A. Significance of the Preamble

The Preamble is an integral part of the BiH Constitution. This follows from its international and legal character, which is in conjunction with Article 31, paragraph 1 of the Vienna Convention on the Law of International Treaties, according to which the interpretive context of a treaty is composed of the preamble and annexes.⁹⁶ Additionally, the preamble of the Constitution may have a normative character;⁹⁷ it is not only an auxiliary tool for interpretation.⁹⁸ Therefore, the Preamble of the BiH Constitution also serves as a norm for the Entity Constitutions.⁹⁹

For explanation purposes, the Constitutional Court invokes, inter alia, the decision of the Canadian Supreme Court in the case Reference re Secession of Quebec,¹⁰⁰ wherein the Court establishes that “these constitutional principles support and maintain the constitution related text: they are vital unuttered postulates on which the text is based […]. Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood […]. The principles assist in interpreting the text and in describing the sphere of competencies, the scope of rights and obligations and the role of our political institutions”. Thus, “the principles are not purely descriptive for the government either.” By responding to the rhetorical issues in which the Supreme Court may use these fundamental principles that are incorporated in the Constitution through its preamble, the Court reconfirmed its position in the case Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997) 3, S.C.R.3, in paragraph 95. “As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law.”

A perception that the preamble has a normative character that marks the constitutional text is of special importance for the BiH Constitution. This preamble and its 10 lines give “10 commandments” to the BiH State and its citizens for a peaceful life together in a heterogeneous society, one that had suffered through the trauma of armed conflict, in order to ensure that something similar never happens again. The preamble is actually a catalogue of fundamental values and goals of international and constitutional law, as well as social values and goals that go without saying somewhere else, but in this case, they should leave a permanent mark upon the constitution and the future of the country.