Inspired by human rights

“Inspired by the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, as well as other human rights instruments”

Through line 8 of the Preamble, the Framer of the Constitution announces the field of human rights at the international level and indicates as examples the most important instruments in the field of human rights, which are then also in the text of the Constitution, i.e., Annex I to the Constitution proclaimed these as binding.¹⁷⁷ Bosnia and Herzegovina is thus obliged to protect human rights.

Admittedly, the Universal Declaration of Human Rights is only mentioned in the Preamble, not in the remaining part of the text of the Constitution. Despite the normative character of the Preamble,¹⁷⁸ the Universal Declaration of Human Rights should not be proclaimed by using a bypass, i.e., the Preamble, in the sense of the general validity of the substantive constitutional law.¹⁷⁹ Unlike other lines, the Constitutional Court, generally, does not recognise in line 8 a constitutional basis for reviewing lower legal norms, since this line, according to the views taken by the Constitutional Court, does not contain the legal principles from which responsibilities, the scope of rights and duties or the role of the political parties could derive.¹⁸⁰

There is no need to return to the Universal Declaration of Human Rights nor refer to it because of the presence of large-scale guarantees for the protection of human rights in the BiH Constitution, and above all because of the obligation to apply the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, in the context of new developments in the Constitutional Court’s case-law, according to which the instruments enumerated in Annex I to the Constitution cannot be examined in an isolated manner but only in connection with the prohibition of discrimination,¹⁸¹ the question arises as to whether the application of line 8 of the Preamble can – at least in respect of the instruments enumerated in it, if not in respect of all other instruments indicated elsewhere in the Constitution – lead to their unlimited application regardless of the principle of equality. Such a move and interpretation would be finally too courageous taking into particular account the open wording of the aforementioned line of the Preamble (“inspired”, “as well as other human rights instruments,”). Finally, such a move is not necessary in order to apply the instruments from Annex I to the Constitution in an absolute manner, which we will explain additionally below.¹⁸²