Electoral rights, a thorn in EU accession negotiations with Bosnia and Herzegovina

The recommendation by the European Commission to open EU accession negotiations with Bosnia and Herzegovina (BiH) on March 12th marks a significant milestone in the country’s journey towards European integration. This recommendation comes at a crucial moment, showcasing BiH’s commitment to enacting vital reforms and aligning with the European acquis.

Undoubtedly, BiH has taken significant steps to improve migration management, its judiciary and prosecutorial system, and in the fight against corruption, organised crime and terrorism. However, amidst this progress, pressing identity questions still cast a shadow over its democratic landscape.

The Commission’s 2023 annual report on BiH highlights the limited progress done in implementing crucial constitutional and electoral reforms, as mandated by the Sejdić-Finci case law. Similarly, the Council of Europe Commissioner for Human Rights, in a submission dated April 29th 2023, expressed significant concern regarding the ongoing discrimination against individuals who are ineligible to stand for election to the Presidency of BiH or the House of Peoples of BiH. This discrimination persists despite 15 years having passed since the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its first judgement in the Sejdić-Finci group of judgements, which include Sejdić and Finci v. BiH, Zornić v. BiH, Šlaku v. BiH, Pilav v. BiH and Pudarić v. BiH.

The Sejdić-Finci case law underscored the tensions between the constitutional arrangements established under the Dayton Agreement and the application of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its protocols. The ECtHR’s ruling was perceived as particularly ground-breaking, marking the first time that a constitution of a consociational democracy has been found in breach of a human rights charter. This case law observed a breach in the prohibition of discrimination based on the applicants lack of affiliation with a constituent people (Bosniaks, Bosnian Croats or Bosnian Serbs) or their failure to meet a combination of the requirements of ethnic origin and place of residence. Precisely, the prohibition of individuals from having the right to stand for election due to their Roma or Jewish ethnicity evoked a profound sense of moral outrage and sparked social and political mobilisation. It was inconceivable for many that a country looking for further EU integration could prevent a person not identifying with one of the three “constituent people” from running for parliament or head of state.

The imperative for political will to implement these judgements is undeniable, but even in its absence the final stretch to their implementation could be near if the High Representative for BiH, according to his so-called “Bonn powers”, decides to enforce them. The ECHR has a great weight in BiH, given the direct application of the ECHR and its protocols and their priority over national law, including the constitution, in light of Article 2(2) of the constitution of BiH, so we should remain hopeful about the eventual enforcement of this case law.

Nevertheless, the High Representatives, initially, Valentin Inzko, and now, Christian Schmidt, have opted not to enforce these judgements. The non-implementation of this case law has been a great missed opportunity, highlighting broader issues of accountability and effectiveness of international mechanisms in guaranteeing compliance with human rights standards within member states. Despite Schmidt’s failure to implement this particular case law, he has used his Bonn powers in the past to modify electoral laws, with the most recent instance occurring on March 26th. In October 2022 he imposed an amendment partially executing the Ljubić ruling from the Bosnia’s Constitutional Court, regarding the electoral framework in the Federation of BiH, for the purpose of unblocking the entity. This move, only minutes after closing the voting urns in BiH’s general elections, was highly controversial not only because of its timing, but also because it increased the ethnocentric politics in the Federation of BiH. While doing so, he seemed to overlook the ECtHR case law but also the constitutional court’s Komšić ruling, where the court followed the same reasoning as the ECtHR.

The Sejdić-Finci group of judgements has been extended recently by the Kovačević ruling in August 2023 to include active voting rights. With this activist ruling, many scholars believe that the ECtHR has finally set the complete guidelines for a future constitutional reform in BiH. In continuity with past rulings, the court stated that:

“No one should be forced to vote only according to prescribed ethnic lines, irrespective of their political viewpoint. Even if a system of ethnic representation is maintained in some form, it should be secondary to political representation, should not discriminate against ‘Others and citizens of Bosnia and Herzegovina’ and should include ethnic representation from the entire territory of the state.”

The ECtHR appropriately underscored the transitionary nature of the ethnic privileges of constituent peoples and emphasised the need to reform the ethnicisation of the political institutions, recalling the Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the High Representative, March 11th 2005, by the Venice Commission:

“Such a rule seems to assume that only members of a particular ethnicity can be regarded as fully loyal citizens of the Entity capable of defending its interests. The members of the Presidency have a veto right whenever there is a violation of vital interests of the Entity from which they were elected. It cannot be maintained that only Serbs are able and willing to defend the interests of the Republika Srpska and only Croats and Bosniaks the interests of the Federation. The identity of interests in this ethnically-dominated manner impedes the development of a wider sense of nationhood.”

The Kovačević case has had polarised receptions, being welcomed by the proponents of a “civic form of national identity” in BiH as a foundation for future reforms, but heavily criticised by representatives of ethnic parties fearing that it could erase the category of ‘constituent peoples’ in the Constitution of BiH if enforced. BiH filed an appeal in September 2023 against this verdict, so the outcome remains uncertain for now. We will have to wait and see how this situation unfolds in the future, but it would be surprising if the court diverges from the tendency of finding the current ethnically exclusive power-sharing system contrary to the ECHR.

It is crucial that BiH addresses the issues within its electoral system, revisiting the power sharing arrangements established by the Dayton Agreement, especially in the context of its EU accession negotiations. The path to European integration demands not just rhetoric, but genuine political will, decisive action to implement the necessary reforms and tangible progress. It is time for BiH to demonstrate its commitment to a future where all citizens, regardless of ethnicity or place of residence, can participate completely and equally in shaping their nation’s future. The road ahead may be challenging, requiring us to confront difficult questions about democracy, inclusivity and identity, and engaging in meaningful dialogue, but the destination – a more inclusive and democratic BiH – is definitely worth the journey!

Photo of the Bosnian Parliament by and used under Creative Commons license 4.0  

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