The Istanbul Convention: its significance and obstacles to widespread ratification, implementation

A post by Jin Qi Lim

Introduction

Coming into force in August 2014, the Council of Europe Convention on preventing and combating violence against women and domestic violence (also known as the Istanbul Convention) has been called the most ‘modern’ and ‘comprehensive’ international legal instrument aimed at addressing violence against women (VAW) and domestic violence.[1] The only other international treaty which exclusively addresses this specific issue is the Belém do Pará Convention under the Organization of American States (OAS). Structured around prevention, prosecution and protection, the Treaty forwards a holistic approach to combat violence, articulating comprehensive measures to ensure the protection of victims.[2] It also presents a normative goal to end violence.[3] And yet, not all Member States have ratified or even signed the treaty.

Since it was adopted in 2011, the treaty has attracted 46 signatories, with only 33 having ratified the treaty.[4] In addition to several reservations, this general reluctance to either sign or ratify the treaty is concerning. It invites us to ask the following: why has ratification, implementation and enforcement across Europe been so uneven? What can this tell us about the challenges in establishing international legal standards when it comes to violence against women? The article will seek to address these questions by briefly outlining the history and development of the treaty, using this as the basis to explain its significance in international jurisprudence. It will then proceed to examine obstacles to pan-European ratification, implementation and enforcement, examining prominent case studies amongst Member States.

What is the Istanbul Convention?

The origins of the Istanbul Convention can be found in the 1980s, with the Committee of Ministers issuing a recommendation on Violence in the Family in 1985. Since then, a series of further recommendations, studies, and widespread awareness campaigns have underscored the need for legal instruments to tackle the issue of VAW and domestic violence. This eventually culminated in the formation of CAHVIO (the Ad Hoc Committee on Preventing and Combating Violence against Women and Domestic Violence) in 2008, which prepared a report in support of creating a legally binding instrument.[5] It was also tasked with drafting the Convention, which was finalised in December 2010.[6] The final product drew from studies, recommendations and - crucially - case law from the European Court of Human Rights (ECHR), which includes landmark cases such as Opuz v. Turkey.[7]

Why is it important?

Especially from certain feminist legal perspectives, the Istanbul Convention is significant in a variety of ways. Most notably, the treaty seems attentive to a persistent concern amongst activists and scholars alike: the public/private dichotomy in international law. In its most basic conception, the public/private divide entails the notion that subjects who inhabit the private realm - a realm associated with family and home - are made invisible before traditional interpretations of international human rights law.[8] Feminists legal scholars have argued that the erasure of the ‘private’ has elided certain forms of violence and human rights violations, especially against women.[9] While some question the very idea of a public/private divide, especially for its universalist undertones, the concept nonetheless raises important questions about the dynamics of power which allow for the international legal sphere to be both an inclusive and exclusive space.[10]

With this in mind, it is apparent that the Istanbul Convention overcomes some of the barriers observed by feminist activists and legal scholars. In tackling the issue of VAW and domestic violence directly, it opens up various realms of violence to international scrutiny, whether that be in a public or private setting. It covers a range of violations and also displays a degree of gender-sensitivity - expanding the scope of protections to be inclusive of all genders. All of this is well-illustrated in the ‘definitions’ section of the treaty, which states the following:

“violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.[11]

The Convention also outlines clear guidelines for prosecution, developing new dimensions of international criminal law.[12] Finally, within the document, the eradication of VAW is explicitly framed as a necessary component to achieve gender equality and to allow for the full enjoyment of human rights.[13] When one considers these elements collectively, it is clear that the Istanbul Convention is a significant step towards addressing and eliminating VAW and domestic violence. This is especially true when assessing the Convention’s carefully considered content against feminist critiques.

Why has pan-European ratification, implementation and enforcement been challenging?

The challenges to widespread ratification, implementation and enforcement are varied. However, there are a few key trends which prevent the Convention from reaching its full potential. The first relates to a fundamental quandary in human rights law: if a state lacks the will to do so, effective implementation and enforcement can (and will) often fail. As David Forsythe reminds us, we cannot divorce human rights from the context in which they are forged: ‘[e]ven if human rights are thought to be inalienable [...] rights still have to be identified - that is, constructed - by human beings and codified in the legal system.[14] Essentially, the success of this Convention - whether it relates to ratification, implementation or enforcement - depends on the desire of states to join or comply. This factor is fundamental and explains why several countries, such as Russia and the UK, have either not signed or ratified the treaty.

