor the purposes of the Women's Convention, a legal definition of discrimination against women was required.110

Discussion of the *666 development of the Women's Declaration into the Women's Convention showed an intention todefine discrimination against women, for purposes of legal application.111 Article 1 of the Women's Declaration contains anexplanation of why discrimination is objectionable, but does not offer a legal definition in observing that d iscriminationagainst women, denying or limiting as it does their equality of rights with men, is fundamentally unjust and constitutes anoffence against human dignity.112

The Working Group to the Commission on the Status of Women,113 the Commission itself,114 and the Working Group of theThird Committee115 all applied to the definition of discrimination against women elements of Article 1 of the Race Convention,which defines racial discrimination to mean:

any distinction, exclusion, restriction or preference based on *667 race, colour, descent, or national or ethnicorigin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on anequal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any otherfield of public life.116

As finally adopted into Article 1 of the Women's Convention, the definition reads:



the term discrimination against women shall mean any distinction, exclusion or restriction made on the basis ofsex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women,irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamentalfreedoms in the political, economic, social, cultural, civil or any other field.117

This definition departs from the Race Convention definition of racial discrimination in two material regards.118 First,discrimination against women omits any reference to preference. Second, the Race Convention applies to certain distinctionsdrawn in the political, economic, social, cultural or any other field of public life,119 whereas the Women's Conventiongoverns certain distinctions in the political, economic, social, cultural, civil or any other field.120 Accordingly, the Women'sConvention is not confined to governmental obligations regarding public life, but imposes obligations in the private or civilfield.121

The omission of preference in the definition of discrimination against women was a matter of extensive discussion. Theoriginal draft Convention submitted to the Commission on the Status of Women by the Philippines was modeled directly on theRace Convention, *668 and included preference in its definition of discrimination.122 In the subsequent draft proposed incollaboration with the U.S.S.R., preference was omitted from the definition.123 This text was proposed to the Commission,however, with an alternative text of Article 1 that included preference in the definition of discrimination.124 Opinions weredivided between the proposed and the alternative text, with a slight majority in favor of the latter.125 Denmark, Portugal and theWorld Young Women's Christian Association specified that they favored the alternative because of its inclusion of preferenceof men over women as constituting discrimination against women.126 Countries including Finland favored the alternative textbecause of its similarity to the Race Convention,127 and alternative drafts submitted by Benin,128 Belgium,129 Indonesia130

and the All-African Women's Conference131 included preference in their definition.A sense of necessity to compromise in order to advance agreement on a text eventually took hold. Therefore, for the sake ofadvancement of the whole enterprise, the proposed text omitting preference was adopted by the Commission without vote.132

Countries originally favoring inclusion of preference in the definition of discrimination were satisfied that states parties tothe eventual Convention would be obliged to act against discriminatory preferences under, for example, article 4 on temporaryspecial measures.133

More significant to the contrast between the Race Convention and the Women's Convention is that the latter obliges statesparties to act *669 to affect the private or civil field of conduct.134 The strongest emphasis on the need to combat privatediscrimination against women came from the United Nations Educational Scientific and Cultural Organization (UNESCO),which was constantly vigilant lest states lose sight of the need to commit themselves to influence the private and family sectorsof national life.135

Obligations on states parties to equalize private relationships are outlined in article 5(a), which requires governmental actionthrough appropriate measures to modify social and cultural patterns of conduct based on the idea of the inferiority or thesuperiority of either of the sexes or on stereotyped roles for men and women.136 Article 5(b) requires state action to ensure thatfamily education will contribute to parents and children gaining proper understanding of equality of the sexes within the family.

More specifically, article 15(2) requires that states parties shall accord to women, in civil matters, a legal capacity identicalto that of men.... In particular, they shall give women equal rights to conclude contracts and to administer property.... Article15(3) provides that States Parties agree that all contracts and all other private instruments of any kind with a legal effectwhich is directed at restricting the legal capacity of women shall be deemed null and void. This article shows a forcefulintention to intervene in private contractual, property and other interactions with a view to eliminating discrimination againstwomen. For instance, rules of interstate succession cannot exclude women from being successors to estates nor from undertakingtheir administration. Indeed, the provision may even threaten the execution of wills directed at restricting the legal capacity



of women, for instance by requiring legislation to the effect that unjustified exclusions of women from succession or fairentitlement shall be corrected or held voidable or void.

