Constitution of Bosnia and Herzegovina
Encyclopedia
The Constitution of Bosnia and Herzegovina is the highest legal document of Bosnia and Herzegovina
. The current Constitution is the Annex 4 of The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement
, signed in Paris on 14 December 1995. The Constitution saw the end of war in Bosnia and Herzegovina, however it has seen a large amount of criticism. Under the supervision of international community, an "arrangement of amendments" (later called "April arrangement of amendments") to the Constitution, agreed upon by leading political parties, was proposed for adoption in the Parliamentary Assembly of Bosnia and Herzegovina
in April 2006, but it failed to get the approval of two-thirds of members in the House of Representatives.
, Franjo Tuđman and Slobodan Milošević
, three presidents of countries involved in war in Bosnia and Herzegovina, as well as the representatives of European Union
(Felipe González
), United States of America
(Bill Clinton
), Germany
(Helmut Kohl
), Great Britain
(John Major
), France
(Jacques Chirac
) and Russian Federation
(Viktor Chernomyrdin
). This nature of the Constitution was also of vital importance for the Constitutional Court of Bosnia and Herzegovina
, in its landmark decision on constituency of peoples (U-5/98), since it declared that the Constitution could be interpreted as a treaty defined in Vienna Convention on the Law of Treaties
from 1969, which was of great importance in the interpretation of normative binding of the Preamble of the Constitution.
, Croats
and Serbs
), along with "Others" and "citizens of Bosnia and Herzegovina", which has also seen a great amount of debate between legal scholars over an apparent contradiction. As stated before, due to the nature of the Constitution, the Preamble has the normative binding.
The Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (European Convention on Human Rights
), although not noted here, is a part of the Constitution (Article II, 2).
over all other law in Bosnia and Herzegovina. Also, the Constitution states that Bosnia and Herzegovina "shall remain or become party to the international agreements listed in Annex I to this Constitution" (Article II, 7.), and in all there are fifteen of these international agreements. The Constitution also states that no amendment to the Constitution can eliminate or diminish any of the rights and freedoms referred to in Article II of the Constitution (Article X, 2.).
The Constitutional Court of Bosnia and Herzegovina
has made several notable decisions in the interpretation of these provisions, with most important being the "Decision on the Constituency of Peoples" (U-5/98). Still there are great criticisms of the Constitution, stating that it is of discriminatory nature, since in many of its articles it discriminates against citizens that are not from "constituent peoples", such as the Article V which sets out the rules for the election of the Presidency of Bosnia and Herzegovina. There has been an attempt to challenge the Electoral law, which has the basis in the Constitution, which is seen as being discriminatory to "Others", as well as to "constituent peoples" to some degree, by trying to interpret the Article II(2) in a way that the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols have the supremacy over the Constitution of Bosnia and Herzegovina itself. However, the Constitutional Court of Bosnia and Herzegovina declined this position in its decision number U-5/04. This has led Jakob Finci, the leader of Jewish community in Bosnia and Herzegovina, to file a suit
against Bosnia and Herzegovina in front of European Court of Human Rights
, which acknowledged his ineligibility for Presidency and House of Peoples to be in violation of the European Convention on Human Rights
.
Bosnia and Herzegovina
Bosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...
. The current Constitution is the Annex 4 of The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement
Dayton Agreement
The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement, Dayton Accords, Paris Protocol or Dayton-Paris Agreement, is the peace agreement reached at Wright-Patterson Air Force Base near Dayton, Ohio in November 1995, and formally signed in Paris on...
, signed in Paris on 14 December 1995. The Constitution saw the end of war in Bosnia and Herzegovina, however it has seen a large amount of criticism. Under the supervision of international community, an "arrangement of amendments" (later called "April arrangement of amendments") to the Constitution, agreed upon by leading political parties, was proposed for adoption in the Parliamentary Assembly of Bosnia and Herzegovina
Parliamentary Assembly of Bosnia and Herzegovina
The Parliamentary Assembly of Bosnia and Herzegovina is the bicameral legislative body of Bosnia and Herzegovina...
in April 2006, but it failed to get the approval of two-thirds of members in the House of Representatives.
Nature of the Constitution
The Constitution of Bosnia and Herzegovina is the constitution in international contractual form, since it is an integral part of a larger peace agreement signed by Alija IzetbegovićAlija Izetbegovic
Alija Izetbegović was a Bosniak activist, lawyer, author, philosopher and politician, who, in 1990, became the first president of Bosnia and Herzegovina. He served in this role until 1996, when he became a member of the Presidency of Bosnia and Herzegovina, serving until 2000...
