Article XII – Entry into Force

1. This Constitution shall enter into force upon signature of the General Framework Agreement as a constitutional act amending and superseding the Constitution of the Republic of Bosnia and Herzegovina.

2. Within three months from the entry into force of this Constitution, the Entities shall amend their respective constitutions to ensure their conformity with this Constitution in accordance with Article III.3(b).

The General Framework Agreement for Peace in Bosnia and Herzegovina was signed on 14 December 1995 by the then president of the Socialist Republic of Yugoslavia, Slobodan Milošević, the then president of the Republic of Bosnia and Herzegovina, Alija Izetbegović, and the then president of the Republic of Croatia Franjo Tuđman, as well as by five states as witnesses: the Republic of France, the Federal Republic of Germany, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America, including also the European Union in its capacity as a witness.³⁹²² Pursuant to Article XII, the Constitution of Bosnia and Herzegovina entered into force at the moment of being signed. The Constitution of Bosnia and Herzegovina entered into force by the signing of the English version of this document. First of all, it should be emphasised that the validity of the BiH Constitution was not considerably questioned.³⁹²³

The BiH Constitution entered into force irrespective of its (prospective) ratification by the competent domestic authorities and irrespective of the (prospective) publication of its English version and versions of this document in the official languages in the Official Gazettes of the State and Entities. The reason for not having the versions of this document in the official languages is primarily the fact that the discussions on the BiH Constitution were held in English. It is true that in Article XI of the General Framework for Peace in Bosnia and Herzegovina it is stated that the Agreement shall be made in the “Bosnian, Croatian […] and Serbian languages”. However, there is no trace of the existence of those three equal and authentic versions. Although the non-existence of these language versions has not created great problems in the process of implementation of the BiH Constitution, the BiH political elites may not be proud of the fact that there are no official versions of the most important legal document in the official languages.

“Changes” and “amendments” are legal terms used to define certain changes in a legal act, in which case the relevant legal act which is given a new form will remain in force.³⁹²⁴ However, “changing” and “amending” the RBiH Constitution by the Dayton Constitution did not mean that any provision of the RBiH Constitution would remain in force, although the use of the term “amendments” leads to such an observation of this problem (the RBiH Constitution versus the Dayton Constitution).³⁹²⁵ The reason for making such a conclusion is the use of the term “supersede”, which makes it clear that the new constitution will take the place of the former constitution. At the same time, the use of the term “amending” should be viewed in the context of the principle of State continuity (Article I.1 of the BiH Constitution). If the Framer of the Constitution had intended to leave in force some provisions of the Republic Constitution then the Framer would have acted it in some other manner when it comes to the legislative-technical terms. The entire replacement of the constitutional act is referred to in Article 2 of Annex II to the BiH Constitution, according to which: All laws, regulations, and judicial rules of procedure shall remain in effect, but not the constitutional provisions.³⁹²⁶ Moreover, even the Constitutional Court of BiH has taken the position that the Republic Constitution ceased to be in effect.³⁹²⁷

By signing the General Framework Agreement for Peace in Bosnia and Herzegovina (Article 5 of the General Framework Agreement for Peace in Bosnia and Herzegovina in conjunction with Annex 4) the Republic of Bosnia and Herzegovina recognised itself, as well as the Federation of Bosnia and Herzegovina and the Republika Srpska. Vice versa, by signing the BiH Constitution, based on Article I.1 of the BiH Constitution, the Federation of Bosnia and Herzegovina and Republika Srpska have recognised the continued

and uninterrupted international personality of Bosnia and Herzegovina.³⁹²⁸ Pursuant to Article I.3 of the BiH Constitution, the Federation of Bosnia and Herzegovina and Republika Srpska have been recognised as Entities,³⁹²⁹ including their respective constitutions (Article XII.2 of the BiH Constitution). In fact, this amounted to their degradation in terms of the State organisation since they were granted a sort of status similar to federal units.³⁹³⁰ Consequently, Article XII.2 of the BiH Constitution has placed an obligation on the Entities to amend, within three months from the entry into force of this Constitution, their respective constitutions and thus ensure their conformity with this Constitution in accordance with Article III.3(b).

The Entities have failed to comply with their obligation to amend their constitutions. Only after the decisions of the Constitutional Court in Case No. U 5/98 had been adopted and due the fact that in the course of a long lasting and unsuccessful negotiations process³⁹³¹ the Entities fully rejected harmonising their decisions did the High Representative decide to impose the changes and amendments to the Entities’ Constitutions by bringing them in conformity with the BiH Constitution.³⁹³² Furthermore, even after the imposition of “international measures” for harmonisation of the Entity Constitutions, the Entities have taken no measures on their own in order to bring their constitutions in line with the BiH Constitution. Over time a practice has been established limiting the harmonisation of Entity Constitutions with the BiH Constitution only to the proceedings of abstract control of constitutionality before the BiH Constitutional Court in accordance with Article VI.3(a) of the BiH Constitution.³⁹³³