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This chapter examines the implications of the European Court of Human Rights' decision in Sejdić and Finci. It suggests that the reasoning presented by the Court to justify its decision is surprisingly sketchy and somewhat ambiguous. On one reading, what the Court was doing was casting a sceptical gaze on consociations generally. Taken to an extreme, the logic of the Court's position might be seen as ‘a prelude to a complete shift from ethnocracy to full affirmation of citizens as individuals in the organisation of the state’. But, on another view, the case may have less dramatic effects on other consociational agreements. First, the decision deals only with who can be a candidate for office rather than with who can define the voting constituency that chooses among the candidates. Second, there is more than a hint in some of the scholarly commentary on the case that the Dayton Agreement was viewed more negatively than any other consociational agreement would be. A third reason to regard the decision as of possibly limited effect on Bosnian arrangements and on consociations generally is that perhaps all that the Court was aiming to achieve was to require the parties to liberalize the existing Bosnian consociational arrangements by specifying that the ‘Others’ should have the opportunity to be elected to the presidency and the House of Peoples.

The practice of domestic courts has been broadly consistent with the hypotheses of Issacharoff and Pildes of what courts are likely to do in weighing consociations against human rights — namely, to maintain or extend consociational arrangements. This chapter argues that their hypotheses are also useful guides to how international and regional courts have reacted to similar challenges in the past. It analyzes three major cases that have brought consociational designs before the European Court of Human Rights: the two from Belgium (Belgian Linguistics and Mathieu-Mohin and Clerfayt v. Belgium), and the Sejdić and Finci case from Bosnia. These constitute the complete set of cases in which the Court has dealt directly with human rights challenges to consociational arrangements.

This chapter discusses four significant developments that occurred between the Belgian cases and the Bosnian case examined in Chapter 4, which explain the decision of the European Court of Human Rights (ECtHR) in the Sejdić and Finci case. These are the growth of a considerably more robust approach to discrimination and minorities by the Council of Europe and the ECtHR; changes to the approach to interpreting rights to political participation by the ECtHR; the increasing adoption of the liberal criticisms of consociations by other human rights organizations, in particular by the Venice Commission; and particular understandings of the conflict in Bosnia, taken together with Bosnia's subsequent commitments to the Council of Europe and the European Union.

This chapter examines the Bosnian consociational arrangement. It begins with a background on the war in Bosnia and the negotiations and signing of the 1995 Dayton Peace Agreement, which formally ended the conflict. It then turns to the key consociational aspects of the Constitution of Bosnia and Herzegovina. Next, it considers Bosnia's European commitments, including its ratification of the European Convention on Human Rights and the stabilization and association agreement with the European Union, and its attempts to honour these commitments. The chapter concludes with a discussion of extensive external involvement in both the genesis and operation of Bosnia's constitutional arrangements.

This chapter presents a synthesis of the preceding discussions. It considers the implications of the European Court of Human Rights' decision in Sejdić and Finci. The Court's decision is ambiguous and can be given either a broader or narrower interpretation (the former being more sceptical of consociations than the latter). If the broader interpretation subsequently proves to be the correct interpretation, and indicates the likely trajectory of this and other human rights courts' reactions to consociations, then this may have several problematic consequences. The chapter also suggests that courts weigh more than the judgments of legal advisory bodies and human rights non-governmental organizations when they evaluate whether critical human rights are adversely affected by consociational bargains. Liberalizing some features of the Bosnian consociation would likely lead to a better political system for all Bosnians, but deciding when to make such changes, who is to make them, and how they should be made must not be in the hands of a court.