Ethnic Diversity, Plural Democracy and Human Dignity: Challenges to the European Union and Western Balkans (Ius Gentium: Comparative Perspectives on Law and Justice, 99) 3030979164, 9783030979164

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Ius Gentium: Comparative Perspectives on Law and Justice 99

Mario Krešić Damir Banović Alberto Carrio Sampedro Jānis Pleps   Editors

Ethnic Diversity, Plural Democracy and Human Dignity Challenges to the European Union and Western Balkans

Ius Gentium: Comparative Perspectives on Law and Justice Volume 99

Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA James Maxeiner, University of Baltimore, Baltimore, MD, USA Editorial Board Members Myroslava Antonovych, Kyiv-Mohyla Academy, Kyiv, Ukraine Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil Jasna Bakšic-Muftic, University of Sarajevo, Sarajevo, Bosnia and Herzegovina David L. Carey Miller, University of Aberdeen, Aberdeen, UK Loussia P. Musse Félix, University of Brasilia, Federal District, Brazil Emanuel Gross, University of Haifa, Haifa, Israel James E. Hickey Jr., Hofstra University, South Hempstead, NY, USA Jan Klabbers, University of Helsinki, Helsinki, Finland Cláudia Lima Marques, Federal University of Rio Grande do Sul, Porto Alegre, Brazil Aniceto Masferrer, University of Valencia, Valencia, Spain Eric Millard, West Paris University, Nanterre Cedex, France Gabriël A. Moens, Curtin University, Perth, Australia Raul C. Pangalangan, University of the Philippines, Quezon City, Philippines Ricardo Leite Pinto, Lusíada University of Lisbon, Lisboa, Portugal Mizanur Rahman, University of Dhaka, Dhaka, Bangladesh Keita Sato, Chuo University, Tokyo, Japan Poonam Saxena, University of Delhi, New Delhi, India Gerry Simpson, London School of Economics, London, UK Eduard Somers, University of Ghent, Gent, Belgium Xinqiang Sun, Shandong University, Shandong, China Tadeusz Tomaszewski, Warsaw University, Warsaw, Poland Jaap de Zwaan, Erasmus University Rotterdam, Rotterdam, The Netherlands

Ius Gentium is a book series which discusses the central questions of law and justice from a comparative perspective. The books in this series collect the contrasting and overlapping perspectives of lawyers, judges, philosophers and scholars of law from the world’s many different jurisdictions for the purposes of comparison, harmonisation, and the progressive development of law and legal institutions. Each volume makes a new comparative study of an important area of law. This book series continues the work of the well-known journal of the same name and provides the basis for a better understanding of all areas of legal science. The Ius Gentium series provides a valuable resource for lawyers, judges, legislators, scholars, and both graduate students and researchers in globalisation, comparative law, legal theory and legal practice. The series has a special focus on the development of international legal standards and transnational legal cooperation.

More information about this series at https://link.springer.com/bookseries/7888

Mario Krešić • Damir Banović • Alberto Carrio Sampedro • Jānis Pleps Editors

Ethnic Diversity, Plural Democracy and Human Dignity Challenges to the European Union and Western Balkans

Editors Mario Krešić Legal Theory Department, Faculty of Law University of Zagreb Zagreb, Croatia Alberto Carrio Sampedro Department of Law, Legal Philosophy Area Pompeu Fabra University Barcelona, Spain

Damir Banović Public and International Law Department Faculty of Law, University of Sarajevo Sarajevo, Bosnia and Herzegovina Jānis Pleps Department of Legal Theory and History University of Latvia Rīga, Latvia

ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-030-97916-4 ISBN 978-3-030-97917-1 (eBook) https://doi.org/10.1007/978-3-030-97917-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This volume is based on presentations and discussions at the special workshop “Ethnic Diversity, Plural Democracy and Human Dignity”, held on July 9, 2019, in Lucerne, Switzerland, as part of the twenty-ninth biennial World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR). The workshop was focused on the following question: to what extent—and at what cost and benefit to human dignity—can European countries, given their ethnic diversity, adopt and adapt plural democracy. We would like to warmly thank all our colleagues for contributing to this volume and especially to Ivan Padjen for initiating our project and Bruce Anderson for proofreading the volume. The authors tackled the question primarily conceptually but with due regard to historical experience, especially in the European Union and the Western Balkans. The special cases in the book refer to Bosnia and Hercegovina, Croatia, Latvia, Slovenia, and Spain, while the Canadian experience of the Acadian case is relevant for European problems. The issues are analysed from the perspective of legal theory, political philosophy, legal dogmatics, and art. The volume consists of eleven contributions divided, after the introduction, into three thematic parts. The introduction (contribution 1) defines the problem, states the key concepts and hypotheses of the invitation to the special workshop, outlines the guiding ideas of the invitation (religious dimensions and interpretations of the problem; international legal limitations of self-determination by secession; and the need for a revival of the theory of law and state), and relates the essays in this volume to these concepts, hypotheses, and ideas. The first part of the book covers topics related to the European principles which contribute to the avoidance of ethnic conflicts: the principle of compulsory adjudication in interstate relations (contribution 2), the principle of democracy (contribution 3), and the principles related to the recognition of individual and collective identities (contribution 4). These principles are investigated by drawing on legal and political theories. The second part is dedicated to three ways of conceptualizing ethnical needs in multi-ethnic states: asymmetric federalism (contribution 5), democratic account (contribution 6), and cooperative federalism (contribution 7). The third part elaborates issues related to the v

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protection of minority rights: the role of judicial ideology in protecting minority rights (contribution 8), citizenship (contribution 9), the EU mechanism for the protection of minority rights (contribution 10), and the importance of remembering tragic events affecting minorities (contribution 11). The solutions regarding the extent to which European countries can adopt and adapt plural democracy are sought through innovative interpretations of the concepts of the rule of law, democracy, and human dignity followed by argumentation on how these concepts, when recognized as European legal principles, can be implemented in order to avoid ethnic conflicts. Insights provided from the perspectives of different disciplines fall within the framework of the integral theory of law and state. Principles are recognized as crucial standards for the identification of law, and this is supported by a particular conception of the sources of law including the idea that political and legal doctrines can be used to determine legal principles. The link between legal sources and justiciability, i.e. the suitability of the norms to be applied by law-applying organs, focuses our attention not only on principles implied by legal texts, customs, and culture, but also on principles which still might not be recognized by existing law-applying organs and present emerging norms that have the potential to be recognized by courts and as such could be used in legal argumentation. The normative and political ideology of judges is noted as an important factor in the identification of law. The concept of the legal system is understood to include not only state law, but also transnational and other manifestations of law. The relation between legal systems is taken seriously in recognizing the importance of European law for inter-state and intra-state problems. The volume considers both the normative practice of identifying legal phenomena and the sociological practice of explaining it. The value of certainty is elaborated when dealing with the rule of recognition, peace and stability, and the rule of law. The value of human dignity and other values implied by human dignity, e.g. plural democracy, are elaborated in detail. The contributions also take critical stances and provide useful insights for positive legal sciences and legal politics. The arguments used in this volume for (re)designing the legal order are based on fundamental principles of the legal order. The search for arguments formulated in such a way that can be presented to a judge (existing courts, quasi-judicial institutions, or even an imaginary adjudicative body) seems to be a promising way to argue in favour of the implementation of proposed concepts. There is an evident demand for a European third body (or an international third body accepted by Europeans) for the resolution of European states’ disputes, disputes between ethnic communities in multi-ethnic European states, and minority issues in unitary states. The importance of national courts is emphasized when analysing the national arena in terms of ethnic conflicts in multi-ethnic states or minority issues in unitary states. Further, we have learned that the ideology of judges influences the internalization of the value of minority rights. The nature of a principle depends on the context in which the principle appears, while the analysis of it includes two determinations: the type of normativity of the principle (whether it is a legal norm or other kind of standard) and its meaning. It is

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worth stressing that the context for this research is European, i.e. European law and European integration. The principles relevant for law are not only those formulated in legal documents possessing a formal pedigree, but also those principles that are implied by formulated norms, customs, and culture. The meaning of the principle is stipulated based on the insights that come from theoretical conceptions, political doctrines, and legal doctrines. The principles relevant for ethnic conflicts are (1) principles of stability and certainty: peace, the rule of law, and compulsory adjudication; (2) the principle of democracy; and (3) principles of individual and collective identity: autonomy and equality (dignity). All these principles support human dignity and all of them are applicable at the supranational level. The principles protecting the rule of law and peace constitute the fundamental norms of European law. Both principles are applicable to relations within each member state, relations between member states themselves, and relations of the EU and the member states with non-EU countries. Once these fundamental norms are recognized, it is possible to construct the principle protecting the value of compulsory adjudication. It is an emerging principle of the European order which is suitable to be used in law application. In particular, it is suitable to be applied as a legal requirement for EU accession. The principle of compulsory adjudication “prescribes that all disputes should be, upon demand, submitted for a decision of a third body which provides final decisions based on the law whereby the demand can be issued by each subject having a legal interest in requesting the decision or by a special organ empowered to initiate such a process of decision-making”. Further, the specific meaning of the principle of democracy can be found in the conception of democracy as non-domination. According to this conception, democracy is not only the rule of the majority, but also the principle of governance which protects human dignity as a common good. Democratic rule of the majority “is a suitable procedure if, and only if, it is meant to protect people’s basic rights and ensure their ultimate control of political power”. Democracy also requires procedural guarantees “such as transparency, political accountability and also the formal process of listing individual preferences”. The concept of human dignity is concerned with perceiving humans as social beings, i.e. zoon politikon (Aristotle) and the duty to respect each other (Kant). There is a direct link between human rights and democracy. The members of a community are free and autonomous to make decisions, but they may not make decisions to eliminate the necessary conditions for members to make free and autonomous decisions or to dominate persons or groups. The protection of public deliberation is an important part of the conception of democracy since people must be able to express their preferences autonomously and freely and to shape individual preferences rationally. The political doctrine of democracy as non-domination can be understood as suitable for a litigant to use in her legal reasoning about how to resolve a legal problem. The key question is whether the problems of ethnic communities are legal problems to which such a doctrine applies. Ethnic communities are important for human dignity. Like any other groups in a plural democracy, they require to be recognized in the same way as human beings have the right to be recognized. This requirement includes self-governance which ultimately could lead to claiming the

