Origin

Bosnia and Herzegovina, which is fighting for its stability, is characterised by three constituent peoples, i.e., Croats, Serbs and Bosniaks. The multiethnic coexistence of these three peoples is best illustrated in the town of Brčko and its environment – which are defined as the “Brčko District” in the context of public and international law – since all elements of the related problems are concentrated there. The Brčko District is an area on the Sava river with 80,000 inhabitants constituting the border area of Croatia and Bosnia and Herzegovina. The international legal establishment of the Brčko District took place for strategic and geographic reasons at the end of 1995. It forms part of the Posavina corridor and operates as a condominium of both constituent parts (Entities) of Bosnia and Herzegovina, i.e., the Federation of Bosnia and Herzegovina on the one hand and Republika Srpska on the other hand. The District encompasses elements of statehood and communal self-government within the internationally limited sovereignty of the State of the Republic of Bosnia and Herzegovina which, in the context of international and public law, constitutes one of the most complicated creations in the world.

Bosnia and Herzegovina is not yet a sustainable State.³⁵⁵⁹ It is a “State whose development is obstructed”,³⁵⁶⁰ although its sustainability is not in danger in the military sense. As it has already been said, the members of the Peace Implementation Council that assist the peace process in terms of material, financial and personnel support, have given thought to close the Office of the High Representative.³⁵⁶¹

It appears that the inability of national political parties to come to an agreement on Brčko during the negotiations in Dayton³⁵⁶² and the subsequent Arbitral Tribunal’s Final Award for the Dispute over the Inter-Entity Boundary in Brčko Area, dated 5 March 1999, made Brčko, as a micro-universe of Bosnia and Herzegovina, become a laboratory for the moderate inter-entity.³⁵⁶³ The population is 46% Serb, 43% Bosniak and 11% Croat; they live together in the District (440km²) and are employed at all levels of the State powers. They have an integrated educational system and joint police structure, which means that there is cooperation which is not possible in other regions of the country.

Originally (before the war) Brčko was a Croat and Bosniak majority populated area. During the war, Serb military formations occupied the town. After the entry into force of the regulations relating to the Brčko District, Brčko was populated by a Serb majority.³⁵⁶⁴ Brčko was one of the richest towns of Bosnia and Herzegovina. Its position points to the fact of how important it is. It represents a road to Central Bosnia and the Southern Balkans and a connection with Croatia and Central Europe by the Zagreb-Beograd highway. The only port of Bosnia and Herzegovina on the Sava river – which is an important riverway to Belgrade and the Danube – is in Brčko. The District connects the western and eastern part of Republika Srpska in terms of economy and military strategy. A Croat and Bosniak majority population lived in the Posavina corridor before the war. Due to occupation by Serbs, Brčko became a Serb fiducia in the end of the war. The southern part of the District was under the administration of the Federation. Until 8 March 2000 when the Brčko District was established³⁵⁶⁵ based on the Final Award of 5 March 1999, power had been exercised by two Entities and three towns (Ravne/Brčko, Brka, Brčko Grad) which formed an integral part of the Entities. After a single administration had been established, the aforementioned geostrategic problems were resolved. The District Brčko as a condominium of the Federation of Bosnia and Herzegovina and Republika Srpska represents a unit of local self-government with integrated multiethnic and democratic laws, administration, police and judicial power. Moreover, the District Brčko is a demilitarised zone. The remaining part of the Posavina corridor forms an integral part of the Federation of Bosnia and Herzegovina and its Posavina Canton. Within the federal system of government, the Brčko District constitutes a particular case. It is a kind of third Entity.³⁵⁶⁶

The legal position of the Brčko District and, after all, Bosnia and Herzegovina itself is characterised by a conflict of national and international law where international law dominates. This applies regardless of whether it constitutes a direct legal basis for the existence of the State or solely a legal basis for the authority to control and the rights of “intervention” in the national legal system by the High Representative. International law is determined by the Dayton Agreement, dated 14 December 1995,³⁵⁶⁷ its Annexes, and the Arbitral Tribunal’s Final Award on the Dispute over the Inter-Entity Boundary in Brčko Area, dated 5 March 1999.³⁵⁶⁸ Insofar as the application of national regulations is concerned, the BiH Constitution – as Annex 4 of the Dayton Agreement, which was approved by BiH, the FBiH and the RS – applies, then the Constitutions of FBiH³⁵⁶⁹ and RS³⁵⁷⁰ and, finally, the Statute of the Brčko District, which was adopted by the Assembly on 8 March 2000.³⁵⁷¹