ASEAN states, their reservations to human rights treaties and the proposed ASEAN commission on women and children

Human Rights Quarterly

Volumn 30, Issue 2, 2008, Pages 436-493

  Linton, Suzannah ^a  

^a UNIVERSITY OF HONG KONG   (Hong Kong)

Author keywords

[No Author keywords available]

Indexed keywords

ASEAN; CHILD WELFARE; GENDER DISPARITY; GENDER RELATIONS; HUMAN RIGHTS; INTERNATIONAL LAW; LEGISLATIVE IMPLEMENTATION; WOMENS STATUS;

EID: 44449105683     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.0.0010     Document Type: Article

References (204)

1. The Association of Southeast Asian Nations (ASEAN) was established on 8 Aug. 1967 in Bangkok by the five original Member Countries: Indonesia, Malaysia, Philippines, Singapore, and Thailand. Brunei Darussalam joined on 8 Jan. 1984, Vietnam on 28 July 1995, Lao PDR and Myanmar on 23 July 1997, and Cambodia on 30 April 1999. Available at http:// www.aseansec.org/64.htm.
2. The Cebu Declaration endorsed the Report of the Eminent Persons Group on the ASEAN Charter, Dec. 2006. Cebu Declaration on the Blueprint of the ASEAN Charter, 13 Jan. 2007, available at http://www.aseansec.org/ 19257.htm.
3. The report also recommended including active strengthening of the rule of law including international humanitarian law, and respect for human rights and fundamental freedoms as its fundamental principles and objectives in the Charter. Report of the Eminent Persons Group on the ASEAN Charter, Dec. 2006, ¶ 47, available at http:// www.aseansec.org/19247.pdf.
4. See The Report of the Regional Meeting for Asia of the World Conference on Human Rights, Bangkok, 29 Mar.2 Apr. 1993, U.N. Doc.A/ CONF.157/ASRM/8, A/CONF.157/PC/59, 7 Apr. 1993 (hereafter Bangkok Declaration).
5. For Lee Kuan Yew's arguments about Asian Values, see Fareed Zakaria, Culture is Destiny: A Conversation with Lee Kuan Yew, FOR. AFF. 109 (Mar.Apr. 1994)
6. see also MAHATHIR MOHAMAD & SHINTARO ISHIHARA, THE VOICE OF ASIA: TWO LEADERS DISCUSS THE COMING CENTURY (Frank Baldwin trans. 1995).
7. Compare Amartya Sen, Human Rights and Asian Values: What Lee Kuan Yew and Le Peng Don't Understand About Asia, 217 THE NEW REPUBLIC 33 (1997)
8. YASH GHAI, HUMAN RIGHTS AND GOVERNANCE: THE ASIA DEBATE (ASIA FOUNDATION OCCASIONAL PAPER No. 4, 1994)
9. Li-ann Thio, Implementing Human Rights in ASEAN Countries: "Promises to keep and miles to go before I sleep," 2 YALE HUM. RTS. & DEV. L. J. 1 (1999).
10. angkok Declaration, supra note 4, ¶ 26.
11. Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, ¶ 5, U.N. Doc. A/ CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993).
12. Joint Communique of the Twenty-Sixth ASEAN Ministerial Meeting Singapore, 2324 July 1993, available at http://www.aseansec.org/ 2009.htm.
13. There are interesting parallels to be drawn between ASEAN's transnational advocacy networks, and those that developed in Latin America and caused what is called the "justice cascade" punching a hole through impunity for human rights violations paving the way for the Pinochet litigation. See Ellen Lutz & Kathryn Sikkink, The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America, 2 CHICAGO J. INT'L L. 1 (2001).
14. These building blocks involve four key activities: promoting human rights action plans, supporting establishment of national human rights institutions, fostering human rights education, and realizing economic social and cultural rights and the right to development.
15. As of 3 May 2004, there had been nineteen such communications to the Human Rights Committee since the Philippines acceded to the Optional Protocol to the International Covenant on Civil and Political Rights on 22 Aug. 1989. Statistical survey available at http:/ /www.unhchr.ch/html/menu2/8/stat2.htm.
16. Homayoun Alizadeh, OHCR's Role in Supporting the Establishment of an ASEAN Regional Human Rights Mechanism, paper presented to the Second Asia Human Rights Forum on Regional Human Rights Co-operation for Combating Commercial Sexual Exploitation of Children in Asia, Seoul, South Korea (5 Feb. 2007) (on file with author).
17. Vitit Muntarbhorn, A Roadmap for an ASEAN Human Rights Mechanism, prepared at the third workshop for an ASEAN Regional Mechanism on Human Rights, Bangkok, Thailand, 2829 May 2003, available at http:// www.fnf.org.ph/liberallibrary/roadmap-for-asean-human-rights.htm.
18. Vientiane Action Programme (20042010), agreed at the 10Th ASEAN Summit in Vientiane, 29 Nov. 2004, as the successor to the Hanoi Plan of Action, available at http://www.aseansec.org/ VAP-10th%20ASEAN%20Summit.pdf.
19. See the record of discussion in the Report of the Expert Meeting on the Establishment of an ASEAN Commission for the Promotion and Protection of the Rights of Women and Children, 20 Nov. 2006, Bangkok, Thailand [hereinafter Report of the Expert Meeting on the Establishment of an ASEAN Commission for the Promotion and Protection of the Rights of Women and Children] (on file with author).