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right of self-determination by secession. But the ethnic groups in the EU member states do not have such a right. However, there is always the possibility of agreement on the question of self-determination. Besides, since the multi-ethnic states participate in European integration, ethnic communities have the right to be heard on the European level of governance. What is important when such a dispute arises is for all parties to remain committed to the principle of democracy since the opposite leads to domination. The only issue is whether any question posited by an ethnic community, including the one on self-determination, can be eligible for a democratic procedure of decision-making. Finally, the fundamental principles of protecting individual and collective identities are the principle of autonomy and the principle of equality. Both principles present the essence of human dignity. The explanation of human dignity and its relation to individual and collective identities starts with a dialogical concept of identity. A person forms self-consciousness of his own identity through a dialogical structure when in interaction with others, and it is of crucial importance for identity that this interaction includes mutual recognition of each other as equal and separate. Such a recognition is a fundamental human need. Collective identities are important for individual identity: a sense of belonging to a group “does not limit individuals; on the contrary, it prompts them to construct a strong and structured self”. The political doctrine which builds on the concept of identity and its connection to human dignity is multicultural liberalism. If human dignity is defined as a basic right of equal respect of a person’s freedom to self-development (autonomy), then the culture is also important since culture is a determinant of one’s identity. An individual can through one’s culture perceive and distinguish the various options that imbue life with meaning, and respect for other cultures breeds understanding among people and enables socialization (Raz). Moreover, the authenticity of identities creates diversity which is beneficial for humans. The doctrine requires both principles: the principle of equality for all citizens of a state and the principle of preserving distinctness (positive discrimination) as defending authenticity in opposition to the assimilation by the dominant cultural identity. Legal policies following the ideas of political doctrine on multicultural liberalism would create or construct norms which “protect and recognize the cultural tradition of groups that exist in modern pluralist societies, with such recognition being used to protect the freedom of individuals and their ability to fully develop their own identities”. The norms could be grouped according to those recognizing individual equality and distinctiveness as well as collective equality and distinctiveness. The creation of such norms establishes individual and potentially collective rights. The problem of the conflict between the need to protect collective identities and individual human identities still waits for detailed consideration, but the guidelines are provided when human dignity is seen as having priority. The theories on conflict in multi-ethnic state deal primarily with the problem of the distribution of power. On the one hand, the problem can be seen as the responsibility of central governments to respond to the “crisis of democracy” and to be aware that the attempt to maintain symmetric stability could lead to violence. On the other hand, the problem could be seen as the result of a weak central state

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including the possible disloyalty of ethnic communities to common constitutional and political goals, a view which can be connected to the problem of political parties. Any analysis of the problem in multi-ethnic states is conditioned by the conceptualtheoretical framework used, and there is a link between conception and principles. In proposing the tools for legal policy on constitutional arrangements, the authors have used the principles of identity and plural democracy but also principles of constitutional loyalty protecting the rule of law. All arrangements—asymmetric federal arrangements, plural multi-ethnic states, or cooperative federalism—aim at resolving ethnic disputes and keeping the peace. Sometimes a third party, national or EU, is required. The legal policies developed are based on the following theoretical conceptions or doctrines: asymmetrical federalism, liberal multiculturalism presented through the conception of “democracy of peoples”, and judicial activism towards a more centralized federation. Traditional federalism follows the principles of equality of units, symmetry of competences for all units, and mono-nationalism, i.e. one nation “without identity differences”. The conception of asymmetric federalism adopts, however, the concepts of dynamic political relationships, plural democracy, and identity differences. This conception accepts that “differentiated status, powers and competences, and/or fiscal autonomy [are granted] to component units with territorially embedded differences”. Conceptions of ethnic conflicts condition the interpretations of current ethnic conflicts in multi-ethnic states. In addition to a dominant portrayal of ethnic conflicts in terms of a clash of recognitions, a nationalist conflict, and an alignment with global trends, ethnic conflicts can also be understood as the conception “democracy of the peoples”. According to this conception, ethnic identity should be considered as a social fact and the conflict channelled towards searching for joint institutional arrangements which pursue democratic principles, namely mutual recognition and non-domination. The doctrine accepts, at least at the beginning of the process, the power distribution which is conceptually thinner than the one provided by conceptions of federalism and is close to the functioning of the EU which is not a federation. The doctrine of cooperative federalism is connected to strengthening the role of the central (federal) organs in influencing the normative and policy activity of the federal units. One of the main characteristics of constitutional arrangements following this doctrine is the enlargements of the area of shared competences. The process of strengthening central organs in compound legal orders can be based on protecting two principles: (a) the principle of the supremacy of norms produced by central organs and (b) the principle of direct application of the norms of central organs and broadening the area for which such organs can produce norms. Constitutional courts can play an important role in the transformation of legal orders without changing the constitution when adopting the interpretative techniques characteristic for constitutionalized legal orders. In unitary states, the ethnic conflict can appear as the result of inadequate responses to ethnic identities and can endanger inter-state relations. The legal policy on the protection of minority rights should consider the historical experiences of the

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community such as a group’s experience of being dominated by other groups, the experience of being governed by law without the rule of law and human rights protection, and the experience of war and occupation. The transformation of non-democratic orders into an order establishing a constitutional democracy is not completed by the introduction of the principles of human dignity, plural democracy, and the rule of law in a constitution. Rather, the transformation requires the internalization of such values and judges play a key role in that process. Judicial decision-making is influenced by ideology. The social dimension of judicial ideology refers to the attitudes towards the protection of minority rights when a judge is in a situation to make a preference between the interests of minority social groups and the collective interests of the majority. In that context, there exist leftist, centrist, and right-wing ideological positions. Judicial ideology can be measured and the results of such research provide important insights for legal policy on the protection of human rights. Importantly, the rights of minorities are directly connected to their status regarding citizenship. Non-citizens, erased persons, or stateless persons living in the territory of a state are limited in their rights. The origins of such situations can sometimes be found in the domination by an ethnic group before the transformation of the legal order, e.g. before the reestablishment of the independence of a state. The doctrine on citizenship based on the principle of continuity of citizenship in the context of state continuity, dual citizenship, and non-recognition of occupation supported by the de facto exercise of power by organs in exile can provide a justification for the establishment of a specific legal status although this status can be problematic for the protection of minority rights. This justification is strengthened when confirmed by the highest judicial organs such as constitutional and supreme courts. The EU has promoted norms on ethnic minorities in its external relations during the enlargement process, although the same standards did not, and still do not, apply to old member states. As a matter of fact, the experience of the enlargement process has had a long-term impact on the rethinking of the EU’s internal values, objectives, and policies. The EU has made important steps on anti-discrimination law, combating racism and xenophobia and hate speech. In addition, the EU has recently focused intensively on the development of the rule of law framework. However, discrimination on the grounds of race and ethnic origin is widespread in Europe, and the rule of law is still problematic for some EU member states. For the EU to function in a proper way, it is important that fundamental values, including minority rights, be uniformly and uniquely interpreted. An efficient EU monitoring mechanism on protection of minority rights is still missing. Without such a mechanism for EU member states, the conditionality policy on the protection of minority rights imposed on the Western Balkans is also problematic since the conditionality policy focuses on these countries “achieving the formal legal requirements while minimizing the effectiveness and application of such solutions in practice”. The forcible displacement of a population by a military government when the land of displaced persons is given to new loyal settlers is today recognized as an atrocity. European history includes the history of atrocities in Europe and other parts

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of the world governed by Europeans. Public monuments and art works are deeply political, and commemorative public art plays an important role in contemporary ethnic conflicts since memorials signify shared symbolic principles which will endure through generations. On the one hand, counter-monuments have been used to memorialize atrocities. On the other hand, many public monuments and memorials for some members of the community signify the domination over their collectives. Counter-monuments and responses to controversial monuments are not comfortable for the public, particularly if the memorial is situated in the same location in which both the perpetrators and victims live. At the same time, a culture of forgetting and denying violations of human rights persists. It is evident that we face many challenges. Our hope is that by grappling with the topics, themes, principles, theories, events, concepts, ideologies, and doctrines identified in this book, we can achieve a better understanding of the issues that must be addressed if we are to successfully adopt and adapt plural democracy in a way that promotes human dignity in the European Union and Western Balkans. Zagreb, Croatia Sarajevo, Bosnia and Herzegovina Barcelona, Spain Rīga, Latvia February 2022

Mario Krešić Damir Banović Alberto Carrio Sampedro Jānis Pleps

Contents

Introduction to Ethnic Diversity, Plural Democracy and Human Dignity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ivan Padjen Part I

1

European Principles and Ethnic Conflicts

Compulsory Adjudication: An Emerging Principle of European Law and the Western Balkans’ Accession to the European Union? . . . . . . . . Mario Krešić

37

Democratic Principle and Nationalistic Aspirations in Plurinational States. A Republican Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alberto Carrio Sampedro

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Individual Identity, Collective Identity and Human Dignity. What Are the Best Models to Accommodate Different Identities? . . . . . . Damir Banović

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Part II

Federalism and Democracy

Constitutional Asymmetry as a Surrogate in Conflict Accommodation or How (Not) to Stabilize a Constitutional System . . . . . . . . . . . . . . . . . 113 Maja Sahadžić A Dêmoicratic Account of the Catalan Case . . . . . . . . . . . . . . . . . . . . . . 127 Ander Errasti López The Role of the Constitutional Court of Bosnia and Herzegovina in Profiling Cooperative Federalism in a Multinational State . . . . . . . . . 153 Harun Išerić

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Part III

Contents

Minority Rights

Protection of Human Dignity, Plural Democracy and Minority Rights in the Case Law of the Constitutional Court of Slovenia . . . . . . . 187 Jernej Letnar Černič Citizenship and State Continuity: The Example of Latvia . . . . . . . . . . . 207 Jānis Pleps EU Minority Conditionality and the Rule of Law: The Case of Croatia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Snježana Vasiljević Provoking Memory: Counter-Monuments and the Expulsion of the Acadians/Le grand derangement in 1755: A Case from Canada . . . . . . . 253 Bruce Anderson and Kim Morgan Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

Editors and Contributors

About the Editors Mario Krešić is assistant professor in the Faculty of Law at the Zagreb University. He holds a PhD in Law, an LLM, and an MA in political sciences. His research interests lie in legal theory, international law, constitutional theory, and human rights. Selected publications: Process, consequences and means of (de)constitutionalization: a reconstruction of Guastini’s concept of constitutionalization; Legal consciousness and the (de)constitutionalization of the legal order; The role of peace in Kelsen and Lauterpacht’s theories of international law; Ross’s concept of legal consciousness and deliberate normative change; The concept of the quasijudicial process in international law; National or international adjudication as an essential element of international law?; Implementing Kantorowicz’s and Hart’s definition of law in international law; and Legal theoretical models of international law by Kelsen, Lauterpacht and Ross. Damir Banović (1983) is an assistant professor at the University of Sarajevo – Faculty of Law (Public and International Law Department). He teaches introduction to law, philosophy of law, and comparative federalism. His main research focus is on contemporary socio-legal theory, theory of collective rights, minority rights, consocialism, and comparative federalism. Alberto Carrio Sampedro has PhD in Law (University of Oviedo), MA in Law of Sports, and MA in European Advanced Studies. He is currently Senior Lecturer in Legal Philosophy at the Law Department of the Universitat Pompeu Fabra (Barcelona). Previously, he was a pre-doctoral fellow at the Spanish Parliament and the Spanish Agency of Cooperation (Spanish Foreign Office). Dr. Carrio has published several academic papers in legal theory, constitutional law, rule of law, rules of sports, equality and fairness in sports, sport governance, and the impact of new technologies and AI in sport. He is currently Deputy Director of Fair Play, Journal of Philosophy, Ethics and Sports Law, Director of the Centre of Innovation at the xv

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Editors and Contributors

Department of Law, and the Coordinator of the Permanent Seminar of the Legal Clinic of the Pompeu Fabra University. Jānis Pleps is assistant professor in the Faculty of Law at the University of Latvia. His research interests lie in legal theory, constitutional law, and legal history. Selected publications: Human Dignity in Latvia (co-author); The constitutional foundations of the Republic of Latvia; The Law of the Baltic States (co-editor); The continuity of the constitutions: the examples of the Baltic states and Georgia; and Role of the Latvian Central Council’s practice in interpretation of the Constitution of Latvia.

