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INDIVIDUAL AND COLLECTIVE RIGHTS

IN CONSOCIATIONAL SYSTEMS









Legal Memorandum












June 2014




Individual and Collective Rights, June 2014



INDIVIDUAL AND COLLECTIVE RIGHTS IN CONSOCIATIONAL SYSTEMS

Executive Summary

The purpose of this memorandum is to provide an analysis of individual and
collective rights, with a particular focus on the interplay of such rights in
consociational systems.

The first rights recognized under international law encompassed those
protections afforded to individuals, such as the right to life and equality before the
law. Subsequently, economic, social, and cultural rights gained international
recognition as fundamental and deserving of protection. More recently, collective
rights of communities have been codified in certain distinct areas, such as
development, however, legal scholars continue to debate their addition as human
rights.

Critics argue that, by definition, collective rights cannot constitute
fundamental human rights because they offer no individual protections. Rather,
collective rights guarantee particular rights to particular groups. For instance,
collective rights may be afforded to indigenous or minority groups to ensure their
participation in governance or to preserve their culture. Collective rights may also
be granted to address major internal divisions along ethnic, religious, or linguistic
lines. Many argue, however, that providing such deference to certain groups
erodes individual human rights.

The European Court of Human Rights (ECtHR) approaches such cases
under the principle of non-discrimination, and requires states to demonstrate that
their laws achieve a legitimate end if they treat particular groups differently. In
analyzing these issues, the ECtHR has utilized a margin of appreciation, which
grants a degree of deference to states but permits intervention when the state
violates a particular right guaranteed under the European Convention on Human
Rights (ECHR). While this approach may appear to recognize collective rights,
the legal analysis is completed under an individual rights framework.

The African Charter on Human and Peoples Rights and the Indigenous and
Tribal Peoples Convention recognize a number of collective rights, and frame
these rights in a plural and collective context. Consociational systems are also
more likely to recognize collective rights. Such systems emphasis on group
identity and collective rights, however, may prove divisive and deepen rifts.
Individual and Collective Rights, June 2014



TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Individual and Collective Rights 1
Three Generations of Human Rights 1
Debate Over Individual and Collective Rights 3

Recognition of Collective Rights 4
Collective Rights under International Law 5
Collective Rights in the European Union 6

Consociational Systems and Collective Rights 7
Pure and Complex Consociational Systems 7
Tension between Individual and Collective Rights in Consociational
Systems 8

Conclusion 9


Individual and Collective Rights, June 2014

1
INDIVIDUAL AND COLLECTIVE RIGHTS IN CONSOCIATIONAL SYSTEMS

Statement of Purpose

The purpose of this memorandum is to provide an analysis of individual and
collective rights, with a particular focus on the interplay of such rights in
consociational systems.

Introduction

The addition of collective rights to the international human rights framework
offers significant protections to ethnic, religious, and linguistic minorities but also
poses unique challenges. Critics argue that the expansion of recognized human
rights to collective rights threatens to erode the individual protections originally
guaranteed under international law. International and European law tend to focus
on individual rights, even in the context of minority rights. The European Court of
Human Rights (ECtHR) has taken a similar approach, using an individual rights
framework to reach decisions on matters of minority rights.

Individual and Collective Rights

The Universal Declaration of Human Rights (UDHR) provides the
foundation for domestic and international laws protecting fundamental rights. The
UDHR provides for the dignity and equality of all individuals, regardless of
nationality,
1
and forms the basis for almost all international human rights
instruments.
2


Three Generations of Human Rights

Human rights can be categorized into three generations, which show
individual and collective human rights in three distinct progressions.
3
Civil and
political rights compose the first generation of human rights, which are also

1
The International Bill of Human Rights (1996), available at
http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf.
2
Yvonne M. Donders, Culture and Human Rights, in ENCYCLOPEDIA OF HUMAN RIGHTS 445 (David Forsythe, ed.,
2009).
3
Karel Vasak, Human Rights: A Thirty-Year Struggle; the Sustained Efforts to give Force of law to the Universal
Declaration of Human Rights, 30(11) UNESCO COURIER 29, 29, available at
http://unesdoc.unesco.org/images/0007/000748/074816eo.pdf#48063.
Individual and Collective Rights, June 2014

