CLASS 9 (March 26): OBLIGATIONS UNDER INTERNATIONAL LAW

[1:00] Housekeeping
PapersRough drafts are due April 9
See your doctor ASAPvaccines, malaria pills, etc. LC will pay for non-routine
vaccines. I will email a list of cities you should be prepared to travel to.
New passports copies for those I emailed (Estelle, Dana, Jennifer)
Flights: 1,092.40. Id like to book this week. Please tell me ASAP your travel
plans.
Rewriting interview questionsI will assign (by email) which you should
rewrite.
Crowley teams
Brian: Erica, Taka, Estelle
Joey: Alex, Jen
Liz: Guillermo, Tessa, Dana
Project Cities: Dhaka, Chittagong, Sylhet, Mymensigh, Kulna, Rangpur
Project Focus: access to justice for rights violations against the LGBT community
Introduction
Today we are finishing up Part II of the syllabus, which was intended to give an overview
of Bangladesh from a variety of perspectives in preparation for our trip in May. Nayma
came in and talked about Bangladeshs history, politics, and culture. We discussed some
current human rights issues in Bangladesh, and then looked at Bangladeshs domestic
legal system. Today we will consider its obligations under international law.
[1:10] Lets start with the excerpt from INTERNATIONAL LAW by JAN KLABBERS and
a review of some principles of international law. What are reservations? Where are
the principles related to reservations contained?
reservation means 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 to modify the legal effect of certain
provisions of the treaty in their application to that State
Vienna Convention on the Law of Treaties
Bangladesh is not a party to the VCLTare the principles there
applicable to it? Yes; the VCLT principles are mostly recognized as
customary law.
Are reservations to a treaty always permissible? Noa treaty can prohibit them. E.g.,
Rome Statute of ICC (article 120).
If a treaty is silent on reservations, what does this mean? Reservations are permissible
as long as compatible w/ object and purpose of treaty.

If a state makes a reservation, what can other states parties do?

1) express acceptance (rare)
2) silence for 12 months = consent
o Are there any problems with inferring consent from silence? Could
just mean didnt have time to considerHave you heard that
Icelands legal department recently doubled in size? Oh has it? Yes,
from one to two lawyers.
3) Object but allow treaty to come in force = reservation is valid
4) Object and do not allow treaty to come into force
o problematic for treaties which require unified system---human rights,
commons (law of the sea)
Do the main human treaties allow, prohibit, or say nothing about reservations?
ICCPR & ICESCRsilent
CEDAW (Art. 28), CRC (Art. 51), CRPD (Art. 46)allows reservations if
compatible with object and purpose of treaty
[1:20] So all of these treaties (including the ones silent on reservations) use the
object and purpose test. Who determines the object and purpose of a treaty and
whether a proposed reservation is compatible with it?
Ongoing discussion about this
States parties through objections
Treaty Monitoring Bodiesbut criticized by some, as these bodies cannot
issue binding judgments (but only make recommendations)
What would be a way to clarify this? Write a solution into the treaty. CERD
provides a specific test: A reservation incompatible with the object and
purpose of this Convention shall not be permitted . . . . A reservation shall be
considered incompatible or inhibitive if at least two thirds of the States Parties
to this Convention object to it.
[1:25] Lets look specifically at Bangladeshs treaty obligations, focusing on gender
equality. When Bangladesh acceded to ICESCR, what did it say?
Declarations: Articles 2 and 3: The Government of the People's Republic of
Bangladesh will implement articles 2 and 3 in so far as they relate to equality
between man and woman, in accordance with the relevant provisions of its
Constitution and in particular, in respect to certain aspects of economic rights
viz. law of inheritance.
What do ICESCR Articles 2 and 3 require?
Article 2: undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race,
colour, sex . . .
Article 3: undertake to ensure the equal right of men and women to the
enjoyment of all economic, social and cultural rights set forth in the present
Covenant

What did other countries say about this?

