The Opt-Out Clause

Why are there reservations to, arguably, one of the most important international treaties: CEDAW (The Convention on the Elimination of All Forms of Discrimination Against Women). Reservations have become particularly detrimental to CEDAW, many of which seem “incompatible with the object and purpose of the Convention.”[1] If a state decides to become party to a treaty or convention such as CEDAW then it should take on all the responsibility which comes with that convention, making reservations on certain aspects of the convention only undermines it and makes it less effective on the whole. The State is effectively saying to its people: “You must follow parts A, B and D or else, but skip part C because it doesn’t fit in with our discriminatory values!”Australia, for example, has said that it is “not at present in a position to take the measures required by article 11, paragraph 2 (b).”[2] which means that although all other States party to the convention are expected to fulfil the obligations of Article 11 (b): “The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;”[3] Australia has introduced its own back out clause. And Australia is not alone in its decision, 58 other countries, ranging from Algeria to Yemen, (including the UK) have various objections or reservations to CEDAW. Many reservations, including those of Bahrain and Bangladesh state that they do not consider Article 2 to be compatible with Sharia law. Article 2 is the basic outline that state parties condemn discrimination against women, the fundamental argument and purpose of the Convention.It is almost laughable that States chose to sign a treaty which they believe to be conflicting to their own customary laws, however CEDAW has very limited power to change this. General Recommendation no. 4 of the Committee has expressed concern over the number of reservations made by ratifying parties, and General Recommendation no. 20 recommended that States should reconsider their reservations on the grounds of strengthening the implementation of all human rights treaties.[4]

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[1] Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Juris Publishing 2000) 109 [2] Declarations, reservations, objections and notifications of withdrawal of reservations relating to the Convention on the Elimination of All Forms of Discrimination against Women, 8 [3] CEDAW [4] Charlesworth and Chinkin, 109