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Professional Article UDC: 341.382(497.6)
DIFFERENCES RELATING TO
INTERPRETATION OF ANNEX 10 OF
THE DAYTON PEACE AGREEMENT
BETWEEN THE OFFICE OF THE HIGH
REPRESENTATIVE FOR BOSNIA AND
HERZEGOVINA AND REPUBLIKA SRPSKA
Marko Kranjec,
Bachelor of Laws (Ljubljana), Master of Laws (Ljubljana), LL.M. (Leiden),
Senior Associate (Attorney-at-Law) at Law Firm Kavčič, Bračun and
Partners (Ljubljana)*
1. BACKGROUND
War in Bosnia and Herzegovina ended in 1995 with the signing of the General
Framework Agreement for Peace (“GFAP”) in Bosnia and Herzegovina, usu-
ally referred to as the Dayton Peace Agreement, including 11 Annexes, on 14
December 1995 in Paris. The Office of the High Representative (“OHR”), an
ad hoc international institution responsible for overseeing implementation of
civilian aspects of the Dayton Peace Agreement, was created under Annex 10.1
According to the latter,
“the Parties2 request the designation of a High Representative, to be appoin-
ted consistent with relevant United Nations Security Council resolutions, to
facilitate the Parties’ own efforts and to mobilize and, as appropriate, coordi-
* Views and opinions expressed in this article are entirely his own and do not necessarily
represent the views and opinions of the author’s employer.
1 Annex 10 to The General Framework Agreement for Peace in Bosnia and Herze-
govina: Agreement on Civilian Implementation, 14 December 1995, available at: https://
www.osce.org/bih/126173.
2 The Parties to Annex 10 are not the same as the Parties to the Dayton Peace Agree-
ment since the Parties to Annex 10 include not only the Parties to the Dayton Peace
Agreement (the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the
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Marko Kranjec
nate the activities of the organizations and agencies involved in the civilian
aspects of the peace settlement by carrying, as entrusted by a UN Security
Council resolution, the tasks”3
set out in Annex 10. Prior to the 1995 Paris Peace Conference, however, the
Peace Implementation Conference was held in London, and adopted a deci-
sion to establish the Peace Implementation Council (“PIC”) and its Steering
Board.4 Two years later, at the Peace Implementation Conference in Bonn, the
PIC adopted certain conclusions relating to, inter alia, the High Representa-
tive’s mandate, which might be seen as vesting further powers in the High
Representative (“Bonn Powers”).
The incumbent High Representative for Bosnia and Herzegovina is Mr. Chris-
tian Schmidt who was designated as the High Representative by the PIC Steer-
ing Board on 27 May 2021, and assumed position as of 1 August 2021. How-
ever, the validity of his designation has been contested by Republika Srpska
on grounds that the UN Security Council did not endorse his designation as
the High Representative. Moreover, the High Representative has taken certain
measures that have likewise been contested by Republika Srpska on grounds
that such measures exceed the High Representative’s powers. Thus, two impor-
tant legal issues have arisen with respect to the interpretation of the Dayton
Peace Agreement relating to the question as to whether the UN Security Coun-
cil’s endorsement of the High Representative is mandatory, and to the question
of the scope of the High Representative’s mandate. Given the escalating ten-
sions between the involved actors, there is also a question as to who can pro-
vide an authoritative interpretation of the Dayton Peace Agreement, especially
Annex 10, and propose a resolution to this crisis. This paper aims to succinctly
highlight the key legal issues and the main legal arguments of both sides.
2. APPOINTMENT OF THE HIGH REPRESENTATIVE
The Dayton Peace Agreement, specifically Annex 10, lacks explicit provisions
detailing the procedure for the appointment of the High Representative. Arti-
Federal Republic of Yugoslavia), but also the Federation of Bosnia and Herzegovina, and
the Republika Srpska.
3 Annex 10 to The General Framework Agreement for Peace in Bosnia and Herze-
govina: Agreement on Civilian Implementation, 14 December 1995, Article I.
