The Place of Human Rights Treaties - in the Polish Legal Order

Zdzislaw Kedzia ¹

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I. The Status of Treaties in Polish Law

The status in domestic law of international treaties ratified by Poland under the 1952 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,² 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(1)(8) which vested competence to ratify and terminate treaties with the Council of State, which was at the time the collegial head of state.

This 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.³ According to it, the ratification of a treaty by the Council of State (which acted inter alia as a substitute for Parliament⁴), and its subsequent publication in the official gazette, made treaty norms binding and enforceable within the domestic legal order.⁵ 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.⁶ The judges' reluctance to be influenced by the theory can be explained, at least until 1980, by the fact that the 1952 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 15 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. ILO 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.⁷ 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

basis for a court decision.⁸ This verdict was strongly criticized in legal literature,⁹ but nevertheless, it ended the argument that treaties have binding force ex proprio vigore. The court failed to even mention the concept.

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1 Director, Poznan Human Rights Center.

2 The attitude of the socialist states 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. Schweisfurth, Sozialistisches Völkerrecht? (1979).

3 S. Rozmaryn, `Skutecznosc umów miedznarodowych PRL w stosunkach wewnetrznych' (`The Effort of the International Treaties of the Polish People's Republic in Internal Relations'), 12 Panstwo i Prawo (1962).

4 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.

5 Cf. comments on this concept by K. Skubiszewski, Das Verhältnis zwischen Völkerrecht und polnischem Recht, Festschrift für Rudolf Bindschedler (1980) 241 et seq.

6 See, e.g., K. Skubiszewski, `Prawa jednostki, umowy miedzynarodowe i porzadek prawny PRL' (`Individual Rights, International Treaties and the Legal Order of the Polish Peoples Republic'), 7 Panstwo i Prawo (1981) 9 et seq.

7 Decision of the Supreme Court of 25 August 1987, case I PRZ 8/87, published in Orzecznictwo Sadu Najwyzszego (Decisions of the Supreme Court) 12/1987.

8 The court based its opinion on Art. 63 of the Constitution according to which `Judges are independent and subordinated only to parliamentary statutes'. This provision had been treated previously as only a guarantee of the 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, wolnosci i obowiazki czlowieka i obywatela w nowej polskiej kontytucji (Rights, Freedoms and Duties of Man and Citizen in the New Polish Constitution) (1990) 86.

9 See T. Zielinski's comments on the Supreme Court decision of 25 August 1987, 6 Palestra (1988) 88; and K. Skubiszewski, 6 Panstwo i Prawo (1988).

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