BOSNIA AND HERZEGOVINA BETWEEN DAYTON 
AND BRUSSELS
Rudi KOCJANČIČ
1
After numerous appeals for reform from the international 
community and the pro-reform part of the Bosnian-Herzegovinian 
public, in 2006 the Presidency of Bosnia and Herzegovina proposed 
that the Parliamentary Assembly as the constituent assembly 
adopt constitutional amendments in the first stage of constitutional 
reform. By means of these amendments, traditional state 
responsibilities would be transferred to the central State and the 
House of Representatives as the representative body of the Bosnian-
Herzegovinian populace systemically empowered. At the same time, 
the responsibilities of the House of Peoples as the representative 
body of Bosniaks, Croats and Serbs as constituent peoples would 
be limited, the Council of Ministers as the central organ of the 
executive power would be established, and the responsibilities of 
the Presidency of Bosnia and Herzegovina would be limited. All 
these changes would contribute to the more efficient and stable 
operation of Bosnian-Herzegovinian institutions. According to the 
proposed amendments, all matters relating to the European Union 
would be within the exclusive competence of central institutions. 
Despite intense efforts by the international community, the House 
of Representatives was unable to achieve the two-thirds majority 
of votes required for the adoption of the proposed amendments; at 
the same time, key political parties rejected the “Butmir Package 
of Constitutional Amendments” prepared by the representatives of 
the USA and EU in 2009. Thus, especially following the publication 
of the Stabilisation and Association Agreement between the EU 
and Bosnia and Herzegovina in the Official Journal of the European 
Union at the beginning of 2011, the appeals for the adoption of 
constitutional amendments became increasingly topical and visible.     
1 
Rudi Kocjančič, Doctor of Laws (LL.D.), Associate Professor at the Faculty of Administration in 
Ljubljana, Slovenia.
Journal of Comparative Politics
67

Journal of Comparative Politics
68
1 Introduction
Following a decade of experience with the Dayton Constitution as the “law de 
jure” and as “law de facto” , which is sometimes characterized in professional 
circles as a provisional constitution,
2
 the political elites of the international 
community – especially on the basis of the Resolution of the Parliamentary 
Assembly of the Council of Europe on the strengthening of democratic 
institutions in Bosnia and Herzegovina,
3
 the Brussels “consultations” with 
the leaders of Bosnian and Herzegovinian parliamentary parties
4
 and the 
Washington declaration on the modernisation of the Dayton constitution
5
 
– also reached the conclusion that it is not possible to transform Bosnia and 
Herzegovina into a democratic and efficient state without comprehensive 
constitutional reform. After numerous appeals for reform by the international 
as well as the pro-reform part of the Bosnian-Herzegovinian public on the tenth 
anniversary of the Dayton Agreement, at the beginning of 2006 the Presidency 
of Bosnia and Herzegovina proposed that the Parliamentary Assembly – the 
House of Peoples and the House of Representatives – as the constituent 
assembly adopt a constitutional amendment regarding the competencies of the 
institutions of Bosnia and Herzegovina as central State, as well as constitutional 
amendments regarding the Parliamentary Assembly, the Presidency of Bosnia 
and Herzegovina, and the Council of Ministers. The decision-making on the 
adoption of other amendments, especially those regarding human rights and 
fundamental freedoms, was postponed until the second stage of constitutional 
reform.
6
 Despite intense efforts by the international community for the adoption 
of the proposed amendments and the fact that the majority of the parliamentary 
parties had endorsed their adoption by means of a special agreement – following 
the robust intervention of the representatives of the international community in 
the residence of the US Ambassador by means of “elbowing”
7
 – the House of 
2 
 Edin Šarčević, “Verfassungsgebung ‘konstitutives Volk’: Bosnien und Herzegowina zwischen 
Natur-und Rechtszustand, ” in Jahrbuch des Öffentlichen Rechts der Gegenwart, ed. Peter 
Häberle (Tübingen: Mohr Seibeck, 2002), 531 .
3 
 See Council of Europe, Resolution 1384 (2004), Strengthening of democratic institutions in 
Bosnia and Herzegovina, 23 June 2004.
4 
 The Guardian. “Revealed: US plans for Bosnian constitution. ” 11 November 2005; Jutranji list. 
“Lideri BiH danas na tajnom sastanku o promjeni Daytona. ” 11 November 2005; Le Monde. “Du 
sičge de Sarajevo aux acords de Dayton. ” 22 November 2005.
5 
 The New York Times. “U.S. Urges Bosniacs to Revise Constitution. ” 22 November 2005.
6 
 See Amendments to the Constitution of Bosnia and Herzegovina, 2006. Available at www.ohr.
int/ohr-dept/legal/oth-legist/doc/fbih-constitution.doc (June 2011).
7 
 The talks with parliamentary parties’ leaders were conducted by the American ambassador 
Douglas McElhaney, who at the press conference on the occasion of the 20
th
 anniversary 
of the Dayton Agreement stated that he will support the revision of the Dayton constitution 
even by means of “elbowing” . See: Avdo Omeragić, “ Ako BiH želi biti ozbiljna, mora objediniti 
institucije, ” Oslobodjenje. 20 December 2005. Cf.: Dnevni avaz. “Paket ustavnih promjena ide u 
parlamentarnu proceduru. ” 19 March 2006.

Journal of Comparative Politics
69
Representatives in 2006 was unable to achieve the required two-thirds majority 
of those present and voting for their adoption. 
Among the most high-profile initiatives for the revival of work for the preparation 
of constitutional changes was the conclusion of the Prud Agreement towards 
the end of 2008, signed by the leaders of the most prominent political parties in 
Bosnia and Herzegovina. The Agreement established the points of departure for 
the preparation of amendments regarding the harmonisation of the Constitution 
of Bosnia and Herzegovina with the European Convention of Human Rights 
and Fundamental Freedoms, amendments regarding the constitutional 
arrangement of the Council of Ministers of Bosnia and Herzegovina, as well as 
amendments for the adoption of the Law on the Legal Status of State Property 
and the Population Census Law. The leading political parties later abandoned 
this proposal for the agreement due to diverging views on its contents.
8
 At the 
end of 2009, the representatives of the USA and EU jointly organised several 
consultations with the representatives of the key political parties in Bosnia and 
Herzegovina in Butmir near Sarajevo, at which the so-called Butmir Package 
of Constitutional Amendments was prepared, containing mainly the rejected 
proposals for constitutional changes from 2006.
9
 The proposed amendments 
were particularly important because the Stabilisation and Association Agreement 
between the EU and Bosnia and Herzegovina was concluded in 2008; Bosnia 
and Herzegovina also ratified it in the same year, thus legally assuming new 
commitments in the ensuing process of progress towards the European Union.
10
 
