Assuming Russia vetoes EUFOR mandate extension in Bosnia, can Dodik legally "kick out" all EUFOR troops, including from the Croat-Muslim federation?

Question

There has been speculation that Russia may veto an extension of the EUFOR mandate, which despite its name is apparently operating under a UNSC resolution.

Assuming that veto happens (and given the hardened stance of Russia on UN aid in Syria, it might), does the Republika Srpska (led by "ultranationalist" Dodik) have a legal basis to demand that foreign troops leave all of Bosnia and Herzegovina, including the Muslim-Croat federation that's "the other half" of the Republic of Bosnia and Herzegovina?

Basically, does the constitution of the Republic of Bosnia and Herzegovina give Republika Srpska a veto on foreign troop deployments anywhere in the the Republic of Bosnia and Herzegovina?

Answer 1

I would argue yes... Kind of.

Dodik is a member of Bosnia and Herzegovina Presidency according to Article V Section 1 of the Bosnia and Herzegovina Constitution.

In Section 2 of Article V, it states:

A dissenting Member of the Presidency may declare a Presidency Decision to be destructive of a vital interest of the Entity from the territory from which he was elected, provided that he does so within three days of its adoption. Such a Decision shall be referred immediately to the National Assembly of the Republika Srpska, if the declaration was made by the Member from that territory; to the Bosniac Delegates of the House of Peoples of the Federation, if the declaration was made by the Bosniac Member; or to the Croat Delegates of that body, if the declaration was made by the Croat Member. If the declaration is confirmed by a two-thirds vote of those persons within ten days of the referral, the challenged Presidency Decision shall not take effect.

Which means, Dodik would need at least 2/3 of the National Assembly of the Republika Srpska to go along with his dissent. But it only sounds like he can dissent if the armed forces being spoken of are a threat to his own Entity.

HOWEVER, Section 5 of Article V states:

• Each member of the Presidency shall, by virtue of the office, have civilian command authority over armed forces. Neither Entity shall threaten or use force against the other Entity, and under no circumstances shall any armed forces of either Entity enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina. All armed forces in Bosnia and Herzegovina shall operate consistently with the sovereignty and territorial integrity of Bosnia and Herzegovina.
• The members of the Presidency shall select a Standing Committee on Military Matters to coordinate the activities of armed forces in Bosnia and Herzegovina. The Members of the Presidency shall be members of the Standing Committee.

"...under no circumstances shall any armed forces of either Entity enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina."

Keyword, "and." That suggests Dodik has the sole power to keep out not only BiH troops from his Entity, but Foreign (EU) troops operating on behalf of BiH as well. Nothing in that suggests he has the sole power to keep EU troops out of the Federation (thus BiH entirely). He would need the 2/3rds vote referenced above.

Answer 2

does the constitution of the Republic of Bosnia and Herzegovina give Republika Srpska a veto on foreign troop deployments anywhere in the the Republic of Bosnia and Herzegovina?

The appeal to constitutional principles is not relevant because EUFOR's presence in Bosnia and Herzegovina is not governed by the constitution. It is governed by the Dayton agreement, which was negotiated by Serbia's predecessor state on behalf of Republika Srpska, and by the continuing authorization of the UN Security Council. So what happens if the UNSC withdraws the authorization?

does the Republika Srpska (led by "ultranationalist" Dodik) have a legal basis to demand that foreign troops leave all of Bosnia and Herzegovina, including the Muslim-Croat federation that's "the other half" of the Republic of Bosnia and Herzegovina?

The most obvious legal basis for such a demand would be the lack of a legal basis for EUFOR's continued presence in Bosnia and Herzegovina. Their presence is contemplated in the Dayton agreement through an "invitation" by the parties to the UN Security Council to establish a mandate under chapter VII of the UN charter for foreign military enforcement, under NATO command, of the peace agreement. A veto of a resolution extending EUFOR's mandate would constitute the security council's declining this invitation. There is no other provision in the peace agreement for foreign military enforcement, so the lack of security council authorization would effectively render the peace agreement meaningless.

One possible result is that EUFOR and the High Representative decide that the treaty itself provides sufficient authorization for continued enforcement without the authorization of the security council, though this seems unlikely in the face of the history of a continuous series of authorizing resolutions since the 1990s.

In the absence of valid authorization, EUFOR should just leave. It probably would not "just leave," however, if military hostilities seemed likely. The likely course of events would depend on whether Republika Srpska attempted to secede "as is" or to claim additional territory, as well as on the degree to which Serbia and Russia were involved.

If Republika Srpska did not attempt to secede, then there would be little threat of fighting (at least in the near term), and EUFOR would probably leave.

If RS attempted to secede without claiming any territory from FBiH, it would have no legal basis to make any demands that EUFOR leave the territory of FBiH, because it would be holding itself out as an independent country.

If Republika Srpska attempted to claim territory from FBiH, there would probably be military hostilities, and pretty much anything could happen. Whether Republika Srpska made any demands concerning EUFOR's presence and whether those demands had any legal basis would not be significant factors in any decisions concerning EUFOR's deployment. The more significant factor would likely be the desire to avoid open military conflict directly between any EU or NATO member and Russia.