‘Principled Resistance’ Meets ‘ ultra vires ’: New Techniques in Opposing ECtHR Judgments

II


I. Introduction
Over the past 70 years, human rights protection in Europe has seen a marked increase in judicialisation. The European Convention on Human Rights (ECHR or 'the Convention') 1 largely contributed to this process. While in the early days of the European Court of Human Rights (ECtHR, 'the Strasbourg Court' or 'the Court'), human rights protection was aptly characterised as an exercise of 'legal diplomacy', 2 the approach has become more and more straightforward in recent years. Protocol No. 11, 3 which abolished the former Commission of Human Rights and concentrated human rights supervision in the hands of the (now permanently established) Court, appears to have been a turning point in this process. 4 Together with the Court's evolutive interpretation method (the 'living instrument' doctrine), 5 this jurisprudence laid the foundations of an ever-increasing human rights standard. 6 However, this trend towards more and more judicial human rights protection was not welcomed by everyone -especially not by all States that are 6 In this vein, e. g. ECtHR (Grand Chamber), Selmouni v. France, Judgment of 28 July 1999, no. 25803/94, para. 101: 'However, having regard to the fact that the Convention is a "living instrument which must be interpreted in the light of present-day conditions" […], the Court considers that certain acts which were classified in the past as "inhuman and degrading treatment" as opposed to "torture" could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.' subject to the ECtHR's jurisdiction. Therefore, alongside with the increase in human rights protection, we have seen a rise in resistance to the Court. This phenomenon, which is not only known from the Convention context but also from other international courts and tribunals, has instigated a number of theorisations. One of these theorisations is the new scholarly concept of 'principled resistance' which forms the core of the present paper.
This paper proceeds as follows: Part one seeks to explain the concept of principled resistance. After distinguishing permissible forms of resistance from impermissible ones along the lines of 'res judicata' and 'res interpretata', it ends with a differentiation of the principled resistance paradigm from other scholarly concepts. Part two presents most recent jurisprudential developments in Poland. Two instances of Polish reactions to the ECtHR's Xero Flor judgment are considered. In this judgment, Strasbourg had declared the Polish Constitutional Tribunal not to be 'established by law'. The third case under analysis deals with Polish reactions to further relevant case law from Strasbourg. Part three analyses this case law against the backdrop of the principled resistance paradigm. By declaring ECtHR judgments to be ultra vires, the Polish Constitutional Tribunal introduced a legal technique into the Convention context that was previously dominant in the EU context. It is submitted that due to the confrontational gesture of the ultra vires argument and the fact that it leaves no room for a legal compromise, the Polish case law has an impact that equals principled resistance. Thus, the concept of principled resistance can help us to better understand and evaluate the disruptive potential of the Polish jurisprudence for the Convention system as a whole. At the same time, the paper endeavours to contextualise this phenomenon with the debate on Polish rule of law backsliding, seen from a pan-European perspective.

Defining Principled Resistance
The notion of 'principled' can be interpreted in different ways. According to the Oxford English Dictionary, it may have connotations such as 'taking a position on principle' or 'acting in accordance with morality, showing recognition of right and wrong '. 7 In the context of resistance to the ECtHR, it can be understood as referring to a particularly principled position taken by an actor, who thereby expresses resistance to a particular judgment. Equally, it could refer to an exceptional character of resistance. That is to say that usually, the State is willing to implement ECtHR judgments whilst in exceptional circumstances, it refuses to do so.
However, the principled resistance concept does not capture each and every type of conflict. The principled resistance concept focuses on situations where implementation of ECtHR judgments will be (or is likely to be) definitely blocked at the national level for genuinely legal reasons. The paradigm concentrates on such impasse situations because those situations pose a serious risk for the functioning of the Convention system as a whole. 8 At the same time, analysing the legal obstacles brought forward in such cases allows us to better understand whether the lack of implementation is the result of mere political unwillingness, whether there are legal obstacles that may be difficult, albeit not impossible, to overcome, or whether there is a risk of a true deadlock situation. 9 Hence, principled resistance is understood to have the following characteristics: '(1) It is a legal conflict, normally resulting from a clash between the national constitution and the Convention. (2) The conflict leads to a permanent blockade, in the sense that an ECtHR judgment cannot and will not be implemented. This may result either (a) from a deep disagreement between a national actor and the Court on the protection of human rights or (b) from a conflict between the ECtHR judgment and "national identity" (or indeed both of them).' 10 To a certain degree, the definition of principled resistance was inspired by the 2015 Judgment No 21-П/2015 of the Russian Constitutional Court ('the RCC'), 11 Russia at that time still being a party to the Convention. 12 In its judgment, the RCC indicated two possible avenues for resisting an ECtHR judgment: one related to international law and one related to constitutional law. However, adopting this two-pronged approach was not merely accidental. It reflects the imperatives of logic whereby a national judge who intends 8  to oppose an international judgment will have two options of expressing opposition: either by questioning the international outcome or by opposing the result achieved internationally by the imperatives of national law. 13 The latter scenario is enabled by the fact that nationally -not internationally! 14 -, in many (if not in most) countries, the national constitution enjoys supremacy vis-à-vis international treaty law. So, while there were reasons of logic, the RCC gave the distinction between the international and the national level a particularly vociferous expression. Therefore, the 2015 judgment will be used here for illustrative purposes.
The first avenue of resistance relied on by the RCC is derived from the rules of treaty interpretation as enshrined in the Vienna Convention on the Law of Treaties (VCLT). 15 The RCC begins its reasoning with a reference to the ordinary meaning rule, today found in Article 31 § 1 VCLT. It continues to explain that 'if the European Court of Human Rights, interpreting a provision of the Convention for the Protection of Human Rights and Fundamental Freedoms in the course of the consideration of a case, gives to a notion used in the Convention a meaning other than the ordinary one or carries out interpretation contrary to the object and purpose of the Convention, the state, in respect of which the judgment has been passed on this case, has the right to refuse to execute it as it goes beyond the obligations, voluntarily taken by this state upon itself when ratifying the Convention.' 16 Three key points are worth mentioning here: (1) The RCC's argument is what appears in the above definition of principled resistance as a form of 'deep disagreement between a national actor and the [ECtHR] on the protec- tion of human rights'. 17 (2) The argument revolves around treaty interpretation, i. e. it is clothed in methodological terms. (3) The argument is related to the execution of an ECtHR judgment.
The second avenue of resistance is related to constitutional law. Here, the Constitutional Court concluded that when a certain interpretation by the ECtHR 'unlawfully, from the constitutional-law point of view, affect[s] principles and norms of the Constitution of the Russian Federation, Russia may, as an exception, deviate from fulfilment of obligations imposed on it, when such deviation is the only possible way to avoid violation of fundamental principles and norms of the Constitution of the Russian Federation'. 18 Again, three observations can be made: (1) This argument is what appears in the above definition of principled resistance as 'a conflict between the ECtHR judgment and "national identity"'. 19 (2) Unlike the first avenue of resistance, it does not attack the meaning of a certain Convention provision at the international level, but it opposes the outcome of a certain Strasbourg case by the imperatives of constitutional law, making use of the supremacy of the Russian Constitution vis-à-vis treaty law. (3) This opposition is, in the words of the Constitutional Court, viable only as an 'exception' if this is 'the only possible way to avoid violation of fundamental principles and norms' of the Russian Constitution, i. e. not each and every conflict with a constitutional provision leads to this scenario but only conflicts with a certain category of constitutional norms (characterised as 'national identity' in the above definition).

