© Springer-Verlag Berlin Heidelberg 2015Siniša Rodin and Tamara Perišin (eds.)Judicial Application of International Law in Southeast Europe10.1007/978-3-662-46384-0_7
The Application of International and EU Law in Bosnia and Herzegovina
Faculty of Law, University of Zenica, Fakultetska 3, 72000 Zenica, Bosnia and Herzegovina
The application of international law in national legal systems is a well-established question in legal literature.1 Both the globalisation and internationalisation of legal systems have given rise to questions that need to be answered legally, by laws and jurisprudence, and in legal literature.2 The question of the enforcement of inter- or supranational obligations is directly linked to this application.3 The goal of Bosnia and Herzegovina (BiH) to become a member of the EU has raised the question of the application of supranational law (EU law) in BiH, both in terms of preparing for membership and the country’s status after entering the EU.4 The Europeanisation of the national constitutions is already taking place.5 For BiH, this is evident in the signing of the SAA and confirmed by the jurisprudence and literature oriented towards EU law. Formally, the EU is not a state and the treaties are not a constitution.6 Nevertheless, the European treaties deal with constitutional questions and provide answers in a legally binding way.7 At the same time, international law has taken on the characteristics of constitutional law.8 Hence, we have to clarify the relationships between international, supranational and constitutional competences, particularly the competences of the courts, the ECtHR (European Court of Human Rights), the ECJ (European Court of Justice) and national constitutional courts.9 The need for such clarification is also based on the principle of the effectiveness of legal protection as an integral part of the principle of the rule of law.10 The complexity of jurisdiction at the multi-system level can be described as ‘conflicts among courts of different levels in networking legal systems’.11 Other Member States of the EU and their constitutional courts likewise struggle with the hierarchy of norms and clarification of competences, both in terms of EU law12 and international law.13 It is remarkable that the Solange decision14 of the German Constitutional Court of 1974–1986 is used as a model both in jurisprudence and legislation.15 The key idea here is the ‘model of co-operation’ (Kooperationsverhältnis) instead of extremely divided competences creating a strict hierarchy among different legal systems.16 Articles 52 and 53 of the Charter of Fundamental Rights of the EU guarantee a minimum standard of protection and acknowledge the guarantees provided by the ECHR.17 The Charter of Fundamental Rights of the EU aims to achieve coherence in the protection of human rights at the different national, supra- and international levels.18 To this end, the ECJ and ECtHR respect each other’s decisions to ensure the greatest possible coherence of human rights standards by respecting other courts that are responsible for the protection of human rights.19
The application of international law is of particular interest for BiH, as the Constitution itself is part of an international agreement: Annex IV of the General Framework Agreement for Peace in Bosnia and Herzegovina (The Dayton Peace Agreement or DPA).20 The Constitution entered into force in December 1995 with the signing of the DPA, which was never ratified by the Parliament of BiH. The Constitution was written in English without an official translation into the official languages of BiH (Bosnian, Croatian and Serbian). Therefore, only unofficial translations are in use, which leads to different understandings of certain provisions or terms.21 BiH is characterised by a complex state structure, as defined in the Constitution, with two entities (the Federation of BiH and Republika Srpska) and the District of Brčko. Republika Srpska is more centralised while the Federation of BiH is more decentralised and consists of ten cantons. Hence, altogether 13 constitutions exist within BiH: one for each entity and each canton in addition to the constitution at the state level. Due to this complex state structure, it is not easy to provide a comprehensive overview of the application of international legal sources in BiH.
The work in this book raises various crucial questions yet to be solved, such as the incorporation of international legal sources into the national legal system, the question of their direct effect, the position of international agreements within the national hierarchy of laws, which level of authority is competent for adopting legislative measures on the basis of the Stabilisation and Association Agreement (SAA), the need for a supreme court at the state level to become a member of the EU, etc. All these questions are classical issues of international and EU law. The additional complexity is caused by the constitutional structure of BiH itself. Nevertheless, the Constitution of BiH is open to development, and the goal of becoming a full member of the EU has advanced the application of international legal sources in BiH. The Constitutional Court of BiH (CC) does not always provide consistent conclusions or argumentation patterns, but it deals with crucial questions concerning the application of international law in the national legal systems. At the very least, the jurisprudence of the CC and the ECtHR has encouraged legal literature to become involved in these discussions.
