Identifier
Created
Classification
Origin
06SARAJEVO2397
2006-10-06 12:27:00
CONFIDENTIAL
Embassy Sarajevo
Cable title:  

BOSNIA: BRCKO WORKING GROUP DRAFTS NATIONAL LAW

Tags:  BK PGOV PREL 
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DE RUEHVJ #2397/01 2791227
ZNY CCCCC ZZH
P 061227Z OCT 06
FM AMEMBASSY SARAJEVO
TO RUEHC/SECSTATE WASHDC PRIORITY 4580
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE PRIORITY
RUEKJCS/OSD WASHDC PRIORITY
RHEHNSC/NSC WASHDC PRIORITY
RUEKJCS/JCS WASHDC PRIORITY
RUFOAOA/USNIC SARAJEVO PRIORITY
C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 002397 

SIPDIS

SIPDIS

EUR (DICARLO),D (SMITH),P (BAME),EUR/SCE (HOH, SAINZ,
FOOKS),L (MANSFIELD, DOROSIN),NSC FOR BRAUN, USNIC FOR
WEBER, GREGORIAN, OSD FOR FLORY

E.O. 12958: DECL: 09/29/2016
TAGS: BK PGOV PREL
SUBJECT: BOSNIA: BRCKO WORKING GROUP DRAFTS NATIONAL LAW

REF: A. SARAJEVO 1499


B. SARAJEVO 1772

C. SARAJEVO 2199

Classified By: Ambassador Douglas L. McElhaney. Reasons 1.4 (b) and (d
).

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 002397

SIPDIS

SIPDIS

EUR (DICARLO),D (SMITH),P (BAME),EUR/SCE (HOH, SAINZ,
FOOKS),L (MANSFIELD, DOROSIN),NSC FOR BRAUN, USNIC FOR
WEBER, GREGORIAN, OSD FOR FLORY

E.O. 12958: DECL: 09/29/2016
TAGS: BK PGOV PREL
SUBJECT: BOSNIA: BRCKO WORKING GROUP DRAFTS NATIONAL LAW

REF: A. SARAJEVO 1499


B. SARAJEVO 1772

C. SARAJEVO 2199

Classified By: Ambassador Douglas L. McElhaney. Reasons 1.4 (b) and (d
).


1. (U) SUMMARY. In the September 27-28 session of the Brcko
District Working Group, participants drafted and nearly
reached consensus on the text of a national law on Brcko's
status within Bosnia. The law, which addresses Brcko's
representation in Bosnia and Herzegovina's state
institutions, was a key goal identified by the working group
at its June meeting. Three main issues -- Brcko's access to
the constitutional court, a mechanism for ensuring Brcko's
interests are taken into consideration when competencies are
transferred to the state, and its number of non-voting
representatives in the BiH Parliament -- were the major focus
of the negotiations. In the end, the group agreed to
concrete language on the last two and will return to the
issue of Brcko's constitutional court access following a
period of consultation. END SUMMARY.


2. (U) The Brcko District Working Group (the Working Group),
consisting of representatives from the Council of Ministers
(CoM) and Brcko District, and observers from the Office of
the High Representative in Sarajevo (OHR-Sarajevo) and the
Brcko District Final Award Office (BFAO),held its third
session on September 27 and 28. The goal was to draft and
agree on the text of a national law to define Brcko's
relationship to the state. As the facilitators of the
Working Group, the Embassy (in cooperation with the Office of
the Legal Advisor) compiled and tabled a draft national law
in advance. As we anticipated, three contentious issues
resulted in a long, tense, and technical negotiating session.
In the end, all parties agreed to all but one provision in
the draft, recognizing that further consultation is required
to determine precise language for Brcko's access to the
Constitutional Court.

ONE TOUGH NEGOTIATING SESSION
--------------


3. (U) The Working Group's Action Plan, agreed to at its June

2006 meeting (Ref A),committed it to drafting a national law
addressing Brcko's relationship with and representation in
Bosnia's state-level institutions. The Action Plan also
outlined the national law's essential elements, such as
Brcko's relationship with the Council of Ministers, the BiH
Parliament, and the Constitutional Court. This broad
consensus, reached in June, allowed the September Working
Group to focus its energies on the exact scope and means for
such representation. Much of this went smoothly,
particularly during the first day when the Working Group
sought to build quick consensus on the less contentious
elements of the draft national law.