However, since the Butmir Package received only the backing of the Bosnian 
Party of Democratic Action, this intervention by the USA and EU also failed.
As the political arena continued to be distinctively polarised even after the 2010 
autumn elections, at which the nationalist parties mostly just regrouped, the 
party oligarchies – despite intense interventions by the international community 
– failed to muster the political will to support the beginning of constitutional 
reform.
Following the publication of the Stabilisation and Association Agreement 
between the European Union and Bosnia and Herzegovina in the Official 
Journal of the European Union at the beginning of 2011, the demands of 
the international community and the majority of the national population for 
8 
 See Oslobodjenje. “Prudski sporazum prvi pozitivan korak. ” 22 November 2008; and Dnevni 
avaz. “Prudski sporazum glavna tema. ” 23 December 2008. 
9 
 See Dnevni avaz. “James Steinberg spašava, butmirski paket‘ . ” 2 December 2008; and 
Oslobodjenje. “Butmirski paket je minimum. ” 3 November 2008.
10 
 Council Regulation (EC) No 594/2008 of 16 June 2008 on certain procedures for applying 
the Stabilisation and Association Agreement between the European Communities and their 
Member States, of the one part, and Bosnia and Herzegovina, of the other part, and for applying 
the Interim Agreement on trade and trade-related matters between the European Community, 
of the one part, and Bosnia and Herzegovina, of the other part.

Journal of Comparative Politics
70
adopting the constitutional amendments have become all the more topical and 
substantial.
2 Constitutional relationship between the state 
institutions and the two entities
According to the opinion of the Council of Europe’s Venice Commission that 
has also been adopted by the expert group on the preparation of the draft 
constitutional amendments as the point of departure for its work, the main 
issue in the first stage of the constitutional reform is the widest possible 
transfer of responsibilities from the Entities to Bosnia and Herzegovina as the 
central State (“Gesamtstaat”).
11
 Under the Dayton constitution, the institutions 
of Bosnia and Herzegovina have only those powers that are comprehensively 
listed in the constitution, mainly in the field of immigration, refugee and asylum 
policy (Article III.1).
12
 Also established in the Constitution – more descriptively 
than comprehensively – are some responsibilities of the Entities, among 
others regarding the provision of a safe and secure environment for all persons 
(Article III.2.c), but the Constitution simultaneously stipulates that the Entities 
have “[a]ll governmental functions and powers” that are not expressly assigned 
in the Constitution to the institutions of Bosnia and Herzegovina (Article III.3). 
The constitutional provision in the favour of the Entities is (so to speak) identical 
to one of the Articles of Confederation and Perpetual Union between the States 
(Article 2), on the basis of which the United States of America were founded 
as a confederation – following a proposal from 1777 and its implementation in 
1781; in line with Article 2, each state retained all powers and jurisdictions other 
than those expressly delegated to the confederation.
13
 Disregarding the foreign 
policy that is (despite the common foreign policy) also one of the sovereign 
rights of the European Union Member States, the constitutional responsibilities 
of the institutions of Bosnia and Herzegovina hardly exceed those of the 
European Community or European Union within the framework of its former 
first pillar. Given the limited constitutional responsibilities of the central State 
and the constitutional presumption in favour of the two Entities, according to 
which the Entities under the Constitution also retained the responsibilities in 
11 
 Council of Europe, European Commission for Democracy through Law (Venice Commission). 
Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the High 
Representative, CDL -AD (2005)004, Strasbourg, 11 March 2005, point 102.
12 
 Joseph Marko, “Integration durch Recht, ” in Europas Identitäten, Mythen, Konflikte, 
Konstruktionen, eds. Monika Mokre, Gilbert Weiss and Rainer Bauböck (Frankfurt/New York: 
Campus Verlag, 2003), 163–165; see also Axel Schwarz, Die Verfassung des Gesamtstaates. 
(Berlin: Europa-Blätter, 2003), 129–130. 
13 
 Robert D. Clinton, “ A Brief History of the Adoption of the United States Constitution, ” Iowa Law 
Review, (1990), 891–893. 

Journal of Comparative Politics
71
the military and police fields, Bosnia and Herzegovina is a sui generis federation 
with extremely limited viability (“Lebensfähigkeit”).
14
The architects of the Dayton Agreement balanced the constitutional provi-
sion that very restrictively stipulates the responsibilities of the central state by 
means of a special provision that enables Bosnia and Herzegovina to assume 
additional responsibilities as agreed by the Entities (Article III.5.a). On the basis 
of this provision, Bosnia and Herzegovina can, in agreement with the Entities, 
assume mainly those responsibilities provided for in Annexes 5, 6, 7 and 8, 
particularly the responsibilities in the field of protection of human rights as well 
as the rights of refugees and displaced persons, and the responsibilities neces-
sary to preserve the sovereignty, territorial integrity, political independence, and 
international personality of Bosnia and Herzegovina; additional institutions may 
also be established as necessary to carry out such responsibilities.
15
Acting upon this constitutional provision, the Parliamentary Assembly of Bosnia 
and Herzegovina adopted several laws under a legislative procedure that is 
less demanding than the constitutional revision procedure, despite the right 
to the so-called veto for the protection of a vital national interest. By means of 
these laws – following the intense intervention by the High Representative and 
prior institutional or tacit consent of the Entities – the Parliamentary Assembly 
also assumed traditional State responsibilities in the form of additional 
responsibilities, by means of which it fundamentally complemented the 
responsibilities of the institutions of Bosnia and Herzegovina comprehensively 
listed in the constitution.
As early as in 2000, the High Representative on the basis of the Bonn powers 
(“Bonner-Powers”) adopted a decree on the adoption of the Law on the Court of 
Bosnia and Herzegovina, by means of which he partly established the foundations for a 
gradual establishment of the judiciary power in line with the principle of separation of 
powers at the central State level.
16
Under these laws, Bosnia and Herzegovina as the central State, in addition 
to those comprehensively listed in the constitution, also has the following 
14 
 Wolfgang Marcus Vitzthum and Marcus Mack, “Multiethnischer Föderalismus in Bosnien-
Herzegowina, ” in Europäischer Föderalismus, supranationaler, subnationaler und multiethnischer 
Föderalismus in Europa, ed. Von Wolfgang Graf Vitzhum. (Berlin: Duncker und Humbold, 2000), 
89–95. Elisabeth Küttler, Die Menschenrechtskammer für Bosnien-Herzegowina (Berlin: BWV/
Berliner Wissenschafts – Verlag GmbH, 2003), 34. 
15 
 Gearoid O’Tuathall, “La Republika Srpska est-elle européenne, La grande stratégie du Bureau du 
Haut-Representant pour ancrer la Bosnie-Herzégovine dans L’Espace geopolitique européen, ” 
in L’ex Yugoslavie dix ans après Dayton, eds. Andre-Louis Sanguin et al (Paris: L’Harmattan, 
2005), 204–248. See also Opinion of the Venice Commission at footnote 10, points 22 and 23. 
16 
 Official Gazette of Bosnia and Herzegovina, no. 29/00. 

