Constitutional reform in Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina was amended once, in 2009, to include the outcome of the Brčko District final award. Several constitutional reforms were attempted between 2006 and 2014, to ensure its compliance with the case law of the European Convention on Human Rights in the Sejdić and Finci v. Bosnia and Herzegovina^[1] and following cases (Zornić, Pilav) regarding ethnic- and residence-based discrimination in passive electoral rights for the Presidency and House of Peoples. None of these attempts have been successful so far, notwithstanding EU involvement and conditionality (between 2009 and 2014, constitutional reform was included as a precondition for the entry into force of the Stabilisation and Association Process between Bosnia and Herzegovina and the EU).^[2]

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Decisions of the European Court of Human Rights holding that the UK's blanket ban on voting by convicted prisoners violates Article 3 of Protocol 1 to the European Convention on Human Rights have caused controversy in the UK. One reason for this is the retributive attitude of many people in the UK towards criminals: as a society, we do not seem to be interested in what happens to people behind bars, despite the terms of Rule 3 of the Prison Rules 1999: 'The purpose of the training and treatment of convicted prisoners shall be to encourage and assist them to lead a good and useful life.' A second reason is that attention has been diverted from the merits of the issue to a different question: who should decide whether prisoners are to be allowed to vote? Should it be the Queen in Parliament by way of an Act of the UK's Parliament, or judges of the European Court of Human Rights? The debate has generated more heat than light. Mr. Cameron, the Prime Minister, said in Parliament in 2010, 'It makes me physically ill even to contemplate having to give the vote to anyone who is in prison.' In 2011, the House of Commons resolved by 234 votes to 22: That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand. I want to try to clarify some of the issues by saying a word or two about each of three questions. First, what sort of right is the right to vote, and how, in a society which long ago adopted a universal adult franchise, did prisoners get left out? Secondly, how did the European Court of Human Rights come to decide that the UK's approach to prisoners' voting violated the ECHR? Thirdly, is there a clash between the judgment of the Court and the sovereignty of the UK or of its Parliament? Before 1832, the right to vote was governed by property. In general, voters had to satisfy a wealth test in order to be allowed to vote. The wealth had to be in the form of estates in land, or real property. In consequence, the right to vote was seen as a form of property, so in 1702, in Ashby v. White, a plaintiff recovered damages from an election officer who had wrongly refused to allow him to exercise his right to vote. Under these conditions it would be very unusual for a person qualified to vote to be in prison, so there was no issue as to whether prisoners should be allowed to vote. The sort of people who went to prison would not have been able to vote even had they been free. When the franchise was progressively extended, starting with the 1832 Reform Act, and Parliament created an increasing number of criminal offences (especially in the second half of the 20th century and the early 21st century), it became more and more likely that people qualified to vote would be in prison at the time of an election. The prison population rose from under 20,000 in 1900 to nearly 89,000 at the end of 2011. Of these, 90% had been convicted of crimes, 9% were awaiting trial, and 1% were in prison in connection with non-criminal matters. It follows that about 80,000 people were disenfranchised. In the 19th century, denying convicted prisoners a vote was not philosophically problematic. Unlike those people who voted by virtue of property qualifications, and so had seen the vote as a right, the new, wider electorate had never been able to vote. Not extending the vote to prisoners did not deprive them of any right; they were merely refused the grant of a new right. By the time the UK's electorate was based on universal adult suffrage, however, one might have expected serious consideration to be given to the remaining categories of non-voters, of which prisoners formed the main group. But the refusal was carried forward without serious debate in successive pieces of legislation; indeed, there was no discussion of it at all during the passage of the most recent legislation, the Representation of the People Act 1983. This is partly explicable by the fact that the law had traditionally regarded convicted prisoners as being without any rights. By the early 1980s, however, the position was changing. The common law was starting to recognize that convicted prisoners retained those rights which were not inevitably taken away by virtue of the very fact of imprisonment. Convicts went to prison as punishment, not for punishment. Prisons were no longer no-go areas for courts. The changing attitude to prisoners was accompanied by developments in international law. The UK was a party to Protocol 1 to the European Convention on Human Rights, a treaty binding on states in international law. Article 3 provides: "Right to free elections "The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature." This does not sound like a strong assertion of a universal right to vote, but the European Court of Human Rights in Strasbourg interpreted it in the light of other human-rights treaties, including Article 25 of the International Covenant on Civil and Political Rights (1976), to which the UK is a party, and of the constitutional traditions of member states of the Council of Europe. On this basis, the Court held that there was a right to universal adult suffrage unless there is a legitimate justification for restricting a particular person's right to be a candidate or an elector: Mathieu-Mohin and Clerfayt v. Belgium (1987). To establish such a justification, a state would have to show that the restriction served a legitimate aim and was proportionate to it. The ECHR thus reinstates participation