Post on 09-Apr-2023
MASARYK UNIVERSITY BRNO
Faculty of Social Studies
Department of International Relations and EuropeanStudies
EU Strategic Framework on Human Rights andDemocracy – possibilities, challenges and
implication to Bosnia and Herzegovina
Final Paper for EUP 404 – Europe in Global Politics
Author: Nikola Kožuljević (420474)
M.A. program in European politics
Spring, 2014.
Professor: Mgr. Hubert Smekal, M.A., Ph.D.
Brno, April 2014.
Introduction
In June of 2012, The Council of European Union has adopted
a document entitled EU Strategic Framework and Action Plan on
Human Rights and Democracy. It is a document that imprints EU
will to perceive human rights as a universal and indivisible; it
is an “embodiment” of commitment to protect and respect civil,
legal, political and economic, social and cultural human rights
through all activities of EU, whether they are internal or
external. Generally it is a genuinely positive and engaging
framework and which is accompanied by 97 activities within an
action plan, responsibilities respectfully divided by major
relevant EU institutions.
The purpose of this paper, EU Strategic Framework on Human Rights
and Democracy – possibilities, challenges and implication to Bosnia and Herzegovina,
is to show the nature of EU Strategic Framework and Action Plan
on Human Rights and Democracy, what are its key strengths and
how those can be applied for resolving Bosnia and Herzegovina HR
problems. Contemporary BiH is a country born from conflict
through The General Framework Agreement for Peace in Bosnia and
Herzegovina, which was initiated in Dayton on 21 November 1995
and signed in Paris on 14 December of the same year. The Dayton
Agreement provided a comprehensive initial framework for ending
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the war from 1992 – 1995, and indeed secured peace in the
country. Furthermore the country’s Constitution was drawn up as
part of the Dayton Peace Agreement (Annex 4) and established a
rather complex and unstable political and governing structure
which resulted in various human rights violations and issues. HR
violations, especially discriminatory provisions of the
Constitutions (as ruled in Sejdić-Finci case) is very
influential for present BiH and its resolution remains a key
point of de-blocking BiH’s path to become a full member of the
EU.
Accordingly, this paper is divided in three thematically
distinctive but connected parts: first part, deals with the
strengths and nature of EU Strategic Framework, second one deals
with BiH and its complex political, constitutional situation and
human rights environment, and lastly, third part deals with
implications and application of the EU Strategic Framework to
help resolve BiH HR issues and help the country get back in the
ascension to EU process. To achieve this I will analyze and
research secondary information sources such are articles, books,
webpages from various authors; analyze them and present my
findings with one goal: to present how politicians and civil
society in BiH should recognize EU Strategic Framework on HR
and democracy as a tool which can help make better future for
BiH and its citizens.
EU Strategic Framework and Action Plan on Human Rights and Democracy – overview, goals and vision
At 25th of June in 2012, The Council of European Union has
adopted a document entitled EU Strategic Framework and Action
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Plan on Human Rights and Democracy.1 It is a result of
aspiration of EU to perceive human rights as universal and
indivisible with a commitment to protect them within the EU
borders and when engaging in relations with other non-EU
countries.2 Within the adopted Strategic Framework EU defines
human rights as universally applicable legal norms and
democracy; and joined with liberty and rule of law, an
universal aspiration and base for sustainable peace,
development and prosperity in all societies around the world.3
As it is mentioned in the Strategic Framework, EU is well
aware of all the challenges accompanied by cultural
differences and disrespect of human rights, and it is
completely determined to strengthen the efforts to ensure that
human rights are realized for everyone.4 To achieve that EU
commits to promotion of universal human rights (whether civil,
political, or economic, social and cultural) through pursuing
coherent objectives of human rights support and prevention of
violation in all EU external policies (and certainly internal)
through strengthening cooperation within the EU institutions
(European Council, the Member states, the European commission
and the EEAS5) and working with bilateral partners (with other
non- EU countries through special relationships and within
the ENP6) and working through multilateral institutions (such
1 Further in the paper, this document will be referred to as Strategic Framework on HR and democracy or just Strategic Frameworkd. 2 “The EU and human rights“, last accesed 11.04.2014., http://eeas.europa.eu/human_rights/index_en.htm3 EU Strategic Framework and Action Plan on Human Rights and Democracy, The Council of The European Union, Luxembourg (2002): 14 Ibid. 5 European External Action Service – defined by The Lisbon Treaty which led to major developments in the area of external action, with the creation of the post of High Representative of the Union for Foreign Affairs and Security Policy, and the establishment of the EU's diplomatic arm, the European
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are international organizations and especially UN and UN HR
council).7
To achieve such goals, within the Strategic Framework, EU
has adopted a detailed Action plan on Human Rights and
Democracy which is built upon the existing body of EU policy
on human rights and democracy in external action, notably EU
guidelines, toolkits and other agreed positions and the
various financial instruments, in particular the European
Instrument for Democracy and Human Rights (EIDHR).8 The action
plan is comprised of 97 actions and tools which should be
implemented by: High Representative assisted by the EEAS, the
Commission, the Council and by the member states (in respect
to their competences defined by Treaty of EU) with
contribution of EU Special Representative for Human Rights and
other institutions such are Anti-trafficking coordinator and
other EU delegations - to achieve 36 goals in 7 key areas
until 31 December of 2014.9
The EU Strategic Framework on HR and democracy is a really
broad instrument that emphasizes the EU will and mission to
protect and promote human rights in all areas of its external
action without any exception, such as trade, investment,
technology, Internet and other electronic telecommunication
means, energy, environment, corporate social responsibility
and development policies, as well as in the Common Security
External Action Service (EEAS). More info at: http://eeas.europa.eu/what_we_do/index_en.htm6 European Neighborhood Policy - Through its European Neighbourhood Policy (ENP), the EU works with its southern and eastern neighbours to achieve the closest possible political association and the greatest possible degree of economic integration. This goal builds on common interests and on values— democracy, the rule of law, respect for human rights, and social cohesion... More info at: http://eeas.europa.eu/enp/index_en.htm7 Op. Cit. EU Strategic Framework and Action Plan on Human Rights and Democracy, 2,3, 4. 8 Ibid. 5. 9 EU Strategic Framework and Action Plan on Human Rights and Democracy, The Council of The European Union, Luxembourg (2002): 5 – 24.
