Cultural Relativism for Universality of Human Rights

Cultural Relativism for Universality of Human Rights
The Case of Reservations to Human Rights Treaties
by
Milica Subotić
Center for Interdisciplinary Postgraduate Studies
University of Sarajevo / University of Bologna
10 th of April, 2005.

Abstract
Until October 2004, over ninety per cent of all United Nations Members have became State
Parties to the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW). On the other hand, the CEDAW has the highest number of
entered reservations of all the major international human rights treaties
adopted under the auspices of the UN. Almost all States with strong Islamic
tradition and States with great number of Muslim population had entered
reservations. High number of reservations reflects a more fundamental conflict that is not
only related to women’s human rights law, but also for international human rights law theory
and practice. It is a conflict between the idea of universalism of human rights and cultural
relativism on the other hand. However, even though such reservations are not permitted under
the Vienna Convention on the Law of Treaties, I argue that they represent a strong instrument
for spreading and promoting the recognition of the universality of human rights. If
universality of human rights means universal recognition of pluralism and difference, the
mechanism of reservations may be the way of engagement of all cultural traditions in the
process of promoting and sustaining human rights. Otherwise, demand for full adherence and
excluding of all reservations leads to an elitist treaty with only a few state parties.

Introduction
Until October 2004, over ninety per cent of all UN Members have became State
Parties to the Convention on the Elimination of All Forms of Discrimination
against Women. 1 On the other hand, the CEDAW has the highest number of entered
reservations of all the major international human rights treaties adopted
under the auspices of the UN. Almost all States with strong Islamic
tradition and States with great number of Muslim population had entered
reservations. Some States have entered reservations directly invoking Sharia law, while
some others based them on the codification of Sharia as a domestic family law. High number
of reservations reflects a more fundamental conflict that is not only related to women’s human
rights law, but also for international human rights law theory and practice. It is a conflict
between the idea of universalism of human rights and cultural relativism on the other hand.
In this essay I will argue that some of the reservations to the CEDAW that invoke
Islamic law are incompatible with the object and purpose of the Convention. They undermine
its main goals, which are elimination of all forms of discrimination against women and
equality between men and women. However, my main argument will be that even though
such reservations are not permitted under the Vienna Convention on the Law of Treaties, they
do represent a strong instrument for spreading and promoting the recognition of the
universality of human rights. 2
This essay will involve an analysis of the reservations as an instrument, reservations
made on human rights treaties in general and reservations made to the CEDAW invoking
Sharia Law. Firstly, I study the rules of the law of treaties on reservations in order to see if
and how these rules can be applied to reservations to human rights treaties. Secondly, I
discuss some reservations to the CEDAW, with respect to the VCLT in order to determine
their validity. Thirdly, I will examine the conflict between the intended universalism of the
CEDAW and cultural relativism in Muslim States that made reservations.
I. General Principles of International Law Governing Treaty Reservations and their
Permissibility to Human Rights Treaties
1.1. The Law Applicable to Reservations
1 Adopted by the General Assembly in 1979 and come into force in 1981, hereafter: CEDAW
2 Adopted on the Vienna Conference in 1969 and came into force in 1980, hereafter: VCLT

