Teekay was looking forward to the Venice Commission’s report on Bosnia-Herzegovina last week. (The Venice Commission, for those of you who don’t lie awake at nights in excited anticipation of its next publication, is the constitutional reform advisory body of the Council of Europe, which in turn is not to be condused with the European Council.)
Well, the report’s out – not yet on their website but they’ve sent me a copy. It’s not as radical as some in Bosnia-Herzegovina might have liked, but given the Venice Commission’s normally relatively anodyne pronouncements it’s pretty strong stuff.
The conclusions are as follows (all emphasis is mine):
The Commission appreciates the fact that the use of the Bonn powers by the High Representative was beneficial for BiH and its citizens and a necessity following a bloody war. However, this practice does not correspond to democratic principles when exercised without due process and the possibility of judicial control. Its justification becomes more questionable over time. The Commission therefore calls for a progressive phasing out of these powers and for the establishment of an advisory panel of independent lawyers for the decisions directly affecting the rights of individuals pending the end of the practice. [Good call on this one, by the way, Teekay!]
While BiH may still need more guidance from the international community, this could be provided by more subtle means. At present, the High Representative is at the same time the EU Special Representative. If he were to retain only the role of EU Special Representative comparable to the practice in ?the former Yugoslav Republic of Macedonia? [sic, including quotation marks], this would allow the transformation of the role of the High Representative from a decision-maker into that of a mediator. The interest of the people of BiH in European integration should ensure the effectiveness of this role.
To sum up, the time seems ripe to start a process of reconsideration of the present constitutional arrangements in BiH and the impetus provided by the Parliamentary Assembly [of the Council of Europe] in this respect is most welcome. Constitutional reform is indispensable since present arrangements are neither efficient nor rational and lack democratic content.
A central element of the first stage of constitutional reform has to be a transfer of responsibilities from the Entities to BiH by means of amendments to the BiH Constitution. This is an indispensable step if any progress is to be achieved in the process of European integration of BiH. This step will be difficult since, as with other constitutional amendments in BiH, it will have to be based on consensus among the representatives of the three constituent peoples. Constitutional reform cannot be imposed. Another element of the first stage should be a streamlining of decision-making procedures within BiH, especially with respect to the vital interest veto, and a reform of the provisions on the composition and election of the Presidency and the House of Peoples which seem either now or following the entry into force of Protocol No. 12 on 1 April 2005 incompatible with the ECHR. The reform of the vital interest veto at the State level could best be carried out in parallel with similar reforms in both Entities.
Another pressing issue is the territorial organisation of BiH. In the view of the Venice Commission, any solution implying abolishing the two Entities seems unrealistic in a medium term perspective since this would not be accepted within the RS. A reform of the structures within the FBiH cannot be put on hold in the vague hope of a change of approach in the RS. The most realistic option for such reform, which would also be in line with general European trends, would be to concentrate legislative responsibilities within the FBiH at the Entity level. At the same time, local government in both the FBiH and the RS should be strengthened. Completely abolishing the Cantons would be an even better solution but this may not be politically possible for the moment.
Further constitutional reforms, changing the emphasis from a state based on the equality of three constituent peoples to a state based on the equality of citizens, remain desirable in the medium and long term. If the interests of individuals are conceived as being based mainly on ethnicity, this impedes the development of a wider sense of nationhood. In this context the people of BiH will also have to decide whether they want to replace their present Constitution negotiated as part of a peace treaty by an entirely new Constitution which would enjoy full democratic legitimacy as the fruit of a democratic constituent process in BiH.
(Apologies for the length of the quote, but this important document is not yet widely available, although I have been told that the text here is considered final and public.)
So there we have it: no striking down by the Commission of either the High Representative’s powers or of the entity/canton structure, as some were hoping for, but instead a prescription for a reform agenda to create a workable state out of the constitutional dog’s breakfast that Bosnia-Herzegovina was left with as a result of the Washington (1994) and Dayton (1995) agreements.
Most significantly, the onus for action is largely left with local actors. If the people(s) of Bosnia-Herzegovina want a better constitution, they will largely have to negotiate it themselves, with perhaps external mediation but with no prospect of external imposition. After all, imposing the current constitutions is what gave rise to this in the first place.
(PS to my hosts: Can you fix the styles definition here so that <blockquote> doesn’t result in monstrously huge text? I’d have preferred to use <blockquote> rather than italics for the quote above.)