4 The PIC comprises 55 States and agencies supporting the peace process in Bosnia
and Herzegovina. Since the London Conference, the PIC has come together at the min-
isterial level another five times to review progress and define the goals of peace imple-
mentation: in June 1996 in Florence, in December 1996 in London, in December 1997 in
Bonn, in December 1998 in Madrid, and in May 2000 in Brussels.
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Differences Relating to Interpretation of Annex 10 of the Dayton Peace Agreement...
cle I of Annex 10 (in relevant part) states that the Parties5 request the designa-
tion of the High Representative and “to be appointed consistent with relevant
United Nations Security Council resolutions”. Since no UN Security Council
resolution prescribes the exact appointment procedure, the crux of the issue is,
therefore, the interpretation of the relevant part of Article I of Annex 10. The
critical question here is whether the High Representative has to be endorsed
by the UN Security Council or not.
Until May 2021, six of the seven High Representatives were designated by the
PIC Steering Board and endorsed by the UN Security Council. In its Resolu-
tions No. 10316, 11127, 12568, 13969, 1764,10 and 186911, the Security Council
explicitly agreed to the designation of Messrs. Carl Bildt, Carlos Westendorp,
Wolfgang Petritsch, Paddy Ashdown, Miroslav Lajčak, and Valentin Inzko. The
only High Representative not specifically mentioned by an accompanying Se-
curity Council resolution was Mr. Christian Schwarz-Schilling who acted as
the High Representative between January 2006 and July 2007. However, Mr.
Schwarz-Schilling assumed his position subsequent to the letter from the Presi-
dent of the UN Security Council to the UN Secretary-General of 30 January
2006, in which it was stated that the UN Secretary-General’s letter of 20 Janu-
ary 2006 concerning the decision of the Steering Board of the PIC to choose
Mr Christian Schwarz-Schilling as the next High Representative for Bosnia and
Herzegovina as of 31 January 2006 has been brought to the attention of the
members of the UN Security Council, and they welcomed the decision of the
PIC.12 Therefore, it might seem that Mr. Schwarz-Schilling’s appointment also
received the UN Security Council’s endorsement, albeit in a less formal manner.
5 As mentioned above, these represent: the Republic of Bosnia and Herzegovina, the
Republic of Croatia, the Federal Republic of Yugoslavia, the Federation of Bosnia and
Herzegovina, and the Republika Srpska.
6 Resolution 1031 (1995), adopted by the UN Security Council at its 3607th meeting
on 15 December 1995.
7 Resolution 1112 (1997), adopted by the UN Security Council at its 3787th meeting
on 12 June 1997.
8 Resolution 1256 (1999), adopted by the UN Security Council at its 4030th meeting
on 3 August 1999.
9 Resolution 1396 (2002), adopted by the UN Security Council at its 4484th meeting
on 5 March 2002.
10 Resolution 1764 (2007), adopted by the UN Security Council at its 5713th meeting
on 29 June 2007.
11 Resolution 1869 (2009), adopted by the UN Security Council at its 6099th meeting
on 25 March 2009.
12 Letter of 30 January 2006 from the President of the UN Security Council addressed
to the UN Secretary-General (S/2006/61).
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On 27 May 2021, the PIC Steering Board designated Mr. Christian Schmidt as
the High Representative for Bosnia and Herzegovina. Acting upon the request
of the PIC Steering Board to inform accordingly the UN Secretary-General,
Mr. Schmidt’s predecessor sent a letter to the UN Secretary-General on 3 June
2021, informing him of the decision of the PIC Steering Board to formally ap-
point Mr. Schmidt. It was further noted in the letter that Mr. Schmidt would
assume the duties of the High Representative on 1 August 2021, when the res-
ignation of his predecessor had become effective. Unlike the previous proce-
dures, followed in cases of all other appointments, the UN Security Council
issued no resolution or prior letter of endorsement of Mr. Christian Schmidt
as the High Representative for Bosnia and Herzegovina.
