17 January 2025
The event took place on January 2025, the 17th. It was the lecture titled “Introduction to the topic of conflicts between international and national law” for about 100 people – students at the Cardinal Stefan Wyszynski University.
Before the beginning of the event the listeners were informed that the lecture is conducted in framework of the scientific project “Reversed rule of law in Poland” of the Professors’ Network/Central European Academy Budapest – Miskolc. Lecturer were informed also about the recording of the lecture. People who didn’t agree to participate in the recording were asked to leave the meeting.
I started the lecture with short introduction to the relations of international law and national law. I told, that about relations between international law and national law we can read many big books. But from the perspective of International Law, the character these relations may be described very short. Only using one sentence – international law claims its primacy as regards the fulfilment of obligations arising therefrom. International law does not care about the details. Important to IL is the achieving of the result, and it doesn’t matter what sort of international obligation is concerned. To have the result, all of problems should be resolved by the state. State should select the appropriate measures. From international law perspective, state must fulfil an obligation, even by amending its legislation. On every level where it is needed.
The situation is different from the perspective of national law. There is not just one principle, but there exist many correlations, conditions depending on a specific case. First of all, the most important is the substantive context of an obligation. It is about nature of the obligation. There is difference – when the problem concerns the fulfilment of a normative or when non-normative obligation (act of application of IL). Additionally, the first case is related to the problem of differentiation between the sources of international law. Every source of international law needs to be fulfilled in different technical way.
Finally, this is also connected with: the shape of the constitutional system of state and the degree or level of favourable predisposition of this system towards international law.
More and more of those premisses could be enumerated. What is however important is the conclusion – there is no balance or coherence between the perspective of international law and that of national law. It means, more international obligations need to be fulfilled in the framework of national legal system. More cohesion means more potential conflicts. More risk of conflicts.
Then I continued the lecture by introducing the topic of relations between international and national law from the perspective of the binding force and application of law.
The binding force and application of law are two institutions associated with law. It is obvious. But the image of legal system from the perspective of each of them is completely different. The binding force of law (provision, norm, act of law) means its existence in the binding legal system. Such a provision (norm or act) is part of that system. Binding law indicates in an abstract manner the rights (freedoms, entitlements, claims or competences) and obligations (imperatives, prohibitions) of specified subjects. What is more, the binding force of law, in principle, results simultaneously in the possibility (rights) or in the imperative (obligations) of its application.
In turn, the application of law takes place when a state authority exercises a power which is granted to it by a general and an abstract legal norm. It means – application of law is a conventional activity, which character is authoritative and formalised. Application of law involves the issuance of an individual and a specific act of application, in which state authorities determine the legal effects of certain facts – the conduct of subjects, that are subjects to law in force. State authorities do so on the basis of law.
The application of law may refer to binding law as well as to non-binding one. The decision to apply a non-binding norm is solely own decision of an authority applying law. However, in order to be able to apply non-binding law, state’s authorities must have the consent arising from another binding provision.
In this situation, we deal with a secondary application of law (application of non-binding law as a result of binding law). As a rule, such application of non-binding law refers to exceptional situations (e.g. transition periods).
I then explained why we discuss about binding law and application of law? It is topic from theory of law not of international law. We discuss because the issue of the binding force and application of law constitutes also one of many contexts of relations between international law and national law. Important underestimated contest.
In principle, it is a consequence of the approach to general relations between those systems, although it has its unique nature.
Traditionally, in the science of law there have existed two theoretical conceptions referring to relations between international law and national law: the dualist one and the monist one. Both are reflected in states legal solutions, especially on the constitutional level.
A collision between international law and national law is a situation where the current legal provisions in the state, it means a national binding norm (act) of law (statute) or an act of the application of law issued on the basis of national law. The collision is the situation where national norm does not conform to a norm (act) of international law or possibly when in national law there is no normative act or no act of the application of law, which executed international obligations, whereby the state infringes on its international commitments (obligations).
Depending on legal regulations determining the position of the relation between both systems, – it means – whether the relation is based on the dualist or monist theory, a conflict may manifest itself at the level of the binding force or at level of the application of law.
The first is known today as the feud about the hierarchy (supremacy), the second – as the feud about the so-called primacy (primate).
A collision between international law and national law is quite common although – contrary to appearances – oftentimes it might not manifest itself. This follows from the fact that the number of material areas of national relations, that are regulated by international law, increases. This has an effect – the possibility of contradictory legal solutions, which can come to light in the practice of state’s authorities.
