International Human Rights

International Human Rights

Assignment Question The Vienna Convention on the Law of Treaties 1969 allows states to provide for reservations in treaties under certain circumstances. However reservation effecting Human Rights has been contentious even if parties to the treaties are in agreement to the provisions of the reservations to the treaty. Discuss. Table of Content

No. Content Page
1. Introduction 1
2. Reservation of human rights treaties 1
3. Controversies on reservation made to human right treaties and cross references to various countries on their application for reservation 2-5
4. Case law to support argument 5-6
5. Conclusion 7

Introduction Vienna Convention on the Law of Treaties (from here onward will be referring to VCLT unless otherwise stated) was adopted and signed on 1969 and finally enforced on 1980. It is a treaty that governs the relationship between states that entered into the same treaty. Article 2(1)(d) of VCLT had defined reservation as a unilateral statement made by a state upon signing or ratifying the treaty to exclude or modified legal effect of certain provisions.[1] Country often imposes reservation on the treaties where they wish to not comply with. Article 19 of VCLT had provided conditions where states cannot make reservation. The first condition is that the reservation cannot be prohibited by the treaty.[2] The reservation made shall not be the reservation that been agreed by all parties to exclude during negotiation.[3] The reservation made must also be compatible with the object and purpose of the treaty.[4] The compatibility test will be the ‘object and purpose’ test introduced by the International Court of Justice through the case of Genocide Convention.[5] Reservation to human rights treaties VCLT applies to all treaties including human rights treaties. Certain reservations had been made to human rights treaties by a state. For example, reservation made by Malaysia towards the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW). Malaysia had made reservations stating that Malaysia does not bound by any provisions in the treaty that was in conflict with Syariah law and Federal Constitution of Malaysia. An example would be Malaysia does not bound by Article 5(a) of CEDAW regarding the inheritance of property. Article 5(a) requires states to modify any practices that are based on genre. Malaysia had made a reservation that this provision shall comply with Syariah law regarding inheritance.[6] Controversies on reservation made to human right treaties and cross references to various countries on their application for reservation There were few controversies occurred when reservation was made to human rights treaties which will be discussed in detailed in later part of this assignment. It was found that not many states had made objections towards the reservation as the reservations does not bind them. Instead, they are using their influence so that the other state will accept a more liberal concept towards human rights and delete the reservation by themselves. Besides, human rights treaties is more on protecting and governing human rights within the state than governing relationship between states. Therefore, it is more appropriate for the treaties bodies to decide the validity of the reservation instead of others states. There are some tribunals establish under human rights treaties such as European Court of Human Rights that can make a binding decision. Others monitoring bodies that had been established under human right treaties may make recommendations or comments towards reservations. International Law Commission had listed some of the following suggestions to resolve these conflicts. The treaty itself may conclude provisions that limits the making of a reservation and provide a clear purpose and objective of the treaty. There should also provisions that allow a neutral body to help both the reserving and objecting state to negotiate or mediate. Treaty should also contain provisions that allow human rights body to ensure that all reservation comply with the treaty and power to determine whether the reservation is admissible or not. One example of reservation aforementioned is on the Elimination of all Discrimination against Women (CEDAW),[7] but more focus is placed on the equitable rights of women in marriage and divorce. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was formed in 1979 by the UN General Assembly and functions as a worldwide law of the rights for women. There are 30 articles that clarify what is deemed to be discrimination against women and measures to overcome it This convention allows ratification of the reservations only if the reservations are not conflicting with goals and aims of the Convention. Certain states make reservation to Article 2 even though their laws forbid inequality. Hence, often there are disputes between the clauses of the State’s laws and the reservation that are made to the Convention. In addition, the Malaysian government proclaims that it will only abide by the Convention as long as the clauses of the Convention does not contrive with any laws of Islamic law and the Federal Constitution. Hence, Malaysia is not subjected by condition of Articles 2(f), 5 (a), 7 (b), 9 and 16 of the CEDAW. However, Malaysia later revokes its reservations to Article 2(f), 9(1), 16(b), 16(d), 16(e) and 16(h). In regards to Article 11, Malaysia considers the terms of this Article only to serve as guidance to the forbiddance of the prejudice of the equality between men and women. Many Islamic countries have entered reservations. These Islamic countries maintained reservations to Article 2, 9, 15 and 16 respectively. Article 2(a) and (e) of the Convention required states to embrace the principle of the equality and repeal any laws, regulations, customs, and practices that discriminate against women. The Arab Republic of Egypt reserved this article due to the article contrary to the principle of Sharia. Iraq also reserved to this article but has made unexplained reservation. Egypt and the Hashemite Kingdom of Jordan have entered reservation to Article 9 and 15 of the Convention, this is because they alleged the provision of the Convention run counter to the Sharia law. In Jordan, a married woman cannot decide her own residence and must follow her husband’s residence. They are even not allowed to travel alone and must be accompanied by male relatives or a group of women for maintaining their integrity.[8] The Government of the Republic of Maldives do not comply with the provisions of the Conventions that contrary to the principles of Sharia Law based on the laws and customs of the Maldives.[9] Iraq, Malaysia and, United Arab Emirates entered reservations to restrict women’s right to determine their nationality. Different state applies for different areas of reservations. For example, United Arab Emirates (UAE) on areas that seem to be in conflict with its constitution and religion belief.