Turkish Civil Code and CEDAW

48 Pages·2015·0.26 MB·Turkish

Turkish Civil Code and CEDAW:
Never Shall the Twain Meet?*
Assist. Prof. Dr. Seda İrem Çakırca**
Abstract
Although Turkey became a party to the Convention on the Elimina-
tion of All Forms of Discrimination against Women (CEDAW) in 1986, it
originally included very extensive reservations, most of which arose from the
former Turkish Civil Code’s (fTCC) incompatibility with CEDAW. How-
ever, in 1999, Turkey withdrew a substantial portion of its reservations due
to revisions to the Turkish Civil Code. Nevertheless, regrettably, even today
it cannot be said that the new Turkish Civil Code is entirely compatible with
CEDAW. This paper firstly aims to explore these incompatibilities between
CEDAW and the Turkish Civil Code by analysing changes to the Code in
comparison with related Articles of CEDAW. The paper will then recommend
* This work was supported by the Scientific Research Projects Coordination Unit of Is-
tanbul University. Project Number 24113.
** Istanbul University Faculty of Political Sciences, Department of Law. [icakirca@istan-
bul.edu.tr ].
This paper is an extended version of “International Law’s Influence on Women’s Human
Rights: A Case of Compatibility between CEDAW and Turkish Civil Code” that was
presented at the Fifth Biennial Oceanic Conference on International Studies (OCIS),
18-20. 07. 2012, Sydney, Australia and “CEDAW’s Influence on National Legislations: A
Case of Women’s Property Rights in Turkish Civil Code” that was presented at the 71st
Annual Midwest Political Science Association Conference, 11-14. 04. 2013, Chicago,
USA. The author is grateful to Samantha Besson’s distinguished work for inspiring the
title of this paper and also to Associate Professor David Yamanishi for his comments. See
Samantha BESSON, “Gender Discrimination under EU and ECHR Law: Never Shall
the Twain Meet?”, Human Rights Law Review, Vol. : 8, No. : 4, 2008, pp. 647- 682.
146 Seda İrem Çakırca [Annales XLV, N. 62, 145-192, 2013]
what should be done in order to make the Turkish Civil Code (TCC) com-
pletely compatible with CEDAW with de lege feranda suggestions.
Keywords: Turkish Civil Code, CEDAW, reservations, gender equality,
family law.
Öz
Her ne kadar Türkiye 1986 yılında Kadınlara Karşı Her Biçimiyle
Ayrımcılığın Ortadan Kaldırılması Sözleşmesi’ne (CEDAW) taraf olmuşsa
da, Türk Medeni Kanunu’nun CEDAW ile uyumsuzluğu sebebiyle anlaşmaya
oldukça geniş çekinceler koymuştur. Türkiye 1999 yılında Medeni Kanun’da
yapmayı düşündüğü ve hali hazırda yaptığı değişiklikler ışığında CEDAW’
a koyduğu çekincelerin önemli bir kısmını kaldırmıştır. Maalesef bugün dahi,
Türk Medeni Kanunu’nun CEDAW ile tam olarak uyumlu olduğunu söylemek
mümkün değildir. Bu bağlamda, çalışma ile ilk olarak amaçlanan CEDAW
ve Türk Medeni Kanunu arasındaki uyumsuzlukları incelemektir. Bu amaçla
çalışma içerisinde Türk Medeni Kanunu’nun CEDAW ile uyumlu kılınması
adına yapılan değişiklikler ilgili CEDAW hükümleriyle karşılaştırmalı olarak
incelenecektir. Son olarak Türk Medeni Kanunu’nun CEDAW ile tamamen
uyumlu olabilmesi için yapılması gereken değişikliklere dair de lege feranda
öneriler ortaya koyulacaktır.
Anahtar Kelimeler: Türk Medeni Kanunu, CEDAW, çekinceler, cin-
siyet eşitliği, aile hukuku.
