by: Milica Plavšić
It is hard to overstate the importance of the Dayton Peace Agreement, which not only stopped the bloodshed, but also determined the entire political structure of Bosnia and Herzegovina. It acknowledged the existence of two entities, the Federation of Bosnia and Herzegovina and the Republic of Srpska, and established a government with a rotating presidency. He found the Office of the High Representative and gave it broad powers, including the ability to dismiss high-ranking government representatives. And last but not least, the Constitution of Bosnia and Herzegovina was adopted as Annex 4 of the Dayton Peace Agreement.
The Dayton Agreement and the Constitution of Bosnia and Herzegovina have never been published in the Official Gazette at the state level, nor at the entity level. This data is at least a curiosity, if not a serious omission which requires clarification by the authorities. Equally confusing is the fact that this has been paid almost no attention in the public discourse.
The most important legal document of BiH is in foreign language
The Constitution of Bosnia and Herzegovina, which entered into force in the form of Annex 4 of the Dayton Peace Agreement, has been and remains one of the most controversial and sensitive political, legal and social issues in the country. However, the only authentic version of the Constitution is in a foreign language, more precisely in English.
The two most relevant institutions for this issue, the Office of the High Representative, responsible for civilian aspects of Dayton implementation, and the Ministry of Justice of Bosnia and Herzegovina, as relevant state institution, do not agree when it comes to the language in which original document is signed, nor on procedures for obtaining official translation of this document into the languages of BiH.
The Office of the High Representative claims that the English version of the Dayton Peace Agreement is official and authentic version and that the Agreement and its Annexes were signed only in English.
“The English version of the General Framework Agreement for Peace is the official and authentic version and Agreement and its annexes were signed by all parties (Federal Republic of Yugoslavia, Croatia and Bosnia and Herzegovina) in English. There is no official translation of the annexes of the General Framework Agreement for Peace in Serbian, Croatian or Bosnian. According to a separate agreement that the parties signed in December 1995 in Paris, translation in these languages should have been done immediately after the signing of the Agreement, and should have done by the parties themselves and submitted to the Ministry of Foreign Affairs of France, for conformation. OHR has repeatedly urged the authorities of Bosnia and Herzegovina to translate the Agreement, but this has not yet occurred. Whenever the authorities of Bosnia and Herzegovina fulfill their obligations in accordance with this Agreement, France will continue its activities in order to determine the official text of the annexes of the General Framework Agreement for Peace, which will be confirmed by the experts of the parties.”
(Response from the Office of the High Representative on request of Noise, 12 April 2013)
On the other hand, the Ministry of Justice claims that the Agreement was signed and the BCS languages as well, but that these versions have never become available to the public.
“Article XI of the General Framework Agreement for Peace in Bosnia and Herzegovina states that the agreement was signed in the Bosnian, Croatian, Serbian and English, with full equality of all language versions, although these versions have never become available to the public. It was requested, on several occasions, by the senior officials that the competent institutions, that are in charge of foreign policy, to take action in searching for the original version of the translation, as well as by taking formal diplomatic activity with the countries that were participating in the creation of the constitutional and legal framework of Bosnia and Herzegovina. The fact is that a signed copy of Annex IV of the Agreement that is Constitution is only available in English. In this case, only copies of the Agreement in languages in official use in Bosnia and Herzegovina signed on 14 December 1995 in Paris, or their certified copies, may represent the original official documents.”
(Response from the Ministry of Justice at the request of Noise, May 29, 2013)
And, indeed, in Article XI of the Dayton agreement, available on the website of the Office of the High Representative in English, reads as follows:
This Agreement shall enter into force upon signature. DONE at Paris, this 14 day of December, 1995, in the Bosnian, Croatian, English and Serbian languages, each text being equally authentic.
It remains a mystery what happened to those versions, if they are ever physically existed.
Abuse of translation
According to the procedure for obtaining an official translation of the Dayton Peace Agreement, the Ministry of Justice said that such a procedure is not defined in the text of the Agreement, according to the Office of the High Representative:
“Concerning the comment that came from the Office of the High Representative, that such translation should be sent for verification to the Ministry of Foreign Affairs of France, we do not agree, having in mind that the English version of the General Framework Agreement for Peace is official and authentic version and we use only the translation of the same which can be verified only by contracting parties, which also signed the agreement in Paris in 1995. Other allegations of the OHR, that the translations should have been done immediately after the signing of the Agreement and that it should have been done by the parties themselves and submitted to the Ministry of Foreign Affairs of France, we cannot comment because it was not what was stated in the text of the Agreement and as such certified with signatures.”
This is just one of many issues on which there is no agreement between the international community and the Government of the FBiH and the implementation of the Dayton Peace Agreement is problematic enough without linguistic disputes.
