ORIGINAL PUBLISHED ON EU LAW ANALYSIS
by Steve Peers
The scourge of violence against women is a serious human rights abuse and the worst form of sex discrimination. Several years ago, the Council of Europe (a body different from the EU) drew up the Istanbul Convention on this issue. It came into force in 2014, and currently applies to 20 countries, including 12 EU Member States (for ratification details, see here). Today, the EU Commission proposed that the EUsign and then conclude the Convention. What practical impact will that have on violence against women?
If the EU does sign and conclude (ie ratify) the Treaty, it will be the second human rights treaty binding the Union. The first is the UN Convention on the Rights of Persons with Disabilities. While most attention has been focussed on the EU’s attempt to accede to the European Convention on Human Rights (ECHR), which was essentially thwarted by the EU’s Court of Justice (CJEU) in 2014 (as discussedhere), the EU’s capacity to sign up to other human rights treaties is also relevant. While the EU cannot sign up to older international human rights treaties, like the UN Covenants, because they are only open to States, newer treaties (like the Istanbul Convention) expressly provide for the EU to sign up to them – if it wishes.
Impact of EU ratification
Like many international treaties, the Istanbul Convention is a ‘mixed agreement’, meaning that (if the EU ratifies it), the treaty will bind both the Union and its Member States. EU ratification should have six main effects (I’ve updated this list from the previous post on the reasons why the EU should ratify).
First of all, the EU’s ratification of the Convention could provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe. It should be noted that the treaty is open for signature to non-EU countries: the 19 Council of Europe countries not in the EU (8 of them have ratified it already), as well as the 4 non-European countries (plus the Holy See) which took part in drawing it up.
Do you live in a country which hasn’t ratified the Convention? You can sign up to a campaign for the UK to ratify the Convention here. Please let me know of any other campaigns in the UK or any other country, and I’ll list them with a link in an Annex to this post.
Secondly, ratification could, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that Member States, would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to urge any countries to do so?
Thirdly, ratification of the Convention should enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation. While there’s no general EU criminal law on violence against women (on the case for such a law, see here), there are other relevant EU rules. In particular, the Commission proposal refers to EU free movement law, substantive EU criminal law relevant to violence against women, EU immigration and asylum law, and the EU law on crime victims’ rights, applicable from last autumn (on the content of the crime victims’ law, see discussion here). It should also mean that the Convention will already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.The proposal is based on EU competence over victims’ rights, and would apply (if agreed) to every Member State covered by the crime victims’ law – meaning every EU country except Denmark.
In practical terms, that should mean that (for instance), EU law must be interpreted to mean victims receive a residence permit based on their personal situation, if the authorities consider it necessary (Article 59(3) of the Convention). That would apply to citizens of other Member States and their (EU or non-EU) family members, in all 27 Member States covered by the proposal. It would also apply to non-EU citizens in general, in the Member States which apply EU law on non-EU migration (ie the 25 Member States other than the UK, Ireland and Denmark, which have mostly opted out of such laws).
For asylum cases, Article 60 of the Convention makes clear that gender-based violence is a ground of persecution. This is more explicit than the EU’s qualification Directive, which says that ‘gender-related aspects shall be given due consideration’, with further reference in its preamble to specific practices like genital mutilation. (Note that the UK and Ireland are covered by the first-phase qualification Directive, which has less precise wording on this issue; so the EU’s ratification of the Convention might have more influence in these countries).
As regards victims of domestic violence crimes (of any nationality and residence status), Chapter IV of the Convention, concerning support and protection, could in particular have an impact on the interpretation of the crime victims’ Directive in each Member State.
Fourth, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this could promote a uniform interpretation of those provisions within the EU.
Next, the relevant provisions of the Convention will be more enforceable if the EU ratifies it. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.
Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.
For all the above reasons, the EU’s planned ratification can only be welcomed. It may not, by itself, prevent any act of violence from being committed, but it may accelerate a broader process of ratification (and corresponding national law reform) on this issue. And it may have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.