Comparing Vital Interest Clauses in The Constitutios of BiH and Belgium

UNIVERZITET U SARAJEVU
Fakultet političkih nauka
PROTECTION OF VITAL INTERESTS OF

THE CONSTITUENT PEOPLES
A COMPARISON OF THE RELEVANT CLAUSES IN THE CON-

STITUTION OF BELGIUM WITH SIMILAR ARTICLES IN THE
CONSTITUTION OF BOSNIA AND HERZEGOVINA
Thesis
Student: Johan Verheyden Mentor: Prof. Dr. Omer Ibrahimagić

PROTECTION OF VITAL INTERESTS OF THE
CONSTITUENT PEOPLES
A COMPARISON OF THE RELEVANT CLAUSES IN THE CON-

STITUTION OF BELGIUM WITH SIMILAR ARTICLES IN THE
CONSTITUTION OF BOSNIA AND HERZEGOVINA
Table of Contents
TABLE OF CONTENTS .............................................................................. I
ACKNOWLEDGMENTS........................................................................... IV
INTRODUCTION ........................................................................................ 1
Hypothesis............................................................................................................................ 2
Methodology ........................................................................................................................ 3
CHAPTER 1- CONSTITUTIONS ...............................................................7
What Is A Constitution? .................................................................................................... 7

Additional Constitutional Functions .............................................................................10
CHAPTER 2- BELGIUM AND ITS CONSTITUTION.......................... 13
Belgium, A unitary state ...................................................................................................13

Constitutional reform in Belgium ..................................................................................15
The first and second state reforms ................................................................................16
The third and fourth state reforms ................................................................................18
The continued reform process .......................................................................................20
CHAPTER 3- THE DAYTON CONSTITUTION OF BIH.................... 21
Dayton and the Constitution of Bosnia and Herzegovina........................................21
CHAPTER 4- THE CONSTITUTIONAL COURT DECISION............26
Agreement on the Implementation of the Constituent Peoples’ Decision of

the Constitutional Court of Bosnia and Herzegovina................................................28
I
Protection of Vital Interests of the Constituent Peoples
Vital interest protection ............................................................................................28

Article 1 - The legislature...................................................................................28
Article 2 - Minimum number of representatives in the Republika
Srpska National Assembly/Federation of Bosnia and Herzegovina
House of Representatives..................................................................................28
Article 3 - Composition of the Council of Peoples and the House of
Peoples and selection of members ..................................................................29
Republika Srpska (Council of Peoples)....................................................29
Federation of Bosnia and Herzegovina (House of Peoples) ...............29
Article 4 - Definition of vital interest: .............................................................30
Article 5- Parliamentary procedure for the protection of vital interests...30
a. Procedure for laws related to a vital interest as defined in the list
of Article 4 ....................................................................................................31
b. Procedure for laws related to a vital national interest if so
decided by two-third of one of the caucuses of the constituent
peoples in the House of Peoples/Council of Peoples..........................32
Distribution of key political functions ...................................................................33
Minimum Representation in the government of the Federation of Bosnia
and Herzegovina and of the Republika Srpska ....................................................34
Proportionate representation in all public authorities, including courts..........35
Final/transitional provisions....................................................................................35
Harmonization of principles with regard to the Cantons of the
Federation of Bosnia and Herzegovina ..........................................................35
Tasks of the House of Peoples and the Republika Srpska
Constitutional Commission ..............................................................................36
Interpretation of this agreement ......................................................................36
CHAPTER 5 - MECHANISMS TO PROTECT VITAL INTERESTS

IN BELGIUM...............................................................................................37
Article 54 Group Veto, Alarm-Bell Procedure............................................................38

Special Majority Laws.......................................................................................................39
Equal Representation and Participation........................................................................40
The Territorial Principe....................................................................................................41
The Belgian Court of Arbitration...................................................................................42
Jurisdiction of the Court of Arbitration.................................................................43
Regulations reviewed by the Court of Arbitration .......................................43
Regulations constituting the yardstick for review.........................................44
Method of referral......................................................................................................44
Actions for annulment.......................................................................................44
Preliminary issues................................................................................................45
Effects of judgments .................................................................................................46
CHAPTER 6 - MECHANISMS TO PROTECT VITAL INTERESTS

IN BOSNIA AND HERZEGOVINA.........................................................48
II
‘Vital Interests’ – in the entity constitutions.................................................................48

The Constitutional Court.................................................................................................50
Composition of the Bosnia and Herzegovina Constitutional Court................51
Jurisdiction...................................................................................................................52
Disputes arising out of a conflict of competence and an abstract
review of constitutionality .................................................................................52
Disputes of state organs .............................................................................52
Evaluation of constitutionality of laws ....................................................53
Initiation of proceedings ............................................................................53
Appellate Jurisdiction .........................................................................................54
Referral of an issue by a court ..........................................................................54
Unblocking of the Parliamentary Assembly ..................................................55
Federation of Bosnia and Herzegovina House of Peoples and Republika
Srpska Council of Peoples...............................................................................................55
Federation of Bosnia and Herzegovina and Republika Srpska Constitutional
Courts ..................................................................................................................................56
The distribution of positions among the constituent peoples..................................56
The Territorial Principle...................................................................................................60
Human Rights Chamber/Court and the Office of the Ombudsman.....................61
The Federation of Bosnia and Herzegovina Ombudsman Institution.....64
The Republika Srpska Ombudsman Institution ...........................................64
CHAPTER 7- THE USE AND ABUSE OF VITAL INTERESTS ..........66
The Use Of Vital Interest Clauses .................................................................................66

Abuse Of Vital Interests ..................................................................................................67
And What About The Others?.......................................................................................68
CONCLUSIONS ..........................................................................................70
The Assumptions And Their Proof...............................................................................70

Belgium And Bosnia And Herzegovina Offer Similar Protection Of Vital
Interests........................................................................................................................71
Belgium And Bosnia And Herzegovina Have Similar Institutions To
Ensure That This Constitutionally Guaranteed Protection ...............................72
Belgium And Bosnia And Herzegovina Succeed In Translating These
Legal Provisions Into Effective Policies................................................................72
BIBLIOGRAPHY ........................................................................................76
III
Acknowledgments
First, I would like to thank Aida, my patient and loving wife, who has been a
great source of strength all through this work and who gracefully put up with
the magazine articles, books and research papers strewn throughout the
house. Aida, thank you and I love you! And lest I forget it, your translation
skills and lecturing just made this thesis so much better.
Thanks also to my supervisor and mentor, Professor Dr. Omer Ibrahimagic,

not only for introducing me to constitutional law but for letting me proceed
my own way on this thesis until I needed guidance, and for being there with
pointed advise when asked!
I am also extremely grateful to all the people that gave generously of their
time and let me interview or bother them with minute details of constitutional
law. In particular, I would like to thank Dr. Haris Silajdzic, Dzemil Sabrihaf-
izovic, Eduard D’Aoust of the OHR and Professor André Alen for giving
generously of their time. The informal support and encouragement of my
family and many friends has been indispensable, and I would like particularly
to acknowledge the contribution of Dan Bronkhorst: without your proofread-
ing and helpful comments, this thesis would just not be the same; and Milica
Kranjcevic-Jensen and Aida Mulaomerovic, thank you for your help with
translating parts of this material.
IV
Introduction
Belgium, like Switzerland, is often cited in Bosnia and Herzegovina as an ex-

ample of peaceful co-habitation and a model for the organization of the state
and its highest institutions. There are a number of important differences be-
tween Bosnia and Herzegovina and Belgium, not in the least the fact that the
country when the European powers acknowledged it as an “independent and
perpetually neutral state” was a unitary and centralized state of Belgians – and not
of its linguistic groups. Belgium, through a series of constitutional reforms,
gradually devolved powers from the central government towards its regions
to become a federalized state in 1993.
Bosnia and Herzegovina, in spite of its long tradition as a multi-confessional,

multi-cultural and multi-national country, has gone down a different path
since the dissolution of the Socialist Federal Republic of Yugoslavia. Al-
though some defined their country as the “state of Bosnians”, centrifugal
forces tore the country up along nationalistic lines drawn in the sand a long
time ago, in an era when belonging to one group, Bosniacs, Croats or Serbs,
was more important than affiliation with the country to which these people
belonged. The Dayton Peace Agreement, a ‘package deal’ stopped the fighting
in Bosnia and Herzegovina, imposed a constitution, and once more defined
the peoples of the country not as citizens but as Bosniacs, Croats, Serbs and
Others. The constitution, along with many other elements of the Dayton
1
Peace Agreement, attempts to coax these groups into accepting a common

identity – citizens of Bosnia and Herzegovina. However, was this not exactly
what some did not want in 1991 and started a war over?
Bosnia and Herzegovina is not that easily comparable with Belgium, or Swit-
zerland, the other often cited example of a ‘multi-state’, apart form the fact
that they are decentralized states in which several groups feel that the other
groups could, if left unconstrained, get unfair advantage over them and that
there is a need to provide institutions with the necessary checks-and-balances
to prevent one group from dominating the other.
These mechanisms and institutions to maintain a balance of power between

the peoples of Bosnia and Herzegovina or Belgium will form the basis of this
thesis.
HYPOTHESIS
Comparing the constitutions or laws of different countries raises the prospect

of a number of assumptions. When comparing vital interest clauses in the
constitutions of Belgium and Bosnia and Herzegovina, even cursory reading
of the two documents reveals immediately that both constitutions contain
provisions to protect the vital interests of the peoples it governs – establishing
that fact does not require serious research.
A hypothesis that either country’s institutions are more likely to use these
clauses than the others, would entail careful quantitative analysis not only of
the number of instances and the circumstances in which these clauses have
been effectively used but also of how often they have been used as a threat in
parliamentary debates. Such statistics are unfortunately not kept by the institu-
tions in either Belgium or Bosnia and Herzegovina and thus such hypothesis
is not researchable.
2
Comparing the institutions and mechanisms in place in Belgium and in Bos-

nia and Herzegovina, and assessing their effectiveness in the protection of
vital interests based upon textual analysis of source documents and decisions
taken by the institutions and bodies that are supposed to protect these inter-
ests, would offer insight in similarities and differences between the two con-
stitutions.
A proffered hypothesis could thus be:
Belgium and Bosnia and Herzegovina offer similar protection of vital

interests for the peoples they embrace and both have similar institu-
tions to ensure that this constitutionally guaranteed protection is trans-
lated into effective policies.
METHODOLOGY
Etymologically, ‘method’ is originally from Greek ‘méthodos’, a compound of

‘metá’ ‘after’ and ‘hodós’ ‘way, road’. Classical Greek ‘méthodos’ originally means
‘following after, pursuit’, hence (in philosophical contexts) ‘pursuit of knowl-
edge, investigation’; by further extension, it refers to a plan or strategy for car-
rying out an investigation, such as Plato’s ‘dialectic method’ (hè dialektikè méthodos,
Republic 533c)1. In modern times, method has come to mean a way or proce-
dure for doing anything, sometimes more systematic, sometimes less.
For many nineteenth-century writers however, especially French ones, ‘method’

or ‘méthode’ has a stronger and more specific sense which is probably to be
traced to René Descartes (1596–1650). In 1628, even before he wrote his Dis-
cours de la méthode, Descartes had written, in Latin, a set of ‘Rules for the direction
1 On-line version of the Liddell-Scott-Jones Lexicon of Classical Greek at the web site of the Perseus
Project at Tufts University, edited by Gregory R. Crane (http://www.perseus.tufts.edu).
3
of the mind’ (Regulae ad directionem ingenii)2, which were published posthumously

in 1701. The fourth of his Regulae is the following:
Regula IV: Necessaria est methodus ad veritatem investigandam.
Rule IV: A method is necessary for investigating truth.
Descartes elaborates: “By method I mean certain and easy rules, such that those who use
them precisely will never suppose anything to be true which is false, and will, without tiring
themselves by useless mental effort, but rather by gradually increasing their knowledge, arrive
at a true understanding of all those things of which they are capable.”3
Comparing legal texts has been practised for as long as law exits. While con-
stitutions are typically associated with the Enlightenment thinkers of Europe,
it is important to recognise that they enjoy a long history. Aristotle already
compared the constitutions of the Greek city-states and his classification of
governments into three pairs of categories – monarchy and tyranny, aristoc-
racy and oligarchy, constitutional government and democracy – can be re-
garded as the earliest scholarly attempt to identify and understand constitu-
tionalism. His definition of constitutions is not unlike that of many twentieth-
century theorists; For Aristotle, a constitution is “an organisation of offices in a city,
by which the method of their distribution is fixed, the sovereign authority is determined, and
the nature of the end to be pursued by the association and all its members is prescribed.”4
The term ‘comparative method’ emerges in the mid-eighteenth century, ap-

parently originating in the writings of Auguste Comte (1798–1857), founder
of the ‘positive philosophy’; the first occurrence is from 1838. At this period, the
2 Descartes, René [1701] 2000,Regulae ad directionem ingenii. Istanbul: Idea Publishing House. Available
http://www.idea-tr.com/metinler/regulae/desk01l.htm, July 2000
3 Ibid
4 Aristotle, Politics, trans. Ernest Barker (Oxford: Oxford University Press, 1995) 1289a 11-25, p. 135.
4
term belongs to a discourse on the general methodology of the life sciences

and the newly conceived ‘social sciences’.
Scholars who established the social sciences were careful to distinguish it

from biology and psychology by developing specific methods for the study of
society. French sociologist Émile Durkheim (1858–1917), prominent in this
regard, argued that various kinds of interactions between individuals bring
about certain new properties (sui generis) not found in separate individuals.
Durkheim insisted that these ‘social facts’, — collective sentiments, customs,
institutions, nations—should be studied and explained on a distinctly societal
level (rather than on an individual level). To Durkheim the interrelations be-
tween the parts of society contributed to an integrated system with character-
istics of its own, exterior to individuals yet driving their behaviour.
In his effort to escape from the individualizing and particularizing approach,

