Withdrawing from human rights treaties: an analysis of the Turkish withdrawal from Istanbul Convention

Recent studies have shown how states feel protected by the presence of withdrawal clauses in international treaties. International cooperation is plagued by uncertainty; states prefer, then, to ratify treaties of limited duration or which, in any case, present withdrawal clauses that act as a sort of “international insurance”. However, when it comes to human rights, this empirical consideration is counterbalanced by the special status of treaties on the subject: their ethical value and the direct impact they have on the lives of individuals make them a particular category to be carefully analyzed. Clearly, human rights treaties aim at the universalization of the rights in question. Indeed, no human rights regime can be effective without wider acceptance. Precisely for this, United Nations pursues the goal of universality of the “core” human rights treaties in particular. Therefore, they need to be appealing for the states so they should present appropriate withdrawal clauses. However, at the same time, an act of denunciation undermines the efforts to universalize the target treaties. The aim of this work is to try to provide a balanced response between the special nature of the treaties and the need for states to secure their position as parties of them. This work supports a descriptive and a normative approach. On the descriptive level, it is analyzed how the withdrawal of States from human rights treaties takes place, also thanks to an observation of the recent experience of Turkey's withdrawal from the Istanbul Convention. The description, however, has as its ultimate goal the normative analysis of how the withdrawal should take place while respecting the special nature of human rights treaties. The first compromise between these two opposing positions is devoting even more attention to procedural aspects (e.g., the contribution of the legislative power) when it comes to human rights treaties. The procedural limits, in fact, find their raison d'être in the principle of good faith. However, compliance with procedural limits still does not seem enough for the most intransigent positions on the special status of human rights. The answer to this question, in this work, originates from ethical matrices. Specifically, sufficientarianism and institutional cosmopolitanism will be the vectors for determining how to make the withdrawal from international human rights treaties more just. A substantive check on the legislation (and practice) in force in the state regarding the rights that were protected by the treaty from which it seeks to withdraw should be carried out by the controlling body of the treaty. This control obviously does not aim to ensure the complete guarantee of the rights established by the treaty, but to ensure that there is a minimum respect for the treaty rights considered to be fundamental. The opinion should not have any binding value since the perspective of moral cosmopolitanism does not have the objective of depriving states of their authority. However, it would have two functions: (a) on the one hand, it would alert the other parties of the treaty and in general public opinion, (b) on the other hand, it would fall within those "name and shame" mechanisms that have already demonstrated their validity; in this way, it would also act as a deterrent to the withdrawal of authoritarian - or at least not very liberal - regimes.