20. See Raj Abdul Karim, Efforts to Help Establish a Commission on the Promotion and Protection of the Rights of Women and Children and Steps to Be Undertaken, paper presented to the Fifth Workshop on the ASEAN Regional Mechanism on Human Rights, 2930 June 2006, Kuala Lumpur, Malaysia. This presentation focused solely on surveys of existing domestic laws, policies, and institutions regarding the rights of women and children (on file with the author).
21. Convention on the Elimination of All Forms of Discrimination Against Women [hereinafter CEDAW], adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (1980) ( entered into force 3 Sept. 1981), 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980). There is also an Optional Protocol to the convention dealing with communications and greater investigative powers for the monitoring body. Within ASEAN, the Philippines and Thailand are parties.
22. Convention on the Rights of the Child [hereinafter CRC], adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989).
23. Optional Protocol to the CRC on the involvement of children in armed conflict, adopted 25 May 2000, G.A. Res. 54/263, U.N. GAOR, 54th Sess., Supp. No. 49, U.N. Doc. A/54/49 (2000), (entered into force 12 Feb. 2002).
24. Optional Protocol to the CRC on the sale of children, child prostitution and child pornography, adopted 25 May 2000, G.A. Res. 54/263, U.N. GAOR, 54th Sess., Supp. No. 49, U.N. Doc. A/54/49 (2000), (entered into force 18 Jan. 2002).
25. One can note that the South Asian Association for Regional Cooperation (SAARC), comprising Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka, has adopted Conventions on the Preventing and Combating Trafficking in Women and Children, and on Regional Arrangements for the Promotion of Child Welfare in South Asia. Neither is supported by a monitoring mechanism.
26. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331, (entered into force 27 Jan. 1980), reprinted in 8 I.L.M. 679 (1969).
27. Singapore's reservation to Convention on the Rights of the Child, 5 Oct. 1995, ¶ 3, available at http://untreaty.un.org /humanrightsconvs/Chapt_IV_11/reservations/singapore.pdf.
28. Thio, supra note 4, at 28.
29. See Philip Alston, Final Report on Enhancing the Long-Term Effectiveness of the United Nations Human Rights Treaty System, U.N. Doc. E/CN.4/1997/74 (27 Mar. 1997), arguing that universal ratification of the six core human rights treaties is the best possible foundation for international endeavors to promote respect for human rights.
30. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L. J. 1935, 2020 (20012002).
31. Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT'L ORG. 217 (2000).
32. Lutz & Sikkink, supra note 8, at 5.
33. Heather M. Smith, Explaining Ratification of Global Human Rights Instruments: The Role of Regional Instability, prepared for the Journeys in World Politics Conference, University of Iowa (9-12 Mar. 2006), available at http://www.polisci.uiowa.edu/news/workshop_papers/ smith.pdf.
34. Chairpersons of UN Human Rights Treaty Bodies, Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations Under International Instruments on Human Rights, U.N. Doc. A/47/628, ¶ 60 (10 Nov. 1992).
35. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J 15 (28 May) (hereafter Advisory Opinion on the Genocide Convention), available at http:// teaching.law.cornell.edu/faculty/drwcasebook/docs/ genocide%20convention%20decision.pdf. 36 Id. at 12.
36. Joint dissenting opinion of judges Guerro, Sir Arnold McNair, Read, Hsu Mo, supra note 30, at 1333.
37. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), I.C.J (3 Feb.2006) (Judgment on jurisdiction of the Court and Admissibility of the Application)
38. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), 2006 I.C.J (3 Feb.)
39. Joint Separate opinion of Judge Higgins, Judge Kooijmans, Judge Elaraby, Judge Owada, and Judge Simma, ¶ 13, at 3, available at http: //www.icj-cij.org/docket/files/126/10441.pdf.
40. Of the ten ASEAN states, only five: Cambodia (accession 23 May 1969), Lao PDR (accession 31 Mar. 1998), Malaysia (accession 27 July 1994), the Philippines (ratification 15 Nov. 1972) and Vietnam (accession 10 Oct. 2001) are parties.
41. For those non-party states, many of Vienna Convention's provisions are acknowledged as reflecting custom, and the reservations provisions, being drawn from the Advisory Opinion on the Genocide Convention, are also in that category. See INTRODUCTION TO THE INTERNATIONAL BILL OF RIGHTS 25 (Louis Henkin ed., 1981)
42. William A. Schabas, Reservations to the Convention on the Rights of the Child, 18 HUM. RTS. Q. 472, 481 (1996).
43. Even the long-term outsider, the United States, has long regarded this convention as "the authoritative guide to current treaty law and practice." S. Exec. Doc. L., 92d Cong., 1st Sess., 1971, at 1
44. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987).
45. Report of the International Law Commission on the work of its Forty-Ninth Session, [1997], 2 Y.B. INT'L L. COMM. 60 at ¶ 66, U.N. Doc.A/CN.4/SER.A/1997/Add.1 (Pt. 2); containing the Preliminary Conclusions of the International Law Commission on Reservations to Normative Multilateral Treaties including Human Rights, at ¶ 2 [hereinafter ILC Preliminary Conclusions on Reservations].
46. Edward Swaine, Reserving, 31 YALE J. INT'L L. 307, 331 (2006).
47. See the different definitions proposed by the Special Rapporteur in Reservations to Treaties: Note by the Special Rapporteur on Draft Guideline 3.1.5, Definition of the Object and Purpose of the Treaty, U.N. GAOR, I.L.C., 58th Sess., U.N. Doc.A/CN.4/572, (2006).
48. Advisory Opinion on the Genocide Convention, supra note 30, at 23.
49. ILC Preliminary Conclusions on Reservations, supra note 35, at ¶ 1.
50. The controversy over treaty monitoring bodies will be examined later in this article.
51. Armed Activities on the Territory of Congo, (Joint Separate Opinion), supra note 33, ¶ 28.
52. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), 2002 I.C.J 219 ¶ 72 (July 10) (Request for the Indication of Provisional Measures).
