Does logic really end where Bosnia begins? An analysis of the past, present and future of a (non)functioning state

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Does logic really end where Bosnia begins?

An analysis of the past, present and future of a (non)functioning state

MA Thesis in European Studies Graduate School for Humanities University of Amsterdam

Author: Selma Kujundžić Student number: 0251380

Main Supervisor: Dr. N. Tromp-Vrkić Second Supervisor: Dr. A.M. Kalinovsky

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Abbreviations

BiH Bosna i Hercegovina (Bosnia and Herzegovina)

FBiH Federacija Bosne i Hercegovine (Federation of Bosnia and Herzegovina)

EU European Union

EUSR European Union Special Representative

HDZ Hrvatska Demokratska Zajednica (Croat Democratic Union)

HNS Hrvatski Narodni Sabor (Croat People’s Assembly)

HR High Representative

IA Interim Agreement on Trade and Trade Related Matters

IPA Instrument for Pre-accession Assistance

IMF International Monetary Fund

NATO North Atlantic Treaty Organization

OHR Office of the High Representative

RS Republika Srpska (Serb Republic)

SAA Stabilisation and Association Agreement

SAP Stabilisation and Association Process

SDA Stranka Demokratske Akcije (Party of Democratic Action)

SDS Srpska Demokratska Stranka (Serbian Democratic Party)

SNSD Stranka Nezavisnih Socijaldemokrata (Party of Independent Social Democrats)

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Preface

When I would read a poem or hear a song about Bosnia and Herzegovina, I wholeheartedly believed it to be the most beautiful and calmest place in the world. If I would hear a story about the ‘real’ Bosnians, I believed its people to be the most helpful and hospitable people that ever existed. In my mind there was no doubt, it was the greatest place in the world.

That is the Bosnia I remember, or at least, the Bosnia I have maybe created in my mind due to a day to day absence of the actual Bosnia, and due the influence of great literature, rock music and stories my parents brought with them when we fled the country to our new home. I had somehow blocked the stories of the hardships of the people and the history of the ‘Balkan powder keg’. And even though I hardly remember it and for that matter do not even know if it has existed at all, I miss that almost utopian country, as the Bosnia of the recent two decades has been quite the opposite.

As a child I left the motherland that I would later as a teenager idealize, for it was in my teenage years I thought I had found it again. The fun, the humour, the songs; it was all so similar to the stories I had heard many times as a child and to the good childhood memories I had of the pre-war Bosnia. The beautiful country that was completely destroyed by hostilities, was once again visible to me, but I was just too young to see the problems the war had left behind. As an adult I started reading more about Yugoslavia and in specific its republic Bosnia and Herzegovina, about the war of the 1990s, the post-war tensions, the corruption, the poverty, the economic and institutional instability, the tribunal for war crimes, and other issues which can destroy a utopian memory. All this has contributed to how I see it now: an unstable state with a terrifying past, but a country that will always be the stage of my happiest memories.

I believe I have finally processed Bosnia’s past and given it a place in a quiet corner of my mind, though I will always keep wondering about the future. Will Bosnia ever be able to overcome its tumultuous past? Can Bosnia ever (again) become the country like the beautiful

sevdalinke1_{about it, or does logic really end where Bosnia begins?}2

1_{Songs of the Sevdah music genre, a type of song that describes melancholic feelings of longing for lost times, a}

lost place, a lost love.

2_{Supposed quote by Ivo Andrić (deceased 1975), Yugoslavian writer. Quote by Emir Hadžihafizbegović,}

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1 Introduction

In 1995 the war in Bosnia and Herzegovina (BiH, Bosnia), which was a direct result of the disintegration of Yugoslavia and the declaration of independence by Bosnia, ended. The signing of the General Framework Agreement for Peace in Bosnia and Herzegovina, better known as the Dayton Peace Agreement (Dayton Agreement, Dayton, DPA) on December 14th_{1995 was}

the necessary step to bring the atrocities to an end. Although the Dayton Agreement successfully ended the war, it left the new formed Bosnian state divided into two entities, the

Federacija Bosne i Herzegovine (FBiH) and the Republika Srpska (RS), and it has since then

been a constantly present confirmation of the segmentation within the struggling country. The building and rebuilding of Bosnia started within a few months after the signing of the peace agreement. The first few years after the signing of the agreement were put towards the physical reconstruction of the country such as the restoration of the infrastructure and rebuilding of homes. During these early post-war years priority was given to restoration processes over the processes necessary for state or institution building. Additionally, the governmental system and constitution which were established by the Dayton Agreement were already being questioned soon after the war, both by internal Bosnian parties as outside of Bosnia. This is not surprising as the division of the country and many other aspects of the peace agreement which were deemed necessary to end a war and bring the long-awaited peace, were not intended to remain. To put it in the memorable words of former UN High Representative (HR) to Bosnia Paddy Ashdown, ‘Dayton was designed to end a war, not build a state’.3

The subject for this thesis was inspired by an article of Francis Fukuyama, a renowned political scientist, who in 2005 wrote that ‘before you can have democracy or economic development, you have to have a state’.4_{In the reasoning of Fukuyama ‘stateness’ should thus}

come first, which in the case of Bosnia and the context of this thesis means that ‘fundamental issues concerning the stateness need to be settled’5_{to prevent the state from failing. Only when}

these prerequisites are satisfied, Bosnia can start reaching for other or higher goals such as (some of) the European criteria for accession which is currently an extensively discussed matter. Therefore, before addressing Bosnia’s present and future this thesis will examine Bosnia’s past in the context of Fukuyama’s framework. Specifically, the question is asked whether stateness

3_{P. Ashdown, ‘International Humanitarian Law, Justice and Reconciliation in a Changing World’, The eighth}

Hauser lecture on International Humanitarian Law, New York, 2004, pp. 1-17.

4_{F. Fukuyama, ‘Stateness first’, Journal of Democracy, vol. 16, no. 1, 2005, pp. 84-88.}

5_{D. Farrell, ‘Failed Ideas for Failed States? Liberal International State-Building in Bosnia and Herzegovina’,}

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was achieved in the initial formation of the independent state. The next chapter then examines the outcome of these early years following the Dayton Agreement by giving an overview of the current political and social climate in Bosnia. Based on these two chapters (the past and the present), the final chapter (the future) deals with the question whether Bosnia can continue on its current path or if there is a necessity for change in the state’s structure and if so what specific change should this be. The answers to these three questions should formulate an answer to the research question of this thesis: Can the Bosnian state be a functioning state, with its current political and governmental structure?

