University of Kent

Towards A Post-Conflict Social Contract:

Contractarianism and Consent Formation in

the Post-Dayton Constitutional Reform

Process

by

Allison L. Sorkin

A Dissertation Submitted to the

Brussels School of International Studies

of the Department of Politics and International Relations

in the Faculty of Social Science

In Partial Fulfillment of the Requirements

for the Award of the Degree of

Master of Arts in International Conflict and Security

Brussels,

Friday 20 March 2015

University of Kent

Towards A Post-Conflict Social Contract:

Contractarianism and Consent Formation in

the Post-Dayton Constitutional Reform

Process

by

Allison L. Sorkin

A Dissertation Submitted to the

Brussels School of International Studies

of the Department of Politics and International Relations

in the Faculty of Social Science

In Partial Fulfillment of the Requirements

for the Award of the Degree of

Master of Arts in International Conflict and Security

Brussels,

Friday 20 March 2015

(14,699)

Acknowledgements

I would like to thank all of the people who aided and

supported me during this research project.

Firstly I would like to thank Professors Florian Bieber

and Tom Casier for their courage in supporting the idea of

social contract theory in contemporary IR research. I would

also like to thank my mentor, Professor R. Bruce Hitchner at

Tufts University for helping to support my field research

and the dissertation process.

Secondly, I would like to thank my support system

during my recovery. Thank you to Connie Green, Joanne

Azulay, and Susan Paradise at the Center for Head Injuries.

Thank you to Beth Fier. Thank you for your perseverance and

encouragement.

Thirdly, I would like to thank my friends and family. I

thank all of the Sorkins for their encouragement and

inspiration. Thank you Janice (Chevi) Marks, and Morgan

Robinson, J.D., for taking time out of their days to

reassure me. Thank you to Zachary Baum, MA, for his

professional expertise in contract theory, and for being an

amazing friend.

i

Dedication

For Mom and Dad.

ii

Contents

Towards A Post-Conflict Social Contract: Contractarianism and Consent Formation in the Post-Dayton Constitutional Reform Process

Acknowledgement ................................................................................................................

.i Dedication ............................................................................................................................. iiTable of Contents .................................................................................................................. iii List of Tables and Figures ..................................................................................................... ivList of Abbreviations………………………………………………………………………. v

Chapter: 1. Introduction……………………………………………………………………………... 1

1.1 Methodology………………………………………………………………………. 22. The Social Contract and Its Importance in Post-Conflict

States………………………… 32.1 Defining the Social Contract………………………………………………………. 32.2 The Social Contract in Post-Conflict States………………………………………. 4

2.2.1 The Social Contract in International Statebuilding:The Alienation of Consent…………………………………………………… 6

3. Background: The Dayton Agreement and the Absence of a Social Contract…………… 9 3.1 The Breakdown of the Social Contract: Bosnia at War…………………………… 93.2 The Dayton Agreement: Competing Visions of the Social Contract……………… 10

iii

3.2.1 Dayton’s Failure as a Social Contract………………………………………. 13

4. Initial Attempt to Define a Social Contract: The Constituent Peoples Case……………. 154.1 The Case…………………………………………………………………………… 154.2 International Vision of the State: the Decision…………………………………… 16

4.3 “Local Ownership” and Competing Visions of the State………………………… 184.4 The Social Contract………………………………………………………………... 19

5. Second Attempt to Define a Social Contract: the April Package……………………….. 215.1 The April Package of Amendments……………………………………………….. 215.2 International Vision of the State……………………………………………………225.3 “Local Ownership” and Competing Visions of the State …………………………. 235.4 The Social Contract………………………………………………………………... 25

6. Third Attempt to Define a Social Contract: The Finci Case……………………………. 276.1 The Case…………………………………………………………………………… 276.2 International Vision of the State: the Decision……………………………………. 286.3 “Local Ownership” and Competing Visions of the State…………………………. 306.4 The Social Contract………………………………………………………………... 31

7. The “Post-Liberal” Contract: Beyond the Stalemate......................................................... 327.1 Failure of the Social Contract: The Fallout, Protests, and a New Way Forward….. 33

8. Conclusion………………………………………………………………………………. 35

Bibliography ................................................................................................................................ 38

List of Figures

iv

The UNDP’s Social Contract…………………………………………………… 8

The Post-War Dayton Regime…………………………………………………… 12

v

List of Abbreviations

BiH- Bosnia-Herzegovina

BOSS-the Bosnian Party (Bosanska Stranka)

CoE- Council of Europe

CoM-Council of Ministers

DPA-Dayton Peace Agreement/Accords

ECHR- European Convention on Human Rights

ECtHR-European Court of Human Rights

EU- European Union

FBiH- The Federation of Bosnia and Herzegovina

HDZ-Croatian Democratic Union (Hrvatska Demokratska Zajednica)

HDZ 1990-Croatian Democratic Union 1990 (Hrvatska Demokratska

Zajednica 1990)

HoP- The House of Peoples

NATO- North American Treaty Organization

OHR- Office of the High Representative

PIC- Peace Implementation Council

PDP- Party for Democratic Progress (Partija Demokratskog

Progresa)

RS- Republika Srpska

SAA- Stabilization and Association Agreement

SBiH- Party for Bosnia and Herzegovina (Stranka da BiH)

SDA-Party for Democratic Action (Stranka Demokratske Akcije)

vi

SDP-Social Democratic Party (Socialdemokratska Partija)

SDS- Serb Democratic Party (Socialdemokratska Partija)

SDU-Social Democratic Union (Socijaldemokratska Unija Bosne I

Hercegovine)

SNSD-Alliance of Independent Social Democrats (Savez Nezavisnih

Socialdemokrata)

UNDP- United Nations Development Program

vii

1. Introduction

Since the Enlightenment Era, the social contract has served

as the theoretical bedrock of state legitimacy and the foundation

of societal justice. More recently, internationally-led

statebuilding projects have co-opted contract theory, seeking to

establish stable and nominally “legitimate” states in post-

conflict contexts. Both the Organization for Economic Cooperation

and Development (OECD) (2008) and the United Nations Development

Program (UNDP) (2012, 2014), have sought to frame unrest and

state weakness in terms of the absence of a social contract. The

UNDP’s 2012 “Governance for Peace” report went so far as to

claim, “The absence of a social contract is…at the heart of

fragility,” causing “disordered political arrangements and weak

state legitimacy” (UNDP 2012:11).

Despite the international community’s enthusiasm for the

concept, a successful translation of the historic theory to

contemporary statebuilding has failed to gain ground. The UNDP,

in its study of post-conflict states, thus, maintains, “What is

still needed is a systematic study of the collapse and

(hopefully) re-emergence of social contracts in fragile settings”

(UNDP 2014: 19). This dissertation takes a cue from this lacuna

in current international development practice, problematizing the

failure of the social contract to take hold in post-conflict

states. This work has chosen Bosnia as a case study for the “re-

emergence” of a contract. The Dayton Peace Agreement, Bosnia’s

post-war settlement, lacked such a compact. This Agreement was

fashioned by external actors and was never ratified by the

Bosnian people. For this reason, the social contract, as an

instrument of legitimation and post-war justice, is an attractive

framework and an ideal application of the UNDP’s theory.

The current process of reconstructing a social contract in

Bosnia will be examined. While the causality of the breakdown of

the social contract has been treated in detail elsewhere,1

considerably less literature has focused on the dynamics of

rebuilding a social contract in the Bosnian context. This work

will find that the key element of a legitimate social contract,

the “consent of the governed,” is perhaps the most formidable

barrier to the “re-emergence” of a compact in post-conflict

societies. The process of gaining local agreement for the state

and its institutions has enjoyed only limited success in Bosnia,

with local and external actors proffering very different

visions of what constitutes a just post-war contract.

The question remains as to how a social contract, an often-

abstract concept, may be operationalized and examined. Typically,

the social contract is embodied in the constitutions of

contemporary states (Ghai 2008; 2). Within Bosnia, however, this

is not the case. As an imposed constitution, the Dayton Agreement

falls short of a social contract. Rather, the process of

constitutional reform, which seeks to achieve consent absent from

the Dayton constitution, serves as a truer measure of a

legitimate societal contract.

Accordingly, this work will examine the process of Bosnian

constitutional reform to determine how, or indeed if, the proposed

measures reflect a consensus of the people on the principles of a

1 See, inter alia, Ramet (1996) and Woodward (1995)

1

2

just political settlement, or a social contract. This

dissertation demonstrates that ideological differences amongst

international and local conceptions of a just political order

have resulted in a multiplicity of norms, and a failure to

generate agreement for a social contract in Post-Dayton Bosnia.

The Bosnian example ultimately impugns existing approaches to

securing a contract in post-conflict states, which typically rely

on elite-level discussions and liberal international

expectations, without securing sufficient input from the

governed.

1.1 Methodology

This dissertation is a process-focused study of the external

and internal normative influences on the formation of a locally

legitimated Bosnian constitution. This work’s unique contribution

is its grounding of post-conflict institutional reform in

contractarian theory. This study uses the social contract

heuristically, as a framework for the analysis of constitutional

reform in Bosnia and the negotiation of domestic consensus for

the terms of a just and legitimate political settlement.

This work will begin with an overview of the social contract

in classical as well as recent development literature. The

subsequent chapter will serve as a background segment, providing

insight into the breakdown of Bosnia’s social contract and the

resultant Dayton Constitution. It will substantiate the claim

that due to competing international and local visions of the

state and to the lack of popular ratification, the Constitution

does not establish a social contract. The analysis begins in

chapter four and extends through chapter six. These chapters will

examine successive constitutional reform attempts, and the

failure of such efforts to secure consent for a particular

political order, or contract. The analysis will focus on the

dissonance between international and local elites’ visions of the

state, and the irreconcilability of competing notions of a just

political dispensation. This dissertation will subsequently

propose a “solution” to the current failure to secure a social

contract. It will re-imagine the contract beyond elite agreement,

and propose a hybrid international-local contract, in which a

more “authentic” consent may be given. This hybrid contract

proposes a more flexible arrangement, with a broader

interpretation of the governed and a loosening of liberal

international orthodoxy. This work will ultimately conclude that

without such a substantial shift in the approach to securing

consent, a proper social contract and a locally legitimated state

will continue to elude the Bosnian people.

2. The Social Contract and it’s Importance in Post-Conflict

States

This chapter will begin with an overview of social contract

theory. It will subsequently explore the compact in the context

of post-conflict literature, highlighting social contract

narratives in contemporary statebuilding. This section will

conclude that while contract theory in contemporary conflict

discourses serves as a vital framework for justice and

reconciliation, subsequent statebuilding practice has alienated

the essential element of the “classical” social contract:

consent.

