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Number of results: 18
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Abstract

This article analyses the practice of the Polish administrative courts with respect to application of the Vienna Convention on the Law of Treaties, based on a case study of the judgment of the Voivodship Administrative Court in Warsaw of 6 May 2014 (case no. II SA/Wa 117/14), which concerned the recognition of distance learning degrees awarded by Ukrainian universities pursuant to the 1972 Prague Convention. It is argued herein that the reasoning of the court suffers from four major drawbacks: 1) it is at variance with the text, object and purpose of the Prague Convention; 2) it does not take into account the practice in the application of that treaty; 3) it misinterprets the silence of the preparatory work to the Prague Convention on certain issues; and 4) it is inconsistent with international judicial decisions as regards the interpretation of the “special meaning” of one of the terms used in the Convention.
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Authors and Affiliations

Szymon Zaręba
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Abstract

The article takes the renewed demands of the Polish government as an opportunity to examine the question of whether Germany is obliged to pay reparations to Poland. Based on an analysis of the international agreements concluded since 1945, it can be shown that the Polish government’s demands on Germany are unfounded.
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Authors and Affiliations

Stephan Hobe
1

  1. Professor, Dr. h.c., Director of the Institute for Air Law, Space Law and Cyber Law, University of Cologne (Cologne)
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Abstract

The judgment of the Court of Justice in the Achmea case evoked significant repercussions regarding the application and operation of the bilateral investment treaties (BITs) concluded between EU Member States. As a result of this decision, EU Member States have decided to terminate almost 190 intra-EU BITs. Nevertheless, full implementation of the Achmea judgment remains a complex issue, entangled in political and legal controversies concerning intra-EU BITs which have been present for more than a decade. On a more general level, the implementation process is simultaneously entwined in two other significant debates: the specifics of the rights of investors, and the relationship between EU law and international law.

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Authors and Affiliations

Łukasz Kułaga
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Abstract

The present article combines some reflections on the late Prof. Janusz Symonides’ most interesting book on the concept and role of effectiveness in international law (Zasada efektywności w prawie międzynarodowym, UMK, Toruń: 1967), with reflection over the anniversaries of the most important Polish-German treaties which not only constituted the basis for bilateral relations between Poland and Germany, but were also of importance for East-West relations. The analysis that follows deals mostly with the significance of effectiveness in the context of boundaries and their recognition, as well as with nationality. The article shows that most of the concepts and ideas of Prof. Symonides still remain actual today.
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Authors and Affiliations

Władysław Czapliński
1
ORCID: ORCID

  1. Professor, Institute of Law Studies, Polish Academy of Sciences
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Abstract

This article analyses the capacity of the African Charter on Democracy, Elections and Governance to counteract the democratic governance shortfall. It argues that the tangible impact of the treaty on the states’ practice has been limited by various endogenous and exogenous factors. The former are identified as directly linked to content of the document and refer to the accuracy of the drafting. The latter are rooted outside the text and beyond the character of the Charter and include issues relating to the states’ reluctance to ratify the document, certain constitutional constraints undermining implementation on the national level, and the weak international guarantees of enforcement.

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Authors and Affiliations

Jan Marek Wasiński
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Abstract

The paper presents the comments of English, French, German, and Russian-language press, published in countries ranging from the USA to Soviet Russia, on the events in future Polish Second Republic between November 1918 till February 1919. The press certainly is not the ideal source to reconstruct the origins of reborn Poland. However, the press coverage reveals the stereotypes, misconceptions, impressions, and convictions of the authors, the expression of editors’ political line, sometimes even the governments of relevant countries. Alternatively, the press coverage reveals the lack of knowledge on the part of the above. “Old” Europe was wary of a new country, that was to emerge on the map of the continent. Simultaneously, some were seeing Poland as an important chain in the anti-Bolshevik cordon sanitaire. Most importantly, however, the contemporary press coverage reveals the lack of awareness of the basic political mechanisms and identity problems present in the lands of the emerging Polish Republic.

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Authors and Affiliations

Włodzimierz Borodziej
Bartłomiej Gajos
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Abstract

The aim of this study is to analyse the geopolitical position of independent Poland after World War I and the state of her relations with neighbour states, and the policy of building alliances with France and Romania. In view of border conflicts with Lithuania and Czechoslovakia as well as the constant German and Soviet threat, the reborn Polish state was forced to seek for allies in the West. The alliances with France and Romania could not however reduce the danger for Poland emerging from Soviet-German cooperation basing on the treaty of Rapallo from 1922. Also the treaty of Locarno from 1925 in which Polish borders were left without guarantee was seen as a failure of Polish diplomacy. The inconvenient geopolitical position of Poland, and the aggressive policy of the Third Reich and the Soviet Union resulted in the Hitler-Stalin Pact from 23rd of August 1939 and the partition of Poland.