Article 16 affects matters relating to marriage and family relations. It addresses private matters by requiring states parties toensure, on a basis of equality of men and women, the same rights to enter marriage, *670 the same rights and responsibilitiesduring marriage, and the same rights and responsibilities with respect to children and at dissolution of marriage. Ample evidenceexists, therefore, of an intention in the Convention that states parties eliminate discrimination in private and family matters.

The definition of discrimination was intended to empower the Convention to be effective to liberate women to maximizetheir individual and collective potentialities, and not merely to be brought to the same level of protection of rights that menenjoy. This objective is reflected in the inclusion in the definition of discrimination of the provision that offensive conduct isthat which distinguishes on the basis of sex and which has the effect or purpose of impairing or nullifying the recognition,enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rightsand fundamental freedoms....137 Achieving the same status for married and unmarried women is a goal separate from thatof securing equal developmental opportunities for women and men. This further confirms that the definition is concerned notsimply with equalizing the sexes but with affording women maximum opportunities for growth in all areas.

2. Scope of the Convention: All Forms of DiscriminationThe inclusion in the title of the Convention of the phrase all forms138 expresses a determination to adopt a treaty to eliminatesuch discrimination in all its forms and manifestations described in paragraph 15 of its preamble. The preamble139 makesclear that the Convention fits into a general framework of international human rights conventions that prohibits discriminationon several grounds, including sex, and a series of conventions designed to eliminate specific forms of discrimination againstwomen.140

In addressing all forms of discrimination, the Women's Convention is intended to be comprehensive by recognizing that womenare not only subject to specific inequalities but that they are also subject to pervasive forms of discrimination woven intothe social fabric. Thus, the Women's Convention progresses beyond the earlier specialized conventions141 by addressing thepervasive nature of sex discrimination. *671 It also develops modern general conventions on human rights by identifying theneed to confront the social, cultural and religious causes of sex inequality and by addressing all forms of sex discrimination.142

The Working Group responsible for preparation of the Women's Convention constantly expressed awareness that internationalhuman rights provisions, both general and specific, provided only patchwork coverage, since existing conventions had notbeen systematically adopted.143 The aim of the Women's Convention was to afford states an opportunity they were morallyobliged to accept to commit themselves to the realization of women's potentials through a single unifying instrument. Somerespondents to the evolving proposal of a unifying instrument resisted it on the ground that significant modern general humanrights conventions, including the U.N. Charter, already rendered discrimination on grounds of sex unlawful.144 Without denyingthis, the majority acknowledged that discrimination against women persisted and considered it essential that an instrument bedesigned to address discrimination against women in all of its manifestations.145 This view was strengthened by the perceptionthat in many regions blatant discrimination against women had been supplemented by more subtle forms of discrimination,sometimes presented in benign terms. For instance, praise of women's roles in homemaking and childrearing led to disregard ofwomen's work in calculation of a country's gross national product and to women's invisibility as contributors to national wealth.

In order to extend beyond the existing conventions aimed at specific forms of discrimination, the Convention is designed toprohibit discrimination in all its forms and manifestations whether in fact or law. Awareness of the potential for women toexperience discrimination through practices not required or sanctioned by law permeates the *672 preamble to the Women'sConvention. Realization of the need to change practices not themselves based on law is given effect particularly in articles2 and 3 of the Convention. Article 3 looks beyond penal and other laws and regulations to require that action be taken in allfields to ensure the full development and advancement of women ... on a basis of equality with men.146 As a result, practices



detrimental to women (e.g., lack of obstetric services) that are not addressed by the article 1 definition of discrimination, areprohibited by article 3.