Journal of Comparative Politics
72
responsibilities and institutions: the defence area, organised by a special law 
as a single system of armed forces; the Intelligence and Security Agency as 
one of the sub-system institutions in the field of security; the High Judicial 
and Prosecutorial Council, which decides on the selection and appointment of 
judges and prosecutors in the country as a whole; the Office of the Prosecutor 
of Bosnia and Herzegovina, which is one of the fundamental state institutions in 
the field of justice; the Court of Bosnia and Herzegovina, which was established 
by the legislative decision of the High Representative and which, due to its 
limited competencies, is not in the rank of the Supreme Court; and a particular 
system of financing state institutions that is not solely linked to the Entities’ 
revenue.
It is paradoxical that Bosnia and Herzegovina as the central State has even 
more traditional state responsibilities that have been assumed on the basis of 
the provisions on additional responsibilities by means of laws (particularly in the 
field of defence, security – namely by open reform of the police – and justice) 
than under the general constitutional provision that comprehensively lists its 
responsibilities.
In the future, these statutory powers, on the basis of which State institutions 
already function, should be transposed into the Constitution; their constitutional 
arrangement would contribute to a more legitimate and stable operation of 
these institutions. After the adoption of the above legislation, the constitutional 
provision on additional responsibilities should also be abrogated or at least 
possibilities for its use limited. The relationship between the legal order of the 
central state and the legal order of the Entities should also be determined, for 
instance, on the model of the German Basic Law (Article 31 GG) it could be 
stipulated that the State law shall take precedence over (“bricht”) Entity law.
17
In the first stage of constitutional reform, the following should also be done: 
change the constitutional arrangement on the creation and composition of basic 
state bodies, reallocate the most important responsibilities among them and at 
least in part reshape the decision-making procedures of these bodies. 
After more than a decade of documents in which individuals and institutions 
alike have reached the conclusion that the constitutional provisions regarding 
the composition of fundamental State institutions on the basis of ethnic affili-
ation are impermissible (they are, inter alia, in conflict with the constitutional 
provision on non-discrimination (Article II.4)
18
 and the European Convention on 
17 
 Article 31 of the German Basic Law stipulates: “Bundesrecht bricht Landesrecht” . 
18 
 See in particular: Magdalena Pöschl, “Diskriminierung in Bosnien und Herzegowina, ” Zeitschrift 
für öffentliches Recht, 60 (2005), 217–235.

Journal of Comparative Politics
73
Human Rights and Fundamental Freedoms (Article 14)
19
, in line with the en-
visaged amendments, the House of Representatives would also include three 
delegates who do not belong to one of the constituent peoples; composition 
on the basis of ethnic affiliation would also be abolished with regard to the pro-
vision on the composition of the Presidency of Bosnia and Herzegovina, while 
the adoption of the decision on the amendment of the constitutional provision 
regarding ethnic composition of the House of Peoples would be postponed to 
the second stage of constitutional reform.
Two other strategic goals of the anticipated constitutional changes, alongside 
the transfer of responsibilities from the Entities to the central State, are 
(a) the systemic empowerment of the House of Representatives as the 
representative body of the anticipated Bosnian-Herzegovinian populace,  along 
with simultaneous limitation of the authority of the House of Peoples as the 
representative body of the constituent peoples of Bosniaks, Croats, and Serbs, 
and (b) the establishment of the Council of Ministers as the central organ of 
executive power, along with simultaneous limitation of the Presidency’s authority. 
The fulfilment of these two goals should decidedly contribute to an effective 
and streamlined operation of the state as a whole. Bosnia in Herzegovina could 
thus also fulfil the “Copenhagen criteria” and other special conditions (“political 
conditionality”) in the process of stabilisation and association with the European 
Union.
20
In the future, the bicameral system is also to be abolished; under this system, the 
House of Peoples and the House of Representatives jointly adopt all decisions; 
this greatly hinders their operation. A special kind of unicameral system would 
be introduced, whereby the House of Representatives would, for the most part, 
decide independently, while the House of Peoples would be involved in (i) the 
evaluation of laws adopted by the House of Representatives and relative to vital 
national interest of constituent peoples, (ii) in the decision-making regarding the 
adoption of constitutional amendments, and (iii) in the candidacy procedure for 
the election of the Presidency of Bosnia and Herzegovina. After the bicameral 
decision-making, the new constitutional order would be similar to the Belgian 
Constitution (Article 195), German Basic Law (Article 79, paragraph 2 GG), 
Austrian Federal Constitutional Law (Article 44, paragraph 2 B-VG) and the 
Spanish Constitution (Article 167).
21
19 
 See in particular the Chapter entitled “The Compatibility of the Constitution of Bosnia and 
Herzegovina with the European Convention on Human Rights and the European Charter of 
Local Self-Government” in the Venice Commission Opinion under footnote 10, 20–24.
20 
 Rudi Kocjančič, Stabilisierungs- und Assoziierungsprozess auf dem Gebiet des ehemaligen 
Jugoslawien. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 66 (2006), 439–
440. 
21 
 Thomas Groβ, “Zwei-Kammer-Parlamente in der Europäischen Union, ” Zeitschrift für 
ausländisches öffentliches Recht und Völkerrecht, 63 (2003), 41–43. 

Journal of Comparative Politics
74
However, the constitutional provision under which the House of Representatives 
decides by a majority of those present and voting will be retained, provided 
that the dissenting votes do not include two-thirds or more of the delegates or 
members elected from either Entity. At the same time, an existing constitutional 
provision would be kept; on the basis of this provision, any of the three 
constituent peoples may declare decisions of the Parliamentary Assembly to 
be destructive of a vital interest – by a majority of, as appropriate, the Bosniak, 
Croat, or Serb delegates – thus preventing the adoption of such decisions.
22
 
