Steve Peers
While conversations about the European Union (EU) and human rights often revolve around the EU Charter of Fundamental Rights and the EU’s potential membership in the European Convention on Human Rights, it’s also important to look at how the EU interacts with other international human rights agreements.
The EU can’t join older UN human rights treaties like those addressing sex and race discrimination because they are only open to individual countries. Similarly, only countries can ratify conventions from the International Labour Organization (ILO), though the EU sometimes coordinates its members’ stances on ILO policies.
However, newer international human rights agreements allow the EU to join, as it did with the UN Convention on the Rights of Disabled Persons. With the Council of Europe’s Istanbul Convention on violence against women coming into effect, the question arises: should the EU also become a party to this treaty? This piece argues that the EU should ratify the Convention as soon as possible.
EU Authority to Ratify the Istanbul Convention
The EU is certainly capable of ratifying the Istanbul Convention. Firstly, the Convention explicitly permits ratification by the EU in Article 75(1) without any special conditions.
Secondly, under EU law, it can sign any treaty potentially impacting existing common rules (Article 216 TFEU). While EU law hasn’t dealt with the main criminal law aspects of the Istanbul Convention, the Convention goes beyond criminal liability. It addresses issues where EU law measures already exist, such as victims’ rights, cross-border protection orders (civil and criminal), other forms of international cooperation, and immigration/asylum.
If the EU ratifies the Istanbul Convention, it won’t replace its member states but will join them in ratifying it. This would make the Convention a “mixed agreement” ratified by both the EU and its members, similar to the UN Disabilities Convention, potentially the ECHR in the future, and many other agreements. The EU wouldn’t be legally required to create new laws on violence against women beyond what’s already in place. While there are valid arguments and legal grounds for the EU to establish specific criminal law rules in this area, this is separate from whether the EU should ratify the Convention.
Reasons for EU Ratification of the Istanbul Convention
First, EU ratification would motivate both its member states and non-member states to do the same, boosting the Convention’s visibility globally. This could lead to changes in national laws and regional treaties beyond Europe.
Second, ratification would address claims of “double standards” where the EU demands that aspiring member states and associated countries meet human rights standards that it doesn’t apply to itself. While these arguments can be countered for treaties the EU cannot join, it’s harder to do so for those it can. If the EU can ratify the Istanbul Convention but chooses not to, how can it justifiably ask non-member states to do so?
Ratifying the Convention would strengthen its role in EU law by making it a clearer benchmark for interpreting and validating EU legislation (existing and future). It would also mean that the Convention would immediately apply to EU member states that hadn’t yet ratified it on matters within EU jurisdiction.
Furthermore, the Court of Justice of the European Union (CJEU) would have the power to interpret Convention provisions falling under EU law, promoting consistent interpretation within the EU.
Additionally, relevant Convention provisions would become more enforceable within EU law. Although the CJEU might rule that the Istanbul Convention, like the UN Disabilities Convention, doesn’t have direct effect, it would at least have “indirect effect” (requiring EU law to be interpreted in line with it). The Commission could then take legal action against member states not properly implementing the Convention on matters within EU competence. Ensuring the Convention’s enforceability is vital, given the lack of an individual complaint mechanism.
Finally, ratification would subject the EU to external monitoring on this issue. It would avoid the awkward situation where member states are monitored on matters within EU authority, meaning the Convention’s monitoring body would, to some extent, be overseeing EU member states’ compliance with EU law.
[Update: the Commission proposed that the EU should sign and conclude the Convention in March 2016. See discussion here.]
Annex
EU competence regarding the Istanbul Convention
Articles 18-22, 25-28, 30(1), 50(1), 56, 57: crime victims Directive
Article 47: Framework Decision on recognition of criminal sentences
Article 59(1): family reunion Directive, citizenship directive
Article 59(2): Returns Directive, citizenship Directive
Article 60(1) and (2): Qualification directive
Article 60(3): Reception conditions directive; asylum procedures directive
Article 61: Qualification directive, Returns Directive
Article 62(1)(b) and (3): Crime victims Directive
Article 62(1)(d): protection orders legislation
Article 62(1)(a) and (c) and (2): legislation on mutual recognition, et al in criminal and civil matters
Article 65: Data protection Directive; Framework Decision on data protection
Barnard & Peers: chapter 20, chapter 24, chapter 25, chapter 26