2
known as negative rights.
4
Negative rights require the state to refrain from
interfering with the individual exercise of particular rights, such as the right to vote
or freedom of assembly.
5
Such rights protect individual liberty and ensure the right
to express opinions and participate in the political process.
6


The second generation of human rights encompasses economic, social,
and cultural rights.
7
These rights require state support and funding to guarantee
their protection, such as the right to education or the right to housing.
8
Some states
argue that guaranteeing such rights presents an unfeasible scenario that would
require an enormous redistribution of resources.
9
Scholars of international law
note that the distinction between negative and positive remains
oversimplified.
10
For instance, the economic development of a particular sector
may require investment by the state but also restraint in particular activities or fees
that could hinder economic expansion.
11


The third generation of human rights emerged from the global recognition
of certain collective rights, such as those established in the 1986 United Nations
(UN) Declaration on the Right to Development.
12
In addition to the right to
development, third generation rights also include the right to a clean environment
and the right to peace.
13
The importance of collective rights and protections gained

4
Karel Vasak, Human Rights: A Thirty-Year Struggle; the Sustained Efforts to give Force of law to the Universal
Declaration of Human Rights, 30(11) UNESCO COURIER 29, 29, available at
http://unesdoc.unesco.org/images/0007/000748/074816eo.pdf#48063.
5
Michael W. Doyle & Anne-Marie Gardner, Introduction: Human Rights and International Order, THE
GLOBALIZATION OF HUMAN RIGHTS 1, 3 (Jean-Marc Coicaud, Michael W. Doyle & Anne-Marie Gardner, eds.,
2003), available at http://i.unu.edu/media/publication/000/002/234/globalizationhumanrights.pdf.
6
COUNCIL OF EUROPE, The Evolution of Human Rights, 292 (last visited May 30 , 2014), available at
http://eycb.coe.int/compass/en/pdf/4_2.pdf.
7
Michael W. Doyle & Anne-Marie Gardner, Introduction: Human Rights and International Order, THE
GLOBALIZATION OF HUMAN RIGHTS 1, 3 (Jean-Marc Coicaud, Michael W. Doyle & Anne-Marie Gardner, eds.,
2003), available at http://i.unu.edu/media/publication/000/002/234/globalizationhumanrights.pdf.
8
Michael W. Doyle & Anne-Marie Gardner, Introduction: Human Rights and International Order, The
Globalization of Human Rights (Jean-Marc Coicaud, Michael W. Doyle & Anne-Marie Gardner, eds., 2003),
available at http://i.unu.edu/media/publication/000/002/234/globalizationhumanrights.pdf.
9
COUNCIL OF EUROPE, The Evolution of Human Rights, 292 (last visited May 30 , 2014), available at
http://eycb.coe.int/compass/en/pdf/4_2.pdf.
10
Michael W. Doyle & Anne-Marie Gardner, Introduction: Human Rights and International Order, THE
GLOBALIZATION OF HUMAN RIGHTS 1, 3 (Jean-Marc Coicaud, Michael W. Doyle & Anne-Marie Gardner, eds.,
2003), available at http://i.unu.edu/media/publication/000/002/234/globalizationhumanrights.pdf.
11
Michael W. Doyle & Anne-Marie Gardner, Introduction: Human Rights and International Order, THE
GLOBALIZATION OF HUMAN RIGHTS 1, 3 (Jean-Marc Coicaud, Michael W. Doyle & Anne-Marie Gardner, eds.,
2003), available at http://i.unu.edu/media/publication/000/002/234/globalizationhumanrights.pdf.
12
Declaration on the Right to Development (1986), available at
http://www.un.org/en/events/righttodevelopment/declaration.shtml; Arjun Sengupta, Right to Development as a
Human Right, 36 ECONOMIC AND POLITICAL WEEKLY 2527, 2527 (2001).
13
COUNCIL OF EUROPE, The Evolution of Human Rights, 294 (last visited Apr. 3, 2014), available at
http://eycb.coe.int/compass/en/pdf/4_2.pdf.
Individual and Collective Rights, June 2014