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and Defense Policy, the external dimensions of employment and
social policy and the area of freedom, security and justice,
including counter-terrorism policy.10 Action plan of the
Strategic Framework on HR and democracy, cover all aspects of
human rights, ranging from abolition of death penalty to the
eradication of torture to fighting forced marriage to
defending freedom of expression; the Action Plan furthermore
envisages the EU initiatives in new areas, such is a more
central role for the promotion of human rights in development
cooperation, promotion of freedom of expression on the
Internet and the prevention of statelessness.11
Strategic Framework – Strengths and Weaknesses
Clearly there are numerous strengths, possibilities,
potential that can be connected with the EU Strategic
Framework on HR and democracy and accompanying Action plan. In
this paper I am going to emphasize general support, both
material and structural, of the EU HR institutions (and
programs) and appointing EU Special Representative (EUSR) for
Human rights as the strongest points of this strategic
framework. The general support of EU institutions toward human
rights and democracy is really substantial and unparalleled in
the world as the human right protection and democracy support,
(also thanks to the influence of Strategic Framework) is embed
in almost every internal and especially external policies of
the EU. Table 1, EU Financial Support of the Human Rights and Democracy
through External Policies, shows approximately how much EU funded and
plans to spend while implementing external policies and10EU Annual Report on Human Rights and Democracy in the World in 2012 (Thematic Report), The Council of The European Union, Brussels (2013): 911 Ibid., 10.
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instruments (in the financial framework position named – EU
Global Player) which have direct or indirect impact to
protection of human rights and democracy.
6
Name of the Policy/Instrument Info and relation to HR and democracy12
BudgetValue13
(2007 –2013)
BudgetValue14
(2014 –2020)
EIDHR – European instrument for Democracy and HumanRights
Its key objectives are to enhance respectfor human rights and fundamental freedomsin countries and regions where they aremost at risk, and to strengthen the roleof civil society in promoting human rightsand democracy.
€ 1,104billion
€ 1,332billion
IfS – Instrument for stability
It is designed to address a number ofglobal security and development challengesby financing actions that re-establishstability in emergency situations, wherehuman rights are particularly at risk.
€ 2,062billion
€ 2,338billion
ENPI – European Neighbourhood (and Partnership) Instrument
The ENP aims to strengthen the prosperity,stability and security of Europe'sneighborhood. One of its three strategicobjectives is supporting democratictransition and promoting human rights.
€ 12 billion € 15,432billion
DCI - Development Cooperation Instrument
It includes a thematic programme “Non-state actors and local authorities indevelopment”, which aims at encouraginginclusion of all actors, especially
€16,9billion
€19,661billion
12 Factsheet - EU Strategic Framework on Human Rights and Democracy, The Council of The European Union, Luxembourg (2012): 1. 13 “Financial framework 2007 – 2013”, The European Commission, last accessed 13.04.2014, http://ec.europa.eu/budget/figures/fin.../fwk0713_en.cfm 14 “Financial Programing and Budget – Multianual Financial Framework“, The European Commision, last accessed 13.04.2014, http://ec.europa.eu/budget/mff/figures/index_en.cfm
vulnerable and marginalized groups.CFSP - CommonForeign andSecurity Policy
Covering a range of activities, notably incrisis management, including strengtheningthe rule of law. The EU currently has tencivilian missions around the world,including Bosnia Herzegovina (EUFOR/Altheamission).
€ 1,740billion
€ 2,338billion
Summary:Policies/instruments – underEU as Global Playerposition in Budgets
Policies and instruments directly andindirectly influencing and engaging theprotection and support of HR and democracyon local level.
