The Status of the International Law in the Turkish Constitution*
Honourable Presidents and Justices,
Ladies and gentlemen,
It is a great pleasure to be here and address such eminent participants of the 6th Congress of CCJA.
I would like to thank Mr. Said Ihrai, President of the Constitutional Court of Morocco, for his warm hospitality and for the organization of this Congress.
Today I am going to talk about the status and role of international law in constitutional system of Türkiye. I will first refer to the constitutional provisions concerning the status of the international treaties, and then touch upon the Turkish Constitutional Court’s (“Court”) interpretation and application of the international human rights conventions.
Before proceeding to the case of Türkiye, I would like to say a few conceptual words on the moral purpose of the law in general and international law in particular.
1. Introduction: Remarks on the Purpose of Law
As you all know, the main purpose of the state based on rule of law is to provide a peaceful environment for the co-existence of human beings with their diversity, rights and freedoms.
We can find the roots of this idea in the thoughts of Al Fârâbî, who lived eleven centuries ago. According to Al Fârâbî, a society in which people help each other to achieve the real happiness is a virtuous society. A nation where all cities help each other for the same purpose is a virtuous nation. Furthermore, a virtuous or excellent universal society can be achieved if all nations help each other to achieve the happiness. In Al Fârâbî’s words “the excellent universal state will arise only when all the nations in it co-operate for the purpose of reaching felicity”.1
I must recall that Al Fârâbî’s concept of “sa’ada” (سعادة) is much more comprehensive than the English words “happiness” or “felicity”. He invokes this term as an “absolute good”, which is desired for its own sake in this earthly life and afterlife as supreme happiness. The term sa’ada” (سعادة) refers to well-being of individuals in every sense, simply because “there is nothing greater beyond it for man to obtain”.2
Therefore, it wouldn’t be wrong to say that Al Fârâbî laid down the foundation of international community as peace and happiness to be attained through solidarity and cooperation of the nations.
Long after Al Fârâbî, Kant formulated the idea of peaceful and cosmopolitan international community in more concrete terms. In his famous essay entitled “perpetual peace”, Kant explained the ways of securing peace at national and international levels.
He argued for the national constitutions founded on the principles of freedom and equality for all members of a society. Kant also proposed to create what he called “a pacific federation” which would secure a general agreement between the nations on seeking “to end all wars for good”.3
Irrespective of the question of whether the thoughts or rather dreams of Al Fârâbî and Kant came true today, they suggest that it is crucial to establish a national and international public order to attain peace and happiness.
Now I would like to dwell upon the relationship between national and international law in the Turkish Constitution. Let me start with the status of the international law in our legal system.
2. The Status of the International Law in the Turkish Constitution
Article 90 of the Turkish Constitution is devoted to the issue of the status of international treaties in domestic legal system. It explicitly stipulates that international treaties duly put into effect have the force of law. In other words, any provision of the international treaties, which were properly signed and ratified by the state, shall form part of our domestic law.
Article 90 of the Constitution also provides some answers, albeit vague, to the questions as to the position of the international treaties in the hierarchy of legal norms. First of all, Article 90 makes it clear that “no appeal to the Constitutional Court shall be lodged with regard to these treaties, on the grounds that they are unconstitutional”. Therefore, the Constitutional Court is not entrusted with the power to review the constitutionality of international treaties. It is argued that the ban on constitutional review of the international treaties is one of the indications of their superiority to domestic law.
Secondly, Article 15 of the Constitution states that in times of emergency, fundamental rights and liberties shall be restricted or suspended as contrary to the guarantees enshrined in the Constitution. However, according to Article 15, the obligations arising from international law must be respected in derogating the constitutional rights and liberties during the times of emergency. This provision is also invoked to argue that international treaties are superior to domestic law.
Thirdly, and more importantly, Article 90 of the Constitution was amended in 2004 to give a special power and privilege to international human rights treaties vis-à-vis national law. It states that “In the case of a conflict between international treaties, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international treaties shall prevail.”
I must note that the amended Constitution resolved the problem of hierarchy between human-rights treaties and ordinary act of parliaments in favour of the former, but it remains silent as to any possible conflict between international human-rights conventions and the Constitution itself.
It is at least theoretically true that the Constitution prevails in case of such a conflict. However, in reality the Turkish Parliament amended the Constitution for several times in order to solve the conflict between the international treaties, most notably the European Convention on Human Rights, and the Constitution. The constitutional amendments concerning the periods of pre-trial detentions, abolition of capital punishment and abolishment of state security courts are a few examples of parliamentary steps taken to make the text of the Constitution in conformity with the jurisprudence of the European Court of Human Rights.
Apart from such amendments to the Constitution, the Constitutional Court of Türkiye plays a vital role in preventing possible conflicts with the international law. Now we can address the details of this role.
