Wroclaw Review of Law, Administration & Economics

KAROL WOLFKE (1915-2015)

Jan Kolasa — Sun, 30 Dec 2018 00:00:00 +0000

KAROL WOLFKE (1915-2015)

PROFESSOR KAROL WOLFKE - HOMO UNIVERSITATIS

Dagmara Kornobis-Romanowska — Sun, 30 Dec 2018 00:00:00 +0000

PROFESSOR KAROL WOLFKE - HOMO UNIVERSITATIS

PROFESSOR KAROL WOLFKE AS AN ACADEMIC MENTOR

Aleksander Cieśliński — Sun, 30 Dec 2018 00:00:00 +0000

PROFESSOR KAROL WOLFKE AS AN ACADEMIC MENTOR

INTRODUCTION

Bartłomiej Krzan — Sun, 30 Dec 2018 00:00:00 +0000

INTRODUCTION

THE THEORETICAL PROBLEM OF SOURCES OF INTERNATIONAL LAW

Przemysław Saganek — Sun, 30 Dec 2018 00:00:00 +0000

Sometimes the reference to sources is treated as a mere didactic introduction to the quantum of statements on treaties, custom, resolutions of international organizations and possibly some other matters. These presentations, as such, are usually very competent and valuable. However, what is often missing is a clear statement as to why the elements discussed by a given author are sources of international law, or possibly which of the elements which are discussed are not sources and why the elements absent from the list are not included as well.

Keywords: souces of international law, customary law, treaties, other sources

THE LAW-MAKING FUNCTION OF THE UN COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES

Robert Uerpmann-Wittzack — Sun, 30 Dec 2018 00:00:00 +0000

Evolution through subsequent practice is particularly marked in international human rights law, where international human rights bodies produce abundant practice. Here, the question arises as to whether the practice of these bodies alone suffices to determine the content of international human rights obligations or whether organ practice must be backed up by state practice or forms of implicit state consent. This question shall be analysed with regard to the UN Convention on the Rights of Persons with Disabilities (CRPD) of 13 December 2006 and the Committee on the Rights of Persons with Disabilities established under 34 CRPD. Although the Convention is only ten years old, its Committee has already produced quite an important corpus of practice, and it has shown its willingness to construe the Convention in a rigorous way which makes important parts of current domestic state practice with regard to persons with disabilities illegal.

Keywords: UN Committee on the Rights of Persons with Disabilities, Convention on the Rights of Persons with Disabilities, CRPD, human rights obligations, sources of law, law-making

IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW IN THE WORKS OF THE UNITED NATIONS INTERNATIONAL LAW COMMISSION

Genowefa Grabowska — Sun, 30 Dec 2018 00:00:00 +0000

The review of the ways in which customary norms were established and of the role that the custom played in the system of sources of the international law was undertaken by the International Law Committee in 2012, when the subject of "Formation and evidence of customary international law" was included in its agenda and started being discussed . The topic was approved, first by the Sixth Committee and then, by the whole General Assembly of the United Nations which opened the way to further codification . In 2013 the Commission appointed Sir Michael Wood as the Special Rapporteur. The Rapporteur then submitted his first report supplemented by the memorandum of the International Law Commission Secretariat and the title of the report was "Elements in the previous work of the International Law Commission that could be particularly relevant to the topic" . During further discussions the ILC changed the title of the codified issue, replacing the initial topic ("Formation and evidence of customary international law") with the following one, which better reflected the nature of the regulation: "Identification of customary international law". By doing so the Commission wanted to clarify doubts as to the meaning of the word "evidence", in particular when translated into official languages of the United Nations.

Keywords: Identification of customary international law, United Nations International Law Commission, evidence of custom

UNILATERAL ACTS OF A STATE IN THE PROCESS OF FORMING CUSTOMARY INTERNATIONAL LAW

Jan Kolasa — Sun, 30 Dec 2018 00:00:00 +0000

Regardless of how broad acceptance within the academic community is for the formula that domestic legislation is acknowledged in international law as merely a fact, nearly equally prevalent is the conviction that the unilateral acts of states can be the basis for the creation of customary norms of international law. They can initiate and reinforce a practice constituting one of the two primary elements comprising the creation of a customary norm. They therefore do not constitute in and of themselves such a basis, but a certain practice has arisen in conjunction with them. They must be implemented. In any case, law-making practice can arise and establish itself without any written act or verbal declaration. It can simply be the result of the behaviour of states – their acts and omissions.

