CDL-INF(1999)009e
Strasbourg, 21
June 1999
OPINION ON RESPONSIBILITIES FOR THE CONCLUSION AND IMPLEMENTATION OF
INTERNATIONAL AGREEMENTS UNDER THE CONSTITUTION OF BOSNIA AND HERZEGOVINA
adopted
by the Commission at its 39th Plenary meeting
(Venice,
18-19 June 1999)
1. At
the 36th plenary meeting of the Commission on 16 to 17 September
1998 the representative of the Office of the High Representative (OHR) informed
the Commission that the High Representative wished the Commission to study the
issues pertaining to consultation and co-operation between Bosnia and
Herzegovina and the two Entities in concluding and implementing international
agreements. The Commission decided to first pursue its consideration of a
number of specific international agreements submitted to it by the OHR and then
come back to the more general questions. Following the adoption of the
Commission’s opinion on these specific international agreements at the 37th
plenary meeting on 11 to 12 December 1998 (documentCDL-INF(98)20), the
Sub-commission on the Federal and Regional State asked the working group which
had prepared the previous opinion to study the more general questions as well.
2. The
working group, composed of Messrs Bartole, Matscher and Tuori with Mr Scholsem
in the chair met in Paris on 29 January 1999 and in Bologna on 19 March 1999
together with OHR representatives. The Sub-commission examined the draft
opinion prepared by the Working Group in Bologna on 19 March 1999 and in Venice
on 17 June 1999 and, after amending it, submitted it to the Commission for
approval. The present text was adopted by the Commission at its 39th
plenary meeting in Venice on 18 to 19 June 1999.
3. The
present opinion examines questions of competence of Bosnia and Herzegovina (BH)
and the Entities from the point of view of BH constitutional law. It does not
address the question whether the treaties concluded by BH are valid under
international law.
4. Nor
does the opinion address questions pertaining to agreements on special parallel
relationships between Entities and neighbouring States under Article III.2.(a)
of the Constitution. These agreements are dealt with in the above-mentioned
opinion (CDL-INF(98)20).
5. While
it is not the main object of the opinion to address the division of
responsibilities between the various institutions of BH, a few words should be
said with respect to the role of the Presidency and the Council of Ministers.
Article V.3 of the Constitution gives the Presidency the main role with respect
to foreign relations and states in particular that the Presidency negotiates
treaties of BH. This does however not mean that this role of the Presidency
excludes the Council of Ministers, and it would be appropriate for the Ministry
of Foreign Affairs to carry out such negotiations at the practical level on
behalf of the Presidency and with its consent. This is in accordance with
Article 43 of the Law on the Council of Ministers of BH which provides “The Ministry for Foreign Affairs has
responsibility for: foreign policy under the general direction of the
presidency. Negotiates treaties and agreements.” This however does not
imply that the Minister for Foreign Affairs, as a member of the Council of Ministers,
is individually answerable to the Presidency.
I. The conclusion of international agreements by BH and the Entities
6. The
conclusion of certain categories of treaties poses few legal problems. Within
areas under the exclusive responsibility of BH at the internal level, such as
immigration or asylum, BH may conclude treaties without consulting the
Entities. By contrast, the Entities are not competent to conclude any treaties
in these fields.
7. Article
III.2.(d) of the Constitution explicitly authorises the Entities to conclude
international agreements in other areas, subject to the consent of the BH
Parliamentary Assembly. This provision does not explicitly require an early
consultation of BH institutions on international agreements Entities wish to conclude.
However the Entities would be well advised to consult the BH authorities
systematically at an early stage to avoid problems later when the consent of
the Parliamentary Assembly is sought. The Commission recommends the
establishment of a generally applicable procedure for such consultations.
8. The
main legal issue is whether BH has the power to conclude international
agreements in areas which are internally within the exclusive responsibility of
the Entities. It is clear that BH may be empowered by the Entities to conclude
such agreements. This corresponds to what is provided for in Art. III.5 of the
Constitution and to a practical necessity since it will often be impossible for
the Entities to conclude in particular multilateral agreements. For such
agreements the Entities remain dependent on the willingness of the BH
Presidency to negotiate and conclude international agreements and they have no
possibility to oblige the Presidency to conclude such agreements if it does not
wish to do so.
9. The
question is however whether BH may act in these areas without the consent of
the Entities. With respect to international agreements, two interpretations of
the responsibilities of BH may be put forward: either BH may be said to have a
general responsibility under the Constitution to conclude any international
agreement, or the responsibilities of BH at the external level may be
understood as being parallel to the internal responsibilities and limited to
areas for which an explicit responsibility is attributed to BH by the
Constitution.
