Not for citation without
the author’s permission
NUMBER 74
CHANGES IN THE CONSTITUTIONAL
STRUCTURE OF
BOSNIA AND HERZEGOVINA
Henry L. Clarke
October 2005
East European Studies
This essay is one of a series of Occasional Papers published by East European Studies at the Woodrow Wilson International Center for Scholars in Washington, DC. The series aims to extend the work of East European scholars and specialists to all those interested in the region and to help authors obtain constructive criticism of work in progress. Occasional Papers are written by resident scholars at the Wilson Center as well as by visiting speakers. They are papers presented at or resulting from discussions, seminars, colloquia and conferences held under the auspices of East European Studies.
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NUMBER 74
CHANGES IN THE CONSTITUTIONAL STRUCTURE OF
BOSNIA AND HERZEGOVINA
Henry L. Clarke
CHANGES IN THE CONSTITUTIONAL STRUCTURE OF BOSNIA AND HERZEGOVINA
HENRY L. cLARKE[1]was Supervisor of Brcko, 2001-2003, and directly responsible for implementing the Final Award of the Brcko Tribunal. Ambassador Clarke has had a distinguished career at the US Department of state, and has served in various countries including Romania, Russia, Germany, Nigeria, andIsrael. He was the first U.S. Ambassador to Uzbekistan. He also worked as International Affairs Advisor at the National War College, and as Senior Advisor for Property Restitution in Europe at the Department of state. Ambassador Clarke holds a BA degree from Dartmouth College and an MPA from the John F. Kennedy School of Government at Harvard University. He also has a military background, having served as U.S. Army officer in the 3rd Armored Cavalry and 11th Armored Cavalry Regiments.
The constitutional structure of Bosnia and Herzegovina is complex, emerging as it did from a peacemaking process between Serb forces of Republika Srpska and a coalition of Bosniak (or Muslim) and Croat forces under the Federation of Bosnia and Herzegovina. Most of the fundamental obligations of the state of Bosnia and Herzegovina and its two subordinate Entities, Republika Srpska (RS) and the Federation of Bosnia and Herzegovina (FBiH),[2] arise from the General Framework Agreement for Peace (GFAP) in Bosnia and Herzegovina and its Annexes, often called the Dayton Accords, signed in Paris on December 14, 1995. The Constitution of Bosnia and Herzegovina is Annex 4 of the General Framework Agreement.[3]
Numerous and far-reaching changes in the constitutional structure of Bosnia and Herzegovina have been introduced since 1995, some based upon the language of the Constitution itself, some based on (but not limited by) the language of the rest of the GFAP. Since the text of the Constitution has not been amended, it is not possible to know the fundamental obligations or the distribution of powers and functions of the state or of its subordinate jurisdictions, the two Entities and Brcko District, by reading the Constitution alone. To fully understand how the institutions of Bosnia and Herzegovina function, other elements, or legs, of the constitutional structure must be read along with the Constitution. These other elements include the powers and status of the multinational military Implementation Force and of the civilian High Representative, the definition of the border between the two Entities and the rights of refugees and displaced persons to return to homes seized or destroyed during the war.
One of the more controversial legs, the Final Award of the international arbitral tribunal that resolved a boundary dispute in the area of Brcko,[4] is also probably the most misunderstood. In 2000, the tribunal created Brcko District as a new political jurisdiction separate from the Entities and subordinate to the state, so the tribunal’s decision directly affects the constitutional structure of Bosnia and Herzegovina, and is affected by most of the other changes that have occurred in the constitutional structure.
The many changes in the constitutional structure of Bosnia and Herzegovina over the last 10 years suggest that the Dayton Accords, including the Constitution itself, have proved quite flexible. Initially, the powers of the international community were vastly broadened, and more recently, those powers have been used to implement State responsibilities foreseen in the Constitution, and to shift important additional responsibilities from the Entities to the State.
Nevertheless, I argue that the ways in which the constitutional structure have been changed—often by imposition, rather than consent, and sometimes hastily, without full implementation of basic reforms—raise serious questions about the sustainability of the reforms once the special powers of the international community are gone. Moreover, if the procedures required by the constitutional structure are violated, that raises serious questions about the sustainability of the rule of law and the ability of the country to mobilize investment—foundations Bosnia and Herzegovina needs to become a modern country. This paper describes some of the procedures required for changes in the constitutional structure, and proposes steps necessary to prevent them from breaking down.
