Introduction
Towards the end of 2009, the Strasbourg Court decided a landmark case. In Sejdic-Finci v Bosnia-Herzegovina (‘Sejdic’), the Grand Chamber was called to rule upon the Convention compatibility of Bosnia’s ethnic federal system. The organising principle of Bosnia’s byzantine political system is ethnic parity between the country’s three constituent groups: Muslim Bosniacs, Catholic Croats and Orthodox Serbs. As a flipside, the ethnically pervasive system sits uncomfortably with Convention rights. The Court found that Bosnia’s Constitution violated the right to free elections (P1-3) and the Convention’s free-standing right to equality (‘P12-1’).Footnote 1 Remarkably, this was the first time the Court had found that a country’s constitution violated the Convention and the first time it applied Protocol 12. Nearly five years later in Zornic, a case with potentially far-reaching legal and political implications, the Court ordered Bosnia to outlaw ethnic discrimination in its political system.Footnote 2 Crucially, with Zornic the Court puts into question whether states can limit the right to differenceFootnote 3 when organising their political system. The Bosnian cases touch upon the uneasy relationship between ethnicity and rights in the organisation of a state’s political system.
The Strasbourg decisions reverberate beyond Bosnia, as the principles developed by the Court could be applied to liberalise, but also potentially destabilise other power-sharing systemsFootnote 4 all over the world.Footnote 5 For this reason, the Court’s handling of the Bosnian cases deserves a thorough analysis and critique. This analysis is embedded in the broader framework of the Court’s case law on non-discrimination, with particular emphasis on cases in which minorities challenge the political structure of a state. The main focus is on Strasbourg’s case law pertaining to the constitutional architecture of multi-ethnic states. In those highly political cases an ‘integrative democratic tolerance’ approach, developed in this paper, should guide courts in their judicial decision making.
High-profile cases touching a state’s constitutional structure lay bare the tension between ‘rights’ and the ‘democracy’ principles. According to Steven Greer, the relationship between state parties and the Court is mediated by three primary constitutional principles: rights, democracy, and priority to Convention rights.Footnote 6 With ‘rights’, Greer refers to the national and European judicial oversight over the Convention. ‘Democracy’ denotes that ‘collective goods/public interests should be pursued by democratically accountable national non-judicial public bodies within a framework of law’.Footnote 7 ‘Priority to Convention rights’ means that Convention rights ‘take procedural and evidential, but not conclusive substantive, priority over the democratic pursuit of the public interest’.Footnote 8 Greer posits that the strength of the ‘priority to rights principle’ should vary according to the formal structure of the right and the Convention’s underlying constitutional structure.Footnote 9 Mediating the tensions between the rights and democracy principles remains an important challenge for the European Court of Human Rights.
Over the last 15 years the rights principle has grown stronger. Geoff Gilbert detected a ‘burgeoning minority rights jurisprudence of the European Court’.Footnote 10 The minority-friendly case law unfolded against the backdrop of an evolutive interpretation of Article 14, widely known as the Convention’s ‘Cinderella provision’. Article 14 has no autonomous standing and can be invoked only if it falls within the ambit of another Convention provision. According to Gilbert, just as Cinderella finally made it to the ball against the will of her stepmother and without being noticed by the guests, the Court increasingly inserted Article 14 into its case law by relaxing the ‘ambit requirement’.Footnote 11 In addition, Article 14 serves as a standard for interpreting Protocol 12, the Convention’s free-standing equality right.Footnote 12 The Court’s evolutive rights interpretation and new Convention instruments have strengthened the rights principle.
In open contrast to this evolution, states have laid claim to a greater margin of appreciation, especially in those areas of law that are important to their constitutional traditions. Although it has not yet entered into force, the adoption of Protocol 15 confirms that states demand a greater margin of appreciation.Footnote 13 States are particularly wary that the European Court of Human Rights intervenes into jealously-guarded domains of national policy, such as migrationFootnote 14 or the right to vote.
State criticism of Strasbourg-based judicial activism has forced judges and scholars to consider the Court’s role. In order to balance the rights with the democracy principles, theories of procedural rationality have been developed.Footnote 15 New judicial review models blending substantive judicial review with procedural elements have been appropriately termed as semi-procedural.Footnote 16 The aim behind theories of procedural rationality is to alleviate the Court from substantively balancing competing interests, while at the same time making sure that the national legislator and national courts have followed rational, evidence-based and Convention-mindful lawmaking or law-interpreting standards.
This contribution joins this chorus, but its focus is more specific. In contrast to (semi)proceduralist theories, the integrative democratic tolerance approach is tailored specifically to ‘first-order challenges’.Footnote 17 These are legal challenges to a country’s political architecture or (electoral) rules determining access to its political community. This narrow focus has both downsides and upsides. The downside is that it applies only to a small number of cases; the upside is it addresses more appropriately the legitimacy dilemma that an international human rights court faces in high-profile cases.
These cases force the Court to choose between individual human rights protection and concerns for its legitimacy. As judge Levitis observed in Zdanoka: ‘on the one hand, of course, it is the Court’s task to protect the electoral rights of individuals; but, on the other hand, it should not overstep the limits of its explicit and implicit legitimacy and try to rule instead of the people on the constitutional order which this people creates for itself’.Footnote 18
Against this backdrop, the article discusses the following research question: how has the Court addressed and how should it address the tension between the ‘rights’ principle and the ‘democracy’ principle in hard cases involving challenges to the political system of Convention states?
With this question in mind, the discussion will proceed along the following outline. First, the Court’s rather prudent approach to sensitive questions of minority rights in the framework of the right to free elections will be discussed. Next, the question is raised whether recent cases on the constitutional structure of BosniaFootnote 19 signal a jurisprudential turn: will the Court apply a stricter scrutiny to how Convention states organise their political system, especially if the latter restricts access to certain public or political positions to members of a particular ethnic/linguistic/religious group? Such an intervention at the heart of the political system, it is argued, would raise human rights protection to a higher, but more politically sensitive, level.
Finally, with an aim to address such ensuing tension between the ‘rights’ and ‘democracy’ principles in human rights adjudication, a set of criteria is developed that offers useful guidance to courts when faced with delicate first-order questions involving the composition of a state’s polity.
The paper starts with the first landmark voting rights decision of the European Court of Human Rights, Mathieu-Mohin and Clerfayt v Belgium.Footnote 20 The decision illustrates the tension between ‘rights’ and ‘democracy’ and is deeply relevant for the main issues discussed at a later stage, which warrants a somewhat lengthy discussion.