Turkish Civil Code and CEDAW: Never Shall the Twain Meet? 147
Introduction
Although human rights are discussed worldwide, women’s rights in
international human rights initiatives are almost invisible. Unfortunately,
women are still largely absent from the political decision-making process
and treated as “second class citizens”. Furthermore, they are specifically
restricted from the public sphere in certain countries.1 The concept of
women’s human rights originated from criticisms of the claim that hu-
man rights are universal.2 The term ‘women’s human rights’ is intended
to cover a wider area than the term ‘women’s rights’.3
All of the general or specific human rights treaties adopted since the
Second World War have tried to dissolve women’s human rights within
the notion of human rights. However, their resulting structure meant
that they paid attention to men’s life experiences and their priorities,
rendering them incapable of embracing women’s problems.4 Inasmuch
as human rights law has been mainly developed by male jurists it has un-
fortunately been gendered as male.5 However, through the tremendous
effects of the women movement and feminist rights lawyers around the
world, it has been possible to constitute a treaty only for women. In 1979,
women’s human rights became the subject of a treaty of their own: the
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW).
CEDAW, the most comprehensive treatment of women’s interna-
tional human rights, was adopted by the United Nations General As-
1 Fran P. HOSKEN, “Towards a Defination of Women’s Human Rights”, 3 Hum. Rts. Q.,
1981, p. 1.
2 Although the term ‘human rights’ includes everyone and has no intentional discrimina-
tory meaning, in actuality “everyone” was used in reference to white males.
3 Andrew C. BYRNES, “Women, Feminism and International Human Rights Law - Meth-
odological Myopia, Fundamental Flaws or Meaningful Marginalisation?” , 12 Austl.
Y.B. Int’l . L. , 205, 1992, p. 215.
4 Hilary CHARLESWORTH, “What are “Women’s International Human Rights?”, in Ed-
ited Rebecca J. Cook, Human Rights of Women National and International Perspec-
tives, University of Pennsylvania Press, Philadelphia Pennsylvania, 1994, pp. 58-84.
5 Elisabeth Jay FRIEDMAN, “Bringing Women to International Human Rights”, Peace
Review: A Journal of Social Justice, 18, 2006, p. 480.
148 Seda İrem Çakırca [Annales XLV, N. 62, 145-192, 2013]
sembly to remedy the pervasive and structural nature of violations of the
human rights of women.6 There are 30 articles that cross the traditional
boundaries between public and private life and expose for remediation
harms to women that have previously been denied full definition.7 The
Convention is also able to address the particular nature of women’s dis-
advantages.8
In international law, an intention to commit to the treaty is implied
by its ratification in that, after ratification, states accept responsibility
for activities that violate the treaty—whether those activities are carried
out by the state directly or are simply culturally pervasive violations.9
Ratification means that state parties have to enact or modify domestic
legislation and their constitutions to accord with the substantive articles
of the Convention.10
This paper focuses on Turkey’s ratification of CEDAW and its ef-
fects on the Turkish Civil Code. While other national legislation, like
the Turkish Criminal Code, also changed due to Turkey’s ratification
of CEDAW, this paper’s scope is limited to the Turkish Civil Code and
Turkey’s reservations related to this code.
Part I of this study will describe the purpose of CEDAW, before
briefly examining Turkey’s participation in it and its reservations. Part
II will describe the process of reviewing the Turkish Civil Code and the
changes made before 2002, when the new Turkish Civil Code came into
force. Part III explains the changes made concerning equality before
6 Ekaterina Yahyaoui KRIVENKO, Women, Islam and International Law Within the
Context of the Convention on the Elimination of All Forms of Discrimination
Against Women, Brill, Martinus Nijhoff, Leiden, 2009, p. 18.
7 Diane G. ZOELLE, Globalizing Concern for Women’s Human Rights The Failure
of the American Model, St. Martins Press, New York, 2000, p. 31.
8 Rebecca J. COOK, “Women’s International Human Rights Law: The Way Forward”, in
Edited Rebecca J. Cook, Human Rights of Women National and International Per-
spectives, University of Pennsylvania Press, Philadelphia, 1994, p. 11.
9 ZOELLE, 2000, p. 55.
10 Vedna JIVAN/Christine FORSTER, “Challenging Conventions: In Pursuit of Greater
Legislative Compliance with CEDAW in the Pacific”, Melbourne Law Journal, Vol. 10,
2009, p. 2.
Turkish Civil Code and CEDAW: Never Shall the Twain Meet? 149
the law and civil matters, while Part IV will discuss the changes made
concerning marriage and family relations. The article will conclude by
recommending what needs to be done de lege feranda in order to make
the Turkish Civil Code completely compatible with CEDAW.
