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DPC Senior Associate Bodo Weber’s reply to Gerald Knaus, ESI

14 March 2014 by Bodo Weber, Berlin

Last November DPC published the policy note Legal Misunderstandings, False normative Hopes and the Ignorance of Political Reality. A Commentary on the recent ESI Report "Lost in the Bosnian Labyrinth” (http://democratizationpolicy.org/uimages/DPCPolicyNoteNewseriesSejdicFinci.pdf),a critique of the mentioned European Stability Initiative paper. DPC’s policy note was written by guest author Dr. Soeren Keil from Canterbury University. Shortly after, DPC’s Senior Associate Bodo Weber received a personal message from Gerald Knaus, ESI that contained a couple of questions related to the policy note. In a recent blogpost (http://www.esiweb.org/rumeliobserver/2014/03/13/bosnia-still-held-hostage-and-a-few-questions-to-dpc/) Mr. Knaus made his message public, asking for a reply.

Find below Bodo Weber’s reply as well as Mr. Knaus’s original message.

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Bodo Weber reply, March 14, 2013:

Dear Gerald,

I hope this message finds you well. Thank you for your November email and your questions on Soeren Keil's policy note we published back in autumn. I promised you an answer then, but dropped the ball for quite some time – recent months have been busier than usual. Sorry for that. After a couple of weeks had passed, it seemed senseless to me to send an answer. But judging from your recent blogpost, you are obviously still interested in a response. I see your email was intended to "take our mutual understanding of the issues one step further.” I am not sure there is a mutual understanding to take any step further, but let me leave that point aside and reply directly to your questions.

You had sent me a couple of remarks and questions concerning a commentary on ESI’s paper "Lost in the Bosnian labyrinth - Why the Sejdić-Finci case should not block an EU application,” published by DPC in the form of a policy note. As this policy note was authored by Dr. Soeren Keil, I think it’s appropriate to ask you to approach Soeren directly – you can find his contact data in his paper.

But as you had asked me personally what I think, let me also share my – personal – thoughts with you on the argumentation and analysis in your paper (as well as in the follow-up paper "Houdini in Bosnia. How to unlock the EU accession process”), which left me no less irritated than it did Soeren.

Your paper is, leaving your 2009 work on the very special issue of visa liberalization aside, the first ESI paper on Bosnia published after six years of absence, if I am not mistaken. The last one dealing with Bosnia’s overall political development and the West’s policy approach to the country dealt with police reform and was published in 2007 – the year when Bosnia and the EU struggled with the unblocking of the initialing of BiH’s SAA and when the EU opened its membership doors for Bulgaria and Romania. Your most recent paper came out in 2013, a year in which the EU was in a kind of endgame struggle with Bosnia over the blocking of the entry into force of the SAA and in which the Union welcomed Croatia as its 28th member.

Much has happened over these past six years, yet ESI’s line of argumentation seems to remain unchanged.

You argue that it can’t be justified that implementation of the Sejdić-Finci ruling has been made a condition by the EU as the reforms expected from Bosnia "have not been asked of other EU applicants, much less of its own member states.” I never got this argument: The European Union was not originally formed as a community based on jointly agreed and implemented democratic standards. The struggle to get there with the limited leverage over countries once they entered the Union lies at the core of its current crisis (you even admit that yourself in your paper – so what’s the point?). When it comes to the other group – previous applicants – there simply exists nothing like an unchanging set of EU-integration reform conditions and tools. Instead, these instruments have evolved over time and continue to do so, based on lessons learned from previous accession cases as well as specific challenges each applicant presents. The evolution of the EU’s own policy and standards also affects these instruments. Consequently, a German diplomat has recently labeled the EU’s transformed EU-integration policy in the Western Balkans as "EU-integration 2.0.”

Instead of recognizing this context you, among others, argue with the EU’s standards applied on Bulgaria and Cyprus in order to demand the lowering of conditionality for Bosnia. This seems to be so totally out of sync with the political reality of the EU to me. We have just entered an election year in the EU in which more Euroskeptics are expected to enter the European Parliament than ever before. If there’s one point Euroskeptics and advocates of further EU-enlargement agree on, it’s that neither Cyprus nor Bulgaria should have ever been allowed to enter the EU in the state that they were and that no applicant should ever be allowed to enter under these low conditions again. Croatia has profited heavily from strengthened EU reform conditionality. Its entry has been a success story for EU’s integration policy (despite Zagreb’s current disorientation), as you rightly stressed in your more recent work. Based on the Cyprus experience and in respect of the specific problem it faces, the EU under German leadership achieved a breakthrough in the Serbia-Kosovo dialogue last year that – if consistently followed through in the future – has the chance to permanently solve this status conflict and lead both countries into the EU. This only happened because Brussels (at the direction of Berlin and London) put conditions to Belgrade that were never asked from any other applicant and granted Prishtina the opening of SAA negotiations based on a contractual relationship with the EU never offered to any applicant before. Based on your line of argumentation, what would you suggest – to roll back that success to point zero for the sake of consistency with past practice?

