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Published online by Cambridge University Press: 27 October 2017
The constitution of Bosnia and Herzegovina (henceforth ‘BiH’) was born out of conflict. The country, like much of the Balkan region, had been subject to waves of invasion, nationalist tension and foreign domination for many centuries. The Ottoman Empire, with a complex system of public and private law influenced by Islamic law, had been followed by the Austro-Hungarian Empire, overlaying the legal system with the tradition of the Code Civil. Before the Ottoman period the Slav population had divided between adherents to the Church of Rome and followers of the Eastern Orthodox Church. Under the Ottomans a group of Slavs had converted to Islam, further fracturing the religious coherence of the region. During the nineteenth and early twentieth centuries the pan-Slavist movement had sought to establish a Serb national homeland for its people. When Princip assassinated the Archduke Ferdinand of Austria in Sarajevo in 1914, the aim was to establish a Serb state free of imperial domination.
1 For a general survey see Glenny, M, The Balkans, 1803-1999: Nationalism, War and the Great Powers (London, Granta Books, 1999)Google Scholar.
2 A balanced general account is to be found in Bose, S, Bosnia after Dayton: Nationalist Partition and International Intervention (London, Hurst & Co, 2002)Google Scholar ch 1.
3 See generally Botev, N, ‘Seeing Past the Barricades: Ethnic Inter-marriage in Former Yugoslavia, 1962-1989’ in Halpern, J and Kideckal, D (eds), Neighbours at War: Anthropological Perspectives on Yugoslav Ethnicity, Culture and History (University Park, Pennsylvania, Pennsylvania State University Press, 2000) 219–33Google Scholar.
4 Bose, above n 2, 28. For example, on 28 Jan 2004 the High Representative by a Decision abolished six city municipalities in Mostar and made them in effect branches of the Mostar City administration in order to reduce the scope for parallel Croat institutions in the area and make the elected institutions more effective.
5 Third Partial Decision in Case No U-5/98, decision of 30 June and 1 July 2000, at para 104.
6 Constitution, Art I.1 and 2.
7 Constitution, Art I.3.
8 Foreign policy, foreign trade policy, customs policy, monetary policy through a Central Bank, financing institutions and international obligations of BiH, policy and regulation in relation to immigration, asylum and refugees, international and inter-Entity criminal law enforcement, establishing and operation of common and international communications facilities, regulating inter-Entity transportation, and air traffic control: Constitution, Arts III.1 and VII.
9 Constitution, Art III.5(a), and Annexes 5–8 to the GFAP.
10 Ibid, Art III.3(a).
11 Ibid, Art III.2(b) and (c) and 3(b). Under Art XII.2, the Entities were given three months from 14 Dec 1995 to bring their Constitutions into conformity with the BiH Constitution. In the event, this proved a difficult matter, and led to a series of very important decisions by the Constitutional Court: see below.
12 Constitution, Art III.5(b).
13 Ibid, Art III.4.
14 Ibid, Art III.2(a).
15 Ibid, Art III.2(d).
16 Ibid, Art V.5(a), (b).
17 Ibid, Art V.5(a).
18 Ibid, Art II.7, 8. For a list of the instruments, see n 38 below.
19 Constitution, Art II.2.
20 Art II.4 of and Annex 1 to the Constitution.
21 Constitution, Art III.3(b).
22 Ibid, Art I.7.
23 Ibid, Art 1.4.
24 Ibid, Art II.5, giving constitutional recognition to more detailed provisions in Annex 7 to the GFAP.
25 Constitution, Art IV 1, 2.
26 Ibid, Art V and V.1.
27 Its responsibilities are to conduct foreign policy, to appoint ambassadors and other international representatives, to represent BiH in international and European organisations and institutions, to deal with treaty-making (ratifying treaties only with the consent of the Parliamentary Assembly of BiH), to execute decisions of the Parliamentary Assembly, to propose (on the recommendation of the Council of Ministers) an annual budget to the Parliamentary Assembly, to report as requested, and at least annually, to the Parliamentary Assembly on presidential expenditures, to co-ordinate as necessary with international and non governmental organisations in BiH, and to perform such other functions as may be necessary to carry out its duties or be assigned to it by the Parliamentary Assembly or agreed by the Entities: Constitution, Art V.3.
28 Constitution, Art V.4.
29 Ibid, Art VI.1(a), (b).
30 Ibid, Art VI.1(c); cp. (d).
31 Ibid, Art VI.3 and 3(a). The delineation of the Court’s jurisdiction in Art VI.3(a) is not exhaustive: see Case No U-4/05, decision of 22 Apr 2005, Constitutional Court, at paras 14–16.
32 Ibid, Art VI.3(b), (c).
33 Ibid, Art VII.
34 Ibid, Art VII.1.
35 Ibid, Art VII.2.
36 PIC Bonn Conclusions, Bosnia and Herzegovina 1998: Self-sustaining Structures, 10 Dec 1997, § XI.2 (available at http://www.ohr.int/pic/default.asp?content_id=5128).
