Author: Lejla Gačanica

Border and Belonging

The maps of region, which used to show the borders of the former common state Yugoslavia, are now full of thick lines marking the borders of independent states as well as thin lines marking their internal units (entities, cantons, regions). Dilemmas are still present in case of the thickness of the line framing Kosovo and it is uncertain whether such a dilemma can 'spill over' to Bosnia and Herzegovina's borders. Kosovo, which is obviously still being treated as an 'open' question and unresolved issue (in the political discourse), is omnipresent – not only inside its borders but also beyond, as an occasional need to trip over the issue of Bosnia and Herzegovina and its internal structure. If it happened in Serbia, it can also happen in Bosnia and Herzegovina. Redrawing of borders, to be precise. Secession, to be even more precise. When such a construct is put in the context of the BiH - Dayton state, one awaits the reaction of nationalist (governing) parties almost by default. This analysis will, contrary to this, but also taking into consideration such a reality, attempt to review the issue of borders and the relationship between state-border-people-sovereignty as well as the relationship between states. The text below contains topics, which are not only important for understanding the existing discourses on borders of Bosnia and Herzegovina and their stability, but which also imply different perspectives: the causes for the importance of Bosnia and Herzegovina borders, the grounds for the need for a state and its borders, as well as the legal review of what borders are and where we actually stand. By answering the question ''whose'', i.e. who something belongs to, I am actually trying to answer the questions why there are the lines described at the beginning of this text and what they mean without additional (frequently nationalist) layers.

Whose war?

If we observe the conflicts in this part of Europe (1990s), we can immediately notice the link between the war and borders: not only was one of the goals of these wars to shift borders, the wars also ended as a result of border shifts. If the cause and consequence of the conflict are new borders – do they then guarantee the newly found peace? In our (specific) case, I would say that there are two answers: they do guarantee peace at the level of individual states as such, whose territory was  a theatre of war in a conflict (which means that the state territory was subject to conquest and negotiations). By defining borders after a war, a state confirms its legitimacy based on the territory, entering its borders on maps, not only for itself, but also for everyone else. Borders therefore ensures states statehood and identity , which guarantees stability at a higher legal level. On the other hand, our experiences teach us that borders are not completely  a guarantee of peace at the level of a society. Although we are aware of state borders (of our own state and neighbouring states), we are still living in fear from war (which is frequently mentioned as an option), in continuous political tension, which also includes interventions of other states. “Our” conflict is described as a frozen conflict, and the life in a state, whose borders are entered on official maps, boils down to the phrase 'Everything is fine, just as long as there is no war'. The relationship between the war and the state Bosnia and Herzegovina can be used as an example here: ''The state of war and consequences of war constitute a social constant, which offers a specific frame for interpreting and explaining constitutional constructs – in addition to the territorial component, other characteristics of the Bosnian constitutional model can be understood only based on the war. There is thus a close and real interdependency between the war in Bosnia and Herzegovina and its constitutional characteristics, so that they cannot be explained or put into a rationally acceptable relation one without the other'' (Šarčević 2009:67).

 

Wars have always been difficult, the suffering and traumas are still fresh, and what we have all 'gotten' from them boils down to borders. They have either been defended or conquered (depending on the percpective), but they are ultimately the result of the war that we have experienced as societies. It is therefore important to determine whose war it was. Of those persons that were on the front line; of those persons that were subject to displacements, torture, detention; of those persons who were collateral civilian victims; or those that ended up as refugees all over the world? The end of the war makes sense for the various victims – (at least) they have a state that they fought/suffered for. The borders of such a state are then not only a thick line on a map, they have a much greater meaning in terms of human and social aspects. And this perspective has to be taken into account when we speak about borders of these states. They are thus the guarantee of independence of these states, but also a source of continuous controversy in accepting, because it seems that citizens in Bosnia and Herzegovina and Kosovo in part still live in the 'unfinished' past, contesting everything but the fact that the conflict happened.

Whose country?

