Humanities and Social Sciences

Polish Yearbook of International Law

Content

Polish Yearbook of International Law | 2014 | No XXXIV |

Abstract

The aim of this article is to classify the armed conflict between Ukraine and Russia in light of international law. Firstly, the Russian armed activities are qualified through the lens of use of force and it is shown that Russia committed an aggression. Secondly, the Russian- Ukrainian conflict is qualified according to the law of armed conflict, not only identifying the applicable norms of law of armed conflict but examining whether atrocities have been committed and whether they are war crimes or mere crimes or acts of terror. The article posits that there is an international armed conflict between Russia and Ukraine and in addition a non-international one between Ukrainian insurgents and governmental forces. The methodology used in the article is legal analysis of documents and international law doctrine.
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Abstract

On 11 March 2014 Crimea declared independence. Ukraine and international society has not recognised that act. However Crimea’s independence was recognised by Russia and on 18 March 2014 an agreement on the accession of the Republic of Crimea to the Russian Federation was signed. Many countries and international organisations have condemned that step, viewing it as illegal annexation. Regardless of how this situation is treated however, it is at present a fait accompli. Such a situation evokes legal consequences both in the internal law of Ukraine and Russia as well as on the plane of international law. The residents of Crimea appear to be in the worst situation. Legal certainty is a fiction for them now. There are also problems on the international plane. Despite the fact that in the opinion of international society Crimea remains an integral part of Ukraine, in practice there are many conflicting problems of a legal nature that cannot be solved, at least for the time being. This article analyses the legality and certain legal consequences of the “accession” of Crimea to Russia and the effect of this accession on the legal situation for residents of Crimea. The article concludes that legal situation of Crimeans will not improve anytime soon, and that the legal problems which have arisen on the international plane will not be resolved soon either.
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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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Abstract

The international community anxiously awaited delivery of the advisory opinion of the International Court of Justice (ICJ) on Kosovo’s declaration of independence, hoping it would clarify the controversial right of self-determination and the right of secession. Although it was hailed by many as a confirmation of both rights, the advisory opinion was disappointing regarding that part of the analysis which was based on general international law. The ICJ interpreted the question posed in a very narrow and formalistic way. It concluded that declarations of independence (not their consequences) are not in violation of international law, but it did not rule that they are in accordance with international law, as was requested in the posed question. The ICJ refused to examine whether there is a positive entitlement to secession under international law. Although Kosovo and its supporters claimed that the case of Kosovo is unique and will not set a precedent, Russia used the case of Kosovo and the advisory opinion to justify the so-called referendum in Crimea and the subsequent incorporation of Crimea into Russia. However, the situation in Crimea is only superficially comparable to Kosovo and the advisory opinion gives little or no support in the case of Crimea
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Abstract

This article seeks to explore whether the EU system of fundamental rights protection allows room for constitutional pluralism. By looking at recent developments in the case law of the Court of Justice of the European Union (the Court of Justice), it is submitted that the Court has answered that question in the affirmative, thereby respecting the diversity of the cultures and traditions of the peoples of Europe as well as their national identities. The application of the Charter does not rule out a cumulative application of fundamental rights. That being said, pluralism is not absolute, but must be weighed against the indivisible and universal values on which the European Union is founded. Logically, the question that arises is how we order pluralism. In this regard, I shall argue that it is not for the Court of Justice to decide when an EU uniform standard of fundamental rights protection is to replace (or coexist with) national standards. That decision is for the EU political institutions to adopt, since they enjoy the necessary democratic legitimacy to determine the circumstances under which the exercise of a fundamental right is to be limited for reasons of public interest. However, this deference to the EU political branches does not mean that EU legislative decisions are immune from judicial review. On the contrary, cases such as Schwarz and Digital Rights demonstrate that the Court of Justice is firmly committed to examining whether those legislative choices comply with primary EU law, and notably with the Charter. In this regard, when interpreting the provisions of the Charter, the Court of Justice – in dialogue with national courts and, in particular, constitutional courts – operates as the guarantor of the rule of law within the EU, of which fundamental rights are part and parcel. It is thus for those courts to make sure that each and every EU citizen enjoys a sphere of individual liberty which must, as defined by the Charter, remain free from public interferences.
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Abstract

