"As is" reference - not a United Nations document
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol remain the only international treaties devoted to the rights of women. Partly due to the success of CEDAW, there have been significant advances in women’s rights in the 25 years since CEDAW was adopted, although much remains to be done. The treaty has been ratified or acceded to by 178 countries and 14 countries in the Middle East and North Africa have signed up to it.
Several of the countries that have ratified the treaty have made declarations or reservations that exclude or diminish the domestic applicability of CEDAW. Among the Middle Eastern and North African countries covered by this report, the majority of these reservations have been based on Shari’a law, or incompatibility with existing national legislation. However, reservations that run contrary to the spirit or "object and purpose" of the Convention are not permitted under Article 28 (2) of CEDAW.
Amnesty International is concerned that many of the reservations entered by countries are contrary to the spirit and purpose of the Convention. Some of the reservations are so wide ranging that they are difficult to review or challenge. Others are based on conflicts between Shari’a law and CEDAW, although other countries in the region have not made similar reservations, suggesting that different interpretations of Shari’a exist. National legislation has also been used as a basis for reservations, although such a use of national legislation is clearly proscribed by international law.
Most of these reservations relate to the very purpose of the Convention to eliminate discrimination and protect women from it, including reservations related to the nature of states parties’ obligations, and other core provisions of CEDAW related to equality. If unchanged, these reservations have a direct impact on ensuring that women enjoy the rights that CEDAW was meant to guarantee, including protection from violence and discrimination, and undermine their ability to access justice or obtain redress through national mechanisms.
This report gives a general overview of these reservations and declarations made to CEDAW by countries in the region from a human rights perspective.(1) It includes an overview of reservations in international law, concentrating on what the UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW Committee) has said on the issue, and examines the link between reservations and violence against women. This is followed by a review of the specific reservations in the Middle East and North Africa, and the reasons given by states for making them, together with observations by the CEDAW Committee regarding them. The document concludes with a number of recommendations. Two appendices are included at the end of the document: the first includes the exact text of reservations to CEDAW by states in the region with the relevant text of concluding observations from the CEDAW Committee; the second is a table of overdue reports to CEDAW by states in the region.
The document will not cite legislation from the relevant countries (except where it is cited in the text of reservations) nor include specific case studies. It aims to urge governments to lift the reservations as recommended by the CEDAW Committee, and for women and human rights activists in the region to request that they bdo so.
CEDAW, adopted by the UN General Assembly in 1979,(2) contains a number of specific obligations on governments. Among those that are particularly relevant to this report are ensuring that private citizens including husbands, partners and fathers, and enterprises (for example, private businesses) do not abuse women’s rights; and ensuring that states parties take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms. It also targets culture and tradition as influential forces shaping gender roles and family relations. CEDAW also affirms women's rights to acquire, change or retain their nationality and the nationality of their children. CEDAW focuses on discrimination against women, without explicitly referring to violence against women. However, the CEDAW Committee, the body responsible for monitoring the implementation of CEDAW by states parties, clarified that:
Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention.(3)
In other words, gender-based violence against women is clearly within the ambit of CEDAW, and states parties’ obligations under this treaty include preventing, punishing and ensuring reparation for such violence. One consequence of the Committee’s position is that under the Optional Protocol to CEDAW, individual women or groups of women may petition the Committee with regard to gender-based violence.(4)
Only Iran, Oman, Qatar and United Arab Emirates have not ratified or acceded to CEDAW, among countries in the Middle East and North Africa. However, most of those who have ratified or acceded to CEDAW have also entered reservations or made declarations that limit the application of the Convention in their countries.(5) Only the Libyan Arab Jamahiriya has acceded to the Optional Protocol to the Convention granting individuals and groups the right of petition.(6) The impact of these reservations on the scope of CEDAW is examined in more detail in the next section.
3. General comments on reservations to treaties in international law
Article 19 of the Vienna Convention on the Law of Treaties permits States to make a reservation at the time of ratification or accession to a treaty. It defines reservations as "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."
Frequently, states joining human rights treaties exclude or modify the legal effect of certain provisions by way of ‘declaration’ even though the action falls within the above definition of a reservation.(7)
The Human Rights Committee, the UN body responsible for monitoring the implementation of the International Covenant on Civil and Political Rights, has stated: "It is not always easy to distinguish a reservation from a declaration as to a State's understanding of the interpretation of a provision, or from a statement of policy. Regard will be had to the intention of the State, rather than the form of the instrument. If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation."(8) This explanation applies equally to the reservations or declarations made to CEDAW.
