The presence of foreign judges on the Constitutional Courts of Bosnia-Herzegovina and Kosovo is due to the existence of ethnic conflicts and societal divisions which resulted in the internationalisation of their constitutions and centralised constitutional courts. This chapter examines whether and to what extent the presence of foreign judges on these constitutional courts has met the rationale of helping to end or pacify the ethnic conflicts. It compares the influence of foreign judges on adjudication and constitutional law, and their contribution to the legitimacy of the courts in the eyes of the public and political actors. Differences between the working conditions of each court, degree of judicial activism, and the distribution of legitimacy between the court itself and the foreign judges, arise in each context, but the analysis ultimately suggests that the appointment of foreign judges to resolve ethnic conflicts is a ‘mission impossible’.

Chapter 2 summarizes the nature and extent of election-related violence globally and in Kenya specially. It documents the various forms that such violence takes and provides background on the Kenyan case, noting certain key features that make it particularly useful to study. In particular, it establishes that Kenya is a case where (1) political elites play a primary role in instigating violence and (2) elections are competitive enough that voters have a genuine choice at the polls. It also establishes it as a hard case for testing a theory of elite misperception, as the conventional wisdom holds that violence – working through several of the mechanisms posited in the literature – is an effective tool for winning Kenyan elections. It concludes with some discussion of the special role that ethnicity often plays in the outbreak of violence in electoral competition.

The conclusion draws the historical threads together and explains the causes of economic nationalism. It is most useful to think of nationalists as reacting to economic inequality. If inequality occurs between nations, we are more likely to witness expansionist ideas gain prominence. If inequality occurs within nations and is blamed on integration with the world economy, this is most likely to give rise to isolationist ideas. Both kinds of economic inequality are often accentuated by political inequalities. The motive for catch-up growth becomes more pressing if the nation is seen as politically subordinate within a system of imperial rule. Domestic inequalities are frequently given salience if they correspond to ethnic divisions within society. Based on these insights, the conclusion casts its gaze forward and predicts that both strands of economic nationalism will continue to shape economic policy in the near future.

The advantages of power-sharing arrangements as a tool of peacemaking are gradually being substantiated in practice and research, but have not yet gained normative legitimacy, nor have they been properly incorporated into either the human rights framework or international and regional law. When power-sharing arrangements utilize predefined ethno-national groups as a central feature of the constitutional structure, they are widely seen as illiberal (and unjust) and as violating individual rights to equality and nondiscrimination. This conflict between power-sharing and human rights is generally viewed as a dilemma between peace and justice, and the main justification given to support the maintenance of the arrangements is that they are an indispensable political compromise to overcome violent conflict and are preferable to the continuation of bloodshed. However, this justification is not always enough, as the European Court of Human Rights ruling in the case of Bosnia and Herzegovina’s constitution illustrates. But is this “peace versus justice” framing of the tensions between power-sharing and human rights accurate? Does it properly account for the meaning and requirements of justice in loci of deeply divided places?

Faced with the challenge of accommodating diversity, liberal justice and human rights promise to provide an adequate normative framework for securing equal liberties and rights for all. However, despite great advancements in theory and law, discrimination endures, and these promises have not been fulfilled for enduring minorities, especially in places of ethno-national conflict. The problem this chapter aims to highlight is that while liberal democracy and human rights frameworks provide us with a desirable ideal, they fail to provide useful guidance for progress, from a situation of ethno-national conflict – which often involves political exclusion, sharp inequalities, low mutual trust, and high animosity – to more just and peaceful societies that respect the human rights of all. Self-determination is currently blocked as a legal remedy; states are reluctant to grant minority rights, especially in cases where majority–minority relations are in conflict; and scholars of equality law, asserting that any real advancement is blocked because of the individualist orientation of the law, send us back to collective measures.

Peacemaking practice shows that national minorities are aware of the shortcomings of liberal democracy and human rights to secure their fundamental interests, and when they come to the negotiating table their focal points are not bills of rights, but rather inclusive political institutions. This political inclusivity often involves the use of power-sharing democracy, a political framework that intentionally accommodates competing ethno-national groups within the state’s governing structures. Many experts, nongovernmental organizations, scholars, and policymakers have also recommended power-sharing as the more adequate institutional design for such places. This chapter evaluates democratic power-sharing vis-è-vis the more common model of majoritarian democracy to support the argument that a revision of our taken-for-granted assumptions about what “proper” democracy looks like is needed. To illustrate the general observations, the chapter reviews the use of power-sharing systems in Cyprus, Bosnia and Herzegovina, and Northern Ireland.

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.

In recent decades international and regional human rights norms have been increasingly applied to constitutional provisions, revealing significant tensions between primary political arrangements, such as power-sharing institutions, and human rights norms. This book argues that these tensions, generally framed as a peace versus justice dilemma, are built on an individualistic conception of justice that fails to account for the meaning and requirements of justice in deeply divided places, which are characterized by ethnically based political exclusion and inequalities.