Clerfayt v Belgium
The background of the Belgian case was complex. At the material time, in the early 1980s, the elected representatives and senators had a double mandate: besides their appointment in the national parliament, they were delegates of the newly established regional and community parliaments. While the double mandate was uncontroversial in most parts of Belgium, the situation was different in Brussels Halle Vilvoorde. Brussels Halle Vilvoorde was an ‘institutional curiosity’Footnote 21 that merged into one electoral district both the bilingual Brussels capital region and the monolingual Flemish districts of Halle and Vilvoorde.
The parliamentarians elected in Brussels Halle Vilvoorde could choose whether to take the oath in French or in Dutch, a choice entailing noteworthy political consequences. At the time, if representatives and (directly elected) senators opted for French, they would become members of the French Community Council (now French Community Parliament) and the French-speaking group in the federal parliament. If Dutch were chosen, they would sit in the Flemish regional council (now Flemish Parliament) and represent the Dutch language group in federal parliament. Language groups in parliament are important with regard to essential matters such as laws requiring a majority within both language groups. Regions are competent for all issues related to the territory, such as environment, energy and economic policy, whereas communities deal with socio-cultural matters such as education and welfare. The choice of which language group to affiliate with was an important political decision for parliamentarians elected in Brussels Halle Vilvoorde.
Parliamentarians who wanted to represent the French-speaking population at state level as well as their home constituency at regional level were caught in a dilemma. The applicants, two prominent French-speaking politicians resident in a Dutch-speaking district within Brussels Halle Vilvoorde, argued that the Belgian system unduly discriminated against them and their voters. Unless they declared themselves as Dutch speakers, their voters would not be represented at local level. They argued that under the Convention they should be allowed to represent their group at state level while at the same time being part of the regional assembly. At the heart of the case was the question whether the internal organisation of the state could justify a restriction of active and passive voting rights. Even broader, it brought to the fore the tension between particularism and universality of human rights.Footnote 22
The Commission for Human Rights forwarded the case to the Court, as a strong majority (10-1) had opined that the Belgian system violated the Convention.
A 13-5 majority in the Court’s plenary found that the exclusion of declaratively French-speaking parliamentarians from the Flemish regional parliament did not amount to discrimination: ‘[the restriction] does not appear unreasonable if regard is had to the intentions it reflects and to the respondent State’s margin of appreciation within the Belgian parliamentary system – a margin that is all the greater as the system is incomplete and provisional’.Footnote 23 For the Court, French-speakers were not excluded from running for the regional council, as they had the option to declare themselves as Dutch-speakers. Neither were their rights as voters breached, as they could be expected to vote for candidates who are ‘willing and able’ to use the region’s language.Footnote 24 The Court found no discrimination, given the margin of appreciation granted to states, the general institutional system of the Belgian state, the temporary nature of this particular arrangement, and the large majorities in both language groups buttressing it.
The dissenters counter-argued that voters had a right to vote for a candidate of their choice and candidates had a right to represent them in their group dimension. The dissenting judges reasoned that French-speakers would be excluded from regional political representation unless they voted for Dutch-speakers. Similarly, French-speaking candidates running in Brussels Halle Vilvoorde would have to self-classify as Dutch-speakers to represent their voters. For the dissenting judges, the moral, psychological and political implications of the self-classification violated the Convention rights of French-speaking voters and candidates.Footnote 25 Overall, they reasoned, the system discriminated against French-speakers on the sole basis of their language. Far from remaining entrenched in a negative legislator’s straightjacket, the dissenting judges suggested two more rights-friendly solutions: French-speakers elected in Halle-Vilvoorde should be part of the French language group in parliament and of the Flemish Council, or regional councillors should be directly elected.Footnote 26 By finding that there were solutions least restrictive to individual rights, the dissenters would have found a violation of the Convention.
Clerfayt and his peers pleaded against the Belgian system also in front of the constitutional court then known as the Court of Arbitration. They argued that French-speakers deserved a proper representation, reflecting their identity and opinion. They complained that French-speakers living in Flemish territory would have neither proper representation in parliament, nor in the French Community Council. After direct election of regional councillors had been introduced in 1993, French-speaking parliamentarians living in Flanders could no longer be part of the French Community Parliament.Footnote 27 In line with what the dissenters had suggested in Mathieu Mohin and Clerfayt, the applicants argued that French-speakers should at least be allowed to self-classify as French-speakers in the Flemish parliament by taking the oath in French. Clerfayt and his peers claimed that French-speaking voters should have the right to vote for a candidate who reflects their identity and opinion and that the elected candidate should be able to self-classify according to his linguistic identity.
But the Belgian Constitutional Court, just as the Strasbourg Court, dismissed Clerfayt’s claims.Footnote 28 Both courts were reluctant to shake the equilibrium of the Belgian state through human rights adjudication.
A Prudent Court
The European Court’s prudent approach runs like a common thread through most of its right to vote and elections jurisprudence. Widely known, but nonetheless worth recalling, is that the Convention neither imposes a specific electoral system nor demands that all votes have equal weight.Footnote 29 States enjoy a larger margin of appreciation in limiting passive voting rightsFootnote 30 compared to a narrower margin for restricting active voting rights.Footnote 31 To illustrate the Court’s rather prudent approach, a very short case law overview on electoral thresholds and language rights for candidates follows.
As a rule, the Court has opted for a hands-off approach regarding politically sensitive questions such as electoral thresholds. Even if electoral thresholds have the practical effect of excluding minorities from political participation, the Court judged them as Convention compatible. In a case concerning parliamentary representation of Italy’s German speaking minority, the Court ruled that Italy is under no obligation to exempt certain groups from the 4% threshold.Footnote 32 The Court later ruled that even a threshold of 10% was compatible with the Convention.Footnote 33 Such a high electoral threshold made it extremely difficult even for the sizable Kurdish minority to obtain representation in parliament. The Court sidestepped the elephant in the room by using not groups, but political parties as a comparator.Footnote 34 The Court used a judicial approach akin to soft law when it argued that a lowering of the ‘excessive’Footnote 35 electoral threshold would be ‘desirable’.Footnote 36 In a recent case involving Moldova’s election ban for MPs with dual citizenship, the Grand Chamber has narrowly opened the door to group representation by holding that voters have a right to vote for politicians who reflect their views and concerns.Footnote 37 This brief overview shows that state parties have no duty to design an electoral system mindful of minorities’ interests.
These well-settled principles equally apply to the linguistic rights of candidates for elected office. In Mathieu-Mohin and Clerfayt, even dissenting judges took no issue that French-speaking representatives would need to speak Dutch when elected to the Flemish regional council.Footnote 38 In Podkolzina v Latvia, the Court unanimously approved of regulations that required a high command of Latvian in order to run for parliament.Footnote 39 In Birk-Levy v France, the Court upheld French law and jurisprudence forbidding the use of any language other than French in the local parliament in semi-autonomous French Polynesia.Footnote 40 In Fryske Nasjonale Partij v the Netherlands, the Court held that minority parties were not exempted from using the state language when applying for registration of their candidate list.Footnote 41 Official language requirements, whether in place at state or regional level, are compatible with the Convention.
