Populism as a threat to the rule of law

The aim of this paper is to bring the reader closer to what the term populism means, what are its defining elements, in which parts of the world and in what forms is this phenomenon present today, and, finally, what consequences it has on modern democracies and the rule of law. The introductory part of the paper deals with the issue of defining the term populism, presenting the theories that are most common in the literature and setting out the constitutive elements of the term. The paper further provides an overview of the regions in which populism is most present today, with a general inspection of its manifestations and a brief historical outline of its origins. Finally, the paper concludes with the analysis of the negative and positive consequences that the populism has on today's democratic societies, as well as of its impact on the rule of law – i.e., by answering the question of whether the founding pillars of the 21st century rule of law manage to withstand the onslaught of a strong, all-coming, populist wave?

Hajek's understanding of law

In this paper, the author will try to present Hayek 's understanding of law in a concise way, with reference to all institutions and processes related to such a topic, through the analysis of Hayek's works as well as the analysis of the critique of his understandings. First of all, his evolutionary approach will be explained, which enables the processes in a society to be viewed analogously to natural processes. Further, the main thesis of Hayek's theory will be elaborated, that is the connection between the market and common law in the embodiment of the spontaneous order on the one hand, and the made order which Hayek calls "taxis" on the other hand. Additionally, Hayek's understanding of the purpose and character of law as well as his understanding of the law, as well as his distinction between the law of freedom and the law of coercion, i.e. between "nomos" and "thesis". Finally, this paper attempt to represent the Hayek's detailed inquiry into human behaviour, the limitations of human possibilities as well as the misconceptions that have ruled for centuries which stem from the belief in the unlimited powers of science.

Revitalization of Radbruch's formula in the theory of Robert Alexy

In trying to unravel the quandary of the concept of law, Robert Alexy stipulated some sort of an eclectic non-postivistic theory of law which consists of three arguments: from Correctness, Injustice and Principles. He believes in the possibility of a rational justification of objective morality, which he incorporates into the aforementioned three arguments, claiming that law and morality are conceptually connected. This paper will question the limitations of such an approach. The Argument from Correctness states that no system can be considered to have a legal nature if it does not claim correctness, while it will be seen as defective if it does claim, but does not fulfill correctness. On the other hand, the Argument from Injustice is an addition to the previous thesis, through the revitalization of the Radbruch Intolerability and Disavowal Formula – subtracting legal nature from extremely unjust norms. The paper evaluates main objections pointed towards such a conception of law, as well as general problems which may occur within the Arguments from Correctness and Injustice.

The position of migrant women from the perspective of employment and labour relations – the road towards equality and the challenges by the road

Many women around the world decide or are forced to cross a path of several hundred or thousands of miles for various reasons, but at the same time for reasons that through one phrase can be expressed as a search for a better future. In this context, the paper deals with the issue of challenges faced by migrant women who are migrants for employment, i.e., migrant workers. Regardless of the existence of a developed international legal framework related to the position of migrant women, they are often put in a worse situation in the field of employment and labour relations in practice, based on (at least) two grounds. Given this, the hypothesis put forward in the paper is that migrant women are often victims of intersectional discrimination, and that it is necessary to pay additional attention to the issue of protection of migrant women in the labour market and in the sphere of labour relations. Although the path towards equality includes a number of challenges along the way, equality as a goal makes every step towards achieving the goal valuable and significant.

Ne bis in idem in the jurisprudence of the European Court on Human Rights with special emphasis on the case Milenković v. Serbia

In comparative and domestic case law, individuals are often being criminally prosecuted for actions that also contain elements of misdemeanours or other administrative or disciplinary offenses, for which they have already been trialed and even punished. This is evidentially a violation of the ne bis in idem principle, which represents not only one of the basic pillars of criminal law, but also internationally protected human right. Therefore, through analysis of the case law of the European Court of Human Rights, in particular Milenković v. Serbia case, together with the stands of domestic courts on the topic at hand, it will be illustrated that inadequate application of the prohibition against double jeopardy necessarily leads to inadequate criminal protection, shortage of just satisfaction for victims and undermining of legal certainty.

