european movement for european constitution

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European Movement for European ConstitutionAuthors: Sead S. Fetahagi and Saida MustajbegoviPublisher: Association Alumni of the Centre for Interdisciplinary Postgraduate Studies (ACIPS)For publisher: Ivan BarbaliProject Coordinator: Vanja Ibrahimbegovi

Proof-reader: Mediha MulahasanoviDesign and layout: Vedran MujagiPrinting company: Amos grafNumber of copies: 1300

Sead S. Fetahagi and

Saida Mustajbegovi

EUROPEAN MOVEMENT FOREUROPEAN CONSTITUTION


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TABLE OF CONTENTS

1. Introduction.........................................................................................................................................2

2. Presentation of current constitutional arrangements...........22.1. Constitution of BiH political .............................................................................................................32.2. Human rights ..................................................................................................................................42.3. Constitution of BiH and citizens......................................................................................................................62.4. Economic development72.5. Positive example: Brko District of BiH.........................................................................................................8

3. Analyses of the domestic proposals for the constitutional reform.....................................................8

4. Analyses of the foreign proposals for the constitutional reform.......................................................10

4.1. Council of Europe ..........................................................................................................................................104.2. European Union..............................................................................................................................................134.3. European Stability Initiative (ESI).................................................................................................................194.4. International Commission on the Balkans (ICB)...........................................................................................204.5. International Crisis Group (ICG)................................................................................................................214.6. Recommendations by Swiss Experts..............................................................................................................22

5. Overview of the concrete recommendations by foreign organizations and experts..........................24

5.1. Basic constitutional principle the subject of sovereignty.............................................................................245.2. Vertical structure the principle of federalism ..............................................................................................255.3. Horizontal structure the division of responsibilities among different holders of state authorities...............255.4. Mechanisms for the protection of collective interests - the right of veto....................................26

5.5. Nation-state building............................................................................................................................265.6. Participants in the constitutional reform process.....................................................................................27

6. Conclusion..27

7. List of sources.....................................................................................................................................29

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1. INTRODUCTION

The constitutional system in Bosnia and Herzegovina, which was created by theDayton Peace Agreement, is extremely complicated and contradictory. As a foundation onwhich the functioning of the state-level institutions lies, this constitutional system is incapableof ensuring an efficient and cost-effective state structure and, therefore, its reform is required.Among the many problematic constitutional arrangements there is one, as an example, whichis ahead of all others: the inconsistency of the mechanisms for the protection of human rightsunder the European Convention for the Protection of Human Rights and FundamentalFreedoms with the principle of exclusive recognition of the so-called constitutional peoples,which frequently amounts to discrimination and violation of individual rights in practice.

Even though there has been a long-term awareness of the necessity to change theConstitution in Bosnia and Herzegovina, the last attempt of enacting the constitutionalamendments (the so-called 2006 April package) failed to pass through the parliamentaryprocedure although the political negotiations on its content were coordinated by the USAEmbassy in Bosnia and Herzegovina. Moreover, the whole process of negotiations wasconducted behind the closed door and the public at large was neither regularly northoroughly informed about what the constitutional amendments would, indeed, mean when itcomes to concrete effects on a daily life of citizens. Therefore, a need arises for the public atlarge to be included in all future processes and procedures of constitutional reform eitherthrough the organizations of civil society or in some other ways, in order for the result, which

will be eventually achieved, to be granted additional democratic legitimacy.The objective of this study was to collect as many relevant pieces of information as

possible regarding a model of the constitution which would, indeed, make it possible forBosnia and Herzegovina to function as a democratic and European society. By conducting theanalysis of both domestic and international recommendations and proposals for theconstitutional reform, as well as by reviewing practical problems arising from the currentlyapplicable constitutional provisions several essential conclusions were drawn which will bepresented in public. Given that the basic goal of the coalition called the European Movementis the promotion of European standards and European values, the objective of this studyspublic promotion is to inform the citizens of BiH that for the European future of this country

it is necessary to adopt a constitutional structure which will be brought in line with suchstandards and values.

2. PRESENTATION OF CURRENT CONSTITUTIONAL ARRANGEMENTS

A middle-aged person in BiH has lived to see several constitutions, more precisely -several constitutional-legal arrangements. It is indisputable that the Dayton Peace Agreement,whose integral part Annex IV is actually the Constitution of Bosnia and Herzegovina, is themost frequently mentioned constitution in everyday life and the subject-matter the BiHpoliticians are frequently criticized for in the public, but it is also a document which they referto - wherever it suits them. In essence, this agreement is the only solution that was made up

by the international community in its effort to solve the BiH political crisis in which manyfactors were involved. The General Framework Agreement for Peace in Bosnia and

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Herzegovina was signed by the Republic of Bosnia and Herzegovina, the Republic of Croatiaand the Federal Republic of Yugoslavia in their capacities as signatory parties.

2.1 Constitution of BiH political context

The most frequent target of criticism is Annex IV to the Dayton Peace Agreement, i.e.the Constitution of Bosnia and Herzegovina whereby the continuity of statehood within theinternationally recognized borders of 6 April 1992 was confirmed. In the normativeframework of this Annex it is stated that the Republic of Bosnia and Herzegovina, the officialname of which shall henceforth be "Bosnia and Herzegovina," shall continue its legalexistence under international law as a state.

The Constitution of Bosnia and Herzegovina was made and adopted without theparticipation of citizens of Bosnia and Herzegovina and without the application of procedureswhich would give it democratic legitimacy. That is a unique case of a constitution which hasnever been officially published in the official languages of the country which it refers to, butit was adopted and published in a foreign language, i.e. in English".30

Although Bosnia and Herzegovina is made up of two Entities, the Federation of BiHand the Republika Srpska, according to the form of its state organization, it is neither afederation as the Entities are not federal units - nor is it a union or confederation - as itsEntities (regardless of the fact that they enjoy a high degree of autonomy) are not sovereignstates. Under the Constitution, BiH is defined as a state of citizens and three constituentpeoples: Bosniaks, Serbs and Croats.

In the course of permanent negotiations aimed at stabilization of state and society,establishment of permanent peace and building of safe future, all models of the state-legalorganization of BiH have been attempted. However, none of the attempts were acceptable toall three peoples and all three leaders of national political parties. Each of them had its ownmodel and was not willing to accept any other. Only on some occasions it used to happen thatsome model was acceptable to two political options, while the third one was always rejectingit fully. 31

The following agreements preceded the Dayton Peace Agreement: the Cutiliero Planof March 1992; the Vance-Oven Plan of 1993 (winter-spring); the Oven-Stoltenberg Plan of1993 (July-August); the Contact Group Plan of 1994 (July) its basis was the division ofterritory among the Serbs - on the one hand and the Croats and Bosniaks on the other hand,(the proposal was 49:51); in 1994 (March) the Washington Agreement was reached betweenthe Bosniaks and Croats, which was based on the idea of federalism, - the Federation of BIHwas established in which the constituent peoples were the Bosniaks and Croats while the

Serbs, together with all other ethnicities, were regarded as Others. Finally, in 1995(December), the Dayton Peace Agreement was signed within which the Entity of theRepublika Srpska32 was granted legitimacy. Bosnia and Herzegovina was internationally

30 Proces ustavnih promjena u BiH (Constitutional Reform Process in BIH), Centar za ljudska pravaUniverziteta u Sarajevu (Human Rights Centre of the University in Sarajevo), Sarajevo, 2006, p.55.31 epi Boo, etiri modela Ustava BiH (Four models of the Constitution of BiH), Budu'nostUstava BiH (Future of the Constitution of BiH), Nezavisne novine, Banja Luka, 2006, p.18

32 As a reaction to the Memorandum on Intents of the Assembly of SR BiH (of 14 October 1991), on

24 October 1991 the Assembly of Serb People in BiH was formed in an unconstitutional manner,Also, on 18 November 1991, the Croat Community Herceg-Bosna was formed, see Durakovi Nijaz,Prevara Bosne (Deception on Bosnia), Sarajevo, DES, 2004

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recognized as a state consisting of two entities: the Republika Srpska and the Federation ofBiH.33

It is crucial to note that the signing of the agreement considerably jeopardized 1% of

the territory of BiH - the pre-war municipality of Brko, which both sides wanted to be partof their respective Entities. Thus, the Constitution provided for the arbitration with regardsto the disputed area. Nevertheless, a final agreement between the political representatives ofthe Federation of BiH and the Republika Srpska was reached only in the mid of 1999; inaddition to the Entities, the Brko District was allocated to the State. However, theConstitution of BiH was not amended at that time either. Neither a single amendment wasadded to the Constitution although the wording of this document provides this possibility.

