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The Dayton Agreements and International Law
V. States' constitutional organization
The new Constitution of the Republic of Bosnia and Herzegovina
Two features of this Constitution deserve to be emphasized: its international origin and its far-reaching openness to international demands.
As for the first feature, it should be recalled that the Constitution was negotiated at Dayton and accepted by the Parties concerned (the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska) by means of three distinct declarations, which however had a similar tenor. It is unclear whether legally speaking these three declarations should be regarded as elements of an international agreement, or whether they are instead to be viewed as separate unilateral acts.30 However, it is beyond dispute that the constitutional law-making process was unmistakably anomalous.31 For, in this case the constitutional Charter of an existing State was drafted and agreed upon in an international forum and subsequently entered into force by virtue of international transactions: as pointed out above, the Constitution was negotiated at international level by the Republic of Bosnia and Herzegovina with on one side two insurrectional groups and on the other a group of foreign States. It is indeed no coincidence that the Constitution was drafted in English and not in the three languages of the peoples concerned.32 In short, the Constitution is not the outcome of an `internal' constitution-making process. Nor has it been the upshot of a totally `external' process either, as is often the case with those States that have forfeited their sovereign rights following debellatio as well as with many colonial countries acceding to independence: unlike these last cases, the new Constitution originates from a law-making process in which the authorities of the Republic of Bosnia and Herzegovina did participate. Nor can the hammering out of the Constitution at issue be equated with the conclusion of an international treaty setting out the Constitution of a federal State. Indeed, in the past some constitutional documents have resulted from an agreement among a number of sovereign States. By contrast, in the case of the Republic of Bosnia and Herzegovina we are faced with a compact made by an existing and internationally recognized State with insurrectional groups wielding de facto control over part of the territory of that State.
The new Constitution of the Republic of Bosnia and Herzegovina is also interesting in a second respect, namely from the viewpoint of its openness towards the international legal system. It is a Constitution ranking among those showing a great degree of what has been termed `friendliness to international law'.33 In other words, it is a Constitution attaching great importance to international legal rules and principles,34 with special emphasis on international standards on human rights. Thus, for instance, the Preamble refers to the `purposes and principles of the United Nations' and lays down the pledge `to ensure full respect for international humanitarian law' and to uphold international instruments on human rights.35
Among the various constitutional provisions proclaiming respect for internationally recognized human rights, attention should in particular be drawn to Article II, para. 2, whereby the `rights and freedoms set forth in the European Convention for the protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law'.36 It is also notable that Article X, para. 2, makes all the constitutional provisions on human rights non-amendable by constitutional process.37 In addition, no one can question the significance of the provisions elevating to a constitutional obligation the duty to cooperate with the International Criminal Tribunal for the Former Yugoslavia.38
Concluding remarks
By way of conclusion I would make four points.
First, the Dayton Agreements undoubtedly find their basic underpinning in two political factors: on the one side, the will of all the parties concerned to put an end to bloodshed and devastation and, on the other side, the keen desire of the United States Government to exercise its political leadership in a serious European crisis thus achieving a resounding diplomatic success.
Second, the engrained hatred among the conflicting parties, as well as the inherent difficulties of a lasting political settlement made it necessary to strengthen the agreements concluded at Dayton by a set of international guarantees, operating at various levels: those pledged by Croatia and the Federal Republic of Yugoslavia, the military enforcement mechanisms provided by the presence of IFOR, the whole apparatus for civilian implementation headed by the High Representative, the sanctionary mechanism contemplated in Security Council resolution 1022. These various `layers' of guarantees should ensure actual observance of the whole web of substantive provisions making up the Dayton Agreements.
Third, the political factors and practical difficulties just mentioned have found their reflection at the legal level. As I have tried to show above, the agreements exhibit unique legal features: these include the modalities of making of the Agreements and of their entering into force, the special relation between the Federal Republic of Yugoslavia and the Republika Srpska at the stage of treaty-making, the authority in the area of treaty interpretation, the legal personality of insurgents, and the constitutional law-making process.
Fourth, the setting up of a complex web of treaty engagements and enforcement mechanisms does not however entail that a lasting peaceful settlement has been achieved. In the final analysis, the success or failure of the Dayton Accord turns on a number of factors: the political will of Bosnian Croats and Muslims actually to build up the envisaged Federation, the readiness of Bosnian Serbs to accept submission to the central authorities of Bosnia and Herzegovina and to remain part of a sovereign State, the degree to which Croatia and the Federal Republic of Yugoslavia are prepared to exercise their political influence over the various factions in Bosnia and Herzegovina, and the extent to which the IFOR Commander and the High Representative are willing to exercise the sweeping powers with which they have been endowed. The Dayton Accord has put a whole `legal weaponry' at the disposal of the parties concerned; it now falls to them to translate all these legal potentialities into reality.
