Pluralism instead of territorial segregation

In the Constitutional Court’s view, the BiH Constitution clearly distinguishes constituent peoples (the last paragraph of the Preamble) from national minorities (Article II.4 of the BiH Constitution). Taking into account also Article I of the BiH Constitution, it follows that the BiH Constitution underlines the continuity of Bosnia and Herzegovina as a democratic multi-ethnic state. It is essential to clarify what a form ought to be given to this multi-ethnic state, in the context of the Peace Agreement as a whole. Next, the Constitutional Court concluded that it was essential to clarify whether the territorial division of the Entities implied also the territorial division of the constituent peoples.²⁰⁶ To answer this question, the Court took as a starting point the notion of “a democratic multi-ethnic state”. This notion must be construed in light of other constitutional norms and principles and, in particular, in view of the principle of democracy (Article I.2 of the BiH Constitution), as well as within the principle expressed in the Preamble according to which democratic governmental institutions and fair procedures best produce peaceful relations within a pluralist society.²⁰⁷ In this respect, a democratic system of authority requires, besides efficient and equal participation in government, the ability to compromise, too. Furthermore, a numerical minority must not be given an opportunity to enforce its will on a majority, for instance, by being granted the veto-power.²⁰⁸ Therefore, the designation of Bosniaks, Croats and Serbs as constituent peoples may be construed only in such a way that none of them can be recognised, by the force of the Constitution, as being a majority but that all of them, as groups, are equal; consequently, any special privilege for one or two of these peoples or any domination thereof in governmental structures is prohibited.²⁰⁹ In addition, ethnic homogenisation either through assimilation or territorial segregation is prohibited.²¹⁰ Territorial division among the peoples was not declared in the Peace Agreement as a condition to maintain peace. Actually, it follows from Article VII of the General Framework Agreement and Preamble of the BiH Constitution that peaceful relations shall be best established within a pluralist society based on respect for human rights and freedoms and, particularly, based on the right of all refugees and displaced persons to return to their homes of origin (Article II.5 of the BiH Constitution in conjunction with Annex 7 of GFAP). In view of the aforementioned one may say that the overall objective of the Peace Agreement was to facilitate the return of all refugees and displaced persons in order to re-establish the multi-ethnic society which had existed before the armed conflict, without any division on ethnic grounds.²¹¹