53. Armed Activities on the Territory of the Congo (Judgment on Jurisdiction of the Court and Admissibility of the Application), supra note 33, ¶ 67.
54. ILC Preliminary Conclusions on Reservations, supra note 35, ¶ 10.
55. France-United Kingdom: Arbitration on the Delimitation of the Continental Shelf, 18 I.L.M. 397, ¶ 61, at 419 (1979).
56. Jan Klabbers, Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties, 69 NORDIC J. INT'L L. 179, 18586 (2000)
57. Klabbers suggests that the Nordic states may be attempting to influence the development of the law on reservations at a time when it is under review. Id., at 191.
58. Several examples are to be found in the objections to ASEAN state reservations which are mentioned later in this article.
59. Some treaties provide for a means of determining the validity or invalidity of a reservation. E.g., International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966).
60. Under Article 20(2) of this treaty, a reservation will be deemed incompatible with its object and purpose if it is objected to by at least two-thirds of states parties. Id. However, this is an exception and it has never been used.
61. See generally Catherine Redgewell, Universality or Integrity? Some Reflections on Reservations to General Mutlilateral Treaties, 67 BRIT. Y.B. INT'L L. 245 (2004)
62. Jean Kyongun Koh, Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision, 23 HARV. INT'L L. J. 71 (1982)
63. Derek W. Bowett, Reservations to Non-Restricted Multilateral Treaties, 48 BRITISH Y.B. INT'L L. 67 (1976-1977)
64. J.M. Ruda, Reservations to Treaties, 146 RECUEIL DES COURS L'ACADÉMIE DE DROIT INTERNATIONAL DE LA HAYE 95 (1975).
65. Second Report on Reservations to Treaties by Alain Pellet, Special Rapporteur, U.N. GAOR, International Law Commission, 48th Sess., ¶ ¶ 24151, U.N. Doc. A/CN.4/477/Add.1 (1996).
66. Specific Human Rights Issues, Reservations to Human Rights Treaties, Final Working Paper Submitted by Fran çoise Hampson, U.N. ESCOR, Comm'n on Hum. Rts., 56th Sess., Agenda Item 6, U.N. Doc. E/CN.4 /Sub.2/2004/42 (2004) [hereinafter Hampson Final Working Paper
67. For earlier reports, see also Other Specific Human Rights Issues, Reservations to Human Rights Treaties, Working Paper Preparatory to the Submission of the Expanded Working Paper by Françoise Hampson Submitted in Accordance with the Sub-Commission Decision 2002/17, U.N. ESCOR, Comm'n on Hum. Rts., 54th Sess., Agenda Item 6, U.N. Docs. E/ CN.4/SUB.2/2002/34 (2002)
68. Expanded working paper by Ms. Françoise Hampson on the question of reservations to human rights treaties, U.N. ESCOR, Comm'n on Hum. Rts., 55th Sess., Agenda letm 6, U.N. Docs. E/CN.4/SUB.2 /2003/WP.2 (2003).
69. See Text of Draft Guidelines on Reservations to Treaties Proposed in The Present Report, annexed to the Second Addendum to the Tenth Report on Reservations to Treaties by Mr. Alain Pellet, Special Rapporteur (hereinafter Text of Draft Guidelines annexed to the Second Addendum of Tenth Report by Alain Pellet), U.N. GAOR, I.L.C., 57th Sess., U.N. Dcc. A/CN.4/558/Add.2 (2005).
70. Report of the Meeting of the Working Group on Reservations, International Human rights Instruments, Eighteenth Meeting of Chairpersons of the Human Rights Treaty Bodies, ¶ 7, Recommendations of the Working Group, U.N. Doc. HRI/MC/2006/5 (2006).
71. Some members of the Human Rights Committee have challenged this, suggesting that instead of focusing on intention, the focus should be on the presumption that the reserving state would prefer to remain a state party. See Report of the Meeting of the Working Group on Reservations, International Human Rights Instruments, Nineteenth Meeting of Chairpersons of the Human Rights Treaty Bodies, ¶ 13, U.N. Doc. HRI/MC/2007/5 (2007).
72. Dissenting Opinion of Judge Lauterpacht, Switzerland v. United States (Interhandel case), 6 ICJ REPORTS 95, 117 (1959).
73. Belilos v. Switzerland, 132 Eur. Ct. H.R. (ser. A) (1988) (hereinafter Belilos)
74. Loizidou v. Turkey (Preliminary Objections), 310 Eur. Ct. H.R. (ser. A) (1996).
75. Yearbook of the International Law Commission, Report of the Commission to the General Assembly on the Work of its Fifty-First Session, Guideline 1.3.1, U.N. Doc. A/CN.4/SER. A/1999/Add.1 (Pt. 2) (1999) (method of implementation of the distinction between reservations and interpretative declarations): To determine whether a unilateral statement formulated by a State or an international organization in respect of a treaty is a reservation or an interpretative declaration, it is appropriate to interpret the statement in good faith in accordance with the ordinary meaning to be given to its terms, in the light of the treaty to which it refers. Due regard shall be given to the intention of the State or the international organization concerned at the time the statement was formulated.
76. The Practice of Human Rights Treaty Bodies With Respect To Reservations to International Human Rights Treaties, International Human Rights Instruments, Seventeenth Meeting of Chairpersons of the Human Rights Treaty Bodies, ¶ ¶ 37, 38, U.N. Doc. HRI/MC/2005 /5 28 (2005) [hereinafter Practice of Human Rights Treaty Bodies With Respect to Reservations to International Human Rights Treaties].
