13 - The Role of Parliaments in Creating and Enforcing Foreign Relations Law

Summary

The growing importance of foreign relations law raises the question of whether the traditional exclusion of parliaments from country’s foreign affairs is wrong and utterly flawed. While there are practical benefits in seeing foreign relations as belonging only to the executive branch, this approach undermines the potential for national parliaments to engage in developing this area of law. Hence, in this chapter I examine the role of parliaments in foreign relations law taking Bosnia and Herzegovina as an example. I argue that foreign affairs should be analysed as a matter of the distribution of powers between the executive and legislative branch, and not the exclusion of the foreign affairs power from the legislature. My main conclusion is that the impact of parliaments on foreign relations law depends on their role in a state and effective use of their competencies.

I Introduction

The growing importance of foreign relations law raises the question of whether the traditional exclusion of parliaments from a country’s foreign affairs is wrong and utterly flawed. While there are practical benefits in seeing foreign relations as belonging only to the executive branch, this approach undermines the potential for national parliaments to engage in developing this area of law.¹ Hence, in this chapter I examine the role of parliaments in foreign relations law taking Bosnia and Herzegovina (BiH) as an example.

BiH is particularly interesting in this regard for several reasons. Firstly, BiH has a unique constitutional framework and special relationship with international law due to the Dayton Peace Agreement (DPA).² Even though this uniqueness is in a certain tension with the approach to discuss the general question of the role of parliaments in foreign relations law, the example of BiH is interesting because it can show that the impact of parliaments on foreign relations law depends on parliaments’ role in a state and effective use of their competencies. Secondly, BiH has an extremely complex and multilevel system of state organisation as a result of the same treaty. Finally, the complex internal structure combined with weak institutions and the absence of a dedicated law on foreign relations³ leads to a large number of actors (international and domestic) that can and has a major role in creating and implementing foreign policy.

In this chapter, I will first provide some general information on the constitutional design in BiH, on the institutions established by the Constitution, and the general separation of powers as arranged by the Constitution. I will further examine the foreign relations law of BiH and the respective competencies of the Parliamentary Assembly of BiH (PA) in the implementation of the foreign policy. I argue that foreign affairs should be analysed as a matter of the distribution of powers between the executive and legislative branch, and not the exclusion of the foreign affairs power from the legislature.⁴ Finally, the chapter will turn to foreign relations law as a field of scholarship and research in this country. The chapter ends with conclusions and recommendations. This part of the chapter addresses some of the practical issues related to the smaller and larger role of the legislature in shaping foreign policy. It also addresses the future perspective of the role of parliaments in the issue under examination.

II A General Constitutional and Legal Framework in BiH

BiH is rather unique when it comes to (subsection A) its internal organisation and (subsection B) its relation to international law. This special position of BiH is owed to a violent international armed conflict that lasted on Bosnian territory from 1992 to 1995 and ended with the signing of the DPA with the Annex 4 serving as the Constitution for BiH.

A Internal Organisation of Bosnia and Herzegovina

One of the main questions raised during the negotiations of the DPA was a question of how to organise the internal structure of BiH. In an effort to end the war, the DPA was negotiated and signed by all three parties to the conflict, that is BiH, Croatia, and Serbia (along with the representatives from the European Union (EU), France, Germany, Italy, Russia, the United Kingdom and the United States). With so many parties to the agreement, the provisions therein represented a compromise of the parties’ respective interests. Consequently, the DPA achieved its main purpose of ending the war, but it left in place the ethnic division established by war. More specifically, the solutions provided by the DPA succeeded in preserving BiH as a sovereign state; however, it divided BiH into two parts: the Federation of BiH (decentralised and predominantly with Bosniac and Croat population) and Republika Srpska (relatively centralised and predominantly with Serb population). Furthermore, the Federation of BiH was divided into ten cantons with great powers and competencies. However, the complexity of the state organisation does not end there. In addition to these two Entities (and cantons in Federation of BiH), the town of Brčko became an independent district in 1999, being the only part of BiH not governed by the DPA.

