Зборник радова "Правне празнине и пуноћа права" Том I
Collection of papers "Legal Gaps and the Completeness of Law" Vol I
Contributor(s): Dimitrije Ćeranić (Editor), Radislav Lale (Editor), Svjetlana Ivanović (Editor), Đorđe Marilović (Editor), Samir Aličić (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: legal gaps;
Summary/Abstract: We present to the scientific public the Proceedings “Legal gaps and the completeness of law”, which is the result of the scientific conference held for the twelfth time on the occasion of the Day of the Faculty of Law. At the conference held in October 2023, 206 authors and co-authors, from three continents and 23 countries (Russia, Greece, China, Italy, Hungary, Spain, Cuba, Mexico, Turkey, Bulgaria, Romania, Georgia, Moldova, Cyprus, the Netherlands, Denmark, Sweden, Serbia, North Macedonia, Croatia, Slovenia, Montenegro and Bosnia and Herzegovina with authors from the Republika Srpska and the Federation of Bosnia and Herzegovina), presented 162 reports in Serbian, Russian, English, Italian, Spanish that is, in their native languages. This was the largest conference held in the field of law in Southeast Europe, as well as one of the largest, perhaps the largest one, in Europe in 2023. The co-organizers of the scientific conference were the International Union of Lawyers, the European Public Law Organization, the Institute for Comparative Law, the Institute for Criminological and Sociological Research and the Serbian Association for Criminal Law Theory and Practice. The Proceedings contain over 2,400 pages in five volumes with 111 works by 146 authors and co-authors from 19 countries (Russia, Greece, Italy, Hungary, Spain, Cuba, Mexico, Turkey, Bulgaria, Romania, Georgia, Moldova, Cyprus, Sweden, Serbia, North Macedonia, Croatia, Montenegro and Bosnia and Herzegovina with authors from Republika Srpska and the Federation of BiH). A third of the papers were published in world languages (English, Russian and Italian). The scientific conference held on the occasion of the Day of the Faculty of Law is categorized and classified by the Ministry of Scientific and Technological Development and Higher Education of the Republika Srpska as an international scientific conference of the special importance of the first category and is one of the three best classified and categorized scientific meetings from all scientific areas in the state. The authors dealt with various issues of legal theory and practice, in all legal disciplines. Their goal was to independently and critically analyze legal principles and institutes, to subject legal theory and positive law to criticism, and to make a scientific contribution to the development of legal theory and the improvement of legal systems. The multimethodological approach, which adorns not only the collection as a whole, but also individual papers, made it possible for the scientific analysis to be versatile and rich, and the achieved scientific results significant for the improvement of legal sciences. We believe that students of legal sciences will find enough good scientific analyses, intriguing positions and starting points for new scientific analyses. We also hope that public office holders and legal practitioners will find answers to numerous questions that have arisen in their political and legal practice, and that these answers will become the basis for reflection and adoption of new positive legal solutions. In this way, this collection will fulfill its purpose. It will represent a contribution to the development of legal sciences, especially in difficult social and political circumstances, in which numerous challenges and difficult-to-solve theoretical and practical questions arise before the practitioners of legal sciences.
- Print-ISBN-13: 978-99938-57-83-9
- Page Count: 585
- Publication Year: 2024
- Language: English, Russian, Serbian
Absolutely Binding Rules (Ius cogens) as Criteria of Legality in International Law
Absolutely Binding Rules (Ius cogens) as Criteria of Legality in International Law
(Absolutely Binding Rules (Ius cogens) as Criteria of Legality in International Law)
- Author(s):Milenko Kreća
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:1-22
- No. of Pages:22
- Keywords:Ius cogens; International legal order; legality; universality;
- Summary/Abstract:In this paper, the author analyzes the nature of the ius cogens rules in the international legal order. The international ius cogens reflects the authentic needs of the international community. It has emerged on a wave of profound metamorphoses which transformed the international community, in addition to antagonisms in the sphere of material interests and ideologies, into a single entity. The analyses focuses on both formal and characteristics of ius cogens, being objectiveness, peremptoriness, universality and dynamic nature as well as on the legal effects of corpus iuris cogentis. In that regard, the article provides for a detailed analysis of the relevant norms consisted in the Pact of League of Nations and the UN Charter, seen as acts of constitutional importance of organized international community and the relevant jurisprudence of the International Court of Justice. The author concludes that the concept of legality in international law in its strict sense could not be established until the moment when absolute and unavoidable limits of freedom of behavior of states were set by general international law.
On Thin Ice: Striking a Balance Between Freedom of Expression and Freedom of Religion in Europe
On Thin Ice: Striking a Balance Between Freedom of Expression and Freedom of Religion in Europe
(On Thin Ice: Striking a Balance Between Freedom of Expression and Freedom of Religion in Europe)
- Author(s):Ioannis Karkalis
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, Politics and religion, EU-Legislation, Court case
- Page Range:23-36
- No. of Pages:14
- Keywords:Freedom of expression; Freedom of religion;
- Summary/Abstract:The Strasbourg Court in dire straits confronted with the dilemma of choosing between two equally protected freedoms in Europe: freedom of expression and freedom of religion. They’re both values of major importance for the European -and not only- civilization that cohabit and at the same time collide within the periphery of a difficult coexistence. More often than not, expressing oneself freely hurts religious conscience; the latter, if protected in an absolute manner, by definition neutralizes -or even annihilates- free expression of thoughts and ideas. The contours of both freedoms are obscure. No surprise there; time and again, the ECtHR has been trying to settle the boundaries capitalizing on a baby step, case-by-case approach. In the European mosaic of civilizations, religions and cultures, such a work is not only demanding and arduous; it is also complex and multifactorial. At the end of the day, it as well integrates policy concerns, tightly attached to a European unity-in-diversity safety net promoting cohesion. This presentation argues that the Strasbourg Court’s case-law on free expression and protection of religion, in his attempt to dodge a bullet and fill existent legal gaps, interestingly incorporates in the interpretation of the ECHR extra-legal factors that lie outside the realm of legal reasoning and that such an approach can be traced in its pivotal case-law.
