Citizenship and Voting Issues in Bosnia-Herzegovina Following the Dayton Peace Agreement

Introduction

1.         Following several years of instability, dislocation and hardship, the prospect of peace is now present for Bosnia and Herzegovina. Restructuring and rebuilding of the country will be a significant challenge. The drafters of the Dayton Peace Agreement sought to provide the basis for undertaking this task. Under Annex 3 of the Agreement, the Organization for Security and Cooperation in Europe (OSCE) has the task of ensuring free and fair elections in Bosnia and Herzegovina and the Republika Srpska within nine months of entry into force of the Peace Agreement. The OSCE is to establish a Provisional Election Commission (PEC) which will adopt electoral rules and regulations including, inter alia, regulations regarding the eligibility of candidates and voters.

2.         Article IV of Annex 3, concerning the eligibility of voters, states that:

"1.        Voters. Any citizen of Bosnia and Herzegovina aged 18 or older whose name appears on the 1991 census for Bosnia and Herzegovina shall be eligible, in accordance with electoral rules and regulations, to vote."[1]

3.         Article IV also indicates that the PEC may provide, in the electoral rules and regulations, for citizens not listed in the 1991 census to vote. The matter of defining who is a citizen is, therefore, a key element of establishing free and fair elections, for only those who can show they are citizens will be able to exercise a voting privilege. After several years of war and displacement, determining the "initial" body of citizens in the context of State succession is not without complication.

4.         Fortunately, the Peace Agreement, particularly when read in light of international law pertaining to cases of State succession, provides the necessary tools for determining who should have the right to citizenship in Bosnia and Herzegovina. The Constitutional provisions of Annex 4, in which citizenship of Bosnia and Herzegovina is outlined, are inspired by international human rights instruments which touch on the question of citizenship. Not least of these is the Universal Declaration of Human Rights which states:

"1.        Everyone has the right to a nationality.

2.         No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality,"[2]

5.         Additional human rights agreements to be applied in Bosnia and Herzegovina are attached in Annex to the Constitution. While several of these include provisions relating to citizenship, of particular importance is the 1961 Convention on the Reduction of Statelessness.[3] This Convention deals specifically with questions relating to the acquisition, loss or denial of citizenship and addresses the resolution of nationality in the case of State succession. Under Article 11 of this Convention, the Office of the United Nations High Commissioner for Refugees (UNHCR) acts as a mediator between individuals and States, providing relevant technical and advisory services.[4]These services are provided should problems arise; however, given the provisions of the Peace Agreement, the incorporation of relevant instruments such as the 1961 Convention into the laws of Bosnia and Herzegovina, and international law on the question of citizenship in the context of State succession, citizenship issues may be resolved before significant problems arise. The Peace Agreement and international law may, further, be used to ascertain who should be included in the initial body of citizens.

6.         In this regard, an analysis of international law, the Peace Agreement and related international treaties, and the citizenship laws of Bosnia and Herzegovina, is a necessary precursor to determination of who is, or who should have the right to be, a citizen of Bosnia ad Herzegovina. This determination will be pertinent to the question of who should have the right to vote.

Sources of Law

7.         "Citizenship is man's basic right for it is nothing less than the right to have rights."[5]When Chief Justice Earl Warren made this statement he was reflecting upon two aspects of citizenship : the first, citizenship is a right, the second, that the realization of this right is a necessary precursor to the realization of other rights. Citizenship, or nationality[6], provides the legal connection between an individual and a State which serves as a basis for certain rights including diplomatic protection and representation of the individual on the international level. The realization of an effective nationality is a stabilizing and connecting factor, decreasing the potential for movement or displacement. Thus, while the extension of civil rights generally associated with citizenship, such as voting, employment, or ownership of property, may be one means of normalizing the status of non-citizens on a State's territory, there is no replacement for citizenship itself.

8.         While States grant citizenship, international law plays as significant role in determining how this right is realized. The sources for fundamental principles of international law are delineated in Article 38 of the Statute of the International Court of Justice, established by the Charter of the United Nations. Article 38 of the Court cites international conventions (treaties), international custom (state practice), and general principles of law as the primary indicators of current law. International law is not a static entity. Codified provisions of treaties are themselves interpreted with reference to custom, general principles, and other treaties when necessary. Rather, international law develops and changes over time as new conventions are promulgated, new custom is formed, new cases and arbitral decisions clarify or override previous decisions, experts deliberate and expound upon principles of law, and international and regional organizations adopt new instruments and practice. The law and the theory of law incorporate, in particular, the United Nations Charter, the Universal Declaration of Human Rights, and other significant legal developments. State practice, a primary source of international law, must reflect the principles embodied in terse instruments.