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Authors and Affiliations

Jacek Tebinka
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Abstract

In addition to establishing an exclusive governance system in a vast area of the earth, The Antarctic Treaty is of great importance also in terms of aiming to keep a region away from military activities. In order to carry Antarctica’s dedication to peace and science to future generations, it is necessary to avoid the militarization of the Continent. However, factors such as the ever-growing need for the Continent’s resources, increasing human activities in the Continent due to global warming, and the advancing use of dual-use scientific/military equipment due to technological developments pose a danger as the militarization of the Continent and the Southern Ocean. In this study, the risk of the recent activities of the parties to create a security dilemma and the potential of the security dilemma to increase the Continent’s militarization are analysed.
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Authors and Affiliations

Ferhat Kökyay
1
ORCID: ORCID

  1. Nişantaşı University, Faculty of Economics, Administrative and Social Sciences, 34485, Maslak-İstanbul, Turkey
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Abstract

Law is grounded in time and is constantly shaped by historical circumstances. Treaties, produced by voluntary acts at a given point in time, remain generally in force without a formal endpoint, while customary law arises from practice and lacks specific points of departure and conclusion. Through the practice of their application, both treaties and customary law may change their content and meaning to a far greater extent than domestic rules. Generally, international law resists retroactive application. However the recognition of sovereign equality to all States in the process of decolonization represents an example of profound change. While the problems deriving from armed conflict and former colonial domination must be assessed by the standards of their epoch and not by having recourse to the rules and principles of our time, at the same time it must be borne in mind that many of the acts considered perfectly lawful when they occurred were marred by deep injustices, producing effects which need to be addressed by the law of our time.
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Authors and Affiliations

Christian Tomuschat
1

  1. Professor emeritus. Dr.-Dr. h.c. mult. (Zürich and Tartu), Humboldt University Berlin, Faulty of Law
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Abstract

The Western boundary of Poland was established by the Potsdam Agreement of 1945 and confirmed by the Boundary Agreement between Poland and the GDR of Gőrlitz of 1950. Poland exercised administration with respect to the adjudicated territories, but she made efforts to get the boundary recognized and confirmed by the FRG. This happened on the basis of the Warsaw Treaty of 1970. Boundary treaties are usually considered as objective regimes. It is disputable whether the Warsaw Treaty of 1970 can be classified as such a regime.
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Authors and Affiliations

Władysław Czapliński
1
ORCID: ORCID

  1. Professor, Institute of Law Studies, Polish Academy of Sciences (Warsaw)
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Abstract

The anniversaries of the 1970 Warsaw and the 1990 2+4 Treaties give occasion to revisit the matter of minority protection in German-Polish relations. The interwar system established a problematic unevenness that tainted its acceptance, particularly from the Polish perspective. After 1990 the minority issues achieved an increased, albeit moderate, relevance in German-Polish relations. To some extent the 1991 Polish-German Treaty on Good Neighbourly Relations and Friendly Co-operation retains the unevenness of the inter-war period, as Art. 20(1) recognizes a German minority in Poland, but refuses to acknowledge a Polish minority in Germany. However, currently the thorniest issues concern various situations related to the “Silesians” in Poland, which the Polish government does not recognize as a protected minority under the European Council Framework Convention for the Protection of National Minorities.
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Authors and Affiliations

Andreas Kulick
1 2

  1. Dr. iur. habil., Senior Research Fellow, Eberhard Karls University Tübingen
  2. Visiting Professor, University of Potsdam
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Abstract

The European integration process is currently faced with a notable dilemma: While the need for new impetus and for far-reaching reform is widely felt, there is not only widespread resistance to any meaningful institutional reform but there is also a dearth of really innovative ideas. Europe is in danger of losing out with its citizens, who should have become its very foundation, in contrast to the early years when this integration process was mainly state driven. European institutions have tried to oppose this trend by organizing a grass-roots process for collecting ideas for reform. The results of the “Conference on the Future of Europe” were, however, not really convincing. This contribution attempts to examine the reform impulse coming from literature – in particular Ferdinand von Schirach’s “Jeder Mensch” – for its suitability to make a meaningful contribution to this discussion. It will be shown that one of his proposals – contained in Art. 6 of this booklet and proposing a right of the individual to bring fundamental rights claims directly before the Court of Justice of the European Union, deserves particular attention.
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Authors and Affiliations

Peter Hilpold
1
ORCID: ORCID
Julia Waibl
2

  1. European Law and Comparative Public Law at theUniversity of Innsbruck
  2. Regional Court of Innsbruck (Austria)
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Abstract

This article examines the role of environmental human rights and the rights of nature in the era of the Anthropocene. The research question is whether the concept of the Anthropocene itself is a constructive remedy for the ecological destruction.
The United Nations General Assembly resolution acknowledging a universal human right to clean environment is a ground-breaking event in a long process of the creation of such a right. This article examines the status quo of this right at present, both generally and in regional human rights treaties, as well as in the relevant case law and literature. The rights of nature are also examined, as they have become a very topical issue in light of the recent decision of the Conference of the Parties of the Convention on Biological Diversity, which expressly grants such a right. The question which may be posed is whether the approach adopted by the Anthropocene – which treats all actors equally – reflects the reality. The Western (Global North) approaches to the destruction of the Earth are contested by the Global South. The fractured approaches (by both the Global South and the Global North) to the decline of the environment may render questionable the suitability of the Anthropocene paradigm.
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Authors and Affiliations