2.1 Defining the Social Contract

The classical social contract is most often associated with

Thomas Hobbes, John Locke and Jean-Jacques Rousseau, with an

emphasis on explaining the legitimacy of the state and

justification for its authority (Velasquez 2014: 541). Contract

theory generally holds that individuals consent to give up specific

rights and certain liberties in exchange for guarantees from the

state (541). A social contract may be illiberal (Hobbes) or

liberal (Locke and Rousseau) depending upon the ultimate form

that the state may take, whether it is the sovereign will of the

people, or an authoritarian force. Hobbes and Locke, despite

their divergent views of the form of the “sovereign” state

itself, ultimately agree that legitimacy of the state rests upon

the consent of the governed (541). Particularly attractive in

social contract literature is its theoretical grounding of the

principles of justice in such consent. As Nussbaum argues, “The

dominant theory of justice in the western tradition of political

philosophy is the social contract theory, which sees principles

of justice as the outcome of a contract people make …” (2004:4).

Such an agreement on the foundation of justice, in turn, fosters

the (re)building of society and the establishment of “just”

institutions.

Modern social contract theory, advanced by Rawls, is more

specific than his predecessors in the form that such “just”

institutions may take. Rawls’ theory proffers a liberal-

egalitarian contract in which a just government does “not favor

one ethnic group over another.” (Velasquez 2014: 557). Rawls’

contract seeks to include not only the consent of all involved,

3

but also their equal representation. His theory holds that “a

just government is one that provides equal political rights and

equal economic opportunities to everyone without showing

favoritism to any” (557). The theorist’s universalistic

conception of a social contract most closely resembles the tenets

of contemporary liberal democracy. For this reason, Rawls’ view

of the social contract has gained currency in contemporary

literature.

Despite the predominance of the liberal strain of social

contract theory, in which the contract leads to a particular

egalitarian dispensation of society, the social contract is not

limited to this form. Given differing interpretations of the

social contract, Paz-Fuchs maintains:

In light of these differences, what do these theories have

in common that merits the common title, social contract

theories? It would seem that the central attribute of social

contract ideas is to perform an important legitimating

function... The modern social contract, then, is employed as

a mechanism for identifying proper social institutions and

policies that reflect justice as the basic virtue in

society. (Paz-Fuchs 2011: 3)

Distilling the essential components of both modern and

classical social contract theory, a functional definition of the

social contract may be realized. The social contract may be

defined as a societal consensus to construct just and legitimate

political institutions, with agreement on the existence of the

state itself being paramount.

4

2.2 The Social Contract in Post-Conflict States

The application of social contract theory to conflict

situations ranges widely in contemporary literature, from serving

as a framework for justice and conciliation to an

“internationalized” social contract. In the latter form, external

actors define the principles of justice and play an integral role

in the contract’s formation. This section will explore the usage

of social contract terminology in both academic and policy

literature, highlighting the substantive divergences in the

concept’s interpretation.

Hellsten (2006) outlines the purpose of the contract in

post-conflict theory, arguing that the perception of injustice and

the desire to “right the wrongs” in society is one of the

principle causes of civil war (1). She argues that as the social

contract is first and foremost a theory of justice, this framework

serves as an attractive model for securing post-conflict

stability. Hellsten maintains:

The traditional conflict resolution and peace-building

paradigms have frequently been constructed within the

framework of social contract theory, which illustrates the

importance of building a society on a mutually beneficial

and unanimously accepted agreement on the principles of

political power and legitimate governance that guarantees

social harmony and security. (2006:1; emphasis added)

Hellsten’s version of the social contract sets out a

demanding standard for post-war equality, in which society is

5

“mutually beneficial” in its political dispensation. The

challenge to Hellsten’s view of creating a post-conflict social

contract is in reconciling divergent interpretations of a just

society and in creating “unanimous acceptance.” In practice, the

creation of such a mutualistic contract has proven difficult to

achieve, with approximately half of societies in conflict

returning to conflict (Samuels 2005: 2). The collapse of the

Arusha Accords and continued instability in Afghanistan and Iraq,

further demonstrate the difficulty of arriving at a just

settlement in societies with competing sectarian claims and

competing visions of a just state. Such settlements, if ratified

in some form by the people, may be contracts. Yet, once made,

such contracts do not necessarily “guarantee social harmony and

security.”

While the formation of a social contract post-war is

difficult, it is not impossible. As Sisk (1995) points out in his

examination of the post-Apartheid contract in South Africa, the

transition from a post-war situation to a “democratic social

contract” is possible (54). In order for such a transition to

occur, conflicting parties agree to set aside discriminatory and

segregationist practices, and to adopt shared institutions. He

argues,

The critical difference between a democratization that

results in a consociational pact and one that produces a

democratic social contract is that, with the latter,

erstwhile foes eschew essentialist perceptions that lead to

demands for mutual vetoes in the bargaining relationship and

instead muster sufficient trust to submit to the

uncertainties of winning and losing in the electoral game.

In a democratic social contract, parties voluntarily reject

mutual fear in favor of mutual gain. With a sense of shared

destiny, consolidated by convergence through negotiation on

what constitutes a fair set of institutions (both in

political power and in distributive terms), a democratic

social contract is conceivable in divided societies. (55)

The key to Sisk’s argument, in basic contractarian terms, is

his emphasis on “negotiation on what constitutes a fair set of

institutions.” The latter process is the essence of the contract,

in which principles of justice are negotiated and agreed upon.

The author’s documented transition of South Africa from a

consociation, or elite power-sharing agreement, to a majoritarian

democracy and “contract” is a rare occurrence. For Sisk, however,

the social contract is equated to liberalization, in which the

electoral system is the sole arbiter of ethnic claims.

Consociation is set in opposition to a contract, as opposed to

merely being characterized as a different form of contract.

The failure of transitions from consociation to liberalism in

the cases of Lebanon and Cyprus suggest that Sisk’s South African

case is the exception that proves the rule of the author’s

majoritarian contract; some hybrid form of social contract may be

accepted in practice.2

2 In practice, however, contracts are often more complex than Sisk’s vision allows. Vetoes, which the author disavows, do not preclude a social contract from taking hold, as borne out in the cases of Northern Ireland and the “alarm bell” procedure in Belgium (Stroschein 2012: 14).

6

Successful “hybrid” consociational contracts in Belgium and

Switzerland seem to argue against Sisk’s distinction between

power-sharing agreements and social contracts. According to

contract theory, nothing precludes consociations from being

contracts, should basic agreement on the existence of the state

and common principles of justice (however defined) be achieved.

While Hellsten’s focus on justice, and Sisk’s focus on

liberal democratization may differ, both contracts emphasize the

domestically defined social contract. Recent interventionist

statebuilding attempts, however, have witnessed a marked

externalization of the social contract, in which domestic actors

are rendered subordinate to international norms in the

establishment of a just society.

2.2.1 The Social Contract in International Statebuilding: The

Alienation of Consent

The UNDP finds the social contract to be essential to the

rebuilding of post-conflict states. Its 2014 report, “The Social

Contract in Situations of Conflict and Fragility,” highlights

four key areas in which a social contract is vital to post-war

states. Firstly, the contract promotes stability and legitimacy,

as consent to be governed would quell anti-government unrest and

would sanction political institutions (UNDP 2014:19). Contracts

also promote resiliency, as society may renegotiate the terms of

the social contract should the need arise (19). The final benefit

of the social contract is accountability. The terms of the

contract serve as a “check” on governmental powers, and guarantee

that the government meets the “expectations” of the governed

(19). This vision of a social contract closely mirrors the

conceptions of the early Enlightenment Era contractarian

theorists, in stating that the primary function of a societal

compact is to confer legitimacy on the government through the

consent of its citizens.

Although the goals of the contract stated by the UNDP are

relatively modest, the reality of their implementation is quite

different. The involvement of international actors in the

formation of the compact alienates the right of the people to

consent to political authority, and may serve to undermine the

very legitimacy that the contract serves to promote. Such

statebuilding efforts promote a particular vision of justice,

subscribing to a Rawlsian liberal state, rather than allowing

society to determine the form that institutions should take. As

Hellsten notes, this liberal state “promises to promote

democracy, respect for individual rights and freedoms equally, to

enhance tolerance and mutual participation. It gives a

universalistic model for the framework of justice based on

impartiality and reciprocity” (2006: 9). Such a model does not

recognize group difference, or attempt to reconcile competing

sectarian claims. It assumes that the principles of liberal

democracy will automatically be accepted in post-war states.

The paradox of establishing a social contract through the

liberal statebuilding efforts of agencies such as the UNDP and

OECD, is that such efforts are “upside-down.” The process

attempts to impose liberal principles of justice before achieving

the consent of society, rather than a society first consenting to

the existence of the state itself, let alone a particular liberal

7

formation. This irony is highlighted in the notable critique by

Hayden (2000), who relates the dissonance of such an approach,

which attempts to establish a “democracy” before first securing a

unified “demos,” or singular political community (Hayden 2000).

The argument against alienating sovereignty, in order to

establish a liberal state is similarly critiqued in the Dominik

Zaum’s (2007) work on the “Sovereignty Paradox.”

This dynamic of liberalizing without securing a domestic

consensus, has defined the recent activities of international

organizations. The OECD views a weak social contract, as a

legitimating factor for intervention in weak states, not a

deterrent (OECD 2008: 26). The UNDP’s mandate is carried further,

as it attempts to intervene in state and societal sectors, often

insufficiently prepared. The UNDP concedes, that despite

intervention in, inter alia, Mozambique, Afghanistan, and Sudan, and

constitution-making in Somalia, Iraq and Nepal, that its efforts

“still lack a strategic approach oriented towards the

consolidation of the social contract” (33).

The lack of a “strategic approach,” has led to increased

theorizing and an expansion of the dimensions of the social

contract, from a simple agreement where citizens consent to form

just institutions, to a more liberal-interventionist

interpretation. In the latter interpretation, society, the state

institutions, and the political process are reformulated as

domains for international intervention (see Fig.1). Notable in

this compact, is that the international community plays an

integral role in shaping the state, and consent of the governed

does not. In “redesigning politics,” the UNDP seeks to replace

the contract and the public’s determination of the “rules of the

game” with its own, liberal interpretation. In sum, this new

definition of a social contract promotes the values of external

actors, while alienating domestic consent and legitimacy.

