Wider Europe

August 10, 2009

Policy Brief
The Purpose of Constitutional Reform in Bosnia and Herzegovina
by Douglas Davidson1
Any change of government which has to be introduced should be one which men, starting from their existing constitution, will be both willing and able to adopt, since there is quite as much trouble in the reformation of an old constitution as in the establishment of a new one, just as to unlearn is as hard as to learn. - Aristotle, Politics, 1289a1 It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Justice is the end of government. It is the end of civil society… In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may be as truly said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even stronger individuals are prompted by the uncertainty of their condition to submit to a government which may protect the weak as well as themselves, so, in the former state, will the more powerful factions be gradually induced by a like motive to wish for a government which will protect all the parties, the weaker as well as the more powerful. - James Madison, Federalist 51
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Summary: To become a member of the European Union, Bosnia and Herzegovina must be capable of meeting the responsibilities that go with membership. Bosnia and Herzegovina’s institutions of government today resemble the “ethnofederalist” institutions of the former Yugoslavia, just as its current constitution resembles Yugoslavia’s 1974 constitution. Without strong institutions and without the subordination of its cultural cleavages and its center-region conflicts to central governmental authority, the country could fall apart. Even if the country does stay together, Bosnia and Herzegovina’s constitution must evolve, for the demands of European integration will place new responsibilities on the state. The purpose of constitutional reform, then, should be to strengthen the central institutions of representative democratic governance; to set out a clear and workable division of responsibilities between the regional and the central governments; and to bring the country into conformity with its international obligations. 1744 R Street NW Washington, DC 20009 T 1 202 745 3950 F 1 202 265 1662 E info@gmfus.org

To become a member of the European Union, Bosnia and Herzegovina must be capable of meeting the responsibilities that go with membership. Any country wishing to join the Union must have stable institutions that guarantee democracy, the rule of law, human rights, and respect for and protection of minorities; a functioning market economy with the capacity to cope with competition within the Union; and the ability to take on the obligations of membership, including adherence to the aims of political, economic, and monetary union. Bosnia and Herzegovina cannot now fulfill these requirements. Nor is it now able to comply with the commitments it has made to the Council of Europe, the United Nations, and other international bodies. Bosnia and Herzegovina’s decentralized government is often compared to that of other consociational states, such as Switzerland and Belgium. But, as the European Commission for Democracy Through Law, which is better known as “the Venice Commission,” has noted: “First of all, it is obvious that the responsibilities of the State of Bosnia and Herzegovina cannot be compared with the powers enjoyed by European federal states such as Switzerland, Belgium, Austria, Germany, or Russia. In these countries legislative powers are concentrated at the federal level, there is a strong federal executive, financial resources are mainly controlled by the federal level and federal courts insure respect for federal

Ambassador Douglas Davidson is a visiting distinguished fellow with the German Marshall Fund of the United States (GMF). The views expressed are those of the author and do not represent the views of GMF.

Wider Europe

Policy Brief
law. None of this applies in BiH. With such a weak state Bosnia and Herzegovina will not be able to make much progress on the way towards European integration.”2 This weakness of the state of Bosnia and Herzegovina is a consequence of its postwar foundation. The Dayton Agreement created a minimal number of central government institutions and constructed those it did create so as to guarantee equal representation to all three constituent peoples and to provide a means to protect the “vital national interests” of each. Over time, a series of changes to the governing structures of the country created new institutions of central government and strengthened other already-existing ones—though the principal of equal “national” representation and the protection of vital interests remained. But, because the alreadyexisting institutions at the lower levels of government did not diminish, much less disappear, as some had expected, the division of responsibility for policymaking in certain areas between the State and the Entities became increasingly unclear. This lack of clarity more and more hinders the efficient functioning of all levels of government. Coordination between the different levels of government is now minimal as well. A dispute has even lately arisen over whether competencies ceded by the entities to the state can be recaptured and reassumed. But even with these transferred competencies securely guaranteed, the state would still lack certain attributes necessary for Bosnia and Herzegovina to become a member of the European Union. For instance, as the European Commission’s latest progress report points out, the central government lacks any competency in employment and social policies. As a result, labor legislation varies by entity and canton, and almost nowhere complies with EU provisions on health and safety at work. The report also notes that, although Bosnia and Herzegovina has recently ratified the revised European Social Charter, it has made “no significant progress” in providing equal access to social protection, while “rights to health insurance and other social protection, including unemployment benefits, continue to depend on which Entity and, to some extent, which Canton the claimants live in.”3 The judicial system, too, lacks cohesion and hierarchy. This prevents courts from ensuring respect for state law. At least four judicial jurisdictions—the State, the Federation of Bosnia and Herzegovina, the Republika Srpska, and the Brčko District—currently exist; each operates independently of the others. The country also has 14 Ministries of Justice, each with its own budget and employees.
European Commission for Democracy Through Law, Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, Adopted 11-12 March, 2005. 3 Commission of the European Communities, “Bosnia and Herzegovina 2008 Progress Report,” Brussels, November 11, 2008.
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Although each entity has a Supreme Court, the state does not, even though—or perhaps precisely because—a Supreme Court at the level of the state might alleviate the current judicial confusion by harmonizing the application of legislation across the four jurisdictions. Bosnia and Herzegovina’s institutions of government today resemble the “ethnofederalist” institutions of the former Yugoslavia, just as its current constitution resembles Yugoslavia’s 1974 constitution. As did the Socialist Federative Republics of Yugoslavia’s, Bosnia-Herzegovina’s constitution recognizes two kinds of national groupings —constituent peoples and national minorities – and accords preference to the former. This effectively denies equal representation and protection to the latter. But because Bosnia and Herzegovina has also ratified a number of international human rights conventions, not least the European Convention for the Protection of Human Rights and Fundamental Freedoms, certain provisions of the Dayton Constitution are therefore now inconsistent with the provisions for human and minority rights protection in these conventions. To be sure, the Dayton Constitution itself incorporates most of these human rights conventions. It also explicitly states that these conventions supersede domestic legislation. Article II.2 of the Dayton Constitution, for instance, states this: “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.” Article II.4 further states: “The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.” In addition, Annex I lists additional human rights conventions to be applied to Bosnia and Herzegovina. These include the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto, the 1966 Covenant on Economic, Social and Cultural Rights, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, and 1994 Framework Convention for the Protection of National Minorities. Bosnia and Herzegovina is thus effectively in violation of its own constitution as well as its international obligations.

