Legal grounds: Agreement on Civilian Implementation (Annex 10)

When the Parties to Annex 10 of the GFAP (Republic of Bosnia and Herzegovina, Republic of Croatia, Federal Republic of Yugoslavia, Federation of Bosnia and Herzegovina and Republika Srpska) were signing the Agreement they probably might not have fully understood its hidden potential. However, it is obvious that certain international representatives and persons who participated in the peace negotiations – if not all of them – were not quite aware of the future role of the High Representative at the moment of signing the Agreement. The role of the High Representative in Dayton was the subject of heated discussions between the Europeans and the United States. The Europeans were of the opinion that a strong High Representative was a condition for the success of civilian implementation, and they wanted to prevent any attempt at saying that Bosnia and Herzegovina was under military occupation. The United States attached more attention to the heads of the SFOR, being afraid of civilian interference with (their) military part of the tasks.³³³¹

As with many other provisions of the Dayton Framework Agreement and its Annexes, the Agreement on Civilian Implementation of the Peace Agreement contains certain phrases which need an interpretation, or rather, which can be interpreted. So Annex 10 entrusted the High Representative to “facilitate” the Contracting Parties’ own effort and to mobilise the activities of the (international) organizations involved in the civilian aspects and, as appropriate, to coordinate their activities (Article I.2). The High Representative, to be appointed consistent with relevant United Nations Security Council resolutions, (“as entrusted by a U.N. Security Council resolution”), should achieve this by, inter alia, monitoring the implementation of the peace settlement (Article II.1(a)), by maintaining close contact with the Parties to “promote”³³³² (Article 1(b)) their full compliance with all civilian aspects of the peace settlement and a high level of cooperation between them and the organisations and agencies participating in those aspects by “facilitating, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation” (Article II.1(d)).³³³³ According to Article IV, the Parties “shall fully” cooperate with the High Representative and his or her staff, as well as with the international organizations and agencies.³³³⁴

If we have a look at the history of the High Representative’s decisions, we will see that his activities do cover all fields of the State and society.³³³⁵ He pulls all the strings or they intersect in his hands. However, in practice, the OHR was not only the coordinator, strategist or someone who gave encouragement, but it evolved into a body of supervision, order-issuing authority and a body which imposes sanctions. We could even say that three powers are united in the body of the High Representative. The aforementioned provisions make a poor basis for such broad powers to which the High Representative refers today. So it seems that Malcolm was not the only one considering pessimistically that with the exception of the Human Rights Chamber and the IPTF, the High Representative does not have real powers of enforcement, beyond the powers to advise, monitor and coordinate.³³³⁶ The real potential of Annex 10 can be seen in its Article V “Final Authority to Interpret”. The Parties transfer to the High Representative the final authority to interpret this Agreement on Civilian Implementation of the Peace Settlement.³³³⁷ Therefore, the High Representative interprets himself the norms regarding his powers. In practice, this power became something like a “competence-competence”.³³³⁸ Ipso facto the potential for deep international interventionism is contained in the wording of Annex 10. The High Representative extensively used this monopoly on interpretation by arrogating executive, legislative and judicial functions. It is true that this right is limited to the Agreement on Civilian Implementation of the Peace Settlement, i.e., Annex 10. However, as this Annex confers the powers to the High Representative to monitor, coordinate and promote the civilian implementation of the whole Peace Agreement, the High Representative’s power deriving from the final authority to interpret under Annex 10 was finally extended to all non-military agreements under the other Annexes.³³³⁹ Such a transfer of binding interpretation to a third person is not unusual in itself. It was just understandable in this case that none of the Parties was entrusted with such a task, since it appeared that they were not capable to reach an agreement upon it.

When intervening, the High Representative usually refers to the aforementioned Article V (“final authority”) and Article II.1(d) of Annex 10 (“facilitate”).³³⁴⁰ Simultaneously, he brings up the support (strictly political) of the Peace Implementation Council – PIC.

