© Springer-Verlag Berlin Heidelberg 2015Siniša Rodin and Tamara Perišin (eds.)Judicial Application of International Law in Southeast Europe10.1007/978-3-662-46384-0_14
Judicial Application of International and European Law in Southeast Europe
Professor of EU External Relations Law and Governance, University of Amsterdam, 1012 WX Amsterdam, The Netherlands
Head of EU Foreign Policy, Centre for European Policy Studies, Brussels, Belgium
1 United in Diversity
History does not move in a straight line. And yet, while there are obvious differences in their political, economic and social constructs, the countries of Southeast Europe (SEE)1 share—by and large—a common trajectory: one of transformation from authoritarian communist rule and centrally planned economies to liberal democracy and capitalism. With the exception of Albania, all countries of the Western Balkans were part of a single jurisdiction until the violent implosion of the Socialist Federal Republic of Yugoslavia. For almost half a century, they shared the same body of law, judicial system and legal culture. The new structures that have taken shape following the collapse of communism in the region in the early 1990s are largely the same. And like the countries of Central and Eastern Europe before them, the transformation of the countries of Southeast Europe has been driven by a desire to join the European Union. Whereas legal transition has so far been fairly swift on paper, the process remains incomplete in most parts of the region when measured against the standards applied by the European Commission.
Indeed, differences do exist, for instance in the speed of transformation. This is partly due to the diverging impact of the wars in the first half and at the end of the 1990s. In part, regional differences are also due to varying levels of political will to look beyond electoral cycles, break vested interests, curb corrupt trends during transition, and implement tough reforms for ulterior gain. Even if some results appear shaky, Slovenia and Croatia have realised the dream shared by all. They acceded to the EU in 2004 and 2013, respectively. All of the other countries of the region are locked into the Stabilisation and Association Process (SAP), the pre-accession process for the countries of the Western Balkans. They are parties to the Central European Free Trade Agreement (CEFTA) which, as a precursor to joining the Union’s internal market, liberalises trade between them. And they have all concluded Stabilisation and Association Agreements (SAAs) with the EU,2 even if the one with Bosnia and Herzegovina has entered into force only partially pending full ratification,3 and the one with Kosovo has only been initialled.4
2 Constitutional Status of International Law
All SEE countries covered by the research in this volume have a monist approach to the relationship between national and international law. The Constitutions of Albania (Art. 122), Croatia (Art. 141), Kosovo (Art. 19), Macedonia (Art. 118), Montenegro (Art. 9), Serbia (Arts. 16 & 194) and Slovenia (Art. 8) state that international agreements which have been properly ratified and published in the official journal are an integral part of the country’s legal order and enjoy primacy over national laws.
The latter phrase concerning primacy of ratified treaties over national law is not always as clear cut. This is the case, for instance, in the Constitution of Macedonia. In their contribution to this book, Marija Risteska and Kristina Miševa adhere to the formal distinction between monism and dualism and argue that given the fact that ratification is needed for an international legal act to become an integral part of the domestic legal order, the Macedonian system is to be described as a dualist one. In practice, however, the monist and moderate dualist approaches give rise to the same results.5 In keeping with widely accepted views on the relationship between international and national law,6 one could therefore ascribe a monist status to the Constitution of Macedonia. After all, Article 118 stipulates that ‘international agreements that are ratified and in accordance with the Constitution are an integral part of the domestic legal order and cannot be changed or derogated with laws’.7
Although the Constitution of Bosnia and Herzegovina (BiH) is silent on the legal status of international agreements in general, it is based on a treaty (the 1995 Dayton Peace Agreement) and its Article 2(2) states that the European Convention on Human Rights (ECHR) is directly applicable and hierarchically superior to national law.8 Furthermore, Annex I to the Constitution of BiH lists other human rights agreements which also appear to be self-executing.