After tremendous changes in the international society since 1945, the primary sources
of modern international law have become multilateral law-making treaties. Initially,
international treaties were either part of customary international law, or they belonged to the
general principles of law. Today the rules governing international treaties are codified in the
VCLT. Malnczuk has noticed that the importance of the VLCT lies in the fact that most of its
provisions attempt to codify the customary law relating to treaties, although there are other
provisions which represent a “progressive development” rather than a codification of the law. 3
According to Lijnzaad reservations to human rights treaties as multilateral law-making
treaties are a relatively new problem in international law 4 . Moreover, Ruda's believes that the
question of reservations has been one of the most controversial subjects of contemporary
international law. 5 The question is why is that so?
Traditionally, a reservation made subsequent to the conclusion of a treaty requires the
unanimous acceptance of all the other treaty parties, unless the treaty provides differently. 6
However, a view advancing the importance and desirability of widespread participation in
treaties, especially human rights treaties, gained currency. This led to the recognition of the
need to evolve a flexible system whereby consent of all contracting States to reservations
entered by co-contractants was not considered essential. The Genocide case marks the first
major departure from the unanimity rule and thus an important crossroad in the development
of contemporary theory on reservations to multilateral treaties. 7 It has found that the
traditional theory could not be applied to the Genocide Convention, which sought to protect
individuals, instead of conferring reciprocal rights on the contracting parties. 8 The
International Court of Justice ruled that the object and purpose of the Convention limit the
freedom of making reservations and that of objecting to them. This rule along with other legal
principles concerning the effect of reservations was later codified in the VCLT and as
3 th
Malnczuk, P., Akehurst’s Modern Introduction to International law, 7 revised ed., Routledge 1997
4
She argued that while it has been possible to find solutions to the question of reservations in the customary law
of treaties, the issue of reservations to human rights treaties only appeared when international law turned its
attention to the protection of individuals; Lijnzaad, L., RESERVATIONS TO UN-HUMAN RIGHTS TREATIES:
RATIFY AND RUIN? Dordrecht/Boston/London, Martiuns Nijhoff Publishers, 1995
5
Ruda J.D., cited by Lijnzaad, L., RESERVATIONS TO UN-HUMAN RIGHTS TREATIES: RATIFY AND
RUIN? Dordrecht/Boston/London, Martiuns Nijhoff Publishers, 1995
6
On this basis a reservation constituted a counter-offer that required a new acceptance, failing which the state
making the counter-offer would not become a party to the treaty. According to Bronville, this view rest on
contractual conception of the absolute integrity of the treaty as adopted.
7
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide ICJ Reports, 1951,
p15,
8
The International Court of Justice declared that “ an objection to a minor reservation” should not have the
effect of invalidating the ratification. It looks like a majority opinion in the ICJ has tried to achieve an adequate
balance between the objectives of preservation of the integrity of the text of the treaty and universality of
participation in the treaty. (Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide ICJ Reports , 1951, p15. cited by Lijnzaad, L., RESERVATIONS TO UN-HUMAN RIGHTS
TREATIES: RATIFY AND RUIN? Dordrecht/Boston/London, Martiuns Nijhoff Publishers, 1995

Lijnzaad has noticed become a yardstick for dealing with issues of reservations to human
right treaties. 9
In the article 2.1 (d) of the VCLT, a reservation is defined as “a unilateral statement,
however phrased or named, made by a State when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain
provisions of the treaty in their application to that State”. Article 19 of the VCLT indicates the
general liberty to formulate a reservation and then states three exceptions. Exception
prescribed in sub-paragraph (c) of article 19 has caused many controversial opinions; it reads
that reservations are impermissible if “incompatible with the object and purpose of the
treaty”. Furthermore, a flexible and in “favor treaty” system concerning reservations is laid
down in article 20 which deals with acceptance of reservations. 10 Similarly, the rule regulating
States objections to reservations could be considered in context of the above mentioned
“progressive development”. A fact that objection do not preclude the entry into force of the
treaty between the reserving State and objecting State, unless a contrary intention is definitely
expressed by objecting State (article 20.4.b.) is the compliment to flexible system, in which
the treaty is in the force in different modes between various states.
1.2. The “Object and Purpose” of Human Rights Treaties
Before embarking on the legal aspects of reservations to human rights treaties we may
say that many authors have tried to find out what could be the main reasons for making
reservations on human rights treaties. 11
Lijnzaad argued that article 19 (c) is a necessary rule, designed to prevent States, when
expressing consent to be bound, from undermining the very raison d’etre of the treaty by
making reservations incompatible with the object and the propose of the treaty. The majority
9 Lijnzaad, L., RESERVATIONS TO UN-HUMAN RIGHTS TREATIES: RATIFY AND RUIN?
Dordrecht/Boston/London, Martiuns Nijhoff Publishers, 1995
10 Acceptance of all States parties is not required, as the treaty enters into force between reserving State and each
State that accepts reservation; rule of tacit acceptance article 20 (5), means that States who do not accept a
reservations will have to object
11 According to Lijnzaad, position of developing countries may lead to reservations, prompted by the lack of
financial means that makes it impossible to attain a particular goal set in human rights treaty. (Lijnzaad,
Liesbeth, RESERVATIONS TO UN-HUMAN RIGHTS TREATIES: RATIFY AND RUIN?
Dordrecht/Boston/London, Martiuns Nijhoff Publishers, 1995). Also, as Cooccia has noted, a number of
reservations are directly related to the problems foreseen at the implementation of the human right treaty in the
domestic legal order. In giving rules meant to govern the relationship between the state and the individuals under
its jurisdiction, collision between these rules and preexisting domestic rules may occur.(Coocia,M, cited br
Lijnzaad, L., RESERVATIONS TO UN-HUMAN RIGHTS TREATIES: RATIFY AND RUIN?
Dordrecht/Boston/London, Martiuns Nijhoff Publishers, 1995) Another mentioned reason for making
reservations is uncertainty of the obligations accepted under of treaty. (Cook, R. J, Reservations to the
Convention on the Elimination of All Forms of Discrimination Against Women, 30 VIRGINIA JOURNAL OF
INTERNATIONAL LAW, 643-709 1990)