77. General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations Under Article 41 of the Covenant, General Comment No. 24, Human Rights Committee, ¶ 17, U.N. Doc.CCPR/C/21/Rev.1/Add.6 (1994).
78. For more, see Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990)
79. Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women, 85 AM. J. INT'L L. 281 (1991).
80. Vienna Declaration and Programme of Action, supra note 6, Pt. II, ¶ 5.
81. It is sometimes said that there should be no reservations whatsoever to human rights treaties. It is true that the thrust in the human rights world is to work towards reservation-free treaties in "dialogue" with states, but few challenge that the making of reservations is a fundamental aspect of sovereignty, manifested through the concept that a state cannot be bound without its consent and some concessions must be made if states are to find it in their interest to enter into treaties. Even the Human Rights Committee, in its controversial General Comment No.24, General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations Under Article 41 of the Covenant, supra note 57, ¶ 4, could only declare it "desirable in principle that States accept the full range of obligations because the human rights norms are the legal expression of the essential rights that every person is entitled to as a human being."
82. Report of the International Law Commission on the Work of Its 48th Session, ILC, ¶ 132, at 82, U.N. Doc.A/51/10 (1996).
83. Second Report on Reservations to Treaties by Alain Pellet, Special Rapporteur, supra note 49, ¶ ¶ 65-176, U.N. Doc. A/CN.4 /477/Add.1 (1996).
84. Report of the International Law Commission on the work of its Forty-Ninth Session, 12 May-18 July 1997, Official Records of the General Assembly, U.N. GAOR, 57th Sess., Supp. 10, ¶ ¶ 7576, U.N. Doc.A/52/10
85. ILC Preliminary Conclusions on Reservations, supra note 35, ¶ ¶ 2, 3.
86. The term "self-contained regime" was coined by the Permanent Court of International Justice in the S.S. Wimbledon case and further developed in the Tehran Hostages case by the International Court of Justice. In the latter, it found that the regime of specific legal consequences contained in the Vienna Convention on Diplomatic Relations was self-contained vis-à-vis the customary international law of state responsibility. Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran) 1980 I.C.J. 3, 40 (24 May 1980)
87. see also S.S. "Wimbledon" (Britain, France, Italy & Japan (with Poland as Intervener) v. Germany) 1923 I.C.J. 15 (17 Aug. 1923).
88. Yearbook of the International Law Commission 1997, Vol. II, Part Two, Report of the Commission to the General Assembly on the work of its Forty-Ninth Session, ¶ 124, U.N. Doc. A/CN.4/SER.A/1997/Add.1.
89. ILC Preliminary Conclusions on Reservations, supra note 35, ¶ 5.
90. Id. ¶ 8.
91. Armed Activities on the Territory of the Congo (Joint Separate Opinion), supra note 33, ¶ 16.
92. Id. ¶ 23.
93. See Practice of the Human Rights Treaty Bodies With Respect To Reservations to International Human Rights Treaties, supra note 56, ¶ ¶ 37.
94. Id. ¶ 38
95. Id.
96. See Tenth Report on Reservations to Treaties by Mr. Alain Pellet, Special Rapporteur, Addendum; U.N. GAOR, I.L.C., 57th Sess., ¶ 166, U.N.Doc. A/CN.4/558/Add.2 (2005).
97. Id., see Annex, Text of Draft Guidelines on Reservations to Treaties Proposed in the Present Report. Note that this contains no reference to the intention of the reserving state.
98. The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (arts.74 & 45), Advisory Opinion OC-2 /82, 1982 INTER-AM. CT. H.R. (ser. A) No. 2, ¶ 29 (24 Sept.1982).
99. i Advisory Opinion on Reservations to the Genocide Convention, supra note 30, ¶ 21-22.
100. reland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A), ¶ 239 (1978)
101. Belilos, 132 Eur. Ct. H.R. ¶ 62.
102. The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (arts.74 & 45), Advisory Opinion OC-2 /82, 1982 INTER-AM. CT. H.R. (ser. A) No. 2, ¶ ¶ 2829 (24 Sept. 1982).
103. Temeltasch v. Switzerland, App. No. 9116/80, Eur. Comm'n H.R. 15 (5 May 1982) (Report of the Commission).
104. General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations Under Article 41 of the Covenant, supra note 57, ¶ 18.
105. Mr. Rawle Kennedy v. Trinidad and Tobago, Communication No. 845/1998, U.N. Doc. CCPR/C/74/D/845/1998 (2002).
106. It led to the state's withdrawal from the Optional Protocol altogether.
107. Report of the Human Rights Committee, U.N. GAOR, 50th Sess., Supp. No. 40, U.N. Doc. A/50/40, vol. I, at 127, 131 (1995).
108. Yearbook of the International Law Commission, 1997, vol. I., Summary Records of the Meetings of the Forty-Ninth Session, 12 May18 July 1997, ¶ 40, at 194.
109. Practice of Human Rights Treaty Bodies With Respect To Reservations to International Human Rights Treaties, supra note 56, ¶ ¶ 25, 28.
110. The title change was proposed by the Special Rapportuer and accepted by the members of the commission in its 1995 session, see the Yearbook of the International Law Commission, Vol. II U.N. Doc, A/CN.4/SER.A/1995/ Add.1 (Pt. 2), ¶ 434, at 103 (1995).
111. Report of the International Law Commission Fifty-Fifth Session General Assembly Official Records, Fifty-Eighth Session, Supplement No. 10 (A/58/ 10), Text of the draft guidelines on reservations to treaties provisionally adopted so far by the Commission, U.N. Doc. A/CN.4/ L.609/Add.2 (2001).
