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This article studies the multifaceted effect and illegal profits of some of the international transborder crimes and their impact on society and the world economy, as well. It regards the international dimension of six crimes, which generate more than $ 3 trillion a year.
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Review of: Nataliya Tchermalykh - Lisa McIntosh Sundstrom, Valerie Sperling, and Melike Sayoglu. Courting Gender Justice: Russia, Turkey, and the European Court of Human Rights. New York: Oxford University Press, 2019. 296 pp. ISBN 978-0-19-093283-1.
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The research seeks to identify legal aspects of interpreting the Volynian events as genocidal acts. The emphasis is laid on the analysis of the specifics of different approaches to the definition of the concept of genocide suggested by UN General Assembly Convention on the Prevention and Punishment of the Crime of Genocide, by prominent Ukrainian, Polish and other foreign experts on the issues of ethnic conflicts, genocide and ethnic cleansing. The author reveals the importance of legal aspects of these crimes against humans, sheds light on the interpretation of the notions of "intent" or "motive" in the context of genocidal acts and argues that in the case study of the Ukrainian-Polish conflict it is extremely difficult to prove the presence of deliberate intent required for recognition of certain acts as genocide. The revealed legal aspects of the concept and peculiarities of its interpretation regarding the Ukrainian-Polish confrontation in the years of the World War II provide grounds to conclude that, after all, genocide is a crime under international customary law, and the prohibition of genocide is the norm of jus cogens, which is known to have the retroactive force in time.
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Article XX(f) of the GATT 1994 provides WTO Members with the possibility to adopt measures, which would otherwise be inconsistent with the GATT 1994, when such measures are “imposed for the protection of national treasures of artistic, historic and archaeological value”, and when the requirements of the so-called “chapeau” of Article XX are complied with. This provision has never been tested by WTO Panels or the Appellate Body (AB), and scholarly doctrine has not been unanimous in its reading. This paper analyzes this provision, combining previous AB jurisprudence and public international law rules on treaty interpretation and application in order to elucidate the scope of this provision. It is argued, first, that certain forms of cultural expressions such as books, music, or food, even though they may be (re)produced through industrial processes, may fall under the scope of Article XX(f). Second, and most importantly, it is submitted that not all uncertainties concerning Article XX(f) can be resolved at once. This is due to the inherently fluid and ever-evolving nature of artistic, historic, and archaeological value attached to certain goods and to the need to leave enough space for crystallized rules to adapt to values which evolve over time.
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As is well known, Article 36 of the Treaty on the Functioning of the European Union balances the role of the internal market with other interests. Among them, the protection of national treasures possessing artistic, historic, or archaeological value may justify prohibitions or restrictions on imports, exports, or goods in transit. These rules are the consequence of the recurring clash of interests between those who ask for a totally free art market and those who argue in favour of controls to avoid the dispersion of national patrimonies. The definition of the term “national treasures” is de facto open to determination by each Member State. Two fundamental points will be critically explored in this work: 1) the EU competence to verify the conformity of domestic rules identifying goods as belonging to their “national treasures” within the framework of Article 36 TFEU; and 2) the feasibility of using EU law for determining a threshold framework definition.
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This article analyses the recent developments on the international, regional, and national level in preventing the trafficking in movable cultural property. The analysis starts by looking at the legal framework provided by the 1970 UNESCO Convention and the necessity of the Convention’s implementation into national law. It then focuses on the 2016 law reform in Germany implementing the 1970 UNESCO Convention as well as Directive 2014/60/EU. Whereas most States have adopted national export provisions protecting their own national cultural property, only a few States – like Canada and Germany – provide for general import provisions. Against the backdrop of the UN Security Council Resolution 2347 (2017) and the 2019 EU Import Regulation, the article illustrates that import and export provisions are two sides of the same coin in terms of preventing trafficking in cultural property.
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Under international law, cultural property is protected by a broad range of legal instruments prohibiting its destruction during armed conflicts. At the same time, the premise that international crimes must be of a sufficient gravity plays a crucial role in international criminal law. In this sense, the enforcement of the legislative framework aimed at the protection of cultural property before an international court is only possible if the crime concerned is sufficiently grave in the context of international criminal law. While the latest gravity assessment regarding such a crime was made by the International Criminal Court (ICC) Prosecutor in Al Mahdi case, previous examples include similar assessments made by the International Criminal Tribunal for the former Yugoslavia for the shelling of Dubrovnik in the Jokić and Strugar cases. Recently, in addition to its humanitarian plight on a horrible scale, the Syrian Civil War has also seriously affected all six World Heritage Sites within its territory, including the Site of Palmyra. As a result of this ongoing armed conflict, the monuments in the Site of Palmyra experienced widespread damage inflicted by Daesh. Having reference to the ICC Prosecutor’s assessment of the gravity of the crime in the Al Mahdi case, this article analyses the legal arguments which support the thesis that its destruction is clearly grave enough to take further action by the international community, even if not yet by the ICC due to its lack of jurisdiction.