9.         In the case of international law pertaining to nationality, as early as 1923, the Permanent Court of International Justice (RCIJ), in its Advisory opinion on the Tunis and Morocco Nationality Decrees, stated:

"The question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends on the development of international relations."[7]

10.       The 1930 Hague Convention on Nationality, held under the auspices of the Assembly of the league of Nations and the first international attempt to provide everyone with a nationality, picks up this theme in Article 1:

"It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality."[8]

11.       This reference to the three primary sources of international law, later encoded I Article 38 of the Statute of the International Court of Justice noted above, was made so as to qualify State sovereignty, an effort deliberately made throughout this century in all areas of international law in the attempt to promote stability and a cooperative spirit in international relations.

12.       The State has the right and the obligation, therefore, to determine who are its citizens provided this determination does not conflict with contemporary principles of international law. While contemporary international law cannot be traced to one convenient source and does require some assembling, basic principles on nationality are contained in each of the three, primary sources of law noted. Further, nationality legislation touches upon a number of areas of law, including human rights conflicts of law, and State succession. While the purpose of this document is not to undertake a comprehensive analysis of international law on the question of nationality, some indicators of these principles will be useful in an analysis of citizenship in Bosnia-Herzegovina.

International Legal Principles Pertaining to Nationality in the Context of State Succession

13.       Nationality principles are different in the context of State succession than they are under normal naturalization procedures. This is due, partly, to the fact that State practice and treaties concluded in transfer of territory have been consistent enough for particular principles to be extracted. The development of human rights has, in the past 50 years, further qualified the grant of nationality in succession of States.

14.       In the present context, State sovereignty in nationality matters must be analyzed in the light of State dissolution, focusing on the obligations of successor States. Legal opinion has developed over the years in this field. As indicated in the foregoing discussion on the evolution of international law, an opinion expressed earlier in this century must be reviewed in light of treaties, state practice, human rights and other relevant developments in the interim. In this regard, Brownlie finds the evidence overwhelmingly in support of the view that the population follows the territory in any change of sovereignty. In view of State practice analyzed by Brownlie, there is a general presumption that persons "attached" to a territory will ipso facto lose their former citizenship and acquire that of the new State. Citizenship changes when sovereignty changes hands. Attachment is taken to mean a substantial connection with the territory concerned as evidenced by citizenship, residence, or familial relation to one with citizenship or residence. This link of people with the territory is, he argues, in accord with human and political realities.[9]

15.       Paul Weis argued that while there was no rule of international law under which the national of the predecessor State acquired the citizenship of the successor State, there is a presumption in international law that the new State would confer its nationality on nationals of the predecessor State.[10] The Special Rapporteur for the International Law Commission on State Succession and its Impact on the Nationality of Natural and Legal Persons has, however, stated that:

"[I]t is no longer possible to maintain without any reservation the traditional opinion expressed by O'Connell, according to which,

[u]ndesirable as it may be that any persons become stateless as a result of a change of sovereignty, it cannot be asserted with any measure of confidence that international law, at least in its present stage of development, imposes any duty on the successor State to grant nationality."[11]

16.       Johannes Chan reasons that, upon a change of sovereignty, all persons who have a genuine effective link wit the new State will automatically acquire the citizenship of the new State. It is within the competence of each State, within the parameters established by international law, to determine what constitutes a genuine effective link for purposes of granting of its citizenship, subject to the presumption of avoidance of statelessness and the duty not to apply any law on a discriminatory basis which would be in contradiction with Article 15 (2) of the Universal Declaration of Human Rights.[12]

17.       Article 10 of the 1961 Convention on the Reduction of Statelessness states:

"1.        Every treaty between Contracting States providing for the transfer of territory shall include provisions designed to secure that no person shall become stateless as a result of the transfer. A Contracting State shall use its best endeavors to secure that any such treaty made by it with a State which is not a party to this Convention includes such provisions.

2.         In the absence of such provisions a Contracting State to which territory is transferred or which otherwise acquires territory shall confer its nationality on such persons as would otherwise become stateless as a result of the transfer of acquisition."[13]

18.       This provision, reflective of the International Law Commission's and the Plenipotentiaries' assessment of the status of international law at that time, states the rule that, in principle, the population goes with the territory. Contemporary principles of international law indicate this position has been reinforced, that is, that the population follows the change of sovereignty for those domiciled on the territory in question. According to Brownlie:

"[The] concept of territory is perhaps internet in the rule that state succession results in automatic change of nationality. The population has a 'territorial' or local status, and sovereignty here involves clear responsibilities toward the people concerned."[14]

