Bosnia Herzegovina and the EU
Bosnia and Herzegovina is – along with Kosovo – the only country in the Western Balkans that has not yet applied for membership in the European Union. Other than during the mandate of former Prime Minister Adnan Terzic (2002-2006) – with Osman Topcagic at the helm of the Directorate for European Integration and Igor Davidovic heading the negotiations on a Stabilisation and Association Agreement – the country's political leaders have lacked determination to push Bosnia closer to membership. The EU's inconsistency, as well as the introduction of extra conditions, has not helped either.
The first notable step came in 2003, more than seven years after the end of the war. The European Commission conducted a so-called feasibility study for a Stabilisation and Association Agreement (SAA). Its results, outlining 16 priority areas where progress was required before negotiations could start, were announced in November that year. As Osman Topcagic recalled in an interview with ESI:
"That was really the signal for an unprecedented mobilisation of resources in Bosnia. We operationalised the requirements and we arrived at a list of 45 or 46 laws that needed to be adopted, as well as some 27 institutions that needed to be established, upgraded or modified. It was really a big reform effort. Most was done in a year, as the Commission envisaged, but then there were a few political requirements that needed more time: police reform and reform of the public broadcasting system."
Negotiations for an SAA were finally opened on 25 November 2005 but ran into turbulence because of the OHR's insistence on reform in the police sector. The European Commission eventually succumbed to pressure by the OHR and introduced police reform as a condition for the signing of an SAA.
There were no EU standards on how to organise a police force, however. No country had ever been asked to implement such reforms – neither as a prelude to an association agreement nor to EU membership. Less than a month after ESI exposed these inconsistencies in its discussion paper The Worst in Class, the EU backed down. Bosnia and the EU initialled the SAA on 4 December 2007. It was signed on 16 June 2008, but took 32 months for all EU members to ratify, with France being the last to do so, in February 2011.
As of August 2012 the SAA is still not in force, however. Bosnia has not brought its constitution into compliance with the Convention for the Protection of Human Rights and Fundamental Freedoms, which constitutes an "essential element" of the SAA (article 2). The European Court of Human Rights has found constitutional provisions stipulating that only Bosniaks, Croats and Serbs can stand for election to the presidency and the House of Peoples to be discriminatory, as they exclude citizens not belonging to these groups (see ruling Sejdic and Finci v. Bosnia and Herzegovina). As long as this issue is not addressed, the SAA will not enter into force.
The absence of an SAA is one major reason why Bosnia has not yet handed in its application – but it is not the only one. As other countries of the region moved closer towards EU membership, the question of Bosnia's protectorate structure turned up. The European Commission's "enlargement strategy" published on 14 October 2009 stated that "the European Union would not be able to consider an application for membership by Bosnia and Herzegovina until the OHR has been closed." This was also announced by Olli Rehn, the then Enlargement Commissioner.
However, the EU soon began to have second thoughts. And while the EU's General Affairs Council of 7 December 2009 confirmed the closure of the OHR as a prerequisite to membership application, it softened it. According to the Council conclusions, the EU would not be in a position to consider an application for membership "until the transition of the OHR to a reinforced EU presence has been decided."
At the Foreign Affairs Council on 26 July 2010 the EU foreign ministers "discussed the need to recreate momentum for change in Bosnia and Herzegovina after the elections in October, with a stronger EU presence to use the EU perspective for BiH as a driver for change." The General Affairs Council of 14 December 2010, meanwhile, introduced the concept of a "credible application for EU-membership," abandoning the condition of OHR closure. This still leaves the door open for individual member states to cite the continued existence of the OHR to block or slow down an EU response to a future application by Bosnia. What remains clear is that for Bosnia to proceed beyond an application, the OHR has to be dismantled.
For now, the common line is to insist on a "credible application." The wording, while still less than precise, was given more substance by the Foreign Affairs Council of 21 March 2011:
"The Council emphasises, while referring to the Council conclusions of 14 December 2010, that as a matter of priority, the country needs to bring the Constitution into compliance with the European Convention of Human Rights (ECHR). A credible effort in this regard is key to fulfilling the country's obligations under the Interim/Stabilisation and Association Agreement. The adoption of a State Aid Law at state level is a further obligation stemming from the IA/SAA. In addition, the adoption of a state level census law and speeding up reforms are important elements of the country's EU integration process. Progress in addressing these issues would demonstrate the commitment of the authorities and the political parties to the EU integration process. A satisfactory track record in implementing obligations under the SAA/IA would be a key element for a credible membership application to be considered by the EU."
The Foreign Affairs Council, meeting on 25 June 2012, took positive note of the adoption of the state aid and census laws and of the political agreement on state and immovable defence property. While the establishment of "an effective coordination mechanism for engagement with the EU as well as ensuring fiscal sustainability remain key priorities," the only explicitly named conditions for a "credible membership application" are implementation of the Sejdic/Finci ruling and a satisfactory track record in implementing obligations under the SAA/Interim Agreement. The General Affairs Council on 7 December 2009 already noted the "satisfactory implementation of the Interim Agreement as a whole." The only new issue not yet addressed is the implementation of the Sejdic/Finci ruling.
In our report Lost in the Bosnian labyrinth (2013) we argue why the Sejdic-Finci case should not block an EU application. In Houdini in Bosnia (2013) we develop the argument further and present a proposal how to move on from the current deadlock.
Speaking in Sarajevo on 24 April 2012, European Commissioner Stefan Fule stated: "I am enthusiastic for Bosnia to apply for the EU membership. But I hope to see the Stabilization and Association Agreement, the SAA, entering into force before that."
Seldom in recent history has a country come so close to receiving an explicit invitation to submit an EU application. Croatia, but also Macedonia, Montenegro and Serbia were advised by different EU member states to wait. Once they went ahead with an application, however, the process kicked into gear, with the Council requesting the Commission to prepare an opinion.
Moreover, Croatia and Slovenia did not wait for their association agreements to enter into force. When Croatia's SAA ratification got stuck – some member states thought it was not co-operating enough with the International Criminal Tribunal for the former Yugoslavia (ICTY) – Zagreb broke the deadlock by handing in its membership application on 21 February 2003. It received a positive opinion on 20 April 2004, long before the SAA entered into force on 1 February 2005. Slovenia was even more determined. It handed in its membership application on the very day (10 June 1996) it signed an association agreement.
In all of these cases, the decision to formally apply for EU membership entailed some courage and determination. These qualities, apparently still in short supply among Bosnia's political leadership, are what the country needs if it is to catch up with its more advanced neighbours.
20 June 2014
Discussion paper: Houdini in Bosnia. How to unlock the EU accession process (2013)
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