of human rights treaties concluded after the VCLT either contained express clauses on
reservations referring to the VCLT or reproducing its criteria of the “object and purpose” of
the treaty. Still, none of these treaties including the VCLT does not give an answer to the
question what "object and purpose" are or give some potential methods for its determination.
According to Bronwille the “compatibility” test is the least objectionable solution but is by no
means an ideal regime and many problems remain. 12 Cook states that tests are objective and
justiciable and do not turn simply on whether other States parties have expressly or tacitly
accepted a particular reservation or have objected to it. 13 However, Clark and majority of
writers point out that it appears that although the standard is intended to be an objective one, it
is subjectively applied; compatibility is assessed by the sole judgement of every other State
party. 14
Also, it could be said that the "object and purpose" presume the option of
distinguishing between “obligations in the treaty” and the “core” obligations that are the
treaty’s raison d’etre. But, many writers noticed that there are no rules available as to show
how this should be done. 15
II. Reservations to the CEDAW
2.1. Brief Overview of the CEDAW
As Cook has noted, the CEDAW is an international instrument universal in reach,
comprehensive in scope and legally binding in character. 16 The Preamble is referring to the
equal rights of men and women, but it also recognizes the need to go beyond and address
factors which will help to destroy not just de iure but also de facto inequality.
Article 1 defines discrimination against women. Commentators (Cook,
Coomaraswamy) have stressed the consequence of this definition as it expressly addresses the
traditional distinction between public and private spheres. 17 Liberal theory of the minimal
12 Brownile, I., Principles of Public International Law, Oxford University Press, 2003.
13 Cook, R. J, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women,
30 VIRGINIA JOURNAL OF INTERNATIONAL LAW, 643-709,1990
14 Clark, B.The Vienna Convention Reservations Regime and the Convention on
Discrimination Against Women , American Journal of International Law, 1991
15 Cook suggests that one way of addressing the issue in respect of the non-discrimination treaties, would be to
look at the area in which the core of discrimination lies. (Cook, R. J, Reservations to the Convention on the
Elimination of All Forms of Discrimination Against Women) On the other side, Lijnzzad has noticed that those
divisions are contrary to the view that human rights norms are coherent set of rules protecting the fundamental
freedoms of people and reduce the authority of non-core rights. (Lijnzaad, L, RESERVATIONS TO UN-
HUMAN RIGHTS TREATIES: RATIFY AND RUIN?)
16 Cook, R.J, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women,
30 VIRGINIA JOURNAL OF INTERNATIONAL LAW, 643-709,1990
17 “Women's issues are frequently treated as "beyond justice" simply because they take place on the private side
of the schism between the public and private spheres.” Cook, Rebecca J, Reservations to the Convention on the