€ 55,935billion
€ 66,262billion
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Table 1, shows how different EU external policies influence
support and protection of human rights and democracy and the
amount of funds appointed to their implementation in two
different budgeting periods (2007-2013 and 2014-2020) through the
budgeting position entitled EU as a Global Player (2007-2013) and
Global EU (2014-2012). In this comparison I only focused on the
policies that have (indirect or direct) influence to the HR and
democracy protection and support.
Direct influence to the protection and support of HR and
democracy within the Strategic Framework could be observed
through EIDHR - European instrument for Democracy and Human
Rights policy which implies a direct work with local political
institutions and structures, NGOs and civil organizations on HR
matters with a budget of € 1,103 billion which is 1,95% of the
all external policies influencing HR and democracy protection and
support in 2007-2013 budgeting period. In the current budgeting
period funds have generally increased (as can been seen within
the Table 1.) and EIDHR got even more support. For the policy
that has been adopted in 2006 such amount of appointed funds is
surely positive and what is more promising is a clear rise of the
funds. Also, I believe it is important note that EU expenditure
to “EU as a Global Player” (2007 – 2013), which implies all of
these policies (and even more), and covers 5,73% of the entire EU
budget for and had a great potential in elevating and gaining
even more support.15 On the other hand, “Global EU” in and all
related external policies, with the direct and indirect effect,
in the current budgeting period are assigned with € 66,262
15 “Financial framework 2007 – 2013”, The European Commission, last accessed 13.04.2014,http://ec.europa.eu/budget/figures/fin.../fwk0713_en.cfm
Table 1. EU Financial Support of the Human Rights and Democracy through External Policies
billion which constitutes 6,12% of the entire EU budget for 2014-
2020.16 Is such funding enough? Could it be more? It could be
argued variously as the entire EU budget is rising, but still
represents relatively small portion of GDP of EU29, and what is
important such comparison clearly shows that EU is continuing to
support the EU external policies through elevating support and
increasing funds for all external policies. Such predicament is
clearly positive and implies optimistic strength to current (and
future) Strategic Framework for HR and Democracy and related
action plan.
Furthermore, one of the strongest points of this Framework
and action plan, as I wrote before is initialization and the
appointment of the first ever EU Special Representative for Human
rights. Mr. Stavros Lambrinidis was appointed for that position
on 25 July 2012. He took office on 1. September, with an initial
mandate running until 30 June, 2014. Mr. Lambrinidis’ role is to
enhance the effectiveness and visibility of EU human rights
policy with his broad, flexible mandate, giving him the ability
to adapt to circumstances, and work closely with the European
External Action Service, which provides him with full support.17
EUSR for HR has a great responsibility to implement the Strategic
Framework and should increase the effectiveness and coherence of
the EU’s human right policies. It is also important to note that
such an authority have a global influence as it directly
cooperates with many global organizations such are UN, UN Human
rights council and global counterparts.18 Furthermore, as strength
16 “Financial Programing and Budget – Multianual Financial Framework“, The European Commision, last accessed 13.04.2014, http://ec.europa.eu/budget/mff/figures/index_en.cfm17 “Eu Special Representatives“, EEAS, last accesed 14.04.2014., http://eeas.europa.eu/policies/eu-special-representatives/index_en.htm18 „The EU Special Representative for Human Rights should have worldwide authority.“, last accessed 14.04.2014., http://www.eppgroup.eu/press-release/The-EU-Special-Representative-for-Human-Rights
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I would add an inclusion of Strategic Framework to multilateral
cooperation and enablement of cooperation with many human rights
NGOs and transnational organizations, such is Amnesty
International; which already welcomed adoption of this
Framework.19
On the more weaknesses and critique side of the EU
Strategic Framework on HR and democracy, S. Douglas-Scott
argues that “while the EU’s new strategy is strong in its
aspirations; its operational details still need to be
clarified. It may also need stronger powers to tackle human
rights violations within the EU, an area where the EU has often
lacked credibility in the past.”20 Within the EU Strategic
Framework, distribution of various tasks within the EU
institutions and related member states is not very clear, and
that important actions and activities, procedures and tools
must be more detailed, and even related to local level, need to
be more effective.21 The Framework positively stresses the need
for the EU member states to be more committed and exemplary in
ensuring respect for human rights and within external policies
such agenda is (promoting and speaking out on human rights and
democracy) join responsibility.22 In such statement lays both
weakness and strength of the Framework. Weakness lays in the
facts that member states are responsible for their own
projections of human rights and democracy protection and in the
fact that the EU is often rightfully accused of double
19 Sionaidh Douglas-Scott, “The EU’s new human rights strategy is a step in the right direction, but whether or not it will be implemented and enforced successfully remains to be seen.”, last accessed 14.04.2014, http://blogs.lse.ac.uk/europpblog/2012/07/25/eu-human-rights-policy/20 Ibid. 21 Ibid. 22 EU Strategic Framework and Action Plan on Human Rights and Democracy, The Council of The European Union, Luxembourg (2002): 2
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standards regarding the respect of human rights. In addition,
the Framework implies that human rights protection provisions
are included in every other policy, instrument or agenda, which
should be perceived as a rhetorical exaggeration; i.e. human
rights will not be central factor in the EU cooperation with
Azerbaijan, Saudi Arabia or China.23 Also, one of the key issues
remain the arms export (of some EU member states)24 which always
project doubts in EU human right protection policies and helps
perceiving the EU as the an ethical arms trader, which is
better described as rhetorical pleasantry rather than fact of
reality.25
The Strategic Framework and Action Plan for Human Rights
and Democracy, is genuinely positive and engaging framework and
action plan which is ought to be admired, followed and
completely implemented. Will it fail or rise to expectations
still remains to be seen. Conclusively, the purpose of this
paper is not to comprehensively analyze the general
implementation, strengths and weaknesses of Strategic Framework
but to observe how can it be, should be, or how is it applied
to cope with difficulties and challenges of human rights
protection in Bosnia and Herzegovina.
