Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is one of the most ratified international treaties on human rights with 189 countries as of 2022. Adopted by the United Nations in 1979, the convention entered into force after the ratification of 20 member states in 1981 (Nazish, 2024). The success behind these ratifications was not an easy road. The history of CEDAW can be traced back as far as to the early 20th century where feminist movement demanded for suffrage, equal property rights, and educational opportunities. In 1948, The Universal Declaration of Human Rights (UDHR) came as a breakthrough which enshrined the principle of equality for all, regardless of the sex. However, despite this idea, women were still facing persistent discrimination across the globe. It was then becoming the reason for the urge to create a specific convention on the elimination of discrimination against women with effective implementation procedures.
Based on the international regime theory, the creation of CEDAW can be seen as the effort to solve problems of common goods which is gender equality between men and women. Countries come to their senses that when women are empowered and have equal opportunities, it benefits the state as well. However, just as complex as the negotiations of CEDAW in the past, the implementation in the present also becomes a challenge. Countries might argue that the cultural norms regarding women’s roles fall under the protection of cultural relativism and it leads them to potentially resist some aspect of CEDAW which challenge these norms. This issue then became the background of reservations rights. According to the Vienna Convention on the Law of Treaties, reservations is a statement made unilaterally by a state at the tie of signing, ratifying, or acceding to a treaty, with the purpose to exclude or to modify the legal effect of certain articles of the treaty in their application to the state (United Nations, 1969).
There are some pros and cons regarding rights to reserve. On the one hand, it is capable to increase the number of participating countries in an international treaty, yet on the other hand, the practice is potentially hinder the objective of countries to adhere the protection of human rights (Saraswati, 2022). This is the dilemma faced by CEDAW as well. There are 48 parties which ratified CEDAW with reservations, making it one of the human rights conventions with the most reservations (Montez, 2021). Previously, the reservations of a state require unanimous approval from all the member states, however the recent regulation allow a country to remain become a member party although there are some objections from others, as long as the reservations does not opposite the substantial purpose of the treaty itself (Riddle, 2002). The problem is that there is no regulation which specify what criteria should be considered in determining whether a reservation goes against the object and purpose of the treaty, thus the stake remains very subjective.
I argue that the rights of reservations bring more harm than good, if it is not regulated properly. States enter reservations to particular articles on the ground that national law, tradition, religion, or culture are not congruent with the convention principles and purport to justify the reservations on that basis (UN Women, 2009). The problem is several countries made reservations to the critical articles which determine the achievement of the convention purpose. For example, several countries such as Algeria, Bahamas, Bahrain, Bangladesh, South Korea, Egypt, Iraq, Lesotho, Libya, Morocco, New Zealand, Niger, Syria, and United Arab Emirates made reservations to Article 2 which basically is the core point of the convention as it demands states parties to condemn discrimination against women in all its form (United Nations, 2006). Another issue about reservations can be seen on the inconsistency of country’s objection. For example, Canada objected the Republic of Maldives’ reservation but took no action with respect to a subsequent and comparable reservation by Kuwait. Arguably, this action has a motive in protecting Canada’s relationship with Kuwait as an oil-producing country.
Interest-based approach in international regime theory emphasize the conception of states as rational actors, who are atomistic in the sense that their identities, power, and fundamental interests are prior to international society and its institution (Hasenclever, Mayer, & Rittberger, 1997). Using this approach, the act of countries reservations can be seen as a logical calculation of the states’ interest. However, this theory also explain that it is possible for international regime to change the calculation of a country’s decision as long as it decreases the potential of uncertainty (Keohane, 1980). There are various ways for an international regime to shift the stance of a state. First, by doing cooperation. Second, by minimizing uncertainty. Third, by improving the conditions which allow reciprocity strategy. Lastly, by assisting to elevate the reputation of the member states.
Based on the interest-based approach theory, several possible solutions can be proposed. First, severing reservations by giving more authority to the CEDAW committee. The Committee should be given the authority to ask the states to amend incompatible reservations. The Committee shall then use its powers of dialogue, persuasion, and international embarrassment to encourage the state to withdraw its reservation. Second, requesting advisory opinions under the International Court of Justice (ICJ). The CEDAW Committee could petition the ICJ to issue an advisory opinion on the power of the Committee to evaluate reservations. Third, alternating reservation regime to a more just regulation. CEDAW could follow the lead of The Convention on the Elimination of Racial Discrimination (CERD). Under CERD, reservations can be deemed incompatible and rejected as invalid with a two-thirds vote by the state parties.
To conclude, reservations indeed not always bad to begin with. It can increase the participation of countries to join as the member states. However, it can jeopardize the objective of the convention itself if it is not properly regulated. The current system of reservation in CEDAW must be amend. It shall be limited to the procedural articles only and not the substantial ones.
