THE STATUS OF ACCESSION OF AFRICAN STATES TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
Mrs. Souad Abdennebie, Regional Adviser on the Promotion of Women's Human and Legal Rights, African Centre for Gender & Development, United Nations Economic Commission for Africa, January 1999
Table of Contents
Foreword : Convention on the Elimination of All Forms of Discrimination
against women (CEDAW)I. Status of Accession by African States
II. Implementation of the Convention by African States
Annexes
Annex I. African States that had ratified the Convention as of July 1997
Annex II. Reservations by African States
Annex III. Withdrawal of the reservation made by the Government of Malawi
Annex IV. Objections made to certain statements and reservations
Annex V. Reports outstanding from or received from African States parties as of 16 July 1997 (list taken from CEDAW document No. 123)
Foreword
The promotion of the rights of women and young girls is among the principal objectives incorporated in the programme of action of the African Centre for Women.Despite the marked improvements that have materialized in the lives of African women since the liberation of African countries from the yoke of colonialism, inequality remains a reality, so does discrimination in the distribution of economic and social resources. The disadvantageous status of women, which has serious implications for the well-being of society as a whole, is considered as one of the causes of underdevelopment. It is closely linked to poverty, overpopulation, illiteracy, malnutrition and disease, among others. Studies carried out over the past three decades on the status of women indicate that the existing laws and legal systems in most African countries are institutional obstacles to the amelioration of the socio-economic conditions in which women live.
It is therefore imperative to facilitate the development of those laws and legal systems in conformity with the principles established in international human rights instruments, and in particular, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This Convention is a juridical benchmark and an important tool for the de jure and de facto promotion of the status of women.
Accordingly, the Regional Adviser on the promotion of the fundamental rights and legal rights of women, recently recruited by the Economic Commission for Africa (ECA), is charged with several tasks under the general direction of the Chief, African Centre for Women (ACW), which include providing consultancy services and technical assistance to governments, non-governmental organizations and intergovernmental agencies, and participating in, and organizing, training courses, seminars and workshops, as well as carrying out ananlytical studies.
The Regional Adviser has deemed it appropriate, before embarking on advisory work with the member States, to carry out a study on the status of accession of African countries to this important convention, in order to review the position with respect to lateness in ratification by States, examine the reservations made by those that have acceded with reservations, and, on the basis of the country reports submitted to the CEDAW committee by States parties, study the implementation of the Convention.
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Introduction
The principle of equal rights of men and women is affirmed in the charter of the United Nations (promulgated in 1946), as well as in the Universal Declaration on Human Rights, which dates from 1948). This principle has since been reaffirmed in other international instruments; despite the abundance of instruments, however, discrimination against women remains an enduring and widespread reality. Consequently, it was deemed necessary to establish a distinct instrument for women - the convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This Convention extends and unifies previous instruments concerned with equal rights of men and women. It came three decades after the Universal Declaration on Human Rights (1948) and was the culmination of painstaking preparations at the level of the Commission on the Status of Women, various working groups, and the General Assembly. It was hailed as the first international instrument to actualize the commitment of the international community to the principles of equal rights of men and women and of the inadmissibility of discrimination based on sex, and it is considered as one of the foremost achievements of the United Nations Decade for Women (1975-1985). The first of its thirty articles defines the term "discrimination against women"; in the following articles, the Convention prescribes the steps to be taken towards enabling women of all nations to exercise their rights in all fields, including education, employment, health, political affairs, marriage, family relations and matters of legal equality of men and women. It is emphasized in the Convention that discrimination hampers economic growth and prosperity, and States parties are urged to take appropriate steps towards modifying the orientations and patterns of socio-cultural behaviour in the gender context in order to eliminate traditional prejudices. In addition, the Convention combines de jure and de facto equality, and emphasizes the need to take special provisional measures towards the attainment of that objective. The Convention was adopted by the General Assembly in 1979. It entered into force in 1981 following ratification by 20 States.
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I. Status of Accession by African States
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By resolution 34/180 of 18 December 1979, the General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women, the distribution of votes being 130 for, and none against, with 11 abstentions. Six African States - the Comoros, Djibouti, Mali, Mauritania, Morocco and Senegal - abstained. With the exception of Djibouti and Mauritania, the other four States subsequently acceded to the Convention.
The Convention was opened for signature in New York on 1 March 1980 and, in conformity with article 27 of the Convention, entered into force on 3 September 1981. By 28 July 1997, the convention had been ratified by 160 States Parties, including 46 African States. Among the latter, Sao Tome, though a signatory (31 October 1995), has not yet ratified it. Sao tome has reservations about doing so, but was among the nations that participated in the preparation of the draft resolution of 18 December 1979 which recommended the adoption by the General Assembly of the Convention.
Similarly, a number of African States promptly signed the Convention during the years immediately following its adoption, but did not ratify it until several years later. In some cases, the lapse exceeded 10 years; for instance, Benin and Cameroon took 11 years, Burundi 12 years, the Gambia 13 years, Côte d'Ivoire and Lesotho 13 years. A study, at some point, into the reasons for this lapse of time might be instructive. Six African States - Djibouti, Mauritania, Niger, Somalia, the Sudan and Swaziland - have not joined the international caucus as far as the Convention is concerned. The populations of all except Swaziland are predominantly Muslim. An upsurge of religious fundamentalism in some of these countries could be a contributory factor.
We may deduce from the status of ratification that most African governments readily accept the principle of the equality of men and women in the social, economic and political domains. The main problems concerning equality of rights arise, however, in matters of marriage and the family. Thus, some countries have found themselves unable to accept all the arrangements contained in the Convention and have therefore acceded to it with conditions, i.e. with reservations expressed.