I. CEDAW, Turkish Ratification and Reservations
A. CEDAW
The United Nations Charter of 194511 recognizes that all human
beings have human rights for the simple reason of being human,12 and
therefore forbids discrimination on the basis of race, sex, language or
religion.13 The reference to “all men” in the original draft of the charter
was heavily criticized and an agreement was ultimately reached amongst
United Nations (UN) members to refer to all human rights.14 In its pre-
amble, the treaty refers to “the equal rights of men and women”, while
Article 1 (3)15 includes among the purposes of the UN the promotion
of and encouragement of respect for human rights and for fundamental
freedoms for all without distinction, inter alia, as to sex.16
When the UN was founded in 1945, there was a desire among fe-
male delegates to build a permanent body to deal with women’s rights.17
11 The Charter of the United Nations was signed on 26 June 1945, in San Francisco, at the
conclusion of the United Nations Conference on International Organization, and came
into force on 24 October 1945.
12 UN Charter pmbl. , cl. 2.
13 UN Charter, Art. 1, para. 3.
14 Fleur van LEEUWEN, Women’s Rights Are Human Rights the Practice of the Unit-
ed Nations Human Rights Committee and the Committee on Economic, Social
and Cultural Rights, Intersentia, Antwerp, 2010, p. 3.
15 See also UN Charter, Art. 55 (c), 56.
16 Christine CHINKIN/Marsha A. FREEMAN, “Introduction”, in Edited Marsha A. Free-
man, Christine Chinkin, Beate Rudolf, The UN on the Elimination of All Forms of
Discrimination against Women A Commentary, Oxford University Press, New york,
2012, p. 4.
17 Elizabeth Evatt, “Finding a Voice for Women’s Rights: The Early Days of CEDAW”, 34
Geo. Wash. Int’l. L. Rev. , 2002, p. 515.
150 Seda İrem Çakırca [Annales XLV, N. 62, 145-192, 2013]
Due to these female delegates’ efforts, the Commission on the Status of
Women (CSW) was established in 1946. Among its activities, the CSW
drafted several conventions and declarations, including the Declaration
on the Elimination of Discrimination Against Women (DEDAW)18 in
1967. The CSW also promoted an International Women’s Year in 1975,
the Women’s Decade and major women’s conferences, such as those held
in Mexico (1975), Copenhagen (1980), Nairobi (1985) and Beijing
(1995).19 The Convention on the Elimination of All Forms of Discrimi-
nation Against Women (CEDAW)20 was adopted in 1979 and came into
force in 1981. Focusing solely on the enjoyment of human rights by
women, the Convention is the most comprehensive international treaty
on women’s issues, requiring nations to end sex-based discrimination
and ensure equality between men and women.21
The Convention defines discrimination against women as “...any dis-
tinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field.”22. It
is thus directed against both public and private discrimination, and also
calls for affirmative action.
18 UN GA, res. 2263 (XXII), 7 November 1967.
19 CHINKIN/FREEMAN, 2012, pp. 5- 6. The UN World Conference on Human Rights
(1993) was also targeted by 90 women’s NGOs. They gathered 300,000 signatures from
123 countries, including Turkey, and declared that the conference should “comprehen-
sively address women’s human rights at every level of its proceedings” and recognize
gender-based violence as “a violation of human rights requiring immediate action”.
FRIEDMAN, 2006, p. 482; Laura PARISI, “ Feminist Praxis and Women’s Human
Rights”, Journal of Human Rights, Vol. : 1, No. : 4, December 2002, p. 581.
20 Convention on the Elimination of All Forms of Discrimination Against Women, GA,
res. 34/180, 34 UN GAOR Supp. (No. 46), at 193, UN Doc. A/34/46, entered into
force Sept. 3, 1981.
21 Susan Deller ROSS, Women’s Human Rights the International and Comparative
Law Casebook, University Press of Pennsylvania Press, Philadelphia, 2008, p. 11;
LEEUWEN, 2010, p. 3.
22 Article 1 CEDAW.
Turkish Civil Code and CEDAW: Never Shall the Twain Meet? 151
By accepting the Convention, states commit themselves to under-
take a series of measures to end discrimination against women in all
forms, including to incorporate the principle of equality of men and
women in their legal system, abolish all discriminatory laws and adopt
appropriate ones prohibiting discrimination against women,23 establish
tribunals and other public institutions to ensure the effective protection
of women against discrimination,24 and ensure elimination of all acts of
discrimination against women by persons, organizations or enterprises.25
State agencies are obliged to address prevailing gender relations and the
persistence of gender-based stereotypes that affect women, both through
individual acts and also in laws, legal and societal structures and institu-
tions.26 In short, participating states must ensure both formal (de jure)
