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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.