Why is the model of additional devolution of the Federation of BiH a legally unacceptable solution?

For NAP writes: Dr. sc. Amir Šelo, legal expert

In recent days, various ideas of additional federalization, and only of the Federation of BiH entity, have appeared in the media space. The term "successful consociation model" is used for these ideas.

It should be stated right at the beginning - consociations are not a subject of legal sciences, but of political sciences. Lijphart himself, who studied consociational democracy, emphasized in 1977 the main criticisms of consociational democracy which he saw in two dimensions: it is not democratic enough and cannot be sufficient for establishing an effective and stable government.

The federalization of the entire Bosnia and Herzegovina is no longer even discussed, but the issue of additional federalization is brought exclusively into the context of the Federation of BiH. In legal theory, this process is called devolution. Regarding the above, the theoretical basis is deliberately drawn from the Belgian legal system.

The mentioned concepts of additional federalization of the Federation of BiH, or more precisely, devolution of the Federation of BiH, would likely go in the direction of forming special communities of cantons with powers similar to Belgian federal units.

The Constitution of Belgium belongs to the group of constitutions that predetermine the representation of federal units in the executive branch. Namely, Article 99 of the Belgian Constitution contains an explicit requirement that "The Council of Ministers shall consist of no more than 15 ministers", and that "apart from the Prime Minister, the Council of Ministers must include an equal number of members from the French and Dutch language areas".

The constitutional norm does not introduce the representation of federal units (communities of regions) as such, but linguistic priority. The composition and organization of Belgian federal units, as exemplified by the Council of Ministers, clearly show the "institutionalization of linguistic bipolarity."

In the Senate, which has 60 members, 50 are representatives of the Flemish and French communities and the Flemish and Walloon regions (except for one senator belonging to the German-speaking community), thus representing both linguistic communities and federal units. The two linguistic communities must be parity represented in bodies such as the High Council of Justice and the Constitutional Court.

According to Article 43 of the Constitution, in cases prescribed by the Constitution, members of the House of Representatives and the Senate are divided according to their affiliation with linguistic communities into Dutch and French groups.

The Belgian legal system is also built on the principles of "dual federalism". This means that competencies are divided in such a way that each level has a separate set of responsibilities and can act (semi)autonomously from the other.

First, competencies in Belgium are divided on a strictly exclusive basis, meaning that all aspects (i.e., legislative and executive) of each competency can only relate to one level of government. This principle was introduced to avoid, as much as possible, Flemish and Francophone politicians having to make decisions together.

Second, the exclusivity of competencies extends to Belgium's foreign policy. The principle in foro interno, in foro externo means that sub-national governments can conduct foreign policy for those political issues that fall within their competencies. This implies that they can include representatives in national delegations for international negotiations and that they can "speak" at the international level.

For example, on certain issues relating to sub-national competencies, sub-national ministers represent Belgium in the EU Council of Ministers (e.g., industry, environment, fisheries). A concrete illustration of this is the fact that during Belgium's presidency of the EU in 2010, the Flemish Minister of the Environment chaired the Environment Council and led the EU delegation at the UNFCCC Conference of the Parties in Cancun. The principle also implies that the federal government can only speak for Belgium when it comes to strictly federal competencies.

The third principle that distinguishes Belgium from most other federations is the principle of non-hierarchy between federal and sub-national laws. This implies that the federal government cannot impose anything on sub-national governments, and they cannot be bound by federal legislation, unlike in many other federal states.

This model of devolutive federalism is hidden under the guise of a "successful consociational model". The example above shows the direction in which the devolution of the Federation of BiH entity would go.

Finally, one should always keep in mind that consociation in the context of the Federation of BiH is a packaged model for further disempowerment and division of the Federation of BiH entity.