iii. Authorisation to conduct review

Responsibility for the international administration’s activities in the event of a state of emergency being in conflict with international and/or constitutional law does not mean automatically that there is authorisation to control their acts or even to abolish them. This is at the same time the most critical point in the relationship between domestic authorities and international administrators. It is one thing to establish that the conduct of international actors is in contravention of the ECHR and that the State should insist that the human rights and freedoms of its citizens are respected. However, the situation becomes dangerous for international administrators when domestic institutions stand against their acts, when they start preventing them, making them relative or when they abolish them, in other words when they have authorisation to do so. In this way the effectiveness of the peace mission is per se brought into question.

In fact, international law implies that the activities of international administrators shall be subject to judicial review.³⁵³⁸ It might be possible to interpret such an obligation (by analogy) by referring to the international instrument pertaining to the administrator or to the international law of occupation. In any case, this obligation arises from the minimum standards of human rights protection. The majority of national legal systems, including international law, contain the basis according to which one of the fundamental and universal rights is the right of access to court, which decides disputes involving an individual as a private legal person, regardless of whether the norms according to which the proceedings will be decided fall within the scope of civil or public law. The international regulations concerning State related immunity imply the existence of an international administrator, i.e., a trustee in areas where he substitutes for domestic authorities and, in fact, there is no obstacle for reviewing the acts of an international administrator.³⁵³⁹

The Constitutional Court has yet to determine a clear direction when it comes to its judicial practice. Currently, there is a spectre of different positions, starting from the Court being restrained and all the way to full review and abolishment of the acts of international administration. For instance, the BiH Constitutional Court has thoroughly examined whether the deprivation of liberty and house- search by SFOR in the Subotić case were conducted by way of violating the rights safeguarded under the Convention and finally concluded that there were violations of various rights from the ECHR. The Court also considers that it was competent to review the laws imposed by the OHR and to consequently abolish them. However, the Constitutional Court is not willing to review the merits of individual measures taken by the High Representative but rather limits itself to establishing that for this purpose it is necessary to establish a special judicial body, which would be internationally and legally legitimized (Bilbija & Kalinić). The contradiction of this approach according to which the laws may be reviewed but not the acts has already been mentioned in the previous parts of this text. Moreover, taking into account the decision in the Subotić case which was adopted ten months earlier, one should also mention that treating SFOR and OHR acts in a different manner cannot be justified by arguments that SFOR allegedly acts on a different, even a weaker basis. It is quite the opposite and the SFOR mandate is even stronger and firmer than the OHR mandate (which means authorisation and not only acknowledgment). The fact that SFOR, unlike the OHR, operates in the military sphere only, which means not as an executive or legislative authority operating in the civilian field, should not be an obstacle for the authorisation of the BiH Constitutional Court to review the acts of SFOR since that authorisation is widely perceived in any event. Furthermore, the SFOR mandate only slightly and insignificantly interfered with the BiH Constitutional Court’s competence to review SFOR acts. By contrast, examining the merits of the case and prospective abolishment of SFOR individual acts would bring its effectiveness into question. In theory, that principle could also be applied to the procedure of reviewing the constitutionality of norms. However, the OHR should remain reassured, at least temporarily, that its laws, as long as they are in compliance with the BiH Constitution, will not be touched since that would require the majority vote in the parliament, a difficult achievement nowadays.

Due to the constant changes of the case-law, which was compiled based on Annex 6, and an unstable and undetermined political course being in place for a long period of time, the BiH Constitutional Court was unsure which position to adopt in cases pertaining to IPTF decisions. In connection with this, the latest decision of the BiH Constitutional Court may be an encouragement to the view that the decertification process conducted by IPTF (similar to individual measures taken by OHR) is not a matter of concern and that the BiH Constitutional Court should focus on the recently initiated processes regarding the re-employment of decertified persons. As to the Džaferović case, the Human Rights Commission within the Constitutional Court should not have adopted a decision on the merits because in that decision the Commission concluded that the Federation of BiH is not to be held responsible for the acts of the IPTF. Therefore, the related application should have been declared inadmissible ratione personae. The reason for adopting such a decision lies in the fact that the Human Rights Commission within the Constitutional Court should have upheld the previous decision on admissibility adopted by the Human Rights Chamber, whereby the application was declared admissible. As to the opinion on the merits, the Human Rights Commission within the Constitutional Court established that there was a restriction on the procedural rights of the injured party (right of access to court), but it considered that the said restriction was justified in the context of higher interest, which is ensuring of peace. In fact, the Human Rights Commission within the BiH Constitutional Court gave a negative reply to the question about the competence of authorities under Annex 6 for reviewing the acts of the IPTF.