The Gender of Treaty Withdrawal: Lessons from the Istanbul Convention

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In the early hours of 20 March 2021 the Turkish Official Gazette announced—in a one sentence statement that offered no explanation—that the President Erdoğan had decided to withdraw from the Istanbul Convention, the Council of Europe treaty on preventing and combating violence against women. Two days later, the Communication Directorate of the President offered this justification: “The Istanbul Convention, originally intended to promote women’s rights, was hijacked by a group of people attempting to normalize homosexuality – which is incompatible with Türkiye’s social and family values.” The precipitous and unexpected unilateral presidential decision at the start of a weekend triggered outrage, protests, and litigation by women’s rights groups in Turkey. Outside of the country, the response by the organs and member states of the Council of Europe was mostly handwringing and commiseration—but no meaningful challenge to the denunciation’s legality.

This post evaluates the responses to the nearly unprecedented exit from a major European regional human rights agreement, one that establishes comprehensive legal standards to effectively implement women’s right to be free from violence by building on existing legal obligations of non-discrimination in other international instruments, in particular the European Convention on Human Rights (Article 14 and Protocol No. 12) and CEDAW. We argue that the Council of Europe’s legal position—that nothing could be done to counter Turkey’s precipitous action—was and is not a persuasive interpretation of positive international law. Instead, this position reflects the orthodox “consensual view” that unilateral treaty withdrawals—including from human rights conventions—are sovereign decisions that are not subject to any meaningful international legal scrutiny.

The post highlights two other approaches to evaluating exit from human rights treaties—namely, the “lex specialis” view and the “gendered” view—that the Council of Europe could have pursued as a matter of positive international legal doctrine. Our analysis is timely, since future potential withdrawals loom large, not only from the Istanbul Convention (which Poland is now considering), but also from the European Convention on Human Rights (a possibility being debated in the UK).

In what follows, we first explain how the Council’s response to Turkey’s withdrawal from the Istanbul Convention reinforced the consensual view of treaty exit, missing an opportunity to develop the distinctive understanding of human rights agreements that the ECtHR and other international courts have developed and that states have subsequently followed. We then analyze other legal doctrines and sources that would have supported either a lex specialis or a gendered view of positive international law—approaches that would have enabled a more robust challenge to Turkey’s problematic action.

The Council of Europe chooses the consensual view of treaty withdrawal

The immediate aftermath of Erdoğan’s announcement was replete with expressions of disappointment but devoid of legal objections. On 21 March 2021, the Chair of the Council of Europe’s Committee of Ministers and the President of the Parliamentary Assembly expressed deep regret about “the decision of the President of Turkey to withdraw from this Convention widely supported in the country, without any parliamentary debate.” The Council’s Secretary General characterized the withdrawal as “devastating news” and “a huge setback” for “the protection of women in Turkey, across Europe and beyond.” National political leaders also deplored the decision and expressed their support for the Convention.

In April 2021, the Parliamentary Assembly of the Council of Europe (PACE) linked the denunciation to ongoing debates about the decline of democratic institutions in Turkey. PACE Resolution 2376 highlighted two especially problematic aspects of the decision: the lack of any parliamentary debate and basing the decision on “misleading narratives” and “politically motivated misconceptions and myths” that “run counter to the very objective of the Istanbul Convention”—an implicit reference to the justification quoted in the first paragraph of this essay. Characterizing “the ratification and denunciation of treaties are a matter of national sovereignty,” the resolution nevertheless invited the Venice Commission—the Council of Europe’s advisory body on constitutional matters relating to democracy, human rights and the rule of law—“to prepare a comparative study and possible guidelines” on the standards that should govern joining and leaving Council of Europe conventions “beyond the minimal legal and constitutional conditions.”

The Venice Commission published its ninety page report “On the Domestic Procedures of Ratification and Denunciation of Treaties” in April 2022. The report reviewed the domestic legal frameworks for ratification and denunciation in Europe and elsewhere. It found that various forms of parliamentary involvement are required for both acts in 29 out of 47 Council of Europe member states and is compulsory only for joining treaties in 18 states. The report ultimately concluded that although involving national parliaments in treaty withdrawals was normatively desirable, it was not (yet) required by positive international law (see paras. 287-291).

The reactions of the Council of Europe’s institutions, its member states, and the Venice Commission reinforced the traditional, consensual view of treaty withdrawal under international law. This approach has three main features.

