The end of conditionality in Bosnia-Herzegovina?

At their monthly meeting in Brussels on March 16, the European Union’s foreign ministers are expected to decide that a pre-accession agreement with Bosnia-Herzegovina should take effect. With the stroke of a pen, the foreign ministers will discard the notion that EU conditionality might be used to propel constitutional reform in Bosnia, reversing a policy that has been in force for many years.

                                                   (©) Deutsche Welle

The recommendation to let Bosnia’s Stabilisation and Association Agreement (SAA) with the EU take effect comes from Federica Mogherini, the EU’s newish foreign policy chief. On a visit to Sarajevo in late February, Mogherini praised the reform commitment of the country’s squabbling leaders and said that putting that commitment in writing, as they had just done, might mark an “historic moment” for the country. She suggested that in return, the EU would unblock the SAA.

Although the SAA was signed in 2008 and subsequently ratified by all EU member states, it never entered into force: the EU maintained that as long as the country continued defying a 2009 judgment by the European Court of Human Rights, it would remain suspended. In a case brought by Dervo Sejdić, a Rom, and Jakob Finci, who is Jewish, the ECtHR had ordered Bosnia to remove discriminatory provisions of the constitution. Sejdić and Finci were and still continue to be barred from seeking certain state offices, for example the presidency, on account of their ethnicity. The hope was that the SAA would be incentive enough for Bosnia’s political elite to agree to make changes to the constitution as required by the ECtHR, and perhaps even for deeper constitutional reform to take place. Alas, this was not to be.

As recently as a year ago, Štefan Füle, the enlargement commissioner at the time, said in Sarajevo that implementing the court ruling was “not a remote issue or virtual issue”. “It is an international obligation of Bosnia and Herzegovina that, following the will of the [EU] member states, is now a key to progress on the EU path.” But in politics, a year is a long time. Germany, with the UK on its coat tails, pushed the EU to accept that since conditionality isn’t working, there is no harm in dropping it. Instead of generating momentum for reform through conditionality, the EU is now dropping conditionality in order to generate the appearance of momentum. Bosnia’s entrenched elites are, once again, getting something in exchange for nothing.

EU officials take exception with this analysis. The quo for the EU’s quid, they say, is the “irrevocable commitment” to the functionality of government institutions, economic and social reform, and the rule of law agreed by the leaders of Bosnia’s political parties and adopted by the country’s parliament in February. Subsequent to such reforms, the declaration says, the government institutions would devote “special attention” to Sejdić-Finci  but not to the broader constitutional change required to make the country actually fit for membership. Nothing in the declaration is measurable, and nothing has a deadline affixed to it.

In an indication of how committed Bosnia’s political leaders are to reform, even this weak declaration took months of back-and-forth. (The declaration officially came from the three-member presidency but some of the wording hints at foreign authorship, at least in part. An enterprising spirit threw in a reference to “reconciliation” as one of the items on the laundry list.)

The new deal is supposed to unlock various measures and to give a boost to the ‘Compact for Growth’, yet another EU scheme – initially conceived as a stop-gap in the absence of a proper plan – that is supposed to stimulate economic recovery in the country. Instead of constitutional reform, Bosnians will in the best case get some economic reform. This reform  even if implemented properly, will soon run up against the paralysis of government created by the straitjacket of the current constitutional order.

There is a case to be made for policy innovation: the old policy is bankrupt, while a proper strategic take on Bosnia and the Balkans appears beyond the EU’s reach. But this case is not being made openly and honestly – because the new approach is not based on an open and honest assessment of why the old approach has failed. In the EU, there is no accountability for policy failure. However, it is true that a U-turn is easier to take with new personnel in place, so the timing of the initiative makes sense.

Perhaps the new initiative is worth trying simply because of the bankruptcy of the previous policy, and the fact that a proper strategic approach to Bosnia appears unattainable. Whatever its merits, and whatever its ultimate effect, policymakers should not fool themselves into thinking that experimenting with conditionality will be without cost. The EU has proven once again that local elites can sit out any demand if they stall long enough. Bosnia’s political leaders have demonstrated in abundance that they are unwilling to agree to anything that would make the central government more effective - even if required in order to move closer to the Union. They feel comfortable in a dysfunctional state whose laws and constitution guarantee them the power of patronage and of a never-ending stream of finance from public and semi-public enterprises without any sort of accountability.

It may be that the written commitment and the unblocking of the SAA will be a turning point for Bosnia as it seeks to join the EU. It may be that the process that is now supposed to get underway will develop irresistible momentum. I’m skeptical: I remember the hopes voiced by international officials (as well as by some Bosnian officials desperate for progress) in the run-up to 2008 that signing the SAA would prove to be just such a point. It wasn’t. But for the sake of Bosnia, I hope that my analysis is wrong and my skepticism misplaced.

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Toby Vogel

Toby Vogel is a writer on international affairs based in Brussels. In 2007-14, he was a staff writer with European Voice, and previously an associate editor with Transitions Online based in Sarajevo. He has worked for the Open Society Institute, the International Rescue Committee and the United Nations Development Programme in Vienna, New York, and in the Balkans. He is a senior associate of the Democratization Policy Council (Washington, D.C., and Berlin) and a 2003 Andrew W. Mellon fellow in security and humanitarian affairs at City University New York.

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