From 1992 to 1995, Bosnia and Herzegovina witnessed over three years of war following the break-up of Yugoslavia. The conflict ended in December 1995 with the signing of the General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Peace Agreement”).
The Dayton Peace Agreement includes the Constitution of Bosnia and Herzegovina, which is outlined below, cf. Annex 4 of the agreement.
Further, the Dayton Peace Agreement includes annexes on inter alia military aspects of the peace settlement, inter-entity boundaries, elections, human rights, refugees and displaced persons, civilian implementation through the so called “High Representative” and an international police task force.
The special background mentioned above provides for a unique legal system which can only be generally described here. Focus will be on the central institutions of Bosnia and Herzegovina, and only to a very limited extent on institutions of the Federation of Bosnia and Herzegovina and the Republika Srpska.
Generally, Bosnia and Herzegovina is a democratic state which shall operate under the rule of law and with free and democratic elections.
The institutions of Bosnia and Herzegovina are responsible for inter alia foreign policy, foreign trade policy, customs policy, finances of the institutions and for the international obligations of Bosnia and Herzegovina, international and inter-entity criminal law enforcement as well as and immigration, refugee and asylum policy and regulation.
The powers of the institutions of Bosnia and Herzegovina lie with the legislative (Parliamentary Assembly), the executive (the Presidency and the Council of Ministers) and the judicial (Constitutional Court).
Bosnia and Herzegovina consists of two Entities: 1) the Federation of Bosnia and Herzegovina (primarily Bosniacs and Croats) and 2) the Republika Srpska (primarily Serbs), each having their own separate constitutions, institutions and courts. The constitution of Bosnia and Herzegovina takes precedence over the constitutions of the Entities. All citizens of either Entity are thereby citizens of Bosnia and Herzegovina. Further, a special statute regulates the Brcko district, cf. below.
The Entities have all governmental functions and powers not expressly assigned in the Constitution to the institutions of Bosnia and Herzegovina. Further, the Entities shall provide assistance to the government of Bosnia and Herzegovina in matters concerning international obligations and provide a safe and secure environment for all persons in their respective jurisdictions.
The Office of the High Representative (OHR) – who is also EU Special Representative (EUSR) in Bosnia and Herzegovina – is an ad hoc international institution responsible for overseeing implementation of civilian aspects of the Dayton Peace Agreement, cf. Annex 10 of the Agreement.
The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms are applied directly and have priority over all other law, cf. Article II, 2 of the Constitution.
The Parliamentary Assembly of Bosnia and Herzegovina consists of two chambers, namely the House of Peoples and the House of Representatives.
The House of Peoples consists of 15 delegates, two-thirds from the Federation (five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs). The Croat and Bosniac delegates are selected respectively by the Croat and Bosniac delegates of the House of Peoples of the Federation, and the Serb delegates are selected by the National Assembly of the Republika Sprska.
The House of Representatives consist of 42 members. Two-thirds from the territory of the Federation, and one-third from the territory of the Republika Srpska. Members are directly elected from their Entity.
The chairmanship of each chamber rotates among one Serb, one Bosniac and one Croat.
The Parliamentary Assembly inter alia enacts legislation as necessary to implement decisions of the Presidency, decides upon revenues for the operations of the institutions of Bosnia and Herzegovina, approves the budget for the institutions of Bosnia and Herzegovina and gives consent to ratification of treaties.
All legislation requires the approval of both chambers. All decisions in both chambers shall be by majority of those present and voting. Best efforts shall be made to include at least one-third of the votes of delegates or members from each territory or entity, cf. the Constitution Article IV, 3 (d). Reference is made to Article 74 of the Rules of Procedure of the House of Peoples and Article 80 of the Rules of Procedure of the House of Representatives.
Special procedures apply to proposed decisions that are declared destructive of vital interests of the Bosniac, Croat or Serb people by the appropriate delegates of the House of Peoples.
The House of the Peoples may be dissolved by the Presidency or by the House of Peoples itself, the latter only if the decision is supported by the majority of Delegates of at least two of the Bosniac, Croat or Serb peoples.