As regards the institutions established by the Constitution and the issues of separation of powers as arranged by the Constitution, they are weak and reflect the ethnic divisions in BiH.⁵ This is an expression of a balance of power and a drafting compromise between the warring DPA parties.⁶ Against this background, all governmental functions and powers not expressly assigned to the institutions of BiH are within the jurisdiction of the Entities.⁷ As a consequence, many important areas such as education or the police apparatus have been constitutionally placed under the jurisdiction of the Entities, which is not the case for the field of foreign policy, however.⁸

The weak position of national institutions is further complicated by their ethnically defined structure.⁹ In addition, each of the constituent peoples¹⁰ has a veto power over all essential decision-making, that is, is entitled to invoke the ‘vital interest’ that enables them to block every proposal they deem harmful to their respective peoples.¹¹ This may, and very often does, paralyse the national institutions. It is worrying also for foreign policy which is a responsibility of the tripartite Presidency.¹² Even though the Constitution of BiH declares that the Presidency shall endeavour to adopt all Presidency decisions by consensus, and the conducting of foreign policy is particularly emphasised in this regard,¹³ this procedure may lead to stalemate of the Presidency and foreign policy. Namely, if no consensus is reached, two members of the Presidency may adopt a decision. However, the dissenting member may then declare a proposed decision to be destructive of a ‘vital interest’ of the Entity from the territory from which he/she was elected.¹⁴ In that case, a separate proceeding for the resolution of a dispute will be initiated.¹⁵ Accordingly, each of the constituent peoples may have a final say in the Presidency and foreign policy, which goes in line with my claim regarding a large number of actors that can have a major role in foreign policy in BiH.

Finally, in addition to these state-level institutions, both Entities, the Federation of BiH and Republika Srpska, have their own separation of powers-structures.¹⁶ Furthermore, the Brčko District has its own division of powers.¹⁷ Also, both Entities have their own Constitutions, while the Brčko District has the Statute of the Brčko District of BiH.¹⁸

B BiH and International Law

The Constitution of BiH and the DPA have led to a special situation of BiH vis-à-vis international law. The fact that the Constitution is a part of an international treaty enables it to be interpreted as a treaty defined by the 1969 Vienna Convention on the Law of Treaties.¹⁹ Furthermore, its content makes BiH uniquely open to international law. This is the result of the DPA makers trying to develop and to guarantee pluralism and non-discrimination of both the majority and minority in BiH with respect to the application and protection of the whole range of different legal instruments and human rights and freedoms. This is best demonstrated by:

1. ‐ The direct applicability of the fundamental freedoms of the European Convention of Human Rights (ECHR) and its Protocols;²⁰

2. ‐ The provision on the absolute supremacy of ECHR and its Protocols over all other law;²¹

3. ‐ The provision on an additional fifteen international conventions on human rights and protection of national minorities to be applied in BiH;²²

4. ‐ The provision stating that the general principles of international law shall be an integral part of the law of BiH and the Entities;²³

5. ‐ The provision that highlights that no amendment to the Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II, or alter this provision.²⁴

Furthermore, the DPA has established the Office of the High Representative (OHR)²⁵ as an ad hoc international institution responsible for overseeing implementation of civilian aspects of the DPA.²⁶ The OHR has the status of a diplomatic mission to BiH and its main task is to ensure that BiH evolves into a peaceful and viable democracy, as well as to serve as the final authority for interpretation of the DPA on the civilian implementation of the peace settlement.²⁷ The High Representative has the power to impose decisions in cases where BiH authorities are unable to agree or where important issues are being considered or require resolution. Consequently, in the past, the High Representative has removed elected officials from office, imposed numerous laws and bylaws, and banned individuals from running for office, among other measures.²⁸

Its work has been challenged in front of different courts. The main takeaway from these efforts has been that the foundation for the OHR’s legislative acts lies in international law²⁹ and, therefore, it cannot be challenged by courts (whether it is the Supreme Court of the Federation of BiH or Republika Srpska, the State Court of BiH, the Constitutional Court of BiH or even the ECtHR).³⁰ However, it is worth noting that after its adoption, relevant legislation becomes part of domestic law and is consequently reviewable by the Constitutional Court.³¹ More specifically, although the OHR is acting on the basis of international law, legislation that it adopts replaces acts of the PA and becomes part of domestic law (and, in accordance with the Constitution, all acts, regardless of who adopts them, are reviewable by the Constitutional Court). Therefore, the Constitutional Court can review the constitutionality of the content of legislation enacted by the OHR, but not whether there was enough justification for the OHR to enact the legislation in the first place.

