European Convention on Human Rights - right to form a trade union - right to bargain collectively - interpretation of convention in light of other international law.

Author:Nordeide, Ragnar

Demir & Baykara v. Turkey. App. No. 34503/97. At European Court of Human Rights, Grand Chamber, November 12, 2008.

In Demir v. Turkey, (1) a unanimous Grand Chamber of the European Court of Human Rights held that Turkey had violated the applicants' rights to form a trade union and to bargain collectively under Article 11 ("Freedom of assembly and association") of the European Convention for the Protection of Human Rights and Fundamental Freedoms (2) (Convention), elaborating a methodological approach to interpreting the Convention in light of other international law.

The application was brought by Kemal Demir and Vicdan Baykara, member and president, respectively, of the trade union Tum Bel Sen, founded in 1990 by civil servants from various Turkish municipalities. In 1993, the trade union entered into a collective agreement with the Gaziantep Municipal Council. Shortly thereafter, the trade union successfully brought civil proceedings before the Gaziantep District Court on account of the Municipal Council's breach of obligations under the agreement (paras.14-17). The District Court's ruling was ultimately quashed by the Court of Cassation on the ground that there was no specific law recognizing the trade union as a legal entity, with the consequence that the collective agreement was annulled and the members of the union obligated to reimburse the benefits obtained through additional payments granted under the now defunct collective agreement (paras. 18-31). The Court of Cassation's line of reasoning stood in stark contrast to that of the District Court. Although acknowledging the lack of express statutory provisions concerning the trade union's legal status, the District Court had found that this lacuna could be filled by reference to international treaties such as the conventions of the International Labour Organization (ILO), which were directly applicable in domestic law by virtue of the Turkish Constitution (para. 21).

On November 21, 2006, a unanimous chamber of the European Court of Human Rights held that the applicants' rights under Article 11 of the Convention (3) had been violated (para. 8). At the request of Turkey, the case was then referred to the Grand Chamber (paras. 9-10).

The Demir case provided the Grand Chamber with an opportunity to consider two significant questions of interpretation concerning Article 11: first, the proper interpretation of the scope of the exception in the second paragraph of Article 11 that permits the state to impose "lawful restrictions" on the exercise of the right to form trade unions by "members ... of the administration of the State," and second, whether the right to bargain collectively is to be considered an inherent element of the rights protected in Article 11.

A central feature of the Court's reasoning was its heavy reliance on other international instruments in addressing the two questions above concerning the interpretation of Article 11. Its analysis was undertaken against the backdrop of a fundamental objection from Turkey concerning the Court's use of other international instruments in interpreting the Convention. In Turkey's view, for such an interpretation of the Convention to be "legitimate," it had to comply with the criteria set out in Article 31(3) (c) of the Vienna Convention on the Law of Treaties (4) (VCLT), and Turkey argued in this context that the Court could take into account only those instruments by which Turkey was bound (para. 61). The Court responded to this objection by devoting a separate section of the judgment-"Interpretation of the Convention in the light of other international instruments" (paras. 60-86)-to the general "methodology to be adopted" (para. 60) for this interpretative task.

In presenting its general methodology, the Court started by providing the "[b]asis" for its approach. The Court noted its consistent practice since Golder (5) of being "guided mainly" by the rules of interpretation set out in VCLT Articles 31 to 33, requiring that one ascertain the ordinary meaning of the treaty terms in their context and in the light of their object and purpose, while drawing on, as necessary, supplementary means of interpretation (para. 65). In this context, but also referring to its own case law, the Court observed that since the Convention is "first and foremost a system for the protection of human rights," it needs to be "interpret[ed] and appl[ied] ... in a manner which renders its rights practical and effective, not theoretical and illusory" (para. 66). Likewise, citing both VCLT Article 31(3) (c) and its own case law, the Court stated that it had never considered the Convention's provisions as the "sole framework of reference" for interpreting "the rights and freedoms enshrined therein." It would thus "take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties" (para. 67). In view of what it had always taken to be the "living' nature of the Convention," the Court noted the importance of taking into account "evolving norms of national and international law in its interpretation of Convention provisions" (para. 68).

Moving beyond somewhat abstract or formal methodological analysis, the Court presented an extended discussion (paras. 69-84), with examples from its own case law, of the " [d]iversity of international texts and instruments used for the interpretation of the Convention." Although this section on international texts and instruments can be interpreted as an effort to explore what the Court takes to be the contours of VCLT Articles 31 to 33-and perhaps of Article 310)(c), in particular-the VCLT is explicitly...

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