Didem Buhari, University of Edinburgh, Explaining Turkey's Failure to Comply with the European Union: a neoinstitutionalist perspective

INTRODUCTION

Turkey is an official European Union (EU) candidate since 1999. It started accession

negotiations in 2005 and enacted substantial reforms in order to align with the EU acquis.

However, negotiations were stalled by the EU in December 2006 due to Turkey’s failure to

comply in several policy areas. This research intends primarily to study cases where there is

significant domestic resistance to the EU reforms and understand why this resistance has

occurred. Accordingly, the research investigates the policy domains in which there are

pressures to comply with the EU requirements, Turkish domestic actors who resist these

pressures and the mechanisms through which the latter receive, translate and reject the EU

“messages”.

This research aims to investigate four recent instances, which constitute “hard cases” for

Turkey’s membership to the EU. Those are Turkey’s restrictions against the EU citizens’ right

to acquire land and work in Turkey, restrictions against Greek Cyprus and the Article 301

penalizing insult to “Turkishness” and Turkish institutions. In all of the proposed instances,

the magnitude and the essence of domestic resistance vary as well as the involved actors.

Although “national interest” argument is ubiquitous, its meaning is different in each case.

Following Neo-institutionalist literature, this paper introduces relevant concepts that might

explain the selected cases. Briefly, apart from the involved actors and the domestic political

organization, the domestic salience of norms and the clarity of the EU messages are advanced

as explanatory variables. Hence, not only material but also ideational factors should be

considered.

EMPIRICAL CONTEXT, RESEARCH QUESTIONS AND OBJECTIVES

Turkey is an official EU candidate since the EU Helsinki Council decision in 1999. It has

started accession negotiations in 2005 and enacted substantial reforms in a wide range of

policy domains in order to align with the EU. However, the negotiations have been stalled by

the EU in December 2006 due to Turkey’s failure to comply in several policy areas. This

research intends primarily to study cases where there has been significant domestic resistance

to Europeanization and understand why this resistance has occurred. Accordingly, it is crucial

to investigate the Turkish policy domains in which there are pressures to comply with the EU

requirements, Turkish domestic actors who resist these pressures and the mechanisms through

which the latter receive, translate and reject the EU “messages”. In this sense, the role of the

institutions in Turkey’s Europeanization process should be taken into consideration.

Among a wide range of choices, this study proposes to study four recent instances, which

constitute “critical cases” for –i.e. directly consequential upon- Turkey’s Europeanization

process. Those cases are officially reported by the European Commission in its regular

progress reports on Turkey (published annually since 1999). In all of the four proposed

instances, the magnitude of domestic resistance related to the number and the nature of the

involved actors vary.

The four cases of interest involve restrictions against foreigner’s right to land and to work in

Turkey, limitations towards freedom of expression and ban against Greek Cypriot transport to

Turkey. Due to time limitations, we have to limit ourselves by looking only at the foreigner’s

right to own land (FLO) in Turkey.

Resisting Foreigners’ Land Ownership and Europeanization

Since the inception of the Turkish Republic, there have been several legal limitations towards

foreigners’ land ownership in Turkey1. Briefly, according to Turkish legislation, foreign legal

persons’ right to land is totally restricted; villages and military zones are forbidden to foreign

acquisition; finally, the total surface of the land acquired by foreigners may not exceed 30 ha.

In mid-1980s a pro-liberal Turkish government amended the legislation twice in order to ease

1 See for example, the Protocol attached to the founding treaty of Lausanne (1923), Village Law No.442 (1924), Reciprocity Act No.1062 (1927), Land Registry Law No.2644 (1934), Military Forbidden Zones and Safety Areas Law No. 2565 (1981).

the restrictions.2 However, those amendments were quickly annulled by Turkish

Constitutional Court, which announced that land ownership is not merely an economic matter,

but a matter of national interest and sovereignty.3 Hence, restrictions towards foreigners have

been maintained. Up until the officialization of Turkey’s EU candidature, there has been no

development in this domain.

