PRAVNI ZAPISI • Year I • no. 1 • pp. 38–73

CHARACTERISING THE DAYTON CONSTITUTIONAL MODEL – ON AN UNSUCCESSFUL CONSTITUTIONAL EXPERIMENT

Language: Bosnian

Dr. iur. habil Edin Šarčević
Vanredni profesor, Pravni fakultet u Lajpcigu
e-mail: edin@uni-leipzig.de

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Pravni zapisi, no. 1/2010, pp. 38-73

Original Scientific Article

DOI: 10.5937/pravzap1001038Q

KEYWORDS
Framework Agreement for Peace, Annex 4, Constitution of Bosnia and Herzegovina, constitution contracting, constituent people, constitutional antinomies, ethnocracy, human rights, state of emergency, European Convention on Human Rights, segregation, discrimination on the grounds of ethnicity, constitutional amendments, federal state, rule of law, sovereignty, justice, procedural legitimacy.

ABSTRACT
The Bosnian-Herzegovinian constitutional system emerged as a specific type of internationalised legal order. Its essential features are „pacification“ by means of agreement and a constitution adopted by way of an international treaty. This reconstruction consisted in connecting The Day- ton Peace Agreement and the Annex 4 on characteristic points of the constitutional model. The further characteristic of the „Dayton Constitution“ is due to the form of the provisions on Human Rights and the normative- technical analysis of the Annex 4. The analysis leads to the conclusion that other characteristics of the Dayton Constitution, Democracy and Ethnic consensus in the competence of the parliamentary bodies, the assistance from outside and the loss of sovereignty in state affairs, all represent violation of human rights and lead to continuous production of legal antinomies in constitutional solutions.

The question is, what elements in the case of a „constitutional intervention“ by means of force should not be neglected. Two points seem to be relevant: the international law and the national law aspect. The first concerns the question of the meaning of „constitutional interventions“, the second, the effectiveness of the Dayton Agreement.

The result: the international agreement on a constitution can in terms of „external intervention“ be only useful and potentially considered successful if the assumptions of written constitutional law are built consistently. The proclamation of the Rule of Law is not enough. Much more important is the creation of a state-organisational structure that makes the state power dependent on citizens (demos) and not on the „citizen groups“ (ethnos). In this sense, the constitutional principles contain a potential of modernisation. „Intervention under international law“ through constitution-making, will only be successful if „justice“ and not the „recognition of events“ is taken into account.

The cornerstone of a meaningful international intervention in the form of a Constitution, thereby creates a constitutional tradition and constitutionaly institutionalised human rights. This will reinforce the interdependence between the state, the Constitution and the nation, in the form of a radical republican system.

Within the national system, the effectiveness of the agreed system appears to be problematic. The question is whether the living constitutional system can provide a long-term stability of the agreed constitutional values and ensure a long-term peace. This constitutional structure is all in all by means of the Annex 4 antinomically formulated in such a way that the existing constitutional antinomies would lead to strengthening of the political chaos and legal inefficiency of the overall policy. With such diagnosis, it is easy to conclude that any intervention in fundamental constitutional principles can only be considered useful if the fundamental constitutional structures should change in such a measure that we can no longer speak of the same constitutional model. If, how- ever, the corrections taken within the given model be superficial, the pillars of technocracy will be left intact, and a kind of „permanent war“ may be anticipated, from which only the political, economic and religious elites can benefit.