EU Treaty Ratification Over Member Objections Wins Endorsement

LUXEMBOURG (CN) — An adviser to the EU’s high court says the European Union as a whole can ratify a treaty aimed at combating violence against women despite individual member states refusing to do so. 

In a nonbinding opinion for the European Court of Justice, Advocate General Gerard Hogan wrote that the Treaty on the Functioning of the European Union, one of two treaties that underpin the EU, gives the EU the power to move forward with ratifying the Istanbul Convention.

“The fact that a member state has not concluded a treaty does not prevent it from complying with the EU law principle of unity in international representation, in so far as it only requires that state to refrain from actions that are manifestly contrary to the positions adopted by the union,” Hogan wrote. Opinions from court magistrates are not binding, but the court follows their legal reasoning in about 80% of cases. 

The 2011 convention has pitted the organization that initiated the treaty, the Council of Europe, against the European Union. They are separate and distinct organizations: the former being an international organization set up after World War II to protect human rights on the continent, and the latter is the 27-member political and economic union.

At its core, the treaty requires countries to prevent and punish “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.” 

Greece’s representative Kosmas Boskovits told the Luxembourg-based court during oral arguments last year, “It is necessary for the union and its member states to act in common.”

The European Union moved to sign and ratify the treaty in 2016, triggering protests from far-right and religious groups, mainly in Central Europe. Today, six EU countries are refusing to ratify the treaty they signed a few years earlier and are opposed to the EU’s accession. Hungarian Prime Minister Viktor Orban called the treaty an “attack on the traditional family model.” 

Further complicating matters, the Council of Europe and the EU institutions are at odds over how to proceed. The European Commission, the EU’s executive body, and the bloc’s parliament want to push forward with accession on the basis of two provisions protecting crime victims. Meanwhile the council wants the EU to join based on a broader set of provisions, arguing that violence against women isn’t limited to criminal violations but also about the treatment of women more broadly.

Both approaches, Hogan says, are legitimate under EU law. “The council is under no obligation to wait for the common agreement of the member states, nor is it under any obligation to conclude an international agreement, such as the Istanbul Convention, immediately after signing it,” he wrote. “It is rather up to it to assess what is the best solution, in view of factors such as the extent of the risk of unjustified non-execution of the mixed agreement in question by a member state or the possibility of obtaining the necessary majority within that institution to exercise alone all the shared competences concerned by the said agreement.”

The magistrate also noted, however, that the EU cannot force the dissenting states to ratify the convention. The union cannot “prevent a Member State from withdrawing from an international agreement,” Hogan wrote. 

Supporters see the treaty as an important mechanism to protect women’s rights in Europe. Last week, women marched in Kyiv in support of Ukraine signing the convention, and last summer, thousands turned out in Poland to protest the government’s decision to withdraw from the treaty. 

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