in elections for the legislature as a right. Now, however, it is a human right, not a property right. In other words, everyone has the right, and states have to justify taking it away from them. It might be justifiable to refuse to allow non-nationals or non-residents to vote, but other excluding other categories of people is more problematic. The matter came to a head for the UK when prisoners started to bring cases to the Strasbourg Court claiming that the UK's blanket ban on their voting violated their right under Article 3 of Protocol 1. In Hirst v. UK (2004) a Chamber of the Court accepted, somewhat doubtfully, that there might have been a legitimate aim for the ban in deterring crime, but decided that it was not proportionate to the aim, because it did not differentiate between types of offences or the circumstances of individual offenders and offences. The UK had argued that the Court should give weight, through the instrument of the so-called 'margin of appreciation', to the judgement of Parliament that such a ban was justified, but this argument failed as the ban had not been debated during the passage of the 1983 Act, so it was not clear what judgement (if any) had been made concerning the relative weights of competing factors. In 2005, the Chamber's judgment was confirmed by the Grand Chamber of the Court. When the UK failed to take action to implement the decision and the Court was therefore plagued by a growing number of applications from prisoners, the Court in 2010 implemented the pilot judgment procedure against the UK, setting a timetable for the UK to bring forward measures to remove the violation. The deadline is fast approaching. This caused a good deal of annoyance among parliamentarians in the UK. It seemed to be calling in question proceedings in Parliament, which no domestic court could do because of Article IX of the Bill of Rights 1689. But that confuses domestic with international law. Before the Strasbourg Court, the State is the respondent, not a particular institution of the State. The task for the Court is to decide whether the State as a whole is responsible for a violation of a Convention right. It does not matter, for the purpose of international law, how a State chooses to organise its internal, constitutional arrangements. Why, one might ask, should the Strasbourg Court be able to dictate to the UK what its franchise should be? And why should the matter be decided by a judicial, rather than legislative, body? The answer to both these questions is the same. The Strasbourg Court has that responsibility because the UK conferred it on the Court. Under the original form of the ECHR, states could choose whether or not to accept the jurisdiction of the Court to receive applications from individuals complaining of violations of their Convention rights. The UK accepted that jurisdiction in 1965, with effect from 1966, and renewed its acceptance periodically until the 1990s. A new treaty, Protocol 11, was then agreed by all the member states of the Council of Europe, including the UK. It amended the text of the ECHR to provide for the compulsory jurisdiction of the Court in respect of individual applications. Since that Protocol came into force, the UK has had no choice in the matter. But that was a result of the UK's own choice. The Court has not seized the power to apply the Convention to states. States, including the UK, have voluntarily imposed on the Court a duty to do so. Does this result in a clash between the Strasbourg Court and the sovereignty of the UK? No. By virtue of its sovereignty in international law, the UK is entitled to enter into treaties. It did so: the ECHR and those of its Protocols to which the UK is a party are the result of an exercise by the UK of its sovereignty. Like any other contract, a treaty is made to be obeyed: pacta sunt servanda. Contracting parties are not free to discard their obligations under a treaty unilaterally. To do so is to breach international law. When a treaty provides for disputes to be determined authoritatively and finally by a judicial body (in this case the European Court of Human Rights), it is not open to a party to the treaty to complain about the process to which it has agreed when a decision goes against it. Does it result in a clash between the Court as a judicial body and the legislative sovereignty of the Queen in Parliament, one part of which is electorally accountable? No. The Strasbourg Court has not told the UK what it has to do. It has only said that the present position cannot be justified under the ECHR because of the indiscriminate character of the ban on prisoners voting. In the most recent case, Scoppola v. Italy (2012), in which the UK intervened, the Grand Chamber made it clear that Article 3 of Protocol 1 does not even require an individualised, judicial decision in each case as part of the sentencing process. An Act of Parliament can lay down bright-line rules, as long as the rules are related to the nature of offences and circumstances of offenders. This leaves considerable discretion to the legislature. It limits its room for manoeuvre, but so does any international-law rule. I hope that these reflections on the question of who should decide will have cleared away some misconceptions and will allow us to turn our attention to the important matter, which is what the best rule is. On this, I offer just two brief, concluding thoughts. First, it is odd that the UK's parliamentarians should place such emphasis on the electoral accountability of the House of Commons as a source of its authority yet routinely deny about 80,000 people the right to vote in elections to the House. Secondly, the present position has an arbitrary impact. People who begin a sentence the day after an election or are released the day before it can vote. People who are imprisoned for contempt of court can vote; people who are imprisoned for shoplifting or drunken behaviour in public cannot. Most curiously, people who are fined for stuffing fake ballot papers into ballot boxes but are not imprisoned can vote at the next election; people imprisoned for helping a terminally ill loved one to end her life voluntarily cannot. We really do need to think seriously about the circumstances which justify depriving a person of the right to vote.

