Courts and Consociations: Human Rights versus Power-sharing

Consociations are power-sharing arrangements, increasingly used to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts. Current examples include Belgium, Bosnia, Northern Ireland, Burundi, and Iraq. Despite their growing popularity, they have begun to be challenged before human rights courts as being incompatible with human rights norms, particularly equality and non-discrimination.

Courts and Consociations examines the use of power-sharing agreements, their legitimacy, and their compatibility with human rights law. Key questions include to what extent, if any, consociations conflict with 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 then in Sejdic and Finci v Bosnia regarding the constitution established for Bosnia Herzegovina under the Dayton Agreement. The Court's decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in Belgium. This book accounts for this change and assess its implications. The problematic aspects of the current state of law are demonstrated. Future negotiators in places riven by potential or actual bloody ethnic conflicts may now have less flexibility in reaching a workable settlement, which may unintentionally contribute to sustaining such conflicts and make it more likely that negotiators will consider excluding regional and international courts from reviewing these political settlements.

Courts and Consociations:How human rights courts may destabilize power-sharing settlements

We consider the use of consociational arrangements to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts, and their compatibility with non-discrimination 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 Sejdic and Finci, concerning the constitutional arrangements established for Bosnia Herzegovina under the Dayton Agreement. The Court’s recent decision in Sejdic 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.

El proceso de paz en Bosnia-Herzegovina después de los Acuerdos de Dayton : informe y selección de documentos.

Resumen del documento

Politiche di sviluppo e questione etnica. La cooperazione italiana IN Bosnia Erzegovina

The globalization process of the last twenty years has changed the world through international flows of people, policies and practices. International cooperation to development is a part of that process and brought International Organizations (IOs) and Non Governmental Organizations (NGOs) from the West to the rest of the world. In my thesis I analyze the Italian NGOs that worked in Bosnia Herzegovina (BH) to understand which development projects they realized and how they faced the ethnic issue that characterized BH. I consider the relation shaped between Italian NGOs and Bosnian civil society as an object of ethnic interests. In BH, once part of former Yugoslavia, the transition from the communist regime to a democratic country has not been completed. BH’s social conditions are characterized by strong ethnic divisions. The legacy of the early 1990s crisis was a phenomenon of ethnic identities created before the war and that still endure today. The Dayton Peace Agreement signed in 1995 granted the peace and reinforced the inter-ethnic hate between the newly recognized three principal ethnicities: Serbs, Croats and Bosniak. Through the new constitution, the institutions were characterized by division at every level, from the top to the bottom of society. Besides it was the first constitution ever written and signed outside the own country; that was the root of the state of exception that characterized BH. Thus ethnic identities culture survived through the international political involvement. At the same time ethnic groups that dominated the political debate clashed with the international organization’s democratic purpose to build a multicultural and democratic state. Ethnic and also religious differences were the instruments for a national statement that might cause the transition and development projects failure. Fifteen years later social fragmentation was still present and it established an atmosphere of daily cultural violence. Civil society suffered this condition and attended to recreate the ethnic fragmentation in every day life. Some cities became physically divided and other cities don’t tolerated the minority presence. In rural areas, the division was more explicit, from village to village, without integration. In my speech, the anthropology for development – the derivative study from applied anthropology – constitutes the point of view that I used to understand how ethnic identities still influenced the development process in BH. I done ethnographic research about the Italian cooperation for development projects that were working there in 2007. The target of research were the Italian NGOs that created a relation with Bosnian civil society; they were almost twenty divided in four main field of competences: institutional building, education, agriculture and democratization. I assumed that NGOs work needed a deep study because the bottom of society is the place where people could really change their representation and behavior. Italian NGOs operated in BH with the aim of creating sustainable development. They found cultural barricade that both institutions and civil society erected when development projects have been applied. Ethnic and religious differences were stressed to maintain boundaries and fragmented power. Thus NGOs tried to negotiate development projects by social integration. I found that NGOs worked among ethnic groups by pursuing a new integration. They often gained success among people; civil society was ready to accept development projects and overcome differences. On the other hand NGOs have been limited by political level that sustained the ethnic talk and by their representation of Bosnian issue. Thus development policies have been impeded by ethnic issue and by cooperation practices established on a top down perspective. Paradoxically, since international community has approved the political ethnic division within DPA, then the willing of development followed by funding NGOs cooperation projects was not completely successful.