Državno-crkveno-pravni odnosi u grčkom Ustavu
Državno-crkveno-pravni odnosi u grčkom Ustavu
(Legal Relationship Between the State and Church in the Greek Constitution)
- Author(s):Alexios Panagopoulos
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Eastern Orthodoxy
- Page Range:37-51
- No. of Pages:15
- Keywords:Orthodox Church; Greek Republic; Constitution;
- Summary/Abstract:The Greek Constitution of 1975 is guided by the Orthodox faith. It begins with the words: "In the name of the Holy One-Essential and Indivisible Trinity". The position of the Orthodox Church in the Greek state, in which the rule of law system is maintained, is referred to in Article 3 paragraph 1. The position of the church in the state is determined by the fundamental principles and these are: The official religion is represented by the Orthodox Church; The Greek Orthodox Church stands in an unbreakable liturgical and prayer relationship with the Ecumenical Patriarchate in Constantinople and other local Orthodox Churches around the world; The Church has its own administration and the existing autocephaly must be preserved. Those provisions of Article 3 of the Constitution in their entirety are not new. We meet them in all the previous Constitutions of Greece and in various variants. The current Constitution of Greece, however, in connection with the recognition of the Orthodox Church as "valid", has largely departed from the provisions of the previous Constitution from 1952. For example, according to the previous monarchical Constitution, the heir to the royal throne, the guardian of the minor heir and the viceroy had to be of the Orthodox faith, while there is no similar provision for the president of the Greek Republic in the 1975 Constitution. Conversion, like any other influence on the ruling religion, was prohibited, while the current Constitution omitted that text. Conversion is prohibited if it is at the expense of any "recognized" religion, while the state intervenes in church matters. The introductory part was kept in the oath of the president of the republic and members of the assembly. It reads: "In the name of the Holy, One-Essential and Indivisible Trinity". Differentiating the departure of the provisions of the current Constitution from the provisions of the 1952 Constitution, led to the creation of the theory of valid religion, which denotes the religion of the majority of the Greek people. This issue of valid religion led to the impression that valid religion means the religion of the majority of the Greek people. It is valid because it is connected with traditions in the customs of most Greeks. The concept of valid religion is based on the following foundations: The official religion in the Greek state is represented by Orthodox dogmatic teaching; The Church is a legal entity of public law according to its legal relations, it has its own legal basis, as well as its various instruments; The state surrounds the church with expressed interest and enjoys a special position, and the state authorities implement literally the decisions of the church court. The Orthodox character of the religious service of the armed forces is nurtured as well as the establishment and care of Orthodox church schools by the state. Apart from the Orthodox Churches, members of other known religions enjoy many privileges. For example, law 1763/1988 exempts all religious officials from military service. Apart from Orthodox, monasteries and temples of other faiths are exempted from real estate tax and income taxation of legal entities.
Общественный контроль как конституционно-правовой институт: проблемны правового регулирования и правоприменения
Общественный контроль как конституционно-правовой институт: проблемны правового регулирования и правоприменения
(Public Control as a Constitutional and Legal Institution: Problematic Aspects of Law Enforcement)
- Author(s):Oksana Vladislavovna Cherkasova, Galina Alekseevna Bannykh
- Language:Russian
- Subject(s):Law, Constitution, Jurisprudence, Social Norms / Social Control
- Page Range:52-65
- No. of Pages:14
- Keywords:Legal regulation; Social control; Subjects of public control; Forms of social control; Russian Federation;
- Summary/Abstract:This article is devoted to legal and socially significant aspects of social control as an institution of constitutional law and civil society. The relevance of the chosen topic is predetermined by the fact that the traditional model of management, opposing the state and citizens - managers and managed, at the present stage of development of civil society in Russia has exhausted itself. Concrete steps have been identified that will enable the focus of monitoring to be shifted to civil society. The concept of "public control" has recently been incorporated into the new federal law of the Russian Federation, which also defines the range of subjects of public control and establishes its forms. The present normative enshrinement is a great achievement in the development of the institution of social control, because it reflects the desire of the legislator to give the studied institution a full legal form of citizen participation in decision-making in the sphere public administration. At the same time, there is still legal uncertainty regarding the implementation of the law on the basis of public control at the level of the constituent entities of the Russian Federation, and there is no common vision of the legislator on the status, methods of formation of subjects of public control at the local level, the features of the organization of their activities. In this study, using sociological, axiological and comparative legal methods, the authors offer their scientific and practical view on a number of problems faced by subjects of public control in the Russian Federation. In addition, there are identified topical issues of interaction of subjects of public control at all three levels of the exercise of power.