List of Contributors Bruce Anderson Saint Mary’s University, Halifax, NS, Canada Damir Banović Public and International Law Department, Faculty of Law, University of Sarajevo, Sarajevo, Bosnia and Herzegovina Jernej Letnar Černič European Faculty of Law and Faculty of Government and European Studies, New University, Ljubljana/Kranj, Slovenia Harun Išerić Public and International Law Department, Faculty of Law, University of Sarajevo, Sarajevo, Bosnia and Herzegovina Mario Krešić Legal Theory Department, Faculty of Law, University of Zagreb, Zagreb, Croatia Ander Errasti López Political and Administrative Sciences Department, Faculty of Law, University of Barcelona, Barcelona, Spain Kim Morgan Department of Fine Arts, Nova Scotia College of Art and Design, Halifax, NS, Canada Ivan Padjen University of Zagreb, Zagreb, Croatia University of Rijeka, Rijeka, Croatia Jānis Pleps Department of Legal Theory and History, University of Latvia, Rīga, Latvia Maja Sahadžić Faculty of Law, University of Antwerp, Antwerp, Belgium Alberto Carrio Sampedro Department of Law, Legal Philosophy Area, Pompeu Fabra University, Barcelona, Spain Snježana Vasiljević Department of European Public Law, Faculty of Law, University of Zagreb, Zagreb, Croatia

Introduction to Ethnic Diversity, Plural Democracy and Human Dignity Ivan Padjen

Abstract The problem, identified by the invitation to the workshop “Ethnic Diversity, Plural Democracy and Human Dignity” of the 20th IVR Word Congress in 2019, is tensions between ethnicity and statehood in Europe that threaten fundamental European institutions: human dignity, plural democracy, and the state itself. The problem is prompted by ethnic conflicts and populist isolationism and aggravated by globalization and the disunity of Europe. The convenors have suggested definitions of key concepts and accompanying hypotheses. This introduction states them and outlines at some length the guiding ideas of the invitation. They are religious dimensions and interpretations of the problem; international legal limitations of self-determination by secession; the need for a revival of the theory of law and state. This introduction briefly relates the essays in this volume to the concepts, hypotheses and ideas.

1 The Problem Tensions between ethnicity and statehood in Europe threaten fundamental European institutions: human dignity, plural democracy, and the state itself. The problem is prompted by ethnic conflicts and populism, and aggravated by its political context.

1.1

Ethnic Conflicts

Ethnic conflicts in Europe are at least latent in international relations. Even European nation-states made of peoples (like France1) rather than ethnicities are commonly 1

Minogue (1967), pp. 33–52.

I. Padjen (*) University of Zagreb, Zagreb, Croatia University of Rijeka, Rijeka, Croatia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_1

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I. Padjen

identified with their ethnic name-sakes. A conflict is often active between the home country of an ethnic community and the country where adherents of the same community are an ethnic minority. Continuing conflicts of low intensity are a constituent of multi-ethnic states, which consist de facto and/or de jure of ethnic majorities and minorities or of two or more co-equal ethnic communities. Such conflicts, paradoxically, may intensify when diversity is declining with acculturation or assimilation of a minority, as was the case with antisemitism in Central Europe in the nineteenth and twentieth centuries. Diversity in ethnic self-understanding escalates into meta-conflicts that reinvigorate original ethnic conflicts. Ethnicity and nationality are commonly considered east of the Rhine as identical and west of the Rhine as different.2 But even in western social sciences it is sometimes maintained that it is enough for an ethnic community to promote “the interest in attaining, preserving, or restoring the conditions of political independence or sovereignty” to be “conceptualized as a ‘nation’”.3 If they are identical an ethnic community that understands itself as a nation is likely to seek self-determination on the territory it inhabits irrespective of state borders. Thus the Arbitration Commission of the Peace Conference on Yugoslavia was asked the following question: “Does the Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?” The Commission answered the question in its Opinion no. 2 of 20 November 1991 by stating that “the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise”.4 The question is misleading; the proper English or west-of-the-Rhine translation of the word narod in Yugoslav constitutions is an ethnic community rather than either a people or a nation.5 Nonetheless, the answer is correct under both international law and Yugoslav law. The answer does not deny that the right to self-determination as an independent state belongs to a people. But the answer implies that a people is defined by (inter alia) territorial boundaries.6 The right cannot belong to an ethnic community as such, one reason being (inter alia) a lack of territorial boundaries. Hence “an ethnos (i.e. a group with the same heritage, language, culture, etc.) can become a nation only by first transforming itself into a demos (a group with the same habitual residence who recognize themselves as equals and unite into a body politic)”, i.e. a people.7 In some areas of Europe conflicts are occasionally cataclysmic. Eight wars were fought for territorial gains largely on ethnic grounds in the area of former Yugoslavia

2

Greenfeld (1993). E.g. Jackson (1984), p. 211. 4 International Legal Materials (1991) 31:1497–1498. 5 Trbović (2006), abstract, points out historical background of the question by noting “Unlike Serb nationalism centred on people, Croat nationalism was mainly territory-related.” 6 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) UNGA Res. 1514. 7 Padjen (1997), p. 352. 3

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in the twentieth century: 1912–1913, 1913, 1914–18, 1941–45, 1991, 1990–95, 1992–95, 1996–99. It is this record that explains the mixed reactions in the West to the attempted land swap between Serbia and Kosovo, that is to include within each entity its ethnic adherents who are inhabitants of the other entity. Other groups in conflicts in Southeast Europe today include Bosniaks, Serbs and Croats in Bosnia and Herzegovina; Albanians in Montenegro, Serbia, Macedonia, Bulgaria and Greece (the last two states having a long dispute with Macedonia not over a territory or people or assets, but over the identity and the name respectively). Two western European states, Spain (Catalonia, the Basque Country) and the U.K. (Scotland, Wales), are occasionally on the verge of breaking-up largely on ethnic grounds, too. Several former socialist republics are coping with sizable Russian minorities: Moldova, Ukraine, Estonia, Latvia. Armenia and Azerbaijan have even had an armed conflict over Nagorno Karabakh. Hungary has been disputing its borders defined by the Trianon treaty of 1919 and the status of Hungarians in Slovakia, Ukraine, Romania and Serbia. Although it is not a concern of this volume, closely linked to its focus are new— and often raging—ethnic conflicts that arise between nationals, immigrants and refugees in economically advanced European countries.

1.2

Populist Isolationism

Populism, whose main feature is isolationism (Trump, Brexit, etc.). has developed from the frustration of common people with decades of exports of financial capital, economic stagnation, unemployment linked to immigrant workers and imported goods, erosion of traditional culture, and the sheer unresponsiveness of mainstream political institutions. The frustration is now being saturated with the “new normal” way of life imposed to prevent the COVID 19 pandemic. While populism is rooted in the social strata affected by globalization, its neo-Nazi offshoots in Europe and white supremacism in the US merge easily with entrenched ethnicisms.

1.3

Globalization and Disunity

Globalisation is producing a new world order. The centre of economic, political and military might is moving from the West towards China and India. At the same time, horizontal balance of power, which takes it for granted that international relations are anarchy without international authority, tends to prevail over the vertical balance, which presupposes internationalism, i.e., states whose borders are determined by a law superior to their own.8

8

See Popović (2013).

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European states are taking part in globalization more as separate entities, each pursuing its own strictly national interests, rather than a continent firmly positioned in the emerging world order. Hence Europe is again a polygon of forces, wherein even ethnic pretexts are used to cripple existing states. A case in point is the fate of Serbia and Ukraine. The United States’ boost to Kosovo’s secession in 2007 could have been justified under international law 10 years earlier (see Sect. 4), when Serbian forces were terrorizing and expelling Kosovo Albanians on a massive scale. Now it is paralleled by the Russian annexation of Crimea, support to Russian seccessionists in Donbas, and full-scale war against Ukraine, reviving the “word politics” invented by the USA and emulated by the USSR in the cold war.9 The COVID-19 pandemic, 2020-, has demonstrated both the strengths and weaknesses of the EU. Most EU member-states have found enough power to keep the pandemic in check, each within its own borders; but the EU as a whole has failed to secure vaccine for everyone by either producing it or importing it in time. This failure reveals the construction defect of the EU. It was created to prevent wars between France and Germany through economic and political cooperation under the USA political leadership and military might. The superpowers of today, i.e., USA, China and Russia, are self-sufficient in technology, including medicine, largely due to vast expenditures on defence research and development. They give them the cutting edge in economy and, as the COVID pandemic demonstrates, even public health. Prior to the pandemic public health was an invention and property of Western European welfare states, which had been out of reach of the three superpowers (partly due to their arms race). If the EU, which boasts the largest economic market in the world, cannot become a self-sufficient society, its member-states should either follow the UK or strengthen their union. The initiative that has resulted in this volume assumes the latter option.

2 Concepts and Hypotheses The invitation to the special workshop “Ethnic Diversity, Plural Democracy and Human Dignity” of the 29th IVR World Congress: Dignity, Democracy, Diversity, in Lucerne, 2019, whose main results are published in this volume, characterized the problem as primarily conceptual but with due regard to historical experience. The prospective participants were invited to clarify, within legal scholarship and/or a related discipline (politics, sociology, psychology, philosophy, etc.), the key concepts, such as the following (non-obligatory hypotheses are added for orientation): (a) Democracy is a rule by the people, consisting of individuals. In a plural democracy individuals also form groups with different political cultures: ethnic, religious, class, etc. An individual has the right to inhabit—and leave—a certain

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Franck and Weisband (1972).

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(b)

(c) (d)

(e)

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territory. The function of that right is a market society, which requires a nationstate as its regulator. An ethnic community is rarely territorial. Hence it has less potential than a people and its individuals in both public law (regulating politics), and private law (regulating market exchanges). Adjustment of state borders to ethnic boundaries, if doable, is likely to provoke ethnic cleansing, i.e. grave violations of human dignity. If one feature of social life, e.g. ethnicity, is dominant, diversity in it is an insurmountable obstacle to democracy. Legal regulation can succeed only if it is recognized that such features are dangerous because they are discriminatory against others. Hence legal regulation both presupposes and imposes differentiations of social life into features that unite (a land, a territorial unit; a people, a nation; a single market, a fiscal and monetary system; nationality, citizenship, constitutional loyalty; etc.) as well as divide individuals and groups. Legal regulation of ethnic diversity includes, inter alia: (1) national law institutions that (1.1) strengthen the rule of law to the benefit of individuals as well as groups (e.g.: laws concerning political parties; the review of administrative actions by the administration, prosecution and judiciary); (1.2) protect the interests of ethnic communities by constitutionally guaranteed rights and the separation of powers (territorial: symmetric and asymmetric federalism, federalization of foreign affairs, representation in local executives, etc.; personal: recognized ethnic communities, dual citizenship, affirmative action, etc.; procedural: consensus, veto, etc.); and (2) international law, multilateral and bilateral (peace and security versus self-determination; compulsory adjudication; borders; minorities; etc.).

