Humanities and Social Sciences

Polish Yearbook of International Law

Content

Polish Yearbook of International Law | 2022 | No XLII

Authors and Affiliations

Karolina Wierczyńska
Łukasz Gruszczyński
Aleksandra Mężykowska
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Abstract

Following the so-called “special military operation”, which was in fact an open aggression against Ukraine, Russia was expelled from the Council of Europe. This step has significant legal consequences, including for the jurisdiction of the European Court of Human Rights. Meanwhile, many individual applications were filed with the Court, and Ukraine brought an inter-State complaint against Russia. Ukraine has also triggered the International Court of Justice. The Court has already ordered provisional measures. The ICC Prosecutor has launched an investigation into the most serious international crimes, war crimes, crimes against humanity, and genocide in Ukraine and delivered arrest warrants against the Russian President and his Commissioner for Children’s Rights. There is a serious discussion going on concerning the establishment of a special tribunal for the crime of aggression. This text deals with some aspects of the Russian “special military operation” cases before international courts. It attempts to identify what role the international courts may play in the new phase of the conflict in Ukraine and the extent and effect of their intervention, given the jurisdictional limitations and the inability to enforce judgments.
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Authors and Affiliations

Anna Wyrozumska
1
ORCID: ORCID

  1. Faculty of Law and Administration, University of Łódź (Poland)
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Abstract

Is the confrontation in Ukraine Putin’s war, or also that of the Russian nation? Can the crimes of the Russian state be hidden in the shadows of Tolstoy or Tchaikovsky?
This article distinguishes between the guilt or responsibility of individuals (criminal, political, moral); the international legal responsibility of states; and finally the political, moral, and historical responsibility of nations. In the legal or moral sense, guilt must be individualized. However, the extralegal (political, moral and historical) responsibility (not regulated by law) affects the whole nation and concerns responsibility both for the past and for the future. Nevertheless, if the nation is deemed entirely responsible for the actions of the state or of some national groups, it is not about attributing guilt to the whole nation, but about the collective recovery of the sense of humanity.
Thus, suggesting the guilt of the entire nation is based on a misunderstanding. But if the responsibility does not imply guilt, neither does the lack of guilt imply the lack of responsibility. By definition, the moral and political responsibility of the nation does not take a legal (judicial) form. Other forms and instruments are applicable here. In this context such terms as regrets, forgiveness, shame, apologies, or reconciliation appear. Such actions, based on fundamental values, require political courage, wisdom, and far-sightedness.
The passivity of the social environment favours the perpetrators of crimes. but does not release the other members of the nation from moral responsibility, and in particular from the obligation to distinguish good from evil. Not all Russians are guilty of crimes, but they all (whether guilty or innocent) bear some moral and political responsibility.
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Authors and Affiliations

Jerzy Kranz
1

  1. Kozminski University
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Abstract

The Russian aggression against Ukraine is heavily influenced by the memory of World War II (WWII), used by the Russian Federation as a consolidation tool to mobilise Russian society for the fight against a “neo-Nazi Ukraine”. Since 2014 Russia has adopted a set of legislative initiatives aiming to preserve a government-prescribed narrative about the exceptionally heroic role of the USSR in WWII and prohibiting any other interpretation under the threat of criminal and administrative sanctions. Both laws are using the decision of the International Military Tribunal (IMT) as a reference point to justify and legally substantiate such an interpretation, as the USSR was one of “victorious” nations which rendered justice against the Nazis in 1946. This article aims to show how the IMT rulings have been turned into an instrument of Russian propaganda and which lessons can be learned for the future of international tribunals, as well as examines the overall Ukrainian quest for Russian accountability.
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Authors and Affiliations

Anastasiia Vorobiova
1 2
ORCID: ORCID

  1. Poznań Human Rights Centre
  2. Institute of Legal Studies of the Polish Academy of Sciences
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Abstract