Историјско порекло и садржина преамбула савремених устава
Историјско порекло и садржина преамбула савремених устава
(Historical Origins and Content of the Preambles of the Contemporary Constitutions)
- Author(s):Darko Simović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Comparative Law
- Page Range:66-86
- No. of Pages:21
- Keywords:Preamble; Constitution; Sovereignty; Constitutional history; Comparative constitutional law;
- Summary/Abstract:The claim that the preamble of the Constitution is an unjustly neglected legal phenomenon has become a common observation in modern constitutional literature. Without any significant research, there were prejudices that their content is primarily of a declarative nature and that they lack prescriptive value. Undoubtedly, one of the reasons for the marginalization of the preamble in scientific and expert discussions is the fact that its legal nature has not been clarified. The fact that the preamble is a predominant feature within the structure of the Constitution leads to the conclusion that the preamble must not remain a neglected legal phenomenon. However, increasing interest in this legal phenomenon is the result of modern trends in the sphere of comparative law, which recognizes an increasing number of examples of legally relevant preambles of the constitution. A small number of constitutions foresee mandatory legal effects of the preamble. Additionally, the number of countries in which comparative law practice has established the legal relevance of the preamble is growing. On one hand, the preamble is used as a tool in the interpretation of unclear constitutional norms, while on the other, it serves as a measure of the constitutionality of the law. The preamble, depending on its content, can have legally binding power, although the framers of the constitution may not have explicitly intended it. This increasing trend of the constitution having to be analyzed as a unique, integral whole is fueling all-inclusive research of this unjustifiably neglected section of the constitutional structure. Hence, this paper aims to analyze the historical origins and content of the preambles of modern constitutions.
О уставној жалби и поустављењу уставносудске контроле судских пресуда у Србији
О уставној жалби и поустављењу уставносудске контроле судских пресуда у Србији
(On the Constitutional Appeal and the Constitutional Regulation of the Constitutional Court Control of Court Decisions in Serbia)
- Author(s):Slobodan P. Orlović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:87-114
- No. of Pages:28
- Keywords:Constitutional appeal; Constitutional Court; Court decisions; Serbia; Constitution;
- Summary/Abstract:The constitutional appeal in Serbia, during fifteen years of practice of the Constitutional Court, has become a common and expected legal remedy. Over time, it began to be seen as a logical continuation of court proceedings, with the outcome where the party in the case (the applicant of the constitutional appeal) is not satisfied with. This led to a legal conflict and a strained relationship between the Supreme Court, which considered that the Constitutional Court had no legal basis to annul court decisions, and the Constitutional Court, which did so. In order not to overcome this situation, the Statute of the Constitutional Court was amended (in favor of the judicial authority), but also declared unconstitutional in one part (in favor of the Constitutional Court) so that in the end, with the Constitutional amendment from 2022, the Constitutional Court would also receive a constitutional basis to review (and annul) court decisions.
Freedom of Association in the Jurisprudence of the European Court for Human Rights
Freedom of Association in the Jurisprudence of the European Court for Human Rights
(Freedom of Association in the Jurisprudence of the European Court for Human Rights)
- Author(s):Goran Marković
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation
- Page Range:115-149
- No. of Pages:35
- Keywords:Languages of law; Doctrinal study of law; Ius/lex; Rules/norms; Conceptualization; Sistemicity;
- Summary/Abstract:The European Court of Human Rights case law regarding the protection of freedom of association is rich. The Court has issued numerous judgements confirming or challenging the decisions of national authorities on the ban of associations' activities. This paper focuses solely on the ban on political parties, considering their significance in public life. I analyzed the Court's reasoning in order to understand its decision-making motives, keeping in mind the fact that the Court's decisions significantly impact the protection of human rights. Additionally, I paid attention to the issue of ideological and political approaches in decision-making and the (non)existence of mechanisms to prevent the influence of ideology and politics on the Court's decisions.
Извршна власт у локалној самоуправи Републике Српске
Извршна власт у локалној самоуправи Републике Српске
(Executive Authority in Local Self-Government of the Republic of Srpska)
- Author(s):Milan Pilipović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Governance, Politics and law
- Page Range:150-177
- No. of Pages:28
- Keywords:Head/mayor; Municipality; Assembly; Executive power; Local self-government; Republic of Srpska;
- Summary/Abstract:The Constitution of Bosnia and Herzegovina does not determine or regulate local self-government by any norm, so local self-government as a whole is under the jurisdiction of entities, which in their constitutions and laws contain the legal basis for its organization and functioning. This work focuses on the legal position of executive authorities in local self-government units in the Republic of Srpska. In the Republic of Srpska, local self-government units are municipalities and cities, in which the normative function is performed by municipal/city assembly, as a representative (political) body, while the executive function is performed by the head of the municipality and, in the city, the mayor. The paper analyzes the position of the head/mayor in the Republic of Srpska, from the aspect of the method of election, jurisdiction, and relationship to the assembly, with a focus on the possibility of his impeachment and the possible consequences that may arise for the local assembly. The paper aims to clarify the role of the head/mayor in the Republic of Srpska's local self-government system, based on the premise that local self-government units possesses a robust executive power. The main function of the mayor/head of the municipality is to represent the unit of local self-government, and as the holder of executive power, he is superior and responsible for the work of the entire city/municipal administration, which does not have the status of a municipal body but is an integral part of the executive power. The head/mayor of the municipality is elected by the citizens in general direct elections for a period of four years in accordance with the election regulations, in accordance with which his recall is carried out. Positive regulations do not limit the number of mandates held by the head/mayor, which is not a good solution. Instead, the number of mandates should be limited. The municipality's head/mayor has significant powers but is responsible for the legality of all acts he proposes to the assembly. In practice, there are problems in the relationship between the assembly and the head/mayor, primarily due to insufficient respect for the rights and responsibilities of the "other". This is a particular present phenomenon in cases of cohabitation, when the head/mayor and the assembly majority come from different and opposed political parties and coalitions. In such circumstances, disagreements and conflicts often arise between them. Only in the last decade, and even today, we have witnessed numerous cases of non-functioning local authorities, with councilors and mayors accusing each other of such a situation. The impeachment procedure of the chief was initiated twice in some local communities, a more frequent occurrence. According to the Law of Local Self-Government from 2016, the National Assembly can, at the proposal of the Government , dissolve the assembly, for one of several reasons , one of which is the unsuccessful impeachment of the chief and the dissolution of the local assembly are interrelated institutions. We point out that in relation to this issue , there is a certain inconsistency between two laws in the Republic of Srpska: the Election Law and the Law on Local Self-Government. It is necessary to harmonize and specify them with regard to the impeachment procedure, because in their current form they contain confused solutions in the procedural sense, i.e., they do not contain comprehensive and precise rules regarding the procedure for impeachment of head/mayor. Therefore, it is necessary to make changes to both laws in order to more precisely resolve the issue of impeaching leaders of local communities and dissolving local parliaments in the event of a failed impeachment. This change will also introduce more responsibility into the work of councilors in local parliaments. Keeping the current monocratic concept with a directly elected head/mayor would require and improvement of the normative framework. Another option is to alter the structure of the local of the local executive authority by incorporating a collegial executive body, which the city/municipality assembly would elect alongside the president. We should consider introducing the collegial executive body model into the local government system, which, in our opinion, would contribute to better functioning local government in the Republic of Srpska.