This lack of prior endorsement from the UN Security Council has led Repub-
lika Srpska, as one of the Parties to Annex 10, to object to Mr. Schmidt assum-
ing the duties of the High Representative. On the other hand, the OHR, relying
on Article V of Annex 10 (Final Authority to Interpret),13 is of the view that the
expression of support by the UN Security Council is not legally necessary for
the decision of the PIC Steering Board appointing a new High Representative
to take effect, though it must be consistent with its resolutions.14 According to
the OHR,
“[a]ll High Representatives who were welcomed and agreed by the UN Se-
curity Council, with the exception of Mr. Carl Bildt, had already taken up
the position by the time the UN Security Council acted”.15
The OHR therefore argues that
“[t]he absence of an explicit agreement by the UN Security Council did
not affect Mr. Schwarz-Schilling’s exercise of the duties vested upon the
High Representative [and that] [e]xpression of support in resolutions is not
obligatory”.16
Republika Srpska, au contraire, does not accept this line of reasoning and
maintains that the endorsement of the High Representative by the UN Secre-
tary General, as this has been practiced thus far, is necessary as per Article I
13 Article V of Annex 10 stipulates: “The High Representative is the final authority in
theater regarding interpretation of this Agreement on the civilian implementation of the
peace settlement.”
14 The OHR’s view on the matter (“Appointment of the High Representatives”) was
published on its website on 13 October 2023 and is available at: .
15 Ibid.
16 Ibid.
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Differences Relating to Interpretation of Annex 10 of the Dayton Peace Agreement...
of Annex 10, and consequently refuses to recognise Mr. Schmidt as the High
Representative and to implement his decisions.
3. MANDATE OF THE HIGH REPRESENTATIVE
Pursuant to Article II of Annex 10,
“[t]he High Representative shall:
a. monitor the implementation of the peace settlement;
b. maintain close contact with the Parties to promote their full compliance
with all civilian aspects of the peace settlement and a high level of coope-
ration between them and the organizations and agencies participating in
those aspects;
c. coordinate the activities of the civilian organizations and agencies in Bo-
snia and Herzegovina to ensure the efficient implementation of the civili-
an aspects of the peace settlement. The High Representative shall respect
their autonomy within their spheres of operation while as necessary gi-
ving general guidance to them about the impact of their activities on the
implementation of the peace settlement. The civilian organizations and
agencies are requested to assist the High Representative in the execution
of his or her responsibilities by providing all information relevant to their
operations in Bosnia and Herzegovina;
d. facilitate, as the High Representative judges necessary, the resolution of
any difficulties arising in connection with civilian implementation;
e. participate in meetings of donor organizations, particularly on issues of
rehabilitation and reconstruction;
f. report periodically on progress in implementation of the peace agre-
ement concerning the tasks set forth in this Agreement to the United
Nations, European Union, United States, Russian Federation, and other
interested governments, parties, and organizations;
g. provide guidance to, and receive reports from, the Commissioner of the
International Police Task Force established in Annex 11 of the Dayton
Peace Agreement.”17
During the 1997 Peace Implementation Conference in Bonn, the PIC adopted a
conclusion amounting to what is usually referred to as the Bonn Powers since it
“welcome[d] the High Representative’s intention to use his final authority
in theatre regarding interpretation of the Agreement on the Civilian Im-
17 Annex 10 to The General Framework Agreement for Peace in Bosnia and Herze-
govina: Agreement on Civilian Implementation, 14 December 1995, Article II.
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Marko Kranjec
plementation of the Peace Settlement in order to facilitate the resolution
of difficulties by making binding decisions, as he judges necessary, on the
following issues:
a. timing, location and chairmanship of meetings of the common instituti-
ons;
b. interim measures to take effect when parties are unable to reach agree-
ment, which will remain in force until the Presidency or Council of Mini-
sters has adopted a decision consistent with the Peace Agreement on the
issue concerned;
c. other measures to ensure implementation of the Peace Agreement thro-
ughout Bosnia and Herzegovina and its Entities, as well as the smooth
running of the common institutions. Such measures may include actions
against persons holding public office or officials who are absent from me-
etings without good cause or who are found by the High Representative
to be in violation of legal commitments made under the Peace Agree-
ment or the terms for its implementation.”18
These conclusions were then welcomed by the UN Security Council19 which
later reaffirmed that
“under Annex 10 the High Representative is the final authority in theatre
regarding interpretation of civilian implementation of the Peace Agreement
and that in case of dispute he may give his interpretation and make recom-
mendations, and make binding decisions as he judges necessary on issues
as elaborated by the Peace Implementation Council in Bonn on 9 and 10
December 1997”.20
Nevertheless, the questions relating to the scope of the High Representative’s
mandate under Annex 10 have begun to surface. In his report to the UN Sec-
retary-General covering the period from 16 April to 15 October 2023,21 Mr.