The international community has repeatedly committed to the implementation of the Women, Peace and Security Agenda (WPS) initiated by UN Security Council Resolution 1325. Yet progress on the ground has been slow and sporadic, which can also be seen in the Ukrainian peace process starting from 2014. This article looks at the different areas of inclusion of women in both policy and practice, in order to highlight the existing discrepancies and draw attention to the need to improve the international community’s approach to inclusion. The role of the different international actors (e.g. UN, EU, NATO, OSCE) is assessed in terms of their contribution to or emphasis on the need for inclusion. The article also aims to illustrate how international law and policy can be utilised by civil society activists in order to implement inclusion in practice, thereby highlighting the potential for international legal norms to positively impact enhancement of the position of women in (post)conflict situations around the world.
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Authors and Affiliations

Tiina Pajuste
1
ORCID: ORCID
Julia Vassileva
1

  1. School of Governance, Law and Society, Tallinn University (Estonia)
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Abstract

On 19 March 2019 the European Union (EU) adopted the Regulation establishing a framework for the screening of foreign direct investments into the EU (the “Regulation”). Four years later, the geopolitical situation changed completely as a result of the Russian aggression against Ukraine. Since February 2022 the EU has successively expanded its sanctions imposed against Russia. In parallel – on 6 April 2022 – the European Commission published the Guidance to the Member States concerning foreign direct investment from Russia and Belarus in view of the military aggression against Ukraine and the restrictive measures laid down in recent Council Regulations on sanctions.
The aim of the article is to draw attention to selected aspects of the Regulation which may be relevant in face of the threats to the European and national security and public order posed by the actions of the regimes of Russia and Belarus, following the invasion of Ukraine. In the perspective of the ongoing war in Ukraine, the issues discussed in this article may be points that are worth considering when amending the Regulation in view of the announced revision of the Regulation in Autumn 2023.
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Authors and Affiliations

Dominika Pietkun
1 2
ORCID: ORCID

  1. CMS Cameron McKenna Nabarro Olswang Pośniak i Bejm sp.k.
  2. Legal Doctoral Seminars at the PAS Institute of Legal Sciences
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Abstract

This article seeks to answer the question of how international criminal law (ICL), the 1971 Montreal Convention, and international humanitarian law (IHL) influenced the proceedings in the MH-17 case, with particular emphasis on the Dutch Prosecutors’ line of reasoning in proceedings before the District Court in The Hague (DCiTH), as well as on the judgments that the DCiTH delivered on 17 November 2022. Notably, the analysis below aims to establish whether, by refusing to grant combatant status to the defendants, the District Court acted within the limits permissible under international law, even though this Court admitted that at the moment of the MH-17’s downing, the nature of the conflict in Eastern Ukraine was an international, not a non-international, one. In conclusion, the article argues that, firstly, even though the DCiTH’s interpretation of the IHL is not free of certain flaws, the Court’s line of reasoning and the sentences it delivered are a pragmatic attempt to bridge the gap between the proper administration of justice and the efficiency of criminal proceedings in a case where an airplane downing takes place during an international armed conflict. Secondly, although most recently the European Court on Human Rights (ECtHR) took note of the MH-17 judgments, for the reasons explained in this article the scope of their potential impact on the further development of international and domestic jurisprudence is uncertain, and remains to be seen.
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Authors and Affiliations

Aleksander Gubrynowicz
1
ORCID: ORCID

  1. Faculty of Law and Administration, University of Warsaw
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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

This article addresses the legal aspects of assessing the age of foreign minors. It is a juxtaposition of the development of international legal standards in this area with the law and practice of the Polish authorities. The basic thesis of this analysis is the statement that Polish law in its current form requires fundamental change with respect to at least three elements. First, it is necessary to extend the methods of age assessment to also include non-medical methods. Secondly, the law should clearly define the legal form in which the age of a foreigner is determined and, at the same time, impose an obligation to provide a foreigner with the results of the assessment. Thirdly, a person concerned should have a direct opportunity to appeal.
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Authors and Affiliations