On the basis of the first constitutional provision, two-thirds of delegates of the 
House of Representatives from either Entity – considering that there are nearly 
only Serbs living in one Entity and nearly only Bosniaks or Croats in the other 
– could block the adoption of any decision in the House of Representatives 
(“entity veto”), while on the basis of the second constitutional provision, each 
of the three constituent peoples could prevent the implementation of the 
decisions of the Parliamentary Assembly by declaring them destructive of a vital 
interest of these peoples (“ethnic veto”).
23
 The vital interest veto has thus been 
designed much wider than the right of the other House to suspensive veto in 
the law adoption procedure, the same right being provided by the constitutions 
of, for instance, Austria (Article 42 B-VG), Germany (Article 76, paragraph 2 GG), 
Ireland (Article 23) and Slovenia (Article 97).
24
The entity right to veto is discriminatory to the delegates of the House of 
Representatives, particularly in making it systemically difficult for them to adopt 
decisions, while simultaneously eroding the legitimacy of the House. It is a 
distinctively dysfunctional and disintegrative constitutional provision.
25
 Even the 
Bishops’ Conference of Bosnia and Herzegovina advocated for its abrogation 
on several occasions.
26
 The Parliamentary Assembly of the Council of Europe 
also called upon the political circles in Bosnia and Herzegovina to endorse the 
immediate elimination of the “entity veto” .
27
22 
 Preliminary Opinion on the Draft Amendments to the Constitution of Bosnia and Herzegovina 
(CDL(2006) 027), Council of Europe – European Commission for Democracy Through Law 
(Venice Commission), Strasbourg, 7 April 2006, particularly point 36 and points 39–41 . 
23 
 See in particular: Kasim Trnka, Ustavno pravo (Sarajevo: Fakultet za javno upravo, 2006), 
292–293. See also: Maja Kaljanac, Faris Vehabović and Nidžara Ahmetašević, Proces ustavnih 
promena u BiH (Sarajevo: Centar za ljudska prava, 2006), 43–45.
24 
 See Thomas Groβ, “Zwei-Kammer-Parlamente in der Europäischen Union, ” Zeitschrift für 
ausländisches öffentliches Recht und Völkerrech, 63 (2003), 41 . See also Schambeck, Herbert. 
Reflections on the significance of the bicameral parliamentary system. Available at http://www.
senateurope.org/eng/28062002.html (June 2011). 
25 
 See Cerar, Miro. Bosnia and Herzegovina at the crossroads? International Institute IFIMES, 
available at www.ifimes.org (June 2011). 
26 
 See Oslobodjenje. “Biskupska konferencija BiH potvrdila ranije stavove. ” 27 October 2007 . 
27 
 Constitutional reform in Bosnia and Herzegovina, Resolution 1513 (2006), Parliamentary 
Assembly of the Council of Europe, 29 June 2006, point 18.

Journal of Comparative Politics
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Disregarding the political philosophy in “The Clash of Civilisations” ,
 28
 it needs 
to be emphasised that Bosnia and Herzegovina is a multi-ethnic, multi-regional, 
multi-cultural and, to some extent, a multi-civilisational state.
29
 Thus Bosniaks, 
Croats and Serbs already per se represent fundamental collective entities in 
the country, with distinctively different identities,
30
 while in the Preamble of 
the Constitution, which is by its incorporation and nature a constituent part of 
the Constitution, they are defined as constituent peoples.
31
 Radical restriction 
or even full abolition of their right to veto would seriously endanger their 
equality and, consequently, the political stability in the country.
32
 Unfortunately, 
in professional circles, too – even in the Venice Commission opinion on the 
constitutional situation in this country
33
 – there often appears a somewhat Austro-
marxist conception of nationalities (K. Renner, O. Bauer), according to which the 
Bosniaks, Croats and Serbs in Bosnia and Herzegovina would only have the 
right to autonomy in the areas of language, education and culture. However, it 
is evident that ethnocratic elites are striving to retain the Entities’ right to veto 
and the constitutional option of its unrestricted use for the protection of vital 
interest when deciding on “any issue” (Amendment II.10.a/xii), which would 
enable them to maintain – even after the extension of responsibilities of State 
institutions and the introduction of the unicameral system – strategic advantage 
over central State institutions, above all over the operation of the House of 
Representatives as the representative body of citizens. 
3 Contours of the parliamentary system in Bosnia and 
Herzegovina
According to the constitutional arrangement – the whole constitutional text 
being by both diction and structure closer to the Anglo-Saxon legal tradition 
28 
 Samuel P . Huntington, Kampf der Kulturen: Die Neugestaltung der Weltpolitik im 21. Jahrhundert, 
6th edition (München: Goldman, 1998), 327–334. 
29 
 Joseph Marko, “Friedenssicherung im 21 . Jahrhundert: Bosnien und Herzegowina als 
europäische Herausforderung, ” in Völker- und Europarecht, 25. Österreichischer Völkerrechtstag, 
eds. Konrad Ginther et al (Vienna: Verlag Österreich, 2001), 55–61 . 
30 
 Wolfgang Marcus Vitzthum and Marcus Mack, “Multiethnischer Föderalismus in Bosnien-
Herzegowina, ” in Europäischer Föderalismus, supranationaler, subnationaler und multiethnischer 
Föderalismus in Europa, ed. Von Wolfgang Graf Vitzhum (Berlin: Duncker und Humbold, 2000), 
93–94. 
31 
 On legal personality of the constituent peoples see Kasim Trnka, “Konstitutivnost naroda i 
uključivanje Bosne i Hercegovine u evropske integracije, ” Pravna misao, Časopis za pravnu 
teoriju i misao, 35, 7–8 (2004), 18–21 . 
32 
 On the concept of Bosnia and Herzegovina as the state of citizens and equal peoples see 
Mirko Pejanović,  “Provodjenje amandmana o konstitutivnosti naroda u Federaciji BiH i Republici 
Srpskoj, “ Pravna misao, Časopis za pravnu teoriju i misao, 35, 7–8 (2004), 4–7 . See also Bebler, 
Anton. Ob desetletnici pariških in dejtonskih sporazumov. International Institute IFIMES, 
available at www.ifimes.org (1 February 2006). 
33 
 See Venice Commission Opinion under footnote 10, point 33. 

Journal of Comparative Politics
76
rather than the European continental one – in Bosnia and Herzegovina, executive 
power is carried out by the Presidency and the Council of Ministers, whereby 
the secondary role of the Council of Ministers is visible from its incorporation 
in the Constitution, which stipulates its legal arrangements in one of the five 
points in the Article on the Presidency (Article V.4).
34
 The Presidency of Bosnia 
and Herzegovina consists of three Members, one Bosniak, one Croat, and one 
Serb, each directly elected in each Entity; they perform the function of the Chair 
by rotation. The Presidency nominates the Chair of the Council of Ministers, 
who takes office upon approval by the House of Representatives. The Chair 
then nominates Ministers, who likewise take office upon approval by the House 
of Representatives. The Constitution stipulates that the Presidency, above 
all, conducts the foreign policy, negotiates the conclusion and termination of 
international treaties and – with the consent of the Parliamentary Assembly – 
decides on their ratification, executes decisions of the Parliamentary Assembly, 
and proposes the annual budget to the Parliamentary Assembly (Article V.3). 
According to a generalized constitutional provision, the Council of Ministers 
is responsible for the implementation of policies and decisions in the areas 
comprehensively listed in the Constitution as well as in those areas the 
responsibility for which is assumed by the central State on the basis of the 
provision on additional responsibilities (Article III.5).
35
The significance that the 
authors of draft amendments assigned to the constitutional arrangement of 
the executive power is evident from the limitation of powers of the Presidency 
in this area, particularly from the designation of the Council of Ministers as 
the institution of executive authority for the State of Bosnia and Herzegovina 
(Amendment IV, paragraph 1). In line with these amendments, the Presidency 
of Bosnia and Herzegovina would comprise the President and Vice President, 
elected under the new regime by a majority vote of those present and voting.
36
 
The Presidency as a whole would mainly have those responsibilities held by 
the head of state in countries with the parliamentary system, the innovation 
being that its President would also nominate the candidate for the Chair of the 
Council of Ministers. The Presidency as a whole would also decide on issues 
regarding the defence area, the appointment of Constitutional Court judges and 
members of the Governing Board of the Central Bank – in these three cases by 
consensus – but it could also request the convention of the Council of Ministers 
and a meeting of the Parliamentary Assembly, as well as the reassessment of 
adopted laws.
34 
 See Venice Commission Opinion under footnote 10, points 37–41 . 
35 
 See Venice Commission Preliminary Opinion regarding the draft amendment to the State 
Presidency under footnote 10, particularly point 43. 
36 
 Opinion on Different Proposals for the Election of the Presidency of Bosnia and Herzegovina 
(CDL -AD(2006)004), European Commission for Democracy Through Law (Venice Commission), 
Strasbourg, 20 March 2006. 