[10] Despite all these reservations have been recognised, it is explicit that they do not promote the objective and the purpose of the Convention. In essence, these reservations invalidate many provisions of the Convention and diminish the equality of men and women. In fact, Sweden was objected all the reservations rendered by Muslim countries. Sweden argued that these reservations were incompatible with CEDAW’s object and purpose test and violated Article 19(c) because it allowed Sharia Law to create an exception to this convention, through gender discriminatory laws would still valid if the provisions contrary to the Sharia law.[11] Such reservation further destroy the union of treaty compliance in Muslim states.[12] Although Sweden expressed that these objections have come in after twelve months’ time limit set out in Article 20(5) but still cannot be called objection in a technical sense.[13] The Islamic reservations essentially are substantive reservations, whereas reservations by United State tend to be more procedural in nature. The United States has been entering a considerable number of reservations to ratify CEDAW. The reservations involve many issues involving woman, such as private conduct, women in the military, comparable worth, and maternity leave. As for the understandings, the State Department expressed concern with the right of freedom of speech and the health care standards issue in relation to family planning, pregnancy, confinement and post-natal care.[14] In the proposed reservations, United States declared that the state would not accept any obligations under the Convention so long as the provision restrict the rights stated under the First Amendment and contrary to US constitution. However, supporters of ratification argued about the reservations rendered by US. They argued the provision of CEDAW is essentially consistent with the United State law, and it would not cause any change in the event of US chooses to ratify the convention.[15] According to Article 19-21 of the VCLT, states are permitted to be a part of the reservations unless they are rejected by other states. Predominantly, human right organizations are not permitted to create binding judgments, for example, the Human Rights Committee, which supervises the International Covenant on Civil and Political Rights. However, in its General Comment No.24, it was argued by the human rights committee that human rights treaties secure the privileges of the people face to face but do not control the connection between the states. In addition, human rights organizations are usually unable to execute an irrevocable judgement; however tribunals such as the European Court of Human Rights can do so in the case of Belilos will be discussed in later part of this assignment.[16] States should not authorize the legitimacy of reservations but instead govern over treaty bodies. Almost every human right are firmly integrated. With that being said, reservations to individual rights would affect the nature of the treaty and deprived of its goals.[17] As a matter of fact, the Vienna Declaration and Programme of Action confirm the statement that “every State is urged to consent to international human right treaties, and it is best to evade any reservations.”[18] Case to show how reservation under Vienna Convention on the Law of Treaties (VCLT) can be inter-related to human right issue By referring to the case of Belilos v Switzerland[19], it clearly illustrates the effect of an interpretative declaration[20] made in respect to Article 6(1)[21] of the VCLT in which every State possesses capacity to conclude treaties. The Court had declared that the declaration was invalid and was found to have a violation towards Article 6(1) of VCLT, as the applicant could not confirm a determination by a tribunal of the questions of fact in her case. Belilos, in this case, was punished for taking part in an unauthorized demonstration. A fine had been imposed upon her in her absence by the municipal police. Shortly after receiving a fine, she made a complaint under Article 6(1) of VCLT in which the court responded to her claims on the grounds of illegitimacy of the board by saying that their jurisdiction could not be challenged. The woman appealed, but it was rather unsuccessful with the Federal Court as the court held that the European Convention on Human Rights (ECHR) was subjected to the interpretive declaration. An interpretative declaration is a declaration of definition or meaning to a provision of a treaty given or sets down by a State.[22] The main issue in this case was whether the declaration was merely an interpretative declaration and not having the effect of a reservation, and is the court competent to determine the validity of a reservation of an interpretative declaration under Article 64 of VCLT that has not given rise to dispute in the present case. In this case, the court had declared that a particular reservation by Switzerland was a faulty one. The reservation was held to be too broad in nature. In that reservation, the right to a fair trial was restricted only with the existence of a legal assessment of the law. In addition, the treaty also contravened Article 6(1) of the European Convention of Human Rights[23] which concerns with the right to a fair trial. In addition, since Switzerland did not rescind the treaty, Switzerland continued to be confined by the treaty. Conclusively, Switzerland was limited by the fact that ‘The state that executed the reservation is restricted by the treaty that is inclusive of the components on which the reservations was formed.” It is the duty of the Court to see that the obligations arising under the Convention are not subjected to any restrictions which would not satisfy the requirements of Article 64 as regards to reservations. Accordingly, it will focus on the validity of the interpretative declaration in question, as shown in the case of a reservation. Therefore, the Court notes that the Convention does not delegates the power to it to order the State to change its legislation as the Court’s judgment are discretionary to the State for the choice of the means to be used in its domestic legal system in order to give effect to its obligation under Article 53. Conclusion: overview of reservation practice It is common for a state to make reservation to treaty and it is generally allowable though not encourage to not deviate from the object and purpose of treaty, as long as such reservation does not work to defeat the treaty then it is generally acceptable. However, it is undeniable that efficiency of treaty will be reduced by reservation and there are some doubts regarding the criterion of compatibility test also known as “object and purpose” test as mentioned in earlier part of this assignment. According to the opinion of Judge Nurullah Yamali from Ministry of Justice in Turkey, if the interpretation on “object and purpose” is done in good faith in the context of the treaty concerned, it will not be a serious problem. 1