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Two International Conferences on Private Rights and Cultural Property; Gdańsk, 6-7 June 2019
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The 3rd Annual Conference of the TIAMSA – The International Art Market Studies Association; Lisbon, 21-23 November 2019
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The right of coalition, understood as a second-generation human right, is related to equality, and is one of the manifestations of the freedom of association. The latter is recognised among the first-generation human rights, or those which do not originate from positive law but from the fact of belonging to the species of homo sapiens. The role of the state with respect to freedoms is to guarantee and secure them, while implementation of equality rights requires a legal framework and financial outlays. The current publication presents the evolution of the right to establish trade unions, as stipulated by Polish law, starting from the post-war period and ending with the latest changes which came in force on 1 January 2019; these are shown in the context of international regulations.
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Since August 17, 2015 the courts of the Member States of the European Union apply the conflict-of-laws rules adopted in the EU Succession Regulation (EU) in succession matters. From the Polish point of view, this constitutes not only the change of the rules applied for the purposes of determining jurisdiction and the applicable law, but also a new approach to the overriding mandatory provisions. Contrary to other European instruments of private international law, the Succession Regulation neither uses the term “overriding mandatory provisions”, nor defines its meaning. Nevertheless, in Article 30 the Regulation provides for application — irrespective of the law applicable to the succession under its conflict rules — of the special rules of the State, where certain immovable property, enterprises or other special categories of assets are located, and which — for economic, family or social considerations — impose restrictions concerning or affecting the succession in respect of those assets, in so far as, under the law of that State, they are applicable irrespective of the law applicable to the succession. The interpretation of this provision cause difficulties. It is not clear whether the concept of the special provisions embodied in Article 30 refers to the concept of overriding mandatory rules, well known in the European private international law, or whether it constitutes an original solution. Another controversial issue discussed in the paper is the relevance of the mandatory rules of the forum or the third State other than those mentioned in Article 30.
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The paper is devoted to the admissibility of recognition and enforcement of a judgment of a foreign court, the subject matter of which is recognition or declaration of enforcement of a judgment from yet another state (judgment on judgment). The issue is discussed in particular with reference to the public policy exception which constitutes a ground for refusal of recognition or enforcement of foreign judgments, both under Polish domestic law (the Code of civil procedure) and European law (Brussels I bis Regulation). It remains controversial whether the judgments on judgments should be recognized, thus benefiting from the so called “parallel entitlement”. The article takes a comparative approach, examining solutions adopted by various legal systems and analysing arguments for and against recognition of such decisions. The author takes the position that they should not be recognized (and that their enforceability should not be declared) in Poland, both under the Code of civil procedure (as with respect to judgments originating from non-EU states), as well as under EU legislation, in particular Brussels I bis Regulation. It is advocated that the concept of a “parallel entitlement” should be rejected.
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The Polish case of Janowiec and Others v. Russia was initiated by a group of close relatives of victims of the 1940 Katyń Massacres. Only in 1990 did the Soviet Union recognize that it had perpetrated the massacres. The applicants in the Janowiec case alleged that the Russian investigation into the massacres, which commenced in 1990 as transparent proceedings but was terminated in 2004 in secrecy, cannot be considered effective under the Convention. Furthermore, inasmuch as the Russian military prosecutors and courts held that the Polish prisoners-of-war “had disappeared” in the spring of 1940 or—if “hypothetically” killed—there might have existed just cause for such an execution, the applicants complained that such statements denied established historical facts and were tantamount to the denigrating and inhuman treatment prohibited by the Convention. The Grand Chamber judgment was not in the applicants’ favor. By a majority, the judges either declined to hear the case on its merits or held that there had been no violation of the Convention, turning—as the four minority judges wrote in their dissent—“the applicants’ long history of justice delayed into a permanent case of justice denied.” This article is a personal account of the principal lawyer acting on behalf of the applicants in the Janowiec case.
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As parliamentarian during the Bosnian war, witness at the International Criminal Tribunal for the former Yugoslavia, and finally as politician with considerable executive power in the role of High Representative, the length and multifaceted nature of Paddy Ashdown’s interaction with Bosnia and Herzegovina is atypical. This rarity provides a unique opportunity to examine the factors that influence a politician’s views and understanding of a foreign country and examine how and why they oscillate and develop over time. By first identifying the preconceptions and misjudgements which Ashdown entered the realm of the Bosnian war with in 1992, this paper examines the aforementioned stages in Ashdown’s interactions with the country and subsequently provides a political evolution of his views from 1991 to 2006.
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Central and Eastern Europe have a special place in the new multipolar world order, shaped by the influence of the European Union, the United States of America, People’s Republic of China, and the Russian Federation. To understand the European perspective in the rules-based international order, the geopolitical trajectory of the region and its status in international law should be discussed with regard to the whole scope of historical, political, economic, and ecological issues. The hybrid globalization process includes divisions and armed conflicts initiated for the sake of far-reaching global interests. Central and Eastern Europe today, after the Russian aggression against Ukraine, is turned into a frontline of the conflict between the global East and West. Russian militarism, predictably dangerous and insidious, in propaganda presents its thrusts as a reaction to the militarization of the region by the NATO forces. The annexation of Crimea, military invasion into Eastern Ukraine, and arms race are examples of Russian imperialist policies. Robust strategy and meaningful transformations are needed to prepare Central and Eastern Europe for future challenges and threats in a contingent geopolitical environment.