Distinguishing Permissible and Impermissible Forms of Resistance
Disagreement between the ECtHR and a national actor is central to the principled resistance concept. Therefore, it is essential to know where, from the international law point of view, disagreement is permitted and where it is not. Here, the distinction between the res judicata principle and the res interpretata principle comes into play. 20 Article 46 § 1 ECHR establishes the binding force of Strasbourg judgments but only as far as the parties to the proceedings are concerned. Hence, it is generally accepted that a defendant State is bound by an ECtHR judgment, which is called the 'res judicata principle'. It is also accepted that this principle leaves no room for exceptions, not even in cases involving a State's 'national identity'. Thus, the techniques of resistance referred to above are impermissible under the res judicata principle.
However, the question arises whether, beyond the mere wording of Article 46 § 1 ECHR, States that have not taken part in the Strasbourg proceedings are bound by the interpretation given to certain notions of the Convention by the ECtHR -hence the term res interpretata. On that matter, views are divided. Some scholars argue for a legally binding force of the Court's reasoning so that ECtHR judgments, beyond the scope of Article 46 § 1 ECHR, produce effects 'erga omnes'. 21 Others hold by contrast that beyond Article 46 § 1 ECHR, ECtHR judgments only have persuasive authority, which leaves room for disagreement with the Court's reasoning. 22 The principled resistance concept takes this latter stance. Therefore, from a legal point of view, national courts are entitled to disagree with the Strasbourg Court as far as the res interpretata effect is concerned. 23 However, if such disagreement occurs too frequently or in a language that is too confrontational, the credibility and general position of the ECtHR may be undermined. Therefore, domestic courts should use their 'right to disagree' under the res interpretata principle in a respectful manner which does not undermine the authority of the Court. Otherwise, there is a risk that this might lead to situations where ECtHR judgments remain permanently unimplemented. 24