Keywords: unilateral acts of a State, customary international law, law-making process

CERTAIN REMARKS ON THE ELEMENT OF WILL IN CUSTOMARY INTERNATIONAL LAW: A SHORT COMMENT

Marcin Kałduński — Sun, 30 Dec 2018 00:00:00 +0000

The article examines the element of will in customary international law. This brief comment is not intended to address all of the important issues that arise with respect to the formation and binding force of customary international law. It will only invite attention to a question concerning the element of the will of States. Thus, the aim of this comment is to stimulate the reader to consider the nature and essence of the will of States in customary international law.

Keywords: element of will, customary law, binding force

TAKING THE TWO-ELEMENTS THEORY OF INTERNATIONAL CUSTOMARY LAW SERIOUSLY – PROBLEMS WITH DOUBLE COUNTING

Michał Stępień — Sun, 30 Dec 2018 00:00:00 +0000

Among the few other preconditions of customary law F. Savigny mentions the “undertaking of the act in the feeling of a legal necessity (opinio necessitatis)” . As K. Wolfke explained, the two-element theory of customary law (according to which there are two constituent elements, i.e. practice and opinio iuris) was introduced to the modern theory of law by the historical school of law. The purpose of this concept was a departure from well-established understanding of the customary law as a tacit consensus populi. According to the generally agreed approach, international customary law is composed of an objective element, i.e. practice and the subjective element – so-called “opinio iuris”. This last one is usually understood as a feeling of doing one’s duty or simply doing what is right. Practice without opinio iuris is simply a “usage”. Alternatively, it can be a kind of international courtesy or protocol, which are loosely relevant for international law. The ICJ in the judgment in the case of North See Continental Shelf considered the premise of opinio iuris “the most important of all”. It is the differentia specifica of the customary law. Opinio iuris resembles tacit consent at least in one: both are opposite to usage.

Keywords: theory of customary law, state practice, opinio iuris

EFFECTS OF INTERNATIONAL CUSTOMARY LAW IN THE LEGAL ORDER OF THE EUROPEAN UNION

Dagmara Kornobis-Romanowska — Sun, 30 Dec 2018 00:00:00 +0000

The customary provisions in EU law formally may take effect and be enforced within the domestic legal orders of the Member States and internal law of the international organizations. However, the substantive question is if and how the customary international law (in force) may be capable of creating individual rights (direct applicability) with a direct effect in national and EU courts. Also an informal relationship may be observed, when the international law and EU law share the same values and may influence each other. In consideration of the foregoing, the objective of this paper is to analyse the status of the rules in question within the legal regime of the EU (formal perspective), and especially their judicial application in the conditions of complexity and imprecision (substantive perspective), but the essential purpose is to analyse the final legal effect given within the EU regime to the international customary law.
Keywords: customary law, international law, EU law

THE PHENOMENON OF MIXED AGREEMENTS – BETWEEN PUBLIC INTERNATIONAL AND EUROPEAN UNION LAW

Aleksander Cieśliński — Sun, 30 Dec 2018 00:00:00 +0000

This paper, that intends to be a small tribute to the memory of Professor Karol Wolfke, is concerned on the Union’s international agreements of the most important category. They seem to be even more interesting as they turn out to be an unusual source from the standpoint of public international law.
Keywords: mixed agreements, EU, public international law

EXTERNAL DIMENSION OF THE EUROPEAN UNION ENVIRONMENTAL POLICY- SELECTED LEGAL ISSUES

Adriana Kalicka-Mikołajczyk — Sun, 30 Dec 2018 00:00:00 +0000

Most environmental problems have a transboundary nature and often a global scope, and they can only be addressed effectively through international cooperation. For this reason, the Lisbon Treaty establishes that one of the key objectives of the European Union (EU) policy on the environment is to promote measures at an international level to deal with regional or worldwide environmental problems, and in particular combating climate change. The paper focuses on two issues: firstly, on the evolution of the EU competences in the area of environment and secondly on the extent and the nature of the EU competence in environmental matters.
Keywords: European Union, environmental policy, climate change

