Istanbul Convention in Poland - From Ratification to Unconstitutionality?

Julia Kapelańska-Pręgowska

Nicolaus Copernicus University

Poland ratified the Istanbul Convention (IC) on 27 April 2015, and submitted its first report to the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) on 26 March 2020. However, just 5 years after ratification, Polish authorities have begun taking steps to avoid the obligations stemming from the IC. Since it is not commonplace to declare plans to withdraw from human rights treaties or to take other steps to limit human rights obligations, it is worth analyzing the possible consequences of, and the underlying reasons for, the authorities taking such steps. 

Human rights obligations avoidance strategies 

When a State decides to become a Party to an international treaty, it does so of its own will. In the case of Poland, becoming party to the IC (similarly to other human rights treaties) required prior consent granted by a statute of the Parliament. Further, to the extent that domestic law was incompatible with the treaty’s provisions, it should have been amended before ratification/accession. The only way to reconcile incompatible domestic legal norms with a treaty is to enter reservations or interpretative declarations. Poland submitted four reservations to the IC, and two interpretative declarations. One of the latter raised serious concerns and objections from several countries (Sweden, the Netherlands, Norway, Finland and Austria). Poland declared that it will apply the IC “in accordance with the principles and the provisions of the Constitution of the Republic of Poland”. Such a declaration (which is in fact a reservation) is of a very general and indeterminate scope, and – as a consequence – does not clearly define the extent to which Poland accepted the obligations of the IC. Therefore, it should be regarded as incompatible with the object and purpose of the IC. To understand the rationale behind it, we should take into account that the ratification of the IC had been preceded by heated debates, and the interpretative declaration served as a compromise between its advocates and opponents.  

In recent months, negative political attitudes towards the IC have been voiced with new force. It should be noted that the Vienna Convention on the Law of the Treaties (VCLT) foresees several ways in which a State may be released from its obligations under a treaty, such as the State withdrawing from the treaty or invoking invalidity of the treaty. The latter possibility prima facie does not apply to the circumstances of Poland’s consent to be bound by the IC. State practice observed so far  with regard to human rights obligations avoidance strategies has relied on entering a late reservation to a human rights treaty, or denouncing the treaty with the sole purpose of entering a new reservation to it. After the initial declaration by the Polish authorities of a planned denunciation of the IC, the Government however decided to try a different strategy.  

In December 2020, the Government proposed a draft law which would change the binding scope of the IC. Shortly before that, in July 2020, the Polish Prime Minister brought a petition to the Constitutional Court to review the compatibility of the IC with the Constitution, and the accuracy of the Polish translation of the IC. This new strategy thus relies on constitutional review of international treaties and requires a discussion of the legitimacy of ex post review, as well as its legal consequences. Even if the IC (or some of its provisions) were found to be unconstitutional, that finding would not release Poland from its international obligations. The IC would have to be denounced anyway, otherwise there would be a dissonance between the domestic/internal effect of the treaty (vide Article 190.1 of Polish Constitution) and the State’s international obligations. It would be contrary to the pacta sunt servanda principle (Article 26 VCLT), as well as to the rule that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty (Article 27 VCLT). Even though the practice of “treaty override” (when a legislator adopts a law which violates a prior international treaty) is not that uncommon, the constitutionality of such practice with regard to human rights obligations is highly questionable, contrary to, inter alia, treaties on double taxation. This view is supported by the Human Rights Committee in its General Comment No. 26, according to which human rights treaties are of an exceptional nature, and therefore deserve special consideration as they do not have a temporary character. 

A question of the legitimacy of the underlying arguments 

If ex post constitutional review is to be valid at all in the case of international treaties where prior consent was required to be granted by statute pre-ratification, what justified and legitimate reasons may be invoked to support it?  

The rather uncommon practice observed so far confirms that withdrawal from human rights treaties has always been connected to the rejection and critique of international monitoring/judicial control mechanisms, particularly in cases involving structural and systematic violations and calling for general reforms. In the present case, the underlying arguments put forward against the IC, are different. 

The petition by the Polish Government for constitutionality review is generally critical towards the IC and its foundations. The petition calls for rejection of the IC’s “ideological background”, the “ideological content”, and of the “promoted specific world view”. Apart from this general polemic, the petition indicates that the constitutionality of some specific provisions is being challenged. It focuses on Articles 6 (Gender-sensitive policies) and 14 (Education) of the IC. However, the petition does not specify and explain why these provisions are deemed unconstitutional. The argumentation is largely based on negative attitudes towards the invoked provisions, as well as on the anticipated dangers resulting from their implementation. According to the petitioner, implementation of the IC may lead to “undermining the European legal tradition that - from the beginning - is aware of the distinction between men and women”. The petitioner is also critical of the monitoring mechanism of the IC and questions whether the treaty has any normative “added value”. Moreover, one of the key underlying concepts of the IC - that gender is a socio-cultural phenomenon, rather than a purely biological one - is characterized by the petitioner as “incompatible with the Constitution’s axiology”. According to the petitioner, in consequence of the IC’s application, “society may lose the ability to distinguish women from men”. Provisions of the IC are also deemed by the petitioner to “create norms that are traps” for the citizens. The petition has been supported by the Minister of Justice and Prosecutor General and the Minister of Foreign Affairs. 

Conclusion 

The case of the Istanbul Convention in Poland illustrates how a change in the forces holding political power, and largely non-legal and populist reasons, may influence a State’s willingness to adhere to its international human rights obligations. Populistic bias and misinterpretations of the idea of gender are being used to consolidate conservative electorate and achieve political goals.  

Different steps undertaken to undermine the impact of the IC may also serve as a case study for further general reflections regarding the continuity of human rights obligations, as well as strategies being employed by governments to limit their effect and implementation. With reference to the strategy adopted by Polish authorities, I argue in this blog post that from the perspective of the principle of respecting international obligations, any review of the constitutionality of international human rights treaties should be completed prior to their ratification (ex ante). As argued above, ex post review cannot change State’s international obligations, and formal withdrawal would have to proceed for the reasons explained earlier in this post. The petition brought before the Constitutional Court is yet another example of a recently observed practice of abusive initiation of constitutional court procedures in Poland. 

(This blog post is an edited version of the author’s presentation at the Global Summit, hosted by the International Forum on the Future of Constitutionalism, on 14 January 2020.) 

Julia Kapelańska-Pręgowska is an Assistant Professor in the  Human Rights Department at the Faculty of Law and Administration, Nicolaus Copernicus University 

Suggested Citation: Julia Kapelańska-Pręgowska, ‘Istanbul Convention in Poland: From Ratification to Unconstitutionality’ IACL-AIDC Blog (11 February 2021) https://blog-iacl-aidc.org/gender/2021/2/11/istanbul-convention-in-poland-from-ratification-to-unconstitutionality.