Humanities and Social Sciences

Polish Yearbook of International Law

Content

Polish Yearbook of International Law | 2020 | No XL |

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Abstract

Yearbooks of international law are publications common to many countries. The present contribution aims at presenting the argument that the yearbooks in the Visegrád countries play an extremely important role for the national academia and its identity and visibility in the globalized world. The argument is justified by an excursion to the common history of the academia in these countries, in particular during the years of communist régime and the transformation in the 1990s. The lack of specialized journals and other publications on international law in English, together with the internal and external stress on publication activities, makes them very precious.
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Authors and Affiliations

Pavel Šturma
1 2
ORCID: ORCID

  1. Professor and Head of the Department of International Law, Charles University Faculty of Law (Prague)
  2. Member of the UN International Law Commission
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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

The article concerns the obligations to negotiate and conclude agreements in good faith (pactum de negotiando and pactum de contrahendo), which are used in international legal practice to more efficiently settle disputes or negotiate new agreements in various areas of international law. These obligations, however, are sometimes mixed together and misunderstood. They also give rise to various interpretation disputes related to their existence as obligations and their content. The aim of the study is to show that these are not simple obligations, but bundles of obligations. Such perception of them makes it possible to distinguish both pacta and penetrate into their rich content, as well as to unequivocally apply to their performance the principle of performing international obligations in good faith (Art. 2(2) of the UN Charter), especially in the form of pacta sunt servanda (Art. 26 of the Vienna Convention on the Law of Treaties).
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Authors and Affiliations

Cezary Mik
1
ORCID: ORCID

  1. Professor, Cardinal Stefan Wyszynski University in Warsaw
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Abstract

Legal understandings of asylum vary and remain to a great extent ambiguous. This is because asylum takes different legal forms in different legal dimensions: general international law, international human rights law, EU law, and constitutional law. All the above-mentioned dimensions are strictly linked and combined. Yet the ways in which asylum has been addressed, especially in the doctrine, often overlook this complexity. This article is aimed at assessing the modern legal approaches to the institution of asylum in international, European, and domestic legal orders, with reference to the positions taken by the late Janusz Symonides and in this way commemorating his recent passing away.
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Authors and Affiliations

Michał Kowalski
1
ORCID: ORCID

  1. Associate Professor (dr. hab.), Department of Law and Administration, Jagiellonian University, Cracow
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Abstract

The present contribution pays tribute to the late Professor Janusz Symonides by examining the position of United Nations Security Council towards international terrorism. The analysis concentrates on how the phenomenon is perceived by the main political organ of the United Nations, and offers some cursory remarks on its reactions (both actual and potential).
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Authors and Affiliations

Bartłomiej Krzan
1
ORCID: ORCID

  1. Associate Professor (dr. hab.), Department of International Law, Faculty of Law, Administration and Economics, University of Wrocław
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Abstract

Among UN human rights treaty bodies that have the competence to examine inter-state communications, only the Committee on the Elimination of Racial Discrimination (CERD) has had the possibility to develop its case law in this regard (as of 2020). One of these cases – submitted by the State of Palestine against Israel – resulted in a controversy arising from the respondent state’s declaration excluding any treaty relations between Palestine and Israel, the latter considering the former “a non-recognized entity.” The present paper analyses the CERD’s decision of 12 December 2019 in which the Committee found that it had jurisdiction to hear the inter-state communication. The author argues that while invocation of the “special character” of human rights obligations constitutes a powerful argument in judicial discourse, this should not lead to (re)opening debates on self-contained regimes and alienating human rights treaties from the norms and principles of general international law. At the same time, there are also valid reasons to perceive the obligations enshrined in the ICERD as being of a specific and erga omnes character.
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Authors and Affiliations

Michał Balcerzak
1
ORCID: ORCID

  1. Associate Professor (dr. hab.), Nicolaus Copernicus University (Toruń, Poland)
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Abstract