First, it conceptualizes withdrawal as a right of sovereign states. Because states enter into treaties only with their express consent, they are presumptively free to leave treaties by withdrawing that consent. Under this view, the type of treaty from which a state withdraws, its reasons for doing so (or the lack thereof), and the government actor(s) who carry out the withdrawal are all legally irrelevant.

Second, the international validity of withdrawal under the consensual view turns on whether a state has respected any restrictions included in the treaty itself, such as time limits specified in a denunciation clause. The legal basis for this is Article 54(a) of the Vienna Convention on the Law of Treaties (VCLT)—a provision also regarded as codifying customary international law—which provides that “the withdrawal of a party may take place … in conformity with the provisions of the treaty.” In the case of the Istanbul Convention, for example, a party may denounce the treaty “at any time” simply by notifying the Secretary General of the Council of Europe. The withdrawal does not take effect, however, until approximately three months after the notification is received. The Convention contains no other substantive or procedural restrictions on unilateral exit.

Third, the consensual view focuses only on what is communicated on the international plane. It does not assess whether the actor that initiates the withdrawal has the authority to do so. Even if, for example, the executive flouts a constitutional mandate that parliament approve a treaty withdrawal, this has no effect on the legality of the denunciation under international law. In the case of the Istanbul Convention, domestic litigation challenging the constitutionality of Turkey’s withdrawal did not stop the clock on the notice period at the international level. The Council of Europe thus officially removed Turkey as a state party on July 1, 2021, even though more than 220 domestic suits asserting the illegality of Erdoğan’s action were (and are) pending.

The consensual view also helps to explain the collective statements of commiseration that followed Turkey’s withdrawal. Under the consensual view, if a state communicates its withdrawal in a procedurally proper manner—even from a human rights treaty—not much can be done but expressing feelings of sadness, regret or outrage.

In its April 2022 report, the Venice Commission, too, found that international law’s hands were tied. The Commission first investigated whether the consensual view’s indifference to the domestic procedures followed for exiting treaties had been modified through customary international law. It did so by head-counting how each country’s law regulates withdrawal. This simple head count, curiously, placed Turkey in the group that does not require parliamentary involvement, despite strongly reasoned objections from leading constitutional law experts and pending litigation before Supreme Administrative Court as to whether the Turkish Constitution requires the Parliament to approve withdrawal from a human rights convention. The report identified a “clear trend” toward parliamentary involvement—reflected in 62% of Council of Europe member states (29 out of 47 countries)—but no binding regional custom “which demands that a state’s legislature is involved in the denunciation of an international treaty” (para. 287). The report thus concluded that “the question … remains one within the sphere of domestic political preference, and international law leaves this choice to the sovereign discretion of each individual state” (para. 291).

The Venice Commission then explained that the trend toward greater parliamentary involvement is normatively desirable to promote democracy, human rights, and the rule of law. But the Commission said nothing about whether international law should recognize the unilateral decision of a president or prime minister to denounce a human rights treaty in violation of a domestic law requirement of parliamentary involvement or approval.

The road not taken: Special rules for human rights treaty withdrawals  

The Council of Europe could have taken a very different view of positive international law. In particular, it could have followed the path seminally trod by the ECtHR (and followed by regional human rights courts in Americas and Africa and UN treaty bodies) that have developed specialized interpretive canons and doctrines for human rights conventions. The core of this lex specialis approach is that these conventions “come with the presumption that protection of human rights has priority to sovereign rights,” a presumption that creates affects numerous areas of treaty law and practice, including reservations, interpretation, implementation, and enforcement.   

Whilst the ECtHR and the former European Commission on Human Rights have led the way in developing the lex specialis view since the 1960s, the fullest expression of this approach as applied to treaty withdrawal appears in a 2020 Advisory Opinion of the Inter-American Court of Human Rights (IACtHR). In its detailed analysis of the obligations of states that have denounced human rights conventions adopted by the Organization of American States (OAS), the IACtHR reiterated the established lex specialis view that human rights treaties are distinct from other international agreements. They not only create horizontal promises between states but also vertical obligations between governments and individuals (para. 51), who are “in an asymmetrical position in relation to the power of the State” and thus require special protection (para. 58). Human rights treaties also imply a “collective guarantee” of the “internationalization, codification and progressive development of” fundamental rights (para. 53).

