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315
THE ROLE OF INTERNATIONAL LAW IN THE RULE OF LAW EFFORTS IN POSTǧDAYTON…
Constitution of the former Socialist Federal Republic of Yugoslavia (SFRY) (1974)
provided for direct application of international treaties in general (not only human
rights treaties),
28
the new BiH Constitution empowers the domestic courts to apply
only certain (ie human rights) international treaties, thereby partly limiting the
practice of domestic courts with regard to the application of international law.
29
It
may well be argued that provisions on international law in the Constitution of the
former SFRY were to a large extent dead letter provisions, as was the case in many
other communist countries. However, it is suggested that the legal discontinuity
caused an unnecessary departure from general provisions on international law,
which, if effective, would be more appropriate than a mere incorporation of human
rights treaties by the new Constitution of BiH.
30
As regards the position of international law in the new Constitution, the relevant
provisions for our purposes, except the Preamble,
31
are provisions on human rights
copied from the European Convention on Human Rights (ECHR). Enumeration
of human rights which are directly applicable in BiH and have priority over all
other laws was inserted into the Constitution at the time when BiH was not yet a
member of the Council of Europe and therefore not a party to the ECHR.
32
The
Constitution also incorporates international agreements, which are listed in Annex
I to the Constitution.
33
In addition, the Constitution includes the term ‘general
principles of international law’ and these principles are considered to be an integral
part of the law of BiH and the Entities.
34
This provision aims to incorporate
customary international law. Most constitutions do not use the term ‘customary
international law’ explicitly. Instead, they use wording such as ‘generally accepted
rules of international law’,
35
‘obligations resulting from international law’, or ‘legally
binding norms of international law’.
36
The first step of injecting international rules into domestic legislation in order
to re-shape the domestic legal system has therefore been accomplished. The second,
Institutions,
NATO Review
(2004).
28
See Article 210 of the SFRY Constitution (1974).
29
Compare with D. Jílek, Human rights treaties and the new constitution. In
Survey of lectures on the Czech
law
, Acta Universitatis Brunensis Iuridica; No 146 (Brno: Masarykova univerzita, 1995), pp. 107-116.
See also J. Malenovský, O „chudokrevnosti“ mezinárodního rozměru české ústavy a možných terapiích,
Právník
č. 7 (1997).
30
As regards incorporation of human rights treaties by the new Constitution, compare with the previous
situation in the Czech Republic: J. Malenovský, Postavení mezinárodních smluv o lidských právech
v českém právu po 1. červnu 2002,
Právník
č. 9 (2002).
31
For the legal nature and character of the Preamble (which includes provisions on international law) as
intrepreted by the Constitutional Court of BiH see the case of
Constituency of Peoples
,
supra
note 21.
32
Art. II(2).
33
Art. II(7).
34
See Art. III/3 (b).
35
The Preamble of the Constitution of the Socialist Federal Republic of Yugoslavia (1974), Art. 16(2) of
the Constitution of Serbia (2006), Art. 25 of the Constitution of Germany (amended as of 1993).
36
Art. 19(2) of the Constitution of Kosovo.