The Proud Stumble of the Agreed State

Written by: Muharem Cero

The conflict of political perceptions and interpretations of the Dayton Peace Agreement is finally reaching its epilogue. The devised project of a counterfeit composite state has, through years of droning, taken on the contours of a political stance of both the position and opposition in the Republika Srpska. And it has taken hold. 

Although repeatedly clearly challenged by the supreme interpretation of the High Representative, the project was stubbornly established, and all levers of power in the RS, regime media, and even part of the international community became involved in its promotion. 

It is clearly noticeable that the key PIC member, the Russian Federation, always distanced itself from the unified PIC stance, sometimes by opposing it, and sometimes by abstaining from decision-making. 
The 2013 Constitutional Court ruling clearly denied the Republika Srpska the jurisdiction to unilaterally resolve the issue of BiH property (state property) on the territory of the sub-state arrangement of the Republika Srpska. For a time, the RS refrained from any action, and one might say it consolidated itself for future action. 

The RS Law on Forests passed without reaction into the soft underbelly of Bosniak-pro-Bosnian politics. The solutions of that law implied that the public good of state forests and forest land became the property of the RS entity. Encouraged by the lack of reaction to this anti-Dayton solution, Dodik and his camarilla continued the usurpation of BiH's public goods through ownership. 
With the adoption of the Law on Agricultural Land, this project was nearly completed. Only the reaction of the Bosniak caucus in the RS Council of Peoples, through a filed appeal, shed light on the entire project in execution. 

The concept of the agreed state implies that the RS brought "its property" (including public goods) into BiH and that by this right it lays a constitutional basis for its regulation. In this maneuver, the RS does not invoke Dayton itself but the so-called Geneva Principles of 1995, with the ultimate intention of proving the entity's sovereignty at the expense of BiH's sovereignty. This dilemma was resolved through ruling U1/11 by the Venice Commission, which clearly challenged the RS agenda according to which there is no „state outside the entities.“ The same ruling, by challenging this counterfeit, proved that the state, not sub-state arrangements, is the bearer of sovereignty, and thus also of its property-legal subjectivity. 

It should not be forgotten that almost 15 years ago, more precisely on 18.03.2005, a protective measure for such actions was also issued. Namely, the High Representative Ashdown, so hated by Dodik, imposed a ban on disposing of state property until the adoption of the law on state property, and Article 2 of the same law stipulated that any legal act contrary to the ban is null and void and cannot produce legal effects. 

A law with the same content was adopted by three parliaments (the BiH Parliamentary Assembly in both houses, the FBiH Parliament, and the NSRS). Disregarding precisely this law, the RS embarked on a decisive anti-constitutional struggle to prove the unprovable, that BiH is a composite state, again unfortunately without an adequate reaction from the so-called "other side." 

It is to be expected that the scheduled RS assembly for the coming Monday will be the last swan song of the attempt to preserve the concept of the agreed state. All the noise generated these days by the RS structures, calling for a change to the solution regarding the BiH Constitutional Court, boycotting voting in state institutions, is nothing other than a swan song and the proud stumble of the project of the agreed state. 

It would be proper to also offer a modest analytical proposal for resolving the current situation. Since the scope of state property consists of, conditionally speaking, three segments: 1. property from continuity, 2. property from succession, 3. and at this moment, disputed property over which the state of BiH claimed and claims ownership as of 31.12.1991 (a date that also determines the method of resolution). 
I am of the opinion that the disputed issue should be resolved by separating these three segments of the state property portfolio separately.

It is unlikely that the opposing RS stance is ready for a „rapid capitulation,“ therefore, a considerable reaction from the international community, embodied in the OHR and the Peace Implementation Council, would be appropriate, and it would consist of imposing a legal solution and adopting a lex specialis that would encompass precisely the issue of „disputed“ public goods. The obligation of such action by the international community is all the more present because, by imposing the law on the temporary ban on disposing of state property, they established that the issue of resolving state property must be adopted according to the model of a permanent and sustainable solution, and most importantly, any solution adopted by BiH institutions must have the final consent of the Peace Implementation Council for BiH. By assuming the obligation to give consent, it is clear that the alleged Dayton ambiguity (as per the initial interpretation of Dayton witnesses) precisely requires the undertaking of the aforementioned actions. 

Precisely by resolving the status of state property, the entirety of the Dayton Peace Agreement is rounded off, but also opportunities are created for its much greater reach in building statehood than has been the case so far. By proving that there is a state of BiH outside its entities, the perception of a composite state is slowly melting away, and the possibility of interpreting Dayton is not, as some would like, a state union (union of states) but much more a decentralized state of regions.

At the same time, all delusions of an ethno-territorial division of BiH through the model of ethnicization of land are going to the dustbin of failed anti-Bosnian projects. The ultimate goal of Dodik's project at this moment is to retain concessions over state property in the entities, leave the state without original concession revenues, and reduce the upcoming European obligation of restitution to the entity level and prevent it from being where it belongs, at the state level. 

Badly joined, so it must hurt.