The paper aims to discuss the reasonable observer test as a tool for assessing judges’ expression. The argument begins by analyzing the relevant provisions of international soft law, as inscribed in the instruments developed and adopted by the CoE and the UN. Subsequently, an operationalization of the test is proposed by identifying the factors to be taken into account in the application of the test. In the following step, the expectations placed on the reasonable observer test are addressed, whereby the juriscentric (“strong”) and post-analytical (“weak”) positions are outlined. The former relies on Artur Kozak’s law-philosophical conception, and the latter is underpinned by the topography of juristic power developed by Paweł Jabłoński and Przemysław Kaczmarek. The paper makes the case for the post-analytical approach, which places rather modest expectations on the reasonable observer test and considers it instrumental in structuring the discussion, rather than yielding
indisputably reliable conclusions.

The necessity of providing healthcare to citizens is one of the basic principles of every state, regulated by provisions of national, EU or international law and comple-mented by soft law. Civilisational changes and technological advancement make it possible to develop new healthcare tools and services (i.a. telemonitoring, telecon-sulting, telerehabilitation and electronic medical documentation). The COVID-19 pandemic greatly emphasised the need to provide such services. The wide use of e-health, however, which may be a remedy for numerous problems that the health-care sector is wrestling with, requires securing the rights of those who are not digitally included, especially the elderly. The prevalence of various degrees of digital exclusion, not only among the elderly, makes these issues socially significant and they should be solved by law. The purpose of the article is an initial analysis of the validity of developing e-health services in the ageing society in Poland and a presentation of proposals for adjusting legal solutions as regards the use of digital tools in healthcare to the changing reality.

The article covers the issue of the functioning of one of the advisory bodies of central governmental administration, i.e. the Council for Nuclear Safety and Radiation Protection Affairs, which is associated with the President of the National Atomism Agency (PAA), the chief nuclear supervision body in Poland, which is the competent authority in nuclear safety and radiation protection affairs, as defined in the Atomic Law (Prawo atomowe). The article presents the objectives of the functioning of the Council as an advisory body to the nuclear supervision authority on the basis of international and European law and the views of the nuclear energy law doctrine. In relation to the Council, an important role is played by soft law acts, especially the so-called IAEA safety standards. Despite the fact that they are not legally binding, they constitute a valuable and extensive collection of recommendations supporting regional and national legislative activity. The purpose of this study is also a critical analysis of the amendment to the Atomic Law from 2016 in the section relating to changes made to the way of shaping the Council’s make-up. They caused the loss of one of the Council’s most important attributes, i.e. independence in the decision-making process and they deprived the President of the PAA (decision-making body) of influence on shaping its make-up. The changes introduced should be interpreted as an unequivocal negation of the ratio legis of appointing the Council and a significant step backwards in relation to the existing practice and legislative trends in recent years. The author postulates restoring the previous legal solutions as the ones that will allow the Council, the advisory body, to fulfil its function in the right way, really supporting the decision-making authority for which it works.

The causative force of the state in the 21stcentury depends on the coherence of the law and the importance of non-legal regulations of large corporations. Multi-centricity, multi-level structure and the strength of „soft law” of corporations lead to the transformation of internal law and altering of its function. In addition states give up their welfare and privatise various tasks. They lose the essential elements of the legal, territorial and personal sovereignty. Does giving away numerous normative areas mean that the states do weaken their causative force?

The aim of the paper is to create an updated typology of soft law. It places soft law among mechanisms of a rather moral, sociological and political origin. This does not mean that it is completely irrelevant in legal terms, but the inclusion of the regulations of soft law in the framework of a “normative system” does not deserve to be taken into account i.a. due to the character of soft law (i.a. formulating the regulations in a general, imprecise manner, the uncertainty of introduced instruments, the lack of an obligatory force to implement them). This paper indicates the roles played by soft law in the international public law discourse. It also presents differences in their consideration on the grounds of the international law (including the Community law) as well as the internal law. Out of the whole catalogue of individual functions and tasks of soft law, special heed should be taken of the co-ordinating role of the mechanisms of soft law. Against this background, the paper makes a categorisation of the opinions of the Venice Commission in the framework of soft law. This is because they show the typical features of the mechanisms of that law: they play a binding role, relatively clarifying the international law, they are based on the undisputed authority of the creating entity. However, they are not subject to the forced implementation of them. In the conclusions of the paper, a chance, but also a fundamental threat related to the conduct of the international legal discourse on the basis of the mechanisms of soft law were indicated.

The research objective of this paper is to determine the impact that the repressive nature of the European Commission’s amendments to Directive 2008/115 will likely have on the two basic values of the return policy, that is, its fairness and effectiveness. The basic thesis of this study is that the direction of the directive’s recast, assuming – inter alia – an extension of the list of circumstances for applying the entry ban and detention, is contrary to the declared fairness of the migration policy towards third-country nationals. At the same time, the effectiveness of the planned changes is already questionable at the stage of draft legislation. These considerations are based on a juxtaposition of the proposed changes with currently binding legislation, the Commission’s soft law and the case law of the CJEU. The final effect of these analyses is the finding that the solutions proposed by the Commission will lead to an inevitable increase in the use of coercive measures against irregular immigrants in a way that stands in fundamental contradiction to the declared fairness and proportionality of EU actions. In this context, the effectiveness of the return policy should not be identified with a percentage of returns, but rather with the recognised necessity of overall and perfect control over irregular migrants. At the same time, the Recast Return Directive will contribute to the development of an already existing tendency to treat migration law as an instrument of security and public order, and to use administrative law measures so that they function in a manner equivalent to that of a criminal sanction.

The publication explores the phenomenology and content of ‘soft law’ in the international
and national law and reveals the designation of ‘soft law’ in protecting the electoral rights of the citizens. ‘Soft law’ is intended to mean optional international documents, most of
which are resolutions of the intergovernmental organisations containing statements, commitments, guidelines, common positions or statements on policy or intentions. ‘Soft law’ documents are usually adopted by the statutory bodies of the international organisations on issues that reflect new problems, tendencies or trends in the field of electoral law, for which there is no political will or the accordance of all the member states in the form of a classical international treaty. When it comes to the content, the ‘soft law’ documents are all kinds of statements, obligations, guidelines, codes of conduct, codes of ethics, guidelines and standards, common positions or statements of policy or intentions.

The aim of the paper is to create an updated typology of soft law. It places soft law among mechanisms of a rather moral, sociological and political origin. This does not mean that it is completely irrelevant in legal terms, but the inclusion of the regulations of soft law in the framework of a “normative system” does not deserve to be taken into account i.a. due to the character of soft law (i.a. formulating the regulations in a general, imprecise manner, the uncertainty of introduced instruments, the lack of an obligatory force to implement them). This paper indicates the roles played by soft law in the international public law discourse. It also presents differences in their consideration on the grounds of the international law (including the Community law) as well as the internal law. Out of the whole catalogue of individual functions and tasks of soft law, special heed should be taken of the co-ordinating role of the mechanisms of soft law. Against this background, the paper makes a categorisation of the opinions of the Venice Commission in the framework of soft law. This is because they show the typical features of the mechanisms of that law: they play a binding role, relatively clarifying the international law, they are based on the undisputed authority of the creating entity. However, they are not subject to the forced implementation of them. In the conclusions of the paper, a chance, but also a fundamental threat related to the conduct of the international legal discourse on the basis of the mechanisms of soft law were indicated.