The guiding ideas of the invitation, which seem to be compatible with (though not all shared by) contributions presented at the special session and edited in this volume, are as follows: religious dimensions and interpretations of the problem (Sect. 3); international legal limitations of self-determination by secession (Sect. 4); the need for and revival of theory of law and state (Sect. 5).

3 Religious Dimensions Interpretation of religious dimensions of the problem may reveal both plausible solutions and aggravating circumstances of the tensions between ethnicity and statehood. The interpretation offered here presupposes the ideal type concept10 of religion as the human fabrication of the sacred (ideally distinct from faith, which Christians today consider to be surrender to God’s mercy11) and as such is an

10 11

Weber (1949). Due to Barth (1933), pp. 37, 39 f, 126 and passim.

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elementary form of social life identified by Durkheim in statements such as the following ones: “Religion holds within it, from the very beginning, but in a muddled sort of way, all the elements that have given rise to the various manifestations of collective life”;12 it is “[b]efore all, [. . .] a system of ideas with which the individuals represent to themselves the society of which they are members, and the obscure but intimate relations which they have with it”;13 it is “a unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden – beliefs and practices which unite in one single moral community called a Church, all those who adhere to them”.14 Ethnic communities are virtually proto-religions in Durkheim’s sense. It should be useful to have a closer look at the impact that religions, legally recognized or not,15 have exerted on human dignity (Sect. 3.1) and ethnicity (Sect. 3.2).

3.1

Human Dignity

As pointed out in the opening line of this Introduction, human dignity is one of the fundamental European institutions that are threatened by tensions between ethnicity and statehood. While its legal status is firmly established,16 its meaning is a subject of controversy. The source of the contemporary meaning of human dignity is commonly ascribed to Kant’s view that it is rational moral law that requires respect for human dignity by treating every human being always as an end and never as a means.17 Even Christians do not note18 or barely note19 Pico della Mirandola’s claim that man has dignity because God created in his image man as a unique being possessing free will to fashion himself in the form he prefers.20 A Polish philosopher of law argues that Aquinas’s characterization of human dignity, despite

12

Durkheim (1980), p. 54. Durkheim (1964), p. 225. 14 Durkheim (1964), p. 44. 15 Padjen (2010). 16 The Universal declaration of human rights (1948) UNGA Res. 217A. Preamble; International covenant on economic, social and cultural rights (1966) UNGA Res. 2020A. Preamble; International covenant on civil and political rights (1966) UNGA Res. 2020A. Preamble; The Charter of fundamental rights of the European Union (2000) Official journal of the European Communities C, 364/1 (18.12.2000). Preamble; Basic Law for the Federal Republic of Germany (1949), Article 1. http://www.gesetze-im-internet.de/gg/BJNR000010949.htm; Poland’s Constitution (1997). Article 30. https://www.constituteproject.org/constitution/Poland_1997.pdf. 17 Kant (1783) Zweiter Abschnitt. 18 Siedentop (2014). 19 E.g. Pico della Mirandola (n.d.). 20 Pico della Mirandola (1956), p. 7 et passim. Comp.: Villey (1969), pp. 140–141; Siedentop (2014), ch. 23, God’s Freedom and Human Freedom Joined: Ockham, 306–320. 13

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fundamentally different systematic contexts, is similar to Kant’s view;21 driving to the conclusion that “[t]reating a person as an end (in oneself) does not exclude the recognition that he is a part of a certain whole, which is also an end in itself; in Plato’s thought it is the universe”.22 A major issue at stake, which divides religious and non-religious thinkers today, is whether the human embryo counts as human.23 Leaving aside the controversy, the suggestion here is that a look at religious dimensions of human dignity (which may, but need not, presuppose faith) has a practical as well as a heuristic value. The reason is that the interpretation, which follows, points to parallels between the relationship of humans to God, as narrated by the Bible, and the relationship of humans to both ethnic communities and nationstates. A human has dignity that is not merely secular but sacred, since God created man and woman in His image.24 Already for that reason, dignity is not just an immutable Wuerde,25 but a status or rank.26 Although under international law today all humans are of the same rank, some national laws treat unborn humans as partaking in the rank27 while others do not but protect a human fetus of certain age and maturity.28 The discrepancy indicates that humans may not be de jure, let alone de re natura, all of the same rank after all. The modern state is the secular god.29 This is a reason more for ethnicists, who refuse to accept that the state is national and cannot be ethnic (see Sect. 1), and consider their ethnic community by its very nature predestined to become a state. Just as God consists of three persons—but not of three individuals—a human being is not an isolated individual but a person, i.e. a complex of social relationships.30 As stated also by Aristotle, “it is evident that the state is one of the things that exist by nature, and that man is by nature a political animal”;31 since “the state is made up of households [. . .] we should begin by examining [. . .] the relation of master and servant, the marriage relation, and thirdly the paternal relation”.32 This is why ethnic diversity and statehood cannot be reconciled by a plain liberal democracy. It is a political community of isolated individuals, which recognizes as

21

Piechowiak (2010). Piechowiak (2019), p. 256. 23 Human Dignity and Bioethics (2008). 24 Genesis 1:27. 25 Kant (1783). 26 Waldron (2007). 27 E.g. BBC NEWS (2021). 28 E.g. Roe v. Wade, 410 U.S. 113 (1973). 29 Esp.: Hobbes (1968), ch. 17:13; Hegel (2001), par. 258, p. 197; Schmitt (2005), ch. 4, pp. 36–52; Kelsen (1923). 30 Radcliffe-Brown (1952), pp. 193–194. 31 Aristotle (1885), 1253a1-3. 32 Aristotle (1885), 1253b1-11. 22

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legal entities only the ones chosen freely by the individuals. Thus in the USA a corporation has the right to freedom of expression as if it were a natural person33 while a community of Afro-Americans or Hispano-Americans does not have it. Reconciliation can be achieved only by secularizing both the states and ethnic communities, i.e. by minimizing their divine pretensions. However, not at the cost of desacralizing human dignity. It can coexist with the state only if a human owes allegiance to all the communities she or he happens to belong to, and above all to mankind. Thus reconciliation of statehood and ethnicity presupposes the dignity of divine-like human natural persons, on the one side, and universal law, whose nearest approximation is international law, on the other, and between the two poles a variety of institutions of plural democracy, which is largely inherited but reinvented piecemeal on a day-to-day basis. Self-determination of ethnic communities balanced by universalization of human dignity, even if it is realized, is a slow and non-linear process. Its promising operationalization is Lasswell’s and McDougal’s definition of human dignity as “the widest possible shaping and sharing of all values”,34 which is close to both social liberal democracy35 and Catholic social teaching.36 If institutions of plural democracy cannot accommodate both ethnic diversity and the existing states, the reason is likely to be the underdevelopment of international law and/or desacralization of human dignity, each of which hinders the identification of individuals with mankind. The EU is a special case. In it the reason might be the presumption that a conflict of constitutional government powers and constitutional human rights within a member-state are matters of its domestic jurisdiction.

3.2

Clericalism and Culturalism

While sacralization of man may be indispensable to plural democracy, it is hardly attainable by the post-modern subject, who has abandoned Judeo-Christian morality and finds law unresponsive to her pain.37 While religious revival may be tempting, it cannot be a remedy. Central and Eastern European ethnicisms have been instigated largely by churches. Their officials, by virtue of their education and vernacular, played a

33

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Comp. Emberland (2006). McDougal et al. (1980), pp. 377–378. 35 Meyer (2005), p. 592. 36 Granfield (1967), pp.380–383. 37 Comp.: Glatzer (2002), p. 86, the summary of Margaret Susman’s interpretation that Franz Kafka’s main concern is Job’s suffering and guilt before God who is concealed, “And yet it is He alone of whom every book, every line of Kafka speaks”; Conklin (1998), p. 2, the finding that Kafka in The Trial “explosively exposes. . .the violence of the modern legal discourse”. 34

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leading role in ethnic awakenings in the eighteenth and nineteenth centuries; and used them to retain political power and oppose the separation of church and state.38 The increasing threat today is culturalism (aka left-liberalism, evolved from political correctness), which has the structure and function of a religion: it is a polyanthropism modelled on polytheism wherein each individual is for herself. Hence it is bound to engage endlessly in construing moral and political obligation from the putative consent of the individuals. In fact it is, “not unlike Christianity throughout much of its history, determined to proselytize and, moreover, enforce its beliefs and demands by man-made laws”;39 while marketing itself as leftism, “it is an ideology of financial capitalism, [. . .] developed [. . .] primarily by social groups that are neither financial capitalist nor their managers”, which “conceals the interests it serves”;40 it is a simulacrum that provokes a reaction but leaving to it in social imagery only room for an inversion of culturalism, which is filled by populism and ethnicism.

4 Self-determination and Secession According to the Encyclopedia of International Law, which is a sort of communis opinio doctorum Europaeorum, the right to self-determination of a people, while guaranteed by the highest acts of international law,41 includes only in exceptional circumstances the right to create a state by secession. The exceptional circumstances are “an altogether uncertain” title to a land and/or “when a State brutally violates or lacks the will or the power to protect human dignity and the most basic human rights”. But even in the latter case a secession is justified only if it is exercised by “a people conscious of its own identity and settling on a common territory” and only if the people as such is discriminated against and there are no effective remedies in national or international law to rectify the discrimination.42 The Encyclopedia’s reasons can be traced back to the US Declaration of Independence.43 For those reasons, aspirations of an ethnic group, however great, can be materialized in accordance with international law only within a state or states where the group resides. If the group is a minority it can legitimately claim constitutional recognition as a group that enjoys both participation in government (central and/or

38

See Wienzierl-Fischer (1960), p. 110; for Croatia: Padjen (2012). Padjen (2017), p. 142. 40 Padjen (2017), p. 144. 41 E.g. International covenant on civil and political rights (1966) UNGA Res. 2020A. Art. 1 “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 42 Thuerer (1985), p. 474. 43 The Declaration of Independence (1776). https://uscode.house.gov./download/ annualhistoricalarchives/pdf/OrganicLaws2006/decind.pdf. 39

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local) and autonomy in cultural and perhaps some other affairs of interest to the group. Recognition can be granted by a state whose government is not a liberal democracy, such as a socialist federation. If the state is a liberal or, even more so, a social democracy,44 the recognition can advance, in addition to ethnic groups, the state as a whole, enhancing its stability and development. The principle cited and clarified above rules out self-determination by secession in present day Europe, within and (with few exceptions) outside the EU. However, implementation of the principle, especially in a plural democracy, may well result in incremental self-determination. It is state-building that does not put at peril its superordinate state, within which the new state emerges, and/or does not violate international law, which is in a nutshell the border among states. Incremental selfdetermination has occurred in Central and Eastern Europe in the twentieth century several times so that it may be considered a common, if not an established, practice. A reason may well be the fact that east of the Rhine ethnicity is identified with, and termed, nationality (see Sect. 1).