19.       The general principle is that there is substantial connection with the territory concerned through residence, itself one aspect of the principle of the genuine effective link. The doctrine of an effective nationality makes reference to the reliance of treaties and municipal laws on habitual residence or domicile, the underlying theme being that "a stable community is normally related to a particular territorial zone."[15] Incorporating a review of State practice, treaties, general principles of law, and the opinions of experts, Brownlie states:

"Sovereignty denotes responsibility, and a change of sovereignty does not give the new sovereign the right to dispose of the population concerned at the discretion of the government. The population goes with the territory :…it would be illegal for the successor to take any steps which involved attempts to avoid responsibility for conditions on the territory, for example by treating the population as de facto stateless or by failing to maintain order in the area. The position is that the population has a 'territorial' or local status, and this is unaffected whether there is a universal or partial successor and whether there is a cession, i. e. a 'transfer' of sovereignty, or a relinquishment by one state followed by a disposition by international authority."[16]

20.       This theme is taken up by the Special Repporteur for the International Law Commission. In his preliminary report[17], the Special Rapporteur interweaves the principles enunciated in the Nottebohm case in reference to relevant factors in establishing the genuine effective link. The Special Rapporteur notes that, in its decision, the Court indicated;

"International arbitrators have decided in the same way numerous cases of dual nationality where the question arose with regard to the exercise of protection. They have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved. …[T]he habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children. etc."[18]

21.       This is particularly pertinent in the case of the dissolution of the former Yugoslavia for when several States emerged, so did the question of which nationality was the most appropriate for the residents concerned. The clear principles herein outlined by state practice, treaties, the 1961 Convention and expert opinion, all point to residence and the genuine effective link as the key factors for determination of nationality in the context of State succession. In cases of dual or multiple nationality, international law refers to these factors to determine the real and effective nationality, the State with which the individual is associated in fact. If residence and the genuine effective link point to one State, this is the logical citizenship for the individual to have in the case of State succession. This may be further reinforced if, given the importunity, the individual concerned expressly opts for citizenship of that State. In this case, to would be difficult for the State to support a finding that these individuals were not most closely connected with the territory of that State.

22.       Consideration must be given to the context in which the dissolution itself arises. In the case of war, the United Nations Charter distinguishes between sanctioned intervention by the international community to stop aggression and wars waged by aggressor States. In the latter case, the initial act of war is considered illegal. This has an impact on the analysis of population movement which took place as a direct result of the actions of the aggressor State(s). For example, if an aggressor State transplanted its own population on to the territory of another State during hostilities and formed new boundary lines, the transplanted individuals would not have a claim to citizenship on this basis alone, despite their residency on the new territory, because the residency arises out of an illegal act. If, however, the hostilities cease and the territory reverts to the control of the original State, transplanted individuals who remain resident for generations on the new territory, would at some point lose their genuine effective link with the former aggressor State and a new link would form. There are factors within the theory of the genuine effective link itself which indicate when a new bond has been formed.

23.       In the case of civil war leading to the dissolution of one State and the creation of new States, there are principles which guide on the issue of loss of the former nationality and acquisition of a new nationality. One clear principle is that statelessness should not be created. Of necessity, when the former State ceased to exist, so did the citizenship of that entity. Article I of the 1954 Convention relating to the Status of Stateless Persons provides:

"1.        For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its law."[19]

24.       This is the generally accepted definition of de jure statelessness.[20] Hence, if the State authority and the legislation disappear, so does the previously held citizenship. All those who held this citizenship do not, however, "disappear" and for them their domicile, legal and social links, place of birth and centre of interests do not change simply because the State ceased to exist. Residence and the genuine effective link must be used, therefore, to grant citizenship of the new State with which they are most closely connected. The successor State can no more deprive these individuals of their right to a nationality of the State with which they are most closely connected than could the predecessor State. Statelessness is not an acceptable result.

25.       In determining which nationality is the most appropriate for individuals when several new States emerge where there was previously one State, several factors are of use. For nationals of the predecessor State, residency is the presumption in cases of State succession. This may be reinforced with factors associated with the genuine effective link. A final determining factor is the express wish of the individual. In this case, nationality of the place of residence, being the presumption, is granted with a right of option for the individual to choose, rather, the nationality of one of the other successor State. Naturally, this agreement must be coordinated amongst the States concerned.

26.       Regard must be paid, moreover, to principles of human rights law. It would not be acceptable if a State introduced criteria of flatly denied citizenship to long-term of lifelong residents on the State's territory affecting one distinct minority group only. Whether such nationality legislation was determined to be directed at this group or not would not be relevant to an analysis of the legislation's negative impact on the minority group. Of concern is the result of the legislation and its consistency with fundamental principles of international law. Article 15 of the Universal Declaration of Human Rights stipulates:

"1.        Everyone has the right to a nationality.

