Overview

The responsibilities of the State stipulated under Article III.1(a) and III.1(b) of the BiH Constitution are not exclusive by nature. Pursuant to Article III.2(a) of the BiH Constitution, the Entities are entitled to establish special parallel relationships with neighbouring states consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina. In addition, each Entity may enter into agreements with states and international organisations with the consent of the Parliamentary Assembly. The Parliamentary Assembly may provide by law that certain types of agreements do not require such consent (Article III.2(d) of the BiH Constitution). Such special relationships or agreements with other states and international organisations fall within the responsibilities of the State related to foreign policy and foreign trade policy.

The constitutional provisions governing the responsibilities of the Presidency of Bosnia and Herzegovina under Article V.3 of the BiH Constitution ought be understood as general provisions.²⁶⁰⁹ Article V.3(b) of the BiH Constitution, which stipulates that the Presidency of Bosnia and Herzegovina shall have responsibility for appointing ambassadors and other international representatives of Bosnia and Herzegovina, no more than two-thirds of whom may be selected from the territory of the Federation of BiH, does not rule out the right of the Entities to make proposals as part of the selection process as long as such proposals are not legally binding for the Presidency of Bosnia and Herzegovina.²⁶¹⁰ Accordingly, the Entities are entitled to establish representations abroad and make proposals relating to ambassadors and other international representatives of Bosnia and Herzegovina as long as this right does not interfere with the authority of Bosnia and Herzegovina to be represented as a (sovereign) State.²⁶¹¹ On the contrary, the appointment of heads of BiH diplomatic missions falls within the exclusive competence of the Presidency of Bosnia and Herzegovina.²⁶¹²

In addition, in Case No. U 5/98-II,²⁶¹³ the BiH Constitutional Court provides reasoning as to the residual responsibilities of the Entities under Article III.2(a) of the BiH Constitution, which generally fall within the responsibilities of Bosnia and Herzegovina under Article III.1(a) and (b) of the BiH Constitution.

Article III.2(b) and Article III.4 of the BiH Constitution rather relate to the necessity of cooperation between the State and the Entities than to effective and exclusive responsibilities. Pursuant to Article III.4 of the BiH Constitution, the Presidency of Bosnia and Herzegovina may decide to facilitate inter-Entity coordination on matters not within the responsibilities of Bosnia and Herzegovina as provided in the BiH Constitution, unless an Entity objects in any particular case. Each Entity shall provide all necessary assistance to the government of Bosnia and Herzegovina in order to enable it to honour the international obligations of Bosnia and Herzegovina, provided that financial obligations incurred by one Entity without the consent of the other prior to the election of the Parliamentary Assembly and Presidency of Bosnia and Herzegovina shall be the responsibility of that Entity, except insofar as the obligation is necessary for continuing the membership of Bosnia and Herzegovina in an international organisation. (Article III.2(b) of the BiH Constitution).

Article III.2(c) of the BiH Constitution stipulates rather the responsibility than the authority of the Entities to provide a safe and secure environment for all persons within their respective jurisdictions, by maintaining civilian law enforcement agencies operating in accordance with internationally recognised standards and with respect for the internationally recognized human rights and fundamental freedoms referred to in Article II of the BiH Constitution, and by taking such other measures as appropriate.

The Entities have no residual responsibilities in the area of the “so called” federal disputes,²⁶¹⁴ which falls, pursuant to Article VI.3(a) of the BiH Constitution, within the exclusive jurisdiction of the BiH Constitutional Court. For this reason and taking into account its jurisdiction to issue interim measures in accordance with Article 75 of the Rules of the BiH Constitutional Court (Article 77. a. v.), the BiH Constitutional Court finds no room for the institutions of the Republika Srpska to issue any provisional measure in case of federal disputes.²⁶¹⁵ Article 138 of the RS Constitution, as modified by Amendments LI and LXV, confers a power on the bodies of the Republika Srpska so that in a case where acts of the institutions of Bosnia and Herzegovina or acts of the Federation of BiH, in contradiction with the Constitution of the Republika Srpska and the Constitution of Bosnia and Herzegovina, violate the equality of the Republika Srpska, or when its rights and legal interests are otherwise endangered without its protection being secured, the organs of the Republika Srpska shall, temporarily until a decision of the Constitutional Court of Bosnia and Herzegovina is adopted and in cases when irremediable detrimental consequences might occur, pass enactments and undertake measures for the protection of the rights and interests of the Republika Srpska.

However, taking into account the BiH Constitution, one cannot make an objection in cases where the Entities wish to provide their citizens with a wider range of human rights and freedoms than the one offered by the BiH Constitution itself, including the ECHR. As a result, the BiH Constitutional Court held that Amendment LVII, paragraph 1 of the RS Constitution was not necessarily in contravention of the BiH Constitution, which stipulates that in a case where the RS Constitution and the BiH Constitution contain different provisions for the protection of human rights and freedoms, those that are more favourable to the individual shall be applied. This possibility arises from the relative constitutional autonomy enjoyed by administrative-territorial units of complex states, as also stipulated by Article 53 (former Article 60) of the ECHR.²⁶¹⁶ However, this authority of the Entities must not be understood as the right to assume the exclusive responsibilities of a higher level, but as the right of the Entities to exceed, within their respective responsibilities, a minimum level of protection as foreseen by the BiH Constitution. If an Entity aspires to provide a wider level of protection in an area falling within the responsibility of the State, a delegation of the State’s competence is required.²⁶¹⁷

Concurrent responsibilities also exist in the field of public security if it relates to the protection of State borders. Based on the specific responsibility under Article III.1 of the BiH Constitution and the principal right of each State to the self-defence necessary to preserve sovereignty, as referred to in Article III5 of the BiH Constitution, the establishment of a State Border Service fall within the responsibility of the State. This responsibility is not in contravention of the responsibilities and obligations of the Entities to provide a safe and secure environment for all persons in accordance with Article III.2 of the BiH Constitution. This principal obligation is incorporated into the Law on State Border Service as the Law upholds this responsibility of the Entities and provides for a policy of cooperation and assistance between the State Border Service and the Entities’ police forces, which should improve the guarantee of public order under jurisdiction of the Entities.²⁶¹⁸

Systematisation of concurrent responsibilities, if applied to the “so called” implied powers,²⁶¹⁹ may cause difficulties in practice as the balance of forces between the State and the Entities, in the complex state system, must not be disrupted. Consequently, appropriate adjustments are required to transfer such responsibilities. The Human Rights Commission within the BiH Constitutional Court made a particular effort to define them.²⁶²⁰ The principle of governing the division of responsibilities between different administrative-territorial levels of authority, which is protected in all confederal and federal structures, is called subsidiarity. Under this principle, a higher level of authority (the State) may undertake an activity only if such an activity cannot be undertaken in the same or better way by the next lower level of authority (a situation of necessity). In addition, the State enjoys a certain margin of appreciation in deciding whether or not necessity exists. Such decisions are subject to review by the BiH Constitutional Court.

On the contrary, the State may delegate certain tasks to the Entities, which fall within the exclusive responsibility of the State.²⁶²¹