4.1

Austria-Hungary and Versailles

Austria-Hungary (AH), had been one of the most spacious, populous, advanced and, also, multi-ethnic countries in the world at the time of its demise in 1918. The common notion is that conflicts among nations caused its ultimate collapse.45 “On the contrary”, claims a revisionist, “most nationalists sought to attain their goals within the imperial framework”.46 Even in Austria itself, Otto Bauer, later on the leader of the Austrian Social Democratic Party, advocated in 1907 for the transformation of AH as a federation of former crown-lands reconstituted as national entities, with autonomy of their own affairs and special rights of ethnic minorities.47 According to the revisionist, AH disappeared less because of the nationalists who no longer saw the Habsburg state as a viable framework for their nations then because of the Versailles Peace Conference that decided to dismember it.48 The latter explanation is corroborated by Richard Holbrook’s view that the four Balkan wars between 1991 and 1999 had roots in Versailles.49

44

In the sense of Meyer (2005). E.g. Macmillan (2001), chs. 19–20, pp. 315–349. 46 Stergar (2019). 47 Bauer (1907). 48 Stergar (2019). 49 Holbrook (2001), pp. 4–5. 45

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Soviet Union and Czechoslovakia

While Bauer’s solution of the nationality question was studied but rejected by Soviet communists,50 their constitutions have largely implemented it. Stalin explained that a territorial entity can become a Soviet Union republic if it is populous enough, consists mainly of the nationality whose name it bears, and, most importantly, borders a foreign state “to be in position logically and actually to raise the question of secession [. . .] Of course, none of our republics would actually raise the question of seceding from the USSR. But since the right to secede from the USSR is reserved to the Union Republics, it must be so arranged that this right does not become a meaningless scrap of paper.”51 Stalin could make that statement with full confidence in his proclaimed powers, which would have served him even if he did not reign by secrecy and terror. The USSR was ruled by its Communist Party, whose apparatus controlled by law both parties and governments of each and every soviet republic,52 with one notable exception; Russian SSR did not have its own communist party.53 The Party did not need it since Russians made the vast majority of its members.54 Hence erosion of the Party by perestroika and glasnost in the late 1980s, which were a belated attempt to salvage Soviet socialism, left governments of Soviet republics as the only viable political institutions. They were prepared to act as states. At the time the Party was still firmly in command, the republics administered not only social services but also important economic affairs, since many of them were outside the purview of central planners of the USSR.55 As could have been expected,56 it was the Baltic republics that first declared independence. A nationalist may find it inexplicable that the Russian SSR initiated dissolution of the USSR.57 While it was an expedient to get rid of the USSR leadership, it safeguarded the Russian majority from a rapidly increasing non-Slavic population. Thus the peaceful withering away of the USSR vindicated those who had found the statehood of Soviet republics serious enough to be worthy of academic study.58 Czechoslovakia, which was created in 1918 as a unitary state and transformed into a federation only in 1969, also dissolved peacefully, in 1993, to the regret of many.59

50

Pipes (1968), pp. 34–49. Stalin (1936). 52 E.g.: Feldbrugge (1986), Barry (1986), Zamaschikov (1986) and Smith (1986). 53 E.g. Reshetar Jr (1978), p. 112. 54 See: Pipes (1968), p. 278; Scott (1965), p. 168. 55 Gregory and Stuart (1981), pp. 121–122. 56 See Brown (1974), pp. 76–78. 57 The Belavezha Accord Signed (1991). 58 E.g. Uibopuu (1975). 59 Engelberg (1993). 51

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Yugoslavia Without Communism?

The fact that the USSR did not survive both glasnost, i.e. political liberalization (open government, freedom of expression) as well as perestroika, i.e. economic liberalization (more market) while the People’s Republic of China has not only survived but also thrived on its own version of perestroika without glasnost, raises the counter-factual question whether Yugoslavia could have survived without communism. Croatia’s path to independence, which indicates that a federation depends on the commitment of its subjects, may provide a clue. The first Yugoslavia (1918–43) was constituted as a unitary state and began a transformation into a federation in 1939.60 The second Yugoslavia (1943–1991), ruled by Josip Broz Tito till 1980, started as a Soviet-type federation but transformed gradually61 into a socialist semiconfederation in 1974. Its constitution was adopted and could be changed by consent of all the federal units.62 It was as if the Constitution of 1974 was implementing the proposal that the Yugoslav pre-WWII democratic and anti-communist leaders in emigration agreed upon in 1963.63 The Croatian commitment to Yugoslavia had not been ruined by Serbian policies of re-centralization of Yugoslavia,64 not even after the Serbian communists, to gain support of extreme Serbian nationalists, had ousted, by the self-styled anti-bureaucratic revolution, relative moderates from the leadership of Serbia and three other federal units in 1987–1989.65 A public opinion poll conducted in Croatia early in 1990, before the first multi-party elections in Croatia, found that prospective voters were still supportive of Yugoslavia (37.68% as a federation; 51.66% as a confederation; only 10.66% held Croatia should be independent;66 significantly, 54.41% held that the party of their preference is offering the most acceptable solution for linkage to, and cooperation with, Europe67). The following events preceded a substantial change of Croatian public opinion: Serbia instigated the armed insurrection of some Croatian Serbs in August 1990;68 adopted a constitution that authorized Serbia to rebuke acts of the Federation or other republics detrimental to Serbian rights and interests in September 1990;69 and— after a creeping Serbian conquest of the Yugoslav Army in the 1980s—Serbia used Šlabek (1991). Hondius (1968). 62 Ustav Socijalističke Federativne Republike Jugoslavije (21. veljače 1974.). Art. 398. Službeni list SFRJ, 9/1974. 63 Nacrt prijedloga demokratske alternative (1963). 64 Miletić (n.d.). 65 See: Vladisavljević (2008) and Grdešić (2019). 66 Grdešić et al. (1991), pp. 199–200, responses to the question 59. 67 Grdešić (1991), p. 195, responses to the question 36. 68 Anastasijević (n.d.). 69 Ustav Republike Srbije (28. septembar 1990.). Art. 135. Službeni glasnik Republike Srbije, 1/1990. 60 61

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the Army to overtake by a putsch the Yugoslav collective Presidency in March 1991.70 After these events the Croatian electorate in a referendum of 19 May 1991 voted by an overwhelming majority for the independence of Croatia, but still with optional membership in a Yugoslav confederation. (83.56% of the total number of registered voters; as opposed to 4.15% of the voters who voted against.71) By that time Yugoslavia had been already in the process of dissolution.72 Nonetheless, one last proposal was made to revive Yugoslavia by Croatia, together with Slovenia, during the suspension of their declarations of independence in the summer of 1991. The proposal was of a treaty to continue Yugoslavia as a fully-fledged confederation.73 Even if the proposed treaty served merely to facilitate independence and prevent a war, and in addition foster a joint entry into the European Communities, it would have been beneficial also to other federal units, which had turned it down. The ensuing wars (1991–95, 1992–95, 1996–99) have damaged them, too, and kept them out indefinitely from the EU (Slovenia and Croatia joined the EU in 2004 and 2014 respectively). Croatia, too, came out of the process with self-inflicted political and legal wounds. It “has on more than one occasion traded the role of a victim of Serbian fascism for the role of Serbia’s accomplice”.74 In addition, Constitutional Decision of Sovereignty and Independence of the Republic of Croatia of 23 June 199175 (suspended until 6 October 1991) “is not balanced in at least two ways. First, the preamble is not clear about what counts as the nation that is entitled to selfdetermination. Secondly, by mentioning self-determination as the first and sufficient ground of Croatian independence the Constitutional Decision uses a justification that is by no means universally accepted in contemporary international law”76 (see Sects. 1.1 and 4). The path sketched above indicates that communism in the Second Yugoslavia was not an instrument of, but a bar to, hegemony of one or a few ethnic communities and/or (con)federal units. As Marko Grčić, a Croatian man of letters and journalist, has put it succinctly, “Tito used the Constitution of 1974 to chain, as if to prison balls, Croatia to Croatian Serbs, and Serbia to the autonomous provinces” (i.e. to Vojvodina and Kosovo, which under the Constitution of 1974 remained provinces of Serbia, but with more competence over Serbian affairs than vice versa, and became

70

Hoare (n.d.). Croatian Parliament (n.d.) 19 May 1991 – Croatian independence referendum; https://www. sabor.hr/en/about-parliament/history/important-dates/19-may-croatian-independence-referendum, accessed on March 15, 2021. 72 Arbitration Committee of the Peace Conference on Yugoslavia (20 November 1991) Opinion no. 1. In: International Legal Materials (1991) 31:1497–1498. 73 Nacrt Ugovora o jugoslavenskoj konfederaciji – Savezu jugoslavenskih republika (1991), pp. 166–175. 74 Padjen and Matulović (1996), p. 67. 75 Ustavna odluka o suverenosti i samostalnosti Republike Hrvatske (23. lipnja 1991) Narodne novine, 31/1991. 76 Padjen and Matulović (1996), p. 57 f. 71

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also federal units of Yugoslavia). Hence it may be tempting to explain that it was the disappearance of Tito, rather than of communism, that brought peril to Yugoslavia. The explanation is parochial. Tito, known to his contemporaries as the last reigning Habsburg, did, by his longevity, Yugoslavia the service comparable to the one rendered by Franz Joseph I to the Austrian Empire by ruling it from 1848 to 1916. But it was the cold war that had exhausted Soviet communism, including its Yugoslav branch. Moreover, as noted by Richard Holbrook, the end of the wars he negotiated between Serbia, Croatia and Bosnia and Herzegovina in 1995 was burying another part of Versailles, and in the spring of 2002 the last part, i.e. Yugoslavia, changed its name into Serbia and Montenegro “probably a way station on the path to full separation”77 (officiated, indeed, in 2006). As for China, the appropriate counter-factual is whether it would have achieved its economic greatness since 1978 had it not been for the financialization and globalization of Western capital that deprived Western citizens of their states as well as jobs.78 Which brings the problem of this volume back to its international context, legal as well as political.

5 Theory of Law and State Sections 2–4 above indicate a framework of inquiry within which it may be possible to acquire knowledge serviceable to finding a solution of the problem of this volume. Section 2 lists concepts and hypotheses, which end up with national constitutional law and its functional equivalent in international law. Section 3 states inter alia that the need to reconcile statehood and ethnicity presupposes “dignity of divine-like human natural persons” and “universal law, whose nearest approximation is international law”. Section 4 delineates cases of incremental self-determination, which have not put at peril existing states and/or violated international law as the border among states. It will be convenient to state briefly criteria that a framework of inquiry should meet to be useful to the task at hand (Sect. 5.1), how and why the mainstream conceptions of law and legal scholarship are short of meeting the criteria (Sect. 5.2), and tenets of Hans Kelsen’s theory of law and state that can be adapted and used for the task (Sect. 5.3).