This article discusses the development of international law concerning the underwater cultural heritage (UCh), with particular emphasis on the 2001 UNESCO Convention on the subject. It attempts to set out the main legal solutions adopted in the 2001 Convention. however, in order to achieve this aim, it traces the genesis of the Convention and identifies the problems which prompted UNESCO to initiate the negotiations that ultimately led to the adoption of the 2001 Convention. hence, before analysis of the UNESCO treaty it firstly describes the initial phase of the development of law regarding UCh, which was mostly based on the national laws of particular coastal States, as well as in some instances on the laws of salvage. Subsequently, the article turns to the discussion concerning the (in)famous two provisions of the UN Convention on the Law of the Sea (UNCLOS) dealing with archaeological objects, as well as the efforts that were undertaken within the framework of the Council of Europe to adopt a convention on UCh.
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Authors and Affiliations

Konrad Marciniak
1
ORCID: ORCID

  1. PhD, Director, Legal and Treaty Department, Ministry of Foreign Affairs of The Republic of Poland
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Abstract

This article examines the idea of cross-currents in international law, which was proposed almost a century ago by Ludwik Ehrlich. First the theoretical background of this idea is provided, with the focus on Albert Venn Dicey’s assumption that there are fundamental differences in public opinion influencing the legislative process. The development of the crosscurrents concept is given through the prism of the evolution of Ehrlich’s ideas. The article illustrates some aspects of his legal philosophy, which describe the scholar as broad-minded, innovative, and deep-thinking. Four dimensions of cross-currents in international law are discussed: (1) the existence of norms originating from different periods; (2) variations between states in their recognition and interpretation of them; (3) fulfillment of abstract norms; and (4) inconsistencies of theory and practice. They contribute to approximating a fully coherent international law serving as the ideal in comparison to a heterogeneous, contradictory, fragmented one, as is frequently observed at the present time. The idea of cross-currents might be helpful in accepting the view that some of the incompatibilities between the rules and principles of international law are inevitable and do not cause harm to international legality.
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Authors and Affiliations

Andrii Hachkevych
1
ORCID: ORCID

  1. Ph.D., Associate Professor of the Department of International Information, Lviv National Polytechnic University (Ukraine)
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Abstract

The COVID-19 pandemic, and pandemics in general, affect socioeconomically disadvantaged people more severely. This is due not only to their precarious living, health, and working conditions, but also to public actions and omissions. However, their plight remains mostly invisible to the public, governments, and legislators, which raises many questions regarding respect of their fundamental rights. In this contribution, I explore these questions in light of the European Convention on Human Rights (ECHR). On the basis of the corpus of literature in the field and the European Court of Human Rights (ECtHR) case law, I show that the Strasbourg Court has developed some protection for people in a precarious situation, especially under the prohibition of inhuman and degrading treatment and the right to private and family life. This case law is likely to be relevant to the protection of socioeconomically underprivileged people during pandemics. However, this protection is limited and imbued with pitfalls. Against this background, I show that there is an urgent need for practitioners and courts to explore an additional tool under the ECHR: the prohibition of discrimination on grounds of socioeconomic status. This tool can be used to tackle issues of misrecognition which particularly affect socioeconomically underprivileged people, who are more severely affected by public actions and omissions in the context of the current pandemic.
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Authors and Affiliations

Sarah Ganty
1 2 3 4
ORCID: ORCID

  1. J.S.D. candidate, Yale Law School (USA)
  2. FWO Postdoctoral Fellow, Ghent University (Belgium)
  3. Visiting Professor, Central European University (Austria)
  4. Facultés Universitaires Saint-Louis–Bruxelles (Belgium)
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Abstract

This article analyses the protection of stateless persons under the most recent case law of the European Court of Human Rights (i.e. Hoti v. Croatia and Sudita Keita v. Hungary). The article briefly discusses the phenomenon of statelessness and the basic mechanisms governing it, as well as the general standard for the application of Art. 8 of the European Convention on Human Rights in cases involving foreigners who are stateless. This is followed by a discussion of the aforementioned ECtHR judgments, highlighting their principal findings. Thereafter the impact of UN standards concerning stateless persons on the ECtHR’s reasoning is assessed (based on the UNHCR’s third-party intervention in Hoti), as well as the differences between the approaches taken by the Strasbourg Court and the UN Refugee Agency. Finally, the treatment of foreigners in the Polish legal system is examined, and the importance of the Hoti and Sudita Keita judgments to the potential improvement of the situation of stateless persons in Poland is assessed.
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Authors and Affiliations