Article 2 requires states parties to eliminate all forms of discrimination against women. It defines the potential sourcesof discrimination broadly to include any legally sanctioned activities that may be taken by any person, organization orenterprise.147 Article 2 emphasizes the duty to embody principles of equality in national constitutions and legislation,148 toadopt appropriate legislative and other measures, including sanctions prohibiting all discrimination against women,149 andto repeal national penal provisions that discriminate against women.150 It also requires modification or abolition of other formsof de jure discrimination contained in laws, regulations, customs and practices.151

The scope of the Convention covers discrimination in practice because the framers were concerned that in situations of povertywomen have the least access to food, health, education, training and opportunities for employment and other needs.152 Asa result, the Convention entitles women to equal enjoyment not only of the first generation of civil and political rights butalso the second generation of economic, social and cultural rights.153 Article 10 advances the theme of equality in educationby requiring states parties to ensure, among other things, equal access for women to educational establishments that have thesame academic standards, qualifications of staff, and school premises and equipment as are available to men. Article 11(1)addresses state responsibilities towards women in employment including, inter alia, rights to equal remuneration, promotion*673 opportunities and job security. Article 12 requires state parties to take all appropriate measures to eliminate discrimination

in matters of health care and ensure that women have appropriate services in connexion with pregnancy, confinement and thepost-natal period. Article 13 concerns elimination of discrimination in areas of economic and social life including equal rightsto family benefits, to financial services such as bank loans and to recreational activities.

The existence of a monitoring or enforcement mechanism in a convention can engender reservations because, being liableto answer to an international body on which it is not necessarily represented, a State will endeavour to have the range of itsobligations defined as precisely as possible.154 The accountability of states parties to the Women's Convention may haveencouraged states parties to make reservations to forestall criticism from the progress reports submitted by states to CEDAWconcerning the steps they have taken to implement the Convention.

B. The Reservations Article of the Women's ConventionIn attempting to frame a comprehensive instrument, the Commission had to address a pervasive problem facing internationalhuman rights conventions: whether the primary goal of the convention is to maximize the universal application of the

instrument155 or to protect its integrity.156 This problem was addressed by determining whether and how to include an articleon reservations. Difficult calculations were made of the interaction between the quantity of adhering states and the quality orextent of their acceptances of obligations. Protecting the integrity of the Convention by excluding potential states parties whowould not accept a full commitment would reduce universal adherence and, thus, the effectiveness of the Convention. Thecompromise was to encourage widespread acceptance by allowing compatible reservations to the obligations of membership.

The approach that the Women's Convention takes to reservations *674 resulted from a compromise of preferences, whichdiffered substantially in the earliest stages of drafting. When the U.N. Secretary-General was preparing its initial workingpaper157 for consideration by the Commission on the Status of Women, the Philippines urged that reservations of whateverkind shall not be permitted.158 Equally responsive to draft proposals were a number of East European countries159 that hadrejected the unanimity rule on reservations that existed prior to the Vienna Convention.160 Instead they adhered to the viewthat every State had the sovereign right to make reservations unilaterally and at will, and to become a party to treaties subjectto such reservations, even if they were objected to by other contracting States.161 A third view was offered by Finland, citingthe possibility of partial ratification of any single convention, in order to accommodate different priorities of states with respectto equality rights of men and women.162



Consistent with its position, the Philippines proposed a draft convention that was silent on reservations for consideration at the1974 meeting of the Commission.163 Since the draft addressed only matters of substance and did not include provisions forimplementation, no firm conclusion can be reached regarding the approach to reservations of countries sympathetic to the draft.The 1973 working paper prepared by U.N. Secretary-General summarized measures of implementation provided by existingU.N. instruments on human rights (for instance regarding reporting and complaints procedures that were eventually rejected inthe 1979 Women's Convention) but made no reference to reservations.164 An alternative working paper for a draft conventionwas prepared jointly by the Philippines and the U.S.S.R.165 Some draft provisions of an implementing character were attached,but they made no mention of reservations. The hopes of several government representatives on the Commission on the Statusof Women that a convention would be adopted as a contribution to *675 the U.N. 1975 International Women's year werenot realized.166

In preparation for the 1976 deliberations of the Commission, the U.N. Secretary-General prepared a working paper reflectingresponses received from forty governments, four U.N. specialized agencies and ten non-governmental organizations to afurther draft convention.167 Regarding the Final Provisions of that draft convention on implementation, which were silenton reservations,168 Sweden expressed the opinion that it was advisable to accommodate states making a limited number ofreservations. The intention was that reservations be valid only for a relatively short period during which state legislationand related measures could be undertaken to clear the road for an acceptance of the Convention without reservations.169

