Review of Courts and Consociations, by Christopher McCrudden and Brendan O’Leary (OUP 2013)

—Reviewed by Tom Ginsburg

In its 2009 decision in the case of Sejdić and Finci v. Bosnia, the European Court of Human Rights found in favor of two applicants who challenged the provision of the Bosnian Constitution restricting certain political offices to three “constituent peoples”. These restrictive arrangements were a central pillar of the Dayton Accords, which ended the Bosnian war in 1995, and form a prime example of consociationalism, one of the major approaches to constitutional design in divided societies. Should the Court have upended such a carefully calibrated political settlement? This book argues in the negative.

Balance among the three largest nationalities in Bosnia-Herzegovina was the central feature of the peace arrangements, leaving those who were neither Bosniak, Croat nor Serb designated as “Others.” Messrs. Sejdić (who was Roma) and Finci (Jewish) were constitutionally ineligible to serve in either the collective three-person presidency or the upper house of Bosnia’s parliament. (Although “Others” are eligible to serve in the lower house, none ever has been elected.) The Court held that the constitutional restrictions on “Others’” standing for office violated the European Convention’s prohibition on discrimination in Article 14.

The authors—eminent professors of human rights law at Queen’s University, Belfast (McCrudden) and of comparative politics at the University of Pennsylvania (O’Leary)—are deeply critical of the Sejdić and Finci decision. Because the decision upends a key element of consociational arrangements, they argue that a margin of appreciation would have been appropriate. Consociation is usually a “second-best” solution to deep problems of political conflict, often violent conflict, and the Bosnian case is no exception. Indeed, one might characterize the Bosnian Constitution as more of a peace treaty than a constitution in the normal sense. But Bosnia is not the only consociational arrangement around: many countries, including Belgium, Burundi and Northern Ireland, also have consociational elements in their constitutional orders, and these have worked to reduce ethnic tensions with varying degrees of efficacy. McCrudden and O’Leary argue that consociational arrangements are best unwound by the parties themselves and not by external actors who may have sparse appreciation for local political consequences. Further, they note that Sejdić and Finci disincentivizes future consociationalists from either acceding to the jurisdiction of human rights courts or including extensive bills of rights in the constitution.

Though they are defenders of consociationalism where it is necessary (and the book includes a very accessible introduction to the concept for those who are unfamiliar with it), McCrudden and O’Leary acknowledge that the more liberal position demanded by human rights lawyers and the European Court may be normatively desirable, and indeed might even better for most Bosnians. Their main critique is that the European Court was ill-equipped to make this decision, both in terms of substance and timing. Outside courts should be careful not to overturn the delicately structured bargains that lead to consociational arrangements in multi-ethnic polities.

As we move to a poly-nomic world in which multiple courts—national, regional, global–are often considering particular arrangements, rigorous thinking about the relationship among various levels of government is essential, and this book makes an important contribution in cautioning us to take local politics seriously. I’m broadly attracted to this emphasis, and think that human rights scholars would do well to read the book to wrestle with its arguments. At the same time, I suspect that the question of when outside courts ought to destabilize local bargains does not admit of general answers. Consider the case of Chile, in which local courts were faithful for nearly two decades to the amnesties and other political arrangements that were conditions of Pinochet’s withdrawal from power in 1988. As time went on, emboldened by the House of Lords’ decision in Ex Parte Pinochet, local courts began to take a more skeptical view of the founding bargain. Is this a bad thing? All political bargains are subject to decay, and international norms and institutions are increasingly part of the negotiating context.

As this example illustrates, the question of whether courts should alter constitutional provisions that were part of the founding bargain extends beyond the consociational context. Courts and Consociations opens with a fictitious vignette about an international human rights court invalidating the provision of the US Constitution restricting the presidency to natural born citizens. Or consider the compatibility of the US Senate with the “one man one vote” principle announced in Reynolds v. Sims (1964). What if the Warren Court had declared that the existence of the Senate violated a higher principle of equality as articulated in the 14th amendment, and thus had to be modified in accordance with the later commitment? The problem is a general one: when should courts modify the original bargain embodied in any constitutional order, and what does an expansive approach do to future constitutional negotiators who must realize that the credibility of their commitments is always subject to downstream tinkering? If the answer to the first question is that courts should always accede to current arrangements, then law simply blesses the politically feasible. That may be troubling from the perspective of rights, as it pushes them back into the political sphere in every instance.

The bottom line is that the distinction between what is internal and external to any particular constitutional arrangement is not as clean as we might like. No constitutional commitment—whether consociational or not– is ever perfectly protected from future modification. Bosnia acceded to the European Convention in 2002, and so one might argue that there was some possibility that the constitutional incongruities between human rights and consociationalism would be altered down the road in favor of the former. More broadly, the Bosnian Constitution has always been deeply embedded in the European order—the President of the ECHR picks three of its judges, and European participation in the so-called contact group was essential from the beginning. There was thus always some background risk that a case like Sejdić and Finci would emerge. At the same time, the international actors are also constrained by what is locally possible because of the need for compliance.

Courts and Consociations does a great service in integrating political and legal analysis, and in highlighting what is at stake in consociationalism. In doing so it forces us to wrestle with the deep tension between what is principled and what is possible.

Suggested Citation: Tom Ginsburg, Review of Courts and Consociations by Christopher McCrudden and Brendan O’Leary, Int’l J. Const. L. Blog, Aug. 16, 2013, available at: http://www.iconnectblog.com/2013/08/review-of-courts-and-consociations-by-christopher-mccrudden-and-brendan-oleary-oup-2013