The specifics of the management of Bosnia and Herzegovina under international control

Koevich Sara Assistant, Department of Theory and History of International Relations, Patrice Lumumba Peoples' Friendship University of Russia 117198, Russia, Moscow region, Moscow, Miklukho-Maklaya str., 10 k2 sara.kojovic96@gmail.com

Bosnia and Herzegovina is the most complex state in terms of its administrative, territorial and political structure, not only in the Western Balkans or in Europe, but also in the world. Three Slavic ethnic groups professing different religions, after the collapse of prosperous Yugoslavia, the absence of a treaty on its partition and a bloody civil war, are now forced to live together in one hybrid state, which the world community is trying to "revive" by forcing to work and function according to its principles. Which is not easy, since we are talking about peoples who could not end the war on their own, sign peace and still cannot govern by themselves.

Therefore, the most pressing question in Bosnia and Herzegovina today is who governs most of this country and what are the interests of Serbs, Bosjankos and Croats? To what extent do these ethnic groups agree to transfer power to the international community, or does the international community use them to realize its goals in the Western Balkans, as has happened more than once throughout history?

The specificity of Bosnia and Herzegovina lies in the fact that a number of international institutions directly affect both the domestic and foreign policy of the country. The factor of internal influence is integrated into its political system through the penetration of international law there ^{[1, pp.244-245]}. International institutions sometimes replace the constitutional one. They perform a coordinating and executive role, acting as intermediaries between national authorities. The strengthening of the role of international factors, first of all, in the legislative power arises as a consequence of the disagreement between the domestic state-forming entities. Conversely, the influence of international actors decreases if domestic actors agree on important issues of the organization and functioning of the state.

Theoretically, it is not difficult to define the concept of constitutional power in Bosnia and Herzegovina as the collective will of three ethnic nations, but it is difficult to answer the question: what will happen to the constituent body of the country if agreement between the nations is not reached?  In this case, the conflict of ethnic groups will be transferred to the sphere of constitutional power, and then to the sphere of legislative, executive and judicial power and, further, to all other spheres of organization and activity of the state. As for the current state of affairs, the operation of constitutional power in Bosnia and Herzegovina on the basis of the common consent of Serbs, Croats and Bosniaks in the current circumstances is impossible without the actions of the actors of the international community, especially the institutions of the European Union.

International organizations influence the constitutional power because:

a) are an integral part of the Constitutional Court of BiH - three of the nine judges are foreign judges appointed by the President of the European Court of Human Rights ^[2];

b) proceed in their activities from the primacy of international law, turning it into an integral part of the Constitution of Bosnia and Herzegovina ^[3];

c) protect the content of the Dayton Agreement and take care of its implementation – this opportunity is given by the mandate of the High Representative and the Peace Implementation Council;

d) act as arbitrators, coordinating the actions of representatives of ethnic nations during constitutional changes;

f) make decisions on a temporary basis in case of obstruction by the national authorities.

So what is the State and State power in Bosnia and Herzegovina? From the moment the Dayton Agreement was signed until today, this seemingly simple issue is both theoretically and politically the most controversial. Confederalists and unitarians, from different positions and based on different interests, distorted the concept of the state and state power both in theory and in political practice. For example, to designate the national parts of the state, the extremely obscure term "entities" was introduced, which began to be understood as legal entities of the subjects of Bosnia and Herzegovina having a subject status. At the same time, it is implied that both entities and their own state institutions of Bosnia and Herzegovina have powers, which sometimes causes legal conflicts.

