REFORMING DAYTON (F) OR OVERCOMING DAYTON?

The frequent interventions by the High Representative clearly demonstrated that some “corrections” to the system established by the Dayton Peace Accords were necessary in order to unblock it and make it work.

The essential question the Court had to resolve was whether the list of Bosnia’s constituent peoples in the preamble to the State constitution – “Bosniaks, Croats and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina…” – gave these three peoples equal status throughout Bosnia and Herzegovina or whether they were equal only at the State level. At that time, no Serb had been elected to the institutions of the FBH or as a representative of the FBH in the institutions of the State, and the same was true for Bosniaks and Croats in the RS. Thus, the political question raised was whether a multinational system could legitimately be grounded on an absolute partition of power along territorial lines, that is, on three de facto mono-ethnic sub-systems. In effect, the Court had to decide on nearly all basic questions of a multinational democracy, such as the normative meaning of the Constitution, the concepts of “constituent people” and of “minority group,” the right to self-determination, the federal structure of the State, and, last but not least, the political representation of groups.

With regard to the last issue, the Court first clearly distinguished between constituent peoples and minorities, thus identifying the constitutional mandate to treat differently what ought to be different. For the Court “the adopters of the Dayton Constitution would not have designated Bosniaks, Croats and Serbs as constituent peoples, in marked contrast to the constitutional category of a national minority, if they wanted to leave them in such a minority position in the respective Entities as they had, in fact, obviously been placed in at the time of the conclusion of the Dayton Agreement.”⁴⁸ The Entities thus have a constitutional obligation not to discriminate against those constituent peoples of the State who are as a matter of fact a numerical minority within their territory (that is, the Serbs in the Federation, the Bosniaks and Croats in the Republika Srpska). The principle of non-discrimination thus applies not only to individuals,⁴⁹ but also to groups as such, prohibiting special adverse treatment. For the Court, a principle of “collective equality” of the constituent peoples exists that “prohibits any special privilege for one or two of these peoples, any domination in governmental structures or any ethnic homogenization through segregation based on territorial separation.”⁵⁰

The judgment focused on the violation of human rights as a common practice in the Entities and in particular on the right of refugees and displaced persons to “voluntary return and harmonious reintegration, without preference for any particular group” as provided for in Annex 7 of the General Framework Agreement for Peace (article II.1, the so-called minority-returns). The Court cited the domination of institutions in the Entities (especially courts and police)⁵¹ by privileged peoples to illustrate the discriminatory effect of the contested provisions in the Entities’ constitutions. It pointed to population figures in order to demonstrate that these constitutions established discriminatory frameworks aimed at discouraging return.⁵² As a result, the provisions of the Entities’ constitutions that declared only one or two peoples as constituent in a particular Entity and ensured a more favorable treatment of those peoples in the governmental structure of the Entities violated the constitutional principle of collective equality, as well as article 5 of the UN Covenant against racial discrimination of 1966 (the right to equal access to governmental posts) and were thus unconstitutional.

A second important and often-overlooked aspect of the judgment was the judicial recognition of State framework legislation in some subject matters that, according to the text of the Constitution, would be exclusive competencies of the Entities.

The Court also gave indications on the implementation of the decision: in addition to the necessary amendments, further measures would be required to guarantee the protection of equal rights and to promote minority returns. Fair representation would need to be assured in the constitutional institutions and, in particular, in the judiciary and the police. Special attention would have to be paid at the sub-entity level to avoid ethnic homogenization of cantons or municipalities.

The composition of the Constitutional Court follows the parity pattern found in other institutions, with two judges appointed by the RS and four by the FBH. However, the Court also includes three international judges nominated by the President of the European Court of Human Rights (article VI.1a). This addition reflects international concerns about the fragility of the Dayton scheme and its implementation. The ruling would not have been possible if a minority veto had existed within the Court. In fact, the decision was taken with a narrow majority: the three international and the two Bosniak judges voted for it, four judges (Croat and Serb) against.

The Court’s decision was condemned by most Serb parties but welcomed by the Bosniak and Croat parties, as well as by the International Community. It offered “a probably unrepeatable chance to push the Dayton Peace Agreement to its limits and to permit Bosnia and Herzegovina to become a functional multinational state” by reforming the existing Entities within the Dayton architecture.⁵⁶ The Court not simply confirmed the static elements of the territorial and ethnic compromise found in Dayton but strengthened the dynamic elements contained in the DPA: the return of refugees and Internally Displaced Persons (IDPs), a means for rebuilding a truly multiethnic society. With this interpretation, the Court went well beyond the text of the Constitution by integrating it with sources of international law.⁵⁷

Furthermore, by addressing not only the constitutionality of the institutionalization of ethnic dominance but also its impact on the quality of democracy, the ruling raised fundamental questions at the State level. Apart from the excessive institutionalization of ethnic identities, a whole segment of the population, the “Others” (i.e., minorities, persons from ethnically mixed marriages, or persons simply unwilling to affiliate with one of the three peoples) remain generally excluded from the power-sharing structures.⁵⁸