Responsibilities provided for in Annexes 5 through 8 to the General Framework Agreement

One of the first questions that comes to mind when reading this specific segment of Article III.5(a) pertains to the scope of responsibilities that Bosnia and Herzegovina can claim to be entitled to assume. Is Bosnia and Herzegovina entitled to assume responsibilities for any substantive matter covered by Annexes 5 to 8 or only for a few specifically prescribed matters?

The wording of Article III.5(a) refers to responsibilities that must be provided by such Annexes (emphasis added). Secondly, a careful reading of the relevant provisions of Annexes 5 to 8 shows that such provisions delineate rather precisely the type of responsibilities to be assumed by Bosnia and Herzegovina. This is the case, for example, with Article XIV of Annex 6,²⁶⁶⁴ Article IV.2 of Annex 6,²⁶⁶⁵ Article XVI of Annex 7²⁶⁶⁶ or Article IX of Annex 8.²⁶⁶⁷ It could be argued consequently that Article III.5(a) should be interpreted within this framework and that the Entities did not intend to transfer more responsibilities than those that are specifically referred to in the relevant provisions of Annexes 5 through 8.

The Court seems however to have taken a more liberal approach in a number of recent decisions in which it identified responsibilities belonging to BiH that go beyond a strict interpretation of Articles IV.2 and XIV of Annex 6 to the General Framework Agreement for Peace. In U 14/05, the Court indicated that Bosnia and Herzegovina is both competent and obligated to assume responsibilities in those matters that are provided for in Annexes 5 through 8 to the General Framework Agreement for Peace.²⁶⁶⁸ It went on to indicate that Article III.5(a), when read in conjunction with the provisions of Annex 6 to the General Framework Agreement, imposed obligations for Bosnia and Herzegovina to take systemic measures in order to secure the exercise of the right to property. In an interesting development, the Court indicated that it follows from Annex 6 that the intention of its drafters was for Bosnia and Herzegovina to be the level of government responsible to create the framework for the protection of human rights and freedoms.²⁶⁶⁹ It held further that:

“[…] when it comes to the issue of property rights of the holders of foreign currency savings accounts, Bosnia and Herzegovina has failed to undertake all necessary measures in order to secure that those persons exercise the very essence of their rights to property as it is referred to in the Constitution of Bosnia and Herzegovina and the European Convention. Bosnia and Herzegovina has failed to create the legislative and institutional frameworkfor resolving that problem in a unified manner throughout the whole territory of Bosnia and Herzegovina.

53. Bosnia and Herzegovina, given its responsibilities under Annex 6 to the General Framework Agreement to “secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms”, should not have relied on the Entities and the Brčko District to act within their competences in the field of monetary policy in such a way as to resolve that problem in an efficient and effective manner. The Constitutional Court considers that Bosnia and Herzegovina, by enactment of the Framework Law on the Privatization of Enterprises and Banks, gave a “green light” to the commencement of the privatization process in Bosnia and Herzegovina without securing the clear and unified framework for resolving the problem of old foreign currency savings through the privatization process. In other words, Bosnia and Herzegovina cannot be released from the obligation to guarantee the respect for the constituent property rights of the holders of the foreign currency savings accounts without providing sufficient guarantees of an appropriate resolution to this problem in accordance with, among other things, the standards provided for by Article 1 of Protocol No. 1 to the European Convention.”²⁶⁷⁰

Noting that several decisions from the Human Rights Chamber of Bosnia and Herzegovina and the Human Rights Commission within the Constitutional Court had ordered Bosnia and Herzegovina to take measures to provide a principled resolution to the existing problem of old foreign currency savings, the Court concluded that:

“[…] Bosnia and Herzegovina, even after being ordered to find [a] universal solution for this issue, remained inactive, and thereby it violated its obligations under Annex 6 to the General Framework Agreement concerning respect for and execution of final and binding decisions of the Chamber for Human Rights for Bosnia and Herzegovina.”²⁶⁷¹

The Court relied on a similar line of reasoning in AP 164/04²⁶⁷² to conclude that Article III.5(a), when read in conjunction with Annex 6, created obligations for Bosnia and Herzegovina to undertake political measures on the international plane to resolve the issue of old foreign currency savings.²⁶⁷³