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Wider Europe

Policy Brief
Provisions of Bosnia and Herzegovina’s elections law, too, violate the European Convention on Human Rights (ECHR). The way in which Bosnia and Herzegovina’s tripartite presidency is chosen, for instance, contravenes Protocol 12 of the ECHR because it limits those eligible to run for the presidency to the three constituent peoples and then further limits and specifies the ethnicity of each candidate who can be elected from the entities. Similar problems exist with the House of Peoples. Rather than operating as the kind of upper house of a bicameral legislature that commonly exists in other federal governments, “[t]he main function of the House of Peoples,” the Venice Commission notes, “…is… as the chamber where the vital interest veto is exercised…” The House of Peoples is principally a “veto chamber,” with its fifteen members principally occupied primarily in defending the interests of their particular constituent people. “It would therefore seem preferable,” the Venice Commission argues, “to move the exercise of the vital interest veto to the House of Representatives and abolish the House of Peoples.” (If the people of Bosnia and Herzegovina wished to retain a bicameral legislature despite this advice, they could, of course, also consider making the House of Peoples into a more “advisory” chamber in the manner of upper houses in other parliamentary federal republics instead.) The Venice Commission additionally believes that “…a precise and strict definition of vital interest in the Constitution is necessary… It should not be excessively broad but focus on rights of particular importance to the respective peoples, mainly in areas such as language, education, and culture.” “[I]n Yugoslavia, as in all federal systems,” writes Beverly Crawford, “the preservation of the state depended on the strength of institutions that encourages loyalty to the central government.4 It further depended on the subordination of cultural cleavages, ideological disputes, socioeconomic divisions, and center-region conflict to central governmental authority.” The same holds true for Bosnia and Herzegovina, which in many ways remains a miniature Yugoslavia today. Without strong institutions and without the subordination of its cultural cleavages and its center-region conflicts to central governmental authority, that center may not to hold; the country could even fall apart. Even if the country does stay together, Bosnia and Herzegovina’s constitution must necessarily evolve, for the demands of European integration will place new responsibilities on the state. The purpose of constitutional reform, then, should be to strengthen the central institutions of representative democratic governance;
Beverly Crawford, “Explaining Cultural Conflicts in Ex-Yugoslavia: Institutional Weakness, Economic Crisis, and Identity Politics,” The Myth of “Ethnic Conflict”: Politics, Economics, and “Cultural” Violence, University of California Press, 1998.
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to set out a clear and workable division of responsibilities between the regional and the central governments; and to bring the country into conformity with its international obligations. By aligning the country with the terms and demands of the European Union’s acquis communitaire, this process should also help the country to move closer, even if only haltingly, to its stated goal of “Euroatlantic integrations.”
Douglas Davidson, Distinguished Visiting Fellow, GMF
Douglas Davidson comes to GMF from four years as head of the Organization for Security and Cooperation in Europe’s (OSCE) Mission to Bosnia and Herzegovina. A career member of the U.S. Senior Foreign Service, his previous assignments include the Northwest Frontier of Pakistan, the White House as an assistant press secretary for foreign affairs in the administration of President George H. W. Bush, and the State Department’s Senior Seminar, a year-long executive leadership and management training program. He has lately amassed extensive experience in the Balkans, which include several visits to war-time Sarajevo in 1994 and 1995; assignments to the American embassies in Zagreb and Belgrade; and service as the first director of the Department of Media Affairs of the newly established OSCE Mission in Kosovo, which formed part of the UN Interim Administrative Mission in Kosovo (UNMIK), and, concurrently, the province’s first Temporary Media Commissioner.

About GMF
The German Marshall Fund of the United States (GMF) is a nonpartisan American public policy and grantmaking institution dedicated to promoting greater cooperation and understanding between North America and Europe. GMF does this by supporting individuals and institutions working on transatlantic issues, by convening leaders to discuss the most pressing transatlantic themes, and by examining ways in which transatlantic cooperation can address a variety of global policy challenges. Founded in 1972 through a gift from Germany as a permanent memorial to Marshall Plan assistance, GMF maintains a strong presence on both sides of the Atlantic. In addition to its headquarters in Washington, DC, GMF has seven offices in Europe: Berlin, Bratislava, Paris, Brussels, Belgrade, Ankara, and Bucharest.

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