Lidia Bonifati

On August 29, 2023, the European Court of Human Rights delivered a judgment against Bosnia and Herzegovina (Kovačević v. Bosnia and Herzegovina, application no. 43651/22), that at a first look might sound familiar to its previous decisions on Sejdić and Finci and following cases. However, if it is indeed true that the Court sees no reason to depart to its previous case law, it is also true that in Kovačević the ECtHR goes even further.

Background
Following the war in Bosnia and Herzegovina (BiH), the 1995 Dayton Peace Agreement sponsored by the international community introduced a complex constitutional architecture, based on both power-sharing and federal principles. As a result, in the Preamble, the BiH Constitution recognizes the three major ethnocultural groups, i.e., Bosniacs/Muslims, Croats, and Serbs, as “constituent peoples”, distinguishing them from the so-called “Others”, i.e., national minorities and those citizens who do not affiliate with any constituent people. This is a crucial distinction, since only the three constituent peoples are entitled to collective rights and to share power in the central political institutions (Parliamentary Assembly and collective Presidency), whereas the “Others” are represented only in the lower chamber of the central parliament (i.e., the House of Representatives). Indeed, only the citizens who declare their affiliation to one of the constituent peoples are eligible to stand for election to the collective Presidency, as well as only the three constituent peoples can be elected in the second chamber of the central parliament (i.e., the House of Peoples). Moreover, this ethnic criterion is entangled with a residence requirement. In fact, the BiH Constitution provides for two sub-state entities, i.e., the Federation of Bosnia and Herzegovina (FBiH) and the Republika Srpska (RS). The FBiH has a Bosniac-Croat majority, whereas the Republika Srpska has a clear Serb majority. On these premises, the Dayton Constitution provides that the 15 delegates of the House of Peoples are indirectly elected from the Federation (five Bosniacs and five Croats) and from the Republika Srpska (five Serbs) (Art. IV.1). Similarly, the members of the House of Representatives are directly elected from the territory of the Federation and from the territory of the Republika Srpska (Art. IV.2). The same applies to the election of the collective Presidency, consisting of one Bosniac and one Croat directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska (Art. V).

Previous case law
Since 2009, the European Court of Human Rights has tackled different critical aspects of the BiH constitutional and electoral system. Starting with the landmark decision on Sejdić and Finci, the Court of Strasbourg found the BiH Constitution and electoral legislation in breach of Art. 14 ECHR read in conjunction with Art. 3 Protocol No. 1, and of Art. 1 Protocol No. 12, thus departing from its previous case law anchored on Belgian Linguistics v. Belgium and Mathieu-Mohin and Clerfayt v. Belgium. In Sejdić and Finci (2009), the two applicants belonged to the so-called “Others” and were ineligible to stand for election to the Presidency and the House of Peoples, precisely because they did not affiliate to any constituent peoples. Similarly, in Zornić (2014), the applicant was ineligible because she declared no affiliation to any constituent people by simply defining herself as “Bosnian”, a category that has no legal relevance in the BiH political system. If in these first two cases the issue revolved around ethnicity and the affiliation requirement, in Pilav (2016) and in Pudarić (2020) the cases concerned the limitation of passive electoral rights based on the place of residence. In Pilav, the applicant declared his affiliation to the Bosniac constituent people and resided in the Republika Srpska, and therefore was declared ineligible to stand for election to the Presidency since the Constitution provides that the Republika Srpska elects the Serb member of the Presidency. Conversely, in Pudarić, the applicant belonged to the Serb constituent people but resided in the Federation, and based on the same grounds as in Pilav, he was ineligible to stand for election to the Presidency while still residing in the Federation.

The case
Almost 15 years after Sejdić and Finci, the ECtHR broke new ground with its decision on Kovačević. The case presents some interesting innovations relative to the previous ones since the applicant claimed the violation of his active (and not passive) right to vote on the ground of both his non-affiliation (as in Sejdić and Finci and Zornić) to any constituent people and his place of residence (as in Pilav and Pudarić). Indeed, Slaven Kovačević is a citizen of Bosnia and Herzegovina who does not declare affiliation to any constituent people and resides in Sarajevo, i.e., in the Federation of Bosnia and Herzegovina. Due to the combination of the territorial and ethnic requirements, the applicant was unable to express his vote for the candidates best representing his political views, as they were not “from the ‘right’ entity and/or of the ‘right’ ethnic origin” (para. 8 of the judgment). Therefore, he was unable to vote for the candidates of his choice in the last legislative and presidential elections held in 2022. On these grounds, he relied on Art. 14 ECHR (prohibition of discrimination) read in conjunction with Art. 3 Protocol No. 1 (right to free elections) and on Art. 1 of Protocol No. 12 (general prohibition of discrimination).
