Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration at the Refugee Studies Centre, University of Oxford - @CateBriddick*
On March 11, 2021, Advocate General Hogan of the Court of Justice of the European Union (CJEU) presented his legal opinion on the European Parliament’s inquiry regarding the European Union’s (EU) potential membership in the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention). This opinion, delivered as part of Opinion Procedure 1/19, ECLI:EU:C:2021:198, responds to the European Parliament’s request for guidance on the legal basis for the EU’s accession to the Convention.
For those concerned about the EU’s attempt to take on only a limited number of the legal responsibilities the Istanbul Convention places on its participants, the Advocate General cautions that determining whether joining this particular convention aligns with existing EU treaties presents new and complex legal issues that demand impartial and objective legal scrutiny.
This blog post presents an initial reaction to the Advocate General’s Opinion and the potential consequences for women in Europe if the CJEU’s judgment aligns with his perspective. This analysis will not be detached or unemotional.
Let’s examine the “complex legal questions” and their answers.
The Istanbul Convention stands as only the second international legal agreement to concentrate on violence against women, recognizing this type of violence as a consequence of historically unequal power dynamics between men and women that have resulted in men dominating and discriminating against women, as stated in the Convention’s preamble.
Both the EU and its individual member states have the option to either accede to or ratify the Istanbul Convention. Accession requires a decision by the Council, with the European Parliament’s approval. This decision must clearly state the legal justifications for the EU’s accession, and these justifications must stem from the EU’s legal authority to act in the specific area addressed by the Convention. Upon ratification, the agreement becomes legally binding on both the EU institutions and its member states, within their respective areas of competence and to the extent outlined in the treaty by the EU. Further details about the EU’s potential accession to the Istanbul Convention are available online. Some of my previous thoughts on this topic are also accessible.
On May 11, 2017, the Council approved two distinct decisions regarding the signing of the Istanbul Convention. The first decision, 2017/865, invokes Articles 82(2) and 83(1) of the Treaty on the Functioning of the European Union (TFEU) and limits accession to solely those aspects of the Convention dealing with “judicial cooperation in criminal matters.” The second decision, 2017/866, designates Article 78(2) TFEU, which pertains to the establishment of a shared European asylum framework, as its legal foundation, referencing only “asylum and non-refoulement.”
These two Council decisions deviate from the Commission’s initial proposal in two interconnected ways.
Firstly, the decisions are grounded in different legal bases than those identified by the Commission. Secondly, the selected legal bases diverge because the decisions restrict, or aim to restrict, the EU’s acceptance of legal obligations outlined in the Istanbul Convention to those solely concerning judicial cooperation in criminal matters, asylum, and non-refoulement. This restricted approach to accession would shield significant portions of EU law, including regulations on free movement, from scrutiny under the Convention and its monitoring entity, GREVIO.
The European Parliament promptly conveyed its dissatisfaction and advocated for comprehensive EU accession to the Convention without any limitations. Subsequently, on July 9, 2019, it formally requested an advisory opinion from the CJEU on the following inquiries:
(a) Do Articles 82(2) and 84 TFEU (the legal bases put forth by the Commission) constitute the appropriate legal grounds for the Council’s act of concluding the Istanbul Convention on behalf of the Union, or should the act be based on Articles 78(2), 82(2), and 83(1) TFEU (the bases chosen by the Council)?
(b) Does the selection of the legal basis necessitate or permit the division of the two decisions, one concerning the signing and the other concerning the conclusion of the convention?
Is the Union’s conclusion of the Istanbul Convention, as per Article 218(6) TFEU, compatible with the Treaties in the absence of a unanimous agreement among all Member States consenting to be bound by the convention?
Regarding question 1(a), the Advocate General advises that the decision(s) authorizing the EU to enter into the Convention must be founded on Articles 78(2), 82(2), 84, and 336 TFEU. These articles address the common European asylum system, judicial cooperation in criminal matters, non-harmonized measures for crime prevention, and employment conditions for EU officials. The Advocate General selects these particular bases because they align with the areas where the Council has chosen to exercise its competence, even though they don’t encompass the entirety of the Istanbul Convention.
To reach this decision, the Advocate General had to accept the Council’s “limited adhesion” to the Istanbul Convention. This acceptance acknowledges that such limited involvement means the EU is choosing not to utilize its authority in the realm of combating gender-based discrimination. It’s important to note that the Advocate General dismisses the Istanbul Convention’s central objective—the elimination of sex discrimination—as a basis for accession. This is despite the EU’s existing authority and legal responsibility to address this issue as outlined in Articles 8 and 10 TFEU.
Having already accepted the Council’s/EU’s “limited adhesion” to the Convention, the Advocate General proceeds to answer question 1(b) affirmatively, noting the potential impact of the Convention’s protections for asylum-seeking and refugee women on the relevant EU rules.
The Istanbul Convention adopts an intersectional perspective on violence and discrimination against women. Article 4(3) specifically prohibits discrimination based on various factors, including sexual orientation, marital status, and migrant or refugee status. Certain states have opposed and sought to weaken this approach, even after signing the Convention. This act obligates them to refrain from actions that would undermine its goals and objectives, as stated in Article 18 of the Vienna Convention on the Law of Treaties (1969).