At the tenth anniversary of the Dayton Peace Agreement (2005), under the immenseinternational community pressure, the BiH politicians signed a declaration of intent toimplement the constitutional reforms. On that occasion, the agreement was reached that theprocess would be completed by the end of March 2006.34 However, during that period only apartial success was achieved. The political parties succeeded to agree only about setting uptwo new state-level ministries, for agriculture and technology and the environment. Theparties also agreed to concede more decision-making powers to the Council of Ministers andto improve scrutiny of human rights.

The proposed changes, more precisely the amendments to the Constitution, were notadopted as no agreement was reached with respect to the reform of two Houses of Parliament,the reduction of authority vested in the tripartite Presidency and abolishment of rotationsystem.

2.2 Human rights

The fact often disregarded by the criticizers of the Dayton Constitution is that thisconstitution has its good and bad sides. The advocates of a completely new constitution putemphasis on its bad sides. However, those considering that it could be amended under thegiven political circumstance disregard its good annexes which have been implemented onlypartially.35 All elements of the applicable Constitution have eventually become the matter ofconcern for the citizens of BiH. Therefore, at least an attempt should be made to look at theconstitutional provisions from the point of view of an ordinary citizen.

33On 20 December 1991 the Government and the Presidency of RBiH submitted the request to theEuropean Community for recognizing Bosnia and Herzegovina as independent and sovereign state,see ibid.34 The negotiations or agreements regarding changing or ammending the Constitition are provided forunder Article III/5 a) of the Constitution of BiH, whih reads as follows: Bosnia and Herzegovina shallassume responsibility for such other matters as are agreed by the Entities; are provided for in Annexes5 through 8 to the General Framework Agreement; or are necessary to preserve the sovereignty,territorial integrity, political independence, and international personality of Bosnia and Herzegovina,in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina.Additional institutions may be established as necessary to carry out such responsibilities.35 In 2005 the Social Democratic Party (SDP) drafted the proposal for changing and amending theConstitution of BiH. During 2006, the SDP, together with seven biggest political parties, supported the

so-called April package of amendments. Contrary to the aforesaid political options, there was the Partyfor BiH that rejected the proposal, which did not pass the parliamentary procedure.

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For instance, in its introductory part (the Preamble) the Constitution of Bosnia andHerzegovina guaranties enjoyment of human rights to the constituent peoples (the Bosniaks,Croats and Serbs) and the citizens of BiH.36 This guarantee is confirmed in Article II (humanrights and fundamental freedoms), which paragraph 2 includes the rights and freedoms setforth in the European Convention for the Protection of Human Rights and Fundamental

Freedoms and its Protocols thereto that are directly applicable in Bosnia and Herzegovina.The mentioned acts have priority over all other law. Human rights and insisting on thecomprehensive protection and application of the provisions under the Convention for theProtection of Human Rights are the elements which, at the first sight, match the constitutionsof the European countries.

The Constitution of Bosnia and Herzegovina guarantees the protection of human rightsand freedoms in several of its provisions and therefore a violation of the constitution in thatpart may be the most noticeable. Contrary to the aforesaid, it is a fact that Annex IV has goodprovisions which are partially implemented. The conclusion is drawn that the issues, inregards to which the implementation authority is bound by the Constitution, are very often

resolved formally, not effectively.The demographic picture of Bosnia and Herzegovina, after comparing the situation of

1991 with the current one in 2007, is the best indicator of whether the implementation of theDayton Peace Agreement was formal or effective. According to the official statistics ofUNHCR, out of 2.2 million refugees (the number of refugees at the time when the DaytonPeace Agreement was signed), 1,025,000 refugees returned to their pre-war homes. However,according to the field analysis of the Union of the Associations of Refugees and DisplacedPersons in BiH, only one third of 1, 025,000 persons who repossessed their properties actuallyreturned to their pre-war homes.37

Discrimination and ineligibility to enjoy health protection or other essential rights are

some of the reasons why the returnees do not return to their pre-war homes. A verydemanding inter-entity administration, very often, makes it impossible for the returnees toexercise their rights as regulated a long time ago in 1961 on the Old Continent by theEuropean Social Charter - according to which each individual is entitled to health protection.The aforementioned right has been regulated formally few years ago under the agreementsigned between the Entities. However, given a huge bureaucratic apparatus, the things simplydo not function on the ground.

According to the opinion of both legal and medical experts, including those dealingwith the issue of returnees to their pre-war homes, the problems may be solved by theestablishment of a state-level ministry of health, which means that an agreement should bereached between two Entities to establish a state-level ministry, which is, again, provided forunder the applicable Constitution.

36 The following is written in the Preamble: Based on respect for human dignity, liberty, and equality,dedicated to peace, justice, tolerance, and reconciliation, convinced that democratic governmentalinstitutions and fair procedures best produce peaceful relations within a pluralist society; Desiring topromote the general welfare and economic growth through the protection of private property and thepromotion of a market economy... Further, it is written that: Bosniaks, Croats, and Serbs, as constituentpeoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution ofBosnia and Herzegovina is as follow.

37 The fact that the last census in BIH was conducted in 1991 leaves ample room for speculations since there hasbeen no official knowledge of the drastic changes made in the demographic picture of BiH.

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2.3 The Constitution of BiH and a citizen

In the study which is titled The reasons for amending the Constitution of BiH-Declaration on the Need for a Reform of the Constitution of BiH and Organisation ofFederal Republic, inter alia, the conclusion was made, as follows: The things that were

necessary and life-saving for the cessation of war - the recognition of Entities and directingthe attention to the division of competencies between two entities among each other andwith regard to BiH, has become, over time, insurmountable obstacle for achieving the highestgoals and values which have been defined in the Constitution of BiH, particularly in itspreamble and in Article II (Human rights and fundamental freedoms), including theinternational standards and agreements, non-discrimination, rights of refugees and displacedpersons to freely return to their homes. 38

The non-discrimination clause from Annex IV, Article II, and political everyday life ofpeoples and citizens of Bosnia and Herzegovina is another example from which a conclusionmay follow that all residents of BiH, depending on a part of the country they live in, areexposed to discrimination.

The aforementioned article, paragraph 4, provides as follows: The enjoyment of therights and freedoms provided for in this Article or in the international agreements listed inAnnex I to this Constitution shall be secured to all persons in Bosnia and Herzegovinawithout discrimination on any ground such as sex, race, colour, language, religion, political orother opinion, national or social origin, association with a national minority, property, birth orother status.

However, in reality, it looks as follows: in the Republika Srpska the Bosniaks andCroats are not equal to the Serbs, and the same applies to the Serbs in the Federation whencompared with the Bosniaks and Croats. The fact that term citizen is only mentioned in the

Preamble of the Constitution is extremely symptomatic because, for example, a Bosniakresiding in the RS is not entitled to stand as candidate at the elections for the member of theBiH Presidency. This was shown in practice during the elections in 2006 when a candidate ofthe Party for BiH, Nijaz Pilav, was prevented from doing so. On the other hand, a Jew orRoma in Bosnia and Herzegovina is not entitled to stand as candidate at the elections for themember of the BiH Presidency. That right was taken away from all citizens of Bosnia andHerzegovina who do not declare themselves as the members of one of the constituentpeoples of BiH. That is to say that if an individual is not a part of the existing model of theconstituent peoples, for example if he/she declares himself/herself as Bosnian, he/she cannotpursue his/her political ambition in the existing constitutional-legal organization.

In the study of the Human Rights Centre of the University in Sarajevo, which is titled

The Process of Constitutional Reforms in BiH, the decision of the Constitutional Courtfrom 2001 is referred to, according to which: at all levels of government for which theircandidates are nominated, the political parties are obliged, and that hasnt been the case so far,to comply with the principles of the Decision on the Constituent Status of Peoples, No. U-5/98 being primarily based on the 1991 census. Bearing in mind Article I/2 of the Constitutionof Bosnia and Herzegovina, which stipulates that Bosnia and Herzegovina shall be ademocratic state, which shall operate under the rule of law and with free and democraticelections, the obligation of political parties is clear regarding the compliance with theDecision on Constituent Status of Peoples and bearing in mind the fact that therepresentatives, i.e. the candidates of political parties will be, in fact, executing the authority38

Deklaracija o nunosti izmjena Ustava Bosne i Hercegovine i o ustrojstvu FederalneRepublike Bosne i Hercegovine, (Declaration on the Need for a Reform of the Constitution of BiH andOrganisation of Federal Republic of Bosnia and Herzegovina), Osloboenje, Sarajevo, 12 July 2003

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after the completion of free and democratic elections. Otherwise, the political parties failing tocomply with these principles will bring themselves into a danger that the achieved electionresult will not match the number of mandates to be assigned to the respective party within apertinent legislative body.