3
increasing prominence following the genocides in Rwanda and the former
Yugoslavia, in which armed groups targeted individuals as a result of their
collective ethnic identity.
14
Proponents of third generation collective rights
recognize the preservation of communities and communal space as fundamental
human rights.
15


Debate Over Individual and Collective Rights

Collective rights remain the most contested of the three generations of rights.
Critics of the incorporation of these rights into the international human rights
framework contend that collective rights should not be categorized as human rights
because, by definition, human rights only encompass those rights guaranteed to the
individual.
16
In particular, Western legal practitioners are concerned that the
recognition of collective rights may erode the protections afforded to
individuals.
17
Critics also argue that it can be difficult to determine who is entitled
to exercise a collective right, who is able to represent the collectivity, and who is
the corresponding duty bearer.
18


In addition, some scholars believe that granting collective rights to particular
groups could adversely affect the individual human rights of people within those
groups, specifically women.
19
For instance, Hindu women in India often have
fewer individual rights than Hindu men.
20
Leaders within the Hindu community,
however, argue that such limitations come from a religious context and any change

14
Derek G. Evans, Human Rights: Four Generations of Practice and Development, EDUCATING FOR HUMAN
RIGHTS AND GLOBAL CITIZENSHIP 1, 6-7 (A. Abdi and L. Shultz, eds., 2007), available at
http://www.derekgevans.com/pdf/ARTICLE-Human_Rights_Four_Generations.pdf.
15
COUNCIL OF EUROPE, The Evolution of Human Rights, 294 (last visited Apr. 3, 2014), available at
http://eycb.coe.int/compass/en/pdf/4_2.pdf.
16
COUNCIL OF EUROPE, The Evolution of Human Rights, 294 (last visited Apr. 3, 2014), available at
http://eycb.coe.int/compass/en/pdf/4_2.pdf.
17
Marlies Galenkemp, Collective Rights, 16 SIM: NETHERLANDS INSTITUTE OF HUMAN RIGHTS 53, 66 (1995),
available at
http://www.uu.nl/faculty/leg/NL/organisatie/departementen/departementrechtsgeleerdheid/organisatie/onderdelen/st
udieeninformatiecentrummensenrechten/publicaties/simspecials/16/Documents/16-3.pdf.
18
Marlies Galenkemp, Collective Rights, 16 SIM: NETHERLANDS INSTITUTE OF HUMAN RIGHTS 53, 66 (1995),
available at
http://www.uu.nl/faculty/leg/NL/organisatie/departementen/departementrechtsgeleerdheid/organisatie/onderdelen/st
udieeninformatiecentrummensenrechten/publicaties/simspecials/16/Documents/16-3.pdf.
19
Marlies Galenkemp, Collective Rights, 16 SIM: NETHERLANDS INSTITUTE OF HUMAN RIGHTS 53, 66 (1995),
available at
http://www.uu.nl/faculty/leg/NL/organisatie/departementen/departementrechtsgeleerdheid/organisatie/onderdelen/st
udieeninformatiecentrummensenrechten/publicaties/simspecials/16/Documents/16-3.pdf.
20
WOMENS INTERNATIONAL CENTER, Womens History in America, available at
http://www.wic.org/misc/history.htm.
Individual and Collective Rights, June 2014

4
would threaten the groups collective right to practice religion.
21
Indias failure to
finalize a uniform civil code due to the diversity of religious sects further
demonstrates the complexities of this issue.
22


In contrast, proponents of the recognition of collective rights argue that an
individualist approach to human rights does not account for the social nature of
human beings.
23
Individuals exist in society not just as individuals, but also as
members of various identifiable groups.
24
Thus, the recognition of collective rights,
such as the right to development or the right to a healthy environment, is both
inseparable from and integral to the protection of individual human
rights.
25
Proponents also call for recognition of the indivisibility of certain
collective rights that cannot be claimed as individual rights, for instance the rights
of indigenous people.
26