The co-evolution of development needs and IOR forms: development by committee in Bosnia

This work highlights opportunities and obstacles to success in four task forces typically found at different times in states of conflict, transition, and development. They include: refugee return, media issues, privatization of state-owned enterprises, and efforts to promote business development. Based on over 180 in-depth interviews and observations of dozens of meetings during five lengthy field research trips to the Bosnian region between 1999 and 2005, this manuscript analyzes how these four task forces differed in terms of context, strategy, organization, and management in an attempt to understand the co-evolution of international development needs and the interorganizational forms that address them.

Das Kœnigreich Bosnien, und die Herzegovina (Rama) samt den angrœnzenden Provinzen von Croatien, Sclavonien, Temesvar, Servien, Albanien, Ragusa, und den Venetianischen Dalmatien

nach den militœrischen Handkarten des Prinzen Eugen der Grafen Khevenhüller, Marsigli und Pallavicini geographisch aufgetragen, und nach den zuverloessigsten Nachrichten, und Reisebeschreibungen berichtiget im Jahre 1788 von Herrn Maximilian Schimek ; J. Alberti Sculp. ; F. Müller Scrip.

The Theory of Interhybridity: Socio-political Dimensions and Migration Experiences of Post-communist Western Balkan States

The Western Balkans integration within the EU has started a legal process which is the rejection of former communist legal/political approaches and the transformation of former communist institutions. Indeed, the EU agenda has brought vertical/horizontal integration and Europeanization of national institutions (i.e. shifting power to the EU institutions and international authorities). At this point, it is very crucial to emphasize the fact that the Western Balkans as a whole region has currently an image that includes characteristics of both the Soviet socialism and the European democracy. The EU foreign policies and enlargement strategy for Western Balkans have significant effects on four core factors (i.e. Schengen visa regulations, remittances, asylum and migration as an aggregate process). The convergence/divergence of EU member states’ priorities for migration policies regulate and even shape directly the migration dynamics in migrant sender countries. From this standpoint, the research explores how main migration factors are influenced by political and judicial factors such as; rule of law and democracy score, the economic liberation score, political and human rights, civil society score and citizenship rights in Western Balkan countries. The proposal of interhybridity explores how the hybridization of state and non-state actors within home and host countries can solve labor migration-related problems. The economical and sociopolitical labor-migration model of Basu (2009) is overlapping with the multidimensional empirical framework of interhybridity. Indisputably, hybrid model (i.e. collaboration state and non-state actors) has a catalyst role in terms of balancing social problems and civil society needs. Paradigmatically, it is better to perceive the hybrid model as a combination of communicative and strategic action that means the reciprocal recognition within the model is precondition for significant functionality. This will shape social and industrial relations with moral meanings of communication.

From Civil Strife to Civil Society: civil and military responsibilities in disrupted states

"The 1990s saw the United Nations, the militaries of key member states, and NGOs increasingly entangled in the complex affairs of disrupted states. Whether as deliverers of humanitarian assistance or as agents of political, social, and civic reconstruction, whether in Somalia, Bosnia, Kosovo, or East Timor, these actors have had to learn ways of interacting with each other in order to optimize the benefits for the populations they seek to assist. Yet the challenges have proved daunting. Civil and military actors have different organizational cultures and standard operating procedures and are confronted with the need to work together to perform tasks to which different actors may attach quite different priorities."--BOOK JACKET.

Between Anarchy and Society: Trusteeship and the Obligations of Power

Bain, William, Between Anarchy and Society: Trusteeship and the Obligations of Power (Oxford: Oxford University Press, 2003), pp.viii+216 RAE2008

Nomenclature and syntaxonomic notes on some high-rank syntaxa of the European grassland vegetation