Also the European Commission on Human Rights has ruled very prudently in electoral rights cases. An interesting UK case serves as an illustration. The Commission upheld UK law excluding British citizens from voting for parliamentary elections on the basis of their residency.Footnote 42 A British citizen from Jersey had argued that his exclusion from voting for the Westminster parliament breached his Convention rights. The Channel Islands and the Island of Man form no UK constituency and have no elected representatives in Westminster, notwithstanding formal UK sovereignty over these territories and UK control over international and defence matters. Referring to the historically-grounded special constitutional relationship between the UK and the Channel Islands, the Commission dismissed the application. Even after the European Court of Human Rights granted voting for EU parliamentary elections to UK citizens in Gibraltar,Footnote 43 the Channel Islands remain prevented from participating in UK and European elections.Footnote 44
Marc Weller found that the Commission and the Court have been the most prudent bodies of human rights implementation, although they are among the oldest ones in the world.Footnote 45 Tellingly, new scholarship warns against entrusting the Court with judicial oversight over the Framework Convention of National Minorities, as the Court’s restrictive interpretation would roll back the soft law achievements of the Advisory Committee to the Framework Convention.Footnote 46
Although the Court’s has shown restraint in minority-initiated challenges to the political system, Strasbourg has over the years applied more vigorously its non-discrimination doctrine developed back in Belgian Linguistics.Footnote 47 For Marko, these cases show that the Court is ready to move towards ‘full and effective equality’ by combating ‘structural discrimination’ and ‘institutional racism’.Footnote 48 However, dissenting judges of the Strasbourg Court accuse the Court of having lost track of its prudent direction: ‘[the Court] behaved like a Formula One car, hurtling at high speed into the new and difficult terrain […and thereby inevitably straying]’.Footnote 49 While ‘rights’ partisans applaud the evolutive interpretation of Convention rights, states have demanded a greater margin of appreciation. The political challenges to the Court’s broad interpretation of Convention provisions illustrate well the tension between the rights and the democracy principles.
Whichever view one might take in this fascinating debate, there is ground to believe that the Bosnian cases, discussed in the next sections, raised human rights protection to a higher but more politically sensitive level. In Sejdic-Finci v Bosnia-Herzegovina Footnote 50 and the more recent Zornic v Bosnia-Herzegovina,Footnote 51 the Court declared the country’s constitutional structure in breach of the Convention. The Bosnian cases show that the Court does not refrain from transplanting its vigorous anti-discrimination case law into a domain hitherto overwhelmingly left to state discretion, namely the one pertaining to the choice of electoral system.
The next section discusses how Bosnia’s internationalised constitutional court navigated the tension between the rights and democracy principles. As Bosnia has one of the most complicated political systems in the world, the following very short introduction to its political system might be helpful. At the same time, the decision of the Constitutional Court illustrates one way to balance the ‘rights’ with the ‘democracy’ principle.
The background
From the start one matter has to be stressed: the constitutional and political structure of Bosnia-Herzegovina is highly particular. The Bosnian Constitution is part of an international peace agreement, which was negotiated under US auspices and signed by the presidents of Bosnia, Croatia and Serbia. The compromise agreed at the Dayton Peace conference can be summed up in three points: (1) most of Bosnia’s powers are devolved to two territorial sub-units; (2) Bosnia remains a formally sovereign state; and (3) ethnic groups are equally represented at the federal level, where they have a veto right.Footnote 52 The two territorial sub-units are the Federation of Bosniacs and Croats (under the constitutional name ‘Federation of Bosnia and Herzegovina’) and the Serb Republic (under the constitutional name ‘Republika Srpska’). The three titular nations are Bosniacs/Bosnian Muslims, Croats, and Serbs. The Dayton agreement confirmed Bosnia’s statehood but provided for a highly decentralised state based on parity between titular nations.
The inequality between Bosnia’s titular nations raises human rights concerns. Ethnic quotas modify the principle of democratic equality, but are often regarded as a legitimate means to further the democratic participation of minorities in public life.Footnote 53 What raises human rights problems in Bosnia is the automatic link between territory and ethnicity.Footnote 54 This means that citizens who live in the wrong area of the country are prevented from running for elected office. For instance, the Serb presidency member must be elected from the territory of the Republika Srpska, while Bosniac and Croat presidency members must be elected from the territory of the Federation. The same goes for the upper chamber, with the only difference that the five delegates per group are elected indirectly. One of the most important human rights concerns is the residence-based discrimination between constituent peoples.
The human rights gap becomes even more important if one does not accept that political rights should be tied to group membership. In that case, the unequal treatment is between citizens who belong to a constituent group and those who either do not so belong, or do not accept being ethnically categorised.
Somehow at odds with this ethnic political structure are previous decisions of Bosnia’s internationalised constitutional court.Footnote 55 The composition of the Constitutional Court reflects both the country’s power-sharing system as well as international oversight of Bosnian constitutionalism: every constituent people is in practice ‘represented’ by two judges,Footnote 56 and three international judges are chosen by the president of the European Court of Human Rights.Footnote 57 Shortly after the war, in its most ‘political’ case,Footnote 58 the Court had to decide whether constituent peoples were constituent on the whole territory of the state or only within their respective entities. Important political consequences flow from the principle of constituency of peoples,Footnote 59 chiefly in terms of political representation. In the landmark Constituent Peoples decision,Footnote 60 a deeply-divided Court found that all constituent peoples are entitled to a special political status not only at state, but also at entity level. Bosnia’s internationalised constitutional court has sought to ‘impose multi-ethnicity’Footnote 61 by giving all titular nations equal rights on the entire territory of the state.
However, ‘Others’ remained excluded in important institutions at state level. The group of ‘Others’ is a catch-all constitutional category that includes everyone who does not belong to a constituent people (such as persons belonging to minorities according to Bosnian law).Footnote 62 As a former constitutional judge admitted, such judicial unwinding of the Bosnian Constitution would have been politically un-implementable back when the Constituent Peoples decision was taken.Footnote 63 The Convention compatibility of key state level institutions (presidency and second chamber) remained therefore questionable.
For current purposes, the interesting question is how the national constitutional court dealt with a legal question that confronted the ‘rights’ and the ‘democracy’ principles.