112. See for example, the Report of the International Law Commission on the work of its Forty-Ninth Session, supra note 35, ¶¶ 92156
113. Press Release GA/L/3055, Assembly's Legal Committee is told Law Commission should set up system to judge reservations to multilateral treaties, 5 Nov. 1997
114. Press Release GA/L/3307, Legal Committee hears call for meeting of Human Rights Experts on Issue of States Wishing to Enter Reservations to Treaties, 31 Oct. 2006.
115. For overview of the practice in the treaty bodies, see the numerous reports emerging from Professor Françoise Hampson's comprehensive study on reservations to human rights treaties. Hampson Final Working Paper, supra note 50
116. Practice of Human Rights Treaty Bodies With Respect To Reservations to International Human Rights Treaties supra note 56, at 56.
117. Consideration of Reports Submitted By States Parties Under Article 40 of the Covenant, Concluding observations of the Human Rights Committee, International Covenant on Civil and Political Rights, Human Rights Committee, 87th Sess., ¶ 6, U.N. Doc. CCPR/C/USA/CO/3 /Rev.1 (2006).
118. Practice of Human Rights Treaty Bodies With Respect To Reservations to International Human Rights Treaties, supra note 56, ¶ 12.
119. Report of the Meeting of the Working Group on Reservations, International Human Rights Instruments, Nineteenth Meeting of Chairpersons of the Human Rights Treaty Bodies, ¶ ¶ 12, 16, U.N. Doc. HRI/MC/2007/5/ (2007)
120. Report of the Meeting of the Working Group on Reservations, International Human Rights Instruments, U.N. Doc. HRI/MC/2007/5 (2007).
121. Harmonized Guidelines on Reporting Under the International Human Rights Treaties, Including Guidelines on a Common Core Document and Treaty-Specific Targeted Documents, Report of the Secretariat, International Human Rights Instruments, ¶ 45, U.N. Doc. HRI/MC/2005 /3 (2005).
122. Hampson Final Working Paper, supra note 50, at 19.
123. Hampson Final Working Paper, supra note 50, ¶ 71.
124. In a 1998 letter to the ILC, the Chairpersons of the Human Rights Treaty Bodies argued that the preliminary conclusions did not accord sufficient attention to the fact that human rights treaties, by virtue of their subject matter and their role, could not be placed on precisely the same footing as other treaties with different characteristics
125. see also Press Release, Committee On Elimination Of Racial Discrimination Discusses Reservations By States Parties To Human Rights Treaties (3 Aug. 2004) (on file with the author)
126. Hampson Final Working Paper, supra note 50, ¶ ¶ 63, 64.
127. Press Release, U.N. GAOR, Legal Committee Hears Call for Meeting of Human Rights Experts on Issue of States Wishing to Enter Reservations to Treaties (31 Oct. 2006), GA/L/3307.
128. Data about ASEAN states and their reservations to CEDAW, CRC and its two protocols, and objections thereto, was taken from the United Nations Treaty Collection, available at http://www.bayefsky.com.
129. The Chief of the Treaty Section argues there should be no legal consequences. See Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, United Nations Treaty Collection, ¶ 213
130. Palitha T.B. Kohona, Reservations: Discussion of Recent Developments in the Practice of the Secretary-General of the United Nations as Depositary of Multilateral Treaties, 33 GA J. INT'L & COMP. L. 415, 445 (20042005).
131. Belilos, 132 Eur. Ct. H.R. ¶ 49.
132. (1) The Republic of Singapore considers that a child's rights as defined in the Convention, in particular the rights defined in article 12 to 17, shall in accordance with articles 3 and 5 be exercised with respect for the authority of parents, schools and other persons who are entrusted with the care of the child and in the best interests of the child and in accordance with the customs, values and religions of Singapore's multi-racial and multi-religious society regarding the place of the child within and outside the family. (2) The Republic of Singapore considers that articles 19 and 37 of the Convention do not prohibit (a) the application of any prevailing measures prescribed by law for maintaining law and order in the Republic of Singapore; (b) measures and restrictions which are prescribed by law and which are necessary in the interests of national security, public safety, public order, the protection of public health or the protection of the rights and freedoms of others; or (c) the judicious application of corporal punishment in the best interest of the child.
133. Singapore's Reservation, supra note 22.
134. Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women, 85 AM J. INT'L L. 281, 307 (1991).
135. CEDAW General Recommendation No.4 (6th sess. 1987) 137 CEDAW General Recommendation No.20 (11th sess. 1992)
136. CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations (13th sess. 1994)
137. CEDAW General Recommendation No. 23 (16th sess. 1997).
138. CEDAW General Recommendation No. 4, Id., pmble.
139. Report of the Committee on the Elimination of Discrimination against Women, U.N. Doc. A/53/38/Rev.1, Ch. 1, ¶ 6 (1998).
140. CEDAW General Recommendation No. 21, supra note 103, ¶ ¶ 4244.
141. The Government of Brunei Darussalam expresses its reservations regarding those provisions of the said Convention that may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam, the official religion of Brunei Darussalam and, without prejudice to the generality of the said reservations, expresses its reservations regarding paragraph 2 of Article 9 and paragraph 1 of Article 29 of the Convention. Reservation to CEDAW, Brunei Darussalam, available at http://www2.ohchr.org/english/bodies/ratification/8.htm.