Joanna Markiewicz-Stanny
1

  1. Institute for Legal Studies, University of Zielona Góra (Poland)
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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

One of the major conflicts between populist and non-populist forces (movements, parties, governments) as well as the European Union (EU) institutions has manifested in the area of immigration policy. This article investigates how the influx of migrants in 2015-2016 was subsequently used by populists as a policy conflict ground within the EU. In this context, it particularly looks at how the problem of migration was framed and map the policy responses in the selected EU Member States. The article covers the 2015-2018 period and includes the following countries: France, Germany, Greece, Italy, Hungary, and Poland.
The article observes that the 2015-2016 migration crisis and the response to it led to (or reinvigorated existing) politicisation of the topic across the EU, forcing the parties from all sides of the political spectrum to take a position on it. Simultaneously, one may also observe a process of securitisation of migration in the political debate in all analysed countries. Irregular migration was construed as a security threat by many political parties and leaders, requiring emergency measures and justifying actions outside the normal bounds of political and legal procedures. While the securitisation strategy was most visible in the discourse of the right-wing populist parties, its elements were progressively taken by the mainstream parties, arguably in response to increased salience of the issue.
The article also finds a correlation between the ideological profile of the parties and their approach to the migration crisis and the proposed EU response. All the parties located close to the right extreme tended to take a strong anti-immigration and anti-EU stance. All of them also ranked high in the populist index. On the other hand, the populist parties located on the left side or in the centre of the political spectrum took a moderate stance on this issue.
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Authors and Affiliations

Łukasz Gruszczyński
1 2
ORCID: ORCID
Réka Friedery
2
ORCID: ORCID

  1. Kozminski University (Poland)
  2. HUN-REN Centre for Social Sciences, MTA Centre of Excellence (Hungary)
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Abstract

In March 2022, the European Commission presented its long-awaited legislative proposal on the EU-wide human rights and environmental due diligence (HREDD) for business. This article argues that the proposed Directive fails to be an effective and innovative legislation in three respects. Firstly, it does not draw lessons from the shortcomings of the to-date regulatory policy relating to business and human rights. It mainly consolidates at the EU level the status quo of extant due diligence legislation in Europe. Secondly, the proposal falls short of the established international standards and its own objectives insofar as it fails to establish instruments for effectively preventing and remedying human rights and environmental harm. Thirdly, the proposal’s normative preference for process- (rather than result-) oriented HREDD risks reducing it to yet another compliance instrument. Beside amending these shortcomings, to achieve a breakthrough, the upcoming legislation should in any case define HREDD as the legal standard of care; the compliance with which does not per se exclude civil liability. The general negotiation approach of the Council is not proposing much improvement in that regard. The stakes for the European Parliament’s possible role to raise the bar are thus very high.
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Authors and Affiliations

Izabela Jędrzejowska-Schiffauer
1
ORCID: ORCID
Łukasz Szoszkiewicz
1
ORCID: ORCID
Joseph Wilde-Ramsing
2
Katharine Booth
3
ORCID: ORCID
Pauline Barraud de Lagerie
4
ORCID: ORCID
Beata Faracik
5
ORCID: ORCID

  1. Faculty of Law and Administration, Adam Mickiewicz University
  2. Centre for Research on Multinational Enterprises (SOMO) in Amsterdam
  3. Centre for Research on Multinational Enterprises (SOMO) and Researcher/Policy Advisor at OECD Watch in Amsterdam
  4. PSL University
  5. BHR expert, Co-founder and President of the board of the Polish Institute of Human Rights and Business
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Abstract