The United Kingdom considered it essential that reservations be more generally accommodated, provided that they were notincompatible with the object and purpose of the Convention, in accordance with accepted international practice embodied inarticle 19 of the Vienna Convention.170

A number of representatives saw no need to include a reservation provision in the text of the Women's Convention in light ofprevailing treaty law established by article 19.171 Other representatives referred, however, to article 20 of the Race Conventionand suggested that the precedent of expressly incorporating a provision on reservations be followed.172 When Denmarkproposed an additional article on reservations for the draft Women's Convention, the proposal was adopted without a vote.173

Closely following the text of the Race Convention, the additional article proposed that the Secretary-General of the U.N.

shall receive and circulate to all ... Parties to the present Convention the text of any reservations made by States at *676 thetime of ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the dateof the said communication, notify the Secretary-General that it does not accept it.174

The second paragraph of the additional article provided that

a reservation incompatible with the object and purpose of the present Convention shall not be permitted, nor shall a reservationthe effect of which would inhibit the operation of the Ad Hoc Group established by the Convention [i.e., what became theCommittee on the Elimination of Discrimination Against Women] be allowed. A reservation shall be considered incompatibleor inhibitive if at least two thirds of the States Parties to the Convention object to it.175

The reservation provision that was adopted in principle as part of the Women's Convention was further discussed when ECOSOCreceived the Commission's December 1976 comments on the draft Convention.176 Japan urged greater clarity and simplicity,along the lines of the Vienna Convention, pointing out that the provision allowing any state to object to a reservation was toobroad, since it was doubtful whether a state that was not yet a party to the Convention should have a right to register an objection.Regarding the second paragraph, Japan considered it unclear whether a reservation became incompatible only if two-thirds ormore of the states parties objected to it or whether there could also be reservations that were considered incompatible with theobject and purpose of the Convention when two-thirds of the states parties had not objected to them.177 Japan also pointed outthat when two-thirds of the states parties objected to a reservation, which was thereby considered incompatible, it remained



unresolved whether the state remained a party to the Convention without the reservation, whether the ratification or accessionof the reserving state was itself considered nullified, or whether the state had to withdraw from the Convention.178

The last point reflects objections to the Genocide Reservations Opinion179 which influenced the formulation of the ViennaConvention. *677 Because it was accepted during discussions of the Women's Convention that the Vienna Conventionprovided applicable background treaty law, the Japanese observation on the lack of certainty in the draft was not pursued. Theearlier Japanese observation on the incongruity of the draft provisions, namely that a reservation incompatible with the objectand purpose of the Convention shall not be permitted and that a reservation shall be considered incompatible or inhibitive ifopposed by two-thirds of the states parties, reflects the distinction drawn by Bowett between reservations that are inherentlyimpermissible without regard to objection and those that are identified as incompatible by states parties' objection.180 Asimplification proposed by Hungary that the Convention provide that a reservation should only be considered incompatible ifat least two-thirds of states parties object to it181 begs the distinction between compatibility and inherent permissibility. TheJapanese difficulty has not been resolved, and continues to affect interpretation of the prevailing reservation provision.The reservation provision was refined considerably at the October and November 1979 meetings of the Working Group of theWhole.182 In the course of reaching compromises among differing preferences, the parties effectively stripped the provision ofthe features that identified its origins in the Race Convention. A number of delegations repeated earlier views that the provisionwas unnecessary in light of the Vienna Convention. Others disagreed with the proposed 90-day objection period, apparently indeference to the Vienna Convention provision that allows objections to be notified within one year of receipt of communicationof a reservation.183 The U.K. undertook the responsibility to propose a compromise formula designed to satisfy delegates whohad expressed concerns about the reservation provision *678 to the Working Group.184 The formula applied the style ofminimalist or bare bones drafting, and the Working Group adopted the formula into the article as a whole.185 The final textof Article 28 of the Convention reads:1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by Statesat the time of ratification or accession.