In a 6-1 majority, the Court declared that there has been a violation of Art. 1 Protocol No. 12 ECHR in respect to the complaints about the composition of the House of Peoples and the election of the Presidency. Despite being aware that the power-sharing and federal arrangements introduced within the system were necessary to end a violent conflict and ensure peace, the Court observed that the composition the House of Peoples, as designed by Dayton, “would have been acceptable in the special case of Bosnia and Herzegovina, had the powers of the House of Peoples been limited to the precisely, narrowly and strictly defined vital national interests veto of the ‘constituent peoples’” (para. 55). However, according to the BiH Constitution, the House of Peoples is a chamber with full legislative powers, providing that all legislation requires approval of both chambers (Art. IV.3(c)). Therefore, the Court argued that “it is of the utmost importance that all segments of society should be represented in the House of Peoples” (para. 55). Similarly, the ECtHR held that “the Presidency is a political body of the State and not of the Entities. Its policy and decisions affect all citizens of Bosnia and Herzegovina, whether they live in the Federation, the Republika Srpska or the Brčko District” (para. 73). Most importantly, the ECtHR clearly stated that “the current arrangements render ethnic considerations and/or representation more relevant than political, economic, social, philosophical and other considerations and/or representation and thus amplify ethnic divisions in the country and undermine the democratic character of elections” (para. 56). Moreover, the Court found that “although the Convention does not prohibit Contracting Parties from treating groups differently in order to correct ‘factual inequalities’ between them […], none of the ‘constituent peoples’ is in the factual position of an endangered minority which must preserve its existence. On the contrary, the “constituent peoples” clearly enjoy a privileged position in the current political system” (para. 61). Thus, the Court openly criticized the power-sharing arrangements by looking at their outcome and impact on the system, insofar as they ended up amplifying ethnic divisions and undermining the democratic character of elections. Moreover, the need to counter “factual inequalities” among groups is also reframed, since the Court recognized not only that none of the three constituent peoples are an “endangered minority”, but also that these “enjoy a privileged position”. The Court also recalled the findings of the Commissioner for Human Rights, according to which the current system is “based on ethnic discrimination [and] impedes social cohesion, reconciliation and progress” (para. 59).

The way forward
In conclusion, in Kovačević, the European Court of Human Rights went straight to the heart of the Dayton constitutional system and reiterated that the ability to freely exercise the right to vote is a pillar of “an effective political democracy”, which best maintain peace and dialogue. Moreover, the Court adds that “even if a system of ethnic representation is maintained in some form, it should be secondary to political representation, should not discriminate against ‘Others and citizens of Bosnia and Herzegovina’ and should include ethnic representation from the entire territory of the State” (para. 74). Therefore, the Court clearly sets the limits to the maintain of consociational elements within the system and shows the way in shaping the new constitutional system. The judgment arrived in a difficult time in Bosnia and Herzegovina since, as already noted by Woelk, more than 25 years after Dayton “the country seems to remain stuck in transition”. Moreover, the dysfunctionalities of the system appear more and more evident, under the weight of secession threats, a Constitutional Court in crisis, and a High Representative rather active in resuming to the use of the so-called “Bonn powers”. In December 2022, Bosnia and Herzegovina received the candidate status for EU membership, and in August 2023, political leaders concluded an agreement on future reforms necessary for implementing the key priorities identified by the EU Commission for accession. Therefore, constitutional change is desperately needed to implement the ECtHR judgment(s) through a profound amendment the Dayton Constitution, namely providing for the inclusion of “Others” and all citizens of Bosnia and Herzegovina, as well as the respect of their individual rights. However, since the failure of the 2006 package of constitutional reforms, attempts at constitutional change have been held hostage by ethnonational élites that have no interest in abandoning a system that grants them wide powers and autonomy. Certainly, to break with the past, constitutional change must come from a collective effort. As Marko has argued elsewhere, reforms must come “from below” (civil society), “from the side” (multicultural and civic parties from all angles of society), and “from above” (EU, Council of Europe, international community). What is certain is that constitutional change in Bosnia and Herzegovina can only happen through an open and public space for political debate, something that was missing while drafting the Dayton Constitution.

