The Naked Land: The Dayton Accords, Property Disputes, and Bosnia's Real Constitution
Timothy William Waters
Indiana University - Maurer School of Law; Max Planck Institute (International Law)
Harvard International Law Journal, Vol. 40, No. 2, p. 517, Spring 1999
The Dayton Accords have brought peace and stability to Bosnia. Yet the Accords were intended to do more: they were meant to create conditions for the restoration of political unity among Bosnia's factions. On these scores, Dayton has failed. Moreover, there remains a wide rift between the international community's perceptions of the local parties' obligations and those parties' own perceptions and conduct.
One of the most complicated aspects of post-conflict Bosnia is the range of disputes over real property. Hundreds of thousands of people have been displaced, and so far Dayton has proven singularly incapable of creating any meaningful resolution. Yet the situation is by no means anarchical: There are legal and quasi-legal structures in place in all areas of the country that shape property disputes - if only to shape the ways in which policies of eviction and ethnic cleansing can be pursued.
This Article examines the modes of resolving property disputes enforced by the various ethnic governments operating on Bosnian territory. What are the rules that have actually shaped the disposition of property disputes? What is the relationship between the international community's imposed solution - the Dayton Accords - and the systems actually operating in the country? What do those domestic systems tell us about the essential nature of those regimes: their aspirations, their modes of legitimation, their purposes for being?
In answering these questions, the Article explores the degree to which the regulation of property disputes in Bosnia is evidence, not merely of rights violations, but of a wholly different constitutional conception of what society and the polity should be. Bosnia's domestic regimes are fundamentally - constitutionally - at odds with the commitments imposed upon them in the Dayton Accords. Yet the international community has assessed the legitimacy of the various parties by international standards and imposed norms on them without reference to internal dynamics of legitimacy. A more textured understanding of these regimes' relationship to the rule of law is important because, to the degree these systems are characterized as internally legitimate, their legitimation is independent of the norms outsiders seek to impose on them. The Article argues that in failing adequately to address these issues, the international community risks either the complete irrelevance of its norms, or a dangerous and compromising co-optation.
The international community's efforts in Bosnia suffer from an irresolvable contradiction: they seek to ensure liberal human rights on a foundation of illiberal, ethnically exclusive states. This contradiction poses a serious conceptual and moral challenge to scholars and policy makers: the maintenance of peace in Bosnia will likely require consolidation of ethnic status, but that will in turn subordinate the very values and commitments that have inspired much of the human rights community's hopes for the country's future.
Number of Pages in PDF File: 81
Keywords: Bosnia, Yugoslavia, Dayton Accords, Property, Constitution, Constitutionalism, Rule of Law, Rechtstaat, Human Rights, International Law, Ethnic Cleansing, Ethnicity, Population Transfer, Reguees, Displaced Persons, Serb, Croat, Bosniak, Muslim, War, Liberalism
JEL Classification: D74, J70, J71, K11, K33, K42, N40, P20, P30, Q15
Date posted: May 16, 2006