Judicial application of international law in Montenegro

Abstract

The Constitution of Montenegro stipulates that both ratified international treaties and generally accepted rules of international law are an integral part of the national legal system, and that international law is qualified by supremacy over national laws and by direct effect on all matters regulated differently by national laws. However, from other operative provisions of the Constitution (powers of the Ombudsman, grounds for adjudication and for constitutional review, etc.), it is clear that the Constitution essentially deems ratification by national legislature in the form of a statute as the principal ‘point of entry’ of international law in the national legal system. However, an analysis of the case law of the highest courts of Montenegro shows that a source of law that is not even mentioned in the Constitution is producing considerable effects within the national legal system—the case law of international courts, primarily the case law of the European Court of Human Rights. The degree to which international law permeates the case law of courts in Montenegro differs according to the functional level of the court. The greatest level of permeation is with the highest judicial institutions. There are clear signs, however, that the lower courts are starting to rely on international law as well, primarily on treaty law.