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  1. 2 Studia Prawnicze

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  1. 2 Szuniewicz M.

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  1. 1 2007

  2. 1 2006

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LEGAL PROTECTION OF FAMILY IN STATE OF EMERGENCY

100%
Szuniewicz M.
Studia Prawnicze
|
2007
|
issue 3(173)
59-96
EN
This study is aimed at analysing the issue of family's legal protection in state of emergency. This problem is emerging in exceptional situations due to the fact that none of human rights treaties (apart from the American Convention of Human Rights) includes family's rights in catalogues of non-derogable ones. In the first part of this work, the author tried to introduce the mechanism of derogation of human rights obligations under the state of emergency and makes a thesis statement of non-derogable nature of family unit's rights. The second part of this study contains presentation of reasons that lie behind the thesis stated above, that is: arguments derived from implications of rigorous conditions of derogation clause (with special regards to substential tests), the principle of consistency of derogating measures with international obligations, argumentation consequent the general theory and philosophy of human rights law, implications of special protection given to children and women and examples from domestis constitutional legal systems. In the next part he faced the problem of relevance of legal obligations under international humanitarian law in the state of emergency which is not an armed conflict. Further, the author turned to the underlining the need for improving the normative regulation of rights of the family in case of proclaiming the state of emergency and covering with precisely stipuleted guarantees 'the gray zone between war and peace', that is process of elaborating 'minimum humanitarian standards' (lately called as 'fundamental standards of humanity'). Also some remarks are made upon ICRC's activities on behalf of families in the emergencies.
2

AN INTERPRETATION OF COMMUNITY LAW - METHODS AND BINDING FORCE OF ESJ LEGAL REASONING

100%
Szuniewicz M.
Studia Prawnicze
|
2006
|
issue 1(167)
23-68
EN
This study is aimed at analysing a way of an interpretation of European law, precisely the methods of interpretation employed by the European Court of Justice (ECJ) and binding force of its legal reasoning embodied in preliminary rullings. The first part of this work tries to indicate a new attitude and more comprehensive view on process of ECJ's legal reasoning which should be - according to the author's opinion - considered as a kind of matrix of particular elements, a specific puzzle of commonly known methods and techniques of legal interpretation with a paradigm of European integrity and principles of 'uniformity' and 'effect utile' as determining factors. This leads to putting forward a suggestion for comprehensive 'holistic' approach to all elements in the 'matrix of considerations' by reference to which the legal meaning of the provision in question is to be identified, which is followed by the precise description of each of them. The second part deals with the institution of preliminary rullings and the question of its binding force with a special emphasis lied on the 'clear meaning' of the provision whether according to 'clara non sunt interpretanda' rule ('acte clair') or because its meaning has already been explained in previous ECJ case law ('acte éclaire').
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