It should be said that such a division is contrary to the Constitution of Bosnia and Herzegovina and the Dayton Agreement. The competencies of subjects and the competencies of institutions at the level of Bosnia and Herzegovina have as one legal source the Constitution of Bosnia and Herzegovina, and therefore the State power defined by this Constitution is a unique category, regardless of how many levels it is exercised. ^[4] Entities have special powers only due to the fact that they are given to them by the Constitution. Just as institutions at the Bosnian level have only the amount of authority that is granted to them by this legal act. This means that the institutions at the level of Bosnia and Herzegovina did not empower the entities, nor did the entities empower the institutions at the level of Bosnia and Herzegovina, since the powers were given to both of them by a single Constitution. The above-mentioned principle of federalism arose on the basis of the statehood of Bosnia and Herzegovina and the arbitration process by the international community between opposing national concepts. ^{[1, p. 219]}

In the period between the initialing of the Dayton Peace Agreement on November 21, 1995 and its signing in Paris on December 14, 1995, a Conference on the Implementation of the Peace Agreement was held in London on December 8 and 9, 1995, at which BiH was established. The conference was attended by 55 countries, including the USA, Russia, Ukraine, Saudi Arabia, Morocco, Albania, various international organizations such as the International Monetary Fund (IMF), the Council of Europe, the International Committee of the Red Cross, as well as closed on December 31, 2017. International Criminal Court for the Former Yugoslavia.

The London Conference also established the Steering Committee of the Peace Implementation Council (hereinafter referred to as the Peace Implementation Council, PIC), chaired by the High Representative (hereinafter referred to as the VP (High Representative, HR), which was then defined as the "executive body" of the SAF. The head of the SAF cannot make decisions if the member countries of the SAF Board of Directors do not agree. The members are the United States of America, Russia, Great Britain, Germany, France, Italy, Canada, Japan, the European Union (the EU Presidency and the European Commission) and the Organization of the Islamic Conference (OIC), which is represented by Turkey in the SAF.

In the last few years, only Russia, as a member of the SAF, together with representatives of the Serbian authorities in BiH under the leadership of Milorad Dodik, have regularly excluded themselves from the communique, believing that the Office of the High Representative (hereinafter referred to as the Office of the High Representative, OHR) should be closed.

The SAF appoints a new High Representative, and then approves him by the UN Security Council, so his name is always a compromise agreed between Western countries led by the United States, Great Britain and France and Russia (and China, which was also a member of the SAF, but withdrew from it in May 2000). So far, the EAP has been Swede Carl Bildt (1995-1997), Spaniard Carlos Westendorp (1997-1999), German. Wolfgang Petrich (1999-2002), eng. Jeremy John Durham Ashdown (2002-2006), German. Christian Schwartz-Schilling (2006 - 2007), Slovak. Miroslav Lajcak (2007-2009), avst. Valentin Inzko (2009-2021) German. Christian Schmidt (2021 – "acting").

The AFP has the right to "final interpretation" of the Agreement on the Implementation of a Peaceful Settlement by Civilians. As of July 2020, there are 13 foreign nationals working in the AFP, four of whom are diplomats appointed by their Governments, and 76 local employees. All seven previous High Representatives in Bosnia and Herzegovina were European diplomats, and all the previous 12 first deputies were American diplomats. ^[5]

ORP funding is allocated to the SAF. The budget of the ORP in 2020-2021 was just over 5.3 million euros, of which the European Union allocates 54.37 percent, the United States of America 22 percent, Japan 10 percent, Canada 3.03 percent, the Organization of the Islamic Conference 2.5 percent, Russia 1.2 percent and the rest in the amount of 6.9 percent. ^[6] Most of the budget is spent on wages and benefits, and the salary of the head of the OVP has been a political issue in BiH for many years.

In Annex 10 to the Dayton Agreement, the High Representative's powers were defined: supervision of the observance of peace, intensive contacts with representatives of local authorities, coordination of the activities of civil organizations, promotion of cooperation and overcoming difficulties through his interaction, participation in donor meetings, creation of various bodies and commissions, interaction with military representatives. ^[7] The EAP is the last instance for the interpretation of the Agreement on the Civil Implementation of a Peaceful Settlement. All administrative entities in Bosnia and Herzegovina are obliged to cooperate with the EAP, as well as with other international organizations, while the EAP does not have jurisdiction over military issues.

The role of the High Representative was legally established by the decisions of the Peace Implementation Council in 1995, 1997 and 1998.

