ボスニア・ヘルツェゴヴィナ憲法裁判所のジレンマ── 民族主義とデイトン憲法擁護義務の狭間で ──
Doom and Gloom of the Bosnian Constitutional Court between Ethnopolitics and the Dayton Constitution

Summary/Abstract: An ethnic conflict took place in Bosnia and Herzegovina (hereafter, “Bosnia”) from 1992 to 1995. The post-war regime in Bosnia emerged based on the General Framework Agreement for Peace in Bosnia, known as the “Dayton Peace Agreement,” formally signed on 14 December 1995; even the state-level constitution derives from this agreement: Annex 4 as such (hereafter, “Dayton Constitution”). From the very beginning of the stage for peace-keeping and state-building, the international community assumed Bosnia to be part of the Euro-Atlantic integration, anticipating its future membership of NATO and EU. Retrospectively, the former socialist countries of Central and Eastern Europe in a transitional period were keen to participate in this integration. Some constitutional courts in those countries played a key role in rebuilding a whole system of democracy in respective states by interpreting each constitution in a brave and novel manner, as they saw the “Europeanization” of the legal order across Europe as an essential prerequisite to the Euro-Atlantic integration. Against this backdrop, how has the Constitutional Court of Bosnia (hereafter, “CCB”) operated since its establishment in May 1997? What renewed constitutional opinion has CCB under the Dayton mechanism provided with a view toward enlightening the citizens and other public institutions with European constitutionalism? CCB has faced a number of predicaments in complying with the Dayton Constitution: while appreciating fundamental human rights and freedoms as universal constitutional principles, the court is forced to listen to the three conflicting parties and protect each of their political rights. This article addresses the current situation of CCB from various angles, analyzing numerous judgements issued by CCB and the European Court of Human Rights (hereafter, “ECtHR”). In so doing, I focus on the two factors putting CCB on an awkward footing: the peculiarity of the Dayton Constitution stemming from the arbitration of ethnic conflicts and the still-persistent ethnic cleavages in the political arena of Bosnia. The preamble of the Dayton Constitution stipulates that the three dominant ethnic groups are “constituent peoples” of Bosnia, and that those who do not declare their affiliation to any of the constituent peoples are categorized as “Others” Given that only the constituent peoples are eligible for collective political rights, “Others” are partially excluded from standing for national election under the Constitution. Since 2009, ECtHR has ruled three times that such electoral system in Bosnia violates the European Convention on Human Rights. Nevertheless, Bosnia has failed to enforce the rulings over the years. Composed of two judges from each constituent people and an additional three judges from abroad, CCB embodies an ideal of equality and power-sharing of the constituent peoples. Yet the court has met an unresolvable dilemma of ethnopolitics. Limited by the Dayton Constitution as a product of armistice, CCB never refers to an ideal future in which peoples in Bosnia will share an identity as citizens of Bosnia irrespective of their ethnic origin. CCB’s difficulty is comparable with what its counterparts in Central and Eastern Europe face today. An authoritarian regime intervened in the Hungarian Court after 2010 and the Polish Court after 2015 in terms of their competence, judicial proceedings, and personnel administration. Although the constitutional court is deemed to function as a guardian of rule of law and other universal principles, its operation substantially depends on the respective country’s constitution and domestic political regime.

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