Differentiating Principled Resistance from Other Scholarly Concepts
The principled resistance concept significantly differs from other scholarly concepts developed in recent years to analyse resistance to international courts or tribunals. The concept of 'backlash vs pushback' is a case in point. Although it has certain similarities with the principled resistance concept, 'backlash vs pushback' is much more far-reaching as it does not concentrate on implementation deficits. 'Backlash vs pushback' embraces acts of resistance that go far beyond the non-implementation of a judgment, such as blocking the re-election of judges, denouncing the acceptance of an international court's jurisdiction, or shutting down an international tribunal altogether. 25 The width of this concept allows for an analysis of the sociopolitical implications, but is less apt for a genuinely legal analysis.
Concentration on deficits in the implementation phase of an ECtHR judgment is also absent from the concept of 'reasonable resistance'. This concept mainly deals with national courts' strategy to 'justify resorting to fundamental principles as a tool to disregard international law'. 26 Unlike 'backlash vs pushback', it centres around the legal argumentation brought forward to justify disregard of international law. Yet, the concept of 'reasonable resistance', too, is much more far-reaching than the principled resistance paradigm because it includes deviations from international treaty obligations as such (also in the absence of a judicial pronouncement), norms of customary international law, EU law, etc. 27 Hence, in comparison with the principled resistance concept, the results produced by this scholarly concept are less specific. The concept of 'criticism of the ECtHR', 28 despite certain overlaps with the principled resistance concept, again has a different focus. It distinguishes between different degrees of criticism, ranging from sparse, moderate, strong to hostile. A potential strength of this concept is that it allows for a holistic picture of ECtHR compliance. At the same time, this overarching approach comes at the expense of accuracy and level of detail as far as the 'pathological' cases are concerned, which form the centre of the principled resistance concept.
Other scholarly pieces, such as the 'very first comprehensive empirical analysis of the use of Strasbourg case law and its effect on the reasoning of domestic courts', 29 go for obvious reasons beyond the scope of principled resistance. After all, it might be said that principled resistance has become accepted in academic writings. Although critical comments have been raised occasionally, 30 the concept has been cited with approval by a growing number of academics. 31 Therefore, good reasons exist to argue that the principled resistance concept has become a well-established tool to analyse implementation deficits. 32 The cases in the next section illustrate the importance of concentrating on the legal techniques employed by national actors striving to block ECtHR judgments.

III. Part Two: Principled Resistance à la polonaise
The second part of this paper is devoted to the analysis of recent patterns of resistance by the Polish Constitutional Tribunal ('the CT'). As a matter of fact, this type of resistance not only relates to the ECtHR but also to the Court of Justice of the European Union ('the CJEU'). However, for analytical purposes, this paper concentrates on Polish responses to ECtHR case law although, incidentally, CJEU cases will be addressed where appropriate. The first two CT reactions concern a single ECtHR judgment (Xero Flor). In contrast, the most recent response relates to a whole series of ECtHR judgments. Those reactions will be discussed in chronological order.

The First CT Response to Xero Flor (Case P 7/20)
In the case of Xero Flor, the ECtHR held that the Polish CT could not be regarded as being 'established by law' as required by Article 6 § 1 ECHR. These findings were due to the grave irregularities surrounding the election of three CT judges after the 2015 election of the national Sejm. 33 The Strasbourg Court held in particular that 'in agreement with the series of Constitutional Court rulings referred to above, […] the election of the three judges, including Judge M. M., to the Constitutional Court on 2 December 2015 was carried out in breach of Article 194 § 1 of the Constitution, namely the rule that a judge should be elected by the Sejm whose term of office covers the date on which his seat becomes vacant.' 34 The CT's first response was given a little more than one month after Xero Flor. The CT proceedings at issue were completely unrelated to the Xero Flor case. Rather, they concerned EU law, namely, the CJEU's competence to order interim measures with respect to the functioning of the newly created Disciplinary Chamber of the Supreme Court. 35 In a judgment delivered on 14 July 2021, the CT ruled that the CJEU had no competence to do so. 36 In an interlocutory decision from 15 June 2021, however, the CT had to deal with the request by the then Polish Ombudsman, Adam Bodnar, to exclude one of the CT judges from participating in the examination of the case. In this context, Bodnar relied on Xero Flor to justify removal of the judge. A three judges formation of the CT replied to this request as follows: 'According to the Constitutional Tribunal, the ECtHR judgment of 7 May 2021, to the extent to which it refers to the Constitutional Tribunal, is based on arguments testifying to the Court's ignorance of the Polish legal system, including the fundamental constitutional assumptions specifying the position, system and role of the Polish constitutional court. To this extent, it was issued without legal grounds, overstepping the ECtHR's jurisdiction, and constitutes unlawful interference in the domestic legal order, in particular in issues which are outside the ECtHR's jurisdiction; for these reasons it must be considered as a non-existent judgment (sententia non existens).' 37 As was rightly noted by academic commentators, although the CT does not employ the term, its decision may be characterised as an ultra vires type of argument. 38

