Geneva and New York Basic Principles

The Framer of the Constitution relies on the basic principles agreed to in Geneva on 8 September 1995 and New York on 26 September 1995.¹⁸³ According to these agreements, the parties agreed to a framework for the peace agreement which was concretised subsequently in Dayton. These principles document “decisions taken by the international personalities in order to put an end to the Bosnian and Herzegovinian tragedy through negotiations as peaceful means, not military means”.¹⁸⁴ These basic principles were fully transformed into provisions of the Dayton Agreement, particularly the BiH Constitution. However, they do not have binding character, as follows from the Preamble. At any rate, the Preamble is not subject to codification, since it is considered to be a pre-constitutional activity.¹⁸⁵ Only in the event that there is a dilemma about the interpretation of the Constitution can the aforementioned principles be given certain significance for historical interpretation. In Case No. U 5/98, the Constitutional Court made clear that in the case of possible inconsistencies between the basic principles and subsequent text of the Constitution, the text of the Constitution would prevail. The Republika Srpska tried to challenge such supremacy of the Constitution by claiming that it was stated in the Geneva Basic Principles of 8 September 1995 that “each Entity will continue to exist under its present Constitution”. In response, the Constitutional Court rightfully indicated the remaining part of the text which reads: “as amended to accommodate these basic principles”. This is further elaborated, as noted by the Constitutional Court, in Article III.3(b) and Article XII.2 of the BiH Constitution in terms of an absolute supremacy of the BiH Constitution.¹⁸⁶