A border actually defines a country – homeland, state, territory. The notion of belonging sets the borders of the internal set-up of a country, marked by thin lines. The Dayton Peace Agreement confirmed the external borders and introduced internal demarcation lines in Bosnia and Herzegovina – it makes no sense to examine whether it could or should have been different, but we can question if this is functional solution. I am not thinking about erasing internal borders here (and I am also not thinking about initiation new internal borders), but rather about what the internal division has resulted in case of Bosnia and Herzegovina. It resulted in an excessive administration apparatus, an over-complicated system of competences, which prevents citizens from exercising their fundamental rights, and a fertile ground for corruption of any kind. On the other hand, the borders have cemented the social divisions that occurred during the war and they keep the dominant war narratives very much alive, continuing a policy according to which everyone should stay in their (ethnic) 'group'.

In his work ''Constitution as Homeland – About the German Suppression of the State'', Josef Isensee voices the opinion that the word homeland has disappeared from the political language and was replaced by the term identity. He therefore opens up the question: What does identity mean for a German, if the state is unable to offer it? The author also analyses the peculiarities of the German constitutional set-up, in which the old state reasoning was replaced by the ''constitutional reasoning''. Patriotism thus becomes a ''constitutional patriotism'', and the Constitution becomes homeland. The only patriotism still possible today is the ''constitutional patriotism'' (Isensee 2001). Our question here would also include the willingness to tie one's own identity to the constitution or to look for a homeland within given borders.

Whose border?

Headlines such as ''Is the region about to face a new redrawing of borders'' [L1], that can be found in the media and political discourse lately, warn about the impact of the 'Kosovo issue' specifically on Bosnia and Herzegovina. That was the actual reason for writing this text. Arbitrary and inflammatory discourse about the two countries of the region (Bosnia and Herzegovina and Kosovo), bringing them continuously in a mutually interdependent relationship, which prolongs and encourages the discourse about the fragility of borders and states, and at the same time justifies the intervention and challenges the sovereignty of the country by its neighbours. All of this is adequately clad in concerns regarding the stability of the region! In such a case, whose borders are we talking about and how are we doing it? Are these two countries in the region marked as states that need guardians, or do they actually need them? Do Bosnia and Herzegovina and Kosovo have the same state and legal position? Is there a connection or interrelation between the two of them regarding independence? How secure and stable are their thick lines on the map?

Although both territories have had very important contextual elements throughout the history, for the purpose of conciseness of the paper, the focus will be on the period from the Socialist Federal Republic of Yugoslavia (hereinafter: SFRY), i.e. the latest changes regarding their independence.

Bosnia and Herzegovina proclaimed independence from SFRY in 1992 (initially, the Parliamentary Assembly of Bosnia and Herzegovina adopted an Independence Memorandum in 1991; that same year, the European Community adopted the Declaration on Yugoslavia, in which all Yugoslav republics were asked to declare whether they wish to be recognised as independent states; the independence referendum was held on February 29 and March 1, 1992) and the official name of the new state was the Republic of Bosnia and Herzegovina. Its territory was the same as the one it had as a federal republic in the former SFRY. The European Community and the USA decided in 1992 to recognise Bosnia and Herzegovina as an independent state. That same year, the country became a member of the UNO. The proclamation of independence was followed by armed conflicts on the territory of the state. The Dayton Peace Agreement put an end to armed conflicts, and Article 4 of the Agreement contains the Constitution of Bosnia and Herzegovina, which reads: ''The Republic of Bosnia and Herzegovina, whose official name is now ''Bosnia and Herzegovina'', continues its legal existence in compliance with international law as a state, with its internal structure being modified by this Constitution and existing internationally recognised borders'' (Article I/1 of the Constitution). The borders of Bosnia and Herzegovina remained the same, namely the existing internationally recognised borders in the Dayton Peace Agreement/Constitution, and the internal set-up consists of two entities: Federation of Bosnia and Herzegovina and Republika Srpska. The subsequent Annex also regulates the status of Brčko District (2000). ''The preservation of the territorial integrity of Bosnia and Herzegovina has confirmed the views of the international community, which stressed the principle of territorial status quo of all states resulting from the dissolution of Yugoslavia'' (Miljko 2006:76).

