CYIL 2014

KATEŘINA UHLÍŘOVÁ CYIL 5 ȍ2014Ȏ more important step, is the effective application of such rules, because constitutional proclamations of adherence to international obligations are meaningless if state institutions are not willing ‘to give a life’ to such constitutional commitments. 37 As regards effective protection of human rights, the Constitution on the one hand strongly promotes ‘the highest level of internationally recognized human rights and fundamental freedoms’ 38 for all on the territory of BiH. On the other hand, it restricts the eligibility of political participation only to ‘constituent peoples’, thus excluding the others on the basis of ethnicity. Such a restriction sharply contradicts the constitutional provisions on non-discimination. 39 The case of Sedjic and Finci v. Bosnia and Herzegovina , described below, well illustrates this tension and the need to connect constitutional provisions providing a wide protection of human rights with the reality on the ground. As for the international agreements listed in Annex I to the Constitution, the Constitutional Court in Maktouf 40 held that many international treaties, including the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Geneva Conventions I-IV Relative to the Protection of Civilian Persons in Time of War (1949), and its Additional Protocols I-II (1977) ‘have a status equal to that of constitutional principles and are directly applied in Bosnia and Herzegovina’. 41 However, Annex I lists only treaties relating to human rights or humanitarian law. It is unclear what will be the general position of other international treaties within the domestic legal system of BiH. The new Constitution omits provisions indicating the position of international agreements other than those listed in Annex I. The Constitutional Court’s decision in Constituency of Peoples reveals this shortcoming. 42 Amajority of the judges referred to Article 31 of the Vienna Convention when interpreting the legal nature of the Preamble of the Constitution. Judge Popović, in his dissenting opinion, nevertheless stated that for the Vienna Convention to be applicable, it would be necessary to incorporate it in the legal system of BiH either by ratification or in some other way. Since he found that none of the ways for consent to be bound by the Vienna Convention existed in this particular case and ‘the Vienna Convention, in terms of Article III/3 (b), cannot be deemed a “general principle of international law or an integral part of BiH and Entity legislation”’, 43 the Court had, in his view, wrongly referred to the Vienna Convention. 37 See also the Constitution of Kosovo (2008), which is regarded as one of the best constitutions in Europe as regards international law obligations, but in practise fails to provide sufficient (human rights) protection. 38 Constitution of BiH, Art. II(1). 39 Constitution of BiH, Art. II(4), (5). 40 Constitutional Court of BiH 30 March 2007, Abduladhim Maktouf , Decision on Admissibility and Merits, AP-1785/06. 41 Abduladhim Maktouf , para. 71. 42 Constituency of Peoples , supra note 22. 43 Constituency of Peoples , supra note 22, Partial Decision, part 3, Dissenting Opinion of Judge Vitomir Popović, p. 78.

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