Introduction

Article III.5 of the Constitution of Bosnia and Herzegovina (hereinafter Constitution) has been at the centre of many discussions since the entry into force of the Constitution. It is treated under a specific section of this publication given the extent to which it has been the source of a very dynamic evolution of Bosnia and Herzegovina (BiH) constitutional law. By providing that Bosnia and Herzegovina²⁶³³ can assume additional responsibilities over such matters as are agreed by the Entities, the provision is inherently organic and a clear source of flexibility for BiH constitutional law. Many reforms have indeed been based on Article III.5 since the entry into force of the Constitution. The establishment of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC), the Indirect Taxation Authority (ITA) or the implementation of reforms in the field of defence are all, for example, related to Article III.5 of the Constitution.

While several questions have been raised through the years in the context of the many reforms that have taken place in BiH, very few of them have been clarified by the Constitutional Court of BiH (hereinafter Court). Do all the responsibilities exercised by Bosnia and Herzegovina pursuant to Article III.5 necessarily qualify as “transferred responsibilities”? Does Bosnia and Herzegovina need to be party to an agreement transferring competencies under Article III.5(a)? Can Entities regulate the manner in which they consent to such agreements or can an Entity unilaterally withdraw its consent from such agreements?

This commentary seeks to provide a number of answers to these important questions. Its structure is based on the two main components of Article III.5, namely Article III.5(a) and Article III.5(b).