Schmidt highlighted an unprecedent level of attacks against the GFAP. The
ruling coalition in Republika Srpska, according to Mr. Schmidt, continued to
pursue a dangerous policy of unilaterally imposing a misleading interpreta-
18 PIC Bonn Conclusions, available at (12 December 2023).
19 See Resolution 1144 (1997), adopted by the UN Security Council at its 3842nd meet-
ing on 19 December 1997.
20 Resolution 1722 (2006), adopted by the UN Security Council at its 5567th meeting
on 21 November 2006.
21 64th Report of the High Representative for Implementation of the Peace Agreement
on BiH to the Secretary-General of the United Nations, dated 2 November 2023, available
at: https://www.ohr.int/64th-report-of-the-high-representative-for-implementation-of-
the-peace-agreement-on-bih-to-the-secretary-general-of-the-united-nations/.
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Differences Relating to Interpretation of Annex 10 of the Dayton Peace Agreement...
tion of the GFAP and the constitutional framework of Bosnia and Herzegovina
around the hypothetical concept of “original Dayton”. Thus, the Report firstly
quite thoroughly addressed the constitutional order under the Constitution
of Bosnia and Herzegovina (Annex 4 of the Dayton Peace Agreement) and
continued by stating that
“the ruling coalition of Republika Srpska, led by RS President Milorad Do-
dik, started to implement steps creating the preconditions for a potential fu-
ture secession of Republika Srpska from BiH, which were outlined in a joint
statement signed by the ruling parties of Republika Srpska on 24 April 2023.
They include: Non-implementation of Decisions by the BiH Constitutional
Court, readiness to withdraw Republika Srpska representatives from the
state institutions, non-replacement of the Serb judges on the BiH Constitu-
tional Court, non-implementation of the Decisions of the High Representa-
tive, readiness to declare the independence of Republika Srpska if the High
Representative imposes a Law on State Property, readiness to re-examine
all laws and decisions imposed by all High Representatives so far, and a ter-
mination of contact with the OHR as well as the U.S. and UK Embassies.”22
According to the Report, the President of Republika Srpska, Mr. Milorad
Dodik,
“continued to challenge the sovereignty and territorial integrity of BiH and
threatened to limit my access to the territory of Republika Srpska. […] In
response to these direct and massive threats to the Peace Agreement, on 1
July 2023, I enacted a Decision that prevented the entry into force of the RS
Law on Non-application of Decisions of the BiH Constitutional Court and
the RS Law on Amendments to the RS Law on Publication of Laws and
Other Regulations, which sought to prevent the implementation of Deci-
sions by the High Representative in Republika Srpska. On the same day, I
also enacted amendments to the BiH Criminal Code, expanding the crimi-
nal definition of ‘offenses against the constitutional order’, penalizing the
non-application of Decisions by the BiH Constitutional Court, and adding
an offense regarding the failure to implement the Decisions of the High
Representative.”23
The Report further reveals that
“on 11 September 2023, the BiH Court confirmed an indictment against
Republika Srpska President Milorad Dodik and the acting Director of the
22 Ibid., para. 11.
23 Ibid., paras. 13–14.
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Marko Kranjec
Republika Srpska Official Gazette, Miloš Lukić, for failing to implement De-
cisions of the High Representative,”24
which further exacerbated the already highly tense situation. On the other
hand, Republika Srpska continues to justify the RS Law on Non-application of
Decisions of the BiH Constitutional Court with the absence of Serb judges in
the Constitutional Court of Bosnia and Herzegovina, and continues to express
its readiness to declare the independence if the High Representative imposes a
Law on State Property.