The Bosnian Court developed an exit strategy. Bosniac politicians, who for strategic and ideological reasons are most interested in de-ethnifying the Bosnian state, had petitioned the Court. In a first case, the Court dismissed the case on admissibility grounds, arguing that the Convention cannot trump the national Constitution.Footnote 64 In an interesting turn, it found a second case admissible.Footnote 65 On the merits, it ruled the rights restriction proportionate to the legitimate aim of preserving the peace in Bosnia-Herzegovina. In an obiter dictum, it suggested that parliament eliminate discrimination from Bosnia’s Constitution at some point in the future.Footnote 66 Ilijaz Pilav appealed to Strasbourg, where his case has been pending for many years.Footnote 67 The Bosnian Court dismissed challenges to the state constitution, but left the door open for jurisprudential turns by applying the proportionality test.
The decisions revealed a lively debate between the Constitutional Court’s international judges in relation to the question of normative hierarchy between the Convention and Bosnia’s Constitution.Footnote 68 While the systematic and teleological method of interpretation proposed by judge Grewe would have implied primacy of the Convention over the Constitution (favourable to the ‘rights’ principle), judge Feldman’s textual interpretation left little doubt that the Constitution as an institutional blueprint was Bosnia’s supreme law of the land.
In closing his concurrence, judge Feldman conceded that the European Court of Human Rights, which has no duty to uphold the Bosnian Constitution, might decide differently. Feldman, at any rate, counselled the Strasbourg Court against such a finding.Footnote 69
Sejdic and Zornic
While Sejdic has sparked a vivid debate in the literature, the conceptual repercussions of the Zornic judgment have not yet been fully grasped. Sejdic is the landmark decision on Protocol 12 and remains an important right to vote case. The legal question raised by the applicants in Sejdic was whether the election law to Bosnia’s upper chamber violated the right to free elections, alone or in conjunction with Article 14, and whether the composition of Bosnia’s presidency breached Protocol 12. Both applicants were prevented from running for presidency and upper chamber seats because these state institutions constitutionally reflect the shared power between Bosnia’s three nations (Bosniacs, Serbs, and Croats). The case not only led to deep and well-reasoned case commentaries,Footnote 70 but equally provoked a vivid debate on broader legitimacy issues.Footnote 71 The later Zornic case raised many interesting substantive and conceptual questions but is yet untouched by the literature. Both judgments will be briefly discussed in the present section.
The Court framed Sejdic as a case of ethnic discrimination against vulnerable peoples. Both applicants belonged to minorities: Dervo Sejdic and Jakob Finci were respectively of Roma and Jewish origin. The Court set the scene by declaring ethnic/racial discrimination democratically unacceptable: ‘no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society’.Footnote 72 It could apply its strong case law on vulnerable peoples,Footnote 73 where the state margin of appreciation is tight.Footnote 74 This ‘strict scrutiny’ means that Strasbourg will apply a least restrictive means test that almost invariably ends in a violation finding.Footnote 75 The frame under which the Court chose to situate Sejdic determined the intensity of its judicial review.
The only, albeit strongly, dissenting voice came from judge Bonello. He argued that the Court has accepted the most disparate grounds for restricting the right to stand as a candidate in election. Bonello enumerated many Strasbourg cases pointing to judicial restraint in challenges to power-sharing systems and autonomy regimes.Footnote 76 Relevant but missing from Bonello’s list is Py v France, where the Court upheld a ten-year residency requirement for French nationals to vote in French New Caledonia as ‘local requirements’ justifying restrictions to the right to vote.Footnote 77 However, in Sejdic the Court failed to accept one of the most serious justifications: the threat to peace in a society that has been victim of Europe’s most brutal war since World War II. With reference to prior case law on similar matters, Bonello vociferously argued that the Court should have granted Bosnia a margin of appreciation.
Zornic v Bosnia was even more significant than Sejdic, particularly for its broader legal implications.Footnote 78 Azra Zornic, a Bosniac politician of the multi-ethnic party SDP, refused to declare her affiliation with any constituent people when running for election. The broader question raised touches upon the boundaries of self-classification: do states have an obligation under the Convention to design their electoral system in such a way as to accommodate an individual’s identity choice?
The Bosnian system is liberal in that regard, as it leaves individuals free to define their ethnic identity. Public bodies have no means of disputing what the citizen declares as his ethnic affiliation, as there are no criteria defining group membership. Bosnians could declare themselves as Martians or Eskimos and some have done so.Footnote 79 When running for elections, candidates remain free to declare themselves as part of one of the three titular nations or other groups. However, for certain positions affiliation with one of the titular nations is mandatory.Footnote 80 In order to prevent abuse, a candidate cannot change ethnic identity within one electoral cycle.Footnote 81 Anyone can run for political office in Bosnia, but for a limited number of high political offices an affiliation with one of the titular nations is required.
With Zornic, the European Court of Human Rights seems to have overturned its precedent on self-classification. In Mathieu-Mohin and Clerfayt v Belgium, the Strasbourg Court ruled it proportionate that French-speakers had to declare themselves Dutch-speakers in order to be part of an elected political assembly. Only the dissenting judges argued that French-speaking politicians would suffer unacceptable moral, psychological and political consequences.Footnote 82 In Zornic, the Court has taken over the view of dissenters in Mathieu-Mohin and Clerfayt. For whatever reasonFootnote 83 one refuses to affiliate with one of the titular nations, the legislator still has to make sure that the candidate can run for elected office: ‘[a candidate] should not be prevented from standing for elections for the House of Peoples on account of her personal self-classification’.Footnote 84 In even stronger terms, the Court argued that Bosnia must establish a political system without ethnic discrimination and without granting special rights to constituent peoples.Footnote 85 While in the Belgian case the Court accepted limits to self-classification, in the Bosnian case it demanded the legislator to accommodate almost any identity choice.
Zornic is the more problematic case, compared to Sejdic, with regard to its effect on power-sharing systems. Scholars have based a restrictive reading of Sejdic on the argument that Bosnia was a special caseFootnote 86 and that an ethnocratic implementation (through adding positions in the presidency and upper chamber for ‘Others’) would be compatible with the Convention.Footnote 87 However, nowhere in the Zornic judgment is it mentioned that Bosnia was a special case. In addition, the Court’s focus on self-classification, the absence of any mentioning of Convention-compatible power sharing systemsFootnote 88 (such as in Sejdic) as well as the ‘unusually precise’Footnote 89 wording point towards a broadening of the Sejdic principles. While Sejdic could be read in a restrictive or in a broad way, the latter reading was preferred by the Court in Zornic.