A substantial problem of the Dayton Constitution of BiH is the inconsistency of itsprovisions on establishment of governmental authorities with the constitutional provisionssafeguarding human rights in accordance with the European Convention and, eventually, withthe Preamble itself. This provision is also confirmed by the fact that Article IX, paragraph 3,reads as follows: Officials appointed to positions in the institutions of Bosnia andHerzegovina shall be generally representative of the peoples of Bosnia and Herzegovina. Ifthe aforementioned provision relates to the constituent peoples, which is clearly shown inpractice, then preventing a citizen, who does not consider himself/herself a member of suchpeople, from being elected to the public office obviously collides with the Europeanstandards referred to in the introductory parts of the Constitution.

2.4 Economic development

The often-heard criticism is that the Constitution is to be blamed for the economicsituation in the country. However, even in the preamble of the currently applicableConstitution it is, inter alia, stated: Desiring to promote the general welfare and economicgrowth through the protection of private property and the promotion of a market economy...However, it is evident that the economic situation in the country tends to worsenprogressively over the years. During the last decade several scientific studies have beenwritten identifying the spots in the Constitution that may jeopardize the development of theeconomy in Bosnia and Herzegovina.

The Declaration on the need for amendments to the Constitution of BiH, published

four years ago (in 2003), on the basis of scientific indicators, reads that the presentorganisation of the state has been partially the cause of deteriorating economic situation. Theywarned that this may lead to an outburst of social revolt, which, no doubt, had alreadyhappened after the last elections (in 2006) that is evident another process, also adestructive one, occurred, which is even more threatening for a post-war state. According tothis study, the mentioned warnings are a phenomenon such as a new post-war wave ofrefugees from BiH which is an additional risk from white plague.

In concrete terms, economic experts in Bosnia and Herzegovina have warned for yearsagainst contradictory and discouraging laws which slow down economic development of thecountry. A deterrent in the development of Bosnia-Herzegovinas economy are the state and

Entities laws which are oftentimes conflicting, but they are also inconsistent with theConstitution of BiH. According to the data of the BiH Employers Association, there are3,500 conflicting laws in Bosnia and Herzegovina. The consequence of this situation is a tradedeficit of 40 billion convertible marks over the last six years (2000-2006); more than half amillion of unemployed and almost 40% of poverty-stricken population living on 6 convertiblemarks per day.

In the last year the conflicting laws affected the profitable industrial branches such astobacco as well as pharmaceutical industries. The example which has been most frequentlymentioned in the public lately is the state Law on Excise Duty which has been in force since2005, and the Tobacco Law of the Federation of BiH - from 2002. Therefore, according to thedata of the Indirect Taxation Administration, the state budget loses 3 million convertiblemarks daily. Another example is, until recently, the Law in Civil Engineering of theFederation of BiH, according to which 2% of the investments ought to be set aside for the

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payment of taxes for nuclear shelters. A week after this provision had been renderedineffective at the entity level, it was readopted at a cantonal level.

A legal remedy for this situation exists. Under Article III, paragraph 5 of theConstitution of BiH the laws which are inconsistent with the constitutional and legalorganisation ought to be amended. It is suggested that the Entities, six months after thesigning of the Dayton Peace Agreement, ought to start working on, among other things,building a common economic space. In practice, twelve years after the signing of thisagreement, the implementation thereof has failed to take place.

2.5. Positive example: Brko District of BiH

Twelve years ago (in 1995) when the conflicting parties had almost reached acompromise, 1% of the territory (in the North) of Bosnia and Herzegovina was at issue -Brko. Nowadays this area is being referred to as the most promising part of the country. Howdid Brko earn a good reputation?

A dispute which arose in 1995 over the territory of the Brko District, resulted in anagreement on the arbitration thereof and the founding of an Arbitration Tribunal. The finaldecision was passed only in the mid 1999. Experts agree that the one who deserves mostcredit for the success of this community is the American arbitrator, a diplomat Roberts Owen.Namely, he made a decision for Brko to be placed under the international supervision, to bedemilitarised, that a special legal framework be built therein, that a multi-ethnic educationsystem be organised, and that the first local elections be held only four years after theestablishment of the District.39 The issue which has remained unresolved is theinstitutionalisation of the Brko District through a new or the existing Constitution. Theofficial data of the Government of the District published in Brko Distrikt BiH - 2000-2007, according to the last census in BiH from 1991, read that 87,332 inhabitants lived in

this area. According to the same source, unofficial estimates mention the figure of 100,000inhabitants at present. 1,000 vacancies are announced in this territory every year.

3. ANALYSIS OF THE DOMESTIC PROPOSALS FOR THE

CONSTITUTIONAL REFORM

The tenth anniversary of the Dayton Peace Agreement was accompanied by initiativesfor the enactment of a new or amendments to the old Constitution of BiH.

The liberal-democratic option for enactment of a new Constitution of BiH argues itsvalidity by a 15-year long paralysis of democracy in BiH, for which the historicalresponsibility lies on the three largest national parties along with their factual fellows-travellers, regardless of how they call themselves. It is believed that the time has come nowfor a new attempt (election-wise or otherwise) to establish a democratic, liberal, legal, socialand constitutional state of BiH, on the principle of the sovereignty of a citizen an individual,irrespective of his/her religious, political, ethnic/national affiliation, his/her sexual and otherorientation, his/her cultural and social affiliation...40

Initially groups of intellectuals were drawing attention for years to the inevitability ofchanges of the constitutional and legal organisation, following which, in 2005 wishing toanimate politicians a group of young intellectuals published the Constitution of the Federal

39 The first post-war elections in BiH had taken place in September 1996, eleven months after the

signing of the Dayton Peace Agreement.40 Sekuli, Boidar, Budunost Ustava BiH (Future of the Constitution of BiH), Nezavisne novine,Banja Luka, 2005.

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Republic of Bosnia and Herzegovina in the periodical edition of the ACIPS magazine NewPerspectives41. The signatories of this proposal are Mithat Izmirlija and Dennis Gratz.Almost at the same time, the Constitution of Bosnia and Herzegovina by authors: azimSadikovi, Omer Ibrahimagi and Zlatko Hadidedi, was introduced. The third proposal forthe constitutional and legal establishment of the country the Constitution of the Republic of

Bosnia and Herzegovina42

was prepared by ahbaz Dihanovi, Slavo Kuki, StaaKoarac, Mirko Pejanovi, Vehid ehi and Miodrag ivanovi. The sole political partywhich offered a concrete proposal for amendments to the existing Constitution was the SocialDemocratic Party of BiH. The proposal for amendments to the Constitution of Bosnia andHerzegovina43 was forwarded into the parliamentary procedure by the SDP representativesJozo Krianovi, Zlatko Lagumdija and Selim Belagi. This proposal did not go through theparliamentary procedure.

A study which was published in 2006 by the Human Rights Centre of the Universityof Sarajevo, Process of constitutional changes in BiH, reads that the enumerated initiativescan be considered solely in normative terms because ... another step is missing, and that is

de facto action on the part of the state bodies, as these texts have no legal force whatsoever.Any attempt to analyse these texts must, in the end, prove insufficient, because it does notcontain all elements on the basis of which one could give an anywhere near serious estimateof their being in line with the universally acknowledged democratic standards.44

The analysis of the proposed constitutional changes, as a commendation for theinitiative put together by Izmirlija and Gratz, emphasises that the basic shortcoming of thisproposal is that it, unlike the current Constitution, omitted the notion citizen. Shortcomingsof this proposal are the same as those of the present Constitution. The treatment of the notionconstituent peoples is identical, whereas it is not clear at all as to what the notion Othersconstitutes. The mentioned study reads as follows: All undoubtedly positive elementscontained in this text notwithstanding, it suffers from elementary shortcomings which the

present Constitution of Bosnia and Herzegovina also incorporates the foundation of the stateexclusively on the principle of sovereignty of the constituent peoples, who are an unavoidablefactor in taking all decisions; which would again bring about the blockage of effectivedecision-making and the establishment of effective governmental institutions, which are ableto meet challenges and the needs of a society in transition as is the case with Bosnia andHerzegovina.

On the other hand, the Constitution of the Federal Republic of Bosnia andHerzegovina, as far as it concerns the rule of law, made a significant and important stepforward with respect to organising the state and enabling procedures for efficient operation ofthe institutions. This text, unlike the proposal signed by Izmirlija and Gratz, prescribes the

establishment of a Supreme Court which would bring about a substantial progress withrespect to the establishment of a single judicial system and the harmonisation of the case lawin the entire territory of BiH.