Thus, the principal question that arises here relates to the exact scope of the
High Representative’s mandate, most notably whether his abovementioned
measures fall within the ambit of his mandate under Annex 10 (supposedly
extended by the Bonn Powers). According to the OHR, which under Article V
of Annex 10 has the authority to interpret Annex 10, the PIC at the 1997 Peace
Implementation Conference in Bonn elaborated on Annex 10 and
“requested the High Representative to remove from office public officials
who violate legal commitments and the Dayton Peace Agreement, and to
impose laws as he sees fit if Bosnia and Herzegovina’s legislative bodies fail
to do so”.25
However, such position is contested by Republika Srpska on grounds that the
Bonn Powers do not specifically mention the High Representative’s legislative
powers which are entrusted under the Constitution of Bosnia and Herzego-
vina (Annex 4 to the Dayton Peace Agreement) to the Parliamentary Assembly
of Bosnia and Herzegovina. Republika Srpska also contests the High Repre-
sentative’s powers to provide an authoritative interpretation of other Annexes
to the Dayton Peace Agreement (except for Annex 10), particularly of Annex 4
that represents the Constitution of Bosnia and Herzegovina, considering that
Article V of Annex 10 explicitly limits his powers of interpretation to Annex
10, and that the High Representative is not considered as an organ of Bosnia
and Herzegovina under the Constitution of Bosnia and Herzegovina. In other
words, the crux of the issue lies in determining the extent of the High Rep-
resentative’s powers within the existing legal framework, and whether these
indeed encompass legislative (and potentially constitutional) powers as they
have been exercised thus far.
24 Ibid., para. 15.
25 See section “Mandate” on the OHR’s website available at (12 December 2023).
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Differences Relating to Interpretation of Annex 10 of the Dayton Peace Agreement...
4. THREAT TO INTERNATIONAL PEACE AND
SECURITY AND THE WAY OUT
In its Resolution 2604 (2021),26 dealing with Bosnia and Herzegovina, the UN
Security Council explicitly determined that the situation in the region of the
Former Yugoslavia continues to constitute a threat to international peace and
security. Within Bosnia and Herzegovina, the parties accuse each other of be-
ing the main source of this threat. Mr. Schmidt has already expressed opinion
in his abovementioned Report that the acts of Republika Srpska constitute se-
rious violations of the GFAP that threaten peace and stability in the country
and the region, thereby warranting an appropriate response. Consequently, it
is indisputable that all concerned parties agree that the current situation in
Bosnia and Herzegovina is on the brink of escalation to a degree that might
render it unmanageable. Therefore, the differences between the OHR and Re-
publika Srpska, along with all their possible consequences, constitute a threat
to international peace and security.
While it could be maintained that the current situation in Bosnia and Herze-
govina indeed represents a threat both to regional and international peace and
security, thus necessitating an appropriate response as Mr. Schmidt suggested,
the main issue that arises is: who holds the authority to respond appropriately?
It is difficult to accept the position that the OHR is the overarching and final
authority when it comes to the interpretation of the Dayton Peace Agreement
and its 11 Annexes as a whole. In this regard, it is pertinent to mention that
the Parliamentary Assembly of the Council of Europe adopted the Resolution
1384 (2004) that considered that it is
“irreconcilable with democratic principles that the High Representative
should be able to take enforceable decisions without being accountable for
them or obliged to justify their validity and without there being a legal re-
course”,
and to that end asked
“the Venice Commission to determine how far this practice complies with
the Council of Europe’s basic principles, and in particular with the Conven-
tion for the Protection of Human Rights and Fundamental Freedoms.” 27
Acting pursuant to such a request, the Venice Commission determined in
March 2005, inter alia, that
26 Resolution 2604 (2021), adopted by the UN Security Council at its 8896th meeting
on 3 November 2021.
27 Resolution 1384 (2004) of the Parliamentary Assembly, Council of Europe, Assem-
bly debate on 23 June 2004 (20th Sitting).
