Courts and Consociations: Human Rights Versus Power-Sharing by Christopher McCrudden & Brendan O’Leary (review)

Would anyone imagine an international court telling the US government that the rules on eligibility for the Office of US President are incompatible with its international human rights commitments and therefore must be amended? The authors present this unlikely—though certainly thought-provoking—futuristic scenario to juxtapose it with a real case adjudicated by the European Court of Human Rights some time ago. In the 2009 case of Sejdić and Finci v. Bosnia and Herzegovina,¹ the Court found some of the respondent state’s constitutional provisions discriminatory, as they impeded the applicants (citizens of Bosnia) from standing for parliamentary or presidential elections due to their ethnic background. The applicants, identifying themselves to be of Roma or Jewish origin, respectively, were ineligible for elections according to domestic law since they did not declare affiliation to any of the “constituent peoples” of Bosnia and Herzegovina, i.e. Bosniacs, Croats, or Serbs. This case led the authors to ask crucial questions as to international courts’ faculty in pronouncing on constitutional rules being part of political power-sharing bargains known as “consociations.”

Arguably, the idea of “consociationalism” sounds more familiar to political scientists than it does to human rights lawyers. The authors begin by explaining the notion as “an alternative strategy for managing differences” within democratic societies by means of “institutional arrangements that combine principles of parity, proportionality, autonomy, and veto rights.”² Notwithstanding their doctrinal nuances and practical implications, consociations assume cross-community power-sharing, co-decision making rules, various forms of self-governmental autonomy, proportional allocation of representatives and public expenditures, and veto rights granted to each community in order to protect its vital interests. The Bosnian Constitution might serve as a standard example of such an arrangement. It is also noteworthy that consociational features are present in several other power-sharing deals throughout the world, including Belgium, Northern Ireland, Macedonia, and Burundi.

Christopher McCrudden and Brendan O’Leary recall that some scholars find consociational principles hardly reconcilable with the very foundations of human rights thinking. Essential as the power-sharing arrangements are—or may be—for maintaining political stability among diversified communities, consociations indeed cause some uneasiness from the human rights point of view. They might imply a potential risk of discrimination due to race, ethnicity, religion, or language, as well as infringements on the right to participate in the political process on equal terms with others. Admittedly, consociational agreements usually do not overprivilege the individualist paradigm or the principle of equal participation in the political process. The authors address some of these concerns, noting, however, that human rights are far from absent in post-conflict peace settlements and are normally considered part and parcel of their legal framework.

The authors pay particular attention to the position of courts within power-sharing agreements. They analyze the unique example of the Bosnian Constitutional Court, whose judges are selected not only by the parliaments of both “entities” constituting Bosnia and Herzegovina, but also by the President of the European Court of Human Rights. Yet the crux of the matter is what role should be assigned to courts within consociational arrangements that they themselves are part of. McCrudden and O’Leary advocate for a relatively high level of judicial restraint and caution within courts examining cases of a potentially “unwinding” effect for ethnic political bargains. The practice of domestic courts considered a part of consociational agreements generally reflects the authors’ position. However, things get more complicated with international courts and institutions intervening or assessing how the power-sharing agreements take into account the human rights standards.

Regional human rights courts are usually considered a laudable achievement in the effort to ensure better and more efficient protection of human rights. While not denying this idea anywhere in the book, the authors indicate how a “universalist and difference-blind” judicial activism may negatively affect politically fragile power-sharing agreements. They argue that the latter has happened...