state and a fear of state monopoly of private life contributed to the rigid dichotomy between
the public and the private, a dichotomy that until recently was the unshakable foundation of
international law in general, and international human rights, in particular. Article 2 refers to
effect as well as purpose, thus directing attention to the consequences of governmental
measures as well as the intentions underlying them. Article 5 obligates States parties to do no
less than to modify the conduct pattern of its citizens. According to Mullally, the traditional
justification of denying human rights to women on the basis of established customs and
practices is thus directly challenged and rendered unacceptable. The private sphere can no
longer be conceptualized as one of the freedoms.
2.2. Permissibility of the “Islamic” Reservations to the CEDAW
Many of the states that have become parties to the CEDAW have been unwilling to
accept the full scope of obligations and in accordance with article 28 they have entered
reservations to one or more articles. Article 28 of the CEDAW adopts the impermissibility
principle contained in the VCLT. Butegwa writes that what is insightful is that some of the
States entered reservations on articles they purport to accept in the context of other human
rights instruments. 18
A subject that deserves special attention are reservations referring to overriding
importance of the Sharia law. 19 Articles 2, 9, and 16 (either in full or partially) have attracted
most attention. As mentioned in Chapter I, the CEDAW does not contain a specific criterion
as to what the “object and purpose” is. The question is are the “Islamic” reservations
compatible with the CEDEW most important goals - elimination of all forms of
discrimination against women and establishing de iure and de facto equality between men and
women?
Elimination of All Forms of Discrimination Against Women, 30 VIRGINIA JOURNAL OF INTERNATIONAL
LAW, 643-709 (1990)
"A revolution has taken place in the last decade. Women's rights have been catapulted onto human rights agenda
with a speed and determination that has rarely been matched in international law." Radhika Coomaraswamy,
Reinventing International Law: Women's Rights as Human Rights in the International Community,Harvard Law
School Human Rights Program, 1997., http://www.law.harvard.edu/programs/HRP/Publications/radhika.html
18 Butegwa F., International Human Rights Law and Practice: Implications for Women, 1998
19 Islamic tradition consist of one of the following sources: the Qur'an or the Book of Revelation; Sunnah or the
practical traditions of the Prophet Muhammad; Hadith or the oral sayings attributed to the Prophet Muhammad;
Fiqh (Jurisprudence) or Madahib (Schools of Law); and the Shari'ah or code of law which regulates the diverse
aspects of a Muslim's life. These "sources" have contributed to what is cumulatively referred to as "the Islamic
tradition". Rifat H., Rights of women Within Islamic Communities ed.John.Write, Jr. Religios Human Rights in
Global perspectine, Dordrecht/Boston/London, Martiuns Nijhoff Publishers, 1996

In order to give an answer to this question, firstly I will try to give a brief overview of
modern Islamic tradition concerning women. 20 Commonly, focus of the Sharia has always
been in matters of personal status, including marriage, divorce, child custody, maintenance,
succession, legal capacity. Generally it could be said that the women are considered inferior
to men, and have fewer rights and responsibilities, simply man and women are not equal,
especially in family matters. As Gieryck has noticed the Sharia law is based on the principle
of male guardianship over women. 21
For example, Rifat states that Muslim societies have made divorce extremely difficult
for women, both legally and trough social penalties, nationality of the children, possibility of
repudiation (unilateral separation) of women by her husband, etc. 22 If we know that lots of
discrimination against women takes place in their own home by their husbands and families,
we may consider that obligations of the State arose from the article 16 of the CEDAW,
concerning the equality in all matters relating to marriage and family life is the one of the
“core” obligations. 23 Most of the “Islamic” States entered reservations on this article invoking
Sharia law. These reservations purport to limit the parties' core obligation, and in accordance
with the Article 28 are not permitted.
III. Demonstration of Cultural Relativism through Reservations to Human Rights
Treaties
3.1. Universality of Human Rights and Reservations to Human Rights Treaties
Although human rights are embodied in treaties drafted within the framework of the
UN, the issue is whether their validity is based on universal ethical or moral beliefs. The idea
that all humans have inalienable and universal human rights was a driving force in creating
the UN System by signing the 1945 Charter. The UDHR of 1948 has a central role in
establishing the contours of the contemporary consensus on internationally recognized human
rights. 24 The Vienna Declaration and Program of Action (1993) boldly asserts that the
20 Many writers make difference between Islam theory and practice. Elmadmad states that it can be explained in
terms of the different ways the Islamic sects and schools have been interpreting the Qur'anic proclamations
concerning women. Elmadmad, K, Women’ Rights under Islam, Human right of Women: International
Instruments and African experiences, ed. by Wolfgang Benedek, Zed Books 2002
21 Gieryck D., Women’ Rights under Islam, Human right of Women: International Instruments and African
experiences, ed. by Wolfgang Benedek, Zed Books 2002)
22 Rifat H., Rights of women Within Islamic Communities ed.John.Write, Jr. Religios Human Rigts in Global
perspectine, Dordrecht/Boston/London, Martiuns Nijhoff Publishers, 1996
23 There are number of suggestions about the answer what the “core” obligations are. Majority of writers (Cook,
Lijnzardd) but also CEDAW Committee believes that Articles 2, 9 and 16 are “core” articles of the Convention.
24 Article 1 of the Declaration of Human Rights states: "All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards one another in a spirit of
brotherhood.

