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UC Irvine Journal of International, Transnational, and Comparative Law

Authors

Dilek Kurban

Abstract

Scholars frequently cite Turkey under Recep Tayyip Erdoğan’s rule among the leading examples of populism and authoritarianism in contemporary politics. Long an authoritarian regime, Turkey has in indeed evolved into a full-blown autocratic regime engaged in serious human rights violations and systemic rule of law violations. What makes this case particularly striking, however, is that this backsliding has occurred under the watch of European institutions. Claiming that the Turkish case speaks to broader issues concerning the ways in which transnational human rights and rule of law organizations interact with authoritarian regimes, this article puts forth theoretical insights for the rule of law scholarship. Going beyond conventional analyses which characterize interactions between international institutions and nation states as one-way relationships where norms flow (or not) from the top-down, it looks into the “enmeshment” of domestic and international law in authoritarian settings described in the introductory article of this special issue. Doing so, however, the article does not solely ask whether and how human rights norms are applied in authoritarian contexts, but also looks into how international organizations tasked with upholding the rule of law can not only permit illiberal states to violate those norms, but also themselves undermine these principles.

Conceptually, the article illustrates that the rule of law-rule by law spectrum fails to account for authoritarian contexts, where states go beyond rule by law to engage in legal repression and resort to lawlessness towards certain (racialized) segments of the population. Thus, it argues, if the rule of law is at one end of the analytical spectrum on the arbitrary exercise of power, what lies at the other end is lawless rule, not rule by law, and the dual state lies somewhere in between. Empirically, the article analyzes Turkey’s decades-long relationship with the European Union and in particular the European Court of Human Rights (ECtHR). It zooms in on the latter’s case law concerning Erdoğan’s resort to the law to consolidate his power (rule by law) and utter disregard of legal rules, including domestic ones, in repressing democratic dissent and engaging in state violence (lawlessness). Methodologically, to display and contest conventional scholarship’s depiction of the ECtHR as a supranational court exercising strict scrutiny of authoritarian regimes, the article goes beyond judgments, which constitute a mere 9 percent of jurisprudence, and takes a close look at inadmissibility decisions and strike-out rulings concerning Turkey’s resort to rule by law and lawlessness.

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