Article 19 of the Vienna Convention provides further that a State may, when signing, or otherwise acceding to a treaty, formulate a reservation unless it is "incompatible with the object and purpose of the treaty". This is reflected in specific provisions found in most major international human rights treaties. Specifically, Article 28 (2) of CEDAW states: "A reservation incompatible with the object and purpose of the present Convention shall not be permitted."
As CEDAW is an agreement among states, each state making a reservation should take note of other states parties’ reaction to the reservation. There have been a number of reactions to the reservations made by the states in the region, describing the reservations as incompatible with the object and purpose of CEDAW and, therefore, prohibited under article 28 (2).(9)
The Beijing Declaration and Platform of Action of 1995 emphasises that it is necessary to avoid, as far as possible, resorting to reservations, in order to protect the human rights of women. The document stresses that "unless the human rights of women, as defined by international human rights instruments, are fully recognized and effectively protected, applied, implemented and enforced in national law as well as in national practice in family, civil, penal, labour and commercial codes and administrative rules and regulations, they will exist in name only"(10) and recommends that states:
limit the extent of any reservations to the Convention on the Elimination of All Forms of Discrimination against Women; formulate any such reservations as precisely and as narrowly as possible; ensure that no reservations are incompatible with the object and purpose of the Convention or otherwise incompatible with international treaty law and regularly review them with a view to withdrawing them; and withdraw reservations that are contrary to the object and purpose of the Convention on the Elimination of All Forms of Discrimination against Women or which are otherwise incompatible with international treaty law.(11)
A similar approach has been taken by the CEDAW Committee. At its thirteenth session, in 1993, the Committee agreed with the view of the World Conference on Human Rights where the Vienna Declaration and Program of Action was adopted (1993). According to that, States should consider limiting the extent of any reservations they make to international human rights instruments, formulate any reservations as precisely and narrowly as possible, ensure that none is incompatible with the object and purpose of the treaty concerned and regularly review any reservations with a view to withdrawing them.(12) In doing so, the Committee recognised that the Convention allows reservations so that a maximum number of States can become parties.
In the light of this, the CEDAW Committee has revised its reporting guidelines to ensure that information by states parties concerning reservations, the reasons for them, and the efforts to lift them, come to its attention regularly. The Committee specifically requests that:
Any reservation to or declaration as to any article of the Convention by the State party should be explained and its continued maintenance justified. Taking account of the Committee’s statement on reservations adopted at its nineteenth session (see A/53/38/Rev.1, part two, chap. I, sect. A), the precise effect of any reservation or declaration in terms of national law and policy should be explained. States parties that have entered general reservations which do not refer to a specific article, or which are directed at articles 2 and/or 3 should report on the effect and the interpretation of those reservations. States parties should provide information on any reservations or declarations they may have lodged with regard to similar obligations in other human rights treaties.(13)
However, many states parties to CEDAW fail to meet their periodic reporting deadlines, often submitting reports very late. Appendix 2 to this document shows that some states in the region are late in reporting on their implementation of the Convention. The CEDAW Committee monitors the progress in implementing its recommendations related to reservations, and assesses efforts taken to withdraw reservations, in accordance with its general recommendations, through the submission of reports.
The implementation of CEDAW also requires that states parties respect the general and specific comments and recommendations of the CEDAW Committee. When states ratify CEDAW, they accept the authority of the CEDAW Committee to issue general recommendations interpreting the Convention. Article 21 (1) of CEDAW states that the Committee will "report annually to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties." Therefore, the concluding observations and the general recommendations issued by the CEDAW Committee are important and authoritative means of understanding the nature of states parties’ obligations under the Convention both in relation to the specific countries and in general terms.(14)
Many of the reservations in general, and those from the Middle East and North Africa in particular (see Appendix 1), are worded in very general terms, and therefore are not consistent with the recommendations of the CEDAW Committee and the Beijing Declaration and Plan of Action. Generally worded reservations or declarations hinder the assessment of their real impact on women, particularly in relation to violence, and the reasons why they were made.
4. CEDAW articles subject to reservations or declarations
An overview of the reservations or declarations made, and the reasons given helps to assess what shared attitudes exist towards reservations among countries in the region, and the consistency of these reservations with international law. It should be noted that not all of the articles in the Convention have been subject to reservations by countries in the region. CEDAW articles to which reservations or declarations have been made are listed below: