Stahn: Taking Complementarity Seriously: On the Sense and Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity

Carsten Stahn (Leiden Univ. - Law) has posted Taking Complementarity Seriously: On the Sense and Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity. Here's the abstract:

Complementarity has many faces. Today, it is traditionally theorised on the basis of a distinction between ‘classical’ and ‘positive complementarity’. This chapter revisits this categorisation. It argues that both conceptions are inherent in the framework of the Statute, but underdeveloped in their articulation and meaning due to the framing of Article 17. Both concepts are often misunderstood or used, in order to justify specific policy choices. This chapter argues that forum allocation is governed by three cardinal principles which underpin the functioning of the Rome system of justice: (i) effectivenes, (ii) impartiality and (iii) fairness. It defines means and methods of ‘classical’ complementarity, including its use as a carrot and stick. It challenges the assumption that ‘positive’ complementarity is merely a policy principle or a tool to strengthen domestic jurisdiction. It argues that the Court is empowered to use techniques to overcome ‘inability’ and unwillingness’ as part of its mandate. It claims that the move from a passive to a managerial understanding of complementarity requires greater attention to the foundational goals of the Court, i.e. judicial independence, effective justice, fairness and sustainability.