These principles, according to the IACtHR, limit a state’s power to exit from human rights conventions, including treaties on violence against women. International law is not, under the lex specialis approach, confined to assessing whether a state has satisfied the minimal procedural requirements in a treaty’s denunciation clause. Nor is international law indifferent to the domestic procedures governing withdrawal. The IACtHR, like the Venice Commission two years later, surveyed OAS member states and tallied which branches of government participate in treaty withdrawals in each country. But unlike the Commission, the Court did not view the diversity of state practice as a constraint on what positive international law requires. Instead, the IACtHR held that:

regardless of the different domestic procedures for denouncing treaties in the region, the denunciation of a human right treaty … must be subject to a pluralistic, public and transparent debate within the States, as it is a matter of great public interest because it implies a possible curtailment of rights and, in turn, of access to international justice (para. 64).

Further, the Court concluded that the regional human rights system’s collective guarantee requires both OAS institutions and member states to take “swift, collective action to address possible denunciations,” and to “contain a government’s impulse to extricate itself from its international human rights obligations” (paras. 170, 171). Such actions include a review of “the context and formal conditions in which the decision to denounce is taken at the domestic level and its correspondence with the established constitutional procedures” as well as “an assessment of the democratic nature of the decision” (paras. 171, 172). In sum, the IACtHR did not—in striking contrast to the Venice Commission—posit an artificial distinction between positive law and normative desirability; instead, it employed well established canons of treaty interpretation under Article 31 of the VCTL to ground the lex specialis approach to human rights treaty withdrawal.

Consider how the Council of Europe could have responded to Turkey’s denunciation of the Istanbul Convention under the lex specialis view. The Council’s organs and member states, acting both individually and collectively, could have challenged the Turkish President’s action as legally suspect on multiple grounds: the sudden, non-deliberative nature of the decision; the lack of notice to or consultation with—let alone approval of—the Parliament; and the domestic outrage and litigation by women’s rights groups. Such a forceful and multifaceted response might have led Erdoğan to reconsider his precipitous act. If it did not, the Council of Europe Secretariat could, with the support of other member states, have cited the pending domestic court challenges in Turkey to freeze the three-month notification period until the domestic legal system delivered a final determination as to the constitutionality of the withdrawal.

Gendering human rights treaty withdrawal

In addition to ignoring lex specialis rules for human rights treaty law, the Council of Europe also failed to consider the gendered and manifestly discriminatory dimensions of Turkey’s withdrawal—an act in blatant disregard of important equality gains under both treaties and customary international law. Here too, an alternative path was readily available but inexplicably overlooked: the response of the CEDAW Committee.

In a statement issued on 01 July 2021, the CEDAW Committee considered the legal basis and the practical impact of Turkey’s action. In its legal assessment, the Committee linked the withdrawal from the Istanbul Convention to the UN women’s rights treaty. It characterized the denunciation as “a deliberately retrogressive measure” that was “inconsistent with Turkey’s due diligence obligation under” CEDAW to prevent and protect women and girls from violence. But the act of “disengaging from its international commitments” went further, “undermin[ing] the recognition of peremptory norms of international law (jus cogens) such as the prohibition of torture, femicide and other grievous forms of [gender-based violence], as well as the guarantees of substantive equality and non-discrimination.”

The CEDAW Committee also underscored the real-world harms of Turkey’s action. The treaty body had previously sounded the alarm about increased levels of gender-based violence during the COVID-19 pandemic; Turkey’s denunciation had “the potential to deepen th[at] protection gap ….” In addition, the Committee asserted that the withdrawal had no “valid ground [or] justification”—a statement echoing the Parliamentary Assembly’s earlier reference to the “politically motivated misconceptions and myths” that motivated the decision. Taken together, the legal deficiencies and practical consequences led the treaty body to take a step that the Council of Europe had not: urging Turkey to reconsider “as a matter of highest priority” its decision to leave the Istanbul Convention.

The CEDAW Committee’s analysis reveals that a gendered objection to withdrawing from a human rights treaty goes deeper than challenging the lack of parliamentary deliberation or approval. It underscores the peremptory status of gender discrimination and reinforces efforts to move positive international human rights law away from consensual frameworks and toward the peremptory status of non-discrimination in international law. Under this approach, the act of stripping human rights from women—especially by male Presidents and male-dominated parliaments—requires, at the very least, heightened interrogation.

