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.

The Pluralism of Human Rights Adjudication

This chapter considers judicial reasoning in ‘human rights’ cases. Are there techniques that courts share, or are different techniques adopted, to decide how human rights, in this broader sense, are protected? The chapter aims to adopt a comparative approach to the examination of this reasoning, through a detailed examination of similar human rights issues in a range of jurisdictions. The aim of the chapter is to examine the similarities and divergences in the reasoning developed by courts when addressing comparable human rights questions. The chapter shows that human rights reasoning involves distinctive and particular forms of legal reasoning, but that its form and content differ significantly
from jurisdiction to jurisdiction, and over time within jurisdictions. Building upon these findings, the chapter explores what these similarities and differences tell us about the nature, and the direction of travel, of human rights law which comprises notionally universal norms.

After the Critique of Rights: For a Radical Democratic Theory and Practice of Human Rights

The critique of human rights has proliferated in critical legal thinking over recent years, making it clear that we can no longer uncritically approach human rights in their liberal form. In this article I assert that after the critique of rights one way human rights may be productively re-engaged in radical politics is by drawing from the radical democratic tradition. Radical democratic thought provides plausible resources to rework the shortcomings of liberal human rights, and allows human rights to be brought within the purview of a wider political project adopting a critical approach to current relations of power. Building upon previous re-engagements with rights using radical democratic thought, I return to the work of Ernesto Laclau and Chantal Mouffe to explore how human rights may be thought as an antagonistic hegemonic activity within a critical relation to power, a concept which is fundamentally futural, and may emerge as one site for work towards radical and plural democracy. I also assert, via Judith Butler's model of cultural translation, that a radical democratic practice of human rights may be advanced which resonates with and builds upon already existing activism, thereby holding possibilities to persuade those who remain sceptical as to radical re-engagements with rights.

Domestic Violence as a Human Rights Issue: Rumor v. Italy

The article focuses on the recent developments as regards domestic violence within the context of the Council of Europe. Since 2007 the European Court of Human Rights has issued a series of important judgments in cases involving domestic violence. The most recent of these is Rumor v. Italy, in which the Court issued its judgment on 27 May 2014. The article analyses this case in the context of the Court’s previous jurisprudence on domestic violence. In addition, on 1 August 2014 the Council of Europe Convention on preventing and combating violence against women and domestic violence entered into force, and the article will include a number of reflections on the potential held by this Convention. No violation of the European Convention on Human Rights was found in Rumor, however the question of whether Italy would have been in breach of the provisions of the new Convention, to which it is a party, had this Convention been in force at the time of the relevant events, will be examined.

Perceived Deservingness and the Toleration of Human Rights Violations: The Problem and a Possible Solution

Despite general endorsement of universal human rights, people continue to tolerate specific human rights violations. I conducted a two-part study to investigate this issue. For Part I, I examined whether people tolerated torture (a human rights violation) based on the morality and deservingness of the target. Participants tolerated torture more when the target had committed a highly morally reprehensible transgression. This effect was mediated by the target’s perceived deservingness for harsh treatment, and held over and above participants’ abstract support for the right to humane treatment. For Part II, hypocrisy induction was used in an attempt to reduce participants’ toleration of the torture. Participants were assigned to either the hypocrisy induction or control condition. Unexpectedly, participants who tolerated the torture more in Part I reduced their toleration the most in the control condition, possibly because of consistency and floor effects. Limitations and implications of the findings are discussed.