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How Can Parity Be More Proportional?

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International diplomats located in Bosnia-Herzegovina have recently launched an initiative requesting the Parliament of one of Bosnia-Herzegovina’s two entities, the Federation, to reconstitute its upper chamber, the House of Peoples, in line with „more proportional representation“. Yet, how can representation in the House of Peoples be more proportional, when already based on the principle of parity? Sounds absurd, doesn’t it? Representation can be based either on the principle of proportionality or on the principle of parity. When based on the principle of parity, it cannot possibly be more proportional. Moreover, such an initiative encroaches on the sovereign right of that very Parliament to constitute and reconstitute itself, without external interference.

Indeed, what does sovereignty mean in the present-day Bosnia-Herzegovina? In the rest of Europe it has been adopted, almost axiomatically, in the traditions of both Locke and Rousseau, that sovereignty is indivisible and inalienable. For, the will of the people, as the expression of sovereignty, can not be divided; otherwise, it ceases to be the will of the people and becomes a collection of individual wills and then the people can only be a collection of individuals. Also, sovereignty can not be alienated from its bearer: power may be transferred, but not will; it is impossible for any organ to exercise the sovereign will save the sovereign body itself. The state, as a state, can no more alienate its sovereignty than a man can alienate his will and remain a man. There is but one possible bearer of sovereignty, the people.

In Bosnia-Herzegovina, it has been accepted, no less axiomatically, in the tradition of its long-negotiated partition sponsored by international envoys, that this country’s sovereignty can easily be divided, alienated from its people as a whole and transferred to its constituent ethnic elements and then consumed by its three ethnic oligarchies in the form of unrestrained political power over the pieces of territory assigned to them in the process of partition. Actually, such a divided sovereignty is treated as transferred to these oligarchies and consumed in the form of their private property over the resources found on the given pieces of territory.

Thus, whereas sovereignty is elsewhere treated as generated by a contract signed by free individuals, who thereby constitute themselves as the people and sovereignty as their general free will, in Bosnia-Herzegovina sovereignty is treated as dissolved by a contract signed, under the auspices of international envoys, by its three major ethnic groups, renamed for that purpose as ‘constituent peoples’, who thereby construct only a provisional state structure with no declared or acting bearer of sovereignty. ‘Constituent peoples’ are perceived as the contractors who should presumably be represented on the basis of the principle of parity in the parliamentary institutions, on the levels of both state and its two ‘entities’ (Federation of BiH and Republika Srpska), and it is only their three wills that are taken into account, although even they are not treated as sovereign, either, but only as dependent on each other’s acquiescence.

Moreover, yet another part of the country’s divided sovereignty has been transferred to the so-called High Representative (a diplomat appointed by major international powers), whose will may reign supreme over particular wills of the oligarchies claiming to represent their respective ‘constituent peoples’. In this sense, as a part of the country’s Constitution, the High Representative comes closest to the notion of the sovereign, although in practice this person rarely exercises his will and imposes his decisions on the three oligarchies in question. Still, the position in the Constitution makes the High Representative irremovable from the country’s legal structure, in spite of the permanent efforts of the three ethnic oligarchies to eliminate this potential threat to their unrestrained power.

Yet, is such a multiple division and transfer of sovereignty truly a part of the Bosnian Constitution, or it is rather an arbitrary interpretation of the country’s constitutional structure by both foreign diplomats and local politicians? In the preamble of the country’s Constitution one can really find its sovereignty divided among several different categories, positioned as sovereignty’s bearers:

Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows.(The Dayton Peace Agreement, Annex 4, The Constitution of Bosnia-Herzegovina)

A similar formula can be found in the Washington Agreement (1994), which preceded the Dayton Peace Agreement (1995) and served as the basis for creation of the Federation of BiH, as one of Bosnia’s two entities:

Bosniacs and Croats, as constituent peoples (along with Others) and citizens of the Republic of Bosnia and Herzegovina, in the exercise of their sovereign rights, transform the internal structure of the territories with a majority of Bosniac and Croat population in the Republic of Bosnia and Herzegovina into a Federation, which is composed of federal units with equal rights and responsibilities.

