On 1 March 2020, Professor Andrzej Wasilkowski died. In his research, Professor Wasilkowski undertook issues which were co-creating the mainstreams of legal debates all over the world. He was an author of valuable publications on the relationship between international law and Polish domestic law. Professor Wasilkowski was also a director of the Institute of Law Studies of the Polish Academy of Sciences and the head of the Legal Advisory Committee of the Minister of Foreign Affairs.
In 1995, Professor Krzysztof Skubiszewski added a Dissenting Opinion to the East Timor Judgment, wherein the ICJ declined jurisdiction in a proceeding started by Portugal against Australia for its having concluded the East Timor Gap treaty with Indonesia, in blatant violation of the East Timorese’s right to self-determination. Ad-hoc Judge Skubiszewski posited that the Court should have accepted jurisdiction and he presented a series of convincing arguments for this proposition. In 2019 the ICJ rendered an Opinion in the Chagos Islands case. The fact that the ICJ accepted jurisdiction in this case demonstrates that an impressive development has taken place since 1995, one whereby many of Professor Skubiszewki’s requests have been implemented. At the same time however, the Chagos Opinion is not fully satisfying as it neglects, to a considerable extent, the human rights issue. This contribution shows that Skubiszewski’s Dissenting Opinion would have provided guidance also for these questions and that it remains as topical today as it was in 1995.
The present text describes the attitude toward sources of law in the recent works of the International Law Commission (ILC) on custom, general principles of law, and jus cogens (with special emphasis on reports of the respective special rapporteurs). The three main tasks of the text are to verify whether the ILC rapporteurs: grasped the essence of unwritten sources (reality-concern); preserved the coherence of views when referring to different topics (coherence-concern); and last but not least allow states to have the decisive voice as regards the set of their obligations (sovereignty-concern). The author notes the nominal strict attachment of the ILC to two-element nature of custom as a general practice recognized as law. Though in fact it should be a good message for states, this strict attitude of the ILC seems not to be based on a real stress test. It seems to ignore the reality of lawyers and even international judges referring to several customary norms without the slightest attempt to verify the true existence of both the two elements of custom – namely practice and opinio juris. What is more, the ILC does not see any problem with calling all general principles as sources of law. What is overlooked is the element of state consent to be bound by several presumed general principles. This is qualified by the author as a threat to state sovereignty – with states being pressured to follow some patterns of conduct to which they have not given their consent.
The article offers a revisited look at the classic jurisprudence of the ECtHR and CJEU concerning the Turkish Republic of Northern Cyprus from the perspective of the phenomenon of judicial dialogue. In this context, it aims to examine whether judicial dialogue contributes to the development of coherent jurisprudence and in consequence of effective judicial redress in cases involving unrecognised entities and individuals. It draws attention to the threats for both the international rule of law and the protection of rights of individuals resulting from inconsistencies within own jurisprudence of the respective court, as well as from lack of coherence in interpretation and application of the same rules of international law by different courts.
This article is devoted to the science of international law at the Saint Volodymyr Imperial University of Kyiv, a major centre for the teaching and study of international law in Tsarist Russia. It examines the international legal views propounded by Vasilii Andreevich Nezabitovskii (1824–1883), Roman Ivanovich Baziner (1841–?), Nikolai Karlovich Rennenkampf (1832–1899), Otton Ottonovich Eikhel’man (1854–1943), and Petr Mikhailovich Bogayevskii (1866–1929). Scientists working at the Saint Volodymyr Imperial University contributed considerably to the development of the science of international law, although their work is not widely known due to the fact they did not produce many works in “western” languages. The large majority of these scholars’ writings represent a perfect development of international legal theory. These works advanced the concepts of the legal nature of international law (Nezabitovskii, Eikhel’man); proposed a new spatial concept of territory that was further developed in international legal science (Nezabitovskii); and explored the laws and customs of war and the role of the Red Cross in the development of humanitarian norms in international law (Baziner, Rennenkampf, Bogayevskii).
The Polish Government’s proposal, submitted in autumn 2017, for a comprehensive reprivatisation bill revived the international discussion on the scope of Polish authorities’ obligations to return property taken during World War II and subsequently by the communist regime. However, many inaccurate and incorrect statements are cited in the discussions, e.g. the argument that the duty of the Polish authorities to carry out restitution is embedded in the European Convention on Human Rights and its Protocol No. 1. This article challenges that claim and analyses the jurisprudence of the Convention’s judicial oversight bodies in cases raising issues of restitution of property taken over in Poland before the accession to both of the above-mentioned international agreements. In the article I argue that there is no legal basis for claiming that there exists a legal obligation upon the Polish State stemming directly from international law – in particular human rights law – to return the property and that the only possibly successful legal claims in this regard are those that can already be derived from the provisions of the Polish law applicable to these kinds of cases. In its latest rulings, issued in 2017–2019, the European Court of Human Rights determined the scope of responsibility incumbent on Polish authorities in this respect.
