Humanities and Social Sciences

Polish Yearbook of International Law

Content

Polish Yearbook of International Law | 2016 | No XXXVI |

Abstract

In light of contemporary circumstances, on the 30th anniversary of the Nicaragua judgment it is worth revisiting and considering again certain legal problems decided by – and raised by – the ICJ judgment. This article addresses the importance of the judgment in terms of international legal regulations on the use of force. First and foremost, the article examines the concept of armed attack based on the “gravity” criterion elaborated by the Court and the exercise of the right of self-defence. Moreover, the relationship between customary international law and treaty law, as well as forcible counter-measures and military actions against non-State actors are also discussed in the article. It is argued that the “gravity” criterion used by the ICJ seems controversial and, consequently, may limit the right of self-defence. On the other hand, however, the judgment established a strong barrier to the realization of individual political interests by militarily powerful States. This is the Nicaragua judgment’s long-lasting legacy. In this sense the judgment has stood the test of time.
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Abstract

This article is referenced to the thirtieth anniversary of the ICJ’s Nicaragua judgement on the merits of 1986. It acknowledges the significance of this much-debated judgement for the modern international law on the use of force (jus ad bellum). However the text focuses on one aspect of the judgment only, i.e. the definition of the notion of “armed attack” as the most grave form of the use of force. The impact of the judgement in this respect is critically analysed. It is argued that the introduction to the UN Charter text of undefined notions of the use of force, aggression, and armed attack may be labelled as the “original sin” of contemporary jus ad bellum, as it results in conceptual obscurity. It is also claimed that the ICJ reaffirmed this original sin in its Nicaragua judgment because it explicitly argued for the notion of “armed attack” as the most grave form of the use of armed force and, in consequence, distinguished it from the other, lesser forms of the use of force, while failing to introduce any sort of clarity in the conceptual ambiguity of jus ad bellum. The article also offers some remarks de lege ferenda and suggests abandoning the gravity criterion, which would require abandoning the well-established judicial and doctrinal interpretation approaches to jus ad bellum.
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Abstract

This article explores the role of recognition in State creation. Basing on an analysis of relations between effectiveness and legality in the process of State creation, it claims that recognition is constitutive of statehood as a subject of international law. The research revolves around the following themes: the role of effectiveness criteria and the conditions of recognition set by international law, the existence of “statehood without effectiveness” in cases of limited effectiveness but general recognition, the study of acquisition of statehood as a process and the notion of collective recognition based on the cases of Kosovo and Palestine. The argumentation is also supported by the analysis of de facto entities and aspiring States in international practice. It draws on the distinction between legal non-recognition and political non-recognition as able to shed some light on the complexity of international practice in this area. The article concludes that recognition is a pre-requisite of statehood, an essential criterion that may overcome weak effectiveness in certain legal contexts, though not a lack of independence. Conversely, effectiveness of government authority over population and territory does not lead to statehood in the meaning of international law in the absence of international recognition.
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Abstract

The concept of family reunification is well established in contemporary migration laws, at both the national and international levels. Focusing on international and EU law, in this article I argue that while existing provisions on family reunification are formulated in neutral language, from the gender point of view the enforcement of these substantively neutral rules may, in certain situations, result in discrimination, or at least bring about negative consequences, with respect to women in cases both when they are the sponsors of migration or the bearers of consequences of male migration. Following presentation of the international legal framework on family reunification and the relevant international jurisprudence, I deal with some rather common aspects relating to the personal scope of family reunification regulations, covering only the issues of who can, and who cannot, join their family member(s)/sponsor(s) in a foreign country (i.e. the unmarried minor rule, excluded forms of marriages – polygamous and forced marriages - and age limits). Some procedural aspects of family reunification are then dealt with (waiting periods, delays in proceedings, and end of a relationship as a cause for termination of residence rights.). These issues are examined with respect to concerns that they may cause indirect, or even direct, gender discrimination in some cases, while in others they may affect women more negatively than men.
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Abstract