Recognition of Collective Rights

International and European law do not generally recognize collective rights.
Even conventions aimed specifically at minorities, who many view as the primary
beneficiaries of a collective rights system, operate under an individual rights
framework.
27
Furthermore, due to the absence of collective rights in the European
Convention on Human Rights (ECHR), the European Court of Human Rights
(ECtHR) has not been inclined to recognize collective rights in their decisions.
28


21
WOMENS INTERNATIONAL CENTER, Womens History in America, available at
http://www.wic.org/misc/history.htm.
22
The Times of India, Justice Katju Advocates Uniform Civil Code (June 2, 2014), available at
http://timesofindia.indiatimes.com/india/Justice-Katju-advocates-uniform-civil-code/articleshow/35923279.cms.
23
Marlies Galenkemp, Collective Rights, 16 SIM: NETHERLANDS INSTITUTE OF HUMAN RIGHTS 53, 67 (1995),
available at
http://www.uu.nl/faculty/leg/NL/organisatie/departementen/departementrechtsgeleerdheid/organisatie/onderdelen/st
udieeninformatiecentrummensenrechten/publicaties/simspecials/16/Documents/16-3.pdf.
24
Marlies Galenkemp, Collective Rights, 16 SIM: NETHERLANDS INSTITUTE OF HUMAN RIGHTS 53, 67 (1995),
available at
http://www.uu.nl/faculty/leg/NL/organisatie/departementen/departementrechtsgeleerdheid/organisatie/onderdelen/st
udieeninformatiecentrummensenrechten/publicaties/simspecials/16/Documents/16-3.pdf.
25
Marlies Galenkemp, Collective Rights, 16 SIM: NETHERLANDS INSTITUTE OF HUMAN RIGHTS 53, 66 (1995),
available at
http://www.uu.nl/faculty/leg/NL/organisatie/departementen/departementrechtsgeleerdheid/organisatie/onderdelen/st
udieeninformatiecentrummensenrechten/publicaties/simspecials/16/Documents/16-3.pdf.
26
UNITED NATIONS REGIONAL INFORMATION CENTRE FOR WESTERN EUROPE, Individual vs. Collective Rights,
available at http://www.unric.org/en/indigenous-people/27309-individual-vs-collective-rights.
27
Claudia Tavani, COLLECTIVE RIGHTS AND THE CULTURAL IDENTITY OF THE ROMA: A CASE STUDY OF ITALY 139
(2012).
28
Aist! Ra"kauskait!-Burneikien!, The Impact Of General Human Rights On The Protection Of Persons Belonging
To National Minorities, 20 JURISPRUDENCIJA 923, 935 (2013), available at
https://www3.mruni.eu/ojs/jurisprudence/article/view/1500/1444.
Individual and Collective Rights, June 2014

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Collective Rights under International Law

Generally, international human rights instruments focus on the protection of
rights most applicable to the individual, such as the right to life, freedom from
slavery, and recognition before the law.
29
This is also the case for treaty provisions
and declarations specifically protecting minority rights. For instance, while Article
27 of the International Covenant on Civil and Political Rights (ICCPR) recognizes
that members of minority groups might exercise their rights in community with
other members of their group, the protection is framed individually: persons
belonging to[ethnic, religious or linguistic] minorities shall not be denied the
rightto enjoy their own culture, profess and practice their own religion, or to use
their own language.
30
The Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities also offers protections
under an individual rights framework.
31


The African Charter on Human and Peoples Rights and the Indigenous and
Tribal Peoples Convention constitute notable exceptions.
32
Both documents
recognize a number of collective rights, and frame these rights in a plural and
collective context.
33
For instance, in the African Charter on Human and Peoples
Rights, the word peoples functions as a legal entity with actionable rights.
34

Moreover, the African Commission on Human and Peoples Rights has held that
collective rightsare essential elements of human rights in Africa.
35