German sociologist Max Weber developed a key conceptual tool: the notion
of the ‘ideal type’. An ideal type is an analytical construct that serves the inves-
tigator as a measuring rod to ascertain similarities as well as deviations in con-
crete cases. It provides the basic method for comparative study.
"An ideal type is formed by the one-sided accentuation of one or more points of view and by
the synthesis of a great many diffuse, discrete, more or less present and occasionally absent
concrete individual phenomena, which are arranged according to those one-sidedly emphasized
viewpoints into a unified analytical construct."5 An ideal type is not meant to refer to
moral ideals. There can be an ideal type of a brothel or of a chapel.
The ideal type involves an accentuation of typical courses of conduct and

never corresponds to concrete reality but always moves at least one step away
from it. It is constructed out of certain elements of reality and forms a logi-
cally precise, a coherent whole, which can, as such, never be found in reality.
Ideal types enable one to construct hypotheses linking them with the condi-
5 Max Weber’s Homepage © 1996, Frank Ehwell – Rogers state University,

www.faculty.rsu.edu/~fehwell/Theorists/Weber/Whome.htm#ideal
5
tions that brought the ‘phenomenon’ or event into prominence, or with conse-
quences that follow from its emergence.
The comparative method, has since evolved in many directions, each relevant
to the subject of its study. Comparative law, as the study of differences and
similarities between the law of different countries and, more generally, of the
different legal traditions, was developed first of al in the United States of
America and became prominent with the rise of international institutions and
international private and public law.
Several disciplines have developed as separate branches of comparative law,

such as comparative constitutional law, comparative civil law and comparative
criminal law. Comparative law is an academic study of existing separate sys-
tems, each one analysed in its constitutive elements, of how these difference
elements differ in the different systems and how these elements are combined
into a system.
Comparative law is not a body of rules and principles. Primarily, it is a

method, a way of looking at legal problems, legal institutions, and entire legal
systems. By the use of that method, it becomes possible to observe, and to
gain insights, which would be denied to one who limits his study to the law of
a single country. “Neither the comparative method, nor the insights gained through its
use, can be said to constitute a body of binding norms, i.e. of ‘law’ in the sense in which we
speak of ‘the law’ of Contracts or ‘the law’ of Decedents' Estates. Strictly speaking, there-
fore, the term Comparative Law is a misnomer. It would be more appropriate to speak of
Comparison of Laws and Legal Systems.” 6
6 Rudolph R. Schlesinger, et al., Comparative Law, Cases, text, materials (5th ed. 1988). [p. 1] (as quoted
at: http://nersp.nerdc.ufl.edu/~malavet/seminar/ccmain.htm)
6
Chapter 1- Constitutions
WHAT IS A CONSTITUTION?
The word ‘constitution’ confers the notion of the make up of things – in the
case of a state’s constitution, the make up of its territory, people, institutions
and the relationship between them. A typical definition of constitutions sees
them as “codes of norms which aspire to regulate the allocation of powers, functions and
duties among the various agencies and offices of governments, and to define the relationship
between these and the public.”7
Though in the history of nations the development of these codes is based

upon consensus among the citizens on the basic assertions of the relationship
between the state and its citizens – a fact well illustrated during the constitu-
tional reforms in Belgium, the Constitution of Bosnia and Herzegovina was
the result of coercion (see below: Dayton and the Constitution of Bosnia and
Herzegovina).
constitutions are however, not just a set of norms on paper. The constitu-
tional tradition of countries often also includes unwritten elements, accepted
practices and declared principles. The constitution of Bosnia and Herzego-
vina, and especially the interpretation of its principles, in spite of attempt by
7 S.E. Finer, Vernon Bogdanor, and Bernard Rudden, Comparing constitutions Reprint Edition (Oxford,
UK: Oxford University Press, 1998) p. 1.
7
some, is no exception in this aspect: the National Assembly of Republika

Srpska, in reference to the constituent status of the peoples in Bosnia and
Herzegovina, raised the objection in proceedings during the so-called Constitu-
ent Peoples’ Case that “(…) the Preamble of the Constitution of Bosnia and Herzegovina
does not form part of the Constitution ‘stricto sensu’ and has, therefore, no normative charac-
ter”8. The Constitutional Court of Bosnia and Herzegovina however ruled that
“the Preamble of the Constitution of Bosnia and Herzegovina must be seen as an integral
part of the text of the Constitution”9, thus upholding the declared intentions and
principles as set out in the preamble.
However, the above-mentioned elements are insufficient to explain how con-

stitutions shape a community’s political life in different ways and different
times. Ultimately, constitutions are expected to be ‘living matter’, always in a
state of evolution. The Belgian constitution underwent four fundamental
changes over the last 30 years, changing the very organisation of the state
from a unitary, cohesive and centralised state to a federalised, decentralised
one. Bosnia and Herzegovina’s case is somewhat more complex in this regard.
Although the constitution itself foresees procedures to amend the original
text as imposed in Dayton10, Prof. Dr. Omer Ibrahimagic rightly points out
that “The Dayton Agreement is a complex and maximally balanced international agree-
ment that is not susceptible to change. (…) It is impossible to change partially, without call-
ing into question its entire architecture. It was drawn up with the intent to be implemented in
its entirety and to establish Bosnia and Herzegovina, with all its functions, as a normal
European state”. 11
Modern constitutions and constitutionalism are closely intertwined with the

liberal idea of ‘limited government’ and ‘fundamental freedoms’ and the most func-
8 Constitutional Court of Bosnia and Herzegovina, Decision U 5/98 III of 01 July 2000
9 Ibid.
10 Constitution of Bosnia and Herzegovina, Article X: Amendment
11 Prof. dr. Omer Ibrahimagic, The state of Bosnia and Herzegovina according to European Standards, Soros Open
Society Fund 2004 (www.soros.org.ba)
8
tional constitutions are often those that succeed in curbing the individual
powers of political actors in a political system on the one hand and in uphold-
ing the individual freedoms of the citizens of a state on the other. Determin-
ing whether Belgium or Bosnia and Herzegovina have the tools to do both
would be beyond the scope of this study, yet even a cursory reading of both
constitutions or of documents on how they was drawn up demonstrate that
limited government and fundamental freedoms are its core. Yet, the Constitu-
tion of Bosnia and Herzegovina also had a particularity not often found in
other constitutions: it is a hybrid, enshrining both collective and individual
rights.
Collective rights, although nowadays increasingly acknowledged in both the-

ory and practice, are nonetheless secondary to rights based on individual citi-
zenship. Peoples have often reasserted pre-existing territorial entitlements and
the language and cultural rights of national minorities are protected, but they
remain citizens of the states in which they live. Although Belgium is often in-
voked in Bosnia and Herzegovina as an example to justify the empowerment
of peoples, its relevance is only partial. Belgium provides for a system of
power-sharing among speakers of different languages, but it does not define
these groups constitutionally as separate nations. First of all, they are all Bel-
gian.
In the constitutional law and practice of the former Socialist Federative Re-
public of Yugoslavia – and in the popular understanding of such matters that
still prevails today – to be a ‘constituent people’ (narod) amounts essentially to be-
ing a ‘state creating’ people and to not being a national minority (narodnost, liter-
ally ‘nationality’), regardless of whether the people in question is a numerical
minority in the polity.
After the Second World War, the Yugoslav federation did not attempt to de-
fine Bosnia and Herzegovina unlike other republics, as the homeland of any-
thing other than its unnamed peoples and their working class. By 1974, how-
9
ever, and after the effective recognition of Muslims (or Bosniacs) as a nation
in their own right in the late 1960s, the new Constitution of Bosnia and Her-
zegovina listed the “Muslims, Serbs and Croats, and members of other nations
(naroda) and nationalities (narodnosti) who live in it” as Bosnia’s peoples, but ac-
corded pride of place to “working people and citizens”12.
In post-Dayton Bosnia and Herzegovina, the constituent peoples possess

rights to representation at the levels of the state, which are intended to em-
power them to promote and defend their collective rights. These, in turn, are
termed “vital interests” in the Dayton constitution.
ADDITIONAL CONSTITUTIONAL FUNCTIONS

In complicated political systems that struggle to respond to a series of com-
peting demands, constitutions can play key roles that either facilitate or hinder
the successful transformation of those demands into effective decisions. In
Bosnia and Herzegovina, these competing demands are manifold, but they
can be summarised under broad headings: the degree of (de-)centralisation of
the state, national identity and the future of the constitutional organisation of
the country.
Legitimization of the state authority – constitutions, by their very existence, estab-

lish a ‘people’ to which a governmental authority is to apply. Despite nationalis-
tic rhetoric that may include a founding myth, constitutional enactment can
be seen as the key moment that establishes a recognizable and recognized po-
litical community (Bosnians, Belgians, Swiss…). Functional constitutions not
only create ‘the people’ and define the state, but also justify and legitimize the
political authority, which assumes sovereignty over both. In this sense, (politi-
cal) nations are reinforced through a series of political tools, one of which can
be a constitution.13 One of the main challenges for the international commu-
12 Ustav Socijalisticke Republike Bosne i Hercegovine (1974), Part I, Article 1.

13 Ulrich K. Preuss, Constitutional Revolution: The Link Between Constitutionalism and Progress (Atlantic High-
lands, NJ: Humanities Press, 1995). (Quoted in Graham, Johan & Marques, Elder C. Understanding con-
stitutions: A roadmap for Communities, IOG, 2000. www.iog.ca)
10
nity in Bosnia and Herzegovina, and ultimately for the country’s institutions,
is to instil in the citizens of Bosnia and Herzegovina a ‘common identity’, that
supersedes being Bosniac, Croat or Serb. On the other hand, certain provi-
sions of both the Constitution of Bosnia and Herzegovina and the constitu-
tions of the two entities ‘prima facie’ discriminate against the so-called ‘Others’,
the ‘non-constituent peoples’, violating both themselves and international human
rights law.
Recognition of the rights and freedoms of citizenship – Most constitutions express limi-
tations that are placed on the ability of the government to legislate or other-
wise act against the rights of citizens. These ‘limitations’, however, can repre-
sent obligations on the part of governments to provide resources to ensure
that these rights can be asserted in practice. Bosnia and Herzegovina and its
entities have some of the most comprehensive human rights protection
mechanisms enshrined in its constitution “Bosnia and Herzegovina and both enti-
ties shall ensure the highest level of internationally recognized human rights and fundamental
freedoms.”14, yet upholding these principles is still in the realm of institutions
and administrative bodies that have demonstrated a reluctance in defending
the rights of all citizens of Bosnia and Herzegovina, through their selective
application.
Establishment of mechanisms for adjudication – In the event of conflict between po-

litical actors, a mechanism is required to render a final interpretation of con-
stitutional norms. That mechanism can represent ‘special enforcement’, as in the
case of a constitutional court, or ‘political enforcement’, as in the case of a su-
preme parliament or referendum process. In certain cases, this function also
includes the mediation of disputes between citizens.
Expression of basic beliefs and symbolism – constitutions, either explicitly or implic-

itly, provide a coherent reflection of the basic beliefs adopted by a regime. For
14 Constitution of Bosnia and Herzegovina, Article II: Human Rights and Fundamental Freedoms
11
example, the preamble may outline a set of core values that are embraced by
the regime or a foundational narrative to stir an emotional reaction from the
citizenry and promote some form of nationalism. The Constitutional Court of
Bosnia and Herzegovina explicitly stated that the Preamble of the Constitu-
tion of Bosnia and Herzegovina, which contains a number of basic beliefs, is
and integral part of the constitution itself and its spirit.
Provision of the flexibility of amendment – Given the likelihood that evolving moral
standards or regional development patterns will eventually result in new po-
litical demands, functional constitutions provide a mechanism to allow
amendment. A lack of consensus surrounding the requirements for a success-
ful amendment, particular in the case of a federal state, may result in a deterio-
ration of the relationships between political actors.
12
Chapter 2- Belgium and its Constitution
BELGIUM, A UNITARY STATE

In the wake of Napoleon’s defeat at the battlefield in Waterloo, the Great
Powers decided at the Congress of Vienna, in 1815 to unite the Northern and
Southern Netherlands under King William I. Although his policy was nomi-
nally beneficial to the Belgian bourgeoisie, there was protest as the Catholics
objected to the interference of the protestant king in clerical matters while the
Liberals demanded more freedom. Belgium had always had two linguistic
groups, the Dutch-speaking Flemish in the north and the French-speaking
Walloons in the south. The administration, heavily dominated by the French-
speaking elite in both parts of the country, was in French, much to the cha-
grin of the Flemish.
In addition, in the period 1760 to 1830 the Industrial Revolution was largely
confined to Britain. Aware of their head start, the British forbade the export
of machinery, skilled workers, and manufacturing techniques. The British
monopoly could not last forever, especially since some Britons saw profitable
industrial opportunities abroad, while continental European businessmen
sought to lure British know-how to their countries. Two Englishmen, William
and John Cockerill, brought the Industrial Revolution to Belgium by develop-
ing machine shops at Liège, and Belgium became the first country in conti-
nental Europe to be transformed economically. Liège, in the southern
(French-speaking) part of Belgium was a prime choice because of its abun-
13
dance of coal and fast-running water, the main ingredients for a successful
steam-driven factory. The manufacture was established with funding from the
Dutch crown – a fact that went down badly with the Flemish, who objected
to the partial industrialization of the country. The king at the same time
sought to appease the Flemish by decreeing that the administrations were to
use the language of the populace they were serving – a direct attack on the
supremacy of the French-speaking ruling classes in Flanders.
In 1828, Catholics and Liberals drew up a concerted programme of demands

in a rare display of unionism; protests also erupted over the administrative
languages of the country and the perceived preferential treatment of Walloons
in the industrialization of the country. After a series of incidents, a revolution
erupted in Brussels in 1830. William I sent in his troops, but they were ex-
pelled on 27 September 1830 and Belgium seceded from the Northern Neth-
erlands when a provisional government declared independence on 4 October
1830. In early November, a National Congress was elected by an electorate of
30,000 men, and in February 1831, the National Congress adopted a constitu-
tion, which was very progressive for its time.
The Great Powers of the time recognised the secession of Belgium from the
Netherlands and Leopold I of Saxe-Coburg became the first King of the Bel-
gians (1831-1865). Although the Great Powers forced Belgium to remain neu-
tral when it became independent, it could not escape World War I. The Bel-
gian army, under the command of King Albert I (1909-1934), was no match
for the Germans who occupied the country until they were brought to a halt
at the river Yser.
The years after the war were very difficult and the international economic cri-
sis affected the country. When the national-socialists came to power in Ger-
many, the dangers posed by that country rose again. Though Belgium from
1936 onwards took a neutral stance, Germany invaded again on 10 May 1940.
14
Belgium experienced a remarkable economic resurgence in the early post-war

years. Monetary reform kept inflation under control, and liberalization of the
domestic economy quickly returned the market mechanisms to the centre of
the industrial, agricultural, and commercial activities. In the climate of recov-
ery, social legislation won the support of both unions and employers.
The question of relations between the communities has played a highly im-
portant part in recent Belgian history. Following four state reforms, Belgium
was transformed into a federal state.
CONSTITUTIONAL REFORM IN BELGIUM