However, it remains the fact that the official text of the Constitution of Bosnia and Herzegovina is only available in English and in official use there are various translations, which for sure carries certain implications.
“The official text of the said Agreement in the English language can be translated by an authorized translator. Such translation can be used for official purposes, likewise translation of every document from a foreign language, but it cannot be use as an official translation. There are signed translations of the English version of the agreement and as such are in official use “, according to the Ministry.
It seems that the Ministry of Justice does not see that the translation of the same text can have multiple versions, and since the political decision are justified by referring to the text of legal documents, inconsistencies in the translation may create confusion about the interpretation of such documents. In the worst case, these ambiguities can be misused for political and ideological purposes. Then we can talk about the politicization of the translation.
In the case of the Constitution, its ambiguous nature has already resulted in conflicting political interpretations, especially on responsibilities that the Constitution gives the entity governments and the BiH state.
“The Dayton Constitution of BiH (Annex 4) as the annex of the Dayton Peace Agreement contains the most interesting examples of ambiguity”. (Pehar, D. “Use of Ambiguities in Peace Agreements,” in Language and Diplomacy, edited by Kurbalija J. and Slavik H. 163-200. Malta: DiploProjects, 2001)
In his work, Peher explains why ambiguities in peace agreements are not necessarily bad. There are so-called constructive or creative ambiguities relating to the deliberate use of ambiguous language in order to reach a compromise on sensitive issues so that the both sides in the negotiations are satisfied.
In the case of the Dayton Peace Agreement, unfortunately, these ambiguities are only created space for political leaders to irreconcilable interpret and endlessly postpone solving controversial issues.
Pehar so believes that the obstacles in the implementation of the Dayton Agreement did not come from its ambiguous nature, but from unclear provisions of the Agreement that are deliberately misused for “insisting on one-sided interpretation, justifying in that way its worn-out policy that has brought misery and suffering to the people of Bosnia in the recent past” .
The linguistic confusion of BiH
Issues of language and translation should have been defined by the state language policy, which would provide at least guidelines, if not strict rules. However, to create a uniform language policy, there should be a consensus on language on that same attitude. When, earlier in the text, we say that the Constitution is not translated to “languages of Bosnia and Herzegovina”, this phrase we use to simplify the language situation in BiH, since there is no political / linguistic consensus on which are those languages. Two things are in dispute: the first is whether the Serbian, Croatian and Bosnian language are linguistically separate languages or it is a single, polycentric language with more variants, the second is the use of the term Bosnian language for the language spoken by Bosniaks.
The current situation is a legacy of war language policies that served the needs of ethno-nationalism and identity construction of Serbs, Croats and Bosniaks. This involved determining the official languages, their standardization and purification. In the process, translating between Serbian, Croatian and Bosnian language was an instrument for proving that the ethnic groups that once used the common language are now so deeply divided and different that they must translate from one language to another. And this is where the politicization of the translation was used for ideological goals.
In the post-Dayton Bosnia and Herzegovina, this has led to complete confusion in all spheres of life, because then, a relatively ethnically pure entities, now make multi-ethnic society, whose language policy is supposed to reflect that. Amendments to the original Constitution of the Republic of Srpska and the Federation of BiH, make all three above mentioned languages official. That attitudes about language thus are not reconciled testifies Article 7 of the Constitution of Republic of Srpska, which states: “The official languages of the Republic of Srpska are the language of Serbian people, language of Bosniak people and language of Croatian people.” Complicated text of this Article is the result of avoiding the use of the disputed names of languages. Or maybe this is a “constructive ambiguity”.
To summarize: while we have endless battle over constitutional reform, few know that the only official version of the Constitution of Bosnia and Herzegovina is one in English. State institutions are using unofficial translations of the Constitution which may be greater or lesser extent vary, depending on the linguistic, political and legal competence of the translator, but also there is a potential tendency that interpreter favor particular interpretation in case of ambiguity of the original text. Since the Constitution of Bosnia and Herzegovina already contains certain ambiguities in the original text, inconsistencies in the translation may further complicate the understanding of the text and leave room for different interpretations, in line with the political objectives of the one who interprets the text. We do not know whether this is already the case, but the abuse of the provisions of the Constitution, whether they are ambiguous or not, by political leaders is more than obvious.
The previous practice of politicization of translation within the nationalist language policies argues that the existence of a common language on the territory of the former Yugoslavia were the basis for the division, not for understanding and cooperation. In Bosnia and Herzegovina this practice continues by translating between Serbian, Croatian and Bosnian, although at the level of communication they function as a single language. In order to break the vicious circle in which the language is the victim and the instrument of not good intention policy in the further division of Bh. society requires a thoughtful and, above all, pragmatic language policy, which would be an integral part of a politics of translation. However, if our language policy is going to be tailored precisely by those who abuse the lack of the same, there is little reason for optimism.
Women Citizens for Constitutional Reform 