The ECHR and ethnic discrimination in the Bosnia and Herzegovina constitution

The European Court of Human Rights had a holiday gift for Bosnia and Herzegovina’s smaller minority groups today. The story is widely reported; Deutsche Welle has coverage here. The court ruled that provisions of the country’s post-conflict constitution are discriminatory in violation of the European Convention on Human Rights. The suit in question, Sedjic and Finci v. Bosnia and Herzegovina [follow this link to retrieve the decision by name], was brought by two prominent politicians–one a Bosnian Jew, the other of Roma origin–who are both ineligible to serve as either members of the House of Peoples (the second legislative chamber) or co-presidents on account of their ethnicity. Both sets of offices are reserved for members of Bosnia and Herzegovina’s “constituent peoples”–namely, Bosniacs, Croats, and Serbs. (The presidency is a three-member body for which membership in one of three ethnic groups is a prerequisite. Here’s the actual offending language from Article V of the constitution of Bosnia and Herzegovina: “The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.”)

In the face of this sort of language, it is not difficult to see how the court reached the conclusion that it did. These sorts of explicit ethnic set-asides are not only literally discriminatory, but they also discriminate against groups that have historically suffered more than their fair share of abuse. The Strasbourg court can hardly be blamed for discharging its obligations under the Convention and, indeed, the Bosnian constitution, which provides explicitly that the Convention “shall apply directly” and “shall have priority over all other law.” (Logically, there would not seem to be any barrier to a constitution proclaiming its own inferiority to some other legal instrument, such as the Convention, but the effective result–namely, the use of one part of a constitution to strike down another part–is at least superficially a bit paradoxical.)

As the court itself acknowledged, though, the story is a bit more complicated than that. The goal of writing a workable constitution for a deeply divided post-conflict society is not an easy one, and there is a limited repertoire of theoretical approaches and practical tools for doing so. One of the best-known approaches is the theory of consociational democracy championed by UCSD’s Arend Lijphart. Lijphart has long argued for power-sharing in the form of divvying up public offices in such a way that all relevant groups are represented and thus have a stake in upholding the constitutional order.

The Strasbourg court is clearly aware that the Bosnia-Herzegovina constitution reflects a bargain among opposing forces, but it just as clearly takes a dim view of that bargain. It makes a point of mentioning that the constitution was drafted and adopted as part of the Dayton Accords “without the application of procedures which could have provided democratic legitimacy,” and that the specific provisions in question were included at the insistence of the parties to the conflict, notwithstanding the expression of human rights concerns by the international mediators involved. From the perspective of consociational democracy, however, the fact that the ethnic set-aside provisions were sought by the parties to the conflict is no reason to invalidate them. It suggests, instead, that those provisions may be crucial to the survival of the constitution as a whole.

Consociational democracy is not the only approach to constitution-building in post-conflict societies, and some scholars have argued vigorously that it is far from the best, but it is certainly a plausible one. Unfortunately, discrimination would appear to be an inevitable byproduct of setting aside high public offices on the basis of ethnicity or religion. Do the ends justify the means? Is it imprudent to rule such approaches entirely out of bounds on human rights grounds? Does the fragile nationhood of Bosnia and Herzegovina potentially rest upon the answers to these questions? These are not easy questions.

And on that upbeat note … happy holidays everyone!