The Nikolic Case. Enquiring into the Legitimacy of Supra-National Organizations

Abstract: The purpose of this thesis is to arrive at a definition of lawfulness with respect to the international legal system of today. The idea is to show, how Kelsen's monist theory of international law and Communitarian theory can be used, together, to legitimize the international legal structure, by means of employing, qua concept of approach, the security argument (''peace'' being understood in the broadest sense of the word). The starting point, in Chapter Two, is a case from the ICTY, the Nikolic case. This case is interesting from a juridical-theoretical point of view since questions such as the limits of jurisdiction of the international tribunal and the limits of NATO's mandate are raised. Furthermore, the tribunal in the Nikolic case had to decide on questions such as state sovereignty and the status of other principles of international law. Finally, the tribunal had to deliver their view on the interplay between different bodies of national and international law. In Chapter Three, the development of supranational organizations, often referred to as the international community, is sketched. More specifically, the role and position of NATO is examined. This since NATO played an important role in the capture and transportation of Mr Nikolic to the ICTY. Are the different organizations to be seen as communities based on shared common values? Examining the development of organizations such as the UN, NATO and the EU leads to the conclusion that a hierarchical structure of international law can be visualized. Could this structure then be analyzed along the communitarian theory? Chapter Four focuses on the main features of Kelsen's positivist theory. As suggested in Chapter Three, it is found to be a useful tool to analyze the international structure. In Chapter Five, the main features of philosophical and political communitarian theory are sketched with focus on communitarian attitude towards international law. Does this theory have the necessary features to achieve the purpose of international law? It is argued that communitarian theory not sufficiently provides for the obligatory, normative character of law. There is however a solution to this problem. The solution anticipated in the previous chapter is examined more closely in the final chapter, Chapter Six. It is also suggested how this solution could be applied to the international structure and to the Nikolic case. It does help us understand the reasoning of the Tribunal in this particular case, and the interplay of supra-national organizations.