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B. Reservations expressed by States
The efficacy of an international convention depends upon the manner in which States parties apply the arrangements contained in it within their respective jurisdictions. Ideally, therefore, States should ratify or accede to such a convention, preferably without reservation. However, the Convention on the Elimination of All Forms of Discrimination against Women stands out among international instruments relating to human rights by the sheer number of reservations attached to it. Out of 160 States that have acceded to it, 80 have expressed reservations. Among the latter are eight African countries, situated essentially in the North African subregion (Algeria, Egypt, Morocco, Libya and Tunisia) and in Southern Africa (Lesotho, Malawi and Mauritius). Although Ethiopia has expressed a reservation in respect of article 29, that article is concerned with the settlement of disputes, and does not relate to the principal object of the Convention.
It is encouraging to note, however, that Malawi apprised the United Nations on 31 October 1991 of its decision to withdraw the reservations attached to its accession, and that Mauritius announced - in 1995, when it presented its report to the committee on the Elimination of All Forms of Discrimination against women (CEDAW), which monitors the application of the Convention by States parties - its decision to withdraw its reservations relating to articles 11(1b), 11(1d) and 16(1g) of the Convention. Not being so far, aware of any notification of withdrawal in the documents published by the United Nations, we may, none the less, consider the process to be under way in respect of both Mauritius and Malawi.
Article 2
. Article 2 sets out, in general terms, the obligations of States parties in respect of the Convention, and the pertinent measures towards eliminating discrimination against women. States parties are expected, for instance, to embody the principle of equality in their respective national constitutions and adopt appropriate legislative, administrative and juridical arrangements to ensure the practical realization of this principle.
Reservations
Egypt has made a general reservation in respect of this article, undertaking to adhere to the arrangements contained in it, to the extent that they are compatible with the sharia. Libya states in its reservation that the arrangements contained in article 2 would be applied taking into account the imperative injunctions of the sharia concerning the transmission of the patrimony of a deceased person. Algeria's condition is that the arrangements contained in article 2 be compatible with its Family Code.
Declarations
Lesotho and Morocco have severally issued declarations relating to the matter of succession to the throne, stating that the arrangements contained in article 2 do not in the case of Lesotho, apply to religious matters and, in the case of Morocco, shall not run counter to the sharia.
- Tunisia too, while not making any reservations in respect of the article in question, states in a general declaration that its government does not undertake to adopt any administrative or legislative decision that would in effect be incompatible with the provisions of article 1 of its constitution, which makes reference to Islam, the national religion.
Article 9
This article contains two fundamental obligations. States parties are expected, firstly, to guarantee women equal rights with men in respect of the acquisition, change or retention of nationality [para. (1)] and, secondly, equal rights with men in respect of the nationality of their children [para. (2)]. Algeria, Egypt, Morocco and Tunisia have severally made reservations in respect of para. (2) of this article. These countries have opted to maintain male preference in matters of transmission of children's nationality, even though this is a matter that does not fall within the sacred domain.
Article 15
Article 15 affirms the equality of men and women before the law, and States parties are expected to accord to men and women the same rights in respect of the law relating to the movement of persons and the freedom to choose their domicile.
Algeria has made a reservation to para. (4) of this article. Morocco and Tunisia have severally issued declarations in respect of the same paragraph. The position of all three countries is that the husband being the head of the household, the decision concerning the conjugal domicile falls to him.
Egypt and Libya have found it superfluous to object to this article, such objection being implicit in their non-adhesion to the arrangements contained in article 16 relating to equal rights of spouses.
Article 16
This article covers the issue of discrimination against women in family relations. Here, discrimination generally derives from cultural and religious practices. It is therefore one of the more complex areas, and one of the areas where one encounters the most resistance to change.
Algeria, Egypt and Morocco have severally made reservations in respect of all arrangements contained in article 16 that envisage the elimination of discrimination in matters of the rights and responsibilities of spouses during marriage and at its dissolution.
Tunisia has made reservations in respect of subparagraphs (c), (d), (f), (g) and (h) of para. (1) of article 16.
Libya has made reservations in respect of subparagraphs (c) and (d) of para. (1) of article 16.
First and foremost, it should be noted that not many African countries have made reservations to this Convention. None the less, all the North African countries that have acceded to it have done so with conditions, setting limitations which, though formulated differently, are similar in effect These countries, which have predominantly Muslim populations, refer to religion (the sharia); Algeria, by contrast, invokes the family code, which, however, essentially derives from the sharia.
Algeria's formulation, predicated as it is upon the modern context, is judicious. The non-reference to the sharia and to Islam would, in the future, facilitate the withdrawal of reservations after a possible modification of Algeria's personal-law code.
The position, then, is that Algeria, Egypt and Libya have made reservations only; Morocco and Tunisia reservations as well as declarations; Lesotho just one declaration. Although the two legal events are considered as distinct -- in the sense that a reservation envisages the non-application by the member State concerned of certain arrangements contained in a convention whereas a declaration is in effect an interpretation of a convention -- specialists in public international law consider that, given the extensive use of declarations and their ambiguous wording, the latter have the same legal character as reservations, and the same effect. The reservations and declarations described above, relating to the Convention on the Elimination of All Forms of Discrimination against Women, significantly limit the obligations of States parties, and bar any change in the legal status of women , as a result of the indivisibility and inter-relatedness of all rights. It should be noted that, with the exception of Lesotho and Morocco, which limit their respective reservations to the matter of succession to the throne, all the other four African countries that have made reservations to the Convention and have not withdrawn them, refer in those reservations to family relations. Given that the reservations maintain inequalities between spouses and relations, including brothers and sisters, they have a definite effect on the exercise of other rights that are meant to be accorded to women.
Having no equal rights with men in the private sphere, women cannot, in practical terms, be equal in the public sphere, and cannot enjoy the political, economic, cultural and other rights that most constitutions accord them.