The selectivity of your writing on Bosnia and the West’s Bosnia policy seems even more astonishing to me. The real reason why the EU ended up stuck with Bosnian political leaders on Sejdić-Finci is because of the Croat ethnic parties’ attempt to pack under the implementation of the ECHR something that has nothing to do with the Sejdić-Finci condition – the solution of "the Croat question,” as defined by the two HDZs. And Brussels has tacitly agreed to enter into negotiating over such constitutional reform behind closed doors in order to please Croat political leaders – a mission impossible under current political conditions. None of that was mentioned in your paper. Also, you tend to suggest that if the Sejdić-Finci hurdle is removed, Bosnia’s accession process would be unblocked – this is wrong. It would only lead to putting the SAA in force. Conditions for filing a credible candidate application would only be met if political leaders agreed on a so-called coordination mechanism – which they don’t. You ignore that aspect in both of your recent papers.

If you dealt these two issues, you would have to deal with what happened over the six years during which ESI had more or less checked-out of Bosnia: The US has ceded Western leadership on Bosnia to the EU. International policy shifted from the OHR-led half-protectorate-driven reform process to one based on domestic "ownership” for further reforms in the framework of the EU’s integration policy and a "reinforced” presence in the country – just as you at ESI had demanded back then. OHR in fact has not been closed, but almost completely neutralized over time. The EU (and the wider West) has simply executed this shift in approach without any transition strategy – or any strategy at all, other than the off-the-shelf process of "enlargement.” As a result, it has not led to the outcome you and others predicted – a more dynamic, ownership-driven reform process. On the contrary, it has resulted in the rise of Milorad Dodik in the RS and his destabilizing policy and in the end of dialogue and compromise among BH political leaders.

The EU to date has neither developed any joint strategy nor come up with the political will to confront this unplanned development. It did not react to the unfolding political crisis with tougher conditions as one could perceive when reading your paper.On the contrary, it has consistently lowered conditionality or put once set conditions completely aside and engaged in an appeasement policy towards the main domestic actors of undermining democratic reforms in order to keep the EU integration process "alive.” This approach has compromised the EU-integration process, as well as the EU’s representatives in Bosnia and Brussels. It has yielded no tangible results. In 2008, the EU bypassed its previous conditions on police reform (as you had demanded back then) for initialing the SAA in return for a mere declaration of will from the BH political leaders for future police reform. That reform never was implemented. Instead, police became a blind spot in the EU’s enlargement policy. In summer 2011, the EU advocates of "ownership” successfully pushed through a decision to close the EU Police Mission in BiH. This coincided with the EUPM’s struggle with the RS leadership over a new entity law on police officials that represented a rollback in previous democratic policing reforms – a battle EUPM subsequently lost. The drastic result of that policy, as well as of the Bosnian way of decentralized police agencies, could be seen in the police performance during recent social protests.For one and a half years, from mid-2010 to the beginning of 2012, the EU did not suspend Bosnia’s interim trade agreement, although the country was in breach of the agreement. And since the end of 2010, when the last EU member state ratified the SAA with BiH, Brussels has not put the SAA into force, though it should have done so within 40 days – just to spare Bosnia from immediately having the SAA suspended due to the non-implementation of the Sejdić-Finci ruling. In light of the resistance emanating from the RS, the EU has tacitly buried its 2008 Partnership Document with BiH – the only strategic document that defined the Union’s policy approach to Bosnia. The EU (masterminded by Miroslav Lajčak) has even invented a whole new EU-integration tool for Bosnia-Herzegovina in 2011 – the Structured Dialogue on judicial reform, just to avoid conflict with the RS over Dodik’s proposed referendum. In return, the EU saw the continuation of attacks from Banja Luka on the independence of the judiciary and state-level judicial institutions, the most serious one being the new RS Law on Courts passed in December that same year. While the EC initially forcefully insisted that the RS fully comply with the objections raised by the High Judicial and Prosecutorial Council (HJPC), it backed-down when its DG Enlargement Western Balkans director struck a dirty compromise deal behind closed doors with RS authorities that absolved Banja Luka for adopting legal provisions that the HJPC had deemed illegal. Brussels achieved nothing, except for offering the RS authorities yet another opportunity to make a mockery of them.Even two years after this deal, the RS has not implemented it.

