“Repetition does not transform a lie into a truth,” Franklin D. Roosevelt said. But repetition of a lie can sometimes make people believe it. Repetition has served the High Representative (HR) well in leading some to believe his demonstrably false claim to be the final authority on the interpretation of the entire Dayton Accords, including the BiH Constitution. During the past few weeks he has repeated this claim at high level conferences, press interviews and even in a report to the UN Security Council.
The High Representative’s interpretive authority begins and ends with Annex 10.
The Dayton Accords unambiguously limit the HR’s interpretive authority to the interpretation “in theater” of Annex 10 entitled Agreement on the Civilian Implementation of the Peace Settlement. Annex 10 says, “The High Representative is the final authority in theater regarding interpretation of this Agreement on the civilian implementation of the peace settlement.” (emphasis added) In spite of the clarity of the Dayton Accords on this point, the HR, through dogged repetition, has persuaded some that he is the “final authority” regarding the Dayton Accords as a whole.
The HR knows this claim it is false, but he nonetheless continues to repeat it. For example, Ambassador Inzko’s 4 May 2011 “Special Report” to the UN Security Council asserts that the HR is “the final authority regarding the interpretation of the General Framework for Peace, as mandated by Annex 10 of said Agreement and various UN Security Council Resolutions.” But, his 4 May 2011 letter to the Security Council accompanying the Special Report acknowledges the limit on his authority stating that Security Council Resolution 1031 “confirmed that the High Representative is the final authority in theatre regarding interpretation of Annex 10 on the civilian implementation of the Peace Agreement.” (emphasis added)
The plain language of Annex 10 and UNSC Resolution 1031 prove that the HR has no interpretive authority over the Dayton Accords as a whole. To the contrary, the Dayton Accords designate other specific mechanisms for interpretation of many of its other provisions. For example, Annex 1A, the Agreement on the Military Aspects of the Peace Settlement, provides that “the IFOR Commander is the final authority in theatre regarding interpretation of this agreement on the military aspects of the peace settlement.” Other examples can be found in Annexes 1B, 2, 3, 4, 5, 6, 7, and 8. Thus, in addition to Annex 10, the rest of the Dayton Accords makes clear that the HR has no interpretive authority over the Dayton Accords outside of Annex 10.
The High Representative has no authority to interpret BiH Constitution.
The HR has recently been making the outlandish claim that the Dayton Accords created the HR to “interpret the constitution” of BiH (Annex 4 of the Dayton Accords). The HR’s attempt to unilaterally appoint himself as interpreter of the BiH Constitution suggests a casual contempt for the rule of law. As the HR knows, the BiH Constitution assigns the Constitutional Court to “uphold this Constitution.” A review of the Court’s jurisdiction in Article VI, Section 3, of the Constitution shows there is no basis for the HR’s judicial pretensions. Nor does Annex 10 grant such authority. In fact, it does not mention the Constitution at all.
The High Representative’s authority to interpret Annex 10 is subject to law.
The HR also pretends that his interpretive authority in Annex 10 is not subject to the rule of law. In reality, the HR’s authority to interpret Annex 10, which is an international treaty, or to take any other action is circumscribed by his mandate in Annex 10, general international law and other sources of applicable law. His authority is limited, for example, by his obligation under the Vienna Convention on the Law of Treaties to interpret Annex 10 “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
The HR violates this obligation of good-faith interpretation by claiming that Annex 10 makes him the final authority to interpret the whole of the Dayton Accords. The HR also breaches his good-faith obligation by continuing to claim that Annex 10 gives him autocratic powers. Read Annex 10 and the conclusion is inescapable that it does not give the HR any legislative, executive, or judicial powers. It cannot, in good faith, be interpreted to empower the HR to decree laws, summarily punish individuals, or otherwise act as a foreign dictator over BiH and its citizens.
In addition to the international law obligation of good faith, the HR’s interpretations of Annex 10 must be consistent with other sources of law, including the BiH Constitution and the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. To which BiH is a signatory. The HR’s assertion of the authority to rule BiH by decree is blocked, as a matter of law, by the democratic rights mandated by the BiH Constitution and the ICCPR. The HR’s summary punishment of individuals without a hearing or appeal flagrantly violates the due process and other protections of the BiH Constitution, the ICCPR, and the European Convention.
The High Representative as Final Judge of his Own Conduct.
When the BiH Constitutional Court ruled unanimously that the absence of a remedy for citizens punished by the HR violated the European Convention, the HR issued a decree purporting to nullify the decision and ordering all judges to dismiss any proceeding that “challenges or takes issue in any way whatsoever with one or more decisions of the High Representative.” This lawless decree, which the HR continues to enforce, illustrates what happens when a governing authority appoints himself as the final interpreter of the laws which govern his conduct.
The High Representative’s claim to be the final judge of his own powers will never be legally valid no matter how many times the High Representative repeats it.
