Proposed solution for state property: Bh. lawyers want to untangle a contentious political issue

The Center for Geopolitical Research – Geopol has published a proposal for a solution to the controversial political issue of state property, offering it for public and institutional discussion.

“This analysis tries to approach the issue of state property as dictated by the seriousness of the moment in which Bosnia and Herzegovina finds itself – that is, outside of daily political and party frameworks, and within what we call the interest of state survival and the country’s European future. We start from the existing constitutional order and the practice of the Constitutional Court, and we strive to offer a solution that simultaneously protects the legal continuity of the state, respects the legitimate interests of lower levels of government and local communities, and removes one of the key obstacles on the European path,” the Center stated, adding that “permanent peace does not rest on temporary blockades, but on rules that are just enough to be accepted even by those who do not see their own victory in them.”

Their proposal, backed by a group of eminent lawyers from our country, is based on the following:

State property is a matter of constitutional continuity of the country; it must be regulated in accordance with the Constitution of Bosnia and Herzegovina and the decisions of the Constitutional Court, and not outside of them.

The dispute actually boils down to the right of disposal – who decides on the sale or alienation of the property. That issue must be resolved clearly and in advance.

Assets are classified according to their character into three categories – strategic state, functional public and local development – ​​and the right of disposal is determined in advance for each.

In the case of the first two categories, ownership remains with the state; management and benefit belong to the level of government that actually uses the property.

Without a complete, transparent and independently verified register, there is no sorting or distribution.

Local communities get the right to dispose of property of a local character and the dedicated spending of income from it.

The model strengthens the rule of law and legal security, narrows the space for corruption and opens one of the chapters on the European road.

They emphasized that they started from the provisions of the BiH Constitution from Annex IV of the General Framework Agreement for Peace, and from the practice of the Constitutional Court on state property, distribution of jurisdiction and legal continuity of the state. The emphasis is on the obligation to implement the final and executive decisions of the Court. The Agreement on succession issues from 2001, international documents on the continuity of states and public property, and the positions of the institutions involved in the implementation of the Dayton Agreement were also taken into account. Valid regulations that directly or indirectly affect state property were also discussed, primarily the Law on the Temporary Prohibition of the Disposal of State Property and the Law on Defense of Bosnia and Herzegovina.

They further stated:

“The lines of disagreement are known. The Bosnian entity Republika Srpska claims that the property belongs to the entities and is regulated by entity laws or an inter-entity agreement. State institutions and the Federation hold the opposite: the owner is the state, and the matter can only be regulated by law at the state level. The Constitutional Court has already resolved this dilemma – in decisions from 2012 and in two decisions from July 2024, it determined that entities cannot dispose of state property even on any serious discussion must start from that fact, a solution that would bypass it would be neither valid nor permanent.

This analysis therefore does not look for a winner and a loser. It tries to reconcile the legal reality – state ownership of title – with the political: lower levels of government and local communities must have a real, legally guaranteed benefit from the property they use. The first version of the proposal relied on the separation of title from management. That was not enough. The question that actually carries the whole disagreement remained open – who decides on the sale, thus the right of disposal. While it hangs in the air, the discord is merely moved to a lower level. That is why this version classifies the property according to its character into three categories, and determines the right of disposal for each in advance:

Strategic state assets – border, military assets, key resources and infrastructure of state importance. The owner is the state, there is no sale; it is only possible to rent or use it for a period of time.

Functional public property – the title remains state-owned, and the entities and lower levels manage it, lease and concession it, and keep the income. I can’t sell it. Thus, the title is not a mere ‘decoration’, but a barrier against selling out.

Local development assets – city public areas and municipal land without strategic importance. It is available primarily to municipalities and cities, with the right to sell, transparently and in the public interest. The approach was not invented for this occasion. The functional principle already exists in practice – it was applied to prospective military assets through the BiH Defense Law (Art. 71-74), and it is the only model that has so far shown that it can come to life.”

They also published six pillars of the proposed solution

1. The Law on State Property at the state level, adopted in the Parliamentary Assembly, as the only constitutionally valid instrument. An inter-entity agreement is not, because it would mean the recognition of entity competence, which the Constitutional Court denies.
2. A full inventory and register of assets before each distribution, with independent verification. Without this, the classification is arbitrary and open to abuse.
3. Classification according to character, with pre-established right of disposal for each category; title remains state-owned everywhere except for local development property.
4. Protection of local communities – assets of local character go to municipalities and cities with the right of disposal, with a barrier against asset-stripping and party redistribution.
5. The State Property Commission as a permanent expert body whose members are appointed by legislative bodies of all levels of government, with an independent expert panel for resolving disputes and judicial review of decisions.
6. Previous illegal dealings – null and void as to title, subject to convalidation by conscientious third parties where possible. Each side comes out of this with something tangible. The country gets legal continuity and an unblocked transition of the OHR, and thus the European way. The Republika Srpska and the Federation get guaranteed management over most of the property they use anyway. Local communities get resources and security, investors a predictable framework instead of today’s fog. Everything else is buying time, he reports Radio Sarajevo.