30 Unlike the
other Annexes to the General Framework Agreement, the Constitution does not
"appear" to be an international agreement. The text of the
Constitutional Charter is accompanied by three unilateral declarations, which
however are not attached formally to the Constitution itself. These
declarations are: the declaration on behalf of the Republic of Bosnia and
Herzegovina, according to which: "The Republic of Bosnia and Herzegovina
approves the Constitution of Bosnia Herzegovina at Annex 4 to the General
Framework Agreement"; the declaration on behalf of the Federation of
Bosnia and Herzegovina, stating that "the Federation of Bosnia and
Herzegovina, on behalf of its constituent peoples and citizens approves the
Constitution of Bosnia and Herzegovina at Annex 4 to the General Framework
Agreement", and the declaration on behalf the Republika Srpska, under
which "The Republika Srpska approves the Constitution of Bosnia and
Herzegovina at Annex 4 to the General Framework Agreement".
One could well wonder why only in the case of Annex 4 one is
faced with unilateral declarations instead of a "formal"
international treaty.
31 One can take
note of the anomalies of the process at issue in the Preamble where it is
stated that the Constituent peoples are: "Bosniacs, Croats, and
Serbs...(along with Others), and the citizens of Bosnia and
Herzegovina".
32 Most of the
agreements negotiated at Dayton were drafted and adopted in English only,
without, however, this being explicitly mentioned, at the end of the Agreement.
By contrast, the Agreement on Initialling provides explicitly that it was done
"in the English language", while the General Framework Agreement
provides in fine that it has been done "in the Bosnian, Croatian,
English and Serbian languages, each text being equally authentic".
33 See Cassese,
"Modern Constitutions and International Law", RdC (1985),III,
343, where the author, relying upon notions suggested by some German jurists,
underlines that "through the medium of national constitutions" it can
be ascertained whether States are "dominated by "nationalist
introversion" or rather tend to be inspired by "friendliness to
international law".
34 The
constitutional provisions `opening' Bosnia and Herzegovina's legal order to the
international legal system are: Art. II, concerning Human Rights and
Fundamental Freedoms (see infra note 36) ; Art. III, para. 2., litt.
(c), by which "The Entities shall provide a safe and secure environment
for all persons in their respective jurisdictions, by maintaining civilian law
enforcement agencies operating in accordance with internationally recognized
standards and with respect for internationally recognized human rights and
fundamental freedoms referred to in Article II above", and para. 3, litt.
(b), whereby: "The general principles of international law shall be an
integral part of the law of Bosnia and Herzegovina and the Entities"; Art.
VI, para. 1, litt. (a), according to which three of the nine members of the
Constitutional Court of Bosnia and Herzegovina "shall be selected by the
President of the European Court of Human Rights after consultation with the
Presidency", and litt. (b), providing that: "The judges selected by
the President of the European Court of Human Rights shall not be citizens of
Bosnia and Herzegovina or any neighboring States"; Art. VI, para. 3, litt.
(c), by which the Constitutional Court has jurisdiction over issues concerning
"whether a law ...is compatible with....the European Convention for Human
Rights and Fundamental Freedoms"; and, finally, Art. IX, para. 1, whereby:
"No person who is serving a sentence imposed by the International Tribunal
for the Former Yugoslavia, and no person who is under indictment by the
Tribunal and who has failed to comply with an order to appear before the
Tribunal, may stand as a candidate or hold any appointive, elective, or other
public office in the territory of Bosnia and Herzegovina".
35 These
include: the Universal Declaration of Human Rights, the International Covenants
on Civil and Political Rights and on Economic and Cultural Rights, the
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities, `as well as other human rights instruments'.
It should be added that Annex I to the Constitution provides
for a list of human rights agreements to which, according to Art. II, para. 7,
Bosnia and Herzegovina "shall remain or become a party".
36 Furthermore,
Art. II, para. 1, provides: "Bosnia and Herzegovina and both the Entities
shall ensure the highest level of internationally recognized human rights and
fundamental freedoms" and, according to para. 8 of this Article, "All
competent authorities in Bosnia and Herzegovina shall cooperate with and
provide unrestricted access to: any international human rights monitoring
mechanism established for Bosnia and Herzegovina; the supervisory bodies
established by any of the international agreements listed in Annex I to this
Constitution; the International Tribunal for the Former Yugoslavia (and in
particular shall comply with orders issued pursuant to Article 29 of the
Statute of the Tribunal) and any other organization authorized by the United
Nations Security Council with a mandate concerning human rights or humanitarian
law".
The other paragraphs of the Article at issue concern the
"Enumeration of Rights" (para. 3), "Non-Discrimination (para.
4), "Refugees and Displaced Persons" (para. 5),
"Implementation" (para. 7) and "International Agreements"
(para. 7).
37 According to
this provision "No amendment to this Constitution may eliminate or
diminish any or the rights and freedoms referred to in Article II of this
Constitution or alter the present paragraph".
38 Art. II,
para. 8, and Art. IX, para. 1, quoted supra, notes 36 and 34
respectively.
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