Should the EU ratify the Istanbul Convention on violence against women?

Steve Peers

For many years, discussion as regards the EU and human rights has focussed on the growing role of the EU Charter of Fundamental Rights and the EU’s planned accession to the European Convention on Human Rights. This is understandable, given the importance of these developments. However, the EU’s relationship with other international human rights instruments is also worthy of further examination.

The EU is not able to sign up to older UN human rights treaties – such as the two Covenants and the Conventions relating to sex discrimination, race discrimination and migrant workers – because ratification of these instruments is only open to States. Similarly, only States can ratify ILO Conventions, although the EU sometimes coordinates its Member States’ position as regards ILO measures (see the discussion of the proposal to coordinate positions regarding new ILO forced labour measures).

However, more recent international human rights treaties do provide for possible accession by the EU, and indeed the Union has signed up to the UN Convention on the Rights of Disabled Persons (see the recent Z judgment of the CJEU). With the imminent entry into force of the Council of Europe’s Istanbul Convention on violence against women (which will come into force on 1 August 2014, after the deposit of the tenth ratification on April 22nd), the question now arises whether the EU should sign up to another human rights treaty. This post sets out the reasons why the EU should ratify the Convention at the earliest opportunity.

EU competence to ratify the Istanbul Convention

The EU is certainty competent to ratify the Istanbul Convention, if it wishes to do so. First of all, the Convention expressly provides (in Article 75(1)) for ratification by the EU, without setting any special condition in this respect.

Secondly, as a matter of internal EU law, the EU can sign up to any treaties which are (inter alia) ‘likely to affect common rules or alter their scope’ (Article 216 TFEU). Although EU law has not regulated the key substantive criminal law issues dealt with in the Istanbul Convention, the Convention does not limit itself to establishing rules concerning criminal liability, but also addresses a number of other issues. In particular, there are EU law measures concerning the Convention’s rules on: crime victims’ rights, cross-border application of protection orders (both civil and criminal), other forms of cross-border cooperation, and immigration and asylum issues (see the detailed list in the Annex).

It must be pointed out that if the EU ratifies the Istanbul Convention, it would not be replacing its Member States, but ratifying the Convention alongside them. In other words, the Convention would be another ‘mixed agreement’ which both the EU and its Member States have ratified, like the UN Disabilities Convention, (in future) the ECHR and many other treaties. The EU would not be legally obliged to adopt any more legislation affecting the issue of violence against women than it already has done. While I have argued before that there are good reasons (and legal powers) for the EU to adopt legislation establishing substantive criminal law rules in this field, this is a separate question from whether the EU ought to ratify the Convention.

Reasons why the EU should ratify the Istanbul Convention

First of all, the EU’s ratification of the Convention would 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.

Secondly, ratification would, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. While the double standards argument can be answered as regards human rights treaties which the EU cannot ratify, it cannot so easily be rebutted as regards treaties which it can. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to ask non-Member States to do so?

Ratification of the Convention would enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation (such as the legislation listed in the Annex, plus any future relevant measures). It would also mean that the Convention would already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.

Furthermore, since the CJEU would have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this would promote a uniform interpretation of those provisions within the EU. 

Next, the relevant provisions of the Convention would be more enforceable if they were enshrined in to EU law. 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.

[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

Can EU law make an effective contribution to the prohibition of forced labour by the ILO?

Steve Peers

While many employees jokingly refer to themselves as ‘wage slaves’, millions of people worldwide are actually forced to supply their labour – a modern form of slavery. Alongside sexual exploitation, labour exploitation constitutes a particular form of trafficking in persons.

In recent years, the chief international actors combatting trafficking in persons have been the United Nations (adopting a Protocol to the Convention on Organised Crime), and (within Europe), the Council of Europe, adopting a Convention on the topic. However, there is another long-standing actor in the field: the International Labour Organisation (ILO), which has particular expertise as regards labour exploitation. Due to concerns that its existing treaties, notably Convention 29 of 1930, are not being fully applied (see the 2013 experts’ report for details), the ILO is considering the adoption of a Protocol and/or a Recommendation relating to that Convention in the near future.

The draft Protocol consists of only six short Articles. It starts with a general obligation for States to prevent and eliminate forced labour, and then sets out a more concrete obligation to adopt action plans to this end. States would have to take ‘specific action against trafficking in persons’ as regards labour or sexual exploitation. They would also have to take steps to educate the public, to broaden the coverage of labour law and strengthen inspection services, and to protect workers who use placement services, particularly migrant workers, against abuse.

Next, States would have to secure the identification, recovery, release and rehabilitation of victims of forced labour. They would also have to secure access to remedies for victims, including compensation. Victims would also have to be exempted from liability as regards crimes which they were forced to commit. Finally, there would be a general obligation for States to cooperate with each other, and the Protocol would specify that States would enforce its rules by means of national law.