Here sovereignty is divided between Bosniacs, Croats and others – whatever their ethnic identity or a lack of identity – and they are all treated as possessing a double identity,first as constituent peoples and then as citizens of the Republic of Bosnia and Herzegovina. For, the form ‘constituent peoples (along with others)’ presupposes that ‘others’ – whatever their ethnic identity or a lack of identity – are also to be treated as ‘constituent peoples’, along with Bosniacs and Croats. By analogy, Bosniacs, Croats, and Serbs, along with Others, are to be treated as both ‘constituent peoples’ and ‘citizens of Bosnia and Herzegovina’ in the Dayton Peace Agreement’s Annex 4.But who can actually be proclaimed the bearer of sovereignty on the basis of these two constitutional acts?

Following the modern theories of sovereignty mentioned above, if sovereignty is to be regarded as indivisible and if, accordingly, there can be only one bearer, then the bearer must be the citizens of Bosnia-Herzegovina, acting as a whole. Then the ‘constituent peoples’ (Bosniacs, Croats, and Serbs, along with Others) are to be understood simply as the constituent elements of the whole, which cannot be treated as multiple bearers of sovereignty. And then the citizens may be represented in a unicameral parliament, founded on the principle of proportionality.

On the other hand, if we take sovereignty as divisible, the ‘constituent peoples’ maywell be regarded as its multiple bearers. Then, however, these ‘constituent peoples’ are not to be reduced only to Bosniacs, Croats and Serbs: the preambles used in both of these constitutional documents suggest that the category of Others is to be regarded as equal to the categories of Bosniacs, Croats and Serbs.

Constitution makers, obviously, had no clear answer to the question of sovereignty’s (in)divisibility in the case of Bosnia-Herzegovina: instead of a formulation that would follow the principle of sovereignty’s indivisibility (for example, „Bosniacs, Croats, and Serbs (along with Others) as citizens of Bosnia-Herzegovina“), they introduced the ‘constituent peoples’ as parallel to the citizens of Bosnia-Herzegovina and thus proposed a form of shared sovereignty between the citizens and the ‘constituent peoples’. This shared sovereignty is reflected in the structure of the parliamentary institutions of Bosnia-Herzegovina and both of its entities: all the parliaments are bicameral, the lower chambers representing the citizens on the basis of election results in accordance with the principle of proportionality, and the upper chambers representing the ‘constituent peoples’ on the basis of the principle of parity.

Yet, even such relative consistency has ceased to exist in the practical implementation of these two principles. In the the upper chamber of the Parliamentary Assembly of Bosnia-Herzegovina, the House of Peoples, the principle of parity is applied only to representatives of Bosniacs, Croats and Serbs (each represented with 5 seats), while Others are totally absent, as if they do not exist in the Constitution’s preamble among ‘constituent peoples’, along with Bosniacs, Croats and Serbs. In the upper chamber of the Parliament of the Federation of BiH, the House of Peoples, the principle of parity is again applied only to representatives of Bosniacs, Croats and Serbs (each represented with 17 seats), while the number of representatives of Others is arbitrarily reduced to only 7 seats, as if Others are not to be found among ‘constituent peoples’ in the Constitution’s preamble, along with Bosniacs, Croats and Serbs, and as if the principle of parity can be applied selectively or in some reduced manner. Similarly, in the upper chamber of the Parliament of Republika Srpska, the Council of Peoples, parity is applied again only to Serbs, Bosniacs and Croats (each represented with 8 seats), while Others are represented with only 4 seats, as if they have not been put into the category of ‘constituent peoples’, along with Serbs, Bosniacs and Croats. In other words, even if we theoretically accept the possibility that sovereignty may be divided between the ‘constituent peoples’ and the citizens of Bosnia-Herzegovina, such shared sovereignty is in its constitutional implementation distorted to such an extent that only Bosniacs, Croats and Serbs are recognized as ‘constituent’, whereas Others are sometimes treated as partially constituent, with a reduced number of seats, and sometimes as non-constituent, that is, practically non-existent!

