Withdrawal from the Istanbul Convention by Turkey: A Testing Problem for the Council of Europe

On Saturday 20 March 2021, Turkey woke up to a historic first – the announcement of its first withdrawal from a human rights treaty by the President. A presidential decision declared that Turkey was leaving the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. This is the convention better known, most ironically, as the Istanbul Convention due to Turkey’s leading role in its creation.

Published in the Official Gazette in the early hours of 20 March 2021, Presidential Decision 3718 reads:

‘It is decided that the Council of Europe Treaty on Preventing and Combating Violence against Women and Domestic Violence signed on 11/5/2011 and ratified on 10/2/2012 with the Council of Ministers Decision No 2012/2816 is to be terminated based on Presidential Decree No 9 paragraph 3.’

The Istanbul Convention was ratified by the Turkish Grand National Assembly on 24 November 2011. Its ratification was unanimous. On 10 February 2012, it was approved by the Council of Ministers, an organ now replaced with the President, as this constituted step two of the completion of the domestic ratification process. On 8 March 2012 (yes, indeed, International Women’s Day) Law No. 6284 was passed with the aim of incorporating the Istanbul Convention into domestic law. Its Article 1(a) states that it is ‘based on the Turkish Constitution and international treaties to which Turkey is a state party, in particular, the Council of Europe Treaty on Preventing and Combating Violence against Women and Domestic Violence.’

Throughout the weekend, constitutional lawyers and bar associations in Turkey repeatedly pointed out that this withdrawal decision is clearly against Turkey’s Constitution. This is due to the fundamental constitutional principle that the executive cannot usurp the powers of the legislature. Article 90 of the Constitution requires the Parliament to ratify human rights treaties by legislation. It is only following Parliament’s ratification that the President’s executive powers of approval and publication of international treaties are triggered under Article 104 of the Constitution,  a provision that regulates the executive powers of the President. Human rights treaties, therefore, first become domestic law by way of a vote in Parliament passing a ratification law. Any law that is passed by Parliament cannot be the subject of executive amendment under the Constitution. The executive, that is the President, cannot exercise legislative functions. As a matter of domestic law, it cannot repeal a law, in this case, the Parliament’s act of ratification of the Istanbul Convention on 24 November 2011. This law can only be amended or repealed by the Parliament by passing a domestic law to denounce a treaty. It then becomes constitutionally possible for the President to complete the process of denunciation by giving effect to that law as the executive organ.

The President’s decision to withdraw from a human rights treaty in this case is based on his own prior presidential circular that assigns him the power to withdraw from a treaty. Yet, under Article 104 of the Constitution, this power can only be interpreted as an executive power. It cannot be used to override the acts of the legislative, making a human rights treaty part of domestic law by way of enacting a legislation. This decision, and the circular it rests on, therefore, points to a deeper decay in the basic structure of the Constitution in Turkey in delineating the sphere of action of the legislative and the executive under the Constitution. Those who argue for the domestic legality of the withdrawal decision based on a previous presidential circular, therefore, are defending that Presidential circulars can repeal existing domestic legislation. From the perspective of the well-established canon of constitutional law interpretation in Turkey, this is an untenable position, or rather an unconstitutional position. Accepting that human rights treaties made part of domestic law by the Parliament can be repealed by a presidential decision based on a Presidential decree means accepting that the President of Turkey can repeal existing domestic legislation. This also means defending that the President can withdraw from any human rights treaty, despite the presence of acts of Parliament making a treaty part of domestic law in the middle of any other night through simply publishing a presidential decision.

On 22 March 2021, Turkey’s Communication Directorate further published a statement, where the reasons for withdraw were provided as follows: 

‘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. Hence the decision to withdraw.

Türkiye is not the only country who has serious concerns about the Istanbul Convention.  Six members of the European Union (Bulgaria, Hungary, Czechia, Latvia, Lithuania and Slovakia) did not ratify the Istanbul Convention. Poland has taken steps to withdraw from the Convention, citing an attempt by the LGBT community to impose their ideas about gender on the entire society.’