We present descriptions of a new order (Ranunculo cortusifolii-Geranietalia reuteri and of a new alliance (Stachyo lusitanicae-Cheirolophion sempervirentis) for the herbaceous fringe communities of Macaronesia and of the southwestern Iberian Peninsula, respectively. A new alliance, the Polygalo mediterraneae-Bromion erecti (mesophilous post-cultural grasslands), was introduced for the Peninsular Italy. We further validate and typify the Armerietalia rumelicae (perennial grasslands supported by nutrient-poor on siliceous bedrocks at altitudes characterized by the submediterranean climate of central-southern Balkan Peninsula), the Securigero-Dasypyrion villosae (lawn and fallow-land tall-grass annual vegetation of Italy), and the Cirsio vallis-demoni-Nardion (acidophilous grasslands on siliceous substrates of the Southern Italy). Nomenclatural issues (validity, legitimacy, synonymy, formal corrections) have been discussed and clarified for the following names: Brachypodio-Brometalia, Bromo pannonici-Festucion csikhegyensis, Corynephoro-Plantaginion radicatae, Heleochloion, Hieracio-Plantaginion radicatae, Nardetea strictae, Nardetalia strictae, Nardo-Callunetea, Nardo-Galion saxatilis, Oligo-Bromion, Paspalo-Heleochloetalia, Plantagini-Corynephorion and Scorzoneret alia villosae. 

Explaining Prolonged Silences in Transitional Justice: The Disappeared in Cyprus and Spain

The article examines why some postconflict societies defer the recovery of those who forcibly disappeared as a result of political violence, even after a fully fledged democratic regime is consolidated. The prolonged silences in Cyprus and Spain contradict the experience of other countries such as Bosnia, Guatemala, and South Africa, where truth recovery for disappeared or missing persons was a central element of the transition to peace and democracy. Exhumations of mass graves containing the victims from the two periods of violence in Cyprus (1963–1974) and the Spanish Civil War (1936–1939) was delayed up until the early 2000s. Cyprus and Spain are well suited to explain both prolonged silences in transitional justice and the puzzling decision to become belated truth seekers. The article shows that in negotiated transitions, a subtle elite agreement links the non-instrumental use of the past with the imminent needs for political stability and nascent democratization. As time passes, selective silence becomes an entrenched feature of the political discourse and democratic institutions, acquiring a hegemonic status and prolonging the silencing of violence.

Voyage(s) to Sarajevo: Jean-Luc Godard and the Image of War

This essay discusses Jean-Luc Godard’s artistic response to the Bosnian War (1992-95), and its representations in the Western mass media. For Godard, the reluctance of Europe’s advanced liberal democracies to intervene meaningfully in Bosnia – their insistence that 'humanitarianism' rather than protective intervention was the order of the day – was tantamount to supporting Serbian fascism, and – a fortiori – regressing to a policy of appeasement reminiscent of the days of the Munich Agreement. Although Godard's stance set him against some of his former compatriots on the left, speculating on his ideological motivations is beside the point. Rather, it is is in his filmmaking, in his vision of cinema, and how it relates to other histories of the image, that Godard’s sensibility can be most keenly felt and understood. As the essay points out, even his recent contribution to Jean-Michel Frodon's compilation film, Bridges of Sarajevo/Les ponts de Sarajevo (2014, 114 mn.), persists in posing questions about how the past continues to shape the present, and how Sarajevo and its contemporary history still delineates the identity of Europe. 

Embracing difference and the deferral of self-government: a critical analysis of the framing and practice of contemporary peace building

This thesis analyses how dominant policy approaches to peacebuilding have moved away from a single and universalised understanding of peace to be achieved through a top-down strategy of democratisation and economic liberalisation, prevalent at the beginning of 1990s. Instead, throughout the 2000s, peacebuilders have increasingly adopted a commitment to cultivating a bottom-up and hybrid peace building process that is context-sensitive and intended to be more respectful of the needs and values of post-war societies. The projects of statebuilding in Kosovo and, to a lesser extent, in Bosnia are examined to illustrate the shift. By capturing this shift, I seek to argue that contemporary practitioners of peace are sharing the sensibility of the theoretical critics of liberalism. These critics have long contended that post-war societies cannot be governed from ‘above’ and have advocated the adoption of a bottom-up approach to peacebuilding. Now, both peace practitioners and their critics share the tendency to embrace difference in peacebuilding operations, but this shift has failed to address meaningfully the problems and concerns of post-conflict societies. The conclusion of this research is that, drawing on the assumption that these societies are not capable of undertaking sovereign acts because of their problematic inter-subjective frames, the discourses of peacebuilding (in policy-making and academic critique) have increasingly legitimised an open-ended role of interference by external agencies, which now operate from ‘below’. Peacebuilding has turned into a long-term process, in which international and local actors engage relationally in the search for ever-more emancipatory hybrid outcomes, but in which self-government and self-determination are constantly deferred. Processes of emphasising difference have thus denied the political autonomy of post-war societies and have continuously questioned the political and human equality of these populations in a hierarchically divided world.