Can Entities regulate the manner in which they consent to an agreement?

Given that Entities are entitled to reach agreements under Article III.5(a), can they unilaterally determine the conditions under which they will provide their consent? While some have cautioned against making the transfer of responsibilities between the Entities and Bosnia and Herzegovina more difficult by introducing cumbersome procedures at the Entity level,²⁶⁴⁵ a provision of the constitution of an Entity requiring that the executive authorities of the Entity need to obtain the consent of the Entity legislature before consenting to a transfer agreement does not seem to pose any problems in our view.

It remains to be seen however whether the Court would feel bound, in assessing the validity of a transfer agreement reached pursuant to Article III.5(a), by the procedural requirements set forth in Entity legislation. The failure of an Entity authority to provide its consent to a transfer agreement in a manner that satisfies the requirements set forth by Entity legislation would not, in our opinion, necessarily vitiate the transfer agreement itself. Such failure may raise a question of law that needs to be resolved within the framework of Entity legislation but should nevertheless be distinguished from the broader and separate question of whether the agreement itself satisfies the requirements set forth under the Constitution. The latter question falls under the exclusive competence of the Court, which ultimately retains, in our opinion, the capacity to determine whether a transfer agreement satisfies the requirements of the Constitution.²⁶⁴⁶

Entities have considered through the years a number of draft amendments to their respective legislation by which they sought to identify or limit which competencies could be transferred to the institutions of Bosnia and Herzegovina. While it may be, to a certain extent, possible for an Entity to include such a provision in its legislation, it may easily infringe upon provisions of the Constitution. This would be the case, in our view, with an Entity constitutional provision stipulating the following:

Only in exceptional circumstances may the responsibilities which are under this Constitution be transferred by the Entity to BiH Institutions in accordance with Article III.5(a) of the Constitution of BiH.

As indicated above, we do not believe that a failure by an Entity authority to abide by such a provision would necessarily invalidate a transfer agreement. The Constitution does not seem to foresee any limit as to which responsibilities may be transferred under Article III.5(a). Moreover, such a provision would be based on the premise that the responsibilities of an Entity find their primary source in the Constitution of the Entity itself rather than the Constitution of BiH. Such a premise raises serious questions of compliance with the Constitution.²⁶⁴⁷