Consequently, the reservations made by these countries relate to fundamental issues. Indeed, a number of countries - such as Denmark, Finland, Germany, Mexico, Norway and Sweden - have made objections to them, considering them to be incompatible with the object and purpose of the Convention and hence that they violate article 28, which stipulates that "(a) reservation incompatible with the object and purpose of the present Convention shall not be permitted".
The issue of reservations to international instruments was considered at the International Conference on Human Rights (1993), at which States were urged to endeavour to limit the scope of reservations, to formulate them with precision and circumspection, to ensure that no reservation they made was incompatible with the object and purpose of the treaty in question, and to regularly examine any reservations they made, with a view to withdrawal.
Accordingly, the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), viewing as a matter of concern the issue of reservations, regularly takes up that issue with States parties at the sessions held to examine country reports on the application of the Convention, and requests them to reexamine the reservations with a view to withdrawing them. Thus, following the examination by CEDAW of the initial report of Libya in January 1994, the latter, on 5 July 1995, reformulated the general reservation it had made upon acceding to the Convention on 16 May 1989, and specified the articles to which its reservations related [i.e. article 2 and subparagraphs (c) and (d) of paragraph (1) of article 16].
Even though this narrowing-down of reservations leaves discrimination within the family intact, it may none the less be considered as a positive development; it is indicative of that State party's readiness to cooperate with, and follow the guidelines of, the Committee. Another State party, Egypt, announced during the consideration of its second periodic report that the question of withdrawal of the reservation relating to nationality was the subject of high-level discussions; and Tunisia's Minister responsible for women's affairs and the family stated, during the presentation of Tunisia's initial report and second combined report. that there was no intention on the part of Tunisia, in formulating its declaration in general terms, to avoid its obligations in respect of the Convention, that the objective was only to explain the reservations that had been made, that a number of legal reforms in favour of women had been instituted since ratification, and that some of the reservations would be withdrawn in the near future.
II. Implementation of the Convention by African StatesLike any human rights convention, the Convention on the Elimination of All Forms of Discrimination against Women cannot exist exclusively at an international level. Its provisions have to be applied by States parties which are expected to report regularly to an international follow-up mechanism, established by the Convention itself, on the performance of their obligations. Accordingly, article 17 establishes a Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), for the purpose of monitoring the implementation of the arrangements contained in the Convention. As stipulated in the Convention, the Committee consists of 23 experts elected by secret ballot from a list of persons of high moral standing and competence in the field covered by the Convention, and nominated by States parties. In the election of members of the Committee, consideration is given to the principle of equitable geographical representation and to the representation of the different forms of civilization as well as the principal legal systems. They are elected for a term of four years and, though nominated by their respective governments, serve in their personal capacity and not as delegates or representatives of their countries of origin. Among the 23 experts in the current Committee, six are African (i.e. from Burkina Faso, Egypt, Ethiopia, Ghana, Tunisia and Zimbabwe). The Committee considers the reports which States parties are, in the terms of article 18 of the Convention, expected to submit to the Secretary-General of the United Nations. The report covers the legislative, judicial, administrative or other measures which the States parties have adopted to give effect to the provisions of the Convention, as well as the progress made in this regard:
(a) Within one year after the entry into force for the State concerned; and
(b) Thereafter at least four years and further whenever the Committee so requests.
Reports may indicate factors and difficulties affecting the degree of fulfillment of obligations under the convention.
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A. Submission of reports
By July 1997, the Committee had considered 21 initial reports relating to African countries.
The table in annex V, constructed from a CEDAW document, indicates that few States Parties have adhered to the time-frame prescribed in the convention, and that 21 African States did not submit their initial reports within the time prescribed. In some cases, the delay has been considerable - exceeding ten years in the case of countries such as Cape Verde (15 years), Congo and Guinea (14 years), Togo (13 years), and Angola and Guinea Bissau 911 years). The non-observance on the part of States parties of the obligation to submit reports is a violation of international law.
Why have these States parties not submitted their reports? Can it be that they have not taken any measures to implement the provisions of the Convention? That seems improbable, because we know that for several years now, a new impetus has been in existence in Africa and that various strategies have been evolved in most African countries to advance the status of women.
Some experts have advanced a number of possible causes for these delays. Among these, they assert, is that the preparation of reports requires research and coordination to a level that only qualified staff can undertake, and that this may be lacking in some countries. On the other hand, the lack of follow-up on the Convention may be attributed to lack of awareness, at various levels, regarding its provisions - owing to inadequate dissemination.
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B. Analysis of the reports
A comparative, comprehensive analysis of the implementation of the Convention by the 21 States parties that have submitted their reports to CEDAW is difficult, partly owing to the time-lapse between the submissions. (The dates of submission vary according to the dates of accession to the Convention). This time-lapse may be as long as 13 years. For instance, Egypt's initial report was considered by the Committee at its third session in 1984, while Namibia's was considered at the Committee's seventeenth session in 1997.
Comparison is further compounded by non-adherence to the framework established by the Committee, as well as the length of the reports and the diversity of subjects covered.
However, I consider, after an examination of the conclusions and recommendations made by the Committee concerning each report, that it would be pertinent to focus analysis on the overall inadequacies emerging from the reports.