Conflicts are to be prevented by legal rules related to implementing international law into national law, or – in other words – rules which ensures effectiveness of international law in the national order. Those rules – in principle reflected in the provisions of constitutional rank – are based on two methods: the receptive one and the non-receptive one.
The first method consists in introducing a norm of international law into internal law by means of a national provision serving as a reception instrument. It is a transforming an international norm into a national norm. In practice, this is about creating new national norm which copies (recreates) the content of an international norm.
The secund method is based on the direct application of a norm of international law by state authorities while performing duties.
There are two types of such application: hard applicability (the so-called direct national application of international law) or soft applicability (interpretation of national law within the framework of international norms). It is the equipment of national law – without formal change – in specific content, which conforms to the content of norm of international law.
As regards international law, the rule is one – the principle of primacy of international law. The purpose of this rule is to ensure the effectiveness of international law in the national legal order. And effectiveness is the key word, key content of that principle.
In accordance with its essence, the assumption of an international obligation, if this is necessary for its fulfilment, should enforce changes in national law. Consequently, the state may not invoke a national norm to refuse to fulfil an international obligation.
But this principle is not to be understood literally. It only has a formal effect in the area of international law. Unlike the rule of primacy of EU law, this rule does not automatically eliminate effects of national legal provision or norm and doesn’t replace it in national legal system – doesn’t suspend it or invalidate it. International act, provision or norm, to become effective in national law, requires the appropriate action undertaken by the proper state authorities, on the basis of national law and in accordance with its procedures. And in constitution.
What happens when there are no national rules to execute obligation? Until then – regardless of the current legal situation in international law – all acts of national law (normative acts and acts of application of law) are valid and have the attribute of national legality.
In other words, regulations of both systems will remain divergent. In national law, national regulations will be binding, the applicability of which may not be refused by national courts or authorities.
And here the question arises. How does manifest the primacy of international law, if – despite the primacy – a conflict appears, because national norm, that is not conform to international law, is not repealed? Answer is obvious – It must be manifested in a different manner. And it manifests – through the institution of the state’s responsibility in international law.
As far as the case is concerned rules regulating the solution of collisions between international law and national law in national law, I explained that national law is, in principle, the only order binding within the state’s territory. In the increasingly complicated international reality, there appear:
- constructs determining the position of international law in the national order, as well as
- rules related to the application of norms of international law.
This usually takes place in the constitution and is based on the broadly understood primacy of international law over national law.
Primacy may refer to
- the entire national law (general regulation)
- or its systemic part – a category (e.g. statutes) or some branch of law.
A classic example of such a provision is the so-called supremacy clause from the Constitution of the USA. It is classic because it is the oldest one of this kind. Long time it was the only one solution of such type in the whole world. On a larger scale, regulations of this kind appeared in the constitutions of European states after the Second World War.
Substance of this clause is only that the state is bound by international law, rarely that international law has the primacy of the binding force, and possibly that international law solely has the priority of application. It doesn’t shows us the position of international law in the hierarchy of law. It sometimes indicates in another provisions indirectly f. ex. by showing the position of IL in the process of legal control. An example of such a solution is for instance the Constitution of the Republic of Poland of 1997 (Article 188).
Today, in principle, constitutions do not establish the general supremacy of national law because this is inconsistent with the principle of the primacy of international law. In the past it was different, but even states favouring such an approach rather did not adopt in national law (constitution) regulations regarding the position of international law. In that regard they counted on the favourable practice of authorities, based on the general conflict-of-law rules, especially that of lex posteriori derogat legi priori. But constitution can contain the regulation concerning the supremacy of the constitution as well as its primacy of application, which follow from the imperative of direct application. The Constitution of the Republic of Poland contains such a regulation in Article 8, respectively in paragraph 1 and paragraph 2.
It can bring possible conflict. States try to avoid of possible conflicts by the parallel adoption of the possibility to review international law before accepting its binding force. In the Constitution of the Republic of Poland that role is assumed by Article 133(2), which triggers the ex-ante review of the constitutionality of ratified agreements. Pity, it is used very rarely.
In the remaining scope, in the sphere of national law, its primacy over international law – if it exists – most often follows from a contrario reasoning of rule of the primacy of international law. But in this case a conflict of norms stemming from both orders might be more possible. Of course, it will manifest itself later – only in the activities of authorities.
This may generate responsibility under international law and enforce intervention of state authorities – that
- is aimed at the creation of law in the sphere of national law, or possibly
- is aimed at the elimination of an international obligation (e.g. withdrawal from an agreement).
