Polish Yearbook of International Law (PYIL; ISSN: 0554-498X; eISSN: 2957-1510) is a scientific journal established in 1966 published by the Institute of Law Studies of the Polish Academy of Sciences and the Committee on Legal Sciences of the Polish Academy of Sciences, owners of the title. The focus of the Yearbook is on public and private international law as well as European law, with a preference for Central Eastern European scholarship and manuscripts which focus on the region. Each volume of the PYIL also includes a selection of texts on the Polish practice in public international law and book reviews. PYIL is published annually, new volumes are available in August each year. Each volume includes 12-16 articles, depending on the number and the quality of the submissions in a particular as well as their lenght. A paper version shall be considered authentic. PYIL is indexed in, among others: (i) the Emerging Sources Citation Index (ESCI); (ii) Scopus; (iii) the European Reference Index for the Humanities (ERIH) PLUS; (iv) the Central European Journal of Social Sciences and Humanities (CEJSH); (v) Directory of Open Access Journals (DOAJ); (vi) the Polish and Italian (category A) lists of scientific journals.
Institute of Law Studies of the Polish Academy of Sciences
Copyright (c) 2025 Polish Yearbook of International Law
Alberta Fabbricotti (ed.), Intentional Destruction of Cultural Heritage and the Law: A Research Companion, Routledge, London–New York: 2024, pp. XXV + 451
Peter Hilpold & Giuseppe Nesi (eds.), Teaching International Law, Brill/Nijhoff, Leiden, Boston: 2024, pp. XVIII + 510
Peter Hilpold, Richard Senti, WTO: System und Funktionsweise der Welthandelsordnung, 3rd ed., Nomos-Schulthess-Facultas, Baden Baden, Zürich, Wien: 2025, pp. 533
Krystyna Kowalik, Andrzej Jakubowski, Karolina Wierczyńska (eds.), Harmony and Dissonance in the International Legal Order / Eufonia, harmonia i dysonans w międzynarodowym porządku prawnym / Euphonie, harmonie et dissonance dans l'ordre juridique inter
Selection of Judgements of the Supreme Administrative Court
Effectiveness and Constitutional Standards as a Barrier to the Correct Implementation of the European General Anti-abuse Rule
A key element in the fight against tax avoidance within the European Union has been the obligation for all Member States to introduce a harmonised gen eral anti-abuse rule (GAAR). This article explores the interplay between the Polish constitutional standards regarding the GAAR, the need to ensure its effectiveness and EU standards derived from Art. 6 of the ATA Directive and the case law of the Court of Justice of the European Union (CJEU). The analysis concludes that, while the subjective test was implemented correctly, Poland failed to properly implement Art. 6 of the ATA Directive in relation to the genuine activity test and the objective test. The Constitutional Tribunal established a very high standard for the protection of taxpayers’ rights, which hinders the proper implementation of the GAAR and conflicts with the case law of the CJEU and the provisions of the ATA Directive. Keywords: general anti-abuse rule, GAAR, constitutional standards, ATA Directive, CJEU case law, incorrect implementation, effectiveness.
Escaping into Economic Security. How Can the European Union Use Foreign Direct Investment Screening in Times of Crises? Lessons from the United States
The rapid transformation of the international economic order from a lib eral arrangement of economic interdependencies to a geoeconomic competition between states changed attitudes regarding foreign investment. This arguably protectionist turn toward national security is an attempt to safeguard against multidimensional consequences of crises. To protect the EU’s strategic autonomy, Regulation 2019/452 came into force in 2019, laying the foundations for the European Foreign Investment Screening framework. Soon afterwards, FDI screening served as an instrument in the EU’s policy for addressing and mitigating risks rapidly arising from an international crisis: the COVID-19 pandemic. This experience influenced another recent measure – the European Economic Security Strategy (EESS) – together with the proposal for the New FDI Screening Regulation. This article argues that the experience of the COVID-19 crisis inspired dualistic changes in FDI screening, transforming it into a protector of European economic secu rity. The EESS and the proposal for the New FDI Screening Regulation are juxtaposed against the United States’s experience in controlling FDI for the aim of assessing FDI screening as a tool for safeguarding European economic security in light of the EU’s inexperience in the matter
The Effectiveness of the European Approach to Irregular Migration – A Legal-economic Assessment
There are few certainties in the field of migration. From the factors that drive migrants to flee their countries and the conditions they expect to find in the des tination country to migrants’ flows, routes and methods, migration policy is constantly functioning within a field of uncertainty. Yet, the importance of better managing migration processes is becoming increasingly relevant due to the multiple factors that stimulate the international movement of people, such as conflict, political or economic instability or climate change. The uncertainty surrounding the European Union’s (EU) ability to manage migration has spurred a twofold approach: the criminali sation of migrant smuggling (in an all-encompassing way) and the externalisation of migration policy through agreements with third countries. However, are these approaches effective, or should the EU consider alternative strategies to address the challenges posed by irregular migration? The purpose of this article is to evaluate the effectiveness of the EU’s policies on irregular migration, by exploring firstly the effectiveness of criminal law in deterring migrant smuggling and secondly the EU’s recent emphasis on externalisation. The consequences of both are examined in an effort to determine their effectiveness towards the objective. The article concludes with some suggestions for the way forward.