It appears from the country reports and the commentaries of the Committee thereon that a limited number of countries prepared well-constructed, complete reports with ample statistical data, compiled in conformity with the Committee's guidelines and, in addition, designated before the Committee high-level representatives indicating the importance they attached to their obligations under the Convention and their firm commitment to the achievement of women's advancement. On the other hand, most of the other country reports do not conform to the framework established by the Committee. For instance, it emerges from the reports that:
States parties do not conform to the time-frame established under the Convention;
In the result, the layout of many of the reports renders impossible any evaluation of progress made. It may be stated, none the less, that the political will in regard to the advancement of women appears to be real in some countries, but a chimera in others, where its declaration in basic instruments is not translated into action. In some cases, women benefit from some degree of equality of rights, but are excluded from certain rights, such as those pertaining to family relations, nationality, the enjoyment and effective exercise of economic rights, and effective participation in decision-making. Consequently, progress made in certain areas often have no impact as long as the situation remains unchanged in other areas, because different rights are interconnected.
Even where legislative reform designed to promote equality of opportunity and treatment is well constructed, it often remains a dead letter because it is not implemented.
The problem is compounded by the lack of knowledge on the part of women as to their rights and by the often discouraging legal process that the observance of these rights entails.
The multiplicity of sources of law (modern, religious, customary, etc.) that are sometimes contradictory, produces a legal framework that often facilitates discrimination.
Conclusion
The legal status of women, which some African women perceive as schizophrenic because of its duality and tendency to depart from reality, is the foremost obstacle to the full enjoyment by women of their fundamental rights.
Consequently, the Economic Commission for Africa is faced with the challenge of actualizing effective legal equality for women. It is a formidable challenge, and addressing it will entail concrete measures towards the following objectives:
A strategic framework, covering all the considerations discussed above, has been elaborated, as follows:
Strategic framework for the improvement of the socio-economic status of women through the full application of the Convention on the Elimination of All Forms of Discrimination against Women
A. Accession to the Convention
A1. Sensitize the countries that have neither signed nor ratified the Convention on the need to bring themselves in line with the international community in that regard. (This applies to seven countries).
Actions
A2. Sensitize the countries that have made reservations to the Convention to reconsider the reservations with a view to withdrawing those that run counter to the object and purpose of the Convention. (The reservations made by countries of the North African subregion-and in particular, those relating to family relations--mostly have a significant effect on the socio-economic status of women).
Actions
B. Application of the Convention
B1. Urge States parties to regularly submit to the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) reports detailing the status of women, in accordance with the Committee's guidelines, and to involve NGOs in the preparation of the reports, (The reports are very important because they facilitate regular evaluation of progress or backpedaling in the condition of women).
Actions
B2. Sensitize governmental authorities on the impact of legal institutions on the
socio-economic status of women and highlight the need to review existing
legal arrangements.Actions
B3. Help governments and NGOs to set up strategies designed to facilitate the elaboration of new laws that are compatible with the provisions of the Convention.
Actions
B4. Provide assistance to NGOs in the establishment of legal and paralegal aid mechanisms designed to educate women on their rights and help them through the legal process.
Actions
B5. Provide assistance to the agencies that are working in collaboration with the African Centre for Women (ACW) to promote the fundamental rights of women.
Actions
In sum, the objectives mentioned above may be achieved through the following actions:
· Provision of advisory and consultancy services to governments, NGOs and women's associations;
· Provision of technical support at the national, subregional and regional levels in the organization of training seminars to stimulate awareness and exchanges of perspectives regarding the promotion of the fundamental rights of women;
· Provision of technical support for meetings at the national, subregional and regional levels, organized with the objective of elaborating strategies for the improvement, in law and in practice, of the legal status of women and girls; and
· Production of research studies on the various themes considered above, for presentation at meetings, or publication.
Annexes
Annex I: African States which had signed and ratified the convention as of 28 July 1997
States parties to the Convention
Country
Date of
SignatureInstruments of
ratification received on:Algeria
-
22 May 1996
Angola
-
17 September 1986
Benin
11 November 1981
12 March 1992
Botswana
-
13 August 1996
Burkina Faso
-
14 October 1987
Burundi
17 July 1980
8 January 1992
Cameroon
6 June 1983
23 August 1994
Cape Verde
-
5 December 1980
Central African Republic
-
21 June 1991
Chad
-
5 June 1995
Comoros
-
31 October 1994
Congo
29 July 1980
26 July 1982
Cote d’Ivoire
17 July 1980
18 December 1995
Egypt
16 July 1980
18 September 1981
Equatorial Guinea
23 October 1984
Eritrea
5 September 1995
Ethiopia
8 July 1980
10 December 1981
Gabon
17 July 1980
21 January 1983
Gambia
29 July 1980
16 April 1993
Ghana
17 July 1980
2 January 1986
Guinea
17 July 1980
9 August 1982
Guinea Bissau
17 July 1980
23 August 1985
Kenya
-
9 March 1984
Lesotho
-
22 August 1995
Liberia
17 July 1980
17 July 1984
Libya
-
16 May 1989
Madagascar
5 February 1985
17 March 1989
Malawi
-
12 March 1989
Mali
-
10 September 1985
Mauritius
9 July 1984
Morocco
-
21 June 1993
Mozambique
-
16 April 1997
Namibia
-
23 November 1992
Nigeria
23 April 1984
13 June 1985
Rwanda
1 May 1980
2 March 1981
Sao Tome and Principe
31 October 1995
Senegal
29 July 1980
5 February 1985
Seychelles
-
5 May 1992
Sierra Leone
21 September 1988
11 November 1988
South Africa
29 January 1993
15 December 1995
Togo
-
26 September 1983
Tunisia
24 July 1980
20 September 1985
Uganda
30 July 1980
22 July 1985
Tanzania
17 July 1980
20 August 1985
Zaire
17 July 1980
17 October 1986
Zambia
17 July 1980
21 June 1985
Zimbabwe
-
13 May 1991
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Annex II : Reservations made by African States
EGYPT
Reservations 18 September 1981Article 9
Reservations in respect of paragraph 2 of article 9, regarding the granting to women of equal rights with men with respect to the nationality of their children. The provision should not prevent a child born of any marriage from acquiring the nationality of the father. The rationale is to avoid a situation where a child acquires two nationalities, which would have an adverse effect on the future of the child. Clearly, the acquisition by a child of the nationality of the father is the most advantageous arrangement for the child. That does not run counter to the principle of equality of men and women, since according to custom, a woman who marries a foreigner accepts that her children take the nationality of their father.