Additionally, the Indigenous and Tribal Peoples Convention provides that the
social, cultural, religious and spiritual values and practices of [indigenous and

29
Universal Declaration of Human Rights (1948), available at http://www.un.org/en/documents/udhr/index.shtml.
30
International Covenant on Civil and Political Rights, art. 27 (1976), available at
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
31
Indigenous and Tribal Peoples Convention, art. 5(1) (1989), available at
http://www.un.org/documents/ga/res/47/a47r135.htm.
32
Roland Adjovi, Understanding the African Charter on Human and Peoples Rights, THINK AFRICA PRESS (Nov. 5,
2012), available at http://thinkafricapress.com/international-law-africa/african-charter-human-peoples-rights;
African Charter on Human and Peoples Rights (1986), available at http://www.achpr.org/instruments/achpr/;
Indigenous and Tribal Peoples Convention (1989), available at
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169.
33
African Charter on Human and Peoples Rights art. 20 (1986), available at
http://www.achpr.org/instruments/achpr/; Indigenous and Tribal Peoples Convention art. 3 (1989), available at
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169.
34
African Charter on Human and Peoples Rights art. 20 (1986), available at
http://www.achpr.org/instruments/achpr/.
35
African Commission on Human and Peoples Rights (1987), available at
http://www.achpr.org/instruments/achpr/main-features/.
Individual and Collective Rights, June 2014

6
tribal] peoples shall be recognised and protected, and due account shall be taken of
the nature of the problems which face them both as groups and as individuals.
36


Collective Rights in the European Union

Unlike Africa, human rights treaties in Europe conceptualize rights holders
as individuals. Provisions of the key European human rights agreements reference
civil, political, economic, social, and cultural rights, but do not include collective
or solidarity rights.
37
For instance, the ECHR only addresses individual rights.
38

In addition, while the Framework Convention for the Protection of National
Minorities (FCNM) recognizes the importance of protecting national minorities,
39

calls for specific state action relate only to individual protections for minority
group members, rather than the wider group.
40


Due to the absence of collective rights in the governing conventions, the
ECtHR has not recognized collective rights in its decisions.
41
While the ECtHR
has struck down laws that discriminate against groups based upon ethnic, racial, or
religious grounds, it has done so for violations of individual, rather than collective,
rights. For instance, the ECtHR found Russias non-recognition of scientology as
a violation of the right to freedom of religion.
42
Additionally, the ECtHR has ruled
Bulgarias treatment of a Macedonian cultural organization as a violation of the
freedom of assembly.
43
Moreover, the ECtHR found the right to respect for private
and family life applicable, but not violated, by British land use laws applied to
Gypsy culture.
44
These decisions may all be viewed in a collective rights context,
with the rights of a minority group protected against a majority state action.

36
Indigenous and Tribal Peoples Convention art. 3 (1989), available at
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169.
37
Revised European Social Charter (1996), available at http://conventions.coe.int/Treaty/en/Treaties/Html/163.htm;
Convention on the Protection of Human Rights and Fundamental Freedoms as Amended by Protocols No 11 and No
14 (1950), available at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm.
38
Convention for the Protection of Human Rights and Fundamental Freedoms (1950), available at
http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm.
39
Framework Convention for the Protection of National Minorities art. 1 (1995), available at
http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm.
40
Framework Convention for the Protection of National Minorities arts. 3-18 (1995), available at
http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm.
41
Aist! Ra"kauskait!-Burneikien!, The Impact Of General Human Rights On The Protection Of Persons Belonging
To National Minorities, 20 JURISPRUDENCIJA 923, 935 (2013), available at
https://www3.mruni.eu/ojs/jurisprudence/article/view/1500/1444.
42
Kimlya and Others v. Russia, Eur. Ct. H.R., Case No. 76836/01, paras. 100-102, available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-94565.
43
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, Eur. Ct. H.R., Case No. 29221/95, paras.
87-90 (2001), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59689.
44
Case of Buckley v. The United Kingdom, Eur. Ct. H.R., Case No. 20348/02, paras. 76, 84 (1996), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58076.
Individual and Collective Rights, June 2014

7
However, the decisions all occurred within an individual rights framework,
specifically the ECHR, and were premised on the violation of an individuals right,
irrespective of the individuals membership in a larger, collective group.

