"The peace agreement for Bosnia is the most ambitious document of its kind in modern history, perhaps in history as a whole,” wrote Carl Bildt, the first High Representative, in 1998. The Bosnian constitution was agreed in Dayton in three weeks of intense negotiations in November 1995. It took many years for a comprehensive debate to start on how it should be reformed. To this day, no common vision of constitutional change has been agreed.
Immediately after Dayton, the implementation of the existing agreement had priority over any discussion of changing it. At the time, nationalist parties from the former warring sides were strongly resisting implementation of key parts of the Agreement.
Bruce Hitchner, the Chairman of the Dayton Peace Accords Project at Tufts University in Boston, has described this process:
"Warring sides were prepared to continue their struggle by political means. As a result, the Dayton Peace Accords and the constitution devolved rapidly from an interim solution to a virtually fossilized governing instrument. The international community, fearful that renegotiation of the accords would reignite conflict, acquiesced to this interpretation and focused its energies on keeping the peace, directly confronting nationalist obstruction to implementing the accords, and merely tinkered with reform around the edges of Dayton."
Prof. Bruce Hitchner. Photo: tuftsjournal.tufts.edu
The central BiH government had been granted only limited responsibilities under the Dayton Accord. Over the years, however, these responsibilities were strengthened through the transfer of competences from the entities to the centre. Under the pressure from the international community, key elements of a central state structure were put in place: a state border service; a unified intelligence service; security, defence, and justice ministries; a state-level value-added tax (VAT); a State Court and prosecutor; criminal and criminal procedure codes; as well as a civil service commission.
In 2003, in a major step-forward, the state-level Presidency assumed central command over the armed forces. A central BiH Defence Ministry was established in 2004, and a unified chain of command for the three previously separate armies was introduced. Since 2006, the tax and customs administration is also unified and operational.
When Bosnia and Herzegovina joined the CoE in April 2002, the CoE Parliamentary Assembly concluded that:
"The state institutions should be strengthened at the expense of the institutions at Entity level, if need be by a revision of the constitution."
In 2005, the Venice Commission of the Council of Europe issued a report – later adopted by the Parliamentary Assembly – warning about the need for further reform.
"With such a weak state Bosnia and Herzegovina will not be able to make much progress on the way towards European integration. The negotiation of a Stabilisation and Association Agreement with the EU requires institutions at the State level with the necessary capacity and expertise to deal with the wide range of issues covered by such agreements."
Paddy Ashdown and Javier Solana. Photo: ohr.int
The European Union's High Representative for Common Foreign and Security Policy, Javier Solana, noted on 16 May 2005:
"The time will come when BiH politicians will agree that constitutional change is required – but sustainable reform can only happen through BiH institutions and with the agreement of all three ethnic BiH peoples."
Donald Hays, Former Deputy High Representative. Photo: ohr.int
Another initiative on Bosnian constitutional reform was taken across the Atlantic. A small group of U.S. experts had set up an ad hoc negotiating group led by the former Deputy High Representative, Donald Hays, and two US academics, Bruce Hitchner and Paul Williams.
Paul R. Williams, Director Public International Law and Policy Group. Photo: pilpg.org
The group established a working body of politicians from all relevant Bosnian parties. Bruce Hitchens wrote of the discussions:
"The Bosnian Serbs were tacitly willing to marry the future of Republika Srspka with that of Bosnia and Herzegovina. […] In return for long-term recognition of the Republika Srpska, the Croat leaders […] sought constitutional reform as a mechanism for increasing their political strength. In the absence of the creation of a third federal entity for Bosnian Croats, they wished to create and empower a highly decentralized state government. The Bosniak parties […] were committed to a highly streamlined, empowered, citizen-based state government that was no longer dominated by the entities."
The Parliamentary Assembly of Bosnia and Herzegovina. Photo: parlament.ba
By the spring of 2006, the Bosnian parties managed to achieve a minimum consensus on constitutional reform. The "April package", as the agreement was to be called, included provisions for a streamlining of the three-man Presidency, as well as the indirect election (not a direct one, as in the Dayton Agreement) of a state-level President and of two vice-presidents with reduced powers. It also included the creation of two additional ministries at state level and reinforced the competences of the state level government
On 26 April 2006, the "April Package" failed – by just two votes – to reach the required two-thirds majority in the House of Representatives of Bosnia and Herzegovina. Haris Silajdzic rejected the plan on the grounds that it did not go far enough (i.e. that it did not eliminate the RS and the entities). A new Croat party also voted "no”. A consensus on re-launching the initiative has not yet materialized.
The Parliamentary Assembly of the Council of Europe adopted another resolution in 2006, calling on the Bosnian political elite to reform the governance structures of Bosnia and Herzegovina.
"The continuing weakness of the state,” it stated, “and the constitutional necessity to ensure full equality at every level between the 3 constituent peoples have led to a situation where around 60% of the GDP is still spent on maintaining state and entity apparatus: there are 3 rotating presidents at state level, 2 presidents at entity level, 13 prime ministers, over 180 ministers, 760 members of various legislative bodies and 148 municipalities."
In fact, the complex Dayton setup is not quite the massive haemorrhage of resources that the Assembly suggests it to be. In 2006, Bosnia's GDP was about 19 billion KM (9.7 billion euros). State revenue was 8.6 billion KM. Half of it (4.2 billion KM) was spent by the different state layers on wages, expenditures and public administration services. In other words, the state administration actually consumes about a fifth – and not, as the CoE claimed, three-fifths – of Bosnian GDP.
The 4.2 billion KM budget also pays for 187,523 state employees, including doctors, nurses and the police. In 2006, 5.6% of the population of Bosnia Herzegovina is on the public payroll (it was to rise, quite moderately, to 6.2% in 2007). By regional standards, this is not particularly high. In Croatia, for example, the corresponding figure was 5.3%.
Bosnia’s economy has grown by 5.2 % on average in the past five years, with a high of 6.7% in 2006 and 6% in 2007. Exports have doubled from 1.9 billion KM in 2003 to 4.1 billion KM in 2007. Employment has been growing and unemployment, for the first time in years, has slightly declined, to 29%. Foreign direct investment leapt from 564 million Euros in 2006 to 1.478 million Euros in 2007.