Belgium has always been a crossroad of both the Germanic and Latin influ-
ence, in its art, culinary traditions and of course, in its languages. Therefore,
when Belgium declared its independence, cultural pluralism was already a part
of its culture and heritage. Those differences in language and culture between
the various parts of the country ultimately led to the reform of the state in the
last quarter of the twentieth century.
The first major steps in the reform of the state were the laws on the use of
official languages, enacted between 1873 and 1963, recognizing French, Flem-
ish and German as official languages of Belgium and regulating their use. Yet
these language laws on themselves did not reform the state to the extent that
was necessary to satisfy all aspirations of the peoples of Belgium. In addition,
the growing economic disparity between the two regions intensified dissatis-
faction with the unitary state system. The Flemish opposed subsidizing an
ailing regional economy that lacked any prospect of structural industrial re-
form. The Walloons, in turn, feared that the more numerous and prosperous
Flemish would soon dominate the state. Linguistic and economic tensions
were now inextricable. Because of massive strikes in Wallonia in early 1961,
an immovable linguistic border was defined by an Act of Parliament in 1962–
63, and a new special arrangement was elaborated for the bilingual area
around Brussels. The Constitution needed to be amended, a fact officially
15
recognized and announced to the world when the then-prime minister Gas-
ton Eyskens on 18 February 1970 said in parliament that: “the Unitary state has
been overtaken by events…”15
THE FIRST AND SECOND STATE REFORMS

At the start of the negotiations for the actual reform of 1970, the Walloon as
well as the Flemish were fully prepared and had their list of demands at hand.
The Flemish were specially concerned about the cultural autonomy, whereas
the Walloons demanded more economical autonomy and wanted guarantees
that their demographic minority would not lead to a marginal political posi-
tion.
The revision of the Constitution in 1970 resulted in the setting-up of the three
cultural communities in a response to the pursuit of cultural autonomy by the
Flemish. From the legal viewpoint, that meant the start of the process of state
reform. The birth of the three cultural communities is, as the name suggests, a
sign of certain autonomy in relation to culture. However, the powers of those
cultural communities are still extremely limited. In addition, the foundation
was laid for the creation of three regions, each with their own territory in re-
sponse to the pursuit by French-speakers - the Walloons and French-speaking
people of Brussels - for economic autonomy.
Some constitutional guarantees were constructed to secure the position of the

French-speaking minority in Belgium. To this end, the parliament was divided
into language groups and from then on a, ‘special majority’, that is a majority in
both of the language groups, was needed to vote laws which touched the con-
stitutional rights of the Belgians. Furthermore, the constitution stated that as
many Walloon as Flemish ministers should be part of the Belgian govern-
ment, the prime minister excluded.
15 Annales Parlementairs (parliamentary Proceedings), House of Representatives, 18 February 1970, pp.

3-5 as quoted in Alen, professor Andre and Ergec, professor Rusen, Federal Belgium after the Fourth state
Reform of 1993
16
In 1980, the second state reform took place. The work that started in 1970
was continued when the cultural communities became known just as ‘communi-
ties’. That happened because the communities decided not only about cultural
matters but also about matters relating to the individual, in other words health
and social services.
As a result, from 1980 these three communities were known as the Flemish-
speaking Community, the French-speaking Community and the German-
speaking Community. These communities were each given a Council (their
Parliament) and a government.
With the state reform of 1980, two regions were also established: the Flemish
Region and the Walloon Region. They also had a Council and a government.
17
In Flanders, the government and the Council of the Flemish Region merged
with the government and the Council of the Flemish-speaking Community.
Therefore, in Flanders, there is only one government and one Council for the
Community and the Region. The French-speaking population did not choose
to merge the institutions of the French-speaking Community and the Walloon
Region.
There are many more French-speaking people in Brussels compared with

French-speaking Walloons than there are Flemish-speaking people in Brussels
compared with people in Flanders, making that French-speakers are some-
what over-represented if compared to Flemish-speakers, another important
feature of this second phase in 1980 is that the Brussels Region, although rec-
ognised in 1970, was put (with regard to its institutions) ‘on hold’. However,
that changed in the next, third state reform.
THE THIRD AND FOURTH STATE REFORMS

During the third state reform in 1988-89, it was mainly the Brussels-Capital
Region that took shape. Like the other two regions it received its own institu-
tions, and in particular a Council - its Parliament - and a government. The
Council of the Brussels-Capital Region votes on ordinances and the govern-
ment implements them. Brussels became a fully-fledged region with its own
parliament and government, with the guaranteed representation of the Dutch-
speaking minority.
With the third state reform of 1988-1989, the communities were given more
powers and the regions were consolidated. The most important change was
no doubt the transfer of education to the communities, but also areas as envi-
ronment, economy, scientific research and public works were further federal-
ized. Finally, the financing of the regions and communities was settled. Where
they depended on donations of the national government before, they now
could count on a fixed part of the national taxes.
18
Finally, the process of state reform, which started in 1970, was completed
with the fourth state reform in 1993. The Belgian state is now a fully-fledged
federal state. The communities and the regions, which were set up under pre-
vious reforms, now received their full powers. In short, the edges and incon-
gruities of the previous reforms were smoothed down as much as possible.
Furthermore, the direct election of the councils of the several federal units
was made possible and the province of Brabant was divided into a Flemish
and Walloon province, Flemish- and French- Brabant. Of considerable im-
portance was the assignation of a constitutive autonomy to the federal units,
which made it possible to settle independently the organisation and structure
of their institutions within the boundaries of the constitution.
On 14 July 1993 (at 7.31 pm), the Belgian Parliament (in this case the Senate)
took the final vote on the state reform. That amended the first clause of Arti-
cle 1 of the Constitution, from: "Belgium is divided into provinces" to "Belgium is a
Federal state which consists of communities and regions".
There is no hierarchy between the national level (the federal state) and the
regional levels (communities and regions). Both of the levels have equal status
and they exercise their powers independently in different fields. The compe-
tences of the federal state are amongst others: the constitution (the federal
states do not (yet) have their own constitution), defence, social security, la-
bour, pensions, justice, foreign affairs concerning federal matters, develop-
ment cooperation, finance,...and the so-called residue powers, the powers
which were not explicitly ascribed to the communities and regions. The com-
petences on the regional level are divided between the communities and the
regions. The communities’ competences are amongst others education, cul-
ture and welfare; the regions are responsible for (amongst others) transport,
town and country planning, environment en employment.
19
THE CONTINUED REFORM PROCESS

The Belgian Senate established the COSTA (the Conference for state Re-
form) in 1999 to provide a forum in which reforms of the state can be dis-
cussed among the communities in a serene environment. The COSTA has 31
members – 15 Flemish-speaking, 15 French-speaking and 1 German-
speaking. This continuous consultation process is sometimes referred to as
‘the fifth state reform’.
The Belgian government's institutional reform program on devolution of

competencies of June 2001 transfers agriculture and foreign trade responsibili-
ties to the regional governments, as well as greater fiscal autonomy and a re-
structuring of finances for the linguistic communities. The Federal govern-
ment is now only responsible for issues such as justice, the interior, foreign
policy, defence, social security and important parts of health.
20
Chapter 3- The Dayton Constitution of BiH
“A Constitution should be short and obscure.”

Napoleon Bonaparte (1769–1821), French general, emperor
DAYTON AND THE CONSTITUTION OF BOSNIA AND HER-

ZEGOVINA
Although I am well-aware of the long history of Bosnia and Herzegovina as a
country, a fact that was recognized and enshrined in Article I of the Constitu-
tion of Bosnia and Herzegovina16 as adopted in Dayton, Ohio, for the pur-
pose of this thesis, I will treat the history of Bosnia and Herzegovina as of the
end of the war and the implementation of the General Framework Agree-
ment for Peace and subsequent regulations and legal acts. This simplification
is dictated by the fact that the Bosnia and Herzegovina Constitution was
completely rewritten in Dayton to reflect the new reality of post-war Bosnia
and Herzegovina.
16 Article I: Bosnia and Herzegovina Continuation. The Republic of Bosnia and Herzegovina, the
official name of which shall henceforth be "Bosnia and Herzegovina," shall continue its legal existence
under international law as a state, with its internal structure modified as provided herein and with its
present internationally recognized borders (…)
21
In Dayton, the future constitution of Bosnia and Herzegovina received its fair
amount of discussion and some provisions were negotiated over fiercely.
Džemil Sabrihafizovic, a lawyer on the Bosnia and Herzegovina negotiating
team, characterized the Dayton Peace Agreement as a ‘package deal’, an all-or-
nothing agreement that first of all aimed at stopping the fighting in the coun-
try and secondly at establishing a country with viable institutions at different
levels, acceptable to all. He conceded however, that the constitution, like
many other aspects of the Agreement, often suffered from concessions that
were made on the territorial issues negotiated over the maps of Bosnia and
Herzegovina17. The Dayton Peace Agreement left Bosnia and Herzegovina
with a complicated structure: the country, though within its recognized bor-
ders, is made up of two entities: the Federation of Bosnia and Herzegovina,
which in turn is divided in ten cantons, and the Republika Srpska. The terri-
torial division of the country in Dayton was partially based upon proposals
advanced in earlier peace plans and the general principle of a 49%-51% split
was already worked out and agreed to before the delegations started the nego-
tiations at the Wright-Patterson Airbase in Dayton. The cantonisation of the
Federation of Bosnia and Herzegovina – the name is a misnomer in itself –
was agreed to a year earlier in Washington when Croatia formally agreed to
recognise Bosnia and Herzegovina and to relinquish any claims on the coun-
try or the Croats that lived in it, though the day-to-day politics of Croatia con-
tinue to loom over the (Croat-dominated) parts of Bosnia and Herzegovina to
this day.
The smaller of the entities would continue to be denoted by its war-time

name ‘Republika Srpska’, a fact that remains on of the greatest regrets of the
principal US negotiator, Richard Holbrooke18.
17 Interview with Dzemil Sabrihafizovic, a member of the Bosnian government negotiating team in Day-
ton.
18 Holbrooke, Richard, To end a war, 3rd Ed., New York, USA, Modern Library (Paperback), May 1999,
464 pages
22
Although Bosnia and Herzegovina is declared to be an internationally recog-

nized state in its own right, the Dayton Peace Agreement in order to secure
an agreement in the first place, limited the state’s competencies to a bare
minimum, as there was no other way to get the opponents of a unified Bosnia
and Herzegovina to agree to the establishment of a state at all. This conces-
sion implies that the entities were given an enormous degree of autonomy and
independence over those issues that are traditionally within the realm of the
central state.
23
The entities, apart from a well-defined territory have all three pillars of a
modern state: legislative, judicial and executive powers over all that is not ex-
plicitly part of the state’s jurisdiction. They each have their own defense sys-
tem, including a standing army, police forces, customs and tax administrations
etc.
Only under extreme pressure of the international community, and in order to

meet the requirements to join the European Union one day, some conces-
sions have been made and more authority has been given to the state, al-
though it must be pointed out that those most opposed to Bosnia and Herze-
govina – the Serbs and to a lesser extend the Croats – have tried more often
than not (and have sometimes succeeded) in obstructing re-centralisation.
The Constitution of Bosnia and Herzegovina stipulates that the constitutions

and laws of the entities, as normative acts of a lower order, must be fully in
accordance with the state-level constitution: “The entities and any subdivisions
thereof shall comply fully with this Constitution, which supersedes inconsistent provisions of
the law of Bosnia and Herzegovina and of the constitutions and law of the entities, and with
the decisions of the institutions of Bosnia and Herzegovina. The general principles of inter-
national law shall be an integral part of the law of Bosnia and Herzegovina and the enti-
ties.”19 This particular clause would, five years after the Constitution was im-
posed in Dayton, become the basis of a landmark decision of the Constitu-
tional Court of Bosnia and Herzegovina in the so-called Constitutional Peo-
ples’ Case.
The discussions over the constitution were almost all over the level of cen-
tralization, or rather decentralization of the state-level institutions. Vital inter-
ests as part of the constitution were discussed on the sidelines only, as part of
the argument over which competencies the state, or entities would have. The
Bosniac delegation argued for vital interest mechanisms at all levels to gain
19 Constitution of Bosnia and Herzegovina: Article III (Responsibilities of and Relations between the
Institutions of Bosnia and Herzegovina and the entities).3.b
24
leverage; the Croatian delegation, representing the Bosnian Croats, was inter-
ested in vital interest mechanisms at the state and Federation of Bosnia and
Herzegovina only – a position they had propagated a year earlier in Washing-
ton when the Federation of Bosnia and Herzegovina was negotiated. The
Yugoslav delegation, on behalf of their Bosnian Serb brethren, preferred the
absolute minimum – the state-level government, clearly with the intent to use
the concept of vital interests to block the functioning of these institutions and
to prevent Bosnia and Herzegovina from becoming a functional state20. The
negotiators tried their best to find common ground, and ultimately, all sides in
the negotiations came away with the impression that on vital interests they
had gained the position they thought most favourable. The undefined concept
of vital interests in the constitution appealed to the Croats – they felt it could
be interpreted any which way; the Serbs where content that the concept ap-
plied only to state-level institutions. The Bosniacs from their point-of-view,
felt they were not given what they initially wanted but they saw an opportu-
nity to achieve their (political) aims through other institutions set up in the
constitution, most notably the constitutional court and the human rights in-
struments that are an integral part of the Constitution of Bosnia and Herze-
govina and the Dayton peace Agreement.
20 Interview with Dr. Haris Silajdzic
25
Chapter 4- The Constitutional Court Decision
In 1998, then-member of the Bosnia and Herzegovina Presidency Alija

