Marko Novak

Abstract

According to Jung, along with dreams fairy tales are important reflections of archetypal occurrences in the human soul. They not only reflect our national or local characteristics but predominantly our universal nature. Some of the most popular fairy tales in Slovenia in the last 60 years have featured Kekec, who has almost become a national hero. The tale in Kekec is mostly about the fight between good and evil, which is necessarily related to justice being the most fundamental value or idea within legal philosophy. Kekec is not only a voice of human society but also of nature that tries to remedy breaches of social and natural norms. Thus, this contribution deals with a legal-philosophical interpretation of this very popular fairy tale.

Key words

Jung, fairy tales, archetypes, fight between good and evil, legal philosophy

Jasper Doomen

Abstract

The status of "international law" is examined critically. In the first section, the basis of (national) legislation is described. This consists of an inquiry into a credible meaning of "natural law". It focuses on the question of whether universal principles exist and, if so, of what kind. Section 2 deals with the issue of enforcement. National legislation invariably realises this, although this is not obvious at the international level. Section 3 deals with human rights where the question of whether their presence points to the existence of "international law" is discussed. To this end, a possible reason for these rights to have developed is expounded.

Key words

international law, universal principles, human rights

Anton Olaj

Abstract

When studying the Slovenian model of the incorporation of international law into the legal order of the Republic of Slovenia, we determined that the provisions of Article 8 of the Constitution of the Republic of Slovenia are especially "porous" when it comes to grammatical explanation and this may be regarded as an imperfection.

Specifically, we established that legal experts have no uniform opinion on what are to be considered the "generally applicable principles of international law" which pertain to the country's legal order per se.

We also noticed that the absence of an explicit provision in Article 8 of the Constitution on the direct applicability of the generally applicable principles of international law, with the concurrent existence of such a provision for treaties, could lead to the misconception that the generally applicable principles of international law cannot be directly applied in the legal order of the Republic of Slovenia.

The constitutional approach of the legal acculturation of the generally applicable principles of international law into the legal order of the Republic of Slovenia through automatic adoption (automatic standing incorporation) leads to their applicability upon their creation. However, the assessment of whether a binding norm of international common law has already been created in a specific case opens the scope for interpretation widely in either direction and can lead to arbitrariness.

We could also see that international law in the international contract segment is legally predictable with "indirect" publishing in the Official Gazette of the Republic of Slovenia, in contrast to the generally applicable principles of international law which are published to a smaller extent and only within the published decisions of the Constitutional Court of the Republic of Slovenia.

Key words

generally applicable principles of international law, customary rules of general international law, Article 8 of the Constitution of the Republic of Slovenia, sources of international law, Article 39 of the Statute of the International Court of Justice in The Hague, direct applicability, direct effect, self-executing rules, rule of law

Leon Slak

Keywords

The study examines the field of state succession, with a particular emphasis on the permanently topical and often contentious issue of succession to debts. The term state succession refers to the replacement of one country by another with respect to sovereignty over a territory, and thus to the transfer of the rights and obligations from a predecessor state(s) to the successor state(s) in the same territory. Always tied to a certain territory, state succession is, first and foremost, a territorial category. What is equally significant is that the law of state succession is part of international law and as such dispositive in nature. Therefore, state succession is primarily a matter of agreement, but only if the latter can be reached. If not, international law steps in. When it comes to international law, the distinction between the established rules, i.e. rules in force (de lege lata) and the emerging rules (de lege ferenda) holds particular relevance.

 

State succession and the significance of its connection with territory (the so-called territorial principle), particularly as regards the succession to the former SFRY is the common thread of this study. A special emphasis is given to the issue of succession to state property, i.e. with an equal consideration of both immovable and movable property – assets as well as liabilities. State succession is somewhat analogous to inheritance law as the term "state property" includes not only assets but also liabilities, both of which are transferred to the heir/successor in the event of succession.

Indeed, aspirations for the separate consideration of assets (immovable property and tangible assets) and liabilities (debts, securities and guarantees) have always existed, notwithstanding that international law is clear on the matter. This issue arose after the disintegration of the SFRY when, having succeeded to the immovable and movable property, the new countries in the former Yugoslav territory – Bosnia and Herzegovina, Croatia, Macedonia, the FRY and Slovenia – encountered a "problem" (when, in fact, there was no problem): "Who is to assume the guarantee of the former Federation for the foreign currency savings deposited with Ljubljanska banka in Zagreb and Sarajevo in the territories of the new states?"

As early as 2001, the successor states of the former SFRY signed the Agreement on Succession Issues which resolves most succession issues but unfortunately fails to tackle the issue of the former Federation's guarantee for foreign currency deposits.

Nonetheless, the Agreement does contain an unambiguous provision: foreign currency issues shall be negotiated among the successor states. The negotiations should take place under the auspices of the Bank of International Settlements in Basel, and the time period for them is described as "without delay". Given that the implementation of this provision has been delayed for an entire decade, the successor states' willingness to resolve the issue can certainly be questioned.

This study does not set out to solve this undoubtedly challenging problem (given that the successor states have failed to do so in the last 20 years and that none except Slovenia have shown any will to negotiate in the 10 years since the Agreement on Succession Issues was signed in 2001); however, it is reasonable to assess the legitimacy of the Republic of Slovenia's persistent demands for the territorial principle to be applied at a time when the Republic of Croatia (and Bosnia and Herzegovina) just as persistently reject such a solution.

The study clearly confirms that international law provides the only correct solution to the aforementioned issue, and that any other solution would only be applicable had this not been a case of succession following the disintegration of the SFRY. On the other hand, the territorial principle is nearly always applied, as testified by state succession in the cases of the SFRY, the Czechoslovak Socialist Republic, GDR/FRG and the USSR.

The study affirms the basic message of international law, especially with regard to the inseparability of assets and liabilities, even though the idea is already communicated by the VC-1983, which might at first seem obsolete for failing to include the latest disintegration instances, namely the SFRY, the USSR, the Czechoslovak Socialist Republic and GDR/FRG. Nevertheless, there is no strong need for a new (3rd) convention on succession as the five sources of international law (treaties, international legal practice, general legal principles of civilised nations, case law and legal science) provide sufficient criteria to settle any succession case, even when agreement cannot be reached.

Key words

international law, succession of states, territorial principle, state property, state debt, international treaties, International Law Commission, Vienna Conventions on Succession, United Nations, European Court of Human Rights

Jernej Letnar Černič

Abstract

On 30 June 2009, the European Court of Human Rights delivered three decisions deriving from the situation in the Basque country, Herri Batasuna and Batasuna v. Spain, Etxeberría and Others v. Spain and Herritarren Zerrenda v. Spain. In Herri Batasuna and Batasuna v. Spain, the European Court of Human Rights upheld the dissolution of the political parties Herri Batasuna and Batasuna, whereas it held in Etxeberría and Others v. Spain and Herritarren Zerrenda v. Spain that the political groups, which wished to continue the activities of the illegal political parties, are also prohibited from presenting candidates in municipal, regional and autonomous community elections. Despite the Court holding that the dissolution of the political parties and groups was necessary and proportionate, it may have failed to establish the factual basis and therefore also its conclusions are subjected to criticism.

Key words

European Convention on Human Rights and Fundamental Freedoms, freedom of association, freedom of expression, fight against terrorism, Spain, the Basque Country, necessary in democratic society.