Obviously, when the principle of parity is applied in such a selective manner, it ceases to function as parity. Otherwise, Others would be represented in all these parliamentary institutions on the basis of parity, along with Bosniacs, Croats and Serbs. And then, it only means that Others have been permanently discriminated in the political reality of Bosnia-Herzegovina and that such a constitutional discrimination must be removed if the model of shared sovereignty is to be applied at all. If not, then full sovereignty must be given back to the citizens of Bosnia-Herzegovina, regardless of whether they link their identity to any of its ethnic groups or not. And that has to be reflected in the structure of all its parliamentary institutions: the Houses of Peoples should be abolished and the parliaments should then become unicameral, so that only the citizens would be represented in the Houses of Representatives, based on the principle of proportionality and the principle one person/one vote. Of course, for that purpose the country should get a new constitution, adopted by its own Constitutional Assembly, instead of the one tailored in such an inconsistent (and theoretically problematic) manner by foreign diplomats as a part of the international peace treaty.

However, the international diplomats calling for „more proportional representation“  obviously do not distinguish between, and directly mix up, the principle of proportionality and the principle of parity. They assume that the House of Peoples in the Parliament of the Federation of BiH is based on the principle of proportionality, and ask for more proportionality, although it is clear that parity is its sole founding principle. For, political representation can either be proportional, reflecting the proportion of actual votes for actual political parties and candidates, or it can be based on parity, reflecting the parity between the constituent elements of the entire constituency (presumably, of the country’s population as a whole). As already noted above, it is the principle of parity in the House of Peoples that has been violated by under-representation of Others: while Croats, Bosniacs and Serbs are all represented with 17 seats in this House, Others are represented with only 7 seats. Yet, the diplomats do not pay any attention to this violation of the constitutional principle of parity. Instead, they suggest the Parliament to adopt even „more proportional representation“ in its upper chamber (which, in practice, can only be over-representation of one of the groups already represented in line with the principle of parity), so as to even further undermine its founding principle of parity, already violated by the existing under-representation of Others!

Such a legal absurdity is certainly unsustainable and can only lead to the total dissolution of the existing constitutional order in Bosnia-Herzegovina, already distorted by the abandonment of the principle of indivisibility of sovereignty and further undermined by the selective implementation of the principle of parity in the parliaments’ upper chambers. This brings us to a crucial point: either the parliamentary structures in Bosnia-Herzegovina will follow the logic of this request, abolish the existing provisional constitutional order and leave the country without any constitutional order whatsoever, or they will abolish this constitutional order and establish a non-provisional one, based on the principle of sovereignty’s indivisibility, reflected in a unicameral parliament, representing only the citizens of Bosnia-Herzegovina as a whole, regardless of their ethnic identity or a lack of it.

It is up to the parliamentarians. They may follow the principle of sovereignty as applied in the rest of the European countries, or obey the diplomats’ request, whatever the price for the country’s constitutional order. As for the diplomats, whoever they are, one should finally ask whether they would ever apply in their own countries any of the models they advocate for Bosnia.

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U.S. President Trump to meet Bulgaria’s Prime Minister at the White House: What to expect?

Iveta Cherneva

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Next Monday, 25 November, President Trump will welcome Bulgarian Prime Minister Borissov at the White House for a bilateral meeting.

This is not the first White House visit for Bulgaria’s Prime Minister Boyko Borissov who previously met President Obama at the White House in 2012.

The White House press secretary has announced that Trump and Borissov plan to discuss security in the Black Sea region, energy and countering malign influence – all Russia-related topics, as one would expect.

The real reason for the White House treat, however, is Bulgaria’s substantial purchase of US aircraft this year.

In August, Bulgaria bought eight F-16 airplanes from the US for the hefty price of USD 1.2bln. White House meetings with foreign leaders represent special thanks for something a foreign country has done for the United States and the F-16 airplanes purchase seems to be what we are looking at here. The US is a happy seller and Bulgaria is a happy customer.