Procedure

In Article X, defining the amendment procedure, the Constitution of Bosnia and Herzegovina states that it can be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives of Bosnia and Herzegovina. The Constitution does not say who has the right, and under what rules, to present the amendments to the Parliamentary Assembly. Also, in the paragraph 2 of the Article X, the Constitution states that the rights and freedoms, as seen in the Article II, cannot be derogated, as well as the paragraph 2 itself.

Chronology of Constitutional reform attempts

Accession to the Council of Europe and 2005 Venice Commission Opinion

Bosnia and Herzegovina became a member of the Council of Europe on 24 April 2002, thus committing to honour the obligations of membership stemming from Article 3 of the Statute of the Council of Europe,^[3] as well as the specific commitments listed in the Parliamentary Assembly of the Council of Europe (PACE) Opinion 234 (2002) on Bosnia and Herzegovina's application for membership,^[4] including the need to strengthen State institutions in relation to the entities, and to align the text of the Constitution to the Constitutional Court's decision on the "constituent peoples" case (U-5/98).^[2]

The PACE also tasked the Council of Europe's Venice Commission to assess whether the use of the High Representative's "Bonn Powers" respected the basic principles of the Council of Europe, whether the Constitution of Bosnia and Herzegovina was in compliance with the European Convention on Human Rights and the European Charter of Local Self-Government, as well as to generally review the rationality and functionality of the constitutional setup of the country.

In March 2005, the Venice Commission issued its advisory Opinion.^[5] It concluded that the Bonn Powers, although beneficial in the wake of the Bosnian War, do "not correspond to democratic principles when exercised without due process and the possibility of judicial control", and called for a "progressive phasing out of these powers and for the establishment of an advisory panel of independent lawyers for the decisions directly affecting the rights of individuals pending the end of the practice."^[2]

The Venice Commission also criticised the weakness of State-level institutions, left incapable to "effectively ensure compliance with the commitments of the country with respect to the Council of Europe and the international community in general", as well as the overlap of competences between the Presidency and the Council of Ministers, the lack of specific limitations for the use of the national interest veto, the entity veto, and the House of Peoples as a legislature. The Venice Commission also noted how unusual it was that the Constitution has been "drafted and adopted without involving the citizens of Bosnia and Herzegovina and without applying procedures which could have provided democratic legitimacy", and concluded that it was "unthinkable that Bosnia and Herzegovina can make real progress with the present constitutional arrangements." It thus made a connection between the phasing out of international supervision and a constitutional reform process to strengthen the domestic institutions.^[2]

In April 2005, Protocol XII to the European Convention on Human Rights – which establishes a general prohibition of discrimination – also came into force after ratification by 12 Council of Europe member states, including Bosnia and Herzegovina. Protocol XII would be key to the later European Court of Human Rights rulings against Bosnia and Herzegovina, including Sejdić and Finci.

