The Constitution of Bosnia and Herzegovina is the constitution in international contractual form, since it is an integral part of a larger peace agreement signed by Alija Izetbegović, Franjo Tuđman and Slobodan Milošević, three presidents of countries involved in war in Bosnia and Herzegovina, as well as the representatives of European Union, United States, Germany, United Kingdom, France and Russia. This nature of the Constitution was also of vital importance for the Constitutional Court of Bosnia and Herzegovina, in its landmark decision on constituency of peoples, since it declared that the Constitution could be interpreted as a treaty defined in Vienna Convention on the Law of Treaties from 1969, which was of great importance in the interpretation of the Preamble of the Constitution.
The Preamble
The Preamble states, among other things, the commitment of Bosnia and Herzegovina to freedom, equality, tolerance and democratic institutions of government. It also states that the carriers of sovereignty are "constituent peoples", along with "Others" and "citizens of Bosnia and Herzegovina", which has also seen a great amount of debate between legal scholars over an apparent contradiction.
Articles
Article I - on Bosnia and Herzegovina: Continuation, Democratic Principles, Composition, Movement of Goods, Capital, Symbols and Citizenship
Article II - on Human Rights and Fundamental Freedoms: Human Rights, International Standards, Enumeration of Rights, Non-Discrimination, Refugees and Displaced Persons, Implementation, International Agreements and Cooperation
Article III - on Responsibilities of and Relations Between the Institutions of Bosnia and Herzegovina and the Entities: Responsibilities of the Institutions of Bosnia and Herzegovina, Responsibilities of the Entities, Law and Responsibilities of the Entities and the Institutions, Coordination and Additional Responsibilities
Annex II - on Transitional Arrangements: Joint Interim Commission, Continuation of Laws, Judicial and Administrative Proceedings, Offices and Treaties
Protection of Human Rights and Fundamental Freedoms
Besides the provisions stated in the Preamble, the Constitution protects the human rights and fundamental freedoms by defining them through "Enumeration of Rights", stating that the enjoyment of the rights and freedoms is secured to all persons in Bosnia and Herzegovina without discrimination on any grounds and by giving the supremacy of The Convention for the Protection of Human Rights and Fundamental Freedoms over all other law in Bosnia and Herzegovina. Also, the Constitution states that Bosnia and Herzegovina "shall remain or become party to the international agreements listed in Annex I to this Constitution", and in all there are fifteen of these international agreements. The Constitution also states that no amendment to the Constitution can eliminate or diminish any of the rights and freedoms referred to in Article II of the Constitution. The Constitutional Court of Bosnia and Herzegovina has made several notable decisions in the interpretation of these provisions, with most important being the "Decision on the Constituency of Peoples". Still there are great criticisms of the Constitution, stating that it is of discriminatory nature, since in many of its articles it discriminates against citizens that are not from "constituent peoples", such as the Article V which sets out the rules for the election of the Presidency of Bosnia and Herzegovina. There has been an attempt to challenge the Electoral law, which has the basis in the Constitution, which is seen as being discriminatory to "Others", as well as to "constituent peoples" to some degree, by trying to interpret the Article II in a way that the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols have the supremacy over the Constitution of Bosnia and Herzegovina itself. However, the Constitutional Court of Bosnia and Herzegovina declined this position in its decision number U-5/04. This has led Jakob Finci, the leader of Jewish community in Bosnia and Herzegovina, to file a suit against Bosnia and Herzegovina in front of European Court of Human Rights, which acknowledged his ineligibility for Presidency and House of Peoples to be in violation of the European Convention on Human Rights.
The Constitutional Court of Bosnia and Herzegovina
The Constitutional Court of Bosnia and Herzegovina is a special court sui generis, whose main role is to be the interpreter and guardian of the Constitution of Bosnia and Herzegovina, as stated in Article VI, paragraph 3 of the Constitution, and it is considered to be the highest judicial authority, since it has the appellate jurisdiction over issues under the Constitution arising out of a judgement of any other court in Bosnia and Herzegovina.
Amending the Constitution
In the Article X, defining the amendment procedure, the Constitution states that it can be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives. The Constitution does not say who has the right, and under what rules, to present the amendments to the Parliamentary Assembly. Also, in the paragraph 2 of the Article X, the Constitution states that the rights and freedoms, as seen in the Article II, cannot be derogated, as well as the paragraph 2 itself.
