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Islamic States and the UN Human Rights Treaty System

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Islamic States and the UN Human Rights Treaty System

    Islamic States and the UN Human Rights Treaty System:

    The Role of Shari’a-based Reservations

    Michel Debolt

    April 22, 2004

    Table of Contents

Introduction ................................................................................................................................1

    A. The Law of Treaties and Rules of Reservations ...................................................................2 B. Reservations in Action.........................................................................................................8

    i) CAT ................................................................................................................................8

    ii) CCPR ..............................................................................................................................8

    iii) CERD ............................................................................................................................ 11

    iv) CESCR .......................................................................................................................... 11

    v) CEDAW ........................................................................................................................ 13

    a) The Reservations .................................................................................................... 13

    b) Communications Under the Convention ................................................................. 17 vi) CRC .......................................................................................................................... 27

    a) The Reservations .................................................................................................... 27

    b) Communications Under the Convention ................................................................. 30 C. Tentative Conclusions ....................................................................................................... 43

    Annex A Conventions and Protocols Covered in this Report .................................................. 45 Exhibit 1: Shari‟a Based Reservations to UN Human Rights Conventions ................................ 46

    Exhibit 2 - CEDAW Articles Reserved Against ......................................................................... 58 Exhibit 3 - CRC Articles Reserved Against ............................................................................... 60 Bibliography ............................................................................................................................. 62

The Role of Shari‟a Based Reservations Michel Debolt

    INTRODUCTION

    UN human rights conventions promote the application of common standards of rights and

    1 While these State-made conventions tend to focus freedoms amongst the citizens of all nations.

    on the rights and freedoms of individuals, nearly one-sixth of the world‟s population adheres to a

    theology, Islam, that promotes God-given principles “aimed at liberating the men and women of

    2human races from all forms of servitude and eliminating any practice involving exploitation”.

    Relying on purported conflicts with the mandates of Islamic Law (“Shari‟a Law” or simply “the

    345Shari‟a”), Islamic States as a whole have been slow to “ratify UN human rights treaties.

    Furthermore, most have conditioned their obligations under these treaties to the extent of alleged, and often unspecified, conflicts with Islamic or Shari‟a law through what I refer to as “Shari‟a

    6based reservations”. This report examines the use of such reservations in respect of thirteen UN

    7human rights conventions and protocols by briefly discussing the legal basis for such

    reservations, examining their practical application as revealed in States communications under the various conventions, and noting some tentative conclusions regarding their use.

     1 Preamble to the Universal Declaration of Human Rights. 2 Second periodic reports of States parties: Libya, CEDAW/C/LBY/2, (March 15, 1999), p. 2. 3 For purposes of this paper, “Shari‟a law consists of the totality of ordinances derived from the Qur'an and the

    Sunnah and any other laws that are deduced from these two sources by methods considered valid in Islamic

    jurisprudence.” Explanatory Note 1(b) of the Universal Islamic Declaration of Human Rights (1981) found at

    http://www.alhewar.com/ISLAMDECL.html. 4 This paper adopts a loose definition of the term “Islamic States” (listed in Exhibit 1), focusing on those members

    of the Organization of Islamic Conferences (see http://www.oic-oci.org/) that are also member states at the

    United Nations as identified at http://www.un.org/Overview/unmember.html (the difference being that

    Palestine is a member of the OIC but not a member of the UN). 5 In this report, the term “ratify” is used generically to refer to any State action that brings a Convention into force in

    respect of that State, for example including accession, adoption, formal ratification. 6 A very unscientific term. The footnotes to Exhibit 1 contain the excerpted text of the Shari‟a based reservations

    referenced in this report. Generally the term is used herein to refer to reservations, declarations, or

    interpretations entered by “Islamic States” that limit convention based obligations (in the nature of a true

    reservation) in an effort to protect activity justified by reference to Islam, domestic law, or tradition. While the

    Shari‟a basis of reservations based on domestic law and tradition is not always clear, the treaty derogations

    covered in this report (and subject to such reservations) are common to Islamic States making explicit Shari‟a

    based reservations. 7 See Annex A.

