Isolated applicability of agreements referred to in Annex I to the BiH Constitution

The position of international mechanisms enumerated in Annex I to the BiH Constitution is not clear on the basis of the actual constitutional phrasing. Article II.7 of the BiH Constitution obliges Bosnia and Herzegovina to remain a signatory to the mentioned international agreements, or to become one. In addition to this, in accordance with Article II.8 of the BiH Constitution, all competent institutions in Bosnia and Herzegovina cooperate with the supervisory bodies of the mentioned mechanisms and secure unrestricted access to them. In accordance with Article II.4 of the BiH Constitution, all persons in Bosnia and Herzegovina, without difference, are enabled to enjoy the rights and freedoms enumerated in Article II of the BiH Constitution and in Annex I to the BiH Constitution. Annex I to the BiH Constitution contains no further explanations, but it only enumerates instruments under the title “Additional Protocols on Human Rights to be applied in Bosnia and Herzegovina”.⁵³⁵ Therefore, this conclusion is not applicable solely to the ECHR, for which the very BiH Constitution stipulates “direct application” (Article II.2 of the BiH Constitution), but also for other international instruments referred to in Annex I to the BiH Constitution. There is no doubt about this whatsoever, for the BiH Constitutional Court presented the same stance in several cases and applied some of the instruments which were not ratified at the time of adoption of decisions, or they were ratified but were not in effect.⁵³⁶ In addition, there is no doubt that Bosnia and Herzegovina is obliged, under its constitutional law (Article II.7 in conjunction with Annex I to the BiH Constitution), albeit not being a member, to subject itself to the mentioned agreements insofar as it concerns possible cooperation with supervisory bodies, or accession to the mentioned international agreements.⁵³⁷

Nevertheless, there are two more difficult issues left that warrant special attention. The first one relates to the scope of the agreements. That is to say, although there is no doubt that the international instruments referred to in Annex I to the BiH Constitution are applied irrespective of whether the state ratified them or not, an issue arises as to their respective scope and as to whether their international status in Bosnia and Herzegovina may, nevertheless, affect their constitutional status. The second issue relates to whether these instruments may be applied solely in connection with the prohibition of discrimination or not, that is in their full capacity.