2.         No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."[21]

27.       This right has been elaborated upon further in the many instruments adopted since the Universal Declaration which touch on the question of nationality. The generally accepted means of determining nationality is via the genuine effective link, as promulgated by the International Court of Justice in the Nottebohm case. The Court stated:

"According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State."[22]

28.       There are connecting factors which indicate a tie with a particular State and, as everyone has the right to a nationality and shall not be deprived of nationality nor of the right to change it, clearly there are certain obligations incumbent upon a State to ensure this right to right to those who are more closely connected with it than with any other State.

29.       In discussing human rights and nationality in State succession, the Special Rapporteur for the International Law Commissions cites Article 8 of the Convention on the Reduction of Statelessness which provides that a Contracting State "shall not deprive a person of its nationality if such deprivation would render him Stateless."[23] He goes on to note Article 9 of the same Convention which indicates:

"A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds."[24]

30.       The Special Rapporteur sums up his preliminary considerations on human rights and nationality in the context of State succession with the following observation:

"As stated by one author,

'[E]thnic options based on the subjective test of 'race', for example, may be arbitrary in the sense that they are contrary to the prohibition of discrimination based on race, sex, language, or religion, as expressed in article 1, paragraph 3, of the Charter of t he United Nations and subsequent international instruments.'[25]

Thus, the application of such criteria could be objected to on the basis of fundamental human rights standards."[26]

31.       In summary, it is clear that contemporary principles of international law indicate that the population follows the territory in any change of sovereignty unless there are factors to indicate a closer connection to another State. Should these factors exist, it is incumbent on the State concerned to resolve, via treaty or through adoption of appropriate citizenship legislation, the issue of nationality ensuring no statelessness occurs and upholding the principle of the genuine effective link. Granting a right of option is one effective means of resolving the question of the State with which the individual is most closely associated.

32.       States must cooperate closely on this question, for the results would be disastrous if one State referred to the normal criteria of residency and a genuine effective link while another State referred to other criteria. For example, if Croatia introduced new criteria finding residents in Croatia to be citizens of Bosnia and Herzegovina, while Bosnia and Herzegovina referred to the standard criteria of residency and the genuine effective link, finding residents in Croatia to be Croats, the individuals would be caught in the middle with no effective nationality. This result would run contrary to international law.

33.       It should be reiterated, therefore, that the clear principles outlined above by State practice. Treaties concluded in the transfer of territory, the 1961 Convention and expert opinion, all point to residence and the genuine effective link as the key factors for determination of nationality in the context of State succession. As nationality acts as a foundation for realization of other rights and as a stabilizing factor, decreasing the likelihood of future displacement and increasing the desirability of return, it is an important element in the pursuit of lasting peace in Bosnia and Herzegovina.

Analysis of the General Framework Agreement for Peace

34.       The Dayton Peace Agreement should, therefore, be examined in light of international law and principles relating to nationality. This was, in fact, the intention of the drafters who, throughout the Peace Agreement, reiterate principles of international law which are to serve as guiding factors in implementation of the provisions embodied in the Agreement. Hence, while there may be certain discrepancies in the Agreement itself, the drafters provided the necessary tools, read in conjunction with basic principles regarding the meaning, object and purpose of a treaty, for analysis of question related to nationality.

I.      Vienna Convention on the Law of Treaties

35        The Vienna Convention on the Law of Treaties of 1969[27] provides the basis for interpretation of treaties. Articles 26 and 27 indicate that treaties are binding on the parties and must be performed by them in good faith. A State may not invoke the provisions of its internal law as justification for failure to perform the treaty. Article 31 states:

"1.        A treaty shall be interpreted 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."[28]

36.       The context mentioned is to include the text, preamble and annexes, as well as relevant rules of international law applicable in the relations between the parties. Should further clarification be sought, reference may be made to the "preparatory work of the treaty and the circumstances of its conclusion."[29] The peace Agreement, including the text, preamble and annexes must, therefore, be read in light of these provisions with reference to its object and purpose. Internal legislation must be interpreted in light of the provisions of the treaty. Provisions of internal legislation will be upheld only insofar as they are not inconsistent with provisions of the treaty.

II.    Annex 4/Constitution of Bosnia and Herzegovina

37.       Under the Constitutional provisions, the Republic of Bosnia and Herzegovina continues its legal existence as a State under international law. All laws, regulations, and judicial rules of procedure in effect within the territory when the Constitution enters into force, shall remain in effect to the extent they are not inconsistent with the Constitution. The Constitution supersedes inconsistent provisions of the law of Bosnia and Herzegovina and of the constitutions and law of the Entities.