Over time, federal scholarship has developed a pragmatic approach to prosper without a shared definition of what federalism means and how it functions. So, why should we look for a “new theory on federalism”? In her book Dynamic Federalism. A New Theory for Cohesion and Regional Autonomy, Patricia Popelier argues that definitions (still) matter, “for the sake of theory, method, and impact” (p. 12). According to the author, having a clear understanding of federalism and federal systems is essential to explain how these are formed and evolve, and to derive normative requirements from the state structure. Moreover, definitions enable systematic comparative research irrespectively of the “mostly similar” or “mostly different” approach, implicitly echoing Hirschl’s arguments on case selection strategies and why these matter in comparative constitutional law. Finally, clear concepts are crucial to have an impact on ongoing political debates, such as the one on the federal/confederal nature of Belgium or the European Union, or the federal/regional nature of countries such as Spain and Italy. Therefore, Popelier aims at laying the foundations for a new, dynamic theory of federalism, overcoming some key weaknesses of traditional federal theory, and testing such theory on a series of conditions: universality, specificity, and flexibility.
To do so, the book is divided into three parts. The first part (“Theoretical framework”) develops the building blocks of the new theory, starting from a critical discussion of the “Hamiltonian” (following Pinder’s expression) and Elazarian approaches to the study of federalism, and then revisiting Friedrich’s concept of federalism as a process to further explore a theory on dynamic federalism. According to the author, traditional federal scholarship does not offer a theory able to explain federal systems in all their forms and variants, thus excluding from its analysis meaningful experiences because they might not fit in the “institutional checklist” of how a “true” federation should be to be called as such. This also explains why Popelier refers to “multi-tiered systems” (MTS), i.e., those systems with multiple tiers of government characterized by a central level of government as well as subnational entities with public policy powers. The author chose MTS as a category encompassing the different manifestations of the federal principle to avoid confusion between federations and other typologies of federal systems, thus allowing the inclusion of a large variety of systems in a cross-country comparison, along with those which distance themselves from being called “federal states”. The proposed theory of dynamic federalism builds upon the trichotomy of federalism, federalist political organization, and federations, to develop federalism as a “value concept”, expressing the idea of balance between territorial levels of government. Accordingly, every MTS seeks a proper balance between the central authorities and the subnational entities, or in other words between cohesion and autonomy. Such core value is later characterized as a constitutionally defined and essentially contested concept since it is determined by constitutional arrangements and is continuously contested by the changing of external conditions and political preferences. In a theory of dynamic federalism, constitutions are conceived as providers of instruments to face the changes that may occur in what the proper balance is, thus making possible the recalibration power relations. Therefore, the previous focus on Elazar’s principle of “self-rule and shared rule” is now shifted to the concepts of autonomy and cohesion; the varying balance between them becomes the main criterion upon which a classification of different typologies of forms of state depending is built, encompassing all forms of multi-tiered systems. To give an idea of these typologies, for a low score for cohesion and a gliding score for subnational autonomy, it is possible to categorize deconcentrated unitary systems, decentralized systems, and political associations. For a high level of cohesion and shifting levels of autonomy, integrationist multi-tiered systems and federations are found. Finally, for moderated scores for cohesion and sliding autonomy, the identified typologies are consociation-based multi-tiered systems, regionalized systems, and confederations. Thus, it is already possible to grasp the “dynamic” features of Popelier’s theory of federalism, since such a balance may vary, not only from one case to another but also over time.