and substantive (de facto) equality.27 In order to accelerate the realization
of the de facto equality, they can also take temporary special measures,28
such as introducing quotas in education, political representation and em-
ployment, or granting short-term bank loans to enable women to start
new businesses.29
The Convention established an independent monitoring body, the
CEDAW Committee, composed of twenty-three elected experts. The
23 Article 2 (f) CEDAW.
24 Article 2 (c) CEDAW.
25 Article 2 (e) CEDAW.
26 Committee on the Elimination of Discrimination against Women, General Recommen-
dations No. 25 (2004), Article 4 paragraphs 1 of the Convention (temporary special
measures), UN doc HRI/GEN/1/Rev. 8, pp. 337-345, para. 7.
27 Simone CUSACK/ Rebecca J. COOK, “Combating Discrimination Based on Sex”, in
Edited Catarina Krause and Martin Scheinin, International Protection of Human
Rights: A Text Book, Abo Akademi University, 2009, p. 206; Aldo FACIO/Martha I.
MORGAN, “Equity or Equality for Women? Understanding CEDAW’s Equality Prin-
ciples”, Alabama Law Review, Vol. : 60, No. : 5, 2009, p. 1154.
28 Temporary special measures are described by COOK as follows: “time limited positive
measures intended to enhance opportunities for historically and systemically disad-
vantaged groups, with a view to bringing group members into mainstream of political
economic, social, cultural and civil life. Rebecca J. COOK, “Obligations to Adopt Tem-
porary Special Measures under the CEDAW Convention” in Edited I. Boerefijn, Tem-
porary Special Measures, Intersentia, 2003, p. 119.
29 CUSACK/COOK, 2009, p. 207.
152 Seda İrem Çakırca [Annales XLV, N. 62, 145-192, 2013]
Committee’s primary function is to receive and consider reports from
participating state, explaining what they have done to put CEDAW
into effect and the difficulties they have encountered in fulfilling their
obligations.30 The Committee adopts a “dialogue” approach, question-
ing state representatives on specific portions of their reports, and on
deficiencies and discrepancies between their reports and information
received from other sources.31 After considering a state’s report and other
information gathered, the CEDAW Committee compiles its Concluding
Comments, which it then submits to the UN General Assembly through
the Economic and Social Council.32 The Committee may make sugges-
tions and general recommendations based on the examination of reports
and information received from the States Parties. Such suggestions and
general recommendations are included in the reports of the Committee
together with comments, if any, from the States Parties.33 The purpose of
the general recommendations’34 is to provide clear guidance for applying
CEDAW articles.
As mentioned earlier, the original convention’s weakness lay in its
legal instrument that prevented it dealing with individual complaints.
However, following intensive lobbying by women’s human rights orga-
nizations and other NGOs, CEDAW now has an individual complaints
procedure.35 The Optional Protocol to the Convention on the Elimina-
tion of All Forms of Discrimination Against Women36 came into force
on December 22, 2000. As of October 2013, 104 states have ratified
or acceded to the protocol, thus becoming state parties and bound by
it. The Optional Protocol to the Convention strengthens the enforce-
ment powers of the CEDAW Committee.37 It allows individuals or
groups of individuals to submit individual complaints to the CEDAW
30 CUSACK/COOK, 2009, p. 211.
31 JIVAN/FORSTER, 2009, p. 5.
32 Article 21 para. 1 CEDAW.
33 Article 21 para. 1 CEDAW.
34 CUSACK/COOK, 2009, p. 214.
35 ROSS, 2008, p. 15.
36 GA res. 54/4, 54 UN GAOR Supp. (No. 49) at 5, UN Doc. A/54/49 (Vol. 1) (2000).
37 JIVAN/FORSTER, 2009, p. 6; CUSACK/COOK, 2009, p. 215; PARISI, 2002, p. 583.
Turkish Civil Code and CEDAW: Never Shall the Twain Meet? 153
Committee,38 while the inquiry procedure empowers the committee to
undertake inquiries where it receives information indicating grave or sys-
tematic39 violations by a participating state of the rights protected under
the Convention.40 According to Article 17 of the Optional Protocol to
the Convention, unlike CEDAW, state parties cannot make any reserva-
tions to the protocol.
As of October 2013, 54 states parties to CEDAW still have one or
more reservations or declarations in place, making it one of the most
heavily reserved human rights treaties.41 In particular, state parties have
made numerous reservations to Article 2, 9, 15 and 16, which are very
important for successful enforcement of the Convention.