Journal of Comparative Politics
77
It is also necessary to change four generalized paragraphs on the Council of 
Ministers in the present Constitution (Article V.4) and, above all, to comprehensively 
supplement them with an independent amendment that would arrange more 
precisely the establishment and composition of the Council of Ministers in 
this area, so that it would be similar to the governmental arrangements in 
the countries with the parliamentary system, while relinquishing the legal 
arrangement of the Council of Ministers to the House of Representatives, 
particularly the vote of no confidence and the vote of confidence to the Council 
of Ministers, to the legislation.
According to the proposal for the amendment of the constitutional arrangement 
of the Council of Ministers, the House of Representatives would approve the 
Chair of the Council of Ministers on a proposal by the Presidency, and – in the 
eventual second or third ballot – also on a proposal by at least one-sixth of the 
delegates of the House of Representatives. When designing its contents, the 
drafters of the proposal modelled themselves on the example of the German 
Basic Law, “Musterverfassung” ,
 37
 which stipulates that the Federal Chancellor 
is elected by the Parliament at the proposal of the Federal President (Article 63, 
paragraph 1).  According to constitutional theory, the dependence of the 
Head of Government on the Parliament is the foundation of the parliamentary 
government system.
38
 On the basis of the German Basic Law, Spain, Ireland, 
Hungary, Slovenia, and Bulgaria also introduced the election of the Head of 
Government in the Parliament.
39
The proposal does not define a specific majority that would be necessary 
when voting for the approval of the Chair of the Council of Ministers. In line 
with general regulation, the House of Representatives would also confirm the 
Chair of the Council of Ministers by a majority of those present and voting 
(Article IV.3.d). In all countries in which the Head of Government is elected 
by the Parliament – and in other countries when taking a vote of confidence 
or no confidence on the government – a majority vote of all members of the 
Parliament is required on the first ballot.
In the second stage of the constitution of the Council of Ministers, at a proposal 
by the Chair of the Council of Ministers, the House of Representatives would 
confirm the list of candidates for Ministers, but if the proposed list would not be 
37 
 Heinz Schäffer, “Deutschlands “Grundgesetz”: Vom Verfassungsprovisorium zur 
Musterverfassung, ” in Die öffentliche Verwaltung, 12 (June 1999), 485–495. 
38 
 Georg Hermes, Grundgesetz-Kommentar (Tübingen: Mohr Siebeck, 1998), 118. 
39 
 Wolfgang Ismayr, “Die politischen Systeme Westeuropas im Vergleich, ” in Die politischen 
Systeme Westeuropas im Vergleich, ed. Wolfgang Ismayr (Opladen: Leske-Budrich, 1999), 
18; Wolfgang Ismayr, “Die politischen Systeme Westeuropas im Vergleich, ” in Die politischen 
Systeme Osteuropas, ed. Wolfgang Ismayr (Opladen: Leske-Budrich, 2002), 27 . 

Journal of Comparative Politics
78
confirmed by the House of Representatives, the Chair of the Council of Ministers 
could submit a new list; his term of office, however, would expire, if the House 
of Representatives would not confirm the list of candidates within thirty days. 
Ministers would take office upon the approval of the House of Representatives. 
In line with the proposed regulation, the President of the Presidency would not 
be involved in the appointment and approval of Ministers.
The proposal under which the House of Representatives would decide on the 
appointment of the government Ministers is not similar to the constitution of 
the government in the countries with the parliamentary government system or 
in the countries with the traditional parliamentary system. As evidenced by the 
constitutional arrangements of European countries, it is only in Slovenia that 
the National Assembly (Slovenian Parliament) decides on the appointment of 
government Ministers. In line with the Slovenian Constitution – which (on the 
model of its German counterpart) provides for the election of the President of 
the Government in the National Assembly as well as the so-called constructive 
vote of no confidence – Ministers are appointed by the National Assembly at 
the proposal of the President of the Government (Article 112).
40
Professional circles in Slovenia are of the opinion that the appointment of 
Ministers by the National Assembly undermines the position of the President 
of the Government as well as hindering the formation of the government and 
negatively affecting the implementation of the principle of separation of powers.
41
 
The fundamental difference between the role of the German Federal Chancellor 
in establishing the government and the role of the Slovenian President of the 
Government is that after his election and appointment, the Federal Chancellor 
effectively decides on the establishment of the Federal Government, while 
(upon election) the Slovenian President of the Government receives only the 
mandate to propose candidates for Ministers, their appointment being decided 
by the National Assembly. In Slovenia, three governments of different political 
affiliations have in recent years advocated the abolition of decision-making 
on the appointment of Ministers in the National Assembly; in line with the 
latest government proposal, the Constitution would be amended so that the 
President of the Republic would also appoint the Ministers at the proposal by 
40 
 Ivan Kristan, “Verfassungsentwicklung Sloweniens, ” in Jahrbuch des öffentlichen Rechts der 
Gegenwart, ed. Peter Häberle (Tübingen: J.C.B. Mohr, 1994), 82. Franc Grad, “Government, ” in 
The Constitutional System of the Republic of Slovenia, ed. Igor Kaučič (Ljubljana: SECLI, 2002), 
135–136. See also Franc Grad, Parlament in vlada (Ljubljana: Uradni list Republike Slovenije, 
2000), 279–280. Gregor Virant, “Vlada, ” in Komentar Ustave Republike Slovenije, ed. Lovro 
Šturm (Ljubljana, Fakulteta za podiplomske državne in evropske študije, 2002), 849–851 . 
41 
 Matevž Krivic, “Vlada, ” in Nova ustavna ureditev Slovenije, ed. Ivan Bele (Ljubljana: Pravna 
fakulteta, 1992), 195–196. See also Franc Grad, “Posebnosti parlamentarnega sistema v naši 
pravni ureditvi, ” in VI. dnevi slovenske uprave (Ljubljana, Portorož: Visoka upravna šola, 1999), 
24–26. 