The study reads that the Constitution of Bosnia and Herzegovina, proposed andsigned by Sadikovi, Ibrahimagi and Hadidedi is beyond reproach. It was estimated

41 Novi pogledi (New Perspectives), No. III, ACIPS, Sarajevo, 2004.42 Dihanovi, ahbaz, Platforma za novi demokratski Ustav Republike Bosne i Hercegovine(Platform for a new democratic Constitution of the Republic of Bosnia and Herzegovina), Sarajevo,2005.43 Social Democratic Party of BiH, Prijedlog izmjene i dogradnje Ustava Bosne i Hercegovine

(Proposal for amendments to the Constitution of Bosnia and Herzegovina), Sarajevo, 2005.44 Proces ustavnih promjena u BiH (Process of the Constitutional Changes in BiH), Human RightsCentre of the University of Sarajevo, Sarajevo, 2006.

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that the future Constitution of Bosnia and Herzegovina, including elaboration on orspecification of some of the provisions, might look like this text.45

Precisely the picture of an ideal social constitutional and legal system is itsfundamental shortcoming. The reality of BiH has been disregarded. Unfortunately, it is hardto expect that the Constitution of Bosnia and Herzegovina will come to acknowledge, in theforeseeable future, the values that this text incorporates - a citizen that is as a holder ofrights and obligations, or a nation for that matter made up of citizens as a holder ofsovereignty, the well-functioning of the institutions, territorial organisation.

The third proposal, the Constitution of the Republic of Bosnia and Herzegovina, hasseemingly stricken a balance between the principles of the sovereignty of citizens asindividuals and peoples as collectives. This text too prescribes the establishment of a SupremeCourt of the Republic of Bosnia and Herzegovina as a holder of the rule of law and of aharmonised case law, and prescribes democratic rules for the election of legislative bodies,which may satisfy fundamental principles of a well-functioning state authority and ofsafeguarding the rights of citizens.

The Proposal for Amendments to the Constitution of Bosnia and Herzegovinaaccepted all positive elements of the current Constitution and envisaged amendments to theparts which, in the opinion of the author, prevent general progress of Bosnia andHerzegovina. It envisages the restoration of balance ... between the need to protect collectiverights of the constituent peoples, with a substantial reduction of those rights, and the need tohave the efficiently functioning institutions. (...) It introduces three levels of authority:multiethnic regions are introduced in the stead of the Entities, the authorities of the state areexpanded, and authorities of the regions are reduced to the issues peculiar for the local self-government, etc.

It is important to mention that none of the analysed initiatives for amendments to the

constitutional text has been seriously considered, nor has it affected the preparation of the so-called April package of amendments (which we will continue to talk about in the text tofollow), which the International Community offered in 2006 to the political leaders in Bosniaand Herzegovina.

4. ANALYSIS OF THE FOREIGN PROPOSALS FOR THE

CONSTITUTIONAL REFORM

4.1. Council of Europe

Since Bosnia and Herzegovina has become a full member in 2004 of this eldest Pan-

European intergovernmental organisation, opinions and recommendations of its bodies,although non-binding in legal terms, are certainly the most significant indicator of a directionin which BiH has to move, if wishing to adopt the European standards and the integrationwithin a broader European context.

The European Commission for Democracy through Law (Venice Commission), as anadvisory body operating within the Council of Europe, since 2001 to date, has issued severalopinions on the most important constitutional and legal issues that BiH has been facing sincethe signing of the Dayton Agreement in 1995. The Partial Decision III of the ConstitutionalCourt of BiH, from 2000, declared the provisions of the Entities Constitutionsunconstitutional, in the parts relating to the constituent peoples of the Republika Srpska,

and of the Federation of BiH. The Constitutional Court decided that, in accordance with the45 Ibid.

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Preamble of the Constitution of BiH, all three constituent peoples (Bosniaks, Croats andSerbs) are equal and constituent throughout the entire territory of Bosnia and Herzegovina. Inits Opinion46, issued in March 2001, the Venice Commission holds that the Decision of theConstitutional Court of BiH enables the full protection of the rights of all citizens of BiH andthe full participation of citizens, of any ethnic origin, in the political sphere of both Entities.

However, in the part of the Opinion related to the Federation of BiH, the Venice Commissionexpresses a reservation about a tendency that, by merely declaring the Serbs or even Othersas the constituent peoples of the Federation of BiH, the scope of the special group rights isbeing broadened, so as to distribute political positions through this system, at the expense ofthe democratic principle of the will of the majority expressed at the elections. An obviousalternative to this view would be to simply abolish the special group rights and to give equalrights to all citizens, which is the practice in the majority of the European countries.

The Opinion of the Venice Commission47, from March 2005, on the constitutionalsituation in BiH and the powers of the High Representative (OHR), amongst other things,stresses that it is hard to imagine that BiH can make any substantial progress on the path of

advancing towards the European Union with the currently applicable constitutionalarrangements. First and foremost, one may observe a problem when comparing the powers ofthe state of BiH with the powers of other European countries with a federal organisation, suchas, for instance, Switzerland, Belgium, Austria, Germany or Russia.48 In all these states,unlike in BiH, the legislative powers are, to the largest extent, concentrated at the federallevel, there is a strong federal executive authority, the financial sources are mainly controlledby the federal authorities, and the federal judiciary looks after the application of the federallaws throughout the entire territory of the state. In that sense, the central element of theconstitutional reforms should include the transfer of powers from the Entities to the State ofBiH. Further, the veto mechanism for the protection of vital interests should be specified morenarrowly and precisely in order for it not to constitute a hindrance in the system of decision-

making, and the executive authority should be strengthened by concentrating it in the Councilof Ministers of BiH; and the Presidency of BiH, as the Head of State, should be reduced to amere representative body which is befitting of the standardised European parliamentarysystem. The Venice Commission even goes on to propose the establishment of a head of stateas a sole head of state with the reduced powers, to be indirectly elected by the Parliament ofBiH; and the dissolution of the House of Peoples, with the transfer of the veto mechanism forthe protection of a vital interest to the House of Representatives. Given that the dissolution ofthe Republika Srpska as an Entity, does not appear to be a realistic option for the timebeing, the Venice Commission proposes the transfer of powers from the cantonal level to thelevel of the Federation of BiH as an Entity, in order to bring both Entities into a comparableposition.

46 European Commission for Democracy Through Law (Venice Commission), Opinion on the Implications ofPartial Decision III of the Constitutional Court of Bosnia and Herzegovina in Case U 5/98 on the Issue of theConstituent Peoples, CDL-INF (2001) 6.47 European Commission for Democracy Through Law (Venice Commission). Opinion on the ConstitutionalSituation in Bosnia and Herzegovina and the Powers of the High Representative, CDL-AD (2005), 004.48 It is possible for one to notice in this text, as well as in many other foreign study papers, that BiH has beentreated as a federative, that is a federal state. In reality, this point of view is wrong because Bosnia andHerzegovina is organised, in constitutional and legal terms, as some sort of a hybrid state sui generis with theelements of confederalism, which constituent elements are: one unit with a federal organisation (Federation ofBiH), one unit with a unitary organisation (Republika Srpska) and one autonomous district (Brko). Everyfederation is made up of three levels of authority (central, middle/regional and local), whereas in BiH, in the

territory of the Federation of BiH there are four levels of authority (the state of BiH, the Federation of BiH,cantons, municipalities). For a more detailed insight into the system of federalism, see Stanford Encyclopedia ofPhilosophy, Federalism, 2006, Web Page, URL: http://plato.stanford.edu/entries/federalism/, 3 August 2007.

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Although the proposed reforms, since they move within the framework of thepolitical realism, do not offer substantial change of the principles on which the Daytonarchitecture of BiH is based (the so-called constituent peoples, that is the principle of apartial, ethnic/group representation of political interests), it is nevertheless necessary toacknowledge the principles that the Venice Commission recommends in the long run for a

goal-oriented action in building Bosnia and Herzegovina that is compatible with the Europeanvalues.

