Bosnia and Herzegovina

By Gianluca Rossoni

Bosnia and Herzegovina (BiH) is a country with a complex administrative structure. The Constitution of BiH divides rights and powers between the institutions of BiH and Entities (Federation of Bosnia Herzegovina - FBiH, Republika Srpska - RS and Brčko Distrikt - BD), and as result significant powers developed in the Entities. According to the Constitution, the competencies of the state level institutions (as defined in Article III of the BiH Constitution) include:

  • Foreign Policy

  • Foreign Trade Policy;

  • Customs Policy;

  • Monetary Policy;

  • Finances of Institutions and the International Obligations of BiH;

  • Immigration, Refugee and Asylum Policy Regulation;

  • International and Inter-Entity Criminal Law Enforcement, including relations with Interpol;

  • Establishment and Operation of Common and International Communications Facilities;

  • Regulation of inter-Entity Transportation; and

  • Air Traffic Control. 

All functions and powers not specified explicitly in the Constitution are recognised as the responsibilities of the Entities. At state level, the creation and implementation of tourism policy is not viewed as amongst the policies to be dealt with state level institutions and this sector falls within the competencies of two Entities and Brčko Distrikt. However, “the State can assume other responsibility for such matters as agreed by the Entities” (1), for the matters provided for in Annexes 5 to 8 (2) of the General Framework Agreement for Peace in BiH and for matters necessary to preserve the sovereignty, territorial integrity, political independence and international personality of BiH.

Article 1.4. of the Constitution ensures as a basic rights of all BiH citizens, the freedom of movement of goods throughout the country and explicitly states that neither BiH authorities or the Entities shall not “impede full freedom of movement of persons, goods, services, and capital throughout BiH”, as necessary prerequisite of a functioning of common market.

This Constitutional provision has been used to develop a range of new institutions and legal frameworks over the last decade within BiH to ensure that this basic right is respected. This has allowed for a gradual adjustment of competencies of the Entities to acknowledge a range of shared competencies between state level institutions and Entity institutions, especially these related to international agricultural trade, the enforcement of key single economic market and border control measures in the field of veterinary and animal identification, plant health control, as well as Entity coordination functions.

Also, BiH Constitutional Court decision (3) concluded that there are areas of concurrent or shared jurisdiction between Entity and State level institution.

In that sense, the BiH Constitutional Court found that the allocation of powers is regulated on principle by Article III.1 and 3 of the BiH Constitution in so far as responsibilities of the institutions of BiH are enumerated whereas, on principle, all other functions and powers not specified in the Constitution of BiH are the responsibility of the Entities. However, the BiH Constitution creates powers not only within this general system of allocation of powers in Article III.

According to line 4 of the Preamble of the Constitution of BiH, this Constitution was adopted in order to “promote the general welfare and economic growth through the protection of private property and the promotion of a market economy”.

Furthermore, Article 1.4 of the Constitution provides for freedom of movement throughout BiH and explicitly states that neither BiH authorities nor the Entities shall “impede full freedom of movement of persons, goods, services and capital throughout BiH”, as a necessary prerequisite for the existence of a common market. 

Furthermore, according to the Constitution of FBiH, competency over tourism is shared between the FBiH and Cantons (4). This competency, as appropriate, may be exercised jointly with FBiH and Cantons, or separately, or by the Cantons as coordinated by the FBiH Government. Both, Government of FBiH and Cantons have the right to develop policies and enact laws concerning this responsibility. In general, the Cantons shall have all responsibility not expressly granted to the Federation Government. They shall have, in particular, inter alia, responsibility for establishing and implementing Cantonal tourism policy; developing tourism resources; regulating local land use, including by zoning; regulating and promoting local business and charitable activities, etc. A Canton may confer or delegate certain responsibilities to a Municipality or City in its territory, or to the Federation level. 

According to the article 68 of the Constitution of Republika Srpska, the Entity is responsible to, inter alia, regulate and ensure the main objectives and directions of economic and social development, development of agriculture and the village, the use of space, politics and measures for direction of the development and commodities; cultural and cultural resources protection and  environmental protection.

Having analysed BiH and both Entity constitutions, it is clear that the primary responsibility for sector of tourism industry legislation (likewise use of natural resources, environmental protection and land use policy) is allocated to the Entities and BD (5). Therefore, legislation related to tourism is adopted at Entity and Cantonal level. There is no tourism legislation at state level. There is no a promotional tourism agency at state level. The powers of state level institutions are subsequently defined within the BiH Law on Ministries and Other Bodies of Administration (6) (and other primary sectorial laws). This law clearly regulates that BiH Ministry of Foreign Trade and Economic Relations (MoFTER) is legally responsible for the tourism sector for legislation, and particularly with regard to coordination and harmonization with EU requirements. The main objective of this power should be also to provide to BiH a tourism industry framework policy compatible with the best standards and practices in EU countries. The legal issue is how to balance competencies between MoFTER and relevant Entity Ministries. Currently, this is a challenge for BiH and the most delicate and complex aspect of governance within the country on tourism policy.

1) Article III.3 of the Constitution (the current Constitution is the Annex 4 of the General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement, signed on 14 December 1995).

2) Arbitration, Human Rights, Refugees and Displaced Persons and Commission to Preserve National Monument.

3) Case 5/98, 2nd partial decision. Constitutional Court of BiH, 2000.

4) These are the administrative regions which form the FBiH.

5) The framework laws are respectively: FBiH Law on Tourism Business, 32/2009 – RS Law on Tourism, 70/2011 and BD Law on Tourism Activity, 31/2005.

6) BiH Law, 5/2003.