The Convention formally comprises a Preamble followed by six
main sections. Part I (Articles 1-6) deals with states parties’ general
obligations; Part II (Articles 7-9) with public life and civil and political
rights; Part II (Articles 10-14) with economic and social rights; Part IV
(Articles 15-16) with legal status, including within the family, Part V (Ar-
ticles 17-22) with the committee; and Part VI (Articles 23-30) with the
final provisions. A major criticism of CEDAW is that there are no special
provisions42 about gender-based violence, especially domestic violence,
38 CUSACK/COOK, 2009, pp. 215-219.
39 See Articles 8-10 of the Optional Protocol.
40 CUSACK/COOK, 2009, pp. 219-221; Ineke BOEREFJN, “Establishing State Respon-
sibility for Breaching Human Rights Treaty Obligation: Avenues under UN Human
Rights Treaties”, NILR, Vol. : LVI, 2009, p. 193; Aaron Xavier FELLMETH, “Feminism
and International Law: Theory, Methodology and Substantive Reform”, Human Rights
Quarterly, Vol. : 22, 2000, p. 679.
41 ROSS, 2008, p. 24.
42 Although CEDAW has no special provisions about violence against women, the CE-
DAW Committee covered this gap with General Recommendations. See Committee on
the Elimination of Discrimination against Women, General Recommendation No. 19
(llth session, 1992). This general recommendation has had a profound impact on inter-
national, regional and comparative jurisprudence. CUSACK/COOK, 2009, p. 215; Fe-
lice D. GAER, “Implementing International Human Rights Norms: UN Human Rights
Treaty Bodies and NGOs”, Journal of Human Rights Law, Vol. : 2, No. : 3, September
2003, p. 348.
154 Seda İrem Çakırca [Annales XLV, N. 62, 145-192, 2013]
female genital circumcision43 and reproductive rights.44 The treaty is also
weakened by the lack of consequences for infrequent reporting (non-
reporting or late reports) and the reservations system.45
The scope of this study is limited to examine the relationships be-
tween CEDAW and the Turkish Civil Code concerning equality before
the law, legal capacity, freedom of movement (Article 15) and the fam-
ily (Article 16). Articles 15 and 16 of CEDAW allow women to realize
their rights to equality within the “private” arena of the family and private
contractual arrangements. Therefore, the Turkish Civil Code plays an
important role to achieve gender equality in the family and public life. In
this respect, Turkey’s participation in CEDAW, and its reservations, are
significant factors for analysing state of women’s human rights in Turkey
concerning civil matters.
B. Turkish Ratification and Reservations
Although it has been claimed46 that there is no clear evidence of
any large-scale civil society efforts, whether from women’s groups or
others specifically lobbying the Turkish Government to ratify CEDAW,
Turkey’s feminist movement has dramatically increased public aware-
ness about CEDAW. First of all the convention was known about and
43 Samar EL-MASRI, “Challenges facing CEDAW in the Middle East and North Africa”,
The International Journal of Human Rights, Vol. : 16, No. : 7, October 2012, p. 938.
44 The Convention was also criticized by feminist scholars for its weakness in defining and
protecting women’s rights in the private sphere and paying no attention at all, except for
its provision on rural women, to the experiences of women. KRIVENKO, 2009, pp. 42-
43; FELLMETH, 2000, p. 698.
45 FELLMETH, 2000, p. 713; Rachael Lorna JOHNSTONE, “Feminist Influences on the
United Nations Human Rights Treaty Bodies”, Human Rights Quarterly, Vol. : 28,
2006, p. 151; Hanna Beate SCHÖPP-SCHILLING, “Treaty Body Reform: the Case of
the Committee on the Elimination of Discrimination against Women, Human Rights
Review, Vol. : 7, No. : 1, 2007, pp. 203-205; EL-MASRI, 2012, pp. 937-938.
46 Feride ACAR, “Turkey”, in Edited M. McPhedran, S. Bazilli, M. Erickson, and A. By-
rnes, The First CEDAW Impact Study: Final Report, Toronto: The Centre for Femi-
nist Research, York University, and the International Women’s Rights, 2000, p. 205; Bri-
an MELLO/Michael STRAUSZ, “International Norms and Women’s Rights in Turkey
and Japan”, Journal of Women, Politics & Policy, 32: 4, p. 343.