Fig. 1: The UNDP’s Social Contract Source: (UNDP 2012:42)

While the external “liberal” social contract theory, like

that of the UNDP, alienates the sovereignty of the people,

critical contract theory has recently made inroads into returning

to a more “locally legitimated” compact. This theory, proffered

principally by Oliver Richmond (2011), measures the success of

the contract less on the achievement of liberal goals than on the

inclusion of local actors in the formation of just institutions.

The resulting agreement is a hybridized contract between the

discursive “local” elements of society and international actors.

8

Rather than an imposed “liberal peace,” Richmond’s version seeks

an inclusive view of justice, rendering local agency and consent

to a just government the primary objectives.

Whereas the above literature focuses on the normative

aspects of what the contract should look like, from the local to

the liberal-international, very little attention is paid to the

process of actually forming such a contract. The balance of the

paper will be dedicated to examining this process of establishing

a “legitimate” contract in the Bosnian context. Both the liberal

external influences on the contract and the local influences will

be analyzed. This work will conclude that conflicting norms both

amongst and between local and international actors has preserved

the status quo in Bosnia, in which no contract exists.

3. Background: The Dayton Agreement and the Absence of a Social

Contract

This chapter is foundational. It grounds the thesis’

assumption that the current Constitution, established by the

Dayton Agreement, does not constitute a legitimate contract. This

chapter will begin by outlining the “breakdown” of the social

contract in Bosnia’s civil war, and the subsequent Dayton Peace

Agreement. The analysis of the Dayton Constitution will highlight

the external and internal influences on the contract’s formation.

It concludes that in institutionalizing differing visions of the

state, and neglecting consent from the governed for the state

itself, Dayton falls short of a proper “social contract.”

3.1 The Breakdown of the Social Contract: Bosnia at War3

With the dissolution of Yugoslavia and the European

Community’s recognition of Slovenia and Croatia as independent

countries in 1992, Bosnia likewise sought independence. Unlike

Croatia and Slovenia, however, Bosnia was a multi-ethnic state

with divided allegiances, composed of 44% Bosniak Muslims, 31%

Serbs, and 17% Croats (Schuman 44: 2004). Both the Croats and the

Serbs retained strong ties to, respectively, the now independent

Croatia and the rump of Yugoslavia, Serbia. Following a

referendum on independence in 1992, from which the Serbs

abstained, tensions mounted and interethnic trust disintegrated.

From 1992 to 1995, a war amongst three groups: Bosniaks, Croats,

and Serbs, (backed by Croatia and Serbia) resulted in acts of

genocide and mass displacement of citizens. The war saw 100,000

casualties, and nearly half the population of 4.5 million

displaced (Marko 2013:49). With the involvement of external

actors, and the conclusion of the Dayton Agreement in 1995, a

fragile peace was reached.

Following the war, Bosnia faced what Linz and Stepan term a

“stateness problem” in which “profound disagreements about the

territorial boundaries of the political community and who has a

right to citizenship remain” (as quoted in Belloni 2007: 4).

Different visions of a just state thus emerged from wartime fault

lines. Bosniaks advocated for a civic state. Serbs wished to

preserve their ethnicity’s sovereignty over territory gained

3 For the purposes of this work a brief sketch of the war will be provided. A detailed account of the war is beyond the scope of this paper, and has been outlined extensively elsewhere. See, inter alia, Ramet (1996), Woodward (1995), Silber and Little (1996) and O’Ballance (1995).

9

during the war, or a reasonable cognate thereof, while parts of

the Croat faction clung to the idea of a Herceg-Bosnia: a Croat

state to be subsequently merged with larger Croatia. A post-war

opinion survey found that 91% of Bosnian Serbs and 84% of Croats

within Bosnia opposed the notion of a unified “Bosnian state”

(Bose 2002: 136). Only the majority ethnic group, the Bosniaks,

supported the notion, with an overwhelming 98% in favor of a

unified country. This lack of consensus on the very existence of

the state, or lack of social contract, rendered Bosnia vulnerable

to further conflict, and highlighted significant divergences

within the polity. The subsequent section will examine the

details of the Dayton agreement, and will analyze its failure to

bring opposing ethnic parties closer to consensus on a common

vision of the state.

3.2 The Dayton Agreement: Competing Visions of the Social

Contract

Rather than contributing to the formation of a social

contract and resolving the tensions of the war, the Dayton

Agreement institutionalized competing imaginaries of a “just”

political dispensation. This section will outline the elements of

Dayton and its fractured contract. It will then conclude that

Dayton falls short of a social contract as it enforces differing

notions of ethnically rooted justice, and institutionalizes

liberal international interventionism.4

4 The preamble of the constitution, which echoes the language of the Lockean US contract, diverges significantly from “we the people,” to reveal a fractured picture of the polity. The Constitution reads, “Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows…” (Bosn.& Herz. Const. preamble). Unlike the US, in which a single demos sought to secure a common vision of a just society, the Dayton framework entrenched nationalistic identities and competing visions of a just political

10

Given significant divergences in the visions of the state

within the Bosnian polity, the Dayton Agreement began as a project

largely divorced from domestic input. External actors served as

both architects of, and signatories to, the Agreement. A small

cadre of Western powers, known as the Contact Group, crafted

Dayton. The United States and the European Union sought to

negotiate a peace between Bosniak leaders and the Croatian and

Serbian leadership. Rather than incorporating representatives of

the Bosnian Serb and Bosnian Croat population, the Agreement was

signed by external actors: President Milosevic of Serbia and

President Tudjman of Croatia. Dayton, therefore, suffered a

legitimacy deficit from the outset. This deficit only increased,

as the Bosnian polity never subsequently ratified the agreement.5

Notwithstanding the lack of legitimacy, and its

determination by external actors, Dayton sought to achieve an

arrangement to end the war, which, theoretically, would suit all

parties. The agreement’s structuring of state institutions aimed

to accommodate divergent views of the Bosniaks, Croats, and

Serbs. It followed the somewhat paradoxically termed “consensus

model,” or Lijphart “consociational model” of representation,

which accommodates and enforces ethno-territorial elite claims in

Bosnia rather than cultivating a common vision of the state

structure, and fostering an organic contract (Bose 2002,

Srkalovic 2010, Bieber 2006, Kasapovic 2005). As argued above,

such “consensus models” do not necessarily preclude the

conclusion of a proper social contract in situations in which a

settlement.5 Evidence of its international character, and liberalizing bent, Dayton was drafted in English, with no official version available in national languages (Srkalovic 2010:100).

common state is recognized. However, in the case of Bosnia, the

basic existence of the state is dispute. In this instance, the

consociational form of government exacerbates competing visions

of post-war justice and institutionalizes the lack of contract.

Such consociational agreements are traditionally comprised

of institutional safeguards for the interests of former warring

parties: segmental autonomy, proportional representation and veto

powers,6 all of which are present in the Dayton Constitution.

Segmental autonomy takes the form of two ethnically defined

entities, while proportional representation and veto rights are

present at both the state and sub-state levels. These elements

present significant obstacles to the formation of a single view

of a just state. Figure 2 illustrates the complexity of the

regime and the extent to which the state is structured around

competing interests.

6 This paper draws upon O’Leary’s definition of consociationalism, which maintains that Lijphart’s “grand coalition” or an executive comprised of predominant political parties, is not a necessary component of consociational agreement.

11

Fig. 2: The Post-War Dayton Regime Source:(Bose 2002:60).

Proportional Representation, the key tenant of consociationalism,

is entrenched within the institutional structure of the Dayton

Constitution. The Presidency consists of three members, one from

each ethnic group. The Croats and Bosniaks are drawn from the

Federation of Bosnia and Herzegovina (FBiH), while the Serbs are

drawn from the Republika Srpska (RS). This mode of “ethno-

territorial” representation structures justice around different

“group” and territorially bound interpretations, rendering

consensus nearly impossible. Absent prior agreement to the

existence of the state itself and principles of post-war

fairness, such a structure effectively institutionalizes and

ensures the continued absence of a social contract.

12

The institutionalization of differing interpretations of a

just state is furthered by the second element of consociation,

veto rights. While the Presidency attempts to achieve consensus on

all matters, a member of the Presidency can declare a given

action a violation of a “vital national interest” of his entity

(art. V, sec. 2, cl. d). The key ambiguity of the Dayton

constitution is that there is no definition of “vital national

interest vetoes.” Vetoes allow ethnic politicians an

obstructionist tool to assert divergent views of what constitutes

“justice” at the highest level of government. This broad

ambiguity is perhaps the biggest threat to a power-sharing

government’s ability to achieve a common vision of the state, or

contract.

Strict proportional representation and veto rights of the

three “constituent peoples” trickle down to the bicameral

legislature. The House of Peoples, like the Presidency, holds the

power to veto measures on the grounds of national interest. One

third of a given ‘ethnic caucus’ may declare a measure to be

“destructive of a vital interest” (Mansfield 2003: 2059). This

narrow threshold of those needed to declare a measure void,

indicates the fragility of the Agreement, and the absence of a

deeper consensus on principles of just government. Had a true

contract taken hold, such strict measures to guard competing

interests would arguably not be needed.

Ethno-territorial rights and protections are further

entrenched by the provisions for the election of the House of

Representatives. While the House of Representatives does not, de

jure prescribe for “Bosniak, Croat, or Serb” representatives, it

apportions representation according to entity. The House also has

a form of indirect veto, if two-thirds of the delegates elected from

either the Republika Srpska or the Federation dissent, a decision

may not be taken (McCrudden and O’Leary 2013: 27). Representation

by territory, and territorial veto, were designed to guard both

ethno-nationalism, and ethno-territorialism. Such provisions

posed a significant challenge to, and little incentive for,

reconciling competing visions of the state.

The final requirement of consociationalism is segmental

autonomy, or granting a degree of autonomy to each “constituent

people.” In the Dayton Constitution, this equates to the

devolution of power to two ethnically homogenous entities: the

Federation of Bosnia Herzegovina, and the Republika Srpska. The

entities within Bosnia were created to function as quasi-states

within the larger confederation, with large measures of

sovereignty. Each was empowered with the traditional capacities

of the state, inter alia, defining citizenship laws, and maintaining

distinct constitutions and parliaments (Kasapovic 2005: 4).

Ethno-territorially defined entities were charged with the

“regulation and enforcement of most, if not all, laws that affect

the lives of the average citizen” (Mansfield 2003: 2062). This

arrangement allowed competing visions of the state within Bosnia

to coexist, effectively arrogating the right to define laws and

principles of justice to the subsidiary entities. Thus, the

divided structure of the Bosnian state would provide little

incentive to reach common agreement on the existence of the

state, or “just” institutions. As demonstrated by repeated

efforts to secure sovereignty for the RS, described below,

13

segmental autonomy only serves to encourage discord, and

discourage contracting, where the state remains contested.

