E. Summary and Opinion

The applicability or effectiveness of the BiH Constitution has been denied for mainly three reasons: firstly, there are claims that the Constitution was made in a manner that is undemocratic and by way of violating the RBiH Constitution; secondly, the Constitution contains norms that are contrary to international law; thirdly, it has proven to be completely unsuitable in practice. These objections are definitely justified. However, the objectors failed to consider the constitution-making procedure, its contents and applicability within the context of extremely difficult and complex circumstances taking place during the peace negotiations. In an effort to bring peace to the region, it was necessary to take several factors into consideration: the geographic distribution, including fluctuating front-lines; military balance of forces; political conflicts among the prospective mediating forces; availability of sources for pressure and reward – all of which was aimed at urging the direct parties in conflict to accept the proposal for settlement; as well as humanitarian activities in the war-stricken area and treatment of war crimes.⁷³ Due to the circumstances described above, the demands for a one hundred percent fair, legal and text- book example constitution were unrealistic. In the stage of armed conflict and in the early days of the post-war period this constitution required the warring parties to be considerate, reasonable, self-critical and humane, and it even required the capability for reconciliation. However, these are the behaviours and characteristics that the war opponents, by the very nature of things, do not posses when in the passion of battle. The subsequent scenarios according to the ‘what would happen if’ principle have only a limited effect on the quality of the solution that was really found, particularly in a situation where no realistic alternative is offered.

In a situation as described above, the mentioned weaknesses should not affect the applicability of the BiH Constitution. As far as the genesis of the constitution is concerned, it is true that the procedures and competencies for amending the constitution, which were stipulated under the RBiH Constitution, were not complied with. Therefore, a major objection refers exactly to an insufficient democratic legitimacy which, as a rule, is acquired through the participation of competent constitutional bodies representing a people as a sovereign. Nevertheless, the BiH Constitution – from a substantive point of view – was approved by the representatives of the largest part of the population, although the Constituent Assembly was not convened. We should take account that both Entity parliaments and the Republic Parliament, with the latter elected in accordance with the RBiH Constitution – and in somewhat reduced numbers

– voted separately for the BiH Constitution.⁷⁴ An excuse for not complying with the formal and legal requirements from the RBiH Constitution may be associated with the difficult international legal crisis the competent bodies were facing, and that situation called for an end to the armed conflict, as admitted by famous critics.⁷⁵ Therefore, we could, by supporting the opinion of Mark,⁷⁶ talk about “a revolutionary replacement” of the RBiH Constitution, or, as per the opinion of Maziau⁷⁷ “…la signature du Traité de Dayton vaut revolution juridique.” Yee⁷⁸ also refers to similar circumstances that occurred at the time of the making of the U.S. Constitution and he also makes the point that in periods of crisis, the “convenience” of a normal procedure needs to be temporarily sacrificed.

The issue of the legitimacy of the BiH Constitution may be assessed only to some extent based on the constitutional and international legality or illegality of the RBiH secession from the Socialist Federal Republic of Yugoslavia.⁷⁹ To be more precise, this process was not conducted in the form provided for under the SFRY Constitution – neither was it conducted accordingly in other former republics that seceded from the federation – because such a procedure was not envisaged at all. However, the SFRY Assembly,⁸⁰ in the first sentence of the normative part of the Constitution,⁸¹ provided for a principle of self- determination of “people” (not Republics) of Yugoslavia, including “the right to secession”. Unlike the preceding constitutions, which were still referring to the “territories”,⁸² the 1974 SFRY Constitution recognised the statehood (Staatlichkeit) of the republics (Article 3). However, this constitution made a legal distinction between people and republic;⁸³ which, as late as in the conflict, became clear even to unengaged observers – not only that the national borders failed to match the borders of the republics in legal terms, but they also failed to match each other in factual terms.

Pursuant to Article 1 of the SFRY Constitution, the SFRY was “a federal state, as a state union of voluntarily united peoples, their socialist republics and

socialist autonomous provinces” and it consisted of the mentioned republics and provinces (Article 2). Its territory was “unified and composed of the territories of its socialist republics” including its outer borders that could be changed only upon the consent of all the republics and provinces (Article 5, paragraph 3). Given such regulations, in order to consider “the secession” from a federation, a constitutional act, Article 2 of the SFRY Law would have to be amended.⁸⁴ On the other hand, the right of people to secede from the SFRY would be completely meaningless if there was a willingness to connect the exercise of that right with the approval to amend the constitution, which had to be given by the Federal Council of the SFRY Assembly with the consent of all the assemblies of the republics and provinces.⁸⁵

Except for Bosniaks who did not aspire to create their own state but only to preserve the survival of the former Republic of BiH as an independent state, all other peoples claimed their right to self-determination. This fact should urge us to think about it. Additionally, it should be mentioned that the notion of people having the right to secession is very imprecisely defined; the same applies to the international-legal admissibility of using such a right (for example in the form of secession), including individual and collective rights arising from that right, such as statutes of autonomy or federalisation.⁸⁶ However, there is unified opinion that secession, even a forceful one if needed, is justified only in exceptional circumstances, such as protecting an ethnic group from grave discrimination.⁸⁷ And vice-versa, in the interest of stability of the community of states and for the reason of an international legal ban on violence, it may occur that secession is necessary even at the price of the territorial integrity of the relevant state.⁸⁸ In the background of the aforementioned, in the interest of all the peoples of the region, being in a conflict that the former Yugoslavia was not able to avoid, and given an unavoidable dispute between the postulate of the territorial integrity of the Yugoslav federation and the republics on the one hand and the said right to secession of people on the other hand, the first priority should have been a peaceful solution.

Within the events preceding the adoption of declarations of independency, Slovenia and Croatia, being more and more dissatisfied with either real or experienced Serb domination in the Yugoslav federation, were trying to contribute to further decentralisation of the federal State and their aim was confederation, but the Serbian representatives in the federal institutions opposed to that plan.⁸⁹ The secession of Slovenia, Croatia and, at some later point, of Bosnia and Herzegovina, at the first moment was not welcomed, neither by the community of nations nor by interested international organisations. They feared the consequences of the disintegration of an ethnically mixed territory, and the territory of Bosnia and Herzegovina was of that kind. The states of the European Community had differing opinions concerning the issue of whether to recognise the republics that seceded from the Yugoslav federation as sovereign states or not.⁹⁰ Due to the use of force by the JNA and futile negotiations attempts, this process was not named the secession but dismembratio (disintegration) which took place along the borders of the former republics that used to be internal borders.⁹¹ The intention was to punish the military aggression against the seceding republics. However, the consequences of such thinking were that the remainder of Yugoslavia was not considered a legal successor of the – already non-existing – international legal personality of the SFRY.⁹² Only after Slovenia and Croatia had undertaken to comply with the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union⁹³ did the EC and its members finally decided to recognise BiH.⁹⁴ The reason why the EC and its members decided to recognise Bosnia and Herzegovina was also the positive outcome of the referendum of BiH citizens for an “independent (…) Bosnia and Herzegovina,⁹⁵ (although the referendum showed threat attributes due to the boycott of Bosnian Serbs).”