77 78

Holbrook (2001), pp. 4–5. van Creveld (1999), pp. 336–421.

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Criteria for Legal Scholarship

A framework of inquiry that can be instrumental in acquiring relevant knowledge is a legal scholarship whose theory conceptualizes law along the following lines: (aa) A standard of conduct (rule, value, principle, nature of thing, etc.) can be legal if it regulates observable and coercible actions that are heavily laden by conflicts of interests and critical to the existence of a social group.79 (ab) A set of standards is legal if it is on the whole effective. Since there cannot be a universal criterion of effectiveness, the most reliable indicators of effectiveness are implementation by peaceful settlement, primarily adjudicative, and/or enforcement by adjudicative, administrative, diplomatic, disciplinary, economic, religious, ideological or other coercive instruments, including socially restrained self-help. (ac) Objective sources of law are all-encompassing like Justinian’s Codex, which was received on the assumption that it was ratio scripta valid ratione imperii,80 or customary law,81 which is still the only plausible source of international law. (ad) Law is a plural complex of mutually competing orders, most notably international law, trans-national laws (e.g. the EU), national laws, and sub- or paranational laws (esp. of peoples). Law as a legal order is a relatively autonomous legal institution that comprises a set of other legal institutions. (ae) Subjective sources of law are humans and their groups, the most important ones being states, but they are not exclusive sources of law, even less outside and above law (contrary to natural rights theories or statist theories). (af) The application of a legal standard of conduct is inevitably the creation of law. (ag) Certainty, which is a basic value inherent in law, requires application of law that creates as little as necessary. (ah) The legal protection of human dignity to the highest degree that can be mutually agreed upon by a plural democracy is a basic legal value. A framework of inquiry that can be instrumental in acquiring relevant knowledge is a legal scholarship whose methodology has the following tenets: (ba) Since a legal phenomenon, as any other social phenomenon, is unique, it can be conceptualized, justified and explained by ideal types only, which are more or less useful for the purpose at hand rather than being true or false.82 (bb) Law can be identified analytically only, i.e. by understanding the meaning of legally relevant communication. (bc) Law can and should be explained causally, not only to link legal standards with their conditions and consequences into a legal order that is inherently social but

79

Visković (1982), par. 38, pp. 83–84. Koschaker (1953), p. 109. 81 Fikentscher (1975), p. 5. 82 Weber (1949), esp. pp. 72–110. 80

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also, by doing that, reidentify it.83 For instance, the explanation that a communist party (as a personal legal order) has absorbed the state (a public legal order), which had in turn absorbed economy (a private legal order), may reidentify the party as a state without overstretching legal scholarship let alone law. The ABMT was signed on behalf of the USSR by Leonid Brezhnev in the capacity of General Secretary of the Central Committee of the Communist Party of the Soviet Union,84 even though he was at the time the head of the USSR, empowered to conduct foreign affairs. (bd) Legal theory, as a function of legal scholarship that formulates basic legal concepts and propositions (justifications, explanations) as ideal types is useful if it relates them to legal dogmatics (a choice, interpretation and systematization of law85), legal history and legal policy, thereby creating integral legal scholarship. (be) Legal scholarship can perform its constructive tasks if it is critical, that is by inquiring into the presuppositions and realities of law, particularly in legal ideologies and disorder in law.86

5.2

Mainstream Legal Scholarship

Mainstream legal scholarship today is far from meeting the criteria of 5.1.aa–be. It is separated from the study of the state, which has been relegated to political science only to be dismissed as a subject-matter unsuitable for scientific study.87 A revival of the study88 passes in silence over the question not only what the state is89 but also how a state can be identified, i.e. recognized. Thus the separation leaves intact the assumption of legal scholarship that law is a command imposed by the sovereign which is above law.90 It follows a contrario that international law is “improperly so called”, because it is “enforced by moral sanctions”.91 By the same token sub-national and para-national laws are not laws properly speaking. The mainstream Anglo-American legal scholarship, which conceptualizes law as what the state courts do, takes the assumption for granted.

83

See Von Wright (1971), p. 134. Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, done in Moscow, May 16, 1972. https://fas.org/nuke/ control/abmt/text/abm2.htm. 85 Herberger (1981); Aarnio (1979), p. 34. 86 Sampford (1989). 87 E.g. Eulau (1963), p. 15. 88 Evans et al. (1985). 89 Giltard (2019), p. 1. 90 Hobbes (1968), ch. 26:4; Austin (1861), lect. 5, pp. 109–167. 91 Austin (1861), lect. 6, p. 177. 84

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This is true even of the H.L.A. Hart’s theory,92 which has allegedly “changed the direction of Anglo-American legal theory”.93 By substituting the rule of recognition, a convention agreed upon by officials to identify sources of law,94 for a command of the sovereign, Hart’s theory has concealed the sovereign behind its agents, who are little else than judges (contra 5.1.ac–ad). The rule of recognition is meant to provide certainty that is hardly attainable (cf. 5.1.af–ag). While Hart has broadened law as command by power-conferring rules,95 which implies that subjects of the sovereign are co-creators of law (similar to 5.1.ae), and has abandoned coercion as a constituent of law96 (similar to 5.1.ab), he has left international law and other possible kinds of laws outside his theory97 (contra 5.1.ad). Hart’s concept of law is an ideal type98 (similar to 5.1.ba). His inquiry into law is a conceptual analysis99 (similar to 5.1.bb). However, by defining the rule of recognition as a convention that is accepted by officials (and “can neither be valid nor invalid”100); and presenting his theory as a “descriptive sociology”101 following Peter Winch102 (who denies any place for causal explanation in social sciences103), Hart has tried to occupy the terrain of interpretive sociology of law and thus immunize his theory against mainstream— naturalized—sociology and, moreover, against social history of law (contra 5.1.bc). Hart’s theory, which is formulated outside the learned law in Continental Europe, is of little relevance to legal dogmatics, legal history and legal policy. The last remark is true also of the European grand theories of law (Luhmann, Habermans, Derrida, Foucault, Bidet, etc.)

5.3

Kelsen’s Theory of Law and State

Hans Kelsen’s Pure Theory of Law and State allows for an interpretation that meets the criteria listed in Sect. 5.1, which are relevant for finding solutions to the problem of this volume. Kelsen’s views are summarized and/or interpreted seriatim.

92

Hart (1961). Green (1996), p. 1688. 94 Hart (1961), pp. 89–96. 95 Hart (1961), pp. 26–48. 96 Hart (1961), pp. 20–25. 97 Hart (1961), pp. 3–4. 98 Hart (1961), p. 17. 99 Hart (1961), pp. 1 ff. 100 Hart (1961), p. 105. 101 Hart (1961), p. VII. 102 Hart (1961), pp. 54 and 242. 103 Winch (1958), ch. ii, pp. 57–65; ch. iii, pp. 84–94. 93

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(aa) “The human behaviour included in a norm; internal or external, action or omission, but always social” is Kelsen’s description of the content of all norms, including the moral ones, such as “Love thy neighbour”, which command internal behaviour104 (similar to 5.1.aa). (ab) Effectiveness is a condition of the existence of norms. The early Kelsen defined law as a coercive order that employs, if necessary, physical force.105 To demonstrate that international law is really law, in the same sense as national law, he interpreted the war that is a reaction against an illegal act as a permitted sanction.106 Kelsen’s last work plays down the function of force by recognizing that a legal sanction may consist in reproach, contempt and similar acts107 (identical to 5.1.ab). (ac) The original objective source of law is the first constitution of a legal order, which authorizes, directly or indirectly, all the other acts and norms of the order.108 The early109 and the late Kelsen110 consider the Basic Norm, which identifies a certain act as the first constitution, to be a fiction, i.e., a presumption that a demanding fact-condition of a legal consequence exists111 (similar to 5.1. ac). (ad) The relationship between international law and national law has been interpreted monistically, by ascribing the primacy to either national law or international law, and also pluralistically, by recognizing that they are co-ordinated legal orders.112 The argument that international law can function as the state implies that the concept of the state is identical with the concept of legal order. According to Kelsen, the ascription of statehood to a single state or international law or every single state and international law is guided by ethical and political preferences and cannot be guided by legal science.113 The relationship between national law and EU law, if not today then tomorrow, can be interpreted by the same token, as a relationship between two legal orders. The same applies to the relationship between national law and social law, such as the law of an insurgent group, a secessionist people, international traders, etc. (similar to 5.1.ad). (ae) Kelsen’s assertion that the function of permitting “is fundamentally connected with the function of commanding”114 is probably his early reaction to Hart’s

104

Kelsen (1991), ch. 23. E.g. Kelsen (1961), pp. 18–20. 106 Kelsen (1961), pp. 328–331. 107 Kelsen (1991), ch. 32. 108 Kelsen (1961), pp. 115 f, 124 ff. 109 Kelsen (1919), p. 1228. 110 Kelsen (1991), pp. 274–275. 111 Kelsen (1919), p. 1228. 112 Kelsen (1961), pp. 363–388. 113 Kelsen (1961), p. 388. 114 Kelsen (1967), p. 16. 105

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(ah) (ba)

(bb)

(bc)

(bd) (be)

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distinction between power-conferring and duty-imposing rules. Kelsen’s last work pays a greater attention to “Empowering: Conferring the Power to Posit and Apply Norms” and points out that “Only the individuals on whom the legal order confers this power can create or apply legal norms”115 (similar to 5.1.ae). The application of law is inevitably the creation of law and vice versa116 (similar to 5.1.af). The certainty of law is not Kelsen’s major concern, as indicated by his perfunctory treatment of interpretation of law117 and his views that a relationship between legal norms is not logical118 (similar to 5.1.ag). Neither human dignity nor human rights is Kelsen’s concern (contra 5.1.ah). Kelsen has presented his theory of law, which does not describe a particular legal order, as an inductive generalization. In fact, it creates its own subjectmatter and, by being constructive, it is evaluative.119 Since the theory is constructive, it can be reinterpreted, without distorting it, as an ideal typical construct (cf. 5.1.ba). Kelsen’s claim that the state, as well as law, can be identified only analytically, by understanding the acts that constitute it as norms,120 can be clarified by dividing it into, first, understanding communication by grammar, which, according to the early Kelsen, is a normative discipline like legal science;121 and, secondly, selecting and understanding legally relevant communication by legal science (identical to 5.1.bb). Kelsen has recognized that law, after it has been identified juridically, can and should be explained empirically and, moreover, engaged in such studies122 (similar to 5.1.bc). Kelsen’s Pure Theory of Law is by intention legal meta-dogmatics, even though separated from legal policy (similar to 5.1.bd). Kelsen’s interpretation of the constitution of international law reveals a salient feature of legal pluralism and reinforces the critical view of disorder in law.123 It is the interpretation that a customary change of international customary law is an illegal derogation of the existing custom and, consequently, a violation or even a change of the constitution of international law (similar to 5.1.be).124

Kelsen (1991), ch. 26. Kelsen (1961), pp. 132 ff. 117 Kelsen (1961) does not contain a chapter on interpretation. Kelsen (1967) contains ch. VIII, “Interpretation”, pp. 348–356, i.e. mere 8 out of 356 pages. 118 Weinberger (1982). 119 Samek (1974), pp. 204–208. 120 Kelsen (1928), pp. 116 ff. 121 Kelsen (1916), pp. 92–93 and 38. 122 E.g. Kelsen (1942). 123 Sampford (1989). 124 Kelsen (1961), pp. 365–370. 116

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6 Contributions to the Volume Editors of this volume have arranged contributions by reversing the order suggested by the Invitation to the workshop “Ethnic Diversity, Plural Democracy and Human Dignity” at the 29th IVR Congress (Sect. 2 above). The volume begins with principles of European law and continues with national institutions of federalism and protection of ethnic minorities. The reversal reflects the idea that trans-national laws as well as national laws are required to alleviate tensions between ethnicity and statehood in Europe, since not only the state (via its borders, which are determined by international law), human dignity (via international law of human rights, which is jus cogens) and also plural democracy—at least in the European Union and Council of Europe—are matters beyond jurisdiction of nation-states.