The Sejdic and Zornic decisions have not been implemented by Bosnia, causing harm to both the country but also the Strasbourg Court. Stojanovic and Hodzic have comprehensively discussed how Bosnia could comply with the Sejdic judgment.Footnote 90 Nonetheless, Bosnia’s parties were rather unconcerned in implementing the judgment in a minority-friendly way.Footnote 91 After six years of putting political and financial pressure on Bosnia to change its constitution, the EU has recently given up on making Sejdic’s implementation a precondition for Bosnia’s EU accession.Footnote 92 Although Sejdic is widely regarded as an equality landmark case, the practical effect of the ruling has in no way lived up to the hopes it gave rise to.
The next section argues that the legal principles developed by the Court might affect political systems much closer to the centre of the Convention system.
Beyond Bosnia
If the Bosnian cases are taken as a standard, other power-sharing systems might be incompatible with the Convention. The broad interpretation of Protocol 12 and Article 3 of Protocol 1 puts a question mark on Northern Ireland’s political system, particularly the dual premiership and the cross-community requirement for certain key decisions. At the start of their term, members of the Northern Ireland Assembly have to designate as ‘Nationalist’, ‘Unionist’ or ‘Other’.Footnote 93 With the ‘Good Friday Agreement’, the First and Deputy First Minister were elected on a joint ticket with majority support of both ‘Unionist’ and ‘Nationalist’ Assembly Members.Footnote 94 After a modification of the initial bargain, the First Minister and Deputy First Minister are chosen by the largest party of each designation. Footnote 95 This allows for the possibility that political parties representing the ‘Others’ may nominate the First or Deputy First Minister. However, O’Leary and McCrudden raised the question whether the ‘compelled identification’ requirement for assembly members when voting for the joint heads of the Northern Ireland executive might violate the Convention.Footnote 96 The Northern Ireland Human Rights Commission recently opined that while cross-community voting is compliant with the letter of the Convention, sweeping interpretations following the ‘spirit of the Convention’ might lead the European Court of Human Rights to find cross-community voting arrangements to violate Convention law.Footnote 97 Up to this point national courts have taken a rather deferential approach in cases involving the Northern Irish Peace Agreement,Footnote 98 and no cases on the Northern Irish political system have yet reached the European Court.
Italy’s South Tyrol province is yet another example in which individual rights are restricted by allocating high political offices on the basis of identity markers that underpin political identity. The presidency of South Tyrol’s provincial council rotates between German and Italian-speakers every half term, equally to the exclusion of others. The same goes for power sharing in the province’s executive, where the two deputy presidents must respectively belong to the German and Italian language groups. A reform extended access to the Council’s presidency and vice-presidency to the third language group (Ladin speakers), but only if the other language groups gave up their statutory right to hold these positions.Footnote 99 The situation with regards to inclusion in the provincial government is similar, but with the additional problem that Ladin speakers are de iure barred from becoming deputy presidents. South Tyrol’s proportionality system, by to which all public jobs are distributed according to an ethnic key, equally raises questions for its compatibility with Protocol 12 and EU law.Footnote 100 Power-sharing systems allocate public and political positions according to ethnic/national/linguistic criteria that might be Convention incompatible.
Belgium too might not escape criticism from Strasbourg. In Belgium, the region of election automatically determines the language group of a member of the House of Representatives. This means that a French-speaking deputy elected in Flanders will be part of the Dutch language group. The determination of language group is important, as ‘special’ (quasi constitutional) legislation has to be passed by a two-thirds majority, including a majority in both language groups. The region of election equally determines whether a parliamentarian will be counted among the Dutch- or French-speaking members of executive.Footnote 101 This would violate the Zornic principle, as the group determination is not a matter of one’s personal choice, but is externally imposed on the applicant solely based on territorial considerations. Even more rigid is the Brussels system, where constitutional law permanently bans candidates for elected office from changing language group.Footnote 102 The overlap between ethnicity (or community) and territory has been the main point of criticism by the Council of Europe’s constitutional advisory body, the Venice Commission,Footnote 103 and the primary role of identity in elections to the Brussels parliament is at odds with the Court’s constructivist conceptualisation of identity.Footnote 104
Ran Hirschl argued that the challenge raised by the Bosnian cases is much broader than generally acknowledged. In Hirschl’s words, the broader question is to what extent an external court should intervene in the internal affairs of a well-defined community.Footnote 105 For Hirschl, Sejdic seems less problematic than the British Supreme Court’s meddling into the intra-Jewish diatribe of who is to be considered a Jew.Footnote 106 For Tom Ginsburg, on the contrary, ‘virtually any human rights court or constitutional court decision destabilizes prior understandings, so why treat consociations any differently?’Footnote 107
An internal ceasefire
The difference between consociations and other political systems is that power-sharing systems represent the political equivalent of a military ceasefire. Historically, these agreements have been put in place to end intergroup violence: a war in Bosnia, ‘troubles’ in Northern Ireland, small-scale civil conflict in the Former Yugoslav Republic of Macedonia, bombs in South Tyrol/Italy, or to prevent a war as in Belgium. In many divided polities throughout Europe, political power-sharing compromises were put in place to prevent or overcome inter-community violence.
As power-sharing systems are designed to protect a higher public interest, supra-national courts face an important legitimacy dilemma. The Belgian Constitutional Court elevated these political ‘ceasefires’Footnote 108 to a ‘superior public interest’.Footnote 109 If international courts are called upon to rule on the human rights compatibility of domestically defined ‘superior public interest’, they might collide with the boundaries of their explicit and implicit legitimacy.Footnote 110 Supra-national courts such as the European Court of Human Rights self-define their role as ‘supplementary and subsidiary to the protection of rights and freedoms under national legal systems’.Footnote 111 Judicial unwinding of power-sharing systems raises questions if courts, in particular international courts, trespass on their constitutional space.
Courts in consociational democracies have therefore shown restraint when faced with first-order challenges to the structure of the political system. Challenges to consociational systems may reopen inter-community political conflict and destabilise weak democracies.Footnote 112 Pildes and Issacharoff hypothesise that courts in divided societies will elevate public order and stability over abstract human rights principles.Footnote 113 State courts in Italy, Northern Ireland and Belgium have refrained from unwinding inter-community compromises.Footnote 114 As predicted in legal theory, courts largely deferred to the legislator in first-order challenges.
Court intervention risks being rejected as partisan, as constitutional law is often a function of political interests. Strategic group interests underpin the understanding and interpretation of constitutional law.Footnote 115 Belgium is an example. While for Flemings the country’s division into language regions is the cornerstone of Belgium’s Constitution, for French-speakers no, or very limited, normative consequences flow from this principle.Footnote 116 Already back in Belgian Linguistics, the Belgian government feared that it would be a victory for French-speaking ‘extremists’ over Belgian ‘wisdom’ had the Human Rights Court found a violation.Footnote 117 Put more abstractly, apex courts have a choice between a centralising interpretation, in the name of universal human rights, and a decentralising interpretation, which contextualises human rights in light of internal political structuresFootnote 118 – either choice risks to be perceived as partisan.