2 Monistic and Dualistic Approaches in the Legal System of BiH
The incorporation of international law in national law is characterised by the two classical theories of monism and dualism.22 In the theory of monism, only a single legal system of international and national law exists, with international law at the top of the hierarchy.23 A transformation into the national legal system is not required and international law has precedence. From the dualistic perspective, international and national law represent two separate levels. Hence, an act transforming international law into the national legal system is needed.24 The practical impact of these theories can be put aside, in that moderate dualistic and monistic approaches give rise to the same results.25 From both perspectives, the effect within the national legal system has to be clarified. The Constitution of BiH does not explicitly provide for a monistic or dualistic approach towards international law. The non-ratification of the DPA formally speaks in favour of a monistic method.26 However, ratification is only one indicator. With regard to other international legal sources, the conclusion depends on the interpretation of several provisions of the Constitution.
The Constitution of BiH explicitly qualifies the incorporation of international legal sources within the national legal system in Article III/3(b) with regard to general principles: ‘general legal principles are an integral part of the legal system of Bosnia and Herzegovina and its entities’. Besides general principles, the Constitution explicitly mentions international agreements only with reference to human rights. All other international agreements need to be interpreted. According to Article II/2 of the Constitution of BiH, the rights and freedoms foreseen in the ECHR and its protocols have to be applied directly. These legal sources overrule other laws. Pursuant to Article II/4 of the Constitution of BiH, the rights and freedoms foreseen in the international agreements in Annex I of the Constitution are guaranteed to all people in BiH without discrimination. The title of Annex I is Additional Human Rights Agreements to be applied in Bosnia and Herzegovina. Articles II and III seem to follow a monistic approach of a unified legal system consisting of international and national law which apply directly within the national legal system.27
The question is whether the Constitution of BiH allows a general decision in favour of the monistic theory or if argumentum e contrario it is reasonable that the legislator has limited this understanding to the legal sources explicitly named. Thus, all other provisions are dedicated to the dualistic theory. An analogous application to all other legal sources could be explained by Article VI/3(c) of the Constitution of BiH. This provision enables the CC of BiH to judge if a ‘law which is the basis for a decision is in line with the constitution, the ECHR and its protocols or with the laws of Bosnia and Herzegovina or with a general rule of public international law crucial for the decision of the court.’
The question arises as to whether the general rules of public international law, Article VI/3(c), and the general principles of international law, Article III/3(b), can be treated equally. On the one hand, the question is whether international law and public international law both comprise only public law, and on the other hand, whether the rules and principles are comparable in terms of their nature.
The dualistic system is dealt with in Article IV/4(d) of the Constitution of BiH, which requires ratification by the Parliamentary Assembly, whereupon the Presidency of Bosnia and Herzegovina, upon obtaining the formal consent of the BiH Parliamentary Assembly, decides on the ratification of an international treaty (Article V/3(d)). Once a decision is made, it is signed by the Presidency of BiH and published in the Official Gazette of BiH (the section on international treaties). This understanding is supported by Article 17 of the Procedure for the Conclusion and Execution of International Treaties Act.28 According to this, the Presidency needs the ratification of the Parliamentary Assembly before acting.29 Pursuant to Article 22 of the aforementioned law, an agreement comes into full force and effect if it complies with the provisions of the agreement, the law and the ratification.