3. The Role of International (Human-Rights) Conventions in the Jurisprudence of the Constitutional Court of Türkiye
The Constitutional Court has interpreted and applied Article 90 of the Constitution on several occasions. Referring to the ban on constitutional review of the international treaties, the Court has declared that this “attaches privilege to these treaties, more than the laws, thus attributing a greater weight to the former.” 4
At this moment it must be noted that in Turkish legal system, the Parliament enacted a law to ratify the international treaties (art. 90/1), and this law approving ratification is subject to review of the Constitutional Court. In a judgment of 1995, the Court held that an application may be lodged with the Constitutional Court against any law approving the ratification of treaties, independent of such treaties.5
In 2012, the Court determined the scope of the constitutionality review of the laws ratifying the treaties. The Court stated that the review of the laws approving ratification shall not lead, even indirectly, to the possibility of reviewing the content of these treaties. It therefore distinguished between those ratifying laws, which have separate contents and meaning independently of the treaties, and those which are simply referring to the relevant provisions of the treaties. For the Court, it is only the former, not the latter, that is subject to substantial review of the Constitutional Court. In brief, the Court has abstained from a review that may amount to an indirect review of the treaty provisions.6
When it comes to adjudication of cases involving constitutional rights, the Constitutional Court takes into account the international obligations and refers systematically to the international and European human-rights instruments. As a matter of the fact, the introduction of individual application system (constitutional complaint) in 2010 has radically changed the relationship between the European human-rights law and national law of Türkiye.
Amended Article 148 of the Constitution provides everyone with the right to apply to the Constitutional Court on the allegation that one of the fundamental rights and freedoms under joint protection of the Constitution and the European Convention on Human Rights has been violated by public authorities. Accordingly, an individual application can be examined by the Court if the relevant right or freedom falls within the joint realm of protection afforded by the Constitution and Convention.7 Otherwise, it would be declared inadmissible as being incompatible ratione materiae with the provisions of the Constitution.
In its judgments concerning constitutional rights, the Constitutional Court considers not only the European Convention and the case law of the Strasbourg Court, but also other international treaties ratified by Türkiye. To give an example, in a judgment of 2015, the Court found a violation of the right to respect for family life on the ground that the dismissal of the request for the return of the child within the scope of the Hague Convention on the Civil Aspects of International Child Abduction was not relevant and sufficient for protecting the applicant’s right.8
Last, but not least, I would like to mention a judgment of the Court which clearly reveals its role in interpreting and applying the constitutional provisions in line with the European Convention and the case law of the Strasbourg Court. This judgment is also a clear example of the rights-based approach adopted by the Court in adjudicating individual applications.
Article 187 of the Turkish Civil Code prevents married women from using maiden name alone. In 2011, the Plenary of the Constitutional Court declared that this article was not contrary to the Constitution. The Court also stated that Article 90 of the Constitution was not relevant to the concrete case at hand.9
However, after the adoption of individual application, the Constitutional Court had to reconsider its view on this issue. This time in an individual application, the Court found a violation of the right to protection of spiritual existence, stating that the surname was one of the distinctive elements in shaping the identity of an individual.
The Court held that in case of any conflict between the provisions of the international treaties and domestic law, the courts must give priority to the former as stipulated by Article 90 of the Constitution. The Court then emphasised the principle of gender equality by referring to the relevant articles of the UN Covenant on Civil and Political Rights as well as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).
In this case, the Constitutional Court especially referred to the case-law of the Strasbourg Court, which found the national law in question contrary to Article 14 taken in conjunction with Article 8 of the Convention. The Court then reached the conclusion that there was a conflict between the domestic law and international human rights, and therefore the court of first instance should have applied the international law, rather than the provision of Civil Code.10
4. Conclusion: Borrowing the Earth from Children
In conclusion, the Constitutional Court of Türkiye plays a very significant role in mitigating the possible conflicts and interpreting the constitutional provisions in line with the provisions of the international treaties. However, the relationship between international law and domestic law is too complicated to settle permanently. This is also the case in the legal and constitutional order of Türkiye as I have tried to explain in my speech.
Today we are quite far away from realising the dreams of the philosophers like Al Fârâbî and Kant. Nevertheless, the ideals such as “supreme happiness” and “perpetual peace” are still relevant in the contemporary world. More importantly, the international law and institutions have still certain potentials to bring the human race nearer to a peaceful co-existence of human beings as free and equal members of the humanity.
It is our responsibility towards next generations, our children and grandchildren to leave a world in which they live freely, happily and peacefully. We should keep in mind the important message of following proverb: “We don't inherit the earth from our ancestors; we borrow it from our children."
Thank you very much for your attention.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Türkiye|
* Speech delivered at the 6th Congress of the Conference of Constitutional Jurisdictions of Africa (CCJA) on “African Constitutional Courts and International Law” , Rabat, 23 November 2022.
** President of the Constitutional Court of Türkiye.
1 A.N. Al-Fârâbî, On the Perfect State, trans. R.Walzer, (Great Books of the Islamic World, Inc., 1998), Section V, Chapter 15, § 3, p. 231.
2 Al-Fârâbî, On the Perfect State, Section IV, Chapter 13, § 6, p. 207.
3 I.Kant, “Perpetual Peace: A Philosophical Sketch”, Kant’s Political Writings, trans. H. B. Nisbet, (Cambridge: Cambridge University Press, 1970), pp. 99, 104.
4 The Court’s decision, no. E.1988/5, K.1988/55, 22 December 1988.
5 The Court’s decision, no. E.1996/55, K.1997/33, 27 February 1997.
6 The Court’s decision, no. E. 2010/92, K.2012/86, 31 May 2012.
7 See, Onurhan Solmaz (dec.), no. 2012/1049, 26 March 2013, § 18.
8 Marcus Frank Cerny [Plenary], no. 2013/5126, 2/ July 2015, § 87.
9 The Court’s decision, no. E. 2009/85, K. 2011/49, 10 March 2011.
10 Sevim Akat Eşki, no. 2013/2187, 19 December 2013), §§ 40-49; see also Gülsim Genç, no. 2013/4439, 6 March 2014; Neşe Aslanbay Akbıyık, no. 2014/5836, 16 April 2015.