The case of reservation to CEDAW : new challenges for the committee in dealing with incompatible reservations

Abstract

CEDAW is a specialised human rights treaty whose focus lies on the elimination of all forms of discrimination against women. The Convention’s far-reaching approach aims not only at state discrimination, but also addresses its root causes in the private sphere. CEDAW has found nearly universal recognition, but has also witnessed a high number of controversial reservations to its core provisions, some evidently running counter to the object and purpose of the treaty. The Vienna Convention on the Law of Treaties contains rules concerning reservations. For various reasons, those have been deemed inappropriate for human rights treaties. Therefore, in order to properly fulfil their functions, human rights treaty organs have explored their own ways to address reservations. The Committee has repeatedly expressed its concern about the high number of problematic reservations to CEDAW. It also routinely addresses them in the reporting process. However, there is still a lack of clarity on how incompatible reservations have to be dealt with, especially in the context of an individual complaint under the Optional Protocol. Therefore it is about time to formulate a new General Recommendation on the matter of reservations, which gives clear guidance to the participating states and also duly takes into account recent developments.