The Strasbourg Court and Challenges to the Constitutional Architecture of Post-Conflict Federalism in Bosnia-Herzegovina and Beyond

In: Review of Central and East European Law
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  • 1 University of Antwerp, Belgium

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In Pilav, the Strasbourg Court ruled that constitutional provisions relating to Bosnia’s presidency violate the European Convention on Human Rights, because they combine a territorial mode of election with an ethnic component. On a broader level, the case concerns “the minimum requirements of a democratic system of political law-making at the level of domestic government and the scope and content of fundamental rights”. Pilav maps into the relationship between national political accommodations in divided polities and non-discrimination and democratic principles at the core of the Convention system and beyond. The article discusses the implications of the ruling within the consociational context and offers guidance about its implementation. The key argument to be made is, rather than referring to the universality of human rights and applying those rights to consociations, courts should ground their legal arguments on a broader political theory about national democracy, while taking into consideration local conditions and problems.