The European Journal of International Law Vol. 24 no. 2 © The Author, 2013. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved. For Permissions, please email:
[email protected] Courts and Consociations, or How Human Rights Courts May De-stabilize Power-sharing Settlements Downloaded from Christopher McCrudden and Brendan O’Leary* http://ejil.oxfordjournals.org/ Abstract 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 at Columbia University Libraries on June 27, 2013 rights institutions, and to what extent consociational power-sharing may be justified to pre- serve peace and the integrity of political settlements. In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational prac- tices, 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 consid- erably less flexibility in reaching a settlement.