Reduction of Bonn Powers should be accompanied by a reduction in the number of blocking mechanisms

By: Prof. Dr. Hazim Bašić

The Bonn Powers represent a part of the internal sovereignty of the Republic of Bosnia and Herzegovina that was taken away from it in Dayton. They are a set of powers granted to the High Representative for Bosnia and Herzegovina to ensure the implementation of the Dayton Peace Agreement. Legally speaking, they are not explicitly stated in the text of the agreement but were developed through later decisions of the international community based on authorities already existing in Annex 10. Therefore, this is not about any 'colonial governor' or 'protectorate' as spun by the ideologues of Greater Serbia, but about the implementation of a peace treaty.

Legal Basis in the Dayton Peace Agreement

Annex 10 of the Dayton Peace Agreement established the institution of the High Representative, tasked with monitoring the implementation of the civilian aspects of the peace agreement, coordinating the activities of international organizations, assisting in resolving disputes between the parties, and reporting to the UN Security Council on the implementation of the agreement. The High Representative is the 'final authority in theatre regarding the interpretation of the Agreement on the Civilian Implementation of the Peace.' It was precisely this provision on 'final authority for interpretation' that later became the basis for expanding his powers.

During the first two years after Dayton, it became evident that domestic authorities often blocked the implementation of the peace agreement through hindering the return of refugees, obstructing the establishment of state institutions, and blocking the adoption of laws necessary for the functioning of the state. The international community concluded that the then-existing instruments of the High Representative were insufficient for implementing the Dayton Agreement.

The Bonn Conference

At the meeting of the Peace Implementation Council (PIC) in Bonn in 1997, conclusions were adopted that significantly expanded the practical powers of the High Representative. The PIC authorized the High Representative to adopt binding decisions (laws and amendments to laws) when domestic institutions cannot reach an agreement, take interim measures to implement the peace agreement, and remove from office officials who violate or obstruct its implementation.

Decisions of the High Representative remain in force until amended by domestic institutions. Among the more important decisions are the adoption of state symbols, the enactment of the Law on Citizenship of Bosnia and Herzegovina, the establishment of a single currency and state institutions, defense reform, and the creation of unified Armed Forces of BiH.

The Bonn Powers derive from Annex 10 and the authority of the PIC and were necessary for stabilizing the state after the war. They represent a subsequent interpretation and operationalization of Annex 10 by the PIC. They enabled the establishment of institutions that domestic political actors could not or would not establish, along with the removal of politicians who directly worked against the peace agreement.

Effects of Using the Bonn Powers

A brief analysis of the effects of applying the Bonn Powers on the socio-political and institutional development of Bosnia and Herzegovina yields telling results.

Viewed chronologically, the length of the mandates of the High Representatives and the approximate number of applications of the Bonn Powers since 1997 are as follows: C. Westendorp (2 years, approx. 80), W. Petritsch (3 years, 242), P. Ashdown (4 years, over 430), C. Schwarz-Schilling (2 years, up to 5), M. Lajčák (2 years, 30–40), V. Inzko (12 years, 15–20), C. Schmidt (5 years, 20).

If we look at the average annual number of decisions made per mandate, an increasing sequence is observed: 40, then 80, and finally 110 decisions per year in the period from 1997 to 2006. This period was accompanied by the stabilization of peace and strong institutional strengthening of the state in the areas of law, finance, and security. After 2006, there was a significant decline in the application of the Bonn Powers. The average annual number of decisions made per mandate of the High Representatives was: 2, 20, 2, 4.

Since 2006, when a drastic decline in the application of the Bonn Powers occurred, the SNSD began a policy of blocking state institutions, denying them, and attempting to abolish them. Hate rhetoric intensified, accompanied by threats of security destabilization of the state. The culmination of this policy is still ongoing.

The Reasons for Introducing the Bonn Powers Have Not Disappeared

In the current internal and regional circumstances of Bosnia and Herzegovina, there is a strong argument that the High Representative should retain the Bonn Powers. The reasons stem from the specifics of the constitutional system: there is no full constitutional hierarchy between all levels of government, numerous blocking mechanisms exist, some political actors constantly question the legitimacy of state institutions, there are attempts to reduce the competencies of the state, and political crises that jeopardize the functioning of the constitutional order.

There is no internal mechanism that can resolve the abuse of blocking mechanisms. Because of this, the OHR has functioned for three decades as a kind of 'system safeguard.' A complete abolition of the Bonn Powers today could create an institutional vacuum in which there is no effective mechanism for responding in the event of a serious constitutional and security crisis.

A potential compromise model is retaining the Bonn Powers to protect territorial integrity and the constitutional order, implement decisions of the Constitutional Court of Bosnia and Herzegovina, and safeguard the basic functioning of state institutions.

In a constitutional framework full of a complex system of vetoes, a fragmented structure of government, and constant challenges to state competencies, there are sufficient reasons for the new High Representative to retain the Bonn Powers as a final mechanism for protecting the constitutional order. A reduction in the scope of the Bonn Powers is possible only with a reduction in the number of veto mechanisms.