However in 2003, the pro-EU Turkish government decided to accelerate its reform process in

order to start accession negotiations with the EU and passed a law allowing both foreign real

and legal persons to acquire land even from villages. This law aimed at harmonizing Turkish

land market legislation with the EU principle of free movement of capital.4 Yet, upon the

request of the main opposition party, the Constitutional Court decided to annul the new law

based on the same arguments it had declared in 1980s.5

In Turkish Constitution, there are at least four provisions -Articles 6,7,8,9- prohibiting

delegation of sovereignty to an external entity6. Furthermore, the Preamble of Turkish

Constitution stipulates that “…no protection shall be accorded to an activity contrary to

Turkish national interests, the principle of the indivisibility of the existence of Turkey with its

state and territory, Turkish historical and moral values or the nationalism, principles, reforms

and modernism of Atatürk and …secularism…;” Moreover, Constitutional Court justified its

restrictive stance by claiming that even the EU member states do not unanimously comply

with the free movement of capital. The Court’s reference to the EU member states, which

derogate from the EU is crucial in terms of demonstrating the impact of internal EU affairs on

the Turkish domestic actors.

The opposition parties have successfully sought to mobilize segments of Turkish society

against the liberalization of Turkish land market. Arguments are mainly based on socio-

economic problems, protracted sovereignty disputes with Greece, historical memories on

Turkish national independence war against European forces and, anti-zionist and xenophobic

2 Law No. 3029 (dated 21 June 1984) and Law No. 3278 (dated 22 April 1986).3 Court Decision No. 1984/14 and Decision No. 1986/24.4 Law No. 4916 (dated 3 July 2003).5 Court Decision No. 2005/14.6 Baslar 2005.

sentiments. What is interesting is to observe that the opinions of leftist and rightist segments

of Turkish society converge around the same arguments regarding this issue. For example, a

prominent leading member of a leftist party (and wife of the former Prime Minister Bulent

Ecevit) opposed the new land law because she believes this would lead to the mass purchases

of land by Israelis.7 The pro-Islamists attack the law on the same ground.8

A prominent journalist published a map of Turkey showing the current numbers related to

foreign acquisition of land and entitled it “invasion map”.9 A former high-rank civil servant

from Turkish Land Registry argued in his book that lifting restrictions towards foreigners was

equal to treachery to the nation.10 The same argument was endorsed in a written public report

by a non-governmental organization, namely the Turkish Chamber of Survey and Cadastre

Engineers.11

Finally, the main suspicion gaining ground in Turkish society is that the Europeanization

process might undermine the territorial integrity of Turkish Republic. Some scholars call this

suspicion “Sevres Syndrome”, i.e. historical paranoia named after the aborted Treaty of

Sevres in 1920 intending to dismember the Ottoman Empire.12 However, even the Turkish

President of the time stated its concerns over the issue and aligned with the opposition.13

Accordingly, regarding public opinion, a large pro-status quo bloc has emerged embracing

even an unholy alliance among the most extreme ideological opponents. Resonating

arguments are mainly:

7 Turkish daily newspaper Milliyet, “Rahsan Ecevit: South Eastern Turkey might be another Palestine”, 14 June 2006, available online at http://www.milliyet.com.tr/2006/06/14/guncel/axgun01.html (in Turkish). The Israeli ambassador to Turkey falsified Ecevit’s accusations with a public statement. 8 Several articles from newspaper Yenicag and several pro-islamist web sites (eg. http://hanifislam.com/Siyon-izm/IsraillinGozu_GAPta.htm) Pro-islamist segments believe that Zionists claim territory from the south eastern Anatolia based on the “Promised Land” in the Old Testament.9 Can Dundar, “We found the invasion map that scares Rahsan Ecevit: The majority of (land) buyers are Greek!” in Turkish daily newspaper Milliyet, 10 July 2006, available online at http://www.milliyet.com.tr/2006/07/10/yazar/dundar.html (in Turkish).10 Orhan Ozkaya, Yabanciya Toprak Satisi (Foreigners’ Land Purchases), 2005, Istanbul: Kaynak Yayinlari. 11 “Turkey's territories in the claws of Neoliberalism” by the Chambers of Turkish Engineers and Architects - Chamber of Survey and Cadastre Engineers, September 2006, Ankara. (in Turkish) available online at http://www.hkmo.org.tr/resimler/ekler/090409688550f3c_ek.pdf12 See Oran 2005.13 “Sezer (President) is concerned about foreigners’ land purchases”, Turkish daily newspaper Radikal, 27 March 2007, available online at http://www.radikal.com.tr/haber.php?haberno=216705 (in Turkish).