Another key challenge is that the Convention articulates specific requirements for initiatives such as data collection and monitoring, which in turn requires funding. This is one of the main reasons why the UK has not ratified the Istanbul Convention, despite signing the treaty in 2012. As several scholars note, ratifying would require nation-wide funding to coordinate the implementation of the treaty.[15] This would include provisions to support victims, a body to oversee a national programme, and so on.

Finally, the Convention also limits the ability to forward reservations, which necessarily protects the integrity of the treaty but also acts as a deterrent. Indeed, these restrictions ensure that the Convention is not undermined by what Ronagh J.A. McQuigg calls ‘extensive’ reservations which might ‘compromise the very heart of the Convention itself.’[16] This, however, has not prevented countries from invoking reservations and declarations, such as Latvia, Lithuania and Poland’s declaration that the Istanbul Convention will only be applied ‘in conformity with the principles and provisions of’ their respective, national constitutions.[17]

Conclusion

The Istanbul Convention marks important progress in recognising VAW and domestic violence within the international public and legal sphere. It details clear, comprehensive and effective methods to ensure its prevention and - importantly - elimination. However, while its significance is plain, there are also obstacles which critically challenge its effective ratification, implementation and enforcement across Europe. One of the main challenges can be found in fundamental issues with compliance in human rights. Other challenges can be located in the specifics of the Convention and their deterrent effects. Ultimately, complete ratification, implementation and enforcement remains an open question, inviting continued efforts from activists, NGOs and other entities to apply pressure to achieve pan-European consensus on the treaty.

Bibliography

Charlesworth, Hilary, Christine Chinkin, and Shelley Wright. ‘Feminist Approaches to International Law’. The American Journal of International Law 85, no 4 (1991): 613-645. https://www.jstor.org/stable/2203269.

‘Chart of signatures and ratifications of Treaty 210’. Council of Europe. Accessed 1 January 2019. https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures.

Chinkin, Christine.  ‘Why hasn’t the British government taken this vital step against gender violence?’. The Conversation, 9 June 2016. https://theconversation.com/why-hasnt-the-british-government-taken-this-vital-step-against-gender-violence-60731.

Choudhry, Shazia. ‘Towards a Transformative Conceptualisation of Violence Against Women - A Critical Frame Analysis of Council of Europe Discourse on Violence Against Women’. The Modern Law Review 79, no.3 (2016): 406–441.

 ‘Council of Europe Convention on preventing and combating violence against women and domestic violence’. Council of Europe. Accessed 1 January 2019. https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168008482e.

Forsythe, David P.. Human Rights in International Relations, 2nd ed. Cambridge: Cambridge University Press, 2006.

Grans, Lisa. ‘The Istanbul Convention and the Positive Obligation to Prevent Violence’. Human Rights Law Review, 18 (2018): 133–155. doi: 10.1093/hrlr/ngx041.

‘Historical Background’. Council of Europe. Accessed 1 January 2019. https://www.coe.int/en/web/istanbul-convention/historical-background.

Jones, Jackie. ‘The European Human Rights System’. In The Legal Protection of Women From Violence: Normative Gaps in International Law, ed. Jackie Jones and Rashida Manjoo, 139-165. London and New York: Routledge, 2018.

Kapur, Ratna. ‘Revisioning the role of law in women’s human rights struggle’. In The Legalization of Human Rights: Multidisciplinary perspectives on human rights and human rights law, 101-116. New York and London: Routledge, 2006.

Manjoo, Rashida ‘The Continuum of Violence against Women and the Challenges of Effective Redress’, International Human Rights Law Review 1(2012): 1-29, doi: 110.1163/22131035-00101008.

Manjoo, Rashida. ‘State Responsibility to Act with Due Diligence in the Elimination of Violence against Women’. International Human Rights Law Review 2, (2013): 240-265. doi: 10.1163/22131035-00202006.

McQuigg, Ronagh J.A.. ‘Contextual Analysis of the Council of Europe's Convention on Preventing and Combating Violence against Women, International Human Rights Law Review 1 (2012): 367-381.

