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Human Rights, Refugees and the EU: A Revisiting

Emanuel L. Paparella, Ph.D.

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I still remember when in the sixties and seventies the term “extra-communitarian” was banded about in the European political discourse. It designated all those who were non EU citizens.

It sounded strange to my ears. I would ask: does that mean that communitarian life, or the life characterized by solidarity, is the privilege of only those who form a community or a union, and everybody else is to be excluded? The answer to such a question I would usually get from EU citizens to whom I posed it, was more or less this: belonging to a political community does not mean that others who don’t belong to it lose their human and civil rights. Those are inalienable and belong to every human being. We would always tread humanely anybody who lands in the EU, legally, or even illegally.

I still was not completely satisfied with that answer: somehow that term “extra”, at least to my mind, still implied exclusion of some kind. Fifty or so years later I can declare with little equivocation that my hunch was right: extra-communitarian ultimately designated somebody who does not possess the human rights that those who belong to the Community (the EU) possess. It is the polity who proclaims them which grants them or withholds them. That was the Roman understanding of rights but it is not the Christian understanding. If anybody doubts this assertion, empirical evidence is now plentiful and available in the daily newspapers and TV News Broadcasts of every EU countries, as we speak.

I have written at length on this conundrum of human rights, its universalism and its pluralism, but perhaps it is now time to revisit the issue in light of the unfolding catastrophe in EU. Let’s begin with a brief historical survey. Beyond the judgment against the inhumane barbarism of Nazism, that triggered the United Nations’ Declaration on Human Rights, the great struggles facing issues of human rights and pluralism of post 1945 Europe and the West in general have had to do with racial justice, the rising parallel movements of equal rights for women, and the worldwide movements for de-colonization. The question however remains: are human rights in any sense universal, especially in view of the fact of a universally accepted, almost taken-for-granted modern pluralism?

To be sure, many people think about globalization only in economic terms. But this narrow understanding of our present situation, as if the economic challenges where not themselves largely a function of educational, technological, legal, communication, and, indeed, moral and spiritual developments, blinds us to one of the most difficult problems of universalistic principles in the face of pluralism, the conflict of values, of definitions of what is human and what is right as held by the world religions. The rights of so many people continue to be savagely violated in so many places, even in the very places who proclaim them, and the exigencies of earlier battles against domination by colonized peoples and now against threats of terrorism in many countries seem to justify the use of means that threaten the rights of groups and persons in ways that are more than “collateral damage.” For those who seek to defend civil rights and liberties and see them as a way to love their neighbors near and far, the potential erosion of the legal protections of civil rights and liberties is a matter of immediate and pressing practical concern.

This is caused by the denial that there are in fact inalienable human rights that stand beyond and above civil rights, which are granted by a state and thus can be withdrawn by civil authority. It makes human rights a function of state policy not a matter of universal principle. The world, after all, has known that murder is wrong for many centuries, and every people has laws against it. People know that murders occur, with very few “justifiable homicides.” But they also know that the empirical fact that things happen does not negate the normative principles by which we judge them. Today, the threat to human rights is deeper than their sometimes violation; it is a profound intellectual and spiritual problem, for many today doubt that we can have or defend any trans-empirical principles to judge empirical life. And that is the crux of the issue: human rights ideas were formulated historically by those branches of the biblically-based traditions, especially Jewish and Christian.

Those who doubt the validity of human rights do so on the ground that there neither is nor can there be a universalistic moral theology, master narrative, or jus naturale to support the idea. That, of course, is a universalistic claim in itself, ironically pressing toward universal moral relativism. Thus, they see “the West’s” pressure to affirm human rights as rooted in a positive jus civile of a particular civilization or (in some versions) in the philosophical or religious “values” of distinct traditions or historical periods of thought. The fact of the diversity of religions and cultures is taken as an argument for a relativism in normative morality. Thus, human rights are seen as a matter of socio-historical context. In this situation, to insist that all people be judged according to principles of human rights is seen as an act of cultural imperialism. In addition, some argue that such “values” are altogether too individualistic, and that since abstract individuals do not exist, only concrete persons-in-relationship do, we need an ethic based essentially in the particularities of specific community-embedded practices and duties.