37 Constitution, Art II.2.
38 Ibid, Art II.4. The international agreements were listed in Annex I to the Constitution: the Convention on the Prevention and Punishment of Genocide (1948); the four Geneva Conventions on the Protection of the Victims of War of 1949, and the Geneva Protocols I and II of 1977; the Convention relating to the Status of Refugees (1951) and the 1966 Protocol to it; the Convention on the Nationality of Married Women (1957); the Convention on the Reduction of Statelessness (1961); the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the International Covenant on Civil and Political Rights (1966) and the 1966 and 1989 Optional Protocols thereto; the Covenant on Economic, Social and Cultural Rights (1966); the Convention on the Elimination of All Forms of Discrimination against Women (1979); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987); the Convention on the Rights of the Child (1989); the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990); the European Charter for Regional or Minority Languages (1992); and the Framework Convention for the Protection of National Minorities (1994).
39 GFAP, Annex 6, Chapter Two, Part B.
40 Ibid, Part C.
41 Ibid, Art XIV.
42 Ibid, Art II.6.
43 Art VI.1(c) of the Constitution.
44 Case No U-44/01, decision of 27 Feb 2004 (available at www.ustavnisud.ba/?lang=en&page=decisions/byyear/2004). See Feldman, D, ‘Renaming Cities in Bosnia and Herzegovina’ (2005) 3(4) International Journal of Constitutional Law 649–662 CrossRefGoogle Scholar. For an insider’s assessment of the impact of ethnicity on the work of judges of the court in its first five years see J Marko, Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A first Balance, European Diversity and Autonomy Papers 7/2004, available at www.eurac.edu/documents/edap/2004_edap07.pdf
45 Case No AP-633/04, decision of 27 May 2005 (available at www.ustavnisud.ba/?lang=en&page=decisions/byyear/2005).
46 Cases Nos CH/02/8679 et al, Boudellaa et al, decision on admissibility and merits of 10 Oct 2002, (2002) 23 HRLJ 406.
47 Cases Nos U-15, 16 and 25/02, decision of 28 Nov 2003.
48 See the opening sentence of Art V of the Constitution, and Venice Commission (European Commission for Democracy through Law), Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, 11–12 Mar 2005, §V.1–3, paras 66-80 (available at http://venice.coe.int/docs/2005/CDL-AD(2005)004-e.asp?PrintVersion+ True&L=E).
49 See e.g. the Third Partial Decision in Case No U-5/98, decision of 30 June and 1 July 2000 (available at www.ustavnisud.ba/?lang=en&page=decisions/byyear/2000).
50 Italics added.
51 The provisions would have to be passed by a majority of each of the Bosniac, the Serb and the Croat delegates to the House of Peoples: Art IV.3(e) of the Constitution.
52 Case No. U-2/04, decision of 28 May 2004, available at www.ustavnised.be/?lang=endpage=decisions.=byyear/2004, establishing the substantive nature of procedural regularity in these cases (in relation to a draft law that would have reversed the presumption that disposals of property during the war were effected under duress and so were invalid). See also Case No. U-8/04, decision of 25 June 2004, available on the Venice Commission’s website at http://codices.coe.int/NXT/gatewayad11?f=templates&fri=default.htm as codices document B1H-2004-2-005 (in relation to a draft law regulating and enabling the establishment of universities with a single official language), and Case No. U-10/05, decision of 22 July 2005 (draft Law on the Public Broadcasting System of BiH).
53 Annex 7 to the GFAP, Agreement on Refugees and Displaced Persons, Arts I.1–3 and II.1.
54 See e.g. Case No. CH/02/8202, MP and Others, decision of 4 Apr 2003. Other examples include Case No CH/92/3, Medan and Others, and Case No CH/97/60, Miholic and Others.
55 Case No U-83/03, decision of 21 Sept 2004, available at www.ustavnisud.ba/?lang=en&page=decisions/byyear/2004.
56 Case No U-44/01, above n 44.
57 Art VI.3 of the Constitution.
58 Second Partial Decision in Case No U-5/98, decision of 18 and 19 Feb 2000, available at www.ustavnisud.ba/?lang=en&page=decisions/byyear/2000. Judge Danelius delivered a strongly persuasive dissenting opinion.
59 Case No AP-35/03, decision of 28 Jan 2005, available at www.ustavnisud.ba/?lang=en&page=decisions/byyear/2005. Judge Grewe delivered a powerful dissenting opinion, pointing out the importance of giving effect to election results as well as collective equality of peoples if the right to free elections is to be made real and effective.
60 Case No U-4/05, decision of 22 Apr 2005, at para 30.
61 Art II.3(e) and 6 of the Constitution; Arts 6.1 and 13 of the ECHR.
62 Case No U-19/00, decision of 4 May 2001, and Case No U-58/03, decision of 26 Mar 2004, Constitutional Court in Plenary; Case No U-106/03, decision of 27 Oct 2004, Grand Chamber (all accessible at www.ustavnisud.ba/?lang=en&page=decisions/byyear/).
63 Case No U-44/01, decision of 21 Sept 2004, available at www.ustavnisud.ba/?lang=en&page=decisions/byyear/2004.
64 See e.g. Cases Nos CH/01/8365 et al, Selimovic & 48 others v the Republika Srpska (Srebrenica cases), decision of 7 Mar 2003, Human Rights Chamber; Case No U-129/04, deci sion of 27 May 2005, Constitutional Court.
65 Venice Commission, above n 48, paras. 87–99.
66 Case No U-9/00, decision of 3 Dec 2000.
67 Case No AP-774/04, unreported decision of the Grand Chamber, 29 Sept 2004.
68 See Case No. U-28/00, decision of 28 Nov 2003, available at www.ustavnisud.ba/?lang=en&page=decisions/byyear/2003; Case No. AP-696/04, decision of 23 Sept. 2005, as yet unreported.