Past: Dayton’s legacy

To fully comprehend the current situation in Bosnia and any of the possible outcomes for this young state, a good understanding of the developments within the state over the last twenty years is imperative. This thesis will therefore first explore Bosnia’s past, and specifically its challenges in the realization of stateness. Dayton left Bosnia with an internal governing system which entails a collective state presidency of the three constituent peoples6, sub governments on entity level, ten separate cantons in FBiH, veto powers on legislation for only the constituent peoples and many key responsibilities with the entities instead of the state government. In addition, the agreement also made place for a key role for the international community resulting in the executive powers of the UN, and later EU High Representative. The question is whether this enforced governing system opposed the natural development of a functioning state. To answer this question the first chapter will also analyse the state’s structure and particularly its form of government.

This analysis of Bosnia’s stateness will be derived from short studies by Juan J. Linz and Alfred Stepan7, Francis Fukuyama8 and Jorgen Moller and Svend-Erik Skaaning9. In addition references will be made to the European Commission Progress Reports and the International Crisis Group Reports.

Present: Country in turmoil

Twenty years after the Dayton Agreement the governmental system is yet to be altered from its initial design of 1995. Additionally, Bosnia is struggling with corruption, ethnic nationalism

6_{(Muslim) Bosniaks, (Orthodox) Serbs, (Catholic) Croats.}

7_{J.J. Linz and A. Stepan, Problems of Democratic Transitions and Consolidations, Baltimore, Johns Hopkins}

University Press, 1996, pp. 3-54.

8_{Fukuyama (2005), pp. 84-88.}

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(‘ethnicism’), an unstable economy and other issues which contribute to the instability of the country. Despite all this, the European Union (EU) is seemingly the goal at hand now and since 2015 Stabilisation and Association Agreement (SAA) between Bosnia and the EU has entered into force.10 By hoping and aspiring for an EU-membership, Bosnia has agreed to fulfil a number of high expectations, which are not at all misplaced for the goal at hand, however do seem quite premature for a state which is still in development.

To study the present functioning of Bosnia in terms of political, economic and social climate, an overview of recent past developments concerning reforms and policy implementation will also be presented. The chapter will be studied mainly through the use of the European Commission Progress Reports, the International Crisis Group Reports and Christopher Bennet’s Bosnia’s Paralysed Peace. Additional information will be gathered through the use of local and international media to portray a clear view of the current opinions and analyses on the subject.

Future: Internal political issues: Can the power sharing state remain?

The outcome of the Dayton Agreement, simply put, has been and is the Bosnian power sharing state. After the Cold War the international community observed an opportunity for a new sort of foreign intervention,11_{giving room to power sharing to become the primary approach for}

international peace making in ethnically divided societies.12_{Consequently, and due to the great}

need for an immediate ending of the war in Bosnia, Dayton became the framework for a complexly structured power sharing state: a complicated federal political system, with far reaching ethno-territorial autonomy.13

The focus of the last part of this thesis will be the possible future of Bosnia by discussing the issues of power sharing and shared or dual sovereignty of the local government and international community. Has the concept of ethnically based power sharing proven to be effective for the Bosnian state or should an alternative form of power sharing be considered? Evaluating the past twenty years, is power sharing still the best alternative in this ethnically divided state? Furthermore, has the prolonged shared sovereignty of the HR become a permanent situation and should it also be an indication of a failing state? The analysis in this

10_{European Commission, Stabilisation and Association Agreement with Bosnia and Herzegovina enters into}

force today, [website], 2015, http://europa.eu/rapid/press-release_IP-15-5086_en.htm (accessed 08-04-2017).

11_{M. Parish, A free city in the Balkans: Reconstructing a divided society in Bosnia, London: I.B.Tauris & Co.}

Ltd, 2010, p. 3.

12_{F. Bieber and S. Keil, ‘Power-sharing Revisited: Lessons Learned in the Balkans?’, Review of Central and}

East European Law, 2009, no. 34, pp. 337-338.

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chapter will mainly focus on the internal political and also social issues. What type of government is sustainable for Bosnia and which is not?

To clarify the concept of power sharing and analyse the situation depicted above, I will mostly be using the works of Arend Lijphart, the leading academic authority on

consociationalism, the type of power sharing in Bosnia, such as Democracy in Plural Societies

and Constitutional Design for Divided Societies, and the work of Florian Bieber and Soren Keil.14 Furthermore I will be referring to the European Commission Progress Reports and the International Crisis Group Reports, though the greatest contribution to this chapter shall be derived from current local and international media.

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2 Theoretical frameworks: Stateness, the functioning state and

power sharing

2.1 Stateness and the (non)functioning state

Stateness

In 1996 Linz and Stepan initiated a debate on the subject of stateness, particularly on the question whether democracy is possible without stateness, and when is stateness actually in place. Stateness was defined as follows: ‘a sovereign state must hold monopoly on the use of power in a territory (state) and there has to be an agreement on who holds the citizenship of the state’.15_{The intent was to show that while a state is transitioning to democracy, this transition}

would only be possible if the issues concerning stateness are resolved. A year later Linz reformulated the definition to also include the rule of law: ‘no state, no Rechtsstaat, no democracy’.16

The debate on stateness first was continued by Fukuyama who introduced a redefined condition for stateness in comparison with the original dictum formulated by Linz and Stepan in 1996 and the addition by Linz in 1997: ‘at the core of state-building is the creation of a government that has a monopoly of legitimate power and that is capable of enforcing rules throughout the state’s territory’17_{. Furthermore, two important aspects of state building are}

underlined: in state building the emphasis should be on the necessity of local ownership18, as early local ownership can increase the possibility of upholding local institutions when the international community exits. The second aspect of importance to the formation of a functioning state is putting state-building19 before the promotion of democracy. However, it was also emphasised that without democracy the state cannot eventually be legitimate or durable, and therefore democracy is also a requirement for a functioning state, yet one for a later stage.20

15_{Linz and Stepan (1996), p. 16.}

16_{J.J. Linz, ‘Democracy Today: An Agenda for Students of Democracy’, Scandinavian Political Studies, vol. 20,}

no. 2, 1997, p. 118.

17_{Fukuyama (2005), p. 87.}

18_{In this context local ownership should be construed as ownership of the responsibility of the development of a}

state by domestic actors such as local governments, civil society and citizens.

19_{In literature, different definitions for state-building are given. In this case, Fukuyama refers to the formation of}

the basic elements of the state such as the government’s monopoly of legitimate power and capability to enforce rules throughout the state’s territory.

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In support of the stateness first theory explained above, in 2011 Moller and Skaaning provided evidence that stateness is indeed to a large extent a necessary condition for democracy to develop. Importantly, this analysis was limited to the two core definitions of stateness and explicitly excluded the intermediate step addressing the Rechtsstaat (or rule of law) 21, in order to avoid stateness being interpreted as state capacity. Although stateness is often discussed in terms of state capacity, Møller and Skaaning argue that this latter term is much broader as it not only includes the core definitions of stateness, but among others also covers policy implementation, or in other words administrative capacity.22 This analysis is interesting in the context of this thesis as it addresses both stateness and state capacity which will be further discussed below.