Exploring Asymmetries of Market Integration at the Intersection of Health Protection and Mobility During the Pandemic and the Effects on the Rights of Individuals in the EU
Drawing on the theoretical approach of F.W. Scharpf (2012), as critically contested by M. van den Brink, M. Dawson and J. Zglinski (2023), the article un earths the implications for individual rights at the intersection of health protection and freedom of movement of persons in the European Union’s integrated market during the pandemic. The findings are based on empirical analysis of the CJEU case law and European secondary laws adopted in the context of counteracting the COVID-19 pandemic (2020–2022). The text shows that the Court of Justice of the European Union (CJEU) has adopted a variety of approaches in its standard of review towards national regulatory measures (either strict or deferential review), while many secondary laws were adopted at the EU level to pursue market correction policies (e.g. crisis prepared ness or protection of health data). Thus the research confirms that the current internal market dynamics in the areas of health and movement of persons is indeed too complex to be described solely by the original asymmetry thesis. Yet, it is also argued that less de-regulation at the national level (negative integration) and more re-regulation at the EU level (positive integration) does not necessarily lead to better protection and enforcement of Treaty-based and fundamental rights of individuals in the EU.
Equality of Member States as a New Rationale for the Principle of Primacy and Its Significance for the Constitutionalisation of EU Law
In its recent jurisprudence the Court of Justice of the European Union (CJEU) has indicated new grounds for the principle of primacy of EU law: the equality of Member States before the Treaties. This reflects the view that the principle of primacy should not be perceived within a bilateral framework – as a means of resolving conflicts between two legal orders (EU and national) – but in a multilateral context, where uniformity, equality and primacy are strongly intertwined. The aim of this paper will be to analyse and assess the CJEU stance on this new foundation of the principle of primacy. It will be argued that the CJEU seeking justification for the principle of primacy in arguments of an axiological nature, not only functional ones, is expected and justified after the Treaty of Lisbon and in the face of the current threats to the values embedded in Art. 2 of the Treaty on European Union. It is crucial for further strengthening of the processes of constitutionalisation of EU law. However, controversy may arise from the views that such new argumentation on the rationale of the primacy principle already resolves the competing claims of final authority in the EU.
An Axiological Turn in European Constitutionalism?
Article 2 of the Treaty on European Union (TEU), stipulating that the Union was founded on the values common to its Member States (MSs), has led to a shift towards values in the drafting, application and interpretation of EU law. This can be seen as a significant paradigm shift in the discourse on European consti tutional pluralism. It represents a transition, yet not a departure, from the “Union of law” to the “Union of values”, from a Union that is neutral towards values to one that is value-friendly. This paradigm shift is especially symbolised and illustrated by the reference to values in the case law of the Court of Justice of the European Union (known as Wertejurisprudenz), the promotion of values in the EU’s international relations and policies and the use of values to legitimise EU legislation and as a cri terion for reviewing and assessing the MSs’ activity, even in domains that are within their exclusive purview. A characteristic feature of the values listed in Art. 2 TEU, on which the strength and scope of their impact on the EU legal and institutional system directly depend, is the fact that they are legal values forming – as internal values – an integral part of the founding Treaties. Due to their placement within the Treaty structure, they are fundamental values, and because of the Treaty’s role as a constitutional charter, they are also foundational values. The listing of these values in Art. 2 TEU has objectified them – their substance no longer depends on individual moral beliefs. They are legal norms that are legally binding on their addressees. In the literature, Art. 2 TEU is often given the status and role of a homogeneity clause. However, with all due respect for this interpretative approach, I consider it inconsistent with both the meaning of this provision, which was intended to strengthen the Union’s legitimacy, and with the premises of European constitutional pluralism, which safeguard and protect the pluralism of values while opposing their uniformity and hierarchisation. It seems, however, that turning values into homogenising clauses that would unify the quantitatively and qualitatively diverse MSs’ constitutional value standards – with the CJEU monitoring their compliance with as-yet undeter mined EU models – and deriving particular obligations for the MSs from these values in conjunction with other Treaty provisions is taking it too far
Current State and Future of Investor-State Mediation
To protect the investments of their investors abroad, countries began to conclude investment treaties among themselves in the middle of the 20th century. The main feature of such treaties has been the availability of an effective mechanism for resolving disputes between a state and an investor. Most of them provide for arbi tration, the effectiveness of which is universally recognised. However, arbitration has come under criticism in recent years. Among the main reasons are the inconsistency of awards, the high cost and long duration of proceedings, the lack of transparency and other issues. Due to that, practitioners and scholars call for reform and suggest, inter alia, resorting to investor–state mediation. In this regard, many developments have been made to increase the use of mediation in future. For example, the Working Group III reform is currently taking place, the Singapore Convention has been signed, arbitration rules and guidelines have been issued, etc.
