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1
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The Legal Obligation to Prevent Genocide: Bosnia v Serbia and Beyond

100%
Forlati S.
Polish Yearbook of International Law
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2011
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vol. 31
189-205
EN
This article assesses the impact of legal rules aimed at preventing genocide. The specific features of the legal obligation to prevent genocide are analyzed in light of the current debate on the “responsibility to protect” and the ICJ’s stance on the issue in Bosnia v Serbia. While the content of positive obligations such as the one under discussion is usually elaborated through the case law of judicial or quasi-judicial bodies, the ICJ refrained from doing so, stating that only manifest breaches of the obligation to prevent genocide give rise to international responsibility. The author seeks an explanation for the reasons underlying such an approach, and tries to identify other ways in which legal standards in the field of genocide prevention could be developed.
2
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The Legal Construct of Historic Title to Territory in International Law – An Overview

100%
Kozlowski A.
Polish Yearbook of International Law
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2010
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vol. 30
61-100
EN
Historic title is just one of many legal instruments which may be raised by parties and used by judges to decide a territorial dispute. If a claim of historic title in given circumstances may be deemed to have been extinguished as a result of its relative weakness, the elements advanced in support of its construction, for example uti possidetis or effective occupation, may be used to support other types of legal claims. Taking into account its construction and its systemic conditional criteria, historic title gains maximum effectiveness when conditions exist which would support a finding of its incremental consolidation. This involves a multi-dimensional interpretation in reliance on particular elements which, taken together, create a complicated factual state in a particular territorial dispute. On the other hand, consolidation of historic title is not an argument which can be used by the indigenous native inhabitants of a territory, since their arguments are not based on claims of sovereignty.
3
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Book review: Robert Kolb, The International Court of Justice, Hart Publishing, Oxford: 2013

88%
Krzan B.
Polish Yearbook of International Law
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2014
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vol. 34
313-317
EN
Review of a book: Robert Kolb, The International Court of Justice, Hart Publishing, Oxford: 2013
4
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Advisory Opinion or Judgment? The Case of the Chagos Archipelago

88%
Kuźniak B., Kabat-Rudnicka D.
Adam Mickiewicz University Law Review
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2021
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vol. 13
45-75
EN
The aim of this article is to provide an analysis of the ICJ’s advisory opinion of 25 February 2019 on the Chagos Archipelago. It will endeavour to answer the following questions: (i) is it consistent with the letter and the spirit of international law for the ICJ to issue advisory opinions in cases involving a dispute between states, which, due to the lack of consent from one of the states, cannot be brought before the ICJ and be settled by a judgment of that judicial body?; (ii) is such a ruling the right way to settle the issue of decolonization?; and (iii) did Brexit play any role in the case under discussion? The article begins by describing the background to the dispute between the UK and Mauritius. The focus of the analysis then shifts to the nature of advisory opinions and the 2019 ICJ advisory opinion on the Chagos Archipelago. Next, the authors discuss the possible impact of Brexit on the dispute between the UK and Mauritius itself, as well as on the UK’s international standing in general. The article concludes with reflections on voluntarism in international law. The authors conclude that de lege lata an authorized body or organization may ask the ICJ for an advisory opinion in situations where it believes that such an opinion would be useful for its work. However, such advisory opinions should not have the character of authoritative court statements made in pending disputes between sovereign states. As a consequence, such opinions should refer only to abstract legal problems, which means that in some cases the ICJ should refrain from issuing them.
5
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Original Sin Reaffirmed: The Nicaragua Judgement’s Impact on the Notion of Armed Attack as the Most Grave Form of the Use of Force

75%
Kowalski M.
Polish Yearbook of International Law
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2016
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vol. 36
37-50
EN
This article is referenced to the thirtieth anniversary of the ICJ’s Nicaragua judgement on the merits of 1986. It acknowledges the significance of this much-debated judgement for the modern international law on the use of force (jus ad bellum). However the text focuses on one aspect of the judgement only, i.e. the definition of the notion of “armed attack” as the most grave form of the use of force. The impact of the judgement in this respect is critically analysed. It is argued that the introduction to the UN Charter text of undefined notions of the use of force, aggression, and armed attack may be labelled as the “original sin” of contemporary jus ad bellum, as it results in conceptual obscurity. It is also claimed that the ICJ reaffirmed this original sin in its Nicaragua judgement because it explicitly argued for the notion of “armed attack” as the most grave form of the use of armed force and, in consequence, distinguished it from the other, lesser forms of the use of force, while failing to introduce any sort of clarity in the conceptual ambiguity of jus ad bellum. The article also offers some remarks de lege ferenda and suggests abandoning the gravity criterion, which would require abandoning the well-established judicial and doctrinal interpretation approaches to jus ad bellum.
6
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The Advisory Opinion on Kosovo’s Declaration of Independence: Hopes, Disappointments and Its Relevance to Crimea