To date, governmental claims that culture justifies deviating from human rights standards have been made exclusively by states that have demonstrably bad human rights records. State invocations of “culture” and “cultural relativism” seem to be little more than cynical pretexts for rationalizing human rights abuses that particular states would in any case commit. Yet these critics have one valid point that fuels their argument. They are partially correct insofar as they know that abstract principles and abstracted autonomous conceptions of human nature do not and cannot supply a full ethic for humanity or provide the general theory to guide a just and peaceful civil society in a global era. They also know that particular kinds of ethical obligations, rooted in specific traditions of duty, are authentic aspects of morality and identity and that the most significant of these are rooted in commitments that have become joined to religious loyalties, and that something precious would be lost or betrayed if these were denied.

In fact, most ethical issues, including those of human rights, require a synthetic judgment, one in which we must join normative first principles to the concrete matrices of experience by which we know events and read the existing ethos of our lives – that concrete network of events, traditions, relationships, commitments and specific blends of connectedness and alienation which shape the “values” of daily experience and our senses of obligation. It is not a case of “either or” but one of “both and.” The classic traditions of case-study, as well as the modern strictures of court procedure, exemplify this joining: they require both a finding of law, which involves the critical reflection on juristic first principles behind the law, and a finding of “fact,” which requires reliance on the experience-gained wisdom, often having to argue before a jury of peers. Moreover, they require an anticipatory assessment of the various consequences of various courses of action implied by a judgment about the interaction of principle and fact.

Indeed, it is theologically paradigmatic that following the accounts of the Decalogue in both Exodus and Deuteronomy, surely prime example of universalistic abstract principles, the next several chapters are repositories of the casuistic results of the blending of the implications of those principles with the situations that people experienced concretely in their ethos. That joining rendered judgments that are held to contribute to the well-being of the common life and to the development of a morally righteous people. Similarly, much in the prophetic tradition makes the case against the infidelities of the people and/or the people in power by identifying the enduring principles in the covenants of old, the experience of social history in the present, and the prospects for a bleak, or a redeemed, future according to human deserts and divine mercy.

And, for Christians specifically, to deny that any absolute universal can be connected to the realities of concrete historical experience in ways that lead to a redeemed future, is in fact a denial of the deepest insight of their faith: that Christ was both fully God and fully human, and that his life both fulfilled the commands of God, was concretely lived in the midst of a specific ethos, and nevertheless pointed to an ultimate future that we could not otherwise obtain. This should be our first lesson in understanding the bases of human rights. They foster specific kinds of pluralism first of all because theologically-based moral judgments are, in principle, demanding of a universalistic reference point, but are simultaneously pluralistic in their internal structure.

It is hard not to arrive at the conclusion that the affirmation of such “universal absolutes” as those stated in the Ten Commandments and less perfectly embodied in human rights provisions of our historic constitutions and such documents as the United Nations Declaration are compatible with, and in fact seen most profoundly by, certain strands of the deeper theological heritage; and that moreover without the impetus of theological insight, human rights concepts would not have come to their current widespread recognition, and that they are likely to fade over time if they are not anchored in a universal, context-transcending metaphysical reality.

Without knowing what the race, gender, nationality, cultural background, social location, political preferences, character, or network of friends of a person are, we must say, abstractly, “some things ought never to be done to them;” and if persons, to live and sustain some shred of dignity in the midst of some one or other of such situations need help, “some things ought to be done for them,” which implies that other people and institutions must limit their powers with regard to persons, and not to define the whole of the meaning of a person by the communities, traditions, and habits in which they are embedded. This means also that, in some ways, a profound individualism, in the sense of the moral inviolability of each person, in contrast only to communitarian regard, is required.

Christians and many Jews hold this view because they believe that each person is made in the “image of God.” That is, they have some residual capacity to reason, to will, and to love that is given to us as an endowment that we did not achieve by our own efforts. And while every one of these areas of human life is at least imperfect, often distorted by sin, obscured by false desires or corrupted by exterior influences in sinful circumstances, the dignity conferred on us by the gift of the “imago” demands both a personal regard for each person, and a constant drive to form and sustain those socio-political arrangements that protect the relative capacities to reason, to chose, to love that are given with this gift.

