A. Introduction

The division of responsibilities between the State²⁵⁷⁵ and the Entities, on the basis of the text of the BiH Constitution itself, gives rise to a number of issues. The relevant provisions of the BiH Constitution have been thoroughly construed through the case-law of the BiH Constitutional Court. Furthermore, as a result of numerous legislative activities and agreements concluded between Bosnia and Herzegovina and the Entities, the existing legal basis does not reflect the existing legal situation in the country, i.e., its constitutional reality.

Article III of the BiH Constitution is a key provision. Paragraph 1 of the said provision creates the impression that it relates to a thorough catalogue of competences, which specify in detail the substantive and legal fields falling within the responsibilities of the State. The impression is even stronger if we take into account Article III.3(a) of the BiH Constitution, which stipulates that “all governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities.” The said provision, therefore, regulates the residual responsibilities of the Entities. Indeed, it should be noted that Article III.3(a) of the BiH Constitution does not refer to Article III.1 of the BiH Constitution, but to the BiH Constitution as a whole. Accordingly, the Entities have responsibilities only if certain substantive and legal fields do not fall within the responsibility of the State based on Article III.1 of the BiH Constitution or another provision of the BiH Constitution or the provision of Article III.5 of the BiH Constitution. Thus, Article III.5 of the BiH Constitution stipulates “Additional responsibilities” (of the State). Pursuant to Article III.5(a) of the Constitution of Bosnia and Herzegovina, “Bosnia and Herzegovina shall assume responsibility for such other matters as are agreed by the Entities; are provided for in Annexes 5 through 8 to the General Framework Agreement; or are necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina. Additional institutions may be established as necessary to carry out such responsibilities.” Pursuant to Article III.5(b) of the BiH Constitution, “[w]ithin six months of the entry into force of this Constitution, the Entities shall begin negotiations with a view to including in the responsibilities of the institutions of Bosnia and Herzegovina other matters, including utilization of energy resources and cooperative economic projects.” Therefore, Article III of the BiH Constitution must be read in conjunction with the other constitutional provisions which comprise the rules governing the division of responsibilities. Apparently clear and static provisions regulating the division of responsibilities under Article III of the Constitution of Bosnia and Herzegovina are relativised by the provisions governing the division of responsibilities contained in the other Articles of the BiH Constitution.

The BiH Constitutional Court has upheld this mutual relationship of the constitutional provisions related to the distribution of powers. Therefore, the responsibilities of the institutions of Bosnia and Herzegovina are determined not only on the basis of Article III of the BiH Constitution but also on the basis of the division of responsibilities mentioned outside this provision so that the responsibilities which are not explicitly stated in Article III.1 of the BiH Constitution do not necessarily fall within the exclusive responsibilities of the Entities.²⁵⁷⁶ The BiH Constitution stipulates certain institutions at the level of Bosnia and Herzegovina and, at the same time, it foresees certain responsibilities of these institutions, which may be found, for instance, in Article IV.4, the responsibilities of the Parliamentary Assembly or in Article V.3 of the BiH Constitution, those of the Presidency of Bosnia and Herzegovina. However, these responsibilities are not necessarily enumerated, i.e., reiterated in Article III.1 of the BiH Constitution. As a result, the Presidency of Bosnia and Herzegovina, pursuant to Article V.5(a) of the BiH Constitution, has civilian command authority over the armed forces, although the responsibilities related to the military issues are not explicitly stated in the context of the institutions of Bosnia and Herzegovina.²⁵⁷⁷

Based on the same principle, in Case No. U 9/00, the BiH Constitutional Court recognised, pursuant to the provisions of Article III.5(a) of the BiH Constitution, first sentence, third constellation, the powers of Bosnia and Herzegovina to establish its own State Border Service. In this context, the BiH Constitutional Court primarily establishes that the mentioned constellations of Article III.5(a), the first line of the BiH Constitution, which operate as the basis for the authority of Bosnia and Herzegovina to assume additional responsibilities, are independent of each other and do not have to be cumulatively met. Consequently, in the third constellation, the approval by the National Assembly of the Republika Srpska is not necessary.²⁵⁷⁸ Also, this clearly follows from the linguistic meaning of the mentioned provision and such interpretation is entirely logical. Furthermore, Article IV.4(a) of the BiH Constitution (legal obligations of the Parliamentary Assembly of Bosnia and Herzegovina) does not stipulate an obligation of the National Assembly of the Republika Srpska to give an approval.²⁵⁷⁹ The purpose of establishing the State Border Service is to ensure that the State takes all steps necessary to protect its territorial integrity, political independence and international personality, and these notions are inherent in the notion of State sovereignty.²⁵⁸⁰ Hence, the Law on State Border Service, which ensures the right of the institutions of Bosnia and Herzegovina to exercise their powers, is not in contravention of Article III.2 of the BiH Constitution and it is consistent with the responsibilities arising from Article III.1 of the BiH Constitution and completed by Article III.5 of the BiH Constitution.²⁵⁸¹

In addition, the result of this system of the distribution of powers is that the enumeration of responsibilities under Article III.1 of the BiH Constitution does not automatically regulate the sole responsibilities of Bosnia and Herzegovina, as the case related to “special parallel relationships with neighbouring states” shows, which, in fact, falls within the scope of “foreign policy”. Accordingly, as to the division of responsibilities between the State and the Entities, it is necessary to take into account the “Rule-Exception” principle in each individual case.