It is thus not surprising that the work of the OHR has been, and still is, highly criticised.³² The main criticism is that the OHR has de facto, unlimited legal powers that are contrary to the essential democratic principles it promotes. On the other hand, there are also legitimate arguments that, due to the ethnic composition of BiH institutions and institutions on the substate level, the intervention of the OHR is welcome and often necessary.

In my view, even though the objections to the OHR are justified, its work (as well as the work of other international actors in BiH) is indeed still necessary. However, three points of concern stand out: first, its role should be more transparent and better explained to the citizens. Second, it should use its powers more effectively in critical situations for which it is made (which has been not the case since the former and most active High Representative Paddy Ashdown has left office). Finally, it should work towards enabling domestic actors to work fully independently.

Not only BiH, but also the Brčko District has a ‘special supervisor’. However, in 2012 the High Representative announced that the Brčko Supervisor would suspend his functions while retaining all his authority, as he believed that the District’s institutions now have the capacity to address their challenges on their own. Thus, while the Special Representative position continued to exist, the full responsibility for the District’s affairs were devolved to local administration.

Finally, the Constitution has articles that deal with the Entities’ relations with international law. Namely, the relations between them and foreign states are regulated in Article III(2)(a) and (d) of the Constitution. Pursuant to these provisions, Entities may establish ‘special parallel relationships’ with neighbouring states if these relationships are consistent with the sovereignty and territorial integrity of BiH. Each Entity may also enter into agreements with states and international organisations with the consent of the PA. However, the PA may provide by law that certain types of agreements do not require such consent.³³

C Shortcomings of the Current System

Although very open to international law and explicitly securing the enjoyment of the rights and freedoms to all persons in BiH without discrimination on any grounds, the BiH Constitution should and has been subject to a large amount of criticism. The main reason is its discriminatory nature, since it discriminates the very persons it should protect. The citizens not belonging to the mentioned ‘constituent peoples’ are being discriminated against, since they are ineligible to stand for election for certain prominent positions in BiH. However, it is not just them: Bosniacs, Croats, and Serbs are also discriminated against based on the territory in which they live (e.g. a Serb member of the Presidency may only be directly elected from the territory of Republika Srpska, thus discriminating all Serbs in the Federation by disabling them to choose ‘their’ representative in the Presidency).

This has led to several lawsuits against BiH before the ECtHR.³⁴ The most famous and widely discussed case among them is the Case of Sejdić and Finci.³⁵ However, even after more than ten years since the delivery of this judgment, the necessary reforms in BiH have not been adopted.³⁶ This has led to the characterisation of the situation in BiH by the Committee of Ministers of the Council of Europe as a manifest breach of the country’s obligations under the ECHR, as well as of its undertakings as a member state of the Council of Europe.³⁷ Thus, even though the BiH Constitution is continuously described as uniquely open to international law, the truth is that not all of its provisions are in line with international law. The scars of the war in the 1990s remain deeply enshrined in how BiH functions in general and the DPA continues to be the basis for the present political divisions of BiH.

The ‘world’s most complicated system of government’³⁸ has consequences for the foreign policy as well. The prominent role of the constituent peoples in the national institutional system combined with the substantial involvement of the international community leads to foreign policy being governed by a number of different and sometimes opposing actors. The domestic ethnically divided institutions (controlled by the same political parties for thirty years) disable genuine political change, making it impossible to reach decisions against the will of the ruling elites. On the other hand, the power of the international community represented through the OHR not only makes BiH foreign relations law dependent on international law but it also allows the previously mentioned domestic political actors to evade the political responsibility for their (in)actions. This reality does not lead to strengthened capacities of BiH institutions in exercising foreign affairs, nor does it lead to creation and implementation of common external goals. It only undermines institutional actions in the domain of foreign affairs and leads to political stalemate and institutional ineffectiveness.