Referendums in Divided Societies
Referendums in Divided Societies
(Referendums in Divided Societies)
- Author(s):Mijodrag Radojević
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Governance, Government/Political systems, Politics and law
- Page Range:178-206
- No. of Pages:29
- Keywords:Direct democracy; Secession; Constitution; Sovereignty; Right to self-determination; Turnout threshold and majority for decision making;
- Summary/Abstract:The controversial nature and application of direct democracy mechanisms in ethnically heterogeneous societies are frequent topics of research. A referendum can be used to resolve territorial disputes, make decisions on the status of a part of the territory, establish territorial autonomy, or separate from the mother state to for a new state or join another state. The author explains the causes and processes of the spread of this type of referendum in the past century and the different scenarios in its practice. Therefore, this text seeks answers as to whether it is possible to conduct this type of referendum in accordance with the principles of democracy and the rule of law, establishing standards and rules in international and domestic law. The author also considers whether a referendum in politically divided societies is a politically rational tool for conflict resolution. Based on historical examples, such as South Sudan and the experience with the referendum in the territory of former Yugoslavia, there is no universally acceptable answer. However , the effectiveness and success of referendums in polarized societies are less influenced by institutional arrangements and more by social circumstances and the ability to achieve compromise.
O medijskoj komunikaciji: između privatizacije i slobode
O medijskoj komunikaciji: između privatizacije i slobode
(On Media Communication: Between Privatization and Freedom)
- Author(s):Mustafa Sefo
- Language:Serbian
- Subject(s):Media studies, Theory of Communication
- Page Range:207-221
- No. of Pages:15
- Keywords:Media; Communication; Freedom; Privatization;
- Summary/Abstract:Great declarations of rights proclaimed the freedom of communication. This imperative is ingrained in most of the laws that organize this freedom. The most demanding interpretation is that the very purpose of communication is freedom. In the context of asymmetry between institutional actors of communication and its recipients, the recipients of communication are also the recipients of freedom, and freedom of communication must be realized in accordance with its purpose. The freedom of expression must be understood as a modality of the freedom of communication - not the opposite, as developed by liberal thinkers for whom the freedom of communication is only a new form or modality of freedom of individual expression. The privatization of media communication is a direct result of a private understanding of communication freedom that limits communication to its physical, technical, or economic aspects and, by broadening the laws that apply lets people make their own subjective claims about freedom. Degeneration of public regulation in self-finalized negotiation (corporatist and partisan) causes the privatization of media communication as well, which is the result of the state and national understanding of freedom. It is, therefore, not about suppressing the principle of sharing between "public communication" and "private communication" but rather about the recomposition of its modalities and the re-exploration between this sharing, nowadays reduced to a typical opposition between the state and the market. The digital revolution, which is perceived as the digitization and compression of computer data, can cause technological convergence, but it is limited to the universalization of infrastructure. Furthermore, the digital revolution does not cause economic convergence between different sectors of media communication (it instead increases competition between the media) nor a legal convergence (it rather risks causing the reduction of communications laws according to the common law of competition and the contract law). On the other hand, the digital revolution is an opportunity to formulate a renewed understanding of different communication rights - not to assimilate them, but to identify a common legal principle proper for media communication: the freedom of communication understood from a democratic perspective.
Zaštita vitalnog nacionalnog interesa - (ne) postojeća pravna praznina u Ustavu Bosne i Hercegovine
Zaštita vitalnog nacionalnog interesa - (ne) postojeća pravna praznina u Ustavu Bosne i Hercegovine
(Protection of Vital National Interest - the (Non)Existing Legal Gap in the Constitution of Bosnia and Herzegovina)
- Author(s):Cvija Jurković, Ivan Tomić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:222-243
- No. of Pages:22
- Keywords:Constitution of Bosnia and Herzegovina; Vital national interest; Constitutional Court; Legal gaps; Construction;
- Summary/Abstract:The Constitution of Bosnia and Herzegovina regulates a special procedure for the protection of the vital national interest of the constituent peoples when passing decisions in the Parliamentary Assembly of Bosnia and Herzegovina. If agreement is not reached among the constituent peoples in the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity. However, despite the constitutional provision that explicitly gives the Constitutional Court the jurisdiction to examine procedural regularity, the Constitutional Court of Bosnia and Herzegovina has decided on the merits in cases of protection of vital national interest. The Constitutional Court significantly limited the scope of the vital national interest protection mechanism by determining, although not exhaustively, which issues fall within the scope of the vital national interest exercising jurisdiction that is not regulated by the Constitution. In the paper, the authors will analyze whether there is a legal gap in the specific case that the Constitutional Court filled or the Constitutional Court created a non-existent legal gap that it filled by creating unexpressed constitutional norms.
