TO THE AMBASSADORS OF THE MEMBER COUNTRIES OF THE EUROPEAN UNON AND PEACE IMPLEMENTATION COUNCIL IN BOSNIA AND HERZEGOVINA
The immediate cause for this letter is the Order suspending the implementation of the Law on Status of State Property situated in the territory of Republika Srpska and is under the ban of disposal, which was passed by the High Representative on January 5, 2011. The authority to pass the Order lies according to the High Representative in Annex 10 of the General Framework Agreement for Peace in Bosnia and Herzegovina. Since Republikа Srpskа is a signatory to this Annex and all other 10 Annexes, in my capacity of the President of Republika Srpska, in line with the powers pursuant to Article 80 of the Constitution of Republika Srpska (Amendment CVIII), I would like to take the opportunity to point to the unsustainability of such actions of the High Representative.
The institution of the High Representative exists also based on the signature of Republika Srpska to Annex 10. Therefore, the High Representative has to act strictly in accordance with this Annex as a part of the international agreement. Nobody is allowed to use the obtained mandate for action against the one who he got the mandate from. Since the signing of the Dayton-Paris Agreement on December 14, 1995, the High Representative has in numerous cases exceeded the powers vested in him by the signatories of Annex 10, i.e. by Republika Srpska as well. The injustice done by the High Representatives towards Republika Srpska, and accepting it silently, confirmed the saying of the Roman Law: VOLENTI NON FIT INIURIA – You are not done injustice if you accept it. This practice lasted until 2007 when the Government and National Assembly of Republika Srpska opposed nonlegitimate activities of the High Representative. In this context we should also mention the Conclusions of the National Assembly of Republika Srpska as of May 14, 2009 on the occasion of discussing the transfer of competences. Item 15 of the Conclusions states: “The National Assembly reiterates that it is necessary to perform transformation of the international presence in BiH by the transition of the Office of the High Representative into the Special Representative of the European Union, without the jurisdiction to impose solutions in BiH. The National Assembly requests from the High Representative to immediately renounce the use of the alleged authority to impose laws and dismiss elected representatives (so called „Bonn Powers“) as an undemocratic and obsolete method of governance in Bosnia and Herzegovina. The National Assembly requests from the High Representative in BiH to annul the previously imposed decisions of the High Representatives on dismissals of a number of persons who were deprived of fundamental human, civil and political rights and freedoms by the mentioned decisions.”
Instead of accepting the request of the Party-signatory of Annex 10, on June 20 the High Representatives took the decision abrogating the mentioned Conclusions with the explanation that the Conclusions threatened the exclusive competences of Bosnia and Herzegovina explicitly stated in the Constitution of Bosnia and Herzegovina.
I would like to remind you that the Venice Commission at the plenary session in March 2005 gave THE OPINION ON THE CONSTITUTIONAL SITUATION IN BOSNIA AND HERZEGOVINA AND POWERS OF THE HIGH REPRESENTATIVE.
That opinion reads: On 23 June 2004 the Parliamentary Assembly of the Council of Europe adopted Resolution 1384 on “Strengthening of democratic institutions in Bosnia and Herzegovina”. Paragraph 13 of the Resolution asks the Venice Commission to examine several constitutional issues in Bosnia and Herzegovina. It is worded as follows:
The scope of the OHR is such that, to all intents and purposes, it constitutes the supreme institution vested with power in Bosnia and Herzegovina. In this connection, the Assembly considers it irreconcilable with democratic principles that the OHR should be able to take enforceable decisions without being accountable for them or obliged to justify their validity and without there being a legal remedy. The Assembly asks the Venice Commission to determine how far these practices comply with Council of Europe basic principles, in particular with the Convention for the Protection of Human Rights and Fundamental Freedoms.