Article 16
Reservations with respect to the provisions in article 16 regarding equality of men and women in all matters relating to marriage and family relations during marriage and at its dissolution. The article should not preclude the provisions of the sharia, by virtue of which a woman is granted rights that are at par with those of the husband in order to ensure fairness for both spouses. The rationale for that is respect of the sacredness of the deep religious convictions which govern matrimonial relations in Egypt, and which are incontrovertible, as well as the fact that one of the basic tenets of these relations is parity of rights and responsibilities such that genuine complementarity between the spouses is assured, rather than quasi-equality which only overburdens the wife. The provisions of the sharia require the husband to pay the wife a sum of money upon marriage, to support her at his sole expense and, in the same vein, to pay her a sum of money at the dissolution of the marriage; the wife, on the other hand, retains all rights over her property and is not obliged to contribute to her own upkeep. Accordingly, the sharia restricts women's rights in matters of divorce, prescribing a legal precondition, whereas no such restriction is imposed on men.
Article 29
Egypt has endorsed the reservation made in respect of paragraph 2 of article 29, relating to the right of a signatory to the Convention to declare that it does not consider itself bound by paragraph 1 of that article, which provides that any dispute between States parties concerning the interpretation or application of the Convention may be submitted to arbitration.
General reservation in respect of article 2Egypt's position is that is will adhere to the provisions of this article to the extent that they are compatible with the sharia.
TUNISIA
General declaration (20 September 1985)
Tunisia has declared that it will not adopt any administrative or legislative measure, in virtue of the Convention, that may be incompatible with the first chapter of the Tunisian constitution.
Declaration in respect of article 15
In accordance with the Vienna Convention on the Law of Treaties, Tunisia has emphasized that the provisions of paragraph 4 of article 15 of the Convention on the Elimination of All Forms of Discrimination against Women, and in particular those concerning the rights of women to choose their residence and domicile, should not be interpreted in a manner likely to run counter to the provisions of chapters 23 and 61 of the personal-law code, which relate to the same matter.
Reservations
Paragraph 2 of article 9
Tunisia has made a reservation in the terms that the provisions of paragraph 2 of article 9 of the Convention should not run counter to the provisions of chapter 6 of the Code of Tunisian Nationality (Code de la nationalité tunisienne).
Subparagraphs (c), (d), (f), (g), and (h) of paragraph 1 of article 16.
Tunisia does not consider itself bound by subparagraphs (c), (d) and (f) of article 16 of the Convention and has declared that subparagraphs (g) and (h) of the same article should not run counter to the provisions of the personal-law code relating to the conferment of family names to children and the acquisition of property by way of succession.
Paragraph 1 of Article 29
In accordance with paragraph 2 of article 29 of the Convention, Tunisia does not consider itself bound by paragraph 1 of that article, which provides that any dispute between two or more States parties concerning the interpretation or application of the Convention which is not settled by negotiation, may be submitted to the International Court of Justice at the request of any one of the States parties concerned.
Tunisia's position is that such disputes can only be referred to the International Court of Justice with the consent of all parties to the dispute.
ETHIOPIA
Reservation (10 September 1981)Ethiopia has declared that in ratifying the Convention, it does not consider itself bound by paragraph 1 of article 29 of the Convention.
LIBYA
Reservation 16 May 1985
Libya's accession is made with the general reservation that the accession should not run counter to the Libyan personal law, which is derived from the sharia.
On 5 July 1995, Libya notified the Secretary-General of its decision to itemize the general reservations it had made upon accession, reformulating them as indicated below.
1. The provisions of article 2 of the Convention are applicable subject to the imperative provisions of Islamic law (sharia) concerning the transmission of the patrimony of a deceased person, male or female.
2. The provisions of subparagraphs (c) and (d) of paragraph 1 of article 16 of the Convention are applicable without prejudice to any of the rights that Islamic law (sharia) guarantees women.
MOROCCO
Declarations (21 June 1993)
Article 2
- Morocco has declared that it is prepared to apply the provisions of this article to the extent that they:- Do not run counter to the provisions of the sharia, considering that some of the provisions of the Moroccan personal-law code granting to women rights that are different from those granted to men cannot be transgressed or abrogated owing to the fact that they derive in essence from Islamic law, which is predicated, inter alia, on the objective of achieving parity between spouses in order to preserve the integrity of family relations.
Paragraph 4 of article 15
Morocco has declared that it can only be bound by the provisions of this paragraph to the extent that they are compatible with articles 34 and 36 of Morocco's personal-law code.
Reservations
Paragraph 2 of articles 9
Morocco has made reservations in respect of this paragraph, in view of the fact that the Code of Moroccan Nationality only allows a child to adopt the nationality of the mother where the father is unknown, or is stateless, and the child is born in Morocco; the rationale for that is to ensure that every child is guaranteed the right of nationality. Likewise, a child born in Morocco of a Moroccan mother and a non-Moroccan father can only acquire the nationality of the mother if, within the two years preceding attainment of the age of majority, the child declares the wish to acquire Moroccan nationality, provided that at the time of such declaration, the child is regularly and habitually resident in Morocco.
Article 16
Morocco has made reservations in respect of provisions of this article, particularly those relating to equality of men and women in matters of rights and responsibilities during marriage and at its dissolution, since such equality is contrary to Islamic law which guarantees both spouses rights and responsibilities on the basis of parity and complimentarily, in order to preserve the sacred bond of marriage.
