MALAYSIA

CEDAW

RESERVATIONS AND DECLARATIONS

(Unless otherwise indicated, the reservations and declarations were made upon ratification, accession or succession)

Reservations:

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 ... 9(2), 16(1)(a), 16(1)(f) and 16(1)(g) 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.

Note

On 6 February 1998, the Government of Malaysia notified the Secretary-General of a partial withdrawal as follows:

“The Government of Malaysia withdraws its reservation in respect of article 2(f), 9(1), 16(b), 16(d), 16(e) and 16(h).”

The same date, the Government of Malaysia notified the Secretary-General that it had decided to modify its reservation made upon accession as follows:

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.

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 Shariah Court Judges, and the Imam which is in accordance with the provisions of the Islamic Shariah law.

With respect to article 9, paragraph 2 of the Convention, the Government of Malaysia declares that its reservation will be reviewed if the Government amends the relevant law.

With respect to article 16.1 (a) and paragraph 2, the Government of Malaysia declares that under the Shariah law and the laws of Malaysia the age limit for marriage for women is sixteen and men is eighteen."

In keeping with the depositary practice followed in similar cases, the Secretary-General proposed to receive the modification in question for deposit in the absence of any objection on the part of any of the Contracting States, either to the deposit itself or to the procedure envisaged, within a period of 90 days from the date of its notification (21 April 1998), that is to say, on 20 July 1998.

In this regard, on the dates indicated below, the Secretary-General received from the Governments of France and the Netherlands the following communications relating to the said partial withdrawal.

France (20 July 1998:)

France considers that the reservation made by Malaysia, as expressed in the partial withdrawal and modifications made by Malaysia on 6 February 1998, is incompatible with the object and purpose of the Convention. France therefore objects to the [reservation].

This objection shall not otherwise affect the entry into force of the Convention between France and Malaysia.

Consequently, the modification in question is not accepted, the Government of France having objected thereto.

Netherlands (21 July 1998):

"The Government of the Kingdom of the Netherlands has examined the modification of the reservations made by Malaysia to article 5(a) and 16.1. (a) and paragraph 2 of the [Convention].

The Government of the Kingdom of the Netherlands acknowledges that Malaysia has specified these reservations, made at the time of its accession to the Convention. Nevertheless the Government of the Kingdom of the Netherlands wishes to declare that it assumes that Malaysia will ensure implementation of the rights enshrined in the above articles and will strive to bring its relevant national legislation into conformity with the obligations imposed by the Convention. This declaration shall not preclude the entry into force of the Convention between the Kingdom of the Netherlands and Malaysia."

(Note 36, Chapter IV.8, Multilateral Treaties Deposited with the Secretary-General)

*****

Note

On 19 July 2010, the Government of Malaysia, notified the following:

"... , the Government of Malaysia, [...] withdraws its reservations in respect of articles 5 (a), 7 (b) and 16 (2) of the Convention; ... ."

The previous reservation reads 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 [5(a), 7(b), 9(2), 16(1)(a), (c), (f), (g), (h), and 16(2)] 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.

(Note 70, Chapter IV.8, Multilateral Treaties Deposited with the Secretary-General)

OBJECTIONS MADE TO STATE PARTY’S RESERVATIONS AND DECLARATIONS

(Unless otherwise indicated, the objections were made upon ratification, accession or succession)

Austria, 24 June 2011

With regard to the reservations made by Malaysia upon accession:

“The Government of Austria has examined the modification of the reservations made by Malaysia to the Convention on the Elimination of All Forms of Discrimination against Women as notified on 19 July 2010.

In the view of Austria a reservation should clearly define for the other States Parties to the Convention the extent to which the reserving State has accepted the obligations of the Convention. A reservation which consists of a general reference to constitutional provisions and Islamic Sharia law without specifying its implications does not do so. The Government of Austria therefore objects to this general reservation.

The Government of Austria further finds that the reservations to articles 9 (2), 16 (1) a, 16 (1) f and 16 (1) g, if put into practice, would inevitably result in discrimination against women on the basis of sex. This is contrary to the object and purpose of the Convention. The Government of Austria therefore objects to these reservations.

This position, however, does not affect the application of the Convention in its entirety between Austria and Malaysia.”

*****

Finland, 16 October 1996

With regard to the reservations made by Malaysia upon accession:

"The reservations made by Malaysia, consisting of a general reference to religious and national law without specifying the contents thereof and without stating unequivocally the provisions the legal effect of which may be excluded or modified, do not clearly define to the other Parties of the Convention the extent to which the reserving State commits itself to the Convention and therefore creates serious doubts about the commitment of the reserving State to fulfill its obligations under the Convention. Reservations of such unspecified nature may contribute to undermining the basis of international human rights treaties.

The Government of Finland also recalls that the reservations of Malaysia are subject to the general principles of observance of treaties according to which a party may not invoke the provisions of its internal law as justification for failure to perform its treaty obligations. It is in the common interest of States that Parties to international treaties are prepared to take the necessary legislative changes in order to fulfil the object and purpose of the treaty.

Furthermore, the reservations made by Malaysia, in particular to articles 2 (f) and 5 (a), are two fundamental provisions of the Convention the implementation of which is essential to fulfilling its object and purpose.

The Government of Finland considers that in their present formulation the reservations made by Malaysia are clearly incompatible with the object and purpose of the said Convention and therefore inadmissible under article 28, paragraph 2, of the said Convention. In view of the above, the Government of Finland objects to these reservations and notes that they are devoid of legal effect."