3.2.1 Dayton’s Failure as a Social Contract

Dayton failed as a social contract for two principal

reasons: the institutionalization of differing conceptions of

justice in the consociational agreement, and the alienation of

consent with the substantial involvement of external actors.

Perhaps the larger failing was the installation of power-sharing

institutions, rather than the fostering of an organic contract

post-war. Where consensus as to the existence of the state, the

basic tenant of a social contract, is missing, consociational

agreements produce a paradoxical effect and serve to entrench the

lack of compact. Such agreements effectively seek to secure

consensus in system premised upon institutionalizing difference.

Hayden’s argument speaks to this point and is worth quoting in

full:

The consensus ideal [consociationalism] may be popular

because it seems to provide a way for overcoming the dilemma

since everyone by definition ultimately agrees, the system

does not break down. Yet, this hopeful view ignores the

reality of the paradox caused by the lack of a social

contract. If there is no real consensus to inclusion in the

state in the first place, it is extremely unlikely that

there will be much consensus on the issues of governance

within it; and the requirements of consensus become tools

for ensuring state dysfunction. (Hayden 2005: 242)

Indeed, Bosnia’s government would suffer from perpetual

deadlock, as consensus was nearly impossible to achieve amidst

competing visions of the state itself. In the period immediately

following the war, of the 260 bills rejected by the legislature,

over half were vetoed to on the grounds of “national interest” by

RS representatives, rendering the state defunct (63). The failure

of Dayton to foster agreement amongst the “constituent peoples”

and to produce a functional state proved that the desire for a

loose consensus was no substitute for an actual social contract,

in which principles of the state and very notion of the state are

agreed upon.

Along with internal dissensus, external involvement in the

agreement precluded the categorization of the constitution as a

social contract, in which “the people” consent to form a

particular just government. In tandem with external actors

institutionalizing ethnic consociation, the international

community took conflicting, but equally explicit measures to

“impose” elements of liberalism. Given that the Dayton

consociation was clearly neither an inclusive “liberal" nor a

functional social contract, the international community pursued a

parallel policy on the ground, attempting to set the stage for

the eventual evolution of a “Rawlsian” egalitarian state.

The institutionalization of liberal external presence is

extensive, and violates the principles of a “legitimate” domestic

social contract. Pajic maintains while Dayton provides for de jure

sovereign statehood, and acceptance as a member of the United

Nations, Dayton is a “de facto protectorate, or to be put in a

politically correct vocabulary the country, by and large, has

14

been governed by an international administration” (as quoted in

Srkalovic 2010: 111).7 Perhaps the most significant intervention

and derogation from the principle of popular consent is the

position of the Office of the High Representative (OHR), the

executive arm of the international community in Bosnia. The OHR,

under Annex X of the Dayton agreement, is charged with both the

interpretation and implementation of “civilian aspects” of the

Dayton Constitution (Srkalovic 2010: 116).8

In 1997, at a meeting in Bonn, Germany, the OHR was endowed

with what Grewe terms “para-constitutional executive and

legislative competencies” (2011: 54). The Representative was now

empowered not only to oversee the civilian aspects of

implementation of the Dayton Agreement, but also to enact

legislation and dismiss public officials from office. The

implications of such powers were significant, as the OHR was now

able to “liberalize” Bosnia’s institutions from without,

responsible only to external actors. The Representative’s powers

effectively jettisoned the fundamental principle of the social

contract, consent of the governed, completely. The international

community’s desire to reconcile the fractured Dayton Agreement,

however forcefully, to the principles of the liberal social

7 The international presence has been installed largely without the consent of Bosnian citizens. The International Monetary Fund appointed the governor of the Central Bank, while the Human Rights Ombudsman position was determined by the Organization for Security and Co-operation in Europe.8 The Steering Board of the PIC, officially charged with providing political advice to theOHR is comprised of the main international actors in Bosnia, namely France, Germany, Canada, Italy, Japan, Russia, the United Kingdom, the United States, the Presidency of theEuropean Union, the European Commission and the Organization of the Islamic Conference. The High in turn, keeps the international community informed with weekly meetings amongst the Representative and ambassadors to Bosnia of Steering Board members (Noutcheva 2012: 219).

contract proved a difficult task, and remains key point of

contention in the constitutional reform process.

This chapter argues that the existing consociational model

institutionalized competing visions of justice amongst both local

and international actors, and failed to secure the consent of the

governed. This argument speaks to the premise of the thesis,

which argues that Dayton’s vision of Bosnia lacked a social

contract, necessitating subsequent reform efforts to secure such

a contract. The following chapters will analyze the attempts to

define a locally legitimated political dispensation and to secure

domestic consensus in the course of several constitutional reform

efforts.

4. Initial Attempt to Define A Social Contract: The Constituent

Peoples Case

Attempts to define a locally legitimate social contract, and

to secure the consent absent from the Dayton Agreement pitted

inter-ethnic visions of the state against each other. It also

placed the international community’s evolving liberal vision of

the state against the ethnically rooted dispensation in post-war

Bosnia. This chapter will examine the Constituent Peoples case,

and its attempt to define a social contract in the post-war

order. This analysis establishes the central thesis that discord

between external actors’ visions of the state, and those of

domestic players in the post-Dayton reality, rendered a viable

contract unattainable. The first section will highlight the case.

The second section will speak to the liberal, international

influence on the decision. The third section will analyze local

“ownership” in the implementation of the decision. The final

section will establish that neither the international nor the

local versions of the social contract were able to take hold,

resulting in the imposition of the decision, and the lack of a

locally legitimated agreement.

4.1 The Case

In 1998, Alija Izetbegovic appealed to the Constitutional

Court of Bosnia and Herzegovina, challenging the ethno-

territorial exclusivity of the entities. He claimed that six

provisions of the Federation constitution and sixteen provisions

of the Republika Srpska constitutions violated the

state-level guarantees for the equal status of the three

”constituent” peoples throughout Bosnia. Izetbegovic appealed to

the Rawlsian, liberal conception of justice, which guaranteed

non-discriminatory institutions, and equal representation. This

appeal directly set the current political dispensation, with its

competing visions of justice, against the “ideal” liberal social

contract. Among the key challenged provisions was Article 1 of

the RS constitution, which stated, “Republika Srpska shall be the

state of the Serb people and all of its citizens” and a mirror

provision in the FBiH constitution. In effect, the ethnically

segregated entities did not guarantee all three “constituent

peoples” equal access to public institutions and political

offices across the territory of Bosnia, causing widespread

discrimination. The petition was significant in that it sought to

15

indirectly challenge the Dayton Agreement: exposing its tacit

endorsement of this discrimination.9

4.2 International Vision of the State: The Decision

The Court reached its decision in July of 2000. The decision

shook the very foundation of the accommdationist Dayton, which

enshrined competing visions of the state and separate,

territorially determined spheres of justice. The Court found such

a dispensation unconstitutional maintaining, “The constitutional

principle of collective equality of constituent peoples prohibits

any special privilege for one or two of these peoples, any

domination in governmental structures, or any ethnic

homogenization through segregation based on territorial

separation” (as quoted in Belloni 2007: 59). Twelve provisions

of the RS constitutions and four provisions of the Federation’s

constitutions were found to be unconstitutional as they promoted

ethno-territorial exclusivism.

Indicating the liberal tenor of the decision, the case was

ultimately decided by the three international judges (appointed

by the President of the European Court of Human Rights (ECtHR))

and the two Bosniak members of the Court, both in favor of a

civic vision of the state, and a liberal social contract. The

Court’s decision aimed to “affirm the continuity of Bosnia and

Herzegovina as a democratic multinational state” (as quoted in

Belloni 60). This declaration was significant, as it challenged

Dayton’s accommodationist vision directly. A truly multinational

9 The Dayton Constitution stipulates only that the Agreement “supersedes inconsistent provisions of the law of Bosnia and Herzegovina and the constitutions and laws of the entities (art.III, sec.3, cl.b)

16

and integrated state (without “territorial separation”) would

threaten the divergent visions of Bosnia permitted by the Dayton

structure, and would move towards the Rawlsian-egalitarian social

contract.

In adopting a liberal bent, the Court, sought to integrate

the disparate positions of the “constituent peoples” into consent

for a common social contract predicated on effective equality in

the entities. A just society, in the opinion of the five

assenting judges, could not preserve divisions based on

ethnicity, introducing a large measure of liberalism into the

strictly “ethnic” Dayton. The Court’s integrationist view can be

seen in its rights based approach, which sought to balance ethnic

and individual rights, while giving the latter explicit primacy.

Mansfield argues,

The Court’s decision effectively circumscribed the practice

under the Dayton Peace Agreement of assigning political

power, representation and rights across ethnic lines only.

In doing so, the court recognized and legitimized collective

rights, but only to the extent that such collective rights

do not invade, and have the potential to empower, the

individual’s right to pursue his or her own liberty across

[Bosnia]. (2003: 2053).

In privileging individual rights, the court sought to loosen

the group-based, and territorially defined definitions of justice

in the Dayton system. In granting the individual equal rights

across the territory, the potential for common principles of

justice throughout Bosnia, and for the foundation of a social

17

contract, emerged. The Court’s version of such a contract

imagines a unified state, in which existing pluralism is not an

instrument of division, but is rather a force for integration.

The Court maintained,

Segregation is, in principle, not a legitimate aim in a

democratic society…territorial delimitation thus must not

serve as an instrument of ethnic segregation, but-quite

contrary- must provide for ethnic accommodation through

preserving linguistic pluralism and peace in order to

contribute to the integration of state and society as such. (as

quoted in Belloni 2007: 60; emphasis added).

With integration as the goal, the Court next sought to

reverse the effects of wartime ethnic cleansing, and mass

displacement, at the root of the entities’ formation. The Dayton

Constitution in Article 2 Annex 7 obliged the entities to “create

in their territories the political, economic, and social

conditions conducive to the voluntary return and harmonious

reintegration of refugees and displaced persons without

preference for any particular group” (Marko 2013: 57). With the

return of refugees and displaced persons, a less “segregated”

polity could theoretically be achieved. With more integration,

the Court could potentially gain acceptance for a liberal-

individualist view of a “just political settlement.”