The internal borders are the borders of the entities – although, in formal and legal terms, the entities do not have borders, but rather inter-entity demarcation lines (the demarcation lines between the entities were defined in the Supplement to Annex 2 of the Dayton Peace Agreement) and they do not have the status of a 'border', which makes it impossible to prevent the freedom of movement on the territory of the state (''No entity shall conduct any kind of control on the border between the entities''). The level of autonomy of the entities and Brčko District is defined in the Constitution itself: the entities have a relative constitutional autonomy (they have their own constitutions that must be in compliance with the text of the state-level Constitution), which means that the entities have the right to further specify the details of provisions of the Constitution of Bosnia and Herzegovina in their constitutions, but also to independently regulate those issues that the Constitution of Bosnia and Herzegovina has not defined as a state-level competence in a manner that is not contrary to provisions of the Constitution of Bosnia and Herzegovina (Ademović 2012:107). Furthermore, there is a division of competences between the state and entities/BD, and the entities have their legal, judicial and executive powers. In compliance with Article III/2a of the Constitution of Bosnia and Herzegovina, the entities have the right to establish separate parallel relations with the neighbouring countries, although this does not mean that they are competent for foreign affairs, which also includes contractual relations with the neighbouring countries and is a competence of the state.

''The two entities and BD are constituent elements of the state. Such a definition of the state territory is typical of complex states and has two meanings: 1) On the one hand, it means that the entity territory is at the same time state territory. Both government levels are entitled to exercise powers on that territory. The right of the state level government to implement sovereign state powers on the entity territory and the right of the entities to exercise their powers on their territories in principle depend on the constitutional division of competences between these two government levels and other documents regulating these relations. 2) On the other hand, this means that there is no state territory that does not belong to at least one of the entities. In other words, the state-level government does not dispose of exclusively state territory that belongs only to the supra-entity government level, in case of which the entities have no competences at all. '' (Ademović 2012:101).

After 23 years, both external and internal borders are the same, just as there is a narrative about the secession (RS) and a third entity (Croat). The imperfect state with all its complexities is simply tucked in the Dayton set-up, and the still fresh reasons for asking the questions such as 'whose war' and 'whose country' can be used as the necessary fuel for maintaining the status quo.

. . .

Kosovo was part of SFRY, and the 1974 Constitution gave Kosovo a wide autonomy and status of a federal unit of SFRY. The Parliament of Kosovo adopted a Constitutional Declaration (1990), in which Kosovo proclaimed its status of a republic, equal to other Yugoslav republics (Pavlica [L2]  2011).

What followed were parallel processes: the dissolution of the Parliament of Kosovo by Serbia, refusal to provide funds, as well as a secret establishment of institutions of the Republic of Kosovo and drafting of a new constitution. The unofficial independence referendum was held in 1991, as a result of which the ''unrecognised Republic of Kosovo was proclaimed to be independent from Yugoslavia… In the 1990s, Kosovo has become a police state governed by Belgrade.'' (Pavlica 2011). This territory was also marked by an armed conflict (the Kosovo war): the intervention of the international community stopped the conflict, and in compliance with Resolution 1244, Kosovo remained part of the Socialist Republic of Yugoslavia, but under the control of United Nations. The negotiations about the status of Kosovo started in 2006, and the Parliamentary Assembly of Kosovo proclaimed the independence of Kosovo in 2008, which was proclaimed to be illegal by the Government of Serbia. Kosovo was first recognised as a state by Costa Rica, Afghanistan, USA, France, Great Britain, Albania and Turkey that same year. The UN and EU did not have a common view, but rather left it to their member states to independently decide whether they wished to recognise the independence of Kosovo or not (most EU Member States recognised Kosovo). The International Tribunal in The Hague adopted an advisory opinion according to which the unilateral proclamation of independence of Kosovo does not constitute a violation of international law. In a series of agreements, Serbia 'recognised' certain elements of Kosovo, and it should be stressed that the very same elements constitute statehood characteristics (territory, documents, citizenship, institutions). At the moment, it seems that when it comes to the view of Serbia, we are no longer talking about the same dispute about the existence of a new state, but rather about the final negotiations regarding the firmness of new borders.

