Kaleidoscope
The Place of Human Rights Treaties
in the Polish Legal Order
Zdzislaw Kedzia *
I. The Status of Treaties in Polish Law
The status in domestic law of international treaties ratified by Poland under the 19S2
Constitution had its origins in Poland's policy toward international cooperation after
1945. The Polish Government shared with other socialist states a desire to keep a measure of distance from international law and its enforcement machinery,! and this was reflected in the silence of the Polish Constitution as to the binding force of international
law in the domestic legal order. The only provision of the 1952 Constitution which mentioned international law was Article 30(1X8) which vested competence to ratify and terminate treaties with the Council of State, which was at the time the collegial head of
state.
Thi* silence was not carried through to Polish legal theory which developed the concept of the ex proprio vigore binding force of international treaties within the domestic
legal order.2 According to it, the ratification of a treaty by the Council of State (which
acted inter alia as a substitute for Parliament^), and its subsequent publication in the official gazette, made treaty norms binding and enforceable within the domestic legal order.4
*
1
Director, Poznan Human Rights Center.
The attitude of ihe socialist nates towards international law has already been subject to a great
deal of commentary in legal literature and need not be repeated here. For example see T.
Schwcisfunh. Soiialislisckts VMktrrtchl? (1979).
S. Rozmaryn, 'Skutecznosc mnow miedznarodowych PRL w nosunkach wewnetrznych' ('The
Effort of the International Treaties of the Polish People's Republic in Internal Relations'), 12
Panstwo i Prawo (1967).
The Council of State was elected by the Parliament from among its members and performed
some of the tasks within the competency of Parliament between parliamentary sessions.
Cf. comments on this concept by K. Skubiszewski, Das VtrhSltnu zwischtn VBlktrrtehX und
politischtm Rtchl. Festschrift fir Rudatf Bindschtdltr (1980) 241 et seq.
2 EJIL (1991) 133
Zdzislaw Kedzia
While the theory was unequivocal and clear as to the applicability of treaties in Polish
national law, there were different views as to the place of these treaties in the hierarchy of
legal norms. Some specialists wanted to see them on the same level as parliamentary
statutes, while others viewed them in the same light as secondary legislation. In any
case, an argument could be made out that all human rights treaties are binding ex proprio
vigore even if they have not been expressly transformed into Polish law by domestic legislation.
However, fundamentally, the concept of ex proprio vigore did not have any impact on
the attitude of Polish courts. For a very long time judges refused to apply it Endeavours
by academic lawyers to encourage the courts in this direction met almost no response.'
The judges' reluctance to be influenced by the theory can be explained, at least until
1980, by the fact that the 19S2 Constitution forbade them from applying norms of public law in general, including norms of public international law.
However, in 1980 the state administration became subject to judicial control with the
establishment of the Higher Administrative Court. In 1986 the Constitutional Court issued its first decision, and the Commissioner for Citizens' Rights (ombudsman) was
established to monitor the administration and commenced hearing complaints.
Under these circumstances a peculiar situation emerged. From the point of view of legal doctrine, from 1980 there was no longer any obstacle to apply international treaties
binding ex proprio vigore in court proceedings, but the courts with one or two exceptions failed to take up a position on the issue. In June 1982 reference was made to an international treaty when the District Court in Olsztyn declared a man to be innocent who
had acted contrary to martial law. The court in its verdict mentioned Article IS of the
International Covenant on Civil and Political Rights but did not make a definitive ruling
concerning its influence in Polish law. The court based its decision on domestic legal
principles. FLO Convention No. 87 was cited in 1981 in separate decisions concerning
the registration of trade unions. However, this exception is of less relevance because the
court was not acting as an administrative body.
The most important case in which the issue was addressed arose in 1987 in the
Supreme Court.6 The court heard a case which marked the final step in a series of litigation commenced by units of the trade union 'Solidarity' which had been banned after the
imposition of martial law. The applicants were seeking the registration of 'Solidarity'
with the district courts. The courts refused to do so, and referred to one provision of the
Trade Union Law of 1982 which prohibited the establishment of more than one trade
union within one workplace. The trade union claimed that this provision was contrary to
the Constitution, but more importantly they argued that it breached ILO Convention 87
and Article 22 of the International Covenant on Civil and Political Rights. The Supreme
Court adopted an extreme variant of the dualist approach to international law, and held
that because the relevant instruments had not been transformed into Polish law, the relevant treaties, although duly ratified, bound Poland only externally and could not be the
See, eg., K. Skubitzewiki, 'Pnwa jednostki, nmowy miedzynirodowe i porzadek pnwny
PRL' ('Individual Rights, International Trutiet and the Legal Order of the Polish Peoples
Republic'), 7 Poust wo i Prawo (1981) 9 et teq.
