Who are the parties to the agreement referred to in Article III.5(a)? Does Bosnia and Herzegovina need to be party?

There have been many discussions as to which legal subjects are entitled to conclude an agreement under Article III.5(a). While the text of Article III.5(a) refers to an agreement between Entities only, some have argued that the main beneficiary of such an agreement, namely Bosnia and Herzegovina, should also be party to such agreements.

It could indeed be argued, by reference to Annexes 6, 7 and 8 to the General Framework Agreement for Peace in Bosnia and Herzegovina (hereinafter General Framework Agreement), that the consent of Bosnia and Herzegovina is required. All such Annexes can qualify as agreements signed by Republika Srpska, the Federation of Bosnia and Herzegovina and the Republic of Bosnia and Herzegovina. Moreover, they all contain provisions by which a number of responsibilities are transferred to the institutions of Bosnia and Herzegovina.²⁶⁴¹

Several arguments, however, support the opposite position. Firstly, the text of Article III.5(a) is clear. It stipulates that Bosnia and Herzegovina shall assume responsibility for such other matters “as are agreed by the Entities”. When read in conjunction with Article IV.4(e), which stipulates that the Parliamentary Assembly shall have responsibility for such other matters as are assigned to it “by mutual agreement of the Entities” it can be argued that the text of the Constitution tends to suggest that Entities only are entitled to enter into such agreements.

The practice of the parties provides us with additional elements to interpret the text of Article III.5(a). The transfer agreement concluded in the field of defence is particularly interesting in this regard. The text of the agreement makes it clear that it was the Entities themselves that agreed on transferring responsibilities. While the agreement has been signed by the Chairman of the Council of Ministers of BiH (in addition to representatives of both Entities), it indicates explicitly that he had signed the agreement as a witness.²⁶⁴²

The arrangements that led to the establishment of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC) may, although reached under Article III.5(b), also be of particular interest. This agreement provides for a number of obligations for Bosnia and Herzegovina. It was signed by the Prime Ministers of both Entities on 11 March 2004 and was also signed by the Minister of Justice of Bosnia and Herzegovina on 18 March 2004.²⁶⁴³ The agreement, however, indicates in its first Article that it is the Entities themselves that agreed to the transfer of the relevant responsibilities. Moreover, the Court seems to have recognized in U 11/08 that the agreement had been reached between the Entities themselves (as opposed to the Entities and BiH).²⁶⁴⁴

As far as the arguments based on Annexes 6, 7 and 8 to the General Framework Agreement are concerned, we note that they have been signed by a representative of the “Republic of Bosnia and Herzegovina” as opposed to “Bosnia and Herzegovina” (namely the new central level of government established by the Constitution). This signature seems more to be linked to the particular circumstances that were prevailing on the ground at the time of the negotiations which led to the signature of the General Framework Agreement rather than a clear intention to ensure that the institutions of Bosnia and Herzegovina needed to be party to any subsequent agreements to be reached under Article III.5(a).

In practice, representatives of Bosnia and Herzegovina have been heavily involved in negotiations leading to such agreements. It would be difficult to imagine how such responsibilities could be effectively and efficiently assumed by Bosnia and Herzegovina in the absence of any prior consultation. Although the consent of Bosnia and Herzegovina does not seem to be legally required, practical considerations inevitably continue to push representatives of the Entities and those of Bosnia and Herzegovina to work jointly on most aspects of such agreements.