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The EU and 'feudaralism' in Bosnia and Herzegovina

16 February 2016 by Toby Vogel

Dragan Čović, the current chairman of the presidency of Bosnia and Herzegovina, had good news to report last week. "In the future, BiH will communicate with one voice with the European Union,” he told a news conference on February 10, announcing that the Council of Ministers had adopted a decision on setting up a ‘coordination mechanism’ to manage EU integration. With this measure, BiH has met a core demand from the EU that goes back many years. Denis Zvizdić, the chairman of the Council of Ministers, said that the adoption would make BiH’s application for EU membership far more credible and increase the chances of a positive response from the EU. Indeed, the decision gave a boost to Čović, who was in Brussels on Monday (February 15) to hand over the application.

But how good is the good news really?

The coordination mechanism was adopted by the Council of Ministers in secret on January 26; the decision was not made public until its publication in the Official Journal on February 9. It is unclear why there was such a delay in publishing the decision, or whether it was indeed taken on January 26. Either way, the lack of transparency is hardly in line with European democratic values and suggests that the decision is the result of a backroom deal between BiH’s powerbrokers rather than a carefully considered choice. The adoption of EU-related reforms without proper consultation or debate – just think of the entity labor laws – indicates that BiH politicians are afraid of their electorates and unwilling to make the case for these reforms. The EU, and a disengaged US, have been happy to play along, deepening a pervasive cynicism about politics among ordinary Bosnians.

Even more troubling than the manner in which it was adopted is the substance of the coordination mechanism, however. The coordination mechanism puts in place a cascade of ad-hoc bodies to deal with questions of European integration – from a Working Group at operational level all the way to a College for European Integration as the top political and strategic decision-making body. Decisions that fail to be adopted at technical level are referred up to the political decision-makers and, ultimately, the College, whose members include among others the chairman and deputy chairman of the Council of Ministers, the prime ministers of the entities, the mayor of Brčko, and the cantonal prime ministers. As all the other bodies that make up the coordination mechanism, the College takes decisions by consensus, without a supremacy clause that would give the central government ultimate power to break a stalemate as the final arbiter.

This complex array of new bodies with its surface complexity masks a simple reality: the power to decide rests firmly in the hands of the very same leaders whose shenanigans have produced the paralysis in which BiH has been stuck for a good decade.

A premium is placed on the ability to block, not on understanding or meeting the EU’s requirements during the membership negotiations. By requiring consensus at all stages of decision-making, the coordination mechanism in fact enshrines the current systemic dysfunctionality of BiH politics in an issue area that had to some extent been shielded from it – European integration. The BiH constitution – an annex to the Dayton peace accords of 1995 – designated foreign policy as one of the very few policy areas over which the weak central institutions hold authority (Article III.1), which was used in the past to coordinate EU-related matters through a short-lived Ministry of European Integration and, since 2002, a Directorate for European Integration (DEI), part of the Council of Ministers. With the coordination mechanism, BiH now takes a step back from this set-up, directly involving both entity and cantonal ministers in EU-related decision-making. This marks a small but significant step away from a federal system toward a confederal system, where ultimate authority rests with the component parts – a system that in practice has proven to be all but unworkable. As my colleague Valery Perry pointed out in a recent paper ("Constitutional Reform in Bosnia and Herzegovina: Does the Road to Confederation go through the EU?” International Peacekeeping [2015]), the process of EU integration has pushed the country toward more confederalism, not less.

In a sense, then, the new mechanism merely formalizes the current practice, in which all important decisions at state level are the result not of democratic deliberation by elected representatives of the people but of opaque deals between a cartel of power-brokers that has been holding BiH in a chokehold since the time of the war. While the composition of that cartel has seen shifts over time – the SDS has been replaced by the SNSD as the ruling party of a de facto one-party entity, Republika Srpska, while the SDA has at times lost its leadership role among the Bosnian Muslims – its complete control of politics has never been in question. The EU has reinforced and reified this dynamic by seeking deals on various issues with the leaders of political parties rather than with the elected representatives whose job it nominally is to take decisions. Its ‘Structured Dialogue’ and various other processes have cemented BiH’s oligarchical system, rather than breaking it up in favor of a more open politics. The coordination mechanism formalizes oligarchy without even the appearance of open debate and democratic deliberation. ‘Feudaralism’ might be a good descriptive term for it: a federalism that empowers pseudo-feudal politicians.

Despite the terse comment on the new mechanism from Johannes Hahn, the European enlargement commissioner – "we have to see how it is working,” he said on Monday – there can be little doubt that EU officials are relieved that yet another box in BiH’s bid to join the Union has been ticked. But here’s the irony: the system that is now being put in place by BiH’s powerbrokers is damaging not only for democracy and the rule of law – it is also dysfunctional. And improved functionality was precisely the reason for the EU’s demand for a coordination mechanism. So once again, the EU will support a political deal in BiH without regard for its constitutional implications or its effect on decision-making and good governance. And once again, EU officials will ask themselves why BiH is dysfunctional, and why popular faith in democratic processes is so low.