On 24 February 2022 an unprovoked Russia attacked Ukraine, causing a mass movement of displaced persons fleeing Ukraine and in need of international protection. On 4 March 2022, the European Council established the existence of a mass influx of displaced persons, and with that for the first time in the history activated Directive 2001/55/EC, providing quick and effective assistance to people fleeing the war. This action has become an exception in the treatment of forcibly displaced persons arriving at the European Union (EU) borders. The main objective of this study is to explore the complementary position that temporary protection occupies within the Common European Asylum System (CEAS), where it serves not only as a tool to provide protection to persons forcefully displaced en masse, but also to ease the pressure on national asylum systems. What makes the presented research even more interesting is the fact that although temporary protection in the EU had been regulated (at least in theory) for over twenty years, it is still highly politicized and dependent on the will of European leaders. This article combines theoretical considerations (analysis of international law and European law) with a case study of actions taken (and not taken) by the EU during the 2022 migratory pressures.
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Authors and Affiliations

Sylwia Katarzyna Mazur
1
ORCID: ORCID

  1. Research Center for the Future of Law, The Catholic University of Portugal
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Abstract

The outbreak of the war in Ukraine in 2022 resulted in the revival of long-lasting disagreements in Polish-Russian relations. One aspect concerns numerous Russian properties in Warsaw, many abandoned or used for non-public purposes, and the disparity between both States’ properties in the other in this regard. Although the Polish Government has sought to resolve this matter amicably for many years, ultimately several legal proceedings were initiated in Polish courts aimed at recovering some of those premises. Only recently, however, Poland has resolved to employ more decisive steps, including the seizure of the former Soviet residential complex known as Spyville in order to enforce a final judgment. This article sketches the history of the dispute, provides an insight into court proceedings, and discusses the approach of Polish judicial institutions to diplomatic and State immunities.
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Authors and Affiliations

Oktawian Kuc
1

  1. Faculty of Law and Administration, University of Warsaw
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Abstract

The Parliament of the Republic of Poland was one of five European parliaments which – in view of the full-scale aggression by Russia against Ukraine which commenced on 24 February 2022 – adopted resolutions declaring the Russian Federation as a state associated with terrorism. The Polish acts are consistent with resolutions adopted on the same subject by the Parliamentary Assembly of the Council of Europe (PACE) and the European Parliament of the European Union (EP).
Although not legally binding, the adoption of these resolutions have a large symbolic dimension and may have a negative impact on the perception of and possibilities of Russian participation in the international arena. From the Polish perspective, the national decisions linking Russia with terrorist activities will influence decisions taken within the sanctions regime, as well as with regard to the legal qualification of certain acts under Polish criminal law in the course of proceedings conducted by Polish prosecution authorities in relation to the war. Finally, as long as the war continues and the assessment of Russia as a terrorist state remains in place, it will not be possible to restore and maintain ordinary diplomatic, economic and other relations with that state.
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Authors and Affiliations

Aleksandra Mężykowska
1
ORCID: ORCID

  1. Department of Constitutional Law and European Research, Institute ofLegal Sciences, Polish Academy of Sciences
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Abstract

This research aims to present and analyse selected issues of Polish return law and practice in the light of the European Union return policy and against the backdrop of the migration crises of 2015 and 2021-2023, with a return decision placed at the heart of the study. The principal research objective is to examine whether the provisions of the 2013 Act on Foreigners follow the standards established in the EU Return Directive as well as in the case-law of the Court of Justice of the European Union. Another objective is to analyse the interaction between the provisions forming the uniform national return policy, but which originate from different legal systems (national and European ones). To this end “anti-terrorism” and “pushback” cases under Polish law will be assessed. The article thus poses several crucial questions, inter alia whether the Polish law and practice comply with standards established at the European level, especially insofar as fundamental rights of individuals are concerned; whether they contribute to the establishment of an effective EU return policy; and what role harmonisation plays in this process.
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Authors and Affiliations

Katarzyna Strąk
1
ORCID: ORCID

  1. Institute of Law Studies of the Polish Academy of Sciences (Warsaw)

Authors and Affiliations

Bartłomiej Krzan
1
ORCID: ORCID

  1. Department of International Law, Faculty of Law, Administration andEconomics, University of Wrocław

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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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