23 Anthony Dworkin, Assessing the EU’s New Human Rights Strategy, last accessed 14.04.2014. http://ecfr.eu/content/entry/commentary_assessing_the_eus_new_human_rights_strategy24 Even though firearms exports are extremely strict and normalized through the EU’s Code of Conduct. In practice, however, the Code’s potency may be greatly subject to national interpretation. Less restrictive countries have resisted further harmonization in order to reap economic benefits from moreconstraining policies in their competitors’ home countries. Read more in: Jennifer L. Erickson, “Market imperative meets normative power: Human rights and European arms", European Journal of International Relations (2013 19: 209 originally published online 27).25 Jennifer L. Erickson, “Market imperative meets normative power: Human rights and European arms”, European Journal of International Relations (2013 19: 209 originally published online 27): 7,8.
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Bosnia and Herzegovina – profile, constitutional
framework and relevant institutions
It is a complicated and daunting task to present relevant
socio-political and economic profile of one country within
couple of pages, but I will do my best to present Bosnia and
Herzegovinian’s environment and profile (BiH) from human rights
and relevant EU (and international) perception; in addition to
presenting important international and domestic HR protection
institutions within the general constitutional framework.
The story of contemporary BiH begins with The General
Framework Agreement for Peace in Bosnia and Herzegovina26, which
was initiated in Dayton on 21 November 1995 and signed in Paris
on 14 December of the same year. The Dayton Agreement provided
a comprehensive initial framework for ending the war from 1992
– 1995, and indeed secured peace in the country.27 Furthermore
the country’s Constitution was drawn up as part of the Dayton
Peace Agreement (Annex 4) and established a rather complex
political and governing structure of BiH further dividing it
into two ethnically separated entities Federacija (Federation)
BiH and Republika (Republic of) Srpska (in addition to Brčko
D.C.) populated by Constitutionally defined constitutive
peoples: Bosniaks, Croats and Serbian. In addition,
Constitution framed multi-level governance on 4 levels: state,
entity, cantonal (in Federation of BiH) and local in
municipalities.28 Such predicament gave rise to numerous
governance problems and institutional malfunctions, conflicts,
26 In the continuation of this will be referred to as Dayton Agreement. 27 Zoran Pajić, "A Critical Appraisal of Human Rights Provisions of the Dayton Constitution of Bosnia and Herzegovina", Human Rights Quarterly, Vol. 20, No. 1 (1998): 125. 28 Read more in: Governance Structures in BiH - Capacity, ownership, EU integration, functioning state, published by Foreign Policy Initiative BH.
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boycotts and even paradoxes; which would be referred to (at
some extent) later in this paper. But at this point it is
important to point out that the Dayton Agreement after the war
has implicitly positioned BiH under a certain protectorate of
international community which can be perceived through the
existence and work of, among others: OHR (Office of High
Representative)29 and its “Bonn powers”30, Constitutional Court
composed of nine members and three appointed by ECHR, and
Ombudsmen of Human Rights appointed by OSCE.31
On the other hand, EU also had a significant presence in
the BiH since the 1996 as the Delegation of the European
Commission in BiH was established. The structure of the
Delegation has been somewhat changed after the decision of the
Council of the European Union from July 2011, in which the
powers and authorities of both the EU Special Representative
(EUSR) and the Head of the European Union Delegation Office
were vested in the same person. In September 2011, Ambassador
Peter Sorensen took up the posts of Head of the EU Delegation
and EUSR.32 As a consequence, the Delegation and the Office of
the EUSR together function as 'one voice' on the ground. Thus
29 The Office of the High Representative (OHR) is an ad hoc international institution responsible for overseeing implementation of civilian aspects of the Peace Agreement ending the war in Bosnia and Herzegovina. The position of High Representative was created under the General Framework Agreement forPeace in Bosnia and Herzegovina. The High Representative is working with the people and institutions of Bosnia and Herzegovina and the international community to ensure that Bosnia and Herzegovina evolves into a peaceful and viable democracy on course for integration in Euro-Atlantic institutions.30 Bonn Powers of the High Representative are direct effect of Peace Implementation Council (PIC) meeting held in 1997 in Bonn. Bonn powers imply that the High Representative have subsanital authorityand can enforce certain decision to protect the Dayton Peace Agreement for being delayed or obstructedby nationalist politicans. High Representative has the power to remove from office public officials who violate legal commitments and the Dayton Peace Agreement, and to impose laws as he sees fit if Bosnia and Herzegovina’s legislative bodies fail to do so. Nonetheless, the governing principle of theOHR’s engagement in Bosnia and Herzegovina is the concept of domestic responsibility. This concept calls on the officials and citizens of Bosnia and Herzegovina to take responsibility for the peace process and the problems that their country faces. See more at: http://www.ohr.int/pic/default.asp?content_id=5183 and http://www.ohr.int/ohr-info/gen-info/default.asp?content_id=3861231 Zoran Pajić, "A Critical Appraisal of Human Rights Provisions of the Dayton Constitution of Bosnia and Herzegovina", Human Rights Quarterly, Vol. 20, No. 1 (1998): 127.32 „Our role“, EU Delegation to BiH & EU Special Representative, last accessed 15.04.2014. http://europa.ba/Default.aspx?id=7&lang=EN
