E/CN.4/2002/73/Add.2
page 18
(d) In the fourth scenario, the reservation or declaration is of a general nature. That
applies to Malaysia, which states that its accession is subject to the “understanding that the
provisions of the Convention do not conflict with the provisions of the Islamic Sharia law and
the Federal Constitution of Malaysia”; Malaysia further states that it is not bound by certain
provisions of the Convention.56 This scenario also applies to Pakistan, whose accession is subject
to the Islamic Constitution of the State.57 Tunisia’s general declaration also falls into this
category.58
62. The entire issue is whether such reservations and declarations, especially general ones or
ones which limit obligations under the Convention to the least exacting standards of domestic
law, are contrary to the object and purpose of the Convention. It seems certain that reservations
conflict with a treaty’s object and purpose if they are general in nature, i.e. if they do not refer to
a specific provision. Also, reservations should not systematically reduce treaty obligations only
to the least demanding standards in the reserving State’s domestic law.59 Indeed, as was stated by
the Secretary-General of the United Nations at the 1993 Vienna Conference, human rights are
not the lowest common denominator among all nations, but rather the “irreducible human
element”, in other words, the quintessential values through which we affirm together that we are
a single human community.60
63. Moreover, if objections to such reservations are taken as a yardstick, it has to be
acknowledged that the substantial number of reservations to the Women’s Convention is
counterbalanced by an equally large number of objections to those reservations and their
virtually identical content, at least in relation to the subject of the present study. But none of the
objecting States declares that the objection is an obstacle to the entry into force of the
Convention between itself and the reserving State.61 What is often objected to is the general and
vague nature of reservations and the references to religious law where the State making the
reservation does not indicate the extent to which it considers itself bound by the Convention,
which can give rise to serious doubts as to the State’s commitment to fulfilling its obligations
under the Convention. Furthermore, many objecting States are of the opinion that such
reservations conflict with the general principle concerning the observance of treaties, whereby a
party may not invoke provisions of its domestic law to avoid its treaty obligations. In the view of
many objecting States, such reservations undermine the foundations of international treaty law.62
64. The issue of reservations to the CEDAW Convention in relation to women’s status in the
light of religion and traditions poses the general and fundamental question of the compatibility of
freedom of religion or belief, in particular Islam, with women’s rights.63 It is not the intention to
resolve that fundamental contradiction in the course of the present study, given that it entails a
variety of parameters concerning deeply held beliefs, cultural and ethnic identity considerations
and strategies which are not easily identifiable. However, from a human rights standpoint, it
cannot be overlooked that international law on women’s rights has made—as in other areas of
human rights—progress which, at the start of this third millennium, may not readily be
challenged by citing cultural or religious obstacles. Cultural relativism, as already stated, is not
incompatible with the universality of women’s rights but only insofar as it does not impair the
integrity or dignity of women as individuals. Accepting the opposite would be dangerous for
women and disastrous for humankind as a whole, since all cultural and religious practices would
then be defensible precisely in the name of freedom of religion, including where they pose a
threat to women’s health or lives. As will be seen, these practices are numerous, varied and
perceived differently according to the cultural and religious contexts of each country and