Annex II to the BiH Constitution Transitional agreements

Transitional agreements

1. Joint Interim Commission

a) The Parties hereby establish a Joint Interim Commission with a mandate to discuss practical questions related to the implementation of the Constitution of Bosnia and Herzegovina and of the General Framework Agreement and its Annexes, and to make recommendations and proposals.

b) The Joint Interim Commission shall be composed of four persons from the Federation, three persons from the Republika Srpska, and one representative of Bosnia and Herzegovina.

c) Meetings of the Commission shall be chaired by the High Representative or his or designee.

2. Continuation of Laws

All laws, regulations, and judicial rules of procedure in effect within the territory of Bosnia and Herzegovina when the Constitution enters into force shall remain in effect to the extent not inconsistent with the Constitution, until otherwise determined by a competent governmental body of Bosnia and Herzegovina.

3. Judicial and Administrative Proceedings

All proceedings in courts or administrative agencies functioning within the territory of Bosnia and Herzegovina when the Constitution enters into force shall continue in or be transferred to other courts or agencies in Bosnia and Herzegovina in accordance with any legislation governing the competence of such courts or agencies.

4. Offices

Until superseded by applicable agreement or law, governmental offices, institutions, and other bodies of Bosnia and Herzegovina will operate in accordance with applicable law.

5. Treaties

Any treaty ratified by the Republic of Bosnia and Herzegovina between January 1, 1992 and the entry into force of this Constitution shall be disclosed to Members of the Presidency within 15 days of their assuming office; any such treaty not disclosed shall be denounced. Within six months after the Parliamentary Assembly is first convened, at the request of any member of the Presidency, the Parliamentary Assembly shall consider whether to denounce any other such treaty.

The idea to establish a Joint Interim Commission referred to in Article 1 of Annex II to the BiH Constitution, which was supposed to be composed of four persons from the Federation of BiH, three from Republika Srpska and one representative of Bosnia and Herzegovina, was a good one. The Commission had the mandate to “discuss practical questions related to the implementation of the Constitution of Bosnia and Herzegovina, of the General Framework Agreement and its Annexes and to make recommendations and proposals.” Meetings of the Commission were supposed to be conducted by the High Representative or his designee. This Commission, which was formed by Carl Bildt, turned out to be completely ineffective due to the lack of readiness of local political parties to cooperate. In response to the failure of the Commission, the High Representative strengthened his role as the authority encouraging development of the peace process and the most responsible person concerning its implementation.

Article XI, in conjunction with Annex II to the BiH Constitution, concerns a number of provisions which essentially represent the consistent continuation of the provision on the continuity of the international personality of Bosnia and Herzegovina under Article I.1 of the BiH Constitution: Bosnia and Herzegovina has never ceased to exist and it still exists as a sovereign State with a modified internal structure. Therefore, “all laws, regulations and judicial rules of procedure” in effect within the territory of Bosnia and Herzegovina when the Constitution enters into force shall remain in effect to the extent not inconsistent with the Constitution, until otherwise determined by a competent governmental body of Bosnia and Herzegovina (Article 2 of Annex II to the BiH Constitution). The provisions regulating the normative conflict between the former Republic laws and the Dayton Peace Agreement are not incorporated in the transitional arrangements, including Article 2 of Annex II to the BiH Constitution. In this connection, the BiH Constitutional Court must clarify every individual legal situation relating to normative incompatibility.

However, the continuity of laws also includes the continuity of State obligations without any restrictions.³⁹³⁵ All proceedings in courts or administrative agencies functioning within the territory of Bosnia and Herzegovina when the Constitution entered into force had to continue in or to be transferred to other courts or agencies in Bosnia and Herzegovina in accordance with any legislation governing the competence of such courts or agencies (Article 3 of Annex II to the BiH Constitution).

Based on Article 3 of Annex II to the BiH Constitution, the BiH Constitutional Court declared itself competent to decide on the normative control of laws in certain cases before the Constitutional Court of the Republic of BiH.

In Case No. U 40/95, the Social Democratic Party of Bosnia and Herzegovina filed a request for review of the constitutionality of the Law on Transformation of Socially-Owned Property.³⁹³⁶ The applicant claimed that the challenged law provided, in an unlawful manner and in violation of Article 25, paragraph 1 of the Constitution of the Republic of BiH, that the whole of socially owned property was transformed into State owned property, where the user of the property was deprived of his rights. In addition to this, the applicant claimed that employees, pensioners and other persons who contributed to the creation of such property on another basis should have their ownership rights recognised. Finally, the applicant claimed that the challenged law was in violation of items 1 and 2 of Amendment LXIII to the Republic of BiH Constitution guaranteeing the socially-owned property.

