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Third Time Lucky? The Dynamics of the Internationalisation of Domestic Courts, the Turkish Constitutional Court and Women’s Right to Identity in International Law

Published on January 29, 2014        Author: 

On 19 December 2013 the Turkish Constitutional Court delivered what some local journalists are calling a ‘revolutionary’ judgment. The revolutionary judgment in question recognised that women indeed have the right to retain, if they so wish, their last name when they get married. Of course, in the grand scheme of women’s rights, this is far from ‘revolutionary’. It is also not trivial.  A woman’s right to choose her name is the tip of the iceberg in her struggle to stand as an equal in family relationships. What it does is challenge the deep and entrenched patriarchal stereotype of the family as a unit joined under a single name – the man’s. It also emphasises the importance of name for women’s self-development – whether married or single.

The substantive advancement of women’s rights by this decision aside, the judgment also tells us a tale of the reception of international law by domestic courts. In particular, it offers us clues for comparatively studying how high courts negotiate the tension between progressive international legal commitments and, frankly, backward domestic laws tacitly backed up by the domestic legislature and executive.  This is the third time (yes, indeed) that Turkey’s Constitutional Court dealt with this case – each time with identical facts (a woman asking to keep her name upon marriage) – and the second time it has done so since the European Court of Human Rights delivered a violation judgment against Turkey on the very same issue.  In the first two instances, in 1998 and 2011, the Turkish Constitutional Court decided that the Civil Code which requires a woman to change her name upon marriage was not unconstitutional. In the third case, it did find it unconstitutional.

Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights
 

Syrian and Turkish Military Activities and International Law

Published on October 11, 2012        Author: 

Dr. Başak Çali, Senior Lecturer in Human Rights and International Law, Department of Political Science, University College London

A shell fired from Syria into the back garden of 38 year old Zeliha Timuçin, in the  town of Akçakale, Turkey on 3 October 2012 killed her, her 3 children and her sister in law. The Turkish military retaliated by firing artillery salvos against Syrian targets over 3 days. This raises important, but, thus far, largely unaddressed, legal questions about what international law is applicable to both the shelling by Syria, and, crucially, Turkey’s response. The identification of applicable international law, in turn, has important consequences for the attribution of responsibility for the killing of these five civilians.

The line taken by the Turkish government immediately after its retaliatory attacks on Syria on 3 October 2012 was that its actions were ‘in accordance with international law and the rules of engagement of the Turkish Armed forces’. No clarification about what body of international law was forthcoming. Given that Turkey used military force, it could only be referring to the right to self-defence under Article 51 of the UN Charter and customary international law. Taking it further, and assuming there was an armed conflict between Turkey and Syria within the sense of Common Article 2 of the 1949 Geneva Conventions, principles of proportionality and military necessity with regard to targeting decisions under international humanitarian law would also apply.  The reference to these two bodies of law assumes that events have indeed triggered their applicability. In reality, this is far from clear.

Has there been an armed attack against Turkey within the framework of Article 51 of the UN Charter?

The reaction of the NATO at its emergency session in Brussels on 3 October 2012  qualified the shelling as an “aggressive act against an ally” – thus supporting the view that Turkey was acting in self-defense under the ius ad bellum. Read the rest of this entry…