Recognition and Enforcement of Arbitral Awards in Egypt, Saudi Arabia and Iraq: Could There Be a Region-specific Approach to International Arbitration?
Arbitration award enforcement proceedings are the crucial point of any dispute, as even the most groundbreaking award is pointless if it cannot be executed. The issue of the enforceability of awards is especially interesting in the region usually omitted from discussions on alternative dispute resolution: West Asia and North Africa. Usually portrayed as a monolith, the Arab states counter this assumption by taking on a highly nuanced and jurisdiction-specific approach to international arbi tration. This paper presents snippets of recognition and enforcement legislation and the case law from three states: Egypt, characterised by its active engagement in inter national arbitration; the Kingdom of Saudi Arabia, traditionally vested in the legal tradition of Islamic law; and Iraq, which only recently acceded to the international award implementation system. These examples are employed to determine whether there are any region-specific similarities in domestic courts’ reasoning on international arbitration. The legislation and cases analysed herein provide a unique outlook on these underrepresented jurisdictions, characterised by firm attachment to national law and legal tradition and subjected to global currents of economic liberalisation.
regional approaches to international arbitration
The Enforcement of the International Covenant on Economic, Social and Cultural Rights by the Administrative Courts in Poland and Czechia
The article aims to explore the enforcement of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by administrative courts in Poland and Czechia. The concluding observations of the Committee on Economic, Social and Cultural Rights have suggested significant differences between the two countries in this regard for many years. However, the exact reasons underlying this discrepancy remained unclear. The paper provides comprehensive insight into this legal phenomenon. Firstly, the author reconstructs the obligations relating to the eco nomic, social and cultural (ESC) rights imposed on administrative courts. Secondly, the results of a large-scale review of the domestic rulings are presented. Based on the quantitative and qualitative analysis of the existing case law, it is revealed that the Polish and Czech courts share significant similarities in enforcing ESC rights. The study indicates that comparable shortcomings in terms of judicial enforcement of the Covenant are inherent in both jurisdictions. Thirdly, the author points to the existing methods available for the administrative courts that can still be used to strengthen the protection of the rights recognised in the ICESCR.
The Long-awaited Breakthrough Legislation – Changes in Ukrainian Criminal Law Due to the Ratification of the Rome Statute
Despite the fact that the Russian aggression against Ukraine has been ongoing since 2014, Ukrainian legislation establishing criminal responsibility for international crimes had not been fully in line with international standards for a long time. After many years of negotiations and overcoming many obstacles, the Law of Ukraine “On amendments to the Criminal and the Criminal Procedure Codes of Ukraine in connection with the ratification of the Rome Statute of the International Criminal Court and its amendments” of 9 October 2024 entered into force on 24 Oc tober 2024. This signifies that the Ukrainian material criminal law has introduced internationally recognised categories and elements of international crimes. In this article we analyse whether it is true that international standards regarding the ele ments of international crimes have been fully introduced, and to what extent the new legislation fulfils the goals of international criminal law – in particular, whether it sufficiently implements the standards established in the Rome Statute. This analysis indicates several elements that still could be improved in the area of Ukrainian ma terial criminal law when it comes to the definitions of international crimes.
Suitability of the Principle of Non-intervention as a Rule Against Cybernetic Electorate Targeting Information Operations
The principle of non-intervention belongs amongst the most often discussed rules of international law with the potential to regulate cyber information (dis- and misinformation) operations carried out by one state and dedicated to influence another state’s elections results (through the electorate). Contributions to those discussions differ significantly however as to the suitability of the rule for this purpose. This article tackles the issue in a step-by-step analysis, first dealing with the elements of the principle of non-intervention and its position in the systematics of the law of international peace and security, secondly analysing the applicability of the rule in cyberspace, in order to thirdly determine and evaluate what are the critical issues in the application of the rule to cyber information operations targeting the electorate of another state. Because the principle belongs to the most approximate rules of international peace and security regulation to tackle these operations, the last section is dedicated to recommendations that if applied, they might increase the likelihood of the applicability of the principle of non-intervention to the operations discussed.