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The Role of Shari‟a Based Reservations Michel Debolt

    A. THE LAW OF TREATIES AND RULES OF RESERVATIONS

    The current law regarding reservations to treaties traces its roots to the Vienna

    8 (VCLT) and the Advisory Opinion of the International Court Convention on the Law of Treaties

    9of Justice (ICJ) in the Genocide Convention case of 1951. Prior to this time, no clear rule

    applied to all areas of treaty making. Traditional international law favored the notion of integrity, requiring all treaty parties to approve a reservation before it could have effect. Certain treaty systems (e.g., that of the Organization of American States) took a universalist” approach,

    promoting broad ratification of a treaty and allowing States to decide individually whether to accept a reservation or not. A treaty in this mode would enter into force only between a reserving State and those States that accepted its reservation, preserving the notion of reciprocity,

     10but individual objections to a reservation were not fatal. Certain Eastern European countries

    11favored State sovereignty, suggesting that no acceptance of a reservation was required at all.

    At the request of the General Assembly, the ICJ issued an advisory opinion regarding the validity of reservations entered by several countries, despite the lack of a reservations clause, to the CPPCG. In rendering its opinion, the Court focused on the “object and purpose” of the Convention to achieve two goals to achieve as wide of acceptance of the Convention by States

    12as possible but to do so without sacrificing the very object of the treaty itself. In essence, the

    ICJ sought to protect the interests of state sovereignty and reciprocity while striking a balance

     8 Vienna Convention on Law of Treaties, concluded May 23, 1969, entered into force Jan 27, 1980, 1155 U.N.T.S.

    331. 9 Reservations to the Convention on Prevention and Punishment of Crime of Genocide, 1951 I.C.J. 15 (May 28). 10 Liesbeth Lijnzaad, Reservations to UN Human Rights Treaties, Ratify and Ruin?, 15 16 (International Studies in

    Human Rights, v. 38, 1995). 11 Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination Against

    Women, 85 The American Journal of International Law, 281, 290 (April 1991). 12 I.C.J. Rep. 1951, p. 24.

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    between achieving broad ratification of a Convention (“universality”) and preserving the strict

    13 requirements of the Convention (its “integrity”).

    The Vienna Convention on the Law of Treaties (VCLT) picked up this theme in its

    14treatment of reservations. In essence, it allows reservations with three exceptions: where a treaty prohibits all reservations, if a treaty allows only specified reservations and the reservation in question does not comport therewith, or if the reservation is “incompatible with the object and

    15purpose of the treaty. The last provision often being the basis for State and Committee

    16objections to Shari‟a based reservations.

    There is little consistency to the reservation rules contained in each of the individual human rights conventions, with a number of conventions making no provision for reservations at 17all. Two Conventions re-iterate and rely exclusively on the VCLT‟s “object and purpose” test

    18for regulating the use of reservations. CEDAW and CERD incorporate this test as well but

    elaborate in some way. CEDAW allows States to separately reserve against the Convention‟s

    19dispute settlement procedures. In addition to the general “object and purpose” test, CERD

    deems a reservation to be incompatible if at least two-thirds of State Parties to the Convention so object within 90 days of its communication. CERD also proscribes reservations that inhibit the

     20operations of bodies established by the Convention. CAT and CCPR OP2 provide specific

     13 Baylis, Elena A., General Comment 24: Confronting the Problem of Reservations to Huam Rights Treaties,

    Berkeley Journal of Int‟l Law, v. 17 (1999), 277-329, 291. 14 VCLT, Art. 2(d) defines a reservation as a “unilateral statement, however phrased or named, made by a State …

    whereby it purports to exclude or modify the legal effect of provisions of the treaty in their application to that

    State.” 15 VCLT, Art. 19 16 See e.g., CEDAW Concluding Observations: Egypt (2001), para. 327. 17 None of the CPPCG, CCPR, CCPR OP1, CESCR, CRC OP AC, nor CRC OP SoCC address the issue of

    reservations. 18 The CRC (Art. 51.2) and MWC (Art. 91.2) state simply that “a reservation incompatible with the object and

    purpose of the present Convention shall not be permitted.” 19 CEDAW, Arts. 28, 29. 20 CERD, Art. 20.2

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The Role of Shari‟a Based Reservations Michel Debolt

    provisions regarding the use of reservations but do not incorporate the “object and purpose”

    2122 Finally, the CEDAW Optional Protocol prohibits any reservation. test.

    Despite the intentions of the ICJ and the subsequent drafters of the VCLT to establish a coherent structure within which reservations might be applied, much uncertainty has resulted, especially in regard to human rights conventions. The VCLT notes that a State‟s ratification

    subject to reservation is effective as soon as one other State party accepts the reservation. It also declares that a reservation is deemed accepted by all States that raise no objection within twelve

    23months of being notified regarding its existence. The automatic nature of these provisions add

    to the uncertainty of reservations in respect of multilateral treaties (such as human rights conventions) where States that are deemed to accept a reservation may in fact have different reasons for not objecting to a reservation. The Human Rights Committee has noted that “the absence of protest … cannot imply that a reservation is compatible … with the object and

    24purpose of the Convention.”

