Nauki Humanistyczne i Społeczne

Polish Yearbook of International Law


Polish Yearbook of International Law | 2010 | No XXX |


This Article investigates how the European Court of Human Rights becomes competent to make decisions in cases concerning (or taking roots in) “historical situations” preceding the ratifi cation of the European Convention by a given Member State or even the enactment of the Convention. “Historical situations” refer to events that occurred in the period of Second World War or shortly thereafter. In all such cases, the preliminary question arises whether the Court is competent temporally (ratione temporis) to deal with the application. This group of cases concerned usually allegations touching upon the right to life and the right to property. The Court had to decide if the allegation in question related to a temporally closed event (making the Court not competent) or rather to a continuous violation (where the Court could adjudicate). A specifi c set of legal questions arose vis-à-vis the right to life, fi rst of all that of the autonomy of the procedural obligation to conduct an effi cient investigation. The Strasbourg case law did not provide a clear answer. However, following two crucial judgements rendered by the Grand Chamber, the Court has established an interesting legal framework. Article analyses also two other situations having a historical dimension: bringing to justice those accused of war crimes or other crimes under international law (in light of the alleged confl ict with the principle of nullum crimes sine lege) and pursuing authors of pro-Nazi statements or speech denying the reality of Nazi atrocities.
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Historic title is just one of many legal instruments which may be raised by parties and used by judges to decide a territorial dispute. If a claim of historic title in given circumstances may be deemed to have been extinguished as a result of its relative weakness, the elements advanced in support of its construction, for example uti possidetis or eff ective occupation, may be used to support other types of legal claims. Taking into account its construction and its systemic conditional criteria, historic title gains maximum eff ectiveness when conditions exist which would support a fi nding of its incremental consolidation. This involves a multi-dimensional interpretation in reliance on particular elements which, taken together, create a complicated factual state in a particular territorial dispute. On the other hand, consolidation of historic title is not an argument which can be used by the indigenous native inhabitants of a territory, since their arguments are not based on claims of sovereignty.
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Article 51 of the UN Charter, in affi rming the inherent right of self-defence of each UN Member State “against which an armed attack has occurred”, clearly indicates that the concept of armed attack plays a key role in delineating the right of self-defence. The concept in question was not, however, defi ned in the UN Charter, and no universally acceptable defi nition has yet emerged either in practice or in doctrine. One of the fundamental questions to be addressed in this context is who must engage in armed activity for it to qualify as an armed attack. This question is of particular relevance today because of the threat of international terrorism and the expansion of the concept of armed attack through the inclusion of an act of terrorism. The article discusses in some detail the emerging legal framework for attribution of actions undertaken by non-state actors to states.
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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


Cover designed by
Bogna Burska



Polish Yearbook of International Law
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