38.       Attached in Annex to the Constitution are several international instruments which touch directly upon issues regarding nationality, including the 1951 Convention relating to the Status of Refugees, the 1957 Convention on the Nationality of Married Women, the 1961 Convention on Reduction of Statelessness, the 1965 International Covenant on Civil and Political Rights, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, and the 1989 Convention on the Rights of the Child. Hence, the citizenship provisions of the Constitution must be interpreted in light of the object and purpose of the Peace Agreement and in line with the relevant provisions of the aforementioned instruments, notably including the 1961 Convention on the Reduction of Statelessness.

39.       In this regard, it may be useful to restate the provisions of the 1961 Convention pertaining State succession. Article 10 of the 1961 Convention states:

"1.        Every treaty between Contracting States providing for the transfer of territory shall include provisions designed to secure that no person shall become stateless as a result of the transfer. A Contracting State shall use its best endeavors to secure that any such treaty made by it with a State which is not a party to this Convention includes such provisions.

2.         In the absence of such provisions a Contracting State to which territory is transferred or which otherwise acquires shall confer its nationality on such persons as would otherwise become stateless as a result of the transfer or acquisition."[30]

40.       Statelessness shall not occur as a result of dissolution of one State and succession of one or more State. As noted in the legal analysis above, reference must be made to residency and the genuine effective link in determining which nationality is the most appropriate for citizens of the predecessor State. The usual means of ascribing nationality in these circumstances is to use the presumption of domicile, allowing the exercise of a right of option for those who may feel their genuine effective link to be elsewhere. Article 9 of the 1961 Convention stipulates that:

"A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds."[31]

41.       Given the lengthy war, the ethnic tensions involved and the number of displaced persons, it is now a challenge to recapture an accurate sense of the status quo prior to the outbreak of hostilities so as to assess the degree and manner in which the war has altered the situation. Every effort should be made to determine who was resident in Bosnia and Herzegovina in 1991 and held citizenship of SFRY. The 1991 census list will be extremely useful in this regard.

42.       There is an additional factor which must be clearly understood in assessing citizenship issues in the former Yugoslavia. This is the matter of the "internal" nationality designation. The terms citizenship ad nationality have been used synonymously in this paper as, indeed, they are used in international law and international legal instruments. Citizenship and nationality, under international law, refer to an individual's attachment to a State, carrying with it implications on the international level. Some countries, particularly Socialist Federal Republics, have used nationality to refer to an internal designation, an internal attachment to a particular Republic inside the Federal Republic. Nonetheless, practical rights and privileges were, for the most part, connected to one's place of residence. Hence, an individual might have the internal "nationality" of one Republic, while residing, voting, collecting benefits, raising a family, working and performing other civil, political, social and economic acts in another Republic.

43.       It is critical to note that the internal nationality designation is of no import at the international level. Whatever the internal designation was, all citizens of the SFRY were, in the eyes of international law, in relations between States, and by the individuals themselves, considered to have a common nationality, that of the Socialist Federal Republic of Yugoslavia. It is this citizenship which must be referred to in the context of State succession for purposes of ensuring no citizen of the former SFRY becomes stateless as a result of the dissolution, and for determining the most appropriate nationality of the successor States to grant former SFRY citizens. As indicated residency is the presumption. Given the fact of war and the ethnic tensions involve, a right of option should also be granted for individuals to choose the citizenship of an alternative State, as many of them will no longer feel their former place of residence to represent "home".

44.       Naturally, this is not for Bosnia and Herzegovina alone to determine, but must be worked out in agreement with other successor States. For purposes of this paper and the need to determine citizenship as a precursor to the right to vote, it is sufficient to note that Bosnia and Herzegovina, as a successor State, has an obligation towards those who were resident on its territory or who had their genuine effective link with this territory at the point of dissolution of the former Yugoslavia. In this regard, the census list of 1991 is a valuable reference point.

45.       Article I (7) of the Constitution under Annex 4 of the Peace Agreement, provides for citizenship of Bosnia and Herzegovina as a State, and for citizenship of each of the Entities of the State. The designation of a State and an "Entity" citizenship can be a source of confusion concerning fundamental principles regarding nationality. Thus, as regards the former internal nationality designation of SFRY, it should be noted that those who were domiciled in Bosnia and Herzegovina prior to the outbreak of hostilities should be presumed to have the right to citizenship of Bosnia and Herzegovina. Those who were not resident who had, nonetheless, a genuine effective link with the territory of Bosnia and Herzegovina prior to the outbreak of hostilities, through factors of birth, residency, or descent and who would, in particular, otherwise be stateless as a result of the dissolution, should have the opportunity to opt for citizenship of Bosnia and Herzegovina. In the eyes of international law, the former internal "nationality" designation was derivative of citizenship of the Federal State which, alone, was the relevant factor. This is understood in the Peace Agreement itself which, despite perpetuation of the concept of an internal nationality designation, states that all citizens of either Entity are thereby citizens of Bosnia and Herzegovina. It will be the citizenship of Bosnia and Herzegovina which is relevant at the international level.