Interestingly, the dependency of BiH foreign relations law on international law seems to be somewhat similar to the states in the ‘Global South’, as explained by Michael Riegner in his chapter. Notwithstanding the fact that BiH does not belong to the Global South, its foreign relations law, just like foreign relations law of the states in the ‘Global South’, does not shape the outside world as much as the outside world shapes their internal sphere. And although BiH’s constitutional structure adds a new layer of complexity to the study of foreign relations law, there is a similarity in terms of the openness to and acceptance of international law, which is expressed in their respective constitutions. By allowing a special status of international law within their domestic legal systems, these states try to derive the formal validity of their constitutions from international law, to modernise their image and to build up their reputation within the international community. Hence, the transnational and hybrid categories of their foreign relations law transcend the binary opposition between national and international, political and economic, while the normative functions of their foreign relations law include enhancing economic self-determination, socio-economic development and equality.³⁹ All these states also share a similar goal: to take a more prominent role in the international community, which makes their foreign policy issues more relevant over time.

III Bosnia and Herzegovina’s Foreign Relations Law

The foreign policy of BiH is implemented through the Presidency of BiH,⁴⁰ the Ministry of Foreign Affairs of BiH,⁴¹ and the resident and non-resident diplomatic and consular missions of BiH.⁴² There is no dedicated law on foreign relations in BiH yet.⁴³ Moreover, until March 2018, the only document specifically regulating foreign relations law in BiH were the three-pages-long General Guidelines on and Priorities of Conducting the Foreign Policy of BiH.⁴⁴ However, there are many other laws (including the Constitution) that deal implicitly with foreign relations.⁴⁵

‘The General Guidelines on and Priorities of Conducting the Foreign Policy of Bosnia and Herzegovina’ established the following as the priorities of BiH’s foreign policy:

1. ‐ Preservation and protection of the independence, sovereignty, and territorial integrity of BiH within its internationally recognised borders;

2. ‐ Full and consistent implementation of the DPA;

3. ‐ BiH inclusion into European integration processes;

4. ‐ Participation of BiH in multilateral activities; and

5. ‐ Promotion of BiH as a partner in international economic relations.⁴⁶

However, in March 2018, the Presidency of BiH decided to revise these guidelines and it adopted ‘The Foreign Policy Strategy of Bosnia and Herzegovina 2018–2023’ (hereinafter Strategy) establishing a wider framework on the activities of the relevant institutions of BiH in the realm of foreign relations law.⁴⁷ The Strategy was adopted in accordance with the constitutional competencies of the Presidency,⁴⁸ and the institutions of BiH are obliged to implement it.

Given that the global situation has changed since 2003 (the growing problem of terrorism and radicalism, the refugee crisis, challenges that the EU faces, etc.), the Strategy proposes several novel approaches to address these global challenges. However, it does not bring anything that has not been previously confirmed as foreign policy goal by the competent legislative and executive bodies of BiH.

Hence, this document states as its goal the establishment of a wider framework and guidelines on the activities of the relevant institutions of BiH in the realm of foreign policy.⁴⁹ It also emphasises the necessity for the Ministry of Foreign Affairs of BiH to prepare every two years a draft action plan with detailed objectives and priorities on the implementations of the Strategy.⁵⁰ In addition, it reiterates the obligation of the same Ministry in monitoring the implementation of the Strategy, as well as the Ministry’s duty to annually inform the Presidency of BiH on the efficiency of its implementation and suggests measures on redefining of the Strategy.⁵¹

As regards the principles of the foreign policy of BiH, the Strategy emphasises openness, equality, reciprocity, peaceful cooperation, and non-interference in internal affairs of other countries, as well as the protection and promotion of the BiH’s own basic constitutional principles, such as constitutionality, sovereignty, territorial integrity and the rule of law.⁵² Also, the respect for and protection of human rights and fundamental freedoms and the fight against all forms of violent extremism are stated as priority principles.⁵³ In addition and due to the uniquely complex political structure of BiH, the Strategy underlines the importance of the principle of consensus in every public appearance of foreign policy actors in the country.⁵⁴ Finally, efficiency, transparency, responsibility for the results achieved, together with the universally endorsed principles of international law and the general principles of diplomatic practice are among the principles of the implementation of BiH’s foreign policy.⁵⁵