Some constitutions literally incorporate provisions of international agreements ratified by the SEE countries. The Slovenian, Croatian and Kosovo constitutions, for instance, borrow directly from the language of the ECHR.9 The Constitution of Macedonia, which was developed incrementally on the basis of the 2001 Ohrid Framework Agreement, is founded on a long list of treaties and includes many a provision of the ECHR, the International Convention on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).10 As such, international and EU law has to a great extent been domesticated in the basic law of the lands of Southeast Europe. The same applies, albeit to a lesser extent, to the jurisprudence of international courts and tribunals. In Kosovo, the Constitution demands respect for the jurisprudence of the European Court of Human Rights (ECtHR), even if—or rather, exactly because—the country is not a member of the Council of Europe.11 Slovenia and Croatia adopted constitutional amendments so as to secure the supremacy of EU law, as developed in the Van Gend en Loos and Costa v. ENEL judgments of the Court of Justice of the EU (CJEU).12
All this confirms that the treaties and international agreements to which the SEE countries are parties (e.g. ECHR, WTO treaties,13 Aarhus Convention,14 etc.) are part and parcel of their domestic legal orders and that they are hierarchically superior to national laws. This finding gives rise to the central question of this volume: to what extent is international law in fact applied by the judiciaries of the eight SEE countries under review?
3 Judicial Attitudes: The Soul Travels on Foot
As Sanja Bogojević points out in her contribution to this book, the judiciary in each country of the region typically consists of a three- or four-tier court system with the Supreme Court and the Constitutional Court on top. The judicial architecture of Slovenia and Croatia has been supplemented since accession to the EU: the CJEU has the monopoly to decide on the interpretation and validity of EU law, and as such binds Slovenian and Croatian courts and tribunals in their domestic application of EU law. The judicial system in BiH and Kosovo is different still, with foreign judges (and prosecutors) being part of the composition of higher court structures like the War Crimes Chamber of the State Court in Sarajevo and the Constitutional Court in Pristina, precisely in an effort to help the local judiciary attain higher standards and get to know international law better. While, as Bogojević observes, it is important to bear these institutional differences in mind when assessing how the judiciary functions in Southeast Europe, there is more than just the judicial architecture that explains national courts’ relatively poor track record in the implementation of international law.
Unlike the—sometimes lightning—speed with which the governments and parliaments of SEE countries have been blazing the paper trail, the legal culture in the judiciaries has been far slower to adapt. The shadow of the authoritarian and communist legal mind-set, whereby judges were supposed to follow—not to interpret—the will of the legislature,15 still looms large over Southeast Europe. Whereas older generations of judges are gradually retiring from the bench, a positivist approach to adjudication still prevails whereby the role of the judge is restricted to the objective application of the law and the act of legal interpretation amounts to nothing more than ‘a process of deduction, void of any contextual considerations’.16 As Zdenek Kühn has argued elsewhere for the countries of Central Europe, most post-communist judges still adopt a formalist understanding of the law, although their discourses are ‘often clothed in a new legal vocabulary’.17 The national reports compiled in this volume show that the situation in the countries of Southeast Europe is not much different. It will probably take another generation before legal education and culture catch up with the Europeanisation of the other branches of the trias politica.
The same applies to the reduction of corruption levels in the judiciaries of Southeast Europe, a matter which has remained outside the scope of the current research. The situation is rather bleak, as evidenced in a report prepared for the European Commission in 2013:
The independence of the court system is a particular concern throughout the Western Balkans. The threat to this independence comes from several sides. From the state it is primarily through the control of the budget for the court system, and/or the appointment or termination of judges and prosecutors and finally in exerting political pressure in specific court rulings. From the private sector it is through the buying or influencing of legislation and/or outcomes in court cases, though this issue seems to be of much less concern in the region than the threat of state interference and influence.18
Subsequent progress reports issued by DG Enlargement have confirmed this sorry state of affairs.