Moreover, Christians hold that each person is called into particular networks of relationships in which they may exercise these capacities and to order these networks with justice, as God guides us to be just and loving agents in the world. We believe that in Christ, we learn how God wants us to re-order the institutions of the common life – sacramentally, or as others say, covenantally – that are necessary to preserve humanity, and how to make them and ourselves more nearly approximate to the redemptive purposes God has for the world. Those Christians who know the history of the development of the social and ethical implications of their faith, believe that the historical and normative defense of human rights derives from precisely these roots and that this particular tradition has, in principle, in spite of many betrayals of it by Christians, disclosed to humanity something universally valid with regard to human nature and the necessities of just social existence.

The implication of this tradition for pluralism and human rights is signaled by the direct mention of the term “church.” The formation of the Christian church, anticipated in certain sociological ways, of course, in the older traditions of the synagogues and, to a degree, in the ancient Mediterranean mystery cults, was a decisive influence in the formation of pluralistic democracy and in the generation of civil society with legal protection of the rights of free association. One of the greatest revolutions in the history of humanity was the formation of institutions differentiated from both familial, tribal and ethnic identity on one hand and from political authority (as under the Caesars, Kaisers, and Czars of history), as happened in early Christianity by slowly making the claim stick that the church was the Body of Christ with an inviolable, divine sovereignty of its own.

Historically, no society has ever existed without a religion at its center and no complex civilization capable of including many peoples and sub-cultures within it has endured without a profound and subtle religiously oriented philosophy or theology at its core. The present world-wide rhetoric and legal agenda of human rights, with its several “generations” of rights is deeply grounded in a highly refined critical appropriation of the Biblical traditions; but many of the current activists on behalf of human rights have little place for religion or theology in their conception of what they advocate. Can it endure without attention to its origins? I for one doubt it. Jefferson would have been the first to honestly admit that he did not invent the concept of inalienable right, that it was already imbedded in the Judeo-Christian ethos, and that it condemned him or any institution or state too in as much as they tolerate the holding of slaves.

Thus our task is to identify where, in the depths of all these traditions, that residual capacity to recognize and further refine the truth and justice of human rights insights lies, for this is necessary in order to overcome what, otherwise, is likely to become a “clash of civilizations.” As I see it, the real tragedy what is currently going on in the EU regarding the refugee crisis, is that the EU has in its possession the tools for resolving it: those tools are the intellectual-spiritual ideals of its founding fathers which were and remain founded on the Judeo-Christian patrimony based on respect, even reverence for universal human rights. I dare say that even the ideals of the French Revolution ultimately are derivative from the Judeo-Christian tradition. In any case those ideals remain abstract based on a brotherhood devoid of Fatherhood. On the other hand, the Christian inalienable universal human rights are based on brotherhood and a necessary Fatherhood, with no “extra” envisioned either on the side of privilege or on the side of exclusion. There are no extras in the eyes of God. Europa, nosce te ipsum!

 

Author’s note: this note has also recently appeared in Ovi magazine.

Professor Paparella has earned a Ph.D. in Italian Humanism, with a dissertation on the philosopher of history Giambattista Vico, from Yale University. He is a scholar interested in current relevant philosophical, political and cultural issues; the author of numerous essays and books on the EU cultural identity among which A New Europe in search of its Soul, and Europa: An Idea and a Journey. Presently he teaches philosophy and humanities at Barry University, Miami, Florida. He is a prolific writer and has written hundreds of essays for both traditional academic and on-line magazines among which Metanexus and Ovi. One of his current works in progress is a book dealing with the issue of cultural identity within the phenomenon of “the neo-immigrant” exhibited by an international global economy strong on positivism and utilitarianism and weak on humanism and ideals.

Europe

Election Monitoring in 2018: What Not to Expect

Alina Toporas

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This year’s election calendar released by OSCE showcases a broad display of future presidential, parliamentary and general elections with hefty political subjecthoods which have the potential of transforming in their entirety particularly the European Union, the African Union and the Latin American sub-continent. A wide sample of these countries welcoming elections are currently facing a breadth of challenges in terms of the level of transparency in their election processes. To this end, election observation campaigns conducted by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), the Council of Europe, the Organisation for American States (OAS), the United Nations Electoral Assistance Division, the National Democratic Institute, Carter Center and even youth organisations such as AEGEE and Silba are of paramount importance in safeguarding the incorruptibility of election proceedings in fraudulent and what cannot be seen with the naked eye type of fraudulent political systems, making sure elections unfold abiding national legislation and international standards.

