Robert Hayden
On September 8, an agreement on basic constitutional principles for Bosnia and Herzegovina was reached by the foreign ministers of Serbia, Croatia, and the Muslim-controlled government of Bosnia and Herzegovina.
This was the first agreement in principle accepted by all sides since August 1993. The Geneva Agreement was followed, on September 26, by the acceptance by the same actors, meeting this time in New York, of "further agreed basic principles," including, the outline of a parliament, a presidency, a cabinet of ministers, and a constitutional court for Bosnia and Herzegovina.
The Geneva Agreement and the New York agreement are strange documents indeed. Although they were announced weeks apart, the New York "further agreed basic principles" are literally a continuation of the agreement in Geneva, as shown by the continuous numbering of clauses in the two documents. The Geneva Agreement contains clauses 1 through 3.5 and the New York text, clauses 4 through 6.6. This analysis deals with both agreements as comprising one set of principles.
The two agreements form a sparse set of principles-three typed pages. Their meaning has been said by commentators to be unclear, particularly as to whether the principles amount to acceptance of the partition of Bosnia and Herzegovina. This article presents an analysis of the Agreed and Further Agreed Basic Principles in the context of other constitutional documents in effect in parts of Bosnia and elsewhere in the former Yugoslavia. Read in this way, the terse text of the principles is very clear. It does indeed amount to the partition of Bosnia, but this result is absolutely in keeping with all constitutional structures created for Bosnia and Herzegovina since 1993: the August 1993 agreement referred to above, and the 1994 Washington Agreement that established the so-called Federation of Bosnia and Herzegovina, one of the two entities mentioned in the 1995 Geneva agreement. Further, read in the context of the Constitution of that Croat-Muslim "Federation," it is clear that Bosnia is being partitioned officially and legally into three entities, not two.
The Bosnian state: "the mere pageantry of mimic sovereignty" The chief American negotiator, Richard Holbrooke, has been firm in announcing that the Geneva agreement does not partition Bosnia. After all, Clause 1 of the agreement provides that "Bosnia and Herzegovina will continue its legal existence with its present borders and continuing international recognition." However, Clause 2 then provides that "Bosnia and Herzegovina will consist of two entities, the Federation of Bosnia and Herzegovina as established by the Washington Agreements, and the Republika Srpska (RS)." Further, Clause 2.2 provides that "Each entity will continue to exist under its present constitution (amended to accommodate these basic principles)."
By accepting the constitutions of the two "entities," this provision accepts the ethnic partition of Bosnia and Herzegovina. The Constitution of the Republika Srpska (Art. 1) defines that state as the "State of the Serbian people," and defines its territory as "territories of the Serbian ethnic entity." The Constitution of the Federation of Bosnia and Herzegovina (Art. 1) defines that federation as consisting of areas with majority Croat or Muslim populations, in which Croats and Muslims exercise their "sovereign rights." The RS Constitution does allow that entity to "enter into an association with the state creations of other constitutive nations of Bosnia and Herzegovina" (Art. 4), while the Federation Constitution only provides that "Decisions on the constitutional status of the territories of the Republic of Bosnia and Herzegovina with a majority of Serb population shall be made in the course of negotiations with the International Conference on the Former Yugoslavia" (Art. I.1[2]). Thus the Agreed Basic Principles acknowledge that Bosnia has been partitioned into ethnically-based territories.
The Further Agreed Principles purport to establish the framework for governmental structures for a joint state. Yet what has been agreed to is a constitutional quagmire. Thus the parliament or assembly, "two- thirds of which will be elected from the territory of the Federation, and one-third from the territory of the Republika Srpska," can take actions only by qualified majority: "All parliamentary actions will be by majority vote provided that the majority includes at least one-third of the votes from each entity" (Art. 6.1; emphasis added). Considering that ethnic bloc voting has been the norm in Bosnia and Herzegovina, during the few times in history when voting has been permitted, this provision ensures that its parliament will do nothing whatever.