The Second CT Response to Xero Flor (Case K 6/21)
Unlike the previous example, the second CT reaction to Xero Flor is closely related to that very case. The proceedings were initiated by the Polish Minister of Justice, Zbigniew Ziobro, acting in his capacity as Prosecutor General. On 24 November 2021, the CT found, inter alia, Article 6 § 1 ECHR to be inconsistent with various articles of the Polish Constitution 'insofar as the term "tribunal" used in that provision comprises the Constitu- In its reasoning, the CT relies on its 'primary task […] [of] reviewing the hierarchical conformity of legal norms and -where needed -the elimination of unconstitutional norms from the legal system'. 40 This primary function is, in the eyes of the CT, at odds with the criteria developed by the ECtHR for the inclusion of constitutional courts into the ambit of Article 6 § 1 ECHR. The Polish Ombudsman had come to the opposite conclusion, 41 as did the Bingham Centre for the Rule of Law, which had been asked by the Ombudsman for an Expert Opinion on this matter. 42 For the CT, the 'unconditional categorisation of the Polish Constitutional Tribunal as an organ of the judicial branch' within the meaning of Article 6 § 1 ECHR 'infringes the provisions of the Constitution which establish the position of the Polish constitutional court within the domestic constitutional order', as well as the 'principle of the supremacy of the Constitution, referred to in Article 8(1)'. 43 As was the case with the decision of 15 June 2021, the CT argues that there is a profound misunderstanding of national law on the part of the Strasbourg Court.
However, unlike in the previous decision, with regard to case K 6/21 the CT did not conclude that Xero Flor is sententia non existens. Rather, it held that the norm underlying Xero Flor -Article 6 § 1 ECHR -is inconsistent with the Polish Constitution, but only 'insofar as' the norm applies to the CT. Arguably, this differential approach has procedural reasons, since the CT's jurisdiction is mainly restricted to the review of normative acts. 44 As a result, in his motion, the Prosecutor General had put Article 6 § 1 ECHR itself to the test 'to the extent to which the term "court" encompasses the Constitutional Tribunal'. 45 The effect of this 'insofar as' technique is quite obvious: Although the CT's jurisdiction is mainly restricted to reviewing 40 CT, Press Release after the Hearing, Case K 6/21. In the following, Press Releases from the CT's website will be used. normative acts, using the 'insofar as' formula allows it to (indirectly) review judicial pronouncements in individual cases. 46 This means that the difference between the review of a particular norm in the abstract and the normative content ascribed to it in individual court decisions will be blurred.
Yet, this is a well-established technique in the national (Polish) context. Normally, a judicial interpretation must be 'permanent, universal and unambiguous' in order to be reviewed by the CT. 47 In rare instances only has the CT 'reviewed a legal norm deemed to have been created by a single resolution of the Supreme Court'. 48 One of those exceptional cases is directly linked to Poland's rule of law backlash: After the CJEU's A.K. ruling, 49 the Polish Supreme Court, acting in the formation of the combined Civil Chamber, Criminal Chamber, and Labour Law and Social Security Chamber (so far unaffected by the judicial reforms) passed a resolution to the effect that nomination of judges by the new National Council of the Judiciary ('the NCJ') affects the legality of court composition. 50 In turn, the CT found that this resolution was in breach of the Polish Constitution. 51 Turning back to case K 6/21, the CT argued that '[a]lthough the said interpretation was arrived at in the context of a single case, it is binding for the High Contracting Parties on the basis of Article 32 of the Convention, and due to the position and authority of the ECtHR, the said interpretation is universally respected by national courts.' 52 With that, the CT's jurisdiction was established. Although this reasoning could have sufficed, the CT adds an important additional argument: 'There exists no other mechanism for verifying the said interpretation than a review conducted by the Constitutional Tribunal, which -being "the court of the last word" -is obliged to safeguard the fundamental constitutional principles expressed in the Constitution of the Republic of Poland.' 53 We will come back to this later. In any event, we have seen that the CT had the means at its disposal to review the ECtHR Xero Flor judgment, albeit only indirectly by use of its 'insofar as' technique with regard to Article 6 § 1 ECHR. Yet, the result of this technique is very much the same as declaring the Xero Flor judgment sententia non existens: According to the CT's Press Release, the 'specified norms indicated in the operative part of the judgment and derived from Article 6(1), first sentence, of the Convention infringe the provisions of the Constitution and, as a result, they have no legally binding force '. 54 Although the CT again avoids using the term 'ultra vires', commentators argue that this is an ultra vires type of argument, which allows the CT to decide which ECtHR judgment should be implemented within Poland and which should not. 55 In response to this judgment, the Council of Europe's Secretary General, Marija Pejčinović Burić, initiated an inquiry under Article 52 ECHR, which in and of itself is a highly unusual step to be taken. 56

