Rule of Law Defence Beyond High Politics: Lessons from the Constitutional Court of Bosnia and Herzegovina’s History Curriculum Decision

Introduction

For many years, the Constitutional Court of Bosnia and Herzegovina (BiH) stood out as one of the more functional institutions of the Dayton order. It was certainly politically contested, but its continued ability to decide constitutional disputes gave it a degree of institutional resilience in a system otherwise marked by vetoes, blockages and fragmentation. In recent years, however, attacks on the Court have changed in both intensity and character, turning from recurrent political criticism into a broader constitutional crisis concerning both compliance with the Court’s decisions and the composition and legitimacy of the Court itself: Republika Srpska (RS) adopted legislation rejecting the application of the Court’s decisions on its territory,¹ failed to appoint judges from RS,² and, especially after the proceedings against Milorad Dodik, moved further towards openly challenging state-level institutions.³ Despite this increasingly hostile environment, the Court has continued to decide constitutionally sensitive cases.⁴

Against this background, Decision U-20/24 of 23 January 2025⁵ offers an important but less visible example of judicial rule of law defence, understood not only as the protection of institutional authority, but also as the protection of pluralism, equality and constitutional culture. In that case, the Constitutional Court of BiH addressed the long-standing problem of ethnocentric and one-sided history teaching in BiH and repealed the contested parts of the RS school curriculum. The History Curriculum Decision is important as it shows that courts may defend democratic constitutionalism not only in high-profile political disputes, but also in cases concerning everyday institutions, such as schools, where social division is reproduced and where democratic resilience may begin.

The Curriculum Dispute Before the Court

In U-20/24, thirteen members of the House of Representatives of the Parliamentary Assembly of BiH asked the Constitutional Court to review the constitutionality of parts of the RS primary-school history curriculum. The request concerned provisions of the Rulebook on the curriculum for primary education and upbringing of the RS and Appendix No. 20 – Curriculum for the subject History for the 9th grade of primary school, specifically the section entitled “Topic 11, Republika Srpska and the Homeland Defence War.” The applicants argued that the contested materials were unconstitutional because they presented a one-sided and ethnocentric account of the 1992–1995 war in BiH. In their view, the curriculum and related textbook focused mainly on the RS and Serb victims of the war, while excluding the perspectives and experiences of Bosniaks, Croats, and Others. The applicants claimed that this violated the rule of law, the obligation of RS to comply with decisions and laws of BiH institutions, the right to education, and the prohibition of discrimination.

The Constitutional Court upheld the request on the merits. It held that the contested provisions were incompatible with the Constitution of BiH because they failed to meet the educational standards laid down in the Framework Law on Primary and Secondary Education in BiH and the Common Core for History. In constitutional terms, the Court linked this failure to two provisions: Article I(2), which defines BiH as a democratic state operating under the rule of law, and Article III(3)(b), which requires the entities to comply with the Constitution and with the decisions of state-level institutions.

Why the Decision Matters for Rule of Law Defence

When it comes to judicial rule of law defence, several features make the History Curriculum Decision particularly instructive. 

First, the Court adopted a functional approach to jurisdiction: although its competence to review an act below the level of statute was not self-evident, it did not allow the formal rank of the contested act to prevent constitutional review. The Constitution of BiH expressly refers to the Court’s competence to review entity constitutions and laws, but it also gives the Court jurisdiction over disputes arising under the Constitution more broadly.⁶ The provisions contested in U-20/24 were contained in a rulebook and an appendix, that is, in acts below the level of legislation, which meant that the Court first had to determine whether a subordinate regulatory act could fall within its jurisdiction. The Court answered this question affirmatively. It found that, although the challenged rulebook and appendix were not laws in the formal sense, they produced significant legal effects for the rights of pupils and parents in the field of education and raised constitutional issues concerning human rights, the rule of law, and the constitutional commitment to peace, pluralism, and reconciliation. The Decision is therefore instructive as an example of a court preserving its own capacity to act. Rather than narrowing its jurisdiction through a formalistic reading of the rank of the contested act, the Court interpreted its competence in a way that allowed it to exercise substantive review, in circumstances where the act had legal effects in education. 

Second, the reasoning of the Constitutional Court in U-20/24 was grounded in constitutional principles, including the rule of law, showing how courts under pressure may return to the foundational values of the constitutional order. This was possible because the applicants themselves framed the challenge, inter alia, under Article I(2) and Article III(3)(b) of the Constitution of BiH. Importantly, however, the Court did not merely acknowledge this framing; it developed it. The Court treated the case not only as a dispute about curriculum design, but as a question of constitutional fidelity. 