Controversial Legal Aspects Regarding the Position of Mayor in Romania
Controversial Legal Aspects Regarding the Position of Mayor in Romania
(Controversial Legal Aspects Regarding the Position of Mayor in Romania)
- Author(s):Maria-Ariana Dociu
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Governance, Public Administration, Electoral systems
- Page Range:244-251
- No. of Pages:8
- Keywords:Public administration; Mayor; Elections; Public dignity; Termination of mandate;
- Summary/Abstract:In Romania, the mayor is a vital part of local administration system. The mayor is elected directly by the citizens, based on a secret, uninominal, and freely expressed vote. The mayor operates based on the principles of decentralization and local autonomy. Given our country's administrative - territorial division, we will find a mayor in each commune and town/municipality whose mandate is, as a general rule, four years. This paper aims to show in detail some of the most controversial legal aspects regarding the position of the mayor in Romania, respectively: the election of the mayor in a single round of elections, the function of public dignity of the mayor, as well as the ascertaining of the termination of the mayor's mandate before the deadline and presenting de lege ferenda solutions.
The Idea of Human Rights in the Chinese Legal System
The Idea of Human Rights in the Chinese Legal System
(The Idea of Human Rights in the Chinese Legal System)
- Author(s):Li Yuanjun
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law
- Page Range:252-287
- No. of Pages:36
- Keywords:Human rights; Human rights theory; Chinese legal system; Human rights protection; International human rights law;
- Summary/Abstract:The modern human rights theory was proposed by Europeans, instead the thousands-year-old features of Chinese culture focused on the obligations of people and the collective interests that shaped the value of human rights in socialism with Chinese characteristics in ancient Chinese legal system. These differ from western individualism and the rights-oriented idea, but they also influence the development of Chinese human rights theory. In the Chinese modern legal system, especially the amendment of the Constitution of the PRC in 2018 and the adoption of the Civil Code of the PRC in 2020 there is a lot of modern development in Chinese domestic human rights. China’s cooperation in international human rights protection is even more obvious to all. Although, there are still issues in developing human rights in the Chinese legal system, such as expanding free speech, abolishing the death penalty etc. Meanwhile, some factors such as citizens’ will, economic environment, and personality of the leader of China should be taken into account when evaluating the future institutional order of Chinese human rights by explaining current situations China faces. China and any other countries are supposed to continuously explore the theory of human rights, to strengthen human rights protection, and to absorb the parts that other countries or regions have done well in human rights. And we need to promote the advancement of international human rights laws and ensure their implementation, making them work smoothly and effectively to create harmony and dignity for the international community and human beings.
Značaj XIX veka za razvoj međunarodnog prava
Značaj XIX veka za razvoj međunarodnog prava
(Significance of the 19th Century for the Development of International Law)
- Author(s):Boris Krivokapić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, History of Law, International Law
- Page Range:288-334
- No. of Pages:47
- Keywords:International law; XIX century; Legal history; International relations; Jurisprudence;
- Summary/Abstract:After briefly indicating its place in various periodizations of history and the most important general characteristics of the XIX century in the introductory remarks, the article moves on to the general development of international law in that period and the role and importance of the most important international congresses and conferences of that time. The next part of the work, which is dedicated to special problems, deals with characteristic novelties and other important moments related to diplomatic law, peaceful settlement of international disputes, the first international peace missions, freedom of navigation on international rivers, multilateral agreements on cooperation and unification of rules in certain areas, the first international organizations, vassals states and protectorates, position of the Pope (Holy See), international legal status of certain areas, cession and lease of some territories, position of people (prohibition of slave trade, protection of minorities, protection of workers), war and humanitarian law, etc. After all that, a brief overview of the jurisprudence of that time was given. In the final considerations, the author states that in the XIX c. international law experienced an unprecedented upsurge in various ways, and that it was then that the foundations were laid by all the sudden changes that took place after the First World War.
The Development of the Right to an Effective Remedy Under EU Law: the Filling of Legal Gaps by the European Court of Justice
The Development of the Right to an Effective Remedy Under EU Law: the Filling of Legal Gaps by the European Court of Justice
(The Development of the Right to an Effective Remedy Under EU Law: the Filling of Legal Gaps by the European Court of Justice)
- Author(s):Allan F. Tatham
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, EU-Legislation
- Page Range:335-353
- No. of Pages:19
- Keywords:Effective remedies in EU law; Protection of EU rights; Principles for provision of national remedies; Interpretation of EU law; Duties on national courts;
- Summary/Abstract:This paper seeks to chart the European Court of Justice (‘ECJ’) evolution of the principle of the need for an effective remedy – before national courts – to protect rights of individuals and companies derived from EU law (“EU rights”). The relevant case law will be looked at to show how the ECJ used national courts' treaty-based duties of Union loyalty and sincere cooperation to force them to protect EU rights in proceeding before them.Without this protection, EU law would have lost its relevance in the eyes of individual and companies across the Union. With the EU's initial unwillingness to interfere in any way with the provision of common remedies designed to enforce EU rights before national courts, it was left to the ECJ to gradually fill these legal lacunae and to pursue a policy of developing an EU basis for the provision of remedies to protect the enforcement of EU rights before the national courts while being sensitive to national jurisdictions.By balancing EU and domestic interests in this field, the ECJ managed – to a great extent – to bridge the gaps in the protection of rights under EU law while leaving the national courts with the ultimate responsibility for providing the relevant domestic remedy under their own system.