Jointly and severally, the Constitution of BiH is based on a combination of monistic and dualistic approaches. The monistic approach relates to legal sources of international law with direct effect specified in the Constitution, while other legal sources of international law are covered by a moderate dualistic understanding.30
3 International Law in the Hierarchy of Laws in BiH
3.1 The ECHR and Its Protocols as Part of the DPA
A remarkable internationalisation of human rights has taken place and has given rise to questions such as direct effect and supremacy in a world of multilevel legal systems.31 The protection of human rights has been implemented and intensified by legislation and jurisprudence at all these levels, with the consequence of an overlapping of legal protection. Meanwhile, we can speak about universal rights32 and the individual being partly acknowledged as a subject of international law.33 Without any doubt this triple dimension of protection (national, supra- and international) is positive, although we have to clarify the questions that arise. The application of the ECHR and its protocols in national legal systems is not answered in the ECHR itself, which gives rise to the need for interpretation.34 The Member States of the EU and their constitutional courts try to give answers to this question.35 One of the guides here is the German Constitutional Court with its well-known Solange decision and implementation of the co-operation model (Kooperationsverhältnis). Such innovative decisions have supported the development of human rights protection and guarantees. Legislators have now acknowledged this with multilevel guarantees, as provided for in Article 6 TEU.36
The Constitution of BiH explicitly gives direct effect to the ECHR and its protocols. Article VI/3(c) enables the CC to examine if a law is in line with the general rules of international law, which indicates the primacy of the general rules of international law over national law. This leads to the conclusion of the precedence of international law, given the Constitution declares the direct effect of international law. According to Article II/2 of the Constitution of BiH: ‘The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina … and have priority over all other law.’ International conventions listed in Annex I to the Constitution of BiH that provide protection to human rights are considered to be at constitutional level due to their formal inclusion in the Constitution.37 However, the wording of Article II/2, ‘whereby the rights and freedoms set forth in the ECHR shall have priority over all other law’, does not clarify if the ECHR has priority over the Constitution itself. Some authors argue in favour of the supremacy of the ECHR over the Constitution.38
This question was the issue in Case No. U 5/04 before the CC of BiH. The Court had to decide if it was competent to judge on the compatibility of the Constitution with the ECHR. According to Article II/2 of the Constitution of BiH, the ECHR is directly applicable.39 However, the Court restricted its competence to the interpretation of the Constitution and not an examination of the ECHR itself. In an obiter dictum, it concluded that the ECHR cannot have priority over the Constitution of BiH, because it entered into force by means of the Constitution itself. This obiter dictum creates a formal hierarchy limiting the power of the Parliament. The Parliament has the legitimacy to change the Constitution to declare an integration of international law in national legislation.
The question of the relationship between the ECHR and the Constitution is of great importance for BiH, especially in the light of the recent Sejdić and Finci judgment of the ECtHR.40 The conclusion of this decision is that the provisions of the Constitution of BiH violate Article 14 ECHR together with Article 3 Protocol No. 1, as well as Article 1 Protocol No. 12, because of the ineligibility of the applicants to stand for election to the House of Peoples and the Presidency of BiH due to their Roma and Jewish origins. The compliance of electoral rights with this decision is a condition sine qua non required by the EU for the SAA41 with BiH to enter into full force and effect. This precondition set by the EU requires amendments to the Constitution which are difficult to achieve in legislation. The CC could have supported the legislative process by declaring the supremacy of the ECHR. Therefore, the supremacy of the ECHR over the Constitution combined with the direct effect expressly provided for in Article II/2 of the Constitution of BiH would eliminate such discrimination in a more effective way. In addition, the CC has to recognise the supremacy of EU law as the result of its direct effect at the latest when BiH becomes a full member of the EU.42 The protection of human rights on the basis of the ECHR was recognised as a general principle of EU law and as part of the rule of law by the ECJ as far back as the 1960s and subsequently in countless decisions.43
3.2 Other International Agreements in the Annexes of the DPA
For other sources of international law in the legal system of BiH, there is no explicit provision regulating the hierarchy of laws. Since the Constitution of BiH is contained in an international agreement (the DPA), the question has arisen whether other Annexes of the DPA are at the same legal level as the Constitution itself. In decisions U 7/97,44 U 7/9845 and U 40/00,46 the CC decided the Annexes of the DPA supplement each other and cannot be examined in terms of their inconsistency with the Constitution, confirming the other Annexes of the DPA and general legal principles of international law to be at a constitutional level.47 This opinion is supported by the Constitution in Article III/3(b), acknowledging general principles of international law to be an integral part of the law of BiH and its entities.
