CEDAW permits ratification with reservations if these reservations are not incompatible with the object and purpose of the Convention. All the States in this Index have entered reservations or maintained declarations to some articles of the Convention, except Palestine. The reservations are on key elements of the convention, including the steps to be taken to eliminate discrimination, particularly article 2, and the primacy of the existing family laws, personal status laws, and personal status code4, particularly articles 9, 15, and 16. By entering these reservations, the States indicate that they would not commit to equality between women and men and would not change discriminative laws and policies on substantive issues for women, to which they were reserving, such as nationality (article 9), domicile (article 15(4)), and equality in marriage and dissolution (article 16).
Article 2 provides the basic requirement to examine and change State constitutions, laws, policies, and institutions to eliminate discrimination against women and to abolish discriminatory “traditions and practices”. Two countries in the Index, Algeria, and Egypt have entered reservations to article 2, although their national constitutions or laws prohibit discrimination. There is therefore a conflict between the reservation to the Convention and the provisions of the States´ constitutions.
Also, Morocco and Tunisia maintain a declaration to article 2. Morocco stated that the government is ready to apply the provisions of this article as long as these do not conflict with the constitutional provisions regulating the laws of succession to the Moroccan throne and the Islamic Sharia. Tunisia declared that it shall not take any organizational or legislative decision in conformity with the requirements of this Convention where such a decision would conflict with the provisions of Chapter I of the Tunisian Constitution.
Jordan and Lebanon still have reservations to article 9 (2), relating to the right to pass nationality to one’s children. Reservation to this article poses difficulties to the children, their mothers, and families, as it may result in the exclusion of the child from opportunities in education, from health care, or hinder the child to be with other family members. It also poses problems to women to travel out of the country with their children without proof of the father´s permission, even if they have their own passports.
Algeria has reservations to article 15(4), which refers to the freedom of movement and equality in the choice of domicile. Reservation to this article limits in practice women’s opportunities for education and employment. As the choice of domicile is still one of the husbands or male head of household, this makes women subject to male authority and leaves them without power and legal capacity, nor any options outside the family, to negotiate this fundamental aspect of family life.
Algeria, Egypt, Jordan, and Lebanon have reservations to article 16 paragraph 1, which refers to equality in marriage and dissolution of marriage. The reservation to this article signals the States´ unwillingness to recognize women as competent and equal adults within the family. This is critical to women’s ability to care for themselves and for their children. If women do not have equal decision-making power, equal access to the resources of the household, and equal inheritance rights, they can be left without means of subsistence upon divorce or death of the husband. While Algeria, Egypt, Jordan, Palestine allow polygamy in their family laws and personal status laws, the CEDAW Committee affirmed in 1994 that polygamy is an in their family laws and personal status laws, the CEDAW Committee affirmed in 1994 that polygamy is a violation of women’s human rights under article 165. In Lebanon, polygamy is allowed for Muslims, and in Morocco, polygamy is allowed with more restrictions, stipulated by approval from a judge.
Palestine ratified CEDAW without reservations. However, both personal status laws applied in the West Bank and Gaza Strip still discriminate against women on the issues relating to the articles 2, 15, and 16, such as freedom of domicile and equality in marriage and dissolution.
All countries included in the index, except for Jordan and Palestine, have entered reservations to article 29 relating to the administration of the Convention and arbitration, which grants the International Court of Justice jurisdiction over disputes related to the implementation of treaty provisions6.
These reservations, as clearly declared by the CEDAW Committee, are contrary to the object and purpose of the Convention, and therefore invalid. Consequently, they would not allow the State parties to avoid implementation. As CEDAW requires State parties to pursue both formal and de facto equality, the CEDAW Committee has indicated that formal equality, as stated in constitutions, laws, and administrative regulations, is fundamental to the achievement of de facto equality.
Withdrawal of reservations, therefore, affirms the States´ commitment to equality between women and men, indicates their progress towards improving the status of women de facto, and recognizes the efforts of women’s rights advocates.
4The denomination Family Law is used in Algeria, Personal Status Law in Egypt, Jordan, and Palestine, Family Code in Morocco, and Personal Status Code in Tunisia.
5Equality in marriage and family relations (Thirteenth session, 1992), U.N. Doc. A/49/38 at 1 (1994).
6The Oxford Handbook of United Nations treaties, 2019, P259.