In the area of energy, Bulgaria is looking towards the US while trying to reach energy diversification and gain independence from Russian natural gas. On this, there is a clear intersection with US interests. Bulgaria agreed in May to purchase natural gas from the US for the first time. Bulgarian Prime Minister Borissov met last week with the US Ambassador to Greece to explore the possibility of purchases of American liquid gas down the line.

What is not mentioned by the official White House position is that visa restrictions will be a topic of the meeting, too. The Bulgarian Prime Minister will likely request that President Trump dropped the visa requirements for Bulgarians – an issue the Bulgarian government has been chasing for a while now and something which Bulgarian President Radev had raised with President Trump also on the sidelines of the UN General Assembly in September. Visa restrictions were removed for Polish citizens last month. The Bulgarian Prime Minister will seek the same outcome. On this point, it is unlikely that President Trump would give the green light though.

What we won’t hear about publicly is the issue of the return of ISIS fighters to Europe. No one in Bulgaria really talks about this but one can imagine this is an issue for the US government. Bulgaria doesn’t have a problem with ISIS fighters itself but, as an EU external border country, it is Turkey’s neighbor and the closest to the Middle East EU ground entry point. Last week, Turkey began returning ISIS fighters back to Europe and President Trump has been adamant that European nations with ISIS fighters need to take responsibility for them. Western European EU countries do not want their ISIS fighters back to try them in court or to reintegrate them, which is understandable but also irritating because Europeans have had the unfounded expectation that the US would somehow take care of this. How Bulgaria as an EU country at the crossroads between Turkey, the EU and the US handles that is key. No one in Bulgaria really talks about it, and the various EU, US and Turkish pressures on Bulgaria are not really known, but one can imagine the situation is that of being between a rock and a hard place. So, the return of ISIS fighters is another issue to look out for, although it will not come through in public.

In the past, NATO ally Bulgaria has aided the US with criminal and law enforcement investigations in the areas of terrorism, drug trafficking and human trafficking. This is another area to look out for.

President Trump’s impeachment is not really a topic in Bulgaria, as no one here seems to be concerned with that. It will be interesting whether Prime Minister Borissov would mention this at all to issue words of support to President Trump. This is something that President Trump would appreciate, although protocol says Prime Minister Borissov would be smart to steer away from impeachment comments.

Direct, to the point and simple words can be expected from President Trump. Prime Minister Borissov, on the other hand, is learning English so the meeting will necessarily have a Bulgarian interpreter. Expect one or two jokes by President Trump about simultaneous Bulgarian interpretation. The meeting will not pass without that.

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EU chief prosecutor Laura Kovesi needs media freedom to do her job

Iveta Cherneva

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Last month, Laura Codruta Kovesi, the former chief prosecutor of Romania’s National Anti-corruption Directorate, was officially confirmed as the first ever EU chief prosecutor to head the newly created European Public Prosecutor’s Office. Her team will start work in the end of 2020. 

Kovesi will shake things up. She has a lot of hurdles to overcome. Among the main ones is the silencing and stifling of journalists across Europe, including in Bulgaria. The lack of media freedom will make it exceptionally difficult for Kovesi to do her job and uncover crimes involving EU funding.

As soon as the news hit that Kovesi was to become EU’s top prosecutor, anti-corruption activists across Europe applauded loudly. One could hear the applause also in Bulgaria where we face issues with EU funds misappropriation and theft but also complaints regarding the freedom of the press – a place where Kovesi’s work is much needed.

Defined institutionally, Kovesi’s mandate is “to investigate, prosecute and bring to judgment crimes against the EU budget, such as fraud, corruption or serious cross-border VAT fraud”. The EU’s top prosecutor is tasked with the tough job of going after crimes involving EU money. 

It might sound as a disappointment to many, but Kovesi will not have the institutional competence to address everything that is wrong with a country or a sector. Corruption and fraud are covered by the EU prosecutor’s mandate only as long as they are related to EU funds.