The (non)functioning state

The notions of previously discussed stateness and the functioning state are in many studies intertwined, as stateness is considered to be a prerequisite for democracy and democracy a prerequisite for the functioning state.23_{The functioning state however is a widely interpretable}

concept. Of the numerous definitions of the functioning state, in this thesis the existing literature which is applicable to the Bosnian case will mostly be used.

In 2008 Hanna Bäck and Axel Hadenius studied the correlation between democracy and state capacity, and formulated a definition of a functioning state. The functioning state is formed by a combination of two components: stateness and implementation capacity. Stateness is simply defined as the capacity of state organs to uphold control of the state in the military, legal and fiscal sense. The second criterion is measured by the ability of state organs to execute their tasks. As ‘the ideal state […] functions well in an administrative sense and is democratic’24_,

democracy is not necessarily considered as a factor for the functioning state.25

Theorizing the functioning state also requires an understanding of the terms successful and failed state, in literature often (unjustly) used in reference to functioning and non-functioning state. The failed state has been the subject of academic discourse since the early

21_{J.J. Linz,}_{‘Democracy Today: An Agenda for Students of Democracy’, Scandinavian Political Studies, vol. 20,} no. 2, 1997, p. 118.

22_{Møller and Skaaning (2011), p. 2-3.}

23_{The argument can be made that a state with a governmental form other than democratic can also be a}

functioning state. In the interest of this thesis though, and Bosnia being a parliamentary democracy, the studied materials focus on the functioning democratic state.

24_{H. Bäck and A. Hadenius, ‘Democracy and State Capacity: Exploring a J-Shaped Relationship’, Governance:}

An International Journal of Policy, Administration, and Institutions, vol. 21, no. 1, 2008, p. 1.

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1990’s following a publication by Gerald Helman and Steven Ratner.26_{A failing state was}

characterized as ‘being in the process of losing control or having already lost control of its borders, entrenched in continuing violence based on ethnic, religious [...] differences and excessive criminal violence’.27_{The successful state first and foremost meets the criteria of}

stateness as described by Linz and Stepan. Furthermore the successful state maintains relations with other states and provides socials goods to its inhabitants.28 During the 1990’s war Bosnia became a failed state. As Bosnia is currently not in a state of war, it is therefore not to be characterized as a failed state. However, it is important to remember that weak states, as Bosnia is often considered, are continuously in danger of becoming failed states.

Another definition of the functioning state can be derived from prerequisites for EU membership. During Bosnia’s entire peace building and state building process the EU has played a critical role. Membership of the EU has been the incentive for Bosnia to adhere by the rules laid down by the EU. When a European state respects the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, it is considered for a membership of the EU.29 In 1993 during the Copenhagen European Council the so called Copenhagen criteria for accession to the EU were laid down:

‘Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take the obligations of membership including adherence to aims of political, economic and monetary union.’30

Though these criteria are not explicitly recorded as prerequisites for the ‘functioning EU state’, it is the measure used by the EU to determine just that. A state which fulfils these criteria functions according to the standard which is required for all EU states to become a member state and therefore be a functioning state within the EU.

The discussions on stateness and the functioning state cannot simply be disconnected from one another, as shown above. The main focus of chapter 1 will be an examination of the post-war formation of stateness in Bosnia, examined by applying Linz and Stepan’s definition

26_{G.B. Helman and S.R. Ratner, ‘Saving Failed States’, Foreign policy, no. 89, 1992, pp. 3-20.}

27_{R.I. Rotberg, ‘The New Nature of State Failure’, The Washington Quarterly, vol. 24, no. 3, 2002, pp. 85-87.} 28_{R.E. Brooks, ‘Failed States, or the State as a Failure?’, University of Chicago Law Review, vol. 72, no. 4,}

2005, pp. 1160.

29_{European Commission, Conditions for Enlargement, [website], 2016,}

https://ec.europa.eu/neighbourhood-enlargement/policy/conditions-membership_en (accessed 20-05-2017).

30_{European Parliament, European Council in Copenhagen, Conclusions of the Presidency, [website], 1993, p.}

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combined with the formulation by Fukuyama and the formulation of state capacity introduced by Bäck and Hadenius as they interpret stateness in a broader sense.

The focus of chapter 2 will be the current (non)functioning Bosnian state. The analysis will mainly be based on Bäck and Hadenius’ formulation of state capacity (functioning state) and the concept of the successful state. As Bosnia’s current goal is to obtain EU membership, the EU criteria will briefly be addressed.

2.2 Power sharing

Being an age old instrument of regime, power sharing has been a governmental tool for many divided societies throughout our history. In Europe alone we can see forms of power sharing in (past) governmental structures of Belgium, Ireland and Switzerland, but also outside Europe in Burundi, Liberia and Sudan. Although various types of power sharing exist, Lijphart’s

consociational democracy best corresponds with the type of power sharing implemented in

Bosnia.

The consociational democracy was initially defined as ‘a plural society divided by segmental cleavages which may be of religious […] or ethnic nature’ and which is furthermore characterized by the organization of for example media and political parties according to the lines of these segmental cleavages. Additionally, in a consociational democracy there is visible political cooperation between the segmented elites.31 This definition is elaborated with four characteristics: political elites from the various segments of the plural society form a grand coalition government, a mutual veto or concurrent majority rule to protect vital minority interests, proportionality in representation and a high degree of segmental autonomy.32 Consociationalism has been considered to be a rigid type of power sharing as the required components for it are of a more formal nature, such as institutional representation, cooperation and inclusion.33

To explore Bosnia’s future in the context of the current power sharing model, it is necessary to evaluate the current political situation and its perspectives, especially considering the upcoming elections of 2018. Though power sharing in Bosnia has in the past two decades

31_{A. Lijphart, Democracy in Plural Societies: A Comparative Exploration, New Haven & London, Yale}

University Press, 1977, pp. 3-5.

32_{Ibid, p. 25.}

33_{The rigid nature of consociationalism is apparent when consociationalism is compared to the more flexible}

approach by Donald Horowitz which focuses on cooperation and communication between and across the various communities. Though more flexible, this approach has in general been less successful. See also Bieber and Keil (2009), p. 339.

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been a combined arrangement between the international community and the three constituent peoples, an end to this setting seems near as Bosnia may soon be left to fully govern itself. However, this will not change the power sharing model currently in place, a model which has been fragile for the last decade, if not since its implementation in 1995.