In the Conclusions, the Venice Commission notes - “The use of the Bonn powers by the High Representative was beneficial for BiH and its citizens and a necessity following a bloody war. However, this practice does not correspond to democratic principles and sovereignty of BiH. THE LONGER IT EXISTS, THE MORE PROBLEMATIC IT BECOMES.“
It has been 6 years since then and nothing has changed. That is why I would like to remind you that Bosnia and Herzegovina was created by signing the General Framework Agreement for Peace in BiH, initialed in Dayton on November 21, 1995 and signed on December 14, 1995 in Paris. We all know that the Constitution of BiH as Annex 4 is an integral part of the General Framework Agreement for Peace in Bosnia and Herzegovina, known as Dayton Agreement. In this regard, the opinion of the Venice Commission of the Council of Europe, given under the number 337/2005 and adopted at the 63rd session as of June 10/11, 2005, is important. The Venice Commission considered the following question: Are Annexes 4 and 6 of the General Framework Agreement for Peace in BiH unilateral acts of Bosnia and Herzegovina or international agreements? The Commission concluded in the mentioned Opinion:
1. The Dayton Peace Accords are composed of the “General Framework Agreement” (GFA) and the 12 annexes, which supplement it.
2. The GFA was signed by three sovereign states – the (then) Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia. It is thus subject to international law pursuant to Article 1 of the Vienna Convention on the Law of Treaties.
3. Annexes 1A, 2, 3, 6 and 7 were signed by the Republic of Bosnia and Herzegovina and by the two territorial entities making up the Republic – the Federation of Bosnia and Herzegovina and the Republika Srpska. Annex 4 was not signed by the parties: declarations on behalf of the Republic of BiH, the Federation of BiH and the Republika Srpska “approving” the Constitution were attached to it. Annexes 5 and 9 were only signed by the Entities. Annexes 1A and 2 were also “endorsed” by the Republic of Croatia and the Federal Republic of Yugoslavia. Annexes 1B on regional stabilisation and 10 on civilian implementation were signed by the Republic of BiH, the Entities, the Federal Republic of Yugoslavia and the Republic of Croatia.
4. The Federation of Bosnia and Herzegovina and the Republika Srpska not being “states” from the standpoint of international law, the issue arises, and was raised by the European Court, as to whether or not the Annexes to the GFA are subject to the rules of international law.
5. The Commission notes that the GFA only contains 11 articles, which mostly set out the obligation for the three parties thereto to “welcome and endorse” and to “fully respect and promote fulfilment of the commitments” made in the annexes; to “agree to and comply fully” with their provisions (Articles VI, VII and VIII GFA); to “co-operate fully with all entities involved in the implementation of this peace agreement” (Article IX GFA).
6. The substance of the commitments is contained in the Annexes: it is therefore clear, in the opinion of the Venice Commission, that the Parties to the GFA intended the latter to constitute a framework agreement, and the Annexes to provide its substance.
7. The Commission observes that the Constitutional Court of Bosnia and Herzegovina itself had recourse to the Vienna Convention in order to interpret the Constitution (Annex 4).
8. In conclusion, the Commission is of the opinion that the Annexes to the GFA are to be considered an integral part thereof, so they must be considered as international treaties. Their character and interpretation are therefore governed by international law, in particular the Vienna Convention on the Law of Treaties.
The international legal character of the origin of Bosnia and Herzegovina results from the fact that is a result of the peace conference which lasted from November 1 to November 21 in Dayton, USA. As the international agreement itself, its 11 annexes are also a creation of American lawyers who were in the team for preparation of the documents for the negotiations in Dayton. The methodological approach to drafting the Constitution of BiH, which was written by American lawyers, unambiguously indicates in numerous provisions that the U.S. Constitution, Constitution of a federal state, served here as a model. At the time of drafting that oldest Constitution in the world, James Madison, one of its authors, explained in his „Federаlist Papers“, what was the main idea of the founders of USA: „The rights that the Constitution grants to the central government are limited and precisely defined, while the rights of the sovereign states are big and unlimited.“ This clear position was then transferred to Amendment 10 to the U.S. Constitution, which reads: „The rights not granted by this Constitution to the United Stated nor denied to the states are left for each individual state or nation“. This Amendment was for sure a basis for Article III.3.(а) of the Constitution of BiH reading: „All governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities“. That is why with rightfully claim that BiH as a composite federal-confederal state cannot have any rights, powers and authorities beyond those expressly assigned to it in the Constitution. The Constitution is a basis for each competence of the state and therefore it also applies to Bosnia and Herzegovina.
