Statements do not Suffice, Concrete Steps are Needed
The Turkish president’s decision to withdraw from the İstanbul Convention raises several very important questions of international law that need to be duly addressed by the international community, especially the Council of Europe members and organs. The move sets a dangerous precedent not only for Turkey, but the other European States.
On 20 March 2021 and the days following, many thousands of women took to the streets to protest President Erdoğan’s midnight decision to ‘withdraw’ from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (İstanbul Convention). They faced, once more, an excessive response from the police. Nonetheless, women’s rights organisations, the LGBTI+ community, and human rights groups, have continued their protests to overturn the decision. Several bar associations, among others, have brought an appeal to the Council of State challenging the ‘constitutionality’ of the president’s decision.
The decision to withdraw came as a final blow to the women and girls of the country who have long faced serious issues of domestic and other forms of violence as well as femicide, without the support of genuine policies of protection or a properly functioning judicial system. Many perpetrators have gone unpunished as a result.
This decision to withdraw from the İstanbul Convention forms only one piece of Turkey’s poor human rights record, which can easily be described as at its worst point in decades. The developments since 2 March 2021 alone, the date President Erdoğan announced the government’s so-called ‘human rights action plan’, clearly demonstrate the seriousness of the situation. On 18 March 2021, the chief public prosecutor of the Supreme Court filed a case with the Constitutional Court requesting the closure of the People’s Democratic Party (HDP), the pro-Kurdish political party. On 17 March 2021, a prominent human rights defender and MP from HDP, Mr. Ömer Faruk Gergerlioğlu, was stripped of his MP status. Four days later, Gergerlioğlu was taken into custody by police on the parliament premises. On 19 March 2021, the co-president of the Human Rights Association (İHD), Mr. Öztürk Türkdoğan, was detained. Both were released from custody. The president’s decision to withdraw from the Convention followed these events, which together are clear signs that respect for human rights and rule of law of the country is subsiding dramatically by the day.
The international community reacted to the president’s decision with several statements, including from the United Nations, the Council of Europe (CoE), and the European Union (EU). Each expressed concerns, regrets, and disappointments and asked Turkey (the president in other words) to reconsider this decision. However, no evaluation has been made on the ‘legal effect’ of the decision by these institutions, nor by state parties to the İstanbul Convention.
As a result, calls to the international community from within the country to give the issue more rigorous attention are becoming louder. The plea is clear: ‘International and regional institutions, human rights mechanisms, individual countries must review their policies on Turkey thoroughly and take a firmer stance to address these actions.’
The president’s decision raises several very important international law questions that need to be duly addressed by state parties to the İstanbul Convention and the Council of Europe as the regional institution, under which the İstanbul Convention had been drafted and adopted.
An initial set of matters to be highlighted and discussed may be articulated as below:
1- What are the rules governing states’ withdrawal from international human rights treaties? Why should state parties to the İstanbul Convention, and especially the CoE organs and, formally respond to the notification from the Turkish president’s office?
Article 80 of the İstanbul Convention permits any parties to the Convention to ‘denounce’ it by a formal notification given to the Secretary-General of the Council of Europe. The article further provides for a 3-month transition period meaning that a valid withdrawal would become effective 3 months after the date the notification received. The president’s office notified the Secretary-General of the Council of Europe’s office on 22 March 2021. Article 81 of the Convention requires the Secretary-General to notify other state parties of such actions. This is to allow the state parties of the Convention to react. The İstanbul Convention remains silent on the specific rules around “what procedure the country concerned must follow domestically for a valid withdrawal” which opens the way for the application of the principles of the law of treaties and human rights law to the matter.
Withdrawal from human rights treaties and principles governing it is a phenomenon that has been discussed by the international community recently. Criteria set by the Inter-American Court of Human Rights in its December 2020 advisory opinion on Venezuela’s withdrawal from the Inter-American Convention on Human Rights (available in Spanish here, discussions in English here) provides an extremely helpful guide on the issue. The Court states that in cases, which the interest of the organisation concerned is at stake, its organs, members, and state parties to the treaty must share their opinions, and objections, if there is any, on the validity of a country’s attempt to exit from it.
The Secretary-General of the Council of Europe plays a vital role in the implementation of the treaty as well as the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) and the Committee of Parties and state parties. The role of the EU in this process is also relevant. This is not only because the issue is related to Turkey’s human rights record, which is the fundamental factor forming the basis of the relationship of the EU with Turkey, but because the EU is in the process of ratifying the Convention. The attempt of the Turkish president to withdraw from the Convention and the legal effect of his decision is a matter that must be analysed and addressed by these actors.
The İstanbul Convention is a vital instrument that was found to provide the golden standards for the protection of women and girls. The explanatory report of the Convention makes a direct reference to “the core values of the Council of Europe” and the fact that the Convention is a step forward to advance those values. The preamble of the Convention states that the aim of the Convention is “to create a Europe free from violence against women and domestic violence.” The Turkish president’s decision, however, goes against these core values and damages the CoE’s aim to reach its goal of violence-free Europe. Therefore, it is against the interests of the CoE as an institution.
Furthermore, the law of treaties is governed by three important principles; 1) free consent, 2) good faith, and 3) pacta sunt servanda (agreements must be kept). According to the Inter-American Court, the state parties to a treaty and relevant organs must assess good faith in cases of withdrawal decisions. In making this assessment, they should take into account several important factors. Among them, for example, if the country concerned has serious and systemic human rights violation issues, if the democratic institutions in the country are eroded and if there is “a manifest, irregular or unconstitutional alteration or rupture of the democratic order”, the good faith needs to be seriously questioned (paragraph 72).
