Cohabitation between the government and the President can often lead to various confrontations, especially in the area of foreign policy. In Poland's current cohabitation case, the question arises: Who represents Poland abroad – a de jure ambassador approved by the President, or a de facto ambassador appointed by the Ministry of Foreign Affairs? In legal terms, one could pose the question: Is President Duda Violating the Constitution, or Are Prime Minister Tusk and the Foreign Minister at Fault?

Recently, the Financial Times reported that Polish diplomatic relations are stuck in between the President and the Government. This stalemate is caused by fundamentally different foreign policy visions of the President and recently elected Government, both from polar opposite parties – President Duda from the rightwing Law and Justice party, and in the other side, the liberal and pro-EU governmental coalition.

In March 2024, the Polish Ministry of Foreign Affairs has announced the will to replace more than 50 Polish ambassadors. Prime Minister Donald Tusk, together with the Minister of Foreign Affairs Radoslaw Sikorski, already managed to recall some of the diplomats. However, President Andrzej Duda is blocking their attempts to appoint new staff. Therefore, some posts remain vacant, leaving lower-ranking officials in charge, for example, in Italy and Latvia. The wobbly cohabitation brings a lot of political uncertainty. However, one should ask a legal question: Where does the Constitution of the Republic of Poland stand on this issue? Is President Duda violating the Constitution, or are Prime Minister Tusk and the Minister of Foreign Affairs breaking it?

First of all, the legal provisions of the Polish Constitution clearly describe the proceedings of appointing and recalling ambassadors. Namely, Article 133.1 in para.2 states that: The President of the Republic (…) shall: appoint and recall the plenipotentiary representatives of the Republic of Poland to other states and to international organizations. The Constitution also explains the responsibilities of the Government in Article 146. 1: The Council of Ministers shall conduct the internal affairs and the Foreign Policy of the Republic of Poland. Additionally, the detailed procedure for the appointment of Polish representatives is described in Article 9 of The Law 'On Foreign Service' which provides that ambassadors are appointed and dismissed by the President at the request of the Minister of Foreign Affairs, previously accepted by the Prime Minister. Also, the Minister of Foreign Affairs has to seek the opinion of the Foreign Service Convent before he can submit the request to the President. The convent consists of the Minister of Foreign Affairs, the Head of the Foreign Service and the representatives of the President's Chancellery and the Prime Minister's Chancellery. After the appointment, all ambassadors report to the Minister of Foreign Affairs.

Moreover, the Vienna Convention on Diplomatic Relations regulates the interactions between sending and receiving States. The Convention in Article XIII explains that: The head of the mission is considered as having taken up his functions (…) when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State. Therefore, the letters of credence issued by the President are crucial for establishing the new ambassador. However, the document offers a solution to the diplomatic stalemate. Article XIX: 'If the post of head of mission is vacant, or if the head of the mission is unable to perform his functions a chargé d'affaires ad interim shall act provisionally as a head of a mission. Their name shall be notified, either by the head of mission or (…) by the Ministry for Foreign Affairs of the sending State.' In this case, the head of a mission will be of a lower rank, but there should be no differentiation in treatment on a class basis.

In other words, from constitutional law perspective, even if the choice of the ambassadors is not the President's prerogative, he still has the right enshrined in Article 133.1 of the Constitution of the Republic of Poland to not recall them or block the appointment of the new ambassadors by not signing the credentials. In this case, one could say that the Minister of Foreign Affairs acted in violation of the Constitution by terminating the contracts with ambassadors without the presidential approval. Then, he took the road described in the Vienna Convention and appointed chargé d'affaires as head of mission in the vacant posts. As mentioned above, these lower-class officials accredited to the Minister of Foreign Affairs don't require presidential consent. Therefore, the Minister of Foreign Affairs found a practical solution and granted the right to represent Poland to de facto ambassadors.

It is important to recall that this diplomatic skirmish is not a new one and there was another diplomatic collision during the Polish cohabitation in 2009. Back then, President Lech Kaczynski and Prime Minister Donald Tusk faced a competence dispute over the 'chair at the EU summits'. The Constitutional Court in its decision dated 20th of May 2009 ruled then that only the Government has the right to represent the interests of Poland, allowing the President to attend the meetings but solely for decorative purposes.

To sum up, constitutions have clear rules, but they may not be sufficient to resolve political disputes. Politicians often try to bend the law to achieve their objectives. As long as opposing factions perform representative and legislative functions, reaching an agreement is difficult. There is always hope in independent constitutional courts, which can interpret the Constitution and resolve such disputes. Unfortunately, in Poland, the Constitutional Court has been packed with politically loyal judges, making the independence of these courts a distant dream. In other words, sometimes, pro-European politicians might find themselves skirting the letter of the law, while in spirit they aim to rectify the harm inflicted by the preceding right-wing government.

Authors:
Viktoriia Lapa, Lecturer, Bocconi University, Affiliated Research Fellow, CCSDD
Alicja Lanocha is a third-year student pursuing a BSc in International Politics and Government at Bocconi University. She is aslo a volunteer at Wschód, a Polish non-profit initiative of young people fighting for a better future for Poland and Polish citizens.