46.       Article I (7) (c) of Annex 4 states that all persons who were citizens of the Republic of Bosnia and Herzegovina immediately prior to the entry into force of the Constitution remain citizens of Bosnia and Herzegovina. This provision in the Constitution indicates that the 1992 Citizenship Act is considered effective law and the citizenship granted under it remains effective both for the initial body of citizens, as well as for those who were naturalized under the Act. The citizenship of persons who were naturalized after 6 April 1992, and before the entry into force of the Constitution, is to be regulated by the Parliamentary Assembly, [It should be noted that regulation by the Parliamentary Assembly or by the Entities cannot, in the context of the 1961 Convention and the object and purpose of the Peace Agreement, be interpreted in such a way as to arbitrarily revoke nationality, to negatively influence ethnic groups through nationality, or to deny nationality to those who would otherwise be stateless. Regulation is to read in its administrative sense as indicated by the non-discrimination clause of Article I (7)(b) which includes sex, race, color, language, religion, political or other opinion, nationality or social origin, association with a national minority, property, birth or other status.[32]]

47..      The 1992 Citizenship Act established the initial body of citizens of Bosnia and Herzegovina following the dissolution of the SFRY. Article 27 provides that those who held the internal nationality of the Republic of Bosnia and Herzegovina under the previous regulations are considered citizens of the "new" Republic. For voting purposes, it should be noted that not all of these citizens will have been resident in Bosnia and Herzegovina when the 1991 census was taken. Hence, consideration must be given to this group in determining who shall have the right to vote in the 1996 elections.

48.       Article 29 of the 1992 Citizenship Act provided that a person who was a citizen of some other Republic of the SFRY, who was born on the territory of Bosnia and Herzegovina and resident for a continuous 5-year period, until 6 April 1992, will be a citizen of Bosnia and Herzegovina provided that within 6 months of the end of the state of war, this individual submits a statement accepting citizenship and documentation proving the termination of the former citizenship. Those who were not born in the Republic will be citizens if resident for 10 continuous years prior to 6 April 1992.

49.       This version of Article 29 presented problems and conflicted with the principles embodied in the Constitution and the related international instruments, including the 1961 Convention on the Reduction of Statelessness. Article 29 was, however, amended in 1993 to the following:

"Person that on the day April 6, 1992 had citizenship of the former SFRY and domicile on the territory of he Republic."[33]

50.       This amendment brings the Article into compliance with previously stated principles of international law in the context of State succession. This, those with the internal nationality of Bosnia and Herzegovina under the SFRY, and those with citizenship of the predecessor State who were domiciled in Bosnia and Herzegovina on 6 April 1992, have the right of citizenship of Bosnia and Herzegovina. It must be ensured that no displacement due to hostilities took place prior to 6 April 1992. In this regard, a comparison might be made of those on the 1991 census list and those who would qualify as citizens under the 1992 Citizenship Act, as amended in 1993.

51.       Another point of concern is Article I (7)(b) of the Constitution, which stipulates that, while dual citizenship is permitted through bilateral agreement with another State, persons with dual citizenship may vote in Bosnia and Herzegovina and the Entities only if Bosnia and Herzegovina is their country of residence. This provision is not exceptional in general terms; however, given the unstructured dissolution of the SFRY, several years of war and displacement, there may be cases in which individuals are presumed by one former republic to hold the citizenship of another former Republic without definitive evidence in this regard. In other cases, citizenship may have been extended by operation of law, without the express consent of the individual, and without consideration of residency or the genuine effective link (for example, solely by reference to the former internal nationality designation). Scenarios such as these may block individuals, not resident in Bosnia and Herzegovina, from voting in the country to which they intend to return and in which they should have and effective nationality. Consideration should be given to those who may be ascribed two nationalities and are not currently resident, but wish to return and re-establish their lives in Bosnia and Herzegovina.

52.       The intention of the drafters of the peace Agreement was to extend the right to vote to citizens of Bosnia and Herzegovina. The tools necessary for determining who should have the right to citizenship in the Republic have been included in the Peace Agreement. Certain categories of persons may require attention, and administrative loopholes should be carefully considered in the determination of the right to vote. Therefore, it should also be ensured that administrative practice dose not frustrate the intention of the drafters and the right to citizenship for those who should, under the law, be citizens. For example, those who may have been unable to receive citizenship under the 1992 Citizenship Act prior to amendment in 1993 should have their cases reviewed. Citizenship by legislation is without meaning if, due to administrative difficulties, it cannot be realized in practice.