First of all, the interests of persons not belonging to either of the three constituentpeoples are being systematically neglected, or such persons are being forced to artificiallyidentify themselves with one of the three peoples, although they are maybe of mixed origin,that is to say they belong to another category. Moreover, in this kind of a political system,every political issue inevitably comes under the scrutiny of the interests of a specificconstituent people, and is assessed on the basis of whether the proposed solution is in apartial interest of that Entity which is viewed from an ethnic point of view, and not on thebasis of whether it constitutes a solution for a common or public good. Finally, within this

context, not even the free democratic elections can execute their basic role enabling theexpression of political views and the choice among different political programs and platforms,as well as between the majority in power and the opposition. Unlike the political membership,ethnic affiliation is, in principle, not subject to change, thus a person has difficulties to decideto give his/her vote to a possibly better political program in general, if he/she views therepresentative of such a program as exclusively or mainly a member of the other constituentpeople, or of a group viewed from an ethnic point of view. Due to the aforementioned, theso-called multi-party system based on an ethnic representation appears to be wrong inessence.

In the end of this Opinion, the Venice Commission recommends, in the long run, thechange of the constitutional principle from a state viewed as a conglomerate of three equal

constituent peoples to a state viewed as a community of equal citizens. If the interests ofindividuals in a society are mainly based on ethnicity, the development of a broader sense ofbelonging to nationhood49 is threatened.

The Venice Commission issued a new Opinion50 in March 2006, and it concerned areply to different proposals regarding the election of the members of the Presidency of BiH.During negotiations amongst the parties on the proposals for constitutional amendments, thepolitical parties from BiH prepared three proposals for the election of the members of thePresidency. Although none of the proposals considered the preliminary Opinion of the VeniceCommission on a single president of BiH, as a head of state with the reduced powers, to beindirectly elected by the Parliamentary Assembly of BiH, the Commission nevertheless

decided to single out out of the three proposals put forward, the Proposal III as the best one.This proposal prescribes the keeping of the Presidency as a collective organ, with thefunctions of a President and two Vice-Presidents, to be indirectly elected by the ParliamentaryAssembly of BiH. Shortcomings of the proposal were particularly observed in the complexprocedure of the election of candidates to both houses of the Parliament, where the caucusesof representatives of the constituent peoples again call the shots, thereby practically making

49 The original reads nationhood, which is a notion that is impossible to be literally translated into thelanguages of the peoples of BiH. The translator of the work of Adrian Hastings Construction of Nationhood(Buybook, Adami, 2003) translated it as izgradnja nacionaliteta. Without disputing this translation attempt,and understanding the nationhood as a property, that is the total population belonging to the nation-state, thatis to the state/political nation within the meaning of the notion nation-state, for the sake of clarity we have

opted for the notion used in the text.50 European Commission for Democracy Through Law (Venice Commission), Opinion on Different Proposalsfor the Election of the Presidency of Bosnia and Herzegovina, CDL-AD, (2006) 004.

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it impossible for anyone from amongst Others to be elected as a member of the Presidency,and in the incomplete statement of the very criteria for the allocation of the positions of thePresident and Vice-Presidents.

Finally, the Venice Commission issued in April 2006 a Preliminary Opinion on theDraft Amendments to the Constitution of Bosnia and Herzegovina51, which were agreed on bythe main political parties from BiH, with a mediation of the representative of the UnitedStates Embassy in Sarajevo. The reform package, in brief, provides for a greater number ofpowers of the State of BiH, which contributes to the process of integration into the EuropeanUnion and brings BiH closer to the situation which we find in other European states with afederal organisation. The solution offered in the package increase the efficiency of the stateinstitutions through the strengthening of the position of the Council of Ministers and theHouse of Representatives, and by way of reducing the powers of the Presidency of BiH andthe House of Peoples. Although a substantial number of the recommendations of theCommission were disregarded, an emphasis is put on the positive signal which has been sentto the European Union that BiH is determined to make concrete steps towards the European

integration. This reform package of constitutional amendments, however, failed to receive anecessary number of votes in the parliamentary procedure of the adoption thereof.

4.2. European Union

Joining the European Union is a strategic goal of Bosnia and Herzegovina, which thepolitical leaders of this country continuously emphasise every time they address the public,both international and national. Given a considerable discrepancy between their statementsand the real political activity, it seems that these politicians are not always aware of theseriousness of the integrations process and of everything that the state of BiH has to fulfil inorder to meet the conditions for the signing of the Stabilisation and Association Agreement,

as a first significant step on the path to joining the European Union.We recall, the European Union was formed by the Maastricht Treaty in 1992 whereby

the fundamental, the so-called community pillar made up of the European (Economic)Community was expanded to two cooperation pillars: in the field of the common foreignand security policy, and in the field of justice and cooperation in criminal matters. So, thecommunity pillar constitutes a specific legal structure sui generis, wherein the member statesof the European Union renounce part of their sovereignty voluntarily in favour of the commoninterest represented by the authorities of the Union (European Parliament, Council of theEuropean Union, European Commission, Court of Justice...), thereby overcoming the scope ofclassical international law. Given that the integration brings together the European countries,each of which possesses a different historical, cultural, geographic and political identity, and

which had oftentimes been in bitter conflicts in the past, a question arises as to which are thecommon European values around which such different countries can and wish to cometogether. Finally, the countries of the Western Balkans, including Bosnia and Herzegovina,which, at the Salonika Summit in 2003, were unequivocally shown perspective of joining theEuropean Union in future, display oftentimes an ambivalent attitude toward Europe, interms of their accepting/rejecting something referred to as the European values, where theEuropean standards of conduct should arise from. A look at the Preamble of the consolidatedversion of the Treaty on the European Union, from 200252, may reveal the fundamental valuesit concerns, and they are summarised here for easy reference:

51 European Commission for Democracy Through Law (Venice Commission), Preliminary Opinion on the Draft

Amendments to the Constitution of Bosnia and Herzegovina, CDL, (2006), 027.52 Consolidated Version of the Treaty on European Union, Official Journal of the European Communities(2002/C 325/01).

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the historic importance of the ending of the division of the European continentand the need to create firm bases for the construction of the future Europe;

attachment to the principles of liberty, democracy and respect for human rightsand fundamental freedoms and of the rule of law;

attachment to fundamental social rights;

deepening the solidarity between their peoples while respecting their history,their culture and their traditions;

enhancing further the democratic and efficient functioning of the institutions;

the strengthening and the convergence of their economies and to establish aneconomic and monetary union;

promoting economic and social progress, taking into account the principle ofsustainable development and environmental protection;

establishing a citizenship common to nationals of their countries;

creating a common foreign and security policy including the progressiveframing of a common defence policy, reinforcing the European identity,promoting peace, security and progress in Europe and in the world;

the free movement of persons, by establishing an area of freedom, security andjustice;

creating an ever closer union among the peoples of Europe, in which decisionsare taken as closely as possible to the citizen in accordance with the principleof subsidiarity.

If one attempted to apply the mentioned values, with certain adaptations, to theinternal situation in Bosnia and Herzegovina, it would be possible to argue that only a minornumber of these principles were being consistently complied with and applied in practice.Therefore, it seems reasonable to warn the BiH public against a mere fact: if Bosnia andHerzegovina, as a relatively small country, with less than four millions of inhabitants, isunable to adopt the European values referred to in the Maastricht Treaty or apply theEuropean standards of conduct, its future, as an EU member, is not certain at all, in spite ofthe statements and wishes of the local politicians and citizens!

As far as the specific requirements of the European Union are concerned, regardingthe constitutional structure of the State of BiH, let us first mention the Stabilisation andAssociation Report, from March 2003.53 Already in the introductory part of this document, theEuropean Commission emphasises the necessity for Bosnia and Herzegovina to become aself-sustaining state54, without which it will be unable to meet the basic needs of its citizensregarding security, the established freedoms and economic prosperity nor will it be able tointegrate into the European structures. The report commends the agreement of the politicalparties on the implementation of the Decision of the Constitutional Court of BiH on theconstituent peoples from 2000, albeit it emphasises an irreplaceable role that the High

53 Commission of the European Communities, Bosnia and Herzegovina Stabilisation and Association Report2003, Brussels, 2003, COM(2003), 139 final54 In the original version self-sustaining state, see ibid., p. 3.

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Representative has played by availing himself of his powers and by exerting a politicalpressure on the local actors.

The fact that these constitutional amendments to the Constitutions of the Entities haveimposed representation of each constituent people in each Entity government, administrationand judiciary, thus advanced the national integration26 and considerably affected thedynamic of local and national politics27 is considered as an important progress in the report.As noted in the report, by reminding of the constitutional set-up, which means that EntityParliaments have vital legislative role, in general these Parliaments have functionedefficiently, only occasionally adopting legislation at variance with that passed at State level.28

In the part of the report referring to the human rights and protection of minorities, thesignificance of the Constitutional Courts decision on constituent peoples representing animportant advance in formally securing citizens civil and political rights throughout BiH29 isreiterated.

