A. Continuation according to international law (Article I.1)

Continuation. The Republic of Bosnia and Herzegovina, the official name of which shall henceforth be “Bosnia and Herzegovina,” shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders. It shall remain a Member State of the United Nations and may as Bosnia and Herzegovina maintain or apply for membership in organizations within the United Nations system and other international organizations.

Pursuant to Article I.1 of the BiH Constitution, first sentence, Bosnia and Herzegovina is not a new creation from the standpoint of international law, since, as a state, it continues the international legal personality of the Republic of Bosnia and Herzegovina within the outer borders which have been recognised at the moment of the Constitution’s adoption in accordance with international law. Therefore, the State remains to be a member of the United Nations, and it may keep its membership in the organisations belonging to the UN system, as well as in other organisations or it may apply for such membership.²⁵⁴ The same applies to the international agreements listed in Annex I to this Constitution, wherein it is stated that Bosnia and Herzegovina shall remain a party to the international agreements or, – if the Republic of Bosnia and Herzegovina, as a state, has not yet acquired membership – it shall become a party.²⁵⁵ The BiH Constitution’s Article I.1 ensures continuation according to international law. So, the issue is not about the legal successor. Bosnia and Herzegovina is the same State which, as the Republic of Bosnia and Herzegovina, resulted from the dismembratio (disintegration) of Yugoslavia and was recognised in 1992 as an independent state.

However, Bosnia and Herzegovina had lost the label “republic” attached to its name, and subsequently its internal structure changed. In other words Bosnia and Herzegovina was divided into two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska.²⁵⁶ Some consider that the loss of the label republic is in contradiction to the principle of continuation.²⁵⁷ However, the loss of the label “republic”, which was attached to its name, does not mean that Bosnia and Herzegovina has given up this form of state organisation. The name is not a decisive factor for state organisation, but what matters is the factual form of the respective state’s organisation provided for in the constitution.

Article I.1 of the BiH Constitution is an excellent example of the Dayton Agreement’s constitutional compromise: the major interest of Bosniaks was Bosnia and Herzegovina existing as a sovereign state within the existing borders at the moment of the conclusion of the peace settlement.²⁵⁸ By consenting to the BiH Constitution, the signatory parties gave up their respective international personalities – the Republika Srpska gave up its factual international personality due to the fact that it was not internationally recognised and the Federation gave up its feigned international personality²⁵⁹ and thus both the parties have undertaken to comply with the sovereignty, territorial integrity and political independence of the State.²⁶⁰ However, the Bosnian Serbs, who had secessionist intentions, were given special consideration by being granted the status of an entity and by the fact that the union or unity of the State was very weak – whatever the case may be, that was the initial position. Moreover, Article III.2(a) of the BiH Constitution entitles the Entities to form special parallel relations with the neighbouring countries as long as it is consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina, and Article III.2(d) of the BiH Constitution entitles the Entities, with the previous consent of the Parliamentary Assembly, to conclude agreements with other states and international organisations. The BiH Constitution distanced itself from addressing the issue of leaving the “union” (for instance: conducting a referendum after the expiry of a certain period of time), which was considered as a possibility in some earlier proposals of the constitution.²⁶¹ Despite wide autonomous rights, the Entities have been definitely subordinated to the sovereignty and territorial integrity of Bosnia and Herzegovina; that is to say that the Entities, by their nature, do not possess the quality of a state.²⁶²

Furthermore, the continuation of Bosnia and Herzegovina is regulated under the interim provisions of Articles 2-5 of Annex II to the BiH Constitution. The said provisions provide for the continuation and validity of the former law, i.e., the legal regulations (Article 2) and the continuation or transfer of judicial and administrative procedures (Article 3); the destiny of international agreements is also regulated (Article 5), as well as the continuation of the existence of the BiH institutions until they are changed (Article 4).²⁶³ In this context, Article II.7 of the BiH Constitution is also included, which provides that the Bosnia and Herzegovina of the Dayton Peace Agreement shall remain a member of the international-legal mechanisms for the protection of human rights.

The issue of international continuation also has practical consequences for the continuation of the existence of individual rights and the distribution of competencies for guaranteeing the mentioned human rights. Thus, after 14 December 1995, Bosnia and Herzegovina, as an entity of international law, is under the obligation not to deprive its citizens from legal positions they had been granted prior to the Dayton Constitution taking effect.²⁶⁴ The level at which such acquired positions may be guaranteed (state/entity, canton/municipality), in particular when it comes to the rights of citizens to require something from the state (Leistungsrechte), depends on the (new) constitutional-legal distribution of competencies. Accordingly, the State of BiH, as an administrative-territorial unit, is responsible for making compensation for war damage “if it is possible to establish that there is a continued responsibility of the State within the new Constitution of Bosnia and Herzegovina”.²⁶⁵ In general terms, it is not the responsibility of the State of BiH, but it is the responsibility of the Entities to make compensations for war damage;²⁶⁶ however, this kind of compensation does not include settlement of old foreign currency savings.²⁶⁷