Against the background of entire international law, the situation of international treaties is unique. Treaties are in the legal situation, that is more favourable and more precisely regulated. Even if this doesn’t regard to all treaties, then at least to a certain group of them.
Sometimes the way to avoid conflicts are self-executing treaties and the direct application of international agreements.
In principle, treaties don’t have the status of national law. They are concluded by the executive power and are binding in the external relations of the state. As a result, if a treaty prescribes specified treatment of individuals, it must be implemented by the parliament, and required norms must be transformed into domestic law by virtue of a statute. And a statute, not a treaty itself, is executed by national authorities applying law. For international law it is fulfilment of treaty. However, in international law there exists the concept of self-executing treaties.
This concept stems from national law, but international law has developed the requirements for self-execution of treaties norms. They were set out in the advisory opinion of the Permanent Court of International Justice. The key is here the wording and general tenor of the treaty.
What is meant here is the ability to fully regulate the legal situation without the need of mediation or specification at the national level. This follows from the formulation of treaties-provisions, that is to say from its precision, clear and complete wording. In the light of the above, a self-executing treaty may be defined as treaty who is executed by application of its provisions by judges in courts without the necessity of a mediation of statute enacted by the parliament (application of a statute executing the treaty).
The concept of direct applicability is also a notion stemming from national law. It means that a provision (norm) may directly create rights and obligations of the subjects of national law, which may be executed before national authorities.
It refers to those of them which – according to legal scholars and case-law – contain norms constituting a direct source of national law. This notion has also been linked with acts of international law. In other words, direct applicable treaties are treaties which are sources of national law and have a normative character. And it does not depend on their reception in national law. Mainly self-executing treaties are concerned here. This – at first sight – doubled formula may become a misleading construction. In the reality it is not doubled formula but two separate legal institutions.
Most important difference indicating the essence of the disparity between those concepts is the fact that, although the state may not independently change the nature of treaty provisions if they are self-executing, state may block their feature of direct applicability in national order.
Alternatively, such a blockade may be allowed by the elements of the constitutional system.
Why it is possible? Because from the perspective of international law, the state must only fulfil an obligation, and state may do it in any possible way. Both constructs (self-executing and direct applicability) are a formula based on monism theory, which allows to avoid a collision between international law and national law, because the effect of an international obligation is attained.
Then I got to the point of international treaties in the Constitution of the Republic of Poland.
Ratified international agreements have their basis in the Constitution in a specified manner. They are indicated as one of the sources in Article 87, which contains the catalogue of the sources of universally binding law. This regulation is technically complemented by Article 91(1) and (2) of the Constitution, which introduces the conditions (paragraph 1) and principles (paragraph 2) of direct application of ratified international agreements – this time as a formal source of universally binding law.
This follows from the fact that in such a case mere incorporation into the domestic system is not sufficient. Also important is to indicate a solution to a potential conflict of an international and a national norm. Conditions for using ratified treaty as a binding law are: promulgation (translated) in the Official Journal of Laws and the lack of the necessity to enact a statute in order to apply an agreement.
In turn, the principles of direct application of such agreements refer to conflict situations – where their primacy over statutes was attributed solely to norms stemming from a ratified agreement. More – yet exclusively from an agreement ratified upon prior consent granted by statute.
This is not a basis indicating hierarchy, but only one determining the primacy of application of norms. It means – their legal force.
Hence, Article 91(2) is a specified form of the obligation to observe international law, generally contained in Article 9 of the Constitution. But it goes further than Art. 9. It decides how to observe the IL. But is linked solely with one kind of the sources of international law.
Such an arrangement indicates that the Constitution of the Republic of Poland is based on two theoretical solutions:
- first – ratified international agreements have their basis therein in accordance with the monist conception;
- second – remaining sources of international law are based on the dualist conception. And they create an obligation exclusively in the dimension of international law. They are not a component of national law. They are subject to national execution but depending on the character of an obligation.
Their execution may take the form of:
- a normative national act – effect of transformation of IL into national law, or
- a national act of the application of international law. IL is not binding in national system but is the material basis for acting of national state’s entities, who doing it – based on domestic legal competence provision (only if they have), or
- simple actual actions of executive power, fulfilling actual IL obligation during the simple every day acting based on national law.
In the 20th century, the view was dominant in Poland that international law is binding exclusively in the external relations of the state. If necessary is performed by states authorities. Typical dualistic conception.
The Constitution of 1997 has significantly brought closer both legal systems. Specific constitutional constructs have led to the fact, that at least, a part of the system of international law, namely ratified international agreements, should be treated as a component of the state’s constitutional legal order, that is as a part of universally binding law.
