Humanities and Social Sciences

Polish Yearbook of International Law

Content

Polish Yearbook of International Law | 2021 | No XLI

Authors and Affiliations

Karolina Wierczyńska
Łukasz Gruszczyński
ORCID: ORCID
Aleksandra Mężykowska
ORCID: ORCID
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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 1970 Warsaw Treaty lists a number of unilateral declarations, primarily on the part of the Federal Republic of Germany. Nowadays, in view of the fundamentally changed circumstances between Germany and Poland, these declarations no longer play a significant role. Nevertheless, it is interesting to dogmatically examine them, not only for legal historical reasons but also based on the acknowledged principle that the understanding of the present is always shaped by the past. This contribution aims to meet this challenge.
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Authors and Affiliations

Stefanie Schmahl
1

  1. Prof. Dr. Full Professor of German and foreign public law, public international law and European law, Julius-Maximilians-University of Würzburg (Germany)
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Abstract

This article explores whether the Federal Republic of Germany (FRG) is identical with pre-war Germany. The question is relevant for the understanding of the 1970 Treaty of Warsaw, because in the event it is identical, the FRG would be the predecessor State of Poland with regard to the former German territories east of the Oder-Neisse line and, therefore, competent to renounce any territorial title. By contrast, in the case of non-identity the FRG would only have been a third State with regard to these territories. However, even in case of identity, the scope of the Treaty of Warsaw seems ambiguous due to Allied reservations. Hence, it was wise to confirm the transfer of sovereignty in 1990.
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Authors and Affiliations

Robert Uerpmann-Wittzack
1
ORCID: ORCID

  1. Professor of Public and International Law, University of Regensburg
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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 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

This contribution discusses the unresolved claims of Poland and Germany arising from the destruction, removal, and appropriation of cultural property during and immediately following the Second World War; viewed against the background of the 50th anniversary of the 1970 Warsaw Treaty and the 30th anniversary of the 1990 2+4 Treaty. It provides an analysis of the extent to which these and other bilateral treaties between Germany and Poland impose legal obligations to restore or compensate for the destruction or loss of cultural property. Finally, it suggests pragmatic solutions to overcome the convoluted political, diplomatic and legal debates in the spirit of “cultural internationalism” and in line with the proposals of the Copernicus Group of Polish and German historians.
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Authors and Affiliations

Hans-Georg Dederer
1
ORCID: ORCID
Markus P. Beham
1
ORCID: ORCID

  1. University of Passau (Passau)
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Abstract

The essence of the “border problem” between Poland and the FRG reaches back to the provisions of the Potsdam Agreement of 1945. The Polish position was unambiguous from the beginning: the border on the Odra and Nysa Łużycka rivers was established under international law in the Potsdam Agreement, while the subsequent actions undertaken within the framework of the “peace settlement” could only have complementary, declaratory significance. On the other hand, in the FRG an official legal position was developed according to which the former eastern German territories were only given to Poland (and the USSR) “under their administration”, and the final decision on the border was left to be taken by the future unified Germany in a “peace treaty” or a “peace settlement”. This position was not changed by the Normalization Treaty between Poland and the FRG of 1970, because it was interpreted in the FRG as only a “treaty about the renunciation of force”, an element of a modus vivendi which was to last until the unification of Germany. On the other hand, the Zgorzelec Treaty of 1950 between Poland and the GDR was interpreted as not binding for the future unified Germany. Such a position deeply destabilized political relations between the FRG and Poland in the post-war period and had a conflict-generating significance in a number of areas. At the beginning of 1990 the political changes in Poland coincided with the process of German unification. The democratic opposition in Poland, and thereafter the government of Tadeusz Mazowiecki, unequivocally supported the right of the German people to self-determination, at the same time expecting an unequivocal position on the Polish-German border. This fundamental problem was closed in 1990 under two international agreements: the Treaty on the Final Settlement with Respect to Germany (2+4 Treaty) and the Treaty between the Federal Republic of Germany (united Germany) and the Republic of Poland on the confirmation of the border between them. Thus for thirty-plus years now the “border problem” has been removed from the agenda of political discussions in Polish-German relations, which proves the effectiveness and durability of the agreement reached, which was reflected in both treaties.
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Authors and Affiliations

Jan Barcz
1 2
ORCID: ORCID

  1. Professor of International Law and the Law of EU, Kozminski University (Warsaw)
  2. Member of the Team Europe (Poland) and the Conference of the Ambassadors of the Republic of Poland
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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 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

The aim of this article is to assess the military operation started on 24 February 2022 by Russia against Ukraine in light of the law on use of force, having in mind all the justifications officially expressed by Russian authorities and in light of international humanitarian law. The author claims that there is no justification for the Russian military action and thus it must be qualified as aggression. This, due to the serious violation of the peremptory norm, implies obligations on the part of states and international organizations (i.e. the international community). In addition, the current conduct of hostilities clearly shows that it is mainly Russian forces which neglect international humanitarian law principles, which might amount to war crimes.
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Authors and Affiliations

