Legal Status of the District

In order to understand the legal status of the District it is necessary to view Bosnia and Herzegovina in the context of international law. It has already been clear that it is difficult to analyse Bosnia and Herzegovina, as a State and legal subject, within the context of the theory of public law and public international law. In science, there has been no clearly differentiated opinion about this issue.³⁵⁸⁵ It is questionable whether Bosnia and Herzegovina is a federal state or a confederation, or whether Bosnia and Herzegovina may be deemed to be a sovereign country or a protectorate of the international community. According to one opinion, Bosnia and Herzegovina is not a sovereign State but a confederation consisting of two sovereign States, the Federation of Bosnia and Herzegovina and the Republika Srpska.³⁵⁸⁶ The said opinion is contrasted by the fact that line 6 of the Preamble of the BiH Constitution and Article III.2(a) of the BiH Constitution address sovereignty. In any event, the State as a whole is not called a “federal state”, but a “state”. The Federation of Bosnia and Herzegovina and the Republika Srpska are not called “states” or “countries”, as is the common situation in federal law, but they are defined as “Sub-State-Entities”.³⁵⁸⁷ Therefore, according to another opinion, Bosnia and Herzegovina is, in any case, a quasi or de facto federal state.³⁵⁸⁸ A relatively clear division of responsibilities between the State and the Entities, presuming the existence of the responsibilities of the Entities,³⁵⁸⁹ are typical elements of a federal system of government.

Most academics see Bosnia and Herzegovina as a sovereign State and not as a protectorate,³⁵⁹⁰ not only because of the reference made in the BiH Constitution, that is Annex 4 to the Dayton Peace Agreement, but because of the facts that the State is a full member of the United Nations and that it joined the Council of Europe in 2002.³⁵⁹¹ In addition, Article III of the BiH Constitution lists a number of responsibilities of the State (foreign policy, monetary policy, migration policy, etc.), which, in essence, are the responsibilities of any State. Nevertheless, an opinion is often expressed³⁵⁹² that Bosnia and Herzegovina is a protectorate. However, unlike typical protectorates, Bosnia and Herzegovina is not under UN auspices, but rather it is under the auspices of the international community or international organisations, established as the Peace Implementation Council based on the 1995 Dayton Peace Agreement. Finally, Bosnia and Herzegovina is not a typical protectorate, which implicitly includes internal autonomy and foreign dependence.

In any case, the State is fairly limited operation-wise in the area of its internal and foreign policy. As a result, Bosnia and Herzegovina may be denoted as a semi-protectorate or – by a legal passe-partout – as a “sui generis State”.³⁵⁹³

Similar relationships are applicable to the Brčko District. Pursuant to Paragraph 9 of the Final Award,³⁵⁹⁴ Bosnia and Herzegovina has sole authority over the Brčko District. As a self-governing administrative unit, which is part of both the Federation of Bosnia and Herzegovina and the Republika Srpska, the Brčko District is a territory independent from both Entities, as all powers were delegated to the District itself (paragraph 10 of the Final Award). Pursuant to paragraph 11 of the Final Award, Brčko is held in “condominium” by both Entities. Thus, the territory of the Federation of Bosnia and Herzegovina, as well as the territory of the Republika Srpska encompass the District as a whole.³⁵⁹⁵ In this way, the territory is divided so that it is equivalent to the parts held by each Entity: 51% is under the Federation of Bosnia and Herzegovina and 49% under the Republika Srpska. Indeed, the notion “condominium” – with a particular legal structure – is misleading,³⁵⁹⁶ as both Entities are given no possibility to have any influence on the District. The authority holders are solely the Supervisor and the District Government. The District is under the sole sovereignty of the State of Bosnia and Herzegovina. Consequently, the District, besides the Federation of Bosnia and Herzegovina and the Republika Srpska, is de facto an equal third entity, which is limited, as it is not afforded the right to vote at the State central level. Therefore, “a sui generis status” is the only possible solution left.