Decision of the Supreme Court of 25 August 1987, case I PRZ 8787, published in Onteuticiwo
Sadu Najwyzsztgo (Decisions of the Supreme Court) 12/1987.
134
The Place of Human Right* Treaties in the Polish Legal Order
basis for a court decision.7 This verdict was strongly criticized in legal literature,8 but
nevertheless, it ended the argument that treaties have binding force ex proprio vigore.
The court failed to even mention the concept.
II. The Constitutional Amendment of April 1990
The amendment to the Constitution of 7 April 1990, by virtue of which the President of
the State is competent to ratify and terminate international treaties, reopened the debate
on the status of international treaties in domestic law. Under the new law, if a given
treaty imposed significant financial obligations on the state, or required changes in the
existing legislation, the President was obliged to require the consent of the Sejm9 (the
central chamber of the Polish Parliament).1''
A similar provision had existed in the 1921 Constitution.11 On this basis a practice
developed whereby the Parliament would give its consent to ratifications in the form of
parliamentary statutes. This led the courts to revise their views on the effect of treaties in
domestic law. Initially the Supreme Court had adhered to a fairly strict view which played
down the relevance of international law. As late as 1923 it held that:
The rules of international law constitute neither a direct source of rights or impose duties on Polish citizens against their own state, nor may they become a source of this
kind. They may and should however be an auxiliary material for the interpretation of
'
8
9
1"
11
The court based its opinion on An. 63 of the Constitution according to which 'Judges ire independent aid subordinated only to parliamentary statutes'. This provision bad been treated
previously as only a guarantee of ibe independence of the administration of justice. This was
the first time the Supreme Court used the provision to settle the status of international treaties
in domestic law. Cf. L Kanski, 'Konstytucyjna regulacja statusu jednostki a miedzynarodowa
ochrona praw czlowieka' (The Constitutional Regulation of the Individual's Status and the
International Protection of Human Rights'), in Z. Kedzia (ed.). Prawa, woinosci i obowiaxld
aiowitka i obywattla w nowtj polskuj kontytucji (Rights, Frttdoms and Dutits of Man and
CUixtn in tht Ntw Polish Constitution) (1990) 86.
See T. Ziennslri's comments on the Supreme Court decision of 25 August 1987, 6 Paltslra
(1988) 88; and K. Skubiiawiki, 6 Panstwo i Prawo (1988).
Art 32(g) of the Constitution. It provides as follows:
1. The President shall ratify and revoke international agreements.
X The ratification of international agreements which result in a substantive financial burdening of the State, or necessitate changes in legislation shall require the previous approval by
the Stjm.
According to this amendment of the Constitmiun, the Senate is regarded as a chamber of reflection and control. The real position of the Senate as well u the actual relationship between
both chambers will depend to some degree on political practice, since the Constitution is
rather vague on this issue. The Senate has the right of legislative initiative and can propose,
within thirty days, amendments to statutes adopted by the Stjm, which can be rejected by the
latter but only by a qualified quorum and majority.
Art. 49 of the 1921 Constitution provided that:
1. The President of the Republic conclude* treaties with other states and informs the Stjm on
it.
2. The treaties on commerce and customs, which burden the state as regards finances permanently, or contain legal provisions binding citizens, or introduce changes of the state borders, as well as alliances - require the consent of the Stjm.
135
Zdzislaw Kedzia
the legislation of the Republic of Poland; but they cannot replace or derogate from
this legislation. 12
Subsequently however, the courts withdrew from this position and, albeit with some
reservation,'3 accepted the direct domestic applicability of international treaties. In this
way treaties became sources of domestic law, with the rank of a statute. Moreover, setting
aside some exceptions,' 4 all derogation rules usually applicable to statutes were employed to determine the position of treaties within the hierarchy of legal sources. This
practice was explicitly approved of in the Constitution of 1935. 13
At the time of the constitutional amendments of 1989, it was not certain whether the
courts would accept the judicial reasoning which developed in the 1920s. The first request
for parliamentary approval of an international treaty was submitted to the Sejm in the
spring of 1990 and dealt with the Convention on the Rights of the Child.
The Government submitted to the Sejm a draft statute to express its consent.
