On June 28, 2021, Turkey’s Council of State, Tenth Chamber ruled in a 3–2 decision to uphold President’s Decision No. 3718 (published on March 20, 2021) withdrawing Turkey from the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention), which the country had ratified on February 10, 2012. The president’s decision (not to be confused with a presidential decree) had met with widespread public criticism and had led legal scholars to question whether the president had the authority to withdraw the country from the an international treaty. The president’s decision was based on the authority granted to the president by Presidential Decree No. 9 to ratify, implement, cease implementation, and terminate international treaties.
The Constitution typically requires multilateral international treaties such as the Istanbul Convention to be first approved for ratification by the legislature through the enactment of a law approving ratification and then ratified by the president; however, the Constitution is silent on the procedure for the termination of treaties. Some critics of the president’s decision argue that treaties that are subject to the approval of the legislature under the Constitution cannot be terminated by the president acting unilaterally—they must be terminated either by a law enacted by the legislature or by a president’s decision that has been preapproved by the legislature in accordance with the administrative law principle that administrative acts may be revoked only by the same authority that instituted them, using the same procedure. Accordingly, an invalidity action was brought in the Council of State against President’s Decision No. 3718, claiming that Presidential Decree No. 9—on which the president’s decision was based—was unconstitutional on the grounds that termination of a treaty requiring preapproval from the legislature was a matter that was not “related [solely] to the executive power” but also to the legislature.
The Council of State has jurisdiction to invalidate presidential decisions but not presidential decrees, which can be reviewed only by the Constitutional Court. However, according to article 152 of the Constitution, the Council of State must refer a constitutional claim made against a law or a presidential decree to the Constitutional Court (a procedure called “substantial norm review”—somut norm denetimi) if the court hearing the case finds the claim serious. Thus, the plaintiff had requested the Council of State to invalidate the president’s decision, issue a preliminary injunction to stop the execution of the decision, and refer the constitutionality question concerning Presidential Decree No. 9 to the Constitutional Court with the aim of having it invalidated there.The majority opinion of the Council of State rejected this argument, finding that the termination of treaties—like the ratification of treaties—was a matter related to the executive power. The majority based its finding primarily on the legislative history of Law No. 244 (Repealed) on the Making, Entry into Force, and the Publication of International Agreements and the Authorization of the Council of Ministers for the Making of Certain Treaties, which formerly governed the subject matter of Presidential Decree No. 9. In its opinion, the majority quoted a preparatory commission report that accompanied the development of the bill for Law No. 244 (Repealed) which identified the termination of treaties as a “disposition that is within the domain of the executive.”
The two judges that did not join the majority opinion wrote dissents in which they argued, inter alia, that since provisions of duly ratified international treaties have the force of law (enacted by the legislature) under article 90 of the Constitution, they could not be terminated by a president’s decision on the basis of a presidential decree, and a presidential decree that authorizes the president to issue such a decision would be unconstitutional.
Updated September 3, 2021, to correct Latin quote in paragraph 3.