Defining Sovereign Assets for Immunity from Execution: International Rule of Law Versus International Law - Based Rule of Law

Sovereign assets receive restrictive sovereign immunity based on their purpose and/or use for execution of States’ commercial liabilities. The forum States’ courts decide the question of immunity of these assets. Due to lack of effective international conventions, these judgements result at inconsistent outcomes. Rule of law can be applied to mitigate this inconsistency. However, the objectives of rule of law vary for the national and the international legal order. Moreover, the divergence in group-interests of States and mandate of international organizations have failed to agree on a uniform definition of international rule of law. Thereby, this paper suggests international law-based rule of law as an alternative approach. International law-based rule of law aims at achieving the same objectives as domestic legal order, but, by the tools of international laws. Finally, it proposes to develop an inter-States consensus-based model law to have uniform principles of sovereign assets’ immunity in international law.

The international court of justice at the crossroad between law and politics the example of the caselaw on nuclear weapons

The International Court of Justice is identified by Article 92 of the United Nations Charter as the “principal judicial organ of the United Nations”. This definition has consecrated the International Court of Justice as the World Court, as the guardian of the application of international law. Is this picture still actual? Is the International Court of Justice currently performing a guardian role? What does it happen when highly politically sensitive issues, like nuclear proliferation and nuclear disarmament, arrive before this Court? To address these questions, this work will analyse the case-law of the International Court of Justice on nuclear weapons. Retracing the jurisprudence of this Court on this issue will shade a light on many characteristics of the World Court and its members, questioning its concrete role in the present international arena.

Judicial avenues for upholding the international rule of law: the downing of MH17 case

The article seeks to identify the means in which key principles of the international rule of law are applied in practice. It postulates that the plurality of available legal remedies fosters the international rule of law development. The article evaluates the ongoing and potential legal proceedings against States in relation to the 2014 downing of flight MH17 and their interplay. With the exception of the individual and the Dutch inter-State application, three international bodies are currently tackling the dispute from a perspective wider than the MH17 incident – namely, the situation in Eastern Ukraine (and Crimea). The objective of this article is to showcase the different efforts to bring justice by ramifying the MH17 case within them. The article chiefly focuses on the ongoing proceedings seeking State responsibility – the International Court of Justice (ICJ), and the European Court of Human Rights (ECtHR).

Validity Of The 1918 Unification of Montenegro And Serbia - An International Legal Theory Approach

In this paper, the author will critically reexamine the 1918 unification of Montenegro and Serbia, challenging the views which claim that it had no legal basis in the then-valid (international) legal order. The author disregards these claims made by the critics of the unification by exposing their methodological and logical inconsistency. In doing so, by citing original documents the author attempts to actually recreate the adjudicating process by which this question had been solved within the realm of the international law and, in doing so, he brings the reader’s attention to certain theoretically interesting aspects of the international law, such as its overall nature, its adjudicating process and its adjudicating bodies (institutions), which are of utmost theoretical importance.

Opravdanost ustavnosudskog aktivizmа zarad zaštite ljudskih prava: Evropski sud za ljudska prava i Ustavni sud Bosne i Hercegovine

The author analyzes some decisions of the European Court of Human Rights and its interpretive principles and decisions of the Constitutional Court of Bosnia and Herzegovina, in order to answer when the creative approach of the Constitutional Court can be justified. No kind of constitutional court activism is acceptable when it comes to normative control of constitutionality, while it can be in the procedure on appeal. The author claims that constitutional court should decide on the basis of the text of the constitution. The European Court considers that the interpretation should enable the real application of the guaranteed right, but it is disputable when such an interpretation grows into the creation of law, which the author discusses primarily from a theoretical aspect, and then analyzes the case law. The main thesis in the paper is that constitutional activism is justified only in exceptional cases in order to protect human rights and freedoms.