DemocracyvHuman Rights? The Strasbourg Court and the Challenge of Power Sharing

Abstract

Tension between ‘rights’ and ‘democracy’ principle in highly political cases – ECtHR’s wide margin of appreciation on elections put into question by recent cases – Sejdic-Finci v Bosnia-Herzegovina (BiH): ethnic criteria for standing in election violate Convention – Zornic v BiH: candidate’s exclusion from standing in election on account of her self-chosen identity violates P-12 – Mathieu-Mohin and Clerfayt v Belgium overruled? – ‘Integrative democratic tolerance’ approach: five legal and political principles to reconcile ‘rights’ and ‘democracy’ principle in highly political cases.

Constitutional Design and the Seeds of Degradation in Divided Societies: The Case of Bosnia-Herzegovina

“…The government justified the differentiated treatment of the two citizens who refused to affiliate with the constituent peoples on the ground that the system of ethnic affiliation guaranteed the peaceful coexistence of communities, as well as the delicate constitutional system designed by the Dayton Peace Agreement. For its part, the Strasbourg Court framed it as a case of ethnic discrimination against vulnerable peoples 115 and declared the constitutional provisions to be in breach of Article 14 ECHR read in conjunction with Article 3 Protocol No. 1, and of Article 1 of Protocol No.…”

Approaching the boundary problem: Self-determination, inclusion, and the unpuzzling of transboundary conflicts

“…Among these scholars, those addressing group rights have grappled with “just exclusion” in the course of investigating specific justice dilemmas. For example, students of consociational governance have shown how individual electoral rights may endanger minority power-sharing (McCrudden and O’Leary, 2013; Graziadei, 2016). Scholars focusing on Indigenous rights have noted how tribal self-government may be challenged as illiberal toward non-natives (see e.g Berger, 2010, 2013, 2019…”

“…Students of these subjects have tended to be not political theorists but rather legal theorists. Their subjects include “sovereignty studies” (Aleinikoff, 2000), the “law of democracy” (Issacharoff et al, 2002), “mega-politics” (Hirschl, 2004, 2008), consociational governance (Graziadei, 2016; McCrudden and O’Leary, 2013), and Indigenous decolonization (e.g. Berger, 2010, 2013, 2019; Gover, 2015, 2017; Rohrer, 2016; Spitzer, 2019a, 2019b, 2019c).…”

Nonelectoral Participation in Deeply Divided Societies: Transforming Consociations from the Ground Up?

“…From its inception, this system has been roundly criticized by the international community for its dysfunction-prone to deadlock given the permissive veto regime-its entrenchment of ethnic division, and its discrimination against those who do not identify with any of the three constituent peoples. Indeed, the European Court of Human Rights has now ruled on three occasions against the state of BiH for violating the rights of non-constituent peoples by preventing them from participating in state elections on an equal basis, most notably in the landmark Sejdić and Finci 2009, Zornić (2014), and Pilav (2016) rulings (Graziadei 2016). Nevertheless, despite numerous legal and political statements urging constitutional revision that would address this discrimination, dysfunction, and ethnic division the system has thus far eluded reform.…”