Dorota Pudzianowska
1
ORCID: ORCID
Piotr Korzec
2
ORCID: ORCID

  1. Associate Professor of Law (dr hab.), Law and Administration Faculty, University of Warsaw
  2. Law and Administration Faculty, University of Warsaw
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Abstract

Over the last three years European Union (EU) law has experienced a veritable revolution triggered by the Court of Justice’s rethinking of the fundamental aspects underpinning both the EU’s competence to deal with Rule of Law matters (especially related to the independence and the irremovability of judges at the national level), and the substantive understanding of the key elements of the Rule of Law pertaining to the newly-found competence. An upgraded approach to interim relief in matters related to the Rule of Law completes the picture. As a result, EU law has gone through a profound transformation and the assumptions as to the perceived limits of its reach – insofar as the organization of the national judiciaries is concerned – no longer hold. However, there is also the opposite side to this “Rule of Law revolution.” While its effectiveness in terms of bringing recalcitrant Member States back on track has not been proven (and Poland and Hungary stand as valid reasons for doubts); the division of powers between the Member States and the EU has been altered forever. Rule of Law thus emerges as a successful pretext for a supranational powergrab in the context of EU federalism. The picture is further complicated by the fact that the substantive elements of the Rule of Law required by the Court of Justice of the European Union of the Member States’ judiciaries are seemingly perceived as inapplicable to the supranational level itself. These include structural independence from other branches of power and safeguards of the guarantees of irremovability and security of tenure of the members of the judiciaries. Taking all these elements into consideration, the glorious revolution appears to have triggered at least as many questions as it has provided answers, while being entirely unable to resolve the outstanding problems on the ground in the Member States experiencing significant backsliding in the areas of democracy and the Rule of Law.
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Authors and Affiliations

Dimitry Vladimirovich Kochenov
1 2 3
ORCID: ORCID

  1. CEU Democracy Institute, Budapest
  2. CEU Legal Studies Department, Vienna
  3. COMPAS Visiting Academic (Hilary term 2021), School of Anthropology, University of Oxford
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Abstract

Hardly any sector has been hit as hard by the COVID-19 pandemic as the air transport industry. As lockdown measures are lifted, a recovery phase begins that will shape the global economic landscape for the years to come. In this context this paper raises the question of whether the pre-existing EU instruments for subsidizing air operations – Startup aid and the Public Service Obligation – none of which was designed with economic recovery in mind – can be adapted to the new circumstances after the current ad hoc measures under the Temporary Framework have dried up. The hypothesis which is taken as a starting point is that the existing state aid toolbox has built-in deficiencies which are hampering recovery efforts. This paper therefore attempts to determine whether alternatives can be sought within the confines of the EU state aid law, and if so what such alternatives might be.
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Authors and Affiliations

Jakub Kociubiński
1
ORCID: ORCID

  1. Associate professor (dr. hab.), Faculty of Law, Administration and Economics, University of Wrocław
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Abstract

The relevant ruling concerns discrimination based on religion, in particular the question of the incompatibility of national legislation with EU Directive 2000/78. Following a short presentation of the factual background, the opinion of the Advocate General, and the judgment of the Court, the article offers comments on questions raised in the judgment, including the direct horizontal effect of the general principle of non-discrimination. In its previous case law the Court confirmed that the principle has “the horizontal exclusion effect.” However, in Cresco Investigation the question was whether it can be the source of rights for individuals. The ECJ adopted a firm approach, ruling that the general principle of non-discrimination as enshrined in Art. 21(1) of the Charter is sufficient in itself to confer rights on individuals which can be invoked in disputes with other private parties. This means that the Court recognised “the horizontal substitution effect” of the general principle of non-discrimination, which is connected with both setting aside any discriminatory provision of national law and applying to members of the disadvantaged group the same arrangements as those enjoyed by persons in the privileged category. The possible consequences of this approach are discussed in the article.
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Authors and Affiliations

