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BiH two years after the opinion on candidacy: Incremental progress and great uncertainty

The article was originally published on BiEPAG Blog.

Since May 2019, when the European Commission issued its opinion on BiH’s application for EU membership, progress on fulfilling the fourteen key areas it identified has remained incremental. Part of the reason for this lies, as the Council of Ministers (CoM) Chairman Zoran Tegeltija observed, in the fact that more has been requested from BiH for opening of negotiations than from any other country.

Some of the requests, particularly those that concern the judiciary, are a departure from the stances that the EU had previously taken during the Structural Dialogue for Justice, a process launched in 2011 in order to prevent the referendum in Republika Srpska (RS) on the competences of the judiciary. For other requests, such as the call for more attention to be paid to the freedom of association and assembly, it remains unclear what exactly should be done in order to satisfy the requirements.

Notably, the fourteen key issues encompass a thorough reform of the constitution that goes well beyond the demands arising from the Sejdic and Finci judgment by the European Court of Human Rights, previously the EU’s only proclaimed constitutional reform goal. Additionally, confusion between the Commission’s proclamations of the WB6 as a region of “geostrategic priority” and the individual policy preferences of the EU member states provides little certainty over what exact shape the future engagement between the two actors would have.

The incremental progress

Despite the notorious lack of political will on the part of the domestic actors, certain positive moves in the last of two years have, as insiders note, created an optimistic atmosphere amongst the international presence in BiH.

The elections in Mostar and Central Election Committee’s tougher stance towards electoral fraud in the local elections have moved the country closer to fulfilling the Opinion’s first goal: that of ensuring the integrity of the electoral process.

The national programme for the adoption of the acquis, a second key area of the Opinion, is also close to adoption. It would facilitate progress in realising other priorities, such as the improvements in public procurement which were listed as one of the preconditions for the achievement of goal number seven, namely the fight against organised crime. In that same area, investigations in cases of grand corruption have demonstrated the ability of the BiH judiciary to go after powerful politicians.

Additionally, the recently adopted Public Administration Action Reform Plan has moved BiH closer to fulfilling goal number fourteen – strengthening the public administration framework – while goal number three – the establishment of the Parliamentary Committee on Stabilisation and Association – has been achieved.

The main challenges

However, no progress has been made concerning constitutional issues. The greatest resistance concerns the creation of the BiH Supreme Court, the reform of the Electoral Law, the issue of foreign judges on the BiH Constitutional Court, and a request to ensure legal certainty in the accession process through a process by which the BiH national-level government may step in as a guarantor of the execution of acquis obligations.

Not a single party from Republika Srpska is willing to support the creation of a new institution on the state level, citing their preference for the original constitutional solutions of the Dayton Peace Agreement.

Having succeeded in reframing the issue of the implementation of the Sejdic-Finci judgment from a matter of discrimination against citizens who do not belong to any of the constituent peoples to an issue of “legitimate representation”, the Croat parties seek to preserve the direct election of the Croat member of the BiH Presidency through establishing an electoral unit with a majority Croat population.

Bosniak parties are unwilling to compromise with the Croat parties on the matter of changes to the Electoral Law, seeing the demands from Croat parties as an attempt to solidify the existing ethnic divisions.

Serb and Croat parties are particularly interested in seeing the end of the role of the three foreign justices sitting on the BiH Constitutional Court.

Contrary to this, the Bosniak parties see them as a guarantee of the functionality of the state, partially due to the fact that their work is an instance of last resort for resolving some of the most pressing legal issues in the country. These contradictory stances prevent the resolution of a single issue from the Opinion relating to constitutional reform, making progress very unlikely.

The possible way forward

By treating all 14 issues as being of equal importance and demanding substantial constitutional changes in exchange for candidacy status with an unclear perspective, the EU tries to achieve too much while offering too little, risking progress even on those issues that are not contested.

A more transparent approach with a better chance for success would be to divide the 14 issues into two groups. The basis for division would be whether or not they require constitutional changes. The resolution of those that do would be postponed until candidacy status is obtained. Instead, candidacy status would depend on the substantial progress made and compliance in resolving the remaining issues.

In this first phase, the EU could also rely on its previous moderate successes such as the Reform Agenda, a process which served to create a temporary (2015-2018) policy shift towards economic issues and was supported to a great extent by domestic actors.

If, at the same time, the EU pursues its 2020 investment plan for the Western Balkans in a more aggressive manner, it could build a stronger constituency supporting the rule of law reformsspur economic growth and make use of the ‘mini Schengen’ area not just as a tool for regional co-operation but for limiting corrosive capital influences.

In the second phase, an inclusive process that would guarantee public participation in the constitutional reform process would follow, and the remaining questions would then be resolved as part of this initiative. It is certainly difficult to expect that the outcome of a process engaging the sharply polarised Bosnian public would satisfy most if any of the demands stemming from the citizens. But the process could at least serve to empower trust and public participation and a sense of ownership of the state: a sense that, especially in the wake of the COVID-19 crisis, is sharply decreasing.

Consolidating the fragile progress in the judicial sphere

Such a solution would also enable the EU and local actors to consolidate the progress made in the judicial sphere. Highlighted in the Priebe report as an institution plagued by deep distrust, the HJPC voted to remove its head, Milan Tegeltija, replacing him with Halil Lagumdžija.

While Lagumdžija is free from his predecessor’s propensity for shady deals, he might lack the expert knowledge needed for realising the HJPC’s full potential. The recipient of significant donor funding, the HJPC needs to take a more proactive stance in facilitating progress in the fight against corruption, which is of great concern to both the EU and the citizens.

Echoing the demands made of Romania as part of the Co-operation and Verification Mechanism’s oversight, the EU considers an increased number of prosecutorial activities leading to convictions as primary evidence of the success of the fight against corruption.

While such an attitude is criticised by prominent anti-corruption scholars because it places too much weight on punitive – rather than preventive – measures against corruption, it is unlikely that it will change soon. This, then, entails a need for more efficient budgeting for the prosecutorial offices and capacity building for the fight against corruption to become rooted. Such efforts take time and management expertise from both the HJPC and the prosecutors.

However, it seems more likely that the EU, encouraged by early successes in the realising accession conditionality such as the Mostar elections and the establishment of the Stabilisation and Association Committee, will continue to push for solutions on all fronts potentially even sacrificing the substantiality of some solutions in exchange for minor signs of political will for at least some reforms. This raises the risk that all the goals from the Opinion will not be fulfilled before the 2022 General Elections.

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