Framework legislation

The exclusive responsibility of the State to regulate certain substantive and legal areas does not necessarily have to arise from the constitutional obligations of Bosnia and Herzegovina. Moreover, the State may be considered obliged to limit itself to the enactment of essential uniform regulations, for instance, in the form of framework legislation. In its Decision No. U 5/98-II, the BiH Constitutional Court implies that Bosnia and Herzegovina is responsible for enacting framework legislation on the privatisation of enterprises and banks,²⁶²² in order to harmonise the Entities’ legislation in this field and to include all persons in the privatisation process in a non-discriminatory manner.²⁶²³ The BiH Constitutional Court generally notes that the different legal systems of the Entities, with different types of property or regulations of property law, may indeed constitute an obstacle for the freedom of movement of goods and capital as stipulated in Article I.4 of the BiH Constitution. Moreover, the right to private property safeguarded by the BiH Constitution, as an institutional safeguard throughout Bosnia and Herzegovina, requires framework legislation at the State level in order to specify the standards necessary to fulfil the positive obligations arising from the BiH Constitution. Therefore, such framework legislation should determine, at least, the various forms of property, the holders of these rights, and the general principles for the exercise of property rights in property law that usually constitutes an element of the civil law codes in democratic societies.²⁶²⁴

In the opinion of the BiH Constitutional Court, the official use of languages at the level of the Entities should be regulated in the same way through framework legislation at the State level in order to establish standards for the protection of individual rights and to fulfil the positive obligation used as an institutional safeguard for a “pluralist society” and the “market economy”. In addition, the legislation of BiH must account for the effective possibility of the equal use of the Bosnian, Croatian and Serbian languages, not only before the institutions of Bosnia and Herzegovina but also at the level of the Entities and any subdivisions thereof with regard to the legislative, executive and judicial powers and in public life. The highest standards of Articles 8 through 13 of the European Charter for Regional and Minority Languages should thus serve as a guideline for the three languages mentioned, so that the establishment of private schools would not be sufficient to meet these standards. Lower standards mentioned in the European Charter for Regional and Minority Languages might – taking the appropriate conditions into consideration – thus be sufficient only for other languages.²⁶²⁵

Also, the payment of “old foreign currency savings” should be regulated through framework legislation at the State level within which the Entities may be active on the basis of orders and approvals by the State. In so doing, the State cannot absolve itself from its principal obligation to guarantee the human rights and freedoms under the BiH Constitution of the persons affected by this problem.²⁶²⁶