(Economic disparity)- Due to the difference between purchasing powers, the majority

of Turkish land might be bought by foreigners and Turkish farmers might remain land-

less (See the report of the Chambers of Turkish Engineers and Architects - Chamber

of Survey and Cadastre Engineers, 2006).

Emotional link to “motherland” could also contribute to the opposition.

(National security)- Thinking retrospectively, there is a fear that Europeans (particu-

larly Greek nationals) are willing to invade Turkey as they did in 1920s. This time not

militarily but in a peaceful way, by buying Turkish land (Dundar in Milliyet 10 July

2006).

The popular reaction was such that Turkish Presidency and several Turkish universities

launched researches on the current status of foreigner’s acquisition of land in Turkey. The

Turkish General Directorate of Land Registry and Cadastre has even introduced a new chapter

in its official website in order to answer public questions on FLO. Yet, in contrast to the high

sensitivity in public opinion, official statistics report that foreigners’ land ownership in

Turkey is negligible.14

Concerning the stance of the governing party over the issue, it is hard to draw a

comprehensive analysis. This is partly because the party won a landslide victory in 2002

elections right after its foundation. Moreover, the top officials of the party have been

previously known for their strong opposition to the EU membership. Yet, currently it is

plausible to claim that the main agenda of the government has been based on the

harmonization of Turkish law with the acquis communautaire. However, the attempted

reform in the foreigner’s land ownership issue has been interpreted as revolutionary and faced

institutional resistance from Presidency, several political parties and Turkish Constitutional

Court. Thus, in order to avoid a backlash from the society, the government decided to follow

the established restrictive attitude. Accordingly, the current law maintains the limitations

towards foreigners.15 Nevertheless, the government claims that the FLO issue is exploited by

the opposition and adopts two types of arguments bolstering the FLO. First, the party officials

claim that liberalization would be in the interest of Turkish society by attracting foreign

investment and secondly, relying on the official statistics, they reject the concern that there

14 See the official statistics from the Turkish General Directorate of Land Registry and Cadastre.15 See the Act Pertaining to the Amendment to the Land Registry Act No. 5444 (dated 29 December 2005).

will be massive amount of FLO.16 However, they fail to appease those who believe that

reciprocity is impossible between Turkish citizens and the EU citizens in land ownership

issue, the gap between Turkish citizens’ purchasing power and the EU average is very high.

Hence it would be uneven for Turkish people to let Europeans buy land in Turkey. Moreover,

the EU policy of issuing limitations on the free movement of Turkish people in the EU even

after Turkey becomes a member might create another obstacle for Turkish citizens to buy land

in other EU countries.

On the other hand, the EU urges for Turkish compliance in FLO. The EU Commission

Reports on Turkey states that Turkish legislation restricting EU citizens’ land ownership has

to be abrogated for the functioning of the internal market. However, the EU is also aware of

the sensitivity of the issue. The same problem has been experienced very intensely during the

negotiations with the new member states.17 Particularly, in Poland the harmonization process

has been controversial due to Poland’s historical land ownership problems with Germany.18

Based on economic needs, several new members have been entitled the right to derogate for a

limited time period regarding second homes, forestry and agricultural land. However, the EU

does not accept arguments based on national security because this would reverse the character

of the Union.19 Hence, the Commission and the ECJ forced Greece to halt its security-related

restrictions against EU citizens’ right to own land from border zones, islands and coastal

regions.20

Finally, during the campaigns for the Turkish general elections held in July 2007, several

political parties put the FLO issue on their campaign agenda and defended arguments against

harmonization with the EU law. However, the pro-EU government won another landslide vic-

tory and established itself as a single government again. The FLO issue has not yet been dealt

with. In order to analyze the case of interest, we propose to use a theoretical framework

mainly derived from neo-institutionalist literature.

