Yugoslav War Occurrences And The International And Municipal" Law Problem Relations Cover Image

Jugoslovenska ratna zbivanja i problem odnosa medjunarodnoga i "unutrašnjega" prava
Yugoslav War Occurrences And The International And Municipal" Law Problem Relations

Author(s): Milan Petrović
Subject(s): Law, Constitution, Jurisprudence
Published by: Универзитет у Нишу
Keywords: state and law concepts; subordination and coordination in international and "municipal" laws; exterritoriality of international law

Summary/Abstract: This paper, first of all, resolves the old moot question – whether international law is really a law as a positive law or not. It provides an affirmative answer, starting from the positivistic definition of the law, such one which the concepts law and positive law considers the same. According to it, the law is an order which a state as a holder of a public power of compulsion, "imperium", creates, protects or recognizes. So, since international law is an order created, protected or recognized by states as holders of "imperium", it is obviously a positive law. That which makes illusion that there is within or above the positive law one more law, "natural law", is the fact that there are within the positive law certain absolute moral principles; but, they are not valid as such, thanks to their inherent properties, but through the acts of making positive, that is to say adoption by the competent state organs. Further, the paper's standpoint is that of the monist doctrine, according to which international and "municipal" laws make one unique order, in the sense that international law is a branch of the "municipal" law. By means of a detailed analysis, the article proves inapplicableness of the dualist doctrines to the actual facts of the universal international law. Only, the former monist doctrine's viewpoint is either that the "municipal" law has greater legal force than that international (the teachings of the supremacy of the "municipal" law) or that international law has greater legal force than that "municipal" (the teachings of the supremacy of international law). This, however, proves that neither of the hereinbefore mentioned two teachings is correct, but that the "municipal" and international laws are of equal force. The "municipal" law is a territorial law of a state, while international law is an exterritorial law. A state, particularly its constituent power (pouvoir constituant) may – that being the essence of the monist doctrine – put out of force each norm both territorial and exterritorial laws, but, thus, it can violate both the territorial and the exterritorial laws of some other state – at the same time the activities of the state being both lawful and unlawful. Subordinated to the idea of territoriality and exterritoriality are other basic legal concepts: the municipal sovereignty is reflected in the presence of the constituent power upon a territory; the international sovereignty exists when one more condition is fulfilled – that the subject territory is not at the same time the territory of some other state. The article, therefore, represents an outline of a whole theory of law as well.

  • Issue Year: 1/2000
  • Issue No: 4
  • Page Range: 464-491
  • Page Count: 29
  • Language: Serbian