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the EUSR mandated is defined by the Council of the European
Union with a goal to reinforce the EU's political support for
its policy objectives in BiH: 'BIH’s progress in the
Stabilization and Association Process, with the aim of seeing a
stable, viable, peaceful, multi-ethnic BiH, co-operating fully
and peacefully with its neighbours in the region'. Furthermore,
EUSR is responsible for the co-ordination of the EU's public
communication in Bosnia and Herzegovina, and for contributing
to the further development of respect for human rights and for
fundamental freedoms. This institution offers advice and
facilitation support in the political process to institutions
at all levels, aimed at ensuring greater consistency and
coherence of all political, economic and European priorities –
particularly in the areas of the rule of law and security
sector reform.33
Zoran Pajić in his 1998 analysis of the Dayton
Agreement/Constitution perfectly summarizes constitutional
framework relevant to human rights environment of the
contemporary BiH by writing: “While it is true that the
constitution contains a reference to all relevant international
human rights instruments (such is UN Charter and The principles
of the European Convention on Human Rights (ECHR)), along with
strong nondiscrimination clauses (especially in Preamble and
Article II of the constitution – completely devoted to human
rights), it is quite certain that no matter what human rights
guarantees are declared, these guarantees will have to be
implemented in an atmosphere of intensive ethnic isolation and
mistrust. It flows from this that members of any of the three
33 Ibid. 15
distinctive ethnic groups will be protected by the carefully
balanced compromise, but only on the basis of their collective
(national) identity.”34 Furthermore he notes that: “this leaves
no room for all those who either do not fit into the groups of
Bosniacs, Croats, or Serbs, or who simply would prefer to
exercise their right not to belong to a group”. Interestingly
this peculiarity will eventually be recognized as a clear
violation of human rights in 2009 ruling of ECHR within the
case Sejdić and Finci vs. BiH; which will be discussed later in
the paper.35
Human Rights Institutions, Environment and Challenges
in BiH
Before discussing BiH’ institution who are established to
support and protect human rights in BiH, I believe it will be
good to digress a bit and write about the civil society (and
related NGOs which have human rights embed in their purpose and
mission) in BiH. As a matter of fact there are hundreds of NGOs
in BiH that are dealing with human rights protection, support
and related issues. With an intention to avoid and list some of
them, their missions and activities – I would like to emphasize
the nature of civil sector in BiH. Truthfully, civil society
can do little in light of the structural problems BiH faces:
ethnic division, internal political stalemate, insufficient
refugee and minority return, corruption and cronyism, and a
general feeling of political, economic, and social insecurity
are the unresolved challenges that loom darkly on Bosnia’s NGOs
who have little leverage to break the nationalist monopoly of34 Zoran Pajić, "A Critical Appraisal of Human Rights Provisions of the Dayton Constitution of Bosnia and Herzegovina", Human Rights Quarterly, Vol. 20, No. 1 (1998): 135.35 Ibid.
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power, to channel citizen participation and to promote
reconciliation.36 Surely this doesn’t imply that the NGOs in BiH
are un-efficient and useless, but do to their specific nature
and BiH complex environment their influence is rather
questionable but not absent. Actually, institutional mechanisms
for cooperation of civil society and governments on Entity
level are not fully operational and completely lacking at the
State level with a notable problem of transparency of allocated
funds to NGOs. 37
In BiH, problems with violation of human rights and their
protection, are far from reaching scope of the civil society
and international NGOS. Due to its specific nature,
establishment of sustainable, functionally effective and
independent human rights protective institutions in BiH is
mandated by the Dayton Agreement and as such they are a key
condition for the future integration into Euro-Atlantic
institutions. OSCE mission in BiH, lists two key institutions
that have a mandate to protect human rights on the national
level: The Ombudsman for Human Rights and The Constitutional
Court of BiH and especially its Human Rights Commission.38 The
mission and role of these institutions is overwhelming and, as
written above, linked and defined by The Dayton Agreement.