Alternatives for changing the constitutional structure
Most of the text of the Constitution can be amended by formal decision of the Bosnia and Herzegovina Parliamentary Assembly, including a two-thirds majority in the House of Representatives.[5] While such a majority might not seem difficult to achieve, in practice it would require the agreement of both the RS and the FBiH. If it involves a shift of functions from an Entity to the state, it may also require amendments to the sonstitutions of the RS or FBiH, or the Statute of Brcko District. In the nearly 10 years since the adoption of the BiH Constitution, a formal amendment to the BiH Constitution has never been made.
According to the principal drafter of the Constitution at Dayton, Roberts B. Owen, the international community represented at Dayton was concerned that the fledgling state of Bosnia and Herzegovina might not be strong enough to survive, while Republika Srpska wanted to keep as much power in the hands of the Entities as possible. The state responsibilities listed in Article III paragraph 1 were the only ones Republika Srpska was willing to accept.[6] All other powers and functions were reserved for the Entities in Article III paragraph 3, and some Entity rights and powers are specified in Article III paragraph 2.[7]
Hoping that Republika Srpska would later come to accept the need for a stronger state in some areas, the drafters deliberately made it easy to add to the state’s responsibilities, and therefore its powers, through three clauses in Article III paragraph 5.[8] All three options can change the real effect of the Constitution without changing its text. The first clause of Article III.5 (a) allows the state to acquire additional powers and responsibilities by agreement of the Entities, the second does so as the state implements Annexes 5 through 8 of the General Agreement, and the third clause permits the state to assert additional responsibilities that are “necessary to preserve the sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina.” Only the first clause requires formal Entity agreement, and it is the only clause that is not limited by subject. All three means have been employed to expand the responsibilities of the state, and some examples will be discussed below. None of the additional state responsibilities changed the text of the Constitution, but these additional responsibilities have greatly changed the relative powers of the state and the Entities in the judiciary, revenue collection and distribution, border control and other areas.
Changing the constitutional structure outside the Constitution
The constitutional structure of Bosnia and Herzegovina has also been changed over the last decade by decisions and agreements made completely outside the Constitution, linked to but not limited to commitments in other Annexes of the General Framework Agreement. These also affected the relative powers and functions of the state, the Entities and Brcko District.
For example, the U.N. International Police Task Force (IPTF) was authorized by GFAP Annex 11 to inspect, advise, train and assist Entity and local police organizations, but Annex 11 says nothing about removing police officers and higher police officials, certification of individual police officers and police units, and substantial control over police organization and regulation throughout the country. The UN Security Council added those powers later.[9] In 2003 the IPTF concluded its mandate and was replaced by a European Union Police Mission (EUPM) with a reduced presence and powers. Yet for more than six years, before, during and after the IPTF’s mandate changes, the unchanged text of the Constitution assigns exclusive responsibility to the Entities for law enforcement within the Entities,[10] and says nothing about the IPTF overriding Entity police authority.
Similarly, GFAP Annex 10 established the High Representative, but does not mention the powers of the High Representative over such key constitutional matters as imposing or revoking legislation at the Entity or state level, or removing high Bosnian officials, powers which were added later by the international community without changing the text of GFAP or the Constitution. Again, the constitutional structure of BiH can only be understood when the Constitution is read together with these other elements of the constitutional structure.
