International Law in the Countries of the Former Yugoslavia

Abstract

This draft chapter, written for the forthcoming Oxford Handbook of International Law in Europe, takes up one of the themes of the Handbook – diversity within Europe – to describe and discuss the international legal tradition in (some of) the countries of the former Yugoslavia. There are many possible approaches to studying any legal tradition. Bearing in mind the theme of the diversity within Europe and purposes of this Handbook, the one we have decided to take here is to first give a brief socio-legal overview of the development of the international legal profession in the former Yugoslavia. Then we engage in a comparative study of the textbooks used at prominent universities in the post-Yugoslav states, following Anthea Roberts’ lead, in a kind of sociology of international law of the region of the former Yugoslavia. Our main goal is to expose the underlying values and ideologies promoted by the authors of these textbooks, which may be indicative of the understanding and the effect of international law in this part of the world.Textbooks set both the borders and the substance of what and how to think (or not to think about), influencing not only the articulation of international law issues, but also a process of discursive socialization. We also focus on textbooks because they are still considered the apex form of scholarship in the former Yugoslavia, and also because in this part of the world international law is taught and studied entirely through textbooks.

Our hope is that the historical and sociological analysis of international law and lawyers in the former Yugoslavia will be instructive to readers outside its borders. Yugoslavia was always a relatively peripheral country in the international (legal) system, yet many modern developments of that system, e.g. with regard to statehood, international humanitarian law and international criminal law, grew out of the system’s engagement with Yugoslavia. Yugoslav and post-Yugoslav academics made substantial contributions to international legal scholarship, although not really as part of a cohesive school of thought. Their conceptual or theoretical approaches are not particularly distinctive, and in line with most of Eastern Europe can mainly be described as positivist and doctrinal. But Yugoslavia’s painful break-up meant that international law and institutions became more directly relevant to its peoples (and lawyers) than in most other societies. As with war-torn Ukraine today, questions of international law ranging from statehood and self-determination to individual and state responsibility for genocide and war crimes assumed near-existential importance for professional lawyers, for elites, and for the general publics in Yugoslav states. The Yugoslav experience is, in short, one that others can very much learn from, especially with regard to how international lawyers perceive their role in society.

Keywords: international law, Europe, diversity, traditions, legal theory