    Where effective, a reservation modifies the legal obligations of the reserving State under the treaty vis-à-vis those States against whom the reservation is entered and not objected to (and reciprocally modifies the obligations of such non-reserving States to the same extent). Of course, a primary objection to this result under human rights conventions is the limited extent to which such treaties actually give rise to reciprocal obligations between States. The Human Rights Committee noted that, with respect to human rights treaties, “the principle of inter-State

     21 CAT allows State Parties to reserve against the Committee competence to initiate an inquiry (Art. 28) and the

    Convention‟s dispute settlement process (Art. 30). CCPR OP2 proscribes all reservations except those made at

    the time of adoption relating to the imposition of the death penalty in time of war under a conviction for the

    most serious military crimes (Art. 2) 22 CEDAW OP, Art. 17. 23 VCLT, Art. 20.4(c), 20.5. 24th General Comment No. 24, U.N. GAOR Hum. Rts. Comm., 50 Sess., Supp. 40, para. 17, U.N. Doc.

    CCPR/C/21/Rev.1/Add.6 (1994).

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    25 Firstly, States entering reservations to human rights treaties do so reciprocity has no place.”

    generally, thus applying to all other State parties to that Convention. Furthermore, where a State enters a reservation to a human rights treaty, the primary effect is to limit its obligations (under the treaty) to its own citizens. In other areas to which Treaties apply, for example trade, the presence of treaty based inter-state obligations means that use of a reservation frees a State from an obligation only with the concurrent trade-off of foregoing the ability to enforce that same obligation under the treaty against other States. In the area of human rights, a State that has no interest in accepting an obligation to its own citizens will have little concern that its reservation might release other States from that same obligation to their citizens.

    26While the VCLT recognizes that non-reserving states may object to a reservation, this

    ability is of little consequence in respect of human rights conventions. The VCLT notes that an objection to a reservation does not prevent the entry into force of a treaty (even between the reserving and objecting State), unless the objecting State explicitly declares its desire for this

    27result. This provision further provides that the effect of an objection where the treaty still enters into force is simply the non-applicability of the provision reserved against by the reserving and objecting States. As indicated above, this objection does little to advance the human rights of the citizens of the reserving State. In practice, this results in objecting States claiming either

    28that the reservation is incompatible, inadmissible and without effect or that their objection

     25th General Comment No. 24, U.N. GAOR Hum. Rts. Comm., 50 Sess., Supp. 40, para. 17, U.N. Doc.

    CCPR/C/21/Rev.1/Add.6 (1994). 26 VCLT, Art. 20(4)(b). 27 VCLT, Art. 21.3. 28 Denmark entered the following objection to the general Shari‟a based reservation entered by Brunei Darussalam

    against the CRC: “The Government of Denmark finds that the general reservation with reference to the

    Constitution of Brunei Darussalam and to the beliefs and principles of Islamic law is of unlimited scope and

    undefined character. Consequently, the Government of Denmark considers the said reservation as being

    incompatible with the object and purposes of the Convention and accordingly inadmissible and without effect

    under international law … The Convention remains in force in its entirety between Brunei Darussalam and

    Denmark.”

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    29 The should not be seen as an obstacle to the entry into force of the Convention generally.former position tests the boundaries of State consent, given that the reserving State might not have ratified the treaty without the reservation. The latter position is uncertain at best, as it fails to clarify what, if any, legal effect the objecting State intends its objection to have.

    Many States, including a number of the Islamic States indicated in Exhibit 1, have not ratified the VCLT, further complicating the goal of a uniform approach to dealing with reservations by State Parties. Nevertheless, an argument exists that the VCLT provisions on reservations represent customary international law with the happy effect that the status of a State‟s ratification of the VCLT would not impact the rules applicable to interpreting its

    30reservations. Indeed, the International Law Commission‟s (ILC) Special Rapporteur on Reservations has indicated that the rules of the VCLT constitute “the framework … in respect of

    reservations both for States which have become party to the [VCLT] and for those which have

    31not acceded thereto.”