One of the direct results of the collapse of the former USSR was the emergence of centrifugal ethnic minority nationalisms, which posed a threat to the stability of the then newly-established (or restored in the case of the Baltic democracies) states. In this context, one of the mechanisms introduced by the leading elites in several countries (e.g. Latvia, Ukraine, Estonia, the Russian Federation) in order to address the minority diversity issue, ensure stability, and gain international support (in the case of the Baltic states) was a cultural autonomy scheme, which has its origins in the ideas of the late 19th century Austro-Marxist school of thought. This model was successfully implemented once in the past, in inter-war Estonia. However, its modern application, even in cases when it does not just remain on paper (such as in Latvia and Ukraine), seems to serve other motives (e.g. a restitutional framework in Estonia, control of the non-titular minority elites in Russia) rather than the satisfaction of minority cultural needs, thus making cultural autonomy a dead letter.
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Abstract

Despite the universal condemnation of torture, the prevention of appalling practices of ill-treatment has not been achieved in the 21st century. The repugnant practice persists and even increases because of the disingenuous interpretations of the definition of torture and the lack of effective enforcement mechanisms. Notwithstanding the cogency of the absolute and non-derogable prohibition of torture, particularly regarding the treatment of detainees, nowadays corporal punishment as a punitive measure is arguably a recurring phenomenon in several former British colonies and in States where the legal system is based on Islamic Sharia. While several legally binding universal and regional instruments prohibit torture in general terms, with no specific definition, the scope of the Convention against Torture definition was narrowed down by the lawful sanctions clause. The universality of the definition has been undermined by the inclusion of this clause, since different States have different practices when it comes to lawful and unlawful sanctions. The intractable problem of the interpretation of the definition by the State-Parties and the lack of effective control mechanisms has perennially posed the greatest challenge with respect to compliance with International Human Rights Law. In light of the above, this article seeks to critically dissect the lawful sanctions clause within the context of corporal punishment.
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Abstract

The principle of nullum crimen sine lege expresses an old idea that only the law can prescribe a particular act as punishable. It is commonly understood as a requirement of sufficient definiteness of an offence, in particular – of a statutory description of an offence before it has been committed (lex scripta, lex praevia), and of clarity and precision in criminal provisions so as to enable an individual to conform with them (lex certa), as well as their strict interpretation (lex stricta). Nowadays the principle is an internationally recognized human right to foreseeable criminalization, guaranteed by, inter alia, Article 7 of the European Convention on Human Rights. However, the European Court of Human Rights seems to formulate two slightly different requirements on its basis, namely that the application of criminal law must be foreseeable for an individual and coherent with the “essence of an offence”. One may question whether this can serve as an adequate “shield” from arbitrariness on the part of State authorities. Nevertheless, the core aim of such a flexible approach is not to promote legal security for potential perpetrators, but to achieve better protection of human rights in general.
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Abstract

The European Union is founded on a set of common principles of democracy, the rule of law, and fundamental rights, as enshrined in Article 2 of the Treaty on the European Union. Whereas future Member States are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise respect of these foundational principles after accession. This gap needs to be filled, since history proved that EU Member State governments’ adherence to foundational EU values cannot be taken for granted. Against this background this article assesses the need and possibilities for the establishment of an EU Scoreboard on EU values; viable strategies and procedures to regularly monitor all Member States’ compliance with the rule of law on an equal and objective basis; and the nature of effective and dissuasive sanction mechanisms foreseen for rule of law violators.
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Abstract