Yet, the idea of a multinational federation and a liberal

social contract is an ideal vastly dissonant with the post-war

reality. Ethnic segregation remains a statistical reality in

Bosnia. In the RS, the Serb population rose from 54.3% prior to

18

the war to 96.8% post-war (61). The Bosniak population, which

comprised nearly one-third of the RS prior to the war, fell

dramatically to 2.2%, while the Croat population dropped to 1%

(61). In the Federation the effects of ethnic cleansing were

equally dramatic, with Bosniaks increasing their ranks from 52.1%

pre-war to 72% post-war, while the Serb population hovered

slightly above 2% from nearly 18% pre-war (61). With the reality

on the ground starkly differing from the integrated ideal of the

Court, the implementation of the agreement would prove a

formidable task.

The Court’s externally driven norm of a multinational

federation was left to be translated into a locally legitimated

contract by the ethnic elites. This process would highlight the

severe gap between the liberal ideal and the local reality.

Dissonant visions of justice would ultimately produce an

agreement in which difference was multiplied rather than

minimized.

4.3 “Local Ownership” and Competing Visions of the State

Unlike the Dayton Agreement, the process of implementing the

Constituent Peoples Decision sought to garner consent, albeit

elite consent, from the governed. The presiding High

Representative, Wolfgang Petritsch, charged with the

implementation of the decision, challenged the tenor of liberal

interventionism in statebuilding. Petritsch introduced a

component of “local ownership” to the process, aiming to secure

domestic agreement as to “just” institutions and, potentially, a

social contract.

In March 2002, the OHR brought together the eight major

political parties in Bosnia to negotiate an agreement on

amendments to the Dayton Constitution. The so-called Sarajevo

Agreement, solidified the principles of “symmetrical power

sharing” in both entities and ensured the protection of vital

interests (ICG 2002:12) The Agreement provided for “fair

representation” of the ethnicities in entity institutions

throughout the legislature, executive and judiciary proportionate

to their numbers pre-war, heavily favoring the Serbs in the

Federation and the Croats and Bosniaks in the RS (64). The

agreement was successful in defining the previously ambiguous

vital national interests, and envisioned the creation of another

body in the RS to guard the interests of the Bosniaks and Croats

(64). The Sarajevo Agreement negotiations were tantamount to the

dynamics of negotiating a social contract, and hammering out the

basics of a just post-war polity. In forming a social contract,

elites would ultimately give up elements of territorial

sovereignty in favor of common institutions. Such a proposition

ultimately backfired, with the RS assuming a reactionary

position.

The RS proposed a set of amendments, which would directly

contravene, not only the Sarajevo Agreement, but also the

sovereignty of the Bosnian state. Amendment LXVIII proposed, “The

people shall execute their authorities directly, through a

referendum, and through their elected representatives” (as quoted

in ICG 2002: 12). The right to referendum and secession belied

the very idea of Dayton’s unified state, and precluded a

consensus on a “just state,” in favor of partisan ideals.

19

With consensus on principles of the state lacking, the OHR,

ultimately imposed amendments to both constitutions, largely

based on the Sarajevo Agreement. The OHR’s changes were

extensive, creating a new “Council of Peoples” in the RS,

defining the terms of the “vital interest” veto, and extending

the two scripts and languages present in Bosnia to both Entities.

It also changed the composition of the governments and public

institutions of both entities to reflect the three “constituent

peoples” and “others” according to their proportions in the 1991

census (Belloni 2007: 66). Aiming to create symmetrical

institutions, the OHR, perhaps unintentionally, produced the most

significant failing of the implementation. The equality of the

ethnic groups in each branch of government multiplied the ethnic

veto at all levels of government from the entity to the local

cantonal and municipal levels. This entrenchment of difference at

all levels of government would severely undermine the chances of

consensus on a single, “just” political dispensation, and would

further obstructionist agendas.

Ultimately, the imposition of the measure, although based on

the Sarajevo Agreement, did not amount to a universally accepted

compact, and multiplied the divisions within society. Insofar as

the agreement was able to bring together the eight main parties,

however, the Sarajevo measure was the first significant attempt

to gain local legitimacy. Perhaps most importantly the, albeit

temporary, ability to muster support from the RS prior to the

introduction of the amendments, displayed some political will to

achieve consensus for “just” governing principles in the future.

4.4 The Social Contract

Elite resistance to the decision stood in stark contrast to

popular opinion of the Court’s ruling. In examining popular

response to the decision and measuring a broad-based consent, the

decision had the potential to translate into a locally

legitimated contract. Despite seemingly contentious provisions,

the decision met with little resistance from the public. Tacit

consent for the decision by all three “constituent peoples”

suggests that the Court’s action may have been an, albeit weakly,

legitimated action. Although there is no reason to suggest that

the Bosnian people believed in the creation of a liberal, multi-

ethnic state, two-thirds of Serbs supported the notion of some

form of equality of the “constituent peoples” throughout the

territory of Bosnia while the Croats eventually warmed to the

decision (68). Bosniaks, supporting a civic state likewise

endorsed the decision. Had the reform efforts centered upon

popular consent rather than elite action, broad-based agreement

on new institutions may have been possible.

As the power to contract fell to elites, however, a social

contract failed to materialize. The practical effect of the

decision in the political realm was more symbolic than

revolutionary. The OHR-mandated Croat and Bosniak representatives

in the RS were most often drawn from the ranks of the Serb

nationalist parties, while the Federation’s required Serb

representatives were seen as ‘docile’ and posing little

resistance to the “pre-established” Bosniak-Croat balance of

power (ICG 2003, as quoted in Belloni 2007: 70). Further

resistance to the decision in the form of nationalists’ victories

in the October 2002 elections effectively belied the integrative

20

bent of the Court’s decision. Consensus remained elusive so long

as elites were at the helm of negotiations for just institutions.

A further obstacle to the lack of consensus on just

institutions was the dissonance among external actors in their

theorizing and implementation of the agreement. While the Court

clearly displayed a preference for an integrated polity, the

OHR’s decision ultimately implemented the opposite. With the

multiplication of veto rights and ethnic representation

throughout the territories, ethnicity was still regarded as the

primary mode of political identification. With the further

institutionalization of ethnic difference, the liberal view of a

social contract was effectively muted, and the gap between the

liberal vision and external abilities to implement a “liberal

social contract” was exposed.

In spite of the failures of the agreement, the decision had

three notable successes: the extension of principles of equality,

the encouragement of refugee return, and the facilitation of

debate amongst parties. In extending “constituent people” status

across the territories, the decision fostered the conditions for

a future social contract with commonly held principles of

equality and justice extended across the territory of Bosnia. The

decision also encouraged the return of refugees to their former

homes, eliminating the discrimination in political institutions

by majority ethnic groups. The implementation of the agreement

was also notable in the degree of cooperation and dialogue that

was fostered amongst the former warring parties. The

constitutional commissions and subsequent debates in the period

between January and March 2002, “produced…more inter-party and

inter-entity talks than post-war Bosnia had ever seen” (ICG 2002:

27). While political elites led to the failure of a “new” social

contract, the willingness of the parties to engage initially, and

the tacit agreement of the public, proved hopeful auguries.

This chapter argues that while the process allowed for a

significant amount of dialogue and laid the normative foundation

for a future social contract, the dissent of the RS and the

imposition of the decision suggests that the reform measure did

not amount to a social contract. The Constituent Peoples case and

its subsequent implementation speaks to the central thesis, in

that the dissonance between liberal international norms and local

stances, effectively foiled attempts to secure a single vision

for a just post-war society. The following chapter will build on

the argument that competing norms both within and amongst groups of

actors have ultimately failed to produce a consensus to reform

political institutions to reflect a “just” dispensation.

5. Second Attempt to Define A Social Contract: The April Package

This chapter examines the April Package of Amendments to

reform the Dayton Constitution and the accordant negotiation

process (2005-2006). It draws on the argumentation in the

previous chapter, which established that competing local and

international attempts, both within and between groups of actors,

to reform the constitution have failed to produce a domestic

consensus. This chapter will examine both the divergent

international and local normative influences on the April

constitutional reform attempt. It will subsequently provide an

analysis of the failure of the package to translate into a new,

legitimated social contract.

5.1 The April Package of Amendments

The April package was the first attempt to amend Dayton

explicitly, rather than the subsidiary entity constitutions. The

initiative effectively called into question the inviolability and

legitimacy of the original compromise. The events of the April

Package were akin to a desire to form a “legitimate” social

contract, in which the very fundaments of the state were now

under discussion. “Pushed” by the growing frustration with non-

functioning institutions, and “pulled” by the promise of EU

integration, it was widely acknowledged that the current Dayton

structure was a barrier to both NATO and EU accession

(Hitchner 2006:127). The necessary reforms would require a

degree of liberalization of Bosnia’s institutions and the

generation of consensus for externally determined “European”

norms of a just society.

5.2 International Vision of the State

The Council of Europe’s Venice Commission report, issued in

2005, functioned as the normative foundation for the reform of

Dayton in the April Package. The reform negotiations sought to

achieve “consensus” on those aspects of the constitution, which

did not comply with the Commission’s report, namely human rights

and functionality standards (Hitchner 2006: 133). The Venice

Commission recommendations included: streamlining Bosnia’s

institutions to facilitate EU accession requirements, cutting

heavy administrative costs, and addressing human rights concerns

22

21

involving the exclusion of “others” from the upper house of the

state legislature and the presidency (Sebastian 2009: 342). The

proposals of the Venice Commission sought to lay the foundation

for a “new,” more inclusive social contract, which promoted the

liberal social contract’s principles of human rights and

impartial, strong central institutions.

Following the Venice Commission’s report, the negotiations

to the reform the constitution began in earnest, with the US at

the helm. The US entered the negotiations with a seemingly clear

vision of what just, liberal political institutions would look

like, beginning with a strengthened state and stronger human

rights provisions. Led by former Deputy OHR Donald Hays and

Professor Bruce Hitchner of the Dayton Peace Accords Project NGO,

a “working group” comprised of the key political parties in the

government agreed to a set of talking points for reform (Hitchner

2006: 128). The significance of this initial step was profound in

view of negotiating a legitimate contract, and generating

consensus on principles of a just political dispensation. As

Sebastian notes, “For the first time since the end of the war all

parties across the ethnic and political spectrum decided

voluntarily to participate actively in amending the Dayton

constitution with a goal to strengthening state-level

institutions” (2009:343). The issues of human rights violations,

increased state-level competencies and the make-up and powers of

the legislature, executive and council of ministers were

addressed in a series of eight meetings from April to October

2005 (343). The US would subsequently foster an agreement amongst

parties in March 2006. The US and the Venice Commission’s desire

to move towards a strengthened state and more liberal contract,

however, was ultimately foiled by the internal divisions within

the European Union.