In November 2005, the European Commission made a Proposal for a CouncilDecision On the Principles, Priorities and Conditions Contained in the European Partnership

With Bosnia and Herzegovina.30 The European Partnership was introduced at the Summit ofthe European Council in Thessaloniki in 2003 when the European perspective of theWestern Balkan countries was effectively supported as a means to materialize this objective.The priorities contained in the European Partnership are consisted of a list of tasks dividedinto certain areas, which the authorities of BiH must accomplish in order to meet therequirements for additional financial support by the European Union through the CARDSProgram. The priorities are divided into short-terms priorities (which are expected to beaccomplished within 1-2 years) and medium-term priorities (which are expected to beaccomplished within 3-4 years). Among the issues relevant to the constitutional reform, thefollowing ones are, inter alia, identified:

1. Among the short-term priorities:31

Ensure that all State-level ministries and institutions are adequately financed,operational and properly equipped.

Take steps to provide Bosnia and Herzegovinas Parliamentary Assembly withsufficient technical resources and personnel.

Further improve and strengthen State-Entity coordination by establishing regular andinstitutionalised mechanisms for coordination between the State and the Entities.

Amend electoral legislation regarding the Bosnia and Herzegovina Presidencymembers and the House of Peoples delegates, to ensure full compliance with the European

Convention on Human Rights and the Council of Europe post-accession commitments.Ensure the merger of the State and Entity Ombudsmen.

Establish the Market Surveillance Agency at the State level.26 In the original text national integration, see ibid., p. 5.27 In the original text local and national politics refer to the nation-state level of the central authority.28 It is significant to note that in this period the European Commission regards as a success the fact thatthe Entity Parliaments only occasionally adopted legislation at variance with that passed at State level,see ibid., p. 6.29 Ibid., p. 11.30 Commission of the European Communities, Proposal for a Council Decision On the Principles,

Priorities and Conditions Contained in the European Partnership With Bosnia and Herzegovina,Brussels, 2005., SEC (2005.) 1422.31 Ibid., pp. 5-9.

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Set up the Insurance Agency of Bosnia and Herzegovina.

Bring banking supervision to the State level.

Adopt and start implementation of the Agreement between the Entities in the statisticalsystem on the improvement of the work of a central statistical agency in Bosnia and

Herzegovina.2. Among the medium-term priorities:32

Ensure continued progress in taking full national responsibility for policy formulationand decision-making.

Increase the capacity for progressive legal harmonisation with the acquiscommunautaire.

Establish a State-level Office for Narcotics.

The members of the European Parliament, at a hearing held by Foreign AffairsCommittee in October 200533, concluded that the Dayton Constitution should be changed

drastically as it outlined its purpose and was preventing the peoples of BiH from assumingresponsibility for further political and economic development. Ms. Doris Pack, who chairsParliaments delegation for relations with countries of South East Europe, pointed out that thesituation was complex, that there was still a lot of mutual distrust and that ethnic identity stillplayed too big role; Representatives of the political parties seemed willing to change theconstitution but there was no consensus on the priorities regarding the changed in theconstitution.

The report with a proposal for a European Parliament reform to the Council on Bosniaand Herzegovina was adopted in February 2007.34 Unlike previous reports of the institutionsof the European Union, this report represents a strongly worded criticism of the constitutional

set-up, political situation in BiH and national political forces which are the cause of age-longstagnation with regards to these issues.

Taking into account, inter alia, that

BiH is now moving towards European integration and thereby necessitatingconstitutional changes;

the last years package of constitutional amendments contains a number ofproposals which strengthen state-level powers;

those proposals do not reform the Entity veto mechanism, notwithstanding that

this mechanism can seriously obstruct the work of BiH's Parliament; in the near future deep reflection should be undertaken among the different

components of society in BiH on how to transcend the rigid ethnic division ofthe country so as to reform its structures and make it more flexible andcompatible with the European democracies;

32 Ibid., pp.11-15.33 European Parliament, Constitution of Bosnia-Herzegovina Needs to Be Changed, 2005. Web Page,URL:http://www.europarl.europa.eu/news/expert/infopress_page/030-1373-284-10-41-903

20051012IPR01372-11-10-2005-2005-false/default_en.htm, 4 July 2007.34 European Parliament, Report With a Proposal for a European Parliament Recommendation to theCouncil on Bosnia-Herzegovina, rap. Doris Pack, 2006., A6-0030/2007.

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the persistence of strong ethnic divisions within BiH shows the need for a moreintegrated, non-segregationist, modern education system in the country,

The European Parliament,

Reminds BiH's political leaders of the urgent and important reforms they need to

undertake, notably with regard to the State's Constitution, the judiciary, the publicadministration, the business environment, the educational sector, the phytosanitary andveterinary areas and the environmental field;

Believes that the constitutional debate should be relaunched immediately, building onthe achievements made so far, but involving

an in-depth review of the Entity veto mechanism, which should apply only toissues falling under the shared responsibility of the State and the Entities;

a clear, exhaustive and at the same time narrow interpretation of the concept of'vital national interests' so as to prevent any ethnically motivated misuse of therelated veto instrument for purely obstructionist purposes;35

a more courageous streamlining of BiH's administrative structures with a viewto simplifying and accelerating the decision-making process;

Believes that this debate should be conducted in public, with the participationof civil society and national and international experts; considers that publicopinion must be involved in this process so that the final outcome is owned andrecognised as legitimate by everybody;

Invites BiH's Parliament to consider establishing a committee with the specific

task of drawing up comprehensive proposals for constitutional reform; Takes the view that the European Union, under the aegis of the EU Special

Representative, should play a leading role in re-launching the constitutionaldebate;

Is concerned by the persisting ethnic barriers in BiH, which hamper thedevelopment of a national identity;36 takes the view that the constitutionalarrangements in the Dayton Agreement make it more difficult to remove suchbarriers; recalls that the EU experience is that a common identity is fully

35 On 6 July 2007 the Assembly of the Posavina Canton failed to adopt the Law on Police Officers.Given the fact that the Draft Law referred to the unconstitutional term upanija, the Caucus ofBosniak Delegates invoked the vital national interest and refused to give the affirmative vote.According to the previous practice, however, a number of acts were adopted despite the termupanija so that the conclusion may be deduced that an important law was challenged not because ofbad or good solutions to the matter it deals with but because of political manipulation and abuse of thevital national interest veto. Information available at the EU Police Mission BiH (EUPM); see alsohttp://posavina1.blog.hr/arhiva-2007-07.html#1622880952.36 In the original text national identity; see ibid., p. 7 item 20. This term indeed refers to the nationof Bosnia and Herzegovina, still inbuilt in State/political terms, not the nation or nationality incultural/ethnic terms, which is still advocated in the region of Balkans. When it comes to theterminology, it is interesting to note that the terms carte nationale didentit in the French languageand national identity card in the English language are indicated on the BiH identity document (the

so-called CIPS project) between the name of the State and the BiH coat of arms. A literal translationof these terms leads us to the conclusion that every holder of this document is simultaneously theholder of the Bosnia-Herzegovinas national identity.

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compatible with respect for the cultural and religious traditions of theconstituent peoples;

Warns, therefore, against any attempt to carve out, inside BiH, mono-ethnicterritories; reminds BiH politicians that the international community will not

tolerate any measure or policy undermining, directly or indirectly, the multi-ethnic character, the territorial integrity, the stability and the unity of BiH andof its entities; calls on the High Representative for Bosnia-Herzegovina toremain particularly vigilant in this respect and to be more robust in promotingthe re-integration of refugees and displaced people throughout the territory ofBiH, and, in particular, in the Republika Srpska, which has a disappointingrecord as regards returns of refugees and displaced persons.