What exactly does an election observation mission supposed to accomplish?   

An election monitoring mission consists of operational experts and analysts who are all part of a core team and are conducting their assignments for a period of time varying between 8 and 12 weeks. Aside from the core team experts and analysts, there can be short-term or long-term observers and seconded observers or funded observers. Joining them, there is usually a massive local support staff acting as interpreters and intermediaries. Generally, an election observer does not interfere with the process, but merely takes informative notes. With this in mind, it is imperative of the observer to make sure there isn’t any meddling with votes at polling stations by parties and individual candidates; that the people facilitating the election process are picked according to fair and rigorous benchmarks; that these same people can be held accountable for the final results and that, at the end of the day, the election system put in place by the national and local authorities is solid from both a physical and logical standpoint. Oftentimes, particularly in emerging democracies, the election monitoring process goes beyond the actual process of voting by extending to campaign monitoring.

In practical terms, the average election observer needs to abide by certain guidelines for a smooth and standardised monitoring process. Of course, these rules can vary slightly, depending on the sending institution. Typically, once the election observer has landed in the country awaiting elections, their first two days are normally filled with seminars on the electoral system of the country and on the electoral law. Meetings with candidates from the opposition are sometimes organised by the electoral commission. Talking to ordinary voters from builders to cleaners, from artists to businesspeople is another way through which an election observer can get a sense of what social classes pledged their allegiances to what candidates. After two days in training and the one day testing political preferences on the ground, election day begins. Since the early bird gets the worm, polling stations open at least two hours earlier than the work day starts, at around 7am. Throughout the day, observers ask voters whether they feel they need to complain about anything and whether they were asked to identify themselves when voting. Other details such as the polling stations opening on time are very much within the scope of investigation for election monitors. Observers visit both urban voting centres and rural ones. In the afternoon, counting begins with observers carefully watching the volunteers from at least 3 metres away. At the end of the day, observers go back to their hotels and begin filling in their initial questionnaires with their immediate reactions on the whole voting process. In a few weeks time, a detailed report would be issued in cooperation with all the other election observers deployed in various regions of the country and under the supervision of the mission coordinators.   

Why are these upcoming elections particularly challenging to monitor?  

Talks of potential Russian interference into the U.S. elections have led to full-on FBI investigations. Moreover, the idea of Russian interference in the Brexit vote is slowly creeping into the British political discourse. Therefore, it does not take a quantum physicist to see a pattern here. Hacking the voting mechanism is yet another not-so-classic conundrum election observers are facing. We’re in the midst of election hacking at the cognitive level in the form of influence operations, doxing and propaganda. But, even more disturbingly, we’re helpless witnesses to interference at the technical level as well. Removing opposition’s website from the Internet through DDOS attacks to downright political web-hacking in Ukraine’s Central Election Commission to show as winner a far-right candidate are only some of the ways which present an unprecedented political savviness and sophistication directed at the tampering of the election machinery. Even in a country such as the U.S. (or Sweden – their elections being held September of this year) where there is a great deal of control over the physical vote, there is not much election monitoring can do to enhance the transparency of it all when interference occurs by way of the cyber domain affecting palpable election-related infrastructure.

Sketching ideational terrains seems like a fruitful exercise in imagining worst-case scenarios which call for the design of a comprehensive pre-emptive approach for election fraud. But how do you prevent election fraud? Sometimes, the election observer needs to come to terms with the fact that they are merely a reporter, a pawn which notwithstanding the action of finding oneself in the middle of it all, can generally use only its hindsight perspective. Sometimes, that perspective is good enough when employed to draft comprehensive electoral reports, making a difference between the blurry lines of legitimate and illegitimate political and electoral systems.

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Europe

Can Europe successfully rein in Big Tobacco?