[1] Vienna Convention on the Laws of Treaties 1969 s 2(1)(d) [2] Vienna Convention on the Laws of Treaties 1969 s 19(a) [3] Vienna Convention on the Laws of Treaties 1969 s 19(b) [4] Vienna Convention on the Laws of Treaties 1969 s 19(c) [5] Niina Anderson, ‘Reservations and Objections to Multilateral Treaties on Human Rights’ ( 2001) accessed 20 August 2014. [6] UN Women, ‘Declarations, Reservations and Objections to CEDAW’ ( 2009) accessed 20 August 2014. [7] [8] Roslyn Monoloney, ‘Incompatible Reservations To Human Rights Treaties: Severability And The Problem Of State Consent’ [2004] Vol 5, 1, 20. [9] Niina Anderson, ‘Reservations and Objections to Multilateral Treaties on Human Rights’ [2001] 1, 5. [10] Roslyn Monoloney, ‘Incompatible Reservations To Human Rights Treaties: Severability And The Problem Of State Consent’ [2004] Vol 5, 1, 13. [11] Eric Neumayer, ‘Qualified Ratification: Explaining Reservations to International Human Rights Treaties’ [2007] Vol 6, 397, 414. [12] Ibid. 415. [13] Ibid.417. [14] Luisa Blanchfield, ‘The U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Issues in the U.S. Ratification Debate’ [2010] 1, 20. [15] Courtney Goldsworthy, ‘Why the United States Has Failed to Ratify the CEDAW: A Look at Purported Problems with Ratification’ 1, 6. [16] ECHR Pubs. Series A, vol 132, 1988. [17] [18] [19] (1988) 10 EHRR 466 [20] Declaration made by a State regarding its understanding of some matters covering a treaty or its meaning of a specific provision. [21] Convention Treaties.htm [22] “Council of Europe – Treaty Office” (Council of Europe) accessed August 25, 2014. [23] Article 6(1) of the European Convention of Human Rights.

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