Given the need to measure autonomy and cohesion to categorize forms of state and explain dynamics, the second part of the book (“Measuring cohesion and autonomy”) offers a toolbox of indicators, based on a series of institutional features. It should be noted that even though the author moves away from the “institutional checklists” to identify a federal system proper of the Hamiltonian approach, re-defining federalism in new terms (i.e., as a value concept), Popelier takes an institutional approach and, throughout the book, explores how constitutions facilitate or curb the dynamics of multi-tiered systems, and how constitutional engineering impacts on this. The indicators were constructed under three essential categories (status, powers, fiscal arrangements), drawing inspiration from previous attempts (Aubert, Baldi, Requejo, Hooghe et al., Ivanya and Shah, Sahadžić), deemed incomplete since they often lack to measure cohesion. Popelier’s indicators have two different units of analysis: the autonomy indicator regards the subnational entities, while cohesion uses the central government. This is a useful element since it allows us to consider simultaneously two different perspectives: the system in its entirety, and the subnational entities. The basic idea behind the development of the indicators is that they show how the balance was initially imagined by institutional designers, as well as how constitutional engineering may shift such balance. The toolbox of indexes for the measure of each indicator follows a comprehensive, maximalist approach, but the author interestingly suggests that they could be reduced to a more pragmatic, minimalist purpose. A first application of the indexes is made on the Belgian case, to appreciate the potential of the indicators to better grasp the dynamics of the state, how the institutional design imagined the proper balance between autonomy and cohesion, and how constitutional engineering might come into play shifting the system towards more or less centralization/integration. Moreover, Belgium is an emblematic example of federalism as a dynamic process, since it is a fragmented system which evolved from a decentralized state to a federation, and in which the debate on a possible shift towards a confederal settlement is highly topical.
The use of the indicators to measure cohesion and autonomy also allows identifying institutional “hubs for change”, to which is dedicated the third and last part of the book (“Measuring change”). Here, Popelier underlines that a theory of dynamic federalism is a theory of change, an aspect that in federal theory has been examined mainly by non-legal scholars, and that requires an interdisciplinary approach. Following the indexes developed in the previous part, the author proposes a method for measuring change, providing the “federalism potential score” and the “actual federalism score”. According to such a method, change is defined as the difference between the first and the second score. The resulting score (“informal change score”) displays the broadness of the gap between federalism in the books and federalism in action. Moreover, the author sketches the processes of change, identifying a series of possible drivers, distinguishing between sources, catalysts, strategies, and actors, and observing that federal dynamics do not necessarily follow a “pendulum” swing. In fact, incremental change has the potential to create dynamics that may change the system over time. It should be noticed that the proposed analysis of the dynamic relationship between autonomy and cohesion also allows measuring related phenomena, such as constitutional asymmetry, by subtracting the “actual federalism scores” of the subnational entities, an interesting and still underdeveloped aspect in federal theory. Furthermore, Popelier identifies a series of “hubs for change”, which may enable or hinder federal dynamics mostly using political control. These hubs are constitutional amendments, instruments for de-constitutionalization, techniques for the allocation of competencies, judicial and nonjudicial adjudicators of federalism conflicts, and institutionalization of global governance. Finally, the advanced hypothesis is that the stability of multi-tiered systems depends on two criteria, namely congruence criterion (i.e., the presence of institutional mechanisms) and the incongruence criterion (i.e., the stabilization of social dynamics through imperfect institutional mechanisms).
In conclusion, the author’s endeavors in trying to overcome the theoretical weaknesses of traditional federal scholarship, doing so from a legal perspective, is certainly fascinating. However, as Popelier repeats more than once in her book, “it takes an entire research community to develop a theory” (p. 5). In the final pages, the author also draws a way forward, proposing three items that need further research, namely the refinement of the indicators, the specification of multi-level relations, and the meaning of dynamic federalism in multinational systems. Moreover, it could be of interest to test the conceptualization of autonomy and cohesion on the non-territorial dimension of federalism, something that is not extensively explored in the book. Perhaps, the most crucial contribution to Popelier’s proposal would be to further test the indicators on many other cases, in a synchronic and diachronic comparison, to appreciate the developments of the proper balance between cohesion and autonomy over time. This would allow the author (and the research community) to further develop a theory on dynamic federalism, testing the hypotheses as well as the indicators. Aside from the specific topic, the book also offers a peculiar opportunity for comparative constitutional law scholarship to reflect on the importance of method and the definition of concepts to advance research.