universal nature of human rights is beyond question. 25 According to Alston the fact that
various human rights instruments have been drafted within the framework of the UN and have
been widely ratified is a proof for the existence of universally shared values. 26
However, if we look into the first two Chapters of this essay it could be concluded that
although a large majority of the States may be formally bound by a treaty, entering
reservations on some provisions allows for parties not to be equally binding, thus substantive
rights will not be available for all individuals. It could be said that universal adherence to
human rights treaties, with many reservations is just a formal universality of human rights and
human rights law. In the analysis of reservations to the CEDAW invoking the Sharia law we
saw that these reservations have deep roots in different cultural and religious beliefs. Having
in mind that these reservations undermine the main goals of the treaty, one could ask is it
possible to speak about universality of human rights. Therefore, the question to be asked is:
are the present internationally recognized standards of human rights legitimate on the
universal level?
3.2. Universalism vs. Cultural Relativism
However, a concept of universality of human rights has become one of the
cornerstones of the international human rights framework. There exists a very well known
debate between the two ideas, the idea of universalism of human rights and of cultural
relativism. As Ignatieff points out, the cultural provocation to the universality of human rights
arises from three distinct sources: from resurgent Islam, from within the West itself, and from
East Asia. 27 Each of these challenges is independent of the others, but taken together, they
have raised some questions about the validity and the legitimacy of human rights norms.
Referring to the Saudi Arabia objection to article 16, relating to free marriage choice
of the UDHR Ignatieff writes that the challenge from Islam has been there from the
beginning. 28 Today some scholars from Islamic countries argue that human rights discourse is
not universal but a product of the European Enlightenment and its particular cultural
development. 29 The freedoms articulated in the UDHR make no sense within the theocratic
bias of Islamic thought. Governments in many Islamic countries often underscore this view
25 Article 1 of Vienna Declaration and Programme of Action, adopted by the World Conference on Human
Rights on 25 June 1993.
26
Alston, P, Is Universality in jeopardy?, The United Nations and the elliptical notion of the universality of
human rights, UNDPI, New York, 1987
27
Ignatieff, M., THE ATTACK ON HUMAN RIGHTS,:, Foreign Affairs, 00157120, Nov/Dec2001, Vol. 80, Issue
6
28 Ignatieff, M., THE ATTACK ON HUMAN RIGHTS,:, Foreign Affairs, 00157120, Nov/Dec2001, Vol. 80, Issue
6
29 Baderin M., International Human Rights and Islamic Law, Oxford University Press, 2002

