Frontex and Bosnia and Herzegovina's Borders: Have the Unconstitutional Powers for the RS Ministry of Interior Been Removed from the Agreement?

Written by: Amina Čorbo-Zećo

The Council of Ministers of Bosnia and Herzegovina considered at an emergency telephone session the Report on negotiations for concluding the Agreement between Bosnia and Herzegovina and the European Union on operational activities carried out by the European Border and Coast Guard Agency (Frontex) in Bosnia and Herzegovina
conducted in the period from 12 March to 18 December 2024, and the text of the Agreement between Bosnia and Herzegovina and the European Union on operational activities carried out by the European Border and Coast Guard Agency in Bosnia and Herzegovina.

The Ministry of Security is obliged to submit the Report on negotiations to the Presidency of Bosnia and Herzegovina for further legally prescribed procedure, with the proposal that the Chairwoman of the Council of Ministers of Bosnia and Herzegovina, Borjana Krišto, be designated as the signatory of the Agreement.

However, it remains unclear whether the dilemmas regarding constitutional competences have disappeared from this agreement.

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Trojka pristala na Dodikov uslov: Zamka za Predsjedništvo, jer Sporazum s FRONTEX-om sadrži antiustavna ovlaštenja za MUP Rs

Written by: A. Čorbo-Zećo @aminacorbozeco The insistence of the European Union on signing the agreement between Bosnia and Herzegovina and the European Border and Coast Guard Agency (FRONTEX) will not stop. This is a condition that BiH must fulfill on its European integration

and goods through the space of Southeast Europe. That is how it should be, but the Draft Agreement hid a major trap for the Presidency of BiH, relating to the fact that the Council of Ministers of BiH gave too large a role to entity police forces in the Draft.

“It will be necessary for the EU to understand that the agreement must be refined with elements that respect specificities. Here, I primarily mean the structure of deploying Frontex forces. To achieve an internal political compromise in BiH, it is important for us that, in addition to the Border Police, members of entity and cantonal Ministries of Interior are also included alongside Frontex members,” said former BiH Security Minister Nenad Nešić, who is currently in custody in Vojkovići.

And such a Draft was adopted, meaning the 'troika' supported such demands, and then the Draft went to the Presidency of BiH.

The Presidency of BiH gave the green light to open the agreement, but with a Conclusion adopted by the Presidency of BiH, precisely because of the mention of entity police forces in the Draft agreement.

Thus, in addition to the permission to initiate negotiations for concluding the Agreement between BiH and the European Union on operational activities carried out by the European Border and Coast Guard Agency in BiH, the Presidency of BiH demands strict adherence to the Constitution of Bosnia and Herzegovina.

Allegedly, this has been included in the agreement, and Brussels has been informed about the efforts of the entities, as well as the cantons where the HDZ holds power. The final dilemma will only be resolved when the document arrives at the Presidency of BiH, where we will see whether everything is specified in accordance with the BiH Constitution, or whether a broader form has been left, allowing each party to interpret the constitution in its own way.

We remind you that the laws state that the Border Police of BiH is exclusively competent for the control of state borders, and there is no option to assign competence to entity and cantonal Ministries of Interior for tasks that are legally prescribed and assigned to the Border Police of BiH.

Article 4 of the Law on Border Control states that the performance of border control is under the jurisdiction of the BiH Border Police and that border control tasks are carried out by police officers of the BiH Border Police.

“In performing border control tasks, the BiH Border Police cooperates with other state bodies in BiH,” states Article 4 of the Law.

Contrary to the Law on Border Control, the Draft agreement adopted by the Council of Ministers, according to wishes from the RS, and no less from the HDZ, states: “The operational plan and any amendments are subject to the consent of the Agency, Bosnia and Herzegovina, and member states bordering Bosnia and Herzegovina. The obligation to obtain consent is defined in accordance with the constitutional competences of the entities, cantons, and Brčko District of Bosnia and Herzegovina in whose territory the activities of the Operational Plan are carried out.”

Thus, for the BiH Border Police to implement the Operational Plan on the border with Serbia, the RS Ministry of Interior, according to the earlier Draft agreement, must approve that plan, and for the BiH Border Police to implement the OP on the border with Croatia, the cantonal Ministries of Interior give their consent. This constitutes a derogation of state powers, i.e., it is unconstitutional.

Therefore, the Presidency of BiH ultimately made it known through its Conclusion that no agreement that contradicts the Constitution and laws of BiH will pass, and if the proposed Draft becomes the final agreement between BiH and FRONTEX, it is expected that the Presidency of BiH will not allow the ratification of the reached agreement.