Análisis de Capital

We shall now move on to our illustrative analysis, as described in the preceding chapter. It will be recalled that our aim is primarily to illustrate how an approach to the cultural relativist question through examining subsequent practice would work in practice, and demonstrate how it can be used to provide a framework in which to answer some of the questions raised by the East Asian Challenge in particular. The aim, that is, is somewhat more modest than resolving once and for all the question of how societal or national cultural mores and traditions are permitted to affect the manner in which human rights treaty

provisions are interpreted; rather, the aim is to provide a method for tackling the manner in which such questions might be resolved in future.

The procedure will involve analysing three selected case studies, which are, respectively, the reporting histories of Singapore, Malaysia, and Indonesia, under the Convention for the Elimination of all forms of Discrimination Against Women.

The case studies will proceed as follows. First, the reporting histories of Singapore, Malaysia and Indonesia are surveyed. This involves making some general remarks about the reporting histories of those States under the CEDAW, establishing their general character and the core issues to be discussed. This is followed by an overview of their reporting histories, surveying primarily the Concluding Comments and State Reports – as the

documents containing authentic interpretive practice – but also including, where necessary, the summary records of the constructive dialogue and the lists of issues and responses in order to discern agreement. The aim is not to catalogue the entirety of each Report and set of Concluding Comments, but to identify areas in which it might either explicitly or implicitly

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be argued that socio-cultural factors ought to, or ought not to, affect how provisions of the Convention are implemented. The aim is not, of course, to attempt to identify socio-cultural issues in sophisticated terms from a sociological perspective: a layman’s approach, taking into consideration what the treaty bodies and States Parties seem to view as relevant, as well as the broader discourse surrounding Asian values, will suffice for the purpose of this illustrative analysis. That is, although it has been clearly established, in Chapter I of the thesis, that “Asian values” is a contested term, without consensus surrounding its meaning, it is not our aim to discover that meaning through an examination of the reports, nor to problematize the manner in which it is used either by the CEDAW Committee or the States Parties. Our aim, rather, is to attempt to understand how far anything that might be construed as an Asian value could be used as a justification for the manner and extent to which a treaty provision is implemented. This means we shall take as naïve and broad a view of Asian values as possible, including all of those factors mentioned in our précis of the literature provided in the first Chapter of the thesis. Then, once this overview has been completed, an examination of it is conducted in order to establish which instances of interpretive practice satisfy the Step 1 requirement for being authentically interpretive, and then to discuss what would be needed for them to meet the Step 2 and 3 requirements.

The discussion of the Step 2 and 3 requirements is necessarily limited, for reasons which have already been explained. However, to the extent possible, once authentic interpretive practice satisfying the Step 1 requirement has been identified, an attempt is made to establish whether it is given commonly, concordantly and consistently by reviewing the Concluding Observations given to the reports of other States Parties. And since there is also a great deal of interplay between General Recommendations and Concluding

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is, if it transpires that the Committee gives a Concluding Observation that offers a different interpretation to that given in one of its General Recommendations, this would clearly prevent the interpretive practice meeting the Step 2 requirement – and vice versa), by necessity, General Recommendations will comprise part of this analysis.

We are thereby able to make some tentative remarks in each instance about whether the authentic interpretations identified satisfy the standards set out within the WTO

jurisprudence and by Sir Ian Sinclair. However, because of the nature of assessing fulfilment of the Step 3 requirement, this is not attempted except insofar as disagreement can be identified within the responses of Singapore, Malaysia and Indonesia alone.

Finally, after completion of the survey of the reporting histories of our three subject States, we shall make some remarks about various issues that arise from our illustrative analysis and that are tangential to it.

At this stage, it must also be reiterated that, irrespective of the results of this analysis, its purpose is not to evaluate the effectiveness or otherwise of the reporting procedure to treaty bodies in general, nor the CEDAW Committee in particular. The

effectiveness of the reporting procedure in achieving greater compliance with human rights treaties and improving the lot of the citizens of States is an issue entirely separate to the legal question of to what extent treaty provisions are interpreted to permit implementation that is sensitive to Asian values or national/societal values and traditions.