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State Immunity and War Crimes: the Polish Supreme Court on the Natoniewski Case

100%
Kaldunski M.
Polish Yearbook of International Law
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2010
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vol. 30
236-262
EN
The article critically assesses the decision of the Polish Supreme Court in Natoniewski v. Federal Republic of Germany. It argues that the decision as such reflects contemporary international law practice. Consequently, the holding of the Supreme Court that State immunity is applicable to acts de iure imperii committed on the territory of the forum State during an armed conflict even though they may amount to war crimes seems to be correct. This conclusion also means that the Court refused to engage in law-making activity by declining to endorse interpretation, which would permit to reject State immunity by attaching superior importance to human rights. Although the article recognizes that the reasoning of the Supreme Court as well as the choice of arguments is well-balanced and convincing, it also identifies certain instances in which the Court is not entirely persuasive. In the opinion of the author, one of the most important drawbacks in the reasoning relates to the characterization of State immunity as a procedural, rather than substantive, issue.
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IMUNITA ŠTÁTU V MEDZINÁRODNEJ ARBITRÁŽNEJ A OBCHODNEJ PRAXI. II. ČASŤ. – POLITICKÉ A ÚSTAVNOPRÁVNE ASPEKTY

80%
Chovancová K.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2017
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vol. 100
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issue 5
459 – 475
EN
Theory of restrictive sovereign immunity substantiated itself as wishful, but still not a complete replacement of its older sibling, being obsolete absolute immunity from both jurisdiction and enforcement of arbitral award. Actually, it is widely known that a right of the party to the international arbitration to properly enforce an arbitral award, rendered in its favour against the state, stays a controversial issue. It may be submitted that the aforementioned situation is a courtesy of a residual application of the theory of absolute sovereign immunity – a pain in the neck of traders with its quite disappointing effect, when considering the contemporary modern business world, that both respects and enjoys the doctrine of restricted immunity, and its division between transactions jure imperii and transactions jure gestionis. In particular, this concept secured access to justice for private actors when trading with states. It may be submitted that both the international commercial and investment arbitration are vivid examples of all the possible doctrinal tensions, exposed by the international law of immunity. The most recent accounts of relevant cases disclose a general shift toward the doctrine of restrictive sovereign immunity and simply put, the restrictive sovereign immunity ought to have a universal scope of applicability across the globe. Except for introducing the issue of the state immunity in international arbitration, this two part long study presents a brief account of the reasons why the doctrine of restrictive immunity should dominate the ground of international commerce. As the story develops, it will make three intertwined observations in this respect.
3

IMUNITA ŠTÁTU V MEDZINÁRODNEJ ARBITRÁŽNEJ A OBCHODNEJ PRAXI. I. ČASŤ. HISTORICKÝ VÝVOJ, ZMLUVNÉ VZDANIE SA IMUNITY

80%
Chovancová K.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2017
|
vol. 100
|
issue 4
372 – 390
EN
Theory of restrictive sovereign immunity substantiated itself as wishful, but still not a complete replacement of its older sibling, being obsolete absolute immunity from both jurisdiction and enforcement of arbitral award. Actually, it is widely known that a right of the party to the international arbitration to properly enforce an arbitral award, rendered in its favour against the state, stays a controversial issue. It may be submitted that the aforementioned situation is a courtesy of a residual application of the theory of absolute sovereign immunity - a pain in the neck of traders with its quite disappointing effect, when considering the contemporary modern business world, that both respects and enjoys the doctrine of restricted immunity, and its division between transactions jure imperii and transactions jure gestionis. In particular, this concept secured access to justice for private actors when trading with states. It may be submitted that both the international commercial and investment arbitration are vivid examples of all the possible doctrinal tensions, exposed by the international law of immunity. The most recent accounts of relevant cases disclose a general shift toward the doctrine of restrictive sovereign immunity and simply put, the restrictive sovereign immunity ought to have a universal scope of applicability across the globe. Except for introducing the issue of the state immunity in international arbitration, this two part long study presents a brief account of the reasons why the doctrine of restrictive immunity should dominate the ground of international commerce. As the story develops, it will make three intertwined observations in this respect.
4
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State Immunity and the Right of Access to Court. The Natoniewski Case before the Polish Courts

80%
Nowosielski R.
Polish Yearbook of International Law
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2010
|
vol. 30
236-262
EN
On 29 October 2007, Winicjusz Natoniewski filed the lawsuit against the Federal Republic of Germany in the Circuit Court in Gdansk (Poland), demanding a payment of PLN 1,000,000 as a redress for injuries he suffered as a result of activities of the German military forces during World War II. The Circuit Court, Appellate Court and the Supreme Court rejected the lawsuit stating that the State immunity of the Federal Republic of Germany excluded the jurisdiction of Polish courts in this case and thereby deprived Natoniewski of the right to dignity guaranteed by Polish, European, and international law. The actions taken by German forces in the Natoniewski case constitute a war crime and a crime against humanity. In the case of such serious crimes, a State cannot invoke its immunity. The infringement of fundamental human rights entails the withdrawal of all benefits and privileges provided by international law, and thus is an implied waiver of the State immunity. This consequence results from the principle that no one can benefit from his/her unlawful conduct. Granting immunity to a State in case of international crimes committed by the State is contrary to the foundations of international law and it destroys the values which are the most important for the international community.
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