Declarations are really reservations (b/c change legal obligations)
Raise doubts about the commitment of Bangladesh to object and purpose of
the treaty.
contribute to undermining the basis of international treaty law (Netherlands)
Object to reservations, but they do not preclude entry into force
What effect do the objections have? No legal effect (b/c they allowed treaty
to come into force)
What did the CESCR say about such reservations? (Concluding Observations on
Kuwait)
Reservations to articles 2(2) and 3 negate the core purposes and objectives of
the Covenant
Not clear that the Committee has the power to make authoritative
declarations. Practical effect: state can expect a dialogue with Committee
and other UN bodies on this.
[1:35] What did Bangladesh say when it acceded to CEDAW?
does not consider as binding upon itself the provisions of articles 2, 13 (a) and
16 (1) (c) and (f) as they conflict with Sharia law based on Holy Quran and
Sunna. [Sunna = living example of the Prophet Mohammad; an
interpretive aid to Quran]
What do these articles require?
o article 2 = modify or abolish discriminatory laws, regulations, customs
and practices, etc.
o article 13(a) = equality in family benefits, bank loans/financial credit,
participation in recreational activities, sports and all aspects of cultural
life.
o 16(1)(c) = same rights and responsibilities during marriage and at its
dissolution
o 16(1)(f) = same rights and responsibilities with regard to guardianship,
wardship, trusteeship and adoption of children
What did other countries say?
incompatible w/ object and purposewould result in discrimination
object, but does not prevent entry into force
What did CEDAW Committee say?
Article 2 is central to the object and purpose of Convention ( 16)
Reservations to Art. 16, whether lodged for national, traditional, religious or
cultural reasons, are incompatible with the Convention and therefore
impermissible

[1:45] Is the current system of reservations/objections effective in

promoting a treatys values? (Marsha Freedman vs. CEDAW
Committee)
Yes (Marsha Freeman): By allowing states to sign up with reservations, we
promote the values of the treaty even if states cant agree to every provision.
States can withdraw reservations over time with pressure from other states and
treaty monitoring bodies. Example: Bangladesh was unable to agree to
certain provisions but wanted to remain in the conversationreserved
CEDAW article 2, but it submitted reports that included information
required by article 2. CEDAW Committee reviewed and engaged in
dialogue. Bangladesh also withdrew the reservations to Articles 13(a) and
16(1)(f) in 1994. Also: Egypt withdrew reservation to CEDAW 9(2)
(nationality of children). Malaysia withdrew reservation to CEDAW 2(f)
and modified reservations to 5(a), 7(b), and 16. In 2004, Morocco changed
family laws to be less discriminatory.
No (CEDAW Committee): Reservations affects efficacy of Convention
indicate unwillingness to comply to accepts norm and ensure equality not
entrenched at national level. Perpetuate myth of womens inferiority.
Damages integrity of treatywe are allowing states to be parties without
making any commitment at all. Example: Bangladesh wants to avoid real
commitmentstill has reservations to CEDAW Article 2 (why is this
problematic? covers implementation: changing laws & customs, private
discrimination) and Article 16(c) (equality in marriage and dissolution).
o But: is it better to allow states to be realistic and reserve provision
then sign up for treaty and not implement? A number of African states
have ratified CEDAW w/o reservations but have highly discriminatory
customs/laws (Marsha Freeman article).
o Should states object to reservations to Article 2 and not allow the
treaty to come into force?