Similar rules ensure that the proposed presidency is virtually certain to be hamstrung. Article 6.2 calls for a presidency, "two-thirds of which will be elected from the territory of the Federation, and one- third from the territory of the Republika Srpska. All presidency decisions will be taken by majority vote, provided, however, that if one-third or more of the members disagree with a decision taken by the other members and declare that decision to be destructive of a vital interest of the entity or entities from which the dissenting members were elected, the matter will be referred immediately to the appropriate entity's/entities' parliament. If such a parliament confirms the dissenting position by two-thirds vote, then the challenged decision will not take effect." The structure seems to have been designed to ensure primarily that issues are polarized on ethnic grounds, while providing a mechanism for blocking any decision on them. This is a formula for paralysis.
Articles calling for the creation of "a cabinet of such ministers as may be appropriate" (Art. 6.3 [emphasis added]) and of "A Constitutional Court with jurisdiction to decide all questions arising under the Constitution of Bosnia and Herzegovina as it will be revised in accordance with all of the Agreed Basic Principles" (Art. 6.4 [emphasis added]) are so conditional as to be meaningless.
The system envisioned by the Agreed and Further Agreed Principles thus amounts to one in which Bosnia is partitioned into ethnic halves, each with a separate government, with joint legislative and executive organs, that can be blocked very easily by either entity from taking any action of any kind, and judicial and ministerial bodies premised so vaguely on future conditions as to be, at present, nullities. The other major joint bodies mandated by the principles take the form of "joint Bosnia and Herzegovina public corporations, financed by the two entities, to own and operate transportation and other facilities for the benefit of both entities" (Art. 3.3). Otherwise, the relationship between the entities is envisioned as one of separation, with no mechanism other than arbitration to resolve disputes between them (Clauses 2.4 and 3.5). Arbitration, of course, is a mechanism used by parties that cannot reach any agreement amongst themselves and amounts to turning over decision-making power to a third party.
In 1787, Alexander Hamilton in The Federalist Papers contemplated a similar association of sovereign entities and found it to be, in fact, lacking a government, its ambassadors "the mere pageantry of mimic sovereignty." The "sovereignty and territorial integrity of Bosnia and Herzegovina," a territory without an effective government, is such a mimicry.
Zen and the art of constitutional legerdemain
The matter becomes even more curious when Clause 2.3 is taken into account.
This clause provides that, "Both entities will have the right to establish
parallel special relationships with neighboring countries, consistent with
the sovereignty and territorial integrity of Bosnia and Herzegovina." The
qualifying adjective "parallel" presumably means that each entity is
entitled to establish the same kind of relationships. As it happens, the
"Federation of Bosnia and Herzegovina" and the Republic of Croatia signed a
Framework Agreement on establishing a confederation between themselves on
the same day that the existence of the Federation was agreed to, in March
1994. This being so, the new Agreed Principles give the RS the right to
establish the same kind of relationship with "neighboring countries" that
the Federation has with Croatia.
The Federation-Croatia Framework agreement is actually much more detailed than the Agreed Principles, providing that "the Parties shall enact internal regulations" governing various economic and other areas (Art. 4). These are given greater specificity in a mandate that the parties "shall immediately pursue cooperation and the development of common policies" in a number of areas, including economic policy and law enforcement (Art. 4.1). Most interestingly, it calls for "the coordination of defense policies and the establishment of joint command staffs" (Art. 5). Since the Agreed Principles permit the RS to create the same relationships with neighboring states, the way is now clear for the RS and Serbia (the Federal Republic of Yugoslavia) to "coordinate defense policies" and to develop a joint command structure and internal regulations over a variety of affairs.
The Agreed Principles thus envision Bosnia as a curious "state" indeed, composed of two parts, each of which is linked more closely to neighboring states than to each other, with no workable mechanisms of joint or shared governance, and each joined in a defense structure with neighboring states but not with each other.
As a set of constitutional principles, the Agreed Principles form a document worthy of a Zen master. The concept of a "state," composed of two unrelated parts, hostile to each other and with no functional government, is comparable in its subtlety to the sound of one hand clapping.
An agreement to do nothing
In addition to these Zen constitutional principles, the Agreed Principles
contain provisions by which the parties seem to agree to take certain
actions. Article 2.4 provides that "the two entities will enter into
reciprocal commitments (a) to hold complete elections under international
auspices; (b) to adopt and adhere to normal international human rights
standards and obligations including the obligation to allow freedom of
movement and enable displaced persons to repossess their homes or receive
just compensation; (c) to engage in binding arbitration to resolve disputes
between them" (emphasis added).