3.3 Other International Agreements Not Contained in the DPA
For other international agreements, besides those listed in Annex I of the Constitution of BiH, the CC decided (Decision U 5/09):
there is no constitutional provision regulating the introduction of international treaties in domestic law as condition for their applicability; in particular, the constitution does not prescribe to ‘transform’ international rules in domestic law through a law. If consequently international treaties on human rights have a quasi-constitutional rank, there is no indication of a simply ordinary legislative rank for the other treaties in the constitution.
Thereby the CC excluded the argumentum a contrario that international treaties on human rights explicitly enjoy constitutional rank and therefore all other treaties are at the level of regular laws. It seems that the court presumes international agreements to be below constitutional rank but above regular laws, although there is no deeper argumentation or any legislative basis provided to support this view.48
3.4 The SAA for BiH
The SAA for BiH does not give rise to any doubt as to its direct effect. The Parliament approved this agreement in accordance with the internal provisions of BiH. Hence, it can immediately enter into full force and effect. Individual provisions of this agreement as well as the Interim Agreement have already entered into force and effect with the signing of the SAA.49 The EU usually ratifies ‘mixed agreements’ directly after the Member States have done so, so that there is no partial application of the agreement on the territory of the EU.50 France was the last Member State to ratify the SAA with BiH on 10 February 2011.51 However, the EU will not ratify the SAA until BiH implements the ECtHR Sejdić-Finci decision, because without its implementation BiH violates Article 1 of the Interim Agreement.
The position of the SAA within the hierarchy of laws is not regulated. Thus, it has to be determined by interpretation. The first indicator is the direct effect of the SAA as acknowledged by the Parliament. Secondly, Article 28 of the Procedure for the Conclusion and Execution of International Treaties Act provides that ‘international agreements which establish direct obligations for Bosnia and Herzegovina are executed by the competent institutions of the state administration whose competence covers areas regulated by those agreements’. According to the subsequent Article: ‘International agreements which are concluded by Bosnia and Herzegovina, and which establish obligations for domestic legal persons, are directly executed by those legal persons’. It is clear that the legal system of BiH recognises the direct effect of international agreements outside of the system of protection of human rights and general principles of international law that establish obligations which nationals of BiH may directly refer to domestic institutions. However, neither the Constitution nor other provisions in the legal system of BiH explicitly solve the problem of which law is applicable in the case of a conflict between national law and the provisions of international treaties which do not regulate human rights. Generally, the direct effect of an international treaty would be annulled in the event of a conflict of its provisions with national law, and the latter would be applicable. This argument may be supported by Article 32 of the Procedure for the Conclusion and Execution of International Treaties Act, according to which an ‘international treaty will temporarily or permanently cease in its application in accordance with its provisions or the general rules of the international law of treaties’. However, a conflicting national law cannot eliminate the application of international agreements. Finally, the Constitution of BiH consistently gives the provisions of international agreements which are directly applicable the power of supremacy over national laws. Therefore, there is no reason for international agreements which gain direct effect through the internal procedure of ratification to have the same legal power as regular laws, as then they could be derogated by the latter.
Secondary association law, according to the jurisprudence of the ECJ established in Sevince,52 is an integral part of EU law and can have direct effect under the same conditions as the provisions of the SAA. The ECJ has explained that the decisions of the Association Council (in the case of BiH, the Stabilisation and Association Council) are based on the Agreement, as the Association Council is an authority established by it with the responsibility for its implementation.53 The decisions of the institutions established by the SAA fulfil the goal of the Agreement,54 and consequently do not require any implementing act in order to have effect.55 In addition, the direct effect of secondary association law cannot be denied either because the provisions of the SAA do not have direct effect56 or because the decision of the Association Council was not published.57 In legal science, such a view of the ECJ is justified by the fact that the decisions of the institutions which adopted secondary association law are part of the international agreement by their nature, and therefore they have the same direct effect as primary association law.58 Consequently, secondary association law in the hierarchy of law within EU law is below primary association law, but at the same level as the SAA in relation to the national law of BiH.