Justyna Maliszewska-Nienartowicz
1
ORCID: ORCID

  1. Professor, Faculty of Political Science and Security Studies Chair of European Studies, Nicolaus Copernicus University (Poland)
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Abstract

This article discusses some recent developments in the US jurisprudence concerning state immunity. Some lower courts’ decisions handed down earlier suggested a more decisive departure from the rigid interpretation of the Foreign Sovereign Immunity Act (FSIA). If the US Supreme Court had accepted this new jurisprudential trend, it would possibly allow for carving out a partial acceptance of a human rights exception. However, the Supreme Court decided otherwise. In the recently handed-down decision in Germany et al. v. Philipp et al., the Justices rejected any innovations, unequivocally maintained the strict interpretation of FSIA §1603(a)(3), and by their direct reference to the International Court of Justice strengthened the existing status quo in international law as well. This note analyzes this decision’s possible consequences at the domestic and international levels. In conclusion, it seeks to place Germany vs. Philipp in a broader context. It suggests that it possibly reflects more general tendencies in the contemporary US jurisprudence, which can impact both the US domestic legal order and international law.
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Authors and Affiliations

Aleksander Gubrynowicz
1
ORCID: ORCID

  1. Assistant Professor (dr. habil.), Faculty of Law and Administration, University of Warsaw
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Abstract

This article proposes that the current Vietnamese conflict of law rules for tort actions, which presently use the place of damages rule to determine the applicable law (meaning applying the law of the jurisdiction where the damage occurred), should be supplemented with additional conflicts of law rules in order to address the problems presented by specific tort actions such as environmental pollution, product liability, intellectual property rights, and violations of competition rules. It is proposed that for these specific torts, the place of damages rule needs to be either replaced by other connecting factors, such as the place of acting or the rule of closest connection, or it has to be made more concrete. In other types of torts, the rule has to be rebuttable by the foreseeability defense or has to give way to a ubiquity rule granting the plaintiff the choice between the laws of the place of damage and the laws of the place of acting.
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Authors and Affiliations

Luong Duc Doan
1
ORCID: ORCID
Trinh Thi Hong Nguyen
2
ORCID: ORCID

  1. Associate Professor of Law, School of Law, Hue University (Vietnam)
  2. PhD, lecturer, School of Law, Hue University (Vietnam)
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Abstract

The case law of the CJEU dealing with the rule of law touches upon the question of execution of European Arrest Warrants (EAWs) issued by Polish courts. The year 2020 witnessed the second important judgment of the CJEU in this respect (the Dutch case). As in its 2018 predecessor (the Irish case), the CJEU excluded the possibility of overt denial of all EAWs issued by Polish courts. Instead it insists on a two-step examination, comprising not only a general evaluation but also the examination of the individual situation of a requested person. It remains to be seen whether this is a promise of armistice in the CJEU’s approach to Poland, although this is not believed by the author of the text.
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Authors and Affiliations

Przemysław Saganek
1
ORCID: ORCID

  1. Associate Professor (dr. hab.), Institute of Law Studies of the Polish Academy of Sciences, Warsaw
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Abstract

This article analyses the judgment of the Supreme Court of Poland of 25 June 2020, in which the Court refused to recognise registered mail receipt forms issued by the authorities of the so-called Turkish Republic of Northern Cyprus (TRNC) as foreign official documents, despite the Public Prosecutor General and the claimant arguing to the contrary. The text attempts to show that the ruling is consistent with earlier Polish practice and the majority view in domestic literature. Still, the international jurisprudence shows that there is no clear rule of public international law that would make non-recognition of documents absolutely mandatory in such cases, and some exceptions could even support their recognition under special circumstances. Also, in similar cases foreign national courts do not always refuse recognition.
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Authors and Affiliations

Szymon Zaręba
1
ORCID: ORCID

  1. Assistant Professor, Institute of Law Studies, Polish Academy of Sciences, Warsaw

Authors and Affiliations

Hanna Schreiber
1
ORCID: ORCID

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

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Additional info

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.

The inclusion of the Polish Yearbook of International Law in the ERIH PLUS demonstrates our continuous dedication to providing high quality content to our readers.

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