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Judicial Application of International Law in Kosovo

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Abstract

The Kosovo Constitution provides for a strong regime of domestication of international human rights instruments and respect for international law. Against that background the jurisprudence of Kosovo Constitutional Court and of EULEX international judges embedded in Kosovo courts reveals a rich interaction with United Nations law, international criminal law, state succession and international human rights law. Their practice in the latter area shows a level of conformity as well as inconsistency with international conventions and case-law of the European Court of Human Rights. Whereas, war crimes adjudication is associated with significant controversies regarding non-retroactivity of law, nullum crimen sine lege and the place of customary international law in the Kosovo legal order. The jurisprudence pertaining to state succession, extradition and terrorism uncovers differences between judicial and executive branches in their responses to some complex legal and political questions in the aftermath of Kosovo’s independence. An unprecedented case emanating from a refusal by EULEX international judges to recognise and apply post-independence Kosovo laws, allegedly contradicting certain United Nations obligations, has raised a heated debate between the Constitutional Court and EULEX international judges on fundamental international and domestic constitutional norms. While observing a scarce application of international law by domestic judges of courts of general jurisdiction the analysis suggests tools that could be used in order to overcome the inherited judicial and educational problems and to assist in installing a sustainable and competent local judiciary capable of complying with international legal standards.

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