Un modelo no innatista: el constructivismo o conexionismo

minacy, state-imperious dictates, legally binding character, three-term structure (hypothesis, dispositions and sanctions). Morozova L. A. points out that generally there is a uniform approach to determine rule of law with small peculiarities in doctrine of law. For example, Goyman V. I. defines rule of law as legally binding, formally determined prescriptions and principles which set the limits of probable and proper conduct of parties to legal relationship and which indicate the legality of such con- duct.

ISO norms do not meet all abovementioned criteria. In particular, due to its international character these norms are not secured by state compulsion. As it was already mentioned above, the compulsion is ensured not by state power, but by incontestable authority of ISO.

All other criteria of rule of law are common for ISO norms. They regulate a group of social relations settled in the field of international sport. They are expected to be applied in numerous cases. All Olympic Games and other international contests organized by IOC are carried out in accordance with Olympic Charter and rules of international fed- erations (IF).

Art.27 and art. 30 of Olympic Charter may serve as an example of providing-binding character of ISO norms. IF have right to set rules of certain sports (it is an obligation at the same time). According to Rule 30 the corresponding obligation to this rule is the obligation of National Sports Federations to follow the rules settled by IF.

A lot of norms contained in the Olympic Charter have the structure common to rule of law. Rule 28 (p. 6) stipulates that NOCs must pre- serve their autonomy and resist all pressures of any kind which may pre- vent them from complying with the Olympic Charter. This element can be considered as disposition of rule of law. Paragraph 9 contains sanction for noncompliance with abovementioned obligation: the IOC Executive Board may suspense such NOC or withdraw NOC’s recog- nition by IOC, what is an obligatory condition for functioning of NOCs in international sport. We may also find hypothesis in Rule 28 where the mission, the role and rights of NOC as participant of Olympic move- ment are described.

Surely, not all IOCs’ norms have three-term structure. However, S. S. Alekseev states that it is hard to find an example of regulatory act which would correspond to abovementioned theoretical scheme (hypoth-

esis, disposition, sanction in consecutive order -Vostrikova’s note)…the struc-

ture of rule of law just refers to these three elements regardless of where and how they are presented.

Hence, we can resume that ISO norms have the main features of rule of law and they can be classified as a kind of social norms (hard law).

Further we will define to what group of social norms ISO norms can be referred and therefore analyze the nature of ISO norms as custom- ary norms. At first we will compare ISO norms with usage (for being sure that ISO norms are not usage) and then examine the elements of international custom and try to find all those characteristics in ISO norms.

Danilenko G. M. points out that usage is not a rule of law, it is not legally binding common rule of conduct which is a result of uniform practice_.

This point of view is shared by some scholars. For example, Zumbulidze R.-M. Z. claims that the difference between custom and usage is that former is a rule of conduct formed as a rule of law and it exists independently of the will of subjects of legal relations, while usage does not acquire the status of binding legal rules and can only be used in case of expressed mutual consent of parties to a treaty.

ISO norms are binding, they are applied by all subjects of interna- tional sport movement and sanctions are imposed on violators of these norms. Thus, there are no grounds to attribute ISO norms to usages.

The basic definition of custom is provided in p. “b” of art. 38 of the Statute of the International Court of Justice. It is stated that the Court should apply “international custom as evidence of a general practice accepted as law”. According to this definition, at first general practice appears in particular field and then it crystallizes in custom.

There are many discussions concerning elements and legal nature of international custom, conditions of its appearance and application in theory of international law. The main points of view, which help to deduce the inalienable elements of international custom and their occur- rence in ISO norms, will be presented in this article.

G. M. Danilenko indicates two elements of international custom: long, constant, uniform, universal practice and recognition of such prac- tice as a rule of law. Later on he cites judge of the ICJ J. Read: ‘International customary law is a generalization of state practice. It can not be derived from cases when states announced far-reaching claims but did not support their claims by factual exercise of sovereignty’.

Therefore, the proof of existence of the first element of custom is fac- tual state action.

Moreover, the absolute conformity is not required. To support this position Tostykh V. L. cites the ICJ decision of case concerning Military and Paramilitary Activities in and Against Nicaragua: “The Court does not consider that, for a rule to be established as customary, the corre- sponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be con- sistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule…(p. 186).”

