Wider Europe
Policy Brief
August 10, 2009
Summary: To become a member
of the European Union, Bosnia
and Herzegovina must be capable
of meeting the responsibilities
that go with membership. Bosnia
and Herzegovina’s institutions of
government today resemble the
“ethnofederalist” institutions of
the former Yugoslavia, just as its
current constitution resembles
Yugoslavia’s 1974 constitution.
Without strong institutions and with-
out the subordination of its cultural
cleavages and its center-region
conflicts to central governmental
authority, the country could fall
apart. Even if the country does stay
together, Bosnia and Herzegovina’s
constitution must evolve, for the
demands of European integration
will place new responsibilities on
the state. The purpose of consti-
tutional reform, then, should be
to strengthen the central institu-
tions of representative democratic
governance; to set out a clear and
workable division of responsibili-
ties between the regional and the
central governments; and to bring
the country into conformity with its
international obligations.
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The Purpose of Constitutional Reform in
Bosnia and Herzegovina
by Douglas Davidson1
Any change of government which has to
be introduced should be one which men,
starting from their existing constitution,
will be both willing and able to adopt,
since there is quite as much trouble in
the reformation of an old constitution as
in the establishment of a new one, just as
to unlearn is as hard as to learn.
- Aristotle, Politics, 1289a1
It is of great importance in a republic, not
only to guard the society against the
oppression of its rulers, but to guard one
part of the society against the injustice of
the other part. Justice is the end of
government. It is the end of civil society…
In a society, under the forms of which
the stronger faction can readily unite and
oppress the weaker, anarchy may be as truly
said to reign as in a state of nature, where
the weaker individual is not secured
against the violence of the stronger; and
as, in the latter state, even stronger individ-
uals are prompted by the uncertainty of
their condition to submit to a government
which may protect the weak as well as
themselves, so, in the former state, will the
more powerful factions be gradually
induced by a like motive to wish for a
government which will protect all the
parties, the weaker as well as the more
powerful.
- James Madison, Federalist 51
1
Ambassador Douglas Davidson is a visiting distinguished fellow with the German Marshall Fund of the United States (GMF). The
views expressed are those of the author and do not represent the views of GMF.
To become a member of the European
Union, Bosnia and Herzegovina must be
capable of meeting the responsibilities that
go with membership. Any country wishing
to join the Union must have stable institu-
tions that guarantee democracy, the rule
of law, human rights, and respect for and
protection of minorities; a functioning
market economy with the capacity to cope
with competition within the Union; and the
ability to take on the obligations of mem-
bership, including adherence to the aims of
political, economic, and monetary union.
Bosnia and Herzegovina cannot now fulfill
these requirements. Nor is it now able to
comply with the commitments it has made
to the Council of Europe, the United
Nations, and other international bodies.
Bosnia and Herzegovina’s decentralized
government is often compared to that of
other consociational states, such as
Switzerland and Belgium. But, as the
European Commission for Democracy
Through Law, which is better known as “the
Venice Commission,” has noted: “First of
all, it is obvious that the responsibilities of
the State of Bosnia and Herzegovina cannot
be compared with the powers enjoyed by
European federal states such as Switzerland,
Belgium, Austria, Germany, or Russia.
In these countries legislative powers are
concentrated at the federal level, there is a
strong federal executive, financial resources
are mainly controlled by the federal level
and federal courts insure respect for federal
Wider Europe
Policy Brief
law. None of this applies in BiH. With such a weak state Bosnia
and Herzegovina will not be able to make much progress on the way
towards European integration.”2
This weakness of the state of Bosnia and Herzegovina is a conse-
quence of its postwar foundation. The Dayton Agreement created
a minimal number of central government institutions and con-
structed those it did create so as to guarantee equal representation
to all three constituent peoples and to provide a means to protect
the “vital national interests” of each. Over time, a series of changes
to the governing structures of the country created new institutions
of central government and strengthened other already-existing
ones—though the principal of equal “national” representation and
the protection of vital interests remained. But, because the already-
existing institutions at the lower levels of government did not
diminish, much less disappear, as some had expected, the division
of responsibility for policymaking in certain areas between the State
and the Entities became increasingly unclear. This lack of clar-
ity more and more hinders the efficient functioning of all levels of
government.