The central part of the Strategy refers to the pillars of BiH’s foreign policy. Those pillars are the strategic directions and dynamic guidelines of the foreign policy of BiH within which the objectives of the Strategy shall be pursued. These pillars are, first ‘security and stability’, second ‘economic prosperity’, third the ‘protection of the interest of BiH’s nationals abroad and international legal cooperation’ and fourth and finally the ‘promotion of BiH in the world’.⁵⁶

These pillars are intertwined and depend on one another. Thus, economic prosperity cannot be achieved without the security and stability of BiH, while the promotion of BiH in the world is not possible without the protection of BiH’s interests and cooperation of BiH in international institutions.⁵⁷

In addition, the importance of BiH’s integration in EU and NATO, as well as dedication to values of the UN are highlighted.⁵⁸ Indeed, it can be said that from 1997 onwards,⁵⁹ all foreign relations policies of this country have been focused on BiH’s membership in the EU, and anything done by the relevant actors in BiH is expected to be done with the EU integration as a primary goal in mind.⁶⁰

There are both legal and political considerations associated with the compliance of Bosnian institutions and political actors with EU foreign policy declarations. Each country aspiring to become an EU member has committed itself to gradually align its policies and practices with the EU’s foreign policy activities, which is demonstrated through the adoption of foreign policy declarations and the eventual implementation of the measures that may result from them. Therefore, the majority of agreements signed jointly between BiH and EU, as well as BiH acts passed after its decision on the accession to the EU, highlight the duty of an increasing convergence of positions of BiH with the EU.⁶¹ In addition, this is important as it shows that BiH is trustworthy and can act in accordance with the obligations arising from concluded and accepted agreements as well as from any other obligation stemming from the European integration process.

However, the practice of the BiH institutions shows something different. Political actors in BiH work on the above-mentioned priorities and principles in only a declaratory fashion (and sometimes not even that). This has been emphasised by the European Commission, too.⁶² For example, the Strategy highlights the membership in NATO as one of the BiH’s priorities. However, the current chairman of the Presidency of BiH Milorad Dodik almost daily declares that BiH membership in NATO is unacceptable.⁶³

The second problem is that the three-member Presidency of BiH (as well as other BiH’s institutions) do not share the same views on a number of domestic and international issues. This is a major obstacle for every decision that must be made in BiH. For example, BiH has not yet recognised Kosovo as an independent state due to the lack of unanimity within the Presidency of BiH. Namely, Serb members of the Presidency throughout the years have always opposed this recognition as their policies are usually in line with Serbia.⁶⁴ The Ministry of Foreign Affairs is united with them on this issue as well.⁶⁵ Their stance is determined by the stance of Republika Srpska, which is strongly opposed to the recognition of Kosovo.⁶⁶ BiH is therefore currently the only country in the region other than Serbia that has not recognised Kosovo. This complicates not only the movement of people (‘it is easier to get to London than to Priština’) but also economic cooperation (e.g., in response, Kosovo at one point introduced 100 per cent Tariff on the import of goods from BiH).

The situation in BiH foreign affairs is nevertheless not all bad. From its independence onwards, BiH has presided over the UN Security Council and the Council of Europe, has been preparing applications for admission to memberships in NATO and EU, has contributed to international crisis management, peacekeeping and peace building missions worldwide, and has been solving its disputes with other states before international courts.⁶⁷ BiH has demonstrated that, even though it has been grappling with its own uniquely complex system of government, it has somehow succeeded in implementing some of its foreign policy goals. However, it is without question that BiH lacks an effective institutional apparatus and a clear strategy on foreign relations.⁶⁸

IV The Role of the Parliamentary Assembly of Bosnia and Herzegovina in Bosnian Foreign Relations Law

