Turkey’s Derogation from Human Rights Treaties – An Update

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In an earlier post of 27 July I provided a first assessment of Turkey’s declared derogation from the European Convention on Human Rights (ECHR) and an assessment what kind of measures could be expected, as derogations both from the ECHR and the International Covenant on Civil and Political Rights (ICCPR). This new post provides an update, partly in response to commentators.

On 11 August, the United Nations published Turkey’s notification notification of derogations from the ICCPR. According to its text, the actual measure was ‘effected’ more than a week earlier, on 2 August. Turkey’s notification, dated on 21 July, refers to the 90-day state of emergency that had been declared on 20 July under domestic law. The most interesting element in Turkey’s ICCPR notification is that it provides a list of articles from which Turkey ‘may’ derogate:

The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

Again Turkey follows the recent example of France in specifying the articles under the ICCPR but not under the ECHR, and by not being explicit what the actual derogations are, instead only stating that derogations from the ICCPR ‘may’ result from measures taken pursuant to the state of emergency.

The big difference compared to France is that Turkey’s list of potential derogations is long, clearly too long. After the terrorist attacks in Paris, France stated that it ‘may’ derogate from the ICCPR, ‘particularly its articles 9, 12 and 17’. The rights in question relate to liberty (art. 9), movement (art. 12) and privacy and family (art. 17). Turkey’s list includes all these provisions but also:

  • the right to a remedy (art. 2 para. 3)
  • the humane treatment of detainees (art. 10)
  • safeguards against expulsion (art. 13)
  • fair trial (art. 14)
  • expression (art. 19)
  • assembly (art. 21)
  • association (art. 22)
  • political participation (art. 25)
  • equality and nondiscrimination (art. 26)
  • minority rights (art. 27)

Many of these provisions would be ‘usual suspects’ for derogation during a state of emergency. None of the explicitly non-derogable provisions listed in ICCPR article 4, para 2, have been included, of course. Neither is there any hint of seeking to justify the reintroduction of capital punishment, something that in my previous post was considered legally impermissible anyway.

The items that appear impermissible or at least legally dubious in Turkey’s long list are the following:

  • ICCPR art. 2, para. 3 (the right to a remedy, also ECHR art. 13): General Comment 29 by the Human Rights Committee makes it very clear that the provision is not subject to derogations:

    14. Article 2, paragraph 3, of the Covenant requires a State party to the Covenant to provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective.

  • ICCPR art. 10 (humane treatment of detainees; no direct counterpart in the ECHR but much overlap with the non-derogable provisions of ECHR art. 3 and ICCPR art. 7 that prohibit not only torture but also inhuman treatment): Again, General Comment No. 29 was explicit in dismissing ideas about the derogability of article 10:

13 (a)… Although this right, prescribed in article 10 of the Covenant, is not separately mentioned in the list of non-derogable rights in article 4, paragraph 2, the Committee believes that here the Covenant expresses a norm of general international law not subject to derogation. This is supported by the reference to the inherent dignity of the human person in the preamble to the Covenant and by the close connection between articles 7 and 10.

It might be permissible to derogate from the much more specific provision of article 10, paragraph 2, that requires the segregation of detainees, i.e. the separation of the accused from the convicted and of juveniles from adults. But as the former obligation is phrased to include the words ‘save in exceptional circumstances’, it suggests that no notification of a derogation is actually needed, while at the same time supporting the interpretation that segregation between juveniles and adults is an absolute obligation and not subject to derogation.

  • ICCPR art. 14 (fair trial, also ECHR art. 6): As many dimensions of the right to a fair trial are non-derogable, the Turkish government appears ill-advised when not being more specific concerning possible derogations. Once again, reference is made to General Comment No. 29 which here is also relevant for the derogations from ICCPR art. 9 (liberty):

16… The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.

  • ICCPR art. 26 (equality, also ECHR art. 14): As ICCPR art. 4 contains a specific line concerning the non-derogable dimensions of the right to equality and non-discrimination during a state of emergency, a notification concerning derogations from art. 26 appears unnecessary. At any rate, it cannot justify forms of discrimination the prohibition of which is non-derogable or of jus cogens nature, such as racial discrimination. General Comment No. 29 is clear on this point as well:

8… Even though article 26 or the other Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant.

