Statute of the Brčko District

The Final Award contains certain tasks for the establishment of the District and determination of the content of the Statute as a basic act of its system. The initial

task of the Supervisor³⁶²⁰ was appointing a joint implementation commission to assist him in preparing a new “Statute for the District Government” and a detailed plan and schedule for the formation of the District Government. The representatives of the State, Entities, (temporary) management bodies of Brčko and experts are assigned to the governmental structure of the Brčko District. On 3 March 2000, the Supervisor issued the Statue of the Brčko District which came into effect upon being published,³⁶²¹ on 9 March 2000. At the same time the Brčko District government officials were appointed.³⁶²² This being done, the Brčko District was considered established. In order to prove that the Brčko District is not a third entity there is the fact that the Statute is not ranked as a constitutional act. On the other hand, the Statute – just like a constitutional act – constitutes a legal basis of the District. Namely, it regulates legal issues such as: citizenship, military service, distribution of power, legislative authority and judiciary tasks – which are also regulated by the Entity Constitutions. Both Entities have transferred their constitutional authority to the District and its bodies. Furthermore, the basic principle which regulates the status of the Brčko District is not subject to change as referred to in Article 1, paragraph 5 of the Statute. The District has, de facto, the status of an Entity and, consequently, the Statute is the 14^th Constitution in Bosnia and Herzegovina.

Pursuant to Article 1, paragraph 1 of the Statute, the Brčko District is a single administrative unit of local self-government. That was the basis for the presumption – given the ambitions of Bosnia and Herzegovina to join the EU – that the European Charter of Local Self-Government will be taken into consideration in the course of assessing the status.³⁶²³ At the present time a conclusion may be drawn that the basic requirements of the European Charter of Local Self-Government have been met. However, it is quite understandable that all the standards were not applied, neither was it possible to apply all of them. The District is a small town with a small territory in a fragile country. The Convention’s principles may be also well-applied in the clearly structured federal states, but that is not the case with Bosnia and Herzegovina, which contains the elements of a federal state and elements of a federation of states.

The additional weakness of the legal system of the Brčko District could only be removed over time. The principle of local self-government is based on a clear division of responsibilities between the State and the District. That is to say that there are weaknesses in the constitutional system of Bosnia and Herzegovina. An unclear responsibility of assignment not only applies to the relationship between Bosnia and Herzegovina and the Entities but also to the relationship between the Brčko District and the State, i.e., the Entities. Brčko is included under the sovereignty of Bosnia and Herzegovina and the Entities are not to govern the District. However, neither the BiH Constitution nor the constitutions of the Federation of Bosnia and Herzegovina and Republika Srpska draw a clear boundary line. This is also considered as a weakness of the existing legal system of the State. The same applies to the field of economic law.³⁶²⁴ The Brčko District passed its own regulations in this field – and the Entities did the same – for Bosnia and Herzegovina is not assigned the exclusive legislative responsibility in this field, which is in accordance with Article III.3(a) of the BiH Constitution. However, one would not say that those are the responsibilities of local self-government. The Entity Constitutions should create a secure environment and take care of this issue. On the other hand, “a unified” or life sustaining environment having “the same” value should be created in Bosnia and Herzegovina. In fact, the point of the matter is a need for formation of legislation at the State level. Thus, coordination between the Brčko District, the Entities and Bosnia and Herzegovina becomes more important.³⁶²⁵

Another weakness of the Statute is the lack of an extensive catalogue of human rights and freedoms. The BiH and Entity Constitutions contain this catalogue of human rights and freedoms and the Statute contains only rudimentary freedoms in connection with business activities (Article 13) and gathering (Article 15), and it also contains the right to education (Article 16), two procedural rights (Article 17) and the right to public information (Article 18). One thing is for sure: the constitutional rights and freedoms under the BiH Constitution are directly applied (Article 13), however, incorporating the related instruction in the Statute would contribute to legal transparency and, based on that instruction, the human rights and freedoms under the Entities’ Constitutions would become applicable.³⁶²⁶ That would help the citizens of the District to get rid of the feeling that they are “second-class citizens”. This becomes particularly relevant because of the fact that the citizens of Brčko (as per their choice) are the citizens of one of the two Entities, although the legal system of the respective Entity is not applied in the District.

The Statute is divided into 6 chapters and 73 articles. Chapter I contains “General Provisions”. These provisions include the status of Brčko (Article 1), name, flag, coat of arms and anthem (Articles 2 through 4), the determination of territory, public representation, alphabet and language (Articles 5 through 7). Article 8 defines that the District is a demilitarized area, but the movement of Entity armed forces through the territory of the District is regulated in accordance with the laws of the State and the District. Article 9 encompasses the area of public functions and powers, in which case the responsibilities of Brčko District are not clearly separated from those assigned to the State and Entities, although this matter should have been regulated. Article 10 gives authority to the Brčko District to enter into cooperative agreements with the Entities despite a clear “withdrawal of power” from the Entities. The same principle applies to joining and entering into agreements with national and international associations of cities and municipalities and with cities and municipalities (Articles 11, 12). The mentioned freedom-related rights, the right of participation in the public power affairs and political rights are included in Articles 13, 15, 16 and 17 of the Statute. Pursuant to Article 14 of the Statute, District residents are not subject to military service regardless of whether it is compulsory or voluntary military service. The military reserve may be stipulated by law. Article 19 obliges all District authorities to diligently resolve all the requests of its residents. The following parts of the Statute deal with public authority: Chapter III, Section A – General Provisions, Chapter B – The Brčko District Assembly, Chapter C – The Brčko District Government, and further on, as a special governmental area: Chapter IV – The District Police and, finally, Chapter V- The District Judiciary. Chapters V and VII contain the interim and final provisions.