Also, it must be evident that the decision to withdraw followed a plural, public debate, and the rules of representative democracy were respected throughout the process. This must certainly include those, whose rights would be affected most if the withdrawal took an effect. Lastly, the constitutional provisions on withdrawals from treaties must be duly followed in the country. As in many countries, such actions require a legislative act rather than an executive action, this must be respected and observed.
2- What does an initial analysis of the president’s decision look like from an international law perspective with a human rights law-specific lens? In other words, does this decision qualify as a valid withdrawal by Turkey from the İstanbul Convention?
Against the principles explained under the first question, one could at least rightly argue that there are fundamental issues around the validity of the president’s decision to withdraw from the İstanbul Convention. The detailed constitutional law analysis of the decision has been made in Başak Çalı’s recent article supported by the legal analysis made by scholars and lawyers in Turkey, e.g. several bar associations, Constitutional Law Research Association (Anayasa Hukuku Araştırmaları Derneği). It is rightly argued that ratification of the İstanbul Convention followed a legislative act as per Article 90 of Turkey’s Constitution (Law no. 6251 adopted on 24 November 2011). Since the Convention became a part of the domestic law, a piece of legislation in other words, in this way, it can only be repealed by another legislative act that would be carried out by the parliament. This means that the president does not have the competency under Turkey’s constitution to withdraw the country from the İstanbul Convention, which renders his decision fundamentally unconstitutional and therefore ‘void’. Çalı argues that since Article 46(1) of the Vienna Convention on the Law of Treaties, by analogy, requires the action of withdrawal to not to “manifestly violate a rule of fundamental importance in domestic law”, this void action of the president cannot be accepted as a ‘valid withdrawal of the country’ from the İstanbul Convention.
In addition to this, explanations made by the government officials, including Mr. Fahrettin Altun – the communications director of the president – indicate that the decision to withdraw from the Convention was based on the biased political agenda of the governing political parties. They made several references to discriminatory and homophobic views against the LGBTI+ community to justify the decision and the allegation that the Convention is an instilment against the religious and cultural values of people (in fact referring only to their supporters’ ‘values’). No plural, democratic and open public debate was carried out before the decision, nor were the views of the communities that will be affected by the decision most taken into account. With the human rights record of the country facing one of the most challenging regressions yet, democratic institutions, including the parliament and judiciary, are paralysed by the government, making it difficult to infer good faith. These factors, and many more, should give enough bases to the CoE members, organs, as well as the member states of the Convention, and its organs to challenge the validity of the president’s decision.
3- What are Turkey’s standing human rights obligations towards women and other disadvantaged groups including LGBTI+ regardless of the questions around the validity of the decision?
A valid withdrawal from international treaties does not mean that the obligations of the state concerned cease entirely.
First, the country is still bound by the treaty during the transition period. As Article 80 of the Convention sets 3 months, even if one agrees that Turkey validly withdrew from the Convention, it is still bound by it until after the 3 months.
Second, Turkey is still responsible for the implementation of the treaty from the time of its ratification until the time its withdrawal comes into effect. In other words, a treaty withdrawal cannot be applied retrospectively.
Third, Turkey still has to implement the decision of the treaty monitoring bodies on its compliance with the treaty at the time the treaty was still in force.
Fourth, the obligations of Turkey under other human rights treaties continue, as withdrawal from the İstanbul Convention does not have any impact on the state’s other treaty obligations. This means that protection provided to, among others, women, girls, LGBTI+ people and other groups, prohibition of violence and discrimination targeting them, and gender equality are rights that are protected under the country’s other treaty obligations.
Fifth, the state remains bound by the norms of customary law, those derived from general principles of international law and jus cogens (peremptory norms). Protection of women, girls, and others from violence is directly linked to these areas of law, therefore, continuing to bind Turkey on many aspects.
4- Statements do not suffice:
Turkey’s withdrawal from the İstanbul Convention has the potential to set a dangerous precedent not only for Turkey but other European states. There are voices, sometimes strong, sometimes weak, advocating for similar withdrawals, including from the ECtHR. If a firm international reaction is not shown, the very notion of universal protection of human rights will face greater challenges, especially in Europe, that might become existential.
Especially while the EU summit is underway and very soft remarks are heard from the heads of the EU states, it is important to underline once again the seriousness of this matter. The potential disruption Turkey’s withdrawal from a human rights convention could cause – not only for the people of Turkey but Europe and beyond – is crucial to put under the spotlight. The CoE states, organs, state parties of the İstanbul Convention, its organs, and the EU must adopt a formal stance concerning the president’s decision and test the validity of it against international law standards. Also, the PACE may consider inviting the Venice Commission to focus on the questions this action raised and define principles, rules, exceptions, and procedures to be followed for state withdrawals from the CoE human rights conventions, which will guide the members and other institutions facing similar situations.
*Ayşe Bingöl Demir is a lawyer specialised in international human rights law and domestic law and judicial procedures in Turkey. She practiced in İstanbul between 2003 and 2017 followed by her work at the Media Legal Defence Initiative in London as part of the legal team until 2019. She was a research fellow with Middlesex University School of Law between 2017 and January 2020. Currently based in New York, she acts as the co-director of the Turkey Human Rights Litigation Support Project -an initiative hosted by the Middlesex University School of Law- and a consultant for several national and international civil society organizations.