CT Response to Further ECtHR Rulings (Case K 7/21)
On 10 March 2022, once more upon the motion of the Prosecutor General, the CT ruled Article 6 § 1 ECHR to be incompatible with the Polish Constitution, 'insofar as' '(1) under the phrase "civil rights and obligations", it comprises the judge's subjective right to hold a managerial position within the structure of common courts in the (2) in the context of assessing whether the requirement of "tribunal established by law" has been met: (a) it permits the European Court of Human Rights and/or national courts to overlook the provisions of the Constitution and statutes as well as the judgments of the Polish Constitutional Tribunal, (b) makes it possible for the European Court of Human Rights and/or national courts to independently create norms, by interpreting the Convention, pertaining to the procedure for appointing national court judges […] (c) authorises the European Court of Human Rights and/or national courts to assess the conformity to the Constitution and the ECHR of statutes concerning the organisational structure of the judicial system, the jurisdiction of courts, and the Act specifying the organisational structure, the scope of activity, modus operandi, and the mode of electing members of the National Council of the Judiciary […].' 57 The background of this case differs from the previous two examples. The case did not concern the composition of the CT but was related to the involvement of the new NCJ in the election of judges after the major reorganisation occurring in 2017. 58 While the CJEU had taken the lead in criticising undue political interference in the election of Polish judges via the 2017 reform of the NCJ in the A.K. judgment (mentioned above), 59 in 2021 and 2022 the ECtHR delivered a series of judgments coming to the same conclusion. 60 In those judgments, the Strasbourg Court became unusually explicit stating that it is 'inherent in the Court's findings that the violation of the applicants' rights originated in the amendments to Polish legislation which deprived the Polish judiciary of the right to elect judicial members of the NCJ and enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, thus systematically compromising the legitimacy of a court composed of the judges so appointed'. 61 57 CT, Judgment of 10 March 2022, Case K 7/21, Operative Part of the Judgment (translation according to <https://trybunal.gov.pl/en/>). 58  In another case, the ECtHR found a violation of Article 6 § 1 ECHR on account of the complete lack of legal remedies against the premature ending of the applicants' term of office as vice-presidents of a Regional Court. 62 In some ways, the judgment in case K 7/21 resembles that of case K 6/21. In both cases, the CT uses its 'insofar as' technique. Again, Article 6 § 1 ECHR itself had been put to the test by the Prosecutor General. In the same vein, the CT avoids the term 'ultra vires' but uses an ultra vires type of argument in the end. Interestingly, upon closer scrutiny, the legal technique employed by the CT differs significantly from the previous judgment. Here, the main argument does not concern the ECtHR's alleged misunderstanding of central characteristics of the Polish legal system but rather the 'law-making character' of ECtHR judgments. The purported misunderstanding appears only as a kind of by-product when the CT holds that '[a]s a rule, the Constitutional Tribunal of the Republic of Poland avoids conflict of laws with the international legal order, relying on the principle of the favourable interpretation of the Constitution with regard to the international legal order or the-conflicts-of-laws rules. However, this was not possible in the case under examination, as the source of the problem is the ECtHR's manifestly defective activity in the course of creating norms derived from Article 6(1) of the Convention, where the ECtHR relied on its misunderstanding of the Polish legal system.' 63 Now, the central argument is the 'law-making character' of ECtHR judgments, with the effect that -according to the CT -'outside the constitutional procedure for the ratification of an international agreement, i. e. without the state's consent,' a new content of the Convention norm has been created by the ECtHR. 64 So, in case K 7/21 the CT attacks the interpretation given by the ECtHR at the international level, relying on the consent originally given by the Polish State in the course of ratifying the Convention.
As for the consequences of its judgment, the CT holds that it 'entails the elimination of the indicated norms from the legal system, and consequently the four rulings delivered on those grounds by the ECtHR'. The CT adds that 'for the Polish state, those judgments lack the attribute specified in Article 46 of the Convention (the obligation to execute judgments)'. 65 From that statement, one might deduce that the elimination of the (alleged) norms does not only relate to the Polish legal system but is valid, according to the CT, also on the international level. By contrast, case K 6/21 was more ambiguous in that respect: Here, the CT found that the identified norms of Article 6 § 1 ECHR 'infringe the provisions of the Constitution and, as a result, they have no legally binding force'. 66 The reliance on the breach of the Constitution could have been interpreted as implying that the legal vitiation was meant to take effect only in the Polish legal order. In case K 7/21, the CT makes it clear that the Polish State is not bound by the ECtHR judgments as a matter of international law. Finally, the CT endeavours to depict its judgment as 'an objection on the part of the state to an attempt at reshaping an international obligation by adding new content and imposing it on Poland per facta concludentia, outside the procedure for amending treaties'. 67 So, while employing a different technique in case K 7/21, the CT comes to a result which very much resembles the 'sententia non existens' verdict of the 15 June 2021 decision.

IV. Part Three: Evaluation
The third part of this paper, after some preliminary remarks (1.), endeavours to analyse the CT jurisprudence in terms of the principled resistance paradigm (2.). It proceeds with an inquiry into the origins of the ultra vires doctrine (3.), before inquiring into the conceptual differences between the two (4.).

Preliminary Remarks
The 'insofar as' technique allows the CT to oppose an ECtHR judgment with its own findings. This is noticeable, especially when compared with the Russian experience. In Russia, following the RCC's 2015 judgment, a wholly new procedure was introduced for checking the enforceability of international court judgments. Europe Member State having such a 'blocking mechanism' at its disposal, 69 and the country was criticised accordingly by the Venice Commission. 70 In Poland, the 'insofar as' technique allowed the CT to reach the very same result, without the need for a formal change in legislation. 71 In case K 6/21, the CT made the claim that there is 'no other mechanism for verifying the [ECtHR's] interpretation than a review conducted by the Constitutional Tribunal'. 72 This statement is flawed. The Convention itself provides for a procedure to review a Chamber judgment, namely, the referral to the Grand Chamber under Article 43 § 1 ECHR. However, in Xero Flor the Polish Government did not even request a referral (possibly because there were no dissenting judges and because the Court had relied on criteria established only six months ago in a Grand Chamber judgment). 73 From an international law perspective, this inactivity of the Polish Government might even be seen as implying tacit acceptance of the Xero Flor judgment. 74 In Reczkowicz, the request for a referral was later withdrawn by the Polish Government. 75 Those examples demonstrate that mechanisms do exist but that they were simply not used. Instead, the CT unilaterally challenged the ECtHR's findings.
In case P 7/20, this challenge occurred in a set of proceedings completely unrelated to the Xero Flor judgment. Hence, the res interpretata effect of that judgment was at stake leaving room for disagreement by national courts. 76 In case P 7/20, however, the CT judges used their 'right to disagree' in such a confrontational manner that there is at least a prima facie case for an act of principled resistance. What could be more detrimental to the authority of the Strasbourg Court than calling one of its pronouncements 'sententia non existens'? Of course, one could ask whether the Strasbourg Court itself had elicited such a harsh reaction by questioning the CT's legal basis. Was it not the ECtHR which had cast the first stone? However, one should not forget that the ECtHR largely relied on case law of the ('old', 'uncaptured') CT itself, so it did not attack the CT on its own motion but relied on national forces that were beyond suspicion of political influence.
By contrast, cases K 6/21 and K 7/21 directly concerned the implementation of the ECtHR judgments in question. In these cases, the res judicata principle applied which leaves no room for exceptions. 77 In case K 7/21, the CT tried to downplay the relevance of its judgment as simply 'delineat[ing] a boundary of the ECtHR's law-making freedom'. 78 It thereby alluded to the dialogical relationship between the Strasbourg Court and its national counterparts, which in certain cases has successfully led to a fine-tuning of the ECtHR's case law. 79 However, it must not be forgotten that this option is viable only under the res interpretata principle and not under res judicata. 80 The Convention provides for no 'right to object', 81 as far as the res judicata is concerned. The Strasbourg Court therefore was quite correct in holding that the CT judgment of 24 November 2021 was 'an apparent attempt to prevent the execution of the Court's judgment in Xero