53.       Finally, discretion should be used in application of the Law on Voter Registers of the Republika Srpska, the Decree on Elections of the city of Mostar, and the Law on Voters Registers of Bosnia and Herzegovina. In each of these cases, rights associated with the elections are tied to domicile. Domicile should not be used in a restrictive sense to exclude those who have changed residence involuntarily. Hence, domicile in 1991 prior to the outbreak of hostilities should be the relevant factor.

Conclusion

54.       Article IV of the Elections Annex. Regarding eligibility of voters, indicates:

"Any citizen of Bosnia and Herzegovina aged 18 or older whose name appears on the 1991 census for Bosnia and Herzegovina shall be eligible, in accordance with electoral rules and regulation, to vote."[34]

55.       This provision seeks to extend the right to vote to citizens who were resident in Bosnia and Herzegovina in 1991. Clearly, the goal was to include those who became refugees and to, as far as possible, reverse any negative effects of the war, making participation in the restructuring of the country available to all those who had a genuine effective link element of an effective nationality is the right to vote.[35]

56.       Comparison of the 1991 statistics regarding eligible voters, citizens, and census figures would prove useful in determining which categories of persons the drafters of the Peace Agreement intended to be eligible for voting who may not, due to gaps in law or practice, be able to exercise this right. This provisional Election Commission has the authority, under the terms of the Peace Agreement, to provide in the electoral rules and regulations for citizens not listed in the 1991 census to vote. Paragraph 7 on the Human Dimension of the OSCE, Copenhagen, 1990 meeting, attached to Annex 3, states that the goal of elections is:

"To ensure that the will of the people serves as the basis of the authority of government."[36]

57.       The following steps should be taken to ensure that the will of the people serves as the authority of government in Bosnia and Herzegovina:

1.         Determination of those who were citizens of the SFRY and were resident in Bosnia and Herzegovina in 1991, defining the initial body of citizens.

2.         Determination of those who had their genuine effective link with Bosnia and Herzegovina in 1991 and are, or should be, among the initial body of citizens but may not have been resident when the census was taken.

3.         Determination of any displacement due to hostilities which may have taken place prior to the adoption of the 1992 Citizenship Act, to define those resident in 1991 who may have fled before the opportunity to obtain citizenship.

4.         Determination of dual citizenship status which could adversely impact those who consider their effective link to be with Bosnia and Herzegovina and who, while not currently resident, would like to return.

5.         Determination of any administrative practices which would block those with a right to citizenship from actually receiving it. In particular, there may be gaps in the grant of citizenship between the administration of the 1992 Citizenship Act and the adoption of the 1993 Amendment of the Act. During this time, some individuals may have been denied citizenship within the initial body of citizens which they later gained the right to acquire.

6.         Determination of other administrative factors which might have frustrated the right to citizenship, including exorbitant fees, inability to locate documents, proof of residence, etc.

7.         Ensure that domicile, as outlined in the respective laws on voter registers, does not prohibit those who have involuntarily fled and are outside the country of internally displaced, from exercising their right to vote because they are not currently resident at their 1991 place of residency.

58.       Each of these categories should be reviewed for inclusion on the list of eligible voters. In each case, there may be individuals who have a right to citizenship, who intend to establish their home in Bosnia and Herzegovina, who should be able to exercise the right to vote.

59.       While the Provisional Election Commission cannot grant citizenship itself, since this is an action performed by a State, the Commission can, nonetheless, advise the government on the appropriate steps to take in ensuring all those with a right to citizenship are able to realize this right. The Commission may, further, take steps, under the administration of elections and the provision for rules and regulations, to ensure that all those who have the right to citizenship also have the right to vote.

[1]General Framework Peace Agreement for Bosnia and Herzegovina, signed 14 December, 1995.

[2]UN General Assembly Resolution 217 A(III), 10 December 1948; text in Human Rights: A Compilation of International Instruments, Vol. 1 (First Part), 1994, p. 1.

[3]989 United Nations Treaty Series 175, text in UNHCR, Collection of International instruments Concerning Refugees (Geneva: UNHCR, 1998), p. 82.

[4]UN General Assembly Resolutions 3274 (XXIX), 10 December 1974, and 31/36, 30 November 1976. For historical perspective see Batchelor, C., Stateless Persons: Some Gaps in International Protection, International Journal of Refugee |Law, Vol. 7, 1995.