Coordination between the different levels of government is now
minimal as well. A dispute has even lately arisen over whether com-
petencies ceded by the entities to the state can be recaptured and
reassumed. But even with these transferred competencies securely
guaranteed, the state would still lack certain attributes necessary
for Bosnia and Herzegovina to become a member of the European
Union. For instance, as the European Commission’s latest progress
report points out, the central government lacks any competency
in employment and social policies. As a result, labor legislation
varies by entity and canton, and almost nowhere complies with EU
provisions on health and safety at work. The report also notes that,
although Bosnia and Herzegovina has recently ratified the revised
European Social Charter, it has made “no significant progress” in
providing equal access to social protection, while “rights to health
insurance and other social protection, including unemployment
benefits, continue to depend on which Entity and, to some extent,
which Canton the claimants live in.”3
The judicial system, too, lacks cohesion and hierarchy. This prevents
courts from ensuring respect for state law. At least four judicial
jurisdictions—the State, the Federation of Bosnia and Herzegovina,
the Republika Srpska, and the Brčko District—currently exist;
each operates independently of the others. The country also has
14 Ministries of Justice, each with its own budget and employees.
2
European Commission for Democracy Through Law, Opinion on the Constitutional Situation in
Bosnia and Herzegovina and the Powers of the High Representative, Adopted 11-12 March, 2005.
3
Commission of the European Communities, “Bosnia and Herzegovina 2008 Progress Report,”
Brussels, November 11, 2008.
2
Although each entity has a Supreme Court, the state does not, even
though—or perhaps precisely because—a Supreme Court at the
level of the state might alleviate the current judicial confusion by
harmonizing the application of legislation across the four jurisdic-
tions.
Bosnia and Herzegovina’s institutions of government today resem-
ble the “ethnofederalist” institutions of the former Yugoslavia, just as
its current constitution resembles Yugoslavia’s 1974 constitution. As
did the Socialist Federative Republics of Yugoslavia’s, Bosnia-Her-
zegovina’s constitution recognizes two kinds of national groupings
—constituent peoples and national minorities – and accords prefer-
ence to the former. This effectively denies equal representation and
protection to the latter. But because Bosnia and Herzegovina has
also ratified a number of international human rights conventions,
not least the European Convention for the Protection of Human
Rights and Fundamental Freedoms, certain provisions of the Day-
ton Constitution are therefore now inconsistent with the provisions
for human and minority rights protection in these conventions.
To be sure, the Dayton Constitution itself incorporates most of these
human rights conventions. It also explicitly states that these con-
ventions supersede domestic legislation. Article II.2 of the Dayton
Constitution, for instance, states this: “The rights and freedoms
set forth in the European Convention for the Protection of Human
Rights and Fundamental Freedoms and its Protocols shall apply
directly in Bosnia and Herzegovina. These shall have priority over
all other law.” Article II.4 further states: “The enjoyment of the rights
and freedoms provided for in this Article or in the international
agreements listed in Annex I to this Constitution shall be secured to
all persons in Bosnia and Herzegovina without discrimination on
any ground such as sex, race, color, language, religion, political or
other opinion, national or social origin, association with a national
minority, property, birth, or other status.” In addition, Annex I lists
additional human rights conventions to be applied to Bosnia and
Herzegovina. These include the 1965 International Convention on
the Elimination of All Forms of Racial Discrimination, the 1966 In-
ternational Covenant on Civil and Political Rights and the 1966 and
1989 Optional Protocols thereto, the 1966 Covenant on Economic,
Social and Cultural Rights, the 1979 Convention on the Elimination
of All Forms of Discrimination against Women, and 1994 Frame-
work Convention for the Protection of National Minorities. Bosnia
and Herzegovina is thus effectively in violation of its own constitu-
tion as well as its international obligations.
Wider Europe
Policy Brief
Provisions of Bosnia and Herzegovina’s elections law, too, violate the
European Convention on Human Rights (ECHR). The way in
which Bosnia and Herzegovina’s tripartite presidency is chosen, for
instance, contravenes Protocol 12 of the ECHR because it limits
those eligible to run for the presidency to the three constituent
peoples and then further limits and specifies the ethnicity of each
candidate who can be elected from the entities.