4 Judicial Application of International Law
One of the main features of a monist relationship between national and international law is the obligation of the authorities of a contracting party to a treaty to interpret and apply domestic legislation in conformity with the international obligations entered into by the state. In Albania, Croatia, Kosovo, Macedonia, Montenegro, Serbia and Slovenia, ratified rules of international law are applicable by the domestic courts and other public authorities without the need for any additional regulatory activity of the parliament or the government.19 Recognition of the direct application of international agreements in Bosnia and Herzegovina arises from the interpretation of Articles 28 and 29 of the Law on the Procedure for the Conclusion and Execution of International Treaties.
4.2 Track Record (I): International Law
Reflecting judicial attitudes prevalent throughout the region, the national reports compiled in this volume show that courts in Southeast Europe are generally reluctant to apply international law, in spite of the institutional structures that have been established to facilitate the judicial consideration of ratified international law.20 Insofar as higher courts are concerned, the focus is primarily on the direct application of rights codified in the ECHR, as exemplified by the reports on BiH, Kosovo and Macedonia. Contrary to lower courts elsewhere in Europe, which tend to be less conservative than superior—let alone last—instances, junior courts in the Western Balkans do not have a tendency of referring to international law, restrained as they are by the authority of their judicial hierarchy.
It transpires from all national contributions to this volume that the most frequently applied source of international law is the ECHR. Paraphrasing Sanja Bogojević: in Kosovo, 90 % of the case law referring to international law is related to rights and freedoms derived from the ECHR. Similarly, in Slovenia, BiH and Macedonia, the ECHR and the jurisprudence of the ECtHR are the main international sources of law referred to. In Serbia, Strasbourg case law (mainly relating to damages for defamation, family and property disputes) has been extensively used to interpret national law and, although it may not have any legally binding force, it is deemed to carry great moral and political value.21 Along similar lines, the Albanian judiciary has in almost all human rights-related cases pointed to the ECHR. The same applies to Croatia.22
At the other end of the spectrum, Tamara Perišin and Lana Ofak in their contributions to the volume find that WTO law, environmental law and the Aarhus Convention have only rarely been applied in SEE countries.
With respect to the WTO, the membership picture is rather different from that of the ECHR: Montenegro joined the WTO only in 2012 and can thus not be expected to have produced a lot of practice; Bosnia and Herzegovina and Serbia are still in the pre-accession phase (but have observer status); and Kosovo has yet to apply. In the other four SEE jurisdictions there are hardly any cases where a national court has relied on WTO law or where parties have cited WTO law to support their claims. For Slovenia and Croatia, one could perhaps raise the argument that, with their accession to the EU, a large share of the competence in the field of WTO law has been conferred on the EU and that the status of WTO law is now largely governed by EU law. Yet, these countries had been WTO members for a decade prior to EU accession and so their courts could have been expected to cite or even apply WTO law.23 Croatian courts stand out as the most active in the region, even if the total number of publicly available decisions referring to WTO law can be counted on two hands. The most prominent case concerns a foreign law firm wanting to set up a branch in Croatia on the basis of the General Agreement on Trade in Services (GATS). Slovenia comes second in the ranking, with regular courts and the Constitutional Court being exercised only by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The picture in the other two WTO countries is depressing. In Albania (a member since 2000), WTO law has been invoked once before the Constitutional Court. But the Court established that there had been a breach of the SAA and did not go on to analyse the compatibility of the measures with WTO rules.24 In Macedonia (a member since 2003), there has been no court practice with WTO law whatsoever.
As Perišin surmises, the dearth of application of WTO law by national courts can be explained mainly by the small size of the SEE markets, making it too costly for other WTO members wanting to export to a country in the region to go through a WTO dispute in order to improve market access. What is worse, perceptions of endemic corruption, outdated laws, red tape and an ineffective and corrupt judiciary render many a Western Balkan country an unfriendly place for foreign investment. Whereas Western European companies expanded their businesses in Central and Eastern Europe prior to the EU enlargement waves to those countries, they now tend to look past Southeast Europe to more lucrative markets in Southeast Asia and the Far East. Insofar as foreign companies do try to get a foothold in the Western Balkans, they tend to resolve their issues and disputes out of court. Another explanation for the unpopularity of WTO law before national courts in SEE countries lies in the lack of education in the field,25