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Marko Kranjec
“the need for the wide powers exercised by the High Representative certain-
ly existed in the early period following the conclusion of the Dayton Agre-
ement. However, such an arrangement is fundamentally incompatible with
the democratic character of the state and the sovereignty of BiH. The longer
it stays in place the more questionable it becomes […] The main concern is
however that the High Representative does not act as an independent court
and that there is no possibility of appeal. The High Representative is not an
independent judge and he has no democratic legitimacy deriving from the
people of BiH. He pursues a political agenda, agreed by the international
community, which serves the best interests of the country and contributes
to the realisation of Council of Europe standards. As a matter of principle, it
seems unacceptable that decisions directly affecting the rights of individuals
taken by a political body are not subject to a fair hearing or at least the mi-
nimum of due process and scrutiny by an independent court.”28
However, the key issues at hand concern the authority to interpret the Dayton
Peace Agreement and its Annexes as a whole and in accordance with the most
authoritative set of interpretation rules in the international legal system, pro-
vided under Articles 31 to 33 of the Vienna Convention on the Law of Treaties
(“VCLT”). This implies that the Dayton Peace Agreement and its Annexes shall
be interpreted in good faith and in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its object
and purpose, while also taking into account subsequent agreements between
the parties regarding interpretation or application of the provisions in ques-
tion, and subsequent practice in the application of the treaty at hand (Article
31 of the VCLT reflecting general rules of interpretation). Such interpretation
would thus necessarily entail a deeper assessment of the ordinary meaning
of the relevant terms contained in Article I and Article II of Annex 10, while
considering: (1) previous practice of appointing the High Representative, in-
cluding all relevant UN Security Council resolutions in this regard, and (2)
the legal nature of the Bonn Powers which supposedly vested the High Repre-
sentative with additional powers. It should also be noted that although under
Article V of Annex 10 the High Representative is the final authority to inter-
pret Annex 10, this does not preclude any international adjudicating body, if
validly seised of the matter, to offer an independent and impartial review of
the interpretation presented by the OHR, especially if it is highly contested by
one of the Parties to Annex 10 and the situation amounts to a threat to inter-
national peace and security.
28 Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers
of the High Representative adopted by the Venice Commission at its 62nd plenary session
(Venice, 11–12 March 2005), paras. 90 and 96.
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Considering that the current situation represents a threat to international
peace and security, it is clear that the only appropriate organisation to ad-
dress this issue is the UN itself. Article 11 of the UN Charter stipulates that
the General Assembly may discuss any questions relating to the mainte-
nance of international peace and security brought before it by any Member
of the United Nations and may make recommendations with regard to any
such question to the State concerned or to the Security Council or to both.
Furthermore, the General Assembly may call the attention of the Security
Council to situations which are likely to endanger international peace and
security. Thus, the Security Council may also step in and address the situa-
tion, considering that the situation poses a threat to international peace and
security. It is worthwhile to note that from 1 January 2024 Slovenia will oc-
cupy a non-permanent seat on the UN Security Council. This not only repre-
sents a unique opportunity to improve the country’s international reputation
and recognition, but also entails a significant responsibility to ensure that the
maintenance of peace both regionally and globally. Having shared a common
history with Bosnia and Herzegovina, Slovenia is a country that understands
the culture(s) of Bosnia and Herzegovina’s peoples and is uniquely placed to
help mediate an urgent resolution of the presented differences between the
OHR and Republika Srpska.
However, despite the UN General Assembly and the UN Security Council may
indeed significantly contribute towards the resolution of the current situation
in Bosnia and Herzegovina, they cannot provide for an authoritative interpre-
tation of the Dayton Peace Agreement and its Annexes. This task is perfectly
suited for the principal judicial organ of the UN, the International Court of
Justice (“ICJ”). Pursuant to Article 96 of the UN Charter and Article 65 of the
Statute of the International Court of Justice, the UN General Assembly or the
UN Security Council may request the ICJ to give an advisory opinion on any
legal question, including the one discussed here. Although not of a binding
nature, such an advisory opinion would greatly help to clarify the legal issues
highlighted above by offering the most authoritative interpretation of the Day-
ton Peace Agreement and its Annexes as a whole, most notably in respect of
the appointment of the High Representative and his exact powers under the
current legal framework.
