iii. Withdrawal from an agreement

It remains unclear whether the transfer agreement mechanism foreseen by Article III.5(a) is reversible by nature. Is it possible for Entities to call back responsibilities that have been transferred to Bosnia and Herzegovina? Can an Entity unilaterally withdraw from a transfer agreement reached under Article III.5(a)?

On the one hand, given that such transfers are based on an agreement reached by both Entities, they should be entitled to decide whether to call back some or all responsibilities initially transferred. Reference could be made to provisions such as Article IX of Annex 8 to the General Framework Agreement. Annex 8 could indeed qualify as an agreement to which the Republika Srpska and the Federation of Bosnia and Herzegovina are parties. This agreement contains provisions that transfer responsibilities to Bosnia and Herzegovina, but which explicitly provide that such responsibilities will be transferred to Bosnia and Herzegovina until the parties “otherwise agree”.²⁶⁶⁰ Other agreements concluded under Article III.5(a) could thus contain similar provisions.

On the other hand, one may argue that such a possibility would instil an unwelcome level of uncertainty into the BiH constitutional system. From a more practical point of view, a withdrawal would also often lead to the dismantling of important administrative structures established by Bosnia and Herzegovina to carry out the transferred responsibilities. As stated above, the need to maintain an optimal level of coherence and stability in the constitutional system of allocation of responsibilities could very well justify an interpretation of the Constitution that would deny any right for the Entities to call back competencies that have been transferred. While the Constitution allows Entities to transfer responsibilities to BiH, it contains no provision allowing BiH to transfer responsibilities to the Entities. Once transferred, responsibilities could not be transferred back.²⁶⁶¹ In any case, the Court is unlikely to feel bound by subsequent withdrawal acts taken by Entities.

What seems clearer is that unilateral withdrawals by an Entity alone are unlikely to be allowed under the Constitution. Given the consensual basis required to transfer these responsibilities, it is difficult to conceive how an Entity could unilaterally decide to call back responsibilities that have been transferred without the agreement of the other Entity.