Подјела надлежности у Босни и Херцеговини између слова и духа Дејтонског мировног споразума - јавноправни и приватноправни аспект-
Division of Jurisdiction in Bosnia and Herzegovina Between the Letter and Spirit of Dayton Peace Agreement - public and private law aspects-

Author(s): Matej Savić, Zoran Vasiljević
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Public Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Dayton Peace Agreement; Jurisdiction; B&H;Entity; The Constitution; Public law; Business law; Legal order;
Summary/Abstract: The topic of this paper, concentrated in space and time on the current situation in Bosnia and Herzegovina, oscillates between two basic theoretical and legal dimensions: normative-of what should be, and factual-of what it is (what it wants to be). The authors choose this topic with intention to offer a scientific view on the legal issues which still remain open. In the past thirty years, we have witnessed many conflicting opinions regarding the understanding and interpretation of B&H's legal nature, status, division of jurisdiction, state organization, and the position of entities, within it. In addition to this, we must remember that the creation of this internationally recognized state took place in turbulent social, political and, indeed, legal circumstances, that resulted in the conclusion of the General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Peace Agreement). First, in this paper authors analyze the normative and institutional framework (order) established by the Dayton Peace Agreement, i.e., its Annex 4 (Constitution of B&H). Then, following the (re)evolution of the internal organization and division of jurisdiction until today, the authors deal with the constant problem of particular (voluntarist) deviation form the Dayton framework (order). Namely, the provisions of the Constitution of Bosnia and Herzegovina define a rather narrow scope of exclusive institutional competencies at the state level of Bosnia and Herzegovina, while specifying, on the other hand the original competencies of the entities in all other jurisdictional areas. Besides this, special attention was paid to continuous problems arising from the very interpretation of the Dayton Peace Agreement (provisions) and its annexes, primarily in the context of expanding the jurisdiction of B&H institutions by means of imposing laws by the High Representative and by decisions of the Constitutional Court of B&H. The authors raise the question of the constitutionality of this practice, especially taking into the account the fact that B&H was created by the association of entities and that all competences, even exclusive ones, originally belonged to the entities. This paper emphasizes the public law and private law aspects of the division of jurisdiction between B&H and the entities, as well as the specifics that have appeared since 1995 until today.

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