Aporias of the existence and action of the high representative in the legal and political system of Bosnia and Herzegovina

Abstract

The appointment of Mr. Christian Schmidt as the new high representative in Bosnia and Herzegovina met with great opposition from the Serbian political elite in Bosnia and Herzegovina, which is supported by Russia and China. The key problem lies in the process of appointing Mr. Schmidt. According to Article I paragraph 2 of Annex 10 of the General Framework Agreement for Peace in BiH, the high representative should be appointed in accordance with the relevant resolutions of the UN Security Council. Of the eight high representatives, in the period from 1995 to 2023, six were appointed with the consent given by the appropriate resolution of the UN Security Council after the appointment was made by the Steering Committee of the Peace Implementation Council, and the seventh should have received this consent, but the resolution was not was adopted. Only one high representative was not appointed with the consent of the Security Council, and there was no draft resolution to give that consent. Considering that Mr. Christian Schmidt was not appointed with the consent of the Security Council given by the corresponding resolution, his challenge is justified. Despite this, there is disagreement about this position, because the US, the UK and France believe that the high representative was appointed legally without a resolution, while China and Russia dispute this position. High representatives intervened in the legal system of BiH and the entities, often through the adoption of laws and their amendments at the level of BiH and the entities, and the adoption of amendments to the constitutions of the entities. Of course, such behavior is controversial and the question has been raised as to whether the high representative has normative competences. By analyzing Article II and Article V of Annex 10, which the high representative used as a legal basis, we can conclude that his competences are not of a normative character, and by interpreting this annex it is not possible to arrive at such competences. Analyzing point XI/2 of the Conclusions of the Peace Implementation Council held in Bonn on December 9 and 10, 1997 (the so-called Bonn Powers), which the high representatives also refer to as a legal basis, it is evident that there is no authorization to enact laws either amendments to entity constitutions. Normative powers of the high representative would be contrary to the First Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the democratic principle of the sovereignty of the people requires that laws should be adopted by a body elected by the people. In addition, it would be contrary to Annex 4 - the Constitution of BiH and the constitutions of the entities, according to which the parliament is the body that enacts laws and amends the constitutions.