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III. KUWAIT'S RESERVATIONS TO THE ICCPR

When it ratified the ICCPR in 1996, Kuwait entered two "interpretative declarations" and one "reservation" to the terms of the Covenant. These sought to justify its continued application of national laws that discriminate on the basis of sex or religion. In effect, all three statements are reservations to the terms of the treaty, and this is the position of the Human Rights Committee, which has declared that "if a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation."15

Kuwait entered its reservations in regard to articles 2(1), 3, 23, and 25(b) of the ICCPR. With respect to articles 2(1) and 3, Kuwait asserted that "Although the Government of Kuwait endorses the worthy principles embodied in these two articles as consistent with the provisions of the Kuwait Constitution in general and of its article 29 in particular, the rights to which the articles refer must be exercised within the limits set by Kuwaiti law." This reservation goes to the heart of the Covenant, as articles 2 and 3 are the ICCPR's first line of protection against discrimination. Article 2(1) requires all states parties to the ICCPR to respect and ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the Covenant, "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Article 3 requires all states parties to ensure that men and women are equally able to enjoy the civil and political rights set forth in the treaty.

Kuwait's reservation to article 23 also seeks to provide an opt out when the guarantees contained in the ICCPR conflict with Kuwaiti laws that discriminate on the basis of sex or religion. The reservation asserts "The Government of Kuwait declares that the matters addressed by article 23 are governed by personal-status law, which is based on Islamic law. Where the provisions of that article conflict with Kuwaiti law, Kuwait will apply its national law." As we detail below, Kuwait's personal status and nationality laws contain numerous provisions which discriminate on the basis of sex, and Kuwaiti law and practice frequently limit the freedom of women to marry and live with non-Kuwaiti men. Consequently, they contravene article 23 of the ICCPR, which states:

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Finally, Kuwait's reservation to article 25(b) seeks to restrict the Covenant's right of citizens to vote and to be elected, making it subject to provisions in Kuwaiti law that bar women from voting and standing for office and severely limit the rights of naturalized citizens.16 The reservation asserts:

The Government of Kuwait wishes to formulate a reservation with regard to article 25(b).The provisions of this paragraph conflict with the Kuwaiti electoral law, which restricts the right to stand and vote in elections to males. It further declares that the provisions of the article shall not apply to members of the armed forces or the police.

Yet, the text of article 25(b) explicitly prohibits restriction of the right to vote and to be elected on the basis of discrimination prohibited in article 2 of the Covenant:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: [....]
b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors [....]

All Kuwait's reservations are subject to the principle, formalized in the Vienna Convention on the Law of Treaties, that a state may not formulate a reservation to a treaty if "the reservation is incompatible with the object and purpose of the treaty."17 The Human Rights Committee provides authoritative interpretations of the provisions of the ICCPR, which are codified in its General Comments. The Committee stated in General Comment 24 that:

The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken. Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant.18

In applying the object and purpose test, the Committee has specified that it is unacceptable for states to enter "a reservation to the obligation to respect and ensure the rights [of the Covenant], and to do so on a non-discriminatory basis (article 2(1)). Nor may a State reserve an entitlement not to take the necessary steps at the domestic level to give effect to the rights of the Covenant (article 2(2))." 19 Thus, Kuwait's reservation regarding the prohibitions of discrimination contained in article 2(1) and article 3 is prima facie unacceptable. The Committee recently made this clear, in its Concluding Observations on Kuwait's first periodic report, stating: "the interpretative declaration regarding articles 2 and 3 contravenes the State party's essential obligations under the Covenant and is therefore without legal effect and does not affect the powers of the Committee." 20

All of Kuwait's reservations fail to meet other important conditions on reservations to the ICCPR. The Human Rights Committee has stated that "reservations must be specific and transparent," and "should not systematically reduce the obligations undertaken only to those presently existing in less demanding standards of domestic law," or "seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only in so far as they are identical, with existing provisions of domestic law."21

Kuwait's "interpretative declarations" and reservation are incompatible with the object and purpose of the ICCPR. They offend the peremptory norm of non-discrimination in enforcement and enjoyment of the rights of the Covenant, lack specificity, and systematically reduce Kuwait's obligations to the less demanding standards of its own domestic law. If allowed to stand they would effectively deny Kuwaiti women, Bidun, and non-Muslims their ability to invoke the full rights which are due to them under the Covenant, and set a dangerous precedent for future attempts to restrict fundamental rights guaranteed in the ICCPR and other human rights instruments.

15 U.N. Human Rights Committee General Comment 24, Fifty-second Session, 1994, (hereafter General Comment 24), para. 3.

16 These provisions are discussed in Chapter V of this report.

17 States are also prohibited from entering reservations when (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made. Vienna Convention on the Law of Treaties, May 23 1969 (entry into force January 27, 1980), article 19.

18 General Comment 24 paras. 7, 8.

19 General Comment 24 para. 9.

20 Concluding Observations, para. 4.

21 General Comment 24, para. 19.

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