That does not change either the provision on continuity of the „Republic of Bosnia and Herzegovina“, but the origins of that state creation should be explained. The only thing true is that the „Republic of Bosnia and Herzegovina“ did never exist at all in accordance with the international law. The international recognition from April 1992 could only note the existence of that „state“ on paper. From the proclamation of independence on April 6, 1992 to December 14, 1995 the Republic of Bosnia and Herzegovina did not have an effective power over the whole territory of the pre-war Socialist Republic of Bosnia and Herzegovina, nor did it have its population, which pursuant to the international law are the elements of existence and sovereignty of every state. This is because the Croats on November 18, 1991 formed the Croatian Community of Herzeg-Bosnia, and then the Serbs on January 9, 1992 took the Decision on forming the Republika Srpska, creating in this manner separate and independent state communities. That was a reaction to the Declaration of the Muslim Party of Democratic Action (SDA) from February 1991, by which the Muslims-Bosniaks set their goals in the crisis of destruction and disintegration of Yugoslavia. The way Yugoslavia was disintegrating, BiH was disintegrating too – by ethnic seams. Republikа Srpskа, with its institutions of legislative, executive, judicial and military authority, as well as the Croatian Republic of Herzeg-Bosnia, governed their territories effectively. In addition to its factual non-existence, as of March 1994 the „Republic of Bosnia and Herzegovina“ did not exist even formally. What existed was the Federation of BiH, Republikа Srpskа, and what was in Dayton presented as the „Republic of BiH“, were only Bosniaks-Muslims, impersonated by Alija Izetbegovic, Hаris Silаjdzic and Muhаmed Sacirbej, who were just officials of a non-existing state. Of course, their presence in Dayton and signing of the Agreement with Annexes was a part of the scenario for ending the war.
That is why the provision of Article I.1. of the Constitution of BiH, indicating the continuation of the „Republic of Bosnia and Herzegovina“, very clearly and precisely determined in three segments that it referred exclusively to its international legal status, outward. The Constitution establishes that the Republic of Bosnia and Herzegovina, the official name of which shall henceforth be „Bosniа and Herzegovina“, shall continue its legal existence: 1) under international law as a state, 2) with its present internationally recognized borders, 3) and shall remain as a Member State of the United Nations, and may as Bosnia and Herzegovina maintain or apply for membership in organizations within the United Nations system and other international organizations. But, all that with the internal structure changed as foreseen in the Constitution of BiH.
The Republic of Bosnia and Herzegovina as a signatory (giving the statement on acceptance) to Annex IV terminated even its formal existence on December 14, 1995 by Article XII.1. of the Constitution of BiH reading: „This Constitution shall enter into force upon signature of the General Framework Agreement as a constitutional act amending and superseding the Constitution of the Republic of Bosnia and Herzegovina.“ This was practically a final act of termination of a state illegally proclaimed as independent, a state which broke up even before getting the international recognition. The Dayton-Pаris Agreement just additionally noted its non-existence at the internal level. In fact, the formal abolition of the „Republic of Bosnia and Herzegovina“ started even before by the Washington Agreement on March 18, 1994 and the establishment of the Constituent Assembly of the Federation of BiH, which on March 30, 1994 adopted the Constitution of the Federation of BiH. That constituent assembly consisted of the delegates elected at the first multi-party elections in 1990 for the Parliament of BiH, but without 84 Serb MPs who even in 1992 because of constant outvoting left the Assembly of BiH and formed the Assembly of the Serb People in BiH. Pursuant to Article 1 of the Constitution of the Federation of BiH: „The Bosniaks and Croats as constituent peoples, together with others and citizens of the Republic of BiH, realizing their sovereign rights, shall reshape the internal setup of the territories with the majority Bosniak and Croat population in the Republic of to the Federation of BiH consisting of the federal units with equal rights and responsibilities.“ The fact that the „Republic of BiH“ did not aspire to have any jurisdiction over Republika Srpska was also confirmed by paragraph 2 of Article 1 of the Constitution of FBiH, which states that „the decisions on the constitutional status of the territories of the Republic of BiH with the majority Serb population shall be taken during the negotiations on peace and at the International Conference on the Former Yugoslavia“. Even then, the „Republic of Bosnia and Herzegovina“, i.e. Federation of BiH, recognized for Republika Srpska the status of a separate state community to be decided upon in accordance with the international law. And that is exactly what happened, so Republika Srpska appeared as a subject of the Geneva and New York principles, and later also as a subject-signatory of all annexes of the international agreements – Dayton Agreement. By signing all annexes to the Dayton Agreement Republika Srpska participated in abolition of the illegitimate and illegal „Republic of Bosnia and Herzegovina“, confirming its international legal status, from then on as an Entity – constituent part of the state of Bosnia and Herzegovina.
