CommentaryIronically, Turkey was the first country to ratify “The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence”, commonly referred to as the ‘Istanbul Convention’. On 24 November 2011, the Turkish Grand National Assembly unanimously ratified the Convention. Subsequently, it was incorporated into the domestic law- Law No. 6284, on 8 March 2012, i.e. the International Women’s Day. On 20 March 2021, through Presidential Decision No. 3718 and Presidential Decree No. 9, Recep Tayyip Erdogan, the Turkish President, withdrew Turkey from the Istanbul Convention. On 22 March 2021, Turkey’s Communication Directorate released an official statement citing the reasons for withdrawal, they are-
That the Istanbul Convention tries to normalize homosexuality and advocates for the LGBTQ community which is incompatible with the social and family values of Turkey.
That six other members of the European Union- Bulgaria, Hungary, Czechia, Latvia, Lithuania, and Slovakia did not ratify the Istanbul Convention. Poland believes that the LGTBQ community is imposing their ideas about gender on the entire society, therefore, has also taken steps to withdraw from the Convention.
Turkey’s withdrawal from the Convention is not-so-unexpected, for it has been a bone of contention in the country from the very outset, drawing enough criticism from the religious and conservative groups. The critics have lambasted it for demeaning the traditional familial values and encouraging divorce; they also believed the Convention to be advocating for homosexuality by using terms like gender, sexual orientation, and gender identity. However, the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence seeks to create a legal framework to prevent and fight for violence against women and domestic violence, as well as promote equality. Time and again, certain clarifications have been made concerning ‘What the Convention does not say?‘.
Firstly, it is not a threat to the concept of family- “The Convention does not regulate family life or structures and states do not have to change the traditional understanding of families”. Secondly, it is not a threat to the traditions and values- “The Convention only states that traditions, culture or religion cannot be used as a justification for acts of violence against women”. Thirdly, it does not promote any kind of gender idealogy- “The word ‘gender’ is used in the Convention to emphasize that women are more likely to experience violence because they are women”. Fourthly, it does not recognize same-sex marriages- “The Convention does not affect national civil law rules on marriage in any way”. Fifthly, it does not introduce a third gender- “States are only required to protect victims’ rights without discrimination on any grounds, including sex, race, religion, language, age, marital status, sexual orientation, or gender identity”.
Amidst the surge in cases of domestic violence and femicide against women in Turkey, the withdrawal from the Istanbul Convention deserves to be strongly condemned. During these hapless times, when the rest of the world fought with one Pandemic, women had to fight two- the COVID-19 and the ‘Shadow-Pandemic’ of Domestic Violence. According to the Istanbul Security Directorate, there has been a 38.2% increase in domestic violence cases in March 2020 as compared to March 2019. According to the Turkish Federation of Women’s Association, there is an 80% increase in physical violence cases in March 2020 as compared to March 2019. In 2020, more than 400 women were killed by their male partners and, so far in 2021, 78 women have already been killed in Turkey.
The Turkish Government assured its people that withdrawing from the Convention would not mean neglect of the law on Domestic Violence and Women’s Rights. The Family and Social Policies Minister Zehra Zumrut Selcuk said, “The guarantee of women’s rights are present in our current laws and especially in our constitution. Our judicial system is dynamic and strong enough to implement new regulations as needed”. However, Turkish women have always criticized the government for the ill-implementation of the treaty’s minimum requirements. It is indeed thought-provoking, how a government that failed to curb the recurrently growing cases of violence against women, with the backing of an International Treaty and the Domestic Laws, would be able to do so now- with just the Constitutional Safeguards.
This move of President Erdogan is not only morally incorrect but also legally and constitutionally incorrect. It is indeed, a constitutional setback for Turkey, insofar as it flouts the fundamental principle of the Constitution that- the Executive cannot usurp the powers of the Legislative. Article 90 of the Constitution of the Republic of Turkey, mentions two important points of law in this regard. Firstly, the ratification of International Agreements shall be by the Turkish Grand National Assembly (the Parliament) through a law. There is no explicit provision for withdrawal or termination of a treaty. Secondly, in the case of a conflict between the International Agreement and the Domestic Law, on the same matter, with regards to the Fundamental Rights and Freedoms, the International Agreement shall prevail. The Constitution lays greater importance on the international agreement and places it on a higher pedestal. Article 104 of the Constitution, mentions an important aspect in this regard- a Presidential Decree cannot be issued for a matter- provided for in the Constitution to be explicitly regulated by law. By Article 90, international agreements once ratified are to be incorporated as domestic law, therefore, such agreements are exclusively regulated by law. The act of withdrawal from the Istanbul Convention was through a Presidential Decree and, President Erdogan did not possess the power to issue one in this regard. Such a decree is, therefore, unconstitutional. Henceforth, the Executive cannot withdraw from an International Agreement through a Presidential Decree, in doing so, it impedes upon the exclusive powers conferred on the Legislature.
The Vienna Convention on the Law of Treaties (VCLT) does not provide for an exclusive withdrawal or termination mechanism from a treaty. However, Article 54 of the Vienna Convention mentions that- the treaty may be withdrawn or terminated according to the provision on withdrawal set out in the treaty. Article 80 of the Istanbul Convention provides how a party to the treaty can denounce it. The denunciation has to be through a notification addressed to the Secretary-General of the Council of Europe. It 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. The denouncing of the Istanbul Convention by a Presidential Decree and not by an official notification is not in legal consonance with the Vienna Convention on the Law of Treaties.
With Turkey withdrawing and Poland in line to withdraw from the Convention, the situation of women in Europe would worsen than get better. In anticipation of no stringent action, the perpetrators will get a free hand in committing crimes and cases of violence against women would escalate. It is disheartening to witness countries deciding against women than for women. Turkey’s withdrawal from the Istanbul Convention flouting its Constitution and the VCLT is certainly going to set out a bad example for the other European countries to follow. Such regressive decisions make the goal of a gender-equal world even more far-fetched. It is high time now that women got emancipation than exacerbation.
Ayushi Singh, a law student at the National University of Study and Research in Law, Ranchi, Jharkhand.
Suggested citation: Ayushi Singh, Turkey’s Withdrawal from the Istanbul Convention: Is it Justified?, JURIST – Student Commentary, April 15, 2020, https://www.jurist.org/commentary/2021/04/ayushi-singh-turkey-istanbul-convention/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