Journal of Comparative Politics
79
the President of the Government elected by the National Assembly.
Double voting in the House of Representatives of Bosnia and Herzegovina – first 
on the approval of the Chair of the Council of Ministers and then on the approval 
of the list of candidates for Ministers – would only make the establishment and 
operation of the Council of Ministers more difficult due to the “Weimar-like” 
division of the House in questions as well as general political divisions in the 
country.
The working draft of the amendment on the Council of Ministers prepared by 
the expert group of the Presidency on the tenth anniversary of the Dayton 
Agreement also foresaw the legal arrangement of the vote of confidence 
and the vote of no confidence to the Council of Ministers. According to this 
proposal, the competencies of the Council of Ministers will be regulated by 
law (Amendment IV.7 .a). As already observed by the Venice Commission, the 
issue of the regulation of the accountability of the Council of Ministers to the 
House of Representatives is of such importance – as also evidenced by the 
constitutional arrangements of government competencies in other countries – 
that at least the vote of no confidence and the vote of confidence to the Council 
of Ministers should already be dealt with in constitutional amendments.
42
What is unusual here is that regarding the anticipated confirmation of the 
Chair of the Council of Ministers in the House of Representatives, the writers 
modelled themselves on the elections of the Federal Chancellor in the German 
Parliament, and on the countries with the traditional parliamentary system, 
regarding the envisaged regulation of the vote of no confidence to the Council 
of Ministers. In line with the anticipated approval of the Chair of the Council of 
Ministers in the House of Representatives, it would be more consistent to also 
adopt the constructive vote of no confidence based on the German example.
According to the German Basic Law, under which the legislative regulation of 
Federal Government is designed as a kind of “counter-Constitution against the 
Weimar Constitution” (“Gegenverfassung zu Weimarer Verfassung”)
43
, the 
election of the Federal Chancellor by the Parliament and the constructive vote of 
no confidence in the Federal Chancellor are the main pillars of the parliamentary 
government system designed by the Parliamentary Council so as to avoid 
unstable and incompetent governments in Germany following the negative 
42 
 See Preliminary Opinion of the Venice Commission regarding the draft amendment related to 
the Council of Ministers at footnote 10, point 73.
43 
 Peter Häberle, Ustavna država (Zagreb: Politička kultura, 2002), 247 . 

Journal of Comparative Politics
80
experience with the Weimar Constitution.
44
 The institute of constructive vote 
of no confidence was mainly adopted by the countries that introduced the 
election of the Head of Government in the Parliament (e.g. Spain, Hungary, 
Slovenia).
45
 The professional public is of the opinion that a constructive vote 
of no confidence has a different impact on government stability in different 
countries.
46
 As evidenced by the parliamentary practice, government stability 
depends mainly on the electoral and political party system; therefore, in Germany 
the stability of the Federal Government does not depend primarily on the vote of 
no confidence, but is (above all) the result of the combined electoral system and 
a high concentration of parliamentary parties.
47
 Despite the introduction of the 
constructive vote of no confidence, in Slovenia, too, the issue of abandoning the 
proportional system, introducing the combined electoral system, and indirectly 
strengthening government stability by limiting the number of political parties in 
the Parliament is becoming increasingly pertinent.
48
 In Bosnia and Herzegovina, 
the issue of the electoral and thus also political party system – in a substantive 
law sense – represents one of the core issues of constitutional reform.
4 Bosnia and Herzegovina and the European Union
In the present stage of stabilisation and association with the European Union, the 
main strategic priorities of Bosnia and Herzegovina as a member of the Council 
of Europe and a potential candidate country for the accession to the European 
Union are (i) to amend the constitutional provision regarding the elections to 
the House of Peoples as the second chamber of the Parliamentary Assembly 
(Article IV, paragraph 1) as well as the constitutional provision regarding the 
elections to the Presidency of Bosnia and Herzegovina (Article V, paragraph 1), 
44 
 Roman Herzog, Grundgesetz. Kommentar. (München: Beck, 1993), Art. 63, Rn. 6. See also Klaus 
von Beyme. Das politische System der Bundesrepublik Deutschland (10th Ed.) (Wiesbaden: VS 
Verlag für Sozialwissenschaften GW V-Fachverlag GmbH, 2004), 261 .
45 
Pedro Cruz Villalón, “Bericht Spanien, ” in Das Grundgesetz im internationalen 
Wirkungszusammenhang der Verfassungen: 40 Jahre Grundgesetz, ed. Ulrich Batist (Berlin: 
Duncker und Humbol, 1990), 102–103. See also Wolfgang Ismayr, “Die politischen Systeme 
Westeuropas im Vergleich, ” in Die politischen Systeme Osteuropas, ed. Wolfgang Ismayr 
(Opladen: Leske-Budrich, 2002), 30. 
46 
Christian Starck, “Generalbericht, ” in Grundgesetz und deutsche Verfassungssprechung im 
Spiegel ausländischer Verfassungsentwicklung: Landesberichte und Generalbericht der Tagung 
für Rechtsvergleichung 1989 in Würzburg, ed. Christian Starck (Baden-Baden: Nomos Verl.-
Ges., 1990), 32–33. 
47 
 Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (Heidelberg: 
Müller Verlag 1995), 240. See also Klaus von Beyme. Das politische System der Bundesrepublik 
Deutschland (10th Ed.) (Wiesbaden: VS Verlag für Sozialwissenschaften GW V-Fachverlag 
GmbH, 2004), 90. 
48 
 Ciril Ribičič, “Uravnoteženost političnega zastopstva v parlamentu, ” in VII. dnevi javnega prava 
(Portorož: Inštitut za javno upravo, 2002), 221–222.