The Constitution of BiH has two annexes. The first one is „Additional Human Rights Agreements to be Applied in Bosnia and Herzegovina“, which explicitly states 15 international conventions. The other one is „Transitional Arrangements“, which in Article 2 titled „Continuation of Laws“, regulates that „all laws, regulations, and judicial rules of procedure in effect within the TERRITORY OF BOSNIA AND HERZEGOVINA when the Constitution enters into force shall remain in effect to the extent not inconsistent with the Constitution, until otherwise determined by a competent governmental body of Bosnia and Herzegovina. Namely, those are not the provisions of the „Republic of Bosnia and Herzegovina“, but the provisions in the territory of Bosnia and Herzegovina. At that time, the valid documents were the Constitution and the provisions of Republika Srpska in its territory, as well as the provisions of the Croat Republic of Herzeg-Bosnia in its territory. What was left out of the territory of Republika Srpska and Herzeg-Bosnia has the provisions adopted by the „Republic of Bosnia and Herzegovina“.
Thus, the international agreement did not in a single provision, either directly or indirectly, establish the internal continuation of the „Republic of Bosnia and Herzegovina“. It does not exist in either political or constitutional or any legal sense. Hence the formulation on the laws and provisions in effect in the TERRITORY OF BOSNIA AND HERZEGOVINA, and it does not say the laws and provisions of the „Republic of Bosnia and Herzegovina“. Any reference to internal continuation of the Republic of BiH does not have a legal basis in the international agreement which created and determined the present Bosnia and Herzegovina. From the moment of signing Annex IV of the Dayton Agreement, which is the Constitution of BiH and which determined that the internal structure was the only thing valid based on that international legal document, it was only confirmed that the „Republic of Bosnia and Herzegovina“ had never existed at the internal level.
The Dayton-Pаris Agreements (intentionally in plural, since in addition to the basic agreement there are 11 annexes more), defined Bosnia and Herzegovina as the agreed state with two entities, giving only to the entities the right to be parties in the future changes of what was signed on December 14, 1995. That is confirmed by the Constitution provisions: Article I.3. – Bosnia and Herzegovina shall consist of the two Entities; Article III.4. – the Presidency may decide to facilitate inter-Entity coordination on matters not within the responsibilities of Bosnia and Herzegovina as provided in this Constitution, unless an Entity objects in any particular case; Article III.5.(а) – additional responsibilities of Bosnia and Herzegovina for such matters as agreed by the Entities; Article III.5.(b) – negotiations between the Entities with a view to including other issues in the responsibilities of the institutions of Bosnia and Herzegovina; Article IV.4.(e) – responsibilities of the Parliamentary Assembly that may be assigned to it by mutual agreement of the Entities; Article V.3.(i) – performing such other functions of the Presidency of BiH as may be agreed by the Entities.