Izetbegovic brought a case before the Constitutional Court of Bosnia and
Herzegovina. Mr. Izetbegovic argued that fourteen provisions of the Repub-
lika Srpska constitution and five provisions in the constitution of the Federa-
tion of Bosnia and Herzegovina violated the Bosnia and Herzegovina Consti-
tution. These provisions dealt with the political and legal concept of the ‘con-
stituent peoples’ in the Constitution of Bosnia and Herzegovina that defines
Bosniacs, Croats, Serbs and others as having equal rights, versus their status
as defined in the entity constitutions.
The Constitutional Court of Bosnia and Herzegovina accepted to adjudicate

the matter as it was in its jurisdiction21. The case would become known as the
‘constituent peoples’ case’. After 28-months of highly politicized deliberations, the
Constitutional Court ruled that these provisions of the entity constitutions
were indeed in violation of the state constitution because they failed to grant
equal status to Serbs in the Federation of Bosnia and Herzegovina and to
Bosniacs and Croats in Republika Srpska. This ruling would have far-reaching
implications as it directed the entities to amend their constitutions to ensure
21 Constitution of Bosnia and Herzegovina, Article VI.3: Jurisdiction.
26
full equality of Bosnia and Herzegovina’s three constituent peoples throughout

their territory.
Though the decision does not pronounce itself on the rationality of Bosnia
and Herzegovina’s entities, it clearly challenged the ethnical connotations and
make up of its structures. The ruling will have a bearing on all spheres of civic
life as it challenges institutional prejudice and discrimination in law, education,
the police, the work place and the provision of basic social services. Numer-
ous entity laws, including the constitutions, will have to be amended in light
of the new equal status of all three ethnic groups within the entities, to make
their institutions more alike.
The Constitutional Court does however not have any mechanisms to enforce
its decisions and as such, implementation depends on the will of the entities
to abide by the Court and the final and binding character of its decisions.
When by January 2001, six months after the decision, the entities had not
acted the High Representative intervened and established Constitutional
Commissions in the National Assembly of the Republika Srpska and Federa-
tion of Bosnia and Herzegovina House of Representatives. Each Commission
consists of sixteen members - four Bosniacs, four Croats, four Serbs, and four
‘Others’ - selected by the OHR. The Commissions were tasked to prepare
proposals by 15 March 2001 for revising the entity constitutions. In addition,
they would have power to review and block entity legislation that might be
judged discriminatory. The parties made a (political) deal on 27 March 2002,
agreeing a package of amendments to their constitutions. The High Represen-
tative, the U.S. Ambassador and the Spanish Ambassador who represented
the EU presidency, praised the parties for the courage to compromise, and
vowed to see that the so-called Sarajevo Agreement would be translated faith-
fully into workable amendments.
27
AGREEMENT ON THE IMPLEMENTATION OF THE CON-

STITUENT PEOPLES’ DECISION OF THE CONSTITUTIONAL
COURT OF BOSNIA AND HERZEGOVINA
I. Vital interest protection
Vital interest protection shall be provided through
• the House of Peoples in the Federation of Bosnia and Herzegovina,

and
• the Council of Peoples in Republika Srpska
Article 1 - The legislature

The legislative authority shall be exercised in the Republika Srpska by the Re-
publika Srpska National Assembly and the Council of Peoples and in the
Federation of Bosnia and Herzegovina by the House of Representatives and
the House of Peoples.
In Republika Srpska, Laws and other regulations which are approved in the
Republika Srpska National Assembly and which concern the issue of a vital
national interest of any of the constituent peoples will enter into force only
upon adoption by the Council of Peoples.
Incompatibility: No delegate of the Republika Srpska National Assem-

bly/Federation of Bosnia and Herzegovina House of Representa-
tives/Municipal Council shall serve as a member of the Council of Peo-
ples/House of Peoples.
Article 2 - Minimum number of representatives in the Republika Srpska National As-

sembly/Federation of Bosnia and Herzegovina House of Representatives
A minimum number of 4 members of one constituent people shall be repre-
sented in the Republika Srpska National Assembly and the Federation of
Bosnia and Herzegovina House of Representatives.
28
Article 3 - Composition of the Council of Peoples and the House of Peoples and selection
of members
The Council of Peoples and the House of Peoples shall be composed on a
parity basis so that each constituent people shall have the same number of
representatives.
A minimum number of 8 and a maximum number of 17 members shall come

from a single constituent people. The Others shall be represented by a num-
ber not exceeding one half of the representatives of a single constituent peo-
ple in the Council of Peoples and House of Peoples respectively.
Others have the right to participate equally in the majority voting procedure.
Republika Srpska (Council of Peoples)

Members of the Council of Peoples shall be elected by the respective caucus
of the delegates of Republika Srpska National Assembly.
In the event that the number of delegates of one caucus in the Council of
Peoples is higher than the number of delegate in the respective caucus of the
Republika Srpska National Assembly this additional number of delegates shall
be elected by a caucus formed for this purpose from delegates from the Mu-
nicipal Assemblies of Republika Srpska.
After the next municipal elections, the final manner of election of the mem-
bers to the Council of Peoples shall be regulated by the Republika Srpska Na-
tional Assembly and the Council of Peoples.
Federation of Bosnia and Herzegovina (House of Peoples)

The members of the House of Peoples are elected from the representatives in
the cantonal assemblies, proportional to the ethnic structure of the popula-
tion. The number of Delegates elected from each canton shall be propotional
to the population of that canton.
29
The House of Peoples shall have at least one Bosniac, on Croat and one Serb
from each all canton where these constituent peoples are represented in the
cantonal assemblies in accordance with the electoral results for that canton.
The election of representatives from the group of 'Others' shall be regulated by

law.
Article 4 - Definition of vital interest:

Vital national interests of constituent peoples are defined as follows:
• exercise of the rights of constituent peoples to be adequately repre-

sented in legislative, executive and judicial bodies,
• identity of one constituent people,
• constitutional amendments,
• organisation of public authorities,
• equal rights of constituent peoples in the process of decision-making,
• education, religion, language, promotion of culture, tradition and cul-

tural heritage,
• territorial organisation,
• public information system,
• and other issues treated as of vital national interest if so claimed by

two-thirds of one of the caucuses of the constituent peoples in the
House of Peoples or Council of Peoples.
Article 5- Parliamentary procedure for the protection of vital interests

Laws or other regulations or acts approved by vote by the Republika Srpska
National Assembly will be sent and considered by the Council of Peoples if
they relate to a vital interest as defined in Article 4.
30
Laws or other regulations or acts introduced into the Federation of Bosnia

and Herzegovina House of Representatives are also adopted in the Federation
of Bosnia and Herzegovina House of Peoples.
The Constitutional Courts of the Federation of Bosnia and Herzegovina and

Republika Srpska shall each have a maximum of 9 members.
A Vital Interest Panel of the Constitutional Court of the Federation of Bosnia

and Herzegovina/Republika Srpska shall be established deciding in the vital
interest procedure as described below. All Vital Interest issues shall be con-
sidered by this panel.
The Vital Interest Panel shall be composed of 7 members, 2 from each con-
stituent people and 1 from the group of Others. The judges shall be elected
by the House of Representatives and House of Peoples in the Federation of
Bosnia and Herzegovina and by the Republika Srpska National Assembly and
Council of Peoples in the Republika Srpska.
a. Procedure for laws related to a vital interest as defined in the list of Article 4
If more than one Chairman or Co-Chairman of the Council of Peo-
ples/House of Peoples (Council of Peoples/House of Peoples) claims that a
law comes within the list of vital interests as defined in the list of Article 4 the
law shall be put on the agenda of the Council of Peoples/House of Peoples as
vital interest issue.
If only one Chairman or Co-Chairman claims that the law falls within this list
a two-third majority of the respective caucus may declare the issue concerned
to be an item within the list. In this case the procedure followed is the one
outlined under Article 5.b below.
The Chairman and Co-Chairmen have one week within which to decide.
31
If a majority of each caucus represented in the House of Peoples/Council of

Peoples vote in favour of such laws or other regulations or acts these are
deemed to be adopted.
If the House of Peoples/Council of Peoples agrees on amendments, the law,

regulation or act is resubmitted to the House of Representatives/Republika
Srpska National Assembly for approval.
If no agreement can be reached in the House of Peoples/Council of Peoples

or if approval is not given to proposed amendments, a Joint Commission
composed of representatives of the House of Representatives/ Republika
Srpska National Assembly and the House of Peoples/Council of Peoples
shall be established. The Joint Commission is composed on a parity basis and
decides by consensus. It shall seek to achieve the harmonization of the terms
of the law. If the terms are harmonized the law shall be deemed to be
adopted.
If no such harmonisation can be effected the law shall fail and the document
shall be returned to the proponent for a new procedure. In that event the
proponent may not re-submit the original law, regulation or act.
b. Procedure for laws related to a vital national interest if so decided by two-third of one of
the caucuses of the constituent peoples in the House of Peoples/Council of Peoples
In case two-third of one of the caucuses of the constituent peoples in the
House of Peoples/Council of Peoples decides that a law, act or regulation
affects a vital interest the law shall be considered by the House of Peo-
ples/Council of Peoples.
If a majority of each caucus represented in the House of Peoples/Council of

Peoples vote in favour of such laws or other regulations or acts these are
deemed to be adopted.
32
If the House of Peoples/Council of Peoples agrees on amendments, the law,

regulation or act is resubmitted to the House of Representatives/Republika
Srpska National Assembly for approval.
If no harmonization can be established by the Joint Commission referred to

in lit a. above, the Constitutional Court of the Federation of Bosnia and Her-
zegovina/Republika Srpska shall be addressed to decide finally whether the
law in question relates to a vital interest of a constituent people.
A Vital Interest Panel of the Constitutional Court of the Republika

Srpska/Federation of Bosnia and Herzegovina shall decide by a two-third
majority within one week on the admissibility of such cases and within one
month on the merits of cases held to be admissible.
In the event that the Article 5.b procedure has been triggered by a two-third
majority of one of the caucuses, the vote of at least two judges is needed for
the Court to decide that it is a vital interest.
In the event that the Court decides in favour of a vital interest the law shall
fail and the document shall be returned to the proponent for a new proce-
dure. In that event the proponent may not re-submit the original law, regula-
tion or act.
In the event that the Court decides that no vital interest is involved the law is
deemed to be adopted/shall be adopted by simple majority.
II. Distribution of key political functions

The Prime Minister and Deputy Prime Ministers may not come from the
same constituent people.
Out of the following positions not more than 2 may be filled by representa-
tives of any one constituent people or of the group of Others:
• Prime Minister
33
• Speaker of the House of Representatives/Republika Srpska National

Assembly
• Speaker of the House of Peoples/Council of Peoples
• President of Supreme Court
• President of Constitutional Court
• Public Prosecutors
• Presidents of entities
The President shall have two Vice-Presidents coming from different constitu-
ent peoples. They shall be elected according to the Entity constitutions.
III. Minimum Representation in the government of the Federation of

Bosnia and Herzegovina and of the Republika Srpska
The government shall be elected by the House of Representatives/Republika
Srpska National Assembly.
For a transitional period, until Annex 7 is fully implemented,
• the Republika Srpska government (Prime Minister and 16 ministers)

shall be composed of 8 Serb, 5 Bosniac and 3 Croat ministers. One
Other may be nominated by the Prime Minister from the quota of the
largest constituent people. There shall be additionally a Prime Minister
who shall have two Deputy Prime Ministers from different constitu-
ent peoples selected from among the Ministers; and
• the Federation of Bosnia and Herzegovina government (Prime Minis-

ter and 16 ministers) shall be composed of 8 Bosniac, 5 Croat and 3
Serb ministers. One Other may be nominated by the Prime Minister
from the quota of the largest constituent people. There shall be addi-
tionally a Prime Minister who shall have two Deputy Prime Ministers
from different constituent peoples selected from among the Ministers.
34
After Annex 7 is fully implemented, a minimum of 15% of the members of

the government must come from one constituent people. A minimum of
35% of the members of the government must come from two constituent
peoples. One member of the government must come from the group of the
Others.
IV. Proportionate representation in all public authorities, including

courts
Constituent peoples and members of the group of Others shall be propor-
tionately represented in public institutions in the Federation of Bosnia and
Herzegovina and in Republika Srpska.
As a constitutional principle, such proportionate representation shall follow

the 1991 census until Annex 7 is fully implemented, in line with the Civil Ser-
vice Law of Bosnia and Herzegovina. Further and concrete specification of
this general principle shall be implemented by Entity legislation. Such legisla-
tion shall include concrete time lines and shall develop the aforementioned
principle in line with the regional ethnic structure in the entities and the Can-
tons.
‘Public institutions’ as mentioned above are the ministries of the Federation

of Bosnia and Herzegovina government, of the Republika Srpska government
and of Cantonal governments, municipal governments, Cantonal Courts in
the Federation of Bosnia and Herzegovina and District courts in Republika
Srpska, and municipal courts in the Federation of Bosnia and Herzegovina
and Republika Srpska.
V. Final/transitional provisions
Harmonization of principles with regard to the Cantons of the Federation of Bosnia and
Herzegovina
Within 9 months from the adoption of the amendments to the Entity consti-
tutions, the principles contained in this document shall be applied to the Can-
tons of the Federation of Bosnia and Herzegovina.
35
Vital interest protection bodies shall be established in the Cantons and mini-
mum representation has to be guaranteed with regard to the Cantonal gov-
ernments.
Tasks of the House of Peoples and the Republika Srpska Constitutional Commission
As from the adoption of the amendments to the Entity constitutions, the
House of Peoples of the Federation of Bosnia and Herzegovina and the Re-
publika Srpska Constitutional Commission (as established by the High Repre-
sentative) shall follow the principles contained in this document.
Interpretation of this agreement