McQuigg,  Ronagh J.A.. International Human Rights Law and Domestic Violence: The effectiveness of international human rights law. New York and London: Routledge, 2011.

McQuigg,  Ronagh J.A.. The Istanbul Convention, Domestic Violence and Human Rights. New York and London: Routledge, 2017.

McQuigg, Ronagh J.A.. ‘What potential does the Council of Europe Convention on Violence against Women hold as regards domestic violence?, The International Journal of Human Rights 16, no.7 (2012): 947-962. doi: 10.1080/13642987.2011.638288.

‘Reservations and Declarations for Treaty No.210 - Council of Europe Convention on preventing and combating violence against women and domestic violence’. Council of Europe. Accessed 1 January 2019. https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/declarations?p_auth=4ebx9lxL.

Romany, Celina. ‘State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law’. In Human Rights of Women: National and International perspectives, ed. Rebecca J. Cook, 85-115. Philadelphia: University of Pennsylvania Press, 1994.

Šimonović,  Dubravka. ‘Global and Regional Standards on Violence Against Women: The Evolution and Synergy of the CEDAW and Istanbul Conventions’. Human Rights Quarterly 36, no. 3 (2014): 590-606

Sullivan, Donna. ‘The Public/Private Distinction in International Human Rights Law’. In Women’s Rights, Human Rights: International Feminist Perspectives, ed. Julie Peters and Andrea Wolper, 127-134. New York and London: Routledge, 1995.

[1] Dubravka Šimonović, ‘Global and Regional Standards on Violence Against Women: The Evolution and Synergy of the CEDAW and Istanbul Conventions’, Human Rights Quarterly 36, no. 3 (2014): 604.

[2] Jackie Jones, ‘The European Human Rights System’ in The Legal Protection of Women From Violence: Normative Gaps in International Law, ed. Jackie Jones and Rashida Manjoo (London and New York: Routledge, 2018), 140. For more details, see ‘The Convention in brief’, Council of Europe, accessed 1 January 2019, https://www.coe.int/en/web/istanbul-convention/the-convention-in-brief.

[3] Ibid.

[4] See ‘Chart of signatures and ratifications of Treaty 210’, Council of Europe, accessed 1 January 2019, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures.

[5] ‘Historical Background’, Council of Europe, accessed 1 January 2019, https://www.coe.int/en/web/istanbul-convention/historical-background.

[6] Ibid.

[7] In Opuz v. Turkey, it was established that the state has duties to protect women from domestic violence.

[8] Donna Sullivan, ‘The Public/Private Distinction in International Human Rights Law’ in Women’s Rights, Human Rights: International Feminist Perspectives, ed. Julie Peters and Andrea Wolper (New York and London: Routledge, 1995), 127-134.

[9] Ibid.

[10]  For an outline of criticisms regarding the public/private divide, see Hilary Charlesworth, Christine Chinkin, and Shelley Wright, ‘Feminist Approaches to International Law’, The American Journal of International Law 85, no. 4 (1991): 626, https://www.jstor.org/stable/2203269 and Rashida Manjoo, ‘The Continuum of Violence against Women and the Challenges of Effective Redress’, International Human Rights Law Review 1(2012): 1-29, doi: 110.1163/22131035-00101008.

[11] ‘Council of Europe Convention on preventing and combating violence against women and domestic violence’, Council of Europe, accessed 1 January 2019, https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168008482e.

[12] Ibid.

[13] Jackie Jones, ‘European’, 140; ‘Council of Europe’.

[14] David P. Forsythe, Human Rights in International Relations, 2nd ed. (Cambridge: Cambridge University Press, 2006), 3

[15] See Ronagh J.A. McQuigg, The Istanbul Convention, Domestic Violence and Human Rights (New York and London: Routledge, 2017) and Christine Chinkin, ‘Why hasn’t the British government taken this vital step against gender violence?’, The Conversation, 9 June 2016, https://theconversation.com/why-hasnt-the-british-government-taken-this-vital-step-against-gender-violence-60731.

[16] McQuigg, Istanbul, 149.

[17] See ‘Reservations and Declarations for Treaty No.210 - Council of Europe Convention on preventing and combating violence against women and domestic violence’, Council of Europe, accessed 1 January 2019, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/declarations?p_auth=4ebx9lxL.