Chapter 3 will mainly focus on the future of power sharing in Bosnia. The consociationalist nature of the Bosnian state is possibly a structure which cannot be upheld. What are the lessons we have learned from Bosnia’s power sharing model and which components of this model may create a problem for the future, and the continuation of Bosnia in its current form? The last chapter will discuss these issues based on first hand research of media sources.

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3 Past - Dayton’s legacy: stateness achieved?

With the fall of the Yugoslavian League of Communists, the fall of Yugoslavia itself was instigated. A few months later Bosnia would hold its first general elections in 1990 and in 1992 a referendum on independence would follow. Linz and Stepan said that before you can have democracy, you have to have a state. Bosnia was not yet a state when it had its first general elections in 1990, and by the time the second elections took place in 1996 the war was a not so distant memory. The following is a disquisition of the history and an analysis of Bosnia’s path towards stateness.

3.1 The Dayton Peace Agreement, an introduction

As a result of pressure from the international community to end the atrocities in Bosnia, in December 1995 the General Framework Agreement for Peace in Bosnia and Herzegovina, otherwise known as the Dayton Peace Agreement, was signed by Bosnian President Alija Izetbegović, Croatian President Franjo Tuđman and Yugoslav President Slobodan Milošević, respectively representing the (Muslim) Bosniaks, (Catholic) Bosnian Croats and (Orthodox) Bosnian Serbs.34_{During the first post-Dayton years the most important aspects of the}

implementation were (military) safety, free democratic elections and the returning of the properties to the refugees and displaced persons. Immediately after the war, the safety aspect was quickly achieved by the deployment of 60.000 international troops which entered the country as part of the widely implemented peacekeeping missions. Though the peacekeeping missions were initially planned to last one year, it was not before 2004 that NATO handed over the responsibility of the security in Bosnia to a smaller European Union force which is still present in the country, though in very small numbers.35 The first elections were held in 1996 and by 2004 the greater deal of the property was returned to the rightful owner, according to the requirements of the Dayton Agreement.36

34_{R. Belloni, State Building and International Intervention in Bosnia, London & New York, Routledge, 2007, p.}

14-15.

35_{European Union External Action, About EUFOR, [website], 2016,}

http://www.euforbih.org/eufor/index.php/about-eufor/background (accessed 16-03-2017).

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15 Ethnic division and ethnic reintegration

It is often noted that the Dayton Agreement in the first place served as a cease fire which eventually brought an end to the war and created the possibility for millions of displaced Bosnians to return to their lives and homes. However, during the years following the war it became evident that the agreement formed the basis for a decentralized political system which undermined the position of the state government.37 Dayton divided the Bosnian state into two entities; the Serbian Republika Srpska (RS), which entails 49 percent of the territory and the Bosniak-Croat Federacija Bosne i Hercegovine (FBiH) which covers the remaining 51 percent. Notably although all provisions put in place by Dayton are based on the existence of three constituent peoples in Bosnia, the country was divided in two parts. As one part of Bosnia remained non-negotiable between the Serb and Bosniak parties, the city of Brčko became a separate self-governing district under direct rule of the central government.38 The division of Bosnia into two entities pushed the state towards a lasting decentralization with direct consequences such as separate entity governments, educational policy and police force. Furthermore, the FBiH was additionally divided into ten different cantons with a regional government per canton to allow the Bosniaks and Croats to govern themselves.

Dayton established a partition of territory on ethnic basis, yet at the same time incorporated a directive which allowed displaced persons to return to their home even if their home was located in an entity governed by an opposing ethnic group. Bosnia’s future was thus based on a contradictory peace and constitutional document: ethnic divide was established while simultaneously ethnic reintegration was pursued.39

Shared sovereignty with the international community

The Dayton Agreement also resulted in the formation of the Peace Implementation Council (PIC), which was instated to safeguard the execution of the peace agreement. Additional to the implementation of the agreement the PIC would, through the Office of the High Representative (OHR), represent the international community in Bosnia.40_{The formal role of the OHR was}

defined as upholding democratic governance and intervening if the Dayton Agreement was

37_{P.C. McMahon and J. Western, ‘The Death of Dayton: How to Stop Bosnia from Falling Apart’, Foreign}

Affairs, September/October, 2009, p. 1.

38_{Office of the High Representative, Is Brčko a condominium, an entity or a municipality?, [website], 2003,}

http://www.ohr.int/?p=48496 (accessed 08-04-2017).

39_{Belloni (2007), p. 17.}

40_{Office of the High Representative,}_{Peace Implementation Council, [website]}

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violated.41_{In 1997 during a PIC session in Bonn (Germany), the HR was given extensive}

powers, the so called Bonn Authority or Powers, which gave the HR a more proactive right of issuing binding decisions such as the power to dismiss non-elected officials who are obstructing the implementation of the peace agreement.42 Although the powers initially granted to the HR have subdued in use in comparison to a decade ago, if required they can still be revived. Up to this day this particular mandate is considered most controversial due to its invasive nature concerning the state’s sovereignty.43

The implementation of this so-called (partial) transitional administration of the OHR was not intended as a challenge to the basic norms of sovereignty. Instead, it was explicitly intended as a temporary measure to aid the restoration of the actual sovereignty of the state. However, transitional administration has proven difficult in states where local actors are not inclined to agree on any matters concerning basic state objectives. As a result, stable institutions cannot be accomplished and the presence of the transitional administration is required for a longer period of time. Bosnia’s shared sovereignty situation illustrates this problem exactly. Due to the disagreement on basic state objectives between the ethnically aligned factions and in anticipation of the departure of the international community, each faction has in post-war Bosnia devoted more attention to the strengthening of its own political position than to the creation of stable institutions. 44

Constitutional issues: minorities

Over the last two decades Bosnia has ratified all major international and European human rights conventions. Even though the principles of the European Convention on Human Rights (ECHR) have contributed to the Bosnian constitution, the state has not yet managed to enforce decisions of the Constitutional Court of Bosnia and Herzegovina. This has resulted in more cases (in relations to Bosnia) being filed at the European Court of Human Rights (ECtHR). Furthermore, the state has not been able to enforce many of the ECtHR rulings.45

41_{A. Fagan, Europe’s Balkan Dilemma: Paths to Civil Society or State-Building, New York, I.B. Tauris, 2010,}

p. 82.

42_{Office of the High Representative,}_{Peace Implementation Council Bonn Conclusions, [website], 10-12-1997,}

http://www.ohr.int/?p=54137(accessed 09-04-2017).

43_{International Crisis Group, Bosnia’s Incomplete Transition: Between Dayton and Europe (Report no. 198),}

09-03-2009, p. 17.

44_{S.D. Krasner, ‘Sharing Sovereignty: New Institutions for Collapsed and Failing States’, International Security,}

vol. 29, no. 2, 2004, p. 99-100.