The article discusses the point of interconnection between historical policy and international human rights law standards on the example of a so-called decommunisation Act enacted in Poland in 2016 that reduces retirement pensions and other benefits to individuals who were employed or in service in selected state formations and institutions in 1944-1990, amending the Act adopted in 2009. The Act of 16 December 2016 is analyzed in the light of the standards of the European Convention on Human Rights (ECHR), including relevant standards on coming to terms with the past as an element of transitional justice. The examination concludes that there is a discrepancy between the rationale for adopting this legislation in Poland, namely to reckon with the communist past and as such increase social trust in state institutions, and the legal solutions contained in the 2016 Act.
The purpose of this article is to determine the relationship between the principles of subsidiarity and effectiveness and an effective remedy for the excessive length of proceedings within the legal order of the European Convention on Human Rights. The article assumes that these key principles of the ECHR’s legal order have an impact on such a remedy, both in the normative and practical dimensions. This assumption has helped explain many aspects of the Strasbourg case law regarding this remedy. Concerning the relationship of this remedy with the principle of subsidiarity, it raises issues such as: the “reinforcing” of Art. 6 § 1; the “close affinity” of Arts. 13 and 35 § 1; and the arguability test. In turn, through the prism of the principle of effectiveness, the reasonableness criterion and the requirement of diligence in the proceedings are presented, followed by the obligations of States to prevent lengthiness of proceedings and the obligations concerning adequate and sufficient redress for such an excessive length of proceedings. The analysis shows that an effective remedy with respect to the excessive length of proceedings is not a definitive normative item, as the Court consistently adds new elements to its complex structure, taking into account complaints regarding the law and practice of States Parties in the prevention of and compensation for proceedings of an excessive length.
With the Act on the Polish Card Poland followed the pattern of some European states (mostly Central and Eastern European ones) of enacting specific domestic legislation conferring special treatment and benefits to persons who are recognized as its kin-minorities. The most important analysis of this phenomenon from the perspective of international law was the 2001 Venice Commission’s report entitled “Report on the Protection of National Minorities by their Kin-State.” The Polish legislation was adopted in 2007, so for obvious reasons it was not considered by the Venice Commission. However, a rather unexpected and unusual examination of the Polish kin-state legislation from the perspective of international law came from Belarus. The Constitutional Court of the Republic of Belarus (CCRB) conducted a comprehensive examination of the Act on the Polish Card in 2011. The main aim of this article is to present and comment on the reasoning of the CCRB. Beginning with the broader context, this article starts with a presentation of the origins and a short description of the Act on the Polish Card, followed by a discussion of why the Polish Card and other kin-state legislation instruments are topics of concern in international law. The main part of the article is devoted to the presentation and assessment of the 2011 CCRB decision on the Act on the Polish Card. The author’s assessment confirms at least some of the concerns put forward by the CCRB, i.e., that both the Act on the Polish Card and the practice based on it contradict some norms and principles of international law, namely the principle of territorial sovereignty, the norms of consular law, and several bilateral treaties in force between these two states. Bearing in mind that despite those concerns more than a quarter-million Polish Cards (also sometimes called Pole’s Cards) have been issued so far by the Polish authorities, the article ends with a discussion of why such a prolonged nonconformity with international law is possible.
This article examines the consequences of the Court of Justice of the European Union’s (CJEU) ruling in Achmea concerning Investor-State Arbitration (ISA) under intra- EU Bilateral Investment Treaties (BITs) from a treaty law perspective. It begins by briefly setting out the arguments of Advocate General Wathelet and the CJEU supporting their different positions on whether intra-EU BITs ISA clauses are compatible with EU law. The article then proceeds to analyse Achmea’s implications for intra-EU BIT ISA. It concludes that, as a result of the CJEU’s ruling, arbitral tribunals are deprived of their jurisdiction to entertain investors’ claims brought under intra-EU BIT ISA clauses. Finally, the article argues that Achmea’s applicability to cases brought under intra-EU BIT ISA clauses is limited, using the application of EU law as a relevant qualification. In order for an arbitral tribunal to be deprived of its jurisdictional competence as a result of Achmea, it must be entitled to interpret and apply EU law directly or indirectly in determining its jurisdiction.
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.
The Court of the Eurasian Economic Union was created in 2015 as a judicial organ with jurisdiction over a range of subject matters within the Eurasian Economic Union. It replaced the Court of the Eurasian Economic Community, which operated within the Eurasian Economic Community and its Customs Union (2012-2014). Though the Union become the next step in the integration process of the post-Soviet area, the newly created Court has not been given de jure a successor status. The Court of the Union was set up anew as one of the four institutional bodies in the structure of the Union. It was empowered to settle disputes between the Member States, as well as to consider different types of actions brought by private actors (economic entities only). The interpretative function of the Court was enshrined as “competence on clarification.” Moreover, the Commission, the main executive and regulative organ, was not given locus standi in actions against the Member States to enhance their compliance with the obligations of EAEU law. Preliminary jurisdiction was also cut down as compared to the Court of the Community or other regional integration courts. However, some new functions were given to the Court, and its five years long practice shows a clear tendency to substitute missing powers with those given but in a broader context, as well as its aspirations to play a consolidating role for the legal order of the Union.