Journal of Comparative Politics
81
and (ii) to adopt the constitutional amendments necessary for the assumption 
and fulfilment of obligations arising from the process of its association with the 
European Union. In light of the imminent granting of the status of a candidate 
country to Bosnia and Herzegovina, a relevant issue is the adoption of the 
constitutional changes that are necessary for defining the constitutional basis 
for its decision on the accession to the European Union. 
Specifically, the Parliamentary Assembly of the Council of Europe has, in 
collaboration with the Venice Commission, called upon Bosnia and Herzegovina 
on several occasions to amend the constitutional provision regarding the elections 
to the Presidency of Bosnia and Herzegovina, under which the Presidency 
consists of one Bosniak, one Croat, and one Serb (Article V, paragraph 1), and 
the constitutional provision that stipulates that the House of Peoples of the 
Parliamentary Assembly comprises only Bosniak, Croat and Serb Delegates, 
since these two constitutional provisions clearly discriminate against “others” 
who are not members of the constituent peoples (Article IV, paragraph 1).
49
 The 
appeals are all the more pertinent and conspicuous following the judgement 
of the Grand Chamber of the European Court of Human Rights, which in the 
case of Sejdić and Finci v. Bosnia and Herzegovina in 2009 ruled that the 
constitutional provision under which “others” are ineligible to stand for election 
to the House of Peoples is in violation of Article 3 of Protocol No. 1 to the 
European Convention on Human Rights and Fundamental Freedoms (ECHR), 
which recognizes the right to free and fair elections, as well as Article 14 of 
the ECHR, which prohibits discrimination; at the same time, the constitutional 
provision which renders “others” ineligible for election to the Presidency is in 
breach of Article 1 of Protocol No. 12 to the ECHR, which introduces a general 
prohibition of discrimination.
50
 The weight of the infringement of the rights of 
“others” is evident from the constitutional provision according to which the 
House of Peoples and the House of Representatives decide on equal footing on 
the adoption of laws (Article IV, paragraph 4), as well as from the constitutional 
provision under which the Presidency has much greater responsibilities than 
the Head of State in the parliamentary system (Article V, paragraph 3).
51
In the case of Sejdić and Finci v. Bosnia and Herzegovina, the Court ruled for 
the first time on the direct incompatibility of the constitutional provision of 
one of the Member States of the Council of Europe with the ECHR, basing its 
jurisdiction on Bosnia and Herzegovina’s membership in the Council of Europe 
and its ratification of the ECHR, while indirectly also referring to the second 
49 
Constitutional reform in Bosnia and Herzegovina – Council of Europe Resolution 1513/2006; 
Honouring of obligations and commitments by Bosnia and Herzegovina - Resolution 1626(2008). 
50 
Case of Sejdić and Finci v. Bosnia and Herzegovina (Applications nos. 27996/06 and 34836/06). 
51 
Gro Nystuen, Achieving Peace or Protecting Human Rights? Conflicts between Norms Regarding 
Ethnic Discrimination in the Dayton Peace Agreement (Leiden/Boston: Martinus Nijhoff, 2005), 
135. 

Journal of Comparative Politics
82
paragraph of Article II of the Constitution of Bosnia and Herzegovina, which 
stipulates that the rights and freedoms set forth in the European Convention 
and its Protocols apply directly and that they have “priority over all other law” .
52
 
Upon becoming a member of the Council of Europe and the ratification of the 
ECHR as well as the Stabilisation and Association Agreement in 2008, Bosnia 
and Herzegovina committed itself to amending electoral legislation regarding 
members of the Bosnia and Herzegovina Presidency and House of Peoples 
delegates to ensure full compliance with the European Convention on Human 
Rights within one or two years.
53
 
The Court also agreed with the opinion of the Venice Commission, which 
took part as amicus curiae in the examination of the appeals lodged by Dervo 
Sejdić and Jakob Finci, that “there exist mechanisms of power-sharing which 
do not automatically lead to the total exclusion of representatives of the 
other communities”
54
 as well as that it “remains legitimate to try to design 
electoral rules ensuring appropriate representation for various groups” .
55
 Yet 
despite critical opinions on the constitutional provision regarding the elections 
to the House of Peoples as well as the constitutional provision regarding the 
elections to the Presidency, neither the Parliamentary Assembly of the Council 
of Europe nor the Venice Commission put forward more tangible directions 
for the amendment of constitutional provisions regarding the elections to the 
above-mentioned state bodies.
56
In line with the opinion of the Venice Commission, it would be preferable 
to gradually abolish the House of Peoples, to restructure the House of 
Representatives into a unicameral legislative body and to move the exercise 
of the vital interest veto to the House of Representatives.
57
 However, as is 
already apparent from the political and constitutional structure of Bosnia and 
52 
On the interpretation of the expression “priority over all other law” see Christian Steiner and 
Nedim Ademović, Ustav Bosne i Hercegovine, komentar. Article II/1-7 (Sarajevo: Fundacija 
Konrad Adenauer, 2010), 142–143. Taris Vehabović, Odnos Ustava Bosne i Hercegovine i 
Evropske konvencije za zaštitu ljudskih prava i osnovnih sloboda (Sarajevo: ACIPS, 2006), 91–92; 
see also Odluka Ustavnog suda Bosne i Hercegovine u Predmetu broj U 5/04, Official Gazette 
of Bosnia and Herzegovina No 49/06. 
53 
Council Decision of 18 February 2008 on the principles, priorities and conditions contained in 
the European Partnership with Bosnia and Herzegovina and repealing Decision 2006/55/EC 
(2008/211/EC).
54 
Case of Sejdić and Finci v. Bosnia and Herzegovina, point 48 of the judgement.
55 
Council of Europe, European Commission for Democracy through Law (Venice Commission). 
2005. Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the 
High Representative. Strasbourg, point 75.
56 
Sanja Bogdanović, “Perspektive ravnopravnosti ,ostalih‘ , ” Puls demokratije, 15 July (2008), 17 . 
57 
Council of Europe, European Commission for Democracy through Law (Venice Commission). 
2005. Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the 
High Representative. Strasbourg, points 35 and 36.

Journal of Comparative Politics
83
Herzegovina, which includes the constitutional peoples, along with “Others” , as 
a special constitutional category in addition to the citizens, the abolition of the 
House of Peoples would already be questionable in principle.
58
 Specifically, the 
discrimination against “Others” could be eliminated simply by electing from 
the Federation of Bosnia and Herzegovina to the House of Peoples – apart from 
five Bosniaks and five Croats – also one or two Serbs and one representative 
of ethnic or other minorities, and from the Republika Srpska – apart from five 
Serbs – also one or two Bosniaks and Croats and one or two representatives 
of ethnic minorities, while at the same time the House of Peoples of the 
Parliamentary Assembly of the Federation of Bosnia and Herzegovina and the 
House of Peoples of the Republika Srpska would elect delegates on the proposal 
by the club of constituent peoples and the club of “Others” . The second option 
is to recognize a special voting to “Others” in the House of Representatives 
and ensure their proportional representation in this House as well as a 
special constitutional provision for the protection of their rights. In doing so, 
the Slovenian Constitution, which stipulates that laws, regulations, and other 
general legal acts that concern the exercise of the constitutionally provided 
rights and the position of the national communities exclusively, may not be 
adopted without the consent of representatives of these national communities 
(Article 64, paragraph 5), could be taken as a reference point.
59
 
The second strategic priority of Bosnia and Herzegovina in the present stage 
of its association with the European Union is to adopt the constitutional 
amendments necessary for the assumption and fulfilment of obligations arising 
from the process of its association with the European Union. By signing and 
ratifying the Stabilisation and Association Agreement with the EU in 2008, 
Bosnia and Herzegovina legally committed itself to approximating its legislation 
to that of the European Community or European Union (paragraph 13 of the 
Preamble in connection with Article 1, second point).
60
 A crucial precondition for 
the fulfilment of this commitment is the allocation of responsibilities between 
central state and the Entities by constitutional amendments in the areas relating 
to the European Union. This is especially urgent in the field of the regulation 
of the movement of workers, the provision of services and capital movement. 
According to the opinion of the Venice Commission, the State level should have 
exclusive competencies with regard to matters concerning the European Union.
61
 
This Commission further states that “[t]he State shall ensure compliance with 
58 
Šahbaz Džikanović, “Platforma za novi Ustav Bosne i Hercegovine, ” Bulletin for Legal Theory 
and Practice, 36, 5–6 (2005), 15–16. 
59 
Paragraph 5 of Article 64 of the Constitution of the Republic of Slovenia, Official Gazette of the 
Republic of Slovenia, No 33/91 . 
60 
Council Regulation (EC) No 594/2008.
61 
See Opinion of the Venice Commission at footnote 10, point 26. 

