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Istanbul Exits Istanbul Convention: Turkey’s Withdrawal and the Shattering Picture of Women’s Right


By: Shelal Lodhi Rajput & Abhisheka Sharma* |




INTRODUCTION


Turkish President Recep Tayyip Erdogan’s quest for Islamic domination is evident from the steps taken in Ankara. He has recently pulled his country out of an international accord, The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (hereinafter Istanbul Convention). Istanbul Convention is the first legally binding instrument in Europe to prevent violence against women. Ironically, Turkey was the first country to ratify the Convention on 14th March 2012. Subsequently, on March 8, 2014 (International Women's Day), the Turkish Parliament unanimously ratified the Convention and passed the Law on Family Protection and Violence Against Women (Law No. 6284) to implement it into their domestic law. However, On March 20, 2021, exactly after 12 days of International Women’s day, through Presidential Decision No. 3718 and Presidential Decree No. 9 Turkey withdrew from the accord. This Convention has always been a severe bone of contention in the country, and conservatism groups severely criticise it. Thus, by exiting from the Instanbul accord, Erdogan took a step backward for Women's Human rights.


This article unfolds how the exit of Turkey from the Istanbul convention portrays a backward step towards the human rights of women in Turkey. Further, the step of Turkey is devoid of any rationale objective, and the rising cases of domestic violence in Turkey cause a threat to women's rights.


IRRATIONAL ‘RATIONALES’ FOR WITHDRAWL


The reason cited by the Turkish President’s party and conservation group for their decision to withdraw is bizarre. According to them, the accord gives too much freedom to women, hurts family values, "normalises Homosexuality” and encourages divorce. In an official statement released by Turkey's communication directorate, the prime reason for withdrawal is that the Istanbul Convention, originally intended to promote women's rights, was hijacked by a group of people attempting to normalise homosexuality – which is incompatible with Turkey’s social and family values. This decision faced a severe backlash from society and has never been supported by society at large, but few conservative and religious groups applauded the Government for this measure.


The Istanbul Convention was founded on the understanding that gender-based violence disproportionately impacts women. Consequently, it advocates a four-pillared approach to combat violence against women at various societal levels and provides them with the necessary tools to help victims.


This accord becomes extremely pertinent during this pandemic as there has been a surge in domestic, gender-based, sexual, and mental violence against women. In this light, the decision of Ankara needs to be condemned strongly and must be revisited by the Turkish Government. It is important to note that the Turkish state has never been transparent in declaring domestic violence cases in public. In 2021, at least 118 women were killed due to the rise in femicide. In 2020, 400+ women were killed by their male partners and there was an 80% increase in physical violence against women in Turkey since then.


As a result, the exit from accord cannot be justified, and the decision was taken unilaterally without any debate in Parliament and irrational rationales were given for withdrawal. There is no denying that this withdrawal is a cynical political calculation to secure support from the religious fundamentalists. Erdogan’s decision has triggered massive protests in Istanbul. Various women's organisations have urged for a reversal of the decision of the President.


UNCONSTITUTIONAL SETBACK


This decision is arbitrary, morally incorrect, against the Turkish Constitution, and hence it is illegal and void. It is not in accordance with the Constitution because Article 104, which establishes the President's executive power, grants the President the authority to issue Presidential Decrees only on executive matters. According to, Article 90 of the Constitution the Parliament is to ratify International treaties by legislation. Following the passage of the legislation by Parliament, the President may use his executive authority to approve and publish the treaty in accordance with Article 104 of the Constitution.


However, there is no provision in the Constitution for withdrawal from treaties, and it should be the power of Parliament to withdraw from a treaty, based on the principle that anything is dissolved in the same way it was entered into. Under the Constitution, any law passed by Parliament cannot be subjected to the executive amendment. The executive, i.e. the President, is not authorised to exercise legislative authority. It cannot, under domestic law, repeal a law. This law can only be changed or repealed by Parliament by passing a domestic law to denounce a treaty. As a result, under the separation of powers enshrined in Article 7 of the Constitution, the President cannot exercise legislative powers. The withdrawal decision through Decree No. 9 is unconstitutional and void.


Moreover, Turkey has violated the International law as The Vienna Convention on the Law of Treaties, 1969 that codifies customary international law and provides us with two rules, procedural and substantive. The first rule, according to Article 54 of the VCLT is that a state must follow the treaty's withdrawal provisions. In the instant case, Article 80 of the Istanbul treaty provided a procedure for member states to withdraw from the treaty. It mentions that there must be an official notification (i.e., that a Presidential Decision cannot suffice) and the notification will come into effect after a three-month period. The second rule is derived from Article 46(1). As per Article 46(1), a State may not invoke its consent to be bound by a treaty due to a violation of its internal law unless the violation was manifest and concerned a rule of its international law of fundamental importance. As a result, unless there is a ‘manifest' violation of a domestic rule of ‘fundamental importance,' the binding nature of a treaty signed by an authoritative State representative will be assumed under international law. On every front, ranging from morality to legality aspect, the decision of the Turkish President presents a worrisome picture of the legal framework, and this step will worsen the situation of women in Europe instead of strengthening their rights.


THE ROAD AHEAD AND CONCLUDING REMARKS


Turkey's withdrawal from the Istanbul Convention, in violation of its Constitution and the VCLT, will undoubtedly set a bad example for other European countries to follow. Such regressive decisions make the goal of gender equality even more improbable. It is past time for women to achieve emancipation rather than exacerbation.


It is safe to conclude that the Presidential Decree is unconstitutional and void in the light of the legal position explained above from the lens of domestic as well International law. What should be the road ahead is the bigger question here? There is a way through which the decision of the Turkish President can be annulled. The Turkish Constitution recognises the constitutional review of presidential decrees under Article 152 of Constitution. To annul this decision, a claim of unconstitutionality of Presidential decree after filing an administrative lawsuit for the cancellation of the decision is needed. Any person with interest in filling the lawsuit for this purpose should file a cancellation lawsuit before the Council of State, asking for the annulment of the Presidential Decision for Unconstitutionality (Article 24 of the Law on Council of State no. 2575). If the Council of State finds this claim to be unconstitutional, it should refer it to the Turkish Constitutional Court, which can conduct a concrete constitutional review. If the Turkish Constitutional Court rules that the Presidential Decree is unconstitutional, the Council of State has the authority to annul it.


Turkish President shows no sign of reconsidering withdrawal from the accord and there is hardly any hope that Ankara would revisit its decision. Turkey's withdrawal from the accord jeopardises not only the safety of women in the country, but also facilitates disinformation campaigns, accepts backsliding on domestic violence and women's rights regulations elsewhere. Once again, it is evident that why women are still fighting for the most basic rights as women are still battling against Victorian era mentality. We need to take a progressive approach, but the step of the Turkish regime is a regressive one.


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* Shelal Lodhi Rajput is a 2nd Year BBA LLB student of Symbiosis Law School, Pune.

Abhisheka Sharma is an LLM student of the Indian Law Institute, Delhi.



Image Source: https://www.aljazeera.com/news/2021/3/31/turkeys-withdrawal-from-women-violence-treaty-goes-to-court

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