International protection of human rights and freedoms

Taking into account the aforementioned, some efforts have been made for the mechanisms of the protection of human rights in the reconstruction phase to be shaped in a way to be more efficient and more independent from the national/nationalistic influence.³⁹⁷ In order to make a clear distinction between traditional communist positions on the protection of human rights, the contracting parties were suggested to follow the proved models of western countries. Taking the Preamble as a starting point, we can see that the BiH Constitution contains numerous provisions on the protection of human rights and fundamental freedoms referring to international law. In the first line of the Preamble an explanation is given that in making the Constitution, the Framer of the Constitution relied on the principles of the protection of human rights, liberty and equality. Moreover, the Framer of the Constitution was guided by the Purposes and Principles of the Charter of the United Nations,³⁹⁸ and was determined to ensure full respect for international humanitarian law.³⁹⁹ The Framer of the Constitution was inspired by the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, as well as by other human rights instruments.⁴⁰⁰ Disregarding the fact that the Preamble points to different documents, the mere text of the BiH Constitution contains a series of constitutional principles and elements of state organisation similar to those that could be found in the constitutions of western democracies. By the provision on applicability of ECHR and the other 15 international conventions, the BiH Constitution, in its Annex 1, “constitutionalises” the whole package of human rights and fundamental freedoms of different kinds and different scope. Admittedly, the Constitution of BiH thus follows the trend of the Middle and Eastern European countries, which, in making their constitutions, relied on the proved western models in order to legitimise state power after the fall of socialism and meet the standards for accession to, for instance, the Council of Europe or the European Union.⁴⁰¹ However, the BiH Constitution shows a remarkable degree of internationalisation, which can be found in both its substantive-legal and institutional meanings.

A basic regulation of the post-Dayton protection of human rights is incorporated in Article II of the BiH Constitution. Pursuant to paragraph 1 of the said provision, Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognised human rights and fundamental freedoms. That was the purpose of establishing the Human Rights Commission under Annex 6 of the GFAP. Pursuant to Article II.2 of the BiH Constitution, the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina and shall have priority over all other law.⁴⁰²

Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities, shall apply and conform to the human rights and fundamental freedoms referred to in paragraph 2 above, and, direct their actions accordingly.⁴⁰³ Article II.4 of the BiH Constitution, in conjunction with Annex I to the BiH Constitution, refers to numerous international agreements to be applied in Bosnia and Herzegovina. It is evident that relying on international standards in the field of protection of human rights is not any per se guarantee for the successful building of a democratic legal state. The constitutional principles of a legal state, democracy and protection of human rights have defined a necessary frame and made the required instrumentalities available, so that these values that are common in the western democracies are permanently established in the minds of the people and institutions of Bosnia and Herzegovina. The experiences of the transition countries of Middle and Eastern Europe, described by Hartwig,⁴⁰⁴ have proved the aforementioned once again.

Internationalisation of the substantive law in the BiH Constitution and in other constitution-related annexes has been supplemented by the institutional and procedural-technical internationalisation of the Agreement on Elections (Annex 3 to the GFAP), Agreement on Human Rights (Annex 6 to the GFAP) in the form of the Commission for Real Property Claims under Annex 7 to the GFAP, as well as by the authorities of the High Representative under Annex 10 to the GFAP. Outside the frame of Annex 4, international participation was also provided for in the form of the Commission to Preserve National Monuments, which was established under Annex 8 to the GFAP. When it comes to the BiH Constitution, we may finally conclude as follows: the international agreements which are incorporated in the Annex to the BiH Constitution are not only a kind of substantive-legal measure for the functioning of the state. Moreover, regardless of whether Bosnia and Herzegovina has ratified the instrumentalities under Annex I, the public authorities, pursuant to Article II.8 of the BiH Constitution, are obliged to cooperate with the bodies supervising the implementation of the mechanisms under Annex I, as well as with other organisations authorised by the UN Security Council to protect human rights or international humanitarian law, and are also obliged to provide unrestricted access to those organisations. What might be characteristic for the constitutional practice of democratic countries is the appointment of international judges to the constitutional court of the respective state, i.e., to the constitutional authority of a sovereign state and a member of UN.⁴⁰⁵ Similar regulations are contained in Article II of the BiH Constitution, according to which the first Governor of the Central Bank shall be appointed by the International Monetary Fund.