Looking for the safety valve
The European Court of Human Rights has an implicit rather than explicit political question doctrine. In Belgian linguistics, the Belgian government had raised the preliminary objection that important legal and political matters, such as the constitutional structure of the state, constituted a ‘reserved domain’.Footnote 119 The idea of an eminently political domain free from judicial review was rejected by the Court without much ado. In Zdanoka, Slovenian judge Zupancic argued that the ‘colossal progress of constitutional law’ transformed formerly political questions into central rule of law issues.Footnote 120 Nonetheless, scholars have quickly grasped that the Court ‘recognized the political component of the law it administers’ by applying the margin of appreciation doctrine.Footnote 121 It accords a margin of appreciation mainly depending on the area of law, the existence of a European consensus and the type of right in question.Footnote 122 The European Court of Human Rights rejected the idea that certain areas of law constitute domains reserved to the national legal order, but recognises national sovereignty through the more flexible instrument of the margin of appreciation doctrine.
While the ‘colossal progress of constitutional law’ has progressively eroded the margin of appreciation in many areas of law,Footnote 123 strong state criticism had induced the Court to ‘enter into an age of subsidiarity’.Footnote 124 Various theories of procedural rationality, or even semiprocedural rationality, are one such way to recalibrate the Court’s margin of appreciation.Footnote 125 Popelier and Van De Heyning argued that courts should scrutinise whether legislative choices are based on rational, evidence-based decision-making.Footnote 126 In this sense, Popelier pleads for procedural rationality as an ‘interesting golden mean’ able to protect rights when the political salience of a case impedes substantive review.Footnote 127 Citing Vodafone,Footnote 128 European Court of Justice judge Lenaerts, writing extra-judicially, called for ‘strict process review’. Lenaerts posited that strict process review allows the European Court of Justice to use its passive virtues and avoid unnecessary substantive conflicts with political branches.Footnote 129 Process theories allow a high level of human rights protection, while at the same time respecting the subsidiarity principle and avoiding substantive conflict.
The ‘integrative democratic tolerance’ approach, developed by the author, is inspired by these both descriptive and prescriptive theories of judicial decision-making, but is different from it. It is specifically tailored to politically sensitive legal challenges to the constitutional structure of a state.
‘Rights’ and ‘democracy’ – The ‘integrative democratic tolerance’ approach
The broader aim of the ‘integrative democratic tolerance’ approach is to reconcile the democracy principle with the protection of fundamental rights. It particularly applies to those cases in which a court is called on to rule on cases involving the constitutional structure of a state. The integrative democratic tolerance approach is tailored to the Strasbourg Court, which has a ‘supplementary and subsidiary’Footnote 130 function to national human rights protection. In addition, the European Court faces a more challenging institutional (political) environment than national apex courts. Albeit on a lesser scale, also national constitutional courts might find the integrative democratic tolerance approach useful. The following five legal and political principles form its backbone.
First, the democratic and constitutional legitimacy criterion. The higher the majorities that supported the law on which the restriction is based,Footnote 131 the more recent the agreement is and the higher the legal norm on which the power-sharing agreement is built on, the more courts should use restraint. This is particularly true when the compromise has been integrated in a country’s constitutional law or it forms part of a member state’s deeply felt constitutional identity. The democratic legitimacy criterion focuses on the political majorities backing the restriction and the inclusion of the allegedly discriminated group in decision-making. The argument is that courts should use more restraint if the rights limitation is result of an inclusive, democratic process that is supported by a cross-community consensus ideally backed by a qualified constitutional majority.
Democratic considerations have been integrated by the Court into its proportionality balancing. In A, B and C v Ireland, the Court seemed to put weight on surveys of public opinion that demonstrated the ongoing controversial nature of abortion in Ireland.Footnote 132 In certain Swiss cases, the Court implied that a lower level of judicial scrutiny is required when the people have the possibility to declare themselves in favour or against a certain policy.Footnote 133 In the Belgian cases, the Strasbourg Court gave particular importance to the fact that the intention behind Belgian language legislation ‘clearly emerged from debates in the national democratic parliament’ and was supported by ‘massive majorities’ of all groups in the country.Footnote 134 Democratic process considerations and popular will have been factors the Court took account of in its case law.
Democratic and constitutional consensus bends the latitude left to the legislator in discrimination cases that are salient at the national level. The Belgian Council of State opined that the legislator’s room for manoeuvre in distinguishing between different categories of persons is all the larger the more it is based on a cross-community consensus.Footnote 135 A greater margin of appreciation should be accorded if the challenged law is based on a two-thirds majority, particularly if it enjoys support beyond the boundaries of a single group. If such reinforced constitutional majority is missing, the Strasbourg Court could consider whether the domestic courts found the challenged law to be essential for the country’s institutional equilibrium.Footnote 136 The Belgian Constitutional Court argued that preserving peace through power sharing constitutes a ‘superior public interest’ that justified a more lenient judicial review.Footnote 137 Following case law and Belgian advice practice, the more political majorities across both language groups agree that certain situations do not amount to discrimination, the more rights restrictions are constitutionally and judicially acceptable. This means that discrimination cannot be defined a priori but depends on the breadth of political consensus for the norm at the law making stage. Qualified majorities buttressed by a cross-community support and, to a slightly lesser degree, national court decisions upholding a law as an essential element of the country’s polity, should warrant a wider margin of appreciation.
The international dimension of a power sharing agreement points to a greater margin of appreciation, which should vary according to the breadth and inclusiveness of the process of democratic ratification. Northern Ireland and South Tyrol serve to illustrate this point. The Good Friday Agreement has been approved in a referendum in Northern Ireland and the Republic of Ireland, and the UK Parliament has done so via the Northern Ireland Act. Not much different is the South Tyrolean case, where the constitutionally embedded power sharing agreement has been approved, next to the German-speaking minority party, by the Italian and Austrian parliaments (the latter as South Tyrol’s legitimate ‘protective power’ in light of an international treaty annexed to the World War II Peace AgreementFootnote 138). Overall, the Court can usefully integrate these democratic criteria into its proportionality test in cases that give rise to significant intergroup controversy.