The High Representative is the final authority in the interpretation of this
document until its full implementation by the parliaments of the entities.
While this agreement did not represent the best possible interpretation of the
Constitutional Court's ruling, or a complete catalogue of all the required
amendments, it offered an acceptable framework based on compromise. The
Republika Srpska party leaders who had signed the agreement, before return-
ing to Banja Luka to ensure the passage of the amendments by the National
Assembly, noted their objections over two provisions and the debate in the
Republika Srpska National Assembly started, added caveats and 'minor'
changes, and introduced new amendments contrary to the spirit of the Court's
decision.
36
Chapter 5 - Mechanisms to protect vital interests

in Belgium
Modern states with different constitutional peoples or with (significant) mi-

norities often offer several mechanisms to protect the rights and freedoms of
the peoples they embrace. Sometimes it is just an enumeration of these rights
and freedoms that is reiterated and specifically guaranteed, such as the Euro-
pean Convention on the Protection of the Rights of Minorities, in other cases
there are specific clauses in the constitutions or laws that regulate the electoral
system in order to guarantee that all people have an equal chance to be elected
or to have representatives of their group elected. The guaranteed allocation of
a number of seats in parliaments is just one example; the proportional distri-
bution of positions in appointed positions and in the (senior) administrative
posts is another way to share power between constituent peoples.
The Belgian institutional system is build around a complex system of checks-

and-balances to ensure on the one hand that the power-sharing between the
communities (and the regions) is guaranteed, and adhered to in practice, and
on the other hand to ensure that the (subjective) sentiments that one group
could be dominated by the other is not given a chance.
The successive reforms of the state, started in 1970, other than decentralizing
institutions and demarcating territorial units, have incorporated a series of
provisions in the Constitution of Belgium to protect the rights and freedoms
of all three linguistic groups.
37
ARTICLE 54 GROUP VETO, ALARM-BELL PROCEDURE

In 1970, two language groups (French-speaking and Flemish) were distin-
guished in the Parliament, and an ‘alarm bell procedure’ was established to
guarantee the protection of these language groups; linguistic parity was consti-
tutionally required for the composition of the national government. Every
law, with the exception of special and budgetary laws, may be challenged.
Three-quarters of the members of a language group, in either the Chamber or
the Senate, may pass a motion declaring that a bill or proposal threatens to
cause serious damage to relations between the communities. In such a case,
the procedure is suspended and the text is submitted to Cabinet (in which the
languages are equally represented) that must exercise a kind of political arbi-
tration.
Article 54: Alarm-bell Procedure
1) With the exception of budgets and laws requiring a special majority, a

justified motion, signed by at least three-quarters of the mem-
bers of one of the linguistic groups and introduced following the
introduction of the report and prior to the final vote in a public
session, can declare that the provisions of a draft bill or of a mo-
tion are of a nature to gravely damage relations between the
communities.
2) In this case, the parliamentary procedure is suspended and the motion

referred to the Council of Ministers, which, within thirty days, gives
its justified recommendations on the motion and invites the impli-
cated House to express its opinion on these recommendations or on
the draft bill or motion that has been revised if need be.
3) This procedure can only be applied once by the members of a linguis-

tic group with regard to the same bill or motion.
38
The constitution does however not explain what ‘vital interests’ are and it is
left to at least three-quarters of the members of one language group to argu-
ment, which issues are of “a nature to gravely damage relations between the communi-
ties”.
The question of what vital interests are is closely linked with the question
what defines a nation, a people? Different dictionaries offer a glimpse at ele-
ments of the term: People: A body of persons composing a community, nation, ethnic
group, etc according to the Oxford Shorter Dictionary, which Nation is de-
fined as: A large aggregate of people so closely associated with each other by factors such as
common descent, language, culture, history, and occupation of the same territory as to be
identified as a distinct people, esp. when organized as a political state.
Neither definition offers an insight in what is of vital interest to the groups it

describes, a fact also recognized by the authors of Article 54 of the Belgian
Constitution.
The linguistic groups have however, invoked Article 54 only once, in a proce-
dure that was never brought to an end because of early elections over another
issue.
SPECIAL MAJORITY LAWS

In 1970 when the parliament was divided into language groups, a new type of
federal law was introduced; the Special Majority Law is required vote laws that
touch upon the constitutional rights of the Belgians to prevent the promulga-
tion of laws on the reform of the state against the desires or either of the
country’s linguistic communities. A Special Majority is defined as “a two-thirds
of the vote in both Houses of Parliament (Chamber and Senate) subject to a quorum of the
two language groups and a majority of each language group in each Chamber.” By requir-
ing a majority of each language group, the Constitution enshrines the idea of
joint management, on an equal footing, of the essential structural elements of
the Belgian state by the French-speaking and the Flemish-speaking communi-
ties.
39
The requirement for a Special Majority applies to the (lengthy list) of princi-
ples outlined in the Constitution of Belgium – all of these provisions relate to
the application of the constitutional principles of the structure of the state,
and their number was increased during the successive state reforms that di-
vulged more and more power from the state to the communities.
EQUAL REPRESENTATION AND PARTICIPATION

In Belgium, the first oddity most observers remark on is the split in political
parties along linguistic lines – even of parties with the same ideology such as
the Liberal or Christian Democrat Party. Belgium is thus marked by the ab-
sence of federation-wide political parties: national-policy making works
only through the cooperation of political parties representing a majority of
the electorate within the Flemish- and French-speaking communities.
The political tensions in the lead up to and aftermath of demarcating the lin-
guistic borderline in the 1960-ies stimulated the rise of ethno-linguistic parties,
most prominently, the Flemish People’s Union (VU) and the French-speaking
Front of Democratic Francophones (FDF). The success of these regionalist
parties eroded the voter support for the traditional ‘unitary’ Belgian parties,
straining relations. Ultimately, these tensions contributed to the break-up of
the traditional parties along linguistic lines, a process that started in 1968 with
the Christian Democrats and that was completed in 1978 with the split of the
Belgian Socialist Party. With the exception of the bilingual electoral district of
Brussels, Flemish- and French-speaking parties no longer compete against
each other.
In addition, a number of elected and appointed positions are reserved for

members of one or the other constituent group and equal representation is
enshrined in the constitution of Belgium: Since 1970, the federal government,
which decides by consensus has had an equi-representative structure and
must comprise an equal number of Flemish and French-speaking ministers “
40
… (2) With the possible exception of the Prime Minister, the Council of Ministers includes
as many French-speaking members as Flemish-speaking members.”22
This guarantee of parity representation at the highest level of government

constitutes the most effective means of protection. In practice, it is difficult,
in a country applying the system of proportional representation, to set up a
federal government, which does not enjoy majority support or at least have an
adequate base both north and south of the linguistic divide. Moreover, equal
representation on the Council of Ministers is the extension of the linguistic
parity introduced at the highest levels of central government.
The legislative and state-level judicial branches, as well as all senior positions
in the state administration are also populated according to a national key,
commensurate with the population they represent.
THE TERRITORIAL PRINCIPE

In Belgium, the constitution foresees in a number of cases that certain elected
or appointed officials should belong either to the Flemish, French or German
linguistic group – a fact that at first would seem to belong more to the so-
called national key principle described above. The linguistic groups however
,also belong to a well-defined territorial unit. Officials of the French-speaking
group would also live in the French-speaking Community and Region – only
Brussels is defined as a bi-lingual region – and thus, in the Belgian Constitu-
tion, there is a defined overlap between the territorial and national key princi-
ples.
For example, Article 67(1) on the number of Seats in the Belgian senate23
states that "Without prejudice to Article 72, the Senate is made up of seventy-one sena-
tors, of whom:
22 Constitution of Belgium Article 99: Composition of the government

23 Constitution of Belgium Article 67: Seats
41
a. twenty-five senators elected in conformity with Article 61, by the Flem-

ish electoral college;
b. fifteen senators elected in conformity with Article 61, by the French
electoral college;
c. ten senators appointed by and within the Council of the Flemish-
speaking Community, named the Flemish Council;
d. ten senators appointed by and within the Council of the French-
speaking Community;
e. one senator appointed by and within the Council of the German-
speaking Community;
f. six senators appointed by the senators referred to in 1) and 3);
g. four senators appointed by the senators referred to in 2) and 4).
At least one of the senators referred to in Paragraph (1) (1, 3, 6) is to be legally resident, on
the day of his election, in the bilingual Region of Brussels-Capital.”
THE BELGIAN COURT OF ARBITRATION

In Belgium, the Court of Arbitration, which owes its name to its original
function as federal arbitrator, has exclusive jurisdiction to review regulations
having force of law for “compliance with the Constitution24 and the rules governing the
division of powers of the federal state, the communities and the regions”. As a specialized
judicial authority, the court is independent of the legislative, the executive and
the judiciary and is made up of twelve judges, appointed for life by the King
from a list of candidates proposed by the House of Representatives and the
Senate by a majority of at least two-thirds of the members present.
The Court of Arbitration owes its existence to the transformation of Belgium

from a unitary state into a federal one. The establishment of the Court of Ar-
bitration – one for the entire country – was outlined in the Constitution in
1980 and the law of 28 June 1983 defined the composition, competence and
functioning of this new court. The Court of Arbitration was officially inaugu-
rated in the Senate on 1 October 1984 and it delivered its first judgment in
April 1985.
24 Constitution of Belgium - Articles 8 - 32, 170, 172 and 191
42
In the constitutional amendment of 15 July 1988, the competence of the

Court was extended to include the supervision of the observance of Articles
10 (Equality), 11 (Non-discrimination, minorities) and 24 (Education) of the Consti-
tution guaranteeing ‘the principles of equality, non-discrimination and the rights and
liberties in respect of education’. The entire Title II ‘On Belgians and their rights’ (Arti-
cles 8 to 32), as well as Articles 170 (Taxes), 172 (No privileges) and 191 (Protec-
tion of foreigners) of the Constitution, now constitute the frame of reference for
the constitutional review of statutes by the Court.
Six judges belong to the Flemish language group, six to the French language
group. One of them must have an adequate knowledge of German. Each lin-
guistic group is composed of three judges with a legal background (university
professor of law at a Belgian university, magistrate with the Court of Cass-
ation (Supreme Court) or the Council of state, legal secretary with the Court
of Arbitration) and three judges who have had at least five years experience as
members of parliament.
The judges of each linguistic group elect a president, who presides over the
Court for a term of one year.
Jurisdiction of the Court of Arbitration

The competence of the Court of Arbitration is established in Article 142
(Court of Arbitration) of the Constitution. The Court rules, through judgments,
on conflicts of authority, on violations of Articles 10, 11 and 24 of the Consti-
tution, and on violations of such articles of the Constitution, which the law
designates. A case can be brought before the Court by any statutory authority,
any person who has a justifiable interest, or, in a preliminary issue, any tribu-
nal.
Regulations reviewed by the Court of Arbitration

The Court of Arbitration is exclusively competent to review regulations that
have force of law. By regulations having force of law are meant both substan-
tive and formal rules adopted by the federal parliament (statutes) and by the
43
councils (parliaments) of the communities and regions (decrees and ordi-

nances). All other regulations, such as Royal decrees, decrees of governments
of communities and regions, ministerial decrees, regulations and decrees of
provinces and municipalities, as well as court judgments fall outside the juris-
diction of the Court.
Regulations constituting the yardstick for review

Article 142 of the Constitution gives the Court of Arbitration the exclusive
authority to review regulations that have force of law for compliance with the
rules that determine the respective powers of the state, the communities and
the regions. These power-defining rules are set forth in the Constitution and
in laws (usually passed by a special majority) that are enacted with a view to
institutional reform in federal Belgium.
Method of referral
A case may be brought before the Court of Arbitration in two ways. Firstly, a
case may be brought before the Court in the form of an action for annulment
that may be instituted by any authority designated by statute or by any person
who has a justifiable interest. Secondly, any tribunal may refer preliminary is-
sues to the Court of Arbitration.
Actions for annulment

The following authorities and persons may bring an action for annulment be-
fore the Court of Arbitration:
the Council of Ministers and the governments of the communities

and regions;-
the presidents of all legislative assemblies, at the request of two-thirds

of their members;
natural or legal persons, both in private law and public law, Belgian as
well as foreign nationals.
44
The latter category of persons must declare a justifiable interest. This means
that those persons must demonstrate in their application to the Court that
they are liable to be personally, directly and unfavourably affected by the chal-
lenged regulation.
The ‘arguments’ must be set out in the application. In other words, it must be
specified which of the rules of which the Court guarantees compliance have
been violated, as well as which provisions are thought to violate those rules. It
must also be explained in which respect those rules have been violated by the
provisions in question.
The action for annulment does not suspend the effect of the challenged regu-
lation. In order to guard against the possibility that the challenged regulation
may cause irrevocable prejudice during the period between the introduction
of the action and the judgment of the Court, and that a subsequent retroactive
annulment may no longer have any effect, the Court may, at the applicant’s
request and in exceptional circumstances, order the suspension of the chal-
lenged regulation pending a judgment on the merits of the case within three
months.
Preliminary issues
If a question comes up in a particular tribunal about the correspondence of
laws, decrees and ordinances with the rules laying down the division of pow-
ers between the state, the communities and the regions or with Articles 8 to
32, 170, 172 or 191 of the Constitution, that tribunal must in principle address
a preliminary question to the Court of Arbitration. ‘Preliminary’ means before
the tribunal passes further judgment. When a tribunal addresses a question,
the proceedings before the tribunal in question are suspended pending the
answer of the Court. If the Court of Arbitration decides that the regulation in
question conflicts with the rules mentioned above, the referring judge must
no longer consider this regulation in the further adjudication of the case. The
regulation in question, however, will be maintained in the legal system.
45
It should be pointed out in this connection that the courts themselves can
rule against the violation of power-defining rules and fundamental rights by
acts of administrative authorities.
Effects of judgments
The effects of the judgments differ according to whether they have been pro-
nounced in respect of an action for annulment or in respect of a preliminary
issue.
If the action is well founded, the challenged regulation will be annulled en-
tirely or partially. Judgments annulling a challenged regulation have absolute
binding force from the moment they are published in the Moniteur belge, the
official gazette if Belgium. Such annulment has retroactive effect, which
means that the annulled regulation must be deemed never to have existed. If
necessary, the Court of Arbitration may moderate the retroactive effect of the
annulment by upholding the effects of the annulled regulation.
Acts, regulations and court decisions based on the annulled regulation will still
stand. However, in addition to the use of the ordinary legal remedies where
this is still possible, the law provides that court decisions or administrative
measures that are founded on a statute subsequently annulled may be ren-
dered unenforceable, insofar as this is requested within six months after the
publication of the Court’s judgment in the Moniteur belge. For this purpose,
special legal remedies are available to the prosecuting authorities and the in-
terested parties.
Judgments delivered by the Court of Arbitration dismissing actions for an-

nulment are binding on the courts in respect of the points of law settled by
such judgments.
The effects of rulings given on preliminary issues are somewhat different. In

cases which raise preliminary points of law, courts delivering judgment in pro-
ceedings with the same litigants (including courts of appeal) must comply with
46
the ruling given by the Court of Arbitration on the preliminary point of law in
question. Moreover, where the Court finds a violation, the regulation will re-
main part of the system of law, but a new six-month term commences in
which an action for annulment of the regulation in question can be brought.
Judgments of the Court of Arbitration are legally enforceable and not open
to appeal. The judgments are drafted and pronounced by the presiding judges
in public session in Flemish and in French. Furthermore, judgments in actions
for annulment and in cases that were instituted in German are drafted and
pronounced in German.
47
Chapter 6 - Mechanisms to protect vital interests

in Bosnia and Herzegovina
‘VITAL INTERESTS’ – IN THE ENTITY CONSTITUTIONS

The concept of what ‘vital interests’ are was left undefined in the constitution
of Bosnia and Herzegovina and the discussion over their nature started only
in 1998, when Alija Izetbegovic, the then chairman of the collective Bosnia
and Herzegovina presidency, brought a case (later known as the Constituent
Peoples’ Case) before the Bosnia and Herzegovina Constitutional Court that
would take a landmark decision in 2000 (see below). In the state constitution, “a
proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital
interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac,
Croat or Serb Delegates…”25
In practice, elected members of different political parties have obstructed leg-

islation required for the benefit of all citizens, using the argument that it
would violate the ‘vital interest’ of one or another nationality.
This provision also downgrades Bosnia and Herzegovina’s ‘Others’ who do

not identify themselves as Bosniacs, Serbs or Croats to second-class citizens
as they also lack the means to assert vital interests of their own, thus becom-
ing captives of the nationalist parties’ conception of ‘vital interests’.
25 Constitution of Bosnia and Herzegovina, Article IV.3.e
48
Currently, following a the decision of the Constitutional Court of Bosnia and