SOURCES OF EXTRADITION LAW IN THE LEGAL SYSTEM OF THE EUROPEAN UNION

Lidia Brodowski — Sun, 30 Dec 2018 00:00:00 +0000

The article discusses the activities, involving the creation and unification of the sources of extradition law and modernization undertaken in the institution of extradition within the European Union, aimed at creating a coherent and efficient system for fighting crime. It presents the evolution, that EU extradition law in the last decade was a subject to, which reflects the changes made in primary law, international agreements and the Acts signed by the institutions of the European Union. It provides an analysis of the existing extradition relations model within the European Union and its impact on initiatives to simplify and accelerate the extradition procedure undertaken outside the framework of the European Union.
Keywords: extradition law, EU, procedures, European Arrest Warrant

THE FOUNDATIONS OF THE POLISH STUDY OF LAW ON SUSTAINABLE DEVELOPMENT IN ENVIRONMENTAL PROTECTION AND FOR KEEPING INTERNATIONAL AND DOMESTIC PEACE AND SECURITY (THOUGHTS ON THE 100TH ANNIVERSARY OF THE BIRTH OF PROFESSOR KAROL WOLFKE)

Kazimierz Równy — Sun, 30 Dec 2018 00:00:00 +0000

The Contribution refers to significant efforts, undertaken by the Polish authorities, concerning the protection of the surroundings in which mankind exists, both internationally and internally. At the same time it is hoped that they will also remind us of the intuitive prediction of further developments in the UN system made by Polish scholars, which led to the acceptance of the principle of sustainable development – that is, preventing the degradation of the environment “at the source of economic and social affairs”
Keywords: sustainable development, environmental protection, Polish study

THE LEGAL FORCE AND EFFECTIVENESS OF THE AARHUS CONVENTION IN THE POLISH LEGAL SYSTEM

Małgorzata Masternak-Kubiak — Sun, 30 Dec 2018 00:00:00 +0000

Environmental protection in international law constitutes a complex, multi-faceted task. As civilization advances, a stronger dependency is emerging between phenomena and the comprehensive nature of fundamental human needs, which leads to the continual expansion of the very concept of "environment requiring protection". A very important element in the process of environmental protection is that of the right to information about the environment and the participation of society in taking decisions concerning the environment. Without doubt, from among the many theoretical and practical issues associated with the development of international environmental law, one of particular importance is the question of ensuring the necessary effectiveness of that law in the domestic legal order. The growing international law-making activity in respect of environmental protection renders it necessary to deal now with the need to create conditions for ensuring this law achieves the appropriate level of effectiveness.
Keywords: environmental protection, Aarhus convention, Polish law

ENVIRONMENTAL COMPLIANCE CONTROL

Malgosia Fitzmaurice — Sun, 30 Dec 2018 00:00:00 +0000

The concept of environmental compliance control may be said to involve not just the development of new legal principles, but also a new attitude within the international community, as well as among governments and civil society at the national level, towards the governance of the global response to environmental challenges.

Keywords: compliance control, environment, governance

DEVELOPMENTS IN THE INTERNATIONAL PROTECTION OF THE RIVER RHINE

Barbara Mielnik — Sun, 30 Dec 2018 00:00:00 +0000

Professor Karol Wolfke was one of the first who devoted his scientific work to environmental protection in a broad sense. In the Polish studies in international law, he was a precursor of this new, dynamically developing branch of law. His works concerning the beginnings of the new branch of law show not only the innovative character of the undertaken studies but also prove perception of what was inevitable- the necessity to encompass with the norms of public international law things which exceed state boundaries and which cannot be regulated by one state only. The outline of historical and contemporary activities of states aimed at the protection of the Rhine and its basin can serve as the best example.