2006 April package

The 2005 Opinion of the Venice Commission, which coincided with the 10th anniversary of the Dayton Agreement opened the debate on a constitutional reform in Bosnia and Herzegovina, on the impulse of U.S. diplomacy, with a view of modernizing the country's institutions.^[6] U.S. diplomat R. Nicholas Burns stated that this would entail moving towards an individual presidency, a stronger prime minister, and a stronger parliament with a stronger speaker; reforms should have been adopted ahead of the 2006 general election.^[2] Bosnian leaders also agreed in a joint statement to commit to a process that "will enhance the authorities of the state government and streamline parliament and the office of the Presidency".^[7]^[2]

Ambassador Douglas L. McElhaney in Sarajevo and Ambassador Donald Hays in Washington led the U.S. talks with party leaders and the initiative to draft a compromise proposal for constitutional amendments, dubbed the April Package (aprilski paket). Overall, the April Package would have better defined and partly expanded State competences, and streamlined institutions, partly limiting the veto powers of ethnic groups. The amended Constitution would have included:^[2]

an individual President (with two deputies, one for each constituent people, to rotate every 16 months instead of 8), indirectly elected by the Parliament and with a more ceremonial role; the matters subject to consensus within the Presidency would have been reduced to only a few, including defence;
a reinforced Chairman of the Council of Ministers, and the creation of two additional ministries (for agriculture and for technology and the environment)
the codification in the Constitution of the competences de facto acquired by the state level in the previous period (defence, security, intelligence);
a new category of shared competences between State and entities (taxation, justice and electoral affairs);
a specific provision for European integration that would have allowed the State level to assume the necessary competences from the entities ("EU clause");
the codification of the newly-established State-level institutions (Court of Bosnia and Herzegovina, Prosecutor's Office, High Judicial and Prosecutorial Council and Indirect Tax Authority)
an enlargement of Parliament:
- 87 MPs (instead of 42) in the House of Representatives, including at least 3 "Others" (but "entity voting" would persist, with legislation approved if at least 1/3 of MPs elected from each entity would support it);
- 21 MPs (instead of 15) in the House of Peoples indirectly elected from the House of Representatives rather than from the entities' Houses of Peoples. The competences of the House of Peoples would also be limited to Vital National Interest veto procedures.

At the moment of Parliamentary approval, the constitutional amendments failed by 2 votes, only gathering 26 MPs in favour over 42, instead of the required 42. This was due to the maximalist pre-electoral positions taken by Haris Silajdžić's Party for Bosnia and Herzegovina (SBiH) (wishing to also abolish entity voting) and by the Croatian Democratic Union 1990 splinter party, who felt the proposal did not sufficiently protect the Bosnian Croats.^[2] The U.S. would try to rescue the April Package by facilitating further talks in 2007 between Milorad Dodik and Silajdžić, but to no avail.^[2]

Following the replacement of High Representative Paddy Ashdown with Christian Schwarz-Schilling in late 2006, the latter aimed at promoting "local ownership" and fostering the closure of the Office of the High Representative (OHR), including by finalising constitutional reform talks. Differently than the closed-door approach taken by U.S. diplomacy for the April Package, Schwartz-Schilling aimed to set up a "constitutional convention" to foster public debate and break the monopoly of ethno-nationalist parties. He proposed a law-based constitutional commission, to be nominated by the Bosnian Parliament, with three co-chairs (a Bosnian intellectual and one each from the U.S. and the EU) and a technical secretariat composed equally of Bosnians and internationals. Although Germany was ready to finance it, the proposal was not welcomed by the EU Council (who deemed it too internationally-driven) and by the Commission (who was worried the initiative would complicate the ongoing talks around police reform). The Croatian Democratic Union (HDZ BiH) also soon withdrew its support, and the initiative faded away in the summer of 2007. Feeling a lack of confidence from Brussels, Schwarz-Schilling decided to resign.^[2]

2008 Prud Agreement

The leaders of the three most important 'ethnic' political parties, Milorad Dodik (left), Sulejman Tihić (middle) and Dragan Čović, created the Prud Agreement.

