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.

Fleuve glauque : les départements de la Seine, banlieue des romans « Spécial Police » de Frédéric Dard

This paper studies the representation of suburbs as a place of anguish in the “Special Police” novels (Fleuve Noir publisher, Paris) by Frédéric Dard. This anxiety, it is argued, is what lends this collection of 25 novels some of their essential qualities, their unhealthy climate and absolute darkness. Dard’s suburbs fit into the traditions of realism; but the atmosphere, characters and plots owe to the American hardboiled school and like in film noir, space is stylized and dramatized, and often used to express a judgment of moral nature. Spatial representations in these novels are part of a critique of civilization and constitute a comment on the social modernization and public intervention in the development of the French territory in the postwar period. The novels written by Frédéric Dard from the mid-1950s to mid-1960s offer a profoundly original representation of suburban angst and what was not yet known at the time as the suburban malaise. Avoiding clichés and excessively connoted referential spaces, Dard anchor these noir novels he called “novels of the night” in landscapes that are both biographical and intertextual. The West Suburbs of Paris and what was
to become the Yvelines department are at the centre of Dard’s novelistic geography, turning into a mythical and deadly space in which is negotiated an acculturation in France of the evil and ruined world described in American noir.

Frédéric Dard: Romans de la nuit

Préface et notices accompagant la republication de sept romans parus dans la collection Spécial Police dans les années 1950 et 1960. Ces romans de suspenses psychologiques à l'atmosphère sombre, inquiétante étaient parfois désignés par les initiés sous le nom de « Romans de la nuit ».
Cette anthologie regroupe sous ce titre sept oeuvres dont l'intrigue prend la forme d'un piège à la mécanique implacable, ainsi resituées dans leur contexte culturel

. Cette mort dont tu parlais
• C'est toi le venin
• Des yeux pour pleurer
• Le Monte-charge
• L'homme de l'avenue
• La Pelouse
• Une seconde de toute beauté

Just a piece of cloth? German courts and employees with headscarves

On 10 October 2002, and on 24 September 2003, the German Federal Labour Court and the German Federal Constitutional Court each delivered a decision on the consequences of wearing a headscarf for employees. Both courts appeared to protect the individual rights of the woman in question. The Federal Labour Court invalidated the dismissal of a salesperson based on the wearing of a headscarf; the Federal Constitutional Court held that a school teacher must not be denied employment on grounds of wearing a headscarf. However, both courts also left some room for manoeuvre in favour of clothing policies or laicism principles which could be used to justify head-scarf bans. This note discussed the potential and drawback of these cases, especially as regards intersectional inequalities along the lines of gender, religion and ethnicity.

Global Production, CSR and Human Rights: The Courts of Public Opinion and the Social License to Operate

This paper takes at its starting point the responsibility placed upon corporations by the United Nations’ Protect, Respect and Remedy Framework as elaborated upon by the Guiding Principles on Business and Human Rights to respect human rights. The overt pragmatism and knowledge of the complex business relationships that are embedded in global production led John Ruggie, the author of the Framework, to adopt a structure for the relationship between human rights and business that built on the existing practices of Corporate Social Responsibility (CSR). His intention was that these practices should be developed to embrace respect for human rights by exhorting corporations to move from “the era of declaratory CSR” to showing a demonstrable policy commitment to respect for human rights. The prime motivation for corporations to do this was, according to Ruggie, because the responsibility to respect was one that would be guarded and judged by the “courts of public opinion” as part of the social expectations imposed upon corporations or to put it another way as a condition of a corporation’s social license to operate.
This article sets out the background context to the Framework and examines the structures that it puts forward. In its third and final section the article looks at how the Framework requires a corporation’s social license to be assembled and how and by whom that social license will be judged. The success or failure of the Framework in persuading corporations to respect human rights is tied to whether “the courts of public opinion” can use their “naming and shaming power” effectively.

Operationalizing the Comparative International Human Rights Law Method: A Case Study of CEDAW in National Courts

In this chapter, I focus on how the example of CEDAW illustrates the methodological and conceptual difficulties that future work in comparative international human is likely to encounter. Despite the challenges, I suggest that the worked example of CEDAW has raised interesting lines for empirical analysis, and additional perspectives which may enrich normative inquiry, sufficient to justify comparative international human rights law being regarded as likely to give rise to insights that might not otherwise have emerged, and therefore to be as an approach worth pursuing in the future.