Some Complex Legal Questions Examined from a Legal Perspective in a Partial and Passionate Manner Or, The EU’s Ratification of the Istanbul Convention: Competence, Bases and Common Accord
Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration at the Refugee Studies Centre, University of Oxford - @CateBriddick*
On the 11th March 2021 Advocate General Hogan of the CJEU delivered his Opinion (Opinion Procedure 1/19, ECLI:EU:C:2021:198) on the European Parliament’s request for an advisory opinion on the accession of the EU to the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence.
To prepare the reader concerned by the EU’s attempt to assume just a small selection of the legal obligations the Istanbul Convention imposes on its parties, the Advocate General cautions that:
“While that [the Istanbul] convention seeks to advance the noble and desirable goal of combating violence against women and children, the question of whether the conclusion of that particular convention would be compatible with the EU Treaties presents complex legal questions of some novelty which must naturally be examined from a legal perspective in a detached and dispassionate manner.” (para 2)
In this blog, I present my initial thoughts on the Advocate General’s Opinion and the implications that a CJEU judgment along the same lines could have for women in Europe. Detached and dispassionate I am not.
So, “complex legal questions” and their answers first.
The Istanbul Convention is only the second international legal instrument to focus on violence against women, such violence being, per the Convention’s preamble:
“a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men.”
Both the EU and its Member States can accede to or ratify the Istanbul Convention. Accession involves the Council, with the consent of the European Parliament, adopting a decision to do so. The decision must identify the legal bases of the EU’s accession, bases which must be derived from the EU’s legal competence (its ability or power) to act in a particular field. Once ratified, the agreement is binding on the institutions of the EU and EU Member States, within the relevant competences and to the extent that the EU has concluded the treaty. Further information about the EU’s accession to the Istanbul Convention can be found here. Some previous thoughts of mine on this topic are available here.
On 11 May 2017 the Council adopted two separate decisions relating to the signing of the Istanbul Convention. The first decision (2017/865) refers to arts 82(2) and 83(1) TFEU and limits accession only to those parts of the Convention concerned with “judicial cooperation in criminal matters.” The second decision (2017/866) identifies art 78(2) TFEU on the establishment of a common European asylum system as its legal base, this time referring only to “asylum and non-refoulement.”
These two Council decisions departed from that proposed by the Commission in two, interconnected ways.
First, the decisions rely on different legal bases to those the Commission identified. Second, the identified bases differ because the decisions limit, or attempt to limit, the legal obligations the EU will accept in relation to the Istanbul Convention only to those that concern judicial cooperation in criminal matters and to asylum and non-refoulement. Such a limited accession would insulate swathes of EU law, including free movement law, from the purview of the Convention and its monitoring body, GREVIO.
The European Parliament was quick to express its “regret” and to recommend a “broad EU accession to the Convention without any limitations”. On 9 July 2019, it requested an Advisory Opinion from the CJEU on the following questions:
(a) Do Articles 82(2) and 84 TFEU (the bases proposed by the Commission) constitute the appropriate legal bases for the Council act concluding the Istanbul Convention on behalf of the Union, or should that act be based on Articles 78(2), 82(2) and 83(1) TFEU (the bases selected by the Council)?
(b) Is it necessary or possible to split each of the two decisions on the signing and on the conclusion of the convention as a result of this choice of legal basis?
Is the conclusion by the Union of the Istanbul Convention in accordance with Article 218(6) TFEU compatible with the Treaties in the absence of a common agreement of all the Member States giving their consent to being bound by the convention?’
On 1(a), the Advocate General opines that the decision(s) authorising the EU to conclude the Convention must be based on Articles 78(2), 82(2), 84 and 336 TFEU (para 166). These bases concern the common European asylum system, judicial co-operation in criminal matters, non-harmonising measures for crime prevention and EU officials’ conditions of employment. The Advocate General selects these bases because they correspond to those which, whilst not covering the entirety of the Istanbul Convention, correspond to those competences the Council has chosen to exercise (paras 136, 148).
Reaching this decision required the Advocate General to accept the Council’s “limited adhesion” to the Istanbul Convention, even though such an “adhesion” involved “renouncing its [the EU’s] competence in the area of combating discrimination based on gender” (para 165). Notably, the Advocate General rejects as a base for accession the key objective of the Istanbul Convention - the elimination of sex discrimination (para 129) notwithstanding the EU’s competence and legal obligation to do so (arts 8 & 10 TFEU).
Having already accepted the Council’s/EU’s “limited adhesion” to the Convention, the Advocate General proceeds to answer question 1(b) in the affirmative, noting as he does the potential impact of the Convention’s protections for asylum-seeking and refugee women on the relevant EU rules (more on which later).
The Istanbul Convention takes an intersectional approach to violence and discrimination against women, art 4(3) prohibiting discrimination on a range of grounds, including sexual orientation, marital status, migrant or refugee status. A number of States have objected to and sought to undermine this approach, even after they have signed the Convention and are, therefore, obliged to refrain from acts which would defeat its objects and purposes (per art 18, Vienna Convention on the Law of Treaties 1969).