142. The original reservations read as follows: The Government of Malaysia declares that Malaysia's 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. With regards thereto, further, the Government of Malaysia does not consider itself bound by the provisions of articles 2 (f), 5 (a), 7 (b) 9 and 16 of the aforesaid Convention. In relation to article 11, Malaysia interprets the provisions of this article as a reference to the prohibition of discrimination on the basis of equality between men and women only. On 6 February 1998, the Government of Malaysia notified the Secretary-General of a partial withdrawal as follows: 1. ... 2. With respect to article 5 (a) of the Convention, the Government of Malaysia declares that the provision is subject to the Syariah law on the division of inherited property. 3. With respect to article 7 (b) of the Convention, the Government of Malaysia declares that the application of said article 7 (b) shall not affect appointment to certain public offices like the Mufti Syariah Court Judges, and the Imam which is in accordance with the provisions of the Islamic Shariah law. 4. With respect to article 9, paragraph2 of the Convention, the Government of Malaysia declares that its reservation will be reviewed if the Government amends the relevant law. 5. With respect to article 16.1 (a) and paragraph 2, the Government of Malaysia declares that under the Syariah law and the laws of Malaysia the age limit for marriage for women is sixteen and men is eighteen. The Government of Malaysia withdraws its reservation in respect of article 2(f), 9(1), 16(b), 16(d), 16(e) and 16(h)."
143. Reservation to CEDAW, Malaysia, available at http:/ /www2.ohchr.org/english/bodies/ratification/8.htm.
144. (1) In the context of Singapore 's multi-racial and multi-religious society and the need to respect the freedom of minorities to practise their religious and personal laws, the Republic of Singapore reserves the right not to apply the provisions of articles 2 and 16 where compliance with these provisions would be contrary to their religious or personal laws. (2) Singapore is geographically one of the smallest independent countries in the world and one of the most densely populated. The Republic of Singapore accordingly reserves the right to apply such laws and conditions governing the entry into, stay in, employment of and departure from its territory of those who do not have the right under the laws of Singapore to enter and remain indefinitely in Singapore and to the conferment, acquisitions and loss of citizenship of women who have acquired such citizenship by marriage and of children born outside Singapore. (3) Singapore interprets article 11, paragraph 1 in the light of the provisions of article 4, paragraph 2 as not precluding prohibitions, restrictions or conditions on the employment of women in certain areas, or on work done by them where this is considered necessary or desirable to protect the health and safety of women or the human foetus, including such prohibitions, restrictions or conditions imposed in consequence of other international obligations of Singapore and considers that legislation in respect of article 11 is unnecessary for the minority of women who do not fall within the ambit of Singapore's employment legislation. (4) The Republic of Singapore declares, in pursuance of article 29, paragraph 2 of the Convention that it will not be bound by the provisions of article 29, paragraph 1. Reservation to CEDAW, Singapore, available at http:// www2.ohchr.org/english/bodies/ratification/8_1.htm.
145. 1. In all matters which concern national security, maintenance of public order and service or employment in the military or paramilitary forces, the Royal Thai Government reserves its right to apply the provisions of the Convention on the Elimination of all Forms of discrimination against Women, in particular articles 7 and 10, only within the limits established by national laws regulations and practices. 2. With regard to article 9, paragraph 2, [ ... ] the Royal Thai Government considers that the application of the said provisions shall be subject to the limits and criteria established by national law, regulations and practices. 3. The Royal Thai Government does not consider itself bound by the provisions of [ ... ] article 16 and article 29, paragraph 1, of the Convention. On 25 January 1991, the Government of Thailand notified the Secretary-General of its decision to withdraw the reservations made upon accession to the extent that they apply to Article 11, ¶ 1 (b), Article 15, ¶ 3. Subsequently, on 26 October 1992, the government of Thailand notified the Secretary-General of its decision to withdraw one of the reservations made upon accession to the Convention, i.e., that relating to Article 9 (2), which reservation reads as follows: 2. With regard to article 9, paragraph 2, [ ... ] the Royal Thai Government considers that the application of the said provisions shall be subject to the limits and criteria established by national law, regulations and practices." Subsequently, on 1 August 1996, the Government of Thailand notified the Secretary-General of its decision to withdraw, as from that same date, the following reservation, made upon accession: 1. In all matters which concern national security, maintenance of public order and service or employment in the military or para military forces, the Royal Thai Government reserves its right to apply the provisions of the Convention on the Elimination of all Forms of Discrimination against Women, in particular articles 7 and 10, only within the limits established by national laws, regulations and practices.
146. Reservations to CEDAW, Thailand, available at http:/ /www.unhchr.ch/html/menu3/b/treaty9_asp.htm, see also note 50.
147. This objection relates to the partial withdrawal and modifications made by Malaysia on 6 Feb. 1998.
148. Denmark's comments with regard to the reservations made by Brunei Darussalam upon accession to CEDAW, (6 OCT. 2006), available at http://www2.ohchr.org/english/bodies/ratification/8_1.htm
149. In its Advisory Opinion on Reservations to the Genocide Convention, supra note 30, the majority did point out that states may object to reservations without claiming they are incompatible with its object and purpose; in such cases the treaty remains in force between the reserving and objecting States without the clauses affected by the reservation. Id., at 27.
150. Sweden's comment on Thailand's reservations to CEDAW, (17 Mar. 1986), available at http://www2.ohchr.org/english/bodies/ratification /8_1.htm
151. Combined Initial and Second Periodic Reports of States Parties: Malaysia, U.N. Doc. CEDAW/C/MYS/1-2 (12 Apr. 2004). The précis of the discussions between the state and the Committee are drawn from Malaysia Needs New Laws Aimed Specifically at Ending Discrimination on Basis of Sex, Gender, Say Committee's Expert Members, U.N. Doc. WOM/1562 (24 May 2006).
