On 8 July 2024, the Prime Minister of Poland, Donald Tusk, signed a Security Cooperation Agreement with the President of Ukraine, Volodymyr Zelensky. The text of the agreement was published on the website of the Chancellery of the Prime Minister. However, it was not published in any official gazette (Dziennik Ustaw or Monitor Polski).
According to the Constitution of the Republic of Poland, an international agreement (the International Agreements Act defines an ‘international agreement’ as: an agreement between the Republic of Poland and another entity or entities under international law, governed by international law, regardless of whether it is included in one document or in several documents, regardless of its name and regardless of whether it is concluded on behalf of the state, the government or the minister heading the government administration department competent for the matters to which the international agreement was legally binding) is an act of universally binding law, and its ratification is required.
Ratification is carried out by the President of the Republic of Poland – in less important matters based on the submission of the agreement by the Council of Ministers after prior notification of the Sejm (Article 89 paragraph 2). However, the Constitution stipulates that in the case of certain matters, due to their significance, ratification requires prior consent expressed in a law (Article 89 paragraph 1 of the Constitution). This applies in particular to agreements in the field of military arrangements or those involving significant financial burdens for the state.
In the public debate, voices were raised that the agreement in question falls into these categories. Indeed, in the text of the agreement, the Polish side declared, among other things, that Poland would provide further military aid packages of significant value and that Poland will continue military assistance to Ukraine for as long as necessary (p. 5 of the Agreement). In view of the above, the resignation not only from obtaining the statutory consent of the Sejm for the ratification of the agreement, but even the resignation from its ratification altogether, including not informing the Sejm of the intention to conclude it, may raise serious doubts as to the legality of the actions of the Prime Minister.
However, even if it is assumed that the Prime Minister did not intend to conclude an agreement that would become a source of generally applicable law, the procedure in force in such a case was also not followed. According to the International Agreements Act, in such a situation it is necessary for the Council of Ministers to approve the agreement in the form of a resolution (Article 12(1) and (3) and Article 15(1)). An agreement approved in this way should then be immediately published in Monitor Polski (Article 18(3) of the Act). However, the above obligations have not been fulfilled.
By way of comparison, it can be pointed out that the General Agreement between the Government of the Republic of Poland and the Cabinet of Ministers of Ukraine on mutual cooperation in the field of defence, drawn up in Warsaw on 2 December 2016, maintained in a somewhat similar spirit to the agreement (although, significantly, not containing unilateral obligations on the part of the Polish side analogous to those mentioned above) was finally published in Monitor Polski (2019, item 50), albeit with a delay of more than two years.
It is also worth emphasising that, despite the above violations of the procedure for concluding international agreements provided for in Polish law, the agreement is still valid and binding under international law. According to Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke the provisions of its internal law to justify its failure to perform a treaty. The final provisions of the agreement, on the other hand, stipulate that it will be valid for ten years and will become effective immediately after its signature (p. 23 of the Agreement). Therefore, if the Republic of Poland does not fulfil its obligations under the agreement during the current decade, Poland will bear international responsibility.
In conclusion, even if one agrees with the government’s position that the agreement, due to its general and political nature, was not subject to mandatory ratification, it was still adopted in a manner contrary to the applicable procedure. The situation in which Poland assumed binding international obligations on the basis of an act that was not properly adopted into the Polish legal system rightly deserves criticism from the point of view of respect for the rule of law. On the other hand, depriving the Sejm of the opportunity not only to grant or withhold consent to the ratification of the agreement, but even to be informed of the intention to adopt the agreement, must also be assessed negatively in terms of its impact on political culture and the freedom of democratic debate in Poland.
Illustration source: Adobe Stock.