In both cases, the path to independence has been fraught with difficulty, violent, characterized by victims in case of which agreements are hard to reach. While the fight for the independence of Kosovo has lasted for a long time and included other repercussions in addition to a war conflict, the continuity of Bosnia and Herzegovina as a territorial unit has been longer and more stable throughout history – which is an important determinant, given the fact that the idea about the internal entity line has existed only since 1990s. The process of confirmation of the territory and establishment of a single state border somehow seems completed in Bosnia and Herzegovina: it has been formally specified in the peace agreement and became functional during the post-conflict state-building. In case of Kosovo, one has the impression that the process is still ongoing, and the opinions advocating an exchange of territories coming from the Kosovar side contribute to this impression. Such an approach also gives one the impression that there is still an open space for further controversies regarding the (non-)existence of Kosovo as a state with its own borders and territory. In case of a fragile peace, negotiations about borders do not spread unrest only in Serbia and Kosovo, but they also conjure up memories about the way in which borders were defined. Whose war and whose countries? If we bring this discussion back to the context of legal definitions of state and statehood, then we should remind ourselves of the basic elements that make a state are government, territory, population, jurisdiction. Specifically, the mentioned examples of Bosnia and Herzegovina and Kosovo make it visible to what extent all these elements are interrelated, conditioning one another and deriving their legitimacy from their own existence, in contexts in which states are born. If we seemingly focus on 'only' the issue of territories and borders, it is necessary to stress the following:

''The state territory is an important constitutional and legal term. In addition to the ''people of a state'' and ''government of a state'', it is one of the three terms that constitute indispensable elements of every state in terms of international law. In the legal sense of the word, the term ''state territory'' implies a space in which a state is authorised to exercise its sovereign power… the state territory is the line up to which its sovereignty goes. The exercise of sovereign power of a state and the right to disposing of state territory is called territorial sovereignty. The territorial sovereignty in terms of disposing of a state territory is a privilege of only the state-level government (federal, central government), and not of lower administrative and territorial level governments. '' (Ademović 2012:101).

Why are the consequences of 'separatist tendencies' considered to be important/dangerous for Bosnia and Herzegovina? I would say that the reason is the discourse about the internal set-up, where exist an interpretation that one entity of Bosnia and Herzegovina is always on the verge of secession. Such a rhetoric in the post-Dayton state has turned out to be an efficient tool for stirring up the masses, winning elections, ensuring an ideological connection to Serbia. The same rhetoric is also being used in the other entity as a tool for an inversed discourse. And the thin internal lines are thus successfully maintained in Bosnia and Herzegovina. And whenever a secession is mentioned anywhere in Europe, we anxiously ask ourselves whether it will be the trigger for a change of borders in our country as well. Still, we should remind ourselves here that the entities in Bosnia and Herzegovina are not ''member states that united, thus creating Bosnia and Herzegovina, so that they do not have the status of states in international law'' (Sahadžić 2006:25).

 

However, a topic that should truly be considered, given the idea of the Serbian and Kosovar exchange of territories, are the societies within these borders. According to the idea [L3] presented in case of Kosovo, the territories that would be exchanged would be those where the majority population are Serbs and Kosovars, which would mean that the new states would be more ethnically homogenous. The dangers of tendencies to create mono-ethnic states in this region are never negligible.

Within the borders, beyond belonging

''The Constitution does not include a definition of Bosnia and Herzegovina'' (Marković 2009:68), but it does describe it as a democratic state with a modified internal structure and state and legal continuity. The definition of Bosnia and Herzegovina as a state should be viewed from two angles: on the outside, it is a single state, and on the inside, it is complex (Ademović 2012:101). The discussions about the qualification of its state set-up are still ongoing (unitarian state, decentralised state, confederation, federation), but the borders and inter-entity demarcations remain firm. While it is possible to hear different interpretations about what was there first, the entities or the state, we re-examine ourselves in relation to what we belong to – to the thick or thin border? To what extent does the stability of borders depend on the social view of one's belonging to them, i.e. would we truly be willing to permit redrawing of borders? If the thick line  in case of Bosnia and Herzegovina is not held by the national (not nationalist!) identity, then it is defined/confirmed by a peace agreement. My question, as an answer to all cause and effect links between Serbia, Kosovo and Bosnia and Herzegovina, would be: can we do it better (differently)?