The Presidency of Bosnia and Herzegovina consists of three members: One Bosniac and one Croat, both directly elected from the territory of the Federation, and one Serb, directly elected from the territory of the Republika Srpska. The members are elected for four years. They are eligible to succeed themselves once and are thereafter ineligible for four years.
The method of selecting the chairmanship is determined by the Parliamentary Assembly. Currently, the chairmanship changes every 8 months between the three members of the Presidency.
The Presidency inter alia conducts the foreign policy of Bosnia and Herzegovina, appoints ambassadors and other international representatives, represents Bosnia and Herzegovina in international and European organizations, negotiates, denounces and – with the consent of the Parliamentary Assembly – ratifies treaties, executes decisions of the Parliamentary Assembly and proposes – upon the recommendation of the Council of Ministers – an annual budget to the Parliamentary Assembly.
The Presidency shall make all efforts to adopt all Presidency decisions by consensus. If, however, consensus is not reached, a dissenting member of the Presidency may declare the decision to be destructive to a vital interest of the Entity from the territory from which he was elected. If such a declaration is subsequently confirmed by a two-thirds majority of the members of the National Assembly of the Republika Srpska or the relevant delegates of the House of Peoples of the Federation, respectively, the Presidential decision shall not take effect.
The chair of the Council of Ministers is nominated by the Presidency. The chair nominates other ministers as appropriate, including a Foreign Minister and a Minister for Foreign Trade. The chair and the ministers, respectively, take office upon the approval of the House of Representatives. No more than two-thirds of the ministers may be appointed from the territory of the Federation.
Together, the chair and the ministers constitute the Council of Ministers. The Council is responsible for carrying out the policies and decisions of Bosnia and Herzegovina and reporting to the Parliamentary Assembly. The Council shall resign if given a vote of no-confidence by the Parliamentary Assembly.
The Constitutional Court of Bosnia and Herzegovina has nine members. The members are selected by the House of Representatives of the Federation (four) and the members of the Assembly of the Republika Srpska (two). Further, the President of the European Court of Human Rights after consultation with the Presidency selects three members that are not citizens of Bosnia and Herzegovina or of any neighbouring state.
The term of office of those judges who were initially appointed was five years. Judges subsequently appointed may serve until the age of 70, unless they resign or are removed for cause by consensus of the other judges.
The Constitutional Court has an overriding duty to uphold the Constitution of Bosnia and Herzegovina. This includes jurisdiction to decide on any dispute arising under the Constitution between the Entities, between Bosnia and Herzegovina and an Entity or Entities and between institutions of Bosnia and Herzegovina, including the constitutionality of the law or constitution of an Entity. Such a dispute may only be referred by specially authorized parties.
Also, the Constitutional Court has appellate jurisdiction over issues under the Constitution arising over a judgement of any other court in Bosnia and Herzegovina as well as jurisdiction over cases referred by any court concerning whether a law, on whose validity the decision of the court depends, is compatible with the Constitution, the European Convention of Human Rights and Fundamental Freedoms and its protocols or the laws of Bosnia and Herzegovina, as well as the existence of or scope of a general rule of public international law pertinent to the court’s decision.
Further, the Constitutional Court may make a process review in the case a proposed decision of the Parliamentary Assembly is declared destructive of vital interests of the Bosniac, Croat or Serb people as mentioned above.
Of general interest, the Constitutional Court stated in its partial decision of 1 July 2000 in case U-5/98 III, pr. 19, that contrary to constitutions in many other countries, the Constitution of Bosnia and Herzegovina is an integral of an international agreement. Therefore, the general rule of interpretation in Article 31 of the Vienna Convention of the Law on Treaties must be applied for the interpretation of all the provisions of the Constitution.
The status of Brcko was not resolved by the Dayton Peace Agreement but left to international arbitration, cf. Annex 2, Article V of the agreement. The status was later decided as a single administrative unit of local self-government existing under the sovereignty of Bosnia and Herzegovina, cf. the Statue of the Brcko District. The District is currently under the supervision of the International Supervisor, appointed by the High Representative.
Posted: February 2008
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