Islamic law requires men to pay dowry upon marriage and to maintain the family, whereas no obligation is imposed on women to maintain the family.
Likewise, men are bound, upon dissolution of marriage, to pay alimony. Women, on the other hand are entirely free, both during marriage and after its dissolution, to administer and dispose of their property without any control on the part of the husband, who therefore has no power over the property of the wife.
Accordingly, Islamic law does not grant to women the right of divorce except through a legal process before a magistrate.
Article 29
Morocco does not consider itself bound by paragraph 1 of this article, which provides that any dispute between two or more State parties concerning the interpretation or application of the Convention which is not settled by way of negotiations may be submitted to arbitration at the request of any of the States parties.
The position of Morocco is that any such dispute can only be submitted to arbitration with the consent of all the parties concerned.
ALGERIA
Reservation
Algeria has declared that it is prepared to apply the provisions of this article to the extent that they do not run counter to the provisions of Algeria's family code.
Article 9 paragraph 2
Algeria has made reservations in respect of the provisions of paragraph 2 of article 9, which are not compatible with the provision of the code of Algerian nationality and the Algerian family code.
The code of Algerian nationality does not allow a child to acquire the nationality of the mother except where:
- the father is not known or is stateless;
- the child is born in Algeria of an Algerian mother and a non-Algerian father who is himself born in Algeria.
Likewise, a child born in Algeria of an Algerian mother and Algerian father, where the father is born outside Algerian territory, may acquire the nationality of the mother unless the Minister responsible for the administration of justice objects, in accordance with article 26 of the code of Algerian nationality.
Article 41 of Algeria's family code provides that the child is affiliated to the father by virtue of legal marriage.
Article 43 of the same code provides that the child is affiliated to the father if the child is born within ten months following the date of separation or death.
Article 15 paragraph 4
- Algeria has declared that the provision of paragraph 4 of article 15, particularly those concerning the right of women to choose their residence or domicile, should not be interpreted in such a way as to run counter to the provisions of chapter 4 (article 37) of the Algerian family code.
Article 16
Algeria has declared that the provisions of article 16 relating to the equality of men and women in all matters pertaining to marriage, during marriage and at its dissolution, should not run counter to the provisions of the Algerian family code.
Article 29
Algeria does not consider itself bound by paragraph 29, which provides that any dispute between two or more States parties concerning the interpretation of application or the Convention which cannot be settled by way of negotiation shall be submitted to arbitration to the International Court of Justice at the request of any of the State parties concerned.
Algeria's position is that such disputes can be submitted to the International Court of Justice only with the concern of all the parties to the dispute.
LESOTHO
Declaration (22 August 1995)
Lesotho has declared that it does not consider itself bound by article 2 of the Convention as it is incompatible with the provisions of the Constitution of Lesotho which relate to succession to the throne of the Kingdom of Lesotho, and succession law applicable to the ruling line. Lesotho ratified the Convention subject to the reservation that no obligation applicable to Lesotho by virtue of the Convention, particularly by virtue of article 2 (e), should not be interpreted as applicable to matters of a religious nature.
Further, Lesotho has declared that it cannot take any legislative measure envisaged by the Convention as long as such measures would be incompatible with the Constitution of Lesotho.
MAURITIUS
Reservation (9 July 1984)
Mauritius does not consider itself bound by the provision in subparagraph (b) and (d) of paragraph of 1 of article 11 and subparagraph (g) of paragraph 1 of article 16.
In accordance with paragraph 2 of article 29, Mauritius does not consider itself bound by the provisions of paragraph 1 of article 29 of the Convention.
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Annex III : Withdrawal of the reservation made by the Government of Malawi
MalawiOn 24 October 1991, the Government of Malawi notified the Secretary-General of its decision to withdraw the following reservations that were made during the accession:
"Certain traditional customs and practices being deeply rooted in Malawian society, the Government of the Republic of Malawi does not at present consider itself bound by the provisions of the Convention that envisage the immediate abolition of such customs and practices.
Although the Government of the Republic of Malawi accepts the principles enunciated in paragraph 2 of Article 29 of the Convention, its acceptance is subject to its declaration of 12 December 1996 on the recognition by the Government of Malawi, of the obligation to recognition the jurisdiction of the International Court of Justice in the implementation of paragraph 2 of Article 36 of the Statute of the Court".
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Annex IV : Objections made to declarations and to reservations
GERMANY
Objections from Germany to the reservations made by Bangladesh, Iraq, Libyan Arab
Jamahiriya, Malawi, Mauritius, Thailand and Turkey during the accession and by Brazil,
Egypt, Jamaica Republic of Korea and Tunisia during accession.The Federal Republic of Germany is of the opinion that the reservations made by Egypt with regard to article 2, paragraph 2 of article 9, and article 16; by Bangladesh with regard to article 2, subparagraph (a) of article 13 and subparagraphs (c) and (f) of paragraph 1 of article 16; by Brazil with respect to paragraph 4 of article 15 and subparagraph (a), (c), (g) and (h) of paragraph 1 of article 16; by Jamaica with respect to paragraph 2 of article 9; by the Republic of Korea with respect to article 9 and subparagraph (c), (d), (f) and (g) of paragraph 1 of article 16; and by Mauritius with respect to subparagraphs (b) and (d) of paragraph 1 of article 11 and subparagraph (g) of paragraph 1 of article 16, are incompatible with the object and purpose of the Convention (paragraph 2, article 28) and consequently, objects to them. The Federal Republic of Germany is of the opinion that the reservations mentioned cannot be invoked in support of a legal regime that does not duly take into account the legal status conferred on women and children in the Federal Republic of Germany in accordance with the above-mentioned articles of the Conventions. This objection should not prevent the entry into force of the Conventions in Egypt, Bangladesh, Brazil, Jamaica, Republic of Korea and Mauritius, as well as the Federal Republic of Germany.
