THE BOSNIAN FEDERAL GEOMETRY: THREE PEOPLES, TWO STRONG ENTITIES, ONE WEAK CENTRE
The Constitution recognizes the pre-existing constituent units, the RS and the FBH, as “Entities” (not Member-States).15 Their institutional design is strongly asymmetrical: while the RS is organized as a centralized and unitary system, the FBH is itself a federal system,16 consisting of ten cantons (homogenous in ethnic terms, only two are “mixed”) with a wide range of powers and their own constitutions.
Bosnia’s federal system is based on the constituent role of these Entities, which are vested with the residual powers and exercise all powers and functions that are not expressly assigned to other authorities (article III.3.a, Constitution). Their dominant position within the system is best demonstrated in the field of foreign affairs, where the Entities are able to establish and maintain independent relations with neighbouring states, including agreements with these states and with international organizations.17 This obviously preserves and facilitates the “special relations” between the RS and Serbia proper, as well as between FBH (in particular Herzegovina) and Croatia.18 But it is above all the almost complete fiscal and financial autonomy of the Entities that permits their independent action. Regarding the necessary support of the central government, the BiH Constitution contains only basic principles providing that one-third of its resources have to be borne by the RS and two-thirds by the FBH.19
Both Entities have created complete state-like institutional structures with a president, a government, legislative institutions, and a judicial system. While initially the RS had only one parliamentary chamber (the National Assembly, whose members were elected by a proportional electoral system), the federal structure of the FBH has always been reflected by its bicameral system consisting of the House of Representatives and of the House of Peoples, the latter representing the interests of the ten cantons.20 The equal constitutional status of Bosniaks and Croats in the FBH is symbolically expressed by the rotation between the president and the vice-president of the two Houses, as well as in the office of the prime minister of that entity.
However, despite their strong position vis-à-vis the state of Bosnia-Herzegovina, neither the RS nor the FBH has been able to effectively control all of the respective territory. The highly decentralised cantonal structure of the FBH has facilitated the creation of parallel institutional structures and the preservation of Croat military units, as well as direct political, institutional, and financial relations with Croatia.21 In the RS, political centralisation has not been matched with geographical integration, since it consists of two separate areas that are connected only through the city of Brčko in Northern Bosnia. Because of its strategic importance, in 1999 the Brčko-District was declared a territory under direct international administration in an international arbitration award.22
According to the original design of the Dayton Peace Accord, the powers of the state of Bosnia-Herzegovina were rather modest, extending only to foreign policy, foreign trade relations, customs, currency, refugee policy, some elements of financial policy, the prosecution of crimes, air traffic control, and communications (article III.1). Further functions and powers could be transferred by agreement between the Entities, which were also responsible for the budget of the Common Institutions. Thus, these institutions were from the outset “underdeveloped” compared to those of the Entities. The head of the state consisted of a tripartite presidency (article V.2) whose members, one for each constituent people, were directly elected and rotated in the office of the acting president. Each of them was vested with civilian command authority over the armed forces.23 The presidency nominates the Council of Ministers after approval by the House of Representatives (article V.4). The weak position of the government is already apparent in the lack of a separate constitutional article dealing with it: it is, in fact, part of the article on the presidency.
The constitution expressly mentions only two ministries (foreign affairs and foreign trade relations); only after 2000 were other ministries added, so that by 2010 there were nine.From the perspective of the structural elements characteristic of a federal system,24 in Bosnia-Herzegovina there are certainly two orders of government each acting directly on its citizens. The constitution even recognizes distinct citizenships of the State and of the Entities (article I.7), but questions also remain about the voluntary adherence of the constituent units, because the State of Bosnia-Herzegovina was established and is mainly held together by pressure from beyond its borders. Regarding the distribution of legislative and executive authority, the asymmetry between the constituent units (the one federal, the other unitary) is striking, and the weakness of the underdeveloped State institutions seems to be the expression of a bare minimum of a State. This is particularly true given the initial lack of State powers regarding defense, as well as the total dependence of the State on financial transfers from the Entities. The transfers, for defense and for resources, were mainly guaranteed by the International Community itself. The dominant position of the Entities as holders of the residual powers in relation to the limited list of State powers and correspondingly weak Common Institutions has required a gradual increase of State functions in order to create efficient and functional institutions. Important examples include the creation of a single army at the State level, as well as the creation of self-generated financial resources for the State with the introduction of a value-added tax (VAT) in 2006.
The participation of the constituent units in the decision-making process of the State is guaranteed through a second chamber for the representation of territorial interests, a chamber that also participates in amendments to the State Constitution. However, its designation as the House of Peoples indicates the predominant importance of the ethnic interests of the three peoples in this institution.
Although a supremacy clause does guarantee the legal integration of BiH by establishing the supremacy of the State Constitution over all other sources of law, including the Entity Constitutions (article III.3.b), the obligation to bring the latter in line with the State Constitution (article XII.2) has been substantially disregarded. The Constitutional Court of the State rules on disputes between the State and the Entities (article VI.3). Horizontal coordination and intergovernmental collaboration of the Entities is to be guaranteed by their members within the Presidency (article III.4), but the formulation of this stipulation is quite weak ( “might facilitate coordination”), and coordination is subject to a veto by the Entities. As we have seen, a transfer of powers from the Entity to the State level is possible (article III.5) but dependent on the – improbable – political will of the Entities.This brief examination of the characteristic elements of the federal systems reveals that the Dayton Peace Accord created an extremely weak framework of common institutions that depend completely on the two Entities. The territorial representation of the Entities in the State institutions is in fact primarily the ethnic representation of the three constituent peoples. This “ethnic federalism” is above all a guarantee of the autonomy of the constituent units and, implicitly, of the groups that comprise them rather than the integration of those units and groups into the State with an emphasis on efficient governance. Thus, the Bosnian case fits into the category of “keeping-together federalism” or, rather, “forced-together federalism.”25