333 / 532
317
THE ROLE OF INTERNATIONAL LAW IN THE RULE OF LAW EFFORTS IN POSTǧDAYTON…
In sum, it is clear from the above that the legal discontinuity between the
old and new legal system to a certain extent influenced the scope of application
of international law,
44
and it is argued that some constitutional changes should be
made in the near future in order for BiH to more adequately comply with various
international obligations (other than human rights ones).
2.3 New Constitution found to be in Breach of the European Convention
on Human Rights: How Ethnicity in BiH Still Matters
“Law and legislation may play a rather ambiguous role in the breakdown of law and order.
One group in society may use law to entrench its own position while denying equal rights
to opponents.
This abuse of law may have even triggered the original outbreak of violence
.”
45
Some constitutional provisions not only support ethnic differences, but in so doing
are also discriminatory towards certain groups of people that are excluded from active
political participation in BiH. This is illustrated by the 2008 decision of the European
Court on Human Rights (ECtHR) in
Sedjic and Finci v. Bosnia and Herzegovina
.
46
The
case was brought before the ECtHR by two politicians, one of Jewish and the other of
Roma descent.
47
Both are ineligible to become either members of the House of Peoples
or to be considered for the Presidency on the grounds of their ethnicity. Article V of
the BiH Constitution states unequivocally: ‘The Presidency of Bosnia and Herzegovina
shall consist of three Members: one Bosniac and one Croat, each directly elected from
the territory of the Federation, and one Serb directly elected from the territory of the
Republika Srpska’. As a result, only ‘constituent peoples’ would qualify for these positions.
These constitutional provisions were ‘included at the insistence of the parties to the
conflict, notwithstanding the expression of human rights concerns by the international
mediators involved’.
48
As the co-counsel for Finci noted, ‘such rigid “power-sharing” was
tried, with disastrous results, in Lebanon and Cyprus in the last century’.
49
The ECtHR confirmed that the contested constitutional provision indeed violated
both the right for free elections (ie Article 3 of Protocol No. 1) in conjunction with
the prohibition of discrimination of Article 14 with regard to the candidacy for
the House of Peoples and the general prohibition of discrimination (ie Article 1 of
Protocol No. 12) in regard to the possiblity to stand for election for the Presidency.
Yet, the case was politically very sensitive, since the ECtHR had to subject to its
scrutiny a part of the DPA which had been primarily concluded as a measure to stop
44
Pajic argues that departure from the former constitutional tradition may be caused, inter alia, by the
strong influence of the United States in drafting the DPA. Pajic,
supra
note 14.
45
Pistor,
supra
note 7, p. 23 (quoting J. Fanton) (emphasis added).
46
Ect.HR,
Sedjic & Finci v. Bosnia and Herzegovina
, 483/2008 ECHR.
47
Compare with D. Jílek, Příslušník národnostní menšiny jako homo individualis a právo osobní volby. In
Národnostní politika v postkomunistických zemích
(Brno: Mezinárodní politologický ústav Masarykovy
univerzity, 2000), pp. 12-24.
48
F. L. Morrison, The Constitution of Bosnia-Herzegovina, 13 Constitutional Commentary 145 (1996).
49
C. Baldwin, A Belated Victory, in: Haaretz (28 February 2010).