By Milorad Dodik, President of Republika Srpska
The General Framework Agreement for Peace in Bosnia and Herzegovina, better known as the Dayton Agreement, along with its 11 annexes, the United Nations Charter, and the Helsinki Final Act of the Conference on Security and Cooperation in Europe from 1975, is one of the most important international legal documents created after World War II. Although relatively concise, it is thoroughly elaborated in numerous annexes signed by the then “Republic of Bosnia and Herzegovina,” Republika Srpska, and the Federation of Bosnia and Herzegovina as constituent states of Dayton’s “Bosnia and Herzegovina,” which remains its official name under the agreement.
This agreement, including its annexes as an integral part, falls under the Vienna Convention on the Law of Treaties. The primacy of international law is confirmed by the Constitutional Court of Bosnia and Herzegovina in Decision 5/98, which states, among other things:
“Unlike the constitutions of many other countries, the Constitution of Bosnia and Herzegovina in Annex 4 of the Dayton Agreement is an integral part of an international treaty. Therefore, Article 31 of the Vienna Convention on the Law of Treaties—which establishes a general principle of international law, and these principles are, according to Article 3.3(b) of the Constitution of Bosnia and Herzegovina, ‘an integral part of the legal order of Bosnia and Herzegovina and the entities’—must be applied in interpreting all its provisions, including the Constitution of Bosnia and Herzegovina.”
The Venice Commission of the Council of Europe, affirming the same position, stated that “the General Framework Agreement contains only 11 articles, while the substantive obligations are included in the annexes: thus, it is clear, in the Commission’s opinion, that the intent of the parties to the General Framework Agreement was for it to serve only as a framework, while the annexes would regulate its substance.”
Annex 4 of the Dayton Agreement, which serves as the Constitution of Bosnia and Herzegovina, is regulated by Article 12:
“This Constitution shall enter into force upon signature of the General Framework Agreement as a constitutional act replacing and superseding the Constitution of the Republic of Bosnia and Herzegovina.”
Thus, as of December 14, 1995, the “Republic of Bosnia and Herzegovina” formally ceased to exist, leaving only the two entities as contracting parties to Annex 4 of the Dayton Agreement. This is also confirmed by numerous opinions from Bosniak legal scholars. For example, Professor Kasim Trnka, a member of the delegation of the “Republic of Bosnia and Herzegovina” in Dayton, wrote:
“Since the Constitution was imposed through an international treaty, the constitutional order was not changed in accordance with the revision process prescribed by the previous legal and legitimate Constitution of the Republic of Bosnia and Herzegovina, meaning that we can speak of constitutional discontinuity.”
For this reason, Republika Srpska, as one of the two contracting parties to Annex 4, has invited the state authorities of the Federation of Bosnia and Herzegovina—including the president, deputies, prime minister, and deputy ministers—to discuss the implementation of the Constitution of Bosnia and Herzegovina and the anomalies arising from the unlawful actions of high representatives and other structures. They have refused, and this is not the first time.
Recognition of statehood
The Dayton Agreement confirmed the statehood of Republika Srpska, reducing only a portion of its competencies—ten of them—that were transferred to “Bosnia and Herzegovina.” Therefore, under the valid and unchanged Constitution of Bosnia and Herzegovina, Republika Srpska, as an entity, still retains jurisdiction over the entire judiciary (except for the Constitutional Court of Bosnia and Herzegovina), all finances and taxes, border services, all police matters, defense and military, intelligence and security affairs, and many other areas that were unconstitutionally seized through impositions, threats, deceptions, and fraud.
Even those competencies seized through imposed laws by high representatives—such as the laws on the Court and Prosecutor’s Office of Bosnia and Herzegovina—could not be confirmed by the Parliamentary Assembly at the state level, as high representatives, according to its rules, could not be “proposers,” making these and other imposed laws null and void or at least long invalid.
Thus, Republika Srpska did not gain autonomy in Dayton, as it had no one to receive it from—it merely confirmed its statehood. This was even acknowledged by Richard Holbrooke, often called the architect of the Dayton Agreement, who stated:
“There are two entities, and we can only create a concept of the Constitution of Bosnia and Herzegovina by extracting from the two entities the elements necessary to maintain the state, making it at least somewhat functional and stable.”
This is why the key provision of the Constitution of Bosnia and Herzegovina is Article 3.3(a):
“All governmental functions and powers not expressly assigned to the institutions of Bosnia and Herzegovina by this Constitution shall be those of the entities.”
Since Annex 4 was drafted by American legal experts, this provision is almost a direct copy of the Tenth Amendment to the U.S. Constitution, which states:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
This amendment emerged from The Federalist Papers, authored by Alexander Hamilton and James Madison, which stated:
“The rights given to the central government (the U.S. federal level) by the Constitution are limited and precisely defined, while the rights of the sovereign states (the 50 that make up the U.S.) are broad and unrestricted.”
And this is not the only aspect modeled after the U.S. Constitution. Given the attacks on the property of Republika Srpska, it is important to note how this matter was resolved in the U.S. Constitution. Article 1 of the U.S. Constitution grants Congress the authority:
“To exercise exclusive legislative authority over any district ceded by individual states and accepted by Congress as the seat of government of the United States (i.e., the District of Washington), as well as over places purchased with the consent of the legislature of the state in which such places are located.”
Thus, the Constitution of Bosnia and Herzegovina determined that only the entities have the right to property within their territories—49% for Republika Srpska and 51% for the Federation of Bosnia and Herzegovina.
Temporariness
Another extremely important provision of the Constitution of Bosnia and Herzegovina—Article 5.5—should be read every day in Sarajevo:
“No entity shall threaten or use force against the other entity, and the armed forces of one entity shall under no circumstances enter or remain on the territory of the other entity without the consent of the government of the latter and the Presidency of Bosnia and Herzegovina. All armed forces in Bosnia and Herzegovina shall operate in accordance with the sovereignty and territorial integrity of Bosnia and Herzegovina.”
This is also stated in Annex 1A—”Agreement on the Military Aspects of the Peace Settlement.” It is doubly reinforced.
Therefore, all constitutional competencies that belong to the entities under the Constitution of Bosnia and Herzegovina but have been transferred to the level of Bosnia and Herzegovina on any basis are only temporary because they are unconstitutional. This applies especially to several key competencies, including defense and armed forces, judicial authority, taxation, intelligence and security services, and other important areas that were not regulated by the Constitution but rather by imposed laws.
Despite numerous proposals from Republika Srpska to the Federation of Bosnia and Herzegovina, as the other contracting party, to review and redefine some of these competencies to find solutions beneficial to both sides, such as defense and armed forces, judicial jurisdiction, and tax revenues, there has been no response. Instead, political Sarajevo continues to consider all these unlawfully seized powers untouchable because they were imposed by the so-called “international community.”
After all this, any further discussion on the unconstitutional and unlawful nature of today’s anti-Dayton Bosnia and Herzegovina is redundant.
Source: Glas Srpske
