There are no 'sovereign' ethnic communities in Bosnia and Herzegovina

By: Nermin Tursić, D.Sc.

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During negotiations on constitutional reform in BiH (but also earlier), the most common terms heard from "people's representatives" as negotiating parties are: "legitimate representation", "agreement of constituent peoples", "sovereign peoples", "sovereign rights", while the authorities of "RS" continuously call for "entity statehood", "people's right to self-determination", "right to secession", etc. The use of such terms in the current situation seeks to emphasize the strength of ethnic positions and that "in accordance" with the political substrate of "Dayton BiH" (whether it concerns ethnic or entity positions). In essence, this situation produces elementary questions such as: do "sovereign ethnic communities" exist in BiH, does "entity sovereignty" exist, and how dangerous is the use of such terms for the state of BiH?

Namely, by abandoning the previous form of republican constitutionality, a practice of political relations in BiH has been established based on the "agreement of peoples" as "sovereign" categories of political discourse and action. The initial use of the term sought to instill awareness of the "equality of peoples" as the only political categories. However, the term "sovereign peoples" implied the right to "sovereign territory" and "sovereign power", so in essence it was (and is) a political aspiration to establish exclusive ethnic spaces within the state of BiH.

This situation has remained unchanged to this day, when the aspiration for ethnic divisions is sought to be formalized and perpetuated as a model through the controversial amendment of the "Election Law of BiH". Specifically, by invoking the concept of "constituent status" and "legitimate representation", the political "representatives of the Croatian people in BiH" demand that ethnic exclusivism be transformed into an "electoral form", into law.

This is also the formula for the so-called "legitimate representation" by which ethnic communities should gain the characteristic of a "collective electorate". In other words, the ethnic election of "legitimate Croatian representatives" automatically determines the election of "legitimate Bosniak representatives", while such a principle is implied in the electoral unit "RS" as a "Serb ethno-hegemonic space".

In this way, ethnic communities would become independent and self-sufficient electoral (and thus political) subjects within their "own" part of BiH, which is contrary to the judgments of the Constitutional Court of BiH, the European Court of Human Rights, as well as current constitutional and legal bases (because existing legislation does not recognize an entity as a collective that votes, but an individual). However, the Constitution of BiH defines all peoples living in it as constituent, and therefore any further attempt to create ethnic and territorial exclusivity cannot be justified, because the narrative of ethnic communities as sovereign categories is not based on the positive legal acts of the state of BiH, nor is it known as such in contemporary legal science. Peoples have the right to every form of ethnic, religious, cultural identity as a form of collective self-determination, while together they represent the political people of BiH and are the ultimate source of state sovereignty.

Paradoxically, it is precisely this "unity" of peoples as an equivalent of citizenship that excludes the prefix "sovereign" and leaves the concept of a constituent ethnic community (because a state can be sovereign, not individual ethnic communities). In this regard, myths about "ethnic sovereignty" represent the strength of ethnic policies in relation to state institutions.

Ultimately, throughout its existence, the term "sovereign peoples" has not produced sovereign territories, but it has produced informal "sovereign leaders" as "legitimate representatives of the people". In the current (incomplete) attempt to amend the Election Law of BiH, which is conducted exclusively on ethnic principles between the "representatives" of the Bosniak and Croatian peoples within the FBiH (because representatives of the "Serb people", representatives of the "Others", nor representatives of the "RS" entity participate), it serves as an attempt to achieve "legitimate" political goals that imply the right to "ethnic voting" (which is a prerequisite for the complete ethnic division of the state). As such, they are opposed to the civic concept of organizing BiH, individual rights, but also to contemporary legal and democratic standards on which modern state communities are based.

On the other hand, we have the constant use of the term "entity sovereignty", as well as the proclaimed matrix by which "RS" is defined as a "state of limited sovereignty" by the political and academic establishment of "RS". From a legal perspective, an administrative unit within a state cannot have sovereignty above the state. By misusing the terms sovereignty and its legal meaning, an attempt is clearly being made to attribute non-existent "entity statehood", which reveals the intention of Greater Serbian and Greater Serb policy towards the state of Bosnia and Herzegovina.

In this case, the logical question arises: are the stated positions unfounded and does "entity statehood" exist? To answer the question, it is necessary to define the legal relationship between the state of Bosnia and Herzegovina and its entities, and before that, it is necessary to distinguish between the concepts of sovereignty and autonomy.

Simply put and briefly: sovereignty denotes the attribute of independent power as the right of a state to rule over its territory and participate equally in international relations, while autonomy represents the real power of a nation-state to grant the right of self-governing articulation and self-regulation to lower organizational units. In this regard, the state of Bosnia and Herzegovina, as a sovereign category, by accepting the "Dayton Constitution", produced entities as its own administrative-territorial units (contrary to the thesis that entities constituted the state of Bosnia and Herzegovina by their own will, as emphasized by political and academic representatives of "RS").

In accordance with the constitutional solutions, entities possess a high degree of autonomy (and not a fictitious form of "statehood" as is being unsubstantiatedly presented), but they do not possess sovereign competence (statehood) nor the possibility of acquiring it, nor do they have an external form of sovereignty (because the state of BiH, as a subject of international law, deprives them of this attribute).

Nevertheless, the strength with which the entity form of "sovereign competence" opposes the state sovereignty of BiH arises from the position of political power, not from the constitutional-legal relationship. In this context, the authorities of "RS" justify their political activities by fighting for a "greater degree of autonomy", and they do so through blocking the work of state institutions and the "return process" of previously transferred competencies to the state level of government (while the ultimate goal is secession and fusion with Serbia in accordance with the realization of the "Serbian World" projects). Additionally, they seek to present entity "statehood" by invoking the "people's right to self-determination" and the "right to secession", citing the fact that these categories are not regulated by the Constitution of Bosnia and Herzegovina and its laws.

However, regardless of the constitutional ambiguity, domestic legislation does not approve such legal activity, while the norms of international law explicitly prohibit it. In a hypothetical scenario, even if it existed, it would not represent the exclusive right of one people to unilaterally decide on a part of the state territory as their own right to secession, but would be used as a referendum right possessed by the entire citizenry on the entire territory of BiH. Thus, the constitutional and legal impossibility of unilateral application of the right to self-determination and secession (in addition to the above) confirms the absence of the concept of "entity sovereignty" and "sovereignty of peoples" in BiH, because otherwise it would have been practically applied long ago.

Paradoxically, the legally non-existent "entity statehood" and "ethnic sovereignty" have the potential to determine the future of BiH as an "ethnically" divided state, because the matrix of "agreement of peoples" as "sovereign categories" is used as a political mechanism. The same has become a "rule" where "people's representatives" legitimize themselves as the only negotiating parties. Because of this fact, such a political principle should be abandoned. Instead, internal political relations should be organized in line with modern democratic states, where fundamental issues (such as constitutional reforms) are based on a broad form of consensus that includes all parliamentary political subjects, representatives of the professional and scientific community, the civil sector, etc. (while it would be desirable for the final document to also gain public support).

And that is an additional reason why the future of the state should not be built on the position of an agreement between representatives of "sovereign peoples", who are a formally non-existent category as such.