Courts and ConsociationsOn 11 April 2014, Constitutional Transitions convened a workshop discussion, “Ethnic Divisions and Power-Sharing: What Role for Human Rights?” organized by Constitutional Transitions Director Sujit Choudhry and CT Visiting Fellow Christopher McCrudden.  The workshop was supported by the Straus Institute for the Advanced Study of Law and Justice and the Jean Monnet Center for International and Regional Economic Law and Justice, and brought together leading scholars from the New York area to discuss the troubled relationship between power-sharing models of ethnic accommodation and the law and practice of human rights obligations.

The workshop discussion centered on the book, Courts and Consociations: Human Rights versus Power-Sharing by Christopher McCrudden and Brendan O’Leary. The book examines three critical cases heard before the European Court of Human Rights, where equality challenges were brought against consociational practices. The third case, Sejdić and Finci v. Bosnia, significantly altered the Court’s approach to the judicial review of consociational arrangements. McCrudden and O’Leary’s book accounts for this jurisprudential shift and examines its implications.

McCrudden and O’Leary both attended the discussion, as well as CT Visiting Fellows George Anderson, Lech Garlicki, Wojciech Sadurski, and Samuel Issacharoff, Michèle Finck and Julie C. Suk. The workshop discussion considered the implications of power-sharing arrangements for broader debates about human rights in comparative constitutional law, international law and legal theory. Discussion further pressed upon the effects of the Court’s willingness to find against consociational arrangements for the development of peace agreements and transitional justice. One central line of questioning concerned the appropriate timeline for the signing and ratification of human rights treaties in the wake of a corporate consociational arrangement, and whether the outcome in Sejdić and Finci provided a disincentive for early adoption of human rights instruments by a transitioning state.

Questions were also raised as to whether Sejdić and Finci was a unique case, given the identity of the claimants, or whether it represented a general proposition that human rights courts are willing to overturn consociational arrangements that appear to violate equality protections. Some participants wondered whether the case outcome might have differed if the processes leading up to the consociational arrangement had been more inclusive, engaging with communities not centrally considered in the power-sharing arrangement.

Other questions concerned the legal framing of power-sharing models of ethnic accommodation. Was race the appropriate analogue? Was nationality? The group discussed the implications of this choice; for instance, if race were the correct analogue, we might expect human rights courts to apply something akin to a strict scrutiny standard, as is applicable in U.S. antidiscrimination law. Much of this discussion involved issues of identity politics, pressing whether or not the taking up of a political identity, as was required to stand for political office under the consociational arrangement in Sejdić and Finci, entailed a legally significant sacrifice.

A further line of dialogue considered the utility, strategy, and rhetorical purchase of constructing a “corporate” consociation in facially neutral language. Many participants agreed that appearances do matter when it comes to the judicial scrutiny of a consociational arrangement.

Choudhry concluded the half-day workshop by noting how the book’s close examination of an individual case was vindicated by a rich and focused discussion on this highly significant issue. All participants agreed that the book marks the beginning of an important conversation on the compatibility of consociational arrangements to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts with non-discrimination and equality protections.