Written by Nedim Hogic /Cross-posted from EJIL: Talk where it was posted on 10 December 2025
This year marks the thirtieth anniversary of the Constitution of Bosnia and Herzegovina. Known as the Dayton Constitution, after the city in Ohio where the final rounds of peace negotiations involving representatives from Bosnia and Herzegovina (BiH), Serbia, and Croatia took place, the Constitution was annexed to the Dayton Peace Accords (DPA) negotiated in that city and signed in Paris on December 14, 1995. The Constitution is often described as a straitjacket due to its preference for collective over individual rights, as reflected in numerous veto procedures that favor ethnic-based decision-making. Its shortcomings in representing citizens have been the subject of ECtHR jurisprudence, most notably in the Sejdic and Finci v. Bosnia and Herzegovina case. Additionally, the DPA empowered the international presence in BiH, which at the height of its peacebuilding efforts had 60,000 soldiers and at least 5,000 foreign civilian staff, issuing their own decrees to break the deadlock between the three sides, which has cast doubts over whether the country created in Dayton was sovereign or not.
These and other shortcomings played a significant role in the general perception of the Constitution’s lack of democratic legitimacy. The general view of international lawyers when it was signed — but never adopted by the BiH Parliament — was that it was intended as a transitional document (see here, here, and here). This meant that once the country stabilizes, a more inclusive and democratic process would be established, leading to the adoption of a new constitutional text, a significant amendment to the existing one, or, in the event of failure of such a process and the constitutional deal becoming impossible to implement, a break-up of the country. Despite efforts to empower local civil society organizations to lead the constitutional reform, and foreign-driven initiatives and proposals that were to move the country in that direction, thirty years later, the Constitution remains largely unchanged, with only one amendment regulating the status of the Brcko District, a small area in the north of the country that functions as a condominium of the two federal units called entities in the Constitution: the predominantly Serb Republika Srpska and the largely Bosniak-Croat Federation of Bosnia and Herzegovina. What explains this resilience of the Dayton Constitution?
International Ownership
Writing on international post-conflict constitution-making, Dann and Al–Ali accurately portrayed the constitution of BiH, along with those of Timor Leste, Iraq, and Sudan, as an instance of an internationalized pouvoir constituant. In this instance, rather than from popular sovereignty, the legitimacy of the constitutional text stems from the involvement of external actors. However, in the three other cases that the authors discuss, there was a strong drive by both the domestic and international actors to legitimize the constitution by increasing domestic ownership. The Bosnian constitution differs from these cases because it is gaining legitimacy despite lacking domestic ownership. Instead, the agency of domestic actors is focused on procuring favors, influence, and interference from the international actors, primarily Russia, the European Union, and the United States. As a result, international presence, operating through three main external checks on the domestic authorities – the Office of the High Representative, the three foreign judges (appointed by the ECtHR president) sitting at the BiH Constitutional Court, and the EU-led Althea peace mission – is still in place, playing a vital role in the country’s constitutional and security dynamics.
The conditions under which the war ended, and the constitution that was created seem to dictate the perseverance of the Dayton Constitution. The 1992 – 1995 war was not won by any of the three sides that fought it. The Bosnian Croats’ leadership favored a strong union with Croatia and had been under its military and payroll control, as evidenced by the ICTY judgments. The Bosnian Serbs favored joining Serbia, which materially and operationally helped them in achieving their war goals, whilele, according to the ICJ’s judgment in the Genocide case, did not retaining have full operational control over the Bosnian Serb armed forces. The Bosniaks favored an independent unitary state but managed to alienate the vast majority of the two other peoples from that goal. Neither of the three sides achieved their war aims.
Instead, the war was won by the international community, a term that sounds outdated today but was meaningful in the 1990s. This international community turned the country into a protectorate. Concerned about the slow implementation of the DPA, the international community established an informal group of states and international organizations, the Peace Implementation Council (PIC), which, in turn, created the Office of the High Representative (OHR) to oversee the implementation of civilian aspects of the DPA. Interpreting this authority broadly, the High Representatives understood that it includes the authority to remove officials and enact laws. And while the BiH Constitutional Court would occasionally strike these decisions down, in doing so, the Court validated the OHR’s authority to impose laws, viewing it as a substitute for domestic officials. Its decision to remove officials, however, was not subject to review by the Court. The ECtHR found that it had no jurisdiction over the OHR’s decisions due to the United Nations Security Council resolutions which approved the High Representative’s mandate. But whether the High Representative is operating within the boundaries of international law remains unclear. The current High Representative, German diplomat Christian Schmidt, was appointed by the PIC and not by the UN Security Council. In the latest debate in the UN Security Council, Russia and China opposed the OHR’s legitimacy, claiming that the PIC has had no authority to appoint high representatives. The prolonged controversies over the OHR’s authority might be resolved by an ICJ advisory opinion, but no such request has been made by the UN General Assembly or the Security Council, leaving the situation confusing.