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the UnitedNations who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.

C. Determining CompatibilityIn determining the compatibility of reservations, it is important to place particular emphasis on the principle of good faith.186

Many groups promoting women's rights are skeptical whether states that have gone through the formal motions of ratifying theWomen's Convention possess a serious intention to implement it. Japan, for instance, has been criticized for passing equal paylegislation that includes no sanctions for its infringement,187 even though, according to article 2(b) of the Women's Convention,states parties agree to adopt legislative and other measures, including sanctions where appropriate.188 The principle of goodfaith is also important in determining the legal effect of reservations, and objections to reservations, to the Women's Convention.It is easy to impute bad faith to countries that have ratified the Convention with substantive reservations and to argue accordinglyfor their exclusion from membership in the Convention. Reservations should be both made and interpreted in good faith.

*679 If groups interested in improving women's status discount the principle of good faith or reduce expectations of its efficacy,they undermine other principles of international law that they need to invoke in order to eliminate discrimination against women.

Article 28(2) of the Women's Convention permits reservations provided that the reservation is not incompatible with the objectand purpose of the Convention.189 The implication of article 28(2) is that tests of incompatibility of reservations are objectiveand justiciable and do not turn simply on whether other states parties have expressly or tacitly accepted a particular reservationor have objected to it.190 The task of determining whether a reservation is compatible with the object and purpose of a treaty



will be approached by judicial techniques of treaty interpretation, including recourse to the provisions of a treaty, its preambularlanguage and perhaps its travaux prparatoires.191

The meaning and compatibility of a reservation are matters of substance and not mere form. Courts will be influenced by thedetrimental impact a reservation is liable to have on the obligation of result to eliminate all forms of discrimination againstwomen, on the obligation of means to provide measures to achieve that result, and perhaps also by the symbolic significancefor the integrity of the treaty that a reservation may possess. Whereas the objective character of norms of international lawis relevant to set the general context of the issue, courts will also have to consider specific domestic circumstances of eachreserving state when assessing the compatibility of its reservations. A country's culture, political system, religious traditionsand economy are all examples of relevant considerations.

If, within the reserving state, the impact of the reservation is minor, so as to approach if not actually fall under the principle deminimis non curat lex, the reservation can be tolerated in the name of promoting universal membership in the Convention. If,however, the impact on women is significant in denying equality or equality of opportunity with men, the reservation must berejected and the cause of integrity *680 of the Convention must prevail.192 The significance of a reservation is determinedprospectively by an interaction of qualitative and quantitative factors. A minor quantitative exclusion may be permissible,such as in the case of reservations by Belgium, Luxembourg, Spain and the United Kingdom stating that succession to themonarchy shall favor males over females without regard to order of birth.193 This clearly postpones the succession of theMonarch's oldest daughter to the youngest son, and the symbolism of the discrimination reflects the values and perceptionsof more than the few individuals directly concerned.194 Such a symbolic though quantitatively limited reservation may becompared to a reservation of qualitatively trivial impact on women that affects them in sizeable numbers. A reservation that,for instance, precludes women eligible for regular training and promotion in the military from hand to hand military combatroles195 may be permissible, provided that, as in the case of a quantitative exclusion, the party to the Convention otherwisemaintains progressive development towards elimination of cultural and related environments that have historically conditionedthe prevailing discrimination.To propose that compatibility of reservations is specific to the circumstances of individual countries, and that countries withsuch features as a large differential literacy rate between men and women or with many households headed by women aredifferent from other countries, suggests that legal determination of compatibility arises not from the object and purpose of theConvention per se, but from specific applications of treaty provisions to individual countries. In other words, compatibility mayseem determinable not as a function of interpretation of the treaty as a whole, but from socio-political measurements of effectsof reservations on women. It is proposed, however, that the universal aspiration of the Convention compels *681 recognitionthat states parties are located at different points on the road to achievement of the Convention's obligation of result and thatthey may progress at different rates.