16 “Foreigner’s Land Ownership issue is exploited”, press statement from governing party media relations, avail-able online at http://www.haberler.com/yabancilara-toprak-satisi-istismar-ediliyor-haberi/ (in Turkish).17 See Tesser 2004.18 See Wood 2004.19 Hilson 2008.20 See the Commission vs. Hellenic Republic Case 305/87 in ECJ.

THEORETICAL FRAMEWORK

Neo-institutionalism is a promising theoretical framework for its analytical openness and its

place bridging highly abstract general theories with the theoretical approaches limited to ex-

plaining stable causal mechanisms. According to George&Bennett, Neo-institutionalism is be-

neficial for researchers investigating a process because it also suggests considering interven-

ing variables such as institutions rather than merely focusing on the initial and final stages of

a phenomenon21.

In summary, neo-institutionalism criticizes the mainstream decision-theoretic approaches on

the grounds that “Political phenomena could not be reduced to the aggregate consequences of

intentional individual behaviour. The organization of political life makes a difference”22.

Similarly, Peter Hall in his book entitled “Governing the Economy” concludes that “The

range of customary policy instruments at hand and the kind of societal resistance to be

expected in the face of a given policy vary according to organizational differences that affect

the perceived costs and benefits of policy in many issue areas”23. Briefly, according to neo-

institutionalism, institutions, defined generally as formal and informal rules and regulations,

have an effect on political preferences24. However, the main variants of neo institutionalisms -

Rational choice and sociological institutionalisms- disagree on the extent of this institutional

effect. This is mainly an ontological dispute over state interests and identity. According to

rational choice institutionalism, states have pre-conceived interests that are exogenous to any

international interaction. Hence a policy might be accepted by a state when it is perceived as

beneficial to its established interests. However, sociological institutionalists reject such an

instrumental review of state interests. Including sociological factors such as culture and

identity to the debate, they defend that state interests are socially constructed and might be

altered not necessarily out of strategic cost-benefit calculations. In other words, policies might

be adopted not only for their benefits but also for their appropriateness concerning the identity

of the state25.

In Turkey’s relations with the EU, neo-institutionalism might thus explain two different

developments. First, the rational choice approach suggests to investigate the number and 21 George&Bennett 2005, p.7. 22 March&Olsen, 1984. 23 Hall 1986.24 See March&Olsen 1989, and Hall&Taylor 1996.25 Aspinwall&Schneider 2001.

relative power of the political actors involved in the case of interest. In his book “Veto

Players: How Political Institutions Work”, George Tsebelis gives an explicit example of

rational institutionalist work26. In our case, veto players, defined as political actors whose

assent is necessary for a change in the status quo, include Turkish Constitutional Court,

Presidency, and opposition parties. Studying the powers ascribed to them might help us to

explain change and continuities regarding EU reforms in Turkey. However, this approach

might also be criticized of excluding socialization and the impact of external actors such as

transnational advocacy networks and epistemic communities in persuading and teaching

domestic agents to adopt new policies27.

In their works, Finnemore, Sikkink and Keck are claim that transnational actors influence the

domestic perceptions and lead to policy changes not only because they are beneficial but also

because they are appropriate28. Besides them, Checkel develops sociological institutionalist

literature with his researches on the domestic agency in receiving and interpreting these

messages transmitted by external actors29. In this sense, it is crucial to scrutinize the

interaction process between external “messages” and the domestic arena that receives and

translates them. This is particularly necessary when there is a significant “misfit” between the

external norms and domestic normative structure. Similarly, Finnemore&Sikkink emphasize

the role of mediators in this process, called “norm entrepreneurs” or “meaning managers”30.

Those mediators should render the external “messages” more meaningful in the domestic

context in order to persuade the domestic actors to adopt them.

Finally, Stanford School of sociological institutionalism known by John Meyer, reminds the

impact of world rate of policy adoption in the state decision to adopt a new policy31. In this

sense, the more a policy is adopted at world stage, the more it is likely to be adopted by the

state in question (here, Turkey). Finally, following the rationalist and sociological

institutionalist literature, we propose to consider at least 5 variables that might explain the

state of the domestic resistance to the EU reforms in the FLO domain.

