West offers property and other concessions to RS and Dodik if they recognize Schmidt

Patria's Analysis

Is Christian Schmidt, with the support of PIC member states, by accommodating the demands of the Zagreb, Belgrade, and Banja Luka policies, trying to retroactively legalize the mandate of the High Representative position due to the absence of a formal United Nations Security Council resolution on the appointment of the High Representative in BiH as stipulated by Annex 10 of the Dayton Peace Agreement?

The political and legal public in the Federation of BiH entity has skillfully tried to avoid the legalistic issue of the absence of a UN Security Council resolution for Christian Schmidt to hold the position of High Representative following the Russian Federation's veto, since Christian Schmidt's (non)appointment as High Representative.

Besides political and declarative statements that Christian Schmidt's mandate as High Representative is recognized as such, the legal rhetoric has remained less clear. Furthermore, in practice, we witness that Christian Schmidt performs the function of the international community's High Representative only in the Federation of BiH entity, while his mandate is disputed and de facto impossible in the Republika Srpska entity. From the legal arguments of proponents of the legality of Christian Schmidt's mandate as High Representative, which extend from PIC member states and political parties based in the Federation of BiH, we have heard interpretations that a UN Security Council resolution was never needed, but merely complementary for granting the mandate to the High Representative to perform his duties, or at least that after the mandate of the former High Representative Christian Schwarz-Schilling, a Security Council resolution was no longer necessary due to its absence during Schilling's appointment to that position.

Is Annex 10 Key?

Annex 10 of the Dayton Peace Agreement is, however, clear. A Security Council resolution is required to grant the mandate to the High Representative, as we see in the text of Annex 10 itself, which clearly states:

“The Parties require the appointment of a High Representative, who will be appointed in accordance with relevant United Nations Security Council resolutions, to facilitate the Parties’ efforts, initiate and, as appropriate, coordinate the activities of organizations and agencies engaged in the civil aspects of the peace settlement in such a manner as to implement the tasks entrusted to him by the United Nations Security Council resolution, as set forth below.”

As stated, Annex 10 exclusively names the UN Security Council as the sole authorized body for granting the mandate of the High Representative in Bosnia and Herzegovina. To bypass the entire Annex 10 of the Peace Agreement, the argument of proponents of the legality of Christian Schmidt's mandate relies on the legal concept of precedent demonstrated in the election of Christian Schwarz-Schilling, who did not receive a UN Security Council resolution to perform the function of High Representative during his tenure in that position. Besides the fact that the concept of legal precedent is itself debatable as a source of law in continental legal systems to which Bosnia and Herzegovina belongs, a more direct establishment of the legality of the High Representative’s function is the consent of the signatory parties to Annex 10, formally or in practice. Christian Schwarz-Schilling indeed received such a mandate, i.e., implicit recognition from the representatives of the state authorities of Bosnia and Herzegovina to perform the mandate of the High Representative, even without a UN Security Council resolution which is conditioned by Annex 10 of the Peace Agreement.

It is evident that proponents of the legality of Christian Schmidt's mandate, whether they are representatives of foreign states/embassies or political parties based in the Federation of BiH, do not wish to highlight the fact that in case of non-fulfillment of the conditions of Annex 10 and thus the lack of a UN Security Council resolution, only the voluntary consent of the signatory parties to Annex 10 remains as the sole instrument for granting a legal mandate to the High Representative. Since the representatives of the state of Bosnia and Herzegovina, including the representatives of the Republika Srpska and Federation of BiH entities, did not dispute the appointment of Christian Schwarz-Schilling as High Representative, Annex 10 was legally bypassed. Of course, if Christian Schmidt had received a mandate in accordance with Annex 10 through a UN Security Council resolution, then all signatory parties to Annex 10 would have been obliged, as before, to respect the legality of Christian Schmidt's mandate. Unlike Christian Schmidt, his predecessor Christian Schwarz-Schilling did receive the consent of all signatories to Annex 10 to perform the function of High Representative.

Difference Between Schwarz-Schilling and Schmidt

Therefore, we can conclude that no precedent occurred, but exclusively the consent of the state of BiH, as well as the representatives of its entities, to accept Schwarz-Schilling's mandate as High Representative, but not Christian Schmidt's. Thus, the argument of precedent completely loses its meaning.

On what legal basis can we say today that Christian Schmidt holds the mandate of High Representative? Simply, the basis is still only the consent of the parties. However, not all signatory parties to Annex 10 have consented to Christian Schmidt's mandate; the Republika Srpska entity maintains the position that without a UN Security Council resolution granting the mandate to Christian Schmidt, he cannot perform such a function in the territory of the Republika Srpska entity without the consent of the said entity.

At the same time, the lack of consent from the Republika Srpska entity does not stop or oblige the Federation of BiH entity to recognize Christian Schmidt, but it does so within the territory of the Federation of BiH. At the state level, some decisions of the High Representative have already been published in the Official Gazette of BiH and implemented in cases of elections throughout the territory of Bosnia and Herzegovina, which implies implicit recognition of the High Representative's mandate. However, it is important to note that the aforementioned recognition of adopted acts by the High Representative without a mandate stemming from a UN Security Council resolution is exclusively voluntary, not binding in any way.

