Nepotpuni monizam u ustavnom poretku Republike Srbije: zašto je a posteriori potvrđivanje međunarodnih ugovora loše rešenje?
Incomplete monism in the constitutional order of the Republic of Serbia: why is a posteriori confirmation of international treaties a bad solution?

Author(s): Vladimir Mikić
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, International Law, Public Law, Evaluation research, EU-Legislation
Published by: Fondacija Centar za javno pravo
Keywords: Public law; constitution; Constitutional Court; Republic of Serbia; legislation; domestic law; international law; relationship; EU legislation; evaluation;
Summary/Abstract: The article examines the problem of relationship between the norms of international law and the domestic legal order of the Republic of Serbia. The text of the Constitution of the Republic of Serbia suggests a form of monism – which understands the international and domestic norms as parts of a single and comprehensive legal order – however, without permiting an automatic incorporation of concluded treaties into domestic law. The Constitutional Court of Serbia is authorized by the Constitution to assess the constitutionality of treaties and, therefore, to decide on their future application in the domestic legal order. However, as a consequence of the Court’s decision, a treaty which had already been producing domestic legal effects, can – if it is estimated to be unconstitutional – be deprived its legal effects sometimes long after its application in the domestic legal order had started. This might produce a dilemma between the unchallenged respect of the constitutional norms on one side, and the effectuation in good faith of the international obligations on the other. In order for those two imperatives to be reconciled, the article suggests modifications of the relevant norms of the Constitution of the Republic of Serbia, aiming at the establishment of the preventive (early) control of the treaties’ constitutionality.

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