10. This
depends in particular on the interpretation of Article III.1.(a) of the
Constitution giving BH responsibility for foreign policy. This provision may
either be understood as giving BH responsibility for conducting international
relations in whatever field and thereby the capacity to conclude any
international agreement, or as referring only to foreign relations at the
political level and not including agreements of a more technical character or
as including agreements for which the political aspects prevail over the
technical aspects. To give an example: the accession of BH to the Statute of
the Council of Europe would undoubtedly be a political act and could be based
on the BH responsibility for foreign policy, whereas accession to the Council
of Europe's European Commission for the Protection of Pet Animals would mainly
concern areas within the responsibilities of the Entities and might therefore
be considered as requiring the consent of the Entities. Of course, the
distinction will not always be clear-cut and a treaty which might well be
regarded as technical with repect to its substance may become political due to
specific considerations, e.g. a crisis in the relations between the States
concerned. On the other hand, an eminently political act such as accession to
the Council of Europe may also force the Entities to take important measures in
their fields of responsibility, especially with respect to the judicial system.
11. A
number of arguments may be advanced in favour of requiring Entity consent for
international agreements touching Entity responsibilities at the internal
level:
·
The general distribution of responsibilities as
provided for in particular in Art. III.3.(a) heavily favours the Entities and
it would seem plausible to have this tendency also reflected at the external
level;
·
The BH Constitution tends to give exclusive
responsibilities to the State or to the Entities; it would therefore be
appropriate to leave the various fields in their entirety, including their
external aspects, within the responsibility of the Entities;
·
Under Art. III.2.(d) of the Constitution the
Entities may conclude international agreements with the consent of the BH
Parliamentary Assembly: this shows that international agreements are not
exclusively reserved to BH;
·
The external competence should not be a device
enabling BH to encroach upon areas reserved to the Entities;
·
It will be very difficult for BH to conclude
international agreements in areas under the exclusive responsibility of the Entities
for which BH will lack the appropriate technical competence;
·
If the Entities have to implement the Agreement
later, they should have a role in the decision on whether the Agreement is
concluded.
12. There
are however a number of arguments of equal weight in favour of granting BH a
general responsibility to conclude international agreements without prior
authorisation by the Entities:
·
The BH Constitution puts particular emphasis on
safeguarding the international position of BH: this is apparent from Art. I.1,
from the references to sovereignty, territorial integrity and partly also
international personality in the Preamble and Arts. III.2.(a), III.5.(a) and VI.3.(a) and from the numerous
references to international aspects throughout the text (e.g.: the first four
responsibilities enumerated for the Presidency in Art. V.3.(a) to (d) all
concern foreign policy);
·
The very weakness of BH as a federal State
indicates the necessity to safeguard its international position;
·
Art. III.2.(b) of the Constitution emphasises
the primary responsibility of BH for all international obligations;
·
Granting this possibility does not seem to
entail particular risks for the interests of the Entities since, within the
institutional set-up of BH, one of the two chambers of the Parliamentary
Assembly, the House of Peoples is able to protect the interests of the Entities
and to prevent any encroachment of BH on areas of Entity responsibility.
13. The
Commission does not feel called upon to pronounce itself on this important legal
question at the present stage. As set out above, arguments of considerable
weight may be advanced in favour of either approach and it is up to the organs
of BH, in particular to the Constitutional Court, to take the final decision.
In addition, instead of a general rule that agreements touching Entity
responsibility do or do not require Entity consent, one could also
differentiate on the basis of whether elements of foreign policy or elements of
a specific subject matter within the responsibility of the Entities prevail.
For the moment it seems sufficient to point out the main arguments and a way of
proceeding in practice. There are also good reasons in favour of a pragmatic
approach based on consultations and co-operation leaving the legal question
undecided.
14. In
many areas BH will not be able to conclude meaningful agreements without the
co-operation of the Entities. On the other hand, the Entities may not conclude
agreements without the consent of the BH Parliamentary Assembly. Co-operation
is therefore in the interest of both sides and, indeed, it has already started.
In its Opinion on the constitutionality
of international agreements concluded by BH and/or the Entities
(CDL-INF (98) 20) the Commission noted, and approved in
principle, the practice of concluding joint agreements to be signed both by BH
and an Entity. In a statement of the BH Presidency of 10 March 1997 it is set
forth that “the Agreements exclusively under the competence of BH shall be
signed in accordance with the previously established procedure; the agreements
which create commitments and rights for the Entities shall be signed by the
authorised member of the BH Presidency and the authorised representative of the
Entity.” One may well wonder whether such a sweeping statement is really within
the powers of the Presidency; nevertheless it has to be noted that the BH
Presidency is aware of the need for co-operation with the Entities in this
respect.
15. BH
and the Entities therefore seem on the way to finding a pragmatic approach to
the question which does not violate any legal principles. The Commission urges
them to go further and define a generally applicable consultation procedure for
all international agreements touching upon Entity responsibilities. The
Commission notes that such a pragmatic approach has precedents. In the Lindau
Agreement of 1958 between the Federation and the Länder in Germany both sides
expressly maintain their legal position while agreeing on consultation
mechanisms. With respect to European law, the newly worded Article 23 of the
Basic Law provides for very developped co-operation mechanisms between the
Federation and the Länder.