The Women's Convention mandates relative assessments of reservations for the purpose of legal determination of compatibility.This is implicit in the approach to eliminating discrimination taken in the Convention, which is designed not simply tobring women to a level of rights enjoyed by men, but to permit women to maximize the potential for their development andself-realization without regard to comparisons between their optimal achievements and those of men. Similarly relevant areobligations of states parties. In those societies where women have an advanced capacity for development and self-realization,relatively few additional obligations under the Convention are assumed. In those societies, however, where women suffermultiple discriminations, a state assumes a larger obligation. Accordingly, performance of states parties under the Convention,and the compatibility of their reservations, will be specific to their circumstances. There are, however, certain reservationswhich, despite the particular circumstances of a given state party, will clearly be unacceptable.

This approach is consistent with the Vienna Convention. It recognizes a flexible system by which each state party individuallydecides whether another state party's reservation to a convention is compatible with its object and purpose, so that a state mayfind the same reservation compatible concerning a second state but incompatible concerning a third. Similarly, a determinationof compatibility under the Women's Convention can take account of how far a reservation made by a particular country willviolate or comply with the obligation to eliminate all forms of discrimination in that country.



Canada made a proposal on determination of the compatibility of reservations with the Convention that considers objective andnationally subjective features. Canada suggested that the following factors might be relevant to the determination:

(a) [w]hether the reservation is made to one of the general provisions, that is, the definition of discrimination in article 1 or thegeneral obligations of States parties set forth in articles 2, 3 and 24;

(b) [w]hether the reservation is in regard to a particularly crucial aspect of equality with men, such as the right to equal legalcapacity set forth in article 15;

(c) [w]hether the reservation is in regard to a provision that affects many women in a very significant facet of national life; [and]

*682 (d) [t]he nature of the reservation itself, that is, whether it involves a reservation in toto to the provision in question oris of a very specific nature.196

Setting standards by which to measure compatibility with duties under the Convention is made possible by reference to objectivemeasures that are applicable to all states parties. For instance, the International Labour Office (ILO) has established a seriesof standards including equality in employment and occupation,197 and equal remuneration.198 In the field of health care, theWorld Health Organization has proposed indicators of national progress that allow international comparisons to be made.199

The proportion of the gross national product that countries devote to health care can be measured and placed at a point on a scaleof international experience. Likewise, objective measurements may be made of what percentage of available resources a stateparty spends to achieve equality of the sexes, to eliminate discrimination against women, and to improve the status of women.Such states parties' activities can be measured as establishment of governmental agencies to monitor and promote the status ofwomen, and appointment and training of officers, in proportion to national population, to serve within such agencies. Many ofthese means of measurement are explained in the Nairobi-Forward Looking Strategies for the Advancement of Women.200 TheWorld Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Developmentand Peace held in Nairobi in 1985, adopted the strategies by consensus.201 The Commission on the Status of Women continuesto monitor the implementation of the Nairobi Forward-Looking Strategies, and their Reports provide *683 objective standardsby which to monitor the extent to which states parties have eliminated discrimination against women.202

Gauging a state party's performance during a given period of time or assessing its performance relative to other states in thesame geographical region is an additional means of comparing progress towards elimination of discrimination.203 A standardof comparative compliance is consistent with recognition that states parties commence their activities from different stages ofachievement and that their obligations are to pursue progressive development in the context of their own national circumstances.

The principle of non-retrogression is implied in human rights conventions: a state party's most basic obligation is not to undoits existing achievements in the promotion of human rights.204 This principle underscores the duty in the Women's Conventionof progressive development; a country is obliged not to retreat from its observance of non-discrimination duties under theConvention and, further, to advance progressively towards the ultimate goal. Article 18 requires that all states parties, includingthose with reservations, report within one year after their adherence to the Convention. Thereafter, a state must report at leastevery four years or when CEDAW so requests. If a reporting country invokes its reservation to justify its retrogression withrespect to an aspect of women's status as determined by objective standards of measurement, then it is arguably in breach ofits obligation.

