Cero: Dodik has no constitutional right to invoke vital entity interest in the Pelješac Bridge case

SARAJEVO, (Patria) - The announcement by Milorad Dodik that he will invoke the vital entity interest is disputed, after the other two members of the BiH Presidency, Željko Komšić and Šefik Džaferović, announced that they will seek a halt to the construction of the Pelješac Bridge, as well as the protection of the territorial integrity of BiH by exercising the right to territorial waters in the Adriatic through access to the open sea.

This was assessed in a comment for the Patria News Agency by legal expert Muharem Cero.

The BiH Presidency at its session on Tuesday, with two votes in favor and one against, adopted a conclusion calling on Croatia to stop the construction of the Pelješac Bridge and to resolve all open issues through dialogue, because BiH has the right to access the open sea. If this does not happen, BiH will initiate a conciliation procedure, and if necessary, will initiate proceedings before the International Tribunal for the Law of the Sea. Members of the Presidency Željko Komšić and Šefik Džaferović voted for such a conclusion, while the Chairman of the Presidency Milorad Dodik was against it. Dodik thereby invoked the issue of vital national interest. This means that Dodik will ask the National Assembly of the Republika Srpska (NSRS) to support his position with a two-thirds majority, which would automatically render this Presidency decision invalid.

Cero, however, assesses that Dodik in this specific case does not have the constitutional right to invoke the vital entity interest.

„Member of the BiH Presidency Milorad Dodik invokes Article 5 of the BiH Constitution, which provides for the possibility of initiating the so-called vital entity interest in cases determined by Article 5 of the BiH Constitution itself. However, given that before the Constitutional Court of BiH in the proceedings challenging the BiH Border Service - case U9/00 - the Court determined that there are competencies of the BiH Presidency beyond Article 5 of the BiH Constitution, i.e., those competencies defined by Article 3.5, which is the protection of territorial integrity, state sovereignty and political independence of BiH, the same practice should be applied in the case Dodik is talking about, i.e., in the case of the Pelješac Bridge,“ Cero believes.

 „The U9/00 ruling represents a precedent and this dilemma is considered constitutionally resolved, i.e., a res judicata.“

Cero emphasizes that when it comes to the application of Article 3.5 of the BiH Constitution - i.e., the protection of territorial integrity, state sovereignty and political independence of BiH - these provisions are not subject to the obligation of consensual decision-making. In this context, Cero assesses, it would not be constitutional for the NSRS to even question the Presidency's decision in the case of the Pelješac Bridge.

If the NSRS decides to act upon Dodik's proposal, such a decision, Cero believes, would be legally null and void and would produce no legal effects. Cero expects that the NSRS deputies, as he said, will be up to the level of their constitutional and political responsibility and remove Milorad Dodik's proposal from the agenda.

This legal expert also expects a reaction from the High Representative in BiH, Valentin Inzko, as the „supreme and final interpreter of the BiH Constitution.“ He recalled that in the U9/00 case, opinions were also given by the OHR and the Venice Commission, and that he now expects the international community to stand up for the protection of territorial integrity, state sovereignty and political independence of Bosnia and Herzegovina.