C. State composition (Article I.3)

3. Composition. Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and Republika Srpska (hereinafter “the Entities”).

The concept of Bosnia and Herzegovina is one of the most disputed issues, since it determines the degree of centralisation and the degree of autonomy of the Entities. The BiH Constitution does not contain any common definitions such as federation, union of states or confederation, but is rather limited to several basic coordinates and to the shaping of relations between the State and Entities in concreto. Therefore, it is in the interest of both the integrative and disintegrative forces to add the missing categorisation to the Constitution and thus, in advance, give a foundation framework to all possible and subsequently raised disputes and discussions.

The structure of Bosnia and Herzegovina is that of negotiations resulting in inconvenience: after the contracting parties, by signing the Washington Agreement in March 1994, had given birth to the (Bosniak-Croat) Federation consisting of ten Cantons, they considered that such an agreement had to be amended and finalised. The parts of the country not under the control of the RBiH institutions, such as the Republika Srpska (which had not been recognised yet), were to be attached to the Federation within a final peace settlement for the whole territory of the RBiH. It meant that the Federation of Bosnia and Herzegovina was designed as the continuation of the Republic of BiH – even if, from a formal point of view, it was to be on a provisional basis. Finalisation of the FBiH Constitution, which had been originally designed in Washington, failed in Dayton for two reasons: on the one hand, because the Republika Srpska opposed to the inclusion according to the cantonal model, and, on the other hand, because revision of the Washington Agreement, which was aimed at dividing the Federation into two parts, was not desirable at all. Thus, in the end, the existing Federation was declared one part of the country and the Republika Srpska joined it as another part of the country. In order to leave enough room for different interpretations concerning the legal nature of the abovementioned parts of the country, the term “entity” was used (entity – Article I.3 of the BiH Constitution³³⁷), which does not purposely indicate that there is any categorisation in regards to the organisation of the state but is rather a value neutral description of the situation as found. The result is asymmetry: one State, two Entities, three constitutional peoples, which, unlike the symmetry model of 3 peoples – 3 entities, has at least one advantage, which is creating stronger ties among the peoples. Being without their own entity and, additionally, given the cantonal division that was not carried out 100% according to the “pure” ethnic principle, the separation aspirations of the Bosnian Croat power holders do not seem to be realistic any more. For these reasons, it could be expected that the Bosnian Croats oppose similar aspirations coming from the Republika Srpska. On the other hand, within the Dayton arrangement, it was necessary to offer an additional level of power to a continuing personality of international law – Bosnia and Herzegovina. The institutions of this “federal level” had to be constituted starting from zero since the original plan under the Washington model was to transfer the tasks of those institutions, i.e., of that level of authority, to the Federation. In fact, according to the said model, the plan was to attach the Republika Srpska to the Federation “only” as an additional canton (or to be divided into several cantons). Instead of a homogenous state structure at three levels (federation/ cantons/municipality), the country got asymmetric structure with four levels of authority in the Federation (state/federation/cantons/municipality) and three in the centralised Republika Srpska (state/entity/municipality).

The Brčko District has a special role in this kind of state formation.³³⁸ Brčko is a land corridor between the eastern and western part of the Republika Srpska and that is the reason why the status of that piece of land was the subject of intense discussions in Dayton. In order to avoid the failing of the peace settlement, according to Article V of Annex 2 to the GFAP, the final decision on Brčko was left to be adopted through arbitration. In the meantime, the administration that was divided between the Entities remained in place. In March 1999, in its final award, the OHR Arbitration Commission established that Brčko was to be a neutral district under its own sovereign administration, i.e., under the direct supervision of Bosnia and Herzegovina. This decision additionally worsened an already tense situation in the Republika Srpska caused by the High Representative’s decision on removal of Nikola Poplašen from his office as the President of the Republika Srpska, as well as because of the NATO airstrikes on Kosovo.³³⁹ The decision resulted in the transfer of entity authorities for Brčko to the Supervisor for the Brčko District. As to the state authorities, from that moment the District was to be under the supervision of the State. On 8 March 2000, by the entry into force of the decision on district status, Brčko District started its legal existence.

In order to prevent the inter-entity boundary lines to continue existing as factual state borders, the fundamental freedoms necessary for the functioning of the common market (movement of goods, services, persons and capital) were established in Article I.4 of the BiH Constitution,³⁴⁰ and the refugees and displaced persons were granted a special right to return under Article II.5 of the BiH Constitution.³⁴¹

The Constitutional Court neither determined nor did it limit itself when it came to terminology. Nevertheless, according to its dicta, i.e., its jurisprudence, we may conclude that the Constitutional Court sees Bosnia and Herzegovina as a federation. In its first partial decision concerning the above case, the Constitutional Court adopted several fundamental conclusions. Thus, the Court explicitly established that the use of the term “state border” (border) in Article II.2 of the RS Constitution is inconsistent with Articles I.1 and 4 of the BiH Constitution (the authentic English version), and with Articles III and X of the Framework Agreement, and with Annex 2 to the GFAP. In the said provisions a clear distinction was made between the term “boundary”, which is a mark for the Entity border and the term “border”, which is a mark for the external border of Bosnia and Herzegovina and this distinction is relevant from the aspect of international law (U 5/98-I, paragraphs 14-17).