Considering the highly tense situation in Bosnia and Herzegovina, and the
differences surrounding the validity of the appointment of Mr. Schmidt to the
position of the High Representative, as well as the legality of his decisions, it
seems that the most prudent way to seek to resolve these issues would indeed
be to raise them before the UN organs, especially before the principal judicial
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Marko Kranjec
organ of the UN, by requesting it to give an advisory opinion on the following
questions:
1. What is the procedure for the appointment of the High Representative for
Bosnia and Herzegovina under Annex 10 of the Dayton Peace Agreement,
and does the UN Security Council need to endorse such an appointment?
2. What powers does the High Representative have, namely do these powers
include legislative or even constitutional powers?
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Strokovni članek UDK: 341.382(497.6)
RAZHAJANJA GLEDE RAZLAGE ANEKSA
ŠT. 10 K DAYTONSKEMU MIROVNEMU
SPORAZUMU MED URADOM VISOKEGA
PREDSTAVNIKA ZA BOSNO IN
HERCEGOVINO TER REPUBLIKO SRBSKO
Marko Kranjec,
diplomirani pravnik (Ljubljana), magister prava (Ljubljana), LL.M. (Leiden),
odvetnik v Odvetniški družbi Kavčič, Bračun in partnerji v Ljubljani*
Vojna v Bosni in Hercegovini se je končala leta 1995 s podpisom Splošnega
okvirnega dogovora za mir v Bosni in Hercegovini (angl. General Framework
Agreement for Peace in Bosnia and Herzegovina), ki je splošno poznan tudi
kot Daytonski mirovni sporazum. Tega sestavlja tudi 11 aneksov in na podlagi
Aneksa št. 10 je bil ustanovljen Urad Visokega predstavnika za Bosno in Her-
cegovino, ki je kot ad hoc mednarodna institucija pristojna za nadzor nad im-
plementacijo civilnih vidikov Daytonskega mirovnega sporazuma. Leta 1997
je nato v Bonnu Svet za uresničitev miru kot telo, sestavljeno iz 55 držav in
agencij podpornic miru v Bosni in Hercegovini, ki je bilo ustanovljeno leta
1995 na mirovni konferenci v Bosni in Hercegovini v Londonu, sprejel sklepe,
ki se danes štejejo kot podlaga za podelitev dodatnih pristojnosti Visokemu
predstavniku za Bosno in Hercegovino (tako imenovane Bonnske pristojno-
sti). Zaradi načina imenovanja trenutnega Visokega predstavnika za Bosno in
Hercegovino Christiana Schmidta in njegovih ravnanj oziroma sprejetih od-
ločitev pa je prišlo do razhajanj med Uradom Visokega predstavnika za Bosno
in Hercegovino ter Republiko Srbsko kot ene od pogodbenih strank Aneksa
št. 10, in sicer glede postopka imenovanja Visokega predstavnika za Bosno in
Hercegovino ter njegovih pristojnosti. Posledice omenjenih razhajanj so resne,
saj sta v regiji ogrožena mir in varnost, saj Republika Srbska trenutnemu Vi-
sokemu predstavniku za Bosno in Hercegovino ne priznava tega statusa in ne
spoštuje njegovih odločitev.
* Mnenja in stališča v tem prispevku so v celoti avtorjeva in ne predstavljajo nujno tudi
mnenj in stališč njegovega delodajalca.
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Marko Kranjec
Prvo pravno vprašanje je, kakšen je postopek imenovanja Visokega predstav-
nika za Bosno in Hercegovino oziroma natančneje, ali Visoki predstavnik za
Bosno in Hercegovino za veljavno imenovanje na položaj potrebuje potrditev
Varnostnega sveta OZN. Dejstvo je, da Aneks št. 10 postopka imenovanja na-
tančno ne ureja, saj je v I. členu Aneksa št. 10 omenjeno le to, da pogodbene
stranke Aneksa št. 10 zahtevajo imenovanje Visokega predstavnika za Bosno in
Hercegovino »v skladu z relevantnimi resolucijami Varnostnega sveta OZN«.