Despite the potential for EU influence, the Union failed to

incentivize and uniformly support the reform process. The EU’s

divided stance suggested that the formation of a liberal social

contract was not a universally-held priority. Although

Enlargement Commissioner Olli Rehn and the Head of the

Commission’s Bureau for the Western Balkans Reinhardt Priebe

openly emphasized the importance of the reform process, the High

Representative of the EU’s Common Foreign and Security Policy,

Javier Solana disagreed. As a result, the implementation of a

liberal contract through constitutional reforms would not be a

condition of EU accession. The Union’s stance belied the

reputation of the EU as a singular liberal actor and “resulted in

an image of a divided ambivalent Europe” (346). Without the

Union’s support for a particular vision of a just state, the idea

of a liberal “social contract” lost credibility. With the failure

of the constellation of international actors to provide a

consistent normative framework for the reform of the social

contract, the import of a locally driven process was greatly

increased.

5.3 “Local Ownership” and Competing Visions of the State

The April Package negotiations were significant in that they

“marked a clear shift in the relations between domestic and

external actors from the previous reform processes” (Sebastian

2007: 5). Domestic actors led the process to implement the

23

Commission’s findings, rather than being marshaled by the OHR, as

was the case in the Constituent People’s reform process. Donald

Hays, Former Deputy OHR, and Professor Bruce Hitchner of the

Dayton Peace Accords Project, acted as a “secretariat” rather

than piloting normative and functional changes to the Dayton

structure (5). Serb politician Mladen Ivanic noted, “The best

value of this process is that we did this, we did it our own way”

(5). In fostering domestic ownership, the negotiations had

greater potential to achieve a domestic consensus, and to arrive

at a locally-legitimated contract.

The initial “unofficial” closed-door meetings hosted by NGO

actors were marked by a great degree of cooperation and

willingness by the parties. Agreement proved possible on the

existence of the state, the fundamental requirement of a

contract. The Serb parties, the most resistant of the three

“constituent peoples,” were willing to “marry the future of

Republika Srpska with that of Bosnia” provided that the RS entity

was preserved (Hitchner 2006: 129). Eventually, however, local

ownership of the process proved to be a double-edged sword.

With the involvement of high-profile party leaders in

subsequent months, an element of “zero-sum” politics entered into

the negotiations (Sebastian 2009: 343). The process witnessed a

reversion to entrenched ideological positions, and “exposed the

high level of interethnic distrust, which had a deep impact in

how parties perceived their interests, other groups’ interests

and how they formulated a political strategy within the

bargaining framework” (343). Such interests again exposed

different views of a just dispensation of the state. Bosniaks

argued for a central state. Serbs fought to preserve the semi-

sovereign Republika Srpska, and Croats sought to carve out

increasing influence within state structures. The parties had

effectively failed to implement the more unified version of the

polity envisioned by the Venice Commission.

When the US officially “took over” the process in December

2005, the “closed door” aspect of the negotiations ultimately

fostered agreement. It effectively shielded politicians from

partisan scrutiny. By March 2006, an agreement was reached on the

need to reform Bosnia’s institutions; yet, the particulars

remained very much in contention. Hitchner notes, that the

composition of the Presidency and its capacities, as well as the

election and competencies of the House of Peoples remained in

dispute (2006: 132). Perhaps the key area of contention was the

continued disagreement on the strengthening of the state; parties

disagreed over which competences would be transferred to the

state.

An impartial and strong state, a key tenant of the liberal

social contract, was continually challenged by the local elites’

desire to preserve the territorially-determined systems of

justice of the entity structure. The package of amendments was

further reflective of the complete lack of a social contract, in

that the powers of the two ethnically composed bodies, the

Presidency and House of Peoples, remained issues of dispute. In

guarding the bodies with the ethnic veto, the parties displayed

an unwillingness to negotiate a more liberal social contract. The

elites preferred to secure a system of differentiated justice for

24

each “constituent people” rather than a more inclusive state with

common “just” institutions.

Despite the nominal progress made during the US-phase of

negotiation, in which general areas for reform were agreed upon,

when it came time to debate the proposed amendments publically,

the political landscape shifted dramatically. With general

elections looming in October of 2006, divisions within Bosniak

and Croat parties emerged. In response to the partisan pressure,

the Croat deputies in the House of Representatives formed an

anti-reform “caucus” (Sebastian 2009:346). Similar divisions

occurred amongst the Bosniak parties. While Tihic and the Party

for Democratic Action (SDA) supported reforms, the opposing

Bosniak Party for Bosnia and Herzegovina (SBiH) and leader

Halilovic, opted out of the process. The SBiH, along with the

leftist Social Democratic Union (SDU) and the Bosnian Party

(BOSS) formed an anti-reformist coalition claiming, along with

the Croatian Democratic Union (HDZ), that the reformist package

was “cosmetic” since it failed to go far enough in eliminating

the entities and entity voting procedures (347).

While incremental progress was achieved towards a social

contract in closed-door meetings, in practice, the House of

Representatives must ratify any proposed amendments. The

vulnerability of partisan actors to politics and the electoral

cycle trumped their ability to arrive at a nominal agreement. The

failure to adopt the amendments fundamentally questioned the

political elites as negotiators of a social contract, and

viability of “local ownership” to steer the current process.

5.4 The Social Contract

The package of amendments presented to Parliament in April

failed to gain the necessary two-thirds majority needed in the

House of Representatives, falling just two votes short. The

narrow margin of failure proves that although ethnic posturing

resurfaced, significant progress could be achieved. The original

agreement in March was evidence that, in the absence of zero-sum

politicking, compromise is possible. The skeleton agreement on

the areas of reform, with further private negotiations, may be

able to achieve a more substantive consensus on the form the

state should take in the future. In order for this to occur,

lessons must be drawn from the April Package’s failure.

A social contract failed to take hold in April for several

reasons, not least amongst them was the lack of significant

liberal, normative force driving the negotiations. With the US

acting as a “secretariat” and the EU divided and failing to

provide incentive in the form of conditionality, the liberal

social contract faltered. The contract, which was outlined so

clearly in the Constituent People’s case, and which was seemingly

required for Euro-Atlantic integration, gave way to a dissonant

epistemic community, and an unclear vision of what constituted

just political institutions. With local actors unable to come to

agreement, external actors could have introduced a measure of

stability and uniform incentive to abide by the recommendations

of the Venice Commission. Without EU support, the international

community was unable to override the conditions of partisan

politics, and only served to add another level of confusion to an

already divided polity.

25

Secondly, the timing of the general elections in October

2006, led to the resurfacing of zero-sum politics and the

retrenchment of pre-war positions. What was agreed to behind

closed doors, could not be carried to the public in an election

year, with each party seeking to carve out a niche platform.

Sebastian notes,

Opposition parties were starting to build their political

platforms for the elections around the issue of

constitutional reform. Despite the clear signs indicating

that the electoral campaign was already under way in early

2006, the USA decided to continue the negotiations,

regardless of the dissenting voices within the international

community that advocated for a resumption of the talks after

the elections in October 2006. (Sebastian 2009: 350)

Had the talks resumed following the elections, there is a

possibility that the closed-door negotiations could have been

more deftly translated to the public sphere. Without the pressure

of electoral politics, the dynamics within the House of

Representatives may have fostered an environment for dialogue,

and may have been more conducive to reaching a consensus, and to

moving closer to the Venice Commission’s recommendations.

Thirdly, the process proved to be highly exclusive, and

failed to generate momentum for the reforms on the ground. As

Hitchner noted, beginning in 2004, “There ha[d] been a growing

consensus that the time ha[d] come to address the problem of the

Dayton constitution” (Hitchner 2006:127). Such public reformism

may have provided the impetus to incorporate the liberal measures

26

required for European integration. While the public had been

informed during the informal negotiations in October and November

of 2005, following the US’ “official negotiations” the process

retreated behind closed doors. The resulting public information

campaign was weak, and civil society had little time to form an

opinion about the package apart from partisan platforms. Public

involvement was arguably a missed opportunity. Open debate could

have been key in a more thorough discussion about the just

political dispensation of the state, at the root of a

“legitimate” social contract.

This chapter demonstrated that although the April Package

stimulated a great degree of high-level discussion and fostered

preliminary agreement, the process also displayed the

vulnerability of elites to political pressure. The process

further demonstrated the danger inherent in a divided

international stance in which a great deal was demanded by the

Venice Commission, without consensus amongst external actors on

how to translate the Commission’s findings. The April Package

evidenced a widening gap between the expectations of the

(divided) international community, and what was realistically

achievable by local actors. This speaks to the central thesis

that neither local nor international efforts have been successful

at attaining consensus in Bosnia. The following chapter serves to

highlight the increasing dissonance between the international and

the local, in the wake of an increasingly liberal turn by the

European Court of Human Rights.

6. Third Attempt to Define a Social Contract: The Finci Case

The Finci case was the first overtly international attempt

to define the social contract in post-Dayton Bosnia. The case

ultimately conferred the power to determine the norms of a just

society on an outside body, the European Court of Human Rights.

For its part, the Court was forced to determine the conformity of

a post-conflict consociation with the European Convention on

Human Rights (ECHR), negotiating the fine line between the need

for stability and the Court’s perception of discrimination and

injustice in Bosnia. This chapter will explain the details of the

case, followed by the internationally-rendered decision and the

local response. It will conclude that divisions amongst the both

the European community and local actors, once again, rendered the

conclusion of a legitimate contract unattainable.

6.1 The Case

In 2006, Mr. Sejdic and Mr. Finci, of Roma and Jewish

descent respectively, filed a petition to the ECtHR claiming that

they were prohibited from running for certain political offices

on the sole basis of their ethnicities. Bosnia’s political system

stipulates that only “constituent peoples” are eligible to run

for the upper house of parliament (The House of Peoples) and the

Presidency. Sejdic and Finci (the plaintiffs) argued that the

Bosnian Constitution, in its current form constituted

discrimination, in that it “treat[ed] persons in similar

situations differently, without an objective and reasonable

justification” (McCrudden and O’Leary 2013:94).

27

The plaintiffs argued that Bosnia’s ethnically-based

government violated Article 14 European Convention on Human

Rights, which prohibits discrimination, as well as Article 3,

Protocol 1 pertaining to fair election procedures in legislative

bodies. The case also invoked the recently enacted Protocol 12, a

broad anti-discrimination measure. The court case fundamentally

challenged the post-war dispensation and the privileging of

ethnic groups at the expense of those who choose not to identify,

or who identify as minorities. The case went further than the

Constituent Peoples case, in arguing for a liberalization of the

current power-sharing regime to extend to “others.”

