A critical appraisal of human rights provisions of the Dayton constitution of Bosnia and Herzegovina

Human Rights Quarterly

Volumn 20, Issue 1, 1998, Pages 125-138

  Pajić, Zoran ^a  

^a NONE

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EID: 0344980928     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1998.0009     Document Type: Article

References (58)

1. General Framework Agreement for Peace in Bosnia and Herzegovina, U.N. Doc. S/ 1995/999 (1995), reprinted in 35 I.L.M. 75 (1996) [hereinafter Dayton Agreement]. This document will be referred to as the Dayton Agreement because it was entirely drafted in the course of negotiations held at the Wright Patterson Air Force Base in Dayton, Ohio, for three weeks in November 1995.
2. Id. Annex 4.
3. Id. Annex 6. The Dayton Agreement contains the following annexes: 1-A, Military Aspects; 1-B, Regional Stabilization; 2, Inter-Entity Boundary; 3, Elections; 4, Constitution; 5, Arbitration; 6, Human Rights; 7, Refugees and Displaced Persons; 8, Commission to Preserve National Monuments; 9, B&H Public Corporations; 10, Civilian Implementation; 11, International Police Task Force. Id.
4. This assertion could be elaborated at length, but two arguments seem relevant for this paper. The first is that inter-Entity boundaries follow, by and large, the frontlines established during the war. The second is that the current ethnic map of Bosnia and Herzegovina accurately illustrates the policy of enforced expulsion and displacement of people, carried out on ethnic criterion.
5. See S.C. Res. 1031, U.N. SCOR, 3607th mtg., ¶ ¶ 14, 33, U.N. Doc. S/RES/1031 (1995); S.C. Res. 1088, U.N. SCOR, 3723rd mtg., ¶ 18, U.N. Doc. S/RES/1088 (1996); see also Dayton Agreement, supra note 1, Annex 1-A, art. 1 (referring to the role of the Multinational Implementation Force (IFOR) mandate and the role of NATO in the implementation of the Dayton Agreement).
6. See BORISAV JOVIC, POSLEDNJI DANI SFRJ (The Last Days of SFRJ /Socialist Federal Republic of Yugoslavia/) 360, 367 (1995).
7. However, it appears that the basic objectives of the trusteeship system, as they were formulated in the Charter of the United Nations in 1945, are somewhat appropriate for the situation found in Bosnia and Herzegovina after the signing of the Dayton Agreement. Article 76 of the UN Charter explains the basic objectives as: "further[ing] international peace and security; promot[ing] the political, economic, social and educational advancement of the inhabitants . . . encouraging] respect for human rights and for fundamental freedoms for all without [discrimination and facilitating the wishes of the peoples to be freely expressed.]" U.N. CHARTER art. 76, signed 26 June 1945, 59 Stat. 1031, T.S. 993 (entered into force 24 Oct. 1945).
8. See Dayton Agreement, supra note 1, Annex 10.
9. Id. (referring to responsibilities of the High Representative). The first mandate was entrusted to the former Swedish Prime Minister, Karl Bildt. Currently, the office is held by the Spanish Diplomat Carlos Westendorp.
10. See id. Annex 4, art. VI, ¶ 1a.
11. See id. Annex 4, art. VII, ¶ 2.
12. See id. Annex 6, art. VI, ¶ 2.
13. See id. Annex 6, art. VII, ¶ 2.
14. See UNITED NATIONS, THE BLUE HELMETS: A REVIEW OF UNITED NATIONS PEACE-KEEPING (3d ed. 1996).
15. See UNHCR Information Notes, No. 6/7, June-July 1996, at 4; UNHCR Information Notes No. 8/9, Aug.-Sept. 1996, at 10-11. UNHCR Office of the Special Envoy, Sarajevo (providing facts on refugees and displaced persons) (on file with author).
16. Dayton Agreement, supra note 1, Annex 4.
17. Id.
18. Id.
19. See Detailed Report from the Parliament Session of 14 October 1991, OSLOBODJENJE, 15 Oct. 1991, at 1 (a Sarajevo daily) (stating that the Serb Democratic Party, the leading political party of Bosnian Serbs, opposed the independence of Bosnia and Herzegovina from the very beginning of the break-up of Yugoslavia) (on file with author).
20. See Eric Stein, International Law in Internal Law: Toward Internationalization of Central-Eastern European Constitutions?, 88 AM. J. INT'L L. 427 (1994);
21. Vladlen S. Vereshchetin, New Constitutions and the Old Problem of Relationship Between International Law and National Law, 7 EUR. J. INT'L L. 29 (1996).