These institutions are extremely important in protecting human
rights in BiH, but haven’t been so effective, influencing and
well, notably useful. Ombudsmen for Human Rights in BiH for
instance is very versatile and helpful institution, but not
36 Roberto Belloni, "Civil Society and Peacebuilding in Bosnia and Herzegovina", Journal of Peace Research, Vol. 38, No. 2 (2001): 177.37 Bosnia and Herzegovina 2013 Progress Report, The European Commission, Brussels (2013): 12.38 „Human Rights Instiutions“, OSCE, last accessed 15.04.2014, http://www.oscebih.org/Default.aspx?id=52&lang=EN
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equipped with strong decision making tools due to the fact that
it cannot change decisions of organs of public authorities,
neither take over the role of appeal organs; it also may not
interfere with decision-making process of courts.39 Which makes
the Constitutional Court and its Human Rights Commission as the
ultimate enforcer and protector of human rights in BiH as it
has all the necessary authority and mechanism guaranteed by the
Constitution. But, in reality, those mechanisms are non-
existing, or just remained an “empty letter on the paper” as
the rulings and decision of the Constitutional Court are not
respected neither implemented due to the absence of political
responsibility, un-effective Prosecutors office and complex
governing and political environment.40
Such predicament created a rather complex and challenging
human rights environment in which it is observable that some
human rights are being while supported others completely
neglected and disrespected – depending on local politicians
will to address and completely commit to the issues. For
example Human Rights Watch reports the difficulties in the
prosecution of war crimes in local courts as they are hampered
by inadequate capacity and funding. Furthermore they emphasize
that two foreign nationals remain in indefinite detention
without trial on national security grounds and journalists
remain vulnerable to threats and attack.41 Amnesty International
(similarly as HRW) also reports on human rights violations that
“the perpetrators of war time human rights abuses remain at39 „Role and Function“, BiH Ombudsmen for Human Rights, last accessed 15.04.2014, http://www.ombudsmen.gov.ba/Default.aspx?id=10&lang=BS40 Erliha Bičakčić, „Neobavezujuće obaveze: Status odluka tijela za zaštitu ljudskih prava“, Puls Demokratije (2007), retrieved from: http://arhiva.pulsdemokratije.net/index.php?id=321&l=bs (my own translation)41 “Human Rights in Bosnia and Herzegovina”, Human Rights Watch, last accessed 16.04.2014, http://www.hrw.org/europecentral-asia/bosnia-and-herzegovina
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large. Impunity for war crimes and crimes against humanity
committed during the 1992-1995 war continue to be widespread.
Thousands of ‘disappearances’ are still unresolved. While
perpetrators of wartime violations continued to enjoy impunity,
victims and their families were denied access to justice and
redress.”42 In addition to these cases, Amnesty International
reports cases of human trafficking and violence and
discrimination against minorities (Roma population) and LGBTI
(due to violent attacks at Queer Fest in Sarajevo in 2008) in
which state officials failed to publicly condemn violent
attacks (against participants) and to develop a mechanism which
will condemn and prosecute such violations of human rights. 43
In search for justice and due to the fact that
Constitutional Courts decision have not been enforced;
minorities have lodged their cases to the European Court of
Human Rights (ECtHR). In 2012 - 2013 the ECtHR delivered
judgments on 39 applications finding that Bosnia and
Herzegovina had violated rights guaranteed by the European
Convention of Human Rights (ECHR) and since September of 2011
total of 423 new applications have been submitted to the
ECtHR44, and in 2012, 822 – adding to total of pending
applications is 1622.45
Civil Rights Defenders reports that in Bosnia and
Herzegovina, the implementation of ratified UN and
international human rights conventions remains uneven and
partial; and the on-going political disputes are still
42 „Anual Report: Bosnia and Herzegovina“, Amnesty International, last accessed 16.04.2014, http://www.amnestyusa.org/research/reports/annual-report-bosnia-and-herzegovina-2013?page=show43 Ibid.44 Bosnia and Herzegovina 2012 Progress Report, The European Commission, Brussels (2012): 15.45 Bosnia and Herzegovina 2013 Progress Report, The European Commission, Brussels (2013): 16.
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directing attention away from major human rights issues.46 Due
to the length limitation of this paper, it is impossible to
list all of the human rights issues, violations and problems in
BiH. But by far, most impacting case of violation of human
rights and outstanding issue in BiH, is the case of Sejdić and
Finci vs. BiH - in which I. Sejdić (of Roma ethnicity) and J.
Finci (of Jewish ethnicity) appealed to ECtHR on the grounds
that the BiH’s Constitution is discriminatory toward
minorities. On December 22 of 2009, the Grand Chamber of the
ECtHR delivered its judgment in the case of Sejdić and Finci
versus Bosnia and Herzegovina. It held (by fourteen votes to
three) that Bosnia and Herzegovina had violated Article 14
(prohibition of discrimination) of the ECHR taken in
conjunction with Article 3 of Protocol No. 1 (right to free
elections for a legislature) as regards the applicants’
ineligibility to stand for election to Bosnia and Herzegovina’s
House of Peoples; and that Bosnia and Herzegovina had violated
Article 1 of Protocol No. 12 (general prohibition of
discrimination) of ECHR as regards the applicants’
ineligibility to stand for election to the country’s
Presidency.47 That case of BiH’ breaching ECHR is the base for
notable substantial consequences which are influenced by EU’s
determination to protect human rights.
