Humanities and Social Sciences

Polish Yearbook of International Law

Content

Polish Yearbook of International Law | 2015 | No XXXV |

Abstract

This article provides an overview of the approach taken by the International Court of Justice and its predecessor, the Permanent Court of International Justice, to questions of municipal law. Beginning with an outline of the theoretical framework, it discusses the conventional position that domestic law is a factual issue for the Court, before considering the ways in which the two Courts have utilised municipal law. It also considers to what extent the Court employs domestic law in ascertaining international legal rules.
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Abstract

This article explores the legal principles that govern the interpretation of “secondary instruments” in international law. A “secondary instrument” under international law is, for the purposes of this article, a written document adopted by a body empowered by a treaty to take action with respect to the treaty, but which is not itself a treaty. Such instruments find increasing application in international law. The article specifically examines the interpretation of secondary instruments arising in five settings in international practice: the United Nations Security Council, the International Maritime Organization, the International Seabed Authority, the International Whaling Commission, and conferences/meetings of the parties under multilateral treaties. This selection of practice will serve to illustrate principles of interpretation across a range of international institutional settings for the purpose of determining the rights and obligations of state-parties to a treaty regime.
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Abstract

In the 21st century ageism is becoming the most widely spread phenomenon. It has become so extensive that presently many more seniors in Europe are exposed to ageism than other people to sexism or racism. Contrary to other vulnerable groups, the elderly do not enjoy any binding instrument that could protect them and their dignity against ageism in the same way that women and racial groups are protected against sexism and racism. Unfortunately, the UN General Assembly resolution, supposed to be a first step to drawing up such a convention, was adopted with a significant number of abstentions, leaving the fate of a potential treaty on the rights of the elderly uncertain. On the other hand, in 2014 the Committee of Ministers of the Council of Europe adopted a new recommendation, and in June 2015 members of the Organisation of American States adopted a treaty protecting the elder’s rights. Taking into account these new circumstances, the idea underlying this article is to investigate the ability of international instruments to limit ageism and protect older persons’ dignity, as well as to indicate existing gaps.
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Abstract

This article examines the recent developments in the prosecution of international crimes committed in the Palestinian Territory, focusing mainly on the role of the International Criminal Court. The author analyses the Palestinian accession to the Rome Statute and the declarations issued pursuant to Art. 12(3) in order to verify whether it is possible to bring justice to Palestine through the prosecution of atrocities committed by both parties. The article pays great attention to the most recent events, such as the Prosecutor’s report on the Mavi Marmara incident and the subsequent decision of the Pre-Trial Chamber. Issues related to the Palestinian statehood are taken in account in relation to the interplay between international criminal justice and the Israeli-Palestinian conflict.
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Abstract

This article is dedicated to the publications of the Russian legal scholars on the annexation of Crimea in 2014 or, according to the Russian version of the events “Crimea’s reunification with Russia.” Based on the factual circumstances of the case and the norms of Ukrainian constitutional law and international law, as well as modern approaches in international legal doctrine, the article analyses the key arguments of the Russian authorities and its legal scholarship, namely the following: 1) Russia’s use of force against Ukraine was necessary to defend Russian nationals and compatriots; 2) Russia’s use of force against Ukraine was a lawful response to the request for assistance by the legitimate leaders of Ukraine (V. Yanukovych) and Crimea (S. Aksyonov); 3) the events in Crimea were a secession, with the subsequent accession of the Republic of Crimea to the Russian Federation as an independent state; 4) Ukraine disregarded the principle of the equality and self-determination of peoples vis-à-vis the residents of Crimea, therefore, Crimeans had the right to secede; 5) Crimea is historically Russian; 6) Ukraine had been exercising peaceful annexation of the peninsula since 1991, and Russia did not object to this (subject to certain conditions, which Ukraine violated in 2014); 7) the transfer of Crimea to Ukraine in 1954 was illegal. This article evaluates whether these claims hold any weight under international law. In addition the general trends in contemporary Russian approaches to international law are outlined and their effects on its foreign policy are examined.
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Abstract

This article attempts to discover the key elements of the democratic principle, as described by the judges sitting in Luxembourg and Strasbourg, whose case law reveals the underlying idea of democracy at the supranational level. Until recently the debate on democracy was limited to the national level. But things are changing, and this article shows the gradual emergence of a process led by supranational courts, in which the application of the democratic principle finds multiple grades and variations. In this way the supranational/international courts have opened a new chapter in the process of constitutionalization of international law.
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Abstract

