Poland has begun diplomatic efforts in neighbouring countries to rally support for a “family rights convention” – initiated by ultra-conservatives and designed as a regional challenge to the Istanbul Convention and EU attempts to further LGBT and women’s rights.
Conservative forces in Poland, both inside and outside the government, are stepping up efforts in the region to reject the 2011 Council of Europe Convention on combating violence against women and domestic violence, known as the Istanbul Convention, and potentially replace it with another treaty that seeks to boost the rights of ‘traditional families’ at the expense of sexual minorities, BIRN can reveal.
If successful, the push could lead to the creation of a regional alliance in Central and Eastern Europe, potentially blocking the expansion of LGBT and women’s rights in the EU and further antagonising relations with Brussels. Poland is already under fire from the EU because municipalities across a third of the territory of Poland have now adopted resolutions against what they deride as “LGBT ideology”, often promoted by PiS local councillors using a template provided by the ultra-conservative group Ordo Iuris.
The dispute over the Istanbul Convention hit the headlines earlier this summer when hardline Polish Justice Minister Zbigniew Ziobro filed an official request with the Ministry for Family, Work and Social Policy, asking it to initiate proceedings for withdrawing the country from the Istanbul Convention.
Ziobro, known for his strict Catholic views, argued that the Istanbul Convention “takes aim at family, marriage and the currently functioning social culture when it comes to comprehending gender.” The Istanbul Convention, which Poland ratified in 2015, attributes violence against women to the historical inequality between men and women, and defines gender as “socially constructed roles”.
For these reasons, ultra-conservatives in Poland and beyond have, for years, been railing against the document, which they argue will destroy the “traditional family” (i.e., heterosexual married couples with children) by imposing so-called “gender ideology” – an umbrella term created by these groups which seems to refer primarily to LGBT and reproductive rights. Ziobro’s announcement prompted strong reactions among both the proponents and critics of the Istanbul Convention.
On July 30, Polish Prime Minister Mateusz Morawiecki, whose Law and Justice (PiS) party is in coalition with Ziobro’s United Poland, announced that he had asked the country’s constitutional court – widely thought to be controlled by PiS – to examine whether the Istanbul Convention is in line with the Polish constitution. At the time, Morawiecki referred to the Istanbul Convention as an “ideological” document and said the Polish government “shared some of the apprehensions” of its critics.
The prime minister also suggested that Poland had already initiated international cooperation on finding a better instrument to combat domestic violence than the Istanbul Convention. “The Ministry of Foreign Affairs got a clear assignment concerning cooperation with other countries, to come up with appropriate provisions which are not imbued with any worldview elements – and therefore doubts – related to the moral revolution that some want to impose on us,” Morawiecki said.
On the same day, Paweł Jabłoński, an undersecretary of state in the Polish Foreign Ministry, wrote on Twitter that his ministry had started “diplomatic activities for the adoption of an international treaty – the convention protecting the rights of families.”
Now BIRN can confirm that the Polish government has begun that push to garner support from other countries in the region for replacing the Istanbul Convention with another document better aligned with the notion of the ‘traditional family’. The Polish Justice Ministry told BIRN that, “A letter on a proposal for cooperation in the preparation of the Convention on the rights and obligations of the family was sent to the justice ministries of a group of European states,” though it did not list the countries as per BIRN’s request.
And the Polish Foreign Ministry confirmed to BIRN in late September that it was “coordinating activities aimed at creating an international legal act protecting the rights of family”, at the instruction of the prime minister. To achieve this, it was undertaking “diplomatic activities, above all bilateral talks with representatives of countries which could be interested in joining this initiative.” BIRN can confirm that at least four governments in the region – the Czech Republic, Slovakia, Slovenia and Croatia – have been invited to join Poland in its efforts to create an alternative convention to the Istanbul Convention. A spokesperson for the Czech Justice Ministry told BIRN: “The Ministry of Justice of the Czech Republic received the letter. Now we are analysing it. This is the only thing that can be communicated at the moment. We won’t anticipate the position of the Czech Republic.”
The Slovakian Justice Ministry also confirmed that it was one of the recipients of this letter from its Polish counterpart: “We can confirm that the Polish Ministry of Justice has sent us a letter, where it proposes the creation of a multilateral convention dealing with the protection of family, children and the fight against violence, including its sources,” a spokesperson said.
