The Dayton Constitution and/or the High Representative
The essence of the Dayton Constitution—its nature, effect over time, and current state near the end of its third decade of validity—is largely shaped by the location and method of its adoption, as part of a “contractual package” for peace in Bosnia and Herzegovina. Debates about the nature of this constitution and the state entity built upon it have not ceased. “These disputes have lasted since the time it (BiH, V. P.) was created at Wright-Patterson Air Force Base in Dayton, Ohio, USA. Since then, BiH has remained an ‘aeronautical creation.’
From its inception to today, it has floated more in the air than stood firmly on the ground” (Ratko Marković). A specialty of the neoliberal Anglo-Saxon kitchen has been simmering in the “Bosnian pot” on low heat—with occasional temperature increases—for a full thirty years. Even if three hundred passed, such a melting pot would not produce a quality fusion of its diverse ingredients.
Constitutional lawyers claim that the Dayton Constitution “is not a constitution in the true sense” (Rajko Kuzmanović). Mile Dmičić says that it is a constitution “both formally and materially specific and unknown in existing theory and practice.” It is, as we lawyers like to say—because the expression defines nothing precisely and obligates even less—a constitutional act sui generis. Yet, in the case of the Dayton Constitution, this label carries special weight. It points to all the vagueness, ambivalence, and provisional nature of something that ought to serve as a constitutional foundation for a—legally speaking—complex state. Although it is a written document, due to the Anglo-Saxon normative technique of its drafters, it contains subtle gaps and ambiguities that can be utilized according to the political situation. This constitution is not self-sufficient.
Thus, it is an almost unique example of a constitutional act that is part of a broader legal-political and international construction, built either directly on a peace agreement or, more often, simply by reference to it. This constitution was created to establish a constitutional-legal order that could not function independently, i.e., one that would not rely solely on domestic constitutional organs but also require foreign oversight. A special place is held by another sui generis institution, which is not even mentioned in the Constitution itself—the High Representative for BiH. This international political guardian is placed outside BiH’s constitutional-legal system, without formal or substantive powers of state authority, and without any defined duration of its “guardianship.”
This guardian, lacking constitutional definition, would prove to be the seed—and later the main source—of unconstitutional and broadly anti-Dayton activity. These are Anglo-Saxon specialties that, under the broader concept of constitutionality, encompass both legal and political elements—maintaining the appearance of the rule of law even when political factors dominate. That political factor first acts secundum constitutionem, seemingly assisting the constitution’s implementation, then increasingly praeter constitutionem, by amending the constitution to supposedly adapt to changing circumstances, and finally, more evidently, contra constitutionem. Within the first decade of BiH’s existence, it was already clear that the legal constitution (“original Dayton”) and the political constitution—created by unauthorized institutions—were diverging.
Provisions once thought temporary became permanent, drifting ever further from the letter and spirit of the Dayton Constitution and the broader Peace Agreement. Institutions meant to eventually disappear, like the High Representative, or to become localized, like the Constitutional Court of BiH—which still includes foreign judges but no longer has judges from Republika Srpska—have become permanent. However, they have not contributed to building an effective system. On the contrary, the process has moved in the opposite direction. A provisional arrangement, by nature, is not permanent—but it can become so if aligned with the old British principle of political utility.
Thus, arbitrariness and provisionality have become constants in BiH’s constitutional arrangement. This is the deep contradiction on which BiH rests. The state never had a real chance to adapt to its native environment as a “foreign child,” but instead adapted to its international political guardian—who seemingly had no interest in seeing the “child” grow up and mature. “The contradictions at the heart of the Dayton Constitution—born of its spirit of compromise (one state, two ethnically legitimized entities, both democracy and ethnocracy, both individual and collective rights)—have turned the constitution into a project of implementation and interpretation with an uncertain outcome, rather than a clear roadmap” (Steiner).
Democracy, regardless of deep social divisions along any line, must be based on dialogue between relevant internal political actors. It is always built from within. External oversight is rare; external dismantling is more common. The peoples in the Bosnian (and Balkan) pot must first take care of themselves—which also means preserving one another. As idealistic as it may sound, dialogue is the only tool, and peace the ultimate goal. Peace in BiH was achieved in 1995, but internal institutional dialogue objectively was not. Without it, not only is it impossible to build a functional state, but peace itself is like a fragile ceramic vase—standing in a way that any careless passerby can topple it. No genuine host, regardless of ethnic affiliation, can benefit from this—only suffer irreparable harm.
Speaking of foreigners, the institution of the High Representative does have legal grounding, but not in the Dayton Constitution, i.e., Annex IV, but in Annex X of the Peace Agreement. Thus, it is indisputable that the institution has a legal basis, but it was never envisioned as the highest state or constitutional body of BiH—or even as a state body at all. This institution was supposed to be an international legal assistant for the “implementation of the civilian aspects of the peace agreement.”
From that basic position arises the method of appointment, based on the international legal authority of the UN—specifically the UN Security Council and relevant resolutions. No other or alternative method of appointing the High Representative is legally permissible. The High Representative is not an institution with a defined term of office. It was conceived as a “mediator” in the civilian implementation of the peace agreement. Therefore, this mediation should have ended with the establishment of adequate legal, political, and institutional conditions for the normal and independent functioning of BiH’s constitutional order.
With this in mind, the appointment of the current High Representative by the Peace Implementation Council—which, according to the European Court of Human Rights, is an “informal group of states”—is illegal and illegitimate. No broader interpretations in this specific case are possible or legally acceptable.
The tasks of the High Representative, according to Annex X of the Agreement, are all accessory and mediatory in nature. The High Representative cannot even subsidiarily assume the powers of state authorities—whether legislative, executive, or judicial, let alone constituent. His “interventionism” was supposed to be limited to monitoring, assisting, guiding, and encouraging efforts related to maintaining peaceful functioning and relations between state institutions. According to Annex X, the High Representative is like the British Crown—able to advise, encourage, and be consulted—but not to decide or be an active, let alone omnipotent, political actor in the system.
The Bonn Powers adopted in 1997 by the Peace Implementation Council have no basis in the Peace Agreement. The fact that some High Representatives used them rarely or not at all does not change their essence. The “Bonn Powers” represent a political constitution upon which, over the years, a para-Dayton constitutional structure has been built. These are powers not only contra constitutionem in terms of Annex IV, but ones that have almost rendered meaningless the second main goal of the Dayton Peace Agreement: establishing a functional rule-of-law state grounded in democratic principles—a necessary and sufficient legal-political-sociological framework for coexistence among BiH’s three constituent peoples. The “Bonn Powers,” as Ratko Marković puts it, laid the foundation for the emergence of a new, effective “uncrowned king” of BiH—like Benjamin Kállay once was. With this political constitution, contrary to the legal one, the highest and even absolute power was handed over to a foreigner. From a supposed benevolent international guardian, the High Representative became the political architect of a parallel constitutional order—one with little to do with the legal and true Dayton Constitution. The High Representative has become the de facto sovereign legal and political “ruler” of BiH’s Dayton institutions—as well as new ones established outside or contrary to the Constitution (judicial bodies).
Therefore, it would not be amiss to initiate, in relevant international legal institutions, consideration of abandoning the institution of the High Representative. Perhaps this would positively influence national political leaderships to establish genuine institutional dialogue. The chances of such a scenario from today’s perspective are slim, but the institutional struggle for peace and stability in this region has no alternative.
This text was presented as a paper at the scientific conference “The Dayton Peace Agreement – 30 Years of Peace and Stability,” Academy of Sciences and Arts of Republika Srpska, March 21, 2025.
Source: RTRS