The Federal Republic of Germany has also made similar objections, mutatis mutandis, to the reservations made by various other countries, as indicated below:
(a) 15 October 1996: the reservations made by the Government of Thailand with respect to paragraph 2; article 9; article 10; paragraph 1(b) of article 11; paragraph 3 of article 15;and article 16. The Federal Republic of Germany is also of the opinion that the reservation made by Thailand in respect of article 7 of the Convention is incompatible with the object and purpose of the Convention. It reserves the right of the Government in general--and hence indeterminate-terms, to apply, in matters of national security, only those provisions of the Convention that are compatible with the laws, regulations and practices obtaining in Thailand;
(b) 15 October 1986: the reservations and statements made by the Government of Tunisia in respect of paragraph 2 of article 9, article 16, as well as paragraph 4 of article 15;
(c) 3 March 1987: the reservation made by the Government of Turkey with respect to paragraphs 2 and 4 of article 15 and subparagraphs (c),(d),(f) and (g) of paragraph 1 of article 16; and the reservations made by the Government of Iraq with respect to subparagraphs (f) and (g) of article 2; and article 9 of article 16;
(d) 17 April 1998: the initial reservation made by the Government of Malawi;
(e) 20 June 1990: the reservation made by the Libyan Arab Jamahiriya;
(f) 28 October 1994: the reservation made by the Maldives.
FINLAND
Objection by Finland in respect of the reservation made by the Libyan Arab Jamahiriya upon accession.
The Government of Finland considers that the reservation made by the Libyan Arab Jamahiriya is incompatible with the object and purpose of the Convention, and categorically objects to it. The objection is without prejudice to the entry into force of the Convention in Finland and the Libyan Arab Jamahiriya.
MEXICO
Objections by Mexico in respect of the reservations made by Bangladesh, Cyprus, Iraq, Libyan Arab Jamahiriya, Mauritius, Thailand and Turkey upon accession and by Egypt, Jamaica, New Zealand and the Republic of Korea upon ratification: Communication by Malawi
The Government of Mexico having examined the reservations made by Mauritius with respect to subparagraphs (b) and (d) of paragraph 1 of article 11; and subparagraph (g) of paragraph 1 of article 16 of the Convention concludes that these reservations should be considered null and void in view of paragraph 2 of article 28 of the Convention, as they are incompatible with the object and purpose of the Convention.
Actualization of the reservations would inevitably result in an element of discrimination against women by reason of their sex, which would be contrary to the Convention. The principle of equality between men and women and the principle of non-discrimination on the basis of sex which is enshrined in the second preambular paragraph and paragraph 3 of article 1 of the Charter of the United Nations, to which Mauritius is a party, as well as articles 2 and 16 of the Universal Declaration of Human Rights (1948) were accepted by the Government of Mauritius when it acceded on the 12 December 1973 to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These principles are reiterated in paragraph 1 of article 2 and article 3 of the former, and in paragraph 2 of article 2, and article 3, of the latter. Therefore, the intention of the Government of Mauritius to make reservations to provisions of the Convention in respect of the same matters is incompatible with the international obligations to which it had agreed to adhere on an earlier occasion.
The Secretary-General has received the following notification from the Government of Mexico on the date indicated:
5 August 1987: The Government of Mexico expresses the hope that the process of the eradication of customs and practices mentioned in the initial reservation made by the Republic of Malawi should not be protracted to the point of compromising the object and purpose of the Convention.
NORWAY
Objections by Norway to the reservations made by the Libyan Arab Jamahiriya and Maldives upon accession.
The Government of Norway considers that the reservation made by the Libyan Arab Jamahiriya upon accession, in terms that its accession is subject to the general reservation that the Convention should not run counter to the personal-law regime derived from the Sharia, is incompatible with the object and purpose of the Convention para.2 of art 28). Consequently, the Government of Norway does not accept the reservation.
The Government of Norway notes that any State which accedes to the Convention undertakes to adopt the necessary measures to eliminate discrimination against women in all its forms and manifestations. Any reservation whereby a state party to the Convention limits the obligations devolving on it under the Convention by evoking the Sharia (Islamic law), which is subject to interpretation, modification and selective implementation in the different States that adhere to the principles of Islam, may cast doubt on the commitment of that State with regard to the object and purpose of the Convention, and may furthermore undermine the foundations of international treaty law It is in the interest of all states that the object and purpose of treaties to which they have decided to be party are respected by all parties.
The Norwegian Government is of the opinion that any reservation made by a State party limiting the obligations devolving upon it under the Convention by evoking, in general terms, principles of national legislation may cast doubt on the commitment of that State to the object and purpose of the Convention and may, furthermore, erode the foundations of international treaty law. It is in the interest of all member States that the object and purpose of treaties to which they have decided to be party are uniformly respected by all parties. Moreover, it is an established tenet of international treaty law that a State cannot cite its national legislation in justification of non-observance of its obligations under the treaty. Consequently, the Government of Norway objects to the reservations made by the Maldives.
This objection does not constitute an obstacle to the entry into force of the Convention in the Kingdom of Norway and the Republic of Maldives.
