Back in 1998/99 I was one of the first people to point out that Bosnia's new post-war Constitution as promulgated by the Dayton Accords had a unique feature.
The Constitution was unconstitutional! It included obviously discriminatory clauses working against the interests of many citizens who were denied the chance to run for President in either Entity.
And lo!, eventually the European Court of Justice ruled as I had expected. Here is a long but steady analysis by Katie Engelhart of the history of the matter. She does not do justice to the ethno-constitutional machinations of the SFRY that set the framework for the Dayton deal, but no-one is perfect.
The issue is simple. The Constitution defines four 'constituent peoples' in Bosnia: Bosniacs, Serbs, Croats and 'Others'. The collective Presidency of BH is elected thusly: a Serb elected from the territory of Republika Srpska (one Entity), and a Bosniac and Croat elected from the territory of the Federation of Bosnia and Herzegovina (the other Entity).
What's wrong with this? 'Others' (eg Roma, Jews) get squeezed out completely. And a Serb living in the Federation or a Bosniac and Croat living in Republika Srpska can't run for President. Trivially discriminatory and unfair. These ethnic quota provisions have many other echoes at different levels of government in the two Entities and at the BH level, making it a serious obstacle to progress.
So how best to solve the problem? Not easy without a complete rewrite of Dayton?
The Bosnian Serbs have come up with an elegant (enough) if not crafty solution. To keep the three-person Presidency comprising one person from RS and two from the Federation, but not mention ethnicity at all except negatively: "No one constituent people can have more than one member represented in the Presidency".
That formula seems to do the job. It maintains a territorial element of representation and thereby respects the two-Entity Dayton deal, but it also means that in practice a Serb (99% certainly from RS) and a Bosniac and Croat (98% certainly from the Federation) will be elected. Plus anyone anywhere in Bosnia can campaign to be elected President. Freedom!
Clever.
But will it be ruled out just because the Serbs have proposed it? Maybe not. Has anyone any better ideas?