The emphasized wording, will enter into reciprocal commitments, sounds as if the parties have agreed to do something substantive. But in fact they have not agreed to do anything at all. It is elementary in contract law that an agreement to make an agreement is no agreement at all. In the Geneva agreement, no terms of the "reciprocal commitments" are given, neither is there a time frame for an agreement. By the terms of this "agreement," either party may negotiate forever and not violate its terms.
The same analysis applies to Clause 3, which provides that, "the entities have agreed in principle" to certain actions, namely "the appointment of a Commission for Displaced Persons" (Clause 3.1), "the establishment of a Bosnia and Herzegovina Human Rights Commission" (3.2), "the establishment of joint Bosnia and Herzegovina public corporations" (3.3), "the appointment of a Commission to Preserve National Monuments" (3.4), and "the design and implementation of a system of arbitration for the solution of disputes between the two entities" (3.5). An agreement "in principle" is not, of course, an agreement on substance. There is no agreement here to do anything, by any party.
Three parties under a facade of two
The identification of two parties to the Agreement and two entities in
Bosnia and Herzegovina is a charade of a different kind. In fact there
are three parties, because the "Federation" is composed of Croat and
Muslim parts, that are, completely independent of each other. The only
powers granted to the Federation government concern economic affairs
between the parts, plus foreign affairs and defense. However, the central
government of the "Federation" has no means to enforce its decisions. The
Federation legislature can be blocked easily by either party, and
Federation courts have no means to enforce their decisions.
Even in the realm of defense, the Federation Constitution envisions a
joint command structure, but separate Croat and Muslim military forces.
The "Federation" Constitution is thus more an elaborate illusion than the Geneva agreement, but equal in effect. It, too, legitimates the de facto ethnic partition of areas of Bosnia and Herzegovina under Croat and Muslim control into ethnic states under the cover of a fictive unified "state." (See generally, Robert Hayden, "The Constitution of the Federation of Bosnia and Herzegovina: An Imaginary Constitution for an illusory 'Federation,'" Balkan Forum Vol. 2, No. 3, August 1994, pp. 77- 91.)
This analysis of the constitutional impossibility of the Federation is supported by what has happened within the supposed entity since its formation in 1994. The UN's Special Rapporteur on the Situation of Human Rights in the former Yugoslavia has described the Croat-controlled region of the "federation" as a "de facto state...with its own government, parliament, judiciary, police force, and army. It uses the currency and language of the Republic of Croatia," (Situation of Human Rights on the Territory of the Former Yugoslavia, UN Document E/CN.4/1996/6, at 20) not those of the Republic of Bosnia and Herzegovina. When the US government attempted to spend $20 million on projects to bolster the Federation and promote contact between the two sides, it failed because no such projects could be identified. As of late September, Croatian officials were routinely stopping, taxing, and diverting trucks heading for Muslim areas.
The references in the Geneva Agreement to the "Federation of Bosnia and Herzegovina" as an "entity" are both ludicrous and extremely revealing. This Croat-Muslim "entity" has no central government with any authority of any kind, its legislative and executive organs are susceptible to veto by either side, and its Constitution's solemn promises to permit the return home of those expelled in campaigns of "ethnic cleansing" are empty.
Democracy, human rights, and similar
wishful thinking
The creation of the proposed, purported joint governmental bodies is
conditioned on the holding of "free democratic elections" (Art. 6, read
with Art. 5), under international monitoring (Art. 5.3). The preconditions
for such elections are "(a) freedom of movement, (b) the right of displaced
persons to repossess their property or receive just compensation, (c)
freedom of speech and of the press, and (d) protection of all other
internationally recognized human rights" (Art. 5.1), as attested by
representatives of international organizations (Art. 5.2).
Elections will be held only after such international certification (Art.
5.3).
The unpromising parallels between the imaginary nature of the "federation," under its 1994 Constitution, and of Bosnia and Herzegovina under the Agreed Principles are apparent, when one looks at the unfulfilled obligations specified in the Croat-Muslim Federation's Constitution. While Art. 4.4 of the Federation Constitution provided that elections "shall be held within six months of the entry into force of this Constitution," such elections had not been held by February, due to lack of agreement between Croats and Muslims as to where the lines dividing their territories would be drawn. Following the successful Croat and Muslim offensives in western Bosnia in early September, these two armies promptly clashed with each other, over the question of which would control what territory. The Croat-Muslim alliance in Bosnia is comparable to that of the Allied powers in Germany in 1945 and seems likely to be just as durable.