State acts in the sphere of international sports competitions are char- acterized by the following features. If all states delegate to the Olympic Games national teams which participate in the contests according to the rules set by the ISO, it means that states by their real actions estab- lish a uniform practice of compliance with ISO norms. This practice is spread over the world and many sovereign states from different geo- graphical regions, while participating in international sports competi- tions organized by IOC, have stuck to this practice since renaissance of the Olympic Games by Pierre de Coubertin.

Zykin I. S. claims that custom should be unique in concrete sphere of relations and it should be a common rule. _{It is hard to imagine a}

situation when at the international championship would be applied the rules of specific sports organization instead of rules of international sports federation. There are no signs of such cases in history.

Concerning the second element of custom opinio juris which means recognition of set rules as customary law rules (in our case, it is a recog- nition of well-established practice by participants of international sport movement), we should state the following.

The state recognition of rules as customary law norms may be expressed in different ways. In scientific literature tacit recognition by means of observance of custom in acts of state authorities and agencies is mentioned among modes of sanctioning custom by state.

It means that a mere practice proves the state recognition of such norms as binding. The Olympic Games Australia in 1956 may serve as an example. Even though Australia did not recognize USSR in 1956 and was against USSR’s intervention in Hungary, it had to permit the par- ticipation of soviet sportsmen in the Olympic Games in Melbourne as Australia did not have any grounds to refuse USSR to participate accord- ing to the Olympic Charter and other Olympic movement regulations.

In North Sea Continental Shelf case the ICJ in its decision (dated 20.02.1969) stated: “Not only must the acts concerned amount to a set- tled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i. e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must there- fore feel that they are conforming to what amount to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough…”.

There is another point of view concerning the second element of cus- tom express, for example, in the Final report of the Committee on the

13 L. A. Morozova “Theory of state and law”, M.,2003, p. 204.

14 S. S. Alekseev; ibid, p. 306 15 G. M. Danilenko “Custom in modern

international law”, M., 1988, p. 9. 16 R.-M. Z. Zumbulidze “Custom as a

source of civil law”, St. Petersburg, 2004, p. 176.

17 I.C.J. Reports.1951, p.191

18 V. L. Tolstykh “Course of international law”, M., 2010, p. 172-173.

19 I. S. Zykin “Custom and usage in inter- national trade”, Moscow, 1983, p. 12. 20 G. M. Danilenko, ibid, p. 65. 21 See: G. I. Tunkin “Forty years of coexis-

tence and international law” // Soviet Yearbook of International Law, M., 1959. 22 www.icj-cij.org/docket/files/51/5535.pdf

Abstract

In the text the author analyses the case law of the Croatian Supreme Court regarding labour law, sport law and insolvency law. Sport’s legal framework in Croatia in given in the introduction of the article accompanied with the analysis of the legal status of professional sportspeople in Croatia at the material time of the judgement and de lege lata. In the conclusion, the author opens questions and gives the reader an opportunity to form his own ideas of the way professional Croatian football is run and organised.

Key words: Croatia, case law, Supreme Court, legal status, football club, professional sportspeople

1. Introduction

The Republic of Croatia is at the moment still a candidate member to the European Union (further: EU), and it will probably become the 28th member state in July 2013._{This actually means that the Croatian}

legal system is fully or almost completely harmonised with the EU acquis. In the Croatian government structure there is a ministry with the sports field of competence: Ministry of science, education and sports._The

Ministry runs a register of professional sports clubs in Croatia. The reg- ister of professional sportspeople that runs their professional sports activ- ity as self-employed persons is run by the Offices of public administra- tion in the local county. The register of professional team sportspeople is run by the national sport’s association for a single sport.

2. The Sport’s Legal Framework in Croatia De Lege Lata

The Croatian sport is governed by the Sport’s Act, the latest version entered in force in 2006, and has had three amendments._{This puts}

Croatia in a group of countries with an interventionist system of sport regulation where the sport governing bodies are autonomous, but their autonomy is based on these laws._{According to Siekmann and Soek cri-}

teria of sport governance_{, Croatia has an interventionist model of sport}

* Research assistant at the Faculty of law University of Rijeka, Croatia, Department: Labour and social law, PhD candidate at the European faculty of Law, Nova Gorica, Slovenia t the European faculty of Law, Nova Gorica, Slovenia. 1 On the 30th June 2011 the EU member

states decided to close accession negotia- tions with Croatia: European Commission Press release, IP/11/824, 30/06/2011

