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Home 2016 June (Page 3)

The Supremacy of International Law? – Part One

Published on June 2, 2016        Author: 

Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part one of two).

My topic is The Supremacy of International Law? I chose the subject unwisely, seduced by the question mark into the thought that there would be scope for erudition on a subject that, for international lawyers, is the touchstone of the authority and effectiveness of our discipline but dismissed or simply ignored by scholars and practitioners of national law – quaintly described by international lawyers as “municipal lawyers” – as being at odds with the reality of national constitutionalism or the sovereignty of parliament. Having thought about it further, and had the opportunity to look into the scholarship on the subject over recent years, I have settled for the more modest task of trying to illuminate a little more the dimensions of a debate that has both philosophical and practical resonance.

As you will all no doubt be well aware, the UK at the moment is in the throes of a great internal debate. It is at root a debate about identity – whether we are and should be part of Europe or are a mid-Atlantic island with a grand history that should see its future role as a stepping-stone, bridging the western cultural divide. It is about who we are and who we want to be, about harkening back and aspiration in an uncertain world.

But, once we scratch the surface, it is a debate about laws, about where they are made and who has the last say. It is about democracy in law, about the connection between the law and those whom it governs. It is not cast in these terms in the public debates and the fear mongering of politicians but it is in substance a debate about the supremacy of international law.

The international law in focus in this debate is an international law of a special kind, most directly in the frame is European Union law, with its doctrines of supremacy, direct application and direct effect, but following close behind is the Strasbourg law of the European Court of Human Rights that, in living instrument fashion, has turned a treaty into a constitution. The font of both is found in traditional instruments of international law, inter-State treaties of a standard setting and coordinating kind. Both have come a long way since the entry into force of their texts, having shaped and fashioned a community on the continent of Europe that looks to some at times more like a federal society than a collection of nation States. And the issue in both cases is who makes the laws and who has the last say. Most acute of these is who has the last say as there is an appreciation, accurately so, indeed an apprehension (in both senses of this word), that, once the ink on the constitution is dry, it is courts that fashion the society that develops thereon. Read the rest of this entry…

 

Universal Jurisdiction or Regional Lawfare

Published on June 1, 2016        Author: 

This article reflects on Relja Radović’s article “A Comment on Croatia’s Concerns over Serbia’s So-Called “Mini-Hague.

The major point of contention

As a major point of contention between Croatia and Serbia in the current “jurisdictional debate”, Radović rightly pinpoints Article 3 of the Law on the Organization and Competence of State Authorities in War Crime Proceedings (the “LWC”) (see here) by which Serbia extended its criminal jurisdiction in proceedings for the most serious violations of IHL committed on the territory of the former SFRY (LWC Article 2), regardless of the citizenship of the perpetrator or victim (LWC Article 3). Radović also summarizes Croatia’s objections to LWC Article 3 and the jurisdiction it introduced, which argue that it is incompatible with international law (including international criminal law) and “European standards”, as well as contrary to the very notion and basic principles of universal jurisdiction. For the sake of clarity, it should be noted that LWC Article 2, which introduces the aforementioned territorial extension of the Serbian criminal jurisdiction, and Article 3, which reasserts this extension and simultaneously cuts any links to the citizenship of the perpetrator or victim, must be read in conjunction. However, for the purposes of this article, reference will be made to Article 3 to cover both, as was Radović’s approach.

In his analysis of the dispute, Radović fully and unreservedly accepts the official Serbian narrative, which equates LWC Article 3 to universal jurisdiction as it is commonly understood or – as Radović later in his contribution dubs it – to “real” universal jurisdiction. Namely, according to Radović:

“the contested Article 3 does not, in itself, create Serbian criminal jurisdiction over crimes committed during the Yugoslav conflict based on the universality principle” … but “… this jurisdiction exists independently of the contested Law … and is provided by the virtue of … Article 9 para 2 in conjunction with Article 10 para 3 of the Serbian Criminal Code … regulating “real” universal jurisdiction for international crimes”.

The author therefore concludes that there is no difference between the two (LWC Article 3 and “real” universal jurisdiction), that “it seems that Croatia has totally misinterpreted the whole issue”, and that by opposing LWC Article 3 Croatia is blindly and unreasonably opposing a form of jurisdiction (“real” universal jurisdiction) accepted in criminal legislation in many EU Member States, as well as other States, including Croatia’s own criminal legislation. Read the rest of this entry…