CYIL 2014

THE ROLE OF INTERNATIONAL LAW IN THE RULE OF LAW EFFORTS IN POSTǧDAYTON… with Oxford University Press) as a Reporter for the Czech Republic (an online law reporting service “Oxford Reports on International Law”). 1. Introduction Bosnia and Herzegovina (BiH), as one of the countries in the former Yugoslavia, went through the worst conflict in Europe since the Second World War. 2 BiH therefore ended on ‘the long list’ 3 of countries in post-conflict situations that need to rebuild the rule of law. 4 While it is true that the responsibility for re-establishment of the rule of law rests primarily with the local population and should ideally be initiated or led by domestic actors in order to secure a ‘local ownership’ of the process, 5 this option is not always available, and external assistance may be needed. 6 In the circumstances of BiH, the international community played a significant role by, inter alia, introducing various international components (including institutions, personnel, and new legislation incorporating international law) in order to actuate the rule of law. 7 This paper examines how successful were such rule of law efforts that were not rooted in the local context, but rather imposed from outside. The rule of law is a complex system which strives to achieve various goals. 8 The focus of this paper is on two such goals: upholding human rights and providing efficient 2 For a detailed description of the conflict in the former Yugoslavia, see L. Silber and A. Little, Yugoslavia: Death of a Nation (1996). 3 See the list of the current UN peacekeeping operations, available at http://www.un.org/en/peacekeeping/ currentops.shtml (visited 5 May 2014). 4 For purposes of my paper, I will be referring to the rule of law as encompassing (1) ‘the institutional attributes believed necessary to actuate the rule of law (such as comprehensive laws, well-functioning courts, and trained law enforcement agencies)’ as well as (2) ‘the ends that the rule of law is intended to serve within society (such as upholding law and order, or providing predictable and efficient judgments).’ In R.K. Belton, Competing Definitions of the Rule of Law: Implications for Practitioners 3 (Carnegie Papers, Rule of Law Series, 2005), available at http://carnegieendowment.org/files/CP55.Belton. FINAL.pdf (visited 16 April 2014). 5 In this context, one can refer to a successful statebuilding process in South Africa. See L. Brahimi, State Building in Crisis and Post-Conflict Countries (2007). See also E. Schmid, Thickening the Rule of Law in Transition: The Constitutional Entrenchment of Economic and Social Rights in South Africa, in E. Kristjánsdóttir, A. Nollkaemper, C. Ryngaert, (eds.), supra note 1, pp. 59-78. 6 See K. Novotná (Uhlířová), Kosovo: Laboratory of the International Community? Role of International Organizations in the Re-Establishment of the Rule of Law in Kosovo, American Society of International Law 104th Annual Proceedings (2011). See also Cahin, who suggests three decreasing models of international involvement in post-conflict situations: (1) substitution to state authority (eg East Timor, Kosovo); (2) supervision over state authority (eg BiH); and (3) assistance to state authority (eg Afghanistan, Iraq). The Hague Academy of International Law Lectures (August 2009). 7 In BiH, ‘international community’ is represented mainly by the key Western European states, the United States, Canada, Japan, and Turkey. In addition, various international intergovernmental (mainly the Office of the High Representative, the United Nations, the North Atlantic Treaty Organization, and the European Union) as well as nongovernmental organizations played an important role during the peacebuilding in BiH. 8 There is no homogenous content of the ‘rule of law’ notion. It is not unsual to find different definitions even within one international organization. For different views as to the definition and promotion

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