Polish Yearbook of International Law

1 XXX POLISH YEARBOOK OF INTERNATIONAL LAW 2010 Board of Editors: WŁADYSŁAW CZAPLIŃSKI (Editor-in-Chief) JAN BARCZ ANNA WYROZUMSKA KAROLINA WIERCZYŃSKA ŁUKASZ GRUSZCZYŃSKI Advisory Board: MAURIZIO ARCARI LOUIS BALMOND JERZY KRANZ ANDRZEJ MĄCZYŃSKI JERZY POCZOBUT PAVEL STURMA VILENAS VADAPALAS ROMAN WIERUSZEWSKI JERZY ZAJADŁO ANDREAS ZIMMERMANN Stylistic editor: BART M.J. SZEWCZYK Cover designed by BOGNA BURSKA POLISH ACADEMY OF SCIEN CES INSTITUTE OF LAW STUDIES XXX POLISH YEARBOOK OF INTERNATIONAL LAW 2010 Wydawnictwo Tekst Sp. z o.o. Warszawa 2011 All texts express exclusively personal views of the authors. Authors bear full re spon si bility for statements and opinions ex pressed in the published studies. © Copyright by Institute of Law Studies Polish Academy of Sciences, Warszawa 2011 PL ISSN 0554-498X Printed in Poland Wydawnictwo Tekst sp. z o.o. ul. Kossaka 72, 85-307 Bydgoszcz tel./fax 052 348 62 50 e-mail: [email protected] www.tekst.com.pl Nakład: 350 egz. CONTENTS ARTICLES: Ireneusz C. Kamiński “Historical Situations” in the Jurisprudence of the European Court of Human Rights in Strasbourg ....................................................................................................... 009 Artur Kozłowski The Legal Construct of Historic Title to Territory in International Law – An Overview ........................................................................................................ 061 Michał Kowalski Armed Attack, Non-State Actors and a Quest for the Attribution Standard ............... 101 Bart M.J. Szewczyk Enlargement and Legitimacy of the European Union ................................................ 131 Valentina S. Vadi Environmental Impact Assessment in Investment Disputes: Method, Governance and Jurisprudence ................................................................................................... 169 Tomasz Włostowski Selected Observations on Regulation of Private Standards by the WTO ..................... 205 Marcin Kałduński State Immunity and War Crimes: the Polish Supreme Court on the Natoniewski Case ........................................................................................... 235 Roman Nowosielski State Immunity and the Right of Access to Court. The Natoniewski Case before the Polish Courts ..................................................................................................... 263 TRANSCRIPT OF THE DEBATE: State Responsibility for the CIA’s Secret Prisons in Third States (outside the US) ............ 277 POLISH PRACTICE IN INTERNATIONAL LAW: The Supreme Court decision of 29 October 2010, Ref. No. IV CSK 465/09 in the case brought by Winicjusz N. against the Federal Republic of Germany and the Federal Chancellery for payment ........................................................................ 299 Judgment of 24 November 2010 Ref. No. K 32/09 concerning the Treaty of Lisbon (application submitted by a group of Senators) ................................. 304 6 CONTENTS BOOK REVIEWS: Antônio Augusto Cançado Trindade International Law for Humankind. Towards a New Ius Gentium, by Christophe Swinarski ................................................................................................ 315 Kenneth J. Vandevelde Bilateral Investment Treaties, History, Policy, and Interpretation, by Łucja Nowak ........... 318 James A. R. Nafziger, Robert Kirkwood Paterson, Alison Dundes Renteln (eds.), Cultural Law: International, Comparative and Indigenous, by Andrzej Jakubowski ........... 321 POLISH BIBLIOGRAPHY OF INTERNATIONAL LAW 2010 ..... 327 Dear Readers, We are delighted to present you with a new volume of the Polish Yearbook of International Law for the year 2010. As you will notice there are many impor- tant changes. As of January 2011 we have a new Board of Editors. The composi- tion of the Advisory Board has also changed and now includes many renowned international scholars. We have also decided to modify some technical parameters of the publication – the most visible is probably the introduction of a hard cover. The specifi c parts of the Yearbook remain as for now unchanged. You will, there- fore, fi nd our traditional sections such as book reviews, Polish practice in international (and European) law and the current Polish bibliography of international law. The new volume in 2012 will probably bring some additional changes; however at this moment, they are still subject to our internal discussion. We also would like to inform you that the Polish Yearbook of International Law has decided to enter into cooperation with the prestigious legal database HeinOnline. We hope that all our historic volumes will be available on Hein by the end of this year. Some of the past articles defi nitely merit attention. As to the content of the current