Constitutional reform talks restarted in 2008, after the end of the police reform process (and the ensuing signature of the Stabilisation and Association Process between Bosnia and Herzegovina and the EU) and the municipal elections. On 8 November 2008, the leaders of the three main national parties (Milorad Dodik for the SNSD, Sulejman Tihić for the SDA and Dragan Čović for the HDZ BiH) signed a joint agreement in Prud stating their aim of harmonising the Bosnian Constitution with the European Convention on Human Rights, to clarify state competences and establish functional institutions, and to reorganise the middle layers of governance, including settling the legal status of Brčko.^[8] The Prud statement also explicitly called for amendments to be drafted with the expert assistance of international institutions.^[2]

Despite monthly meetings of party leaders, the "Prud Agreement" did not lead to a compromise on territorial reorganisation, as Tihić and Čović saw the talks as a way to abolish the entities with four non-ethnic regions, while Dodik aimed to entrench the right of Republika Srpska to secede after a three-year period.^[9] Dodik also started to further challenge the OHR and call for the repatriation of competences to the entities, relying on the growing support of Russia.^[2]

The only concrete result, upon U.S. pressure, was the agreement to amend the Bosnian Constitution to incorporate Brčko District under the jurisdiction of the state institution and of the Constitutional Court, as had been settled by the Brčko arbitration process.^[10]

2009 Butmir process

A renewed push for constitutional reforms came in late 2009, in view of the upcoming Sejdić and Finci ruling of the European Court of Human Rights and of the 2010 general election, despite diverging views between U.S. and EU actors.^[2] The United States and EU organised a retreat at the Butmir military base outside Sarajevo on 9 October 2009, attended by U.S. diplomat James Steinberg, EU Commissioner Olli Rehn and Swedish foreign minister, as well as former High Representative, Carl Bildt for the Presidency of the Council of the European Union. The Butmir draft aimed at taking over most elements of the April Package, as well as including a specific paragraph clarifying that only the state of Bosnia and Herzegovina could apply for membership in international organisations, and that it was empowered to assume competences from the entities to that aim.^[11] Yet, domestic consensus proved elusive, as each of the parties was stuck on maximalist positions. The draft was deemed too centralistic for the SNSD and the HDZ BiH, and not enough for the Social Democratic Party (SDP BiH) and the SBiH. Only the SDA was explicitly in favour. After two fruitless sessions, the talks were ended right before the European Court of Human Rights issued its Sejdić and Finci ruling in November 2009.^[2]

2009 Sejdić and Finci v. Bosnia and Herzegovina case

In 2009, the European Court of Human Rights ruled in Sejdić and Finci v. Bosnia and Herzegovina, a case filed by Dervo Sejdić and Jakob Finci, two Bosnian citizens of Romani and Jewish ethnicity, and are therefore ineligible for running for the Presidency. The court determined that this restriction (an estimated 400,000 Bosnian citizens, 12 per cent of the population, cannot run for the Presidency due to their religion, ethnicity, or place of residence) violates the European Convention on Human Rights.^[12] Four subsequent cases also found that the constitution is discriminatory. However, as of 2022, it has yet to be amended.^[13]^[14]^[15]

2010–2012 parliamentary talks

The European Court of Human Rights ruling meant one further narrowing down of the constitutional reform agenda to issues of the European Convention on Human Rights compliance. This also meant finding a solution for the "Croat issue", i.e. the HDZ BiH's grievance following the defeat of Ivo Miro Jović in the 2006 general election by Željko Komšić (SDP BiH) thanks to cross-ethnic voting. A Parliamentary committee was tasked to discuss reforms in the spring of 2010, with no results. Election were held in October 2010, with no changes.^[2]

Although signed in 2008, the Stabilisation and Association Process with the EU had not been ratified by all EU member states. The implementation of the Sejdić–Finci ruling was included as part of EU conditionality for the entry into force of the Stabilisation and Association Process in the political conclusions of the EU Council of 21 March 2011, which spoke more broadly of the "compliance of the Constitution with the European Convention on Human Rights".^[16]

Despite the political stalemate in the formation of a new government, between October 2010 and March 2012, the Parliament continued talks in the framework of a "Joint Ad Hoc Committee for the Implementation of the judgment of the European Court of Human Rights in the case of Sejdić and Finci v. Bosnia and Herzegovina", composed of 11 MPs from the House of Representatives and 2 MPs from the House of Peoples, headed by House of Representatives member Šefik Džaferović. While the committee agreed to add 3 representatives of the "Others" to the national House of Peoples (two elected from the Federation of Bosnia and Herzegovina and one from Republika Srpska), no solution was found for the Presidency, with Bosnian Serbs insisting for direct election of their member, and Bosnian Croats calling for either indirect election or a separate constituency to avoid future Komšić cases.^[2]

2012–2014 EU-mediated talks

Bakir Izetbegović (left) and Zlatko Lagumdžija are both supporters of a unitary-composed Bosnia and Herzegovina.