In the Bosnian cases, on the contrary, the weak democratic legitimacy is a helpful criterion distinguishing it from other power-sharing systems. The Bosnian Constitution is part of an international treaty, the Dayton Peace Agreement, and has not been ratified by the Bosnian parliament and its people. Croatia signed but never ratified and Yugoslavia had not ratified the Dayton Agreement until the last days of her existence.Footnote 139 To be clear, an appreciation of the internal and external security situation through independent experts seems necessary before narrowing the margin of appreciation in politically unstable or otherwise threatened states. This has been called for by O’Leary and McCrudden.Footnote 140 As the key idea behind Sejdic was to craft an effective political democracy in a sufficiently stable state, the Court could have anchored Sejdic to the weak democratic legitimacy of Bosnia’s Constitution.Footnote 141
Second, the legal consistency criterion: precedents should lead the Court to restraint, and decisions overturning precedent should be backed by a strong reasoning.
As a principle, the Court should take account of the procedural requirement that national courts need to faithfully discuss Convention rights and Strasbourg jurisprudence in order to be granted a margin of appreciation. This is, in essence, the Spano test. If the Strasbourg Court decides to overturn the national decision, it should forcefully explain why national courts got it wrong and set a new standard. As a rule, faithfulness to precedent is strongly linked to legal security and effectiveness of the Convention.Footnote 142 The Court should refer to tests of procedural rationality to better shield its legitimacy in salient cases.
On the substantive side, a strong legal reasoning that justifies the departure from judicial precedent can ease implementation by argumentatively convincing the legal epistemic community as well as political actors. This will be illustrated by referring to some problematic issues in Sejdic.
The argumentative tissue in Sejdic was insufficiently woven in with other relevant case law precedents. It is important to remark that the Court did not discuss its own precedents on electoral discrimination in divided societies, chiefly the Belgian Mathieu-Mohin and the Cypriot Aziz Footnote 143 case. Zdanoka was quoted only by dissenting judges referring to a broader margin of appreciation for transitional societies.Footnote 144 The Court failed to discuss relevant elections case law when deciding the Bosnian cases.
The Court might intentionally have left case law consistency in the dark, in order to treat Bosnia as special case. This has allowed the Court to deal with Bosnia without explicitly overturning its elections case law. But there would have been other ways to treat Bosnia as a special case. The Court could, ideally, have relied on the democratic creeps of Bosnia’s constitution or fallen back on the margin of appreciation doctrine, perhaps with reference to the specificities of Bosnia’s constitutional identity (a tripolar ethnic federalist system based on parity between constituent peoples in key state institutions).
A court decision overturning precedent in such a sensitive domain should be equipped with a particularly strong reasoning, which Sejdic was not. Although disagreeing on the merits, both international judges of the Bosnian Constitutional Court found that Sejdic was a badly argued decision.Footnote 145 Feldman, building on the sibylline warning of his concurrence, wrote that the Court’s decision was neither legitimate nor effective: ‘if ever there was a case that required careful assessment of proportionality in the light of a margin of appreciation as a condition for both the legitimacy and the effectiveness of the Court, then Sejdic was it’.Footnote 146 Grewe remarked that the European Court ‘does not elaborate systematically on any standards of justification, does not provide any guidance to the more general question what factual circumstances of dividedness may justify diversion from democratic equality, [and does not address] the problem of democratic inequality caused by quotas and the linking of ethnicity and territory.’Footnote 147 Both international judges of the Bosnian Constitutional Court, which had dealt with the issues giving rise to Sejdic for many times in domestic constitutional adjudication, found the reasoning underpinning the judgment unconvincing.
Third, a step-by-step judicial intervention that gradually unwinds an ethnic system might be a good way to proceed. The South Tyrolean ethnic proportionality system is a point in case. In South Tyrol, every Italian citizen had to declare if he belonged to the German, Italian or Ladin-speaking group, as jobs in the public sector are distributed according to ethnic data in the population census. Following judgments of the Italian Council of StateFootnote 148 and the Italian Constitutional Court,Footnote 149 every Italian citizen resident in South Tyrol, as well as other Italian and EU citizens under certain conditions, declares either to belong, or to affiliate, with the groups of Germans, Italians or Ladins. This system gives citizens who cannot or do not want ‘belong’ to one of the three groups the possibility to freely choose their group, forcing them nonetheless to ‘affiliate’ with one of the three main groups recognised by the Statute of Autonomy.Footnote 150 Such declarations can be modified but take effect only after some time to prevent abuse.Footnote 151 Surprisingly, no case was ever brought to the Strasbourg Court to test its Convention compatibility.Footnote 152 However, the ethnic edges of the South Tyrolean system have been consistently smoothed by decisions of Italy’s top courts.Footnote 153 The South Tyrolean system does a fair job in matching individual choice and societal interests of group equality, and could be applied to Bosnia without requiring a fundamental overhaul of the current system.Footnote 154
Such gradual intervention is warranted, because time and necessity determine whether a restriction amounts to discrimination or not. In Zdanoka, the Court ordered Latvia to ease restrictions to the right to stand as a candidate in elections as soon as conditions permitted it and failure to do so would be sanctioned by the Court: ‘the Latvian parliament must keep the statutory restriction under constant review, with a view to bringing it to an early end… Hence, the failure by the Latvian legislature to take active steps in this connection may result in a different finding by the Court’.Footnote 155 In Sejdic, on the other hand, the Court was convinced that the situation had improved and that ‘time has come’ to change the system. A certain weight in the judgment was given to the prior opinions of the United Nations Human Rights Committee and the Venice Commission, which had earlier found Bosnia’s Constitution incompatible with international human rights norms.Footnote 156 For South Tyrol, academics predict that the measurable decrease in the region’s ethnic conflict might justify an unwinding of its power-sharing system in the close future.Footnote 157 The factual dividedness of a society at a certain point in time determines, rightly so, whether restrictions to the right to vote are discriminatory or not.
Always relating to a softer judicial intervention are examples of judicial dialogue with the legislator. For instance, the Bosnian Constitutional Court has recently decided that the constitutions of Bosnia’s entities violated the Convention,Footnote 158 but suspended the effect of its decision until a political agreement on broader discrimination issues in Bosnia’s legal order can be found.Footnote 159 The Belgian Constitutional Court similarly declared discriminatory electoral laws unconstitutional, but gave the legislator ample time to implement it.Footnote 160 Such a ‘creative’ approach is not always easy to reconcile with the rule of law, as it might conflict with procedural rules a court is bound to and give rise to ambiguities in implementing the judgment. Although these examples of more careful judicial intervention are not without risks, they go in the direction of balancing the rights and the democracy principles.