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Photo by Mateo Avila Chinchilla on Unsplash

In what looks set to become the ‘dieselgate’ of the tobacco industry, a French anti-smoking organization has filed a lawsuit against four major tobacco brands for knowingly selling cigarettes with tar and nicotine levels that were between 2 and 10 times higher than what was indicated on the packs. Because the firms had manipulated the testing process, smokers who thought they were smoking a pack a day were in fact lighting up the equivalent of up to 10, significantly raising their risk for lung cancer and other diseases.

According to the National Committee Against Smoking (CNCT), cigarettes sold by the four companies have small holes in the filter that ventilate smoke inhaled under test conditions. But when smoked by a person, the holes compress due to pressure from the lips and fingers, causing the smoker to inhale higher levels of tar and nicotine. According to the lawsuit, the irregularity “tricks smokers because they are unaware of the degree of risk they are taking.”

It was only the most recent example of what appears to be a deeply entrenched propensity for malfeasance in the tobacco industry. And unfortunately, regulatory authorities across Europe still appear unprepared to just say no to big tobacco.

Earlier this month, for instance, Public Health England published a report which shines a positive light on “tobacco heating products” and indicates that electronic cigarettes pose minimal health risks. Unsurprisingly, the UK report has been welcomed by big tobacco, with British American Tobacco praising the clear-sightedness of Public Health England.

Meanwhile, on an EU-wide level, lawmakers are cooperating too closely for comfort with tobacco industry executives in their efforts to craft new cigarette tracking rules for the bloc.

The new rules are part of a campaign to clamp down on tobacco smuggling, a problem that is particularly insidious in Europe and is often attributed to the tobacco industry’s own efforts to stiff the taxman. According to the WHO, the illicit cigarette market makes up between 6-10% of the total market, and Europe ranks first worldwide in terms of the number of seized cigarettes. According to studies, tobacco smuggling is also estimated to cost national and EU budgets more than €10 billion each year in lost public revenue and is a significant source of cash for organized crime. Not surprisingly, cheap availability of illegally traded cigarettes is also a major cause of persistently high smoking rates in the bloc.

To help curtail cigarette smuggling and set best practices in the fight against the tobacco epidemic, the WHO established the Framework Convention on Tobacco Control (FCTC) in 2005. The first protocol to the FCTC, the Protocol to Eliminate Illicit Trade in Tobacco Products, was adopted in 2012 and later ratified by the EU. Among other criteria, the Protocol requires all cigarette packs to be marked with unique identifiers to ensure they can be tracked and traced, thereby making smuggling more difficult.

Unsurprisingly, the tobacco industry has come up with its own candidates to meet track and trace requirements, notably Codentify, a system developed by PMI. From 2005 through 2016, PMI used Codentify as part of an anti-smuggling agreement with the EU. But the agreement was subject to withering criticism from the WHO and other stakeholders for going against the Protocol, which requires the EU and other parties to exclude the tobacco industry from participating in anti-smuggling efforts.

The EU-PMI agreement expired in 2016 and any hopes of reviving it collapsed after the European Parliament, at loggerheads with the Commission, overwhelmingly voted against a new deal and decided to ratify the WHO’s Protocol instead. Codentify has since been sold to the French firm Impala and was rebranded as Inexto – which critics say is nothing but a front company for PMI since its leadership is made out of former PMI executives. Nonetheless, due to lack of stringency in the EU’s draft track and trace proposal, there is still a chance that Inexto may play a role in any new track and trace system, sidelining efforts to set up a system that is completely independent of the tobacco industry.

This could end up by seriously derailing the EU’s efforts to curb tobacco smuggling, given the industry’s history of active involvement in covertly propping up the black market for cigarettes. In 2004, PMI paid $1.25 billion to the EU to settle claims that it was complicit in tobacco smuggling. As part of the settlement, PMI agreed to issue an annual report about tobacco smuggling in the EU, a report that independent researchers found “served the interests of PMI over those of the EU and its member states.”

Given the industry’s sordid history of efforts to prop up the illicit tobacco trade, it’s little surprise that critics are still dissatisfied with the current version of the EU’s track and trace proposal.

Now, the CNCT’s lawsuit against four major tobacco firms gives all the more reason to take a harder line against the industry. After all, if big tobacco can’t even be honest with authorities about the real levels of chemicals in their own products, what makes lawmakers think that they can play a viable role in any effort to quell the illegal cigarette trade – one that directly benefits the industry?