As "credible efforts" towards the implementation of the Sejdić–Finci ruling remained the outstanding condition for the entry into force of the Stabilisation and Association Process, in June 2012, EU Commissioner Štefan Füle launched a High Level Dialogue on the Accession Process (HLAD) with Bosnia and Herzegovina, tackling both the Sejdić–Finci issue and the need for a coordination mechanism for the country to speak with a single voice in the accession process. Talks were held in June and November 2012, with little success.^[2]

In the summer of 2012, HDZ BiH and SDP BiH leaders Dragan Čović and Zlatko Lagumdžija agreed on the indirect election of the Bosnian Presidency members by the Bosnian Parliament, but the deal was not turned into detailed amendments. The HDZ BiH kept calling for electoral reform to prevent new Komšić cases. The same Željko Komšić left the SDP BiH, in dissent with the agreement which would have excluded him from acceding to power again. The SDA also opposed it, as it would have created a further asymmetry, with one Presidency member (from Republika Srpska) elected directly, and two elected indirectly.^[2]

In February 2013, the European Commission decided to step up its involvement, with the direct facilitation of talks by Füle, in coordination with the Council of Europe's secretary-general Thorbjørn Jagland.^[17] In March and April 2013, with the support of the Director-General for Enlargement Stefano Sannino, the EU Delegation in Sarajevo facilitated a series of direct talks between party leaders, but with no concrete outcome.^[18]^[2]

During the summer of 2013, Čović and Bosnian Presidency member Bakir Izetbegović reached a political agreement on several files, from Mostar to Sejdić–Finci, in parallel to the initiative led by the U.S. Embassy for a constitutional reform of the Federal entity. An agreement on principles on how to solve the Sejdić–Finci issue was signed by political leaders in Brussels on 1 October 2013, but it evaporated right after.^[2] Three further rounds of negotiations among political leaders were led together with Füle, in a castle near Prague in November 2013, and later in Sarajevo in the first months of 2014, also with the presence of the U.S. and the Venice Commission. Despite high hopes, a solution could not be found, as the HDZ BiH required the absolute arithmetical certainty of being able to occupy the third seat of the Bosnian Presidency – which, given that the Sejdić–Finci ruling was actually about removing ethnic discrimination in the access to the same Presidency, could not be provided by any possible model. Talks were ended on 17 February 2014, while popular protests were ongoing in Sarajevo and in the rest of the country.^[2]

Entity-level constitutional reforms

Federation of Bosnia and Herzegovina

The Constitution of the Federation of Bosnia and Herzegovina has been amended over 109 times since its adoption, mainly via impositions of the High Representative to ensure compliance with the decisions of the Constitutional Court of Bosnia and Herzegovina. No consolidated version has been adopted by the Federal Parliament so far.

In parallel to EU-facilitated talks on the Sejdić-Finci issue at State level, in February 2013, the U.S. Embassy supported an expert working group which presented its 188 recommendations to the Federal House of Representatives,^[19] aiming to address the costly and complex governance structures with overlapping competences between the Federation, the Cantons and the municipalities as currently entailed in the Federal Constitution.^[20] The initiative was, ultimately, not adopted by Parliament.