Three Volatile Decades
However, the interaction between the international presence and BiH’s dominant political forces seems to follow a pattern. The first postwar decade (1996 – 2006) was characterized by strong interventionism of the OHR that was viewed with great distrust by the Bosnian Serbs and Croats, who believed it favored Bosniak demands for a stronger unitary state. In the early 21st century, when discussing democratic deficits and legitimacy was commonplace in European and International Law and politics, the interventionist nature of the High Representatives’ involvement in Bosnian politics was seen as incompatible with what was considered upcoming European integration. Building on this, the Serb political leadership seized the opportunity to delegitimize the OHR’s practice of imposing laws and engaged in a decade-long struggle to undermine its legitimacy. Additionally, Republika Srpska threatened secession and withdrawal from the national institutions whenever something that would even resemble a transfer of competencies from the entity to the national-level government was proposed by either domestic or external actors, thus creating a tension of constant constitutional crisis that made any considerations of making the Bosnian state more integrated impossible. During the second decade of the postwar BiH period (2006 – 2016), the OHR rolled back its interventionist policies, believing that domestic actors should be given a chance to resolve their differences with less foreign involvement.
From 2016, the third decade, seems to suggest a resurgence of OHR interventionism. Behind this resurgence lies a successful reframing of the Sejdic-Finci judgment carried out by the Bosnian Croat politicians. The judgment, as well as those that followed it, such as Pudaric, Pilav and Zornić, is based on the understanding that the Constitution needs to accommodate minority rights in order to achieve better democratic representation. The Bosnian Croat politicians have argued that the key to the implementation of these judgments is the issue of legitimate representation, by which they meant that, in order to be elected to the BiH Presidency, candidates should require a majority of votes from the ethnic group to which they belong and not a simple majority of votes. Such a stance, provoked by the results of the 2018 and 2022 general elections, at which the Croat member of the Bosnian tri-partite Presidency was elected without a majority of Croat voters, is difficult to be reconciled with the ECtHR jurisprudence that runs against ethnic exclusivity. The failed US mediation in constitutional affairs in 2022 sought a resolution to these matters. While this mediation effort failed, in October 2022, the OHR intervened by imposing amendments to the electoral law that favored some Croat demands but drew Bosniak backlash and failed to resolve ECtHR compliance. The examples from the three decades of postwar-BiH presented here in a simplified form, attest to the fact that the constitutional dynamics remained an important site of political contestation within the country. More importantly, it demonstrates that, rather than focusing on a coherent constitutional reform effort, the external influence appears to sway depending on the successful agenda-setting of the domestic actors.
Foreign Lobbying in lieu of domestic ownership
The ambivalent stance of the EU towards the constitutional reforms in BiH also contributed to the current impasse. At first, the EU believed that no constitutional reforms would be necessary for the country to join the bloc. Failed mediation in finding the common ground for enforcement of the Sejdic-Finci judgment in 2014 made the EU abandon the issue altogether. But, as the EU’s own rule of law conditionality expanded, demands towards the rule of law and constitutionalism expanded, its list of demands presented, so did its list of demands presented to the potential candidate states, to BiH for accession also expanded, dwarfing anything demanded of the new member states in the previous enlargements. In 2019, one of its “fourteen priorities” defined a long list of constitutional reform demands that included: ensuring legal certainty on the distribution of competences across levels of government; introduction of a substitution clause to allow the State upon accession to exercise competences of other levels of government to prevent and remedy breaches of EU law; reform of the Constitutional Court, including addressing the issue of the ECtHR appointed international judges; addressing Sejdic-Finci case law; establishing a judicial body entrusted with ensuring the consistent interpretation of the law throughout BiH; and eliminating veto rights in the bodies entrusted with EU acquis implementation.
The uncertainty over EU accession and the high expectations of domestic actors regarding the influence of foreign political forces hinder meaningful domestic negotiations over these demands. Instead, Croats anticipate that future EU integration will be driven by European demands for constitutional changes, which Croatia, as an EU member state, will try to influence in its favor. Bosniaks and Serbs compete for U.S. support: US Democratic administrations tend to support the Bosniaks, while Republican administrations favor the Serbs; during the latest US presidential election, Bosniaks rally their diaspora to vote for Democratic candidates, while Serbs do the same for Trump. By forming alliances with the global radical right, Serb leadership casts itself as a victim of a Muslim majority that pushes for a unitary state that would infringe on the rights of the Serb community. Through legislative initiatives that would limit the operations of foreign-funded NGOs or question gender equality, the government of Republika Srpska signals its belonging to a wider, global struggle of the radical right that aims to dismantle the international liberal order. Bosniaks, in turn, respond that the very existence of the country prevents further Russian influence in the region and that the normative foundations of European and International Law, enshrined in ECtHR jurisprudence, speak against the Constitution’s discriminatory nature.
Conclusion
The effect of all this posturing, signaling, and lobbying is not the imminent demise of the Bosnian state in its protectorate form. Rather, it is a signal that the international community that has, acting as the external constituent power that created this protectorate, no longer exists. Recognizing the fragmented nature of the world, different strains of lobbying emanating from BiH speak to different actors often within the same countries. But, due to the very nature of this fragmentation, the ultimate effect of all three lobbying strands has so far been to cancel each other out. Still, that very canceling keeps the primacy of internationalized constituent power unmoved and legitimized.
Ultimately, this, at least so far, prevented secession or a return to violence, the bar by which the Constitution is judged is set relatively low. Rather than being delegitimized, the model that the PIC uses for overseeing BiH might be applied elsewhere. As for BiH, it will remain divided until it finds a way to hold a truly democratic and inclusive constitution-making process.
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