In order to prove that Bosnia’s constitution was

discriminatory, the plaintiffs argued that such discrimination,

violated the Court’s “objective and reasonable” test, in which

discrimination is permitted only if there is “reasonable”

justification (Tran 2011:4). In the face of the Court’s ill-

defined “reasonability” requirements, the prosecution had to

argue that Bosnia’s discrimination against non-“constituent

peoples,” or “others” no longer served a purpose, and was

therefore “unreasonable.” In December of 2009, the Court reached

its decision, paving the way for an historic ruling on Dayton’s

post-war dispensation.

6.2 International Vision of the State: The Decision

Perhaps the most significant finding was the Court’s

decision that Bosnia’s discrimination no longer could be

considered “objective and reasonable.” While precedent in State

courts refrained from “unwinding” ethnic consociations, as in

28

Belgium, Northern Ireland and South Tyrol, the ECtHR assumed a

more activist stance towards Bosnia (McRudden and O’Leary

2013:45). The Court argued,

When the impugned constitutional provisions were put in place

a very fragile cease-fire was in effect on the ground. The

provisions were designed to end a brutal conflict marked by

genocide and ‘ethnic cleansing.’ The nature of the conflict

was such that the approval of the ‘constituent peoples’

(namely, the Bosniaks, Croats and Serbs) was necessary to

ensure peace. This could explain, without necessarily

justifying, the absence of representatives of the other

communities (such as local Roma and Jewish communities) at the

peace negotiations and the participants’ preoccupation with

effective equality between the “constituent peoples” in the

post-conflict society. (as quoted in Wakely 2010: 238)

While the provisions were “reasonable” during the immediate

post conflict era, sufficient time had passed, and sufficient

“progress” had been attained to move beyond this arrangement. The

Court found that because Bosnia had joined NATO’s Partnership for

Peace in 2006, ratified the Stabilization and Association

Agreement with the EU in 2008, and had been elected as a non-

permanent member of the United Nations Security Council in 2009,

that Bosnia had developed beyond post-war conditions of

instability (Tran 2011: 5).

Although the Court showed a measure of activism in its

willingness to declare Bosnia’s constitution in violation of the

ECHR, the Court remained cautious in its recommendations, mindful

of the fragility of the post-war order. The Court found that

there were measures to reform Bosnia’s constitution, which did

not mandate a complete overhaul of the power-sharing system: the

“time was not ripe for BiH to adopt a system reflecting majority

rule” (Tran 2011:5). The Court instead supported suggestions for

structural reform put forth by the Venice Commission in 2005,

including replacing the three-member Presidency with a single

president and transferring executive powers to the Council of

Ministers, in which all “constituent peoples”, and others are

represented (5). In terms of legislative reforms, the Venice

Commission recommended abolishing the upper house, transferring

the “veto” power to the lower chamber, preserving only the House

of Representatives, which does not require ascriptive ethnic

criteria.

A social contract was endorsed by the Court, which did not

reflect strictly liberal principles. It instead reflected a

degree of hybridity that embraced, rather than ignored,

difference. The social contract envisioned by the Venice

Commission, was a compromise between a liberal social contract

based upon individual rights and impartial central institutions

and a “divided” social contract in which difference was

acknowledged. The liberal contract saw victories in this proposal

with its abolition of the ethnically based House of Peoples, and

the creation of a more inclusive, and strengthened executive.

Conversely, with the preservation of the veto power, difference

was recognized. With the lack of agreement as to the existence of

the state, however, the preservation of the veto would arguably

deter the formation of a contract, hybrid or otherwise.

29

While the Court had endorsed the moderate recommendations of

the Venice Commission put forth in 2005, the latter body

gradually adopted a more activist stance in 2008, encouraging

non-ethnic identification. The Commission took non-constituent

“others” to be the solution to the Bosnian stalemate, arguing

that if a majority “opted-out,” the system would fundamentally

improve (McCrudden and O’Leary 2013: 76). The recommendations

suggested “others” could serve as the basis for a civic identity

and a liberal-individualist order. The Commission believed that

there had been a “significant change in mentality” in Bosnia,

despite the failures of past reform attempts, and that the

Constitution should be reformed to “encourage” non-ethnic

identification (77).

In December 2010, seemingly agreeing with the ECtHR and the

Commission, the EU made compliance with the decision and

constitutional reform a condition for EU accession. In March of

2012, however, following two years of failed attempts to

implement the decision, the EU modified its original stance. In

contravention of the increasingly liberal Court and Venice

Commission, the EU relaxed its standards for implementation of

the decision. The Union determined that a slight change in the

House of Peoples’ eligibility requirements would represent a

sufficiently “credible effort” to bring the Stabilization and

Association Agreement into force (ICG 2012:8).

The inconsistencies in Europe’s approach, from the

“activist” decision and Venice Commission’s civic proposal, to

the weak conditionality requirements of the EU, projected a

simultaneously liberal and unstable vision of the future of

Bosnia. While the European Court was able to declare the current

system “unjust,” the international community was collectively

unable to produce an alternate vision of a “just” post-conflict

social contract.

6.3 “Local Ownership” and Competing Visions of the State

Due to the past failure of “public” reform attempts, the

process of reforming Dayton after Finci has been largely shielded

from outside scrutiny. In an interview with the author, Hitchner,

drawing on the lessons of the early phase of the April Package,

remarked that recent attempts have been kept “close to the vest”

(Hitchner). Despite the shrouded character of recent efforts,

there are some public details available surrounding earlier

reform attempts. Such attempts have again been characterized by

competing visions of the state among political elites.

In the summer and fall of 2010, the Council of Ministers

established a working group on constitutional reform. Although

the group met seven times, the Council failed to reach an

agreement. In September of 2011, a series of seven summit

meetings amongst the major party leaders were held. The meetings

made some progress, as two principles were agreed upon: every

citizen should be able to run for the executive and the upper

house, and the winners must have “ethnic legitimacy,” or be

“true” representatives of their ethnic communities (ICG 2012: 9).

Although the principles had been agreed to, the implementation

and form that such basic principles would take remained

ambiguous. Indeed, the two principles seemed to reflect very

different versions of the social contract. The first allowed a

30

more “liberal” and universalist interpretation, permitting all

citizens to run for office, while the latter principle of “ethnic

legitimacy” rendered such universalism subordinate to ethnic

belonging, preserving difference. Attempts to balance liberalism

with ethno-nationalism, again, failed in elite negotiations.

Subsequently, in October 2011, the Parliamentary Assembly

formed a joint committee on the implementation of the judgment.

The committee was marked by significant disparities amongst

political players. A parliamentarian involved in the process

noted, “There is a very wide range of different proposals, in

which … everyone is trying to resolve some problem they have.

Everyone who proposes has his [own] vision, which is different

from the others, and now, you have thirteen political parties [in

the parliament], in some cases with diametrically opposed

positions” (ICG 2012: 9). With each party now proffering a

different version of a just state, possibility of a social

contract was rendered significantly less likely.

In May of 2012, Bosniak and Croat parties, in a proposal put

to the parliamentary assembly, attempted a “final push.” The RS

again displayed its unwillingness to acquiesce to the mere

existence of a unitary state, condemning attempts to reach a

contract to failure. In late May 2012, as the State and Federal

governments “toppled,” talks came to a halt (9). Subsequent

reform attempts have not made progress on the implementation of

the agreement.

6.4 The Social Contract

31

With the ECtHR as an arbiter of “justice,” the social

contract, and the terms of post-war justice were effectively

alienated from the people. Unlike the Constituent Peoples Case in

which the Bosniak judges assented to the decision, domestic

institutions played no part in the European Court’s finding. As

the Dayton Agreement was imposed without ratification, and now

judged “discriminatory” by an international body, the process of

both establishing and reforming a just society eluded “local

ownership.” The critical process of negotiating a social contract,

and reforming its terms was now a more complicated endeavor, with

the need to reconcile institutions to external norms of justice,

rather than formulating the norms domestically.

Two principle reasons led to the failure of the political

elites to agree to ECtHR’s interpretation of justice: the

inconsistencies in international norms, and the divisions amongst

local parties. In the first instance, the international standards

were far more demanding than in previous cases of consociation,

rendering the Court’s liberalism a moving target. In allowing

self-identification as Bosniak, Croat, Serb, or “Other,” and in

allowing a citizen to change this identification in the future,

Bosnia’s constitution is more liberal than Belgium, South Tyrol,

and Cyprus (ESI 2013:2). While the Court found Bosnia’s

constitution discriminatory, other European nations were

permitted to preserve such provisions.

The Court was distinctly more liberal-individualist in this

case than in cases prior, as it was the first to factor in the

expanded anti-discrimination standards in Protocol 12, which had

entered into force only four years prior to the Finci decision.

Currently only eight of twenty-eight EU member states have

ratified this protocol (2). The dissonance between what is

ideally expected in Bosnia’s post-war social contract, and the

standards it applies to existing members, markedly reduces the

force of EU as a normative actor in the contracting process, and

confuses the standard of a “liberal social contract.” As many

existing European regimes have seemingly hybrid contracts,

balancing liberal and sectarian visions of justice, a difference-

based Bosnian regime would not seem to violate existing standards

of a “European” social contract.

The second factor contributing to the failure to consent to

a new (internationally mediated) social contract was elite

intransigence amongst the parties, notably within the RS. Parties

disagreed over how the system should be structured. Either power

sharing could be “multiplied” to include “others” in the

Presidency and House of Peoples, or the consociation could be

“unwound” completely, with neither option appealing to a majority

of parties. The debate again faced elites with the task of

implementing a more liberal social contract, and reconciling this

vision to a partisan reality. With the increasing dissonance of

liberal and local views, the political will of Bosnian elites to

comply with international requirements faded rapidly.

Given limited political will, the European Union, in

mandating the implementation of the Finci decision, had little

reason to expect elite cooperation and a positive outcome. Elite

disagreement has traditionally led to the failure to comply with

European mandates. The Council of Europe had required reforms

after Bosnia joined the council in 2002. Gridlocked institutions

saw that such reforms were never adopted. The possibility that

politicians would comply with the Council’s judicial arm, the

ECtHR some seven years later, was even more remote. The veteran

stalemate between elite politicians and the international

community has only deepened with time, reducing the likelihood of

achieving a social contract with the present actors.

