О ФОРМАЛНОЈ ПРОТИВУСТАВНОСТИ МЕЂУНАРОДНИХ УГОВОРА
THE FORMAL UNCONSTITUTIONALITY OF TREATIES

Summary/Abstract: The author discusses the question of the legal status of international treaties entered into (signed) as a result of abuse of national regulations on the legal authority to sign (enter into) international treaties. Stating that the question of formal unconstitutionality of such treaties is to a large extent determined by the answer to the preceding question-what is the nature of the relation (ship) between the national and the international law he goes further to analyse the concept and nature of the unconstitutional treaties from the aspect of theoretical views international practice (diplomatic and judicial) and the regulations of positive law as determined by Article 46. of the Convention on Treaty Law. He finds that the regulation offered by the Convention is the result of compromise and that it, basically, expresses the acceptance of a mixed, eclectic theory of the relativity of national regulations concerning the validity of international treaties. He also points out the inconsistencies of that solution (regulation), particularly in regard to the substance of the formulation according to which abuse of the regulations of national law must be obvious, that is, actually apparent to every state acting in accordance with the normal practice and good faith. The international order not only does not have formed standards, such as the bonus pater families in national law, but also no effective institutional mechanism to assess the existance of such a standard. The author made a critical analysis of the other elements of the concept of Article 46. of the said Convention.

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