This is also confirmed by the „Commentary on the Constitution of BiH“, by Steiner-Ademovic, (published by the Konrad Adenauer Foundation, Sаrаjevo 2010, page 547 reads:
It is true that the representatives of the „Republic of Bosnia and Herzegovina were the signatories, but the signature of the Republic of Bosnia and Herzegovina more related to the special circumstances prevailing in the field during the negotiations that led to the signing of the General Framework Agreement for Peace in BiH, than to the clear intention to ensure that Bosnia and Herzegovina must be a party in the procedures of future signing of additional responsibilities for BiH. Thus, the current practice of the parties in the agreement on the transfer of competences (BiH and the Entities), gives no right to BiH to be the party which the validity of the agreement of the Entities depends on. Thus, for example, the Agreement on the Transfer of Competences in the Field of Defense, which says that the Entities have agreed to transfer the competences, and which has been signed by the Prime Ministers of the Entities and Chairman of the Council of Ministers, does not introduce BiH as a party. The most that can be accepted would be that it has been done in the capacity of a witness.
Article I.3. of the Constitution of BiH determines that BiH shall consist of the two Entities, and that they shall have all governmental functions and powers not expressly assigned in the Constitution of BiH to the institutions of BiH – Article III.3.(а) of the Constitution of BiH. Not a single Article of the Constitution of BiH does give Bosnia and Herzegovina a right to any property. The Constitution of Bosnia and Herzegovina, or any other annex of the Dayton Agreement, does not contain a legal basis that would establish the right of Bosnia and Herzegovina to have property, therefore by applying the constitutional provision IIII.3.(а) of the Constitution of BiH the right to property belongs exclusively to the Entities. Likewise, the Constitution of Bosnia and Herzegovina does not contain the basis for passing the Law on Division of State Property at the level of Bosnia and Herzegovina, since the exclusive responsibility for passing such laws is at the level of the Entities. Concretely, Article 68 of the Constitution of Republika Srpska prescribes that „Republikа Srpska shall regulate and ensure, inter alia, property and contractual relations and protection of all forms of property“. At the same time, Article 3 of the Constitution of Bosnia and Herzegovina precisely enumerates the issues within the competence of the institutions of Bosnia and Herzegovina. According to that provision, property-legal relations do not lie within the competence of the institutions of Bosnia and Herzegovina.
Just the opposite, the opponents of the Dayton BiH insist that all the property that previously belonged to the Socialist Republic of Bosnia and Herzegovina, which was a part of SFR Yugoslavia, should now belong to Bosnia and Herzegovina and has to be registered as its ownership. That has nothing to do with either law or reality. Bosnia and Herzegovina does not exist beyond the Entities. In the case of property in Bosnia and Herzegovina, the General Framework Agreement for Peace in BiH confirmed and accepted the Agreed Basic Principles from September 8, 1995 in Geneva and in New York on September 26, 1995, according to which territorial demarcation between the two Entities was determined with the ratio of 51% for Federation and 49% for Republika Srpska. That was also confirmed by the Preamble of the Constitution of BiH as Annex IV referring to the Basic Principles that were agreed upon in Geneva and New York. Namely, Bosnia and Herzegovina does not exist beyond the Entities. This was to a certain degree modified in the case of the Arbitration Award for the territory of the pre-war municipality of Brcko, which was proclaimed a District of BiH, but as a condominium that at the same time belongs to both Entities (item 11 of the Final Award). That means that the territory of the Entity was not reduced on this basis either, nor was reduced its property. Any registration of the land or facilities as real estate to the ownership of Bosnia and Herzegovina would directly violate the international agreement.
All the previously stated facts result in a logical conclusion, taking into account the constitutional structure of Bosnia and Herzegovina as a composite state, that the property under the temporary ban of disposal is owned by the Entities, and only a part of that property may be transferred for use to Bosnia and Herzegovina to the extent necessary for functioning of the institutions of Bosnia and Herzegovina. When the need for use of that property by the institutions of Bosnia and Herzegovina ends, that immovable property shall be returned to the possession of the Entities as owners depending on the territory where they are situated. Any other legal solution is in contravention with the principles established by the Dayton Peace Agreement and Constitution of Bosnia and Herzegovina, based on which Republika Srpska as an Entity got 49% of the state territory of Bosnia and Herzegovina and Federation of Bosnia and Herzegovina got 51%. That means that any transfer of ownership over any immovable property situated in the territory of Republika Srpska would mean a direct reduction of the territory of Republika Srpska of 49% as guaranteed by the Dayton Agreement, but at the same time that would also mean violation of the constitutional right that everything that is not explicitly by Annex 4 assigned to the institutions of BiH should belong to the Entities.
