General reflections on the issue of review of international interventions by domestic authorities

All international actors, including the High Representative, the Human Rights Chamber, the Interim Commission and its Sub-Commission as well as the CRPC, SFOR and IPTF, were operating in the areas of interactions between domestic and international law. The above statement appears to be true given the already mentioned legal basis for their activities on the one hand, and the scope of their activity on the other. The legal acts of the mentioned institutions should build up their activity within domestic law and consequently, depending on specific regulations, they should exert their influence on the constitutional order, too. That takes place at different levels. Thus, the High Representative, while substituting for domestic authorities, imposes laws in the form of “decisions”. He also removes leading and elected politicians from office and, while doing so, he places himself above the existing domestic procedures or procedural guarantees. The Human Rights Chamber supplements the work of the Constitutional Court in the field of the appellate jurisdiction as to establishing cases of violations of human rights and freedoms in which case victims of violations should be subsequently compensated by the competent domestic authorities. The Interim Election Commission is tasked with passing the election rules which are applicable as domestic law until the time these rules are passed by the domestic legislator. The Sub-Commission, which is subordinated to the Election Commission, is in charge of processing the complaints against the election procedure and, thus, it operates on behalf of the future permanent election commission and temporarily replaces the legal remedy which should be based on domestic law. The CRPC gives opinions on the legal status of real properties and cooperates with domestic state authorities, which are obliged to comply with the CRPC decisions to an unlimited degree. SFOR and IPTF are in charge of military security, i.e., are in charge of law enforcement activities relating to the maintenance of public peace and order. These institutions also assist the domestic authorities in the process of the implementation of laws and in the process of building functional institutions.

It is true that the sources of competencies of international actors are outside the scope of the BiH Constitution and, to be more precise, those sources are incorporated into Annexes 1, 3, 6, 7, 10 and 11 to the GFAP. However, it does not imply that the mentioned actors operate outside the constitutional system. This idea is also presented in the decision of the Constitutional Court No. U 9/00, being referred to as the “functional duality” of the activities of the High Representative. However, given that every act of public authority may become a constitutional issue (like issues of the legal state, fundamental rights, legislative jurisdiction, etc.), it means that all the activities of international and quasi-international actors may be subject to the jurisprudence of the BiH Constitutional Court provided that the norms of its jurisdiction offer proper grounds for that to happen.

However, this kind of observation is in contravention of the motives of the contracting parties due to which they have temporarily excluded the previously mentioned areas of activity from the constitutional framework and relocated them to fall within the scope of special Annexes, which are parallel to the Constitution. Had there be an intention to integrate these areas of activity into the constitutional-legal system, including the consequences of such an act and particularly the possibility for review of all legal acts by the competent State authorities, then it could be excepted that this issue should be regulated in terms of legal technique as well, as it was envisaged in the previous drafts of the constitution. Consequently, a systematic division indicates that there is a legal division as well, i.e., a division that concerns a temporary transfer of authorities for execution of certain State tasks. This idea, as is evident, appears in different parts of the valid Annexes and the Constitutional Court very often refers to this idea in its decisions on the merits and it serves as a tool assisting the Court in interpreting its arguments. The systematic division is actually a reflection of the division of tasks between domestic and (quasi) international institutions, which the contracting parties wanted to have for a limited period of time. In the initial phase of internal social stratification within a fragile state, such a division was to ensure the necessary basis for successful implementation of the peace agreement. Accordingly, the assistance of international actors has a protective function.

When it comes to the meaning and aim of the division of tasks under the Dayton Agreement, there is a possibility to take into consideration the changes that occurred in the real life of the country, as well as the unexpectedly long duration of the factual basis that caused this division, and then on this basis to decide whether the international actors should continue exercising their authorities as if there is a state of emergency or not. Therefore, some issue that is originally and typically a constitutional issue (such as legislation, judiciary, etc.), according to teleological interpretation of the entire Dayton Constitution, may break away from being subject to the application of the Constitution and, consequently, from the jurisdiction of the Constitutional Court. Contrarily, some may argue that despite the systematic division and due to the expiration of time and significant changes in the country, the continuation of trusteeship is no longer appropriate. Moreover, a conclusion may be made that “the trustee” behaves against the agreement and that in such a situation the domestic institutions – such as, for instance, the Constitutional Court of BiH – are called to defend the constitutional system.

A solution to this ambivalent situation concerning the exercise of the authorities in the event of a state of emergency on the one hand, and compliance with the constitutional system on the other, might be related to an already indicated dynamic of restoration of the temporarily internationalised tasks which should fall within the competence of the State, i.e., within the competence of domestic actors, which is parallel to gradually subordinating the HR’s activities and the activities of other international actors to the constitutional system.³⁵³⁷ That approach causes particular difficulties for the High Representative since under Annex 10, which is different from Annexes 3, 6 and 7, the time limitation is not provided explicite. The reason for this might also be the fact that at the very beginning the plan was that the High Representative should have a less active and less interventionist role. However, the progressive restoration of responsibilities bears a risk. In the best possible scenario, if it happens that international factors are not capable or not willing to cooperate or to focus on the real problems, the inactivity of international representatives will cause only temporary paralysis to the reconstruction process.

The presented case-law of the highest courts in BiH concerning these issues is differently coloured and is not even free from contradictions. It shows the phases of seeking process, in which both the domestic and international factors have tried to determine a legal and politically justified solution to the problem which, at that time, was poorly explored and may be defined in the form of the following questions: Does the international community of states operate on the basis of the relevant convention and/or on the basis of the UN Security Council mandate and Chapter VII to the UN Charter when it comes to ensuring peace and stabilisation in the country? How should the issues of competence, review, obligations to respect human rights and guarantees be addressed in the event of such a mission operating in an area which is full of tensions, in the area of interactions between constitutional and international law?

Based on the previous analysis of judicial practice, it is possible to single out the following questions:

(i) Does the international administration operate in a legal vacuum or it is bound by certain legal norms?

(ii) If certain legal norms are still binding and if they have to be complied with, who is going to be held responsible for making sure that the representatives of the international administration comply with those norms, in other words that they behave accordingly?

(iii) If there is a responsibility criterion, who will be vested with the competence to determine the responsibility of the international administration?

(iv) As to the competence for review, will it be vested with domestic or international authorities and which standards are going to be applied?