Analysis in Terms of Principled Resistance
After these more general considerations, let us now analyse the three cases in terms of the principled resistance paradigm. It is submitted that all of them show characteristics that are typical for principled resistance cases. It may be remembered that principled resistance was defined above as 'a legal conflict, normally resulting from a clash between the national constitution and the Convention'. 84 In both cases K 6/21 and K 7/21, the CT found an incompatibility of Article 6 § 1 ECHR ('insofar as' it contained certain elements) with the Polish Constitution. In case K 6/21, the CT was particularly explicit with its reliance on the supremacy of the Polish Constitution. 85 In combination with the ultra vires type of argument, however, this was somewhat unpersuasive. Supposed the legal norm developed by the ECtHR was legally inexistent, then there was no need to rely on the supremacy of the national constitution to deprive it of its legal force.
A second element of principled resistance was said to be 'a deep disagreement between a national actor and the [ECtHR] on the protection of human rights'. 86 This element relates to the international level, in the sense that the findings of the ECtHR themselves are called into question. An outspoken example in that regard is case K 7/21: The CT, relying on the original meaning of the Convention 87 reproached the ECtHR for having gone too far with its evolutive interpretation. This argument is in direct parallel with the RCC claiming a 'right to refuse to execute [an ECtHR judgment] as it goes beyond the obligations, voluntarily taken by this state upon itself when ratifying the Convention'. 88 Cases P 7/20 and K 6/21 are less obvious examples in this regard. Although in those cases the CT declared the Xero Flor judgment to be ultra vires, it did not criticise Strasbourg for generally including constitutional courts into the ambit of Article 6 § 1 ECHR. Instead, the CT reproached the Court for having misunderstood fundamental characteristics of Polish law with regard to the position and function of the CT. Yet, Article 6 § 1 ECHR requires a tribunal to be 'established by law', so the Convention itself refers to national law. This reference made it necessary for the ECtHR to develop an opinion of its own on whether or not Polish constitutional law had been complied with. Against this background, the CT did not attack the interpretation of Article 6 § 1 ECHR as such but only insofar as it refers to Polish national law. A third element of principled resistance, according to the above definition, is a 'conflict between the ECtHR judgment and "national identity"'. 89 In this respect, case K 6/21 is a good example. The CT relies on its role as 'safeguard[ing] the fundamental constitutional principles expressed in the Constitution of the Republic of Poland'. 90 In combination with its insistence on the supremacy of the Polish Constitution, one could argue that cum grano salis, case K 6/21 is an example of the 'national identity' type of argument while case K 7/21 is an example of the 'international law related branch' of principled resistance. It should be noted, however, that the CT's reliance on the Polish Constitution was relatively broad. This was less so in cases P 7/20 and K 6/21 where one could argue that the position of the CT concerned 'fundamental constitutional assumptions specifying the position, system and role of the Polish constitutional court'. 91 By contrast, in case K 7/21, the CT seems to rely on a series of 'ordinary' constitutional provisions. It goes without saying that, from an international law perspective, both options were not viable avenues since under Article 27 VCLT, arguments related to national law are deemed irrelevant, be they of a fundamental nature or not. 92 Finally, principled resistance cases were qualified according to their potential of leading to 'a permanent blockade, in the sense that an ECtHR judgment cannot and will not be implemented'. 93 In this regard, the Polish cases have a novel and particularly noteworthy element, which is the ultra vires type of argument. It may be characterised as a 'black and white approach'. Given the rigidity of this argument, it is very difficult to think of some kind of legal compromise. The 'black and white' topic is also known from Russian cases. Anchugov and Gladkov was the first case in which the RCC used its competence to decide on the executability of an ECtHR judgment. 94 In this case, the RCC on the one hand decided that the Strasbourg judgment could not be implemented, as far as the constitutional ban on voting rights for serving prisoners was concerned. 95  were not excluded. 97 The case was closed along these lines with the Committee of Ministers contenting itself with the changes made in Russian legislation. 98 In the second case, Yukos, it is much more difficult to think of a 'lawful compromise'. This case concerned the amount of just satisfaction owed to the former shareholders of the dissolved oil company. 99 The sheer amount of almost EUR 1.9 billion was declared by the RCC as leading to constitutional impediments. 100 This, too, is a black-and-white decision with only two alternatives: payment or non-payment. 101 So far, no progress has been made, despite the Committee of Ministers' insistence upon the 'unconditional obligation assumed by the Russian Federation under Article 46 of the Convention to abide by the judgments of the European Court'. 102 Comparing these two instances with the Polish cases, it should be clear that the ultra vires argument deployed by the CT definitely has a potential equalling principled resistance. It has a particularly disruptive element for the functioning of the Convention system as a whole because it leaves no room for manoeuvre. If an ECtHR judgment (or, alternatively, the norm 'insofar as' enunciated in that judgment) is legally inexistent, there is nothing to comply with for the Polish State. This was exactly the position taken by the CT in case K 7/21 when it claimed that the opposed ECtHR judgments 'lack the attribute specified in Article 46 of the Convention'. 103 The disruptive potential of the CT's ultra vires approach becomes even more apparent when the CT in case K 7/21 declares that national acts implementing the attacked ECtHR jurisprudence 'may be revoked' in the future where there are 'procedures for revoking those acts'. 104 With that, the CT does not content itself with retrospectively blocking the implementation of ECtHR judgments but declares that prospectively, where possible, any national act implementing those judgments will be eliminated from the Polish legal order. At the same time, as of February 2022, 94 applications were pending before the Strasbourg Court concerning the reorganisation of the Polish judiciary. 105 Given the fact that in the eyes of the ECtHR, participation of the new NCJ in the election of judges automatically leads to a violation of Article 6 § 1 ECHR, hundreds of potential applications are to come. 106 It is difficult to imagine how a legal compromise should be found in order to bridge the differences between the CT and the ECtHR.

