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.

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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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