Validity of a Potential Peace Treaty Between Ukraine and Russian Federation in the Light of Article 52 of the Vienna Convention on the Law of Treaties
This article examines the legal validity of a potential peace treaty between Ukraine and Russia under Art. 52 of the Vienna Convention on the Law of Treaties (VCLT), which renders treaties invalid if procured by the threat or use of force. It analyses the key elements of Art. 52, the relevant case law and state practice and the legal consequences for other states in case such a treaty is voided.
Vienna Convention on Law of the Treaties
Divisive Jus Cogens Reloaded. Some Remarks on the Peremptory Character of Self determination under the ICJ Advisory Opinion of 19 July 2024
The article focusses on a specific aspect of the International Court of Jus tice’s (ICJ) 2024 Advisory Opinion on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, namely the statement that the right to self-determination constitutes a peremptory norm of international law. The article submits that the finding of the ICJ can be at variance with the basic criteria set forth by the International Law Commission in the 2022 Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens). In particular, limiting the peremptory effect of self-determination to cases of foreign occupation that lead to annexation risks undermining the unitary, universal character of peremptory rules. Overall, the case confirms the divisive potential of the concept of jus cogens in the international legal community.
Resisting Chrononormative International Law
This article argues that better engagement between international law and time requires us to unpack the contingent memories and imaginaries that underpin international legal regimes and processes. We as a field need to move away from thinking of time as static and linear. International Cultural Heritage Law (ICHL) is an ideal case study to think through these relationships, given the subfield’s connection to identity and its relative openness to different epistemologies. This article assesses the work that time does in shaping international law, working through the three linear dimensions of time (past, present and future) to highlight the limits of internation al law, and in shaping the heuristics of these three linear dimensions. ICHL offers a pathway to simultaneously showcase the shortcomings of our international legal understandings of time (which I dub chrononormative), and to imagine different possibilities that better advance the human goals that should be the foundation and the goal of international legal norms and regimes.
Mateusz Błachucki, International Cooperation, Competition Authorities and Transnational Networks, Routledge, Oxford-New York: 2023, pp. 296
Copyright (c) 2024 Polish Yearbook of International Law
Grega Pajnkihar, State Succession to Responsibility for Internationally Wrongful Acts, Brill-Nijhoff, Boston-Leiden: 2023, pp. xii + 38
Jason Scott Palmer, Reparations in Domestic and International Mass Claims Processes: Justice and Money, Edward Elgar Publishing, Cheltenham: 2023, pp. 20
Aleksandra Mężykowska, Anna Młynarska-Sobaczewska, Persuasion and Legal Reasoning in the ECtHR Rulings Balancing Impossible Demands, Routledge, Oxon and New York: 2023, pp. 230
Polish Practice on Promulgation of International Agreements between Poland and the USSR, 1944–1960
This article raises the issue of the proper publication of international treaties and their presence in the Polish legal system. The authors analyze this issue based on research conducted on Polish-Russian treaties from 1944–1960. Their research has shown that, during this period, only 11% of treaties were properly published. The research – conducted on a very limited subject: only bilateral agreements between Poland and the USSR – leads to the pessimistic conclusion that in Poland it is customary practice to refrain from publishing an international agreement in the Journal of Laws and that citizens do not have at their disposal a single official or unofficial source to reconstruct Poland’s current obligations, which may indeed directly concern them. Also this finding raises important questions about the accessibility and enforceability of international treaties in the Polish legal system. At the international level, the consequences of failing to publish an act and to ensure official promulgation can be much more serious. In the absence of information about published agreements, it is not possible to sufficiently and completely determine the obligations between states nor to reconstruct the relations binding them. It is also impossible to clearly determine which international agreements are still in force between countries, which are invalid and which have expired.
International Centre for the Prosecution of Russia’s Crime of Aggression against Ukraine and the Role of New Technologies and Justice Hubs in the Fight against Impunity
The accountability response to Russia’s 2022 full-scale invasion of Ukraine attests to the growing importance of regional accountability frameworks in the fight against impunity. Many Member States of the European Union have taken active steps towards accountability for core international crimes committed by Russia in Ukraine by initiating domestic criminal investigations. The creation of centralised justice hubs, such as the International Centre for the Prosecution of Russia’s Crime of Aggression Against Ukraine, can bridge the knowledge gap between different accountability actors involved in international investigations, and additionally contribute towards developing best practices and the universalisation of investigative standards. In this context, new technology infrastructure and expertise play the role of an accelerant, actively contributing to the coordinated fight against impunity and fostering information exchange and collaboration on an increasingly global scale.