    With these uncertainties in mind, different bodies have taken steps towards achieving greater clarity in the application of reservations, especially in respect of human rights conventions. In 1994 , the Human Rights Committee (HRC) declared that the VCLT provisions regarding reservations “are inappropriate to address the problem of reservations to human rights

    32treaties”. As the use of objections was ineffective in counter-balancing the use of reservations, the Committee declared that it prospectively would have authority to decide whether a

     29 Italy objected to the particularized Shari‟a based reservation entered by Syria to the CRC as follows: “... This

    reservation is too comprehensive and too general as to be compatible with the object and purpose of the

    Convention. The Government of Italy therefore objects to the reservation made by the Syrian Arab Republic.

    This objection shall not preclude the entry into force of the Convention as between the Syrian Arab Republic

    and Italy." 30 Linjzaad, p. 75-76. 31 Seventh ILC Report on Reservations to Treaties, Mr. Alain Pellet, Special Rapporteur, International Law

    Commission, para. 10, U.N. Doc. A/CN.4/526 (April 5, 2002). 32 General Comment No. 24, supra note 25, para. 17.

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    33 Perhaps the most reservation was compatible with the object and purpose of a treaty.

    controversial aspect of the Committee‟s declaration is the view that incompatible reservations are severable, such that the Convention applies to reserving States without benefit of the reservation. Some have described this approach as creating not only new powers for the Committee, but

    34imposing an entirely new reservations regime. Critics contend that the Committee stands on

    infirm ground for a number of reasons, not the least of which is the general recognition involving bodies like the ICJ and European Court of Human Rights that international adjudication requires

    35the express consent of States subjected thereto. Indeed, the ILC Special Rapporteur noted that

    the attitude of other human rights treaties bodies is likely “less dogmatic”, focusing more on

    36dialogue than the HRC. While the HRC has applied this approach in respect of Shari‟a based

    reservations (discussed below), the practical effect of its authority in this respect remains unclear.

    Since 1993, the ILC has included the issue of reservation reform in its agenda, appointing a Special Rapporteur on the matter in 1994. Among other conclusions, the Special Rapporteur has taken the position that the VCLT reservation regime is appropriate for all types of

    37multilateral treaties, including human rights conventions. Furthermore, the Rapporteur has

    noted widespread support for the notion that reservations are inseparable from State consent to

    38be bound to a treaty, contrary to the HRC‟s position on severability discussed above. While

    these observations provide a sense of where the debate on reservations is headed, they provide

     33 General Comment No. 24, supra note 25, paras. 17-19. The Committee based its position on the need for clarity

    in performing its more general communications-related duties under the Convention and the fact that it was

    better positioned than State Parties to address the issue. 34 Baylis, supra note 13, p. 285. 35 Ibid, p. 296. 36 Seventh ILC Report on Reservations to Treaties, supra note 31, para. 50. 37 Ibid, para. 19. 38 Third ILC Report on Reservations to Treaties, Mr. Alain Pellet, Special Rapporteur, International Law

    Commission, para. 20, U.N. Doc. A/CN.4/491 (April 30, 1998).

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    less insight as to the current role of Shari‟a based reservations. For that insight, we examine the reservations themselves.

    B. RESERVATIONS IN ACTION

    The text of the reservations and the related State communications arising under the conventions reveal the distinct and overlapping areas of uncertainty that Shari‟a based

    reservations give rise to. A review of the ratifications and reservations summarized in Exhibit 1 (and excerpted in the footnotes thereto) indicates that no reservations for Shari‟a conflicts have

    39 Those that have received been entered in respect of a number of Conventions and Protocols.

    such reservations are addressed below.

    i) CAT

    Of the States ratifying the CAT, only Qatar reserved for potential Shari‟a conflicts. Its

    reservation is general in nature regarding any interpretation of the Convention that conflicts with Islamic Law. As Qatar has not filed a periodic State report, no dialogue under the convention exists to ascertain what the potential conflicts with the Shari‟a might be. Furthermore, a review

    of Concluding Observations for those Islamic States that ratified without reservation and have reported reveals no Shari‟a-based conflicts identified by the CAT Committee.

    ii) CCPR

    Algeria, Egypt, and Kuwait have entered Shari‟a-based reservations to the CCPR.

    Algeria and Kuwait achieved this by “interpreting” the CCPR as not infringing domestic legislation. Egypt ratified the CCPR “taking into consideration” that there was no conflict with

     39 The CPPCG, either optional protocol to the CCPR, the optional protocol to CEDAW, the optional protocol on

    armed conflict to the CRC, and the MWC.

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