Dayton and the Political Rights of Minorities: Considering Constitutional Reform in Bosnia and Herzegovina after the Acceptance of Its Membership Application to the European Union

By Bell, Jared O. | Journal on Ethnopolitics and Minority Issues in Europe : JEMIE, April 1, 2018 | Go to article overview

Dayton and the Political Rights of Minorities: Considering Constitutional Reform in Bosnia and Herzegovina after the Acceptance of Its Membership Application to the European Union


Bell, Jared O., Journal on Ethnopolitics and Minority Issues in Europe : JEMIE


Introduction

The Constitution of Bosnia and Herzegovina, like that of any other state, is regarded as the highest source of law in the land. In its twelve articles, the Bosnian Constitution lays out a myriad of functionalities of the state from its preambles that pitch respect for basic human rights principles to the breakdown of the how the consociationalized political system is based on ethnic federalism. Consociationalism is a model of democratic governance that is based on power sharing arrangements, particularly for states that have diverse populations consisting of different ethnic, racial, linguistic, or religious groups. Ethnic federalism can be described as a form of consociationalism where the units of the state are federated by ethnicity. Lijphart (2004) maintains that for divided societies that have concentrated communal groups, a federalist system is a perfect way to afford these groups their own autonomy. It is not unusual for local and international actors to try and develop political structures that mitigate underlying triggers of conflict in the postconflict state building process. Therefore, it is reasonable to utilize power sharing mechanisms such as ethnic federalism in divided societies like Bosnia and Herzegovina (BiH).

Power sharing efforts have been utilized across many post-conflict societies, including Lebanon and South Africa. McEvoy (2015) maintains that power sharing is a type of government that is suggested for deeply divided societies where majority rule would not be fair, it also serves as a tool to promote lasting peace and cooperation between groups who were once in conflict. Sisak (2013: para.3) similarly explains that "power-sharing solutions are designed to marry principles of democracy with the need for conflict management in deeply divided societies". While consociationalism has been hailed by some scholars as the best power sharing option for states with diverse populations, especially after conflict, others have leveled major criticisms. Some have argued that it is irreparably flawed because such political systems inevitably exclude some groups at the expense of others (Hodžić,2013). Often human rights in consociationalized arrangements favor some groups over others via constitutional engineering. McCrudden and O'Leary (2013: 484) maintain that there are two particular aspects of human rights that seem to be challenged by consociationalized arrangements-first the right to be treated on the basis of a particular set of characteristics (such as race and ethnicity) is violated; and second, an individual's right to participate in the same political process as others on an equal basis is also violated.

The institutionalized power sharing system in Bosnia and Herzegovina, developed through the Dayton peace process, continues to draw ire and frustration from both locals and international experts. Both groups seek constitutional reform because the constitution's design is inherently exclusionary and discriminatory towards those who do not fall within the spectrum of the three constitutive peoples (Bosniaks, Croats, and Serbs) of Bosnia and Herzegovina, as it relates to political participation. In this system, we can see present the two main human rights concerns noted by McCrudden and O'Leary.

Beyond the three constitutive people, Bosnia and Herzegovina officially recognises 17 national minorities (nacionalne manjine). Minorities in Bosnia and Herzegovina are often referred to as the "Others" (Ostali). According to the 2013 Census these minority groups collectively total 2.7 percent (or 96,539 persons) of the entire population of the country (Agency for Statistics of Bosnia and Herzegovina, 2016). The 2003 Law on the Protection of Rights of Members of National Minorities states that "a national minority is considered to a part of the population-citizens of BiH that does not belong to any of the three constituent peoples and it shall include people of the same or similar ethnic origin, same or similar tradition, customs, religion, language, culture, and spirituality and close or related history and other characteristics". …

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