The reasoning of the History Curriculum Decision emphasizes that the principle of the rule of law requires laws, subordinate regulations and acts of public authorities to comply with the Constitution. It also requires entity and cantonal constitutions, laws and regulations to be harmonized with constitutional principles. In U-20/24, the breach of the rule of law consisted in the fact that the curriculum was incompatible with binding state-level standards on education, in particular the Framework Law, which requires education to promote respect for human rights, democratic values, awareness of belonging to the state of BiH, tolerance, mutual understanding, and respect for different cultures, languages, religions, and perspectives. By failing to do so, the RS curriculum breached those standards and, through that breach, violated the constitutional principle of the rule of law.

Article I(2) of the Constitution of BiH is a broad constitutional principle rather than a detailed rule: it provides that BiH shall be “a democratic state” which “shall operate under the rule of law.” The Constitutional Court’s reliance on such a general clause is significant. In moments of rule of law crisis, courts may need to return precisely to the foundational values of the constitutional order, especially where more technical legal arguments would fail to capture the systemic nature of the problem.

Third, the Constitutional Court’s choice to frame the case primarily through constitutional principles, rather than through discrimination, was strategically important. The applicants had also argued that the contested curriculum discriminated against non-Serb pupils, and the Court could have approached the case through that lens. Indeed, in its earlier interim-measure decision, the Court noted that the implementation of the curriculum could risk further division among pupils from different ethnic communities, increase the sense of exclusion and marginalisation of pupils from other ethnic groups, and thereby create an atmosphere of discrimination.⁷ In the final decision, however, the Court did not base its reasoning on discrimination – instead, it focused on the rule of law and on the incompatibility of the curriculum with state-level educational standards. This choice matters. In my view, a finding of discrimination against non-Serb pupils was possible, but it could also have reinforced polarisation by presenting Serb pupils as privileged and non-Serb pupils as the only victims of the curriculum. The deeper constitutional problem was broader: Serb pupils are also harmed when exposed to an ethnocentric and one-sided version of modern history and politics, and so is the constitutional order itself. This reflects the very nature of the rule of law. As the European Union Agency for Fundamental Rights explains: “The rule of law means that the law rules. It guarantees justice and accountability as well as the human rights and freedoms of every individual. And that means we all benefit.”⁸ Hence, the rule of law framing adopted by the Court does not overlook the unfavourable position of non-Serb pupils, but situates it within a broader harm affecting all pupils and the legal order. 

Fourth, in U-20/24 the Court confronted not only the curriculum, but also the distorted image of its own constitutional role presented in the RS history textbook, thereby defending the legal authority of constitutional adjudication. The Court paid particular attention to the textbook passages suggesting that decisions of the Constitutional Court had often been “against the interests” of the RS, as well as to a question asking pupils which institutions had served to undermine RS’s competences. The Court also noted that the textbook presented the Constitutional Court as an institution in which Bosniak and international judges outvoted Serb and Croat judges in important cases. In the Court’s view, this portrayal did not merely offer a controversial interpretation of constitutional history, it directly undermined trust in the legal order and encouraged negative attitudes towards state institutions. This aspect of the judgment is significant because the Court treated attacks on its authority as a rule of law problem: if pupils are taught to see final and binding constitutional adjudication as political obstruction, the authority of constitutional law itself is weakened.

Finally, the Decision highlights the role of constitutional adjudication in education. Education is often invoked as a response to problems such as social division, which may in turn enable the instrumental treatment of law, but it is less often examined as a site where constitutional standards themselves are formed and contested. Yet, if education is to carry normative weight, greater attention must be paid to how constitutional courts can influence democratic standards within schools themselves. Curricula, textbooks, and teaching materials are often treated as technical or administrative matters, designed internally by ministries or pedagogical institutes and frequently adopted through subordinate legislation rather than statutes. As a result, cases concerning the quality and standards of teaching reach constitutional courts relatively rarely, litigation in education more often concerns access to education than the substance of what is taught. U-20/24 suggests that this area deserves closer attention. We should further explore the possibilities of constitutional adjudication in assessing whether educational content meets the democratic standards that schools are expected to transmit, especially where curricula shape pupils’ understanding of pluralism, statehood, institutional authority, equality, and the rule of law.

Defending the Rule of Law Beyond Constitutional Spectacle

The broader lesson to be drawn from the History Curriculum Decision is that rule of law defence does not occur only in spectacular constitutional confrontations. It also takes place in less visible cases concerning ordinary institutions through which citizens encounter the state and learn the meaning of political community. The Decision illustrates how courts under pressure can use deliberate choices about jurisdiction, framing, and reasoning to defend the rule of law where it is most quietly, but most deeply, at stake. I do not claim that disputes over history teaching are non-political. In BiH, education has long been entangled with competing projects of memory, identity, and statehood.⁹ The point is rather that the History Curriculum Decision belongs to a different register than the most visible constitutional controversies in BiH, including the cases that followed the Dodik proceedings and concerned RS’s attempts to challenge central state institutions.¹⁰ It is a quieter case, but one that reaches into the everyday reproduction of constitutional identity and democratic culture.