Finally, in a press release dated 15 March 2007, the European Parliament outlined thatduring a debate on the report prepared by Doris Pack, the need for BiH to change the currentConstitution that divided the country, to end nationalism mentalities and the need for BiH tobecome a unified State37 - able to look after its own citizens if it ever wanted an EU future -

were highlighted.In the end of this section which states recommendations and views of the European

Unions institutions with regards to the constitutional reform in BiH, we also quote theparagraphs contained in the Report which Mr. Javier Solana, the EU High Representative forthe Common Foreign and Security Policy and Mr. Ollie Rehn,38 the EU Commissioner forEnlargement submitted to the Council of European Union in October 2006. Among politicalobjectives of the European Union concerning BiH, the following ones are, inter alia,emphasized:

To ensure a stable, viable, peaceful, and multiethnic Bosnia and Herzegovina

co-operating peacefully with its neighbours and irreversibly on track towardsEU membership;

to help build effective and functional state structures fit for Europeanintegration;

To contribute to peace and stability in BiH and support the countryssovereignty and territorial integrity, which will include a first stage of progresson constitutional reform;

The revised EUSR mandate, after OHR, should include offering political advice andshould facilitate political and legal processes, in particular with respect to constitutional

reform.As the High Representative in Bosnia and Herzegovina is also EU Special

Representatives, speeches given by departing High Representative and new HighRepresentative in June 2007 may be regarded as political guidelines of the European Union.When giving his farewell speech before the representatives of the Parliamentary Assembly of

37 In the original text unified state, see European Parliament, Bosnia-Herzegovina: Still Divided butHopes for the Future, 2007., Web Page, URL:http://www.europarl.europa.eu/news/public/story_page/030-3958-071-03-11-90320070308STO03947-2007-12-03 2007/default_en.htm, 4 July 2007.38 Summary Note on the Joint Report by Javier Solana, EU High Representative for the CFSP, and

Ollie Rehn, EU Commissioner for Enlargement, on a Reinforced EU Presence in Bosnia andHerzegovina. Brussels: Spokesperson of the Secretary General, High Representative for CFSP, 2006.S286/06.

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BiH,39 Mr. Christian Schwartz-Schilling outlined, inter alia, that the OHR would not imposeany constitutional solutions; that the strategy of ownership of reforms 40 must be a gradualprocess which, in the end, leads to democratisation and nation-building; 41; that theConstitution can only be amended by a decision of the Parliamentary Assembly; that allpublic figures must respect the fact that the State of BiH and both its entities are

multinational communities of three constituent peoples;42

that the applicable Constitution iscomplicated and inefficient state structure that does not yet fit modern constitutional standardsand that it is time to reform the constitution and develop a stable, self-sustainable and efficientstate structure for BiH; On 29 June 2009 Mr. Miroslav Lajak, the newly appointed HighRepresentative told the Financial Times43 that we need to move from post-war arrangementsto the most normal possible constitution given the circumstances; that politicalnormalcy is the pre-condition for sound economic development and foreign direct

investment and that you cannot impose normalization.

4.3 European Stability Initiative (ESI)

In an article entitled Imposing Constitutional Reform? The Case for Ownershippublished in 2002, at the time of discussions on the contents of constitutional amendmentsafter the Constituent Peoples Decision had been rendered, the analysts of this organizationwarned about far reaching consequences of an imposition by the OHR.44 According to theiropinion, there was so little conviction among international observers that the proposalscurrently on the table will succeed in transforming Bosnian political life. Are the interests ofthe Bosnian people really advanced by constitutions which further entrench ethnicity as thebasis of representation? Will their quality of life be improved by extending mutual vetoesacross every level of government? Does changing the ethnic composition of the RepublikaSrpska government really guarantee that the interests of Bosniak and Croat returneecommunities will be better defended?

In a report published in January 2004, which was entitled Making Federalism Work A Radical Proposal for Practical Reform, the ESI advocates for the abolishment of theFederation and the constitutional category of Entity. The result would be a simplified,three-layered federal state composed 12 equal, autonomous, federal unities (the ten cantons ofthe current Federation, Republika Srpska and the District of Brko). This would represent afundamental change to the structure of the state, turning it into a normal, European federalsystem with central, regional and municipal governments, with the preservation of theexisting internal boundaries between 12 regions45. By way of comparison between the RS,Canton of Tuzla and Brko District, the ESI supports the hypothesis that despite obvious39 Office of the High Representative, Speech by the High Representative and EU SpecialRepresentative Christian Schwarz-Schilling at BiH Parliament, 2007., Web Page, URL:http://www.ohr.int/ohr dept/presso/presssp/default.asp?content_id=39948. 4 July 2007.40 In the original text ownership, see ibid.41 In the original text democratisation and nation-building, see ibid. In the translation in the Serbianand Bosnian language, available at the same web-page, see demokratizacija i izgradnja nacije. As tothe problems regarding the terms, see previous footnotes.42 In the original text multinational communities of three constituent peoples, see ibid.43 Financial Times, Bosnia Must Move Beyond Dayton Accords, 2007., Web Page. URL:http://search.ft.com/ftArticle?queryText=bosnia&y=0&aje=true&x=0&id=0 70629012725, 4 July2007.44 European Stability Initiative, Imposing Constitutional Reform? The Case for Ownership: A Discussion Paper,

Berlin/Sarajevo, 2002.45 European Stability Initiative, Making Federalism Work - A Radical Proposal For Practical Reform,Berlin, 2004

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anomalies relating to the names, territory and number of inhabitants, there are functionallyequivalent federal units (regions) in the future organization of BiH.46 Insisting on the need foraccelerated vertical state-building, the ESI explains four typical perspectives on the state-building, which could be called Sarajevo, Banja Luka, Tuzla and West-Herzegovinaperspective. Although at first sight they seem in bitter conflict between radical centralism and

autonomy-related separatism, the ESI argues that among these four models, a commoninterest could be found, which would lead to federalization of BiH in terms of strengtheningboth the central State and regional powers of federal units according to the pattern of federalsystems of Switzerland and Germany. 47

In February 2004, the ESI published a new analysis Waiting for a Miracle? ThePolitics of Constitutional Change in Bosnia and Herzegovina, in which it points to asignificant response to their proposals for constitutional reform by the national political actorsand BiH press. By pointing to the positive reaction by a number of political subjects, the ESIalso took a look at those negative reactions, particularly criticism coming from Sarajevo. Thisdiscourse precisely advocates for abolishment of the current Entities, cantons and the whole

architecture of the Dayton Constitution in order for the State to be built from the verybeginning, with new internal boundaries between regions based on historic, geographic andeconomic criteria. 48

According to the ESI analysts, creating a shared vision of a common Bosniancitizenship is a key part of the state-building process. The question is, how would it best beachieved? For good negotiators presenting their case in terms of practical interests, thereshould be no end of constructive solutions to be found. However, this requires a willingnessto combine a vision of Bosnia's common future with an understanding of presentconstitutional realities, and to pursue an incremental process of negotiated change. This leadsto a striking paradox: despite their radical rhetoric, the opponents ofgradualreform in theFederation end upde facto as defenders of the constitutionalstatus quo.49

4.4 International Commission on the Balkans

Almost a century ago, the first International Commission on the Balkans hadpublished its first report as a result of an inquiry into causes of the Balkans Wars of 1912 and1913. The Carnegie Endowment for International Peace republished that report entitled TheOther Balkan Wars in 1993. Two years later, a new International Commission on theBalkans was formed and was presided over by Leo Tindemans, and a report entitledUnfinished Peace analysed the war and post-war situation after the wars in the formerYugoslavia. About ten years later, the Commission was formed for the third time, and, underthe chairmanship by Guilian Amat, it published a new report entitled The Balkans in

Europes Future. Unlike the previous ones, this report includes analytical contributions by anumber of distinguished authors and experts from the region.

In a chapter dedicated to Bosnia and Herzegovina, the Commission points to asignificant progress in the stabilisation of the situation in the period of 10 years after thesigning of the Dayton Peace Agreement but notes that at the moment of drafting the Report(2005) BiH is among the most isolated countries of Europe and the only important European

46 Ibid., p. 347 Ibid., pp. 5-8.48

Waiting for a Miracle? The Politics of Constitutional Change in Bosnia and Herzegovina.Berlin/Sarajevo, 2004.49 Ibid., p. 9

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organisation that Bosnia has been able to join is the Council of Europe. 50 Most of theproblems arise from the constitutional solutions which are, according to the Commission,dysfunctional. Furthermore, the Commission highlights that political actors agree that thepresent system of federalism51 in Bosnia and Herzegovina is inefficient, which is due to theabsence of a coherent structure of regional government. The Commission recommends a

reform of the federal system adapted to the local communities in BiH in order fordevelopment and healthy competition between them to be encouraged. As to the role of theHigh Representative, the Commission notes that as long as the Bonn powers of the HighRepresentative exist, they form the core of post-war Bosnia's unwritten constitution, and allpolitical calculations are shaped by them. The Commission therefore proposes that the HighRepresentative should be replaced by EU Negotiator who can play the role of honest broker inthe constitutional negotiations.

The Commission advocates the necessity of incremental change. Any process ofconstitutional development must necessarily begin with what is there at present. This meansstarting from the present reality of Bosnia's federal system of government52 in accordance

with the Dayton Constitution. What is essential, however, is a process of systematicallyclarifying responsibilities across all levels of government, and ensuring that (financial)resources are matched to these responsibilities. The EU accession process will provide therequisite incentives for the strengthening of the state's federal structures and for thedevelopment of policy-making capacity.