By introducing the concept of collective equality as a new theoretical basis for the law of peace, this book proposes a new approach for dealing with the tensions between peace-related arrangements and human rights. Through principled, pragmatic, and legal reasoning, the book develops a new paradigm that captures more accurately what democracy and human rights mean and require in the context of ethno-national conflicts, and provides potent guidance for advancing justice and peace in such places.

Chapter 2 starts with an overview of the modern phenomena of ethnicity, nationalism, and ethno-national conflicts, and about the probable causes and background conditions that provide fertile ground for their outbreak, as these understandings are essential for evaluating the prevailing theoretical assumptions about justice and democracy in places of ethno-national conflict. To deepen the understanding of the sociology of ethno-national conflicts, the chapter introduces the four conflicts of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine. This chapter singles out political exclusion, the struggle over public goods of the nation-state, and group inequalities along ethno-national lines as leading factors that explain the outbreak of violent conflicts.

This chapter opens the third part of the book in which a new theoretical account called collective equality is offered. At the core of collective equality, we find a recognition of the centrality of collectives and their equal relations as the primary pillar of justice and peace. Deeply divided places riven by ethno-national conflicts are characterized not only by national divide, but most often by practices of discrimination, political exclusion, and domination of one ethno-national group over the other(s). While the national divide itself is unlikely to disappear in such places, the way in which the ethno-national “border” is managed, or in other words how the groups and their members relate and interact, can dramatically change. Alongside liberal multiculturalism and liberal nationalism, collective equality introduces the paradigm of equality between the national groups that occupy a specific territory. In the realities of conflict-riven places, this new paradigm must respond to concerns that lay at the root of contemporary conflicts – the objection to or fear of foreign domination – common to both national minorities and national majorities caught in an “intimate conflict.”

Ghana has been among the most peaceful countries in sub-Saharan Africa since independence. Yet its northern hinterland is the one sub-national region in which this peaceful reputation is not especially accurate. Over the last four decades, Northern politics has been characterized by repeated flare-ups of non-state violence. This chapter concludes Part III by arguing that non-state communal violence can be another political outcome of a scarce, resource-advantaged state’s isolated interventions in hinterland regions. Because the state’s actions have such outsize effects on society, the state’s few steps into society generate waves of societal upheaval that create conflict.

The aim of this chapter is to describe, and offer a critical assessment of, confederal approaches to resolving the conflict in Israel-Palestine. We review why prospects for the conventional two-state solution have declined and what other models have been advanced as alternatives. After placing confederation in historical and theoretical context, we then describe a range of confederal proposals for Israel-Palestine. We conclude by exploring process and institutional design considerations presented by confederation as a framework for resolving the Israeli-Palestinian conflict.

Ethnicity was supposed to become less and less important, as modernization and globalization take place. This chapter discusses how ethnicity has continued to be central to the lives of humans in the twenty-first century, and in some respects has become even more important. Ethnicity is often confused with race, even in academic research. Ethnicity is a social construct, whereas race is based on biological characteristics. Since the 1970s there has been ethnic mobilization and collective action in order to improve the conditions of disadvantaged ethnic groups. There has also been ethnic conflict and discrimination against ethnic minorities. Psychological research using the minimal group paradigm, as well as case studies of ethnic groups such as the Tutu and the Hutsi of Rwanda, demonstrates that there need only be minor or trivial differences between groups in order for individuals to show bias in favor of their ingroup. The arrival of large numbers of dissimilar others in North America and Western Europe has also added fuel to the fire of ethnic conflict.

This chapter surveys constitutional design for territorially divided societies, with special application to the Middle East. Federalism, which is a standard part of the toolkit in other parts of the world, has rarely been attempted or sustained in the region. Decentralization holds more promise, and although many of the attempts so far have been ineffective, it would help a good deal. Special autonomy, in which one or more regions of a country enjoy authority over certain subjects, could work for certain areas as well. Another set of tools, categorized as rights, redistribution, and representation, operates at the level of the central government. Whatever arrangements are chosen, there is a need for institutional guarantors of the constitutional bargain over territory: courts and international actors can play this role. The chapter concludes that mechanisms providing voice are superior to those facilitating exit, and that a combination of representation and decentralization may be sufficient in many cases.

The conclusion synthesizes and reflects upon the case studies and comparative and theoretical contributions in the book. The cases are organized around three categories: first, relatively conventional decentralization initiatives in which reforms were adopted to improve governance; second, contexts in which decentralization has been contemplated as a framework for self-determination for the region’s stateless communities; and finally, decentralization initiatives undertaken in the shadow of conflict and state fragmentation. This concluding chapter develops theoretical insights drawn from the rich terrain for qualitative comparison across these three contexts. It offers reflections on key characteristics of the shared regional context and a typology of factors driving decentralization in the Middle East and North Africa (MENA) region. It argues that an important contribution of the volume lies in identifying a broader array of motivations for, and actors driving, decentralization than currently reflected in the scholarly literature and in parsing the implications for the institutional design of decentralized government. The chapter concludes by distilling patterns from the cases to identify distinct trajectories of decentralization that are evidenced in the MENA region and their entailments.