Simultaneously, the Government asked the Parliament to approve proposed reservations
not by statute but by passing an ordinary resolution. What were the reasons for employing two different modes of approval for the text of the treaty and the Government'! reservations? The Foreign Minister who introduced the Government's proposals to the Sejm
referred to the prevailing practice under the 1921 constitution.16 The Minister favoured
ratification approval in the form of a statute because the courts would then interpret
treaties as forming part of domestic law. However, he added that the ratifying statute need
make no reference to the Government's proposed reservations because the new
Constitution made no reference to this requirement, and all that was necessary was that
Parliament be informed of the draft reservations, so that it had the opportunity to object
to them if necessary.
The Convention on the Rights of the Child also gave rise to difficulties of coordination between the Sejm and the Senate. The Sejm followed the suggestion put forward by
the Ministry of Foreign Affairs and adopted both a statute expressing its consent to ratification and an ordinary resolution (i.e. an act of less than statutory rank) on the proposed reservations. The Senate, however, made amendments to the statute which included
placing all the reservations in the text of the statute itself.
Which of the two practices should be followed? It is generally accepted in international law that the ratifying body, (i.e. the executive) is the appropriate authority to formulate reservations to a treaty. To this extent the decision taken by the Sejm was correct
because Parliament was not the proper forum to compose reservations. But considering
the internal effects of the ratification, the situation looks slightly different. One must
bear in mind the hierarchy of sources of domestic law. The content of a statute cannot be
changed by a provision subordinate to it. It could be argued that by exiling the approval
of treaty reservations to a separate enactment in the form of a mere resolution, the Sejm
12
13
14
^
16
136
Zbidr ontcztH Zgromadunia Ogdltugo Sadu Najwuugo (Decisions of the General Assembly
of the Supreme Court), 1922-1925. No. 14.
See J. Bares, Dit BnitkiutftH twitchtn VOUurrtchX w%d LaruUsrtchl in dtr Volkirtpublik
PoUn - Probltme <U Ugt ialawiddt Ugtftrtnda (1988) 6 « *eq.
Eg., the decision by the Supreme Court of 28 October 1927, according to which the inconsistency of a statutory norm with a ratified treaty imposes only the obligation on the state to
amend this norm. Ontcmictwo Saddw Polskich (Decisions of the Polish Courts), Vol. 10,
No.22.
Compare Art. 52 of the Constinmon.
Minutes of the Stjm, Xth term, 30th Meeting of 24 July 1990.
The Place of Human Rights Treaties in the Polish Legal Order
thereby breached the hierarchy of norms since it attempted to amend the implementing
statute with an inferior legislative enactment.
The advocates of the procedure supported by the Government could, however, be right
in saying that the statute expressing the Sejm'% consent for ratification does not forejudge the internal binding force of the treaty concerned. It is for the judge applying the
treaty to decide on the issue. The Parliament is only opening the way for the law to develop. Consequently, there is no contradiction between the statutory form given to
Parliament's consent to the ratification of a treaty and the choice of a simple resolution
to express its opinion concerning planned reservations.
However, the second amendment submitted by the Senate did attempt to decide
whether the statute effectively transformed the treaty into domestic law. The chamber included in its proposals the following provision: The ratification makes the treaty [under
consideration] a source of the domestic legal order.' Doubt arose as to whether the Senate
is competent to modify the hierarchy of legal sources in this way, because it is the predominant view that such an alteration is only possible by constitutional amendments. It
ought to be noted in this respect that the Constitution does not contain a complete list of
sources, nor does it describe their hierarchy. At the same time, one must admit that it
would be somewhat strange to see Parliament regulate this matter by a statute.
The problem of the form in which consent for ratification is to be given or refused
also addresses the relationship between the two chambers of the Parliament. The
Constitution provides that it is necessary for the Government to obtain approval for ratification from the Sejm only. If it takes its decision in the form of a resolution, the Senate
is excluded from the process of ratification of treaties, since there is no obligation for the
Sejm to deliver its resolutions to the Senate for approval. Even if the Sejm were to decide
to seek the approval of the Senate before passing a resolution, objections raised by the
Senate regarding the merit of such a resolution would not have any binding force.
Conversely, if the Sejm gives its consent in form of a statute, this act is - according to
the legislative procedure'7 - to be submitted to the Senate which is empowered by the
Constitution either to approve the statute as adopted by the Sejm, or within thirty days
submit its own amendments to the statute. Such amendments may be either accepted by
the Sejm with an ordinary majority or rejected by a majority of 2/3rds of the members of
this chamber. Therefore the Sejm, by following the Government's proposal has agreed to
involve the Senate in the ratification procedure. This solution seems logical since it is
the best way to guarantee their implementation in the domestic legal order, given the silence of the Constitution.