''Almost everywhere it is becoming increasingly difficult to conceptualise individual and collective 'belonging' – the relations between citizens have become controversial. '' (Muller 2010:15). Is there even a different direction when it comes to improving the states in which we live,  not being based on the secession? The concept of constitutional patriotism, which is also proposed as a form of belonging in deeply divided post-war societies, ''might be important for introducing a democratic system in societies with growing differences among the population which is trying to ensure some sort of a 'civic minimum' in order to determine their co-existence'' (Muller 2010:11). Given all the divisions that remain, we are still searching for what is 'ours'. Within internationally recognised borders.    

 


 

[L1]Link to: https://www.jutarnji.hr/vijesti/svijet/je-li-regija-pred-novim-prekrajanjem-granica-ovo-sto-se-na-kosovu-sprema-bio-bi-opasan-presedan-koji-bi-unistio-jedinstvenu-bih/7773033/

[L2] Link to: https://pescanik.net/savremena-istorija-kosova/

[L3] Link to: https://www.telegram.hr/politika-kriminal/srbija-i-kosovo-dakle-zele-prekrajati-granice-kako-bi-uspostavili-mir-koliko-je-to-opasno-za-europu-i-balkan/

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Sources used in the paper Mapping Belonging

Ademović, N., Marko, J., Marković, G., Ustavno pravo Bosne i Hercegovine, Konrad Adenauer Foundation e. V., Office in Bosnia and Herzegovina, Sarajevo, 2012.

Bieber, F., Power Sharing as Ethnic Representation in Post-Conflict Societies: The Cases of Bosnia, Macedonia and Kosovo, in A. Mungiu-Pippidi and I. Krastev, Nationalism after Communism. Lessons Learned, CEU Press, Budapest, 2004, pp. 231 – 247.

Dejtonski mirovni sporazum

Gavrić, S., Banović, D., Krause, C. (ur), Uvod u politički sistem Bosne i Hercegovine – Izabrani aspekti, Sarajevski otvoreni centar, Sarajevo, 2009.

Hambo, S., Florian Bieber for Klix.ba: Promjenom granica na Kosovu i BiH bi mogla osjetiti posljedice, Klix, August 28, 2018, available at: https://www.klix.ba/vijesti/bih/florian-bieber-za-klix-ba-promjenom-granica-na-kosovu-i-bih-bi-mogla-osjetiti-posljedice/180828099 (accessed on October 21, 2018)

Isensee, J., Ustav kao domovina, Polit. misao, Vol XXXVIII, No. 2, 2001., pp. 137–156.

Isense, J., Država, Ustav, Demokracija, Politička kultura, Zagreb, 2004.

Je li regija pred novim prekrajanjem granica?, Jutarnji list, August 29, 2018, available at: https://www.jutarnji.hr/vijesti/svijet/je-li-regija-pred-novim-prekrajanjem-granica-ovo-sto-se-na-kosovu-sprema-bio-bi-opasan-presedan-koji-bi-unistio-jedinstvenu-bih/7773033/ (accessed on October 21, 2018)

Miljko, Z., Ustavno uređenje Bosne i Hercegovine, Hrvatska sveučilišna naklada, Zagreb, 2006.

Muller, J.W, Ustavni patriotizam, Fabrika knjiga, Belgrade, 2010.

Pavlica, D., Savremena istorija Kosova, Peščanik, September 19, 2011, available at https://pescanik.net/savremena-istorija-kosova/ (accessed on October 21, 2018)

Perić, B., Pravna znanost i dijalektika, 3rd edition, Sveučilišna naklada Liber, Zagreb, 1976.

Pleše, M., Koliko je za Europu i Balkan opasna ideja Srbije i Kosova da do mira dođu prekrajanjem granica, Telegram, August 27, 2018, available at: https://www.telegram.hr/politika-kriminal/srbija-i-kosovo-dakle-zele-prekrajati-granice-kako-bi-uspostavili-mir-koliko-je-to-opasno-za-europu-i-balkan/ (accessed on October 21, 2018)

Šarčević, E., Dejtonski ustav: Karakteristike i karakteristični problemi, Konrad Adenauer Foundation e. V., Office in Bosnia and Herzegovina, Sarajevo, 2009.

 

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