‘6.3. Are there limitations on what reservations can be made?
It is possible that some reservations will not be deemed valid, Art. 19 VCLT sets out when reservations are prohibited:
Prohibited by the terms of the treaty itself (e.g. ECHR art 64)
The treaty provides that only certain specified reservations are permitted. (e.g. ECHR, see Harris p 656-7)
The reservation is contrary to the object and purpose of the treaty.
The most difficulty has arisen with the question of when a reservation is contrary to the object and purpose of the treaty. It has been found that reservations of a general character are caught (Belilos v Switzerland, ECtHR 1988). But other general guidance is difficult to find. In a recent case at the ICJ, Democratic Republic of Congo v Rwanda (ICJ Reports, 2006), it was found that the reservation made by Rwanda to Article IX of the Genocide Convention (on submission of disputes relating to interpretation of the convention to the ICJ) was not incompatible with the purpose of the treaty; it seems to have been treated as largely self-evident that Article IX did not go against the object and purposes of the treaty, as it was about jurisdiction of the court rather than a substantive obligation, do you agree?
In terms of the role of the parties in determining whether a reservation is compatible with the object and purpose of a treaty, there are two schools. The permissibility school prefers the view that if a reservation is objectively assessed to be incompatible, acceptance by the parties cannot cure it. The opposability school suggests that ultimately what matters is the position of the parties, so that essentially the States determine for themselves what is consistent with the object and purposes of the treaty. Which is preferable?
6.4 Human rights treaties and reservations: the example of CEDAW
How do reservations work in relation to human rights treaties, where the aim of the treaty is to create common standards in regard to parties? Reservations have been used extensively in relation to human rights treaties. There has been considerable concern amongst UN human rights treaty monitoring bodies regarding the number and scope of reservations made – see General Comment 24 of the Human Rights Committee, as well as the two General Recommendations made by the CEDAW Committee regarding reservations.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which came into force in 1981, has been widely ratified. However, it has also been subject to extensive use of reservations. CEDAW does not prohibit reservations to particular articles. In addition, unlike some other human rights conventions, none of the rights within CEDAW are non-derogable. However, Article 28(2) of the Convention prohibits incompatible reservations; those contrary to the object and purpose of the Convention – following the VCLT.
There have been a number of reservations to CEDAW that might be thought to be contrary to the object and purpose of the Convention. See, in particular the original reservation made by the Maldives:
‘The Government of the Republic of Maldives will comply with the provisions of the Convention, except those which the Government may consider contradictory to the principles of the Islamic Sharia upon which the laws and traditions of the Maldives is founded.
Furthermore, the Republic of Maldives does not see itself bound by any provisions of the Convention which obliges to change its Constitution and laws in any manner.’
Following objections from a few parties, the Maldives has since modified its reservation. However, the new reservation relates to Article 16 (elimination of discrimination against women in all matters relating to marriage and family relations), which might still be seen as central to the object and purpose of the Convention. Indeed, the CEDAW Committee has stated that it sees Article