Article 4 of the Constitution of the Federation of Bosnia and Herzegovina provides that "all refugees and displaced persons have the right to return freely to their homes of origin," and Art. 4 provides that "All persons shall have the right...to have restored to them any property of which they were deprived in the course of ethnic cleansing." However, since that Constitution was adopted, in March 1994, there has been almost no progress towards either of these goals. The UN's Special Rapporteur on the Situation of Human Rights on the Territory of the former Yugoslavia, Tadeusz Mazowiecki, noted in November 1994 that the formal lifting of restrictions on freedom of movement has not produced any significant return of displaced people, largely because of "obstructive practices of local authorities," and that there had been "no return of Muslims to predominantly Bosnian-Croat areas." In January, Mazowiecki reported that despite agreements to the contrary, restrictions on movement continue and that "throughout the Federation there has been a failure to implement return on a significant level." Thus the impressive rhetoric about ensuring human rights in the Federation remains wishful thinking, if not pious fraud.
Neither is the rhetoric about democracy any more accurate. Even the US State Department has had to admit that, in practice, sovereignty in the Federation belongs only to members of the dominant Muslim party and the dominant Croat party, who have not been able to agree on the territorial divisions of their respective territories. Any Croat or Muslim who is not a member of those parties is "quasi-disenfranchised," as are all who are not Croat or Muslim a situation not likely to improve under the Agreed Principles in either entity. Freedom of the press is absent throughout Serbia, Croatia, and Bosnia and Herzegovina, where the major media are under government control and "have been among the most important tools in propagating the military conflict in the region." (Situation of Human Rights in the Territory of the Former Yugoslavia: Special Report on the Media, UN Document E/CN.4/1995/54, at 3. See also M. Thompson, Forging War: The Media in Serbia, Croatia and Bosnia- Hercegovina London: The Bath Press, 1994.) Indeed, government control of all major media has been an important element in rule by the nationalist governments of Serbia and Croatia since before the wars began. Short of placing these media under international editorial control, it is difficult to see how freedom of the press in these republics can be ensured. Of course, without a free press, rhetoric about democracy is either pious nonsense or simple fraud.
Negative sovereignty
"Mr. Vance and Lord Owen deemed it necessary to reject any model based on
three separate, ethnic/confessionally-based states.... A confederation
formed of three such States would be inherently unstable, for at least
two would surely forge immediate and stronger connections with neighboring
States of the former Yugoslavia than they would with the other two units
of Bosnia and Herzegovina." (Report of the Co- Chairmen on Progress in
Developing a Constitution for Bosnia and Herzegovina, October 27, 1992,
C. Vance and D. Owen, Report of the Co- Chairmen, International Conference
on the Former Yugoslavia, document STC/2/2, pp. 4-5.)
From the foregoing analysis, it is clear that the basic principles for a constitutional structure for Bosnia and Herzegovina agreed to in September 1995 cannot be meant to be a structure for any workable joint state. But this constitutional absurdity is a recognition of political reality. The problem is that the elected political leaders of the Serbs and Croats of Bosnia and Herzegovina have no interest in creating such a joint state, but rather wish to join large parts of what had been the Socialist Republic of Bosnia and Herzegovina within Yugoslavia to the new, post-Yugoslavia nation-states of Serbia and Croatia, as Vance and Owen acknowledged in October 1992 in the statement accompanying the first version of their peace plan. The recognition of Bosnia and Herzegovina as an independent state-when, by the standards the European Community's Arbitration Commission applied to justify their derecognition of the former Yugoslavia, Bosnia and Herzegovina was in a "process of dissolution"-was meant to forestall the Serb and Croat Anschlussen of large areas of Bosnia and Herzegovina. This attempt failed, with these Anschlussen accomplished in the way that Vance and Owen foresaw that they would be, through "enforced population transfers" to achieve "homogeneity and coherent boundaries" for the new nation- states (Vance and Owen, Report of the Co-Chairmen, October 27 1992, p. 4).