Later this month, the European Parliament will have a new chance to show they’re ready to get tough on tobacco, when they vote on the pending proposal for an EU-wide track and trace system. French MEP Younous Omarjee has already filed a motion against the system due to its incompatibility with the letter of the WHO. Perhaps a ‘dieselgate’ for the tobacco industry might be just the catalyst they need to finally say no to PMI and its co-conspirators.

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Bureaucrats’ Crusade: The European Commission’s Strategy for the Western Balkans

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The European Commission set a target date of 2025 for some of the Balkan countries to join. However, Brussels sees only Serbia and Montenegro as actual candidates. The door formally remains open to Albania, Bosnia-Herzegovina, Kosovo and Macedonia, but these countries have been put into a grey zone with no time frames and road maps. They have been put on hold with no tangible prospects for membership, left without any explanation of what makes them less valid candidates than Serbia and Montenegro, with these two being as poor, illiberal and undemocratic as the remaining four.

With a dose of instant cynicism, one might conclude that Serbia and Montenegro have been rewarded for their military aggressions on Bosnia and Kosovo, and Serbia’s permanent pressures on Macedonia, whereas the latter ones have been punished for being the former’s victims. However, a more careful look at the population structure of the four non-rewarded countries reveals that these, unlike Serbia and Montenegro, have a relative excess of Muslim population. So far, there have been dilemmas whether the European Union is to be regarded as an exclusive Christian club, bearing in mind the prolonged discriminatory treatment of Turkey as an unwanted candidate. After the European Commission’s new strategy for the Balkans, there can be no such dilemmas: the countries perceived by Brussels bureaucrats as Muslim ones – regardless of the actual percentage of their Muslim population – are not to be treated as European.

The resurrection of this logic, now embodied in the actual strategy, takes Europe back to its pre-Westphalian roots, to the faraway times of the Crusades or the times of the Siege of Vienna. It also signals the ultimate triumph of the most reactionary populist ideologies in the contemporary Europe, based on exclusion of all who are perceived as „others“. It signals the ultimate triumph of the European ineradicable xenophobia. Or – to put it in terms more familiar to the likely author of the strategy, the European Commissioner for European Neighborhood Policy and Enlargement Negotiations, Johannes Hahn – the triumph of Ausländerfeindlichkeit.

Now, what options are left to the practically excluded Balkan countries, after so many efforts to present themselves as valid candidates for EU membership? There is a point in claims that some of their oligarchies, particularly the tripartite one in Bosnia-Herzegovina, have never actually wanted to join the EU, because their arbitrary rule would be significantly undermined by the EU’s rule of law. It is logical, then, that the tripartite oligarchy welcomes the strategy that keeps the country away from the EU membership, while at the same time deceiving the population that the strategy is a certain path to the EU. Yet, what about these people, separated into three ethnic quarantines, who believe that joining the EU would simply solve all their political and economic problems, and who refuse to accept the idea that the EU might be an exclusive club, not open to them? What are the remaining options for them?

They cannot launch a comprehensive revolution and completely replace the tripartite oligarchy by their democratic representatives. Still, they can press it to adopt and conduct a multi-optional foreign policy, oriented towards several geopolitical centers: one of them may remain Brussels, but  Washington, Moscow, Beijing, Ankara, Tehran, and others, should also be taken into account. For, a no-alternative policy, as the one which only repeats its devotion to the EU integrations without any other geopolitical options, is no policy at all. In this sense, the presented EU strategy has clearly demonstrated the futility of such a no-alternative approach: regardless of how many times you repeat your devotion to the EU values, principles and integrations, the EU bureaucrats can simply tell you that you will never play in the same team with them. However, such an arbitrary but definite rejection logically pushes the country to look for geopolitical alternatives. And it is high time for Bosnia-Herzegovina’s people and intellectual and political elites to understand that Brussels is not the only option on the table, and that there are other geopolitical centers whose interests might be identified as convergent with the interests of Bosnia-Herzegovina. Still, all of them should first demonstrate the ability to identify the interests of Bosnia-Herzegovina, which means that they should first recognize it as a sovereign state with its own interests, rather than someone else’s proxy.

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