This article investigates two interesting phenomena which exist within the framework of the European Union (EU) integration process, i.e. “social dumping” and “letterbox companies”. Taking into account recent EU legislative changes and commentaries in the available legal literature, it contends that the EU’s institutions and its Member States are aware of some negative effects that these phenomena may have for attaining one of the EU’s basic aims, that of a “highly competitive social market economy”, as provided in Article 3(3) (ex 2, as amended) of the Treaty on the European Union. The EU should be understood as being not only focused on the implementation of the Internal Market freedoms, but also the protection of social rights. “Social dumping”, and to a certain extent also “letterbox companies”, reduce the level of this protection. Posting of workers is a good example of an EU integration area where “social dumping” and “letterbox companies” occur on a quite large scale and create some real practical problems. If we can clearly understand the concepts underlying these phenomena and their possible relationships, it would be easier to find a solution to reduce their negative effect on the protection of social rights. This article researches these issues and presents possible solutions to problems they give rise to.
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Abstract

One of the most significant changes in modern arbitration rules is the adoption of emergency arbitrator proceedings. These proceedings were introduced in order to provide a party in need of urgent interim measures before the constitution of an arbitral tribunal with an additional option besides going to state courts. In emergency arbitrator procedures such a party may seize an emergency arbitrator to grant the requested urgent relief. This article provides the Polish perspective on the effectiveness of emergency arbitrator proceedings, given that the Polish law is silent on the institution of emergency arbitrator and the possible recognition and enforcement of the decisions of an emergency arbitrator. The article analyses the Polish regulations on interim measures, together with their enforcement, by comparing the relationship, similarities and divergences between an arbitral tribunal, a state court, and an emergency arbitrator. This brings us to the conclusion that the existing legal framework as to the enforcement of interim measures issued by an arbitral tribunal provides a solid foundation for drawing an analogy to the recognition and enforcement of such orders granted by an emergency arbitrator. Thus, the provisions on enforcement of arbitral tribunal’s orders per analogiam allow for the recognition and enforcement of emergency arbitrators’ decisions on interim measures in Poland.
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Abstract

The Maritime Labour Convention (MLC 2006) entered into force in 2013. The MLC 2006 aims at creating a single, coherent global instrument, consolidating existing International Labour Organisation conventions, and as well constitutes one of the main international maritime instruments of the International Maritime Organization, together with the International Convention for the Safety of Life at Sea (SOLAS), the International Convention for the Prevention of Pollution From Ships (MARPOL) and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW). Seafarers are entitled to lodge complaints on board a ship in case of non-compliance with the legal standards, procedures, or guidelines set forth in the MLC 2006, including seafarers’ human rights. The complaint system must include safeguards against victimisation. In 2015, the regulations of the MLC 2006 were implemented into a new Polish Act on Maritime Labour (MLA 2015). One of the most innovative aspects of the MLA 2015, as far as ILO Conventions are concerned, is the certification of seafarers’ living and working conditions on board ships, regulated in Chapter 8 of the Act (entitled: MLC documents and inspections and controls of the ship), as well as the on-board complaint procedure described in a detailed manner in Chapter 9 of the new Act.
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Abstract

This article presents the Polish practice of promulgation of international agreements since the end of World War II. It shows that the practice is at variance with the law and makes it difficult to determine the current legal situation vis-à-vis international agreements in Poland. In the conclusions the author puts forward de lege ferenda proposals which could improve the Polish promulgation practice.
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Abstract

In its Judgment of 17 February 2016, the Polish Supreme Court adjudicated the case of Polish soldiers accused of crimes committed in the village of Nangar Khel in Afghanistan in 2007. Ultimately, the Supreme Court found that Polish soldiers were guilty of, inter alia, breach of Article 318 of the Polish Penal Code, which stipulates that a soldier commits a crime even when executing an order if he is aware of this crime. However, the part of the judgment devoted to the problem of unlawful orders is very limited and almost completely lacks references to international law. The Supreme Court could have referred to a number of international legal acts, starting from the beginning of 20th century and up to the more recent regulations, including those in the Rome Statute. Moreover, the Supreme Court did not use international case law. As a result, the argumentation of the Supreme Court should be assessed as limited and unconvincing.
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