1. At the London Conference on the Implementation of the Peace Agreements (December 8-9, 1995), the coordinating role of the High Representative was confirmed, but at the same time he was given the authority to make recommendations to the authorities of Bosnia and Herzegovina in the context of the implementation of the Dayton Agreement.^[8]

2.     At the ministerial meeting of the Steering Committee for the Establishment of Peace in Sintra (May 30, 1997), the role of the High Representative was strengthened by specific powers: the influence of the Office of the High Representative on the appointment of the Ambassador of BiH; influence on the adoption of laws on citizenship, banking, customs, foreign trade; the right to make immediate decisions that are a function of the implementation of the Agreement (by unique license plates, telephone traffic, etc.); the authority to suspend or ban any media network or program if it considers that their activities do not comply with or harm the spirit or norm of the Dayton Agreement. With the permission of Sintra, the VP could exercise control over the activities of the media, make decisions and influence the work of executive and other state bodies. This was the beginning of an increase in his overall abilities. ^[9]

3. At the Bonn Conference on the Implementation of the Peace Agreements (December 1997), the High Representative was authorized to issue laws if the national authorities could not come to an agreement. The special authority he received at the Bonn Conference is the right to remove from office any official he deems violating the implementation of the Dayton Agreement. The purpose of the "Bonn Powers" was to strengthen the role of the High Representative in terms of policy direction, the adoption of laws and the removal of obstacles to achieving goals in the following areas: human rights, judicial reform, war crimes, refugees, the police, the economy, the media, elections, the status of Brcko... ^[10]

4. At the conference of the Peace Implementation Council in Madrid in December 1998, the conclusions of the Bonn Conference were confirmed and new priorities were identified in the implementation of the Agreement: the refugee problem, the rule of law, the legal system, military issues, security, the Brcko region, the succession of the SFRY and the integration of Bosnia and Herzegovina into the European Union. The Madrid Conference is of great importance due to the conclusion on the establishment of a court at the level of Bosnia and Herzegovina for the implementation of the rule of law. ^[11]

The role of the High Representative is one of the main contradictions in Bosnia and Herzegovina, since his authority comes not from the Peace Implementation Council, but from the institutions of Bosnia and Herzegovina. The Council is interested in ending the role of the High Representative and in the institutions of Bosnia and Herzegovina assuming his role. This is the first stage of the transformation of the international role in this country. This phase is not happening because the institutions of Bosnia and Herzegovina, due to the disagreement of the leaders of the ruling party, are unable to assume the role of High Representative and thereby create reasons for its continued existence.

There are still disputes in Bosnia and Herzegovina: does the High Representative have the right to make laws? The prevailing opinion in Republika Srpska is that the High Representative lacks both the legal grounds and the authority to adopt laws or impose sanctions on individuals. Public opinion is mainly formed under the influence of political arguments, although there is not enough information about legal arguments in it. Speaking about the legal basis of the activities of the High Representative, the following documents can be distinguished. Annex X to the Dayton Agreement "Agreement on Peaceful Settlement by Civilians" refers to the role of the High Representative. Article V of this annex defines: "The High Representative on the ground is the final authority for the interpretation of this agreement on the civilian implementation of a peaceful solution." ^[12] This provision means that the High Representative acts as the supreme interpreter of the annexes: the second, third, fourth, fifth, sixth, seventh, eighth, ninth and eleventh. ^[13] The High Representative interprets the fourth annex in the context of the other annexes and the entire Dayton Agreement, and the Constitutional Court has the highest internal interpretation within the framework of the constitutional system of Bosnia and Herzegovina. According to article II of the Tenth Annex, the mandate of the High Representative gives him the authority to: a) monitor the observance of peace, b) contact the Parties so that they respect the implementation of the Agreement, c) coordinate civilian bodies and organizations for the effective implementation of the Agreement, d) overcome difficulties encountered in the implementation of the Agreement, etc. According to the Dayton Agreement, the High Representative is the main interpreter, coordinator and controller of the application of the Dayton Agreement with diplomatic privileges ^[4].

