Special case: Entities’ special parallel relationships with neighbouring states

Pursuant to Article III.2(a) of the BiH Constitution, the Entities are entitled to establish special parallel relationships with neighbouring states. The aforementioned involves the residual responsibility of the Entities, the use of which must not be in violation of the right at the State level (Article III.3(b) of the BiH Constitution), and, in particular, of the principles of sovereignty and territorial integrity of Bosnia and Herzegovina (Article III.2(a) of the BiH Constitution).

Having regard to the BiH Constitution, one cannot make an objection if the possibility of establishing special parallel relationships with neighbouring states is stipulated in the constitution of an Entity, although there is not a more general reference to the existence of such a right under the BiH Constitution nor does it specifically mention the sovereignty and territorial integrity of Bosnia and Herzegovina. Namely, taking into account the provisions of Article III.2(a) and Article II.4 of the BiH Constitution (the prohibition of discrimination), it is possible to find a constitutionally conforming interpretation of this provision in such a case.²⁶²⁷ In addition, a limitation on the establishment of special parallel relationships only with one state is not unconstitutional if an obligation to enter into such agreements cannot be seen from the text of the respective provision.²⁶²⁸ Therefore, the full text of Article 4 of the RS Constitution, as modified by Amendment LVI, paragraph 2, could remain in effect; it reads: “the Republika Srpska may, according to the Constitution of BiH, establish special parallel relationships with the Federal Republic of Yugoslavia and its Member Republics.”

On the contrary, it is inconsistent with the obligations arising from Article 2(1)

(c) of the International Convention on the Elimination of All Forms of Racial Discrimination,²⁶²⁹ Article I.3(a) and Article II.1 of Annex VII in conjunction with Article II.5 and Article III.2(c) of the BiH Constitution, when the Republika Srpska stipulates in Article 68(16) of the RS Constitution that “the Republic [Republika Srpska] shall regulate and ensure cooperation with the Serb people outside of the Republic”.²⁶³⁰ The binding character of the said provision has the effect of creating a specific preference for the Serb population although such preference, within the meaning of Article 1, paragraphs 1 and 4 of the International Convention on the Elimination of All Forms of Racial Discrimination,²⁶³¹ is not necessary, as an adequate advancement of the Serb people in the Republika Srpska is, on the basis of their factual majority position, certainly not required.²⁶³²