Malgosia Fitzmaurice
1
ORCID: ORCID

  1. Public International Law, Queen Mary University of London
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Abstract

Ukraine, upon giving up the nuclear arsenal left on its territory by the USSR, entered in 1994 into a Memorandum on Security Assurances with the United Kingdom, United States and Russian Federation (Budapest Memorandum). Since the crisis began between the Russian Federation and Ukraine in February 2014, a number of States have invoked the Budapest Memorandum. Unclear, however, is whether this instrument constituted legal obligations among its Parties or, instead, is a political declaration having no legal effect. The distinction between political instruments and legal instruments is a recurring question in inter-State relations and claims practice. The present article considers the Budapest Memorandum in light of the question of general legal interest – namely, how do we distinguish between the legal and the political instrument?
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Authors and Affiliations

Thomas D. Grant
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Abstract

The issue of war reparations was a subject of controversy in Polish-German relations for a long time. This was due to the position of the Federal Republic of Germany that this issue had been deferred to the moment of German unification. The German concept of reparations also included the individual claims of Polish victims of National Socialism (Nazism). The case for interstate reparations from Germany to Poland was closed as a result of the Polish waiver of 1953, while the issue of individual compensation for Polish victims was symbolically resolved as a result of agreements between Poland and the Federal Republic of Germany only in 1990 and 2000. The scope and amount of any new payments depends on the agreements of particular countries or organizations with the Federal Republic of Germany. As long as the victims are still alive, new pragmatic solutions should not be ruled out.
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Authors and Affiliations

Jerzy Kranz
1 2

  1. Kozminski University (Warsaw)
  2. former ambassador in Germany and Undersecretaryof State at the Ministry of Foreign Affairs
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Abstract

Post-Versailles Europe saw the emergence of new, quasi-state territorial corporations (enjoying a great deal of autonomy, but not sovereignty). These included the Free State of Fiume/Rijeka (1919- 1924), Free City of Danzig/Gdańsk (1920-1939), Free State of Memel/ Klaipeda (which emerged between 1920 and 1923, before being incorporated into Lithuania with partial autonomy still remaining), as well as, slightly later, the autonomous Åland Islands (1922), and the Republic of Hatay (1938-1939). In theory, those international law constructs were supposed to resolve tensions (including those erupting on the grounds of nationality) between neighbours vying for control over strategic territories (and cities). However, they proved to primarily spark new conflicts of varying length. The article constitutes an attempt at comparing the geneses and development of the first three of the abovementioned “free cities”, as well as identifying their role in the newly-formed League of Nations. In addition, the article attempts to determine the degree to which the principle of national self-determination played a role in the establishment of these entities, as well as the methods used to ensure that the national minorities which found themselves within the borders of these “free cities” were protected.

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Authors and Affiliations

Jan Daniluk
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Abstract

During the Russian-Polish negotiations at the end of 1671 – the beginning of 1672, several Russian memorandums were handed over to Polish-Lithuanian diplomats. All these original documents are preserved in the Library of the Polish Academy of Sciences in Kórnik, Poland, and are studied as some of the most important forms of diplomatic communications between the Muscovite State and the Polish-Lithuanian Commonwealth. The memorandums clearly reveal the Muscovite diplomatic tactic against the Polish-Lithuanian side. They focus on the main problems of Russian- Polish relationships such as the transfer of Kiev from Russia to Poland (which had to be fulfilled in 1669 but which has never been executed), the policy towards the right-bank Ukraine hetman Piotr Doroshenko, who pledged his allegiance to the Ottoman sultan, the attack of the left-bank Ukrainian Cossacks (who were under the Thar’s rule) on the Lithuanian borderlands, and the implementing of the previous Russian-Polish anti-Ottoman treaty of 1667. It can be supposed also that the diplomatic form of the memorandum itself was borrowed by the Russian Foreign Office from the Polish-Lithuanian diplomatic tradition.

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Authors and Affiliations

Kirył Koczegarow
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Abstract

This article is devoted to a diplomatic (formal) analysis of 13 documents, including 12 originals issued by Russian tsars between 1576 and 1707, which are kept at the Kórnik Library. Among them, there are two original letters by Tsar Michael of Russia dating to 1634 and 1645 and four documents by Tsar Alexis of Russia from 1645 and 1668–1669. The collection also includes Peter the Great’s mandate of 1707 given to Russian negotiators for talks with representatives of the Sandomierz confederation, two extremely interesting documents (in the form of scrolls) of border-related negotiations dating to 1634 and 1645, as well as a notebook of 40 pages containing the Russian party’s proposals presented to Polish envoys during negotiations in Moscow at the turn of 1671 and 1672. The article is enriched with an analysis of the content of four well-preserved tsar’s seals applied to the documents in question.

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Authors and Affiliations

Krzysztof Pietkiewicz
ORCID: ORCID

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