Reform proposals by Bosnian civil society

In September 2003, a group of intellectuals in the framework of the Academy of Sciences and Arts of Bosnia and Herzegovina, led by Mesud Sabitović, drafted proposals for constitutional changes which would have defined Bonsnia and Herzegovina as a federal republic. The proposals were forwarded to the Parliamentary, but not taken forward.^[21]
In 2007, the Sarajevo-based NGO Foreign Policy Initiative (VPI) issued the report 'Governance Structures in Bosnia and Herzegovina: Capacity, Ownership, EU Integration, Functioning State', in which, among other things, it recommended substantial reforms along the lines of the April Package, and including an EU Supremacy Clause.^[22]
The Swiss Agency for Development and Cooperation Office in Bosnia and Herzegovina (SDC) supported a multi-year project entitled 'Contribution to Constitutional Reform' (CCR), engaging many prominent domestic NGOs such as the Human Rights Center of the University of Sarajevo (HRC), ACIPS, the Institute for Social Science Research at the Faculty of Political Science in Sarajevo, the Association of Democratic Initiatives (ADI) and the entity associations of cities and municipalities. Two of the Swiss implementing partners, ACIPS and the Law Institute, developed packages of reform proposals, largely in line with the Venice Commission and April Package guidelines.^[22]^[23]
USAID and the National Endowment for Democracy supported the Forum Građana Tuzle (Forum of the Citizens of Tuzla) in preparing a proposal for constitutional reform.
An informal network of women's NGOs proposed a package as well, focused on gender equality and women's rights.^[24]
The group Coalition 143 (K143) calls for decentralization of powers to the municipal level and the abolition of entities and cantons.^[25] The idea was first spearheaded by the mayor of Foča, Zdravko Krsmanović.^[26]
The Green Council advocates for sector-specific constitutional reform, including a state-level Ministry of Agriculture.^[27]

Reform proposals by foreign think tanks

In 2004, the European Stability Initiative proposed to abolish the Federal entity and have a federal system with 10 cantons, Republika Srpska and Brčko District on the same level, below the State.^[28]
In 2014, the International Crisis Group proposed a summary of various models, including:^[29]
- a three-entity Bosnia and Herzegovina, catering to Bosnian Croat political aims;
- a model based on Belgium's linguistic communities, which could "give territorially flexible political substance to the three [political] communities";
- a simplified federal model, based on the abolition of the Federation of Bosnia and Herzegovina (cf. ESI 2004);
- a federal but liberal Bosnia and Herzegovina (for which they assess there is no political feasibility);
- a model based on the Swiss "directoire", merging the Presidency and Council of Ministers in a single executive body, gathering the most-voted MPs, with a mandatory coalition rule based on electoral results (p. 29-33);
- a model based on municipalization, with the abolition of the cantons, possibly coupled with an association of Croat-majority municipalities and a mandatory coalition at the Federal level (p. 33-34);