This article provides an overview of “memory laws” in Europe, reflecting upon what may be called the “asymmetry” of such laws. It then looks at the special case of Poland and its troubled experience with memory laws; it considers the question of whether, in the eyes of the law – genocide, and in particular the Holocaust – is so “special” that its public denials warrant legal intervention. It also looks at the case law of the European Court of Human Rights and its (not necessarily coherent) “doctrine” on memory laws and their consistency, or otherwise, with the European Convention for the Protection of Human Rights and Fundamental Freedoms (and in particular with freedom of expression as laid down in Art. 10). The article concludes by asserting that even if we take the law as an indicator of European public memory, there is no consensus on the past, except perhaps for the special case of the Holocaust. The main challenge lies in determining whether memory laws, defined by some as social engineering and the imposition of “imperative” versions of memory, are consistent with the principles inherent in open, democratic and free societies in Europe. This challenge remains unmet.
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Abstract

International criminal tribunals had to make a choice between the principles of opportunism and legalism or decide to use a mixture of these both. They had to decide whether a prosecutor should become “the minister of justice” (as in the principle of legalism) or “the first judge” (evaluating in the frames of principle of opportunism the reasonable basis for prosecuting). This article addresses prosecutorial discretion before the ICC with respect to selecting defendants. Firstly, it analyzes the main differences between opportunism and legalism of prosecution. It also presents models of accusation functioning before the historical and existing international criminal tribunals – which usually opted for opportunism of prosecution. Before the ICC the conditions on which the Prosecutor may initiate an investigation are set in Art. 53(1) of the Statute: “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute.” It is interesting to observe that this phrase may be interpreted in many various ways, depending on the model of accusation the author belongs to: those coming from the Anglo-Saxon tradition have tendency to search for elements of opportunism; those from civil law states assume that the model of accusation operates according to the principle of legalism. There is also a number of mixed options presented, according to which the ICC operates according to a mixture of these two principles. Finally, the article presents different rules adopted by the ICC Prosecutor (or proposed), which govern the choice of the defendants.
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Abstract

Most favoured nation (MFN) treatment and national treatment (NT) are two standards usually related to the general principle of non-discrimination. However, while the MFN treatment was undoubtedly and clearly defined already during the negotiation of the General Agreement on Tariffs and Trade in previous works and judgements of various international bodies, the NT standard needed to be clarified. An additional reason to concentrate on NT rules is that their content and scope may influence trade more than the scope of MFN granted. The concept of NT is also subject to relatively rare analysis in comparison with other aspects of regional trade agreements’ (RTA) rules which overlap with WTO law. The aim of this article is to analyse the scope and wording of the NT standard in various RTAs concluded by the European Union. In particular, it inquiries into the extent to which the NT clause remains universal across its different regional trade agreements, and examines the reasons (and consequences) for the differences, if any, in its formulation.
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Abstract

This article examines the phenomenon of internal displacement from the perspective of the existing legal framework and those measures which should guarantee protection for internally displaced populations worldwide. With this aim in mind, the article begins by assessing the role of international law and try to ascertain which legal norms are applicable to protect internally displaced persons. As a second step, it analyzes the question of responsibility for the protection of internally displaced persons, i.e. whether this lies with the state of origin through its national law, or rather with the international community, and examines the relevant provisions of international law. While concluding and identifying the existing gaps in the current legislation, the article demonstrates that internally displaced persons should become the objects of a specific system of law and legal protection. At the same time, the text intends to contribute to the contemporary debate promoting efforts to strengthen the protection of internally displaced persons and to disseminate knowledge about this vulnerable group of people.
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Abstract

In light of international law, the incorporation of the Crimean Peninsula (Crimea), which forms part of Ukraine’s territory, into the Russian Federation qualifies as annexation, i.e. the illegal acquisition of the territory of another state by the threat or use of force. In this respect, Crimea remains an occupied territory under international law. The annexation of Crimea by the Russian Federation has violated many treaties and fundamental principles of international law, namely the principle of territorial integrity of states, non-intervention into the domestic affairs of another state, and the prohibition of the threat or use of force against another state. Consequently, the Russian Federation has violated Ukraine’s rights which enjoy international protection. Moreover, due to the special legal status of the principles of international law that have been violated, the Russian Federation has breached its commitments under law to the entire international community. This community has an international legal obligation not to recognize the illegal situation created by the illegal use of force in the form of armed aggression, and its consequences.
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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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Board of Editors
Władysław Czapliński (Editor-in-Chief)
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Anna Wyrozumska (Member)
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Roman Wieruszewski
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Andreas Zimmermann

 

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