Challenging Political Recognitions of a Crime of Genocide: a Legal Perspective on Perincek v. Switzerland Case
Challenging Political Recognitions of a Crime of Genocide: a Legal Perspective on Perincek v. Switzerland Case
(Challenging Political Recognitions of a Crime of Genocide: a Legal Perspective on Perincek v. Switzerland Case)
- Author(s):Kamal Makili-Aliyev
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, International Law, Human Rights and Humanitarian Law
- Page Range:354-368
- No. of Pages:15
- Keywords:International criminal law; Human rights; Interpretation; Armenia; Turkey;
- Summary/Abstract:This article examines the legal implications of the "Armenian genocide" concept and the consequences of pursuing political recognition rather then legal scrutiny. It focuses on the European Court of Human Rights' (ECtHR) ruling in Perincek v. Switzerland, discusses the legal reasoning behind the ruling, and explores its significance in challenging the political recognition of the "Armenian genocide". It also compares the "Armenian genocide" to another instance of contested genocide and highlights the need for legal review in such cases. The ECtHR's ruling in Perincek v. Switzerland emphasizes the importance of freedom of expression and the need for a legal consensus on the matter. The Court refrains from determining whether the 1915 events constitute genocide but underscore the necessity of legal scrutiny over political recognition. This article highlights the importance of legal review in recognizing historical events as genocide. The ECtHR's ruling in Perincek v. Switzerland serves as a significant precedent, emphasizing that political recognition cannot replace legal scrutiny in addressing sensitive legal matters such as genocide. The international community should relay on courts, rather than political bodies, to make determinations about genocide and other international crimes.
Савремени међународноправни поредак - држава, право, политика
Савремени међународноправни поредак - држава, право, политика
(Contemporary International Legal Order - State, Law and Politics)
- Author(s):Matej Savić
- Language:Serbian
- Subject(s):Politics / Political Sciences, Law, Constitution, Jurisprudence, International Law, International relations/trade
- Page Range:369-400
- No. of Pages:32
- Keywords:International Legal Order; State; International Politics; Normative framework; Factual situation; Multi-polar political order; International legal personality; International institutions;
- Summary/Abstract:The subject of this paper are the problems of the constitution and functioning of the International Legal Order. In this sense, the main discussion is, in a broader context, focused on the mutual influence and conditionality between International Law and International Politics. In the context of this paper's main subject, the author deals with The International Legal Order definition concept and determination of its (legal) nature. The author also discusses particularly expressed political aspects of the international legal order, as well as the determination of its fundamental elements. One of the goals of this paper is to conduct a comprehensive, primarily theoretical discussions regarding the complex notions of the state, law and politics within the International Legal Order. Although the paper is primarily of a theoretical nature, it also contains an empirical dimension, especially in terms of international processes that take place in the relationship between law and politics. In this analyses, issues related to the legal personality of the state in international law, the autonomy of international institutions, the establishment of a multipolar political order, the use of force in international law are self-imposed.
Bridging Regulatory Gaps, Rethinking Integration Policies, and Arranging Good Practices for Unaccompanied Children in The European Framework
Bridging Regulatory Gaps, Rethinking Integration Policies, and Arranging Good Practices for Unaccompanied Children in The European Framework
(Bridging Regulatory Gaps, Rethinking Integration Policies, and Arranging Good Practices for Unaccompanied Children in The European Framework)
- Author(s):Cinzia Valente
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law, Human Rights and Humanitarian Law, EU-Legislation, Asylum, Refugees, Migration as Policy-fields
- Page Range:401-423
- No. of Pages:23
- Keywords:Unaccompanied children; Best interest; Protection; Soft law; Inclusion;
- Summary/Abstract:This paper addresses the urgent issue of migrant children, particularly unaccompanied minors, migrating from non-European countries to European states. These children face significant vulnerabilities due to their foreign and minority status as well, as a lack of a legally responsible adult. The study underscores the necessity of enhancing protection measures to safeguard their fundamental rights and facilitate their integration into the host community. The absence of specific legislation at he international and European levels, coupled with fragmented national laws, impedes the implementation of effective and standardized solutions. Lawmakers are confronted with complex challenges, including the identification of minors, tracing parents or family members, appointing guardians or providing foster care, ensuring access to healthcare and education, and establishing procedures for repatriation or long-term reception. This essay aims to address these challenges and reconstruct the fragmented legal landscape by conducting a comparative analysis of the Italian legal framework and those of other European countries, with a particular focus on age verification, the reception system, and guardianship appointments, taking into account the relevance of operational rules and soft law. The conclusions will highlight the critical issues within the current legal landscape and emphasize the necessity for cooperation among key stakeholders (state and local entities, public and private institutions) and the minors themselves.
Пракса Суда правде Европске уније у функцији остваривања јасноће одредаба Регулативе Брисел II бис
Пракса Суда правде Европске уније у функцији остваривања јасноће одредаба Регулативе Брисел II бис
(Case Law of the European Court of Justice as a Means of Clarifying Provisions of the Brussels II Bis Regulation)
- Author(s):Boris Tučić, Radmila Dragišić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation
- Page Range:424-446
- No. of Pages:23
- Keywords:Private international law of the European Union; The Hague Convention from 1996; The Regulation Brussels II bis; Preliminary ruling procedure; Creation, interpretation and application of law;
- Summary/Abstract:This paper focuses on decisions rendered by the Court of Justice of the European Union in the preliminary ruling procedure. The purpose of the said decisions was to interpret and clarify specific provisions of the Regulation of the Council (EC) 2001/2003 from 27 November 2003 concerning jurisdiction, cross-border recognition, and application of court decisions in matrimonial and matters of parental responsibility (the Brussels Regulation II bis). This refers to decisions issued in response to requests for preliminary ruling filed prior to 1 August 2022, when the recast (a consolidated version) of the Regulation came into effect. The rulings concern matters such as a lawsuit for annulment of marriage filed by the third party, a divorce certificate issued by the marriage registrar in the country of origin that contains a divorce agreement, a lawsuit filed by one parent requesting from the court a child travel consent and exemption from application of Article 8 (1) of the Brussels II bis Regulation in favor of provisions of the Hague Convention from 1996 governing jurisdiction, applicable law, cross-border recognition, and application of court decisions in matrimonial and matters of parental responsibility. Analysis of specific examples of the case law of the Court of Justice has proven particularly convenient for assessing the clarity of this secondary source of law in the European Union and for deciding whether provisions of the recast Brussels II bis Regulation addresses these issues more adequately compared to provisions of the repealed Brussels II bis Regulation.