152. Concluding Comments on the Elimination of Discrimination against Women: Malaysia, U.N. Doc. CEDAW/C/MYS/CO/2, ¶ 10 (31 May 2006).
153. Initial Report of States Parties: Singapore, U.N. Doc. CEDAW/C /SGP/1 (18 Jan. 2000)
154. Second Periodic Report of States Parties: Singapore, U.N. Doc. CEDAW/C/SGP/2 (3 May 2001). The Committee considered the reports at its 514th,515th and 522nd meetings, on 9 and 13 july 2001. The précis of discussions between the state and the Committee is drawn from the record of proceedings in Singapore Delegates, Describing Compliance With Women's Convention, Say Account Must Be Taken Of Cultural Tradition, Need for Stability: Committee Chairperson Says Concern Remains Over 'Reservations' Which Contradict Letter and Spirit of International Agreement, U.N. Doc. WOM/1293 (13 Jul. 2001).
155. Report of the Committee on the Elimination of Discrimination against Women (24th and 25th Sess. 2001), U.N. GAOR, 56th Sess., Supp. No.38, ¶ ¶ 73, 74, U.N. Doc. A/56/38 (2001).
156. The précis of discussions between the state and the Committee is drawn from the record of proceedings in Committee Monitoring Compliance with Women's Anti-Discrimination Convention Takes Up Periodic Report of Thailand, U.N. Doc WOM/1531 (20 Jan. 2006).
157. Id. ¶ 4.
158. Concluding Comments of the Committee on the Elimination of Discrimination against Women: Thailand, U.N. Doc. CEDAW/C/THA/CO/5, ¶ 11 (3 Feb. 2006).
159. CRC, supra note 17, art. 51.
160. Vienna Declaration and Programme of Action, supra note 6, Pt. II, ¶ 5.
161. The Practice of Human Rights Treaty Bodies With Respect to Reservations to International Human Rights Treaties, Seventeenth meeting of chairpersons of the human right treaty bodies, Geneva, 2324 June 2005
162. Fourth Inter-Committee Meeting of the human rights treaty bodies, 2022 June 2005, U.N.Doc. HRI/MC/2005/5, 13 June 2005.
163. Vienna Declaration and Programme of Action, supra note 6, Pt. II, ¶ 5.
164. General Guidelines for Periodic Reports, U.N. Doc. CRC/C/58, ¶ 11 (20 Nov. 1996).
165. Schabas, supra note 34, at 488.
166. Practice of Human Rights Treaty Bodies With Respect To Reservations to International Human Rights Treaties, supra note 56, ¶ 12.
167. [The Government of Brunei Darussalam] expresses its reservations on the provisions of the said Convention which may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam, the State, religion, and without prejudice to the generality of the said reservations, in particular expresses its reservation on articles 14, 20 and 21 of the Convention.
168. The Government of Malaysia accepts the provisions of the Convention on the Rights of the Child but expresses reservations with respect to articles 1, 2, 7, 13, 14, 15, [ ... ], 28, [paragraph 1 (a)] 37, [ ... ] of the Convention and declares that the said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia.
169. Declarations: (1) The Republic of Singapore considers that a child's rights as defined in the Convention, in particular the rights defined in article 12 to 17, shall in accordance with articles 3 and 5 be exercised with respect for the authority of parents, schools and other persons who are entrusted with the care of the child and in the best interests of the child and in accordance with the customs, values and religions of Singapore's multi-racial and multi-religious society regarding the place of the child within and outside the family. (2) The Republic of Singapore considers that articles 19 and 37 of the Convention do not prohibit (a) the application of any prevailing measures prescribed by law for maintaining law and order in the Republic of Singapore; (b) measures and restrictions which are prescribed by law and which are necessary in the interests of national security, public safety, public order, the protection of public health or the protection of the rights and freedoms of others; or (c) the judicious application of corporal punishment in the best interest of the child. Reservations: (3) The Constitution and the laws of the Republic of Singapore provide adequate protection and fundamental rights and liberties in the best interests of the child. The accession to the Convention by the Republic of Singapore does not imply the acceptance of obligations going beyond the limits prescribed by the Constitution of the Republic of Singapore nor the acceptance of any obligation to introduce any right beyond those prescribed under the Constitution. (4) Singapore is geographically one of the smallest independent countries in the world and one of the most densely populated. The Republic of Singapore accordingly reserves the right to apply such legislation and conditions concerning the entry into, stay in and departure from the Republic of Singapore of those who do not or who no longer have the right under the laws of the Republic of Singapore, to enter and remain in the Republic of Singapore, and to the acquisition and possession of citizenship, as it may deem necessary from time to time and in accordance with the laws of the Republic of Singapore. (5) The employment legislation of the Republic of Singapore prohibits the employment of children below 12 years old and gives special protection to working children between the ages of 12 years and below the age of 16 years. The Republic of Singapore reserves the right to apply article 32 subject to such employment legislation. (6) With respect to article 28.1(a), the Republic of Singapore- (a) does not consider itself bound by the requirement to make primary education compulsory because such a measure is unnecessary in our social context where in practice virtually all children attend primary school; and (b) reserves the right to provide primary education free only to children who are citizens of Singapore.
170. Initial Reports of States Parties: Brunei Darussalam, U.N. Doc. CRC/C/61/Add.5 (20 Dec. 2001). The précis of the state's discussions with the Committee is taken from the record of proceedings in Press Release: UN Committee on the Rights of the Child Reviews Initial Report of Brunei Darussalam (25 Sept. 2003).