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One such ruling is of great importance as it deals with the breach between the Bosnian constitution and the ECHR. The constitution, created as an annex of the Dayton Agreement, contains power-sharing provisions which state that only the three constituent peoples may hold a seat in the tripartite presidency or the House of Peoples, leaving representatives of the remaining minority groups, as well as any other Bosnian citizen not belonging to one of the constituent peoples, excluded. As this provision was never questioned, there was no need to change it. However, in 2006 Dervo Sejdić and Jakob Finci, applied to stand for elected office. A few months later they received confirmation from the Central Election Commission that they were not eligible for this office due to their ethnic background, being respectively of Roma and Jewish ethnic descent. After exhausting al national legal options Dervo Sejdić and Jakob Finci lodged a complaint with the ECtHR as they believed several articles of the ECHR were violated, most importantly article 14 (non-discrimination).46 In 2009 the ECtHR agreed with the applicants and the Sejdić and Finci v. Bosnia and Herzegovina-case ruling demanded that the Bosnian government revised the constitution in order to abolish all existing ethnic discrimination in the electoral system for the tripartite presidency and the House of Peoples. To this day however, the ruling has not been implemented which not only results in ongoing (ethnic) discrimination, but also shows the lack of enforcement of human rights. It must be noted though that Bosnia did accomplish many improvements in the enforcement of human rights, such as amendments to the anti-discrimination law. However, in 2016 the EC reported that promotion and enforcement of human rights remains an unfinished task in Bosnia as the Constitutional Court which has been granted these tasks has not properly done so.47_{It is}

expected that the ruling of Sejdić-Finci will be implemented before the next general elections in 2018, as otherwise the elections may not be acknowledged by the EU and EU membership for Bosnia would become and even more distant prospect than it currently is.48

46_{ECtHR decision, Case of Sejdić and Finci v. Bosnia and Herzegovina, application no. 27996/06 and 34836/06,}

Strasbourg, 22-12-2009, para. 6-14. Available online at: http://www.echr.coe.int/Pages/home.aspx?p=home&c= (accessed 02-04-2017)

47_{EC BiH Progress Report 2016, p. 21.}

48_{Jakob Finci, interviewed by Armina Sadiković, (Ne)poznato Lice TV1, [online video], 21-01-2017,}

http://tv1.ba/produkcija/nepoznato-lice/video-nepoznato-lice-sa-arminom-gost-jakob-finci-21-1-2017/ (accessed 18-05-2017)

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3.2 Capacity of state organs to uphold control

The capacity of state organs to maintain sovereignty can be measured in various ways. As indicated before, the basic notions for sovereignty are based on the monopoly of power and the capability of enforcement of rules, be it legal or fiscal rules.49

Military control

The monopoly on the use of force in Bosnia was initially challenged on two fronts. First of all, as the peacekeeping forces had a military mandate, their presence was initially also a reason that the state did not have full monopoly on the use of force. However, as indicated above, the number of peacekeeping troops has strongly been reduced and the peacekeeping troops never challenged the sovereignty of the state.50_{The second issue portrayed the ongoing divide in the}

country more clearly. During the first decade following the signing of the Dayton Agreement, there was no singular Bosnian army as each of the three Bosnian factions still had their own armed forces in place. The need for military reform was evident: the entities’ armed forces were associated with the war and continuing with the separate armed forces was an indication of a still divided nation.

It was not until 2003 that military reform would start taking shape. By a raid of the Army of the Republika Srpska, SFOR confirmed suspicions that the army was selling specific MiG parts to Iraq and therewith violating a UN arms embargo. According to PIC this showed ‘serious deficiencies in the command and control of Bosnia’s militaries’.51_{As a result the HR changed}

the constitutions of both entities to force significant progress in the area of defence reform, which followed in 2004 and 2005. Stimulated by the perspective of NATO’s Partnership for Peace, the Defence Reform package was approved by entity and state parliaments. This resulted in the elimination of Entity Ministries of Defence and the creation of a singular State Ministry of Defence and a singular state army.52

49_{Fiscal rules are regulated by law. This issue is therefore incorporated in the rule of law discussion.} 50_{Bieber (2006), p. 45.}

51_{International Crisis Group, Ensuring Bosnia’s Future: A New International Engagement Strategy (Report no.}

180), 15-02-2007, p. 15-16.

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Legally upholding control over a state indicates that there are no actors challenging or competing with the state to exercise power within the borders of the state. In other words, the state must be able to enforce rules throughout the territory.53 Though Linz and Stepan’s definition of stateness initially did not entail the rule of law, later this requirement was added, as there can be no state without the rule of law. Rule of law essentially means that governmental authority may only be exercised in accordance with the laws of the state which have been adopted through due process. The laws must be public and the laws must treat all people equally. To evaluate the rule of law, we must look at aspects such as the constitution, human rights (freedom rights), the judicial system and the legislative body.

The Dayton Agreement and its annexes such as the Bosnian constitution are a result of negotiations between the international community, the representation of two other countries respectively Croatia and Yugoslavia and the Bosnian representation. Though it is unusual that foreign powers determine a constitution of a sovereign state, due to the circumstances at the time, this can be interpreted as due process. Nevertheless, the Dayton constitution was not intended to remain for the time it has. This is illustrated by the fact that the constitution has never by official means been translated into Bosnian, Croatian or Serbian and has never been published in the Official Gazettes.54 The document has been translated by various institutions, though a translation was never commissioned and approved by the OHR and the Bosnian Ministry of Justice, the appointed institutions for this task. The lack of such an official translation leaves too much room for interpretation.

As indicated above (Constitutional issues: Minorities), the constitution contains flaws in relation to human rights. One great flaw which has been contested in the ECtHR and refuted is that the constitution does not treat all men equally; minorities or ‘others’ do not have the same rights according to the constitution. Additionally, the constitution contains another great flaw on the notion of judicial independence and prosecutorial autonomy. Though these notions are addressed in the entity constitutions and on other levels of legislation, they are not addressed in the Bosnian constitution. Politically motivated threats are continuously being made and form a problem for judicial independence.55 These few examples indicate faults in the constitution which therefore cannot fully be aligned with the ECHR.

53_{Fukuyama (2005), p. 4.}

54_{Jakob Finci, interviewed by Armina Sadiković, (Ne)poznato Lice, TV1, 21-01-2017.}

Though it is implied on the official document that the Constitution is to be signed in Bosnian, Croatian and Serbian, these documents have never been made public and their existence is questioned.

