The unclear position of EU member states on the required modifications to Bosnia and Herzegovina’s constitution has further contributed to the country’s deepening political deadlock.
By Bedrudin Brljavac
Bosnia and Herzegovina (hereinafter, ‘Bosnia’ or ‘BiH’) has been facing almost two decades of political, economic and administrative paralysis due to, amongst other systemic reasons, slow and insufficient progress on constitutional reform. Bosnia’s political elites are expected to implement necessary changes to the country’s constitutional framework as an important part of its Europeanising reform process; a process which can not continue without the much-expected constitutional reforms. For instance, BiH can not join the EU without ensuring that its current constitution is more democratic and inclusive, especially towards members of minority groups.
However, since local ethnic politicians hold opposing views on the question and shape of constitutional reform, it has proved difficult to reach a compromise on the necessary constitutional changes. Similarly, the unclear position of EU member states on the required modifications to Bosnia’s constitution has further contributed to deepening the country’s political deadlock.
Furthermore, it is difficult to say that EU member states had a common stance on the Bosnian war, since they were paralyzed and ineffective, and did not develop any constructive and visible policy instruments towards the crisis; even as new developments took place at their doorstep. While many expected this conflict to be an opportunity for the EU to prove its diplomatic and political strength in conflict-affected regions, the result was just the opposite. The Yugoslav conflict clearly demonstrated the global balance of power; proving Europe’s lack of commitment and military instruments, whilst emphasizing the US’s key peace-making role. Thus, peace to Bosnia was brought mainly by intensive mediation and diplomatic efforts by US officials designing the Dayton Peace Agreement (DPA) as the country’s future legal framework. EU member states played only a rather symbolic role during the negotiations. Even then, EU member states demonstrated serious divisions in their respective national interests, leading to the lack of a coherent position on global affairs. Today the situation is not much different when EU activities on the international stage are considered, as has been seen in Bosnia.
The Dayton Agreement – discriminatory and dysfunctional
The Dayton Agreement established the Constitution of BiH in an annex of the Agreement, dividing the country into two Entities – the Bosniak/Croat Federation of BiH (mainly controlled by the Bosniaks and Bosnian Croats), and the Republika Srpska (mainly governed by the Bosnian Serbs). Both country’s entities have their own political and administrative structures. The Federation of BiH is divided into three levels – the entity, cantonal and municipal levels; highly-decentralized in political and administrative terms, making it financially infeasible and open to increased political corruption. The RS does not have a cantonal level, making it more centralized in administrative and political terms.
Overall, the DPA has succeeded in keeping BiH as an independent and sovereign country, with a joint multi-ethnic government that represents it in international bodies. The current political system is a product of the DPA. Although the DPA brought the war to an end and laid the foundations for a stable peace, the agreement has proved rather insufficient and inappropriate for fostering a genuine democracy and self-sufficient state. Furthermore, the DPA has divided the country along ethnic lines; further increasing inter-ethnic hatred and mistrust.
In terms of both democratic inclusiveness and administrative effectiveness, therefore, Bosnia’s post-Dayton constitutional framework has proved rather deficient. According to the current constitution, for instance, the candidacy of “others” or members of minority groups for the presidency and House of Peoples is blocked. These positions are structured to be filled by the three largest ethnic groups; the so-called ‘constituent’ peoples (i.e. Bosniaks, Serbs, and Croats). These posts have been “nationalized” by the three ethnic groups, which is accepted as the only rule of the game.
However, in December 2009, the European Court of Human Rights (ECHR) in Strasbourg – during the famous Finci-Sejdić case – decided that preventing members of minority groups from high office is a clear discriminating act. Therefore, Bosnia’s discriminatory constitution is blocking its progress towards the EU. Without making the changes required by the ECHR’s judgement, Bosnia can not even aply to became an EU candidate.
In addition, the administrative framework built into the DPA leaves Bosnia’s burdened with a cumbersome, economically unsustainable and fragmented bureaucracy. The total number of ministers, for example, including at the state and entity levels, is 155. Such bureaucracy produces unnecessary duplication and an obvious loss of money.
However, two years on from the ECHR’s historic ruling, Bosnia’s politicians are yet to remove discriminatory provisions from the constitution due to their radically different ethnic interests. Instead, the respective political elites are trying to find a solution to the problem of discrimination against minority groups by strengthening the positions of their respective ethno-national groups. Paradoxically, ethnically-focused politicians are making political calculations so that they further empower the nationalistically-based state model, rather than being sensitive to, and responsible towards, those discriminated minorities.
It is clear that a Europeanization process has not made Bosnia a more democratic and more tolerant society. Its discriminatory constitution and treatment of minorities continues to block its EU’s aspirations. With respect to its administrative framework, meanwhile, very little progress has been made in terms of making the state government stronger and more functional. The EU has long sought a stronger state government with whom to conduct more effective negotiations and establish better bilateral relations. Despite the rise in central state competences, it remains weak and dysfunctional. As a result, the current state administration is still unable even to successfully implement the acquis communautaire.