16. In
addition, BH would seem well advised to introduce new legislation governing the
conclusion and implementation of international agreements. Legislation dating
from the period prior to the entry into force of the Constitution is obviously
no longer adapted to the unique constitutional situation of the country.
17. As
a conclusion the Commission therefore notes:
·
International agreements in areas within the
responsibility of BH at the internal level may be concluded by BH without
consulting the Entities;
·
The Entities may, with the consent of the BH
Parliamentary Assembly, conclude international agreements in their areas of responsibility
and would be well advised to enter into early consultations with BH organs when
wishing to enter into such agreements;
·
Consultation mechanisms between BH and the
Entities should be established for international agreements to be entered into
by BH which concern responsibilities of the Entities at the internal level.
II. The implementation of
international agreements
18. Appropriate
early consultations should enable problems to be avoided when international
agreements concluded by BH have to be implemented at the Entity level. The
Commission underlines in this respect the general obligation of the Entities
under Art. III.2.(b) of the Constitution to provide all necessary assistance to
the government of BH in order to enable it to honour its international
commitments. This is a clearly defined obligation of the Entities which of
course implies a general obligation of the Entities to fully implement all
international agreements concluded by BH. BH may address the Constitutional
Court under Art. VI.3.(a) of the Constitution whenever this obligation is not
honoured.
19. As
an additional step one might consider whether BH might substitute Entity action
required by an international agreement but not taken by the Entity despite the
international commitment. The Austrian Constitution provides an international
precedent for responsibility passing in such a situation from an entity to the
Federation. Its Art. 16.(4) provides: ” The Länder
are bound to take measures which within their autonomous sphere of competence
become necessary for the implementation of international agreements; should a Land fail to comply punctually with this
obligation, competence for such measures, in particular too for the issue of
the necessary laws, passes to the Bund.
…” This also corresponds to the practice in Switzerland.
20. In
the absence of an explicit provision to this effect in the BH Constitution the
Commission hesitates to affirm that the legal situation in Bosnia is similar to
Austria. The proper way to deal with such issues under the BH Constitution is
to address the Constitutional Court under Art. VI.3.(a). Nevertheless, if
despite a decision of the Constitutional Court an Entity still fails to take
the steps necessary to honour an international commitment, it is possible to assume
that, in order in particular to avoid becoming responsible for a violation of
international law, BH then may take the required measures as part of its
foreign policy responsibility under Art. III.1.(a) and as necessary to preserve
its sovereignty under Art. III.5.
III. The international agreements listed in Annex I of the BH Constitution
21. In
his request, the Office of the High Representative also refers to the
international human rights agreements listed in Annex I to the Constitution, BH
is under an obligation by virtue of Art. II.7 of the Constitution to become a
Party to them if this is not already the case. It is recalled that the ECHR is
not among these conventions. The European Convention is directly applicable in
BH under the terms of Article II.2 of the Constitution.
22. According
to the information provided to the Commission, BH is indeed, as a successor
State of the former SFRY, a Party to the various UN Conventions listed in this
Annex.
23. The
same is not true with respect to the three Council of Europe Conventions:
·
The European Convention for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment
·
The European Charter for Regional or Minority
Languages
·
The Framework Convention for the Protection of
National Minorities.
On 30 September 1996
governmental decrees ratifying these three treaties were published in the
Official Gazette of BH. However, no instrument of ratification, approval,
acceptance or accession was ever deposited with the Secretary General of the
Council of Europe with respect to any of these treaties, although in an
Aide-Mémoire of November 1996 the Directorate of Legal Affairs of the Council
of Europe drew the attention of the BH authorities to the necessary
international procedures. Only on 24 May 1999 the Minister of Foreign Affairs
of BH asked the Committee of Ministers of the Council of Europe to invite BH to
accede to the European Charter for Regional or Minority Languages and the
Framework Convention for the Protection of National Minorities.
24. In
effect the situation with respect to the three conventions has to be
distinguished:
·
The Committee of Ministers of the Council of
Europe may, under the terms of Art. 20 of the European Charter for Regional or Minority Languages, invite a State
that is not a member of the Council of Europe to accede to the Charter.
·
The Committee of Ministers of the Council of
Europe may, under the terms of Art. 29 of the Framework Convention for the Protection of National Minorities, invite
a State that is not a member of the Council of Europe to accede to the
Convention.
·
By contrast, the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment is, pending the entry into force of
Protocol No. 1 to the Convention, not open to accession by non-member states of
the Council of Europe. BH therefore cannot accede at the moment.
25. BH
therefore has now undertaken the steps which are required at the moment. Once
the invitations to accede to the Charter and the Framework Convention have been
received, the authorities of BH will have the possibility to comply with their
constitutional obligation to deposit instruments of accession with respect to
these two treaties.