171. Committee on the Rights of the Child, 34th Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Brunei Darussalam, U.N. Doc. CRC/C/15/ Add.219, ¶ 4 (27 Oct. 2003).
172. The following summary of the discussions is drawn from the record of proceedings in the UN Committee on the Rights of the Child (CRC), UN Committee on the Rights of the Child: Concluding Observations, Malaysia, 25 June 2007, U.N. Doc. CRC/C/MYS/CO/1.
173. Committee on the Rights of the Child, 44th session, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Concluding Observations: Malaysia, U.N. Doc. CRC/C/MYS/CO/1, ¶ ¶ 1, 12 (25 June 2007).
174. Initial Report of Singapore, U.N. Doc. CRC/51/Add.8. The following summary of the proceedings is drawn from the record in Press Release, UN Committee on the Rights of the Child Considers Initial Report of Singapore (29 Sept. 2003).
175. Committee on the Rights of the Child, 34th session, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Concluding Observations: Singapore, U.N. Dec. CRC/C/15/Add.220 (27 Oct. 2003).
176. Committee on Rights of Child Considers Second Periodic Report of Thailand (in French) (24 Jan. 2006). The following précis was taken from the notes of the proceedings compiled by the NGO Group for the Convention on the Rights of the Child, available at http:// crin.org/docs/CRC41_Thailand.doc.
177. Committee on the Rights of the Child, 41st Session, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Concluding Observations: Thailand, U.N. Doc.CRC/C/THA/CO/2 (17 Mar. 2006).
178. See Todd Landman, Measuring Human Rights: Principle, Practice and Policy, 26 HUM. RTS. Q. 906 (2004).
179. Report of the Committee on the Elimination of Discrimination Against Women 18th, 19th Sess., UN CEDWA, U.N. Doc.A/53/38/Rev.1.
180. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L. J. 1935, 1940 (2002).
181. See Barcelona Traction, Light and Power Company, Limited, Second Phase, (Belgium v. Spain) Judgment, ICJ REPORTS 32, ¶ ¶ 3334 (5 Feb. 1970). 184 Also see comment on this in the Hampson Final Working Paper, supra note 50, ¶ 54.
182. Tenth Report on Reservations to Human Rights Treaties by Alain Pellet, Special Rapportuer, First Addendum, U.N. Doc.A/CN.4/558/ Add.1, 14 June 2005, ¶ ¶ 11646.
183. Id. ¶ 136.
184. Id. ¶ 135.
185. See Text of Draft Guidelines annexed to the Second Addendum of Tenth Report by Alain Pellet, supra note 51 at Guideline 3.1.8, 3.1.9, 3.1.10.
186. Hampson, Final Working Paper, supra note 50, ¶ 51.
187. Schabas, supra note 34, at 480.
188. See Report of the International Law Commission on the Work of its Forty-Ninth Session, supra note 35, ¶ 140.
189. See Text of Draft Guidelines annexed to the Second Addendum of Tenth Report by Alain Pellet, supra note 51, Guideline 3.1.7.
190. It should be noted that some of the objecting states have themselves resorted to reservations, so their objections are not rooted in a belief that there should be no reservations to human rights treaties. For instance, Austria, Germany, and the Netherlands made reservations to CRC.
191. Rosalyn Higgins, The United Nations: Still a Force for Peace, 52 MODERN L. REV. 1, 1112 (1989).
192. Yogesh Tyagi, The Conflict of Law and Policy on Reservations to Human Rights Treaties, 71 BRITISH Y.B. INT'L L. 181, 215 (2000).
193. ILC, Report on the Work of Its 48th Session, 6 May-26 July 1996, ¶ 55
194. see also First Report of the Special Rapporteur, ¶ ¶ 96115.
195. See observations of the United Kingdom on General Comment No. 24, United Kingdom's Observations, Report of the Human Rights Committee, GAOR, 50th Session (1995), Supp. No. 40, U.N. Doc.A/50 /40, that incompatible reservations fall outside the scope of Articles 20 and 21 entirely, available at http://www.un.org/documents/ga/docs /50/plenary/a50-40.htm.
196. This practice can be traced back to the Geneva Conventions of 1949. Hampson Final Working Paper, supra note 50, ¶ ¶ 16, 17
197. see also Id. ¶ 30, for consideration of the reasons behind the active Western European and Others group in lodging objections
198. See Klabbers, supra note 46.
199. Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 INT'L ORG. 887 (1998)
200. FREE MARKETS AND SOCIAL JUSTICE (Cass R. Sunstein ed., 1997).
201. Vitit Muntarbhorn, Co-Chair of the Working Group for an ASEAN Human Rights Mechanism, argues that the "value-added" of an ASEAN commission on women and children would be to nurture regional responses to issues pertaining to the rights of women and children and lift the standards of states' behavior in these areas, see Report of the Expert Meeting on the Establishment of an ASEAN Commission for the Promotion and Protection of the Rights of Women and Children, supra note 14, at 2.
202. Cambodia, Thailand, Malaysia, Singapore, and Indonesia have all had or are having disputes heard by the International Court of Justice. The number rises to six if one considers the Philippines' attempt to intervene in the Sipadan-Ligitan dispute.
203. The CRC optional protocols are not sufficiently supported to warrant their inclusion at this stage, but given that several of these states have allowed the right of individual petition to treaty monitoring bodies, an optional complaints assessment function is possible.
204. Such a treaty would prohibit reservations or it could fall under Article 20(2) of the Vienna Convention, under which reservations must be accepted by all the parties, because the limited number of negotiating states and the object and purpose of the treaty requires its application in its entirety between all the parties as an essential condition of the consent of each one to be bound by the treaty.