with particular respect to women's rights. Women are often seen as a symbol of a particular
cultural order, as icons of cultural purity. In Western theory, the “attack” on the idea of
universality of human rights firstly has come from Pollis and Schwab, who see human rights
as a Western construct of limited applicability. 30 The third objection has came from Asian
countries and can be summarized in words of Singapore’s Senior Minister Lee Kuan Yew
who has said that Asians have "little doubt that a society with communitarian values where
the interests of society take precedence over that of the individual suits them better than the
individualism of America."
Many universalists do not deny cultural relativity. The relativist critique has given rise
to a new appreciation of the need for greater cultural sensitivity, including the need to develop
more adequate cross-cultural foundations for the development of modern theories of human
rights. Human rights thinkers are trying to find out what is the foundation of principles of
universalism embodied in the UDHR. Some of them argue that universalism is rooted in
tradition of tolerance and universality in different cultures and religion from around the
world. 31 Parekh points out that concepts of justice and law, the legitimacy of government, the
dignity of the individual, protection from oppressive or arbitrary rule are found in every
society and those values are embedded in all human societies. 32 Sen suggests that in
identifying the historical antecedents of the idea of human rights we should seek those
elements that are consistent with and supportive and not the non-consistent ones. 33
On the contrary, Donnelly claims that the foundation and source is human nature and
rights are needed not for life but for life of dignity. 34 He argues that Western theory and
practice has a central role in the social construction of dominant international human rights.
Furthermore, he writes that international consensus on the system of human rights rooted in
the UDHR is so-called Rawlsian idea of “overlapping consensus” which means a practical
normative consensus on political and legal justice in a pluralistic society. 35
30 Pollis, A., Peter S., “Human Rights and Western construct with Limited applicability”, New York:Praeger
1980, cited by Donnelly, Jack, Universal Human Rights, 2 n ed. Cornell University Press 2003
31 See Kushalani, Y., Human Rights in Asia and Africa, Human Rights Law Journal No.4, 1983, Parekh,
Rethinking Multiculturalism, Macmillan Press Ltd.2000
32 Bhikhu Parekh, Rethinking Multiculturalism, Macmillan Press Ltd.2000
33 As an example she investigates Confucianism and suggest that certain elements within
Confucious’ Analects which are not consistent with international human rights standards does
not undermine the validity of other consistant elements, Sen,
34 Donnelly, Jack, Universal Human Rights, 2 n ed. Cornell University Press 2003
35 Whereas comprehensive philosophical or religious doctrines are unlikely to get general support in pluralistic
societies, the concept of political justice is defined by Rawls as entailing only limited normative demand on
certain norms that ought to govern human behavior. Donnelly, Jack, Universal Human Rights, 2 n ed. Cornell
University Press 2003

Many authors (An-Na'im, Basarudin, Rifat) claim that the problem between Islam and
the idea of universal legitimacy of human rights lay in misinterpretation of the Qur’an and the
Islamic tradition, which originally recognize equality and women’s rights. They all suggest an
internal dialog within Muslim society that could solve this problem.
Having all this in mind, the universality of human rights does not mean the global
imposition of a certain set of Western values, but instead, aims at the universal recognition of
pluralism and difference – different religions, cultures, political convictions, ways of life –
insofar as such difference expresses the deep potential of human existence and the dignity of
the person. To be sure, pluralism and difference apply also to the concept of human rights
which itself remains open and must be open to different and conflicting interpretations in
pluralistic and multicultural world.
Conclusion
Undoubtedly, the issue of “Islamic” reservations to the core obligation to the CEDAW
will remain one of the most interesting topics in the human right theory and practice. The
majority of these reservations are incompatible with the ‘object and purpose’ of the treaty.
They highlight the tension between the universally adopted women’s human rights and
religious and customary law in Islamic States. Moreover, they could serve as the evidence that
the universally recognized standards relating to women’s rights can not be universally
accepted.
However, one can say that by reserving their position regarding the “core” articles we
could bring into question the “good faith” of such States because they do not get any
additional obligations by becoming party to the CEDAW on such terms. In accordance with
the VCLT these reservations are not permissible. Unlike the “contractual” treaty, in the
human rights treaties real beneficiaries are individuals and other State Parties have no selfinterest
to make an objection in accordance with provisions laid down in the VCLT. The
“flexible” approach is a compromise between the two tasks, universal adherence to human
rights treaties from one side and the principle of integrity of the treaty from the other side.
So, do reservations lead to universal participation in human right treaties? As already
mentioned, if universality of human rights means universal recognition of pluralism and
difference, the mechanism of reservations may be the way of engagement of all cultural
traditions in the process of promoting and sustaining human rights. Otherwise, demand for
full adherence and excluding of all reservations leads to an elitist treaty with only a few state

parties. As An-Na’im claims, the latter it is better than “all-or-nothing” approach to the
relationship between local culture and international human rights standards. 36
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Customary Law, ed. Cook Rebecca J, Human rights of Women: National and International Perspectives,
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