6 - Human Rights versus Power-Sharing

Summary

A central criticism of power-sharing arrangements, and especially of their ethnic-corporate versions, is that they violate the basic principle of equality and nondiscrimination. The case of Sejdić and Finci v. Bosnia & Herzegovina, submitted in 2006 and delivered by the European Court of Human Rights (ECtHR) in 2009, vividly illustrates this problem. In this case, the ECtHR struck down central features of Bosnia and Herzegovina’s power-sharing arrangements on the grounds that they breached the right to nondiscrimination with regard to participation in elections for the legislature and presidency of Bosnia and Herzegovina. To better understand the legal analysis and normative assumptions underlying this prominent perception of power-sharing arrangements, and to explore its shortcomings that the concept of collective equality aims to address, this chapter presents the ECtHR rulings regarding Bosnia and Herzegovina’s constitutional arrangements and the criticisms raised against it. It shows how the legal framing portrays the conflict as another version of the peace versus justice debate, in which human rights obligations represent the demands of justice, while power-sharing arrangements represent the unavoidable, though regrettable (in terms of justice), price of peace. This legal appraisal, the chapter argues, avoids a central and crucial normative feature of the situation – the “elephant in the room” of national self-determination in multinational places.