4. (U) On the second day, however, the Working Group tackled
the highly contentious subject of when and how Brcko's
interests would be taken into consideration when
competencies, currently exercised at the local level, were
transferred to new state level institutions as part of the
broader process of building the state-level institutions
necessary to facilitate Bosnia's integration into
Euro-Atlantic institutions. Brcko District sought what
amounted to a veto over all transfers of competencies. Other
Working Group members thought Brcko should be consulted (vice
having the right to consent) only on transfers of
competencies that directly affect the governing of the
District. A key point of concern for Brcko was the
District's involvement in the decisions of state-level
financial institutions, such as the Indirect Taxation
Authority and the National Fiscal Council (Ref B).


5. (U) To resolve the impasse, OHR-Sarajevo tabled a proposal
that would allow Brcko to review, and possibly amend draft
legislation, or amendments to existing laws, that relate to
matters falling within responsibilities transferred to
state-level institutions. The mechanism involved review of
legislation that is potentially harmful to the District's
interests by a Joint Commission. The legislative process
would be suspended during the review. Parties readily agreed
on the structure and process of the Joint Commission, but
strongly disagreed on its scope. Brcko accepted that the
mechanism was major concession by the CoM, but sought to

SARAJEVO 00002397 002 OF 002


expand it in a manner unacceptable to other Working Group
members. This was the touchiest moment in the negotiations;
parties were increasingly frustrated with what, in their
view, were unrealistic demands from the Brcko negotiating
team. The impasse was broken by a compromise proposed by the
Brcko District Supervisor, albeit a compromise only
grudgingly accept by Brcko District.


6. (U) Following the Supervisor's compromise, the Working
Group discussed a key remaining issue -- Brcko's access to
the Constitutional Court. All parties agreed that Brcko's
access to legal remedy would ideally be through a
constitutional amendment. However, the Working Group decided
to temporarily address this through the draft law. The core
issue was not whether Brcko should have access, but how, with
OHR Sarajevo arguing that Brcko's proposed solution was
unconstitutional. At this point, a tired and frustrated
working group agreed not to hash this out and to revisit it
following outside consultations.

COMMENT AND NEXT STEPS
--------------


7. (U) The draft national law agreed to by the Working Group
contains several mechanisms that provide for Brcko's
representation in state level institutions and ensure that
its interests are taken into consideration when competencies
are transferred to the state. This includes:

-- Three non-voting representatives from Brcko District in
the House of Representatives of the BiH Parliamentary
Assembly (HoR);
-- A Standing Committee for Brcko District within the HoR;
-- Brcko District liaison from the Council of Ministers (CoM)
and all of the state-level Ministries;
-- A Brcko District Office (BDO) within the CoM. The BDO is
already up and running but does not yet have a legal basis.
Embassy efforts to secure passage to amendments to the Law on
the CoM that would have rectified this problem were derailed
by Serb opposition on September 18 (Ref C),and;
-- The Joint Commission mechanism.


8. (C) Now that we have a draft law, we will have to get it
through the Council of Ministers and the BiH Parliament.
This will not be easy. The Working Group will soon start
shopping around the law in order to build political support.
We will have to explain Brcko's unique situation to
parliamentarians and political party leaders, many of whom
will worry that our law turns Brcko into a third entity.
This will involve an educational campaign about the Final
Award, which many politicians do not understand, and
explaining why it is in the state's interest to support legal
protections for Brcko District. Our goal is to pass the law
by early 2007 to allow ample implementation time before the
projected June 2007 OHR closure.


9. (C) As we move forward, we will need to guard against
attempts by the parties to walk back from the compromises to
which they agreed. Brcko District may argue for even
stronger protections, even though the law, in its current
form, is actually quite generous. It provides ample access
to BiH institutions through the Brcko District Office, three
Brcko representatives in the BiH HoR, the Standing Committee
on Brcko District, and a robust consultation mechanism for
transfers of competencies to the state. Through the Working
Group process, Brcko District has sought a guaranteed
outcome, in the form of what amounts to a legislative veto.
Instead of a veto, Brcko District must learn to lobby on
their own behalf through the representation mechanisms
granted to them in this draft law.
MCELHANEY