The Primacy of International Treaties in the Republic of Kosovo: A Critical Review of the Kosovo Constitutional Court Case No. 95/13 Through the Lenses of the Law of Treaties

In 2013, the Constitutional Court of Kosovo (the Court) issued an important verdict in its constitutional review of the first agreement between Kosovo and Serbia. In its obiter dictum, the Court made conclusions regarding the relationship between international treaties and domestic law, and the hierarchy between these two norms as well as signature, ratification, and entry into force of treaties. Ten years post-judgment, this research returns to the Court’s arguments presented by the Court and argues that the Court made significant mistakes in its arguments and therefore made erroneous interpretations in its rather short arguments of the judgment. Using well known techniques of interpretation such as textual, grammatical, and systematic interpretation to determine the relationship and hierarchy between international treaties and domestic law, as well as enlightening the meaning of signature, ratification, and entry into force of a treaty, this paper will come to challenge all mentioned conclusions advanced by the Court. Canons of interpretation that will be used here are effet utile, lex posterior, ejusdem generis, argumentum ad absurdum, and argumentum per analogiam. Contrary to the Court, this paper argues that international treaties are supreme law in Kosovo, standing at the same hierarchical level as the Constitution, and therefore are not inferior to the latter as the Court concluded. Further, when in conflict, international treaties have priority over the Constitution. As explored further below, Kosovo’s legal system represents a clear case of a monist approach, not a dualist one as suggested by the Court; international treaties in force are directly applicable in Kosovo unless they are not selfexecuted and require further legislation to facilitate it. This paper also disagrees with the Court’s definition and interpretation of the terms signature, ratification, and entry into force. KEY WORDS: primacy of international treaties; application of international treaties; constitution of Kosovo; constitutional court of Kosovo; signature; ratification; entry into force.