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Convictions for genocide in relation to the war in Bosnia (1992–1995) provide the strongest sense of justice-having-been-done to victims and their families. But at the ICTY, the reputation of which has been marred by a series of controversies, the few perpetrators found guilty of genocide were involved in the Srebrenica massacres of July 1995. Other courts have convicted individuals from a range of different locations (and periods) in the war, giving arguably a more complete sense of justice to victims, and a more accurate contribution to the historical record. It is widely perceived that the Genocide Convention has been narrowly interpreted. As most genocides do not result in total destruction, what counts as “part” of a group, especially when combined with other acts, is a key issue explored here. Two cases (outside Srebrenica) in which genocide indictees were not held responsible for genocide are examined, with the Jelisic case, involving a foot-soldier of genocide, the main focus for critical analysis. Reflection on the implications for Bosnian society are given in conclusion.
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This article examines the arguably most interesting pieces of evidence used during the trial of Slobodan Milošević at the International Criminal Tribunal for the former Yugoslavia—more than two hundred recordings of intercepted conversations that took place in 1991 and 1992 between Milošević, Radovan Karadžić, Dobrica Ćosić, and various other protagonists on the Serbian side of the wars in Croatia and Bosnia and Herzegovina (BiH). Analysis of the intercepts presented in this article makes several important contributions to the interpretation of events in former Yugoslavia during that period. First, it identifies the ideological foundations of Milošević-led Serbian war campaigns in the political influence of Dobrica Ćosić and his platform of “unification of Serbs.” Second, it contributes to the vigorous debate regarding the possible deal between Miloševic´ and the Croatian president Franjo Tuđman for the division of BiH. It confirms that negotiations took place, but that Miloševic´ and his associates had no intention of respecting any agreement and wanted the whole of BiH until at least late 1991. Third, it provides indications that Miloševic´ held the position of the de facto commander-in-chief in the operations of the Yugoslav People’s Army in Croatia and BiH. And fourth, it establishes that the two institutions of force Milošević had direct legal control over—Serbia’s State Security Service and Ministry of Interior—were his principal means of control over Croatian and Bosnian Serbs and instruments in the aggression against BiH even after its international recognition.
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All Western Balkan countries currently holding the EU Candidate Country status, namely, Albania, Montenegro, FYROM, Serbia, and hopefully in the near future Kosovo, are in a critical stage of the EU integration. From their institutions are required serious reforms, and some of these reforms are necessary for almost all the of above countries. The focus of this paper is Albania. After the approval of the EU Candidate Country status, each branch of the Albanian government is now facing new legal challenges. However, at this stage, particularly after the vetting process, the central role passes to the judiciary, which should and could turn into a real “engine” of the EU integration. The new role of the Albanian judiciary for the EU integration should primary be understood and recognized by judges themselves, as well as academics and the public. Judges in particular, should know what instruments are available there, in order to best perform their new task. This paper initially aims to clarify the new role of the Albanian judiciary, as the “engine” of the EU integration, in order to raise awareness not just to judges, but also to academics and the public. Then, it will present what practical instruments can and must be used by the Albanian judiciary in order to best achieve the required EU integration. Examples of such instruments are: the preliminary ruling; principle of supremacy; principle of direct effect; principle of indirect effect; and most importantly, EU remedies in national courts.
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Review of: Sabina Subašić Galijatović - “KRIV ZBOG OTPORA? NASER ORIĆ, BRANITELJ SREBRENICE,PRED MEĐUNARODNIM PRAVOSUĐEM”, autor Rafaelle Maison, izdavač Armand Colin, Paris, 2010.
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At the time of the COVID-19 pandemic spread, state authorities may introduce various measures and activities to protect public health. Such an activity was undertaken by authorities at certain levels in Bosnia and Herzegovina, who publicly disclose personal data of infected persons, as well as of those who are in isolation or self-isolation. The disclosure of this information was carried out regardless of the fact that the specified persons did not violate any measures previously introduced by the authorities. Given the possible limitation of the right to the protection of personal data, the Personal Data Protection Agency in Bosnia and Herzegovina reacted. With its decision from 24. 03. 2020. the Agency banned the disclosure of such personal data, and has ordered the removal of publicly released information so far. The paper presents basic provision of the Law on personal data protection in Bosnia and Herzegovina, as well as the most important international conventions that protect the right to protection of personal data. However, the focus of this paper is on examining the legality of Agency's decision, through the criteria from Article 8, paragraph 2, of the European Convention on Human Rights. The analysis in the paper concludes that the Agency has justifiably forbidden the disclosure of the personal data in question and thus properly protected the personal data of infected persons as well as of persons in isolation. The measure taken by the authorities is a measure that is not necessary in a democratic society, and it is concluded that the pursuit of the legitimate aim of protecting public health could also be achieved by a more lenient measure.
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