Reservations to Human Rights Treaties and the Diversity Paradigm: Examining Islamic Reservations

Abstract

This research is a critique of the universalist theory of international human rights treaty law through an analysis of Islamic reservations to four major human rights treaties i.e., Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT).

Based on my analysis of international treaty law on reservations and State practice relating to reservations to human rights treaties, I have argued that universalist claims of human rights treaties are more of an idea than an established norm.

To this effect, I have examined the concept of reservations under international law as contained in the Vienna Convention on the Law of Treaties 1969 (VCLT) and evaluated its applicability to international human rights treaties. In Chapter Two I have contended, firstly, that the VCLT provides a flexible regime for making reservations to treaties and that it does not differentiate between contractual treaties and normative human rights treaties. Secondly, I have argued that the flexible nature of the VCLT regime confirms that international treaty law supports a diversity paradigm which brings together dissimilar consent, particularly in the case of human rights treaties.

In Chapter Three I have scrutinised the theoretical debate on the nature of human rights that centres on whether they are universal, relative or pluralist. I have shown that the natural law theories and other transcendentalist justifications of universality of human rights have no cross-cultural validity. I have also pointed out that a posteriori justifications such as minimalist universality, overlapping consensus and relative universality theories are impractical because they attempt to derive a lowest common denominator which diminishes the efficacy of international human rights regimes. In comparison to such universalist theories, alternative human rights theories espouse more inclusive and cross-culturally legitimate approaches. However, I have submitted that theories of cultural relativism provide inadequate explanations of the pluralist State practice in the area of international human rights treaties. In particular, the thick relativist theories fail to explain the existing level of cultural participation in the international human rights regimes. In practice, States parties from different cultural-legal systems cooperate in international and regional human rights regimes through a diversity paradigm that offers pluralist consent on the various normative standards.

I have shown that the legitimacy of the diversity paradigm is evident from the State practice of making reservations to human rights treaties. My critique of the reservations made by Islamic States to CEDAW, CRC, ICCPR and CAT, identifies on the one hand, the particular normative conflicts between these regimes and Shari`ah, and on the other hand, the connection between the issues raised in these reservations and the domestic laws of the reserving Islamic States. This examination is important for two reasons: firstly, it demonstrates the extent to which the Shari`ah-based reservations are actually legitimate within the cultural-legal system of the reserving States, and secondly, it helps in understanding the level of juridical flexibility that is available in these reservations.

This thesis establishes that the practice of making reservations to international human rights regimes runs counter to theories of ontological universality of human rights. In the case of Shari`ah-based reservations, it reveals that Islamic States are reluctant to forfeit or bargain on certain precepts of Islamic law that are perceived to contradict normative human rights such as absolute freedom of religion and same rights of married spouses. At the same time, it suggests that Islamic States accept the large majority of human rights norms, and make exceptions to only a few select human rights. In addition, the thesis also proposes that the flexible reservations regime of the VCLT provides an effective mechanism for the Islamic States to engage and participate in international human rights treaties, in spite of the reservations.

The principal contribution of this study is that it provides a hermeneutic tool - the diversity paradigm - for understanding the plurality of human rights treaty law. I have established that international treaty law on reservations and State practice of making reservations to human rights treaties confirm the existence and validity of a diversity paradigm in the current human rights discourse. The diversity paradigm approach can play a constructive role in delineating the ontological or philosophical argument for the universality of human rights and the actual State practice of committing to and implementing human rights treaties. With the help of this hermeneutic tool I have established that a flexible, international treaty law based approach to human rights treaties is more effective in the propagation of human rights norms in diverse cultural-legal environments as noted in this case study of the reservations to human rights treaties made by Islamic States.