It is, in fact, best to look at the entire international effort to maintain the fiction of a single Bosnia and Herzegovina as an exercise in negative sovereignty. The point of refusing to accept the disintegration of Bosnia is not to preserve the state for a citizenry that defines itself as a multi-ethnic Bosnian nation, for it is clear that few citizens now do so. Instead, the point is to deny to the large Serbian and Croatian parts of the population who reject the putative Bosnia and Herzegovina state their desire to remove themselves from it, along with much of its territory. The motivation for this course of action may be noble, since the process of separating the intertwined populations of Bosnia and Herzegovina has been as brutal as Vance and Owen feared it would be when they initially rejected the idea of dividing Bosnia and Herzegovina into three ethnic republics. The result, however, is the attempted imposition of a state on many, perhaps even on a majority, of its putative citizens against their wishes. This is negative sovereignty: legal and diplomatic recognition of a state not because its people have shown a willingness to build it, but precisely because large segments of its population have no wish to do so.
From "limited" self-determination to
negative sovereignty
The justification for recognizing the independence of the various Yugoslav
republics was the right to self-determination. However, the international
community that acceded to this principle made a logical error in attempting
to recognize a right of "limited" self- determination, "namely, the right
of the citizens of the individual Yugoslav republics to decide
democratically within the framework of existing frontiers...whether and to
what degree their republics should be part of a Yugoslav state
("Recognition of the Yugoslav Successor States," position paper of the
German Foreign Ministry, Bonn, March 10, 1993). The logical lapse was the
failure to recognize that the justification for the establishment of the
republics themselves was state chauvinism, with each republic as the
Heimat of its majority nationality, which, in turn, was the bearer of
sovereignty. The constitutions of the former Yugoslav republics justify
the existence of the state on the "right to self-determination" of each
ethnically- defined nation or narod, rather than on any wish of citizens
to build a democratic state. (See the preambles of the constitutions of
Croatia 1990, Macedonia 1991, Montenegro 1992, Serbia 1990, and Slovenia
1991.
Bosnia and Herzegovina itself was never able to enact a new constitution.
See, "Constitutional Nationalism in the Formerly Yugoslav Republics,"
Slavic Review, Vol. 51, No. 4, Winter 1994, pp. 654-673.)
While these republics were indeed premised on a vision of "government of the people, by the people, for the people," they did not imagine the "new birth of freedom" envisioned by Lincoln. Instead, they manifested a different ideology, of government of one kind of people, by that kind of people, for that kind of people, at the expense of all others in the state who are not so fortunately situated. Hardly a vision of undominated equality, what these constitutions defined and were meant to implement was and is a system of permanent domination and inequality, of, by and for the majority, the ethnically defined "nation" or narod.
Since Bosnia and Herzegovina, like Yugoslavia itself, had no majority population, it could not be any nation's homeland unless the separate peoples of Bosnia and Herzegovina chose to imagine themselves as one community. This they did not do, voting overwhelmingly for separate Muslim, Serb, and Croat nationalist parties in the 1990 elections, thus partitioning themselves politically in a way that led directly to the partitioning of the country. Once the supposedly "limited" right to self-determination was recognized for the majority nations in the other republics, the Serbs and Croats of Bosnia and Herzegovina applied it to themselves without limitation, choosing to join their mother republics rather than remain in Bosnia and Herzegovina. The Agreed Principles permit them do this in all but name.
International insistence on the facade of Bosnia and Herzegovina is the last manifestation of negative sovereignty, a symbolic rejection of the right of so many of the citizens of Bosnia and Herzegovina to self- determination. As such, it shows the naivete of the original attempt to recognize a "limited" right to self-determination.Squaring a vicious circle: self-determination and supposedly inviolable borders
In 1918, Woodrow Wilson's secretary of state, Robert Lansing, objected to his president's embrace of the principle of "self-determination" on the grounds that "the phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited." In 1921, however, Mr. Lansing noted that "self-determination" and "the consent of the governed" "mean substantially the same thing and have to an extent been used interchangeably by those who advocate the principle as a standard of right." He predicted that were the principle applied uniformly, "fixity of national boundaries and of national allegiance, and political stability would disappear."