26 Tsebelis 2002.27 See Alderson 2001.28Finnemore 1993, Keck&Sikkink 1998, p.217-221.29 Checkel 2001. 30 Finnemore&Sikkink 1998.31 Meyer et al. 1997.

DISCUSSION: VARIABLES DERIVED FROM NEO-INSTITUTIONALISM

The rational choice institutionalism suggests that the main veto player would explain the

scope of domestic resistance to the EU policies. In this case, Constitutional Court is the main

veto player and it is officially ascribed the right to annul parliamentary reforms. Hence, this

institution and the ideology of the persons which are engaged in it are very important to

determine the scope and content of the resistance to the EU reforms.

We might also consider 4 other variables derived from sociological institutionalist literature,

namely the presence of significant internal and external pro-reform actors, the world rate of

policy adoption and finally the internal cohesion of the EU.

Preliminary Table on the specific variables in the selected case on Turkey-EU relations

Proposed Variables Land ownership

Main Veto Player Constitutional Court

Significant Internal pro-reform actors Liberal academics and politicians

Significant External pro-reform actors (other

than the EU)

IMF

World rate of policy adoption Low

Internal Cohesion of the EU at chosen policy

level

Contested

There are pro-liberal internal pro-reform actors trying to challenge the established system.

Those actors are mainly academics and politicians who claim that the meaning of “national

sovereignty” has shifted towards a post-Westphalian paradigm. In other words, a restrictive

attitude in land ownership is no more useful and adequate for a modern state. If Turkey is a

European country, it must then liberalize its land market (eg. Baskin Oran). However, their

argument might be weakened by the Constitutional Court’s statement highlighting that within

the EU there is no consensus on this policy area (although it is not a completely fair point).

Moreover, except the EU, there are no significant external pro-reform actors who might

persuade Turkey to change its established policies. The IMF might be stated as an exemplary

institution suggesting liberalization in FLO. However, its suggestions focused on merely

economic wellbeing and cost-benefit calculus neglects the sociological dimension of the

subject. Land is not merely a “real estate” for Turkish people. It is the “motherland” which

refer to Turkish national identity and survival. Finally, the world rate of policy adoption

regarding FLO is low since many states restrict FLO rights32. If it was higher, it would be

more likely for Turkey to be persuaded.

To conclude, those stated variables are certainly not the only variables that trigger Turkish

domestic resistance to the EU reforms. This work in progress aims at discovering new

variables deduced from rational choice and sociological institutionalism and compare their

explanatory power regarding Turkey-EU relations. The main argument is that rationalist

modelling of the selected case should be improved with new variables deduced from

sociological institutionalist literature that highlights the role of ideational factors.

REFERENCES

Alderson, K. 2001, “Making sense of state socialization”, Review of International Studies, vol. 27, no.3, pp.415-433.

Aspinwall, M. & Schneider, G. 2000, “Same Menu, Separate Tables: The Institutionalist Turn in Political Science and the Study of European Integration”, European Journal of Political Research, vol. 38, no.1, pp. 1–36.

32 See UN FAO Report 1999.

Baslar, K. 2005, “Avrupa Birliği’ne Katılım Sürecinde Türk Anayasası’nın Uyumlaştırılması Sorunu (The harmonization of Turkish Constitution in the accession process to the European Union)”, The Journal of Turkish Weekly, 28 January 2005 (online) available at: http://www.turkishweekly.net/turkce/makale.php?id=51# (Turkish).

Checkel, J. 1999, “Norms, Institutions, and National Identity in Contemporary Europe”, International Studies Quarterly, vol. 43, no. 1, pp. 84-114.

Checkel, J. 2001, “Why Comply? Social Learning and European Identity Change”, International Organization, vol.55, no. 3, pp. 553–588.

Checkel, J. 2005, “International Institutions and Socialization in Europe: Introduction and Framework”, International Organization, vol. 59, pp. 801–826.

Finnemore, M. 1993, “International Organizations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organization and Science Policy”, International Organization, Vol. 47, No. 4, pp. 565-597.