The European Parliament has condemned what it describes as a “backlash” against women’s rights, expressing its support for the rights and protections the Convention provides to all women. Notwithstanding the concerted efforts of the Council of Europe and othersto respond to ‘concerns’ about the Convention’s aims and impacts, a number of EU States have failed to ratifyit. Poland and Turkey (the latter a member of the Council of Europe but not the EU) have announced their intention to withdraw from the Convention altogether (see Professor Başak Çali’s analysisof Turkey’s decision).
Should and can the EU accede to an international instrument when a significant and vocal proportion of its Member States have chosen not to do so? The Advocate General opines that while there are “strong practical reasons” (para 218) to wait for its Member States to ratify the Convention, the Council is under no obligation to do so (para 223).
And now to the partial and passionate bit.
The Advocate General accepts, from the outset of his opinion, that the Council can proceed to a partial conclusion of the Istanbul Convention. When discussing this, however, he shifts from a discussion of the legal powers and choices of the EU itself (“where the Union chooses not to exercise the competence…” para 84) to that of the Council (“…it is clear that the Council intends...para 85).
In this linguistic and legal shift, the Advocate General substitutes the Council’s intentions for those of the Union as a whole, a move that is surprising given the lack of agreement on the necessity of ratifying the Istanbul Convention within the EU’s institutions, or between its Member States. The Advocate General does acknowledge the possibility that the Council’s decisions could be the subject of further challenge, once the competences exercised are known (paras 86, 164). He fails, however, to subject to adequate scrutiny the Council’s decision not to draw on its competence in relation to sex discrimination to accept all the obligations the Convention imposes. This failure seems particularly stark given that this is almost precisely the course of action that arts 8 & 10 TFEU seem to demand, (“the Union shall aim to combat discrimination based on sex…”), in addition to being called for by the European Parliament.
Second and linked to the above, the Advocate General’s acceptance of a partial accession of the Istanbul Convention could, as explained, exempt key areas of EU law from having to meet the standards it imposes. One could be forgiven for speculating that this is precisely the point, or one of the points, of the proposed accession. It is extremely troubling, however, that the Advocate General takes this approach without understanding exactly which parts of EU law his Opinion, if followed by the Court, would effect and protect in this way.
Having side-stepped the question of whether or not the EU’s free movement rules meet the standards set by the Istanbul Convention for the protection of migrant victims of violence against women (para 106, spoiler alert – they really don’t), the Advocate General erroneously assumes (paras 104-112, 160) that the second Council decision is concerned with them. This is simply incorrect. As set out in para 9 and art 1, the second decision only concerns asylum and non-refoulement, Istanbul Convention arts 60 and 61. It specifically does not coverthe Istanbul Convention’s art 59, which takes a protective four-fold approach to migrant victims’ residence rights. It is of real concern that the Advocate General is so mistaken on this point, particularly given the CJEU’s “shameful” decision in NAto deny residence rights to migrant victims of domestic violence who are abandoned by their EU Citizen spouses before they can start divorce proceedings. Space precludes me from discussing this point any further, or for railing at the Advocate General’s comment to the effect that EU law does not “generally” require violence against women to be taken into account as a form of persecution that could give rise to refugee status (para 161).
All of which brings me to my third and final point which concerns detachment and power in legal decision-making.
This case is, as the Advocate General acknowledges, about violence and discrimination against women. It is about the fact that, in another State that has failed to ratify the Convention, the UK, a woman is killed by a man, on average, every three days. Violence, and the fear of it, determines the course of, and shapes, many women’s lives. It has shaped my own. I’ve been assaulted by men who followed me home from a late night at work. I’ve been sworn at on the street for refusing an “offer” of sex, and harassed and threatened when cycling back from drinks with colleagues. In the first of these incidents I was 8 months pregnant with my first child. In the second, I had my second child, then a 6-week-old baby, with me. I can’t be detached from, or dispassionate about, State and EU responses to violence and discrimination against women. Nor can the women whose migration statuses are currently determined by EU rules which offer them significantly less protection that that provided by the Istanbul Convention.
Violence against women is discriminatory violence that breaches women’s human rights, including the right to be equally protected by the law (per the ECtHR case of Opuz v Turkey and the Charter of Fundamental Rights of the EU). Opinions and decisions that give insufficient weight to legal prohibitions of sex discrimination, and attempts to circumvent them, sustain and amplify such discrimination. Combating violence against women and children is not a “noble and desirable goal” (para 2 of the Advocate General’s Opinion). It is a legal obligation. Exhortations of and to detachment, when offered in lieu of a principled vindication of women and children’s rights, serve only to reveal the position and power held by those who write them.
To be completely clear - I am not comparing, or in any way equating, my experiences of violence with the experiences of migrant women, like NA. We are all differently situated within co-constituting and mutually reinforcing networks of power and oppression. The Istanbul Convention’s prohibition of intra-sex discrimination recognises this, and seeks to ensure that those who are at the intersection of more than one axis of discrimination, including migrant women, and women who face violence because of their race and sex, receive the specialist support and services they need to overcome it. This is just one part of a Convention the whole of which is worth fighting for. I look forward to reading a CJEU judgment that sees and understands this.
*I would like to thank Professor Shazia Choudhury for reading this piece; all errors remain my own
Barnard & Peers: chapter 20
Photo credit, Cedric Puisney, via Wikicommons Media