H. article II.7 – international agreements

Bosnia and Herzegovina shall remain or become party to the international agreements listed in Annex I to this Constitution.

In choosing the international-legal instruments for the protection of human rights and freedoms it is obvious that, on the one hand, the aim of Framer was to cover as wide spectre of activity as possible and, on the other hand, being oriented to and led by the specific circumstance prevailing in Bosnia and Herzegovina. The Framer of the Constitution intended to place the rights and freedoms from international instruments at the disposal of individuals or groups irrespective of the domestic procedure required for the incorporation of those instruments into the legal system or their applicability within the domestic legal system.²⁴⁸⁶ Therefore, it was of great importance to extract the so-called soft law from a number of international instruments of the UN, the International Committee of the Red Cross, the Council of Europe and the OSCE, since the applicability of the rights and freedoms contained in the mentioned instruments makes sense only if it concerns legally binding provisions of international contracting law. Those provisions provide for the subjective-legal position of an individual. In other words, they provide for a law which, in the case of need, may be required in lawful proceedings before the competent State authorities (the so-called standardisation of human rights).

It is a fact that Bosnia and Herzegovina has undertaken to comply with the international legal instruments for the protection of human rights and freedoms listed in Annex I to the BiH Constitution. However, in addition to this obligation, Bosnia and Herzegovina has also undertaken to remain or become a contracting party to the international agreements as provided by Article II.7 of the BiH Constitution. This obligation may be explained by the efforts of the Framer of the Constitution to have Bosnia and Herzegovina undertake international obligations towards other contracting parties as provided under Article 26 and Article 27 of the Vienna Convention on the Law of International Treaties in addition to its domestic engagement within the constitutional obligation to respect the standards of these instruments. The relevant part applies to the obligation of the public authorities, based on Article I.8 of the BiH Constitution, to be committed to cooperation and to secure unrestricted access to all of the international human rights monitoring mechanisms to be established in Bosnia and Herzegovina; to the supervisory bodies to be established by any international agreement listed in Annex I to the BiH Constitution; the International Criminal Tribunal for the Former Yugoslavia; and any other agency authorised by the UN Security Council whose mandate is related to human rights and humanitarian law. In principle, the human rights and freedoms enshrined in the ECHR and international instruments under Annex I to the BiH Constitution may be divided into four categories:

■ general human rights and freedoms, in particular civil and political rights;

■ group rights, in particular the rights of national minorities;

■ economic, social and cultural rights, and

■ citizenship and nationality related rights.

Annex I to the BiH Constitution contains in total 15 international instruments. Based on the Notice of Succession from 1993, Bosnia and Herzegovina became a member state upon signing almost all of these agreements. On 15 December 1993 the Republic of Bosnia and Herzegovina published a list in the Official Gazette of RBiH,²⁴⁸⁷ which contains all the multilateral international agreements which became legally binding on Bosnia and Herzegovina after the notification according to Article 1, the first part, paragraph 4, item 4 of the Decree with legal force on taking over and applying the federal laws applicable in Bosnia and Herzegovina as republic laws.²⁴⁸⁸ As per this list, as of 15 December 1993, Bosnia and Herzegovina became bound by the following instruments under Annex I to the BiH Constitution:²⁴⁸⁹

1. Convention on the Prevention and Punishment of the Crime of Genocide (1948);

2. Geneva Conventions I-IV for the Protection of War Victims (1949) and Additional Protocols I-II (1977);

3. Convention relating to the Status of Refugees (1951) and Protocol (1966);

4. Convention on the Nationality of Married Women (1957);

5. Convention on the Reduction of Statelessness (1961);

6. International Convention on the Elimination of All Forms of Racial Discrimination (1965);

7. International Covenant on Civil and Political Rights (1966) and Optional Protocols (1966 and 1989);

8. International Covenant on Economic, Social and Cultural Rights (1966);

9. Convention on the Elimination of All Forms of Discrimination against Women (1979);

10. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987), and

11. Convention on the Rights of the Child (1989).

When it comes to the rest of the mechanisms, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) was ratified on 13 December 1996. The Framework Convention for the Protection of National Minorities (1994) was ratified on 24 February 2000. The European Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) was ratified on 12 July 2002. The European Charter for Regional or Minority Languages (1992) was signed in 2006 but has yet to be ratified to this today.²⁴⁹⁰ The ECHR, which is on the list of the 15 international instruments under Annex I to the BiH Constitution and although it has a special constitutional position (Article II.2 of the BiH Constitution), was ratified only on 12 July 2002²⁴⁹¹

Consequently, with the exception of the European Charter for Regional or Minority Languages (1992), a conclusion could be made that Bosnia and Herzegovina has met its constitutional obligation from Article II.7 of the BiH Constitution: “Bosnia and Herzegovina shall remain or become party to the international agreements listed in Annex I to this Constitution.”