iii. Possibility of judicial review of the High Representative’s authorities

As to the issue of whether it is possible to review the authorities of the High Representative existing on the basis of Annex 10, i.e., whether it is possible to review the constitutionality of those authorities, the Constitutional Court, while referring to the Constitution as its criterion, has indirectly given a negative reply to this question in its major decision on the constitutionality of the Law on State Border Service:³³⁷⁴

“5. The Law on State Border Service was enacted by the High Representative on 13 January 2000 following the failure of the Parliamentary Assembly to adopt a draft law proposed by the Presidency of Bosnia and Herzegovina on 24 November 1999. Taking into account the prevailing situation in Bosnia and Herzegovina, the legal role of the High Representative, as agent of the international community, is not unprecedented, but similar functions are known from other countries in special political circumstances. Pertinent examples are the mandates under the regime of the League Nations and, in some respect, Germany and Austria after the Second World War. Though recognized as sovereign, the States concerned were placed under international supervision, and foreign authorities acted in these States, on behalf of the international community, substituting themselves for the domestic authorities. Acts by such international authorities were often passed in the name of the States under supervision.

Such a situation amounts to a sort of functional duality: an authority of one legal system intervenes in another legal system, thus making its functions dual. The same holds true for the High Representative: he has been vested with special powers by the international community and his mandate is of an international character. In the present case, the High Representative – whose powers under Annex 10 to the General Framework Agreement, the relevant resolutions of the Security Council and the Bonn Declaration as well as his exercise of those powers are not subject to review by the Constitutional Court – has intervened in the legal order of Bosnia and Herzegovina substituting himself for the national authorities. In this respect, he therefore acted as an authority of Bosnia and Herzegovina and the law which he enacted is in the nature of a national law and must be regarded as a law of Bosnia and Herzegovina.”³³⁷⁵

The above statement of reasons of the BiH Constitutional Court relies on the reasoning for the decision in Case No. U 7/97,³³⁷⁶ although an explicit reference in this regard has not been made in this decision. However, that approach was not fully followed given the fact the BiH Constitutional Court, at some later point, declared that it has no competence to review the constitutionality of laws which, instead of being promulgated by the parliament, were imposed by the High Representative in the exercise of his powers (sic).