22. See SOCIALIST FED. REP. OF Yuco. CONST. pmbl., ¶ VII (1974), published in SLUZBENI LIST SFRJ 9/1974 ("SFRY shall strive . . . for a respect for generally accepted rules of international law."). The constitution continues in Article 210 that: "International treaties which have been promulgated shall be directly applied by the courts of law." Id. art. 210.
23. Dayton Agreement, supra note 1, Annex 4.
24. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3rd Sess., (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949).
25. International Convenant on Civil and Political Rights, adopted 16 Dec. 1966, 999 U.N.T.S. 171, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16 at 52, U.N. Doc. A/6316 (1966) (entered into force 23 Mar. 1976).
26. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, 993 U.N.T.S. 3, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into force 3 Jan. 1976).
27. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted 18 Dec. 1992, G.A. Res. 47/135 U.N. GAOR, 47th Sess., Annex, U.N. Doc. A/Res/47/135/Annex (1992), reprinted in 32 I.L.M. 911 (1993).
28. Dayton Agreement, supra note 1, Annex 4.
29. Id.
30. Id.
31. Id. Annex 4, art. 2, ¶ 6.
32. Id. Annex 4, art. 2, ¶ 2.
33. Id. Annex 4 (Annex 4 being the constitution); id. Annex I (Annex I being an annex to the constitution). Annex I to the constitution, entitled "Additional Human Rights Agreements To Be Applied in Bosnia and Herzegovina," lists the following documents: 1948 Genocide Convention; 1949 Geneva Conventions and 1977 Protocols; 1951 Refugee Convention; 1957 Convention on the Nationality of Married Women; 1961 Convention on the Reduction of Statelessness; 1965 Racial Discrimination Convention; 1966 International Covenants on Human Rights and Optional Protocols; 1979 Convention on Discrimination Against Women; 1984 Torture Convention; 1987 European Torture Convention; 1989 Convention on the Rights of the Child; 1990 Convention on the Protection of Migrant Workers; 1992 European Charter for Regional and Minority Languages; and 1994 Framework Convention for the Protection of National Minorities. Id.
34. Id. Annex 4, art. II, ¶ 7.
35. Id. Annex 4, art. II, ¶ 2; id. Annex 6, art. VII, ¶ 2.
36. See id. Annex 6, art. II.
37. See Chris Bennett, Voting Early, Voting Often (visited 30 Sept. 1997) 〈http:// www.demon.co.uk/iwpr/wr/wr46-bennet.html〉;
38. International Crisis Group, Going Nowhere Fast: Refugees and Internally Displaced Persons in Bosnia (last modified 30 Apr. 1997) 〈http://www.intl-crisis-group.org/projects/bosnia/report/bh22repl. html〉.
39. Dayton Agreement, supra note 1, Annex 4, art. II, ¶ 4. The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Id.
40. Id. Annex 4, art. II, ¶ 5; see also id. Annex 7. This may remain wishful thinking for the many years to come, but such provision is crucial for upholding two basic political goals of the peace settlement: reconciliation of the peoples in the region, and the reversal of ethnic cleansing.
41. Id. Annex 4, art. I, ¶ 4.
42. See id. Annex 7.
43. Id. Annex 4, art. I, ¶ 4.
44. Id. Annex 4, art. I, ¶ 8.
45. See Anthony Lester, Taking Human Rights Seriously, in HUMAN RIGHTS FOR THE 21ST CENTURY 73 (Robert Blackburn & James J. Busuttil eds., 1997) (implying that appeals for more "seriousness," those against double standards and shallowness in dealing with human rights, also can be heard in the countries with much longer democratic traditions).
46. Dayton Agreement, supra note 1, Annex 6.
47. Id.
48. Id. Annex 4, art. 1, ¶ 3. On the eve of the proclamation of independence of the Republic of Bosnia and Herzegovina, in March 1992, the Bosnian Serbs proclaimed the "Republic of the Serbian People," later renamed the "Serb Republic" ("Republika Srpska"). A year after their mutual armed conflict, Bosnian Croats and Bosnian Muslims accepted the Washington Agreement in March 1994, and established the federation of those two peoples under the name "Federation of Bosnia and Herzegovina." In international relations, "Republika Srpska" was never granted any form of international recognition, save for internal negotiations and even then mostly under the diplomatic cover of the Federal Republic of Yugoslavia. The Federation of Bosnia and Herzegovina, on the other hand, was implicitly accepted in international affairs as a substitute for the "Republic of Bosnia and Herzegovina," which under the latter name was internationally recognized and admitted into the United Nations in May 1992.
