13 March 2014

Lost in the Bosnian labyrinth – five months later

A few months ago ESI published two reports on EU conditionality concerning Bosnia.

These publications were  followed by many reactions.

A number of EU foreign ministers wrote to me to say that they fully agreed with the arguments. So did senior staff in the European Commission. So did senior diplomats in a number of EU member states.  There have  been a lot of Media reactions.

We argued that given other priorities facing Bosnia – social and economic reform being primary – focusing on this issue to the exclusion of almost everything else was simply not a good use of the time of the country’s leading politicians. Nor did it make sense to step into the fray in the way this had been done by the European Commission.

Since we published our reports the debate has started to move, but only very slowly.

Doubts among EU member states have grown.

The European Commission has since given up trying to mediate (we suggested this already in October, arguing that it was extremely unlikely to succeed).

We learned that lawyers working for the Council of Europe were asked to check whether our arguments were legally sound, and that they concluded – internally- that they were.

However, until today Bosnia remains stuck, held hostage by this condition.

In our first report we gave three reasons why we believed that the Commission was not treating Bosnia fairly. We believe they are still valid  5 months later:

  • 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, we noted, 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.

(see also: Not for lack of trying. Chronology of efforts to solve the Sejdic-Finci conundrumInterview with Gerald Knaus in Dnevni Avaz, “Koncept “ostalih” vrlo je čudan” (2 October 2013) – also available in English: “The concept of “others” is very strange”Interview with Gerald Knaus in Dnevni Avaz: “It won’t be Bosnia’s fault if visas are re-imposed” (12 September 2013))

 

Houdini in Bosnia – How to unlock the EU accession process

 

Interestingly, our arguments were  also taken seriously by another think tank focusing on Bosnia, DPC, which published a whole paper to address the arguments we made.

The title of the DPC paper is a bit complicated: “Legal Misunderstandings, False normative Hopes  and the Ignorance of Political Reality – A Commentary on the recent ESI Report “Lost in the Bosnian Labyrinth”.

It is clear what is being meant: ESI got it wrong. However, if this was easy to understand, the same could not be said for the rest of the argument (found here: http://democratizationpolicy.org/uimages/DPCPolicyNoteNewseriesSejdicFinci.pdf).

So I sent an email to DPC on 20 November 2013 to take our mutual understanding of the issues one step further. Here it is:

“Hi Bodo,

I just read the DPC paper on our ESI paper on Sejdic Finci.

It is flattering to have a whole policy paper devoted to our paper, but there are some arguments in the text which are perhaps not totally convincing?

I quote a few passages and make a few remarks, wondering what you think.
1. “the paper appears to be an effort to provide an ideological framework for the EU to move beyond its continuing failures in BiH that have enabled local politicians to undo many of the highly-touted reforms put in place prior to 2006, when the EU assumed policy leadership.”
This is puzzling. The author first appears to argue that the EU has failed since 2006, and that our paper provides an “ideological framework” to “move beyond its continuing failures” .. but then he implies that this is bad? How can moving “beyond failure” be a bad thing? And what is an ideological framework here?
(Which “highly-touted” reforms have been undone? This is never explained, just stated.)
2. “ESI compares this case to voting and selection processes in other EU member states, including Belgium, Italy (South Tyrol) and Cyprus, and concludes that similar provisions (sometimes even stricter) are also applied in other EU member states. These states however, are not sanctioned by the EU. Legally speaking, this assessment is correct. However, the devil is in the details.”
If this is “legally speaking correct” – here we agree – how can “details” make it legally incorrect? Or is it “legally correct” but “politically incorrect”? How can that be?
3. “while the Belgian and the South Tyrolean examples also demonstrate some form of discrimination, it is nevertheless a form of positive discrimination. The aim of the power-sharing arrangements in both countries is to allow for minority groups to participate in decision-making. Hence, the legal framework has to be understood in the context of the intended aims of power-sharing mechanisms. In the case of Brussels, it is a mechanism to engage Flemish speakers in the officially bilingual but mainly French-speaking city, and in the case of South Tyrol it gives representation to German and Ladin speakers.”
How is this different from Bosnia where there is a Croat minority?
We note that all the current debates to find a solution to Sejdic Finci turn on how to help the Croats ensure that they can elect “their representative”. Is this so different from Belgium?
Note also that there are many other minorities, including the constituent (in Belgium) group of Germans or other EU residents in South Tyrol, who, in order to participate in some functions, have to declare that they belong to one of the categories presented to them. How is this different from Bosnia?
4. “A political system that is characterized by ethnically exclusive parties does not allow for flexibility.”
This is also puzzling, given that in Belgium all parties are either Flemish or Walloon, and in Bosnia, by contrast, Komsic was elected on the SDP ticket twice. A man from Ghana was the “Croat” ambassador in Japan for Bosnia. Sven Alkalaj, a Croatian citizen and Jew was also member of the government for a (Bosniac or Bosnian?) party. How then can Bosnia be considered less flexible than Belgium?
5. “. What ESI basically suggests is that EU’s conditionality, in particular the ocus on fundamental human rights, should not apply to BiH at this stage”
Where did we suggest this? Which “fundamental human right” should not apply?
6. “The Republika Srpska’s calls for secession have become louder, while Croats undermine the current constitutional framework with their demand for a de facto or de jure third entity. No reform that involves the current elites within the current framework will be able to cure these problems.”
How is this related to Sejdic-Finci? Here it seems that the RS is not the problem (and not even involved in the most recent rounds of talks). The solution that is likely to emerge in the end, and which would address the ECHR’s judgement, could well end up creating a Croat de facto electoral district in the Federation, no? Is this then good or bad?
And if it were true the current elites cannot solve this problem, what should happen instead? It is after all the current elites that are negotiating Sejdic-Finci implementation since 3 years. If they cannot agree and will not agree then everything just stays as it is now. Is this a solution?
7. “But this also means that the unwillingness to reform must be penalised and that Bosnian elites should be punished for non-compliance”
Who is to be punished over Sejdic Finci? Every party has made a proposal, and each proposal meets the conditions by the ECtHR  … it is just that they cannot agree among each other on the one proposal to chose. Should all be punished now?
In short, we understand that there may be disagreements on how important Sejdic Finci is, but the irony is that a deal that might satisfy the EU and the ECtHR and that is actually in sight is one that makes the election of someone like Komsic less, not more, likely. Is this progress in your view?
And if any one of the proposals on the table now IS chosen in the end … would Bosnia”s constitutional or other problems of governance be solved in any meaningful way?
Was this worth the time and effort and resources spent on it for three years now? We doubt this. But if this is not worth it … why continue the current policy, where this has become the number one issue discussed by Bosnian leaders?
Thanks again for taking our paper seriously and taking the time to discuss it in detail, best wishes ,
Gerald”

I received a very polite response within a few days, promising some answers eventually. Since then I have not heard anything. Perhaps the responses will still come.

In the meantime we can just wait until all those in the EU – and inside the European Commission – who know that the current policy is counterproductive begin to speak out in public.

 

 

 

Further reading:

 

Filed under: Balkans,Bosnia,Enlargement,Europe,Human rights — Gerald @ 6:05 pm
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