, Franjo Tuđman and Slobodan Milošević
Slobodan Milošević
Slobodan Milošević was President of Serbia and Yugoslavia. He served as the President of Socialist Republic of Serbia and Republic of Serbia from 1989 until 1997 in three terms and as President of the Federal Republic of Yugoslavia from 1997 to 2000...
, three presidents of countries involved in war in Bosnia and Herzegovina, as well as the representatives of European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
(Felipe González
Felipe González
Felipe González Márquez is a Spanish socialist politician. He was the General Secretary of the Spanish Socialist Workers' Party from 1974 to 1997. To date, he remains the longest-serving Prime Minister of Spain, after having served four successive mandates from 1982 to 1996.-Early life:Felipe was...
), United States of America
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
(Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
), Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
(Helmut Kohl
Helmut Kohl
Helmut Josef Michael Kohl is a German conservative politician and statesman. He was Chancellor of Germany from 1982 to 1998 and the chairman of the Christian Democratic Union from 1973 to 1998...
), Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
(John Major
John Major
Sir John Major, is a British Conservative politician, who served as Prime Minister of the United Kingdom and Leader of the Conservative Party from 1990–1997...
), France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
(Jacques Chirac
Jacques Chirac
Jacques René Chirac is a French politician who served as President of France from 1995 to 2007. He previously served as Prime Minister of France from 1974 to 1976 and from 1986 to 1988 , and as Mayor of Paris from 1977 to 1995.After completing his studies of the DEA's degree at the...
) and Russian Federation
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
(Viktor Chernomyrdin
Viktor Chernomyrdin
Viktor Stepanovich Chernomyrdin was the founder and the first chairman of the Gazprom energy company, the longest serving Prime Minister of Russia and Acting President of Russia for a day in 1996. He was a key figure in Russian politics in the 1990s, and a great contributor to the Russian...
). This nature of the Constitution was also of vital importance for the Constitutional Court of Bosnia and Herzegovina
Constitutional Court of Bosnia and Herzegovina
The Constitutional Court of Bosnia and Herzegovina is a special court sui generis, whose main role is to be the interpreter and guardian of the Constitution of Bosnia and Herzegovina, as stated in Article VI, paragraph 3 of the Constitution , and it is considered to be the highest judicial...
, in its landmark decision on constituency of peoples (U-5/98), since it declared that the Constitution could be interpreted as a treaty defined in Vienna Convention on the Law of Treaties
Vienna Convention on the Law of Treaties
The Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...
from 1969, which was of great importance in the interpretation of normative binding of the Preamble of the Constitution.
The Preamble
The Preamble states, among other things, the commitment of Bosnia and Herzegovina to freedom, equality, tolerance and democratic institutions of government. It also states that the carriers of sovereignty are "constituent peoples" (BosniaksBosniaks
The Bosniaks or Bosniacs are a South Slavic ethnic group, living mainly in Bosnia and Herzegovina, with a smaller minority also present in other lands of the Balkan Peninsula especially in Serbia, Montenegro and Croatia...
, Croats
Croats
Croats are a South Slavic ethnic group mostly living in Croatia, Bosnia and Herzegovina and nearby countries. There are around 4 million Croats living inside Croatia and up to 4.5 million throughout the rest of the world. Responding to political, social and economic pressure, many Croats have...
and Serbs
Serbs
The Serbs are a South Slavic ethnic group of the Balkans and southern Central Europe. Serbs are located mainly in Serbia, Montenegro and Bosnia and Herzegovina, and form a sizable minority in Croatia, the Republic of Macedonia and Slovenia. Likewise, Serbs are an officially recognized minority in...
), along with "Others" and "citizens of Bosnia and Herzegovina", which has also seen a great amount of debate between legal scholars over an apparent contradiction. As stated before, due to the nature of the Constitution, the Preamble has the normative binding.
Articles
- Article I - on Bosnia and HerzegovinaBosnia and HerzegovinaBosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...
: Continuation, Democratic Principles, CompositionPolitics of Bosnia and HerzegovinaPolitics of Bosnia and Herzegovina takes place in a framework of a parliamentary representative democratic republic, whereby the Council of Ministers of Bosnia and Herzegovina is the head of government, and of a multi-party system. Executive power is exercised by the government. Legislative power...
, Movement of Goods, CapitalSarajevoSarajevo |Bosnia]], surrounded by the Dinaric Alps and situated along the Miljacka River in the heart of Southeastern Europe and the Balkans....