Even Sulejman Tihic, who submitted the request before the Constitutional Court of BiH denying the Law on Status of State Property situated in the territory of Republika Srpska and which is under the ban of disposal, admitted that there was no alleged continuation of RBiH with regard to the property in the territory of Republika Srpska. In that request he referred to the Law on Conversion of the Social Property from 1994, according to which it was prescribed that: „The Republic of Bosnia and Herzegovina shall become a holder of the right to property that is socially owned and that the Federation of BiH does not have the right of disposal upon.“ Republikа Srpskа had its property then and has it now and in line with the Constitution of Republika Srpska shall regulate this field in the laws.
Let us go back to the American roots of the Constitution of BiH in order to see how that issue is regulated in the U.S. Constitution. The solution in the U.S Constitution contained in Article 1, paragraph 8, prescribes that the Congress has the power „to exercise exclusive legislative authority in every way over the district which may become the seat of the Government of the United States granted by the individual states and by the acceptance of the Congress (note: the District of Washington) and to perform the same kind of power over the spots purchased with the consent of the Legislature of the State in which these spots are located, in order to raise forts, warehouses, arsenals, shipyards and other necessary buildings and to adopt all laws which shall be necessary and appropriate to implement the foregoing powers and all other powers granted by this Constitution to the United States Government or any of its departments or officials.”
Hence, ways in which central government may acquire the property are clearly presented – through transfer by the states-members or by the purchase in the territory of the states-members with their consent. In the territory of the states-members everything is their property, except of the property which was granted to the United States or which was purchased by the United States, with their consent. Transferred to BiH, this means that entities can grant the use of property located in their territory for the needs of the BiH institutions. Certainly, the BiH institutions, for their own purposes, may purchase property with the consent of the entity.
It is indisputable that Bosnia and Herzegovina on the basis of the International Agreement regarding the issue of succession, which was signed on 29 June 2001 between Bosnia and Herzegovina and the newly created states of former SFR of Yugoslavia, is defined as the subject of the property, located in the territory of Bosnia and Herzegovina and abroad, on which institutions of the former Yugoslavia were registered. But it must be referred to the Article 1 of the Constitution of Bosnia and Herzegovina straightaway. Bosnia and Herzegovina exists only as a state with its internal structure modified by provisions of the Constitution. As the BiH Constitution does not provide an explicit right to the property to Bosnia and Herzegovina because while listing its powers under Article III.1. (from a to j), does not mention the right to the property, then it is clear that Bosnia and Herzegovina by the current BiH constitution, has no property.
Therefore we expect that the Constitutional Court of BiH rejects the request of Mr. Sulejman Tihić as groundless. Such a decision may not be prevented either by external instigators to misdeeds of violation of the international law, because judges have a responsibility to prevent instrumentalisation of the Court for the sake of changing the Constitution of BiH, contrary to the Vienna Convention on the Law of International Treaties. After all, the preamble to the Constitution of BiH stresses them as well that “respect for human dignity, freedom and equality, commitment to peace, justice, tolerance and reconciliation, the belief that democratic state institutions and fair procedures lead to the peaceful relations in a pluralistic society in the best way, in order to improve general welfare, Bosniaks, Serbs and Croats as constituent peoples decide that the Constitution of BiH reads”. The U.S. Constitution very similarly reads: “We, the peoples of the United States, in order to create a more faultless union, to perch justice, to ensure the internal peace, to provide for the common defense, to introduce the general welfare and to secure the benefits of freedom for ourselves and our descendants, we issue and adopt the Constitution for the United States of America.”
We expect that your Excellencies shall convey to your governments the views contained in this letter, according to which the Republika Srpska is committed to respect the rule of law, which only can ensure the survival and stability of Bosnia and Herzegovina as a state established in compliance with the international law.
President of the Republika Srpska