Keywords: Rhine, environmental protection, rivers

CUSTOMARY INTERNATIONAL LAW ON THE USE OF FORCE

Władysław Czapliński — Sun, 30 Dec 2018 00:00:00 +0000

It is notorious that there are two main positions of international lawyers as to the lawfulness of the use of force in international law. According to the dominant view, the ban on the use of force under the UN Charter is absolute, and force is allowed exclusively in three situations provided in the UN Charter: upon the authorization of the UN Security Council, in self-defence, and against enemy States on the basis of Art.53 and 107, the latter option being purely hypothetical. Rare opponents invoke a strict interpretation of Art.2(4) of the Charter and emphasize that an armed force cannot be used against sovereignty, territorial integrity, or in any other manner contrary to the goals and principles of the UN. Against the background of this dispute a question can be asked whether, the UN Charter notwithstanding, the use of force is regulated by other international legal norms, in particular customary law.

Keywords: use of force, UN Charter, customary international law

SOME REMARKS ON THE RELATIONSHIP BETWEEN THE JUS AD BELLUM REGULATIONS UNDER THE UN CHARTER AND CUSTOMARY INTERNATIONAL LAW – WHY DOES IT MATTER SO MUCH?

Michał Kowalski — Sun, 30 Dec 2018 00:00:00 +0000

One of the key issues for conveying the modern normative structure of jus ad bellum, i.e. the international law norms governing the use of force, is the mutual relations of the treaty regulation under the United Nations Charter (the UN Charter) regime and the relevant customary law. Contrary to as it may seem prima facie, this relationship remains highly ambiguous. Obviously, it is strictly and inextricably linked with all the dilemmas and challenges of jus ad bellum regulation under the UN Charter regime in all its ambiguity. Thus, addressing the character of this relationship firstly demands referring to the mentioned dilemmas and challenges.

Keywords: jus ad bellum, UN Charter, customary international law

CUSTOM IN THE PRESENT INTERNATIONAL LAW OF THE SEA

Cezary Mik — Sun, 30 Dec 2018 00:00:00 +0000

The study of custom in the modern law of the sea is divided into two parts. The first one will cover both introductory and general issues. First, the framework for analyses will be defined. It will be designated by the concept of international law of the sea on the one hand, and the understanding of customary law in relation to the law of the sea on the other. Next, the relationship between customary law and treaties will be considered, followed by contemporary criticism of customary law and its regulatory capacities.
The second part will examine the following issues: 1) the importance of codification of the law of the sea for customary law of the sea; 2) the validity of the law of the sea treaty rules as customary rules of the law of the sea; 3) the development of customary rules under the provisions of the law of the sea treaties; 4) the importance of references to customary rules in provisions of the law of the sea treaties; 5) the issue of conflict of treaty and customary rules of the law of the sea; 6) the importance of customary law of the sea in the development of the law of the sea in areas not regulated by the law of the sea treaties and in new areas of the law of the sea.

Keywords: custom, international law of the sea, codification

PRESERVING THE EFFECTIVENESS OF UNCLOS DESPITE A PARTY’S NON-APPEARANCE? SOME REMARKS ON THE ARCTIC SUNRISE ARBITRATION (NETHERLANDS V. RUSSIA) IN THE CONTEXT OF HUMAN RIGHTS PROTECTION

Michał Balcerzak — Sun, 30 Dec 2018 00:00:00 +0000

On August 14th 2015 an Arbitral Tribunal established under Annex VII to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) delivered an Award on the Merits in the matter of the Arctic Sunrise Arbitration (The Kingdom of the Netherlands v. the Russian Federation).The Arctic Sunrise case constitutes an interesting basis of discussion for several reasons, one of them being that it was the first case in which the respondent state refused to appear before a court or tribunal constituted under UNCLOS. The uniqueness of the Arctic Sunrise arbitration may also stem from the fact that it appears to be the first case in the UNCLOS-based dispute settlement scheme which concerned a vessel other than a fishing vessel or a war ship. But more importantly, the Arctic Sunrise case allowed the Arbitral Tribunal to examine the question of how and to what extent it may apply “other rules of international law” not incompatible with UNCLOS. Following a brief overview of the facts of the case, the analysis focuses on the ITLOS Order of November 22nd 2013 concerning provisional measures and the Arbitral Tribunal Order of August 15th 2015 on the merits of the case.