After a long discussion in parliamentary committees on the Senate's amendments to
the Convention on the Rights of the Child, the Sejm decided to reject them. 1" But the
Sejm, unlike the Senate, made no attempt to stipulate the effect the treaty would have in
domestic law and thus opened the way for the courts to interpret the legal meaning of the
statute passed by the Sejm.
III. The Future Constitution
The proposed system of transformation of international treaties fails however to explain
what should happen to the treaties which were ratified under the old constitution and its
accompanying principles. This lacuna is all the more acute because all fundamental hu17
18
Art. 27 of Use Constitution.
Minutes of the Stjm, X term, SO Meeting of 24 and 25 Januaiy 1991, at 10-16.
137
Zdzislaw Kedzia
man righti treaties which have been ratified by Poland fall into this category. A general
regulation is needed to close this gap in the law. A new Constitution is under preparation
and is expected to be adopted in 1992. The majority of commentators are of the view that
this issue should be regulated in the transitory provisions of the future Constitution by
granting to these treaties the same legal position as the treaties ratified under the new
Constitution.
With regard to the position of international norms in the domestic legal order, while
there is no general support foi a moniit approach, only marginal voices oppose their direct applicability. However, there are deep differences as to the mode by which this result
should be achieved. This is true both as regards the various sources of international law,
and the rank they should have in the hierarchy of norms.
The first controversy regards the direct applicability of norms of customary international law. The most recent drift 1 ' of the proposed new Constitution prepared by the
Legislative Council and the Prime Minister, does not refer to this question at all and
merely proclaims that: The Republic of Poland complies with the international treaties
binding on her and with the universally accepted principles of international law'.20 This
proposal has been submitted to the Constitutional Committee21 which is of the view that
customary international law should be directly applicable within the domestic legal order
and prevail over parliamentary statutes.22
However, setting aside arguments pertaining to substantive law, one practical factor
needs to be considered; that is, are the Polish courts in a position to competently interpret and apply such a difficult body of law as customary international law? This hesitation seems to be understandable. As I have already noted, for over 35 years Poland had no
judicial control in the field of public law, be it domestic or international. Thus, the absence of knowledge and experience on the part of judge* and others organs of the administration of justice is a valid concern.
On the other hand however, is it a viable solution to leave open the question of the
internal applicability of norms of customary international law while laying down a general constitutional provision concerning the place of international treaty norms in the
domestic legal order? How could it be said that the judges are empowered to apply all international norms binding Poland if the Constitution is silent on the matter? Does it
make sense to regulate only the effect of treaties in the domestic legal order? Moreover, it
seems that the present structure of the administration of justice and existing procedures
can help to overcome difficulties which can emerge in the course of application of customary international law by Polish courts. The Statute on the Constitutional Court pro-
19
20
21
22
138
It U to be pointed oat thmt this draft is the product of profound studies which were carried out in
recent yean by a large number of Polish specialist* in international law. Numerous proposals
have preceded this last version.
Quoted from Project rtgutaeji krajowyn portadku prawnym orax tagadnUn pokrtwnych (wtnja
trzecia) (The draft coniuumonal regulation regarding the place of international norms within
the domestic legal order as well as the similar issues (third version)).
K. Skubiizewiki, 'Referat na temat tagadnien prawa miedzynarodowego w przyszlej
Konstytneji RP' ('Report on the Questions of International Law in the Future Constitution of
the Republic of Poland'), Komisja Konstytucjjna. Biuro Prasowe Stjmu, Biulety* IV
(Constitutional Commission. Press Office oftkt Stjm, Bulletin IV) (1990) 3 et seq. see also
K. Skubiszewski, 'Konstytucyjne ujecie stosunku prawa polskiego do prawa miedzynarodowego' ('The Conititmional Formulation of the Attitude of the Polish Law to International
Law1), 10 Panstwo i Prawo (1987) 141.
There have been instances in which the Supreme Court and other courts have regarded norms of
customary international law as applicable without any transformation.
The Place of Human Right* Treaties in the Polish Legal Order
vide* 23 that a judge who is not certain about the content of law, or about the consistency
of a norm which is to be applied with a norm of a higher rank, must suspend the proceedings and submit a legal question to the Constitutional Court. The jurisprudence of the latter could be of decisive help in the solution of the question discussed here, provided that
the Constitutional Court is empowered to deal with the question of the status of internal
norms in domestic law.
The new Constitution will also change the procedure for Polish participation in new
treaties. All authors of the draft Constitution share the opinion that the President of the
State should be vested with the competence to ratify and terminate international treaties.
The Constitutional Court is also expected to play an important role in their ratification
and implementation. It appears that it will be competent to examine the conformity of
international treaties with the Constitution, and the conformity of statutes with treaties.
