THE PARADOX OF EUROPEAN INTEGRATION: CREATING AN EFFICIENT STATE AND QUESTIONS ABOUT THE DAYTON SYSTEM

In recent years European integration has clearly become the central goal of the transition process in the Western Balkans. In the framework of the Stabilization and Association Process, all States have to respect and fulfil concrete conditions set by the European Union.⁶⁶ These conditions translate principles such as the Copenhagen criteria into specific and detailed parameters that have to be met and implemented,⁶⁷ while the process of implementation is assisted and monitored by EU institutions.

Local ownership would signify the transition from imposed reforms linked to the Dayton Peace Accord to a reform process driven by domestic actors and directed toward the objective of EU accession. That objective might also require changes not covered by the Dayton system, which would therefore also exceed the High Representative’s power of substitution. As a result, since 2002 the High Representative has also acted as an EU Special Representative with a complementary mandate based on persuasion through conditionality in fields related to EU integration. Thus, the change from an externally imposed to a generally accepted constitutional system can be considered as the true defining moment for Bosnia-Herzegovina in the process of transition. This moment should be formally marked by a constituent act, such as the adoption of a new constitution or amendments to the Dayton Constitution, legitimated by the people.

Ten years after Dayton, the time seemed to have come for constitutional reform. In March 2005, the Venice Commission expressed its opinion on the constitutional reforms necessary to make the system compatible with European standards. Since neither the Dayton Constitution nor the Entity Constitutions “provide a sound basis for the future, it is desirable for the citizens at some state to have an entirely new Constitution based on their own wishes.”⁶⁸ The commission identified five areas in which constitutional changes were needed: (1) the transfer of competencies from the Entities to the State, (2) the reform of inefficient legislative and executive structures at the State level, (3) the elimination of “prerogatives for ethnic or group rights,” (4) the strengthening of citizens’ rights, and (5) the clarification of the Entities’ future relationship to the State.

Among the initial attempts in this direction was the creation of a constitutional working group agreed on by the leaders of seven major political parties through negotiations brokered by the United States Embassy. In March 2006, a political agreement on constitutional amendments in four areas was reached.⁶⁹ The constitutional changes imposed by the High Representative regarding the distribution of competencies were to be confirmed, including a category of shared powers between the State and the Entities.⁷⁰ A second amendment was related to changes in the Parliamentary Assembly’s composition, powers, and procedures, including, in particular, abolishing the perfect symmetry between the two Houses and changes in the definition of the “vital interests veto.” A third amendment transformed the collective Presidency into a single president with two vice-presidents, and a fourth amendment focused on the reform of the Council of Ministers. These constitutional amendments required approval by the Parliamentary Assembly, including a two-thirds majority in the House of Representatives (article X), but despite the political agreement, the so-called April Package of 2006 failed to win approval by two votes in the House of Representatives.⁷¹ After this failure and with the prospect of general elections in October 2006, nationalistic rhetoric rose again. Two subsequent attempts by the International Community to re-initiate constitutional reform failed in 2007 and 2009, revealing a lack of coordination and the absence of a uniform position within the IC.⁷²

With the constitutional reform process stalled, the efforts of the International Community concentrated on police reform, which, as part of the conditions for signing a Stabilisation and Association Agreement (SAA) between the European Union and Bosnia-Herzegovina, was viewed as a functional reform.

Even though European integration is a shared goal, it cannot be considered neutral to the positions of the Entities: strengthening the State threatens the full autonomy of the RS and favours the position of Bosniaks (and, to a lesser extent, of Croats). There is still no common vision for the country, and the polarization produced by war has been preserved and prevails in the political positions of the various groups. Bosnian Serb politicians insist on the integrity of the RS and regularly seek to undermine State institutions, even questioning the State itself,⁷⁵ whereas for many Bosniaks, the very existence of the RS, the “Serb entity,” remains a provocation that should be overcome by transforming Bosnia into a “civic” and unitary State, that is, one not based on ethnicity and without the current Entities.⁷⁶ As the smallest group, Croats seek above all to consolidate their status as one of the constituent peoples and insist on their equal standing. While in the past a “Croat Entity” had been demanded, nowadays Croats link any reform of the FBH to an overall constitutional and institutional reform of the country and ask for at least four constituent units, one of which would have a Croat majority.⁷⁷

The institutional and territorial entrenchment of ethnicity combined with the limited number of institutional players regularly creates antagonism, rather than fostering creative solutions.⁷⁸ The fact that the changes required by EU conditionality, which go beyond the Dayton Peace Accord, cannot be imposed by the High Representative might create a power vacuum, especially when there is a lack of coordination within the International Community.⁷⁹ For this reason, in February 2008, the Peace Implementation Council set five objectives to be reached before closing the Office of High Representative.