2 Government structure of the Republic of Croatia, available: www.vlada.hr/en/ naslovnica/o_vladi_rh

3 Sport’s Act (Zakon o športu), Official Gazette No. 71/06, 150/08, 124/10 and 124/11 (Narodne novine br. 71/06, 150/08, 124/10, 124/11); Before the Sport’s Act in force, at the material time of the case con- cerned in this article there was in force the Sport’s Act (Zakon o športu), Official Gazette No. 111/97, 13/98 and 24/01 (Narodne novine br. 111/97, 13/98, 24/01) 4 See Martins, Robero Branco: A European Legal Football Match Heading for Extra Time, Vol. 3 (2004) no. 3/4, International Sports Law Journal p. 17.-30., p. 23. 5 Siekmann, Robert, Soek, Janwillem: Model of Sport Governance in the

formation of customary (general) international law. It states that if the practice meets all criteria of an element of international custom, then there is no need to mention the second element unless it is an excep- tional case when there are grounds to suppose that the opinio juris is absent. The second element could be easily deduced from practice, but then raises a question if there is a need for it.

Regardless of the position, we can confidently state that the majori- ty of ISO norms fit the criteria of international custom.

One more characteristic of first element of custom is common for the ISO norms. They are characterized by regular and steady repetition and stability. Zykin I. S. presumes that these are the most characteris- tic features of a custom.

It is also noted in scientific literature that the custom is characterized by vagueness of normative content and the problems with defining the scope of application of customary rules._{In contrast, these drawbacks}

are not typical for ISO norms, they have clear contents and well-defined scope of application. Moreover, ISO norms do not meet such criterion of custom, like impossibility of being a source of legal coordination of international relations which need detailed regulation (this criterion is pointed out by Danilenko G. M.). Private international sports relations require precise regulation, this is the main function of ISO norms.

The customary nature of ISO norms is proved by application of cus- tom in case of lack of treaty norms. There are only few cases when inter- national sports relations are regulated by treaty norms. We can not con- stitute the existence of complex and detailed scope of treaty law regu- lating international sport movement.

Previously, the doctrine of international law accepted only states and international organizations as subjects which actions could create a cus- tom._{Other subjects were not estimated as creators of international}

custom. According to the dominant position in doctrine the interna- tional non-governmental organizations can slightly influence on sub- jects of international law practice and can only participate in the cre- ation of international custom in the following forms: to carry out research, favour resolution of contentious issues (by means of organi- zation of conferences), control the implementation of international law etc.

There is also another point of view. Its representatives support the idea that the law cannot be only created by states any more._{The fol-}

lowing words of Neshataeva T. N. are quite appropriate here: “Strict dogmatic postulate of the special role of the state in international rela- tions does not allow scientific thought to respond to the events of a rap- idly changing global reality”.

Now with the increasing need to regulate specific areas of human activity and development of rule-making function of a number of sub- jects of international affairs, it is reasonable to recognize international non-governmental sports organizations as subjects which have the right to establish customary rules because of their specific field of regulation. Due to the fact that ISO norms have particular features, the process of creation of customary norms by ISO cannot and should not be in the same order as international customary lawmaking process.

Taking everything into consideration, we can give the further defi- nition of ISO rules. The rules of International sports organizations are a special kind of international custom, which appeared as a result of par- ticular activity of non-governmental international sports organizations and received the tacit approval of the States and other subjects of inter- national sports movement.

23 Final report of the Committee on the for- mation of customary (general) interna- tional law. International law association, Report of the 69th conference, London, 2000

24 I. S. Zykin, ibid, p. 11.

25 See.: Monograph of I. B. Lomakina, A. V. Dashin “Common law and custom: from social mononorm to legal regulation”, St. Petersburg, 2005; V. V. Naumkina “Custom as a source of law”, Krasnoyarsk, 2006; O. V. Malova “Custom as a source of law of major modern legal systems”, Irkutsk, 2006. 26 We are talking about inter-governmental

international organizations - see G. M. Danilenko “Custom in modern interna- tional law”, M., 1988, p. 67.

27 This position is enshrined in the thesis of candidate of science L. R. Shammasova “International custom in modern inter- national law”, Kazan, 2006.

28 Bazedov Y. “Revival of the process of uni- fication of law: European contract law and its elements” // Russian Yearbook of International Law. St. Petersburg, 1998- 1999, p. 67-68.

29 T. N. Neshataeva ‘International organiza- tions and law. New tendencies in interna- tional-legal regulating’. M., 1999, p. 68.

O

Case Law of the Croatian Supreme Court in the Fields