The PIC, which was established at the London Peace Implementation Conference in December 1995, consists of 55 countries and international organisations which support the peace process by providing financial assistance³³⁴¹ and by providing staff and take leading political decisions.³³⁴² The members of the Council meet every 6 to 12 months. The PIC Steering Board, as the executive arm of PIC, consists of Germany as the Presidency of the European Union, the European Commission, France, the United Kingdom, Italy, Japan, Canada, the Organisation of the Islamic Conference (represented by Turkey), Russia and the United States. The High Representative chairs weekly meetings of the Ambassadors to BiH of the Steering Board members. In addition, the Steering Board meets at the level of political directors every three months.³³⁴³ The Steering Board nominates the High Representative. The UN Security Council must approve the nomination. After Carl Bildt (12/95-6/97), Carlos Westendorp (6/97-7/99), Wolfgang Petritsch (8/99-5/02), Lord Paddy Ashdown (6/02-1/06), Christian Schwarz-Schilling (2/06-7/07) and Miroslav Lajčák (8/07-3/09), Valentin Inzko is the seventh High Representative in Bosnia and Herzegovina.

The PIC supports an extensive interpretation of the mandate of the High Representative considering that the High Representative, within the meaning of Article II.1(d) of Annex 10, may “facilitate” the resolution of difficulties relating to the civilian implementation of the peace settlement by, inter alia, as the High Representative judges necessary, taking binding decisions. Such decisions, according to the interpretation by the PIC, may relate, inter alia, to activities aiming at securing the implementation of the peace settlement, such as measures against State officials if the High Representative considers that they violate the obligations set down in the Peace Agreement or regulations relating to its implementation.³³⁴⁴ Having resort to an adequate interpretation of the term “facilitate” under Article II.1(d) of Annex 10, this may be understood as broadly as the High Representative finally can interpret – although he cannot amend – the provisions of other civilian agreements – (including Annex 4, i.e., the BiH Constitution). As to the competencies of the High Representative, the OHR, internally, says: “We can change all except the [BiH] Constitution.” Insofar as the BiH Constitution is concerned, “the intervention through interpretation” obviously competes with the competences of the BiH Constitutional Court under Article VI.3 of the BiH Constitution.³³⁴⁵ The interventions of the High Representative in other Annexes, particularly the BiH Constitution, therefore arise in practice as precise legal acts relating to the constitutional rights and obligations of citizens and institutions. These interventions are significant: the High Representative imposes laws, amends the Constitutions of the Entities, he can “freeze” the bank accounts of the parties, quashes decisions of the lower-instance courts, forbids certain persons to be appointed to certain offices or removes persons from office (even members of the Presidency) or persons holding certain social positions. The question which arises in this context is to know where the limit is of the intervention powers, whether there is a limit at all and who will supervise, if necessary, so that the limit will not be exceeded.

It is to be noted that initially the High Representative, in giving reasons for his decision as the legal grounds for his acting, did not refer to the resolutions of the UN Security Council. The current resolutions are not quite equivocal so that the High Representative has made efforts to indicate only Annex 10, i.e., the Agreement of the Parties, as a basis of his powers. Admittedly, “the Parties request the designation of a High Representative, to be appointed consistent with relevant United Nations Security Council resolutions”,³³⁴⁶ (Article I.2 of Annex 10) so that some stand for a view that neither the High Representative nor other international authorities (IPTF, IFOR) were created by the Dayton Agreement but by subsequent decisions of the UN and NATO and that the Agreements concluded in Dayton constitute only the Parties’ consent to the specific mandate of the aforementioned bodies in Bosnia and Herzegovina.³³⁴⁷

If we scrutinize the resolutions which the Security Council adopted within Chapter VII of the UN Charter – S/RES/1031 of 15.12.1995,³³⁴⁸ it becomes obvious that the High Representative is a body established by an agreement, that it is not a sub-body of the UN Security Council and that its authorities do not initially derive from the current resolutions of the UN Security Council despite the fact that the appointment to the position of High Representative depends upon the approval by the UN Security Council.³³⁴⁹

S/RES/1031 reads: “The Security Council, […] Acting under Chapter VII of the Charter of the United Nations, [… ¶] 26. Endorses the establishment of a High Representative, following the request of the parties, who, in accordance with Annex 10 on the civilian implementation of the Peace Agreement, will monitor the implementation […], and agrees the designation of Mr. Carl Bildt as High Representative; [¶] 27. Confirms that the High Representative is the final authority in theatre regarding interpretation of Annex 10 on the civilian implementation of the Peace Agreement; […].”³³⁵⁰

The clearest way to show the qualitative difference between the role of the Security Council and the High Representative is a comparison between the passages relating to the High Representative and corresponding passages of the same resolution relating to IFOR, whereby the Security Council “authorises” the Member States to ensure peace within the meaning of the indicated Annexes, explicitly and despite the fact that Annexes 1A and 2 provide the contracting basis for it.