*****

Germany

The Federal Republic of Germany considers that the reservations made by Egypt regarding article 2, article 9, paragraph 2, and article 16, by Bangladesh regarding article 2, article 13 (a) and article 16, paragraph 1 (c), and (f), by Brazil regarding article 15, paragraph 4, and article 16, paragraph 1 (a), (c), (g) and (h), by Jamaica regarding article 9, paragraph 2, by the Republic of Korea regarding article 9 and article 16, paragraph 1 (c), (d), (f) and (g), and by Mauritius regarding article 11, paragraph 1 (b) and (d), and article 16, paragraph 1 (g), are incompatible with the object and purpose of the Convention (article 28, paragraph 2) and therefore objects to them. In relation to the Federal Republic of Germany, they may not be invoked in support of a legal practice which does not pay due regard to the legal status afforded to women and children in the Federal Republic of Germany in conformity with the above-mentioned articles of the Convention. This objection shall not preclude the entry into force of the Convention as between Egypt, Bangladesh, Brazil, Jamaica, the Republic of Korea, Mauritius and the Federal Republic of Germany.

Objections of the same nature were also formulated by the Government of the Federal Republic of Germany in regard to reservations made by various states, as follows:

...

vii) 8 October 1996: In respect of the reservations made by Malaysia.

...

*****

Netherlands, 15 October 1996

With regard to the reservations made by Malaysia upon accession:

"The Government of the Kingdom of the Netherlands considers ... that such reservations, which seeks to limit the responsibilities of the reserving State under the Convention by invoking the general principles of national law and the Constitution, may raise doubts as to the commitment of this State to the object and purpose of the Convention and, moreover contribute to undermining the basis of international treaty law. It is in the common interest of States that treaties to which they have chosen to become parties should be respected, as to object and purpose, by all parties.

The Government of the Kingdom of the Netherlands further considers that the reservations made by Malaysia regarding article 2 (f), article 5 (a), article 9 and article 16 of the Convention are incompatible with the object and purpose of the Convention.

The Government of the Kingdom of the Netherlands therefore objects to the above-mentioned reservations. This objection shall not preclude the entry into force of the Convention between the Kingdom of the Netherlands and Malaysia."

*****

Norway, 16 October 1996

With regard to the reservations made by Malaysia upon accession:

"In the view of the Government of Norway, a statement by which a State Party purports to limit its responsibilities under the Convention by invoking general principles of internal or religious law may create doubts about the commitment of the reserving State to the object and purpose of the Convention and, moreover, contribute to undermining the basis of international treaty law. Under well-established international treaty law, a State is not permitted to invoke internal law as justification for its failure to perform its treaty obligations. Furthermore, the Government of Norway considers that reservation made by the Government of Malaysia with respect to certain specific provisions of the Convention is so extensive as to be contrary to the object and purpose of the Convention, and thus not permitted under article 28, paragraph 2, of the Convention. For theses reasons, the Government of Norway objects to the reservations made by the Government of Malaysia.

The Government of Norway does not consider this objection to preclude the entry into force of the Convention between the Kingdom of Norway and Malaysia."

Note

...

...[O]n 12 February 1997, the Secretary-General received from the Government of Denmark the following communication with regard to reservations made by Kuwait upon ratification:

"The Government of Denmark finds that the said reservations are covering central provisions of the Convention. Furthermore it is a general principle of international law that internal law may not be invoked as justification for failure to perform treaty obligations. The Government of Denmark finds that the reservations are incompatible with the object and purpose of the Convention and accordingly inadmissible and without effect under international law. Consequently, the Government of Denmark objects to these reservations.

It is the opinion of the Government of Denmark that no time limit applies to objections against reservations, which are inadmissible under international law.

The Convention remains in force in its entirety between Kuwait and Denmark.

The Government of Denmark recommends the Government of Kuwait to reconsider its reservations to the [said] Convention."

On that same date, the Secretary-General also received from the Government of Denmark, communications, identical in essence, mutatis mutandis, as the one made for Kuwait, with regard to reservations made by Lesotho upon ratification ...and Malaysia (see also note 44 [ed. note, see below])...

(Note 31, Chapter IV.8, Multilateral Treaties Deposited with the Secretary-General)

*****

Note

On 25 October 1996, the Secretary-General received from the Government of Sweden, the following communication regarding reservations made by Malaysia upon accession:

[Same text, mutatis mutandis, as the one made under "Objections".]

[Ed. note: as follows:

17 March 1986

"The Government of Sweden considers that [the following reservations] are incompatible with the object and purpose of the Convention (article 28, paragraph 2) and therefore objects to them:

...

Indeed the reservations in question, if put into practice, would inevitably result in discrimination against women on the basis of sex, which is contrary to everything the Convention stands for. It should also be borne in mind that the principles of the equal rights of men and women and of non-discrimination on the basis of sex are set forth in the Charter of the United Nations as one of its purposes, in the Universal Declaration of Human Rights of 1948 and in various multilateral instruments, to which Thailand, Tunisia and Bangladesh are parties.

...

In this context the Government of Sweden wishes to take this opportunity to make the observation that the reason why reservations incompatible with the object and purpose of a treaty are not acceptable is precisely that otherwise they would render a basic international obligation of a contractual nature meaningless. Incompatible reservations, made in respect of the Convention on the elimination of all forms of discrimination against women, do not only cast doubts on the commitments of the reserving states to the objects and purpose of this Convention, but moreover, contribute to undermine the basis of international contractual law. It is in the common interest of states that treaties to which they have chosen to become parties also are respected, as to object and purpose, by other parties."]

(Note 56, Chapter IV.8, Multilateral Treaties Deposited with the Secretary-General)

*****

(Ed. note: for other objections, see note under Reservations and Declarations, above)