Of course, the question arises in this context whether the constitutional provisions deal with:
- firstly, the relation of the binding force of both orders, or
- secondly, merely the relation of application?
Article 87(1) of the Constitution places ratified international agreements in the catalogue of the sources of universally binding law. In that context, a stance has been expressed by same legal scholars, that in this way, the Constitution incorporated that source of international law, and a every ratified international agreement thus became a component of national law in force.
It is not true. Look at the content. It prescribes that the acts indicated therein are “the sources of universally binding law in the Republic of Poland”. This is only a catalogue sources of binding law. Art. 87 is associated with Article 91 of the Constitution. Art. 91 is not concerned with the sphere of the binding force, but it merely prescribes the primacy of application. Please pay attention, this provision indeed does not repeal the binding force of statutes that are in non-conformity to international agreements.
This provision mitigates only a possible conflict. Thanks them conflict may exist to infinity on a level of binding law until one of the acts in conflict becomes repealed. Thanks them a conflict between national statutes and international treaties is – we see – a theoretical conflict. It doesn’t bring problems until some state’s authority will apply national provision being in conflict. And in this moment art. 91 is turned on.
Article 91 of the Constitution has one more important role. Namely, it introduces in its paragraph 1 the concept of the direct application of (ratified) international agreements.
This construct fulfils two functions:
- firstly, it operates in the sphere of the state’s constitutional system, specifically within the construct of the division of power
and it divides responsibility between the judiciary and legislature for enforcement of acting of national subjects – state authorities (courts, administrative authorities) and individuals.
- Secondly, it plays the role of a legal basis for courts and state authorities to fulfil their functions on the basis of an international agreement.
Without these provisions, an international agreement could not be directly applied even if it was self-executing in international law.
This provision distinguishes also two types of ratified treaties: those which require an act of the legislative power to be enforceable by courts from those which do not require such an act. It needs to be remembered that in the first case – the national legislator may modify an international obligation in such a statute. The legislator, while introducing a modification, may act in a practically unlimited manner. He may even eliminate the competence of judges.
If it eventually turned out that such a modification infringed the essence of an obligation, it would be only a problem of the state’s international responsibility. Courts would only be able to execute a statute, because they may not modify by themselves a statute modifying a treaty, which is – thanks a statute – not direct applied.
Alternatively, judges could refer a question of law to the Constitutional Tribunal if a given problem were subject to the Tribunal’s review.
But Article 91 of the Constitution does not resolve by itself the most important issue. Namely, it does not allow to assess whether or not a specific agreement is subject to execution by courts without the need to adopt a statute.
At this point, it should be reminded that the self-execution of treaties, or actually their direct applicability in the national legal system is dependent not only on the feature of norms, which is highlighted in literature. Above all, it depends on the existence of constitutional regulations which must allow this form of execution of international law.
In other words, the self-execution of treaties arising from international law is subject to review under national law, and direct applicability results solely from favourable predisposition of national law, especially constitution.
What’s about details, it depends on many different issues, both: issue having political nature (the state’s constitutional system, the current needs), issue having legal nature (e.g. the state’s legal traditions). The Constitution of the Republic of Poland is in that regard favourable towards international law.
Article 91(1) solidifies in practice the theoretical division into: agreements applied directly and the rest of agreements, that is those which are not applied directly, but their execution depends on a reception act.
Its purpose is to avoid situations leading to the violation of standards of international law, by eliminating intermediaries in the execution of an agreement. Second purpose of the solution is to make treaties directly enforceable in courts at the request of the individual interested without the need of an additional legislative action. Such a constitutional formulation indicates also that, in practice, national authorities applying agreements decide on their direct applicability. Recent situations in Poland have shown us, that this is often based on an arbitrary decision, although it should be based on systemic rules.
The direct application of international agreements is an obligation of a court. The problem that manifests itself in this case is that constitutional provisions lack unambiguous criteria allowing to classify which ratified agreements may be applied directly. Literally, the Article 91 of the Constitution allows for direct applicability unless applicability is dependent upon the enactment of a statute. In this way, Art. 91 creates the principle that each ratified agreement is part of the universally binding order and is directly applied under the same conditions as national law. This is an obligation – assumption in favour of direct applicability. If it were not for that clause, ratified international agreements would only have the status of international law solely executed by the state (dualist conception).
Hence, if the treaty fulfils the constitutional requirements for direct applicability (ratification, publication), a court is obliged to analyse whether its direct applicability is acceptable in a given case. However, this obligation is not based on a court’s discretionary power.