No agreement was reached at Dayton on the inter-Entity boundary (IEBL) in the area of Brcko. Instead, all parties—BiH, FBiH and RS—accepted binding international arbitration and thereby agreed in advance to implement the decisions of the arbiters.[11] But, over a period of several years, the FBiH and RS members of the Arbitral Tribunal for Brcko still could not agree on a permanent solution. The RS would not back down from its insistence on keeping the town of Brcko and a strip of territory along the Sava River seized during the war, since it connected the two halves of the territory of the RS. The FBiH opposed this because it would undermine the basic principles agreed upon at Dayton by denying the Federation a town that had been predominantly Bosniak and Croat before the war, and a critical transportation corridor (rail and road bridges over the Sava, and a river port) needed by the Federation. The Presiding Arbitrator, Roberts B. Owen, concluded that the only satisfactory solution was to give Brcko to neither Entity, but create a separate District that would serve the essential transportation needs of both Entities without discrimination, and would govern its own multiethnic inhabitants.[12]
The Final Award of the Brcko Tribunal was drafted so that itdid not change the text of the Constitution, since the constitutional amendment process would give the Entities an opportunity to reject the solution. Nevertheless, the Tribunal made an effort to write the Final Award so that it would be legally andlogicallyconsistent with the Constitution.[13] The Final Award changed the constitutional structure of Bosnia and Herzegovina by creating a completely new political jurisdiction independent of both Entities and with comparable powers of governance within the District. In order to understand the constitutional status of the District and its responsibilities vis-à-vis the state, the Constitution must be read alongside (or together with) the Final Award.
Effect of the Brcko Final Award on the BiH Constitution
The Brcko Final Award did not create a new Entity, which would have required a constitutional amendment.[14] Brcko residents remain citizens of one of the Entities and of the state. Unlike all other BiH citizens, Brcko residents may freely choose to become citizens of either Entity, without regard to their ethnicity or the location of their residence within the district.[15] The IEBL within the district was to be abolished, and the territory of the district was defined as the pre-war Brcko Opstina, or municipality, on both sides of the cease-fire line.[16] All Entity powers and governmental functions within the territory of the district—legislative, administrative, and judicial—were permanently transferred to the district, including ownership of public property.[17] An international supervisor, established earlier, was to continue to exercise powers within the district, similar to those of the High Representative of BiH, until he or she is able to notify the Brcko Tribunal that the district’s “institutions are functioning effectively and apparently permanently.”[18]
The Constitution specifies the powers and responsibilities of the state, so all other powers and responsibilities that are assigned or left to both Entities were transferred to Brcko District within its territory,[19] except those functions related to granting citizenship and those specifically mentioned in the Final Award as retained by the Entities,[20] and the functions and responsibilities that the BiH Constitution assigns to only one Entity by name, such as the number of seats in state institutions.[21] Just as one would expect from arbitration of a border dispute, there is no suggestion anywhere in the Final Award that this transfer of powers to the District is somehow conditional, temporary or reversible. The permanence of the transfer is underscored by the expectation that district institutions will function “permanently,” and the requirement that the District review and replace all Entity legislation with district legislation.[22]
In transferring local governmental functions to the state, the District’s rights and privileges are identical to those of the Entities. An Entity may transfer to the state the responsibility for performing a particular function within that Entity’s own territory, and the District may do the same with respect to the District’s territory. Since the District’s powers and responsibilities were ceded to it by the Entities on a permanent basis, the Entities (either one or both) cannot effect a transfer of governmental responsibility from the District to the state without the District’s consent.
On the other hand, where no agreement of the Entities is required to give the state greater responsibilities, then no agreement is required from the District either. The state can, for example, take measures or create institutions “necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina.” [23] The District, likewise, has the right to participate in inter-Entity coordination facilitated by the presidency and in negotiations regarding additional responsibilities of the state.[24]
Constitutional change is not simply a matter of legal authority, especially in a decentralized system of government. To effect constitutional change, there must be real cooperation on more than one level if the new laws are to be implemented. In Bosnia and Herzegovina, domestic governance is still largely in the hands of the Entities and the District, so their cooperation with the state is required in nearly every case when there is a change in the state’s internal responsibilities. When the state passes new laws, whether based on Constitutional responsibilities listed in Art. III.1 or acquired earlierunder Art. III.5, they often require either changes in existing Entity and District lawor completely new laws to be effective. However, if the state assumes new responsibilities under Art. III.5, changes in the Entity Constitutions and the Brcko Statute (which serves as Brcko District’s constitution) may be required. District laws are passed or changed by a three-fifths majority of the Brcko Assembly, while amendments to the Brcko Statute (its Constitution) require a three-fourths majority,[25] and each Entity has its own requirements. The state will have to do more than simply demand that those changes be made, or it may find its initiatives unimplemented.