By guest contributors Sarthak Gupta*
The ‘Istanbul Convention’ officially referred to as the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence is the first legally enforceable international instrument in Europe addressingviolence against women. Turkey was the first country to sign the Convention in 2011. In 2012, on International Women Day, the Turkish Parliament overwhelmingly adopted the Convention, and the Law on the Protection of the Family and the Prevention of Violence Against Women (Law No. 6284) was enacted to integrate the Convention into domestic legislation. In March 2021, Turkey also became the first nation to withdraw from the Convention, ironically that too on International Women’s Day, following its 10th anniversary.
This withdrawal came during the time Covid-19 pandemic when women were more vulnerable to domestic violence. Istanbul Security Directorate statistics stated that there has been a 38% increase incases of domestic violence since March 2020. As per the Turkish Federation of Women’s Association, the physical violence cases have increased to 80% in March 2020. More than 400 women have been subjected to death by their partners in 2020, and 118 women so far in 2021. However, the Turkish government reassured its citizens that withdrawing the Convention would not entail disregarding domestic violence and women’s rights legislation. Conversely, Turkish women have long condemned the government for failing to achieve the treaty’s minimal standards. It’s intriguing to contemplate how a government that formerly failed to prevent the increasing instances of violence against women, despite having the protection of international instruments and domestic laws, could possibly be able to accomplish it with just the Constitutional Protections.
Notwithstanding escalating female murder statistics in recent years, Turkey withdrew from the Istanbul Convention in the dead of night on March 20, 2021. President Erdogan invoked Article 3 of Presidential Decree No. 9, which provides the President with the power to “terminate” international instruments. There was no discourse in Parliament, and no rationale was offered after the proclamation, which was released early Saturday, sparking outrage within rights groups and culminating in massive demonstrations in Istanbul.
The Presidential proclamation, its legitimacy, and the constitutionality of the Presidential Decree, are extremely debatable. The principal concern of debate is whether the President has the authority to withdraw international instruments through a presidential decree. International instruments must be adopted by the Turkish Parliament with a statutory provision authorizing the ratification under Article 90/1 of the Turkish Constitution. There is no mechanism in place for withdrawal or termination. In the complete absence of any other constitutional provisions governing withdrawal, the Turkish Parliament has the authority to withdraw from international instruments by introducing a statutory provision, in accordance with the notion of parallelism of competency and procedures. This position is amplified by the notion that, according to Article 90/5 of the Turkish Constitution, officially ratified international instruments have the force of law. In the event of disagreement with statutory law, the Turkish Constitution specifies that provisions of international instruments pertaining to fundamental rights and freedoms, such as the Istanbul Convention, will have precedence.
Article 104/11 of the Turkish Constitution explicitly states that the President may ratify and publicly release international instruments, which is one of the President’s expressly acknowledged rights in respect to the authorization of presidential decrees. With a few exceptions, this authority is contingent on the prior approval of a statutory provision by the parliament approving the ratification. Therefore, the Turkish Constitution does not explicitly authorize the President’s power to adopt a presidential decree concerning the President’s authority to terminate an international instrument.
Furthermore, according to Article 104/17 of the Turkish Constitution, the fundamental rights, personal freedoms, and responsibilities enshrined in the first and second chapters, and the political rights and responsibilities enshrined in the fourth chapter of the second part of the constitution must not be governed by a presidential decree. Subsequently, the Istanbul Convention is broadly concerned with the right to life and the right to protect one’s bodily and spiritual existence, both of which are covered in the Turkish Constitution’s second chapter. In respect to the withdrawal from the Istanbul Convention, the President has no authority to declare a presidential decree. Therefore, the Presidential Decree on withdrawal is unconstitutional.
Article 31 of the Vienna Convention on the Law of Treaties (‘VCLT’) states that treaty terms should be considered “in accordance with their usual meaning… in their contexts and insight of [the Convention’s] object and purpose.” This provision indicates that the Convention should be read in the spirit in which it was written by the drafters, to construct standards and mechanisms to prevent and eliminate violence against women. Furthermore, Turkey’s withdrawal also violates the VCLT standard concerning ‘treaties withdrawal.’ Article 42(2) VCLT, asserts that a state’s withdrawal from a treaty ought to respect the application of the provisions, the treaty; the VCLT. Taking note of the requisite threshold, the President’s proclamation fails to comply with the formal notification requisite enshrined in Article 80 of the Istanbul Convention, similarly, it also fails to comply with the VCLT threshold. Particularly, the treaty withdrawal must proceed “in accordance with the treaty’s provisions” [Article 54(a)] and “the approval of all parties following consultations with the other contracting States” [Article 54(b)].
Considering its specific references to non-discrimination on the rationale of sexual orientation, the Turkish President’s party and conservative organizations have contended that the Conventionwhich was initially intended to promote women’s right, is taken by the Queer community to normalize ‘homosexuality’and diminishes Turkey’s family structure, incentivizes divorce. One such argument is that in Islam, a marriage is a contract bwetween men and women ‘only.’ However, the Convention under Article 4(3) prohibits discrimation on ‘sexual orientation’ and protects sexual preferences which legitimize same-sex relationship and marriage that eliminates the customary roles, traditions and different practices, which are contrary to the Turkish family structure.
Nevertheless, Turkey’s rationale is still puzzling. Whether or not a woman identifies as Queer has no relevance on the Convention’s role of preserving women from violence. The notion that the term ‘gender’ can be considered to include Queer rights and that some women identify as such has no influence on the Convention’s desired outcome. Furthermore, Article 31 VCLT states that the meaning of terms and phrases in treaties can only be changed or altered by states, not by “groups of people.” Turkey’s withdrawal seemed to be prompted more by sentiment than by law. The President’s move to withdraw from the Istanbul Convention not only violates Constitutional principles and international law, but also compromises the Pacta Sunt Servanda notion, and degrades the protection of women in the state. With Turkey’s withdrawal from the Convention and Poland on the brink of joining similarly, the position of women in Europe seems to deteriorate rather than improve, and is a serious concern for women’s rights.
*Sarthak Gupta is an undergraduate B.A.; L.L.B law student at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Public Law, Human Rights & Gender Studies, and International Law.
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