POLISH YEARBOOK OF INTERNATIONAL LAW XVIII ACADEMIE POLONAISE DES SCIENCES INSTITUT DES SCIENCES JURIDIQUES ANNUAIRE POLONAIS DE DROIT INTERNATIONAL XVIII 1989— 1990 OSSOLINEUM MAISON D’EDITION DE L’ACADEMIE POLONAISE DES SCIENCES Dr. Władysław Czapliński ul. Widawska 7/36 01-494 Warszawa POLISH ACADEMY OF SCIENCES INSTITUTE OF LAW STUDIES POLISH YEARBOOK OF INTERNATIONAL LAW XVIII 1989— 1990 WROCŁAW-WARSZAWA-KRAKÓW ZAKŁAD NARODOWY IMIENIA OSSOLIŃSKICH WYDAWNICTWO POLSKIEJ AKADEMII NAUK 1992 EDITORIAL COMMITTEE * COMITE DE REDACTION Lech Antonowicz, Remigiusz Bierzanek, Wojciech Góralczyk, Roman Jasica, Jerzy Kranz, Manfred Lachs, Jerzy Makarczyk, Janusz Mic- kiewicz, Stanisław E. Nahlik, Jerzy Rajski, Krzysztof Skubiszewski, Janusz Symonides, Andrzej Wasilkowski, Karol Wolike EDITORIAL BOARD • REDACTION Andrzej Wasilkowski (Editor-in-Chief) Jerzy Rajski (Deputy Editor-in-Chief) Renata Szafarz (Deputy Editor-in-Chief) Address of the Editorial Board • Adresse de la Rédaction Institute of Law Studies, Polish Academy of Sciences, Nowy Świat 72, 00-330 Warszawa The typescript of the current issue was handed to the Publisher in December 1989. Contents * Table des matières Articles WŁADYSŁAW CZAPLIŃSKI, The Polish-East German Dispute on the Delimitation of Maritime Areas in the Bay of Pomerania an Appraisal 7 GENOWEFA M. GRABOWSKA, Les avis consultatifs— de la Cour Internationale de Justice 17 RUDOLF OSTRIHANSKY, The “ Mazilu Opinion” of the International Court of Justice and Its Contribution to Clarification of International Law 31 ANNA PRZYBOROWSKA-KLIMCZAK, Les notions des « biens culturels » et du « patrimoine culturel mondial » dans le droit international . 47 STEFAN SAWICKI, Privilege of Inviolability of Consular Archives and Premises . 73 JANUSZ SYMONIDES, Les fonctions de la justice internationale dans les relations internationales contemporaines 87 RENATA SZAFARZ, Treaty Obligations of Poland in the Field of Settlement of International Disputes 99 Materials of Polish-Dutch Conference on International Law Introduction 113 ARIE BLOED, A European System of Peaceful Settlement of Disputes? . 113 ANDRZEJ WASILKOWSKI, Comments on Arie Bloed’s Theses 129 ANDRZEJ BURZYŃSKI, Paving the Road for Settlement of Investment Issues Polish Experience so Far 135 E.P.J. MYJER, ICSID and the Settlement of Investment Disputes in Poland . 143 Jurisprudence MACIEJ TOMASZEWSKI, The Polish Court Judgements in International Civil Law Cases 153 ANDRZEJ W. WIŚNIEWSKI, Awards of the Court of Arbitration at the Polish Chamber of Foreign Trade in Warsaw 163 Book Reviews * Comptes rendus LECH ANTONOWICZ, Pcuistwa i terytoria. Studium prawnomiędzynarodowe [ States and Territories. An International Legal Study] by Rudolf Ostrihansky 169 Forty Tears. International Court of Justice: Jurisdiction— , Equity and Equality by Wojciech Forysiński — 171 GENOWEFA GRABOWSKA, Funkcjonariusze międzynarodowi [ International Civil Servants] — by Rudolf Ostrihansky 174 ANDRZEJ JACEWICZ, JERZY MARKOWSKI, Kosmos a zbrojenia. Aspekty politycz- ne, militarne, prawne [Outer Space and Arms Race. Political, Military and Legal Aspects] by Janusz Prystrom 176 JERZY MAKARCZYK— , Zasady Nowego Międzynarodowego Ładu Gospodarczego.Studium prawnomiędzynarodowe [The Principles of the New International Economic Order. A Study of International Law in the Making] by Andrzej Całus 177 RENATA SZAFARZ, Wielostronne stosunki traktatowe— Polski [ Poland’s Multilateral 7łeaty Relations'] — by Andrzej Jacewicz 181 Treaties •Traités International Treaties Entered into Force in Relation to Poland in 1988 and 1989 - by Joanna Gomula 183 Bibliography « Bibliographie Polish Bibliography of International Law, 1988 189 Polish Bibliography of International Law, 1989 - compiled by Marta Jaszczukowa . 197 A R T I C L £ s POLISH YEARBOOK OF INTERNATIONAL LAW VOL. XVin, 1989-1990 PL ISSN 0554-498X The Polish-East German Dispute on the Delimitation of Maritime Areas in the Bay of Pomerania — an Appraisal by WŁADYSŁAW CZAPLIŃSKI The agreement between Poland and the GDR concerning the delimitation of maritime areas in the Bay of Pomerania, concluded in Berlin on 22 May, 1989, has finished a long-lasting dispute between the parties. The agreement constitutes a part of the boundary settlement between Poland and Germany, it will remain in force also after the reunification of Germany what has been confirmed by the Chancellor Helmut Kohl in his speech on 22 June, 1990. For a long time any comment dealing with the dispute has been forbidden by the censorship and no materials have been available; it seems necessary to present the issues connected with it to the readers of the Yearbook. The Bay of Pomerania is an open bay formed in the South-Western part of the Baltic Sea, the depth of its largest part does not exceed 4 mtrs; through three straits it is connected with the Bay of Szczecin (Stettin). Because of the influence of the Oder River and sea streams it is subject to intensive silting and sanding up processes. Important navigable waterways cross through the Bay of Pomerania, connecting the Polish