International law aspects of the decision of the Constitutional court of Serbia on constitutionality and legality of the Brussels agreement

Abstract

This article deals with international law aspects of the decision of the Constitutional Court of Serbia (CCS) to dismiss a request for assessment of constitutionality and legality of the First agreement of principles governing the normalization of relations (Brussels Agreement) accepted by representatives of Serbia and Kosovo on 19 April 2013. CCS ruled inter alia that it did not have jurisdiction to consider constitutionality and legality of the Brussels Agreement since it was not a ratified international treaty, but a political agreement. The authors consider that the CCS ruling was correct one, but that its reasoning was flawed from international law perspective. CCS chose to determine the nature of the Brussels Agreement starting from the definition of international treaty in the Vienna Convention on the Law of Treaties, which inter alia provides that international treaty is an international agreement concluded by states. This led to a discussion of whether Kosovo is a state, in which CSS adopted positions that are at variance with applicable rules of international law. The authors then show that CSS had at least two different lines of reasoning that would lead it to the same conclusion, but without the problems inherent in the approach actually chosen by the court. In particular, the conclusion that the Brussels Agreement is a political agreement can be reached through customary rules of interpretation contained in the Vienna Convention on the Law of Treaties.