Consociational Systems and Collective Rights

To address major internal divisions along ethnic, religious, or linguistic lines,
some states employ a consociational system, which ensures individual and
collective participation through varying degrees of proportional representation.
45

This form of government relies on a power-sharing system.
46
Consociational
systems ensure that certain groups receive representation in the states
governmental structure.
47
However, a consociational arrangement can exclude
other groups from meaningful political participation, or result in political gridlock
if certain groups retain the ability to block legislation.
48


Pure and Complex Consociational Systems

Consociational systems operate in pure and complex forms. Pure
consociational systems share four main characteristics, which are incorporated in
varying degrees.
49
The first characteristic, grand coalition, is defined as each
group having a part in governance of the state as a whole.
50
The second
characteristic, mutual veto, occurs when a group has the power to unilaterally veto
any legislation that is against its interests.
51
The third characteristic,
proportionality, arises when distinct groups receive sufficient representation to
ensure meaningful representation in government.
52
The final characteristic,

45
Patrick Bolte, CONSOCIATIONAL DEMOCRACY IN MULTIETHNIC SOCIETIES 19 (2007); David Wippman, Practical
and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC CONFLICT 211, 215 (David
Wippman, ed.,1998).
46
Brendan OLeary, FROM POWER SHARING TO DEMOCRACY: POST-CONFLICT INSTITUTIONS IN ETHNICALLY
DIVIDED SOCIETIES 3-4 (2005).
47
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 215 (1998).
48
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 220 (1998).
49
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 215 (David Wippman, ed., 1998).
50
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 215 (David Wippman, ed., 1998).
51
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 215 (David Wippman, ed., 1998).
52
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 215 (David Wippman, ed., 1998).
Individual and Collective Rights, June 2014

8
segmental autonomy, permits each group to exercise, to the extent possible,
autonomy over issues that are of its exclusive concern.
53


Complex consociational systems employ at least one other strategy in
addition to the four discussed above, which may include territorial autonomy
(freedom from external authority) and integration.
54
Because Bosnia and
Herzegovina (BiH) provides for a degree of territorial autonomy to Serbs,
Bosniaks, and Croats, BiH is considered a complex consociational system.
55
In
certain post-war contexts where there are strong divisions along ethnic or religious
lines, some argue that consociational systems may be the only way to ensure
meaningful representation and participation in government.
56


Tension between Individual and Collective Rights in Consociational Systems

Consociational systems emphasis on group identity and collective rights
may be in direct conflict with individual rights to political participation and to
freedom from discrimination.
57
The inherent tension between individual and
collective rights was demonstrated in the 2009 ECtHR case, Sejdic and Finci v.
Bosnia and Herzegovina.

In 2006, two Bosnian ethnic minorities applied to the ECtHR to determine
whether their individual rights were violated under the states consociational
power-sharing scheme.
58
Dervo Sejdic and Jakob Finci, both falling within the
ethnic category of others, sued BiH because of their ineligibility to stand for
election to the House of Peoples and the Presidency.
59
Under the BiH Constitution,
only self-identified members of the three constituent peoples (Bosniaks, Croats, or

53
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 215 (David Wippman, ed., 1998).
54
Brendan O Leary, Debating Consociational Politics: Normative and Explanatory Arguments, FROM POWER-
SHARING TO DEMOCRACY: POST-CONFLICT INSTITUTIONS IN ETHNICALLY-DIVIDED SOCIETIES 3,
34 (Sid Noel, ed., 2005).
55
Brendan O Leary, Debating Consociational Politics: Normative and Explanatory Arguments, FROM POWER-
SHARING TO DEMOCRACY: POST-CONFLICT INSTITUTIONS IN ETHNICALLY-DIVIDED SOCIETIES 3,
34-35 (Sid Noel, ed., 2005).
56
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 240 (David Wippman, ed., 1998).
57
David Wippman, Practical and Legal Constraints on Internal Power Sharing, INTERNATIONAL LAW AND ETHNIC
CONFLICT 211, 213 (David Wippman, ed., 1998).
58
Sejdic and Finci v. Bosnia and Herzegovina, Eur. Ct. H.R., Case No. 27996/06, paras. 8-9 (2009), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.
59
Sejdic and Finci v. Bosnia and Herzegovina, Eur. Ct. H.R., Case No. 27996/06, paras. 8-9 (2009), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.
Individual and Collective Rights, June 2014