Keywords: UNCLOS, effectiveness, non-appearance, Arctic Sunrise Arbitration, Human rights

CUSTOM IN INTERNATIONAL ECONOMIC LAW

Jerzy Menkes — Sun, 30 Dec 2018 00:00:00 +0000

The ‘old’ source of the international law – in the sense of the form of law-making – constituted by ‘custom’ does not lose its position in the catalogue of international law sources. On the contrary, its significance increases in the realm of international economic law. Moreover, ‘custom’ is also a vehicle for introducing ‘the new-generation law’, which is responsive and created by self-regulation, into international economic law.

Keywords: international economic law, customary law, sources, self-regulation

SOME REFLECTIONS ON CUSTOM IN INTERNATIONAL ECONOMIC LAW

Bartosz Ziemblicki — Sun, 30 Dec 2018 00:00:00 +0000

The main problem with surveying customary international economic law is that there is no universally accepted understanding of the term international economic law. On the contrary, there are huge differences in this regard, ranging from classifying it as a part of public international law to a broad area of law, covering parts of international, municipal and other law, distinguished by the object of regulation – international economic relations of public and private nature.

Keywords: international economic law, customary law, economic relations

SOME REMARKS ON STATE IMMUNITY AND PROFESSOR WOLFKE`S CONCEPT OF INTERNATIONAL CUSTOMARY LAW

Anna Wyrozumska — Sun, 30 Dec 2018 00:00:00 +0000

The contribution deals with some recent examples of identification of customary international law on State immunity by international and domestic courts and confronts some of their aspects with Professor Wolfke`s understanding of customary international law.

Keywords: State immunity, customary law, judicial application

TAKING DECISIONS ON CUSTOMARY INTERNATIONAL LAW BY THE INTERNATIONAL COURT OF JUSTICE IN THE CASE JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY V. ITALY; GREECE INTERVENING), 2012

Rudolf Geiger — Sun, 30 Dec 2018 00:00:00 +0000

In spite of an ever increasing amount of bilateral and multilateral treaties covering the relationships between States it is also customary international law which still provides rules serving as the basis for judgments and opinions of the International Court of Justice. In such cases the Court frequently defines the concept of customary law by citing Article 38 (i) (b) of its Statute and explains the way it should be applied to find a specific norm applicable in the case before it. However, it may also be argued, that the Court has expressly proclaimed standards for establishing specific rules of customary law are rather frequently quite different from the manner in which the Court really proceeds. The present article comments on the Court’s judgment of 3 February 2012 on ‘Jurisdictional Immunities of the State’, in which its decision was also based on customary international law.

Keywords: ICJ, jurisdictional immunity, Germany v. Italy

THE POSITION OF CUSTOMARY INTERNATIONAL LAW IN THE POLISH LEGAL SYSTEM IN THE LIGHT OF ARTICLE 9 OF THE CONSTITUTION OF 1997

Krzysztof Wójtowicz — Sun, 30 Dec 2018 00:00:00 +0000

In 1997, when the Constitution currently in force was adopted, the Polish constitution-maker made the legal system open to the provisions of international law – at least in part – for the first time in the post-war period. Article 9 of the Polish Constitution (1997) gives evidence to this openness. It states that “The Republic of Poland shall respect international law binding upon it”. An expression “international law” used here should be understood as a set of norms binding in relations between subjects of this law, first of all between states and international organizations. Special attention is paid to the respective position of customary law.

Keywords: Customary law, Polish law, Constitution

RESPONSIBILITY IN INTERNATIONAL LAW: GENERAL PRINCIPLE OR INSTITUTION OF CUSTOMARY LAW?

Anna Czaplińska — Sun, 30 Dec 2018 00:00:00 +0000

The present contribution addresses some fundamental, but still unresolved, issues concerning the sources of international law – the mutual relations and interactions between them and the determination of the character of particular norms of international law in the context of their assignment to the appropriate sources. However, it is done by a means of reference to a specific case of norms concerning international responsibility. As the examination of their nature will show, a relationship between different sources may not necessarily be hierarchical or exclusive; it may be just complementary and evolving.