This commentary on the Court of Justice’s ruling in the Pawlak case concentrates on questions of the judicial application of EU law, in particular EU Directives. On the basis of the recent jurisprudence of the Court the authors present three issues: 1) the incidental effects of EU law for the procedural provisions of Member States; 2) the inability to rely on an EU directive by a member state’s authority in order to exclude the application of national provisions which are contrary to a directive; 3) the limits of the duty to interpret national law in conformity with EU law from the perspective of the Court of Justice and the referring court. Further, the article presents the judicial practice of the Polish Supreme Court, and in particular the follow-up decision of this Court not only taking into the account the ruling of the ECJ but also showing how the limitation of a conforming interpretation can be overcome in order to give full effect to EU law. In the authors’ view, this case is worth noting as an example of judicial dialogue in the EU.
Guidelines on the submission of articles to PYIL and the review process
General rules
1. In order to reduce instances of research and publication misconduct, the PYIL staff strictly follows the principles listed below. By submitting an article to PYIL, an author agrees to comply with those principles. The same applies to reviewers upon the acceptance of arequest for review.
2. All submissions should comply with the relevant requirements set outin the document entitled “Information for authors”, which is available on the PYIL’s webpage.
3. Manuscripts need be submitted in Microsoft Word format (any version). Unless specifically indicated otherwise, the deadline for submitting articles is 31 January of each year. The yearly volume of PYIL is normally published between June and July of the same year.
4. Submissions should not exceed 10,000 words (including footnotes), although in exceptional cases PYIL may accept longer works. All submissions should be sufficiently referenced. The Editorial Board assesses manuscripts on a rolling basis. It will consider requests for expedited review in appropriate instances (for example, pending acceptance for publication from another journal).On averageit takes about45 days to complete the evaluation of a text, although in some instances this process may be longer, depending on the availability of reviewers.
5. Manuscripts may besubmitted by e-mail (pyil@inp.pan.pl) or through the ExpressO submission system (https://www.bepress.com/products/expresso/).
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11. The Editorial Board will accept a submitted text if both reviewers recommend publication. In the event the reviewers indicate that changes are necessary, the acceptance of the article is conditional upon the author responding to the suggested changes, either by implementation of the same or offering an explanation why they may be not acceptable to the author, in whole or in part. The Editorial Board may, to the extent it deems necessary and following consultation with the specialist editor(s), send the revised text back to the original reviewers for their further opinion.
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13. An author of atext submitted to PYIL is obliged to cooperate with the Editorial Board as well as with reviewers. In particular,an author shall participate in the peer-review process to the extent required to make his/her submission ready for publication. This includes, inter alia, implementation of changes suggested by the reviewers or offering an explanation why such changes, in whole or in part,may be not acceptable toanauthor.
14. Authors are under an obligation to report to the Editorial Board any significant errors in their submissions, whether discovered during the review process or after publication. If significant errors are found after publication, authors agree to either retract the paper or publish a correction/clarification.The detailed procedure for retraction and corrections is included in the document entitled “Information for authors”.
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Guidelines for reviewers
1. The PYIL Editorial Board requests a professional review of asubmitted article with regard to its scholarly merits.
2. The object of the requested review is todeterminewhether the submitted article meets the scholarly standards for a scientific article of its type. In particular,the reviewer is asked to assess:
a.whether the title of the article is correct and accurately reflects its contents;
b.whether the article is clear and concise (a reviewer may suggest shortening the article or certain parts thereof);
c.whether the conclusions presented by the author are consistent with the data contained in the article;
d.whether the author useda proper methodology;e.whether the article is original and contains new information;
f.whether the article accurately presents the current state of knowledge and research in a given area (including appropriate citations of and referrals to the existing literature).
3. The reviewer is requested to perform his or her review according to the above criteria in an objective and unbiased fashion. In addition,the reviewer is asked to indicate any and all places where, in the reviewer’s opinion, the author violated any norms of fair, diligent, and accurate scientific research (for example, instances of plagiarism). The review should be neutral and objective, internally consistent, and end with a clear conclusion concerning the usefulness of the text for scientific purposes. The reviewer may also suggest amendments to the text, including indicationsof any relevant published work which isnot citedin the text.
4. Although the review process in based on the double blind-peer review principle, reviewers should refuse the review request if they are aware of any conflict of interest that may exist.
5. Reviewers shall notify the Editorial Board if they feel unqualified to conduct a review of a particular submission.
6. Reviewers should complete their reviews within a timeframe specified by the Editorial Board or one of its members.
7. Reviewers must treat the submissions received for review as confidential documents and must not disclose any information about them to anyone other than the Editorial Board.
8. Reviewers must not use materials disclosed in a submission for their own research unless the text is published.
9.The list of the reviewers is published in each volume and on the PYIL’s webpag
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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