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Courts and Consociations, or How Human Rights Courts May De-Stabilize Power-Sharing Settlements

European Journal of International Law (2013) (Forthcoming)

U of Michigan Public Law Research Paper No. 317

32 Pages Posted: 3 Mar 2013  

Christopher McCrudden

Queen's University Belfast - School of Law; University of Michigan Law School

Brendan O'Leary

University of Pennsylvania; Queen's University Belfast; Moore Institute NUI Galway

Date Written: March 1, 2013

Abstract

We consider the use of consociational arrangements to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts, and their compatibility with nondiscrimination and equality norms. Key questions include to what extent, if any, consociations conflict with the dictates of global justice and the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements. In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and, most recently, in Sejdić and Finci, concerning the constitutional arrangements established for Bosnia Herzegovina under the Dayton Agreement. The Court’s recent decision in Sejdić and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in the Belgian cases. We seek to account for this change and assess its implications. We identify problematic aspects of the judgment and conclude that, although the Court’s decision indicates one possible trajectory of human rights courts’ reactions to consociations, this would be an unfortunate development because it leaves future negotiators in places riven by potential or manifest bloody ethnic conflicts with considerably less flexibility in reaching a settlement. That in turn may unintentionally contribute to sustaining such conflicts and make it more likely that advisors to negotiators will advise them to exclude regional and international courts from having standing in the management of political settlements.

Keywords: human rights, consociations

JEL Classification: K00, K30, K39

Suggested Citation

McCrudden, Christopher and O'Leary, Brendan, Courts and Consociations, or How Human Rights Courts May De-Stabilize Power-Sharing Settlements (March 1, 2013). European Journal of International Law (2013) (Forthcoming); U of Michigan Public Law Research Paper No. 317. Available at SSRN: https://ssrn.com/abstract=2227107

Christopher McCrudden (Contact Author)

Queen's University Belfast - School of Law ( email )

School of Law
Belfast BT7 1NN, Northern Ireland BT7 1NN
United Kingdom

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Brendan O'Leary

University of Pennsylvania ( email )

3440 Market Street, Suite 300
Room 308
Philadelphia, PA 19104
United States
2155730645 (Phone)

HOME PAGE: http://www.sas.upenn.edu/polisci/people/standing-faculty/brendan-oleary

Queen's University Belfast ( email )

University Road
Belfast BT7 1NN
Northern Ireland

Moore Institute NUI Galway ( email )

University Road
Galway, Connaught
Ireland

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