Similar problems exist with the House of Peoples. Rather than
operating as the kind of upper house of a bicameral legislature
that commonly exists in other federal governments, “[t]he main
function of the House of Peoples,” the Venice Commission notes,
“…is… as the chamber where the vital interest veto is exercised…”
The House of Peoples is principally a “veto chamber,” with its fifteen
members principally occupied primarily in defending the interests
of their particular constituent people. “It would therefore seem
preferable,” the Venice Commission argues, “to move the exercise
of the vital interest veto to the House of Representatives and abolish
the House of Peoples.” (If the people of Bosnia and Herzegovina
wished to retain a bicameral legislature despite this advice, they
could, of course, also consider making the House of Peoples into a
more “advisory” chamber in the manner of upper houses in other
parliamentary federal republics instead.) The Venice Commission
additionally believes that “…a precise and strict definition of vital
interest in the Constitution is necessary… It should not be exces-
sively broad but focus on rights of particular importance to the
respective peoples, mainly in areas such as language, education, and
culture.”
“[I]n Yugoslavia, as in all federal systems,” writes Beverly
Crawford, “the preservation of the state depended on the
strength of institutions that encourages loyalty to the central
government.4 It further depended on the subordination of
cultural cleavages, ideological disputes, socioeconomic divisions,
and center-region conflict to central governmental authority.”
The same holds true for Bosnia and Herzegovina, which in many
ways remains a miniature Yugoslavia today. Without strong in-
stitutions and without the subordination of its cultural cleavages
and its center-region conflicts to central governmental authority,
that center may not to hold; the country could even fall apart.
Even if the country does stay together, Bosnia and Herzegovina’s
constitution must necessarily evolve, for the demands of Euro-
pean integration will place new responsibilities on the state. The
purpose of constitutional reform, then, should be to strengthen
the central institutions of representative democratic governance;
4
Beverly Crawford, “Explaining Cultural Conflicts in Ex-Yugoslavia: Institutional Weakness, Economic
Crisis, and Identity Politics,” The Myth of “Ethnic Conflict”: Politics, Economics, and “Cultural” Vio-
lence, University of California Press, 1998.
to set out a clear and workable division of responsibilities between
the regional and the central governments; and to bring the coun-
try into conformity with its international obligations. By aligning
the country with the terms and demands of the European Union’s
acquis communitaire, this process should also help the country to
move closer, even if only haltingly, to its stated goal of “Euroatlantic
integrations.”
Douglas Davidson, Distinguished Visiting Fellow, GMF
Douglas Davidson comes to GMF from four years as head of the
Organization for Security and Cooperation in Europe’s (OSCE)
Mission to Bosnia and Herzegovina. A career member of the U.S.
Senior Foreign Service, his previous assignments include the North-
west Frontier of Pakistan, the White House as an assistant press
secretary for foreign affairs in the administration of President George
H. W. Bush, and the State Department’s Senior Seminar, a year-long
executive leadership and management training program. He has lately
amassed extensive experience in the Balkans, which include several
visits to war-time Sarajevo in 1994 and 1995; assignments to the
American embassies in Zagreb and Belgrade; and service as the first
director of the Department of Media Affairs of the newly established
OSCE Mission in Kosovo, which formed part of the UN Interim
Administrative Mission in Kosovo (UNMIK), and, concurrently, the
province’s first Temporary Media Commissioner.
About GMF
The German Marshall Fund of the United States (GMF) is a nonpar-
tisan American public policy and grantmaking institution dedicated
to promoting greater cooperation and understanding between North
America and Europe. GMF does this by supporting individuals and
institutions working on transatlantic issues, by convening leaders to
discuss the most pressing transatlantic themes, and by examining
ways in which transatlantic cooperation can address a variety of global
policy challenges. Founded in 1972 through a gift from Germany as a
permanent memorial to Marshall Plan assistance, GMF maintains a
strong presence on both sides of the Atlantic. In addition to its head-
quarters in Washington, DC, GMF has seven offices in Europe: Berlin,
Bratislava, Paris, Brussels, Belgrade, Ankara, and Bucharest.