Cultural Relativism and Reservations to Human Rights Treaties:The Legal Effects of the Saudi Reservation to CEDAW

Abstract: Saudi Arabia ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 2000. The ratification was a step forward for the strict gender segregated country but could not be genuinely hailed due to a general reservation giving prevalence to Islamic Law in case of conflict with the provision of the Convention. Whereas it can be established that a sweeping reservation in those terms is contrary to the object and purpose of the Convention and thus prohibited in accordance with the Vienna Convention on the Law of Treaties and article 28(2) of CEDAW, the legal effects of incompatible reservations remain unclear. What obligations does Saudi Arabia have under CEDAW having in mind the undefined reservation? The question cannot be answered until the legal effects of incompatible reservations are established. Many other States have formulated reservations in contravention to the object and purpose of human rights conventions and in particular CEDAW is plagued with incompatible reservations, a large number of them referring to Islamic or domestic law. Despite the fact that human rights have been declared universal, the many reservations witness about a strong cultural relativism as regards human rights, most notably the human rights of women. Numerous reservations aiming to withhold discrimination against women, and in the worst cases nullify many of CEDAW's provisions, seriously undermine the Convention and the quality of protection provided therein. It is of fundamental importance that the legal effects of those reservations are established in order not to let the reserving States maintain incompatible reservations with assumed legitimacy and thus devaluate the Convention and the human rights of women. The Vienna Convention provides the legal framework for reservations but is ambiguous as regards the legal effects of incompatible reservations. Three divergent consequences for a State who has formulated an incompatible reservation can be distinguished in doctrine and practice: i) the State remains bound by the treaty except for the provision to which the reservation is related (to the extent of the reservation), ii) the reserving State is no longer a party to the treaty, or iii) the incompatible reservation is severed and the reserving State is bound by the treaty as a whole (as if no reservation was made). The focal point of the analysis is on the level of human rights monitoring bodies - how would a human rights court or a UN human rights treaty body, in this case the Committee on the Elimination of Discrimination against Women, determine the legal effects of an incompatible reservation? The first option mentioned above is relevant only in bilateral relations, not where a third body determines an individual human rights complaint, and consequently the thesis centres on the two latter options. The last alternative, the so-called 'severability doctrine', is indeed preferable from a human rights perspective. But can a reservation be severed without the consent of the reserving State? The opponents claim that a State cannot be bound to treaty terms it has explicitly declined to accept, whereas certain jurisprudence and State practice point in favour of severability. The European Court of Human Rights has established a jurisprudence of severability but its applicability in international courts/human rights treaty bodies is much more controversial. The principle of State consent and State sovereignty still prevails over community and human rights interests and therefore it is hard to de lege lata reconcile the severability doctrine with international law. However, severability shall not be an excluded option but rather put in relation to the principle of State consent. Where the reserving State would have ratified a convention even without the reservation, i.e. where the reservation is not a sine qua non for ratification, the reservation can be severed. Having in mind the traditionalist Islamic identity of Saudi Arabia much speaks against a Saudi consent to be bound by CEDAW without the Shari'ah-reservation. The de lege lata effects of the Saudi reservation must therefore be the invalidation of the treaty ratification. Such an outcome is undesirable from a human rights perspective and it is likely that the UN human rights treaty bodies, while e.g. concluding an individual complaint, take on the approach of the European Court of Human Rights and thus contribute to the development of severability as the automatic legal effect for incompatible reservations also on an international level.