Alongside the constitutional concerns of using Presidential executive powers to repeal domestic law, this statement further raises fundamental concerns as to the constitutional commitment to human rights and equality of all citizens regardless of the social and family values any citizen may have.

What is to become of this unconstitutional state of affairs from the perspective of Turkey’s domestic law? Thousands of women rights groups took to the street over the weekend. Women’s rights groups, bar associations and citizens have now also indicated that they will challenge this decision before Turkey’s Supreme Administrative Court. Yet, given the concerns over Turkey’s executive’s grip over the judiciary, the outcome of such a challenge cannot be foreseen.

What role for the Council of Europe organs, member states and state parties to the Istanbul Convention?

This unconstitutional state of affairs, asserting that the President has powers to repeal legislation to defend ‘social and family values’ a concept alien to Turkey’s Constitutional commitment to fundamental rights of all brings us to the position of international law and the Council of Europe on the matter. On the face of it, international law does not offer any express rules on unconstitutional treaty withdrawal. As was discussed during the saga of South Africa’s withdrawal from the Statute of the International Criminal Court this is somewhat unchartered territory – even more so at the level of Council of Europe, which had, until this weekend, never before encountered an instance of unconstitutional withdrawal from one of its human rights treaties.

The Vienna Convention on the Law of Treaties (VCLT), codifying customary international law, offers us two rules, one express and procedural and one by analogy, substantive. The first rule, under Art 54 of the VCLT, is that a state must comply with the provisions on withdrawal set out in the treaty itself.

Article 80 of the Istanbul Convention sets out its rules as follows:

“Any Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.

Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.”

This means that there must be an official notification (i.e. that a Presidential Decision cannot suffice) and that there is a three-month period before such a notification comes into effect.

The substantive rule flows from Art 46(1) of the VCLT. Accordingly, the binding nature of a treaty signed by an authoritative State representative will be assumed under international law, unless there is a ‘manifest’ violation of a domestic rule that is of ‘fundamental importance’. In addition, Article 46(2) of the VCLT states that such a violation is manifest if it ‘would be objectively evident to any State conducting itself in a matter in accordance with normal practice and in good faith’. The VCLT, however, does not set parallel rules for treaty withdrawal. It is by way of analogy one can, however, argue that if the duty not to manifestly violate a rule of fundamental importance in domestic law applies to the consent to be bound, it must also apply to the consent to be unbound.  There has also been some discussion as to the interpretation of Article 46 (2) at the level of the Inter-American Court of Human Rights. In its Advisory Opinion OC-26/20 concerning the withdrawal of Venezuela from the Inter-American Convention on Human Rights, for example, the Inter-American Court of Human Rights broached the question of what entails a good faith withdrawal.

These substantive rules have never been tested at the level of the Council of Europe — simply because this is a first.  Yet, now the horse has bolted, all the Council of Europe organs, member states and the state parties to the Istanbul Convention have three months after the official notification of formal withdrawal to articulate where they stand.

Given the core object and purpose of the Council of Europe as a regional organisation is the protection of human rights, rule of law and democracy in the domestic legal orders of its member states, the Council of Europe and its member states seem to be very well suited to take on this challenge and to clarify, at least for the Council of Europe espace juridique, international law on this matter. After all, the Statute of the Council of Europe, states in its preamble that state parties reaffirm ‘their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy’. Its purposes as set out in the Statute are laid out that the Council of Europe shall:  

a   achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress. (Article 1(a)) and

b pursue through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms. (Article 1 (b))

Now then is the time for the members of the Council of Europe as well as all the organs of the Council of Europe, including its Secretary General, to assess under general international law and under the Statute of the Council of Europe what rules apply to withdrawal from human rights treaties of the Council of Europe.

So far statements from the Secretary General of the Council of Europe and the Chair of the Committee of Ministers of the Council of Europe convey feelings and not legal analysis. The concern is deep. The Presidential Decision is ‘devastating’ and ‘deeply regretted’. Tens of millions in Turkey are also devastated, and they the Council of Europe to do more than sharing their deep regret. They need an international law assessment of the ever first treaty withdrawal from the Istanbul Convention.