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Both entities have their own laws and constitution in place. The existence of laws on multiple levels in a state is not an uncommon legal system, e.g. the United States where some issues are laid down in federal laws and other issues in state laws. But in a state where rule of law applies, all laws must be mutually compatible. This is not the case for the constitutions and laws of the Bosnian entities and of the state. For example, the constitution of the RS still contains a provision on the death penalty56, where the constitutions of FBiH and Bosnia do not. Not only are the constitutions not aligned with each other, the death penalty is not in accordance with the ECHR, which BiH has ratified, and therefore needs to be repealed. Furthermore, Bosnia still has to implement constitutional recommendations from the 2014 UN Universal Periodic Review of Bosnia’s human rights records, including recommendations for constitutional changes as well as harmonization of law and policy.57

During the years following the war the legal and judicial system in both entities was sub-standard. Corruption and incompetence dominated the systems of both FBiH and RS until 2002. In 2002 reform started by the implementation of a judicial reform strategy.58 The reform entailed the establishment of a High Judicial and Prosecutorial Council (HJPC), among other institutions, which would oversee the appointment of judicial staff and a State Court and Prosecutor’s Office, which were both established in 2004.59_{Though the consolidation of the}

judicial system has continued its progress throughout the last decade, judicial and legal reform has been limited. Due to of lack of political will combined with a shortage of human and financial resources and poor coordination between institutions, the rule of law has been considered weak and the judicial system as non-efficient. The fragmented framework (State level, RS, FBiH, Brčko District), lack of a single budget, a backlog of cases and political attacks remain to affect the independence and effectiveness of the judicial system.60

Finally, an important note should be put on the extraordinary Bonn powers granted to the HR. Though these powers have already been discussed as part of the shared sovereignty discussion, the legal dimension of this international administrator must also be addressed. The OHR exercises direct legal power over the Bosnian population and can thus enforce rules throughout the territory. This remaining part of transitional justice in Bosnia, a transitional exception, was considered the only way to establish rule of law after the war. Now, two decades

56_{The death penalty contains a moratorium, i.e. a delay or suspension of the law is a possibility.} 57_{EC BiH Progress Report 2016, p. 21.}

58_{EC BiH Progress Report 2003, p. 26.} 59_{EC BiH Progress Report 2005, p. 9.}

60_{EC BiH Progress Report 2010, p. 30 and EC BiH Progress Report 2011, p. 11-12 and EC BiH Progress Report}

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after the Dayton agreement, this transitional exception can also be viewed as an interfering factor of due process and therefore an obstacle to the rule of law.61_{During the last decade the}

use of the Bonn powers has noticeably declined as Bosnia’s transition to local ownership continues.

3.3 Citizenship

As the strongest connection between the state and an individual, citizenship is regulated by the constitution of a state. There is no dispute of who holds citizenship of Bosnia as formal citizenship is laid down in article 1 of the Bosnian Constitution. However, this formal drafting has not necessarily resolved the issue of citizenship for Bosnian nationals.

Citizenship based on ethnicity

Bosnia has never gone through the (West like) process of nation building, thus a national identity was in such a context not formed and has never developed into a unified idea of citizenship. The discussion of citizenship in Bosnia has the same background as perhaps any important issue in the country: ethnicity. Citizens of Bosnia view their citizenship as principally based on ethnical background, rather than on a shared Bosnian cultural or historical background, which is probably too divers and complicated to serve as the foundation for Bosnian citizenship. As a result of the Dayton agreement, Bosnia is now left with a citizenship regime based on the principal model of the European continent, with an added complexity due to the ethnically divided society.62_{This complex Bosnian citizenship model does not}

necessarily correspond with the predominant conception of citizenship within the state’s borders, it is clearly connected to the post-war political issues and has been used as a tool to create stability.63_{The OHR created three citizenship laws: one on state level and one on the}

level of each entity. It is unclear though which of the laws is primary and which is derivative. This can in principle result in a situation that if a person were to lose citizenship of an entity,

61_{J.J. Garcia-Blesa, ‘Transitional Exceptions to the Rule of Law in International Administrations: The OHR in}

Bosnia and Herzegovina and the Right to Due Process’, International Peacekeeping, vol. 1, no. 4, 2011, 396-409.

62_{E. Sarajlić, ‘A Citizenship Beyond the Nation-State: Dilemmas of the ‘Europeanisation’ of Bosnia and}

Herzegovina’, CITSEE Working Paper, University of Edinburg, vol. 9, 2010, p. 5.

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that person would lose citizenship of the state also.64_{The current citizenship regime can}

accordingly result in human rights violations.

The existence of the neighbouring ‘national homelands’ for both Bosnian Croats and Bosnian Serbs does not strengthen the position of the Bosnian state citizenship.65 Ethnic Serbs residing outside of Serbia have since 2007 been able to become citizens of Serbia.66 For some, this grants chances to even further reaffirm their ethnic citizenship with their national homeland, though Bosnian Serbs may not particularly desire this as they have a very strong sense of citizenship of the RS, more so than of Bosnia. The clearest example of such sentiments is the RS president Milorad Dodik. He has openly and repeatedly declared that he is not a Bosnian citizen, rather a Serbian citizen of Republika Srpska.67 He has also been one of the first to apply for citizenship of Serbia in 2007.68 With such action he deliberately disregards the existence of Bosnian state citizenship.

Bosnian Croats find themselves in a similar position as their Serbian countrymen. They try to balance their membership of a wider Croat nation with their actual citizenship of Bosnia. Belonging to this wider Croat nation is highlighted by fact that the majority of Bosnian Croats also hold the Croatian citizenship. Many Croats view their Bosnian citizenship as a legality issue.69 As a result of the establishment of a shared entity for Croats and Bosniaks, a separate Croat ethnic citizenship was not created in Bosnia, in contrast to Serb citizenship in the RS.70

Diaspora citizenship

Although all countries have their share of citizens living abroad, this share is especially large when it comes to the Bosnian diaspora. The largest wave of immigration took place during the war, but the poor economic prospects in the years following the war also led to a large wave of migration. In 2004 the UNHCR established that of the two million displaced persons during the Bosnian war, approximately half a million refugees71 had fled Bosnia to other countries and

64_{E. Sarajlić, ‘Conceptualising Citizenship Regime(s) in post-Dayton Bosnia and Herzegovina’, Citizenship}

Studies, vol. 16, nos. 3-4, 2012, p. 371.

65_{Sarajlić (2010), p. 15.}

66_{F. Bieber, ‘The Risks and Benefits of Ethnic Citizenship’, CITSEE, [website], 10-11-2011,}

http://www.citsee.eu/op-ed/risks-and-benefits-ethnic-citizenship-florian-bieber (accessed 25-04-2017).