The Copenhagen and Madrid Criteria as a European Standard
In terms of both administrative and democratic governance, Bosnia’s constitution is in urgent need of reform; without which, it can not move towards the EU. Bosnia’s government has to implement European democratic and effective administration standards; based on both the Copenhagen and Madrid criteria, respectively, which set the standards that define whether an applicant country is eligible to enter the EU. The Copenhagen criteria states that, among other things, each candidate country has to achieve stable institutions guaranteeing democracy, the rule of law, human rights, and respect for, and protection, of minorities. The Madrid criteria, meanwhile, requires applicant countries to adjust their administrative structures to successfully implement EU reforms. The main objective of these two structural criteria is to make any EU aspirant democratic, stable, economically self-sufficient and well-organized in administrative and legal terms.
As with other candidate and potential candidate countries, Bosnia is expected to carry out reforms to achieve these two criteria. In fact, this process is better known as the ‘Europeanization process’, which has become significant part of Bosnia’s political reality. As defined by Grabbe, Europeanization is a) construction, b) diffusion, and c) institutionalization of formal and informal rules, procedures, policy paradigms, ‘ways of doing things’ and shared norms which are first defined at EU-level and then incorporated into the national discourse, identities, political structures and public policies.
The Europeanization process is an all-encompassing transformation that refers both to reform processes and changes in the mentality of state structures and lives of ordinary citizens. It is the EU as an attraction force that should clearly stress what reforms are necessary and what standards must be implemented for a country’s EU aspirations to stay alive. A Europeanization process is a two-way street; it therefore depends on the role and commitment both of the EU aspirants and the EU member states.
Europe divided on Bosnia’s Constitution
In terms of the necessary constitutional changes, however, the EU has not defined concrete standards and measures that should be adopted by Bosnia’s government in order to make its constitution more democratic and more functional. Although EU politicians and diplomats have often stated that Bosnia cannot realize its EU membership aspirations if it does not make some sort of constitutional modifications, they have not clearly stressed what are the most important changes required and expected. Instead, Europe’s leaders expect Bosnia’s politicians to decide on the necessary changes and how they should look.
Such an ambiguous position can be attributed to manipulation of both the Copenhagen and Madrid criteria, which can be comprehended in many different ways by different actors. Since the EU has not, so far, explained what the Copenhagen and Madrid criteria mean with respect to constitutional reform in Bosnia, domestic politicians have been interpreting these two criteria from the angle of exclusively ethnic-nationalist positions. Instead of having ‘one European standard’ that has to be implemented into domestic structures, there are now three ‘ethnic standards’ that politicians determined themselves.
EU member states do not have a common position and they do not ‘speak with a single voice’ with respect to constitutional reform in Bosnia. Although unofficially he supported the idea, the European Commission president, José Manuel Barroso, once pointed out that constitutional reform was not a condition for signing the SAA with the EU. In addition, Welner Almhofer, the Austrian Ambassador to Bosnia, claims that the EU had never set constitutional reform as a condition for BiH’s EU membership. On the contrary, the former EU Enlargement Commissioner, Olli Rehn, stressed in November 2005 that “constitutional evolution” was extremely important for Bosnia to make progress towards joining the EU.
Obviously, the EU does not have a clear-cut answer to Bosnia’s deadlock, believing that the mere process of European integration will help solve the country’s political and economic problems. However, the process of European integration is understood by the three ethnic communities in three different ways. As a result, the Bosnian Muslims want to enter Brussels as a country with a strong and powerful central state, Bosnian Croats support a highly-decentralized country, whilst Bosnian Serb leaders see Bosnia in the EU as a weak central state with strong entities. Obviously, the EU should set the standard to solve the Bosnian impasse.
Conclusion and recommendations
A long-lasting status quo on constitutional reform in post-war BiH has been one of the most challenging problems facing the country. As domestic politicians hold different views on how the future constitution should look, it has proved rather difficult to reach a compromise on the necessary changes. European diplomats expect Bosnia’s political elites to agree on constitutional changes that will satisfy all three ethnic groups, yet they know that this is mission impossible.
Whilst the Copenhagen and Madrid criteria clearly define the measures and standards that have to be implemented by domestic politicians, EU member states have not demonstrated a common position on required constitutional changes. Indeed, EU member states remain as divided as Bosnia’s politicians over the design and content of the constitution. As Nerzuk Curak from the University of Sarajevo points out, Bosnia is a different and unique country aspiring to become an EU member, and it should be treated by the EU in a different and exclusive way. If the EU aspires to become a more credible global actor it should speak with single voice about the political and social problems taking place on its doorstep.
Bedrudin Brljavac is a PhD candidate at the department of political science at the University of Sarajevo. His doctoral project is titled, “The European Union as a Global Civilian Power (GCP) – its Impact on the Transformation of Modus Operandi of International Relations”. He has regularly written columns for national and international magazines and daily newspapers, such as Dnevni Avaz, Novi Horizonti, Turkish Weekly and Open Democracy.