bosnia report
New Series No. 11/12 August - November 1999
 
Should Dayton be revised?
by Interview with Dr Zoran Pajic

How do you interpret the fact that no peace agreement — at least in this century — has contained a constitution, with the sole exception of the Dayton Peace Agreement which did give B-H also a Constitution?

It's quite true that peace agreements in this century have not contained constitutions for the countries that have emerged as the product of some war. The Versailles Peace Treaty, say, did not contain constitutions for Czechoslovakia, Hungary, Austria or the Kingdom of Serbs, Croats and Slovenes. In that sense, the way in which B–H got its constitution sets a precedent. On the other hand, if I wanted to be absolutely formal about things, I'd have to say that when you want us to discuss the supreme legal document of the state — I've no idea what B–H Constitution you're talking about.

I must admit I don't understand you.

Is the state constitution published in some official document of B-H? Has that constitution been ratified by the B-H Parliamentary Assembly? The answer to both these questions is negative.

Do you mean that B-H does not have a legitimate or a legal constitution?

It is legitimate, but its legality is open to question. For tomorrow or the day after, you see, someone may complain about an infringement of human rights to the Constitutional Court of B-H, invoking the Constitution of B-H. And then the president of the Court, Dr Kasim Begic, may reply to that someone: `Excuse me, but we don't recognize that Constitution, because it isn't anywhere in the official documents.' And nobody could have anything with which to reproach Dr Begic.

Recently you put forward the argument that `the entities have - or very soon will have - played out their historical role'. Does that mean you're for a substantially different organization of B-H from the one agreed at Dayton?

It has been shown in practice - at least in my view - that the entities as administrative units in B-H are not the happiest means of protecting B-H citizens from the domination of other national groups. And that's simply because the entities have no instruments for protecting the interests of nations which find themselves in a minority in a given entity.

You have a fairly critical attitude towards Dayton. Are you for its revision?

I think it's high time we understood the necessity, after four years of Dayton, for discussion to begin about changing this agreement. I see Dayton as an agreement. It's senseless to go on saying: `Dayton is sacrosanct.' When I see that the formula of the three nations in B-H is still preserved today, then I think that even discussion about a third entity is legitimate. For it's impossible to imagine a situation in which a document of this kind will not be changed in the next ten years. I'd like people in B-H to free themselves from the fear of discussing changes to Dayton.

You're for the establishment of a third entity?

No, I'm for the cantonization of B-H. But not in the way in which the Federation of B-H is cantonized.

Would the problem be solved by amending the entity constitutions to guarantee constituent status to all B-H nations?

It would not. The constituent status of nations doesn't represent the totality of the problem. The real problem, you see, lies in the fact that the whole structure of B-H is based on rigidly applied national quotas. Just look at the composition of governmental bodies: they're all constructed according to the so-called tripartite system. So even if all provisions restricting constituent status were erased from the entity constitutions, that wouldn't alter the situation in the parliamentary assembly, council of ministers or presidency of Bosnia-Herzegovina.

These comments are translated from an interview with Dr Zoran Pajic, legal adviser to the International Crisis Group, published in Dnevni Avaz, 5 October 1999

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