So if Kovesi won’t be a see-it-all, do-it-all messiah, where does this leave media freedom then and why am I talking about it in the context of her job?

Well, bringing to justice crimes related to EU funds is almost impossible without the leads on the ground – work often done by a functioning free media and hard-hitting  investigative journalism that uncovers fishy deals and contracts. It is journalists that sometimes lead the way. Often media investigations chart a course for criminal investigations. The media is a key ally in uncovering crimes involving EU funds. This is particularly true of a service such as the EU’s prosecutor office that will operate from EU headquarters and will rely on leads and allies on the ground.

We can’t expect that an EU service will get all the intricate, hidden local information on its own or through cooperation with the state authorities in question. This is where media and journalists come in. 

Bulgaria – as sad I am to say this – gives a clear illustration of why Kovesi’s job could prove to be especially tough. The country ranks 111th in the world in terms of media freedom, according to Reporters without Borders. 

To illustrate the situation, one should look no further than the current scandal involving the nomination of Bulgaria’s own chief prosecutor and the simultaneous firing of a seasoned journalist who has been critical of the only candidate for Bulgaria’s top prosecutor post.

As reported by Reuters, the national radio journalist Silvia Velikova was fired for allegedly being critical of the work of the deputy chief prosecutor Ivan Geshev, who has already been selected to become Bulgaria’s next chief prosecutor. Bulgaria’s President Rumen Radev vetoed the appointment last week, so now the country is facing judicial uncertainty and protests such as the ones from today. 

Among the reasons why the chief prosecutor’s appointment has been controversial – to say the least – is the sacking of the Bulgarian Radio journalist Silvia Velikova. Her ousting caused protests by Bulgarian journalists which I have been attending, while the capital Sofia saw thousands of protesters marching in the streets against Geshev’s nomination in September, October and now, after the presidential veto.

Where the story gets interesting or horrific – or both – is that as many as four unnamed individuals made phone calls in September to the Director of the National Radio, allegedly asking for the journalist critical of the prosecutor candidate to be fired, or at least to be silenced until Geshev’s selection as chief prosecutor. The journalist Velikova was subsequently fired. She was reinstated to her post after Prime Minister Boyko Borisov spoke in her defence. And the Director of the National Radio was himself fired for stepping over by a media oversight organ.  

In Bulgaria, a persistent complaint is that journalists who ask the inconvenient questions can be removed in a heartbeat, after so much as a phone call. The suspicion remains that shady dealings – not merit – continue to play a significant role in the firings and hirings of Bulgarian journalists.

One should look no further than the stories of investigative journalists Miroluba Benatova and Genka Shikerova. They are both known as hard-hitting investigative journalists that ask the tough questions and uncover corruption and mismanagement. They are both out of job after being pressured to quit a mainstream media. 

Genka Shikerova faced severe intimidation over the years, as her car was set on fire not once but twice, in 2013 and 2014, in relation to her work on Bulgaria’s significant anti-government protests during these years.

Miroluba Benatova, on the other hand, caused massive waves with her recent revelation that she has become a taxi driver – only to surprise foreign tourists about how politically astute and knowledgeable Bulgarian taxi drivers are. “The service in Bulgaria has improved greatly”, told her a German tourist assuming he was being driven by just a regular taxi driver.

So, how is this related to Kovesi?

It is unlikely that by driving a taxi Benatova will be coming across many leads about EU funds theft, to assist Kovesi. Such a waste of talent, and also funds.

The media across Europe has a key role to play in supporting the work of the new EU prosecutor. As long as journalists in countries like Bulgaria lack the freedom to do their jobs, crimes involving EU funding will go uncovered. If Laura Kovesi wants to succeed in her new job, she will have to take context into account and recognize that in many EU states, including Bulgaria, journalists are often not allowed to do their jobs and ask the hard questions. And that’s a shame because Kovesi will not be able to do it alone. 