This article examines the process of the judicial Europeanization of the Polish Constitution. In Poland the judicial method of Europeanizing the Constitution is currently the primary way of adjusting constitutional norms to requirements resulting from EU law. The phenomenon of re-interpretation of constitutional provisions in light of the new and changing realities is a characteristic feature of contemporary constitutionalism. It has been a long time since most national constitutions have undergone significant textual changes. In Poland, the scope of judicial Europeanization of the Constitution is connected, to a great extent, with the inflexible procedure required for constitutional amendments. In this situation, these so-called “silent changes” of constitutional norms are the easiest and fastest way of reacting to requirements stemming from Poland’s EU membership. In the Polish case not only have the norms regarding the political system of the state changed, but also constitutional standards relating to the protection of fundamental rights and freedoms have undergone the process of the Europeanization. To some extent, these changes relate to procedural norms as well.
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Abstract

The judgments delivered by the European Court of Human Rights in Al-Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland highlight the potential tension that may arise between states’ broad reliance on national security grounds to withhold disclosure of secret files and compliance with their obligations under the European Convention on Human Rights. The present article examines the above-mentioned judgments, focusing, in particular, on how (and to what extent) the withholding of secret information may infringe on the right to the truth and, as far as proceedings before the European Court of Human Rights are concerned, the state’s duty to cooperate with it.
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Abstract

Global trade and intercontinental tourism are on the rise in today’s world. This, in turn, leads to more cross-border law suits. Inevitably, jurisdictions will be confronted with legal concepts that are unknown in the host forum. This contribution investigates whether, and to what extent, punitive damages judgments originating in the United States can be enforced against the assets of a defendant in a number of selected Member States of the EU. More specifically, the article explores the possibilities of enforcing American punitive damages judgments in five EU countries, namely Germany, Italy, Spain, France and England. This comparative analysis reveals that the case law in these selected countries is relatively divergent as to the stance adopted towards foreign punitive damages, resulting in different degrees of acceptance of this legal remedy.
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Abstract

The feature that most attracts private parties from different states to referring their dispute to an arbitral tribunal is the flexibility of the procedure. However, the differences between arbitration and court litigation are not only procedural, but they concern the substance of the parties’ cases. This is because in the realm of international arbitration the law applicable to the merits of the case is determined according to other provisions than the statutory conflict of laws rules. Depending on the arbitration law of the seat, the entire private international law statute can be captured in a single provision – “absent the parties’ choice, the arbitral tribunal shall apply the rules of law which it determines to be appropriate”. It follows that arbitral tribunals, unlike state courts, are not bound by the conflict of laws rules of the forum. What’s more, the merits of a dispute submitted to arbitration may be governed not only by some national body of law (e.g. the Polish Civil Code) but also by a non-state, nonnational set of provisions – “rules of law” (e.g. the UNIDROIT Principles of International Commercial Contracts). The aim of this article is to analyze how the parties and tribunals may make use of their autonomy in determining the law applicable to a dispute. Furthermore it examines whether there are any limits thereto in light of the Rome I Regulation.
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Abstract

The thrust of this article is to examine a contemporary international arbitration process in commercial and investment cases, specifically the interplay of common law and civil law elements in the taking of evidence. It begins with a survey of the provisions of the most popular international arbitration instruments, including international arbitration rules and IBA Rules on the Taking of Evidence in International Arbitration. Following the discussion of some relevant examples of international arbitration instruments, the author tries to answer the question whether these instruments, in their current form, support the popular thesis that the international arbitration process has become largely harmonized. In trying to verify this thesis, the article also goes beyond the text of international arbitration instruments and considers the influence of the cultural biases of international arbitration actors.
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Editorial office

Board of Editors
Władysław Czapliński (Editor-in-Chief)
Jan Barcz (Member)
Anna Wyrozumska (Member)
Karolina Wierczyńska (Specialist editor)
Łukasz Gruszczyński (Specialist editor)

 

International editor
Bart M.J. Szewczyk

 

Language editor
James Hartzell

 

Statistical editor
Wojciech Tomaszewski

 

Advisory Board
Maurizio Arcari
Louis Malmond
Jerzy Kranz
Andrzej Mączyński
Ernst-Ulrich Petersmann
Jerzy Poczobut
Pavel Sturma
Vilenas Vadapalas
Roman Wieruszewski
Jerzy Zajadło
Andreas Zimmermann

 

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Bogna Burska

 

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Polish Yearbook of International Law
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e-mail: pyil@inp.pan.pl
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