, SymbolsCoat of arms of Bosnia and HerzegovinaThe coat of arms of Bosnia and Herzegovina was adopted in 1998, replacing the previous design that had been in use since 1992 when Bosnia and Herzegovina gained independence, and follows the design of the national flag. The three pointed shield is specific and is to symbolize the three major ethnic...
and Citizenship - Article II - on Human Rights and Fundamental Freedoms: Human Rights, International Standards, Enumeration of Rights, Non-Discrimination, Refugees and Displaced Persons, Implementation, International Agreements and Cooperation
- Article III - on Responsibilities of and Relations Between the Institutions of Bosnia and Herzegovina and the Entities: Responsibilities of the Institutions of Bosnia and Herzegovina, Responsibilities of the Entities, Law and Responsibilities of the Entities and the Institutions, Coordination and Additional Responsibilities
- Article IV - on Parliamentary AssemblyParliamentary Assembly of Bosnia and HerzegovinaThe Parliamentary Assembly of Bosnia and Herzegovina is the bicameral legislative body of Bosnia and Herzegovina...
: House of PeoplesHouse of Peoples of Bosnia and HerzegovinaThe House of Peoples of Bosnia And Herzegovina is one of the two chambers of the Parliamentary Assembly of Bosnia and Herzegovina, with the other chamber being the House of Representatives of Bosnia and Herzegovina....
, House of RepresentativesHouse of Representatives of Bosnia and HerzegovinaThe House of Representatives of Bosnia and Herzegovina , is one of the two chambers of the Parliamentary Assembly of Bosnia and Herzegovina, with the other being the House of Peoples of Bosnia and HerzegovinaThe house of representatives of BiH consists of 42 members which are elected by...
, Procedures and Powers - Article V - on PresidencyPresidency of Bosnia and HerzegovinaThe Presidency of Bosnia and Herzegovina is the head of state of Bosnia and Herzegovina.-Overview:...
: Election and Term, Procedures, Powers, Council of MinistersCouncil of Ministers of Bosnia and HerzegovinaThe Council of Ministers of Bosnia and Herzegovina is the executive branch of the government of Bosnia and Herzegovina.According to the Article V, Section 4 of the Constitution, the Chair of the Council of Ministers is nominated by the Presidency of Bosnia and Herzegovina and confirmed by the...
and Standing Committee - Article VI - on Constitutional CourtConstitutional Court of Bosnia and HerzegovinaThe Constitutional Court of Bosnia and Herzegovina is a special court sui generis, whose main role is to be the interpreter and guardian of the Constitution of Bosnia and Herzegovina, as stated in Article VI, paragraph 3 of the Constitution , and it is considered to be the highest judicial...
: Composition, Procedures, Jurisdiction and Decisions - Article VII - on Central BankCentral Bank of Bosnia and HerzegovinaThe Central Bank of Bosnia and Herzegovina is the central bank of Bosnia and Herzegovina, located in the capital city, Sarajevo.The Central Bank of Bosnia and Herzegovina was established in accordance with the law adopted at the Parliamentary Assembly of Bosnia and Herzegovina on June 20, 1997...
- Article VIII - on Finances
- Article IX - on General Provisions
- Article X - on Amendment Procedure
- Article XI - on Transitional Arrangements
- Article XII - on Entry into Force
Annexes
- Annex I - on Additional Human Rights Agreements To Be Applied In Bosnia And Herzegovina
- 1. 1948 Convention on the Prevention and Punishment of the Crime of GenocideConvention on the Prevention and Punishment of the Crime of GenocideThe Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260. The Convention entered into force on 12 January 1951. It defines genocide in legal terms, and is the culmination of...
- 2. 1949 Geneva ConventionsGeneva ConventionsThe Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
I-IV on the Protection of the Victims of War, and the 1977 Geneva Protocols I-II thereto - 3. 1951 Convention relating to the Status of RefugeesConvention Relating to the Status of RefugeesThe United Nations Convention Relating to the Status of Refugees is an international convention that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not...
and the 1966 Protocol thereto - 4. 1957 Convention on the Nationality of Married WomenConvention on the Nationality of Married Women-Purpose:The Convention was concluded in the light of the conflicts of law on nationality derived from provisions concerning the loss or acquisition of nationality by women as a result of marriage, divorce, or of the change of nationality by the husband during marriage.The Convention seeks to...