9
Serbs) can be elected to these positions.
60
Individuals categorized as others are
barred completely.
61
While the ECtHR noted that power-sharing arrangements are
not per se incompatible with the ECHR, particularly when the state establishes a
consociational system to prevent a return to violence, it found that less restrictive
methods of power sharing which do not automatically lead to the total exclusion
of representatives of the other communities are available.
62
As such, the ECtHR
found that BiHs current construct violates Article 14 (non-discrimination) in
conjunction with Article 3 of Protocol 1 (free elections) and Article 1 of Protocol
12 (general prohibition on discrimination) of the ECHR.
63


Of note, the ECtHR held that different treatment based solely upon ethnic
grounds is never justifiable under the ECHR.
64
Rather, states must demonstrate an
objective and reasonable justification for such treatment.
65
In order for different
treatment to be objective and reasonable, there must be a legitimate aim and a
reasonable relationship of proportionality between the means employed and the
aim sought to be realized.
66
While the ECtHR typically employs a margin of
appreciation in analyzing these issues, which grants a degree of deference to
contracting parties, this margin in narrowed significantly when the state
discriminates against a group based upon ethnicity or race.
67
For instance, in D.H.
v. Czech Republic, the ECtHR held that the margin of appreciation allotted to the
states could not justify racial or ethnic segregation in education.
68


Conclusion

Since the drafting of the UDHR, the understanding of accepted fundamental
human rights has evolved to include collective rights. Collective rights provide

60
BOSNIA AND HERZEGOVINA CONST. art. IV (1995), available at
http://peacemaker.un.org/sites/peacemaker.un.org/files/BA_951121_DaytonAgreement.pdf.
61
BOSNIA AND HERZEGOVINA CONST. art. IV (1995), available at
http://peacemaker.un.org/sites/peacemaker.un.org/files/BA_951121_DaytonAgreement.pdf.
62
Sejdic and Finci v. Bosnia and Herzegovina, Eur. Ct. H.R., Case No. 27996/06, paras. 47-48, 50, 56 (2009),
available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.
63
Sejdic and Finci v. Bosnia and Herzegovina, Eur. Ct. H.R., Case No. 27996/06, paras. 50, 56 (2009), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.
64
Sejdic and Finci v. Bosnia and Herzegovina, Eur. Ct. H.R., Case No. 27996/06, para. 44 (2009), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.
65
Sejdic and Finci v. Bosnia and Herzegovina, Eur. Ct. H.R., Case No. 27996/06, para. 44 (2009), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.
66
Sejdic and Finci v. Bosnia and Herzegovina, Eur. Ct. H.R., Case No. 27996/06, para. 42 (2009), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.
67
D.H. v. Czech Republic, Eur. Ct. H.R., Case No. 57325/00, para 208 (2007), available at
http://www.unhcr.org/refworld/pdfid/473aca052.pdf.
68
D.H. v. Czech Republic, Eur. Ct. H.R., Case No. 57325/00, para 208 (2007), available at
http://www.unhcr.org/refworld/pdfid/473aca052.pdf.
Individual and Collective Rights, June 2014

10
significant protections to ethnic, religious, and linguistic minorities, but may
violate the individual rights of specific members. To date, international and EU
law operates almost entirely in the individual rights framework. The ECtHR also
reaches decisions employing the use individual rights even when the rights of
minorities are at issue. The interplay between individual and collective rights in
consociational system has sparked and will continue to spark debate as to how
much deference collective rights should be given.

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