Article 14 et seq. of Resolution S/RES/1031 stipulates: “The Security Council, […] Acting under Chapter VII of the Charter of the United Nations, [… ¶] 14. Authorizes the Member States acting through or in cooperation with the organization referred to in Annex 1-A of the Peace Agreement to establish a multinational implementation force (IFOR) under unified command and control in order to fulfil the role specified in Annex 1-A and Annex 2 […]; [¶] 15. Authorizes the Member States […] to take all necessary measures to effect the implementation of and to ensure compliance with Annex 1-A of the Peace Agreement […].”³³⁵¹

At a later point, when the authority of the High Representative commenced to be intensively called into question, the High Representative decided that his authority would rely not only on Annex 10 of the GFAP but also on the resolutions of the UN Security Council. He has done so by indicating that the Security Council, in Article 4 of Resolution 1174(1998) of 15 June 1998, “[…] reaffirms that the High Representative is the final authority in theatre regarding the interpretation of Annex 10 on civilian implementation of the Peace Agreement and that in case of dispute he may give his interpretation and make recommendations, and make binding decisions as he judges necessary on issues as elaborated by the Peace Implementation Council in Bonn on 9 and 10 December 1997.”³³⁵² Finally, the UN Security Council “explicitly confirmed” the PIC Declaration from Bonn (on the interpretation of the powers of the High Representative) in a number of resolutions: 1247 (1999), 1423 (2002), 1491 (2003), 1551 (2004), 1575 (2004), 1639 (2005) and 1722 (2006).

The OHR’s view was confirmed by the BiH Constitutional Court at the advanced stage of political discussions between the OHR and the Court. In Case No. AP 953/05,³³⁵³ the Constitutional Court deals with the issue whether the powers of the High Representative derive from, in addition to Annex 10, international law, whether the UN Security Council’s resolutions should be regarded as decisions within the meaning of Article 39 of the UN Charter and whether then Bosnia and Herzegovina, as a member state of the UN, is obliged, according to Article 25 of the UN Charter, to implement these decisions. The Court admits that it is not entirely clear that the relevant provisions of the Security Council Resolutions are decisions of the Security Council. It is not stated that they are decisions. However, they clearly go beyond mere recommendations, and Article 39 recognises only two formal acts in which the Security Council can promulgate acts under Chapter VII, namely recommendations and decisions. The BiH Constitutional Court therefore accepts that the relevant provisions of the Resolutions are decisions for the purposes of Article 25 of the Charter. In international law, the High Representative thus has power to make binding decisions, and authorities of Bosnia and Herzegovina have an obligation to co- operate with the High Representative, by virtue of both the General Framework Agreement for Peace and the Security Council Resolutions.³³⁵⁴

The arguments of the Court should not be rejected. However, there is a clear difference from the IFOR (SFOR), which is authorised. The argument that a resolution is more than a recommendation and as such it should be a decision which has normative force and thus must be implemented, is not convincing. In fact, the question should be the opposite one, i.e., whether the text of a resolution must set a norm, whether its aim is to achieve a legal effect. Taking into account the fact that the words selected in respect of the mission of IFOR are different (authorization), the mere confirmation of the existence of the powers of the OHR on the basis of the agreement between the Parties does not have the normative force which is necessary in order for this confirmation to be considered as legally constituent – if only subsequent – for the competencies of the OHR. It is beyond any doubt that that the confirmation and endorsement of the mandate of the High Representative give to his activities an additional political legitimacy but they do not constitute its mandate.

Again, if we accept that the role of the Security Council relating to Annex 10 is purely affirmative – thus not constituent – this would mean that the Parties to Annex 10 may at any time revoke the mandate of the High Representative. Taking into account the current situation which is relatively normalised in the country, we doubt that the Security Council would authorise – against the will of the Parties to Annex 10 – and thus impose the continuation of the civilian aspect of the Peace Agreement pursuant to Section VII of the UN Charter.

The difference in question finally does not change anything in the fact that Annex 10 obliges the Parties to comply with the orders given by the High Representative. If they consider the intervention as wrong, or they do not consider it as necessary any more, it is necessary to reach an agreement on the termination of his mandate by terminating Annex 10.