Urad Visokega predstavnika za Bosno in Hercegovino je v skladu s V. členom
Aneksa št. 10 kot končna avtoriteta za razlago Aneksa št. 10 zavzel stališče, da
za veljavno imenovanje na položaj Visoki predstavnik za Bosno in Hercego-
vino pravno gledano ne potrebuje potrditve Varnostnega sveta OZN, saj to
iz besedila I. člena Aneksa št. 10 ne izhaja. Na drugi strani Republika Srbska
vztraja pri stališču, da Visoki predstavnik za Bosno in Hercegovino potrditev
Varnostnega sveta OZN za veljavno imenovanje na položaj potrebuje, saj naj bi
to izhajalo tudi iz dosedanje prakse imenovanja Visokih predstavnikov za Bo-
sno in Hercegovino, ki jih je vse tako ali drugače podprl Varnostni svet OZN.
Drugo pravno vprašanje pa se nanaša na domet pristojnosti Visokega predstav-
nika za Bosno in Hercegovino oziroma natančneje, ali pristojnosti Visokega
predstavnika za Bosno in Hercegovino vključujejo tudi zakonodajne (ali celo
ustavne) pristojnosti. Daytonski mirovni sporazum namreč v II. členu Aneksa
št. 10 določa pristojnosti Visokega predstavnika za Bosno in Hercegovino, ki se
nanašajo na implementacijo različnih civilnih vidikov Daytonskega mirovnega
sporazuma, šele tako imenovane Bonnske pristojnosti, na katere se sklicuje tudi
Urad Visokega predstavnika za Bosno in Hercegovino, pa neposredno ome-
njajo možnost, da Visoki predstavnik za Bosno in Hercegovino lahko sprejme
tudi vse tiste ukrepe, ki so po njegovi presoji nujni za zagotovitev implementa-
cije Daytonskega mirovnega sporazuma po vsej Bosni in Hercegovini, vključ-
no z začasnimi ukrepi, če pogodbene stranke Aneksa št. 10 ne morejo doseči
sporazuma, in z ukrepi proti osebam, za katere Visoki predstavnik za Bosno
in Hercegovino meni, da kršijo zaveze iz Daytonskega mirovnega sporazuma.
Stališču Urada Visokega predstavnika za Bosno in Hercegovino nasprotuje Re-
publika Srbska, ki meni, da Visoki predstavnik za Bosno in Hercegovino nima
zakonodajnih pristojnosti, prav tako pa ne more avtoritativno podajati razlage
ustavnega reda Bosne in Hercegovine (to je Aneksa št. 4).
Na koncu se postavlja vprašanje, kdo lahko ponudi rešitev nastale situacije in
kot možen odgovor se ponudi OZN. Tako Generalna skupščina OZN kot tudi
Varnosti svet OZN lahko vsak na svoj način ustrezno obravnavata situacijo v
Bosni in Hercegovini glede na to, da pomeni grožnjo miru in varnosti v regiji.
Sicer pa se kot najbolj optimalna pravna rešitev ponuja v tem, da se obe sporni
vprašanji v skladu z Ustanovno listino OZN predloži v reševanje Meddržav-
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• 140 (2023) 11-12
Razhajanja glede razlage Aneksa št. 10 k Daytonskemu mirovnemu sporazumu ...
nemu sodišču, ki s svojim svetovalnim mnenjem kot glavni sodni organ OZN
lahko ponudi avtoritativno razlago Daytonskega mirovnega sporazuma, pred-
vsem pa Aneksa št. 10, in s tem dokončno (po pravni poti) reši predstavljena
razhajanja glede razlage Aneksa št. 10 k Daytonskemu mirovnemu sporazumu
med Uradom Visokega predstavnika za Bosno in Hercegovino ter Republiko
Srbsko.