D. Demands of Universality and IntegrityThe approaches to enforcement of the Women's Convention favoring integrity at the possible cost of universality, and favoringuniversality at the possible cost of integrity, may appear incompatible.205 However, the approaches are not necessarilyinconsistent.206 Reservations offer a middle path by which a convention's universality can be served by selective amendmentsthat permit a state party to adjust its relations with other states parties while preserving the Convention's *684 integrity.207



Reservations may be viewed in different ways. for example, reservations may be seen as meeting the claim of sovereign states tobargain for treaty membership on their own terms, or as a limited concession that may be yielded in order to build an integratedworld order.208 Reservations may also be seen differently depending on whether they are made to treaties that are a codificationof jus cogens or customary international law or to treaties that represent a progressive development of international law.209The claim that the Women's Convention must preserve its integrity is founded on background claims that human rights treatiesreflect or constitute jus cogens, that is peremptory norms, and that derogations through reservations to substantive provisionsare unacceptable.210 A stronger ground for this claim is that obligations of nondiscrimination on grounds of sex are now partof customary international law211 as codified in numerous prevailing conventions such as the U.N. Charter, the Covenants212

giving force to the Universal Declaration,213 the regional human rights conventions,214 and the more specialized internationalconventions.215 Any reservations to these customary international law obligations, reflected in and reinforced by these humanrights instruments, require arguments of a high legal order to establish their acceptability.

The preamble to the Women's Convention notes the role of the U.N. Charter, the Universal Declaration, the InternationalCovenants, and U.N. and specialized agencies' resolutions, declarations and recommendations in promoting equality of rightsof men and women. The preamble expresses concern, however, that despite these various instruments extensive discriminationagainst women continues to exist.216 The preamble concludes with an expression of determination to adopt the measuresrequired for the elimination of such discrimination in all its forms and manifestations.217 Accordingly, *685 the Women'sConvention is to not be taken as just another international convention which allows discrimination against women to continuebecause countries have been able to selectively or partially condition their acceptance. Instead, this Convention is an instrumentthrough which states parties demonstrate an unqualified positive commitment to women's equality with men.

Arguably, therefore, the Women's Convention cannot tolerate a violation of its integrity. Countries unwilling to assume acomplete commitment to its goals should not abuse the treaty by a pretense of commitment; they may retain more generalcommitments under such instruments as the U.N. Charter and the human rights Covenants. These general commitments aremonitored and enforceable under separate mechanisms. Countries unwilling or unable to accept the Women's Convention may,nevertheless, give a good account of their conformity to human rights obligations under these other international regimes.Although, for instance, the Political Covenant218 does not expressly provide for reservations, having no article comparable toarticle 28 of the Women's Convention, a number of states parties to that Covenant have ratified or acceded with reservations.219

Countries seeking to derogate from human rights commitments may therefore propose reservations that are compatible withthe object and purpose of such other Conventions. The Women's Convention can preserve its integrity by a strict applicationof the compatibility test for proposed reservations.

The argument for the universal application of the Women's Convention derives its force from the realities of international life.The Vienna Convention establishes a presumption in favor of treaty relations even with states whose treaty reservations otherparties to the treaty find objectionable.220 Promotion of ideals accommodates some over-ambition and far reaching language.The fullest demands of the Women's Convention exceed, perhaps, what its proponents will be satisfied to achieve in practice. Itmay be urged as a truism that half a *686 loaf is better than no loaf. Insistence on ideal levels of equality may leave a countryunable to fulfill all of the demands within the obligatory scheme of the treaty. The Women's Convention fits into a frameworkof international human rights treaties the collective objectives of which are to advance the goal of human rights by whatevermeans are possible, and to employ encouragement and persuasion to eliminate discrimination within countries that fall short ofintended levels of performance. An alternative approach of exclusion, elitism, condemnation and intolerance towards countriesunable to meet specified standards appears ineffective and perhaps counter-productive to advance human rights.

Universality and integrity are twin ideals. Neither is absolute. To place the goals of integrity and universality in opposition toone another is perhaps to adopt a classical but static approach to reservations to multilateral conventions.221 This is especially sowhere human rights are concerned. A dynamic approach would indicate the desirability of interpreting the Women's Conventionfrom a point closer to the universality end of the integrity-universality spectrum to render as many provisions of the Convention



binding on as many states parties as possible. The spirit of the Women's Convention may be subsequently realized when statesparties that entered the treaty with reservations determine that legal and other evolutions have occurred domestically that setthe stage for the withdrawal of their reservations. Hence, an approach to the Convention that emphasises universality may, intime, also serve the goal of integrity; universality can be viewed as complementary to integrity and not in opposition to it.222

This approach favors a gradualistic commitment over an absolutist or extremist position. A feature of the Women's Conventionthat reveals its affinity to the Economic Covenant is its use of the concept and requirement of progressive development towardsits ultimate goal. This permits states parties to be members of the Covenant while progressing towards its ultimate goals.

