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Bosnia-Herzegovina after EU association. Four challenges ahead

On March 16, 2015 the foreign ministers of the 28 EU member states gave the green light for the Stabilization and Association Agreement (SAA) between Bosnia and Herzegovina (BiH) and the European Union (EU) to enter into force. The SAA is a treaty with a complex story. Back in 2005 its signature quickly became burdened by OHR-mandated conditionality on police reform, which the EU finally put aside after accepting cosmetic changes in 2008. However, after a three year ratification process, the agreement had to be frozen before it could enter into force because in 2009 Bosnia was found in violation of the European Convention on Human Rights in the famous Sejdic and Finci ECtHR case. As a result of the ruling, the agreement would have had to be immediately suspended if it had entered into force. Four years almost entirely devoted to the issue have not been enough to unblock a minimal constitutional reform, and the EU reluctantly resolved to sideline the issue and focus instead on the more pressing socio-economic conditions of the country which were highlighted by the protests of February 2014. The British-German initiative of late 2014 aimed to unblock the stalemate by delaying Sejdic-Finci conditionality to a later stage and accepting to put the SAA into force in exchange for a “written commitment” to reforms that Bosnia’s institutions delivered in early 2015. Despite being widely criticised as yet another inconsistency in the EU’s foreign policy towards Bosnia, the entry into force of the SAA would finally bring a positive note after 6 lost years in EU-BiH relations. Moreover, it will hopefully allow for a new momentum in concomitance with the change in power in both Sarajevo and Brussels.

However, there remain several challenges ahead for Bosnia on the way of EU integration. They include updating the text of the association agreement as it had been negotiated one decade ago; negotiating a coordination mechanism among different administrative levels tasked with EU-related competences; the resumption of legislative activity, in a situation of political friction and different coalitions at state and entity level; and the lingering issue of a Constitutional reform in order to ensure Bosnia’s functionality for EU integration.

The first challenge concerns the SAA treaty itself, which has not yet entered into force, the Council conclusions notwithstanding. Due to having been negotiated ten years ago and ratified four years ago, the SAA treaty is in fact already outdated. Some glitches will need to be fixed through the clause that allows for “minor changes” in the text, but this may take a few weeks to a few months. Trade references need to be updated to consider the Regional Convention on pan-Euro-Mediterranean preferential rules of origin, as was done recently by the EU with Macedonia and Albania. Moreover, the SAA is to be updated in accordance with the 2009 Lisbon treaty: the Association Council will be chaired by the EU High Representative for CFSP, rather than by the EU Council Presidency. Bosnia also has to agree (in a separate protocol) to adapt the SAA trade volumes in order to consider the accession of Croatia to the EU and its exit from the regional CEFTA agreement. Although this is a very technical issue which has already been resolved with all other countries in the region, the adaptation of trade volumes has been politicised and stalled by Bosnia’s political actors. This delay has led the EU to foresee the suspension of trade benefits for Bosnia as a sanction, should the process not be completed by the end of 2015. Finally, once JHA matters will become competence of a new formal sub-committee of the SAA whose participation is usually reserved to state authorities, the EU will need to find a creative way to save the most innovative elements of the Structured Dialogue on Justice, the involvement of civil society and professional associations.

Even after the association treaty comes into force, the next steps on the road towards EU accession will need careful consideration. One of the first things the EU expects Bosnia’s institutions to create is a coordination mechanism among all authorities bearing competence in EU-related matters at different administrative levels, so that Bosnia may “speak with a single voice” to the EU (paradoxically, the same formula is usually used to criticise the cacophony of EU voices towards the rest of the world). This was originally foreseen as a task of the state-level Directorate for European Integration (DEI), an institution whose work has been impeded since 2006 by political blockages. Thus, a procedure to coordinate among different domestic institutions became the preferred approach. A decision still needs to be made as to whether the institutions that do not bear competence in some fields, namely the Federation’s cantons, will be represented all the time. In any case, a coordination mechanism will need to be set up before Bosnia may be able to hold accession negotiations with the European Union.

Agreeing on issues such as the coordination mechanism may become increasingly difficult in the current political situation. Six months after the 2014 elections, the Zvizdic government is being sustained by a coalition which includes the governing parties in the Federation BiH and the opposition parties in the Republika Srpska, the two entities. Milorad Dodik, the President of Srpska, didn’t appreciate being left out of the government coalition. As a result, his SNSD party first announced a boycott of the Lower house, where it occupies a marginal position. Then it announced a boycott of the Upper house as well, where it controls 3 out of 5 Serb MPs and  consequently it can block the whole institution. Notwithstanding the condemnation of the parliamentary boycott by the OHR, Dodik’s actions remain within the limits of constitutional legality. While consociational in principle, Bosnia’s political system does not foresee an obligatory state-level coalition between the governing parties of the two entities. Many observers were thus expecting more frictions between the state and the entity in a phase, such as the current one, of “cohabitation” between two different majorities, with the SNSD expelled from the tripartite presidency and the state-level coalition, while retaining power in Banja Luka. Nevertheless, this comes at the wrong moment, as it risks blocking the legislative activity while the EU is expecting Bosnia’s representatives at all levels to agree on a broad reform agenda and on a coordination mechanism.

Finally, the question of a Constitutional reform lingers in the considerations of the future of Bosnia and Herzegovina. As an EU official himself recognised, in the past five years the Sejdic-Finci issue “was used as a Trojan horse, but the horse failed opening up: and the EU remained closed inside”. The reset in BiH-EU relations brought about by the British-German initiative and the EU Council conclusions of December 2014 signalled a shift of focus from constitutional to socio-economic reforms, in order to reconnect with the priorities of Bosnia’s population. However, the Bosnian Croats keep pushing for a constitutional change in order to gain a separate electoral constituency, at minimum, or a third entity, at maximum. This was exemplified at the 24 February debate of the European Parliament on the European Commission’s 2014 Progress Report for BiH, when Eduard Kukan (PPE-SK) reminded Croatian MEPs that this is the moment “to renew the social contract” with Bosnia’s citizens, rather than to engage again in talks on constitutional issues. The upcoming results of the 2013 census could make it even more difficult for Bosnian Croats to push for territorial autonomy as a corollary to full equality among constituent peoples, should their number fall below the threshold of the ethnically undeclared or “others” citizens. Admittedly, it remains unclear whether it would be possible for Bosnia to achieve better economic development within the current structure that links political parties, economic firms and the population in a vicious circle of patronage, corruption and informal economy. In the long term, as most other candidate countries in the past, Bosnia will also have to foresee a constitutional reform before EU accession – possibly, using the formal setting of negotiation chapters to precisely define the extent of the changes needed, and then proceeding to agree upon them as a final package deal to accomplish the process of member state building.

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