Borrowing Doctrinal Arguments
It is no secret that the ultra vires doctrine derives from the jurisprudence of the German Federal Constitutional Court (FCC) relating to EU law, so it may be worth comparing the ultra vires argument à la Karlsruhe and the argument developed by the CT in Warsaw. As will be recalled, the ultra vires doctrine was originally developed by the FCC in its Maastricht judgment holding the following: 'If […] European institutions or authorities were to apply or extend the Union Treaty in some way which was no longer covered by the Treaty in the form which constituted the basis of the German law approving it, the resulting legal acts would not be binding on German sovereign territory.' 107 Compared to the ultra vires argument à la Warsaw, a first difference stands out: While the FCC confines itself to declaring that, 'on German sovereign territory', ultra vires acts were to have no legally binding force, the CT's approach is much more confrontational because it attacks the very legal existence of ECtHR judgments at the international level. An example of such an attack is the sententia non existens rhetoric in case P 7/20. Another example is the CT's claim that there is no breach of the obligation under Article 46 § 1 ECHR in case K 7/21. Case K 6/21 is a less obvious example because of the argument that the norms enunciated by the ECtHR in Xero Flor 'have no legally binding force', which can be understood either as referring to the international level or as being restricted to the national realm. 108 It is well known that the FCC was particularly hesitant to use its ultra vires doctrine. This jurisprudence was regarded as sending a warning to the CJEU not to go too far with its interpretation of EU competences. For a long time, the FCC was criticised for failing to declare that the CJEU had actually gone too far, as was particularly pertinent in the Mangold case. 109 Against this background, it may have come as a surprise when the FCC finally declared acts of the European Central Bank (ECB) and the corresponding CJEU's Weiss judgment to be ultra vires in the PSPP case. 110 Nevertheless, it has to be stressed that notwithstanding the fact that some parts of the judgment use confrontational wording (declaring the CJEU Weiss judgment 'not comprehensible and thus objectively arbitrary' 111 ), the reaction of the FCC appears fairly moderate: It contented itself to holding that German constitutional organs, administrative bodies and courts may not participate in the 'implementation, execution or operationalisation of ultra vires acts'. 112 Moreover, the main criticism of the FCC was the insufficient motivation of the PSPP programme by the ECB, which made it relatively easy to comply with the Karlsruhe requirements. 113 As a result, the infringement proceedings that had been initiated by the European Commission on account of the PSPP judgment were stalled, 114 after some kind of a 'legal compromise' had been reached.
resistance cases may be conceptualised as power struggles about the proper allocation of competences. 123