A gendered view also requires scrutinizing not only whose rights are taken away but for what reasons. Turkey justified its withdrawal from the Istanbul Convention using hostile rhetoric against LGBTQ individuals, as shown by the Communication Directorate statement quoted above. Yet as civil society groups and scholars have documented, authoritarian and populist politicians often mischaracterize “efforts to expand rights for women and LGBTQ people as radical, dangerous impositions designed to eliminate all sex differences.” This dual targeting, often made under the banner of “gender ideology,” is part of broader campaigns to roll back human rights protections for minorities, weaken democratic institutions, and undermine the rule of law.

Seen from this perspective, a treaty withdrawal that undermines not only the peremptory norm of non-discrimination but also challenges the rights of LGBTQ individuals to live as equal members of society should have led the Council of Europe to consider whether Turkey acted in bad faith. Yet the gendered consequences of the withdrawal are strikingly absent from the Venice Commission’s report—not only in its narrow view of positive international law, but also in its recommendations for how international norms should evolve in the future. The report argues for norms that strengthen democracy, human rights, and rule of law, but the consequences for women and the LGBTQ community—more than half of a country’s citizens—are left entirely out of the picture.

Conclusion: Rethinking the positive law of treaty withdrawal

Our analysis of international legal doctrine shows that the Council of Europe provided a politically tepid and legally inadequate response to Turkey’s withdrawal from the Istanbul Convention. The Venice Commission, well known for its defence of constitutionalism, the rule of law and fundamental rights, offered an especially disappointing report that entirely overlooked the lex specialis and gendered approaches to scrutinizing unilateral exit from human rights conventions under international law.

In this response, we have shown that one does not need to be orthodox consensualist to offer a positivist analysis of human rights treaty withdrawal. We have mapped two alternative legal pathways, one of which the Council of Europe could—and should—have pursued. These alternatives draw upon the sustained practices of global and regional human rights systems and peremptory status of non-discrimination under general international law.  In these challenging times, marked by credible threats to exit the human rights treaties of the Council of Europe, the orthodox consensual view—that human rights treaty withdrawals are carried out at the whim of domestic political leaders and all but immune from international scrutiny—needs to be reconsidered and challenged, not reaffirmed.

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Jakob Cornides says

November 28, 2022

This is a very regrettable post in that it mixes up two very different questions that had better stayed separate: one is, whether the Istanbul Convention is a good, or perhaps a not so good, agreement, and the other is whether (and under which circumstances) a signatory state can withdraw from it. In the end, the Venice Commission gets criticised simply for having said what the law is, rather than having pilloried Turkey for its apparent misogyny, homophobia, and – more generally – its failure to comply with contemporary “values”.
But the Venice Commission is not to blame. Its task is to provide legal analysis based on the current state of the law, not to express opinions on what would politically desirable. And from the legal point of view there can be no doubt that Turkey (Türkiye) has every right to withdraw from the Convention, just as there can be no doubt that signatory States have the right to withdraw from the ECHR.
Concerning the reason for that withdrawal, there are of course two competing narratives. Turkey under Erdogan does not have the best democratic credentials, so it may be that the country is withdrawing because it is fundamentally opposed to the very idea of human rights, and whatever reason it gives must just be a pretext. But it may also be the case that the reason is truly that which has been stated, i.e. the perception of the Istanbul Convention having been hijacked by LGBT radicals to promote other objectives than just the protection of women.
That criticism has been voiced not only by Turkey and Erdogan, but also by some democratic governments as well as by some thoughtful commenters. It should not be dismissed summarily, but deserves proper consideration. An international treaty, just as a contract between private individuals, works best if no one has the feeling of being cheated. If several countries have the concern that the Istanbul Convention is a Trojan horse that is used to transport concepts of Gender theory into the citadel of human rights, why do we have to assume that their point of view has no merit? Critics will certainly be able to point out precisely which provisions of the Convention have nourished such suspicions, and even those who think that those suspicions are unfounded might want to redraft the controversial passages in such a way that all can be comfortable with. If anyone wants Turkey to ba party to an agreement that protects women, that might be a more promising way forward, rather than making the daring claim that parties are not allowed to leave.

Andreas Paulus says

December 1, 2022

Dear Basak and Larry,
I could not agree more regarding the special status of human rights agreements - including those regarding sex and gender discrimination - regarding withdrawal. You could have included also the Miller I judgment of the UK Supreme Court that pointed out that the European treaties had created individual rights that could only be abrogated by parliament, not by the executive branch alone. Similarly the South African court decisions re withdrawal from the International Criminal Court Statute, that was subsequently withdrawn. Domestically, individual rights are a matter for parliaments. This should include those established at the international level - they should not be taken away by mere executive fiat.
Andreas Paulus