Complex public power regulation in Bosnia and Herzegovina after the Dayton peace agreement

Abstract

Since the Dayton Peace Agreement, an international High Representative based in Bosnia and Herzegovina (BiH) has been charged with guiding and monitoring the country's peace implementation process. As the High Representative has come to play an increasingly active role in the country and to exercise governmental or public power in his own right, a complex system of ‘public power regulation’ has developed. Pursuant to this system, the public power exercised by domestic governmental authorities in BiH is regulated both through local checks and constraints (e.g. democratic elections and judicial review) and through interventions by the High Representative. In turn, the High Representative has allowed for some regulation of his own public power by international actors and actors/institutions within BiH. However, opportunities for regulating the High Representative are quite limited, raising concerns about the legitimacy of his exercise of public power in the country.

Acknowledgement

I wish to thank Chris Harland for his helpful comments on this article.

Notes

1. The position of High Representative has been filled, successively, by Carl Bildt, Carlos Westendorp, Wolfgang Petritsch and Lord Paddy Ashdown and (as of 31 January 2006), Christian Schwarz-Schilling.

2. In Article I(2) of this Annex, the parties “request the designation of a High Representative, to be appointed consistent with relevant United Nations Security Council resolutions, to facilitate the Parties' own efforts”.

3. Of course, an actor's effectiveness may contribute to his/her legitimacy.

4. As Robert Rotberg observes: “When…rulers are perceived to be working for themselves and their kin, and not the state, their legitimacy, and the state's legitimacy, plummets” (Rotberg, 2004, p. 9).

5. The Secretary-General's report states: “Good governance comprises the rule of law, effective state institutions, transparency and accountability in the management of public affairs, respect for human rights, and the participation of all citizens in the decisions that affect their lives. While there may be debates about the most appropriate forms they should take, there can be no disputing the importance of these principles.”

6. In this vein, it is interesting to note that a recent article concerning the High Representative is entitled: ‘Lessons from Bosnia and Herzegovina: travails of the European Raj’ (Knaus & Martin, 2003).

7. Note, however, that, according to Brad Roth, “it is hardly clear that a meaningful ‘democratic entitlement’ is emerging as a part of international law” (Roth, 2000, p. 323).

8. One should note that the constitutions of both Entities in BiH, the Federation of Bosnia and Herzegovina and Republika Srpska, provide for checks and constraints on public power in the form of democratic elections, separation of powers and judicial review.

9. The complex, multi-layered nature of governance in BiH has been the subject of much criticism (e.g. European Commission for Democracy through Law, 2005, para. 45).

10. The House of Peoples is the second Chamber of the BiH Parliamentary Assembly.

11. See also the website of Human Rights Chamber, available at: http://www.hrc.ba/english/default.htm

12. See also the website of the Human Rights Ombudsman of Bosnia and Herzegovina, available at: http://www.ohro.ba/articles/article.php?lit_id=geninfo

13. The High Representative's removal decisions have historically barred targeted individuals from holding any official, elective or appointed public office, running in elections or holding office within political parties. Since early 2005, the High Representative has issued decisions lifting the ban in a number of individual cases. However, these recent decisions make clear that they are not intended to call into question the earlier removal decisions and do not entitle affected individuals to compensation.

14. The discussion in this section of the High Representative's legislative drafting process is based on the author's experience as a legal officer in OHR from autumn 2000 to autumn 2003 and on interviews with OHR officials in November 2004.

15. However, the European Commission for Democracy Through Law has observed that: “in a decision on admissibility of 29 September 2004 a chamber of the Constitutional Court rejected an application against a dismissal by the High Representative for non-exhaustion of local remedies. This may indicate that judicial control will after all become possible”. European Commission for Democracy Through Law, 2005, FN 23.

16. The Order stipulates, inter alia, that “for the avoidance of doubt, it is hereby specifically declared and provided that the provisions of the Order contained herein are, as to each and every one of them, laid down by the High Representative pursuant to his international mandate and are not therefore justiciable by the Courts of Bosnia and Herzegovina or its Entities or elsewhere…and no proceedings may be brought in respect of duties carried out thereunder before any court whatsoever at any time hereafter”.

17. OHR website, General Information, at: http://www.ohr.int/ohr-info/gen-info/#pic, accessed 25 March 2005.

18. Ibid. The Steering Board members are Canada, France, Germany, Italy, Japan, Russia, the UK, USA, the Presidency of the European Union, the European Commission, and the Organisation of the Islamic Conference (represented by Turkey).

19. OHR website, General Information, at: http://www.ohr.int/ohr-info/gen-info/#pic, accessed 25 March 2005.

20. Author interviews with OHR officials, November 2004.

21. Author interviews with OHR officials, November 2004. The role of the PIC is frequently misunderstood, perhaps because the preamble to High Representative decisions makes reference to PIC-issued declarations and other PIC documents. The prime example of this is the reference in all High Representative decisions to the Conclusions of the 1997 Bonn Peace Implementation Conference, in which the PIC “welcomes the High Representative's intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of any difficulties by making binding decisions, as he judges necessary” on certain issues, including “measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities” (Peace Implementation Council, Bonn Peace Implementation Conference, Summary of Conclusions, Section XI(2), in OHR, 2000, pp. 185–199). This language is often cited as the basis for the High Representative's extensive quasi-legislative and executive powers in BiH. However, the PIC does not itself confer powers on the High Representative via the Conclusions, but simply welcomes the High Representative's own decision to interpret his Annex 10 mandate in a robust manner.

22. Author interviews with OHR officials, November 2004.

23. Author interviews with OHR officials, November 2004.

24. Author interviews with OHR officials, November 2004.

25. Author interviews with OHR officials, November 2004.

26. Author interviews with OHR officials, November 2004.