“Democracy” without a Demos? The Bosnian Constitutional Experiment and the Intentional Construction of Nonfunctioning States

Abstract

The social science literature on ethnically divided states is huge and varied, but suggestions for constitutional solutions are strangely uniform: "loose federations" of ethnically defined ministates, with minimal central authority that must act by consensus and thus cannot act at all on issues that are contested rather than consented. In Bosnia, the political system mandated by the international High Representative suffer the same structural flaws that were used to make the former Yugoslav federation and the Socialist Republic of Bosnia and Herzegovina unworkable. Similarly nonviable systems were proposed in 1994 to 1995 for Croatia and in 1998 to 1999 for Kosovo and recently for Cyprus and for Iraq. This article analyzes the paradox of mandating consensus-based politics in ethnically divided states, inclusion in which does not have the consent of most members of at least one group.

Fake, partial and imposed compliance: the limits of the EU's normative power in the Western Balkans

“…Progress on domestic changes required by the EU has been painfully slow, and bold initiatives aimed at state consolidation and reinforcement of the central level of government have been driven by external actors in most cases, although progressively with the consent of domestic political elites (Hayden, 2005). By the end of 2006, the two 'to-do' lists of conditions that BiH had received from Brussels in 2000 and 2003 respectively had been largely fulfilled with the exception of police restructuring, public broadcasting reforms and full cooperation with the International Criminal Tribunal for former Yugoslavia (European Commission, 2007).…”

The Democratic Transition of Post-Communist Europe

“…The Dayton Peace Agreement of November 1995 (see Section 4.3, Chapter 4) defined Bosnia and Herzegovina as a country with a complicated confederative constitutional order, which could only be effectively implemented with a strong international presence and impact and which has not managed to satisfy any of the national(ist) ambitions of any major ethnic group (Hayden, 2005). Nevertheless, primarily due to the involvement and pressure of international factors and particularly of the High Representative 18 and his Office departments, citizens' security has been significantly increased, freedom of movement between the invisible ethnic borders has been fully restored and many thousands of former refugees have returned back to their homes in both parts of the state.…”

Comment: Post-war settlements and the production of new illegalities

“…But what the incident stands for is that even thirteen years after the end of the war, popularly elected Bosniak politicians want to impose a state on Bosnian Serbs that the latter's popularly elected representatives reject. This was exactly the same set of constitutional and political issues that could not be resolved before the war, and clearly have not been resolved now (Hayden 2005;Woodward 1996;Burg and Shoup 1999;CIA 2002-03;Bougarel 1996). 3 The difficulty of state-building in such a divided society is pretty well known.…”