67_{Milorad Dodik, interviewed by Gorislav Papić, Raspakivanje, RTS1, 26-06-2012. Available on:}

http://www.rts.rs/page/tv/sr/story/22/rts-satelit/1127550/raspakivanje.html (accessed 01-05-2017)

68_{Bieber (2011), ‘The Risks and Benefits of Ethnic Citizenship’.} 69_{Sarajlić (2010), p. 12.}

70_{Sarajlić (2012), p. 370.}

71_{This is a (researched) estimate by the UNHCR. Various other sources have indicated Bosnia’s diaspora to be}

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were no longer expected to return due to settlement and probable acquirement of citizenship elsewhere.72_{The Bosnian citizenship of this group was shortly challenged in 2012. The Bosnian}

Constitution states that dual citizenship is allowed with countries that Bosnia has a bilateral agreement with on dual citizenship. The deadline for establishing such agreements was set in the Law on Citizenship on 1 January 2013. As many countries where Bosnian diaspora resides did not have such an agreement with Bosnia, a great deal of Bosnian diaspora was in risk of losing their citizenship if they opted to keep their newly acquired citizenship. To many who fled the country due to ethnic cleansing this was viewed as a double violation of their rights. As a result, Bakir Izetbegović, then chair of the Presidency of Bosnia lodged an appeal with the Constitutional Court to have the Law on Citizenship amended on this issue. The Constitutional Court approved the appeal and amendment followed in 2013.73 Not only does Bosnian citizenship have great sentimental value for Bosnian diaspora, it also gives these citizens certain rights such as the right to political participation. Considering the course of the war and the reason many citizens left Bosnia, it is a right that can be viewed as justifiably preserved.

3.4 Interim conclusion

The goal of this chapter was to in the first place illustrate the Bosnian post-war internal situation created by the Dayton Agreement. As the agreement created a new state, the question was if stateness was at all achieved with the Dayton Agreement and if the foundation for a functioning state was established. Stateness was therefore examined by means of the previously established criteria being the capacity of state organs to uphold control and the idea of citizenship.

The capacity of state organs to uphold control can be seen as finally accomplished for a great part, though this was not the case in 1995. In the wake of the war the military power was not in the hands of the central Bosnian state, but in the hands of entity armies and the international peacekeeping forces. Thus, the state had no direct monopoly of power. As the peacekeeping forces have slowly departed from Bosnia and the entity armies have integrated into one state army, the criterion for capacity to uphold military power has formally been achieved. Nevertheless, ethnic divide remains an issue in Bosnia. It cannot be said with any

72_{UNHCR, Returns to Bosnia and Herzegovina Reach One Million, [website], 21-09-2004,}

http://www.unhcr.org/news/briefing/2004/9/414ffeb44/returns-bosnia-herzegovina-reach-1-million.html

(accessed 03-06-2017).

73_{Anonymous, ‘Usvojen zakon: Građani BiH sada mogu biti državljani i ove, i neke druge zemlje’}_(‘Law

adopted: Citizens of BiH now can hold citizenship from this, and another country’), Nezavisne Novine, [website], 18-07-2013, http://www.nezavisne.com/novosti/bih/Usvojen-Zakon-Gradjani-BiH-sada-mogu-biti-drzavljani-i-ove-i-neke-druge-zemlje/201117 (accessed 03-06-2017)

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certainty that in case of internal conflict the Bosnian state army would remain united. Considering the developments of the recent years, there is a considerable possibility that the army would disperse along ethnic lines to defend their own ethnic group, and not the Bosnian state.

The capacity to enforce rules has for two decades been shared with an international administrator. The existence of the Dayton Agreement and the need for its oversight by the OHR combined with the HR’s Bonn Powers means that Bosnia does not officially uphold full legal control. Though the OHR has officially not yet closed, the Bonn Powers have not been used in recent years. Local ownership has increased regarding enforcement of rules and can therefore be interpreted as accomplished, for the time being. Yet, due to the remaining inconsistency between the ECHR and the Constitution, and also between state laws and entity laws, there is still quite some inconsistency on the use of the laws. Also, as RS has been contesting state laws and decisions for a few years now, there is still the question of which laws are enforced where. Though it can be concluded that enforcement of rules is formally upheld by the state, the entities have far reaching power in this case. One question remains: as the Constitution does not correspond with the ECHR, why does the state not enforce a change of rules, or a change of law, if the state holds the capacity to do so? The issue of reform will be discussed in the subsequent chapter.

Citizenship does exist in formal documents, as laws on citizenship are in place. Nonetheless, many Bosnian Serbs feel a greater affiliation with the RS or Serbian citizenship and many Bosnian Croats with the Croatian citizenship due to the shared ethnic heritage, resulting in a torn allegiance. The Bosniak political elite tries to emphasize the continuation of a republican, Bosnian citizenship. The desire to keep Bosnia whole and the Bosnian citizenship as it is, can also be contributed to the fact that Bosniaks do not have a national homeland except for Bosnia. As the Bosnian Serbs and the Bosnian Croats do have another way to turn, they may feel that the Bosnian citizenship is more imposed than desired.

Overall, stateness has been achieved. Yet, the unchanging presence of ethnic cleavages has resulted in many ‘formal’ accomplishments, which are far from being embedded in Bosnian society.

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4 Present – Towards a functioning state?

Over the course of the last two decades Bosnia has accomplished a lot, but also failed to achieve all it set out to. Following the first post-war years where disarmament, military safety, (physical) rebuilding of the country and the return of refugees were the most important undertakings of the state and the international community, later the focus was shifted towards the development of state capacity, in other words the creation of a functioning state. The ultimate goal in Bosnia was to establish a functioning democratic market economy. Creating a functioning democracy in a state without a democratic tradition, with no practice in self-government and no tradition of statehood would turn out to be quite a challenging task. To understand the present situation of Bosnia, an analysis of the path towards the current situation will if necessary also be provided, as these past occurrences have undeniably contributed to the present situation.

4.1 Capacity to implement policy: administrative capacity

The capacity to implement policy is one of the core requirements of a functioning state. To measure this implementation capacity, it is necessary to determine if state organs are able to govern themselves, i.e. whether the state’s political elite is capable of policy implementation and policy reform to ensure the state’s stability and prosperity.

Reform attempts: political gridlock

Bosnia’s political arena is not unaccustomed to crises leading to parties pledging allegiance to ‘their own’, political leaders threatening various measures and the HR reacting to these outbreaks with the controversial Bonn Powers. Nonetheless, Bosnia and the international community have for years been praised by many for the efforts and the outcome of the reparation and state re-building process during the first ten years following the war. However, there was also room for criticism seeing that the overall results, considering the investments and the incentives of EU and NATO, were modest.74_{The stagnation of the state building process}

has over the years resulted in multiple attempts to progressively reform the constitutional

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framework of the state as the unsustainability of the political and governmental situation in Bosnia had become evident.

