Theoretical and Practical Aspects of the Position of Treaties Within the Legal System of Bosnia and Herzegovina / Teoretski i praktični aspekti položaja međunarodnih ugovora u pravnom sistemu Bosne i Hercegovine

Abstract

One of the basic theoretical and practical issues of the Public International Law is the relation of international and municipal law, i.e. the issue of position and effects of international legal acts within a municipal legal order. This issue has been a subject of doctrinal considerations, ever since, and a number of different schools have emerged in that regard. Besides theoretical importance, this issue has obtained considerable practical significance. Within the question of relation of municipal and international legal orders, implementation and effects of treaties have occupied a central place. However, besides the theoretical approach to how this issues should be tackled, concrete normative solutions related to the position of international legal acts within municipal legal order, and the way that this is defined by internal legal acts, particularly national constitutions, require certain attention. The legal position of treaties can be obtained in more details, following analyses of legal practice and case law established in a country. Therefore, the aim of this paper is to examine both theoretical and practical aspects of the position of treaties within the legal system of Bosnia and Herzegovina, bearing in the mind normative approach established by the Constitution as well as the case law of the Constitutional Court of BiH. It is concluded that the Constitution of BiH adopts the monistic system, the ratified treaties can, under certain circumstances defined by the relevant legislation, be directly applicable and treaties, in accordance to the Constitutional Court case law, prevail over national legislation.