The specific content, nature and purpose of the SAA, together with its direct effect and supremacy, give rise to complex legal questions with regard to its application and execution. As an example, Article 71(2) of the SAA provides that:
Any practices contrary to this Article shall be assessed on the basis of criteria arising from the application of the competition rules applicable in the Community, in particular from Articles 81, 82, 86 and 87 of the EC Treaty and interpretative instruments adopted by the Community institutions.
The direct effect of Article 72(2) would mean that BiH, when applying national competition law (which is harmonised with EU law), needs to apply the decisions of the Commission and ECJ adopted on the basis of its provisions. This does not only cause practical problems, bearing in mind that there is no official translation of these decisions in any of the three official languages in BiH and nor are people who finished law school more than 3 years ago educated in any EU Law, but this obligation also requires a transition of legislative powers to the EU, stating that BiH is obliged to directly apply all competition rules, not only from primary but also from secondary EU law, as well as future provisions and interpretations adopted by the Commission and the ECJ. Such a conclusion is based on the wording ‘in particular’, which shows that a whole set of competition rules from EU law is meant by Article 71(2) SAA, comprising those becoming applicable on the basis of the SAA at the moment of ratification, as well as those which are going to be adopted by the EU legislature in the future.59
The confirmation of such an interpretation can also be found in the ‘harmonisation clause’ in Article 70 of the SAA, which obliges BiH to ‘ensure that its existing laws and future legislation will be gradually made compatible with the Community acquis. Bosnia and Herzegovina shall ensure that existing and future legislation will be properly implemented and enforced’. When speaking about the acquis, it is clear that it also includes provisions at the EU level which are adopted after the ratification of the SAA, as in the contrary case, BiH would by the time it became a full member of the EU (which could take several years) have the legal status it had in 2008. An additional confirmation may be found in Article 43 of the Competition Act of BiH,60 which provides that ‘For the purpose of the assessment of a specific case, the Council of Competition may use the case law of the European Court of Justice and decisions of the European Commission’. While this provision proves that national institutions are going to harmonise the domestic legal order with current and future EU law, it is noticeable that the formulation of Article 43 of the Competition Act leads to the conclusion that the Council of Competition may, but does not have to, take into consideration the jurisprudence of the ECJ and the Commission. Such a solution is reminiscent of the practice of the CC of Hungary when it was a candidate country and ratified an Association Agreement with the Member States and the EU. At that time, the CC decided that Article 62(2) of the Association Agreement signed between Hungary and the EU, which in its formulation corresponds to Article 71(2) of the SAA signed between BiH and the EU, represented an ‘unconstitutional transfer of legislative powers as a part of state sovereignty to another sovereign body’, and therefore the criteria listed in the Article could not be applied directly, but might be ‘taken into consideration’.61 One solution for the relationship of the Constitution of BiH to the SAA can be found in the Kupferberg 62 decision, where the ECJ pointed out that according to international law the parties needed to execute the agreement bona fide. Therefore, every party may choose the legal means which are appropriate to fulfil the commitments made, unless through interpretation of the agreement in terms of its nature or purpose it arises that measures listed in the agreement need to be conducted. The obligation specified in the harmonisation clause of Article 70 SAA demand harmonisation at two levels for BiH:
harmonisation of entity provisions in order to create the preconditions for the full freedom of movement of goods, persons, services and capital according to Article I/4 of the Constitution of BiH;
harmonisation of entity legislation with EU law with the goal of entry into the new market.63
As the example from competition law shows, certain provisions of the SAA have direct effect in the legal system of BiH, but the whole national law when implemented and applied also needs to be interpreted in line with EU law.64 It needs to be remembered that the harmonisation clause became obligatory with the signing of the SAA, regardless of the entry into force of the complete SAA.
4 Direct Application of International Agreements Listed in Annex I of the Constitution
A further interesting question the CC has had to clarify is whether the international agreements listed in Annex I of the Constitution of BiH are applicable independently or only in combination with the prohibition of discrimination contained in Article II/4 of the Constitution of BiH. Article II does not expressly give an answer to this question. According to Article II/1 ‘the highest level of internationally recognized human rights and fundamental freedoms’ shall be ensured, while according to Article II/7, ‘BiH shall remain or become party to the international agreements listed in Annex I to this Constitution’. Consequently, Article II/4 on ‘Non-discrimination’ is the only paragraph expressly regulating the applicability of the international agreements listed in Annex I: ‘the enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination’.