Patrycja Grzebyk
1
ORCID: ORCID

  1. Associate Professor (dr habil.), Faculty of Political Science and International Studies, University of Warsaw
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Abstract

In this article, I present a proposal for an international law-based formula for mediating territorial conflicts and apply it to the case of Crimea in Ukraine. Although the tragic Russian attack which commenced on 24 February 2022 has made the mediation even more difficult, once a ceasefire is achieved my formula is capable of providing legally solid compromises to the Ukrainian territorial questions that fit into the contemporary international legal framework concerning territory. Naturally, any realistic solution will require concessions on the part of all stakeholders (primarily Crimea, Ukraine, and Russia). In short, the formula offers for Ukraine the return of its territorial integrity, for Crimea internal self-determination in the form of a meaningful territorial autonomy, and for Russia a few indirect perks and guarantees, mostly related to a possible demilitarization of the Crimean Peninsula. The analysis can also be useful for Donbas, for which the formula offers recognition of some limited autonomous rights.
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Authors and Affiliations

Tero Lundstedt
1
ORCID: ORCID

  1. Ph.D., Research Affiliate, Erik Castrén Institute of International Law and Human Rights (Finland)
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Abstract

In the summer of 2021 deliberate actions by the Belarusian state authorities led to a huge increase of people irregularly crossing the border from Belarus to Poland. Instead of addressing this humanitarian crisis, the Polish government responded with actions that were in violation of its international obligations and domestic law. Among these measures was carrying out “pushbacks” and grounding them in Polish domestic law. “Pushbacks” are the practice of returning people to the border without assessing their individual situation. The formalization of those practices in 2021 was done within two legal frameworks; one interim and one permanent. They continue to function in parallel while containing different provisions. This article assesses the two frameworks’ compatibility with domestic and international law and concludes that they both violate domestic and international rules. In the context of EU law, the article demonstrates the incompatibility of the two frameworks with the so-called Asylum Procedures Directive and Return Directive. The article further argues that the pushbacks violate the European Convention of Human Rights and would not fall within the exceptions to the prohibition of collective expulsions.
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Authors and Affiliations

Grażyna Baranowska
1 2
ORCID: ORCID

  1. Assistant professor (dr.), Institute of Law Studies of the Polish Academy of Sciences (Warsaw)
  2. Marie Skłodowska-Curie Fellow at Hertie School
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Abstract

The Holocaust constitutes one of the most powerful symbols in the history of humankind. Its memory, and in particular its irrefutable relationship with anti-Semitism, should trigger strict scrutiny every time anti-Semitic attitudes re-emerge, even if disguised as seemingly harmless words or actions. This applies also to legal measures, neutral on their face but which, in their consequences, may have an adverse effect on Jews, and thus raise the suspicion of anti-Semitic implications. Such implications are visible in the recent phenomena that serve as the two case studies for the present article: boycotts of Israel and bans on ritual slaughter (Shechita). While in the case of anti- Israeli boycotts, the core arguments relate to international anti-discrimination law and policies, in relations to the Shechita bans claims about violation of the religious freedom of observant Jews prevail. At the same time, in both cases strong references to the Holocaust and the memory of its victims are being invoked, allowing one to raise objections as to the status of the relevant legal developments. Here again history and memory enter into the public and legal discussions, legislative processes, and courtrooms.
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Authors and Affiliations

Aleksandra Gliszczyńska-Grabias
1
ORCID: ORCID

  1. Assistant professor, Institute of Law Studies of the Polish Academy of Sciences (Warsaw)
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Abstract

This article focuses on the problems of jurisdiction in cross-border civil proceedings concerning an alleged violation of personality rights. There are no specific rules on jurisdiction for such torts in European Union law. In the current case law of the Court of Justice of the European Union (CJEU), Art. 7(2) of the Brussels I bis Regulation is applicable to such disputes. Nevertheless, the authors argue that the CJEU has misinterpreted this article when the claim is based on violation of personality rights, and has thus created a legal chaos in such disputes. The authors analyse the peculiarities of Internet infringements and the locus delicti connecting factor in the case law of the CJEU in this area. The Court has adopted the criterion of ‘centre of interests’ as the major connecting factor to establish international jurisdiction. The authors criticize this approach and argue that it has led to a structural misunderstanding of the infringement of personality rights. Finally, the authors propose a new rule on jurisdiction in cases concerning violation of personality rights, which should be established in the Brussels I bis Regulation to ensure legal certainty and proper international dispute settlement.
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Authors and Affiliations

Marek Świerczyński
1
ORCID: ORCID
Remigijus Jokubauskas
2
ORCID: ORCID

  1. Professor, Cardinal Stefan Wyszyński University (Warsaw)
  2. Associate Professor, Mykolas Romeris University (Vilnius)

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PYIL indexed in ERIH PLUS

The Polish Yearbook of International Law is pleased to announce that it has been accepted for indexing in the European Reference Index for the Humanities and the Social Sciences (ERIH PLUS). ERIH was initially created by the Science Foundation (ESF), which subsequently transferred the database to the Norwegian Centre for Research Data for the maintenance and operations. The name of the new database is ERIH PLUS.

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