SWEDEN
Objections of Sweden to the reservations made by Bangladesh, Iraq, the Libyan Arab Jamahiriya, Malawi, Mauritius and Thailand upon accession, and by Brazil, Egypt, Jamaica, New Zealand, the Republic of Korea and Tunisia upon ratification
The Swedish Government considers incompatible with the object and purpose of the Convention (art. 28, para. 2) the reservations made by the following countries, and accordingly objects to the same:
- Thailand: in respect of article 9, paragraph 2; article 15, paragraph 3 and article 16;
- Tunisia: in respect of article 9, paragraph 2, article 15 paragraph 4, and article 16, paragraphs 1 (c), (d), (f), (g) and (h);
- Bangladesh: in respect of article 2, paragraph (a), article 13 and article 16, paragraphs 1 (c) and (f);
- Brazil: in respect of article 15, paragraph 4 and article 16, paragraphs 1(a), (c), (f) and (g);
Indeed, if these reservations were put into practice, they would inevitably lead to gender based discrimination against women which would run completely counter to everything that the Convention stands for. It should be borne in mind that the achievement of the principles of equal rights for men and women and non-discrimination among the sexes is an avowed objective of the Charter of the United Nations, and of the 1948 Universal Declaration of Human Rights as well as various multilateral instruments to which Bangladesh, Thailand and Tunisia are parties.
on the accession of the States that make them, but also go to undermine the foundations of international contractual law. It is in the interest of every State to ensure that object and purpose of the treaties to which they have become parties are equally respected by the other parties.
Subsequently, the Secretary-General received from the Swedish Government objections similar to the foregoing with respect to the reservations made by the following States on the following dates:
- 12 March 1987: in respect of the reservations made by Iraq to article 2, paragraphs (f) and (g), article 9, paragraph 1 and article 16;
- 15 April 1988: in respect of the initial reservations made by Malawi;
- 5 February 1993: in respect of the reservations made by Jordan to article 9, paragraph 2, article 15 paragraph 4, article 16, paragraphs 1(c), (d) and (g);
;
- 26 October 1994: in respect of the reservations made by Maldives upon accession. The Swedish Government objects to these reservations and sees them as an obstacle to the entry into force of the Convention between Sweden and the Republic of Maldives.
NETHERLANDS
Objections of the Netherlands to the reservations made by Bangladesh, Iraq, the Libyan Arab Jamahiriya, Malawi, Morocco, Mauritius, Thailand and Turkey upon accession, and by Brazil, Egypt, India, Jamaica, the Republic of Korea and Tunisia upon ratification
The Government of the Kingdom of the Netherlands believes that the reservations made by Bangladesh in respect of article 2, paragraph (a), article 13 and article 16 paragraphs 1(c) and (f); by Brazil in respect of article 15 paragraph 4 and article 16; paragraphs 1(a), (c), (g) and (h); by Iraq in respect of article 2, paragraphs 2 (f) and (g), article 9 and article 16; by Mauritius in respect of article 11, paragraphs 1(b) and (d) and article 16, paragraph 1(g); by Jamaica in respect of article 9, paragraph 2; by the Republic of Korea in respect of article 9 and article 16, paragraphs 1(c), (d), (f) and (g); by Thailand in respect of article 9, paragraph 2, article 15 paragraph 3, and article 16; by Tunisia in respect of article 9, paragraph 2; article 15, paragraph 4 and article 16 paragraphs 1(c), (d), (f), (g) and (h); by Turkey in respect of article 15, paragraphs 2 and 4, and article 16, paragraphs 1(c), (d), (f) and (g); by the Libyan Arab Jamahiriya upon accession; and by Malawi upon accession, are incompatible with the object and purpose of the Convention (paragraph 2 article 28).
These objections will not prevent the entry into force of the Convention between Bangladesh, Egypt, Brazil, Iraq, Mauritius, Jamaica, Malawi, the Libyan Arab Jamahiriya, the Republic of Korea, Thailand, Tunisia, Turkey and the Kingdom of the Netherlands.
The Government of the Kingdom of the Netherlands considers that the declarations made by India with respect to article 5, paragraph (a) and article 16, paragraph 1 of the Convention are reservations that are incompatible with the object and purpose of the Convention (para. 2, art 28).
The Government of the Kingdom of the Netherlands considers that the declaration made by India with respect to article 16, paragraph 2 of the Convention is a reservation that is incompatible with the object and purpose of the Convention (para. 2, art. 28).
The Government of the Kingdom of the Netherlands considers that the declaration made by Morocco to the effect that it is prepared to implement the provisions of article 2 provided that they are not in contradiction with the provisions of islamic shariah, is a reservation that is incompatible with the object and purpose of the Convention (para 2, art. 28).
The Government of the Kingdom of the Netherlands considers that the declaration made by Morocco with respect to article 15, paragraph 4 of the Convention is a reservation that is incompatible with the object and purpose of the Convention (para 2, art. 28).
The Government of the Kingdom of the Netherlands has considered the following reservations made by the Maldives: "The Government of the Republic of Maldives will respect the provisions of the Convention with the exception of those that the Government might consider to be in contradiction with the principles of islamic sharia, on which the Maldives laws and traditions are based. Moreover, the Republic of Maldives does not consider itself bound by any provision of the Convention that obliges it to amend its constitution and laws in any way ". The Government of the Kingdom of the Netherlands considers that these reservations are incompatible with the object and purpose of the Convention.
The Government of the Kingdom of the Netherlands objects to the above-mentioned declarations and reservations.
Such objection shall not prevent the entry into force of the Convention between India, Morocco, Maldives and the Kingdom of the Netherlands.
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Bibliography
· Action taken by CEDAW 1982-1985
· Reports on the following sessions:Seventh session (1989)
Ninth session (1990)
Tenth session (1991)
Eleventh session (1992)
Twelfth session (1993)
Thirteenth session (1994)
Fourteenth session (1995)
Sixteenth session (1997)
· Ethiopia, Mauritius, Morocco, Namibia, Senegal, Uganda, Tunisia, Zaire, Zambia and Zimbabwe
CEDAW doc. 123
CEDAW/SP/1996/2 of 8 February 1996.
CEDAW/A/51/277 of 7 August 1996
discours identitaire" UNESCO/CERP symposium, Tunis, 13-16 January 1998. `
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