The role of the PA in the foreign policy of BiH is not much emphasised in the Constitution or any of the BiH laws. Pursuant to the Constitution, foreign policy is a responsibility of the institutions of BiH,⁶⁹ more specifically of the Presidency. Thus, the Presidency is responsible for conducting the foreign policy of BiH, for appointing ambassadors and other international representatives of BiH, for representing this country in international and European organisations and institutions and for seeking membership in such organisations and institutions of which BiH is not a member.⁷⁰ Furthermore, the Presidency is also responsible for negotiating, denouncing and ratifying treaties of BiH.⁷¹ Finally, its competencies include coordination of the country with international and nongovernmental organisations in BiH.⁷²

The Law on Ministries and Other Bodies of Administration of BiH details these issues further. It regulates that the Ministry of Foreign Affairs is responsible for the implementation of the foreign policy of BiH and development of BiH’s international relations.⁷³ However, it sets out that this should be done in accordance with the positions and directions of the Presidency of BiH. What is more, the same Ministry is responsible for proposing the adoption of positions concerning the issues of interest for foreign policy activities and the international position of BiH, as well as for representing BiH in foreign relations, and carrying out the professional tasks in relation thereto.⁷⁴ Pursuant to the regulations set out in the same Law, the Ministry of Foreign Affairs is responsible for proposing to the Presidency of BiH the establishment and termination of diplomatic or consular relations with other states, the cooperation with international organisations, as well as the preparation and organisation of international meetings and agreements.⁷⁵ Moreover, its competencies also include preparing documents, analyses, information, and other materials serving the needs of the bodies competent for the foreign policy implementation.⁷⁶

Nevertheless, for the reasons listed below, the role of the PA in the foreign policy of BiH is not insignificant.

Firstly, it has been highlighted that the Presidency is responsible for negotiating, denouncing, and ratifying treaties of BiH. However, it cannot do so without the consent of the PA.⁷⁷ This is confirmed by the Law on the Procedure of Concluding and the Execution of International Treaties.⁷⁸ Hence, even though the Law stipulates that international treaties on behalf of BiH are concluded by the Presidency of BiH,⁷⁹ the Presidency must, for the purpose of obtaining the prior approval for ratification, submit the concluded international treaty to the PA. The Presidency should also submit a detailed explanation of the need and conditions for concluding a considered treaty.⁸⁰ Thus, the PA decides to give (or not) prior consent for the ratification of an international treaty, while the Presidency, upon obtaining that consent, decides on the ratification of an international treaty. Additionally, the Council of Ministers is responsible for implementing international treaties, and shall notify the Presidency and the PA about said implementation at least once a year.⁸¹

Secondly, even though the Presidency shall decide on the cancellation or withdrawal from an international treaty (either on its own initiative or at the proposal of the Council of Ministers), it cannot do so without the prior approval of the PA.⁸²

Thirdly, it has been emphasised that the Ministry of Foreign Affairs is responsible for proposing the adoption of positions concerning the issues of interest for foreign policy activities and the international position of BiH, as well as for representing BiH in its foreign relations, and carrying out the professional tasks in relation thereto. However, it should report on these activities to, among others, the PA.⁸³

The controlling role of the House of Representatives of the PA is also reflected in its authority to confirm the appointment of the Council of Ministers of BiH, to oversee and control its work, and to vote no confidence when deemed necessary.⁸⁴

Furthermore, the House of Representatives has several Permanent Committees, including, among others, the Committee on Foreign Affairs.⁸⁵ Its jurisdiction is to monitor the conduct of foreign policy and to consider all issues in the field of international relations and foreign affairs.⁸⁶ This includes a role in adopting legislation in the field of foreign affairs.⁸⁷ This also includes engaging with the cooperation of BiH with international organisations and the international community, as well as inter-parliamentary cooperation with the respective parliamentary committees of other countries. In addition, the Committee considers granting and revoking consent to the ratification of international treaties, agreements and conventions.⁸⁸ The role of the Committee can also be important when it comes to the cancellation or withdrawal from an international treaty.⁸⁹ Therefore, perhaps the biggest influence of the PA on BiH’s foreign policy may be made through the work of this Committee. Nevertheless, this influence will depend on its very members. In fact, some of its Chairs have done everything in their power to minimise the role of the Committee.⁹⁰ As a result, the internal division and complexity of BiH have its impact on the work of this Committee as well.⁹¹ It seems as this Committee in BiH exists only formally. For example, the 2017 annual report of the Committee states that the Committee has held twelve sessions and adopted four conclusions. The average attendance of its members to its sessions was 70 per cent, and the sessions lasted on average 39.5 minutes. Therefore, the members of the Committee spent only eight hours in a whole year working on their tasks. Moreover, in the same year, this Committee had a meeting only with the Committee on Foreign Affairs of the Parliament of Italy. If compared to the previous reports, it seems also that the work of the Committee is decreasing and becoming less influential.⁹² Even though the Committee’s dependence on the work of other state organs is one of the reasons of its lack of efficiency, one of the main reasons is certainly the reluctance of its members to use the competencies given to them in the realm of foreign relations. Therefore, the Committee on Foreign Affairs has never effectively scrutinised the actions of the executive and its work is without practical effect in shaping the BiH’s foreign affairs.⁹³