63%
Värk R.
Polish Yearbook of International Law
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2014
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vol. 34
115-131
EN
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.
7
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Krzysztof Skubiszewski and the Right to Self-determination: Past and Future

63%
Hilpold P.
Polish Yearbook of International Law
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2019
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vol. 39
21-35
EN
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 Skubiszewski’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.
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Immunitet jurysdykcyjny państwa Wyrok Międzynarodowego Trybunału Sprawiedliwości z dnia 3 lutego 2012 r. w sprawie Niemcy przeciwko Włochom – Omówienie

63%
Dyrda Ł.
Kwartalnik Prawa Prywatnego
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2012
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vol. 21
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issue 4
1017-1033
EN
On 3 February 2012, the International Court of Justice delivered a judgment in the case concerning immunities of the state between the Federal Republic of Germany and the Italian Republic. The Hellenic Republic was the state permitted to intervene in the case. The judgment not only settles the dispute between two states but also, what is of greatest importance, determines the content of the customary international law governing immunities of the state. This question is closely connected with the sovereignty of the state. The International Court of Justice finally decided whether Germany is entitled to immunity before the courts of other states in proceedings designed to establish its liability for loss or damage caused by the German Reich during the World War II. The Court separately analysed jurisdictional immunity and immunity from enforcement. The Court concluded that the decision of the Italian courts to deny immunity to Germany cannot be justified on the basis of the territorial tort principle. The Court has also rejected the second Italian argument that the subject-matter and circumstances of claims in Italian courts justified the denial of immunity. This argument was based on three strands: the gravity of the violations, the relationship between jus cogens and the rule of state immunity and the ‘last resort’ argument. They were discussed one by one and, in the end, taken together. The Court held that Germany was entitled to jurisdictional immunity under customary international law and thus Italy breached its obligations owed to Germany. The Court also found that taking the measures of constraint against property belonging to Germany constituted a violation of immunity from enforcement to which Germany was entitled under international law. Finally, the Court held that decisions of the Italian courts declaring enforceable in Italy judgments rendered by Greek courts against Germany in proceedings arising out of the Distomo massacre constituted a violation by Italy of its obligation to respect the jurisdictional immunity of Germany. The judgment comprehensively discusses the current state of international law – both customary and conventional. The Court found that the distinction of acta jure imperii and acta jure gestionis is still to some extent relevant and took a rather conservative position. This may be criticized from the perspective of the protection of human rights.
9
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Specyfika odpowiedzialności za naruszenia Europejskiej Konwencji Praw Człowieka związane z działalnością nieuznawanych reżimów – analiza orzecznictwa

55%
Zaręba S.
Studia Prawnicze
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2016
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issue 3 (207)
27-66
EN
The aim of the article is to compare the way in which the issue of responsibility for violations related to the acts of unrecognized authorities claiming to be States is treated by the European Court of Human Rights and other international courts, particularly the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia. The article considers in detail the relations between jurisdiction and responsibility, responsibility of parent States (including the concept of “positive obligations”) and responsibility of States which provide assistance to unrecognized regimes (with emphasis put on the concept of “effective control”). The results of the study indicate that the jurisprudence of the European Court differs in several important aspects from decisions of other international courts. These differences, while undoubtedly enhancing the protection of human rights in Europe, contribute to the process of fragmentation of the law of international responsibility.
10
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Wpływ opinii doradczych Międzynarodowego Trybunału Sprawiedliwości na postępowanie przed Trybunałami Administracyjnymi w systemie ONZ

44%
Lis E.
Studia Prawnicze
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2016
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issue 1 (205)
5-37
EN
The International Court of Justice (ICJ) is a principal judicial organ of the United Nations. The main task of ICJ is to settle disputes submitted to it by the states and is also entitled to give advisory opinions which are given on the motion of some United Nations organs and specialized agencies. The expression that ICJ is a “principal judicial organ of the United Nations” doesn’t mean that it is the only one judicial organ within the framework of the United Nations. The United Nations Administrative Tribunal (UNAT) was established by the legal force of the General Assembly resolution 351 A(IV) of 9 December 1949 r. The main purpose of the UNAT was to decide legal employment disputes between United Nations staff and the Organization. In 1955 the Statute of UNAT was amended and the Committee on Application for Review of Administrative Tribunal Judgement was competent to seek advisory opinion form ICJ and this opinion was binding. However Committee only in three cases requested the ICJ to give advisory opinion. Those opinions concerned inter alia the competence of ICJ to respond to the question, the right of Committee to submit such motion, the principle of equality of arms. In spite of that since of the 1st of July 2009 the new system of administration of internal justice was established – the United Nations Dispute Tribunal and the United Nations Appeal Tribunal, which consider the appeals against judgments rendered by the United Nations Dispute Tribunal, the issues discussed in advisory opinions of ICJ on the matters of appealing against a judicial decision of UNAT are still highly topical, especially in the context of the maintained in force competence of ICJ to review judgement of The Administrative Tribunal of the International Labour Organisation.
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