ii. Coat of arms, flag and anthem of the Republika Srpska

The Constitutional Court took a similar decision concerning the symbols used by the Republika Srpska.²³³⁹ These symbols, as official symbols of a territorial unit which has the status of an Entity, constitute a constitutional category and as such must represent all the citizens of the Republika Srpska, who have equal rights according to the Constitution of the Republika Srpska. These symbols appear on all features of the public institutions of the Republika Srpska, that is the National Assembly of the Republika Srpska, the public institutions, etc. They are not the local symbols of one people, which are to reflect the traditional and historical heritage of that people but the official symbols of the multiethnic Entity. As such they must reflect the character of the Entity. Taking into account the aforesaid, the arguments of the National Assembly that other constituent peoples in the Republika Srpska are not denied the right to use their own symbols, i.e., other people may freely display their symbols on religious institutions, cannot be accepted.²³⁴⁰ The Constitutional Court reiterated that it does not deny the right of the Serb people in the Republika Srpska to preserve its tradition, culture and identity through the symbols of the Republika Srpska, but an equal right must be given to the Croats and Bosniaks as constituent peoples and to all other citizens of the Republika Srpska bearing in mind that in the Constitution of the Republika Srpska the vital national interests of the constituent peoples are inter alia defined as the identity of the constituent peoples, education, religion, language, promotion of culture, tradition and cultural heritage.²³⁴¹ That the anthem of the Republika Srpska symbolises solely the Serb people in the Republika Srpska, as confirmed by the National Assembly, is undisputed.²³⁴²

The challenged symbols mean “distinction, exclusion, restriction or preference based on national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”, which is prohibited under Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination.²³⁴³ This opinion of the Constitutional Court, taken together with the principles in its Decision in Case U-5/98 on the constituent status of peoples and given the political and temporal context in which the legislator adopted the challenged law, leads to a conclusion that Articles 2 and 3 of the Constitutional Law on the Flag, Coat of Arms and Anthem of the Republika Srpska have a discriminatory character and are not in conformity with the constitutional principle of equality of the constituent peoples, citizens and others. This opinion also leads to the conclusion that in the instant case the obligation of the State “to engage in no act or practice of racial discrimination”, in other words the obligation of the State “to undertake effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists” was not complied with”.²³⁴⁴

With reference to Article 2 of the Law on the Use of Flag, Coat of Arms and Anthem of the Republika Srpska, which stipulates that these symbols shall represent “the statehood” of the Republika Srpska, the Constitutional Court referred, once again, to its judicial practice in Case No. 5/98-IV. As the term “statehood of RS” had to be erased from Article 1 of the RS Constitution, the BiH Constitutional Court considered that neither in this case is it possible to find an interpretation of the term “the statehood” which would be in accordance with the BiH Constitution. Unlike federal states consisting of units that call themselves states, as far as Bosnia and Herzegovina is concerned, it is clear that the Republika Srpska and the Federation of BiH, according to the BiH Constitution, are not states but Entities. The BiH Constitutional Court relied on the provisions of Article I.1 and Article I.3 of the BiH Constitution which guarantee the sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina. Finally, special parallel relations of the Entities with neighbouring countries are not possible without the consent of the Parliamentary Assembly of Bosnia and Herzegovina.²³⁴⁵