Keywords: interational responsibility customary law, general principle

INTERNATIONAL CUSTOM AND THE EXPERIENCE OF NUREMBERG

Adam Basak — Sun, 30 Dec 2018 00:00:00 +0000

The subject matter of the notes, devoted to the memory of Professor Karol Wolfke, is obviously inspired by the scholarly specialism of the author of Custom in Present International Law; and their Nuremberg context.

Keywords: international custom, Nuremberg trials, International Military Tribunal

INTERNATIONAL CUSTOMARY LAW IN THE JURISPRUDENCE OF THE ICTY AND THE ICTR

Joanna Konderla — Sun, 30 Dec 2018 00:00:00 +0000

The object of this article is to describe how two ad hoc international criminal tribunals dealt with the issue of following and explaining norms of customary international law. In order to do that the representative decisions and judgments of international criminal courts are citied and examined. The first part is a description of the sources of law for criminal tribunals, with emphasis on the international custom. The second consists of the analysis of the international criminal courts’ approach to the two-element theory of customary international law. It is followed with an enquiry into the content of customary international law: concerning both jurisdiction and substance of customary international law.

Keywords: International Customary Law, ICTR, ICTY, jurisprudence

THE POSITION OF THE GREAT POWERS IN INTERNATIONAL JUDICIARY

Bartłomiej Krzan — Sun, 30 Dec 2018 00:00:00 +0000

Professor Wolfke established his reputation as a great international lawyer at the very beginning of his academic career when examining the structure of international society. Despite the passing of time, the validity of Professor Wolfke’s insightful conclusions remain intact. They still provide a valuable background for scrutinizing the influence of the Great Powers on international courts. The respective analysis concentrates on two potential avenues of influence over international courts and tribunals to be exercised by the Great Powers: domination with regard to their composition and the intervention in the proceedings conducted in front of them.

Keywords: great powers, international courts and tribunals, composition intervention in the proceedings

SIEGE WARFARE IN THE 21ST CENTURY FROM THE PERSPECTIVE OF INTERNATIONAL HUMANITARIAN LAW

Elżbieta Mikos-Skuza — Sun, 30 Dec 2018 00:00:00 +0000

Professor Karol Wolfke was an expert in many areas of public international law, including the sources of law, and in particular international custom. His flagship publication in this field was recognized and quoted internationally. Therefore it was not surprising that the International Committee of the Red Cross (hereinafter referred to as the ICRC) invited Professor Karol Wolfke to contribute to the completion of the Study on Customary International Humanitarian Law, the purpose of which was to identify customary rules of international humanitarian law applicable in international and non-international armed conflicts. He reviewed some parts of the Study and also advised during experts’ meetings convened in Geneva by the ICRC. Therefore it seems very appropriate to reflect in Professor Wolfke’s commemorative book on a topic proving the important role of customary law in filling gaps in international treaties. The topic that has been chosen – siege warfare – unfortunately belongs to very hot issues in today’s international relations and law. In recent years Aleppo in Syria has become a symbolic example of political and legal controversies about siege tactics in contemporary armed conflicts.

Keywords: siege, warfare, international humanitarian law, armed conflicts

TO KILL OR NOT TO KILL - THE USE OF FORCE AGAINST LEGITIMATE TARGETS IN ARMED CONFLICTS

Patrycja Grzebyk — Sun, 30 Dec 2018 00:00:00 +0000

Armed conflicts involve killing, injuring, devastating. The International Humanitarian Law (IHL) accepts this reality, but limits the categories of persons and objects which can be attacked, as well as the means and methods by which they can be attacked. The aim of this chapter is threefold. Firstly, it is to present arguments derived from the IHL norms against the existence of an obligation to use the least harmful method against legitimate targets in armed conflicts. Secondly, it is to assess the argumentation (also based on the IHL) in favour of the existence of an obligation to minimize force used against legitimate targets. In both cases, advantages and disadvantages of each of the solutions will be presented. Thirdly, it is to assess the possibility of using other regimes to solve the dispute between two above-mentioned approaches.

Keywords: Armed conflicts, legitimate targets, international humanitarian law