[5]Earl Warren, 1958, quoted in Independent Commission on International Humanitarian Issues, Winning the Human Race? (1988), p. 107.

[6]The terms citizenship and nationality are used throughout this document synonymously unless otherwise indicated.

[7]Permanent Court of International Justice, Advisory Opinion on the Tunis and Morocco Nationality Decrees, Ser. B, No.4, 1923, p. 23.

[8]179 League of Nations Treaty Series 89, p. 99.

[9]Brownlie, I., Principles of Public International Law, (4th ed., 1990), p. 560.

[10]Weis, P., Nationality and Statelessness in International Law, 2^nd Rev. Ed., 1989, Sijthoff and Noordhoff.

[11]Mikulka, V., Special Rapporteur, First Report on State Succession and its Impact on the Nationality of Natural and Legal Persons, International Law Commission 47th session: UN doc. A/CN. 4/467, 17 April 1995.

[12]Chan, J.M., The Right to a Nationality as a Human Right, Human Rights Law Journal, 1991, Vol. 12.

[13]989 United Nations Treaty Series 175, text in UNHCR, Collection of International instruments Concerning Refugees (Geneva: UNHCR, 1988), p. 82.

[14]Brownlie, I., Principles of Public International Law (4th ed., 1990), p. 560.

[15]Ibid., p. 560.

[16]Brownlie, ibid., pp. 664-5.

[17]Mikulka, above, note 11..

[18]ICJ Reports, 1955, p. 22 as quoted in Mikulka, V., above, note 11.

[19]360 United Nations Treaty Series 117; text in UNHCR, Collection of international Instruments Concerning Refugees (Geneva: UNHCR, 1988), p. 59.

[20]There are instances I which international law will ascribe nationality based upon the genuine effective link. However, this is generally done in cases where the citizenship legislation is unclear or non-existent.

[21]UN General Assembly Resolution 217 A(III), 10 December 1984; text in Human Rights: A Compilation of International Instruments, Vol. 1 (First Part), 1994, p. 1.

[22]ICJ Reports, 1995, p. 23

[23]Above, note 5, Article 8.

[24]Ibid., Article 9, as quoted in Mikulka, above, note 11, p. 31.

[25]Donner, R., The Regulation of Nationality in International Law, 2nd ed. (Irvington-on Hudson, NY, Transitional Publishers, 1994), pp. 262-269 as quoted in Mikulka, above, note 11, p. 31.

[26]Mikulka, above, note 11, p. 31.

[27]Vienna Convention on the Law of Treaties (1969); text in Blackstone's International Law Documents, Evans, M., 1991, p. 147.

[28]Ibid., p. 154.

[29]Ibid., Article 32, p. 154.

[30]Above, note 13.

[31]Above, note 13, Article 8.

[32]In this regard, Annex 6, the Agreement of Human Rights, is also of importance. Chapter One, Article I states:

"The parties shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including … international agreements listed in the Appendix to this Annex."

International instruments listed in the Annex touching directly upon issues regarding nationality include those mentioned above, attached in Annex to the Constitution, of particular interest is the 1961 Convention on the Reduction of Statelessness which provides insight on State succession and the grant of nationality. The Agreement on Human Rights also stipulates, under Article I (14) and Article II, that the rights referred to in the documents attached to the Peace Agreement are to be secured without discrimination on any ground, including sex, race, color, language, religion, political or other opinion, national or social origin, association with national minority, property, birth or other status.

[33]Decree with a Legal Power on Changes and Supplements to the Decree with Legal Power on the Citizenship of the Republic of Bosnia and Herzegovina, 23 April 1993 as translated.

[34]Above, note 1.

[35]See Annex 7, the Agreement on Refugees and Displaced Persons. This Annex stipulates that the contracting Parties have agreed that all refugees and displaced persons, including those who have been accorded temporary protection by third countries, have the right freely to return to their homes of origin. Return is to take place under conditions of safety, and without risk of harassment, intimidation, persecution, or discrimination, particularly in relation to ethnic origin, religious belief, or political opinion.

In facilitation of the above and to demonstrate their commitment to securing full respect for the human rights and fundamental freedoms of all persons within their jurisdiction, the Parties shall among other, undertake the following:

"(a) the repeal of domestic legislation and administrative practices with discriminatory intent or effect;…

(d) the protection of immediate access to these populations by international humanitarian organizations and monitors."

Thus, remaining domestic legislation should be interpreted in the light of the provisions of the Peace Agreement under which non-discrimination principles are outlined. The goal is to facilitate the return of refugees and displaced persons and, in so doing, to recognize the position of those who were resident in Bosnia and Herzegovina prior to the onslaught of war.

[36]Peace Agreement, Annex 3, above, note 1.