The United States’ position on state property has been clear and consistent for years, and it has not changed. State property belongs to the state, and a state-level law is required to regulate it. This is not a matter of opinion; it is a constitutional and legal fact.
Under international law and traditional state practice, only states possess the necessary capacity to succeed to the rights and obligations of predecessor states. The state in this instance is Bosnia and Herzegovina. This matter was settled by the Dayton Constitution, which is clear and unambiguous: “The Republic of Bosnia and Herzegovina, the official name of which shall henceforth be ‘Bosnia and Herzegovina,’ shall continue its legal existence under international law as a state.” Under international law and the constitutional principle of continuity, Bosnia and Herzegovina is the holder of all state property. These constitutional arrangements were accepted by both entities when they accepted the Dayton Peace Agreement, including Annex 4, the Constitution of Bosnia and Herzegovina. The entities’ constitutional competence is subordinated to their obligation to comply with the Bosnia and Herzegovina’s Constitution.
The constitutional and legal arrangements regarding state property were further codified under Bosnian and Herzegovinian law by the 2001 Agreement on Succession Issues of the Former Socialist Federal Republic of Yugoslavia (SFRY), ratified by the BiH Parliamentary Assembly. This agreement, which entered into force in 2004, specified that BiH and four other countries were the successor states to which the “moveable and immovable State Property” of the SRFY would pass. This is not a question of competencies but rather of title to assets, as it was in Croatia, Montenegro, Serbia, and Slovenia.
This does not mean that every piece of property that belonged to the SFRY should be controlled by the state of BiH in perpetuity, however. It is vitally important to regulate the management of, and in some cases the title to, these properties among the different levels of authority. As the BiH Constitutional Court has made clear, the BiH Parliamentary Assembly has the exclusive competency to do this. The proper resolution of this issue would bring economic benefits to all of Bosnia and Herzegovina because businesses and other development projects cannot succeed if they lack clear, legal title to property or clear regulations regarding its use. At the same time, the illegal transfer of state property by any entity exposes the recipient to domestic and potentially international legal jeopardy. The spurious legal claims of the Republika Srpska authorities and the refusal of BiH parliamentarians from the Republika Srpska to engage constructively with their state-level colleagues needlessly prolong resolution of the issue. It also makes it impossible to fully implement the OHR’s 5+2 agenda, which is a precondition for OHR’s closure.
The United States supports efforts to adopt a state level law to regulate state property that would finally resolve this matter and encourages all parties to engage constructively to that end.