The Croatian Justice and Administration Ministry confirmed to BIRN that it had received the letter from Poland. “The Justice and Administration Ministry has received messages from the Polish Minister of Justice regarding an initiative to define a new international agreement that would deal with the protection of the family. Considering that this is an issue within the competence of the Ministry of Labour, Pension System, Family and Social Policy, the letter was forwarded to the respective ministry for competent action”. BIRN asked the Ministry of Labour, Pension System, Family and Social Policy about the issue but received no reply.
Finally, the Slovenian Justice Ministry also confirmed receiving the letter, adding that it already sent back a negative reply to the Polish side. “On 25 August 2020, we received a letter from the Polish Ministry of Justice proposing the creation of a possible new initiative for the preparation of an international convention relating to family matters, the protection of children and the fight against domestic violence,” a spokesperson from the ministry wrote in a statement to BIRN.
“This content is addressed by the Istanbul Convention, to which the Republic of Slovenia has also acceded. In our response, we presented the position of the Ministry of Justice, that the Istanbul Convention is an important international legal act in the field of preventing and combating violence against women and within family,” the statement continued. “We believe that the convention lays a good foundation for meeting the challenges in our society and paves the way for values such as equality and dignity for all citizens. In our view, international law, EU law and our national law provide appropriate legal frameworks in this area. Therefore, we see no reason for a different regime that the one that is regulated by the Istanbul Convention.”
In separate interviews with BIRN, representatives of two Polish ultra-conservative groups claimed an alternative convention, which they have helped draft, to replace the Istanbul Convention was received with interest by members of the governments of Hungary and Slovakia, although they did not provide any names. “We have signals that the countries which have not ratified the Istanbul Convention are waiting for us,” said Lidia Grabczuk, a spokesperson for the right-wing politician and former MEP Marek Jurek, who heads the Christian Social Congress, referring to the fact the convention remains unratified by 13 signatories, including Bulgaria, Hungary, Slovakia, the Czech Republic, Latvia and Lithuania.
Made in Warsaw, not Istanbul
What is included in this alternative family rights convention and how did it come about? Days before Ziobro’s announcement on July 27, the Polish ultra-conservative groups Ordo Iuris and the Christian Social Congress launched their “Family – yes, Gender – no” initiative. This aims to collect 100,000 signatures to file a citizen’s initiative draft law with the Polish parliament, which would request the president pull out of the Istanbul Convention and the government create a team to write the text of an international convention on family rights.
Ordo Iuris is also spearheading a Europe-wide campaign calling on the European Commission to halt efforts by the EU to ratify the Istanbul Convention, a process which has already been initiated. Were the EU as a whole to ratify the Istanbul Convention, even those member states which have not ratified it themselves – Hungary, Czechia, Slovakia, Bulgaria, Latvia and Lithuania – would have to implement it.
The two Polish groups already have a draft convention to replace the Istanbul Convention, the text for which was prepared by Ordo Iuris in cooperation with former MEP Marek Jurek (Jurek is one of those in the frame to become Poland’s next Ombudsman). According to Karolina Pawłowska, director of the international law centre at Ordo Iuris, “many other organisations from across Europe” contributed to this Convention on the Rights of the Family.
In the draft document, Ordo Iuris and its colleagues start from the premise that it is the “weakening” of the traditional family which has led to the intensification of domestic violence. Their alternative convention proposes measures to strengthen the role of traditional families in society, including reducing state interference in family life and giving parents more control over the education of their children.
Surprisingly, once the preamble about the role of the family is over, the alternative convention copies numerous formulations from the original Istanbul Convention, particularly when it comes to the mechanisms of combatting domestic violence. “This shows we are not radicals, but we really want to help victims of violence, so when we see some propositions that work, we use them in our document,” Pawłowska told BIRN. “Without the ideological assumptions behind the Istanbul Convention, some aspects are neutral and can be interesting instruments to combat violence, but only if we properly address its real causes.”
The authors say that the causes of violence are not related to structural gender inequality, but rather “pathologies”, among which are alcoholism, pornography, social atomisation, the breakdown of family ties and the sexualisation of women in the public space. Prime Minister Morawiecki repeated this line of thinking in his press conference at the end of July. While presented as an alternative to the Istanbul Convention, the Ordo Iuris proposal also includes articles about same-sex partnerships and abortion – topics that are important for its authors but are not included in the Istanbul Convention.
