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The Legal Construct of Historic Title to Territory in International Law – An Overview

100%

Kozlowski A.

tom 30

61-100

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.

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.

tom 36

37-50

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.

Immunitet jurysdykcyjny państwa Wyrok Międzynarodowego Trybunału Sprawiedliwości z dnia 3 lutego 2012 r. w sprawie Niemcy przeciwko Włochom – Omówienie

63%

Dyrda Ł.

tom 21

nr 4

1017-1033

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.