volume, you will fi nd a variety of diff erent subjects, from traditional public international law (Kozłowski, Kowalski), human rights (Kamiński), and international economic law (Vadi, Włostowski) to Euro- pean law (Szewczyk). In addition, the volume includes an interesting polemic on the recent judgement of the Polish Supreme Court (Nowosielski, Kałduński) that discussed the limits of state immunity. There is also a transcript of the debate that took place in March 2011 at the Institute of Law Studies on the topic of state responsibility for CIA secret prisons in third states. We hope that you will enjoy this new volume of the Polish Yearbook of International Law. Łukasz Gruszczyński & Karolina Wierczyńska Warsaw, June 5, 2011 XXX POLISH YEARBOOK OF IN TER NA TIO NAL LAW 2010 PL ISSN 0554-498X Ireneusz C. Kamiński* “HISTORICAL SITUATIONS” IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN STRASBOURG Abstract This Article investigates how the European Court of Human Rights becomes competent to make decisions in cases concerning (or taking roots in) “historical situations” preceding the ratifi cation of the European Convention by a given Member State or even the enactment of the Convention. “Historical situations” refer to events that occurred in the period of Second World War or shortly thereafter. In all such cases, the preliminary question arises whether the Court is competent temporally (ratione temporis) to deal with the application. This group of cases concerned usually allegations touching upon the right to life and the right to property. The Court had to decide if the allegation in question related to a temporally closed event (making the Court not competent) or rather to a continuous violation (where the Court could adjudicate). A specifi c set of legal questions arose vis-à-vis the right to life, fi rst of all that of the autonomy of the procedural obligation to conduct an effi cient investigation. The Strasbourg case law did not provide a clear answer. However, following two crucial judgements rendered by the Grand Chamber, the Court has established an interesting legal framework. Arti- cle analyses also two other situations having a historical dimension: bringing to justice those accused of war crimes or other crimes under international law (in light of the alleged confl ict with the principle of nullum crimes sine lege) and pursuing authors of pro-Nazi statements or speech denying the reality of Nazi atrocities. Complaints concerning situations which took place before a given country ratifi ed the European Convention on Human Rights (hereinafter referred to as the “Convention”) have found their way, and continue to fi nd their way, onto the * Ireneusz Kamiński, Ph. D., is an assistant professor of law at the Institute of Law Studies of Polish Academy of Sciences and the Jagiellonian University in Kraków, Poland. 10 Ireneusz C. Kamiński docket of both the European Court of Human Rights in Strasbourg (hereinafter interchangeably the “Court” or “ECHR”) as well as the earlier European Commis- sion on Human Rights (hereinafter usually “Commission”).1 In such cases, one of the preliminary questions which arises concerns the ratione temporis competence of the Court/Commission. Both the Court and Commission have attempted to de- lineate the criteria upon which they decide whether a given complaint (also sometimes referred to as an application) is timely and justiciable, or barred as untimely. Questions and issues related to the timeliness of complaints will be exam- ined in the fi rst part of this work. These questions usually arise in connection with violations of the right to life (Article 2) or the right to property (Article 1, Protocol no. 1). It has sometimes happened that complainants have accused the State (in its own right or through individuals or agencies acting on its behalf) of being directly liable for taking of life or property in violation of the provisions of the Convention. However, more often the State, as a Party to the Convention, is accused of failure to react appropriately to a death or homicide or illegal dep- rivation of property via its alleged failure to conduct an eff ective investigation or prosecution, failure to apprehend those responsible, or failure to provide ap- propriate legal remedies. In order for the Court or Commission to review accusa- tions against a State arising out of events which took place before the Convention entered into force on the territory of said State, it had to establish a set of criteria which would justify its jurisdiction over cases arising from so-called “historical situations”, understood, for the purposes of this work, as situations arising out of events during the World War II and the years immediately following its end. In addition

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