- 5. 1961 Convention on the Reduction of Statelessness1961 Convention on the Reduction of StatelessnessThe Convention was originally intended as a Protocol to the Convention Relating to the Status of Refugees, while the 1954 Convention Relating to the Status of Stateless Persons was adopted to cover stateless persons who are not refugees and therefore not within the scope of the Convention Relating...
- 6. 1965 International Convention on the Elimination of All Forms of Racial Discrimination
- 7. 1966 International Covenant on Civil and Political RightsInternational Covenant on Civil and Political RightsThe International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
and the 1966 and 1989 Optional Protocols thereto - 8. 1966 Covenant on Economic, Social and Cultural RightsInternational Covenant on Economic, Social and Cultural RightsThe International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
- 9. 1979 Convention on the Elimination of All Forms of Discrimination against WomenConvention on the Elimination of All Forms of Discrimination Against WomenThe Convention on the Elimination of all Forms of Discrimination against Women is an international convention adopted in 1979 by the United Nations General Assembly....
- 10. 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentUnited Nations Convention Against TortureThe United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights instrument, under the review of the United Nations, that aims to prevent torture around the world....
- 11. 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
- 12. 1989 Convention on the Rights of the ChildConvention on the Rights of the ChildThe United Nations Convention on the Rights of the Child is a human rights treaty setting out the civil, political, economic, social, health and cultural rights of children...
- 13. 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
- 14. 1992 European Charter for Regional or Minority LanguagesEuropean Charter for Regional or Minority LanguagesThe European Charter for Regional or Minority Languages is a European treaty adopted in 1992 under the auspices of the Council of Europe to protect and promote historical regional and minority languages in Europe...
- 15. 1994 Framework Convention for the Protection of National MinoritiesFramework Convention for the Protection of National MinoritiesThe Framework Convention for the Protection of National Minorities was signed on February 1995 by 22 member States of the Council of Europe ....
The Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
), although not noted here, is a part of the Constitution (Article II, 2).
- Annex II - on Transitional Arrangements: Joint Interim Commission, Continuation of Laws, Judicial and Administrative Proceedings, Offices and Treaties
Protection of Human Rights and Fundamental Freedoms
Besides the provisions stated in the Preamble, the Constitution (Article II) protects the human rights and fundamental freedoms by defining them through "Enumeration of Rights" (Article II, 3.), stating that the enjoyment of the rights and freedoms is secured to all persons in Bosnia and Herzegovina without discrimination on any grounds ("Non-Discrimination", Article II, 4.) and by giving the supremacy of The Convention for the Protection of Human Rights and Fundamental FreedomsEuropean Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
over all other law in Bosnia and Herzegovina. Also, the Constitution states that Bosnia and Herzegovina "shall remain or become party to the international agreements listed in Annex I to this Constitution" (Article II, 7.), and in all there are fifteen of these international agreements. The Constitution also states that no amendment to the Constitution can eliminate or diminish any of the rights and freedoms referred to in Article II of the Constitution (Article X, 2.).
The Constitutional Court of Bosnia and Herzegovina
Constitutional Court of Bosnia and Herzegovina
The Constitutional Court of Bosnia and Herzegovina is a special court sui generis, whose main role is to be the interpreter and guardian of the Constitution of Bosnia and Herzegovina, as stated in Article VI, paragraph 3 of the Constitution , and it is considered to be the highest judicial...
has made several notable decisions in the interpretation of these provisions, with most important being the "Decision on the Constituency of Peoples" (U-5/98). Still there are great criticisms of the Constitution, stating that it is of discriminatory nature, since in many of its articles it discriminates against citizens that are not from "constituent peoples", such as the Article V which sets out the rules for the election of the Presidency of Bosnia and Herzegovina. There has been an attempt to challenge the Electoral law, which has the basis in the Constitution, which is seen as being discriminatory to "Others", as well as to "constituent peoples" to some degree, by trying to interpret the Article II(2) in a way that the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols have the supremacy over the Constitution of Bosnia and Herzegovina itself. However, the Constitutional Court of Bosnia and Herzegovina declined this position in its decision number U-5/04. This has led Jakob Finci, the leader of Jewish community in Bosnia and Herzegovina, to file a suit
Sejdić and Finci v. Bosnia and Herzegovina
Sejdić and Finci v. Bosnia and Herzegovina was a case decided by the Grand Chamber of the European Court of Human Rights in 2009, in the first judgment finding a violation of Protocol No. 12...
against Bosnia and Herzegovina in front of European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
, which acknowledged his ineligibility for Presidency and House of Peoples to be in violation of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
.