The (Non)-Ratification of the Istanbul Convention: Specialities of the Related Political Discourse in Hungary

Tímea Drinóczi & Lídia Balogh

University of Pécs & Institute for Legal Studies.

In this blog post, whilst we focus on Hungary, we plan to expand our horizons beyond the non-ratification of the Council of Europe’s Istanbul Convention by Hungary. What you need to know at this point is that Hungary signed the Istanbul Convention seven years ago but has not ratified it yet - and this situation has its reasons and its consequences. 

Why is it a particularly interesting topic to discuss right now, in early 2021?  

Because Hungary is not the only “non-ratifying” EU member state. There has been a growing and tangible hostility towards the Istanbul Convention amongst several member states, and some features of the anti-ratification arguments are transnational.  

It should be recalled that the European Union has also signed the Istanbul Convention, but the ratification process has been blocked. Due to the aforementioned antagonistic sentiments towards the Convention, the previously obvious consensus on the Istanbul Convention is now crumbling.  

In this situation, the EU decided to come out with a “Plan B”, i.e. to substitute the Istanbul Convention by creating an EU legislation with similar content. A new EU initiative, entitled “Combating gender-based violence – protecting victims and punishing offenders,” was launched a couple of weeks ago. We will refer to this endeavour as the “Istanbul Convention 2.0.” At this point, when the success of this new project is at stake, it would be highly necessary to understand the concerns and criticism regarding the “original” Istanbul Convention. 

Unfortunately, there is a widespread but over-simplified perception of the situation, that this is a black-and-white debate, and there are two camps: the supporters of the Istanbul Convention (progressives) and its opponents, who are “fundamentalist-conservatives” promoting the transnational “anti-gender” mobilisation with relative success.  

We claim that the reality is more complex than that, and the lack of understanding of this complexity could easily jeopardize the EU’s “Istanbul Convention 2.0” project.  

To prove our point, we have identified four trends of concerns and examined whether these were articulated in Hungary concerning the Istanbul Convention.  These concerns can be broadly identified as conservative concerns; libertarian concerns; “across-the-aisle” anti-feminist concerns; and even some feminist concerns.  

Firstly, we agree that conservative concerns play a major role in this context. This so-called “anti-gender(-ideology)” agenda appeared years before the adoption of the Convention and has a vast international academic literature. 

The Hungarian specificity is that this discourse was, from the beginning, largely promoted by the government, and not so much by the Catholic church or civil society organisations (as it was the case in several European countries). A leader of the governing Fidesz party asserted in 2017 that “the Convention is not about the equality of women, nor is about the rights of women, instead, it is  ‘very sneaky’ gender politics.” Later, the government’s anti-ratification argumentation focused more and more on the Constitution and constitutional identity of Hungary. A pro-government think-tank in 2018 said that the Convention is not in harmony with the Constitution of Hungary as it only pretends to “deal with the ‘prevention of violence against women and domestic violence.’ It would instead introduce the category of ‘gender’ as a ‘socially constructed role’, additionally to the procreated, biological sexes.” 

Secondly, libertarian concerns have also been raised, focusing on the threat that states would gain too much oppressive power over individuals. It is hallmarked by the derogatory term of “carceral feminism” and this theory questions the efficacy of criminal law sanctions as tools in combating interpersonal violence.  

This position was only once taken in the Hungarian ratification debate in 2020. The Hungarian Helsinki Committee argued that “tightened criminal laws in themselves will not hold back, typically, the perpetrators, and will not provide protection for victims […] Tightened laws would further burden the prisons.” 

Thirdly, the “across-the-aisle” (party-neutral) anti-feminist concerns have always been prevalent, practically everywhere. These classic claims argue that “domestic violence affects men maybe even more than women” or “we should not stir animosity between men and women in the society.” These claims have been phrased by left-wing politicians as well, not just by rightists. Notably, similar voices were also articulated during the drafting process of the Convention. This is exactly why the approach of the document is based on a compromise: even though it speaks about violence against women, it refers to domestic violence in a gender-neutral way. These “across-the-aisle” concerns had been more prevalent in the early phase of Hungary’s (non)-ratification process but were raised only sporadically in 2020. 

Fourthly, sometimes feminist criticism is also voiced regarding the Istanbul Convention. It usually challenges the above mentioned compromise-based approach and claims that the Convention is not feminist enough.  

Remarkably, this kind of criticism was never voiced regarding the Istanbul Convention by Hungarian feminists – apparently, due to the fragility of the ratification project in Hungary. 

We have detected a fifth, uniquely Hungarian feature as well. It is the anti-immigration argument, which argues that the Convention contravenes the government’s migration politics. It is claimed that the Convention’s asylum and migration-related provisions imply that, first, “all women asylum seekers” should “automatically” be granted a refugee status, and second, the provisions would encourage incoming migration to Hungary. This could also be viewed as the first pillar of the government’s anti-ratification argument. The second pillar is a straightforward determination of the government that it would not want to implement the concept of gender or the Convention’s “gender ideology” into domestic law.  

What are the key takeaways of this case study on Hungary, placed in a broader context? 

Any of the above-mentioned concerns may be raised against the EU’s “Istanbul Convention 2.0” project. But when its success is at stake, first, the reasons for the rejection of the term “gender” which is prevalent in constitutional argumentations not only in Hungary, should be considered and understood. 

Let us pause here for a moment and not forget that the usage of the term “gender” has been diversified during the last decade, since the adoption of the Istanbul Convention. This diversification in various disciplines complicates an otherwise multifaceted issue even more. Indeed, nowadays, the term “gender” has increasingly been used with the meaning of “gender identity” in the political and social discourse, and gender identity-based claims are on the rise. But it is distorting to refer to this tendency in the context of the Istanbul Convention, given the Convention’s clear definition of gender as a social construct. Thus, in this specific context, the anti-“gender-ideology” concern fuels populist arguments under the false pretence of being a thereby “conservative concern” and it also supports the national specificities such as the Hungarian anti-immigration argument. After all, Hungary’s rampant role in the EU playing field in general should also be considered if we are to aim for a successful ratification of the “Istanbul Convention 2.0” project. 

In conclusion, if there is a genuine intention to eliminate violence against women and domestic violence, the EU may have to be open to compromise. Otherwise, the “Istanbul Convention 2.0” project will be endangered, or at least severely hindered, depending on the “blackmailing capacity” of the opponents of the Istanbul Convention. Provided that the EU wishes to stay a value-based community, another indirect solution would be the reconsideration of the EU membership of Hungary or, at least, its isolation in EU matters – but this is a whole different story.  

(This blog post is the edited version of the authors’ presentation at the Global Summit, hosted by the International Forum on the Future of Constitutionalism on 14 January 2021). 

Tímea Drinóczi is Professor of Law at the Faculty of Law, University of Pécs Hungary. 

Lídia Balogh is a Research Fellow at the Centre for Social Sciences (Hungarian Academy of Sciences Centre of Excellence), Institute for Legal Studies.  

Suggested citation: Tímea Drinóczi and Lídia Balogh, ‘The (Non)-Ratification of the Istanbul Convention: Lessons from a Related Political Discourse in Hungary’ IACL-AIDC Blog (9 February 2021) https://blog-iacl-aidc.org/gender/2021/2/9/the-non-ratification-of-the-istanbul-convention-specialities-of-the-related-political-discourse-in-hungary.