The International Guarantee of the Constitutional Order of Bosnia-Herzegovina
Revue Française de Droit Constitutionnel, No. 42, 2000
24 Pages Posted: 29 Sep 2006
Abstract
This study argues that the internationalisation of the "pouvoir constituant" (constituent power) has led to a complex redefinition of constitutionalism and sovereignty in post-conflict societies. Since the end of the cold war, the international community appears to believe that successful peace- or state-building requires a new form of legal interventionism. In the case of Bosnia, the "national sovereign" provisionally but formally abdicated the right to define its system of government and to govern free from external reference. Hence not only does the "Constitution" of Bosnia-Herzegovina exclusively derive from a treaty without any voice given to the "People" to which it applies, but an international ad hoc entity - the Office of the High Representative - is granted the power to interpret the Constitution as well as the right to pass legislation in lieu of national institutions. One may accordingly argue that the international community's willingness to defend the rule of law and the existence of a democratic but fictional state has paradoxically led to the constitutionalisation of a "dictatorship of virtue" where the international community acts as the unchecked guardian of the Bosnian constitutional order. Irrespective of the original legal features of this new form of "protectorate", its political merits remain questionable.
Keywords: Bosnia, Dayton Agreement, High Representative, Protectorate, Rule of Law
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