Finnemore, M.& Sikkink K. 1998, “International Norm Dynamics and Political Change”, International Organization, vol. 52, no. 4, pp. 887-917.

George, A.& Bennett A. 2005, Case studies and theory development in the social sciences

MIT Press, Cambridge, Mass. ; London.

Hall P. 1986, Governing the Economy: The Politics of State Intervention in Britain and

France, Polity Press, Cambridge.

Hall, P.&Taylor R. 1996, “Political Science and the Three New Institutionalisms”, Political Studies, vol. 44, pp. 936-957.

Kahler, M. 1998, “Rationality in international relations”, International Organization, vol. 52, no. 4, pp. 919-941.

Keck, M.&Sikkink, K. 1998, Activists Beyond Borders: Advovacy networks in International Politics, Cornell University Press, Ithaca.

March, J. G.& Olsen J. P.,1989, Rediscovering Institutions: The Organizational Basis of Politics, Free Press, New York.

March, J. G.&Olsen J.P. 1984, “The New Institutionalism: Organizational Factors in Political Life”, American Political Science Review, vol. 78, pp. 734-49.

Meyer, John W., Boli, John, Thomas, George&Ramirez, Francisco. 1997. “World Society and the Nation-State.” American Journal of Sociology, vol.103, no.1, pp. 144-181.

Sarigil, Z. 2007, “Endogenizing institutions”, PhD thesis (online) available at: http://etd.library.pitt.edu/ETD/available/etd-04252007-132125/unrestricted/Sarigil_Zeki_etd_2007.pdf

Tsebelis, G. 2002, Veto Players: How Political Institutions Work, Sage Foundation, New York.

Wiener, A.&Wobbe, T. 2001, “Norm Resonance in Global Governance - Contested Norms in the Process of EU Enlargement”, Manuscript, Belfast/Erfurt.

Newspaper articles

Chambers of Turkish Engineers and Architects - Chamber of Survey and Cadastre Engineers,

2006, “Turkey's territories in the claws of Neoliberalism”, Ankara. available online at

http://www.hkmo.org.tr/resimler/ekler/090409688550f3c_ek.pdf (in Turkish).

Dundar C., “We found the invasion map that scares Rahsan Ecevit: The majority of (land)

buyers are Greek!” in Turkish daily newspaper Milliyet, 10 July 2006, available online at

http://www.milliyet.com.tr/2006/07/10/yazar/dundar.html (in Turkish).

“Sezer (President) is concerned about foreigners’ land purchases”, Turkish daily newspaper

Radikal, 27 March 2007, available online at http://www.radikal.com.tr/haber.php?

haberno=216705 (in Turkish).

On Land Ownership issue

Hodgson, S., Cullinan, C. & Campbell, K. 1999. Land Ownership and Foreigners: A Comparative Analysis of Regulatory Approaches to the Acquisition and Use of Land by Foreigners. FAO Legal Paper Online No. 6.

EU Treaty provisions

EU regular reports on Turkey

Commission of the European Communities v Hellenic Republic, Case 305/87 The judgment available at http://europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=687J0305.

Hilson, C. 2008, “The Unpatriotism of the Economic Constitution? Rights to Free Movement and their Impact on National and European Identity”. European Law Journal, Vol. 14, No. 2, pp. 186–202.

Tesser, L. 2004. "East-Central Europe's New SecurityConcern: Foreign Land Ownership" Paper presented at the annual meeting of the The Midwest Political Science Association, Palmer House Hilton, Chicago, Illinois.

Wood, S. 2004, “A Common European Space? National Identity, Foreign Land Ownership and EU Enlargement: The Polish and Czech Cases”, Geopolitics, Vol. 9, No. 3, pp. 588-607

Weisman, J. 1980, “Restrictions on the Acquisition of Land by Aliens”, The American Journal of Comparative Law, Vol. 28, No. 1, pp. 39-66.

Official Statistics from the Turkish General Directorate of Land Registry and Cadastre available online at http://www.tkgm.gov.tr/yabancilar/default.aspx (in Turkish)

Official report by State Supervision Council of Turkish Presidency