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Why German car giant Volkswagen should drop Turkey

Iveta Cherneva

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War and aggression are not only questions of ethics and humanitarian disaster. They are bad news for business.

The German car giant Volkwagen whose business model is built on consumer appeal had to stop and pause when Turkey attacked the Kurds in Syria. A USD 1.4bln Volkswagen investment in a new plant in Turkey is being put on hold by the management, and rightly so.

Unlike business areas more or less immune from consumer pressure – like some financial sectors, for example – car buying is a people thing. It is done by regular people who follow the news and don’t want to stimulate and associate themselves with crimes against humanity and war crimes through their purchases. Investing in a militarily aggressive country simply is bad for an international brand.

As soon as the news hit that Turkey would be starting their military invasion against the Kurds, questions about plans for genocide appeared in the public discourse space. Investing over a billion in such a political climate does not make sense.

By investing into a new plant next to Turkish city Izmir, Volkswagen is not risking security so much. Izmir itself is far removed from Turkey’s southern border — although terrorist attacks in the current environment are generally not out of the question.

The risk question rather lies elsewhere. Business likes stability and predictability. Aggressive economic sanctions which are likely to be imposed on Turkey by the EU and the US would affect many economic and business aspects which the company has to factor in. Two weeks ago the US House of Representatives already voted to impose sanctions on Turkey, which now leaves the Senate to vote on an identical resolution.

Economic sanctions affect negatively the purchasing power of the population. And Volkswagen’s new business would rely greatly on the Turkish client in a market of over 80mln people.

Sanctions also have a psychological “buckle-up” effect on customers in economies “under siege”, whereby clients are less likely to want to splurge on a new car in strenuous times.

Volkswagen is a German but also a European company. Its decision will signal clearly if it lives by the EU values of support for human rights, or it decides to look the other way and put business first.

But is not only about reputational damage, which Volkswagen seems to be concerned with. There are real business counter-arguments which coincide with anti-war concerns.

Dogus Otomotiv, the Turkish distributor of VW vehicles, fell as much as 6.5% in Istanbul trading after the news for the Turkish offensive.

Apart from their effects on the Turkish consumer, economic sanctions will also likely keep Turkey away from international capital markets.

There is also the question of an EU company investing outside the EU, which has raised eyebrows. It is up to the European Commission now to decide whether the Volkswagen deal in Turkey can go forward after a complaint was filed. Turkey offered the German conglomerate a generous 400mln euro subsidy which is a problem when it comes to the EU rules and regulations on competition.

The Chairman of the EPP Group in the European Parliament, Manfred Weber filed a complaint with the EU competition Commissioner about the deal, on the basis of non-compliance with EU competition rules. Turkey’s plans to subsidize Volkswagen clearly run counter EU rules and the EU Commission can stop the 1bln deal, if it so decides.

In a context where Turkey takes care of 4mln refugees — subject to an agreement with the EU — and often threatens the EU that it would “open the gates”, it is not clear if the Commission would muster the guts to say no, however. In that sense, the German company’s own decision to pull from the deal would be welcome because the Commission itself wouldn’t have to pronounce on the issue and risk angering Turkey.

While some commentators do not believe that Volkswagen would scrap altogether the investment and is only delaying the decision, it is worth remembering that the Syria conflict is a complex, multi-player conflict which has gone on for more than 8 years. Turkey’s entry in Syria is unlikely to end in a month. Erdogan has communicated his intention to stay in Syria until the Kurds back down.

In October it was reported that the Turkish forces are already using chemical weapons on the Kurdish population which potentially makes Turkish President Erdogan a war criminal. For a corporate giant like Volkswagen, giving an economic boost for such a state would mean indirectly supporting war crimes.

As Kurdish forces struck a deal for protection with the Syrian Assad forces, this seems to be anything but a slow-down. Turkey has just thrown a whole lot of wood into the fire.

Volkswagen will find itself “monitoring” the situation for a long time. There is a case for making the sustainable business decision to drop the risky deal altogether, soon.

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