Tuesday, 22 December 2009

Dayton Agreement Provision Held Contrary to European Convention on Human Rights

The Grand Chamber of the European Court of Human Rights today held that a provision of the Dayton Peace Agreement preventing Roma and Jews from election to high office in Bosnia and Herzegovina is contrary to the European Convention on Human Rights: http://cmiskp.echr.coe.int/tkp197/view.asp?item=18&portal=hbkm&action=html&highlight=&sessionid=40897268&skin=hudoc-en. Hats off to my friend and colleague, Sheri Rosenberg, who argued the case for Jacob Finci, one of the leaders of Sarajevo's small Jewish community.
The judgment is not entirely unanimous, and there is a thought provoking dissent from Judge Bonello, who expresses his concern that the Court may be tampering with a successful peace agreement: 'Strasbourg has told both the former belligerents and the peace-devising do-gooders that they got it all wrong. They had better start all over again. The Dayton formula was inept, the Strasbourg non-formula henceforth takes its place. Back to the drawing board', writes Judge Bonello. Referring to the Convention's preamble, and its reference to peace (see my blog of last week on the rights to peace), Judge Bonello says: 'Again, one cannot possibly disagree with the almost platitudinous preamble of the Convention that human rights “are the foundation of peace in the world”. Sure they are. But what of exceptionally perverse situations in which the enforcement of human rights could be the trigger for war rather than the conveyor of peace?' He concludes: 'I cannot endorse a Court that sows ideals and harvests massacre.' Harsh words indeed, but worth further reflection.
I propose that we discuss this case at our next seminar, scheduled for the evening of 12 January.

1 comment:

Harlan said...

If a human right to peace exists, then the right to a democratic constitution with guarantees of equality and non-discrimination must logically be an integral part of the territorial integrity norm.

Europe established the precedent of imposing clauses regarding minority rights in treaties. Recognition and cessions of territory were conditioned upon protections of religious groups and minorities. In many cases those obligations were treated as little more than empty platitudes.

The written statements from interested states concerning the validity of the unilateral declaration of the state of Kosovo are finally available on the ICJ website. They indicate that many states still value the territorial integrity norm much more highly than the self-determination norm.

It is obviously undesirable to make civilized communities resort to belligerency in order to obtain recognition or to assert their right to self-determination. But there is no clear alternative available under existing international law when constitutional or institutionalized discrimination exists. The definition of Aggression in United Nations General Assembly resolution 3314 (XXIX) said that any entity which is the target of aggression can be considered a state and benefit from the protections of the Charter, without regard to recognition or UN membership. The draft ICC statute on the crime of Aggression defines the acts that qualify in accordance with the General Assembly resolution, but it appears to allow communities, such as Palestine, to be attacked with impunity. The law cannot logically deny communities consisting of millions of humans locus standi as "international persons" without some sort of guarantee they will be incorporated into the fabric of a democratic state on the basis of equality and non-discrimination.