Since such a lesser commitment may be accommodated under pre-existing human rights conventions, a gradualistic commitmentmay be criticized for appearing to pay inadequate respect to the goals of the Convention as a distinctive international instrument.The preamble to the Women's Convention reflects the disappointment felt by participants in its development that extensivediscrimination against *687 women continues to exist.223 The Convention accordingly may be said to require that statesparties make a fundamental commitment to its integrity by pursuit of women's equality that may not be satisfied by piecemealor significantly reserved acceptance.

The Women's Convention imposes an obligation of result to achieve the elimination of all forms of discrimination againstwomen.224 It also imposes an obligation of means, however, by requiring that states parties establish means to achieve theultimate goal of equality. The Convention requires that every state party must commit itself to progressive development in thecontext of its own circumstances to the achievement of this goal. Accordingly, the Convention imposes an obligation of means asits initial goal towards satisfaction of its ultimate goals. Reservations may therefore be accommodated that temporarily frustratethe elimination of certain forms of discrimination against women. They cannot be accommodated, however, if they contemplatethat discrimination against women will remain an enduring feature of the reserving state's law or practice, or if they deny acommitment to material means of making progressive development towards the Convention's ultimate goals. Thus, reservationsdenying means to the elimination of discrimination are most suspect. For example, article 2 of the Women's Convention isthe primary article addressing domestic means of its implementation, and reservations to this article must therefore receiveparticularly critical assessment.

IV. ASSESSING THE WOMEN'S CONVENTION'S RESERVATIONS

A. General Obligations: Article 2 and GenerallyAs of February 1990, a few states parties have reserved generally to their obligations under article 2 and generally to the entireConvention.225 Article 2 requires states parties to pursue, by all appropriate means and without delay, a policy of eliminatingdiscrimination against women ... The clearest instance of a general reservation is that t he Government of the People'sRepublic of Bangladesh does not consider as binding upon itself the provisions of articles 2 ... as they conflict with Sharia lawbased on Holy Quran and Sunna.226 *688 Egypt's reservation expresses willingness to comply with article 2 provided thatsuch compliance does not run counter to the Islamic Sharia.227 More problematic are Iraq's reservations to article 2(f) and (g),which are unexplained.228 Article 2(f) requires states parties to take all appropriate measures including legislation to modify orabolish existing laws, regulations, customs and practices which constitute discrimination against women. Article 2(g) requiresrepeal of Penal laws that discriminate on the basis of sex.

Libya has filed a general reservation stating that there should be no conflict between accession and the laws or personal statusderived from Islamic Shariah.229 Tunisia has filed a general declaration stating that it shall not take any organizationalor legislative decision in conformity with the requirements of this Convention where such a decision would conflict withthe provisions of Chapter 1 of the Tunisian Constitution.230 Article 6 of Chapter 1231 requires equal treatment before thelaw of all citizens and therefore could be taken to amplify the Women's Convention in domestic law. The first article of theChapter explains that Islam is the official religion and insofar as Islam is interpreted to require the elimination of discrimination



against women it would not conflict with the Women's Convention and not be a limitation of Tunisia's obligations under theConvention.232

New Zealand on behalf of The Cook Islands reserves the right not to apply article 2(f) and article 5(a) [requiring the eliminationof social and cultural patterns of conduct and sterotyped sex roles that are detrimental to women] to the extent that the customsgoverning the inheritance of certain Cook Islands chiefly titles may be inconsistent with those provisions.233 Malawi withdrewits general reservation in January, 1990, stating that o wing to the deep-rooted nature of some traditional customs and practicesof Malawians, the Government of the Republic of Malawi shall not, for the time being co

cedaw reservations rebecca j. cook

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