Lansing was, of course, wrong about the principle being discredited, but he was certainly right about the consequent problem of the stability of borders and that many lives would be sacrificed in the process. He was also right about the congruence of the principle of self-determination with that of the consent of the governed, and herein lies a main problem of post-socialist democracy in some parts of central Europe. When the majority is mobilized on ethnic grounds, minorities are incompatible with the definition of the state, and those that form a local majority are likely to try to secede, particularly when they can anticipate acceding to a neighboring state under the control of their ethnic confreres. This is the situation of Serbs and Croats in Bosnia and Herzegovina, Russians in Ukraine and Moldova, Albanians in Kosovo and Macedonia, Armenians in Nagorno-Karabakh, Kurds in Turkey, Iran and Iraq, Tamils in Sri Lanka, and Muslim Kashmiris in India. The list goes on.
This is hardly a new problem, and it can be addressed in many ways. In the 1920s, Turkey was stabilized by the expulsion of the Armenians and a "population exchange" with Greece, while in the 1940s Czechoslovakia ended its minority problem by expelling three million Germans. Poland expelled six million Germans and lost, one way or another, three million Jews. Similarly, Turkey ended ethnic conflict in Cyprus by de facto annexing northern Cyprus and expelling the area's resident Greeks. Another approach is through military rule, along the lines of India in Kashmir, Israel on the West Bank, and Serbia in Kosovo; but as these examples show, this strategy is difficult to maintain in the long run.
The conflict here is between principle-that borders are inviolable-and reality-that a part of the population of the state is excluded from the sovereign body and therefore rejects inclusion in the state that rejects it. In this situation, reality will win unless the borders are defended by the suppression or expulsion of the minority.
Yet perhaps the sorry saga of Bosnia and Herzegovina shows how the illusion can be created that principles have not been violated, while reality is still accommodated without either ethnic cleansing or military rule. The September 1995 Agreed Principles read with the Constitution of the Croat-Muslim "Federation," furnish a clear recipe for the partition of Bosnia and Herzegovina both de facto and de jure, provided that all parties are willing to participate in the charade of pretending that the Republic exists when it actually does not. The recipe is simple: the RS and Serbia (the FRY) need only copy the Framework Agreement, particularly Clause 2, on the lack of effect of the arrangement on the legal identity of the parties. They may then adopt internal regulations and a joint defense structure. The result would be that Bosnia and Herzegovina exists on the map and on the East River in New York, but not on the ground. This is, of course, a political illusion on a grand scale, but one that does in fact recognize reality. The alternative is either the expulsion of the Serbs from Bosnia-which would constitute genocide under international law-or their permanent oppression by an occupation regime. If the Agreed Principles stabilize the situation, and give the illusion of accommodating the principle of inviolable borders with the reality of ethnic partition, they are a useful charade.
Postscript: the Dayton Constitution of November 1995 On November 21, as this article was going to press, negotiations between the presidents of Serbia, Croatia, and Bosnia-Herzegovina at Wright- Patterson Air Force Base in Dayton, Ohio produced a "General Framework Agreement for Peace in Bosnia and Herzegovina" that was accepted by all three parties. (The Dayton documents are in possession of the author. As of November 29, they were not published in their entirety.) Annex 4 of that Agreement was a "Constitution of Bosnia and Herzegovina," to enter into force "upon signature of the General Framework Agreement" (Art. 7). (Draft Constitution for Bosnia and Herzegovina, Dayton, Ohio, November 21, 1995. Unless otherwise indicated, all references to constitutional provisions in this postscript are to this draft.) The Constitution (Art. I.3) specifies that "Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska." While neither space nor time permit a full analysis of this document, a few general comments may be made.
First, the Dayton Constitution manifests a parody of democratic drafting. While the Preamble asserts that "Bosniacs [i.e., Muslims], Croats, and Serbs, as constituent peoples (along with "Others") and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows," this Constitution comes into effect only upon signature of the Framework Agreement by two parties, Croatia and the Federal Republic of Yugoslavia, which are not, by definition, included among the "citizens of Bosnia and Herzegovina." The citizens of Bosnia and Herzegovina, in fact, had no role whatever in drafting or enacting this Constitution. Provisions in Annex 4 of the Framework Agreement for signature by representatives of the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and the Republika Srpska are meaningless by the terms of the Constitution itself, which does not condition its entering into force on its acceptance by those meant to be bound by it.