The CC in its most recent decisions denies the independent application of the international agreements listed in Annex I.65 In the view of the Court, the international agreements, unlike the ECHR, which is directly applicable under Article II/2, are only applicable if the applicant claims that he has been discriminated against in the enjoyment of the rights and freedoms guaranteed in the international agreements. Steiner and Ademović give some convincing arguments against this view. Firstly, Article II/2 on ‘Non-discrimination’ does not exclusively refer to Annex I, but to Article II as a whole. It is unclear why the right of refugees to freely return to their home guaranteed by Article II/5 applies independently of the prohibition of discrimination, and the rights and freedoms contained in the international agreements do not.66 In addition, the application of certain rights and freedoms only in combination with the prohibition of discrimination makes no sense. For example, bearing in mind Article 2 of the Optional Protocol No. 2 to the International Covenant on Civil and Political Rights, which in principle prohibits the imposition of the death penalty in a time of peace, we could come to the absurd conclusion that the violation of this right might be established only if the death penalty was imposed on individuals in a selective and discriminatory manner.67
5 The Application of ECJ and ECHR Judgments by the Constitutional Court: The Example of the Adoption of Private Law
Constitutional rights are deemed as a guarantee ensured by the state authorities, and human rights are no longer only the protection of rights against breaches by state authorities. In addition, the direct and horizontal effects of international law on national and private law are increasing. This is evident in private law relations, bearing in mind that the state needs to ensure constitutional rights but is not competent in the adoption of private law. The Constitution of BiH in Article III/1 lists exclusive competences and in Article III/5 provides certain additional competences of the authorities. All state competences not expressly assigned to the state level are the responsibility of the entities in accordance with Article III/3(a). Thus, BiH has four Labour Acts (three established by the entities and the District of Brčko, and one at the state level)68 and also three company acts (one for each entity).69 In addition, private law acts assumed in the basis of succession from Yugoslavia are considered to be entity acts, such as the acts on obligations.70
Altogether the division of competences between the state and entity levels in Article III is not clear and has to be interpreted.71 Interpretation is also needed for competences established outside of Article III. A further question is which level is responsible for the enforcement of international obligations established by the Constitution at the state level. The focus here is on the guarantee of human rights and fundamental freedoms in accordance with Article II, as well as market freedoms in accordance with Article I/4.
According to Article I/4, neither the state nor the entities shall impede the full freedom of the movement of persons, goods, services, and capital throughout BiH. This provision on the one hand requires the creation of a ‘free area’ in the territory of BiH (negative integration), and on the other hand the adoption of all necessary measures in order to establish market freedoms throughout BiH (positive integration). The CC has not specified the requirements of Article I/4. Thus, it considers that an interpretation in line with EU law and jurisprudence is needed.72
To handle constitutional competences, the CC uses the theory of ‘implied powers’.73 The implied powers theory does not allow intervention in the existing division of powers, but supplements the execution of explicitly listed competences.74 There is a weakness in the theory of implied powers if there is no common understanding, which was made clear by the CC in its statement:
Bosnia and Herzegovina, functioning as a democratic state, was authorised to establish, in the areas under its responsibility, other mechanisms, besides those provided in the constitution of Bosnia and Herzegovina, and additional institutions that were necessary for the exercise of its responsibilities.75
The question is whether common responsibility means shared competence for the regulation of the matter. The more recent practice of the CC supports the model having joint obligations.76 Previously, the Human Rights Commission of the CC expressly established shared competences.77 The Constitution does not contain an exhaustive list of shared competences, as is the case with exclusive competences. The Constitution provides shared competences for co-operation between the entities and the state, e.g. Article III/2(b) or Article III/2(d). With shared competences, more flexible and dynamic solutions between the state and entities can be achieved.78 Therefore, the transformation of common responsibilities into shared competences has been accepted in jurisprudence and the literature.79 The criteria of the necessity of adopting acts in order to fulfil constitutional obligations has been introduced and examined on the basis of the principles of subsidiarity and proportionality.80