Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration at the Refugee Studies Centre of the University of Oxford - @CateBriddick
Background
The European Union (EU) has a core legal commitment to fight discrimination, including sex-based discrimination, and to promote gender equality. However, it has faced ongoing and valid criticism for not upholding these commitments, especially regarding its treatment of female migrants and refugees. Therefore, the Commission’s 2016 announcement that the EU would sign and ratify the Council of Europe Convention on Preventing and Combating Violence Against Women (the Istanbul Convention) was welcomed by activists and academics.
For those unfamiliar, the Istanbul Convention is only the second international legal tool to address violence against women and its role in perpetuating women’s inequality. Outlined in Article 2, the Convention aims to protect women from all forms of violence and to prevent, prosecute, and ultimately eliminate violence against women and domestic violence. To achieve these aims, the Convention places a wide range of obligations on participating countries, requiring them to:
establish integrated, coordinated, and well-funded policies and programs to address gender inequality, monitor and respond to violence against women (Istanbul Convention, Chapter II);
prevent violence through education, training, and awareness-raising (Chapter III);
protect and support victims through various non-legal and legal measures (Chapters IV, V, and VI);
investigate, prosecute, and punish perpetrators (Chapter VI);
grant autonomous and/or renewable residence permits to female migrants who are victims of violence (Article 59); and,
ensure that refugee women’s claims for protection are handled in a gender-sensitive manner (Arts 60 and 61).
Crucially, the Convention mandates that Parties guarantee the rights and protections it offers to victims without discrimination on any grounds, including migration or citizenship status (Article 4(3)).
Enacted in 2014, the Convention has been ratified by thirty-three states as of this writing (including Germany, Austria, Denmark, France, Italy, Spain, Sweden, and Turkey) and signed by many others, including the UK.
The EU’s current approach
The Istanbul Convention itself anticipates EU accession (Article 75), which the EU can do fully within its powers, as previously examined on this blog. The process requires the Council, following a Commission proposal and European Parliament approval, to adopt a decision to conclude the agreement. The agreement must specify the legal bases for the EU’s accession, which stem from the EU’s legal authority to act in a particular area. Once ratified, this agreement is binding on EU institutions and EU Member States to the extent that the EU has concluded the treaty. You can learn more about this process here.
The EU holds broad authority concerning violence against women. The legal bases under the Treaty on the Functioning of the European Union (TFEU) outlined by the Commission in its Proposal for the Council on concluding the Istanbul Convention were:
Article 16 (data protection), Article 19(1) (sex discrimination), Article 23 (consular protection for citizens of another Member State), Articles 18, 21, 46, 50 (free movement of citizens, free movement of workers, and freedom of establishment), Article 78 (asylum and subsidiary and temporary protection), Article 79 (immigration), Article 81 (judicial cooperation in civil matters), Article 82 (judicial cooperation in criminal matters), Article 83 (definition of EU-wide criminal offenses and sanctions for particularly serious crimes with a cross-border dimension), Article 84 (non-harmonizing measures for crime prevention), and Article 157 (equal opportunities and equal treatment of men and women in areas of employment and occupation).
The Commission argued that basing a Council Decision to sign the Istanbul Convention on Articles 82(2) and 84 TFEU was appropriate because the Convention’s “predominant purpose” is to prevent crime and protect victims. Choosing these bases would allow the EU to “exercise its competences over the entirety of the Convention.” Therefore, the Commission’s draft Council Decision cites Article 82(2) and Article 84 TFEU and refers to the EU signing the entire Convention.
However, the Council adopted a drastically different approach than the Commission, making not one but two decisions to sign the Convention in May 2017.
The first decision cites Article 82(2) and Article 84 TFEU but states in Article 1 that:
The signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters is hereby authorized, subject to the conclusion of the said Convention (emphasis added).
The second decision identifies Article 78(2) TFEU (on establishing a Common European Asylum System) as its legal basis, stating in Article 1 that the signing of the Convention is “with regard to asylum and non-refoulement” (again, emphasis added).
These decisions restrict the EU’s legal commitments under the Istanbul Convention to those concerning judicial cooperation in criminal matters and asylum and non-refoulement (excluding, for instance, European Union free movement law).