As for the draft Recommendation, it sets out further details as regards the substance of the draft Protocol. It includes provisions on: gathering statistics relating to forced labour; skills training for vulnerable groups; programmes to combat related discrimination; the promotion of freedom of association for at-risk groups; setting out terms and conditions of work in a contract; basic social security guarantees; pre-departure orientation for migrants; coherent labour and immigration policies, which take account of the risks posed to irregular migrants; and efforts to reduce the trade in and demand for goods and services produced by forced labour.

The provisions on victims’ protection would be conditional on victims’ informed consent, but conversely could not be conditional on their willingness to participate in criminal proceedings. There would be more details on the specific forms of protection which should be granted to victims (protection from retaliation, housing, health care, privacy, and social assistance). For migrants, there should be a reflection and recovery period, the provision of residence permits ‘as appropriate’ and the facilitation of ‘preferably’ voluntary repatriation.

As regards access to justice, there should be rules allowing representatives to act on behalf of victims, a right for victims to get compensation from perpetrators, (state) compensation schemes, information for victims, and access to court. Enforcement rules should include providing for penalties, including confiscation of profits alongside penal sanctions and liability for legal persons.

EU law aspects

But how does this relate to EU law? The EU has not comprehensively regulated forced labour as such, but a number of separate EU measures do touch on aspects of the issue. In particular, an EU Directive adopted in 2011 regulates the criminal law aspects of trafficking in persons, while a 2004 Directive regulates the immigration status of trafficking victims. The 2012 Crime Victims’ Directive concerns the status of victims of crime more generally. There is also EU employment law dealing with the issue.

The normal rule relating to EU external competence is that the adoption of internal EU legislation on an issue brings with it external EU competence relating to that issue. That competence becomes exclusive where the EU has fully harmonised the issue in question (see Article 3(2) TFEU). On that basis, the EU has concluded the relevant Protocol to the UN Convention, although it has not signed the Council of Europe Convention on trafficking in persons.

However, there is a complication as regards the planned ILO measures, or indeed any measures emanating from the ILO. Unlike many of the treaties drawn up within the framework of the United Nations or the Council of Europe, only States can be party to ILO legal instruments. This also means that the EU as such cannot fully take part in ILO discussions, even when they concern matters within the scope of EU external competence.

Traditionally, this complication has been addressed by adopting EU measures authorising the Member States to act on the EU’s behalf in the ILO framework, and then authorising Member States to sign and ratify the relevant Conventions which result. For instance, the EU has recently authorised Member States to ratify the ILO Convention on Domestic Workers.

Similarly, the Commission has recently proposed a Council Decision harmonising Member States’ positions as regards the planned ILO Recommendation on forced labour, as well as a separate proposal as regards the possible Protocol (the latter proposal has not been published).

But this process, which is also applicable in other cases where the Member States act on the EU’s behalf in international fora, is not always smooth. For instance: the Commission successfully sued Greece for infringing EU external competence as regards maritime security, within the framework of the International Maritime Organisation; the CJEU has been asked to decide whether the EU has to authorise Member States to admit new countries as parties to the Hague Convention on Child Abduction; and the Court also had to settle a dispute relating to competence relating to earlier ILO treaties on the use of chemicals at work.

More fundamentally, in a pending case, Germany is suing to annul a Council Decision coordinating Member States’ positions in an international wine organisation on behalf of the EU, arguing that the EU’s powers to establish positions in international bodies can only apply where the EU itself is a party to the relevant organisation and/or treaty, not where the Member States are acting on the EU’s behalf. Germany also argues that the EU’s powers can only apply where the organisation concerned will establish legally binding rules; this could arguably be relevant as regards the draft ILO Recommendation.

If the German case is successful (an Advocate-General’s opinion is due in May), then the new proposal obviously cannot be adopted (or would be invalid, if it had been adopted in the meantime). But even if the EU is legally entitled to coordinate Member States’ positions in international conferences, including as regards recommendations, there are several complications resulting from this process.

First of all, the Commission proposal does not mention the difficulty arising from the various opt-outs from EU law which some Member States enjoy. The immigration and criminal law measures referred to do not bind all Member States, while the employment law measures do. So arguably two different Council Decisions might be necessary, in order to address this problem.

Secondly, there might be arguments about the precise extent of the external competence of the EU as compared to the proposed ILO measures. In this case, there are some detailed problems with the Commission proposal, although it is too early to say whether the Council might amend or refuse to adopt the proposal. (For more details of these problems, see the annex below.)

Thirdly, if the EU itself is not party to an international treaty, then the CJEU takes less account of that treaty. Although it has made brief reference to ILO treaties which EU legislation implements (for instance, the Schultz-Hoff judgment on the EU’s working time Directive), this can be compared to (for instance) its more frequent references to the UN Convention on the Rights of Disabled Persons (which the EU has ratified): there have been two such references in the past year (the Ring case and the Z case).