International Centre for the Prosecution of Russia’s Crime of Aggression Against Ukraine
Prosecution of the Crime of Aggression in International and Ukrainian Jurisdiction: Challenges and Prospects
This article explores the genesis of Russian aggression against Ukraine, tracing its origins from the unprovoked illegal invasion initiated in February 2014 to the full-scale invasion in 2022. Despite initial international responses, the lack of significant sanctions against Russia or efforts to prosecute its leaders for the crime of aggression persisted until the 2022 invasion. The international community’s condemnation of the brutality accompanying this invasion underscored the need for accountability mechanisms within the existing international legal framework. However, limitations in prosecuting aggression within the International Criminal Court, coupled with challenges in amending the Rome Statute, have led to proposals for an ad hoc mechanism to address aggression gaining traction. These proposals highlight the urgency of holding aggressors accountable and safeguarding victims’ rights. Concurrently, Ukrainian jurisdiction incorporates the concept of the crime of aggression in its Criminal Code but lacks clarity on essential elements necessary for prosecuting such crimes, including the leadership element. An analysis of court verdicts reveals discrepancies in interpreting the crime of aggression, emphasising the necessity of adopting a unified approach that is consistent with international law. The article underscores the critical importance of enhancing legal frameworks, building capacity and encouraging international cooperation to ensure accountability for the crime of aggression and to preserve the rule of law.
Implementation and Interpretation of the Definitions of International Crimes in the National Jurisdiction of Ukraine
The article consists of two parts, the first of which discusses the problems associated with implementing the provisions of international law in the Ukrainian legal system regarding the understanding of the concept of “international crimes”. It underscores that the different definitions are due to the fact that Ukraine is not a party to the Rome Statute. However, it should be noted that most provisions of international law regarding international crimes regarding war crimes, the crime of aggression and the crime of genocide are part of the Ukrainian legal system. At the same time, there are no crimes against humanity in Ukrainian national criminal law. The second part addresses the issues regarding Ukrainian courts’ interpretation of the national criminal law and international treaties on international crimes: interpreting the provisions of United Nations acts and the Rome Statute, applying the principle of “nullum crimen sine lege”in the context of prosecuting the crime of Holodomor, interpreting the provisions of the European Convention on Human Rights in connection with the use of trial in absentia in the case of Russian war criminals and interpreting provisions regarding universal jurisdiction in Ukrainian law.
Domestic and International Criminal Jurisdiction in the Context of the Initiative for a Special Tribunal for the Crime of Aggression
Russia’s aggression against Ukraine and the efforts to prosecute the perpetrators have renewed the debate regarding domestic and international criminal jurisdiction over the crime of aggression. Given the inter-state nature of this crime and its link to an act of aggression, the existence of which can be determined by the Security Council, the International Law Commission’s (ILC) relatively restrictive approach to the exercise of criminal jurisdiction prevailed, at least until 2022. Against this background, the discussion regarding the establishment of a Special Tribunal for the crime of aggression against Ukraine has significantly influenced the trajectory of the understanding of general international law concerning individual criminal responsibility for the crime of aggression. The interpretative paths adopted in the mid-1990s are gradually being abandoned. At the same time, an intense ongoing debate concerning the understanding of the phrase “international criminal courts, where they have jurisdiction” has not led to any conclusive arrangements. Still, what is known is that there is a certain group of states for which such courts can be created through bilateral agreement between the state concerned and the United Nations, on the recommendation of the UN General Assembly.
The Polish Investigation into Core Crimes Committed in Ukraine: Practical Aspects of the Functioning of the JIT
This article explains the legal basis and reasons for establishing a Joint Investigation Team by the Polish Prosecutor’s Office, investigating crimes committed as a result of the Russian aggression against Ukraine. It analyses the reasons why this investigation is so highly demanding and describes how it requires an unconventional approach to work from investigators, as well as enormous coordination efforts and support from the EU organs. Other states are involved in the JIT on an unprecedented scale, as well as the OTP ICC, and unconventional support has been offered by the EU organs, especially in the area of digitalisation of the exchange of evidence. The article highlights the state and picture of investigations conducted into crimes committed in Ukraine, both in domestic jurisdictions and before the ICC, as well as possibly before an international or internationalised tribunal established to adjudicate the crime of aggression. It explains how the Polish investigation – conducted within the framework of a JIT – has become an important element of ‘strategic litigation networks’ for serious international crimes.
Polish investigation into core crimes committed in Ukraine