  • ICCPR art 27 (minority rights, no counterpart in the ECHR): As this provision is inherently linked with the non-derogable dimensions of the prohibition against discrimination and to the non-derogable right to freedom of religion, any derogations from it would be impermissible or at least dubious. The matter is further complicated by the fact that Turkey has a reservation to article 27, seeking to limit the scope of its obligations to minorities recognized by the Treaty of Lausanne. This is what General Comment No. 29 says concerning the derogability of article 27:

The Committee is of the opinion that the international protection of the rights of persons belonging to minorities includes elements that must be respected in all circumstances. This is reflected in the prohibition against genocide in international law, in the inclusion of a non-discrimination clause in article 4 itself (paragraph 1), as well as in the non-derogable nature of article 18.

Even after all these critical remarks concerning the overreach of Turkey’s list of possible derogations, there are many ICCPR provisions that without doubt are subject to permissible derogations under the ICCPR. The reader is referred to my earlier post where I outlined some of the measures that can be expected.

Turkey is since 2006 a party to the (first) Optional Protocol to the ICCPR. This means that the Human Rights Committee has jurisdiction to deal with individual complaints concerning the implementation of possible derogations. In addition, Turkey is subject to the obligation to submit periodic reports concerning its ICCPR implementation, for consideration by the Human Rights Committee. Its next report is due very soon, on 31 October 2016, a deadline that remains  unaffected by the state of emergency. In practice, states often submit their periodic reports with some delay, and even when a report is submitted, the Human Rights Committee will need at least a full year before it conducts the hearing. Nevertheless the reporting deadline provides an opportunity to Turkish civil society actors and international human rights NGOs to produce shadow reports to brief the Committee in advance and to create some pressure upon the government to meet its reporting obligation.

As to new developments in respect of the ECHR, it is notable that Turkey appears to be keeping Council of Europe informed of its measures taken pursuant to the state of emergency. It appears that the government is making an effort to demonstrate to the Council of Europe the genuine threat posed by the failed coup of 15 July and that its measures will remain within the exigencies of the situation, even if quite dramatic. In addition to its original notification of a state of emergency and the prospect of possible derogations, it has sent already four official communications (insert ‘2016’ and select ‘Turkey’) to the Secretary-General, informing of its measures (dated 25 and 28 July and 2 and 8 August). Even if these submissions still do not specify what ECHR provisions are derogated from and how, they provide otherwise quite detailed information concerning the measures taken pursuant to the state of emergency.

My previous post and the current one both deal with Turkey’s international human rights obligations during a duly proclaimed state of emergency. I have not dealt with issues of Turkish constitutional law beyond noting that the Turkish Constitution is quite well aligned with international human rights treaties what comes to states of emergency and non-derogable rights. Kathy Bergin’s question posted as a comment to my earlier post was about who would have the power in Turkey to review a constitutional amendment for compatibility with international treaties.

Firstly, generally concerning constitutional law issues I would like to refer to the blog post by Başak Bağlayan in the Leiden Law Blog.

Secondly, the clause in Article 90 of the Turkish Constitution mentioned by Kathy Bergin is not relevant here as it prohibits the Constitutional Court from reviewing the constitutionality of international treaties:

No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional.

The question of unconstitutional amendments of the Constitution, including in cases their unconstitutionality results from being in breach of international law, is a separate matter. It would be addressed by the Constitutional Court irrespective of Article 90. The doctrine of unconstitutional constitutional amendments is well-known in Turkey and has been applied by the Constitutional Court, even if Article 148 of the Constitution seeks to limit the scope of such review of amendments to ‘their form’. If the government were to push through an amendment of the Constitution to reintroduce capital punishment, we might see a new clash between the Constitutional Court and the political branches of government. It would be foolish to try to predict the outcome here.

Thirdly, an important dimension of the domestic framework for states of emergency in Turkey, as pointed out by Başak Bağlayan, is that decrees issued by the government pursuant to a state of emergency have the force of law (Article 121) but are not subject to the scrutiny of the Constitutional Court, pursuant to Article 148:

… decrees having the force of law issued during a state of emergency, martial law or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance.

I am not seeking to exhaust the complex issues of Turkish constitutional law here. The brief indications above simply point towards the conclusion that external review by the UN Human Rights Committee and the European Court of Human Rights will remain important in coming years.

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Giuseppe says

August 19, 2016

27 JULY, NOT 27 AUGUST!....you need to correct the month

Jordan says

August 21, 2016

I note that there can be no derogation regarding customary human rights obligations under Articles 55(c) and 56 of the UN Carter and that obligations under the UN Charter must prevail. UN art. 103.
So isn't this an interesting twist?

