Genesis and Legitimacy of the Constitution of Bosnia-Herzegovina Cover Image

Geneza i legitimnost Ustava Bosne i Hercegovine
Genesis and Legitimacy of the Constitution of Bosnia-Herzegovina

Author(s): Christian Steiner
Subject(s): Politics / Political Sciences
Published by: Udruga građana »Dijalog«

Summary/Abstract: The author proposes a number of arguments in support of the view that one should not accept the claim by Edin Sarcevic that, on the ground of various procedural considerations, the Dayton Constitution for the BiH ought to be deemed illegitimate. For instance, the fact that the Dayton Constitution was not passed by a constitutional assembly, assembled specifically for that occasion, does not cast doubt on legitimacy of the Constitution. A majority of both entity parliaments’ members and the Republic Parliament’s members, with the latter elected in accordance with the Republic Constitution for the BiH (and in somewhat reduced numbers), voted separately for the Dayton Constitution. The fact that, on that occasion, the formal criteria of the old, Republic BiH Constitution were not given a due consideration, can be explained as being motivated by the international-legal state of necessity in which the bodies endowed with the power to end the war found themselves at the time. The author also points to certain parallels with the US Constitution, which, like the Dayton Constitution itself, was passed in the period of ‘revolutionary’ changes; drawing on Yee, he makes his point that, in the periods of crisis, the convenience of a normal procedure needs to be temporarily sacrificed. In the second part, the analysis shifts onto the Constitution of the Socialist Federal Republic of Yugoslavia [SFRY], and the author considers the degree to which the post-1990 conduct of both Yugoslav peoples and the Yugoslav republics can be justified in legal terms through the SFRY Constitution. He concludes with the argument that the secession of the republics from the federal association, that is SFRY, is not free from doubts concerning the question of compatibility of such a secession with both the SFRY Constitution and the international law; however, from an international-legal point of view as well as the point of view of morality, such doubts could in no way justify the inhumane treatment, expulsion or killing of civilian populations, or the members of a different ethnic group.

  • Issue Year: 2006
  • Issue No: 09
  • Page Range: 156 -160
  • Page Count: 5
  • Language: Croatian