Sovereignty, territorial integrity and political independence

“Committed to the sovereignty, territorial integrity, and political independence of Bosnia and Herzegovina in accordance with international law”

The obligation to respect the sovereignty, territorial integrity, and political independence of Bosnia and Herzegovina in accordance with international law includes also the rejection of possible separatist tendencies (or their continuation) even at the price of a long political and economic deadlock at the level of the State of Bosnia and Herzegovina.

According to the first sentence of Article I.1 of the BiH Constitution, Bosnia and Herzegovina, from the point of view of international law, is not a newly established legal personality but a State successor of the international personality of the Republic of Bosnia and Herzegovina with its borders internationally recognized at the moment of adoption of the Constitution.¹⁶⁷ The State thus remained a Member State of the United Nations and maintained or could apply for membership in organisations within the United Nations system and other international organisations (Article I.1, second sentence thereof). Bosnia and Herzegovina is the very same state that it was initially as the Republic of Bosnia and Herzegovina, and one of the five states – namely Slovenia, Croatia, the former Federal Republic of Yugoslavia¹⁶⁸ and the former Yugoslav Republic of Macedonia – which were created by the disintegration of Yugoslavia. The United Nations recognised it as an independent State on 1 March 1992. Prior to this, the majority of citizens of Bosnia and Herzegovina, in a referendum, voted for independence, autonomy and the sovereignty of the State. Bosnia and Herzegovina, however, lost the mark “Republic” and got a new internal structure consisting of so-called Entities, namely the Federation of Bosnia and Herzegovina and the Republika Srpska (Article I.1, first sentence thereof, in conjunction with Article I.3 of the BiH Constitution).

According to Article I of the General Framework Agreement concluded in Dayton, the Republic of Croatia and the then Federal Republic of Yugoslavia explicitly undertook to respect – in addition to other international obligations, such as the conduct of relations with Bosnia and Herzegovina in accordance with the principles set forth in the United Nations Charter, as well as the 1975 Helsinki Final Act¹⁶⁹ – the sovereignty, territorial integrity or political independence of Bosnia and Herzegovina. In international law, this is something that goes

without saying. It is only the prehistory of centrifugal conflict that can give an explanation as to why the obligation to respect sovereignty, territorial integrity or political independence of a State, which is an implicit international obligation, is also formulated as a legal-constitutional obligation. Calling into question these inter-state obligations would not only create an external threat but also an internal threat, which was confirmed and manifested again in the years following the armed conflict. So, in addition to line 6 of the Preamble, Article III.2(a) of the BiH Constitution entitles the Entities to “establish special parallel relationships” with neighbouring states consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina, which, according to Article VI.3(a), line 3, may be examined objectively by the Constitutional Court. Moreover, according to Article III.5 of the BiH Constitution, the State of BiH may assume responsibilities other than those provided for by Article III.1 if they are necessary to preserve the sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina. The legislature used this, for example, when adopting the Law on the State Border Service.¹⁷⁰ Therefore, the Entities are subject to the sovereignty, territorial integrity and political independence of Bosnia and Herzegovina and they themselves do not have the legal capacity of a State.¹⁷¹ Finally, in Article V.5(a) of the BiH Constitution, the architect-Framer of the Constitution, once again, precisely stipulated the obligation for the armed forces in Bosnia and Herzegovina, i.e., those of the Federation and the Republika Srpska, to respect the sovereignty and territorial integrity of Bosnia and Herzegovina; therefore, they should also act in accordance with the aforementioned principles.¹⁷² The fact that common armed forces have central significance encouraged the Framer of the Constitution to adopt, following difficult and long negotiations, the Law on Defence of BiH in 2003.¹⁷³