Fourthly, it sometimes appears as if the institutional arguments over the exact extent of the EU’s external competence take precedence over the substance of the treaty concerned. In this case, the substance of the planned measures on forced labour are extremely important, given that millions worldwide are subject to this severe breach of human rights. Moreover, the EU could usefully take this opportunity to reflect on whether its own legislative framework is sufficient to address this problem.

Unfortunately, since the EU would not be a party to the planned Recommendation or Protocol, it would not be required to carry out such a reflection. And conversely, even if Member States become parties, there is a limit to the effectiveness of any such reflection, given that some of the measures concerned can only be taken by the EU.

While the division of powers between the EU and its Member States in external relations is an inevitable consequence of the rules on EU competence, there is a growing need for the EU and its Member States to find an effective mechanism to ensure that their potentially important contribution to achieving international objectives, such as (but not only) the elimination of forced labour, are not frustrated by the EU’s internal disputes.

The EU has found some creative solutions to these problems, such as the use of ‘mixed agreements’ (treaties which the EU and its Member States are both parties to), and the adoption of EU legislation regulating Member States’ exercise of their external competence in areas closely related to EU law (such as air services agreements). It is long past time for it to adopt measures which effectively coordinate the Member States’ and the EU’s exercise of their competence as regards the legal framework for international human rights protection.

Annex

Links between EU law and proposed ILO Protocol

Article 2(c): Directive on temporary agency work
Articles 3 and 4: Crime victims Directive; Trafficking in persons Directive

Links between EU law and proposed ILO Recommendation

Clause 2(2): Directive on data protection

Clause 3(c): EU anti-discrimination legislation Clause 3(e): EU Directive on contracts of employment

Clause 3(j): EU trade policy; EU legislation on corporate social responsibility

Clauses 4, 5, 7-10: Crime Victims Directive; Trafficking in Persons Directive; Trafficking victims’ residence permits Directive

Clause 6: Temporary agency workers’ Directive Clause 11(b) and (c): Trafficking in persons Directive

Legal Base problems:

The Commission proposes legal bases relating to criminal law and employment law to adopt the Council Decision. But the preamble also refers to EU immigration legislation and rules on free movement of EU citizens, so the relevant legal bases (Articles 45 and 79 TFEU) logically have to be cited, particularly the immigration legal base given the very close link with the EU legislation concerned. Since the immigration and criminal legislation does not apply to all Member States, arguably there will need to be separate Council decisions to take account of this.

Barnard & Peers: chapter 9, chapter 20, chapter 24, chapter 25, chapter 26

Reverse discrimination against rape victims: a disappointing ruling of the CJEU

Steve Peers

While national criminal justice systems are often criticised for ignoring the role of crime victims, the EU has shown great interest in this issue from an early stage of the development of EU criminal law. One of the first EU 'Framework Decisions' concerned crime victims' rights, and this measure has since been replaced by a comprehensive Directive on this issue, which Member States must apply by October 2015.

Yet this Directive is not the only measure dealing with crime victims, as the topic of state compensation for crime victims is the subject of an earlier Directive, dating from 2004. The primary aim of the compensation Directive is to establish a framework for compensation in cross-border cases, where a 'violent intentional crime' is committed in a Member State other than the Member State where the person concerned is habitually resident. However, the Directive does provide that 'All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.'

In the recent order in C, a woman in Italy brought a claim for state compensation on the basis of this provision, following the conviction of her attacker for sexual violence. The national court had ordered the offender to pay compensation (an issue addressed by the general Framework Decision, now the Directive, on victims' rights), but there was no prospect of enforcing this order, since he did not have the money to pay that compensation. So she tried to obtain compensation from the Italian state instead, pursuant to the Directive. However, according to the CJEU, the Directive did not apply to purely domestic cases like this one, but only to cases where there was a cross-border element.

With great respect, this is just not convincing. While the main focus of the Directive is certainly compensation in cross-border cases, Article 12(1) of the Directive makes clear that this takes place on the basis of each national system for compensation. Therefore Article 12(2) - quoted above - requires each Member State to set up a national system covering crimes like this one. So a failure by Italy to provide for state compensation for its residents who are victims of such crimes will complicate any attempt by visitors from other Member States to collect compensation from the state in such cases.

Since such cross-border disputes will undoubtedly fall within the scope of the Directive, the CJEU might be prepared to rule that crime victims in such case would nonetheless have a directly effective right to compensation against the Italian government, regardless of its failure to implement the Directive fully. While protection of some victims is of course welcome, all of them ought to be protected. EU lawyers have long become accustomed to 'reverse discrimination' as regards family reunion, where EU citizens who move between Member States can rely on decent standards, while those who do not leave their Member State can in some countries (like the UK) be subject to a far more restrictive national law. It hardly helps the legitimacy of EU law to accept that the same double standards apply to compensation of victims of violent crime, especially when the better interpretation of the legislation concerned is that they shouldn't.

[update: see analysis of the main crime victims' Directive, which has applied since autumn 2015, here].

Barnard & Peers, chapter 25