The Republika Srpska presented arguments before the Constitutional Court that the term “border” can be definitely used as a mark for organised political-territorial units bearing the name “republic”. Using the said term in Article 1 of the RS Constitution does not allude to the independence of the Republika Srpska. Even Article III.3(a) of the BiH Constitution, it is further claimed, refers to the state functions of the Entities (“governmental functions”), and Article I.7 of the BiH Constitution makes reference to the citizenship (“citizenship”) of Entities. Regardless of the aforesaid, the Republika Srpska claimed that it has to be seen as a state not in terms of international but rather constitutional law.³⁴² It is further claimed that that the sovereignty of the Entities is an essential characteristic of their statehood and that the Dayton Peace Agreement acknowledged their territorial separation. Moreover, their peoples have the collective right of “self-organisation” of their own state so that the Entities could act “according to the decisions taken at the level of joint institutions only if they conform to their own interests”.³⁴³ “It is evident that the Republika Srpska can be called a state as its statehood is the expression of its original, united, historical People’s movement, of its people which has a united ethnic basis and forms an independent system of power in order to live really independently, although an independent entity within the framework of a complex state community.”³⁴⁴

The Constitutional Court, as a judicial body, did not take part in this terminology related discussion, unlike some of its judges. Instead, the Constitutional Court limited itself to the clarification that defining the Republika Srpska as a sovereign and independent state is inconsistent with the BiH Constitution.³⁴⁵ In this regard, the Constitutional Court first presented the arguments that the provisions of the Preamble of the RS Constitution are not merely descriptive, but in conjunction with Article 1 of the RS Constitution, they are also vested with a powerful normative force. The Court finds that the existence of a constitution, the name “Republic” or citizenship is not per se proof of the existence of statehood. Although it is also quite often the case in federal states that their component entities do have a constitution, and that they might even be called a republic or grant citizenship, all these institutional elements are granted or guaranteed by a federal constitution. The same holds true for Bosnia and Herzegovina.³⁴⁶ Pointing to Article I.1 of the Constitution of BiH, the Court undoubtedly establishes the fact that only Bosnia and Herzegovina continues “its legal existence under international law as a state, with its internal structures modified as provided herein”. In consequence, Article I.3 establishes two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska as component parts of the state of Bosnia and Herzegovina. In addition, as seen from Article III.2(a) of the Constitution of BiH, for instance, the Entities are subject to the sovereignty of Bosnia and Herzegovina. Despite examples of component units of federal states, which are also called states themselves, in the case of Bosnia and Herzegovina it is thus clear that the Constitution of BiH did not recognise the Republika Srpska and the Federation of Bosnia and Herzegovina as “states” but instead refers to them as “Entities”.³⁴⁷ Accordingly, the Constitution of BiH does not leave room for any “sovereignty” of the Entities or a right to “self- organisation” based on the idea of “territorial separation”. Citizenship of the Entities is thus granted by Article I.7 of the Constitution of BiH and is not proof of their “sovereign” statehood. In the same manner, “governmental functions”, according to Article III.3(a) of the Constitution of BiH, are thereby allocated either to the joint institutions or to the Entities so that their powers are in no way an expression of their statehood, but are derived from this allocation of powers through the Constitution of BiH.³⁴⁸ Accordingly, the Constitution of BiH does not leave room for any “sovereignty” of the Entities or a right to “self- organisation” based on the idea of “territorial separation”. Citizenship of the Entities is thus granted by Article I.7 of the Constitution of BiH and is not a proof of their “sovereign” statehood.

As far as the relevant literature is concerned, different opinions have been presented with respect to the concept of Bosnia and Herzegovina. The major topics are “federation” or “federal state”.³⁴⁹ Ademović³⁵⁰ makes the point that it is “a complex federation consisting of two entities and a district”. Waters,³⁵¹ however, considers that the relevant state is “highly confederal”,³⁵² and even Szasz,³⁵³ considers that this Dayton state construction is a “more or less loose union of […] ethnic entities”. While putting tremendous efforts in offering valid reasons, Snežana Savić,³⁵⁴ the former President of the Constitutional Court, tried to prove that this state, in its new form, is a confederation and not a federation, although the author admits that the BiH Constitution contains “certain elements of federative organisation”.³⁵⁵