The Application of International and EU Law in Bosnia and Herzegovina

Abstract

The application of international law in national legal systems is a well-established question in legal literature. Both the globalisation and internationalisation of legal systems have given rise to questions that need to be answered legally, by laws and jurisprudence, and in legal literature. The question of the enforcement of inter- or supranational obligations is directly linked to this application. The goal of Bosnia and Herzegovina (BiH) to become a member of the EU has raised the question of the application of supranational law (EU law) in BiH, both in terms of preparing for membership and the country’s status after entering the EU. The Europeanisation of the national constitutions is already taking place. For BiH, this is evident in the signing of the SAA and confirmed by the jurisprudence and literature oriented towards EU law. Formally, the EU is not a state and the treaties are not a constitution. Nevertheless, the European treaties deal with constitutional questions and provide answers in a legally binding way. At the same time, international law has taken on the characteristics of constitutional law. Hence, we have to clarify the relationships between international, supranational and constitutional competences, particularly the competences of the courts, the ECtHR (European Court of Human Rights), the ECJ (European Court of Justice) and national constitutional courts. The need for such clarification is also based on the principle of the effectiveness of legal protection as an integral part of the principle of the rule of law. The complexity of jurisdiction at the multi-system level can be described as ‘conflicts among courts of different levels in networking legal systems’. Other Member States of the EU and their constitutional courts likewise struggle with the hierarchy of norms and clarification of competences, both in terms of EU law and international law. It is remarkable that the Solange decision of the German Constitutional Court of 1974–1986 is used as a model both in jurisprudence and legislation. The key idea here is the ‘model of co-operation’ (Kooperationsverhaltnis) instead of extremely divided competences creating a strict hierarchy among different legal systems. Articles 52 and 53 of the Charter of Fundamental Rights of the EU guarantee a minimum standard of protection and acknowledge the guarantees provided by the ECHR. The Charter of Fundamental Rights of the EU aims to achieve coherence in the protection of human rights at the different national, supra- and international levels. To this end, the ECJ and ECtHR respect each other’s decisions to ensure the greatest possible coherence of human rights standards by respecting other courts that are responsible for the protection of human rights.