The implementation of the History Curriculum Decision is likely to face resistance, as RS authorities continue to present education as an exclusive entity competence and the Court’s intervention as an illegitimate intrusion into matters regulated at the entity level.¹¹ Moreover, the Decision was delivered against the background of the continuing crisis over the composition and legitimacy of the Constitutional Court of BiH, including the non-appointment of judges elected by the National Assembly of RS, which feeds the recurring narrative that the Court is incomplete and that its decisions should not be treated as binding. In this context, the Decision’s significance becomes clearest: it does not end the constitutional crisis surrounding the Court, nor does it guarantee that the contested curriculum will disappear from the classroom in practice. Yet it prevents that crisis from defining the limits of constitutional adjudication and sets a standard for future disputes over institutional authority, educational content, and the democratic values that schools are expected to transmit.

1. Law on Non-Application of Decisions of the Constitutional Court of Bosnia and Herzegovina, Official Gazette of Republika Srpska, No. 60/23, 12 July 2023. The Law was initially prevented from entering into force by the High Representative’s decision in July 2023; it was later repealed by the National Assembly of Republika Srpska in October 2025.
2. For background on this issue, see: Harun Išerić and Maja Sahadžić, Perils from Within and Without: The Constitutional Court of BiH Under Pressure, VerfBlog, 27 July 2023, available at: https://verfassungsblog.de/perils-from-within-and-without/ (accessed 15 June 2026).
3. See: UN Security Council, Sixty-Seventh Report of the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina: Letter dated 1 May 2025 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2025/272, 2 May 2025. For more on the Dodik case, see: Mahir Muharemović, Bosnia’s Dodik Case: A “Victory” for the Rule of Law, Law and Governance South East Europe, 8 October 2025, available at: https://lgsee.blog/bosnias-dodik-case-a-victory-for-the-rule-of-law/ (accessed 15 June 2026).
4. See, for instance: Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 6/24, 11 July 2024 (concerning the issue of state property); Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 12/24, 19 September 2024 (concerning the Election Law of Republika Srpska); Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 2/25, 27 March 2025 (concerning the RS Law Amending the Law on the Use of the Flag, Coat of Arms and Anthem).
5. Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 20/24, 23 January 2025. The analysis of this decision in the present article is based on the original-language version of the decision and the English-language press release concerning the 153rd Plenary Session, available at: https://www.ustavnisud.ba/en/153rd-plenary-session (accessed 15 June 2026).
6. Constitution of BiH, Article VI(3)(a).
7. Constitutional Court of BiH, Decision on Interim Measure in case no. U 20/24, 11 October 2024.
8. European Union Agency for Fundamental Rights (FRA), The Rule of Law and Why It Matters – Explained, 2 June 2026, available at: https://fra.europa.eu/en/publication/2026/rule-law-and-why-it-matters-explained (accessed 15 June 2026).
9. See: Heike Karge, History Teaching Materials on 1992–1995 in Bosnia and Herzegovina: Building Trust or Deepening Divides? The Report on Learning and Teaching on the Period of 1992–1995 in Primary Schools throughout Bosnia and Herzegovina, OSCE Mission to BiH, 2022; Tamara P. Trošt and Jovana Mihajlović Trbovc, Symbolic Nation-Building through Images in Post-Yugoslav History Textbooks, Journal of Educational Media, Memory, and Society, 2023, vol. 15, no. 1, pp. 20–42; Mladen Obrenović, Bosnian, Serbian Schoolbooks Teach Rival Versions of History, Balkan Insight, 30 October 2020, available at: https://balkaninsight.com/2020/10/30/bosnian-serbian-schoolbooks-teach-rival-versions-of-history/ (accessed 15 June 2026).
10. See: Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 7/25, 29 May 2025; Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 8/25, 29 May 2025; Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 26/25, 27 November 2025; Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 29/25, 23 January 2026.
11. See, for instance: Stanivuković kritikovao odluku Ustavnog suda BiH da van snage stavi nastavni plan koji veliča zločince, Klix Vijesti, 24 January 2025, available at: https://www.klix.ba/vijesti/bih/stanivukovic-kritikovao-odluku-ustavnog-suda-bih-da-van-snage-stavi-nastavni-plan-koji-velica-zlocince/250124033 (accessed 15 June 2026).