46 “Human rights in Bosnia and Herzegovina”, Civil Right Defenders, last accessed 20.04.2014, http://www.civilrightsdefenders.org/country-reports/human-rights-in-bosnia-and-herzegovina/47 Marko Milanović, "Sejdić &Finci V. Bosnia and Herzegovina" The American Journal of International Law, Vol. 104, No. 4 (2010): 637
20
EU Strategic Framework for HR and Democracy –
implications to BiH
In respect to Strategic Framework and Action Plan on Human
Rights and Democracy, EU is committed to improve human rights
protection and general socio-political environment in BiH.
Furthermore the specificity lay in the fact EU has developed a
special relationship with BiH (some of it has been written
above related to EUSR for BiH) with supporting its ascension to
be a full member of the EU. On 16th June 2008, BiH signed
Stabilization and Association Agreement (SAA) and Interim
Agreement (IA) on Trade and Trade-related issues.48 The Council
of Europe has been refrained from taking the decision to
activate the SAA due to the BiH’s failure to implement Sejdić-
Finci ruling of the ECtHR.49 Interim Agreement (IA) has been in
force since July 2008. SAA agreement clearly defines legal
framework, reforms, help resolve problems and monitor their
overall implementation – a prerequisite for any further
assessment of the country by the EU of the county’s accession
prospects; but development from BiH side remains pending.50
Implementation of the IA remained uneven as the country is
still in breach of the IA due to non-compliance with the ECHR
due to the Sejdić-Finci Case and with its obligations on State
aid (the State Aid Law has been adopted but the establishment
of the State Aid Council, compliance with EU principles on
public undertakings and the comprehensive inventory of aid
48 „Bosnia and Herzegovina – Relations with the EU“, The European Commision – Enlargement, last accesed 19.04.2014, http://ec.europa.eu/enlargement/potential-candidate-countries/bosnia_and_herzegovina/eu_bosnia_and_herzegovina_relations_en.htm49 Bosnia and Herzegovina 2013 Progress Report, The European Commission, Brussels (2013): 5.50“Stabilization and Association Process”, EU Delegations in BiH, last accessed 19.04.2014, http://europa.ba/Default.aspx?id=74&lang=EN
21
schemes are still pending).51 On the other hand EU continues to
deploy considerable resources in BiH within the Common Foreign
and Security Policy (CFSP) and European Security and Defense
Policy (ESDP) as the EUFOR/Althea mission to continue to be
present in the country.52
BiH at the moment have the status of potential candidate,
but due to the political instabilities and inefficiency such
status is at stakes. In order to help BiH and their politicians
and with a purpose to start a process of explanation what EU
requires in both political and technical terms, EU in June 2012
has launched the High Level Dialogue On the Association Process
(HLDAP).53 The HLDAP was created to aim two outstanding issues:
implementation of the Sejdić-Finci ruling and developing a
model for a coordination mechanism of all levels of
government.54 Due to the inability to implement the ECtHR ruling
– Bosnia and Herzegovina is in risk to lose (apart from the
status) a substantial amount of material and institutional
help. Such loss can be perceived within the IPA – Instrument
for Pre-Accession Assistance funds (which were allocated for
supporting various projects) within which, and in absence of an
agreement to Sejdić-Finci issue, funds were reduced by 54% i.e.
€ 47 million in 2012.55
It is quite obvious that EU has a special relationship with
BiH. From SAA, which is normal, to IPA funds and even HLDPA, EU
has shown serious efforts to help BiH in its of developing
democracy and respect to human rights in general goal of51 Bosnia and Herzegovina 2012 Progress Report, The European Commission, Brussels (2012): 6.52 Op Cit. “Bosnia and Herzegovina – Relations with the EU”53 Bosnia and Herzegovina 2012 Progress Report, The European Commission, Brussels (2012): 5.54 “Encouraging High Level Dialogue in Bosnia and Herzegovina”, The European Commission - MEMO/12/91927/11/2012, last accessed 19.04.2014, http://europa.eu/rapid/press-release_MEMO-12-919_en.htm55 Bosnia and Herzegovina 2012 Progress Report, The European Commission, Brussels (2012): 7.
