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Lost in the Bosnian labyrinth
Why the Sejdic-Finci case should not block an EU application
In December 2009 the European Court of Human Rights found – in its judgement in the case Sejdic and Finci vs. Bosnia and Herzegovina – that the constitution and election law of Bosnia and Herzegovina violate the European Convention on Human Rights and its protocols. Bosnia’s laws require that political candidates identify themselves as “Bosniak”, “Croat” or “Serb” in order to be able to run for president or become a member of the upper house of the state parliament. Behind the international interest in this case lies a strong sense of moral outrage. How can a country in today’s Europe prevent a Roma or a Jew from running for head of state? Is this not a racist constitution?
Four years have passed since the ruling. Bosnia’s constitution and election laws have not changed. In December 2010 the Council of the EU told Bosnian leaders that the implementation of the ruling was a condition for a “credible application” for EU membership. Since then, the EU has warned that if the issue is not resolved, it will block the country’s path to the EU.
On 1 October 2013 Bosnia’s most influential politicians travelled to Brussels and agreed on “principles for finding an agreement”. They set a new deadline for reaching it – 10 October 2013. However, it is possible that once again no agreement will be reached. The looming question for the EU then becomes: what next? In this paper we argue that the current EU policy of blocking Bosnia and Herzegovina over this issue is unfair and counterproductive. There are three reasons why:
– This is not an issue of institutional “racism”.
Apartheid South Africa had a racist electoral system. Bosnia does not. Neither does Belgium or South Tyrol, although in both countries legislation requires
citizens to declare a community affiliation for certain purposes, similar to Bosnia. However, only in Bosnia is the ethnicity of any individual not defined in
official documents. By leaving it up to any individual to determine how to self-identify – and allowing any individual to change this self-identification
in the future – the Bosnian system is more liberal than either Belgium’s or South Tyrol’s. Unlike in Cyprus, it is also not tied to any objective criteria such as religion or the ethnicity of parents. In fact, in 2004 the EU endorsed community-based voting and praised the UN Annan plan for Cyprus based on the very principles that Bosnia’s constitution embraces.
– Bosnia is not violating fundamental human rights.
The issue at stake in the election of the Bosnian presidency – the most complicated issue to resolve – is not a violation of any rights enumerated by the European Convention on Human Rights itself. It is a violation of Protocol 12 of the Convention, which extends the applicability of non-discrimination from “the rights and freedoms set forth in the Convention” to “any right set forth by law”. This protocol has so far been ratified by only 8 out of 28 EU member states.
– This is not an issue of Bosnia systematically violating its international obligations.
Bosnia’s record implementing European Court of Human Rights’ decisions is better than that of most current EU members.
For all these reasons, non-implementation of the Sejdic-Finci decision cannot justify blocking Bosnia and Herzegovina’s application for EU membership. The very reforms that the EU expects from Bosnia have not been asked of other EU applicants, much less of its own member states.
The summit on 10 October in Brussels should be the last of its kind. The best case outcome would be that Bosnia’s leaders agree to a solution. However, if they do not, the EU should rethink its current policy and demand that Bosnia and Herzegovina implements this decision as part of wider constitutional reforms that it will undertake during the accession process itself. It should not be a precondition. Making it one was a mistake.