We can conclude without a doubt that Christian Schmidt has not fulfilled the conditions of Annex 10 of the Dayton Peace Agreement for the mandate of the High Representative to be granted by the UN Security Council, and therefore the representatives of the Republika Srpska entity are not obliged to accept Schmidt's mandate. The legality of acting as High Representative in the Federation of BiH is exclusively based on the implicit consent of the representatives of the institutions of the Federation of BiH, such as the publication of the High Representative's decisions in the Official Gazette of the Federation of BiH, as well as the decisions of the Constitutional Court of the FBiH which confirm the High Representative's decisions.

At the state level, there is also implicit recognition through the publication of decisions in the Official Gazette of BiH, but such a situation is not perpetually binding and depends solely on the will of the institutions to recognize the acts of the High Representative or not.

It is evident that the representatives of PIC member states and their embassies in Bosnia and Herzegovina are aware of the lack of legality of Christian Schmidt's position. Precisely because of the lack of binding force of Annex 10, they are seeking recognition from the institutions of Bosnia and Herzegovina at the interstate, state, and entity levels. Christian Schmidt's visits to Zagreb and Belgrade in his capacity as High Representative were precisely aimed at gaining recognition from the Republic of Croatia and the Republic of Serbia, as well as the Republika Srpska entity, which these two countries, signatories to the DMS, could influence. However, the representatives of Republika Srpska, with the support of the Russian Federation, have not accepted the mandate of the High Representative, or at least they have reserved the right to accept or not accept the decisions of the High Representative, but in essence, such decisions can no longer be binding for the RS entity.

Recognition of Schmidt as a Political Problem

The problem of the legality of the High Representative's mandate to act throughout the territory of Bosnia and Herzegovina is not just a formal legal problem, but primarily a political one, as it deprives PIC member states of the right to implement their policies throughout the territory of Bosnia and Herzegovina. It is also certain that the former PIC member, the Russian Federation, has outmaneuvered the other PIC members, especially the United States and Germany, who took away Valentin Inzko's mandate, previously approved by a UN Security Council resolution in accordance with Annex 10, in order to replace him with Christian Schmidt, who, due to the Russian Federation's veto, did not receive a mandate through a UN Security Council resolution. In this way, the Russian Federation, with the non-consent of the Republika Srpska entity representatives to recognize Christian Schmidt as High Representative, has managed to formally and legally remove the legal elements of action by other PIC members in that area, effectively monopolizing its political role and influence in the Republika Srpska entity.

Whether by chance or intentionally, other PIC member states, primarily the United States and Germany, have put themselves in a position where they need the consent of the Republika Srpska entity for the High Representative's actions and the return of the influence of these member states. In an attempt to regain influence in the Republika Srpska entity, as well as at the state level where Republika Srpska representatives have veto power and can disrupt the quorum of Bosnia and Herzegovina institutions, they are forced to offer the Republika Srpska entity key concessions at the expense of the state of Bosnia and Herzegovina. Concessions are already visible, such as lobbying political parties in the Federation of BiH for SNSD to hold state power instead of the then-opposition.

In the same way, consent has already been obtained from the Republic of Croatia that Croats in the institutions of the Federation of BiH also accept the mandate of the High Representative if they are guaranteed a dominant and perpetual right to hold power despite having less than 20% democratically elected representatives in the Parliament of the Federation of BiH, effectively cementing apartheid against the civic and Bosniak majority, as well as a perpetual veto for the Republic of Croatia over all issues concerning the Federation of BiH. Although this devastating concession to the Republic of Croatia and the Croat ethnic community in BiH contributed to the recognition of Christian Schmidt by official Zagreb as High Representative, the same result has not yet been achieved with the representatives of the Republika Srpska entity. It is speculated in the public that the next concession that PIC member states are prepared to make to regain the legality of action in the Republika Srpska entity is precisely the transfer of state property to the entities.

However, the problem will not be solved even with consent to recognize the High Representative in the Republika Srpska entity, because all actors are aware, from current and former PIC member states, including the signatories of the DMS, that any consent to the High Representative's actions without a Security Council resolution is exclusively voluntary and in no way binding, which opens the door to constant political conditioning and concessions until the complete derogation of the elements of statehood of Bosnia and Herzegovina.

The final question remains, why did the political parties representing civic and Bosniak political options in the Federation of BiH and at the state level agree to accept Christian Schmidt's mandate as High Representative? Is it due to ignorance that Christian Schmidt's mandate as High Representative is not binding without the implementation of Annex 10, or due to promises from PIC member state officials to uphold the statehood of Bosnia and Herzegovina in circumstances where the Russian Federation effectively controls the Republika Srpska entity and pushes it towards secession, or simply due to party and personal interests of their cadres.

One thing is clear, however: the actions of Christian Schmidt and the PIC member states supporting him so far, intentionally or not, are leading to the self-removal of the instruments of the Office of the High Representative in the Republika Srpska entity. Therefore, they are prepared to pay a huge price at the expense of the state of Bosnia and Herzegovina, the democratic system, and at the expense of the majority of citizens of Bosnia and Herzegovina, mainly Bosniaks, who no longer see what they gain from recognizing the High Representative's mandate other than the collapse of the state and their position, and who are, in any case, considered by certain PIC member states as either security-dependent or a potential threat greater than Russian influence itself.

The problem, however, is that even the desired outcome of the PIC member states would only be temporary without the UN Security Council, where the Russian Federation's veto prevails. Therefore, Annex 10 is effectively a dead letter, and thus the Dayton Peace Agreement itself.