Fourth, judges have to show a keen sense of political judgment. In other words, they should be able to anticipate if their decision is situated within an ‘interval of tolerance’ acceptable for the political authority charged with implementing the judgment.Footnote 161 A decision that is too costly for political actors to implement is more likely to inflame rather than diffuse a tense political atmosphere between communities. Although these elements might appear elusive, they are certainly present in judges’ minds. Hirschl found that an ‘overwhelming body of evidence suggest that extrajudicial factors play a key role in constitutional court decision making patterns’.Footnote 162 Mann and Hübner Mendes argued that courts are ‘acutely aware’ of external constraints, but prefer to leave them in the dark so as to sustain the judicial myth of pure principled adjudication.Footnote 163 Madsen opined that current Strasbourg Court faces a legitimacy crisis because its ‘young judges’ lack the required diplomatic experiences when deciding hard cases.Footnote 164 When courts touch upon political questions, they should handle them with due care.Footnote 165
Courts should consider the possibility of non-implementation when making judgments in politically sensitive areas of the law. Epstein and others have argued that courts in non-mature democracies should factor into their calculation the cost of a non-implementation.Footnote 166 But judgments that go against the strategic interests of political actors in sensitive domains are controversial not only in transitional democracies. The controversial Hirst judgment on prisoner voting rights remains unimplemented by the UK even ten years after the Grand Chamber’s judgment. The 1968 violation finding concerning the ‘communes a facilités’ in Belgian Linguistics has never been implemented.Footnote 167 Non-implementation of politically sensitive judgments is an issue not only in defective or transitional democracies.
In consociational democracies there is a risk that implementation falls victim to lacking inter-community consensus or ethnic outbidding, particularly when implementation requires constitutional change. Ethnic outbidding or insufficient inter-community consensus might limit the central government’s ability to implement the judgment.Footnote 168
Belgium serves as an example. The Belgian Linguistics case will probably never be implemented, not least because changing so called special-majority laws requires an overall two-thirds parliamentary majority including a majority of both language groups. Similar considerations would apply had the Court found a violation in Mathieu-Mohin: while the dissenters have a strong legal point, the question is whether a supra-national court should apply the least restrictive means test in such a sensitive area of constitutional law. Cross-community negotiations shaping Belgium’s state structure have been long, difficult, complex and passed a very high constitutional threshold. In addition, the judgment of the dissenters in Mathieu-Mohin would have run counter to the constitutional evolution of Belgium. Court judgments requiring constitutional or quasi-constitutional revision in highly sensitive policy areas face a high risk of non-implementation.
The Bosnian cases would equally require constitutional reform to be implemented. Bardutzky found the Sejdic judgment very promising, but admitted that it is very challenging to implement.Footnote 169 Feldman wrote that anyone with knowledge of the local political context could have reasonably foreseen that Sejdic would remain unimplemented.Footnote 170 The window of opportunity for improving Bosnia’s main human rights concerns closed when (the first and only) constitutional reform attempt with success chances failed by a mere two votes in 2006.Footnote 171 Implementation of judgments unwinding a power-sharing system is difficult because of the possible lack of a constitutional moment for implementation and the high majorities required for it.
As a principle, judges should implicitly weigh whether the ‘right’ at stake trumps the present and future costs of non-implementation to their judicial legitimacy and society at large.
Fifth, courts should consider whether their judgments contribute to the integration of society. More broadly, the European Court of Human Rights should pay attention to why a state is discriminating and the reasons behind it. The Strasbourg Court, or highest courts at national level, when faced with an equally plausible alternative between a constitutional choice that builds bridges between the country’s different nations and one that divides them, should opt for the former. This integrative consideration carries particular weight when it touches upon essential notions of justice, such as reversing policies that led to elimination of difference in the form of ‘right peopling’ a particular territory such as expulsion, secession and political homogenisation in the form of assimilation.Footnote 172 The South African example is telling in that regard, as courts are constitutionally obliged to interpret the Bill of Rights in such a way as to promote the values of an open and democratic society based on ‘human dignity, equality and freedom’.Footnote 173
The question for the European Court of Human Rights is: does the judgment promote equality and integration? Nikolaidis argued that the function behind the equality principle in Strasbourg case law is to eradicate prejudice and stereotyping.Footnote 174 Although it is not spelled out clearly, this principle is already the rationale behind many Strasbourg decisions,Footnote 175 including Sejdic and Zornic.Footnote 176
Conclusion
The question that drives this article is to uncover how the Court dealt with, and how it should deal with, the tension between the ‘rights’ and the ‘democracy’ principle in first-order challenges.
The premise therefore is that there is a ‘problem’. For states, the Strasbourg Court invaded their ‘democratic’ terrain through a burgeoning minority rights jurisprudence. The fierce and lasting criticism from some convention states induced scholars and judges to find a new balance between the rights and democracies principles. Proceduralist theories identified ‘interesting golden means’ to maintain principled judicial decision making while at the same time loosening the grip on member states.Footnote 177 This intervention is situated in that broader framework.
The paper discusses human rights challenges to internal political structures, a tiny but incredibly explosive subset of cases that Strasbourg judges find on their benches from time to time. The Bosnian cases Sejdic-Finci and Zornic are noteworthy because the Court applied its ‘burgeoning’ anti-discrimination case law to an area generally off-limits for international courts. Such courts, as a precautionary measure, stay clear of the mined terrain of internal political structures. Prudence had hitherto been the leitmotiv of the Court’s election case law.
At odds with these expectations, a nearly unanimous Court laid down strong legal principles in the Bosnian cases. These include that the legislator has to take account of an individual’s identity choice when designing the electoral system. This seems to partially overrule Mathieu-Mohin v Belgium, where a comfortable Court majority found no problem in externally imposed limits to self-classification. The broader practical challenge is to translate legal principles into politically acceptable and viable solutions. Tom Ginsburg similarly reasoned that the Bosnian cases force us to think about the deep tension between what is principled and what is possible.Footnote 178
The principles laid down in the Bosnian cases could be applied by courts in the context of other power-sharing systems. For instance, in Belgium candidates for election need to declare themselves as French- or Dutch-speakers and in South Tyrol (Italy) everyone, including candidates for political office, needs to affiliate with either the Italian, German or Ladin language group. Mutatis mutandis, the same applies to Northern Ireland and Bosnia. Seen in this light, the principles developed by the Court cast a shadow on other political systems that are built on politically salient group identities, as a consociational democracy is conceptually difficult to reconcile with full freedom of self-classification.
Human rights courts and bodies have arrived at a crossroads. For Christine Bell they wrestle with two equally unsatisfying options: deference or ‘muddling through’.Footnote 179 The aim of the integrative democratic tolerance approach is to open a third way, one in which (inter)national court decisions on such first-order challenges are firmly couched in democratic, legal and integrative principles. It is not a closed package, but a series of considerations that the Court should put on the scale when balancing rights with public interests in these difficult cases. The approach incorporates both procedural and substantive criteria as well as the necessary flexibility to reconcile what is principled with what is possible. It deserves listeners.