Herzegovina on the Constituent Peoples’ Case, vital national interests are de-
fined more clearly in the entity constitutions. Both the Constitution of the
Federation of Bosnia and Herzegovina and the Republika Srpska now define
vital national interests as follows26:
• exercise of the rights of constituent peoples to be adequately repre-

sented in legislative, executive and judicial bodies,
• identity of one constituent people,
• constitutional amendments,
• organization of public authorities,
• equal rights of constituent peoples in the process of decision-making,
• education, religion, language, promotion of culture, tradition and cul-

tural heritage,
• territorial organization,
• public information system, and
• other issues treated as of vital national interest if so claimed by two-

thirds of one of the caucuses of the constituent peoples in the House
of Peoples or Council of Peoples.
This enumeration of issues that are considered to be of vital interests was

again a compromise between minimalists and maximalists, the result of long
bargaining sessions under the auspices of the international community. Yet,
though this list does not represent the best possible interpretation of the Con-
stitutional Court's ruling, or a complete catalogue of all interests the maximal-
26 Article 17a of Title IV: Structure Of The Federation of BiH Government, Chapter A. The Legislature, Section
5: Definition Of Vital Interests of the Constitution of the Federation of Bosnia and Herzegovina as
added by Amendment XXXVII (heading and article 17a). and
Article 70 Title V: Organisation of the Republic, Chapter 1. The National Assembly of the Constitution of
the Republika Srpska as supplemented by Amendment LXXVII
49
ists had wished for, it offered an acceptable framework based on compro-

mise.
The vital interests of the ‘Others’ have been improved only nominally, given
the fact that the Decision of the Constitutional Court of Bosnia and Herze-
govina came mainly to the defense of the constituent peoples. The same Deci-
sion however, ordered that the ‘Oters’ be included in the composition of the
House of Peoples of the Federation of Bosnia and Herzegovina and that they
be represented in the Council of Peoples in the Republika Srpska, which will
have to be established in accordance with this Decision.
THE CONSTITUTIONAL COURT

In Bosnia and Herzegovina, following the Decision of the Constitutional
Court of Bosnia and Herzegovina in the so-called Constituent Peoples Case, the
Constitutional Court came to the fore as the foremost domestic institution in
upholding and adjudicating vital interest cases.
Bosnia and Herzegovina provides a rare example of a country in transition

from a socialist system that nevertheless has a history of having a constitu-
tional court. The first Constitutional Court in the SFR of Yugoslavia was cre-
ated as early as 1963 and prior to the dissolution of former Yugoslavia, the six
Republics and even the two Autonomous Provinces – Kosovo and Vojvodina
– also had their own Constitutional Courts
The Constitutional Court of Bosnia and Herzegovina was established in Feb-

ruary 1964 and its role was reaffirmed in the Constitution of 1974. The juris-
diction of this Constitutional Court consisted primarily of ruling on the con-
formity of the laws of Bosnia and Herzegovina with the Constitution of the
latter, and as to the constitutionality and legality of other regulations and pro-
visions. It would also be called upon to resolve disputes between the Republic
and other legal entities, in particular conflicts of jurisdiction as between the
courts and other bodies.
50
In Post-Dayton Bosnia and Herzegovina, the Constitution of Bosnia and

Herzegovina, now provides the legal framework for the organization and
functioning of the Constitutional Court.
The Constitutional Court is provided for in Article VI of the Constitution,

which defines not only its jurisdiction, but also provides for its organizational
structure and its procedure and for the final and binding character of its deci-
sions.
The Court was established in May 1997, following the first post-war elections.
The Rules of Procedure were adopted at the session held on 29 July 1997 and
have been amended twice.
Composition of the Bosnia and Herzegovina Constitutional Court

The Court is composed of nine members. Six judges are elected by the re-
spective assemblies or parliaments of the entities: four of the members are
elected by the House of Representatives of the Federation of Bosnia and
Herzegovina, and two members are elected by the National Assembly of the
Republika Srpska. Judges of the Constitutional Court are required to be dis-
tinguished jurists of high moral standing.
The remaining three judges are appointed by the President of the European
Court of Human Rights after consultation with the Presidency of Bosnia and
Herzegovina. The judges selected by the President of the European Court of
Human Rights must not be citizens of Bosnia and Herzegovina or of any
neighbouring state. The term of office of those judges who were initially ap-
pointed is five years, unless they resign, or are removed for cause pursuant to
a consensus of the other judges. Judges subsequently appointed may serve
until the age of 70, unless they resign or are removed for cause pursuant to a
consensus of the other judges. The Constitutional Court elects a President
and three Vice-Presidents from among the judges by a secret ballot for a
mandate of 20 months.
51
In addition to membership of a legislative, executive or other judicial author-

ity either in Bosnia and Herzegovina or in the entities, the position of judge is
deemed incompatible with membership of a political party or political organi-
zation in Bosnia and Herzegovina. Any other position that could influence
the impartiality of the judge is likewise irreconcilable.
In performing their functions, judges are entitled to immunity. The Court,

pursuant to a consensus of the other judges, is itself responsible for deciding
on the existence of reasons justifying the dismissal of a judge before the end
of his or her mandate.
Jurisdiction
Generally speaking the powers of the Court, as provided for under the Con-
stitution in Article VI paragraph 3 and Article IV paragraph 3, and subject to
its overriding duty to 'uphold' the Constitution of Bosnia and Herzegovina,
consist of five fields of competence.
Essentially, the distinction between these various fields of competence is

based on the extent to which the Constitutional Court, in addition to the clas-
sical task of upholding constitutionality, also has, in certain types of disputes,
a more direct relation with the judicial or legislative authority concerned.
Disputes arising out of a conflict of competence and an abstract review of constitutionality
Disputes of state organs

The Constitutional Court has exclusive jurisdiction to decide any dispute that
arises under the Constitution between the entities, between Bosnia and Her-
zegovina and an Entity or entities, or between institutions of Bosnia and Her-
zegovina. In effect, the Court has to decide thus in relation to positive or
negative conflicts of competence, or any other disputes that may arise out of
relationships between the state and entity authority structures, and/or the in-
stitutions of Bosnia and Herzegovina.
52
Evaluation of constitutionality of laws

The Constitutional Court has jurisdiction to decide whether any provision of
an Entity's constitution or a law enacted by such Entity is consistent or incon-
sistent with the Constitution of Bosnia and Herzegovina.
Even though the Constitution of Bosnia and Herzegovina explicitly speaks

only of 'provisions of an Entity's law', in accordance with the general principle
that the Court is to uphold the Constitution of Bosnia and Herzegovina, this
does not exclude the evaluation of constitutionality of laws of Bosnia and
Herzegovina.
In special cases, the Court also possesses the power to examine whether an
Entity's decision to establish a special parallel relationship with a neighbouring
state is consistent with the Constitution. Such a case would include provisions
concerning the sovereignty and territorial integrity of Bosnia and Herzego-
vina.
Initiation of proceedings
In both such cases, the Constitution provides that proceedings may be initi-
ated only by the government bodies, to which are special reference is made.
These are any member of the Presidency, the Chair of the Council of Minis-
ters, the Chair or the Deputy Chair of either chamber of the Parliamentary
Assembly, one quarter of the members of either chamber of the Parliamen-
tary Assembly or one quarter of either chamber of the legislature of an Entity.
Within its overall jurisdiction to uphold the Constitution, the Constitutional

Court is not prevented from taking the initiative to lodge ex officio an examina-
tion of the constitutionality of any law. Nevertheless, the Rules of Procedure
have established a principle of self-restriction. Accordingly, ex officio action
taken by the Constitutional Court in respect of the evaluation of the constitu-
tionality of a law has not been provided for.
53
Appellate Jurisdiction
The appellate jurisdiction of the Constitutional Court is established by the
constitutional provision according to which the Constitutional Court has 'ap-
pellate jurisdiction over issues under this Constitution arising out of a judgment of any other
court in Bosnia and Herzegovina'.
This means that the Constitutional Court is the highest judicial body in the
land. This confirms its role as being a special institutional safeguard for the
protection of the rights and freedoms enshrined in the Constitution.
The operational effect of this provision is set out in the Rules of Procedure in
such a way as to provide that the Constitutional Court may act in one of two
ways if it finds that an appeal is well founded: The Court may firstly act as a
court with complete jurisdiction over the case. Thus, it may decide the case on
its merits or simply overturn the judgment and refer the case back to the
lower court. The court whose judgment has been overturned has the duty to
deliver a fresh judgment pursuant under the urgent procedure applicable. In
doing so, it is bound by the legal interpretation of the Constitutional Court as
to the violation of the appellant's rights and fundamental freedoms as pro-
vided for under the Constitution.
Individuals do have a right to lodge an appeal after all legal remedies have
been exhausted if they contend that their human rights have been violated.
The Court will take the effectiveness of possible remedies into consideration.
Referral of an issue by a court

The Constitutional Court has jurisdiction to decide on issues referred to it by
any court in Bosnia and Herzegovina concerning the issue as to whether a
law, on whose validity its decision depends, is compatible with the Constitu-
tion, the European Convention on Human Rights and Fundamental Free-
doms and its Protocols, or the laws of Bosnia and Herzegovina. Likewise
concerning the existence or the scope of a general rule of public international
law. As a general principle, the Constitutional Court may uphold a ruling or
54
declare the law pertinent to the lower court's decision void. The latter has
then to proceed according to the decision of the Constitutional Court.
Unblocking of the Parliamentary Assembly

The jurisdiction of the Constitutional Court in the case of a 'blocking'
of the House of Peoples of the Parliamentary Assembly of Bosnia and
Herzegovina over issues of vital interest, represents in many ways an
atypical area of activity of a constitutional court, since there will
thereby inevitably be a close 'interface' between the judiciary of the
constitutional court and the legislative authorities.
In such a case the Constitutional Court has to resolve a dispute in which a

proposed decision of the Parliamentary Assembly is, according to the opinion
of a majority of the delegates representing any of the three constituent peo-
ples in the House of Peoples, considered to be destructive of a vital interest,
whilst at the same time all 'parliamentary means' for the resolution of this is-
sue in the House of Peoples have been exhausted.
FEDERATION OF BOSNIA AND HERZEGOVINA HOUSE OF

PEOPLES AND REPUBLIKA SRPSKA COUNCIL OF PEOPLES
The Sarajevo Agreement on the implementation of the Constitutional Court
decision in its opening lines puts the responsibility for the protection of Vital
Interests with the House of Peoples of the Federation of Bosnia and Herze-
govina and with the Council of Peoples in the Republika Srpska.
Article 2 of the Agreement states: "A minimum number of 4 members of one con-
stituent people shall be represented in the Republika Srpska National Assembly and the
Federation of Bosnia and Herzegovina House of Representatives.”
Article 3 of the Agreement describes how the House and Council are com-
posed: “(1) The Council of Peoples and the House of Peoples shall be composed on a par-
ity basis so that each constituent people shall have the same number of representatives. (2) A
minimum number of 8 and a maximum number of 17 members shall come from a single
55
constituent people. The Others shall be represented by a number not exceeding one half of the
representatives of a single constituent people in the Council of Peoples and House of Peoples
respectively. (3) Others have the right to participate equally in the majority voting proce-
dure.”
The entity constitutions have been amended in accordance with the Sarajevo
Agreement.
FEDERATION OF BOSNIA AND HERZEGOVINA AND RE-

PUBLIKA SRPSKA CONSTITUTIONAL COURTS
The Sarajevo Agreement on the implementation of the Decision of the Con-
stitutional Court of Bosnia and Herzegovina on the so-called Constituent
Peoples’ Case, stipulates that the Constitutional Courts of the Federation of
Bosnia and Herzegovina and Republika Srpska shall each have a maximum of
nine members, but more importantly, that each Court is to establish a Vital
Interest Panel, composed of seven members: two from each constituent peo-
ple and one from the group of Others. The judges shall be elected by the
House of Representatives and House of Peoples in the Federation of Bosnia
and Herzegovina and by the Republika Srpska National Assembly and Coun-
cil of Peoples in the Republika Srpska.
The entity constitutions have been amended in accordance with the Sarajevo
Agreement.
THE DISTRIBUTION OF POSITIONS AMONG THE CON-

