CYIL 2014

330 / 532

314
KATEŘINA UHLÍŘOVÁ CYIL 5 ȍ2014Ȏ
post-conflict rule of law efforts in BiH.20 Instead of focusing on building the fragile
statehood, the society in BiH is ethnically more divided than ever.
As regards the nature of the Constitution, it forms an integral part of an international
agreement – it was adopted as Annex 4 of the DPA. The Venice Commission in its
Report stated that the Constitution is ‘in its origin more a public international law than
a constitutional law text. Its character seems more contractual than normative.’21 As
a result of this unique nature, the Constitutional Court of BiH stated in its landmark
decision on Constituency of Peoples 22 that the Constitution could be interpreted
according to the Vienna Convention on the Law of Treaties of 1969.23
2.2 Role of International Law in the New Constitution
The constitution is a new suit of provisions in which the old, decrepit body of laws must
be regenerated.24
Constitutions usually determine the position of international law within the
domestic legal system of the country, and new constitutions adopted after conflicts
or change of undemocratic regimes usually place a strong emphasis on international
law.25 Conversely, international law often re-conceptualizes the constitution and
affects the domestic legal system as a whole.26 Post-conflict legal arrangements in BiH
are a clear example of this interdependence between international and domestic law.
Most of the new constitutions of the states from the post-communist block
generously incorporated international law into their domestic legal systems. BiH
faces a double legal challenge in this respect: in addition to coping with a legal legacy
inherited from its communist past, it has to address a legacy of the war.27 While the
20 For arguments for or against federalism as a tool for peacebuilding, see M. Böckenförde, ‘Constitutional
Engineering’ and Decentralization: Federal Structures as Means for Peace-Building in Sudan, in H.
Eberhard, K. Lachmayer and G. Thallinger (eds), Transitional Constitutionalism (Nomos, 2007). It is
acknowledged that in certain situations federalism can contribute to stabilization during transitional
periods by striking ‘a balance between the separatist and unitary movements of a country’, Böckenförde,
p. 19. Accordingly, the DPA was supposed to stabilize and avoid disintegration of BiH. It is nonetheless
argued that from a longer-term perspective, such arrangement in the context of BiH did not prove to
be effective.
21 Venice Commission Report, CDL-RA (96)001, available at
CDL-RA(1996)001-e.asp#_Toc80416064 (visited 26 March 2010).
22 Constitutional Court of BiH 1 July 2000, Constituency of Peoples, Partial Decision, part 1, U-5/98.
23 ‘Therefore, Article 31 of the Vienna Convention of the Law on Treaties must be applied in the
interpretation of all its provisions, including the Constitution of BiH’. Constituency of Peoples , para. 19.
24 Brahimi, supra note 5, p. 9.
25 See eg Constitutions of Germany, Hungary, Italy, Kosovo, or South Africa.
26 For a general overview of the role of international law during the constitution-making processes in
transition periods see H. Eberhard, K. Lachmayer and G. Thallinger (eds), supra note 20. For the
impacts of international law on constitutional law, in the context of the Czech Republic in particular,
see J. Malenovský, Případ praktické aplikace článku 10 Ústavy České republiky: Rámcová úmluva na
ochranu národnostních menšin, Právník č. 9 (1995).
27 J. R. Locher III and M. Donley, Military Matters: Reforming Bosnia and Herzegovina’s Defence