European Yearbook of Minority Issues provides a critical and timely review of contemporary developments in minority-majority relations in Europe. It combines analysis, commentary and documentation in relation to conflict management, international legal developments and domestic legislation affecting minorities in Europe.
This series critically examines issues of legal doctrine and practice in Central and Eastern Europe, including studies on the harmonization of legal principles and rules; the legal impact of the intertwining of domestic economies, on the one hand, with regional economies and the processes of international trade and investment on the other. The series offers a forum for discussion of topical questions of public and private law from domestic, regional, and international perspectives. Comparative research that provides insights in legal developments that can be communicated to those interested in questions, not only of law, but also of politics, economics, and of society of countries in the region also finds a home in the series.
The first part of the article presents different and opposing theoretical approaches and discusses their explanatory value for the disintegration of the SRFY and the following wars in the Balkans, such as primordialism vs. constructivism, liberal vs. ethnic nationalism, accommodation vs. integration, neo-realism vs. liberalism in international relations and structure- vs. action-oriented approaches in sociology. In conclusion, it will be argued that these theoretical dichotomies have to be overcome and that there is a need for complementary research strategies in order to not only 'explain', but also to 'understand' the processes of ethnic mobilization as an actor-driven process of political mobilization by 'ethnic' entrepreneurs in order to create a security dilemma for their own goals in the ongoing fight for political power. The second part of the article then develops a framework for comparative empirical studies with reference to structural settings, the situational context and actors and introduces into the following articles by Mujkic and Harzl discussing, for instance, the structural similarities between communism and nationalism and the dysfunctionality of communism and federalism as historic legacies.
Constitutional Design for Divided Societies: Integration or Accommodation? raises important conceptual questions of consociational theory and powersharing mechanisms and tests them against a wide range of regional case studies from Europe, Africa and Asia. The axiomatic, underlying interest for analysis is the question: how can and should culturally divided societies be politically managed, not the least through constitutional arrangements? All of the articles are based on the conceptual distinction of “integration” versus “accomodation” as a follow-up to the Lijphart-Horowitz debate. However, the main achievement of the book is the insight into the necessity to de-construct this conceptual dichotomy and to develop better refinements by bridging the gap between comparative politics and comparative constitutional law. In the end the book thus provides fresh food for thought on how to reconcile consociational theory and powersharing mechanisms with the problems of self-determination disputes usually overlooked by the former concepts.
Based on different concepts of nation-states, the article tries to demonstrate through the analysis of decisions of national courts that despite the same wording of the constitutional text, supreme and constitutional courts may come to totally differing conclusions in light of the constitutional history and doctrine of the respective country. The first part of the article gives an overview on case-law denying effective participation through non-recognition of ethnic diversity as a legal category, for instance through the ban of the formation of political parties along ethnic lines or through interpretative preemption of the legal status of minority groups. The second part of the article gives an overview of various legal mechanisms in order to enable, support, or even guarantee the representation and process-oriented effective participation of minorities in elected bodies, such as exemptions from threshold requirements in elections or reserved seats in parliament, and through cultural and territorial self-government regimes in those constitutional systems which legally recognize ethnic diversity. Nevertheless, the case-law demonstrates how difficult it remains to reconcile the notion of "effectiveness" with a positivistic and formal-reductionist understanding of terms such as equality, sovereignty, people or nation. The Lund Recommendations have served as an important guideline for a new, "communitarian" understanding of "effective" participation so that the author argues in conclusion that it requires more intra- and inter-disciplinary dialogue between law, politics and (legal) philosophy as well as between national and international minority protection mechanisms to "constitutionalize" this philosophy.