The President will be able to draw upon the opinion of the Constitutional Court before
ratification.
It is submitted that treaties of particular importance should require the consent of the
Sejm prior to their ratification. Among others, the following treaties would belong to
. this category:24 peace treaties, treaties on state frontier*, treaties on political and military alliances, treaties on the membership of Poland in international organizations,
treaties imposing permanent financial obligations on the state, and treaties dealing with
matters for which statutory regulation is required. The latter group of treaties embraces all
human rights treaties.
After ratification (with the consent of the Parliament) international treaties should
become directly applicable within the domestic legal order if they are self-executing.2*
The advocates of this view vary, however, in their view as regards the place that international treaties should occupy in the hierarchy of the legal sources. 26 According to one
opinion - which seems to be represented mainly by international lawyers - they should
be put between the Constitution and parliamentary statutes. Others - mainly constitutional lawyers - think that they should be placed on the same level as statutes.27 If the
latter position were adopted, all derogation rules would be applicable to treaties - in particular lex posterior derogat priori, lex specialis derogat generali. It is difficult to forecast the outcome of this dispute. One can say, however, that if Parliament opts for the
first variant it will break the understanding hitherto dominant in Poland on the place of
international treaties in the domestic legal order.
Poland's future membership in international organizations such u the Council of
Europe and the European Communities made the drafters aware of the necessity to include
an 'integration clause' into the proposed texts of the new Constitution. A recent draft28
contains the following provisions in this regard:
23
2<
*
"
26
27
2*
Art. 10(2), Statute of 29 April 1985, 22 Journal of Liw (1985).
See the draft mentioned supra note 17.
The question of the self-executing character of international norms is not within the scope of
this paper. It is only to be mentioned here thai the prevailing pan of international norms
dealing with so-called classical freedoms is perceived u self-executing by Polish professional
literature.
This controversy has a long history, compare J. Jodlowtki, 'Les traites intematioruux dans la
jurisprudence de la Cour Supreme de la Republique populaire de Pologne', in J. Makarczyk
(ed.). Eludes dt droit inttmalional en 1'havuur dujugt Manfrtd Lacks (1984) 135 et seq.
Compare L. Kanski, xipra note 7, at 81 etseq.
Supra note 17.
139
Zdzislaw Kedbria
(i) By virtue of the provisions of «n international treaty, the competency of the legislature, the executive, and the administration of justice may be transmitted to an international organization; it cannot, however, lead to the violation of the democratic
principles of the Constitution or of human and citizens' rights;
(ii) The statute by which the Sejm gives its consent for ratification of such a treaty requires the same majority as constitutional amendments;
(iii) If the treaty establishing the international organization so requires, the norms
adopted by the organization are directly applicable within the domestic legal order.
IV. The Current Human Rights Position
Aside from HJO Conventions, Poland has ratified 14 of 22 universal treaties related to
human rights. Among them are the two UN covenants. Poland has, however, refused to
ratify the right to individual petitions and state-to-state complaints. Poland's failure to
do so is related to the mistrust and reluctance which characterized the attitude of all communist countries to international control over human rights.
The political upheaval of 1989-90 in Poland removed any ideological obstacles preventing the ratification of these procedures and cooperation in die adoption of new ones.
A declaration concerning Article 41 of the International Covenant on Civil and Political
Rights was made in September 1990 and state officials have announced on several occasions that Poland will ratify the Optional Protocol to the International Covenant on
Civil and Political Rights. One can also expect in the near future the ratification of a
number of international treaties such as the UN Convention relating to the Status of
Refugees, the UN Convention relating to the Status of Stateless Persons, as well as some
ILO Conventions dealing with social matters.
The participation of Poland in the European system of human rights protection constitutes a separate problem. According to the decision taken by the Parliamentary
Assembly in the last days of September 1990, Poland is expected to become a member of
the Council of Europe immediately after the democratic general elections which are taking place in the autumn of 1991. The representatives of the Polish Government and
Parliament have declared many times the intention of Poland to ratify the European
Convention of Human Rights, which would involve consenting to its implementation
procedures. Taking into account the prediction canvassed here that international law will
become directly applicable within the Polish legal order, one can expect that Poland will
soon fall'into line with the opinion of the European Court of Human Rights as regards the
optimal means of ensuring the enforcement of the Convention:
[The] intention [to secure rights and freedoms set out in Section I of the ECHR] finds a
particularly faithful reflection in those instances where the Convention has been incorporated into domestic law.29
29
140
Inlmdv. Grtai Britain, A/25, 90-91.