Journal of Comparative Politics
84
the principles, priorities, and demands set forth by the European Union in the 
phases before and after accession. ”
62
 Ensuring “compliance with the principles, 
priorities, and demands” in the area of EU-related matters is, by all means, 
one of the exclusive competencies of the State level. However, the issues 
in this field are much more complex. Specifically, given its social and political 
structure, Bosnia and Herzegovina cannot constitute itself either as a traditional 
federation nor a centralised state. Certain competencies of the Entities in the 
area of EU-related matters would also strengthen the legitimacy and integrity 
of its authority. The adoption of constitutional changes in this direction was also 
indirectly supported by the European Parliament in its 2010 Resolution on the 
situation in Bosnia and Herzegovina, in which it called for the regulation of the 
relationship between the central State and the Entities based on the principle 
of subsidiarity.
63
 
Another issue needs to be considered here: the constitutional arrangement 
of the potential co-operation of the two Entities when considering those EU 
proposals that could significantly affect the competencies of the Entities or 
be prejudicial to their exclusive competencies.
64
 The Treaty establishing the 
European Community already provided for the possibility that the authorised 
Line Minister of Federal Units could attend Council meeting on behalf of 
Member States (Article 203). This provision is also included in the consolidated 
version of the Treaty on European Union (Article 16, point 2).
65
 The question is if, 
based on this provision, the authorised Line Ministers of the two Entities could 
also attend Council meetings.
In the first or second stage of constitutional reform, Bosnia and Herzegovina 
should also determine the constitutional basis for the decision on accession to the 
European Union. In this regard, it has (like other countries) two main possibilities: 
to adopt the abstract or generalised approach according to which it would allow 
the transfer of part of its sovereign rights to international organisations, thus 
implicitly also to the European Union, or the concrete or casuistic approach 
in line with which it would explicitly transfer part of its sovereign rights to the 
62 
European Commission for Democracy Through Law (Venice Commission), Report on the 
participation of political parties in elections, CDL(2006)025 (16 March 2006).
63 
See Resolution on the situation in Bosnia and Herzegovina, point 14 of the Chapter on the 
constitutional reform and the reform of the judiciary. 
64 
Mile Dmičić, “Bosna i Hercegovina kao državna zajednica sui generis - privremeno rešenje ili 
model za budučnost, ” Anali Pravnog fakulteta u Beogradu, 58, 1 (2010), 226–227 . 
65 
See Official Journal of the European Union, Consolidated versions of the Treaty on European 
Union and the Functioning of the European Union, OJ C 83, 30 March 2010. Available at http://
eur-lex. europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:EN:PDF (June 
2011).

Journal of Comparative Politics
85
European Union.
66
 Given the previous and anticipated role of the European 
Union prior to the accession of Bosnia and Herzegovina to this organisation, 
as well as the fact that even after its accession to the European Union, further 
involvement of this organisation will be required in its internal social and political 
consolidation as well as stabilisation, it would be logical and sensible to apply 
the concrete or casuistic approach when defining the constitutional basis for 
its decision on accession to the European Union. At the same time, Bosnia 
and Herzegovina should by means of constitutional amendments define the 
constitutional basis for legislative and procedural regulation of the relationship 
between the Parliamentary Assembly and the Council of Ministers. After the 
supplementation of the Protocol (No 2) on the Application of the Principles 
of Subsidiarity and Proportionality to the revised Treaty on European Union, 
which strengthened the role of national Parliaments in this organisation, the 
definition of the legal relationship between these two state bodies would be 
even more urgent.
67
 Similarly, following the supplementation of the principle 
of subsidiarity in the Treaty on European Union, which in addition to Union and 
central levels also includes regional and local levels,
68
 (Article 5, point 3), it would 
also be necessary to define in a particularly responsible and sensible way the 
legal relationship between the central State, two Entities and cantons in the 
execution of shared responsibilities of the European Union. 
5 Conclusion
Despite the fact that prior to the last year’s October elections, by means of 
special resolutions the European Parliament and the Parliamentary Assembly 
of the Council of Europe had forcefully called upon Bosnia and Herzegovina 
to adopt the appropriate constitutional changes, and despite the fact that the 
Stabilisation and Association Agreement between the EU and Bosnia and 
Herzegovina has also been published in the Official Journal of the European 
Union, none of the State institutions or political elites again proposed to adopt 
constitutional changes. At the May, 2011 session of the UN Security Council, 
Valentin Inzko, High Representative of the International Community in Bosnia 
and Herzegovina, stated that Bosnia and Herzegovina is facing its worst political 
crisis since the Dayton Peace Agreement. The current political situation is 
also very well illustrated by the title “Progress, Stagnation or Regression?” of 
66 
For more information see Rudi Kocjančič, “3.a člen kot evropski člen Ustave Republike Slovenije, ” 
in Petnajst let uresnièevanja Ustave Republike Slovenije, ed. Igor Kaučič (Ljubljana: Pravna 
fakulteta, 2007), 92–96. See also Rudi Kocjančič, “Ustavni osnov za odlučivanje o pristupanju 
Slovenije Evropskoj uniji” , Anali Pravnog fakulteta u Beogradu, 53, 1 (2005), 114–119.
67 
Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality, see, in 
particular, Articles 5 and 6.
68 
Official Journal of the European Union, Consolidated version of the Treaty on European Union, 
OJ C 83, 30 March 2010, article 5, point 3. Available at http://eur-lex. europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:C:2010:083:0013:0046:EN:PDF (June 2011).

Journal of Comparative Politics
86
the important international conference on Western Balkans that took place in 
Sarajevo in mid-June. In fact, the first half of 2011 was a time of political crisis, 
especially due to the constitutionally questionable formation of the Government 
of the Federation of Bosnia and Herzegovina and the fact that the House of 
Representatives and the House of Peoples of Bosnia and Herzegovina – due 
to political obstructions and blockades by monoethnic political parties – were 
formed a full eight months after the October elections, and the Council of 
Ministers nearly nine months after those elections. Political circles were also 
stirred by to the April decision of the National Assembly of Republika Srpska 
on the call of a referendum in which the electoral body of this Entity would 
vote against the Prosecutor’s Office Law and the Law on the Court of Bosnia and 
Herzegovina as well as in favour of the limitation of the Bonn powers of the High 
Representative of the International Community; however, the European Union 
politically prevented its execution. 
In conclusion, it can be observed that Bosnia and Herzegovina will not adopt the 
constitutional amendments without an authoritative and intense intervention by 
the international community, especially the European Union. 
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