The New Constitution of Bosnia and Herzegovina

Abstract

The Constitution of Bosnia and Herzegovina (hereinafter the New Constitution) 1 has come into being as Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina. It has been in effect since December 14, 1995, upon the signing in Paris of the latter. 2 The plain language of the New Constitution states that it is a constitution "determine[d]" 3 by the constituent peoples~the Bosniacs, the Croats, and the Serbs—and intended to continue the existence of the Republic of Bosnia and Herzegovina 4 and to amend and supersede 5 the Constitution of the Re-public of Bosnia and Herzegovina (hereinafter the Old Constitution). 6 Is it a legiti-mate amendment? Is it the result of a democratic constitution making process? The content and structure of the New Constitution indicate that it aspires to build one nation with two territorial component Entities-the Federation of Bosnia and Herze-govina and Republika Srpska-while preserving the sovereignty of the constituent peoples. What are the basic structures of this nation? Is it going to succeed? This paper comments on these issues in an effort to provoke debate. Part I argues that questions may be raised about the legitimacy of the New Constitution as a de-mocratic constitution and proposes that to alleviate such concerns the respective le-gislatures of the Entities "ratify" the New Constitution if they have not done so * Member of the New York Bar, J. D., 1993, Columbia Law School. 1 The Constitution of Bosnia and Herzegovina, Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina [hereinafter, the General Framework Agreement; together with the Annexes, the Dayton Peace Agreement], negotiated in Dayton, Ohio, November 1-21, 1995, signed in Paris on December 14, 1995. Transitional arrangements are not discussed herein. 2 The New Constitution, art. XII. 3 Ibid., preamble, last clause. 4 Ibid., art. 1(1). 5 Ibid., art XII(l). 6 This apparently refers to the Constitution of the Socialist Republic of Bosnia and Herzegovina of 1974, as amended. Although many things had taken place since the Republic declared its inde-pendence and dropped the term "socialist" from its name, it had not managed to formally overhaul its constitution until the New Constitution went into effect on 14 December 1995. This Old Con-stitution had over four hundred articles and many amendments, presenting a serious problem for its application. In 1993, several Bosnian scholars edited a consolidated constitution styled as the "Definitive Version" (PreliSdeni), which was published in the Official Gazette of the RBiH, 14 Mar. 1993. Citations below are to the Definitive Version (Unofficial translation of selected provisions by Vanessa Piggot).