One of the most controversial issues in relations between Republika Srpska and institutions at the level of Bosnia and Herzegovina is the manner and content of the transfer of jurisdiction. The opinion prevails in the public opinion of Republika Srpska that this entity has lost a significant number of jurisdictions (about sixty), which were transferred to the level of Bosnia and Herzegovina. Under the Dayton Agreement, on the basis of the presumption of State competence, everything that was not explicitly stated in the competence of the institutions of Bosnia and Herzegovina was transferred to entities ^{[4, Article III, paragraph 1, paragraphs 1, 2, 3, 4 and 5]}. One of the main problems of the transfer of jurisdiction is the different attitude of subjects to this issue. So far, the Federation of Bosnia and Herzegovina has not expressed resistance to the increase of powers at the level of Bosnia and Herzegovina, and the Republika Srpska believes that the transfer of powers to the level of Bosnia and Herzegovina poses a threat to its Dayton statehood and opposes this process. The different positions of the subjects on the transfer of competence weaken the position of the subject, since in general relations are reduced to a conflict between the Republika Srpska and all other subjects (institutions at the level of Bosnia and Herzegovina, the Federation of BiH and the Council for Peace).

Most of the powers were transferred by the actions of the High Representative who created the laws, after which the deputies of the Parliament of Bosnia and Herzegovina adopted them without changes. About 50 laws were adopted, which were created and put into effect by the High Representative, and then subsequently adopted by the Parliament of BiH ^{[14, p. 83]}. The argument that the High Representative introduced laws without having the authority to do so is justified by the fact that the deputies of the Parliament of Bosnia and Herzegovina adopted these laws in accordance with the Constitution and rules of procedure.

It should also be taken into account that in some situations in which the disagreement of the people could not be overcome in any way, the role of the VP was important. For example, after local politicians could not agree on them, the VP put into effect the flag and anthem of BiH, laws on citizenship, the Statute of the city of Mostar. These examples are indeed indicators of "peacemaking" and conflict resolution. While, on the other hand, more decisions are made as very biased. The EAP annulled the decisions of the Central Election Commission after the elections and dismissed two members of the Presidency of Bosnia and Herzegovina, several representatives in parliaments and local assemblies, and at the same time banned them from holding any official, elected or appointed public positions and holding positions in political parties ^[15]. In total, the ORP imposed almost 900 different decisions in the period from 1997 to 2011 thanks to the Bonn powers ^[16].

Russia and political representatives of the Republika Srpska, as one of the two entities in Bosnia and Herzegovina, and recently political representatives of parties with the Croatian sign are in favor of closing the ORP. On the other hand, political representatives of Bosniaks and parties declaring themselves civil oppose the closure of the ORP, as well as representatives of Western countries in the ORP. Moreover, political representatives of Bosniaks and parties declaring themselves to be civilians are asking for his more active participation, mainly such interventions as the replacement of political representatives of Serbs and Croats, the cancellation of some decisions and the like.

At a meeting in Brussels on February 26 and 27, 2008, the Political directors of the Steering Committee of the Peace Implementation Council identified the requirements that the BiH authorities should fulfill before the closure of the AFP, but since then no significant progress has been made ^[17]. The first of the five requirements is an acceptable and sustainable solution to the issue of the distribution of property between the State and other levels of government. However, it has not been fulfilled, since the political representatives of Republika Srpska believe that the property belongs only to the subjects, including, for example, the right to build a hydroelectric power station on the Drina River, which the Republika Srpska authorities want to build with Serbia. Bosnian political representatives, as well as parties declaring themselves civil, believe that this property should belong to the state, and that the example of the construction of hydroelectric power plants in Serbia should be coordinated with the state level, not the subject.

The second requirement is an acceptable and sustainable solution to the issue of the division of military property, which, like other State property, is also disputed by political representatives of Serbs and Bosniaks. The transfer of military property to the State, that is, to the Ministry of Defense of BiH, is the subject of a long-standing dispute, including litigation, and is one of the conditions that the North Atlantic Treaty Organization (NATO) has set for BiH to enter the Membership Action Plan (MAP).