The European Parliament has condemned these actions as a “backlash” against women’s rights, expressing support for the rights and protections guaranteed by the Convention to all women. Despite the concerted endeavors of the Council of Europe and other entities to address “concerns” surrounding the Convention’s aims and impacts, several EU member states have not ratified it. Poland and Turkey (the latter being a member of the Council of Europe but not the EU) have declared their intention to withdraw from the Convention altogether. (Professor Başak Çali’s analysis of Turkey’s decision is available online.)
This raises the question: should and can the EU join an international agreement when a substantial and vocal portion of its member states have chosen not to do so? The Advocate General suggests that while there are compelling practical reasons to wait for member states to ratify the Convention, the Council is not legally obligated to do so.
Now, for a more personal and passionate perspective.
From the outset of his opinion, the Advocate General acknowledges that the Council has the option to pursue a partial conclusion of the Istanbul Convention. In discussing this, however, his language subtly shifts from analyzing the EU’s legal authority and choices (“where the Union chooses not to exercise the competence…” paragraph 84) to highlighting the Council’s intentions ("…it is clear that the Council intends…paragraph 85).
This shift in language and legal focus effectively replaces the intentions of the Union as a whole with those of the Council. This move is unexpected, especially considering the lack of consensus within EU institutions and among its member states regarding the need to ratify the Istanbul Convention. While the Advocate General does acknowledge that the Council’s decisions might be subject to future legal challenges once the exercised competences are known (paragraphs 86, 164), he does not adequately scrutinize the Council’s decision to forgo using its authority related to sex discrimination to embrace all of the Convention’s obligations. This oversight is particularly glaring because this course of action seems explicitly mandated by Articles 8 and 10 TFEU (“the Union shall aim to combat discrimination based on sex…”), and is also advocated for by the European Parliament.
Secondly, and linked to the previous point, the Advocate General’s endorsement of a partial accession to the Istanbul Convention could, as mentioned, exempt crucial areas of EU law from aligning with the Convention’s standards. One might speculate that this is the precise intention behind the proposed accession. It is deeply concerning that the Advocate General adopts this approach without a clear grasp of which parts of EU law his Opinion, if upheld by the Court, would impact and shield.
The Advocate General sidesteps the question of whether the EU’s free movement regulations meet the standards established by the Istanbul Convention for safeguarding migrant victims of violence against women (paragraph 106 - they fall short). He then incorrectly presumes that the second Council decision pertains to these regulations (paragraphs 104-112, 160). This assumption is inaccurate. As stated in paragraph 9 and Article 1, the second decision exclusively addresses asylum and non-refoulement as outlined in Articles 60 and 61 of the Istanbul Convention. Notably, it explicitly excludes Article 59 of the Istanbul Convention, which promotes a protective four-pronged strategy for the residence rights of migrant victims. The Advocate General’s misunderstanding of this point is highly concerning, particularly given the CJEU’s decision in the case of NA. The Court’s ruling in NA denied residency rights to abused migrant spouses of EU citizens who were abandoned before initiating divorce proceedings. This decision has been widely criticized. Due to space constraints, a deeper exploration of this point and the Advocate General’s assertion that EU law does not generally mandate considering violence against women as a form of persecution that could justify refugee status is not possible at this time.
This brings us to the final point concerning objectivity and the influence of power dynamics in legal decision-making.
The Advocate General acknowledges that this case centers on violence and discrimination against women. It highlights the reality that, in the UK, another state that hasn’t ratified the Convention, a woman is killed by a man every three days on average. Violence, and the fear it instills, dictates and influences the lives of countless women. Personal experiences demonstrate this. Assaults, harassment, and threats have been endured, some occurring while pregnant or with a young child. Detaching from or remaining indifferent to state and EU responses to violence and discrimination against women is not possible. Nor can those women whose migration statuses hinge on EU regulations that offer significantly less protection than those provided by the Istanbul Convention remain indifferent.
Violence against women is a form of discrimination that infringes upon women’s human rights. This includes the right to equal protection under the law, as affirmed by both the European Court of Human Rights case of Opuz v. Turkey and the EU’s Charter of Fundamental Rights. Legal opinions and judgments that fail to adequately consider and uphold legal prohibitions against sex discrimination, and instead seek to circumvent them, perpetuate and exacerbate such discrimination. Combating violence against women and children is not merely a “noble and desirable goal” as suggested in the Advocate General’s Opinion. It is a legal imperative. Invoking detachment as a justification, especially when presented in place of a principled defense of the rights of women and children, only exposes the position and power held by those who offer it.
To be absolutely clear: the intention is not to compare or equate personal experiences of violence with the ordeals of migrant women like NA. Every individual is situated differently within complex and interconnected systems of power and oppression. The Istanbul Convention recognizes this reality by prohibiting intra-sex discrimination. It strives to guarantee that those facing multiple forms of discrimination, such as migrant women and women targeted due to their race and gender, receive tailored support and resources to overcome these challenges. This is just one facet of a convention that deserves unwavering advocacy. A CJEU judgment that acknowledges and comprehends this urgency is eagerly anticipated.
*Sincere thanks to Professor Shazia Choudhury for reviewing this piece. Any remaining errors are solely the author’s responsibility.
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Photo credit, Cedric Puisney, via Wikicommons Media