References

^ European Court of Human Rights, Grand Chamber, Case of Sejdić and Finci v. Bosnia and Herzegovina (applications 27996/06 and 34836/06), Judgment, Strasbourg, 22 December 2009.
^ ^a ^b ^c ^d ^e ^f ^g ^h ⁱ ^j ^k ^l ^m ⁿ ^o ^p ^q ^r ^s ^t ^u Davide Denti, The European Union and Member State Building in Bosnia and Herzegovina, PhD thesis, University of Trento, 2018
^ "Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I."
^ Parliamentary Assembly of the Council of Europe (PACE), Opinion 234 (2002) on Bosnia and Herzegovina's application for membership of the Council of Europe, Strasbourg, 22 January 2002
^ Venice Commission, "Opinion on the Constitutional Situation in Bosnia and Herzegovina and the power of the High Representative", CDL-AD (2005) 004
^ U.S. Department of State. "Bosnia Ten Years Later: Successes and Challenges". Speech by R. Nicholas Burns, Under Secretary for Political Affairs, Washington DC, November 21, 2005
^ McMahon, P. C., Jon Western, 2009. “The Death of Dayton: How to Stop Bosnia from Falling Apart”. Foreign Affairs, 88(5), 69-77.
^ Office of the High Representative (OHR). 2008. Joint Statement of the Presidents of HDZ Party Dragan Čović, SNSD arty Milorad Dodik and SDA arty Sulejman Tihić, Prud, 8 November, p.1.
^ International Crisis Group (ICG), Bosnia's Incomplete Transition: Between Dayton and Europe. Sarajevo, Brussels: ICG - Europe Report No. 198, p. 5.
^ Parliamentary Assembly of the Council of Europe (PACE), The functioning of the democratic institutions in Bosnia and Herzegovina, Vol 3.1, Document 12112, 11 January 2010
^ "Bosnia and Herzegovina shall have the responsibility for applying to membership in International Organisations and to conclude Treaties… To that end, it may transfer sovereign powers to such organisations"; "Bosnia and Herzegovina shall have the responsibility to conclude agreements with the European Union and to undertake legal and political commitments required for the process of accession to the European Union, including on matters that in accordance with other provisions of this Constitution are the responsibility of the Entities". Constitutional Amendments, Butmir, 29 October 2009, quoted in Venneri, From International to EU-Driven Statebuilding, 2010, p. 190.
^ Bardutzky, Samo (2010). "The Strasbourg Court on the Dayton Constitution: Judgment in the case of Sejdić and Finci v. Bosnia and Herzegovina , 22 December 2009". European Constitutional Law Review. 6 (2): 309–333. doi:10.1017/S1574019610200081. S2CID 143703014.
^ Todorović, Aleksandar (13 December 2020). "Human rights vs. the Constitution of Bosnia & Herzegovina". input.sh. Retrieved 13 December 2020.
^ Zivanovic, Maja (13 December 2019). "Bosnia Constitution Still 'Outrageously' Violates Minority Rights – HRW". Balkan Insight. Retrieved 29 August 2020.
^ "Inzko: Respect of Human Rights is a Bedrock of Democracy". Sarajevo Times. 11 December 2020.
^ Council of the European Union, Council conclusions on Bosnia and Herzegovina, 3076th Foreign Affairs Council meeting, Brussels, 21 March 2011.
^ European Union Delegation to Bosnia and Herzegovina, Commissioner Füle and Secretary General Jagland regret the lack of progress in implementing the Sejdić-Finci judgement, 8 March 2013.
^ European Union Delegation to Bosnia and Herzegovina, Statement by the Commissioner for Enlargement and European Neighbourhood Policy, Mr Štefan Füle, after consultations with political parties in Bosnia and Herzegovina, Sarajevo,11 April 2013.
^ Ekspertna grupa za reformu Ustava FBiH. "Ustavna Reforma FBiH" (in Bosnian).
^ "EC Progress Report" (PDF). 2013. pp. 6–7.
^ PAM report 2011 “Constitutional Changes in Bosnia and Herzegovina”, p.4
^ ^a ^b Valery Perry (2015): Constitutional Reform in Bosnia and Herzegovina: Does the Road to Confederation go through the EU?, International Peacekeeping, DOI: 10.1080/13533312.2015.1100082
^ Swiss Cooperation Office in Bosnia and Herzegovina, ‘Contribution to Constitutional Reform Project, Phase III: Final Report’, 3 (2010). Bosnia and Herzegovina: SCO.
^ The reform proposal is available at: Platforma zenskih prioriteta za ustavne promjene sa amandmanima na Ustav Bosne i Hercegovine iz rodne perspektive (PDF). Inicijativu Graðanke za Ustavne Promjane.. A previous gender sensitive reform effort, limited to gender issues, was prepared in 2008 with the support of UNIFEM.
^ "Municipalizacija – Municipalizacija" (in Bosnian). Retrieved 17 February 2023.
^ Democratization Policy Council DPC, February 2008. Retrieved 17 February 2023
^ "Green Council – Savjet za zelenu gradnju" (in Bosnian). Retrieved 17 February 2023.
^ Initiative, European Stability (8 January 2004). "Making Federalism Work – A Radical Proposal for Practical Reform" (PDF). ESI.
^ Bosnia's Future (PDF) (Report). Vol. 232. 10 July 2014.

Bibliography

Bajrović, Reuf (2005), BiH municipalities and the EU: Direct participation of citizens in policy-making at the local level, Central European University
Hays, Don and Jason Crosby (2006), From Dayton to Brussels: Constitutional Preparations for Bosnia's EU Accession, US Institute of Peace
Perry, Valery (2015): Constitutional Reform in Bosnia and Herzegovina: Does the Road to Confederation go through the EU?, International Peacekeeping, DOI: 10.1080/13533312.2015.1100082
Democratization PolicyCouncil, Understanding and Breaking Bosnia and Herzegovina's Constitutional Deadlock: A New Approach for the European Union and United States
European Stability Initiative (2004), Making Federalism Work – A Radical Proposal for Practical Reform
Foreign Policy Initiative (2009), Role of Civil Society in BiH Constitutional Reform, Sarajevo, July 2009
Foundation Public Law Center, Database of all reform document proposals
International Crisis Group (2012), Bosnia's Gordian Knot: Constitutional Reform
International Crisis Group (2014), Bosnia's Future

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