Transfer of responsibilities or assumption of responsibilities?

Before turning to the first category of responsibilities, a number of points need to be made regarding the concepts of the transfer and assumption of responsibilities. Many in BiH have, through the years, categorised all responsibilities exercised by Bosnia and Herzegovina pursuant to Article III.5 as necessarily belonging to a category of so called “transferred” responsibilities. While it may be legitimate in our view to categorise as such responsibilities that have been transferred to Bosnia and Herzegovina by virtue of an agreement between Entities reached under Article III.5(a), the notion of “transfer” does not however apply to other responsibilities exercised on the basis of the same Article.

When Bosnia and Herzegovina adopts, for example, legislation on the basis of responsibilities that are necessary to preserve its sovereignty and territorial integrity, it occupies its own fields of responsibilities under Article III.5(a). Far from being the result of a transfer by the Entities, such responsibilities clearly fall within the exclusive domain of Bosnia and Herzegovina.

The case law of the Court is rather clear on this point. In U 9/00, the Court indicated:

[…] The applicants are not justified in claiming that, according to Article III.5(a), the Presidency of Bosnia and Herzegovina required the prior consent of the National Assembly of Republika Srpska to submit a proposal for the Law on State Border Service to the Parliamentary Assembly of Bosnia and Herzegovina. Indeed, the aforementioned Article distinguishes between three mutually independent hypotheses: Bosnia and Herzegovina shall assume responsibility for such other matters as (1) are agreed by the Entities; (2) are provided for in Annexes 5 through 8 to the General Framework Agreement; or (3) are necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina according to the provision of Articles III.3 and III.5 of the Constitution of Bosnia and Herzegovina. It is in application of the last of these three cases that the Law on State Border Service was proposed by the Presidency of Bosnia and Herzegovina to the Parliamentary Assembly. In this context, only Article IV.4(a) which provides that the Parliamentary Assembly shall enact legislation as necessary to implement decisions of the Presidency must be considered. As this Article does not require the consent of the Entities, the procedure followed by the Presidency of Bosnia and Herzegovina prior to the adoption of the Law on State Border Service is not in conflict with the Constitution of Bosnia and Herzegovina. (emphasis added)²⁶³⁴

In U 16/08, where the Court was requested to assess the constitutionality of an amendment to legislation establishing the Court of Bosnia and Herzegovina that extended its jurisdiction, the Court clarified its position further.²⁶³⁵

The applicant argued that the challenged provision was, inter alia, the result of an unconstitutional transfer of responsibilities from the Entities to Bosnia and Herzegovina and that this “silent transfer” of responsibilities endangered the trust of peoples and Entities in constitutional changes in Bosnia and Herzegovina.²⁶³⁶ The Court rejected the applicant’s argument and concluded that Bosnia and Herzegovina had acted within its field of competencies set forth under the Constitution. In so doing, the Court referred to its earlier decision in U 26/01 in which it had indicated that Bosnia and Herzegovina was authorised to establish additional institutions for the exercise of its responsibilities.²⁶³⁷