STITUENT PEOPLES
The Constitution of Bosnia and Herzegovina, as well as the constitutions of
the entities and even the cantonal regulations, provide for other power-
sharing mechanisms: the so-called ‘national key’, whereby almost all responsi-
ble positions in the administrations require that every principal has at least
one deputy of another nationality – another consequence of putting collective
rights before individual rights.
56
The preference given to collective rights is not new to the politics of Bosnia
and Herzegovina, as even at the time of the Kingdom – of Serbs, Croats and
Slovenes – national/group identity was given prominence. In post-WW II
Yugoslavia, the federal state placed a lot of emphasis on the socialist idea of
equality among people, a classless society in which all were workers and citizens,
yet the idea that everyone felt they were a Yugoslav citizen existed only in the
minds of a few – though many more would thump themselves on the chest
claiming they were all Yugoslavs for political reasons.
All of the SFR Yugoslav constitutions mentioned the national groups that
made up the country, either as constituent peoples or as national minorities.
SR Bosnia and Herzegovina was no exception in this regard, but whereas
most other republics had a single majority nation, Bosnia and Herzegovina’s
nations were much more mixed and not one of the three peoples – Croats,
Muslims* or Serbs - constituted an absolute majority and thus a power-sharing
arrangement had to be worked out: Article 3 of the 1974 Constitution guaran-
teed “proportional representation in the assemblies of the social-political bodies” to “the
nations of Bosnia and Herzegovina – Croats, Muslims and Serb and members of the
other nations and nationalities”.
Amendments in 1990 did away with all references to the working class and
Amendment 61, and its specifications on practical implementation was out-
lined in articles 19-22 of the “Constitutional Law on the Implementation of Amend-
ments 59-79 to the Constitution of the Socialist Republic of Bosnia and Herzego-
vina.”27 Additional protection of the equality of the peoples of Bosnia and
Herzegovina was envisaged through the establishment of a ‘Council for Ques-
tions of the Establishment of Equality of the Nations and Nationalities of Bosnia and
* The name ‘Muslims’ was gradually left out of the vocabulary and was replaced with the name ‘Bosniacs’
during the Bosnian war, to become official when it was used in the so-called Washington Agreement
that established the Federation of Bosnia and Herzegovina on 18 March 1994.
27 Ustavni Zakon za Sprovodenje Amandmana LIX-LXXIX na Ustav Socijalističke Republike Bosne i
Hercegovine, Službeni Glasnik Socijalističke Republike Bosne i Hercegovine XLVI (21), 594-95 (31 jul 1990)
in Hayden, M. Robert
57
Herzegovina’ in the parliament of the republic, foreseen by Clause 10 of

Amendment 70.28
In 1990, after the Constitution of Bosnia and Herzegovina was amended, it

required the participation of the ‘nations and nationalities’ in governmental
organs at all levels, in proportion to their respective numbers in the popula-
tion and also required special, two-thirds majorities to pass legislative provi-
sions challenged as violating the principles of national equality.29
The constitution of post-Dayton Bosnia and Herzegovina has power-sharing

mechanisms on two levels:
1. Elected positions in the state-level institutions is based upon the fact

that Bosnia and Herzegovina is made up of two entities and both
have a guaranteed number of positions from elected from these terri-
tories. In addition, the constituent group to which a candidate belongs
to, is another qualifier.
2. Appointed positions in state-level institutions are divided between the

constituent peoples
The best example of the first type is the Presidency of Bosnia and Herzego-
vina: a three-member institution elected from the territory of the entities. Arti-
cle V: Presidency of the Bosnia and Herzegovina Constitution states clearly that:
The Presidency of Bosnia and Herzegovina shall consist of three Members: one
Bosniac and one Croat, each directly elected from the territory of the Federation of
Bosnia and Herzegovina, and one Serb directly elected from the territory of the Re-
publika Srpska.
28 Amandmana LXX (10) na Ustav Socijalističke Republike Bosne i Hercegovine, Službeni Glasnik Socijal-
ističke Republike Bosne i Hercegovine XLVI (21), 591 (31 jul 1990) in Hayden, M. Robert
29 Hayden , Robert McBeth, Blueprints for a House Divided : The Constitutional Logic of the Yugoslav Conflicts,
Reprint edition, Michigan, USA, University of Michigan Press, November 2000.
58
From the point-of-view of vital interests, it is obvious that this formula has a
number of serious deficiencies:
1) Non-Serbs in the Republika Srpska, or non-Bosniacs or non-Croats in

the Federation of Bosnia and Herzegovina, are not in a position to
elect ‘their’ representatives to the institutions of Bosnia and Herzego-
vina, leaving them even more unprotected or unrepresented at the
state-level. Their vital interests are only protected by representatives
that are elected from the other entity.
2) As the constitution only mentions Bosniacs, Croats and Serbs, the

Others have no possibility to stand as candidates, or even to be repre-
sented at the state-level.
3) The choices of candidates in an election becomes inherently more

limited, as they are not necessary the best or most qualified; they only
belong to the right constituent people.
Though the Sarajevo Agreement on the implementation of the Constitutional

Court Decision foresees that the vice-presidents of the entities should belong
to a different constituent group than the president, the general principle, and
the deficiencies remain.
The second category, the appointed officials, is even more of a quagmire.

Their appointments are regulated by a whole range of laws and by-laws,
which would fall outside the scope of this study, but it is interesting to note
that the so-called Sarajevo Agreement on the implementation of the Constitu-
tional Court Decision has enshrined the principle of power-sharing through
the distribution of posts among the constituent peoples in the constitution:
“Chapter II- Distribution of key political functions states that: The Prime Minister and
Deputy Prime Ministers may not come from the same constituent people and that Out of
the following positions not more than 2 may be filled by representatives of any one constituent
people or of the group of Others: the Prime Minister; the Speaker of the Federation of Bos-
59
nia and Herzegovina House of Representatives/Republika Srpska National Assembly ;

Speaker of the Federation of Bosnia and Herzegovina House of Peoples/Council of
Peoples; President of Supreme Court; President of Constitutional Court and Public Prosecu-
tors”.
The Sarajevo Agreement addresses a number of the lacunas in the electoral

procedures mentioned above, and it recognizes for the first time that mem-
bers of the group of Others should play an active role in the administration of
the country they belong to.
THE TERRITORIAL PRINCIPLE

This territorial principle is not a new one – territorial electoral units were in-
troduced in election laws and systems to ensure that the number of represen-
tatives in the assemblies of a country would reflect the number of citizens in a
given territorial unit. These subdivisions of the total electorate that send rep-
resentatives to the local or central assembly—is inextricably linked with ques-
tions concerning the nature of representation and methods of voting. Of
these questions, that of representation is primary. The problem of electoral
representation turns on the question of who is to be represented. The con-
stituency, as a geographical area, may contain within its boundaries diverse,
and sometimes incompatible, social, economic, religious, or ethnic interests,
all of which seek to be represented.
The territorial principle, whereby certain functions or positions are reserved

only for persons from a well-defined territorial unit, e.g. from the Federation
of Bosnia and Herzegovina or the Republika Srpska, is a very common prin-
ciple in the legal system of Bosnia and Herzegovina. For example, Article V
on the Presidency of Bosnia and Herzegovina is very specific: ”The Presidency of
Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat,
each directly elected from the territory of the Federation of Bosnia and
60
Herzegovina, and one Serb directly elected from the territory of the Republika
Srpska.”30
HUMAN RIGHTS CHAMBER/COURT AND THE OFFICE OF

THE OMBUDSMAN
The Human Rights Chamber/Court and the Office of the Ombudsman are
additional institutions that are enshrined in Annex 6 of the Dayton Peace
Agreement that could be considered as safeguarding the vital national inter-
ests of the constituent peoples of Bosnia and Herzegovina, as they are insti-
tuted to watch over human rights. According to Article II of Annex 631:
1. To assist in honouring their obligations under this Agreement, the

Parties hereby establish a Commission on Human Rights (the ‘Com-
mission’). The Commission shall consist of two parts: the Office of
the Ombudsman and the Human Rights Chamber.
2. The Office of the Ombudsman and the Human Rights Chamber shall
consider, as subsequently described:
a. alleged or apparent violations of human rights as provided in

the European Convention for the Protection of Human
Rights and Fundamental Freedoms and the Protocols thereto,
or
b. alleged or apparent discrimination on any ground such as sex,

race, colour, language, religion, political or other opinion, na-
tional or social origin, association with a national minority,
property, birth or other status arising in the enjoyment of any
of the rights and freedoms provided for in the international
agreements listed in the Appendix to this Annex, where such
violation is alleged or appears to have been committed by the
30Constitution of Bosnia and Herzegovina Article V: The Presidency

31 General Framework Agreement for Peace, Annex 6: Human Rights, Article II
61
Parties, including by any official or organ of the Parties, Can-

tons, Municipalities, or any individual acting under the author-
ity of such official or organ.
The violations of Human Rights and Fundamental Freedoms described in

Annex 6 however, deal primarily with individual rights, where the vital interests
as described above and enshrined in the constitution of Bosnia and Herzego-
vina and its entities are intended to protect collective rights. On the other hand,
both institutions are mandated to look at alleged or apparent discriminations on any
grounds such as (…) political or other opinion, national or social origin.
On 3 January 2001 the new Law on the Human Rights Ombudsman of Bos-
nia and Herzegovina came into force and gave the current legal basis for the
Human Rights Ombudsman of Bosnia and Herzegovina, The new Law re-
placed Annex 6 of the Dayton Peace Agreement, which was the valid frame-
work of the Ombudsman office since its birth in 1996.
The Human Rights Ombudsman of Bosnia and Herzegovina is according to

the Law an independent institution set up in order to promote good govern-
ance and the rule of law and to protect the rights and liberties of natural and
legal persons, as enshrined in particular in the Constitution of Bosnia and
Herzegovina and the international treaties appended thereto, monitoring to
this end the activity of the institutions of Bosnia and Herzegovina, its entities,
and the District of Brcko. The functions of the Ombudsman’s office are de-
scribed in the Rules of Procedure.
In November 2003, Mr Dragan Covic, the then Chairman of the Presidency

of Bosnia and Herzegovina, requested the assistance of the Venice Commis-
sion as regards the reform of the Ombudsman institutions in Bosnia and
Herzegovina.
At the beginning of 2004, a working group was set up by the Bosnia and Her-
zegovina Minister of Human Rights and Refugees with a view to preparing
62
the reform. Such group is currently composed of a representative of the Min-

ister of Human Rights and Refugees, by the three Human Rights Ombuds-
men of Bosnia and Herzegovina, by the three Ombudsmen of the Federation
of Bosnia and Herzegovina, by the two Ombudsmen of the Republika Srpska
and by representatives of the Ministries of Justice of the state and the two en-
tities.
The Venice Commission organised a working meeting with representatives of

the working group in order for them to identify and agree upon the main aims
and an agenda of the reform. This meeting was held in Strasbourg, on the
premises of the Council of Europe, on 19 April 2004 and the participants in
the meeting reached the following conclusions as to the principles32:
• There is a need to ‘restructure’ the ombudsman institutions in Bosnia

and Herzegovina within a reasonable time;
• The current level of human rights protection must be preserved;
• The final merger of the institutions will be accomplished through a

transitional period during which the three institutions will co-exist;
• The number of ombudsmen must be gradually reduced first from 9 to

3 and then from 3 to 1;
• The principle of multi-ethnicity of the institution will be preserved

through the appointment of deputy ombudsmen (possibly rotating on
the post of ombudsman);
• During the transitional period there will be three institutions, each

with one ombudsman and two deputies;
32 Council of Europe, CDL(2004)028 Agreed conclusions of the working meeting on “Restructuring Ombudsman
Institutions in Bosnia and Herzegovina” (Council of Europe, Strasbourg, 19 April 2004)
63
• It is necessary to reduce the staff, including during the transitional pe-

riod;
• The existing infrastructures, including those of the entities’ institu-

tions, must be preserved, while rationalised;
• The best practices of the current three institutions must be identified

and preserved;
• Co-ordination and non-hierarchical interrelationships amongst the ex-

isting Ombudsman institutions are essential and must be ensured dur-
ing the transitional period.
The implementation of these principles agreed in Strasbourg is not yet un-

derway.
The Federation of Bosnia and Herzegovina Ombudsman Institution

The office of the Federation of Bosnia and Herzegovina Ombudsman has
been operating for eight years through a main office in Sarajevo and six field
offices. The Federation of Bosnia and Herzegovina Ombudsmen are specifi-
cally charged with the protection of human dignity, rights, and liberties as en-
shrined in the constitutions of Bosnia and Herzegovina and the Federation of
Bosnia and Herzegovina and international treaties.
In particular, they are expected to act to reverse the consequences of viola-

tions of these rights and liberties and especially those relating to ethnic clean-
sing. The Ombudsmen may also examine the activities of any institution of
the Federation of Bosnia and Herzegovina, a Canton, or a Municipality.
The Republika Srpska Ombudsman Institution