This parody of democratic drafting might be acceptable if the Constitution itself were a reasonable attempt to build a workable constitutional state. If it was meant as such an attempt, however, the Dayton Constitution fails. The powers of the central government authority are either so limited as to render the state a nullity, or else are completely unrestricted. The Parliamentary Assembly can be easily hamstrung in its operation unless its two houses may act without a quorum; the presidency can be blocked from exercising any function by the actions of one of the entities. Finally, this "Constitution" may be amended by ordinary legislation. By a logic known to American lawyers since Marbury v. Madison in 1803, this amendment power vitiates the supposed constitution, rendering it a logical nullity. As Chief Justice Marshall said in Marbury, "The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.... If the latter part be true, then written constitutions are absurd attempts...to limit a power, in its own nature illimita ble." By this classical American reasoning, the Dayton draft is absurd.
Central government authority: either
nonexistent or unlimited
The grants of legislative and executive authority in the Dayton Constitution
are confusing. Article 3.3.a provides that: "All governmental functions and
powers not expressly assigned to the common institutions of Bosnia and
Herzegovina shall be those of the Entities." The "institutions" are the
Parliamentary Assembly, the presidency and the Constitutional Court, and
so we must look to the powers expressly granted them. The powers
enumerated in Art. 3.1 are: (a) foreign policy, (b) foreign trade policy,
(c) customs policy, (d) monetary policy as provided in Art. 7, (e)
finances of the institutions and for the international obligations of
Bosnia and Herzegovina, (f) immigration, refugee, and asylum policy
and regulation, (g) international and inter-entity criminal law
enforcement, including relations with Interpol, (h) establishment and
operation of common and international communications facilities,
(i) regulation of inter-entity transportation, and (j) air traffic
control. By this list of enumerated powers, Bosnia and Herzegovina
seems to be essentially a customs union with a foreign ministry, thus
indeed a government with no authority within its territory-Alexander
Hamilton's "mimic sovereignty." Since neither the Serb nor the Croat
parties elected in the free and fair elections in 1990 have been willing
to permit any central government authority over the territories they
control, this particular mimic sovereignty, like that of the Federation
itself, could provide a useful cover for accommodating the political
reality that both the Serbs and the Croats reject the Bosnian state.
Article 3.5, however, provides that "Bosnia and Herzegovina shall assume responsibility for other matters as...are provided for in Annexes 5-8 of the General Framework Agreement; or necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina. Additional institutions may be established as necessary to carry out such responsibilities." Annexes 5-8 refer to arbitration between the entities (Annex 5), human rights (Annex 6), refugees and displaced persons (Annex 7), and the preservation of national monuments (Annex 8). This supplemental grant of authority is virtually an unlimited grant of power to central authorities (but which ones?) to assert governing power in any field, under cover of preserving the "sovereignty" of the state, particularly since "immigration regulation" and "preserving territorial integrity" imply the physical control of borders.
The Dayton draft, in short, provides an express grant of authority to central institutions that is so limited as to be meaningless, and an implicit grant of authority that is so broad as to be unlimited. The first possibility renders the Bosnian state a nullity; the second provides the means to render an entity, presumably the Serbian one, a nullity.
Parliamentary authority
The Parliamentary Assembly created by the Dayton Constitution is to be
composed of two chambers, a House of Peoples of 15 delegates, specified
as five Croats and five "Bosniacs" from the Federation and five Serbs
from the Republika Srpska (Art. 4.1); and a House of Representatives
composed of 42 members, "two-thirds elected from the territory of the
Federation, one-third from the territory of the Republika Srpska"
(Art.
4.2). The powers of this body are: "enacting legislation as necessary to
implement decisions of the Presidency or to carry out the responsibilities
of the Assembly under this constitution" (Art. 4.4.a), deciding on sources
and amounts of revenue, approving a budget for central institutions,
deciding whether to consent to the ratification of treaties, and "such
other matters as are necessary to carry out its duties or are assigned to
it by mutual consent of the Entities" (Art.4.4.e). The first clause of
this grant of power seems to subordinate the Parliamentary Assembly to the
Presidency. The other clauses seem limited to budgetary matters, except
that Parliament regulates citizenship (Art. 1.7), determines the
responsibilities of the Central Bank (Art. 7.1), may amend the
Constitution (Art. 10.1), and shall, with approval of the Presidency,
decide on state symbols (Art.