This chapter demonstrated that the failure of the social

contract, as in the Constituent Peoples case and the April

Package, stemmed from dissonant visions of just institutions

amongst the international community and local actors. Shifting

European standards, as well as entrenched partisan positions,

rendered a common view of justice in post-war Bosnia an

impossibility. The fatigue of the local elites in negotiating

with increasingly demanding European standards was readily

apparent, as was the uncertainty of the European community in the

substance of their demands. This chapter speaks to the central

thesis in that not only is a social contract not in effect, the

likelihood that Bosnians will achieve consensus in the current

stalemated climate is more remote. The subsequent chapter

suggests a “solution” to elite intransigence and the conflicting

views of external actors, suggesting that the failure of reform

attempts warrants a rethinking of the current approach to

constitutional reform, as well a recasting of the negotiating

parties.

7. The “Post-Liberal” Contract: Beyond the Stalemate

The failure of constitutional reform efforts to secure a

social contract speaks to the urgent need for a paradigm shift in

32

statebuilding. Arguably both liberal international demands for

the reform of the state and continued reliance upon the elite to

represent domestic interests have produced an intractable

stalemate. This chapter will propose an alternate social

contract, in which the roles of both the international and the

local are recast. The local is imagined as civil society as a

whole, rather solely elite politicians. Such a contract also

challenges the role of the “international.” As the international

community was unable to formulate a single vision for a liberal

social contract in past reform efforts, this analysis will loosen

the tenets of liberal orthodoxy. In recasting actors and adopting

more flexible norms, consent to a contract is more likely to take

hold.

This chapter first will establish the need to reform the

contemporary contracting approach as measured in current public

opinion in Bosnia. It will subsequently highlight last February’s

protests and draw suggestions from that mode of unrest,

highlighting the dissonance of elite approaches with the public’s

reality. The chapter will conclude that a more authentic

“consent” and contract would be a hybrid agreement in which less

staunch international players would engage with all sectors of

society, both elite and local.

7.1 Failure of the Social Contract: The Fallout, Protests and a

New Way Forward

The fallout from the failure to reform government

institutions has been significant. Locked in a stalemate between

dissonant liberal and elite visions of the state, the local,

33

“everyday” needs of a functioning state have been neglected. A

2013 Prism survey, “Constitutional Reform in Bosnia Herzegovina:

Engaging Civil Society,” found that across the country (in both

the RS and the Federation), nine of ten respondents were in favor

of constitutional reform. Issues of corruption and functionality

were stated as the primary consequences of the status quo, with

very little prospect of change (Prism 2013: 1). The poll also

revealed that “the political system is dysfunctional and that

this dysfunction is interest driven, as the interests of the parties

(not citizens) are paramount” (1). The poll recognized the

significant disconnect between the political elites negotiating

the social contract and “the people,” writ large, feeling the

effects of its failure.

In early February of 2014, in the wake of failed elite

reform and government stagnation, protests broke out in Tuzla and

spread throughout the Federation. Towns from Sarajevo to Travnik

and Trebinje found a means to express frustration with the status

quo. The subsequent assertion of popular will in citizen public

forums, or “plenums,” prompted the resignation of governments in

Bihac and Tuzla (ICG 2014: 4). The protests and plenums

demonstrated the force of collective action, and suggested the

beginnings of a “homegrown” social contract, in which the will of

the people is expressed directly.

Such protests and plenums may serve as important milestones

for reform efforts going forward. Indeed, resistance is the key

to the emergence of what Richmond (2012) terms the “post-liberal”

peace, in which the “local” attempts to buck the authority of the

international-elite peace and to reclaim a measure of legitimacy

in the negotiation of their country’s future. Richmond attributes

uprisings, like those in Bosnia, to the process of establishing

this locally-legitimate contract averring,

The new social contract that is emerging as a reaction to

neoliberal versions of peacebuilding represents a

reassertion of the local and an attempt to connect [to]

peacebuilding more decisively …the local has thereby begun

to de-romanticize itself and its international ‘others’ in

order to better address its needs and rights in a contextual

manner by developing strategies different form the

mainstream peacebuilding approaches. (Richmond 2012: 102)

Given popular pressure to reform Bosnian institutions, the

international community would do well to move away from such

“mainstream approaches” and shift the emphasis of negotiations

from elite concerns to engaging with “contextual,” issues and

endorsing local ownership of the process. A more authentic

peacebuilding “strategy,” Marko (2013) suggests, would be to form

broad-based constitutional reform commissions. Such commissions

could engage not only international actors and elite opinions,

but could also secure substantive local input into the formation

of “just” institutions. In including those driven to protest in

February, (i.e., religious leaders, community activists, students

and veterans), constitutional commissions would secure the

legitimacy absent from elite-level reform attempts.

In addition to re-imagining the local as a broad-based,

“contextual” actor, the international should also be recast as

other than strictly liberal. In loosening liberal orthodoxy, the

34

form of the social contract becomes more discursive and less

clear, but also more flexible. The “post-liberal” social contract

keeps the options for the post-war political settlement open.

Noting that many community actors will have visions of the state

contrary to the contemporary liberal peace, the international

community would likely have to accept less a civic state, than a

hybridized contract. Such a contract would, as in the cases of

inter alia, Cyprus and Belgium, acknowledge some degree of ethnic

differentiation. Ostensibly “illiberal” elements, such as the

ethnic veto, may be preserved in some form, as in the case of

Belgium’s “alarm bell” procedure. The post-Dayton reality

suggests that post-conflict societies may benefit from this

loosening of the normative monopoly that the liberal state holds

in current statebuilding efforts.

This chapter argued that the elite social contract, in

excluding civil society from negotiations, has largely failed.

This analysis argues that recent protests and willingness to

reform the constitution points to a new way forward, in which a

less-staunch international community can engage with a more

discursive, and open civil society rather than with veteran

politicians. This argument proposed a “solution” to the thesis

that international and local efforts have failed, and suggests

that a more “authentic” contract may be achieved with the

inclusion of a broad range of local actors and a loosening of the

tenets of the liberal social contract.

8. Conclusion

This work, in its analysis of the Bosnian constitutional

reform process, underscored that the reality of the “re-

emergence” of the social contract is far more complicated in

post-conflict states than in the theoretical exercises of Locke

and Hobbes. This thesis argued that conflicting international and

local expectations prevented a domestic consensus on the

principles of a just state, or contract. This analysis found that

contemporary statebuilding has added international norms and new

parties to a traditionally citizen-based concept. In adding an

extra normative layer, the process of securing consent for the

mere existence of the state, and its “just” institutions has

become more a dialectic amongst conflicting international and

local norms than an existing formula. In using the social

contract as a heuristic, this paper has examined the true

dynamics behind the social contract, and the continual bargaining

and disagreement inherent in its formation.

This work first explored the Dayton Agreement and its

failure as a social contract, with its institutionalization of

both international presence and divergent ethno-national views of

a just state. This analysis then proceeded to evaluate the

Constituent Peoples case, the April Package, and the Finci case,

examining if these major constitutional reform efforts were able

to secure consent for a common political dispensation. The

failure of each initiative proved an object lesson in the

complexity of establishing a locally legitimate post-war

contract.

The Constituent Peoples case highlighted the difficulty of

applying the liberal social contract to post-conflict societies.

35

The contract, which envisioned a multinational state and

individual rights, was vastly dissonant with the realities on the

ground. The decision exposed that the international community was

limited in what it could achieve. The resultant implementation of

the Constituent Peoples decision was paradoxical, in that it

actually served to multiply the divisions within society and

within the international community, rather than produce

agreement. The Constituent Peoples case, however, also proved

that while the liberal social contract may be an illusive goal,

some consensus amongst elites was possible. The Sarajevo

Agreement signaled the willingness of parties to challenge the

post-war status quo. Although the RS’ amendment procedure

eventually weakened the force of such negotiations, the initial

dialogue remains a significant first step.

The April Package, in turn, served as a demonstration of the

“disorganized” nature of external actors, and the inability of

political elites to function as negotiators of a contract. This

reform attempt first exposed that rather than forming a single

epistemic community, the external actors could not agree on the

priority or necessity of creating a “liberal social contract.”

Only the United States, with its leadership of the process,

seemed to uphold the desire to negotiate a strengthened central

state. The April Package negotiations subsequently revealed the

inadequacy of political elites as negotiators of a foundational

compact. The election cycle proved that while preliminary

agreement might be possible in private, such consensus could not

withstand the pressures of partisan scrutiny. A common consensus

36

on principles of justice proved a liability, rather than an

asset, in the course of Bosnian electoral politics.

The final case study, the Finci decision, also functioned as

evidence of the inadequacy of the current formula for negotiating

a social contract. External and local actors held increasingly

dissonant positions. External actors proved more demanding, while

local elites demonstrated fatigue and considerably less political

will. The ECtHR’s “activist” decision proved that post-conflict

states are not immune from the normative reach of the liberal

social contract and its anti-discrimination provisions. The

decision was more aggressive in promoting effective equality than

in other European examples of consociational societies, such as

Belgium and Cyprus. The subsequent decision of the European Union

to adopt the implementation of the decision as a condition for

accession, similarly displayed a more demanding liberalism than

in past cases. This desire for a liberal social contract starkly

contrasted with the minimal efforts of local elites to implement

the decision. This suggests that with the repeated failure of

external attempts to enforce a liberal social contract, the

valence of international norms and the will of local actors are

considerably weakened.

Each case study displayed a similar failing, with

exclusionary processes and partisan actors. February’s protests

underscored that such a formula is unsustainable, and that the

core of the just state must derive from the consent of a broader

sector of “the governed.” This study suggests that such consent

may be incorporated through the introduction of “post-liberal”

contracting approaches, in which liberal orthodoxy is loosened,

and the international community engages with local actors. Hybrid

contracts that incorporate elements of liberalism while

recognizing difference may prove to be the “next generation” of

contracting, and a possible avenue out of the impasse in current

statebuilding methods.

In order to move beyond the UNDP and liberal statebuilding’s

situations of seemingly perpetual fragility, Bosnia could serve

as a proving ground for future post-conflict social contract

theory and practice. Bosnia’s protests could be heeded as a

warning for the status quo formula. If the changing dynamics of a

state are ignored, and closed-door discussions between elites and

international actors continue to be the modality of choice, the

idea of “a just state” will remain an unreachable goal. This

dissertation contends that if the international community and

domestic elites choose to respond to unrest with positive action

and contextual reform, post-conflict social contracts may yet

take hold.

37

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