6.1

Krešić: Compulsory Adjudication

Mario Krešić, the first editor of the volume, in his contribution “Compulsory Adjudication: An Emerging Principle of European Law and the Western Balkans’ Accession to the European Union?” reverses, again, the expected order. He indicates the practical problem, i.e. the state of social affairs that is wanting and could be alleviated by better law, second rather than first. An obvious reason of the reversal is a notoriety of the issue that has prompted him to search for a better law. Krešić identifies his practical problem as “a) the development of EU law and; b) the accession of the Western Balkan (WB) countries – Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia – to the EU.” Krešić mentions the rejoinder of Jean-Claude Juncker, then president of the EU Commission, to the French President Macron, in 2018, that the Western Balkan states should be admitted to the EU membership to avoid another war. Krešić lists a dozen disputes of the Western Balkan states with their neighbours, including member states of the EU, that may require legal resolution before those Balkan states become members of the EU. Krešić’s first problem is theoretical. “It is the applicability of a theoretical tool to the legal phenomenon known as ‘emerging norm’” The succinct statement summarizes aptly the complex argument that, in addition to building the case that supports the contribution’s title, develops the third guiding idea of the invitation to the workshop, which is stated briefly in Sect. 5. Krešić’s contribution assumes that the problem of the volume as well as practical problems of Europe, and of contemporary international law, require bolder legal solutions, which in turn presuppose a more perceptive legal scholarship. Krešić searches for a solution which, to be workable, cannot be radical. It can only be incremental, joining and improving seemingly disparate existing accounts. Thus, Krešić balances the dominant view of law and the reality of laws. On the one side is today’s dominant—Anglo-American— view of law as a command of the sovereign implemented by adjudication and

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sanctioned by organized force. On the other side are realities of trans-national laws, international and European, that according to the dominant view are not laws and for that reason are something to be left to diplomats and academics. Krešić balances the two sides not by discrediting or overstretching the dominant view. Rather, he points out that trans-national laws today, being practiced by lawyers, are similar in operation and function to advanced national laws. The same is true of emerging norms of trans-national laws. The comparison enables him to make a significant step forward in the articulation of an integral legal theory, as the axis of integral legal scholarship. To that end he joins together analytical legal theory, policy oriented jurisprudence and Alf Ross’s realistic theory of law. Krešić’s substantive argument unfolds in three steps. In EU law the principle of compulsory adjudication can be construed as a norm derived from principles protecting the rule of law and peace. Almost all EU member states have accepted compulsory adjudication for all their future legal disputes. New EU members from Eastern Europe have accepted the jurisdiction of the ICJ. Some have accepted arbitration for solving political disputes as defined above. All member states of the EU and of the EFTA have accepted jurisdiction of the International Criminal Court, the European Court of Human Rights and the adjudicative mechanism of the World Trade Organization. Krešić’s policy recommendations on the acceptance of compulsory adjudication by the Western Balkan countries that are joining the EU take into account the heritage of those countries as well as the findings above.

6.2

Carrio: Democracy and Nationalism

Carrio Sampedro in “Democratic Principle and Nationalistic Aspirations in Plurinational States. A Republican Approach” searches for principles of balancing between two types of opposed claims within member states of the EU, with a view of finding a solution to the Catalonian-Spanish issue. The first type are nationalist claims, more precisely demands of a nation within a plurinational state. They are often regarded as a threat to the EU, since there is no right to self-determination of part of a EU member state by secession. The second type are state counter-claims, i.e. responses of a plurinational state within which nationalist claims are raised. The responses can be detrimental to the EU, too. An example of a behaviour of member-states damaging to the EU (by implication, which can hardly be concealed and more detrimental than nationalist claims) is the Hungarian and Polish blockage of the EU budget to deal with the COVID-19 pandemic. The search begins by identifying the possible meeting point of the opposed claims, suggesting that it may be found in the transferred sovereign powers to the EU, the EU protection of fundamental rights, and legal pluralism within the EU. The next step is identification of legitimate political institutions within which a meeting can take place. The foundation of the institutions are mutual recognition, co-operation, and trust. The principal institution is republican democracy. In it there is no

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domination of one group over the others. To that end there is a Restricted Area and a public deliberative process. The issues that cannot be decided upon by a majority make the Restricted Area. In the process all the opinions can be freely discussed. Hence the new issue: is a nationalist claim a part of the Restricted Area? If it is, what are consequences of non-decision? And if it is not, who is the demos to decide on a nationalist claim: the demos whose claim it is or the demos of the plurinational state as a whole? The search ends with a tour de force: both. This is a promising proposition. If the two demoi disagree they have already co-operated and agreed on, first, holding two referenda and, secondly, facing the consequences of three possible outcomes. And the consequence of disagreement, before entering a public deliberative process together, is mutual recognition. Ricoeur argues that mutual recognition is the final stage, which presupposes recognizing oneself.125 Hence nationalists and statists can become capable of mutual recognition only after each group has engaged in soul-searching in its own public deliberative process. Without recognizing and renouncing one’s own pretensions (monopoly of power over a territorialized people) it is not possible to trust that the other is less conniving. Carrio’s principles may alleviate tensions between a state and an ethnic community that has developed not only into a people but a nation, although it has not achieved independence under international law and even statehood under national law. They are principles for the final stage of incremental self-determination. But they are probably beyond the reach of less developed ethnic communities.

6.3

Banović: Collective Identity

Damir Banović, “Individual Identity, Collective Identity and Human Dignity. What Are the Best Models to Accommodate Different Identities?” reviews two conflicting approaches to, and legal regulation of, collective rights, with due regard to rights of ethnic communities. Since collective rights presuppose identities of human collectives rather than of mere individuals, collective identities as such require explanation. It is found in the “identity model” that can be “tracked back to the Hegelian idea that identity is constructed dialogically through a process of mutual recognition”. Thus recognition by the other is constitutive of the self. If recognition is not accorded, the self is injured. The now widespread politics of identity transposes Hegel’s explanation of recognition onto the “cultural” and “political” domains. The politics has resulted in two major policies in the public sphere. The first is recognition of equal rights to all the citizens of a state (e.g. universal suffrage). The second is recognition of distinctness, i.e. the unique identity of an individual or a collective in relation to others. While the

125

Ricoeur (2005).

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pre-1989 discussions were led by communitarians and liberals, the discussions today centre around multiculturalism and divide liberals on the meaning of liberalism. The ideal of multiculturalism is to balance legal protection of both the freedom of individuals and group cultures. “Multiculturalism makes identities ‘political’, regardless of whether they are ethnic, racial, linguistic, gender or sexual, and denounces diversity-blind rules as they can unfavourably impact certain groups”. Banović differentiates four kinds of legal recognition of identity, each resulting in the extension of rights accorded to already recognized individuals or collectives to the newly recognized ones: recognition of an individual as equal to other individuals; recognition of a collective as equal to other collectives; recognition of identity features of an individual that differentiate her from other individuals; and recognition of identity features of a collective that differentiate it from other collectives. A legal expression of multiculturalism is equality and non-discrimination as a basic principle of international law of human rights. It requires political, legal, social and economic equality. The conclusion is that legal recognition does not solve once and for all the tension between identity, which is dynamic, and law, which is static. The tension can be alleviated only if it is accepted that identities are social constructs rather than preordained essences. Hence Banović’s innovative policy proposal: “collective rights [. . .] are acceptable only if they [. . .] protect individuals as actual or supposed members of a collective; [. . .] supplement individual rights; [. . .] enable individual autonomy and human dignity; do not enable a collective to coerce an individual in choosing the appropriate concept of good; [. . .] are temporal; [. . .] subject to temporal and spatial re-interpretation in accordance with [. . .] human dignity and individual freedom”; and subject to re-evaluation of the choices already made and to change.

6.4

Sahadžić: Constitutional Asymmetry

Maja Sahadžić’s “Constitutional Asymmetry as a Surrogate in Conflict Accommodation or How (Not) to Stabilize a Constitutional System” has two aims: to examine the potential of asymmetric federalism to accommodate conflict and thereby maintain stability; to inquire into contemporary views of the stability of multinational federations. There is a stark difference between traditional and contemporary views of federalism. Traditional theory teaches that a federation consisting of two or more approximately equal, i.e. symmetrical federal units is more stable because its symmetry is more resistant to autonomy claims of the units. Centralization and the absence of fragmentation and secessionism are interpreted as stability. In contrast, contemporary theory takes into account the dynamism of federations, constitutional asymmetries and multinationalism as factors of fragmentation. Constitutional asymmetries are seen as features capable of evolving in two opposing directions: facilitation of bargaining within the federation as well as self-determination by secession.

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Unlike federal symmetry, which is often achieved by coercion, federal asymmetry may be a surrogate of conflict and thus maintain stability of multinational states with federal features. Based on this, it is possible to single out several qualities that support stability in asymmetrical multinational systems with federal arrangements: “adaptiveness – since it requires constant fine-tuning of the common interests and solidarity to maintain structural and fiscal balances; trust – since mutual respect ensures fairplay and predictable expectations in the outcomes of structural and fiscal balances; and coordination – since it connects tiers of government and groups together through their common interest to balance the status, distribution of powers and competences, and fiscal autonomy.”