While examining those issues, a court does not act in a legal vacuum but within the constitutional framework of the division and balance of power. In deciding to act, it means to directly applies a specific agreement (norm), judge operates between two legal borders. One – by bad applying may violates the constitutional powers of the legislature, and sometimes of the executive power. Two – by failing to undertake such an obligation, judge infringes the individual’s rights and depreciates the constitutional position of courts.
The formulation of Article 91(1) of the Constitution does not certainly mean that the application of a ratified agreement may be requested at the court by each individual at any time. The provision contains a constitutional reservation blocking the principle, which makes conditional the application of an agreement from the enactment of a statute. This formula of reservation is quite broad. The literal reading allows to assess that the de facto freedom to make a decision in that regard, is attributed to the part to the agreement. That is to the state government – entitled for foreign policy. The question is how can this be done technically?
Even a superficial analysis suggests some solutions. In the first place, an agreement (the shape of norms) could be formulated in a way that makes direct applicability impossible. The intention of the parties to an agreement is the most important premiss as regards making an assessment. A treaty is an agreement concluded between two states; it is not a legislative act. It does not have a general effect vis-à-vis the subject.
How may be indicated the intention? Very simply.
- Above all by introducing to the agreement the provisions which recommend the necessity to enact statute.
- Sometimes the intention can be showed in documents from treaty-negotiations (it reflects art. 32 Convention on the law of treaties – supplementary means of interpretation).
- But there are other possibilities, too. If provisions are addressed to the government – it is not applied directly; If they are addressed to individuals – it probably is applied directly but not always.
- Likewise, the intention may be indicated by the manner in which the subject of an agreement is defined, by the degree of its specification. Also, if an agreement contains general clauses whose content is specified in certain cases during judging, then it may not be applied directly in a court.
The intention of the parties is not to be underestimated. Intention is the counterbalance to the arbitrariness of jurisprudence and maintains its coherence. The role of the intention of the parties is also stressed by international jurisprudence, starting with the opinion of the Permanent Court of International Justice in the case of the powers of the courts based in Gdańsk (1928).
But it is not everything. It is not enough to claim that the clarity of intention and precision of provisions is ok, and it means that a ratified agreement does not require a statute for its execution.
Even when the intention is clear, and the wording of provision is unambiguous, the direct execution on the basis of art. 91 may be negatively impacted by components arising from the shape or from the constitutional character of the legal order. In Poland, the following situations are concerned in cases when:
- the subject of an agreement is not subject falling to jurisdiction of the judiciary (courts);
- the aim of the treaty is to achieve the legislative goal, which in accordance with the Constitution, may be attained solely by way of statute (exclusivity of the statute);
- in the national legal order (statutes, agreements), individuals do not have the locus standi to initiate proceedings before a court, which would allow to enforce a right specified in a treaty.
What conclusion can we draw? Relations between international law and national law are a complicated sphere. The perspectives of their co-existence intersect at many levels. It is highly possible for conflicts to arise, which may result in an infringement of international obligations and thus entail the issue of the state’s responsibility. The very manner of fulfilling international obligations is part of the exclusive powers of the state. The dominating method in Poland is reception, which arises from the dualist concept. Only ratified agreements are subject to incorporation. And indeed, in this case, the control of the Sejm is less strict. Hence, certain technical issues are important – although a ratified agreement is ranked higher than a statute in the hierarchy of the sources of universally binding law, that superiority manifests itself solely through primacy in the realm of direct application, and this only takes place in a situation where an agreement is ratified upon prior consent granted by statute. The reason for that constitutional arrangement, which places the existing solutions between dualism and monism, is simple. If international agreements are concluded by the government and ratified by the president, then a certain minimum of security, democracy and legitimacy must be guaranteed. In addition to that, dualism has a particularly great role in the shape of the constitution and statutes, which serve as acts implementing international obligations. This is also confirmed by the conclusion referring to the provision concerning the direct applicability of an agreement. Directly applying international agreements is a solution that bypasses legislative and executive power. The proviso related to enacting a statute contained in Article 91(1) of the Constitution provides the Sejm with the possibility to counteract the excessive activity of courts and control its boundaries.
Apart from the said provision, there are also two groups of conditions which must be fulfilled by agreements so that they may be applicable directly. What is meant is the constructional quality of their provisions and the shape of the legal and constitutional system of the state. The first group is obvious. The role of the second one is overlooked. However, it must be remembered that courts – directly applying such agreements – do not act in a legal vacuum but within the framework of the system.