49. See id. arts. IV, V, VII. Compare REP. SRPSKA CONST., art. 1 (amended 1994) and FED. BOSNIA & HERZEGOVINA CONST., art. 1 (the Washington Agreement from 1994) (on file with author).
50. "Bosniac" ("Bošnjak") is the new name introduced in the political vocabulary by the leading Muslim political party, SDA (Stranka demokratske akcije, Party of Democratic Action), in 1995. The new name can be questioned as impractical and etymologically inconsistent. Historically speaking, the name of the region (Bosnia) has a much broader national base, and this new name creates the risk of shrinking that foundation. Implicitly, this new name tends to eliminate the traditional label "Bosnian" (or "Bosanac" in the local spelling), that quite comfortably embraced all inhabitants of that region and that was free of any national or political connotations.
51. Dayton Agreement, supra note 1, Annex 4.
52. Id.
53. Compare REP. SRPSKA CONST., art. 1 (amended 1994) (constitution of the Serb Republic) and FED. BOSNIA AND HERZEGOVINA CONST., art. 1 (the Washington Agreement from 1994) (constitution of the Federation of Bosnia and Herzegovina).
54. Dayton Agreement, supra note 1, Annex 4, arts. IV, V, VII.
55. Id. art. IX, ¶ 3.
56. See U.N. CHARTER pmbl., signed 26 June 1945, 59 Stat. 1031, T.S. 993 (entered into force 24 Oct. 1945) (reaffirming "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small"); id. art. 1 (listing purposes of the United Nations, including "respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion"); Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3rd Sess., (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949). The preamble notes that: [R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world . . . [encouraging] teaching and education to promote respect for these rights and freedoms . . . to secure their universal and effective recognition and observance. Id. pmbl. See also Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22nd plen. mtg., part 1, ¶ 18, U.N. Doc. A/CONF.157/ 24 (1993) (reiterating that "the universal nature of these rights and freedoms is beyond question . . . human rights and fundamental freedoms are the birthright of all human beings").
57. See NEW YORK STATE BAR ASSOCIATION, THE LAWYER'S CODE OF PROFESSIONAL RESPONSIBILITY Canon 2, EC 2-25 (1994). This states: A lawyer has an obligation to render public interest and pro bono legal service. A lawyer may fulfill this responsibility by providing professional services at no fee or at a reduced fee to individuals of limited financial means or to public service or charitable groups or organizations, or by participation in programs and organizations specifically designed to increase the availability of legal services. In addition, lawyers or law firms are encouraged to supplement this responsibility through the financial and other support of organizations that provide legal services to persons of limited means. Id. There are many NGOs that engage lawyers on a pro bono basis. The most experienced NGOs in the USA that handle cases domestically are the American Civil Liberties Union, the Center for Constitutional Rights, and the Children's Defense Fund. The International Human Rights Law Group, Human Rights Watch, the Lawyers Committee for Human Rights, and the International League for Human Rights, also engage in these activities on a worldwide level. In the United Kingdom, Amnesty International, Interights, and AIRE Centre have worldwide reputations, while Justice takes up human rights cases domestically.
58. A recent example is the response that the International Human Rights Law Group (IHRLG), which is based in Washington D.C., is getting from local lawyers in Bosnia and Herzegovina regarding IHRLG's regional project there. IHRLG launched the idea of working with local lawyers/advocates to help them initiate cases before both the Chamber and the Ombudsman. IHRLG also offers assistance in organizing a scheme to provide free legal services to individuals, particularly women, who have been victims of human rights violations and who wish to file claims before the new protection system in Bosnia and Herzegovina. See International Human Rights Law Group Training Workshop, How to Prepare a Discrimination Case, Sarajevo, 15 Apr. 1997 (on file with author).