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Author: Karol Karski

Abstract

The Order of Malta is an entity which established its own states on Rhodes (1310–1522) and Malta (1530–1798). Since 1834, it has been located in Rome. Today, the Order is universally regarded as a subject of international law. The Order exercises right of legation and ius contrahendi. It still is not a primary, i.e., sovereign, subject of international law. Paradoxically, it is its distinguishing feature, i.e., being a religious order that prevents it from being genuinely sovereign. Sovereignty means independence from any external power. In the case of any order of the Roman Catholic Church, this is absolutely impossible. The Order’s Grand Master can be elected only from among religious in terms of canon law who have made vows of poverty, chastity and obedience and is fully subordinate to the Pope. Yet the Order undoubtedly is a secondary subject of international law whose status is determined by its recognition by primary subjects.

In: International Community Law Review

Modern international law defines a very narrow definition of mercenarism. It does not include all aspects of this phenomenon as it was known and understood for centuries. At the same time the emergence of new forms of mercenary-related activities is observed. The terms ‘foreign fighters’ and ‘foreign terrorist fighters’ should be analysed in this context inter alia from a legal perspective. A question needs to be answered if those existing regulations relating to mercenaries can apply to these terms. It is also important to note how both mercenaries and their activities are perceived under international law. The international legal analysis of factual and legal measures undertaken by states towards foreign fighters and foreign terrorist fighters is also interesting. Frequently these activities concern not just the fighters alone but apply also to all of us. This requires us to look at them in the context of international human rights law. These issues are the subject of current works undertaken within the scope of international organisations. un Security Council adopted resolution 2170 (2014) and 2178 (2014) regarding foreign terrorist fighters. The un General Assembly and un Human Rights Council also tackle these issues. The activity of foreign fighters and foreign terrorist fighters on one side and the activities of the states in reaction to this activity on the other side are also monitored inter alia by the un Working Group on the use of mercenaries.

In: International Community Law Review

The work of private military and security contractors is extremely controversial from the point of view of international law and of practice. Sometimes there are doubts as to whether some of their activities should be considered legal activities or illegal mercenarism. Like any other entities using force, they can violate human rights as well as international humanitarian law. They provide their services to, amongst others, states and intergovernmental organisations, including the un. This requires a precise definition of the rules under which such contractors operate, both with regard to the law of treaties and the domestic law of the entities using their services. A question also arises as to whether there is any legal limit to their services being used by intergovernmental organisations, i.e. entities deriving their competences from the will of their member states. The work of the un is an interesting example here. The organisation uses such contractors, but on the other hand, it undertakes various activities to eliminate any potential threats in this respect.

In: International Community Law Review

Human rights hold a common general meaning, as the legal understanding of them, both as regards their principles and their specific wording, may be traced to universal values, including inalienable human dignity. It is regarded as a fundamental human right, and at the same time the source of all of the remaining ones. In such a situation we are dealing with a striving towards their extraterritorial application. Said extraterritoriality has many aspects. National courts regard themselves competent to examine cases connected with violations of human rights beyond the borders of the given country. Human rights treaties are applied outside the territories of the states which are parties thereto. Reservations to treaties dealing with these issues, which are to limit their territorial application, give rise to numerous legal controversies. We are also dealing with competition between the responsibility of the territorial state and the state which exercised effective control in the territory of that state or with joint responsibility. In this context, it would seem that the word “effectiveness” is the appropriate key to alleviating doubts as regards the arising of state responsibility.

In: International Community Law Review

Abstract

The editors and other authors of the studies contained in this volume have chosen to focus attention on the problem of the broad concept of judicial dialogue, defined as the communication between various judicial authorities. The studies included consider the problem of institutional relations in the field of human rights protection from a national and international perspective. The issue of judicial dialogue in the field of human rights after the civil war in Rwanda is assessed. Next, the issue of the legal responsibility for placing hyperlinks in the context of the judicial dialogue between the European Court of Human Rights and the Court of Justice of the European Union in the field of protecting human rights on the internet is raised. Finally, the question of whether private or public legal entities can find direct protection under the Inter-American System of Human Rights is analysed. The academic value of the analytical considerations presented in this volume is very high and this should lead to considerable readers’ interest. This is because intellectual considerations of judicial dialogue in the field of human rights protection undoubtedly bring an interesting and significant new dimension not only to the theory but also to the practice of applying the law.

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In: International Community Law Review
In: International Community Law Review

Abstract

The status of commercial companies in international human rights law is controversial. Despite efforts to subject them to legal obligations in this field, they still cannot be held accountable for human rights violations. Companies have a standing before a few international courts, but only one international human rights court – the European Court of Human Rights. Surprisingly though, they can be applicants but never respondents. Even though this has been the reality for several decades now, it still raises a lot of concerns among academics. The Court itself justifies its decisions very sparingly. Meanwhile the scope of protection for companies constantly increases through its jurisprudence. Some rights, originally clearly designed to protect human beings, today apply to corporations as well.

In: International Community Law Review

A fundamental change of circumstances is one of the more controversial reasons for the termination of a treaty. The fact that it was included in the 1969 Vienna Convention on the Law of Treaties gave rise to many disputes among legal scholars, including whether the solutions adopted then embodied customary law. In this context, an interesting case is offered by Poland which in 1999 invoked specific provisions of the Convention, both substantive and procedural, including a fundamental change of circumstances, and considered several treaties from the period of Soviet domination terminated with retroactive effect from 1997. The article discusses actions by the states involved and their legal effects. Interestingly, this is one of very few examples where a fundamental change of circumstances was an effective reason for bringing about the termination of treaties in a manner that has not drawn any objections nor has brought about any international accountability.

In: International Community Law Review