In conclusion, it is obvious that the PA has instruments to influence the foreign policy of BiH. Certainly, a function that is primarily linked to the PA is the legislative function.⁹⁴ However, in executing such a role the PA has ways to influence the foreign relations, too. Thus, the role of PA in this area is indirect but can be significant. I believe that this is primarily due to two explanations: first, the legislature may slow down the executive in the conduct of foreign policy (and thus should not have any bigger role in this area). Second, it is important to have a certain level of control of the executive in carrying out the functions entrusted to it (ensuring therefore that the PA has a system of checks and balances). Namely, the PA’s size and probable non-expertise in foreign relations law are not practicable for foreign policies to be made by parliament directly. Members of the PA are not used to making and dealing with foreign policies. However, they are representatives of the people. On the contrary, the government and the ministries are used to working on foreign aspects and to doing so quickly. Since ‘good scrutiny makes for good government’,⁹⁵ the PA should and does have the means at its disposal to monitor the executive, to scrutinise its practice, and to keep it in appropriate bounds, ensuring both openness and efficiency. Its members should not be indifferent to issues of foreign relations. This does not mean they challenge executives but that they strengthen them.⁹⁶

However, the PA is currently mostly interested in domestic politics and the ethnic divisions, which brings foreign relations barely in its focus. Its members were largely elected because of their nationalist sentiment and membership in a particular political party, allowing the ruling elites to capture the PA. Also, the peculiar relationship between the international community and the PA (as well as other national institutions) has consequences for BiH foreign relations law too. The power of the OHR to act in substitution for the domestic institutions makes it a very relevant actor in BiH foreign affairs. Moreover, while acting as domestic institution, the OHR places himself above the domestic legal system, making BiH a unique example in this regard. Even though the OHR acts only if the PA had failed to act, and although his actions are less frequent than before, the mere fact that he possesses these powers contributes to the erosion of the boundaries between the domestic and international domain. Consequently, BiH foreign relations law is developing in the various and quite special connection between international and domestic law.

V Foreign Relations Law As a Field of Scholarship in Bosnia and Herzegovina

When it comes to the foreign relations law as a field of scholarship and research in BiH, it has been seen mostly as a part of the political and not legal scholarship. There have been virtually no scholars with exclusive and foremost expertise in this area. Most of the scholars have seen it as a part of some other, ‘bigger’ discipline, such as international relations or political science.

As far as law professors are concerned, international law professors and national law professors are partly isolated from each other, and they mostly teach one discipline or the other, although it is not uncommon that the same professor teaches courses in both public international law and public law fields. In addition, curricula for the courses are generally separated from one another and provide little connection between the disciplines.⁹⁷ Therefore, most courses either do not touch upon foreign relations law at all, or only sporadically mention it (for example, Public International Law curricula and/or Constitutional Law curricula). Thus, foreign relations law is taught scarcely and mostly within Public international law or/and Constitutional Law courses.