The Logical and Systems Theoretical Presuppositions of the Law's Completeness: Law as Rule and Law as Norm
The Logical and Systems Theoretical Presuppositions of the Law's Completeness: Law as Rule and Law as Norm
(The Logical and Systems Theoretical Presuppositions of the Law's Completeness: Law as Rule and Law as Norm)
- Author(s):Csaba Varga
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:447-458
- No. of Pages:12
- Keywords:Civil Law; Common Law; Law as rule; Law as norm; Conceptualization; Logicisation; Systemic treatment; Gaps in law; Completeness of the law;
- Summary/Abstract:Gaps in the law and the completeness of the law only become relevant issues when we consider the law as norms and treat it as a system itself. Albeit in language use, "rule" and "norm" are mostly taken as synonyms interchangeable, the former signals that there is a normative message made available and the latter stands for the logically processed conceptual embodiment of such a message. As norms presuppose a quasi axiomatic ideal of conceptualizing and logifying the law, they are at home only in regimes of the Civil Law where they are construed to form a Rechtsdogmatik. (For, in contrast to it, Common Law is mostly casual exemplification). Or, the norm is logical unit, indeed, while the rule is a kind of proposition. Accordingly, reconstruction can as well reveal that either no norm or several norms are in fact expressed in and by given rule.
Pravo, pravni sistem i pravna praznina
Pravo, pravni sistem i pravna praznina
(Law, Legal System and Legal Gap)
- Author(s):Mirjana Nadaždin Defterdarević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:459-479
- No. of Pages:21
- Keywords:Law; Legal norm; Legal system; Legal gap; Filling legal gaps; Legal values;
- Summary/Abstract:Law endeavors to encompass with its norms the content of all social relations it deems appropriate in accordance with the values it advocates, and, through their subsequent systematization, it realizes the notion of a completed, closed, finite, harmonized and regulated system; nevertheless, there are legal gaps that, as it turns out, cannot be avoided, so this endeavor is put to a serious test. A legal system, when applied, is not a reflection of its ideal image. Law can never be entirely finite because the life it governs by its norms is always more complex, and it evolves and changes faster that law. The content of law will therefore, to a lesser or greater extent, inevitably face legal gaps - social relations with elements of legality that are not legally normed. This distinction between the coveted ideal in which it would be realized as a finite, closed, and completed legal system and its real and inevitable manifestation of imperfection demanded that law be determined according to the legal gaps. In the long history of law, the response to legal gaps has changed - from a priori rejection to pragmatic acceptance. Instead of denying or perceiving legal gaps as compromising contradictions to the legal system, as was initially the case, we now accept their existence as a challenge to both the law and the legal system, recognizing their existence as a valuable opportunity to repeatedly affirm the adaptability and vitality of both the law and the legal system in addressing the legal gap challenge. Following this choice, the law responds to the legal gap by adhering to its already established values, whose application and confirmation form the foundation of the existing legal system. The subsequently adopted norm, which fills the gap and adheres to the previously established value criteria, replaces the uncertainty resulting from the missing legal norm. Legal values, irrespective of how subjective and conditioned by interests in the context of an objective social reality, create a sense of certainty, continuity within discontinuity, and always have a clear goal - the one to justify law and strengthen trust in legal content and goals - reiterating that law guarantees peace, freedom, justice and legal certainty and that its norms will always nurture these values and honor the requirements of legality, completeness, and concreteness. Even though the value principles are subjective facts in their essence, in law they are objectivized and certain, so in the context of the legal response to the challenge of legal gaps, they should be recognized as clear and reliable guidelines. Following the pre-existent guidelines of legal values in a legal system, regardless of the numerous and sometimes significant differences in the definition and contextual application of this concept, the answer of law to a legal gap is transformed from the recognition of its deficiency to the affirmation of its virtues - primarily consistency and vitality.
Anatomija i patologija zakonodavstva u Srbiji početkom dvadeset prvog veka
Anatomija i patologija zakonodavstva u Srbiji početkom dvadeset prvog veka
(Anatomy and Pathology of the Legislation in Serbia at the Beginning of the Twenty-First Century)
- Author(s):Goran Dajović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:480-504
- No. of Pages:25
- Keywords:Legislation; Individual laws; Authentic interpretation; Emergency legislative procedure;
- Summary/Abstract:Apart for occasional reports and analyses by various non-governmental organizations, parliamentary practice and legislative procedures in Serbia are not the focal point of critical attention in domestic legal public and science. Therefore, it seems justified to shed light on and subject to criticism certain legally relevant manifestations of parliamentary practice. This practice can be succinctly characterized today as being contrary to the fundamental principles of rational legislation, as well as the principles of the rule of law, democracy, and the separation of powers, even though these principles are incorporated and elaborated in relevant legal sources in Serbia. It appears that Serbian legislative practice is unique compared to other (Eastern) European countries precisely because, despite a modern normative legal framework, it is denied in Serbia in particularly "colorful" ways. As a result, although it remains formally valid, it is circumvented or abused. However, in order to sharpen the contrast between the letter and the spirit of norms on the one hand, and legislative practice on the other, it is necessary to provide a brief description of the anatomy of the normative legal framework in Serbian legislation. This entails a concise overview of statutes as a source of law in Serbia, as well as the pre-parliamentary and parliamentary stages of the legislative process.On the other hand, paradigmatic cases of legislative pathology that will be analyzed include the extensive use of emergency legislative procedures, the enactment of individual statutes, and the widespread practice of the so-called authentic interpretation. These practices may not be the most severe and probably not the most fatal "diseases" of the Serbian legislation. Nevertheless, within legislative branch of government, they are the most illustrative manifestations of political and moral gangrene that have affected Serbian society in the 21st century.