1.6).
Of these powers, the most critical may be that of amending the Constitution , discussed below. The others are so vague that it probably does not matter that procedures for making decisions in the Parliamentary Assembly are such that any decision can be easily blocked.
By Art. 4.3.c, all legislation requires the approval of both chambers. However, Art. 4.3.d provides that all decisions in each chamber shall be by a majority of those present and voting, provided that dissenting votes do not include two-thirds or more of the members elected from either entity. Read with Art. 4.2.b, which says that "a majority of all members elected to the House of Representatives shall comprise a quorum," 4.3.d would make it possible for the Croat and Muslim members of that house to assemble without the Serb members, declare themselves a quorum, and pass valid legislation. The Dayton Constitution carries no provision comparable to the clause in Art. 1.6 of the U.S. Constitution, which says that "Senators and Representatives...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same." Members of the Bosnian assembly are only relieved of criminal and civil liability "for any acts carried out within the scope of their duties" in the Assembly (Art. 3.1.j), not privileged from arrest. Thus local authorities may prevent members from attending sessions of the house to which they have been elected. Since Sarajevo is named the capital (Art. 1.5) but there is no provision establishing the seat of the central government as itself a self-governing entity (such as the District of Columbia or the Union Territory of Delhi), there is nothing to prevent local Muslim authorities in Sarajevo from obstructing the attendance of Serb members to the Parliamentary Assembly. Article 4.1.b, however, specifies that in the House of Peoples, a quorum is comprised of nine members, and must include at least three Serbs, three Bosniacs and three Croats. Presumably, then, no legislation can be passed if one group boycotts the House of Peoples. Thus Parliament can be blocked by absenteeism, with the possible exception of amendments to the constitution (discussed below).
The presidency and Constitutional Court The Dayton Constitution (Art. 5) also provides for a three-member presidency, one Serb, one Croat, one Muslim, with a rotating chair. While the competency of the presidency, like that of Parliament, is either so limited as to be meaningless or so broad as to be unlimited, a cumbersome procedure for minority annulment of presidency decisions exists (Art. 5.2.d). Art. VI provides for a nine-member constitutional court, with four members from the Federation, two from the Republika Srpska, and three selected by the President of the European Court of Human Rights. This provision is a parody of the sovereignty of Bosnia and Herzegovina, since it gives decision-making powers to people who, by constitutional mandate, may not be citizens of the country.
Amendment procedure: the "Constitution" as ordinary legislation Article 10.1 provides for an extraordinarily easy amendment procedure: "This constitution may be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives." Note that by the procedural rules of Art. 4.2, 22 Croat and Muslims members of the House of Representatives could constitute themselves as a quorum and vote an amendment without the participation of Republika Srpska delegates. Of course, the Republika Srpska could boycott the House of Peoples, thus preventing a quorum there. But in a bit of drafting either blindly careless or mindfully cunning, Art. 10.1 provides for amendment by decision of the Parliamentary Assembly, while Art. 4.3c specifies that legislation requires the approval of both chambers. Do amendments thus require approval by both chambers? The Dayton Constitution does not say. Human rights, democracy, and other empty phrases The Dayton Constitution, like the Federation Constitution of 1994, also drawn up under American supervision and signed in the United States, gives priority to human rights (Preamble and Art. 2). Yet these are meaningless. As James Madison noted in 1787, "In framing a government...the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." The Dayton Constitution professes to undertake the latter task, but ignores the first one. It does not provide a workable constitution for a viable state. From negative sovereignty to constitutional parody We may end where we began, with the Dayton Constitution as a parody of democratic constitutional drafting. Despite all of the rhetoric contained within it about human rights and democracy, the Dayton agreement amounts to trying to create a framework for a state when the state itself is rejected by a large portion of its putative citizens. It is for this reason that the Constitution could not be conditioned on acceptance by the Bosnian people themselves. The Dayton peace plan pretends to create a state without the consent of the governed, which is the logical outcome of a regime of negative sovereignty.