Short history of BH Constitution
“Recognizing the need for a comprehensive settlement to bring an end to the tragic conflict in the region” (first line of the General Framework Agreement for Peace in Bosnia and Herzegovina), the Republic of Croatia, the Republic of Bosnia and Herzegovina, and the then Federal Republic of Yugoslavia signed the General Framework Agreement for Peace in Bosnia and Herzegovina in Paris on 14 December 1995. The signing of this agreement was preceded by the initialisation of the Agreement at the Wright Patterson Air Force Base in Dayton, Ohio (USA) on 21 November 1995. The Agreement is also known as the Paris Agreement or Dayton Agreement, named after the cities where it was initialised, i.e. signed. The General Framework Agreement for Peace in Bosnia and Herzegovina is accompanied by additional agreements and cover letters of the signatory parties and the states which were the witnesses to the initialisation and signing of the Agreement (the European Union, France, the Russian Federation, Germany, Great Britain and the United States of America.
The Dayton Agreement is de facto a series of agreements. It is consisted of one framework agreement and 12 special agreements, referred to as Annexes to the General Framework Agreement for Peace in Bosnia and Herzegovina. The special agreements, which were signed by different signatories, related to civilian (Annexes 2 through 11) and military components of the Peace Agreement (Annexes 1-A and 1-B).
Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina contains the Constitution of Bosnia and Herzegovina. Annex 4, unlike other annexes, was not made in the form of an agreement. The Constitution of Bosnia and Herzegovina was approved by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska. On their behalf, Muhamed Šaćirbegović, Krešimir Zubak and Nikola Koljević signed the Constitution. In addition to the statements approving the Constitution, the last paragraph of the Preamble states that Bosniaks, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina, based on Annex 4, determine the Constitution of Bosnia and Herzegovina. Pursuant to Article XII(1), the Constitution of Bosnia and Herzegovina is a constitutional act “amending and superseding” the Constitution of the Republic of Bosnia and Herzegovina. The Constitution of Bosnia and Herzegovina entered into force at the moment when the General Framework Agreement for Peace in Bosnia and Herzegovina was signed, i.e. on 14 December 1995.
According to Article I(1) of the Constitution of Bosnia and Herzegovina, Bosnia and Herzegovina “shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders. It shall remain a Member State of the United Nations and may as Bosnia and Herzegovina maintain or apply for membership in organizations within the United Nations system and other international organizations. Pursuant to Article I(3) of the Constitution, the State of Bosnia and Herzegovina got a new internal constitutional and administrative-territorial structure consisting of two Entities, that is the Federation of Bosnia and Herzegovina and the Republika Srpska. Administrative-territorial organisation is defined by Amendment I to the Constitution of Bosnia and Herzegovina, which entered into force on 26 March 2009, whereby the Brčko District was finally incorporated as a condominium into the state constitutional-legal architecture (“Official Gazette of Bosnia and Herzegovina” No. 25/09).
The Constitutional Charter of Bosnia and Herzegovina was officially signed only in English, although in the last sentence of Article XI of the General Framework Agreement for Peace in Bosnia and Herzegovina it is stated that the Agreement shall be signed in the Bosnian, Croatian, English and Serbian languages, each text being equally authentic. There are no official versions made in the official languages of Bosnia and Herzegovina, nor have the relevant authorities translated this Agreement, including the Constitution of Bosnia and Herzegovina. Various unofficial translations are in use. Amendment I to the Constitution of Bosnia and Herzegovina, which was adopted in the official languages of Bosnia and Herzegovina, makes an exception, whereas the English version thereof is an unofficial translation. The Dayton Agreement, including the Constitution of Bosnia and Herzegovina, has never been published in the Official Gazettes of the State and/or the Entities.
Apart from one amendment relating to the Brčko District, there have been numerous political negotiations to amend the Constitution of Bosnia and Herzegovina. A formal attempt to amend the Constitution of Bosnia and Herzegovina was made on 26 April 2006, which is known as “April Package”. The adoption of those amendments failed due to the lack of a parliamentary majority required under Article X(1) of the Constitution of Bosnia and Herzegovina.
Amendments to the Constitution of Bosnia and Herzegovina constitute the binding international legal obligation of Bosnia and Herzegovina within the Council of Europe system. On 22 December 2009, the Grand Chamber of the European Court of Human Rights adopted the final and binding Judgment in the case of Sejdić and Finci versus Bosnia and Herzegovina, whereby it is established that certain aspects of the provisions of the Constitution of Bosnia and Herzegovina, relating to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina and the Presidency of Bosnia and Herzegovina are in contravention of the European Convention of Human Rights and Fundamental Freedoms. The Judgment has not yet been implemented (situation on 22 November 2010).
Nedim Ademović, dr. iur.