harbours of Szczecin (Stettin) and Świnoujś- cie (Swinemünde) with the high sea. The most important waterway leads through the natural deep sea channel additionally adjusted by Poland in 1967 — 1969. The boundary between Poland and Germany has been established in the Potsdam agreement of 2 August, 1945' and subsequently delimited by the agreement of Görlitz between Poland and the GDR of 6 July, 1950.2 According to the later one, the frontier between Poland and Germany ranges in its northern section west of the Polish town Świnoujście and reaches the Baltic coast (Art 1); the land boundary delimits also the air space and maritime areas of Poland and the GDR (Art. 2). The frontier has been finally delimited by the , • Foreign Relations of the United States. Diplomatic Papers. The Conference of Berlin 1945 voL 2, p. 1509. See below. 2 UNTS 319, p. 95. 8 WŁADYSŁAW CZAPLIŃSKI Act of Frankfurt/Oder of 27 January, 19513 which precised also the general course of the maritime frontier through establishing the angle of the contact of the boundary with the sea. This premise has been adopted in the agreement of 29 October, 1968 on the delimitation of the continental shelf in the Baltic Sea between Poland and the GDR. The next step towards the delimitation of the maritime areas was the adoption by the Polish Parliament on 17 December, 1977 of two laws: on the territorial sea and on the Polish fisheries zone. 4 The territorial sea has been enlarged to 12 nautical miles; the Western limit of the territorial sea has not been defined and the law refers in this respect to an international agreement (Art 2). 5 To the contrary, the Western limit of the fisheries zone has been precisely defined. To sum up, the Western maritime boundary of Poland has been defined by three different lines, two of them because of unknown reasons 6 being established in favour of the GDR (continental shelf, fishery zone) and the third one not being precised at all. On 25 March, 1982 the East German Parliament passed a law on the state boundaries of the GDR 7 which entered into force on 1 May, 1982. According to this law, the Council of Ministers has been empowered to conform the limits of the territorial sea to international law. The law guarantees the right of foreign merchant ships to the innocent passage through the East German territorial waters according to respective international legal norms but sets important restrictions on the right of passage of foreign war and other non-merchant ships, the salvage by foreign ships, etc.East German authorities have been granted with important competence in respect of ships violating the right of peaceful passage and the laws of the GDR. The provisions of the law of 1982 have been crystallized by two regulations enacted by the East German Council of Ministers on 20 December, 1984 and on 3 April, 1986. The breadth of the territorial sea of the GDR has been enlarged to 12 nautical miles; according to the points indicated in the regulations, the main navigable waterway to the Polish ports of Szczecin and Świnoujście as well as the only deep mooring built and maintained by Poland have been unilaterally included into the territorial sea of the GDR. The executive regulations have stated that the navigation to the ports should be operated exclusively through the waterways indicated by the GDR 8 and 1 Dziennik Ustaw [Journal of Laws], further quoted DBU., 1952. No. 53, item 347. 4 DBU,, 1977, No. 37, items 162 and 163 respectively. 5 Such an agreement has been concluded with the USSR on 18 March, 1958, Dz.U., 1958, No. 76, item 386. { So correctly J. GILAS, “Prawne problemy delimitacji wód terytorialnych w Zatoce Pomorskiej” [Legal Problems of the Delimitation of Territorial Waters in the Bay of Pomerania], Przegląd Zachodni, 1990, No. 1, p. 53. 7 GB1. 1982 I, No. 11, p. 197. 1 Such a possibility has been accepted in Art. 22 of the UN Convention on the Law of the POLISH-EAST GERMAN DISPUTE 9 imposed restrictions on the passage of Polish warships and non-merchant state vessels between the high sea and the Polish ports mentioned above. It means in practice that the GDR has been able to control the passage of foreign (Polish and other) ships going to the ports and in this way to cut off the access. E.g. the only deep water mooring in the road of Szczecin-Świnoujście has been included into the territorial sea of the GDR. A part of vessels coming to these port are discharged in the road — in the light of the East German regulation (based in this respect on the general rules of the law of the sea dealing with the innocent passage) such an unloading would be illegal. Furthermore, in the case of any conflict Polish warships would not be able to pass through the territorial waters of the GDR without the prior notification which would made their action impossible. Certain practical steps undertaken by the East German authorities like e.g.the strict injunctions not to dredge the navigable waterways leading to Szczecin and Świnoujście testify that in fact that in the particular political situation the intention of the GDR has been.