As a reader of ESI’s writings on Bosnia I was really curious to see how you would address all these issues – I’ve been left unsatisfied.

Maybe I’ll get a second chance in the future.

Kind regards,

Bodo

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Message from Gerald Knaus, dated November 20, 2013:

Hi Bodo,

I just read the DPC paper on our ESI paper on Sejdic Finci.

It is flattering to have a whole policy paper devoted to our paper, but there are some arguments in the text which are perhaps not totally convincing?

I quote a few passages and make a few remarks, wondering what you think.

1. "the paper appears to be an effort to provide an ideological framework for the EU to move beyond its continuing failures in BiH that have enabled local politicians to undo many of the highly-touted reforms put in place prior to 2006, when the EU assumed policy leadership."

This is puzzling. The author first appears to argue that the EU has failed since 2006, and that our paper provides an "ideological framework" to "move beyond its continuing failures" but then he implies that this is bad? How can moving "beyond failure" be a bad thing? And what is an ideological framework here?

(Which "highly-touted" reforms have been undone? This is never explained, just stated.)

2. "ESI compares this case to voting and selection processes in other EU member states, including Belgium, Italy (South Tyrol) and Cyprus, and concludes that similar provisions (sometimes even stricter) are also applied in other EU member states. These states however, are not sanctioned by the EU. Legally speaking, this assessment is correct. However, the devil is in the details."

If this is "legally speaking correct" - here we agree - how can "details" make it legally incorrect? Or is it "legally correct" but "politically incorrect"? How can that be?

3. "while the Belgian and the South Tyrolean examples also demonstrate some form of discrimination, it is nevertheless a form of positive discrimination. The aim of the power-sharing arrangements in both countries is to allow for minority groups to participate in decision-making. Hence, the legal framework has to be understood in the context of the intended aims of power-sharing mechanisms. In the case of Brussels, it is a mechanism to engage Flemish speakers in the officially bilingual but mainly French-speaking city, and in the case of South Tyrol it gives representation to German and Ladin speakers."

How is this different from Bosnia where there is a Croat minority?

We note that all the current debates to find a solution to Sejdic Finci turn on how to help the Croats ensure that they can elect "their representative". Is this so different from Belgium?

Note also that there are many other minorities, including the constituent (in Belgium) group of Germans or other EU residents in South Tyrol, who, in order to participate in some functions, have to declare that they belong to one of the categories presented to them. How is this different from Bosnia?

4. "A political system that is characterized by ethnically exclusive parties does not allow for flexibility."

This is also puzzling, given that in Belgium all parties are either Flemish or Walloon, and in Bosnia, by contrast, Komsic was elected on the SDP ticket twice. A man from Ghana was the "Croat" ambassador in Japan for Bosnia. Sven Alkalaj, a Croatian citizen and Jew was also member of the government for a (Bosniac or Bosnian?) party. How then can Bosnia be considered less flexible than Belgium?

5. "What ESI basically suggests is that EU’s conditionality, in particular the ocus on fundamental human rights, should not apply to BiH at this stage"

Where did we suggest this? Which "fundamental human right" should not apply?

6. "The Republika Srpska’s calls for secession have become louder, while Croats undermine the current constitutional framework with their demand for a de facto or de jure third entity. No reform that involves the current elites within the current framework will be able to cure these problems."

How is this related to Sejdic-Finci?

Here it seems that the RS is not the problem (and not even involved in the most recent rounds of talks). The solution that is likely to emerge in the end, and which would address the ECHR's judgement, could well end up creating a Croat de facto electoral district in the Federation, no? Is this then good or bad?

And if it were true the current elites cannot solve this problem, what should happen instead? It is after all the current elites that are negotiating Sejdic-Finci implementation since 3 years. If they cannot agree and will not agree then everything just stays as it is now. Is this a solution?

7. "But this also means that the unwillingness to reform must be penalised and that Bosnian elites should be punished for non-compliance"

Who is to be punished over Sejdic Finci? Every party has made a proposal, and each proposal meets the conditions by the ECtHR ... it is just that they cannot agree among each other on the one proposal to chose. Should all be punished now?

In short, we understand that there may be disagreements on how important Sejdic Finci is, but the irony is that a deal that might satisfy the EU and the ECtHR and that is actually in sight is one that makes the election of someone like Komsic less, not more, likely. Is this progress in your view?

And if any one of the proposals on the table now IS chosen in the end ... would Bosnia"s constitutional or other problems of governance be solved in any meaningful way?

Was this worth the time and effort and resources spent on it for three years now? We doubt this. But if this is not worth it ... why continue the current policy, where this has become the number one issue discussed by Bosnian leaders?

Thanks again for taking our paper seriously and taking the time to discuss it in detail, best wishes,

Gerald