These decisions deviate not only from the Commission’s proposal but also from the EU’s stance on the UN Convention on the Rights of Persons with Disabilities (the CRPD). The Council decision to sign the CRPD signed the entire Convention, citing the EU’s commitment to non-discrimination as its legal basis.
(Update: in April 2019, the European Parliament decided to ask the Court of Justice about legal issues relating to the EU’s proposed conclusion of the Istanbul Convention).
Commentary
Readers might understandably question if any of this truly matters. The obligations the EU intends to assume under the Istanbul Convention are substantial, even if more limited than many expected. EU action in either area it has signed up for could significantly improve how violence against women is addressed at both EU and national levels.
However, it does matter for at least two reasons.
Firstly, EU free movement law disadvantages women, including those who have experienced violence. For instance, as this blog and I have argued, the CJEU’s shameful decision in NA (concerning Article 13 of the Citizens Directive) left a third-country national woman, whose EU citizen husband abused her and then left the UK, without secure immigration status. Article 59 of the Istanbul Convention requires Parties to grant autonomous and/or renewable residence permits to victims of violence in broader circumstances than EU law currently provides. This could potentially improve the situation for women like NA, whose migration status is (or was) dependent on their partner. The EU’s decision not to sign up for this provision means that women facing violence whose migration status is determined by EU law will continue to face significant hardship.
Secondly, the Convention itself and its holistic approach to violence and discrimination against women have been challenged and undermined by States that are either Parties or signatories. Certain States, including Poland, Latvia, Lithuania, and Croatia, have attempted to restrict the Convention’s obligations by making impermissible and potentially invalid declarations/reservations. In Bulgaria, the ratification process for the Istanbul Convention has been suspended following a controversial ruling by its Constitutional Court that the Convention clashes with Bulgaria’s constitutional protection of women as mothers. The Commission has expressed concerns about these developments and encouraged States to ratify the Convention fully and promptly, highlighting its own potential role as an enforcer of the Convention where EU competences are concerned. However, the EU’s capacity to offer political leadership or legal support on these issues is limited by its own selective and incomplete engagement with the Convention. This not only exposes the EU to charges of hypocrisy but also indirectly supports the actions of the very States whose conduct it aims to influence.
Can the Council’s position be challenged?
Whether the Council’s two decisions will result in the EU engaging with the Istanbul Convention in the limited way described here remains unclear.
The European Parliament has stated that it “regrets” the Council’s approach, as it raises “legal uncertainties as to the scope of the EU’s accession, as well as concerns regarding the implementation of the Convention.” Instead, the Parliament has recommended “a broad EU accession to the Convention without any limitations.” It is uncertain whether the Parliament’s “regret” will lead it to withhold its consent to the Council’s decisions.
Legal challenges could also be mounted against the decisions. The Commission has successfully challenged a Council decision to enter into a legal agreement with another country on the basis that it was not founded on the correct legal bases. A similar challenge based on the Commission’s arguments in its Proposal (as briefly discussed above) or, more compellingly, on the grounds that the EU’s legal response to violence against women should be rooted in its commitment to combating sex discrimination, could potentially succeed.
Oversight and enforcement of the Istanbul Convention fall under the purview of a committee, the Group of Experts on Action against Violence against women and Domestic Violence (GREVIO), which utilizes reporting and inquiry procedures. GREVIO or another Party to the Convention could also challenge the EU’s approach to the Istanbul Convention. Article 75 of the Istanbul Convention states that the entire Convention, not portions of it, is open for signature, while Article 73 provides for establishing a dispute resolution mechanism if Parties disagree on implementing its provisions.
As of this writing, the Council working party on Fundamental Rights, Citizens’ Rights, and Free Movement of Persons (FREMP) is reviewing the EU’s (stalled) ratification of the Istanbul Convention. A concerted, EU-wide campaign advocating for the Istanbul Convention and its full ratification by the EU accompanies this scrutiny. The impact of these processes will be discernible in the coming months as the EU slowly moves to conclude the Convention. We will then see if the EU’s stance on violence against women is more than mere rhetoric.
Barnard & Peers: chapter 9, chapter 20
JHA4: chapter I:5
Photo credit: Council of Europe