4.5 International Crisis Group (ICG)

This organization has intensively followed and analysed the process of peaceimplementation since 1996 and, not infrequently, severely criticized both national andinternational actors of the political process of the BiH institutions building. Among a great

number of reports by this Group, for the purpose of recommendations for constitutionalchanges in BiH, we will place the emphasis on the following two ones:

In April 2002 the ICG published a report entitled Implementing Equality: TheConstituent Peoples Decision in Bosnia and Herzegovina.53 The introductory part of the reportpoints to the view that the Dayton model of three constituent peoples and two entities isinherently unstable. It can be pushed in one of two directions: towards recognising the right ofthe third and smallest people, the Croats, to have their own mini-state, or towards makingboth entities truly and effectively multinational. The "constituent peoples" decision representsthe best means to reform the existing entities within the Dayton architecture and to moveBosnia in the second direction. Among recommendations of the ICG, we emphasize thefollowing ones:

The constitutional reforms now under discussion must provide equal protectionfor "constituent peoples" and citizens throughout the country.

Fair representation of the constituent peoples and "others" in the governmentsof both entities.

50 International Commission on the Balkans, The Balkans in Europes Future, 2005, p. 24.51 In the original text system of federalism, see ibid. In this document, the Dayton system of BiH isconsidered as a federal one, which is problematic in terms of theory of federalism.52 In the original text federal system of government, see ibid.53

Implementing Equality: The Constituent Peoples Decision in Bosnia & Herzegovina,Sarajevo/Brussels, 2002., Europe Report N128.

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The requirement that no one constituent people hold more than two of six topentity positions (premier, speaker/president of the National Assembly/House ofRepresentatives, chair of the House/Council of Peoples, president of theconstitutional court, president of the supreme court, and entity publicprosecutor).

The "others" must be adequately represented in the RS Council of Peoples andthe Federation House of Peoples.

Constituent peoples and others must be adequately represented in judiciaryand the other public institutions of the entities, including the administration ofthe entity, the cantons and the municipalities according to the 1991 census.

Vital interests" must be defined in the same way in both entities and,ultimately, at state level.

In February 2007, the ICG published its report, the last one so far, which is entitled

Ensuring Bosnias Future: A New International Engagement Strategy.54

The report comes ata time when the High Representatives future mandate is being discussed, along with plansfor the closure of the Office of the High Representative and the transfer of the responsibilityto national political actors in respect of the reform process. As the situation on the politicalscene in BiH, after the 2006 general elections, demonstrated the immaturity and incapabilityof local political subjects to assume their responsibility for progress towards Europeanintegration, the report concludes that it is still too early to think about the withdrawal ofinternational actors in BiH and that the present role and authority of the High Representativeought to be gradually transferred to the European Union Special Representative, who wouldfully implement the guidelines set forth in Brussels. The ICG underlines that it is time for theEuropean Union, which has always been viewed as the ultimate anchor for a stable Western

Balkans, to become the active core of the international effort in the country. The notions thatBosnia, which is still badly scarred by the 1992-1995 war, could be treated as any othercountry applying for EU membership and that the mere attraction of membership at a distantdate would suffice to overcome its polarising ethnic nationalism dissolving the society andcountry have proven mistaken. Hence, the European Union has to deploy new and differentpolicy tools to keep peace implementation and progress toward membership on track.

The ICG recommends, inter alia, the following:

The closure of the OHR by the end of 2007 and the transfer of all itsresponsibilities, less the Bonn powers, to the European Union, to be exercised through itsSpecial Representative (EUSR);

The EUSR, along with the local partners, should focus on completion ofconstitutional reform;

The EUSR should be provided with a mandate, which would includeresponsibility for monitoring and encouraging implementation of the Dayton Peace Accordsand facilitate further progress towards EU membership pursuant to the Stabilisation andAssociation Process.

4.6. Recommendations by Swiss experts

54 Implementing Equality: The Constituent Peoples Decision in Bosnia & Herzegovina,

Sarajevo/Brussels, 2002, Europe Report N180.

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In April 2005, the Embassy of Switzerland in Bosnia and Herzegovina and the SwissAgency for Development and Cooperation (SDC), in cooperation with the NezavisneNovine, launched a project titled BiH Platform aimed at stimulating discussion about thepolitical future of BiH and intensifying dialogue on constitutional issues as well as informingthe wider public about possible constitutional changes. Here we present the opinion of several

persons who took part in the project.Urs Breiter, the Ambassador of Switzerland to Bosnia and Herzegovina, holds that the

present Constitution of BiH poses obstacles for BIH on its path towards the European Union.55 The fact that the Constitution was adopted without the participation of BiH citizens is itsbasic deficiency. In his opinion, the most controversial parts of the Constitution are thefollowing: the insufficient and poorly defined responsibilities of the central authorities and therelationship between the central authorities and lower levels of government; the complex stateorganisation is too expensive and inefficient; the inadequate division of powers between thePresidency of BiH and the Council of Ministers of BiH; group rights are given priority overindividual rights; and a poorly defined veto mechanism for protecting vital national interests.

As to the comparison that has been often made between BiH and Switzerland, as amultinational state, Breiter underlines that it relates to a wrong notion, as Switzerland is onenation consisting of various cultural, linguistic and religious groups; he also advocates thedevelopment of a common space in BiH where its peoples would then be able to identifythemselves with the country as such.

Rene Holestein, the Director of SDC, also highlights the necessity that a newconstitution of BiH must not be imposed from outside. He also underlines the models ofsuccessful development of direct democracy in Switzerland, federalism and economic andsocial integration of regions and minorities, which should be taken into account whenamending the Constitution of BiH.56 The principle of direct democracy, which secures theimportant rights to the Swiss citizens to propose legislation and constitutional changes, and

federalism, as a form of government, instigate the culture of consensus. A common economicspace is also important for political integration of the country and amending the Constitutiondoes not necessarily mean loss for any of the peoples

In reference to the three theoretical models of constitution making (1. through thepresent Parliament, 2. through a special constitutional council, and 3. through an expertgroup), Georg Kreis highlights the best solution is the second option.57 Through theconstitution making process, thus, by adopting the constitution through their representatives,the people become a constitutional people. The constitutional people should bedifferentiated from an ethnic people. Through this process in BiH, a political i.e. statenation, as a constitutional nation, would be made up out of the three ethnic constituent

peoples and that process represents a piece of art. State nations live as long as they wish tolive together in unity and their wish is based on local patriotism, which encourages a personto understand that living in ones own country is better than living in a foreign country. Inorder for the constituent peoples in BiH to develop that feeling, they must be convinced thatsuch a state and political nation does not constitute any threat to them but, on the contrary,that it is their protector. The state nation has to secure, through the constitution, both thegroup rights of the constituent peoples and the individual rights of citizens. Bosnia and

55 Breiter, Urs, Dayton Constitution: Obstacle on path towards Europe, The Future of theConstitution of BiH, Nezavisne novine, 2005, pp. 6-7.56 Holstein, Rene, Changes do not mean loss, The Future of the Constitution of BiH, Nezavisne

novine, 2005, pp. 4-5.57 Kreis, Georg, BiH Needs the Constitution in order to join the EU, The Future of the Constitutionof BiH, Nezavisne novine, 2005, pp. 14-15.

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Herzegovina has to make a modern constitution in order to able to integrate, as a developedstate nation, into the supranational European Union.

Nicolas Hayoz, the Professor at the University of Fribourg, underlines the example ofBelgium, which has reshaped its political system through federalisation, as a possible modelfor BiH.58 Although a new federal state in BiH has to be built on the basis of consensus of thethree peoples, nevertheless, this process will have to be carried out under EU pressure and thecontinuous perspective of EU membership for BiH. The completion of the standardsannounced in Brussels increases the pressure for structural reforms, such as, for example, thecreation of new institutions. On the other hand, nationalist policies attempt to maintaindysfunctional structures of the present system and the European Union will have to observethe constitutional reform process. Bearing in mind that there is an evident scepticism ofcitizens towards the institutions in BiH, a good constitution may rebuild the citizens trust inthe institutions.

5. OVERVIEW OF THE CONCRETE RECOMMENDATIONS BY

FOREIGN ORGANISATIONS AND EXPERTS

This part of the report presents an overview of the most important recommendations,opinions and comments given by the international organisations and experts, among whichthere is a consensus on the issue relating to the constitutional reform process in BiH.

5.1. Basic constitutional principle the subject of sovereignty

Al

european movement for european constitution

Documents