The Brcko district in BiH is a separate administrative unit in BiH, defined as a condominium, that is, a territory under the sovereignty of BiH, but having its own government (departments) headed by the mayor, assembly, judiciary and laws. One of the features is that, although Brcko does not belong to either the RS or the Federation of Bosnia and Herzegovina, its residents are the only ones in BiH who have the citizenship of a particular subject indicated in their personal documents, since in general they vote either for a Serbian member of the Presidium of BiH, who, according to the Constitution of BiH, is a native of Republika Srpska, or for a Bosnian or Croatian member elected in the Federation of Bosnia and Herzegovina. The third requirement that the authorities of Bosnia and Herzegovina must fulfill before the closure of OHR is the full implementation of the Final Decision on Brcko.

The fourth requirement is the fiscal sustainability of BiH, and the fifth is the "revival of the rule of law", which includes the adoption of a State strategy to combat war crimes, the adoption of a Law on Foreigners and Asylum and the adoption of a State Strategy for reforming the justice sector. In addition to these five goals, there are two more conditions. One of them is the signing of the Stabilization and Association Agreement with the European Union, which was implemented, and Bosnia and Herzegovina applied for EU membership, answered the questionnaire of the European Commission and received the conclusion (avis). The last condition is a positive assessment of the situation in BiH, which should be given by the Steering Committee of the Peace Implementation Council and which will be based on full compliance with the Dayton Peace Agreement, that is, on the consent of all member countries. But the Steering Committee, 25 years after the war and its creation, still does not have a single opinion.

The most urgent problem in Bosnia and Herzegovina since 2021 is precisely the appointment of a new UN High Representative without a relevant UN Security Council resolution, Christian Schmit. Representatives of the Republika Srpska government headed by Milorad Dodik, Russia and Serbia are denying the legitimacy of the new EAP, while, on the other hand, the overwhelming majority of Bosnian and Croatian representatives in the new EAP see a "straw of salvation" for the implementation of long-conceived unity. Those who deny the SAF and the AFP legitimacy refer to the fact that it is a special body that has no grounds either in Annex 10 to the Dayton Agreement or in UN Resolution 1031 (adopted by the United Nations Security Council at its 3607 meeting on December 15, 1995) ^[18], which are the legal basis for The role of the UN High Representative for Bosnia and Herzegovina. Since all previous high representatives were appointed by the UN Security Council in accordance with the requirements of Annex 10 and UN Resolution 1031, the NATO countries bypassed this body by appointing a new VP through the SAF, and thereby introduced the veto right of Russia and China.

The regular scandals of the representatives of the RS and VP Schmit government today most of all occupy the public of Bosnia and Herzegovina. The biggest disagreements arose primarily due to the adoption of limited reforms to the Constitution of Bosnia and Herzegovina and amendments to the Election Law in order to strengthen the basic principles and transparency of the electoral process ^[19]. For the Serbs, the introduction of a law on the redistribution of funds and the allocation of a huge amount of money to the Srebrenica center was also controversial, which is considered open support for the myth "about the suffering of only one people in BiH".

The actual and great indignation of Serbian representatives and in connection with the announcement of the adoption of a new law on the division of the property of the Republika Srpska by the "new" VP Schmit. The proposal to transfer the property of the RS subject under the jurisdiction of Bosnia and Herzegovina, so that those who seized and destroyed the Serbian land and expelled the Serbian people from it could manage it, is unthinkable for the Serbs. Nevertheless, Christian Schmidt finds logic in it, the possibility of resolving the conflict and extinguishing the fire.

The illegitimate appointment of VP Christian Schmit throughout Bosnia and Herzegovina deepens the crisis, puts the Serbs in the Republika Srpska in an even more difficult situation, plays into the hands of representatives of the other two nations and once again adds fuel to the fire of the 30-year conflict, the solution of which has already turned into a farce. The international community and all its various representatives on the territory of Bosnia and Herzegovina, starting with the SAF and the EAP, through EUFOR, NATO and all other unofficial organizations, have been keeping the conflict on a slow fire for 30 years with skillful moves. Unfortunately, in today's difficult times, for the entire international and political world arena, the current events in Bosnia and Herzegovina may lead to the resumption of the conflict.