For example, Article 9 says signatory states “do not recognise the legal effects of same-sex relationships… entered into any form whatsoever, either internally or abroad” and “cannot be required to take any measures facilitating same-sex relationships abroad”; Article 37 asks countries to cooperate to ensure criminal liability for those performing illegal abortions; Article 14 calls on public authorities to “not affect, in any way, the reduction of fertility or make it difficult for families to have children” – an unclear formulation which could be later interpreted to mean restricting legal abortion.
In September, after Ziobro’s call to reject the Istanbul Convention, the Polish Episcopate also expressed its support for the “Family – yes, Gender – no” initiative. In 2018, bishops from Central and Eastern Europe had already called on their respective governments “to refuse the ratification of the Istanbul Protocol, or to revoke the signature”. Ordo Iuris’s Pawłowska says that their alternative convention has been presented already in many of the region’s countries, including Hungary, Slovakia, Bulgaria and Croatia. In July 2018, Ordo Iuris claims it “was presented in the European Parliament”.
Katja Ziegler, an international law professor at Leicester University who specialises in the intersection of legal orders, says that even if four countries ratify this alternative convention – the minimum envisaged by its authors for the convention to come into force – EU member states would still have to respect any EU legislation that potentially clashes with the new convention. Ziegler adds that countries like those in CEE which signed the Istanbul Convention but have not yet ratified it are still bound by international law not to take any measures that would defeat the object and purpose of the Istanbul Convention.
“The [Ordo Iuris] convention blends legal rules and principles which are contained in other instruments [for example, the European Convention on Human Rights and the Convention on the Rights of the Child] which are, at least at a general level, uncontroversial and unobjectionable with very problematic and controversial concepts which are slipped in – like a wolf in sheep’s clothing,” Ziegler told BIRN, pointing to references to the notion of ‘natural family’, the commitment not to recognise the legal effects of same-sex relationships and to a number of vague paragraphs that could be aimed at limiting or prohibiting abortion. “It is significant that this has not been triggered in an international forum, but as the ‘grassroots’ activity of one state outside of a multilateral forum (the UN or Council of Europe, for example), which is now looking for allies,” Ziegler said. “It is an attempt to shape international law in a certain, fundamentalist direction by potentially hollowing out existing protections.”
Neil Datta, secretary of the European Parliamentary Forum for Sexual and Reproductive Rights and an expert in the global ultra-conservative movement, told BIRN: “The Ordo Iuris Convention is full of complicated legal text that sounds plausible, but would only pass a legal analysis if this was made by the author’s own lawyers. This is a fake convention.”
Datta points out that a real treaty, as is the case with the Istanbul Convention, emerges from within a legal order like that of the Council of Europe after being supported by member states. “This is a private thing written by an NGO that they promoted to a member state, Poland, which hasn’t even adopted it into its legal order before it started shopping around for allies,” Datta said. “You and I can sit down and write a convention but that doesn’t mean it has any legal value.”
While Datta is sceptical Ordo Iuris will be able to get enough governments to sign up to the alternative convention, he admits that efforts to promote it might be useful in preventing the ratification of the Istanbul Convention by the EU or blocking further European progress on LGBT and women’s rights in general. “The idea of preventing advances in EU law has been a strategy of these ultra-conservative groups since 2013,” Datta told BIRN. “They have not been very successful in proposing their own things, but they have been [successful] in blocking progress. So while they haven’t necessarily been successful in rolling back LGBT rights, they have managed to stop advances that could have otherwise happened.” “And they do change the political mood,” he added.
Ordo Iuris’s Pawłowska, who says she hopes the new convention will become at least a regional treaty, seems to confirm Datta’s view. “That’s the whole reason why this initiative started, because we saw that the European Court of Human Rights is, step by step, trying to violate the definition of family and marriage in countries like Poland, Romania, Bulgaria,” Pawłowska said. “We also have this new project of an EU LGBT strategy, in which the EU would like to impose the recognition of marriage contracted in countries that do recognise gay marriage, on other countries which don’t.” “The idea of our convention is to defend those countries which try to preserve the natural social order based on the ‘natural family’ from this ideological dictate,” she affirmed.
First published on 6 Ocotber 2020 on Reportingdemocracy.org, a journalistic platform run by the Balkan Investigative Reporting Network.