Jordan says

August 21, 2016

p.s. it can make a difference, for example, regarding Article 9 of the ICCPR if the prohibition of "arbitrary" detention is customary -- clearly also if it is jus cogens. See HR Commn., General Comment No. 24. In any event, the right has a broad limitation, given the word "arbitrary."

Martin Scheinin says

August 28, 2016

As there has been no further discussion within a week, it is high time for me to comment on Jordan's interesting references to customary law and jus cogens. Human Rights Committee General Comments Nos. 24 and 29 are certainly relevant here. There is also a separate but related question whether human rights treaties that contain no derogation clause may be subject to derogation during a state of emergency, for instance the Covenant on Economic, Social and Cultural Rights or the African Charter of Human and Peoples' Rights.
To me it is clear that human rights treaties that contain no derogation clause are subject to permissible limitations also during a state of emergency and that an emergency threatening the life of the nation will be a valid justification for expanding the scope of permissible limitations from what it would otherwise be. The issue of non-derogability would nevertheless arise where the treaty contains provisions that are 'absolute', i.e. allow for now limitation. We could for instance discuss whether defining something as a 'minimum core obligation' through the interpretation of a treaty carries the consequence that this particular obligation is also non-derogable. To me, this will be a matter of treaty interpretation and there is no self-evident answer.
Analogously, it will be a matter of interpretation whether a customary law norm allows for derogation. I would not support the view that the mere identification (and formulation) or a norm of customary international law automatically means that the (full scope of) the norm is also non-derogable during a state of emergency. It is fully plausible that a closer examination of the content of the customary law norm would give the outcome that the derogability of some dimensions of it is in fact a part of the customary law norm properly construed and interpreted.
The identification of a customary law norm as jus cogens would change the situation, as that would exclude a possibility of interpreting the norm so as to allow for derogation. Jus cogens is both an underlying justification for proclaiming some treaty norms non-derogable and a valid ground to interpret those treaty provisions that do allow for derogation as containing non-drogable dimensions. HRCttee General Comment No. 29 para. 11 captures both of these ideas.

Martin Scheinin says

August 28, 2016

Sorry, intended to write "The issue of non-derogability would nevertheless arise where the treaty contains provisions that are ‘absolute’, i.e. allow for NO limitation" (instead of "now")

Jordan says

September 1, 2016

Thanks Martin, but the Charter certainly expresses no possibility of derogation and appears absolute at least with respect to the duty to take separate action to achieve universal respect for and observance of human rights. As a matter of CIL, a customary human right incorporated by reference can contain a limitation (like "arbitrary" or express limitations of speech and assembly mirrored in the ICCPR), depending on general patterns of practice and opinio juris. I suppose one could also be derogable depending on general patterns of practice and opinio juris, but such would have to be proven.
At least "universal" remains a Charter-based geographically unlimited requirement regarding the reach of state obligations under the Charter. The US, for example, cannot lawfully avoid responsibility for torture abroad regardless of the validity of a, at best, specious claim that ICCPR treay-based huma rights obligations only apply within the US.

Basak Baglayan says

October 10, 2016

A belated thank you Professor Scheinin for your posts. Considering that Turkey recently decided to extend the state of emergency for another 90 days, the issues still remain highly relevant.

I would like to add a quick remark concerning the review of the SoE decrees by the Constitutional Court. Article 148 of the Constitution indeed prevents review of the decrees issued during a state of emergency which significantly undermines constitutional guarantees during states of emergencies. However, during the 1990s the Constitutional Court developed a standard according to which it is not bound by the ‘name of the decree’ and will look into the scope of the decree laws to determine whether the measures regulated by the decree are necessitated by the exigencies of the state of emergency. Therefore, calling any measures a ‘decree necessitated by the state of emergency’ will not avoid constitutional review if the ambit of the decree goes beyond what is necessary to respond to the particular SOE.

We also learn from CoE Human Rights Commissioner’s recent memorandum on Turkey that the Constitutional Court will soon be taking a decision on whether it can receive individual applications from those whose names are annexed to decrees and are considered to be dismissed by a law and cannot return to their jobs even after the state of emergency ends.

(Memorandum available here: https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2942452&SecMode=1&DocId=2386132&Usage=2)