[2:00] Over th e cou rs e of th e s emes ter, w eve talk ed ab ou t S h aria law

s everal times . For th e cu ltu ral relativis m clas s , w e read an article
d efen d in g d is crimin atory d ivorce law s in th e n ame of cu ltu re an d
religion . Wh en w e look ed at Ban glad es h s d omes tic law , w e read h ow
religiou s law s (in clu d in g S h aria) can trap w omen in ab u s ive marriages
an d leave th em p oor after a s ep aration or d ivorce. Tod ay w eve talk ed
ab ou t Ban glad es h s S h aria-b as ed res ervation s to treaty p rovis ion s
th at p rotect again s t certain forms of gen d er d is crimin ation . I t s eems
th at every time w eve talk ed ab ou t S h aria, its b een in th e con text of
p ittin g it again s t h u man righ ts . I th in k its imp ortan t to rememb er
th at th es e are n ot th e on ly in terp retation s of I s lam or th e on ly voices
s p eak in g on th is is s u e. How w ou ld D r. A yes h a I mam res p on d to
Ban glad es h s S h aria b as ed res ervation s ? How d oes h er view p oin t
d iffer from s ome of th e articles w e read earlier ab ou t S h aria (Kimb erly
Y ou n ce S ch ooley from C las s 2, for examp le)?
Sharia not divine, but product of human reasoning.
o oldest schools of Sharia did not exist until decades after Prophets
death
o Most laws not in Quran--prescription of stoning as a punishment for
adultery, is not mentioned in the Quran
o Sharia evolvesdont use eye for an eye anymore or slavery
o Founding scholars of schools of Sharia not infallibleI may be
wrong and I may be right
Gender Sharia based on mostly male interpretations of Divine revelation
Large differences in interpretations/schools, including on womens rights
o Requiring marriage guardians vs. not (fathers right to determine the
husband of never-married daughters)
o Maliki schoola right to divorce on demand, regardless of husbands
consent (not in Bangladesh)
o Polygamysome say conditions are impossible to fulfill and therefore
that polygamy should be banned
Use of religion for political gain
o Focus on morality is on personal rights and the control of sexuality,
not embezzlement and corruption or prohibiting interest and loan
sharking
o Bangladeshsecular Awami League vs. Jamaat-e-Islami/BNP
[2:15] How might Kimb erly Y ou n ce S ch ooley criticize D r. I mam's
view p oin t?
Product of the West
Dr. Imam: Sociology degree in London, masters in Nigeria. PhD at the School
of African and Asian Studies at the University of Sussex at Brighton (UK).
Over the past 20 years, she has been a researcher and lecturer in universities
and research institutions in Nigeria, the United Kingdom, Canada, and
Senegal
5

the Gender Policy Advisor for the United Nations Institute for Economic
Development and Planning in Senegal and the Head of the Department of
Culture, Gender and Human Rights at the United Nations Fund for
Development (UNFPA) in New York
Is this a fair criticism? Or True Scotsman fallacy?

Estellecould religion be used to advance the rights of sexual minorities . . . ?

Explain.
Dangers of this? (Westerners using Islam without appreciation of local
beliefs)
Finding way to contextualize advocacy, especially in non-western countries
we will talk about in two classes.
[2:25] Bangladesh has signed a number of the core human rights treaties. But its
important that we understand to what extent these treaties are useful for domestic
advocacy. Can someone summarize the chapter from the Dinah Shelton book
(INTERNATIONAL LAW AND DOMESTIC LEGAL SYSTEMS ch. 4)?
Must incorporate international agreements within domestic law in order for
them to be given effect. Yet most international treaties ratified by BD have not
been incorporated into domestic law.
Where international law conflicts w/ domestic law, domestic law wins. But
courts should draw attention of lawmakers to inconsistency (Supreme Court
has done this)
Courts use treaties as aid in interpreting Constitution Part III, particularly
rights implicit in it but not enumerated, like right to life, liberty
Supreme Court re: CRC---But sadly, the international instruments are rarely,
if at all, implemented.
If domestic laws are not clear enough or there is nothing therein, the national
courts should draw upon the principles incorporated into the international
instruments
How is this different from Nepal? (Nepal 1990 Treaty Act 9)
Treaty (that has been ratified, acceded to, accepted, or approved by the
Parliament) automatically invalidates conflicting domestic law
Why would a state choose to make the treaty one way or the other? Could this
influence a States willingness to become party to treaties?
If treaties have immediate impact in domestic law, states might be less willing
to sign up?
[2:453:00] BREAK
[3:00] Video: Call me Salma (53 minutes)
Next week, we are going to talk about human rights violations against the
LGBT community in Bangladesh. As an introduction, we are going to
watch a documentary on the hijra community there. As you watch it,
6

think about what rights are implicated, and be ready to discuss them next
week.