The state of affairs in BiH is comparable to other jurisdictions like China. As Congyan Cai explains with respect to Chinese foreign relations law,⁹⁸ few international lawyers at Chinese universities know constitutional law well and, vice versa, few constitutional law professors have much knowledge of international law.⁹⁹ Another similarity concerns the manner in which China and BiH conduct foreign relations; namely, the fact that political expediency is routinely invoked to justify the obscurity and low transparency in activities in foreign relations.¹⁰⁰ Finally, as in China, in BiH, there are two recent developments in foreign relation law that merit attention. The first concerns a recent important legislative initiative concerning foreign relations (explained earlier in this chapter). The second is related to the fact that recently this area began to grow in academic importance. Specifically, there has been an increase in the number of books and papers on the subject.¹⁰¹ Also, there are growing numbers of faculties and special study programs with a particular focus on foreign relations.¹⁰² Accordingly, it can be said that with the rise of BiH foreign relations, the interest for this topic is expanding as well. Yet, this still remains a largely unexplored research area in the legal discipline.

VI Conclusion

My main conclusion is that the impact of parliaments on foreign relations law depends on their role in a state and effective use of their competencies. Their means to impact the conduct of foreign relations become more diverse with the strengthening of their role in a state. Looking at the example of BiH, it seems that this impact can be seen mostly in the ratification of international treaties, in the use of committees on foreign affairs, and in the annual checks and reports. Nevertheless, the development of foreign relations law demands constant adaptation of methods of its implementation. I believe this competency should be used to a full extent as the increase in this practice can improve the quality and transparency of foreign affairs. However, both internal and external factors affect this effectiveness. Individual members of parliament (and its committee on foreign affairs) can also make a major contribution to this effectiveness. As a result, their personal views are vitally important.

This is especially true for BiH because its complicated internal system adds another layer of complexity to BiH foreign relations. Here, not only the political parties but also state institutions (as well as institutions on the substate level) are mainly organised along ethnic lines. With the general lack of trust between different ethnic groups, it is almost impossible to reach consensus on many questions. This makes BiH ineffective on a daily basis, including on foreign relations law. In this regard, a solution must be found to enact a constitution that institutes a legitimate form of government and guarantees the protection of all ethnic groups, while at the same time creating the shared political identity that transcends the dominant ethnic allegiances.¹⁰³

However, Bosnia’s extremely complex and multilevel system of state organisation is not the only feature that makes BiH special when it comes to foreign relations. Its constitutional structure also creates unique relationship between international and domestic sphere and has consequences for foreign relations law too. In particular, the OHR’s powers make BiH dependent on foreign actors’ decision-making process. The OHR can substitute himself for the national authorities, including the PA, and can even overrule the PA’s decisions. This makes the boundaries between ‘international’ and ‘domestic’ more fluid and can greatly affect the foreign relations law as well.

When it comes to foreign relations law in BiH, it is necessary to strengthen co-operation between the PA and the executive branch in the creation and implementation of foreign policy, as well as to strengthen the co-operation of the Committee on Foreign Affairs with parliamentary counterparts from other states. In addition, the importance of foreign relations law and major changes in the world order require an assessment of the effectiveness of the current system in achieving the goals set out in the 2018 Strategy. Currently, each and every conduct constituting relations of BiH with other countries is actually the result of improvisation arising from this general document. It is necessary to regulate this field by a more comprehensive act, which is also something that professional diplomats have been lobbying for since 2001.¹⁰⁴ It is also important to involve all relevant actors in drafting this act (from the academic community to business actors). This could reduce the possibilities for self-interested conduct of political parties in foreign policy, while leading to the development of foreign policy that is in the interest of BiH and its citizens.¹⁰⁵ It is therefore necessary to concretise the 2018 Strategy with clear directives for foreign affairs on the basis of the priority interests of BiH. The executive should remain the main figure in foreign relations law, but the scrutiny, guidance, and support of the PA must be enhanced. Otherwise, the potential of the PA will be wasted unnecessarily.

In conclusion, it is true that the traditional doctrine generally excludes parliaments from any role in the conduct of foreign affairs and that there are indeed practical benefits in seeing foreign relations as belonging only to the executive branch. However, the traditional approach seems much less persuasive today as it undermines the potential for national parliaments to engage in developing this field of law. The legislative branch can certainly add another layer of scrutiny and expertise to the foreign relations law. Therefore, the emphasis needs to be on the construction of more ‘bridges’ and the erection and shifting of fewer ‘boundaries’, respectively.