Admittedly, the BiH Constitutional Court applied new Rules of Procedure and the applicable BiH Constitution to this case and similar cases and had to reject³⁹³⁷ the requests for lack of standing to file a request for abstract control (review) of constitutionality. The Court had to terminate the proceedings, since the present BiH Constitutional Court, unlike the former one, does not possess competence to control norms ex officio.³⁹³⁸

Until superseded by an applicable agreement or law, governmental offices, institutions, and other bodies of Bosnia and Herzegovina will operate in accordance with the applicable law (Article 4 of Annex II to the BiH Constitution). Given the restricted legitimacy of international treaties which the Republic of BiH (without the Republika Srpska and the so-called Herceg- Bosna) signed and ratified during the war, the institutions established under the Dayton Constitution were bound by these treaties only if the competent Dayton authorities approved them subsequently. Accordingly, Article II.5, first sentence thereof, of the BiH Constitution, provides that “any treaty ratified by the Republic of Bosnia and Herzegovina between 1 January 1992 and the entry into force of this Constitution shall be disclosed to Members of the Presidency within 15 days of their assuming office; any such treaty not disclosed shall be denounced.” However, it is not clear whether the treaties which are not disclosed per constitutionem are automatically denounced or the Presidency must denounce them as soon as it is informed that the case relates to a ratified treaty which was not denounced. From the point of view of international law, either approach should be correct.

Furthermore, within six months after the Parliamentary Assembly is first convened, at the request of any member of the Presidency, the Parliamentary Assembly shall consider whether to denounce any other such treaty (Article 5, second sentence thereof, of Annex II to the BiH Constitution). Therefore, the legislature could denounce the treaties to which the Presidency of BiH gave its consent.

A number of conclusions useful for the interpretation of “Transitional arrangements” could be drawn from the BiH Constitutional Court’s Decision No. U 12/98. The BiH Constitutional Court dealt with the constitutionality of two Decrees on the Ratification of the Agreement, which had been signed before the entry into force of the BiH Constitution. The BiH Constitutional Court has held that Article 5 of Annex II to the BiH Constitution does not apply to the international agreements which had been signed prior to and ratified after the entry into force of the BiH Constitution.³⁹³⁹ These treaties were ratified by Decree in accordance with Article 34 of the Law on Government of the Republic of BiH,³⁹⁴⁰ which was applicable when the BiH Constitution entered into force. However, even if the BiH Presidency had the competentence to ratify treaties based on former legal solutions, the BiH Constitutional Court considered that such ratification was unconstitutional, since the aforementioned provisions of the Law on Government had been replaced by Articles V.3(d) and IV.4(d) of the BiH Constitution and, therefore, could not constitute a legal basis for ratifying the treaties. In particular, according to Article V.3(d) of the BiH Constitution, the BiH Presidency shall have responsibility for ratifying the treaties of Bosnia and Herzegovina (with the consent of the Parliamentary Assembly), and Article IV.4(d) of the BiH Constitution explicitly refers to the competence of the Parliamentary Assembly of BiH to decide whether to consent to the ratification of treaties. The provisions relating to the competencies referred to in the Law on the Republic of BiH Government are contrary to these provisions. Therefore, according to Article 2 of Annex II to the BiH Constitution, by the entry into force of the BiH Constitution, they could no longer be the basis for ratifying international treaties by the Republic of BiH Government. The fact that neither the BiH Presidency nor the Parliamentary Assembly of BiH were established

according to the BiH Constitution, could not lead to the conclusion that the institutions of the Republic of BiH, which, according to the Republic of BiH Constitution, were competent for ratification and which were still operational at the time when the BiH Constitution entered into force, could temporarily ratify such treaties. According to Article II.4 of the BiH Constitution, the Republic institutions could operate only until the moment of their replacement by new institutions. As to the responsibility for ratification of international treaties, the Government of the Republic of BiH was replaced per constitutionem by the BiH Presidency and BiH Parliamentary Assembly. The manner in which the BiH Constitutional Court observes the aforementioned problem means a contrario that the provision on continuity of legal and administrative proceedings (Article 3 of Annex II to the BiH Constitution) does not apply to the pending procedures for the ratification of undergoing international treaties, which could be concluded from the linguistic interpretation of this provision.