The first attempt to revise the Dayton settlement was the so-called April Package of 2006 which mostly focused on reinforcing the position of the central government. A working group comprised of representatives from the eight most important political parties took part in the negotiations on the package which was based on the recommendations of the Council of Europe Venice Commission. The amendment package among other things contained a new procedure for the election of the Presidency, granted more competencies to the state and provided the possibility for minorities to be represented in the State Parliament.75_{Though the}

negotiations within the working group had initially reached some consensus, further discussion had to be done at the level of the party leaders. During this final part of the process the Stranka

za Bosnu i Hercegovinu (Party for Bosnia and Herzegovina, SBiH) withdrew from the

negotiations and started a campaign against the agreement due to one specific issue (entity voting76_{). Though the outcome of the negotiations was not all the international community had}

hoped for, it was still considered a step in the right direction. Yet in the end, the six parties which supported the package lacked the necessary votes for the adoption of the amendments in the House of Representatives.77_{The failing of the April Package was a missed opportunity for}

a relatively needed step towards a more democratic and efficient state.

After this failure, the European Commission used the prospect of a Stabilisation and Association Agreement (SAA) with the EU as an incentive for one of the most urgent reforms at the time; the placement of the country’s police forces under state rule instead of entity rule.78

The newly appointed HR Miroslav Lajčák who took office in 2007 was given the assignment to push Bosnia towards key reforms, such as police restructuring. Lajčák quickly took on this task by first re-establishing the authority of his office through several uses of the Bonn Powers, among others to amend laws. Though the HR was attempting to push Bosnia towards EU integration, the use of the Bonn Powers which had in the previous two years rarely been used, resulted in opposition from the RS political elite. As the imposed decisions impacted the RS most, RS President Milorad Dodik announced an intent to end participation in state institutions if the actions continued. The situation was paralyzed for a few months, until the international

76_{Entity voting in practice means the capacity of one entity to block legislation.}

77_{ICG Report 2007, Ensuring Bosnia’s Future: A New International Engagement Strategy, pp. 9-11 and Bennett}

(2016), pp. 172-175.

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community eventually faltered and gave in to the RS demands.79_{Lajčák and the EU accepted a}

moderated commitment from the RS, leaving Bosnia with multiple police services. As a result, Bosnia could sign the SAA, yet at a high cost. The collision between RS and the international community in the aftermath of the April Package negotiations and during the police reform negotiations damaged OHR’s credibility. This resulted in opportunities for nationalist parties and politicians to strengthen their positions, for the first time since the war.80

In November 2008 the leaders of the three biggest parties of the country, each representing one of the constituent peoples, started negotiating new reforms. The core issues of the so-called Prud Process81_{were the establishment of a more stable state by attempting to create}

solutions for some of the outstanding PIC conditions and realizing constitutional reform which would bring the state closer to satisfying the criteria set for EU accession, such as compliance with the ECHR. The negotiations were suspended as the party leaders eventually did not share a common view on the continuation of the state. 82

By 2009 the international community and especially the EU was showing frustration as to the modest progress of Bosnia’s transition to local ownerships. The newest HR Valentin Inzko was dealing with the same issues as his predecessor. The international community and particularly Brussels wanted him to manage the situation, but at the same time they were showing reluctance in supporting him if the Bonn Powers were to be used.83_{The general hope}

was that the OHR could soon be closed down, yet for that course of action reforms were necessary. At the Butmir military base outside Sarajevo, in October 2009 the Butmir Process started with yet another attempt to accomplish constitutional reforms. Although the talks showed promise considering the representation of seven of eight political parties involved in the April Package negotiations, the result was an even greater cleavage between the ethno-national elites. Additionally, the bad timing of the negotiations, a year before elections, was considered an excellent opportunity by the political parties to show their uncompromising image. It should also be noted that the position of the OHR was seriously damaged during the Butmir Process. The HR was not invited to participate in the negotiations, but was invited to attend merely as the EU Special Representative (EUSR).84

79_{Bennett (2016), pp. 186-188.}

80_{McMahon and Western (2009), p. 80.}

81_{The process was named after a small village in the municipality of Odžak where the talks were concluded.} 82_{ICG Report 2009, Bosnia’s Incomplete Transition: Between Dayton and Europe, p. 8 and Bennett (2016), pp.}

198-199.

83_{Bennett (2016), p. 204.} 84_{Ibid., pp. 206-207.}

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The latest reform effort in this long line is the 2015-2018 Reform Agenda, which was initiated by the German and British Foreign Ministers as a joint deal with the long awaited implementation of the SAA. With the hope that it would give Bosnia a further push towards the EU, the SAA entered into force in June 2015. Simultaneously and after approval by both entity parliaments, the Reform Agenda was implemented with the expectation that the current Bosnian government (2014-2018) would attempt to achieve ‘socio-economic and related reforms on all levels of government’.85_{The EU has thus moved the focus from constitutional reform, which}

was postponed for a later stage, to socio-economic reform.86_{Though the 2016 EC Report on}

Bosnia showed promising initial results for the implementation of the agenda concerning cooperation between state-level, entity-level and Brčko District parliaments87_{, in April 2017}

Bosnia’s parliament rejected a draft law on a Reform Agenda measure related to fuel tax.88_This

rejection is one of the indications that it may be impossible to implement all measures of the Reform Agenda. The reform, though not constitutional, is still considered to be an endangerment of the interests of the ruling elites.

Over the years international and local NGO’s have repeatedly indicated their support for constitutional reform by proposing reform packages. Additionally, Bosnia’s academics have also argued that the current ‘ethnopolis’ needs to come to an end and a functioning democracy needs to be established. Though some advocated minimalist reform and other maximalist reform, the general consensus is that reform is needed.89

International involvement: state building

As shown, reforms and the presence of the international community are intertwined. In the role of guardian of the Dayton Agreement, the international community has in most cases been a prominent guest at the negotiations table for reforms. Although domestic actors were expected to instigate reform, it was the international community which gave the required push to Bosnia’s state building process by means of incentives.

85_{Delegation of the European Union to Bosnia and Herzegovina, Reform Agenda for Bosnia and Herzegovina}

2015-2018, [website], 09-09-2015, http://europa.ba/?p=36143 (accessed 01-06-2017).

86_{Bennett (2016), p. 233.}

88_{B. Weber, ‘Brussels is Letting Bosnia’s Reform Agenda Slip Away’, Democratization Policy Council,}

[website], 07-04-2017, http://www.democratizationpolicy.org/pubtags/-bosnia-and-herzegovina/ (accessed 03-06-2017).

89_{V. Perry, ‘Constitutional Reform in Bosnia and Herzegovina: Does the Road to the Confederation go through}

Does logic really end where Bosnia begins? An analysis of the past, present and future of a (non)functioning state