Покушај разградње националног идентитета српског народа под утицајем "страног фактора"
Покушај разградње националног идентитета српског народа под утицајем "страног фактора"
(An Attempt of Dissolution of Ethnic Identity of Serbian People Under the Influence of "Foreign Factor")
- Author(s):Ranka Perić Romić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Nationalism Studies, Politics and Identity
- Page Range:505-520
- No. of Pages:16
- Keywords:Ethnic identity; Foreign factor; International community; High Representative; Values; Power;
- Summary/Abstract:This paper examines the concept of ethnic identity through the lens of various theoretical concepts and approaches, critically examining the impact of actions by ‘the foreign factor’ in the Bosnia and Herzegovina, specifically the Republic of Srpska to underscore the importance of preserving ethnic values. The author employs the inductive methodological approach to highlight how ‘the foreign factor’ implements concrete measures aim at dissolving ethnic identity elements to establish the unitary state of Bosnia and Herzegovina, while the deductive approach explores the impact of these measures and their potential outcomes. The primary goal of the paper is to highlight the fact that the preservation of the ethnic identity of the Serbian people, predominantly within the borders of the Republic of Srpska, depends on the following two elements: reducing the power of ‘the foreign factor’ to a minimum level through taking a consistent political course of action, free of any particular political interests, and strengthening the awareness of the Serbian people on possible consequences of weakening the Serbian ethnic identity.
Fuller's Theory in Use - the Independent State of Croatia Legislation Analysis
Fuller's Theory in Use - the Independent State of Croatia Legislation Analysis
(Fuller's Theory in Use - the Independent State of Croatia Legislation Analysis)
- Author(s):Miloš Zdravković
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Philosophy of Law
- Page Range:521-539
- No. of Pages:19
- Keywords:Independent State of Croatia (NDH); Lon Fuller; Inner morality of law; Legal system;
- Summary/Abstract:Determining the morality of a legal order, in the end, is not an immediate subject of legal science, but of ethics. Therefore, it is possible to analyze the legality of the Ustasha order without questioning its moral assumptions, exclusively on the basis of generally accepted, strictly legal values, that is, from a purely legal point of view. Without resorting to the methods and results of other scientific disciplines such as historiography, sociology, ethics, psychology, political science, etc., but only on the basis of the concepts and values that the legal profession has been building since its existence, it is possible to determine quite precisely how a specific order corresponds to the legal concept. In this regard, a very useful and therefore very widely accepted concept was offered by the famous American legal theorist, Lon Fuller, and it will be used as the basis of the analysis. Fuller made a departure from basing the validity of law on its substantive compliance with morality, according to the formula lex iniusta non est lex. The impossibility of determining indisputable moral criteria for assessing the content of law, as well as the fact that such an assessment is performed externally, outside the framework of legal science, prompted Fuller to find the criteria of the moral correctness of law within himself. Fuller argues that the internal morality of law is embodied in eight conditions (generality of legal rules, prohibition of retro-activity, clarity, efficiency and non-contradiction of rules, etc.) that a normative order must fulfill in order to be recognized as a legal. The conducted analysis shows that the system of rules that was valid in the Independent State of Croatia does not meet any of the criteria of Fuller's theory, and its character of legality must be contested.
The European Court of Human Rights - a Constitutional Court of Europe?
The European Court of Human Rights - a Constitutional Court of Europe?
(The European Court of Human Rights - a Constitutional Court of Europe?)
- Author(s):Brano Hadži Stević
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation
- Page Range:540-569
- No. of Pages:30
- Keywords:European Court of Human Rights; European Convention on Human Rights; Human rights and freedoms; Constitutional Court; Materia constitutionis; Constitutionalization;
- Summary/Abstract:The European Court of Human Rights (ECtHR) is the protector of European Convention on Human Rights (ECHR) with jurisdiction to “ensure the observance of the engagements” on this act which represents the base of European law of human rights and freedoms. Important questions about this institution and this act are related to their nature. Some authors think that the Convention and the Court resemble the constitution and the constitutional court, respectively. This article seeks to review this conception by analyzing two questions: (1) Is the ECHR a constitution of Europe and (2) is the ECtHR European Constitutional Court? In seeking answers to these questions, we will describe the typical characteristics of constitution (materia constitutionis) and compare them with characteristics of the ECHR. Afterwards, we will describe the typical characteristics of constitutional courts and their reasoning in order to compare them with the ECtHR’s institutional role and its reasoning. In particular, the effect of the decisions of the constitutional courts and the ECtHR will be analyzed, as well as the criteria (which are not necessarily legal) used by these institutions in process of reasoning. Regardless of nature of this act and this institution, this paper tends to show that the ECHR and decisions of the ECtHR have important role in constitutionalisation of legal orders of European countries.
