Making CEDAW Universal: A Critique of CEDAW's Reservation Regime under Article 28 and the Effectiveness of the Reporting Process

Abstract

I. INTRODUCTION In international law, reservation is a unilateral statement, however phrased or named, made by State, when signing, ratifying, accepting, approving, or acceding to treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in application to that State.1 Reservations allow state to ratify an international treaty without obligating itself to provisions it does not wish to undertake.2 Reservations have played an important role in the formulation of substantive legal regime for women's rights. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has been ratified with reservations by more states than almost any other human rights treaty to date.3 The Commission on the Status of Women, body under the United Nations Economic and Social Council, started working on CEDAW in the early 1970s, and the United Nations General Assembly finally adopted it in 1979.4 CEDAW uniquely focuses on discrimination against women and condemning such discrimination in both the public and private spheres.5 To date CEDAW has 168 party states; Mauritania most recently ratified the treaty in May 2001.6 IMAGE FORMULA5 Many scholars of human rights law argue that reservations undermine the effectiveness of treaties.7 This particularly applies to CEDAW;8 fifty-five states filed reservations, and another fourteen states initially entered reservations but subsequently withdrew them.9 Of the United Nations' human rights treaties, CEDAW has attracted the greatest number of reservations with the potential to modify or exclude most, if not all, of the terms of the treaty.10 CEDAW deals with reservations through the reporting process, which encourages the removal of reservations.ll The reporting system, however, has not effectively dealt with the high number of reservations; other methods could preserve the integrity of CEDAW even though this may hinder CEDAW from becoming universal. Part II of this Note explores the development of treaty law, including the various approaches taken with respect to treaty reservations, and explains how such approaches have been used in contemporary multilateral treaties, such as CEDAW. Part II also discusses recent actions by the Human Rights Committee under the International Covenant on Civil and Political Rights and the European Court of Human Rights (ICCPR), which question the effectiveness of the traditional reservation regimes. Part III reviews the reservations states have made to CEDAW and, in light of these reservations, identifies the failure of CEDAW's reservation system to protect its integrity. Finally, this Note explores the possibility that newer developments in treaty law may provide effective alternatives to CEDAW's current system of dealing with debilitating reservations. II. DISCUSSION A. The Traditional Approach to Reservation Treatment The traditional treatment of reservations, otherwise known as the unanimity rule, required unanimous consent by each of the IMAGE FORMULA9 convention's member states before ratification approval.12 The basis of this rule was the contractual model of multilateral treaties, whereby treaty provisions were assumed to be offers and reservations were counteroffers, which could be accepted or rejected by the contracting parties.13 Under the unanimity rule, if one party objected to state's reservation, the reserving state could only either ratify the treaty without the reservation or not become party to the treaty.14 The purpose of requiring unanimous consent was to protect the integrity of the treaty.15 As the international arena changed and became more diversified as result of decolonization by the Western powers,16 however, greater emphasis was placed on states consenting to the terms by which they would be bound. …