22
becoming a full member of EU. It is also obvious that human
rights play a crucial role in this process as failure to
implement ECtHR decision has resulted in great loss in
institutional and material support to BiH and will remain such,
until the decision is implemented. Some EU officials have
echoed the Council’s threat of not recognizing BiH general
elections in 2014 legitimate.56
So how can political and civil structures in BiH use EU
Strategic Framework and Action Plan For Human Rights and
Democracy, for the better tomorrow? Well, firstly I believe it
is of great importance for actors, both political (governing
structures) and civil society in BiH to notice and recognize EU
Strategic Framework. During my research for this paper, I have
not encountered any great acceptance or recognition of the EU
Strategic Framework on HR and Democracy from official
government and civil society. EU Strategijski okvir i akcioni plan za ljudska
prava i demokratiju, (Strategic Framework and Action Plan for HR and
Democracy in B/H/S language) has been received only as a news
article on websites and no serious analysis have not been
conducted from anyone from BiH side. I came to the same
conclusion while browsing through some of the NGOs websites and
their planned future agenda. Actually, even the EU delegation
websites share some general and budgeting information, but
which are somewhat outdated.57 I would argue that such
predicament is bad and not very promising in helping overall
human rights situation and the implementation of possibilities
56 „The Sejdic-Finci Question“, The Economist, last accesed 19.04.2014, http://www.economist.com/blogs/easternapproaches/2013/10/bosnia57 For more info see: http://ceppei.ba/bos/index.php?option=com_content&view=article&id=9725&Itemid=72, http://europa.ba/News.aspx?newsid=5378&lang=BS, http://www.europa.rs/mediji/vesti_iz_brisela/1603/Strateški+okvir+EU+za+ljudska+prava+i+demokratiju.html
23
which are given by the Strategic Framework and Action plan. As
I wrote before, Strategic Framework has defined direct and
indirect means to support and protect human rights and
democracy through, related to BiH two strengths: EU continuous
support and entitlement of EU Special Representative for Human
rights.
Due to BiH’s special relationship with the EU, it is in
perfect position to refer to protection of human rights and
democracy to various institutions and through special
agreements. I am completely positive that BiH politicians and
civil society, if willing to do so, could use the institution
of EUSR for BiH (and EU delegation) to reach out to (or
establishing direct cooperation) EUSR for Human Rights and ask
for further institutional, structural and financial help.
Furthermore, all actors responsible for protection of HR and
democracy in BiH should be aware that EU is serious in
protecting HR (which is embodied in the Strategic Framework)
and that funding and support of such endeavor will continue
through all the foreign policies and EU activities. According
to EU Annual Report on Human Rights and Democracy in the World in 2012, EU
directly supported BiH’s (related human rights only) through
assistance under IPA which focused on social protection and
inclusion of children (€ 1.4 million), sustainable return (€
0.5 million) and support to the implementation of the action
plans under the Roma Strategy (€ 0.5 million). Furthermore,
ongoing projects under EIDHR in 2012 were mainly contracted in
2009 for an overall amount of € 1.1 million where priorities
included civil, political, economic, social and cultural
rights. EIDHR grant contracts awarded during 2012 addressed the
24
fight against discrimination against women, the Protection of
Children, improving access to the right to work of people with
disabilities and others. A € 485.000 project "the Youth Peace
Advocates in Eastern Bosnia and Herzegovina" was completed in
June 2012.58 Such predicament and intentions could, and should,
be perceived in BiH as a positive conditionality and serious
efforts which will surely grow and be available for future
activities. Furthermore I would add that such positive approach
should be more favored by EU through EUSRs and general
Strategic Framework; as negative incentives (shrinkage of IPA
funds and blockade of SAA) as we have seen are not very
efficient in influencing BiH politicians (and civil society, in
some extent) to resolve HR issues.
Conclusion
With this paper I ought to show that, EU’s Strategic Framework
and Action Plan for Human Rights and Democracy is genuinely
formidable framework and ambitious toolbox which is intended to
initiate (current and future) EU commitment to protect and
support HR and democracy. It is a documented proof that EU is
committed in including HR and democracy support in all external
policies and activities. On the other hand, I intended to show
58 EU Annual Report on Human Rights and Democracy in the World in 2012 (Country Reports), The Council of The European Union, Brussels (2013): 9.
25
how one country, as BiH is, due to its complicated nature and
political instabilities fails to resolve serious human rights
violations as discriminatory provisions of its Constitution.
Furthermore, I’ve presented how BiH continuously fails to
recognize the seriousness of the EU HR support commitment,
which is from 2012 “embodied” in the EU HR Strategic Framework,
which consequently resulted in losing structural and financial
support from the EU. Failure to recognize the importance of HR
protection have stalled, and even stagnated, position of BiH in
the process of ascension to be a full member of the EU. If I
could make any suggestions to ruling BIH government(s) and
political actors including the civil society it would be
firstly, to recognize the EU Strategic Framework for Human
Rights and completely perceive its various strengths. By
strengths of the EU Strategic Framework for HR, among many, in
this paper I emphasized continuous commitments and financial
support to HR and democracy protection from the EU side and
initiation and foundation of the European Special
Representative for Human Rights. Secondly, I would advise them
to move above and beyond from every day political conflicts,
irrelevant obstructions and boycotts and resolve discriminatory
issues in the Constitution by completely and actively
participating in all the EU initiatives and provided
institutions – including EUSR for BiH, EUSR for HR, HLDAP and
of course within EUFOR/Althea Mission. I am certain that such
motivated, active and participatory approach would definitely
be recognized by the EU officials and in relatively short
period of time produce results which will be enjoyed by all BiH
26
people, no matter the place of residence, ethnicity and/or
nationality.
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