Relationship between Principled Resistance and ultra vires
In a final step, this leads us to consider the conceptual relationship between principled resistance and ultra vires. Is ultra vires just another subcategory of principled resistance -maybe one that was originally 'forgotten' but now has been added to the concept? Is the ultra vires argument a mere variation of the 'international law related branch' of principled resistance? Or is it preferable to keep the two concepts, despite certain overlaps, separate in terms of legal doctrine?
Starting with ultra vires, it has to be stressed that at least in an international context, 124 this concept has its origins in the law of international organisations. 125 It is the logical continuation of the principle of conferral, which is a founding principle of EU law under Article 5(2) Treaty on European Union (TEU). Being referred to as 'principle of speciality' or 'doctrine of attributed powers', the principle of conferral also designates a general principle of the law of international organisations. 126 It is closely linked to the difference made between primary law and secondary law, in the sense that acts of secondary law that find no proper basis in primary law are devoid of legal effects. 127 Seen in this light, the principle of conferral is mainly (though not exclusively) concerned with law-making activities of an international organisation.
Yet, the ECtHR as such is not an international organisation. Nor does it qualify as the 'judicial branch' of the Council of Europe. 128 There are clearly strong intersections between the two institutions. However, Article 10 of the Statute of the Council of Europe 129 mentions only two organs of the Council, namely, the Committee of Ministers and the Consultative Assembly (today known as the Parliamentary Assembly of the Council of Europe, or 'PACE'). 130 Therefore, the ECtHR qualifies as a judicial organ of its own whose task is to 'ensure the observance of the engagements undertaken by the High Contracting Parties' (Article 19 ECHR). Hence, the situation of the ECtHR significantly differs from that of the CJEU, which, according to Article 13(1)(2) TEU, is an organ of the European Union, so judicial activities of the CJEU may be attributed to the Union. This difference raises concerns about the appropriateness of applying the ultra vires doctrine to an international court, such as the ECtHR, rather than to an international organisation.
Applying the ultra vires doctrine to judicial activities becomes even more dubious if we accept that the principle of conferral has close affinities to the difference made between an international organisation's primary and secondary law and that, in this context, it mainly relates to law-making activities. Under Article 38 § 1 (d) of the ICJ Statute, 131 decisions of international courts do not qualify as sources of law but as 'subsidiary means for the determination of rules of law'. This clearly reflects traditional Montesquieuan thinking, according to which judges are 'la bouche qui prononce la parole de la loi'. 132 Admittedly, from a methodological point of view, the understanding of judicial decisions as mere acts of cognition is challengeable. 133 Yet, political and judicial decision-making still differ insofar as judges, unlike legislators, must not decide according to their political preferences but have to base their judgments as far as possible on the law as it stands. 134 Given the fact that it is impossible to determine where precisely cognition ends, 135 it becomes difficult to address a court judgment as an independent piece of law-making. Judgments, seen from this perspective, have no legal existence separate from the law that they interpret.
Contrastingly, the Polish CT reproached the ECtHR for having created normative content that was previously inexistent. The gist of the argument is the (allegedly) law-making character of the ECtHR jurisprudence. Severing the normative content of an ECtHR judgment from the Convention itself allowed the CT to treat such 'judge-made norms' as separate legal acts and to activate the ultra vires doctrine on their behalf. It is submitted that this is a consequence of the CT's jurisdiction being restricted to the control of normative acts. 136 However, this approach appears to be flawed based on the reasons outlined above.
The principled resistance paradigm takes a different avenue. Although the 'international law related branch' of principled resistance contains an outright attack on the outcome of a particular ECtHR judgment -and in this regard, it has certain similarities with ultra vires -, the claim is not that this judgment is legally inexistent. Rather, the criticism is one in terms of methodology. It alleges that the ECtHR went too far with its evolutive interpretation and that, as a consequence, the judgment should not be adhered to. Under the 'national identity related branch' of principled resistance, Strasbourg judgments are not treated as legally inexistent, either. To the contrary, in those cases the ECtHR judgment is opposed by the imperatives of national (constitutional) law. So, while both principled resistance and ultra vires cases have certain similarities, the underlying assumptions are fundamentally different. It is one thing to accept the legal existence of a Strasbourg verdict and to call into question its binding force or to oppose it by norms of constitutional law. But it is a different thing to deny the legal existence of the judgment (or a legal norm contained therein) altogether. Consequently, principled resistance and ultra vires should be kept apart in terms of legal doctrine.
The problem with the CT's case law is that the Polish Tribunal, as we have seen in section IV. 2., mixed up principled resistance related arguments and ultra vires doctrine. On the one hand, the CT relied on the supremacy of the Polish Constitution (case K 6/21) and criticised the ECtHR for going beyond the obligations voluntarily undertaken by the Polish State (case K 7/21). On the other hand, it declared a particular Strasbourg judgment 'sententia non existens' (case P 7/20) or, alternatively, declared the legal norm as enunciated in a set of Strasbourg judgments legally invalid (case K 7/21). This confusion, however, does not call into question the fundamental differences between principled resistance and ultra vires. On the contrary, it can be seen as a proof of the usefulness of these doctrinal concepts in that they help us better understand existing analytical differences.

V. Conclusion
In its reaction to ECtHR judgments concerning the reform of the Polish judiciary, the CT used several arguments that had appeared before in the principled resistance context. What appears to be novel is the ultra vires type of argument, which to date was mainly related to the EU context. In turn, the CT introduced this type of argument into the Convention context, using it as a shelter against perceived undue interference into Polish sovereignty. In this context, the principled resistance paradigm not only proved a useful analytical pattern to detect different assumptions underlying ultra vires and principled resistance. With its concentration on cases leading to a permanent blockade of an ECtHR judgment, it also made clear that the ultra vires argument, despite its differences in background, has a potential to at least equate principled resistance. This is due to the directly confrontational gesture of the sententia non existens verdict and the 'black and white' nature of the ultra vires argument, which leaves no room for a legal compromise.
It is needless to say that this is an extremely dangerous development. The Convention system rests on the bona fide cooperation between national courts and the Human Rights Court in Strasbourg. Denying judgments of that Court any legal existence might easily lead to a spiral of mutual accusations and assaults, which is detrimental to the human rights protection in Europe. The pan-European dimension of this conflict has shown that, if at all, the solution can only be a pan-European one.