Article 77 &#8211; Territorial application

Article 77 – Territorial application

Any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.
Any Party may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings. In respect of such territory, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.
Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.

Glossary of Key Terms

Territorial application: The process by which a state declares which geographic territories under its control will be subject to a treaty’s obligations. For states with overseas territories, dependencies, or crown possessions, this allows selective application of the treaty – binding some territories while excluding others.

Convention: A formal agreement or treaty between states, typically establishing legal obligations under international law. In this context, refers to the Istanbul Convention (Council of Europe Convention on preventing and combating violence against women and domestic violence). Once ratified or acceded to, conventions create binding legal obligations for state parties.

Entry into force: The date when a treaty becomes legally binding on the states or territories that have ratified or acceded to it. This term is notably vague – it does not specify what “force” means, what enforcement mechanisms exist, or what practical effects follow from this legal status. For territorial extensions under Article 77, the Convention enters force three months after the declaration is received.

Monitoring / Oversight: Diplomatic euphemisms for international interference in domestic affairs. When used in the context of GREVIO (the Convention’s monitoring body), these terms describe foreign officials conducting country visits, demanding domestic data, evaluating national laws, issuing public reports criticizing state practices, and pressuring governments to change their legal systems. Local law enforcement agencies, family groups, and domestic constituencies may view this “monitoring” as unwanted foreign interference in sovereign matters that should be handled by local institutions accountable to their own populations.

Weaknesses Assessed 2025 11m 14d by Dainis W. Michel, Claude.ai, and ChatGPT

Structural Function

Article 77 is a territorial control clause. It determines:

Which geographic territories are bound by the Convention
When states may extend coverage to additional territories
How states may withdraw territorial application
The timeline for territorial extensions and withdrawals

Key Observations

1. Colonial Legacy Language

Article 77 accommodates states controlling “territories for whose international relations it is responsible” – language rooted in colonial administration. This enables:

European states with overseas territories to apply the Convention selectively
Exclusion of territories where implementation would be politically difficult
Maintenance of different legal standards in metropolitan vs. overseas jurisdictions

2. Selective Implementation Creates Legal Fragmentation

States can specify which territories are included, creating:

A patchwork of Convention coverage
Strategic exclusion of territories with different cultural or religious norms
Ability to avoid accountability in jurisdictions with contested practices

Example: A state could ratify for its mainland while excluding overseas territories that object to consent-based rape definitions or mandatory prosecution policies.

3. Three-Month Implementation Window Is Insufficient

Article 77(2) requires the Convention to enter force for new territories just three months after declaration. This timeline may be inadequate for territories to:

Amend domestic legislation to comply with all Convention requirements
Establish required infrastructure (shelters, helplines, specialist services per Articles 23-25)
Train law enforcement and judicial personnel on new standards
Conduct public awareness campaigns about new protections
Address cultural or religious objections to Convention provisions

4. Withdrawal Mechanism Undermines Stability

Article 77(3) allows states to withdraw territorial declarations with only three months’ notice, creating:

Uncertainty for all stakeholders in those territories (victims, service providers, law enforcement, family groups)
Potential for politically motivated withdrawal following cultural backlash or domestic opposition
Risk of sudden legal regime changes that territories may or may not have supported
No requirement to demonstrate that alternate legal frameworks are in place

Weaknesses / Sovereignty Considerations

1. Democratic Legitimacy in Dependent Territories

Article 77 permits a state to extend Convention application “on whose behalf it is authorised to give undertakings” without specifying:

What constitutes legitimate authorization
Whether the territory’s population consents
Whether territorial legislatures must approve
What happens if local government objects

This raises serious questions: Should a metropolitan government impose Convention obligations (including consent-based rape definitions, mandatory prosecution, GREVIO monitoring) on territories with self-governing legislatures that have not independently ratified?

2. Asymmetric Treaty Structure

The territorial application provision creates asymmetry where:

Metropolitan powers can selectively apply obligations to territories under their control
Some territories become subject to Convention obligations while others don’t – based on metropolitan political calculations
Territorial residents cannot independently choose whether to join or reject the Convention
International monitoring (GREVIO) may be excluded from certain territories

3. Strategic Withdrawal as Accountability Avoidance

A state facing GREVIO criticism could:

Withdraw specific territories from Convention coverage to avoid monitoring
Exclude territories where violations are occurring from GREVIO’s jurisdiction
Use territorial boundaries to create accountability-free zones
Restore territorial coverage after criticism passes

4. Known Territorial Issues

Practical complications arise for:

United Kingdom: Crown Dependencies (Jersey, Guernsey, Isle of Man) and British Overseas Territories have separate legal systems and may object to Convention standards
France: Overseas departments, territories, and collectivities (French Polynesia, New Caledonia) with varying degrees of autonomy and different legal traditions
Netherlands: Caribbean territories (Aruba, Curaçao, Sint Maarten) have autonomous legal systems under the Kingdom Charter
Denmark: Greenland and Faroe Islands have home rule and may not accept all Convention provisions

Practical Implications

GREVIO Monitoring Challenges:

Must monitor implementation across geographically dispersed territories
Territories may lack resources for Article 11 data collection requirements
Language barriers and cultural differences complicate monitoring
Metropolitan governments may have limited operational control over territorial implementation
Unclear whether GREVIO can conduct separate country visits to territories

Compliance Gaps:

A state could claim compliance in metropolitan territory while violations continue in excluded territories
Victims in excluded territories have no recourse under the Convention
NGOs operating in excluded territories cannot use Convention standards in advocacy
No mechanism to challenge a state’s decision to exclude or withdraw a territory

CRITICAL: Fundamental Definitional Failures in the Convention

The following weaknesses undermine the entire Convention, including Article 77’s territorial application provisions:

1. “Gender” Defined Without Biology – Article 3(c) Fatal Flaw

Article 3(c) defines “gender” as: “the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”

What is missing:

NO mention of biological sex
NO reference to genetics (XX/XY chromosomes)
NO reference to anatomy
NO reference to reproductive biology

Consequences of this definitional failure:

Men entering women’s spaces: Males who “identify” as women claim access to women’s prisons, shelters, changing rooms, and bathrooms established under Article 23 (shelters) and Article 25 (rape crisis centers)
Violence against biological women: Documented cases of male-bodied individuals sexually assaulting women in “women-only” spaces designated under this Convention
Women’s sports infiltration: Males competing in women’s athletic categories, destroying fair competition and creating physical safety risks
Erasure of sex-based protections: The Convention claims to protect “women” but fails to define who women are in biological reality
Legal incoherence: A Convention about “violence against women” that cannot coherently define “women”

Article 77 territorial application implications:

Territories may refuse Convention application specifically because of the gender definition that erases biological sex
States may exclude territories where populations reject gender ideology and demand sex-based protections
Withdrawal provisions may be used when territories experience backlash from males accessing women’s spaces under Convention mandates
The three-month implementation window (Article 77(2)) is completely insufficient to resolve the profound legal and social conflicts created by eliminating sex as a recognized category

2. “Violence” Never Defined – The Convention’s Most Egregious Failure

The Convention is titled “Convention on preventing and combating violence against women and domestic violence” yet NOWHERE defines what “violence” means.

What the Convention uses instead of a definition:

“Harm” – undefined
“Suffering” – undefined
“Violation” – undefined

Article 3(a) attempts to define “violence against women” as:

“all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women”

Critical problems:

“Harm” is infinitely expandable – what constitutes psychological harm? Economic harm?
“Suffering” is subjective – any negative emotion could be classified as suffering
“Likely to result in” – criminalizes acts based on speculation about potential future emotional states
No threshold – is minor discomfort “suffering”? Is a difficult conversation “psychological harm”?

How bad actors exploit undefined terms:

Speech criminalization: Disagreeing with someone could be “psychological harm” or cause “suffering”
Economic control: A man reducing his financial support could be “economic violence,” while a man providing financial support could be deemed “financial control.”
Thought policing: Expressing unpopular views could “create an intimidating environment” (Article 40, sexual harassment)
False accusations: Without clear definitions, any interpersonal conflict can be reframed as “violence”
Expansion creep: Undefined terms allow continuous expansion of what qualifies as criminal conduct

Article 77 territorial application implications:

Territories with common law traditions requiring precise criminal definitions may refuse Convention application
States may exclude territories where constitutional due process requires criminal laws to have definite meaning
The undefined nature of “violence,” “harm,” and “suffering” makes territorial implementation legally impossible in jurisdictions with rule of law protections
Different territories under the same state may interpret these undefined terms completely differently, creating legal chaos
Withdrawal provisions may be used when territories experience abuse of undefined terms leading to false prosecutions

3. Combined Effect: A Convention Built on Undefined Terms

Article 77 requires states to extend a Convention to territories where:

The protected class (“women”) is defined by subjective self-identification rather than biological reality
The prohibited conduct (“violence”) is never actually defined
The harms addressed (“suffering,” “violation”) are infinitely expandable
Criminal prohibitions (Articles 33-39) are built on these undefined foundations

Result: Territories are being asked to:

Accept legal obligations they cannot coherently implement
Criminalize conduct that is not precisely defined
Protect a category of persons (women) that the Convention refuses to biologically define
Do all this within three months (Article 77(2))

This explains why territorial application has been so contentious and why states use Article 77 to exclude territories from Convention coverage.

Questions for Further Analysis

Can territorial legislatures refuse Convention application or demand withdrawal if the metropolitan state extends coverage?
What happens when a territory achieves independence after the Convention has been extended to it – does it remain bound?
Do territories have independent standing to make complaints about metropolitan state’s failure to implement in their jurisdiction?
Can a state use territorial withdrawal strategically to avoid GREVIO criticism of practices in specific territories?
How does Article 77 interact with UN decolonization principles regarding self-determination of non-self-governing territories?
What recourse do territory residents have if their metropolitan government applies or withdraws the Convention against the territory’s wishes?
Can the metropolitan state face consequences for failing to implement Convention standards in territories it has included?
Does territorial exclusion conflict with the Convention’s stated universal human rights principles?

Comparison with Other Human Rights Treaties

Article 77’s territorial application clause is increasingly anachronistic compared to:

ICCPR and CEDAW: Apply to all territories under a state’s jurisdiction automatically, without separate declarations
Convention on the Rights of the Child: No territorial exception clause – applies universally
European Convention on Human Rights: Historically had colonial clauses but these have been phased out

The selective application mechanism reflects an older model of human rights implementation that accommodated colonial administration structures, raising questions about whether such flexibility is appropriate for fundamental rights protection in the 21st century.