With a view to establishing a coherent and accessible human rights protection
system in the entities, the Venice Commission together with OHR and OSCE
took up the task of preparing a Draft Organic Law on the Ombudsman of
64
Republika Srpska. The final agreement was adopted by the Republika Srpska
National Assembly and published on 9 February 2000. The Ombudsman In-
stitution is composed of three persons – one Bosniac, one Croat and one
Serb. It has its head office in Banja Luka and four additional field offices.
The Ombudsmen of the Republika Srpska are authorized to protect the rights
and interests of natural and legal persons, as enshrined in particular in the
constitutions of Bosnia and Herzegovina and the Republika Srpska and inter-
national treaties. Applications must be lodged in writing. The general compe-
tence of the Republika Srpska Ombudsmen is directed towards monitoring
the fairness and legality of public administration.
Towards the judiciary, the Ombudsmen are competent to investigate all cases
of poor functioning of the judicial system. However, the Ombudsmen cannot
interfere with the judicial function of courts related to the decision of subject
matters before them.
65
Chapter 7- The use and abuse of vital interests
THE USE OF VITAL INTEREST CLAUSES
As already mentioned in the introduction, evaluating the use of vital interest

clauses in the parliamentary debates in Belgium or Bosnia and Herzegovina
would entail a detailed quantitative analysis, not only of the number of in-
stances and the circumstances in which these clauses have been used effec-
tively, but also of the debates in which they were used as threats. Such statis-
tics are however not kept by the parliaments, making such analysis impossible.
In Belgium, Article 54 of the Constitution on Vital Interests has been invoked

only once in a dispute over the decision of the University of Limburg in Flan-
ders to award university status to an institution of higher learning – the
French-speaking Community immediately invoked the Alarm-bell procedure in
the Federal Parliament, arguing that such a decision would bring about a mis-
balance between the communities. The procedure however was never com-
pleted because the government fell in the months following and new elections
were held and the issue never resurfaced.
The latest example of invoking vital interests occurred recently over the Bolo-
gna Convention on Higher Education, when the HDZ refused to vote on the
proposals before the Bosnia and Herzegovina parliament that would provide
universities with quality control mechanisms, a single legal status for universi-
66
ties and transparent rights and obligations for students and professors, ulti-
mately enabling Bosnia and Herzegovina students to become full members of
the European higher education community.
The House of Peoples of the Bosnia and Herzegovina Parliamentary Assem-

bly failed to adopt the framework law on Higher Education in Bosnia and
Herzegovina during its session on 7 May 2004. The Caucus of Croat delegates
considered the draft law to be harmful to its vital national interests. The fail-
ure to pass legislation to reform higher education in Bosnia and Herzegovina
caused the World Bank to withhold partly credit to Bosnia and Herzegovina.
ABUSE OF VITAL INTERESTS
Vital interests of the constituent people are sometimes invoked for political
reasons that have in fact nothing to do with the interests of a national group
but rather with political stewardship.
On the other hand, although the Constitution of Bosnia and Herzegovina

mentions vital interests, the spirit of the Constitution, as is confirmed in the
definition given in the Agreement on the implementation of the Decision on
the Constituent Peoples, designates them as vital national interests. There are
indeed a many more interests of a great number of other, non-national,
groups such as pensioners, war invalids and all other social categories or civil-
ian factions, that are also of vital importance, yet they do not touch upon is-
sues related to national identity.
Political parties thus often use the term vital interest when they want to rouse
the public and the media, abusing what was meant to denote a mechanism to
protect the unique national character of the colourful peoples of Bosnia and
Herzegovina, thus touching upon the fundamental sentiments of national be-
longing in order to achieve political or economic goals.
67
AND WHAT ABOUT THE OTHERS?
“All … are equal, but some … are more equal than others”.
George Orwell
Human rights are as richly guaranteed by law as they are in Bosnia and Her-
zegovina in few countries. The Constitution of Bosnia and Herzegovina
states, “Bosnia and Herzegovina and both entities shall ensure the highest level of in-
ternationally recognised human rights and fundamental freedoms.”33 The Constitution
further gives priority to European human rights law over all other law, in-
cludes non-discrimination provisions and enshrines in the constitutional order
a range of other international human rights agreements, including some not
ratified by any other European state. Bosnia and Herzegovina was, for exam-
ple, the only state in Europe to have ratified the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families.
These facts notwithstanding, certain provisions of both the Constitution of

Bosnia and Herzegovina and the constitutions of the two entities prima facie
discriminate against ‘non-constituent peoples’ or ‘Others’ as they are called in
the Constitution, thus preventing them from enjoying a number of funda-
mental political rights. Bosnia and Herzegovina is the only country in Europe
in which non-constituent peoples are barred by law from holding crucial high po-
litical offices, including the Presidency. As members of a second-class ‘non-
constituent’ people, the children of the Others in Bosnia and Herzegovina
today can only aspire in vain to becoming president of their country one day.
The Constitution of Bosnia and Herzegovina bars Others from the offices of
the Presidency and the House of Peoples. Only members of the three con-
stituent peoples – Bosniacs, Croats and Serbs – are eligible to participate in
the Presidency and the House of Peoples. Therefore, solely because of their
33 Constitution of Bosnia and Herzegovina Article II(1)
68
ethnicity, the Others are prohibited from even participating as candidates in

elections for such offices.
In addition, where the rights of Others are concerned, the Sarajevo Agree-
ment introduces some protection mechanism for this group, which according
to the 1991 census made up more than 7% of the population of Bosnia and
Herzegovina. The Agreement and the subsequent amendments to the entity
constitutions divulge more power to the non-constituent peoples by guaran-
teeing them positions in all – legislative and executive – bodies of the entities.
For instance, the Others are now full members of the Federation of Bosnia
and Herzegovina House of Peoples and the Republika Srpska Council of Peo-
ples, they have to be proportionally represented in public institutions of the
Federation of Bosnia and Herzegovina and the Republika Srpska and nomi-
nate one minister in each of the entity governments.
69
Conclusions
THE ASSUMPTIONS AND THEIR PROOF
In the introduction, the following hypothesis was proffered:

interests for the peoples they embrace and both have similar institu-
tions to ensure that this constitutionally guaranteed protection is trans-
lated into effective policies.
This hypothesis can be broken down into three sub-assertions:
1. Belgium and Bosnia and Herzegovina offer similar protection of vital interests;
2. Belgium and Bosnia and Herzegovina have similar institutions to ensure that this
constitutionally guaranteed protection
3. Belgium and Bosnia and Herzegovina succeed in translating these legal provisions
into effective policies
70

interests
It is clear that the two countries in their constitutions and through their insti-
tutions offer very similar vital interest protection through procedures included
in the constitutions – the vital interest clauses of the Bosnia and Herzegovina
Constitution and the Alarm-bell procedure in Belgium. Bosnia and Herzego-
vina, because of the provisions of Article II (1) of the Constitution that state
that: “Bosnia and Herzegovina and both entities shall ensure the highest level of inter-
nationally recognised human rights and fundamental freedoms,”, and by virtue of Article
II (2) giving priority to European human rights law over all other law, is most
certainly ahead of Belgium as far as the declared legal basis is concerned. The
fact however that the Constitution of Bosnia and Herzegovina only grants full
political rights to Bosniacs, Croats and Serbs, thus leaving the Others (who at
the time of the last Census of 1991 made up almost 7% of the population) on
the outside of the political arena. The Others, as second-class citizens, can not
stand in the elections, therefore also lacking the means to assert vital interests
of their own, thus becoming captives of the nationalist parties’ conception of
‘vital interests’
Bosnia and Herzegovina as opposed to Belgium, offers a definition of what

vital interests are. Such definition was originally not part of the constitutions
of neither the state nor its entities, but following the Agreement on the im-
plementation of the Constitutional Court of Bosnia and Herzegovina’s deci-
sion on the Constituent Peoples’ Case, both entities have included the same
enumeration of issues that are considered of vital national interest to the con-
stituent peoples of the country.
This agreement has also directed the entities to award more political rights to
the non-constituent peoples and as such, it addressed some of the concerns and
objections over the state-level constitution.
71
In addition, the constitutions of both countries enshrine similar power-

sharing arrangements such as the distribution of key functions among con-
stituent peoples or the territorial principle.
Belgium and Bosnia and Herzegovina have similar institutions to en-

sure that this constitutionally guaranteed protection
It is clear that the two countries have very similar institutions to safeguard
vital interests. First, both countries have constitutional courts (called the
Court of Arbitration in Belgium). Secondly, the Houses of Parliaments hold
have specific mandates and compositions to ensure that individual and collec-
tive rights are adhered to; In Bosnia and Herzegovina, additional human
rights instruments (Human Rights Court/Chamber and the Office of the
Ombudsman) at the state level and in the entities provide additional legal pro-
tection of individual and group rights.
The first years after the Dayton Agreement was signed, most of Bosnia and
Herzegovina’s institutions were headed by international staff; now they are
slowly finding their own way, adapting and rationalising the institutions and
overall preparing for a future under local ownership.
Belgium and Bosnia and Herzegovina succeed in translating these le-

gal provisions into effective policies
The mere fact that Belgium is so often cited in troubled multi-ethnic states
such as Bosnia and Herzegovina as an example of peaceful co-habitation and
successful de-centralisation is proof of the perception that the Belgian
mechanisms functions well. Belgium has successfully warded off more serious
crises between its constituent nations through a series of state reforms that
have created a stable system of checks-and balances in which Flemish-,
French- and German-speakers feel assured that their national identity in no
longer threatened. Dialogue at the Conference for state Reform - a forum in
which reforms of the state can be discussed among the communities in a se-
rene environment - has replaced the heated parliamentary debates of the 70-
72
ies and 80-ies. Whether the Alarm-bell Procedure would actually function is
not yet know – it has never been used since it was introduced in the Constitu-
tion of Belgium.
In Bosnia and Herzegovina, the transformation from ideas, principles and

institutions towards successful policies still has a long way to go, but it is ap-
parent that some institutions, notably the Constitutional Court of Bosnia and
Herzegovina have stood up against the discrimination and nationalist policies
that do not recognise all people as equals.
Praise should also be given to the human rights institutions in Bosnia and
Herzegovina and the entities where brave men and women have defended the
rights of those who the politicians were unwilling to award their basic human
rights and dignities.
Political bodies, and most notably the entity governments, must still be
spurred on by the international community in upholding their own constitu-
tions. Especially in the Republika Srpska, the reluctance to implement the
Decision of the Constitutional Court of Bosnia and Herzegovina not only to
the letter but also in spirit remains an obstacle to reconciliation and continues
to reinforce people’s predisposition to seek protection among their own.
Part of Belgium’s success can be found in the fact the all of its peoples feel
they are Belgians in the first place, and members of a linguistic group comes
second. One of the major tasks for Bosnia and Herzegovina is to help its citi-
zens overcome the feeling that belonging to an ethno-national group – Bosni-
acs, Croats or Serbs – is less important than being citizens of a country called
Bosnia and Herzegovina. Nationalist politicians should also refrain from play-
ing on people’s fear for their security as members of an ethno-national group
and any future constitutional arrangements should address these fears.
The future of Bosnia and Herzegovina lies in a system with strong protection
of individual rights, which acknowledges the need for ethnic security without
73
yielding, as the Dayton Peace Agreement unfortunately does, to the supposi-

tion that ethnic groups have objectively competing and mutually exclusive
interests. In the words of the High Representative: “The Constitution of Bosnia
and Herzegovina should be viewed as the foundation and not the ceiling. Since then we have
sought to facilitate the evolution of the constitutional order and institutional framework in a
manner that will underpin rather than undermine the functioning of the state.”
74
75
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78

Comparing Vital Interest Clauses in The Constitutios of BiH and Belgium

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Comparing Vital Interest Clauses in The Constitutios of BiH and Belgium

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UNIVERZITET U SARAJEVU

Fakultet političkih nauka

PROTECTION OF VITAL INTERESTS OF

A COMPARISON OF THE RELEVANT CLAUSES IN THE CON-

Student: Johan Verheyden Mentor: Prof. Dr. Omer Ibrahimagić

A COMPARISON OF THE RELEVANT CLAUSES IN THE CON-

TABLE OF CONTENTS .............................................................................. I

CHAPTER 1- CONSTITUTIONS ...............................................................7

What Is A Constitution? .................................................................................................... 7

CHAPTER 2- BELGIUM AND ITS CONSTITUTION.......................... 13

Belgium, A unitary state ...................................................................................................13

CHAPTER 3- THE DAYTON CONSTITUTION OF BIH.................... 21

Dayton and the Constitution of Bosnia and Herzegovina........................................21

CHAPTER 4- THE CONSTITUTIONAL COURT DECISION............26

Agreement on the Implementation of the Constituent Peoples’ Decision of

Vital interest protection ............................................................................................28

CHAPTER 5 - MECHANISMS TO PROTECT VITAL INTERESTS

Article 54 Group Veto, Alarm-Bell Procedure............................................................38

CHAPTER 6 - MECHANISMS TO PROTECT VITAL INTERESTS

‘Vital Interests’ – in the entity constitutions.................................................................48

CHAPTER 7- THE USE AND ABUSE OF VITAL INTERESTS ..........66

The Use Of Vital Interest Clauses .................................................................................66

The Assumptions And Their Proof...............................................................................70

Thanks also to my supervisor and mentor, Professor Dr. Omer Ibrahimagic,

Belgium, like Switzerland, is often cited in Bosnia and Herzegovina as an ex-

Bosnia and Herzegovina, in spite of its long tradition as a multi-confessional,

Peace Agreement, attempts to coax these groups into accepting a common

These mechanisms and institutions to maintain a balance of power between

Comparing the constitutions or laws of different countries raises the prospect

Comparing the institutions and mechanisms in place in Belgium and in Bos-

A proffered hypothesis could thus be:

Belgium and Bosnia and Herzegovina offer similar protection of vital

Etymologically, ‘method’ is originally from Greek ‘méthodos’, a compound of

For many nineteenth-century writers however, especially French ones, ‘method’

of the mind’ (Regulae ad directionem ingenii)2, which were published posthumously

Regula IV: Necessaria est methodus ad veritatem investigandam.

Rule IV: A method is necessary for investigating truth.

The term ‘comparative method’ emerges in the mid-eighteenth century, ap-

term belongs to a discourse on the general methodology of the life sciences

Scholars who established the social sciences were careful to distinguish it

In his effort to escape from the individualizing and particularizing approach,

The ideal type involves an accentuation of typical courses of conduct and

5 Max Weber’s Homepage © 1996, Frank Ehwell – Rogers state University,

Several disciplines have developed as separate branches of comparative law,

Comparative law is not a body of rules and principles. Primarily, it is a

Though in the history of nations the development of these codes is based

some, is no exception in this aspect: the National Assembly of Republika

However, the above-mentioned elements are insufficient to explain how con-

Modern constitutions and constitutionalism are closely intertwined with the

Collective rights, although nowadays increasingly acknowledged in both the-

In post-Dayton Bosnia and Herzegovina, the constituent peoples possess

ADDITIONAL CONSTITUTIONAL FUNCTIONS

Legitimization of the state authority – constitutions, by their very existence, estab-

12 Ustav Socijalisticke Republike Bosne i Hercegovine (1974), Part I, Article 1.

Establishment of mechanisms for adjudication – In the event of conflict between po-

Expression of basic beliefs and symbolism – constitutions, either explicitly or implic-

Chapter 2- Belgium and its Constitution

BELGIUM, A UNITARY STATE

In 1828, Catholics and Liberals drew up a concerted programme of demands

Belgium experienced a remarkable economic resurgence in the early post-war

CONSTITUTIONAL REFORM IN BELGIUM

THE FIRST AND SECOND STATE REFORMS

Some constitutional guarantees were constructed to secure the position of the

21 Constitution of Bosnia and Herzegovina, Article VI.3: Jurisdiction.