6.5

Errasti: Dêmoicracy and Catalonia

Ander Errasti Lopez, “A Dêmoicratic Account of the Catalan Case” raises four major points. First, debates on the issue of the Catalan status in Spanish democracy are one-sided, over-simplified and unduly technical, instead of being concerned with deeper conceptual and normative aspects. From a legal perspective the issue is reduced to the relationship between, on the one hand, the Spanish Constitution and the Catalan self-government and, on the other hand, Catalan self-determination claims and trans-national laws, international and European (EU, CE). From the political perspective the issue is narrowed down to the political rights of citizens, the preferences of the voters, the relevance of democratic principles and/or the rule of law, competition between parties, etc. Thus the debates demonstrate that a crisis of democracy is sometimes a consequence of an inadequate understanding of politics. Secondly, what is needed is a comprehensive analysis that takes into account at least three contexts of the issue at stake. They are briefly recognition, nationalism, globalism. The principle of democratic equality requires that those affected by the democratic decision-making process are recognized as equals by having a say in the process. Institutional arrangements in Spain, potential as well as actual, do not provide adequate say to Catalan citizens in fiscal, linguistic, international and even symbolic historical matters. The denial of recognition has become increased after the failed process of reforming the Autonomy Statute of Catalonia. While nationalism is an essentially contested concept, for the issue at stake it is useful to define it as “an ideology or political project that defends a) the existence of a given nation or b) the importance of providing that nation with an institutional setting that will grant it the ability to govern itself into the future.” Spanish nationalists consider the Catalan people to be a community in the sense of the constitutional arrangement of 1978 rather than a nation, while Catalan nationalists claim that the Catalan people have been a nation since long before 1978. Accounts of the Catalan case in the global context cherry-pick at will. Opponents of Catalan independence argue that selfdetermination is the right of colonial peoples whose enjoyment by sub-nationalist

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movements cannot achieve the right’s objective, which is avoidance of oppression. Advocates of independence reject the opponents’ argument as unfair since it favours the already self-determined nations. Furthermore, the opponents claim that the independence will increase both ethnocultural oppression as well as homogeneity within the new state and autarchies without common interest in the international community. Advocates of independence retort that there is no empirical evidence of either internal or external risks, reiterating that the opponents unfairly defend their accomplished nationalist project by denying an emerging nationalist project. Thirdly, the theory of dêmoicracy (i.e., to paraphrase Lincoln, theory of government of the peoples, by the peoples, for the peoples; unlike democracy, i.e. a government of the people. . .) balances, on the one side, territorialized popular sovereignty and, on the other, globalised and cosmopolitan justice. The point of the theory is “whether we can conceive the subject that constitutes the demos beyond the nation or, conversely, imagine democracy without a demos or nation”. Although the theory defines the European project, it is still rejected by both nationalists and federalists. The former, following the nineteenth century idea that the substratum of democracy is the demos of a nation-state, regards the EU as an external power that aims to interfere with the domestic jurisdiction of EU member-states. The latter, following the contemporary globalist idea that nationality (as well as religion, race or gender) has become morally irrelevant, considers nation-states to be a burden of European integration. Dêmoicracy, while being closer to federalism, considers both approaches wrong. Dêmoicracy maintains that Europe can be a democracy without a single, European demos since “all the demoi in Europe are fundamental to keeping democracy in Europe”. Dêmoicracy, by advocating unity in diversity, is a “realistic utopia”, which can be materialised only by “pragmatic strategies without falling into cynical positions”. Finally, the potential of dêmoicratic theory to address the Catalan case is indicated by principles of recognition and non-domination and three options of conflictresolution: “the idea of plurinational Spanish democracy, the resource of a European mediation, and the development of a sort of European Clarity Act”. This is a convincing project of incremental self-determination.

6.6

Išerić: Constitutional Court of B & H

Harun Išerić in “The Role of the Constitutional Court of Bosnia and Herzegovina in Profiling Cooperative Federalism in a Multinational State” points out that Bosnia and Herzegovina (B & H) was, according to its Constitution of 1995, one of the weakest federations in the world. It is made of two entities: Federation of Bosnia and Herzegovina (FBH) and Republika Srpska (RS). The Constitution, which is Annex 4 of the General Framework Agreement for Peace in Bosnia and Herzegovina, was meant to be a transitory solution. It has remained in force, since it can be changed only with a consent of the three “peoples” (ethnic communities) recognized by the Constitution, i.e. Bosniaks and Croats (chiefly in FBH) and Serbs (chiefly in RS).

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Nonetheless, B & H has meanwhile developed from a dual to a cooperative federation, largely due to the Constitutional Court of B & H (CC). The essay reviews the CC activities in two areas: the supremacy clause, and the division of competence. Article III.3b of the Constitution states “The Entities and any sub divisions thereof shall comply fully with this Constitution, which supersedes inconsistent provisions of the law of Bosnia and Herzegovina and of the constitutions and law of the Entities, and with the decisions of the institutions of Bosnia and Herzegovina.” The B & H legal system is based on that provision. “Two controversial issues emerged from the Court’s case-law regarding the supremacy clause. First, entities’ duties to comply with the obligation imposed on them through the laws passed by the Parliamentary Assembly and, second, the appellate jurisdiction over decisions of entity constitutional courts”. The Constitution divides competences between B & H and the entities. Thus an entity can exercise only a competence assigned to that entity by the B & H Constitution; and cannot exercise an exclusive competence of B & H or of the other entity. “By the method of positive enumeration, the Constitution lists ten exclusive competencies of B & H institutions: (1) foreign policy, (2) foreign trade policy, (3) customs policy, (4) monetary policy, as provided by Article VII of the Constitution, (5) financing of B & H institutions and international obligations, (6) policy and regulation of immigration, refugees and asylum seekers, (7) enforcement of international and inter-entity criminal law, including relations with Interpol, (8) establishment and operation of common and international means of communication, (9) regulation of inter-entity transport and (10) regulation of air traffic control”. An illustration of CC activism in defining the division of competence is the joint competence of BH and the entities. Although the Constitution does not explicitly provide for the joint competence, the CC recognized the existence of a “common framework or competitive competence of the state and entities”. “Although the legislature has enforced most CC decisions, it has failed to read their reasoning and act on the CC orders outside the dictum itself.”

6.7

Letnar: Ideology in the Court

Jernej Letnar Černič’s “Protection of Human Dignity, Plural Democracy and Minority Rights in the Case Law of the Constitutional Court of Slovenia” is based on the research project “Ideology in the Courts: the Influence of Judges’ Worldviews on their Decisions”. Its aim is to empirically measure the presence of threefold judicial ideology at the Constitutional Court of Slovenia, namely, its authoritarian, social and economic dimension. The project measured how different dimensions of ideology influenced judicial decision-making of the judges of the first three mandates of the Slovenian Constitutional Court. “The present contribution presents and analyses only the results that relate to the social dimension of judicial ideology. The social dimension [. . .] measures whether a

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judge has been more in favour of protecting the human rights of minority social groups or prefers to protect the rights and interests of the majority. The middle ideological position illustrates the balance between the rights of minority social groups and the interests of majority social groups.” “The empirical results illustrate that all three mandates of the Constitutional Court attempted in their decision-making concerning the social dimension of judicial ideology to protect the values of pluralism, tolerance and broadmindedness as the pillar of any constitutional democracy.”

6.8

Pleps: Continuity of Citizenship

Janis Pleps, “Citizenship and State Continuity: The Example of Latvia” presents a cause célèbre of the continuity of a nation-state. Latvia became an independent state in 1918. It adopted its law on citizenship, the only one till the present day, in 1919. Latvia was occupied by the USSR in the summer of 1940 and included by its sovietrun government into the USSR as a soviet socialist union republic in 1941. After the German occupation in 1941–44, Soviet forces reinstated Latvia as a soviet republic till 21 August 1991, when it restored its independence. During all the periods of occupation, i.e. from 1939 till 1991, Latvia had a government and a diplomatic service in exile. “States that pursued the policy of non-recognition (of occupation) and continued to regard Latvia as a de iure still-existing international legal person often recognized the rights of Latvian consular and diplomatic officials to continue their activities representing the interests of Latvia and its citizens. Latvian embassies in Washington, D.C., and London, and for a shorter period embassies in Buenos Aires, Geneva, Rio de Janeiro and Madrid, as well as numerous other consulates, continued to operate without interruptions throughout the period of occupation”. “After the restoration of independence, Latvia has deliberately maintained that its identity as a state was founded on November 18, 1918, and it is a continuation of that entity. The position on the continuity of Latvian state has been accepted by the international community resulting in the formation of an idiosyncratic legal framework both internationally, and at the national level in Latvia”. “Latvia has established its body of citizens only once – after founding the state, with the August 23, 1919 Law on Citizenship. The body of Latvian citizens was not established de novo after the restoration of independence, but merely confirmed as the body of citizens that had always existed in accordance with the August 23, 1919 Law on Citizenship. After the restoration of independence, instead of granting citizenship de novo, the parliament of Latvia legally established the scope of persons who had always had Latvian citizenship, taking into account the principles of continuity of citizenship and ius sanguinis.” The continuity of Latvia can be accounted for by law and legal scholarship on the premise that law is a plural complex of mutually competing orders (5.1.ad), which has been explicated best by the Pure Theory of Law as developed most notably by Hans Kelsen (5.3.ad).

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Vasiljević: EU and Croatian Minorities

Snježana Vasiljević, “EU Minority Conditionality and the Rule of Law: The Case of Croatia” makes the following major points. “Although pre-accession minority conditionality, proposed by the Copenhagen summit, has resulted in the implementation of international and European norms on minority rights in Croatian legislation, the lack of a monitoring mechanism after the accession has resulted in limited progress in the field of ethnic minorities protection. EU minority conditionality, designed for the Central and Eastern European Countries (CCE) willing to join the EU, has evolved with respect to the Western Balkan region. In addition to the criteria that were originally designed for the CEE countries, second-generation minority conditionality was developed for the Western Balkans, requiring the sustained return of refugees, the pursuit of transnational justice and inter-ethnic reconciliation in a post-conflict setting. Expectation that Croatia would make progress in these important areas within a reasonable time plummeted very soon after joining the EU. In fact, the issues remain unresolved in Croatia. The biggest problems related to certain national minorities are the return of refugees and the resolution of their status (the Serbian national minority), social problems and the problems of integration (the Roma national minority), and the restitution of lost property (that of Serbs and Jews).” “The contribution attempts to answer the following questions: Does the EU have competence in ethnic minority protection? What are the objectives and outcomes of the harmonization of Croatian legislation and policy with EU standards on minority rights? Does the efficacy of EU conditionality necessarily deteriorate after accession? Have the changes to national legislation and minority policies generated by pre-accession conditionality improved minority rights following accession?” “The protection of human rights and ethnic minorities is an essential component of the concept of rule of law in the EU. EU conditionality policy aimed to improve the protection of human rights, especially the rights of ethnic minorities in new Member states. Through the lens of the Croatian example, it seems that the principle of conditionality deteriorates after the accession of a country to the EU. It does not appear that the changes in national legislation and minority policies generated by pre-accession conditionality have improved minority rights post-accession.” “[. . .] in less than three decades, Croatia has moved from the category of an ethnically heterogeneous and multinational state to the category of an ethnically homogeneous state. . .Thus, in 1991, the share of the majority Croatian population was around 79%, 10 years later the share of Croats rose to 89%, and in 2011 this figure exceeded 90% [...]” “[. . .] Croatia engaged in a tremendous effort to achieve formal equality and adjust its legal framework on the protection of ethnic minorities to European norms and standards. However, in terms of achieving substantive equality, work should be done to eliminate ethnic intolerance and hate speech that limit the exercise of formal, and legally guaranteed rights.”

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Vasiljević’s contribution demonstrates that law implies bona fides, which in turn requires interpretation and action not merely to achieve goals of legal norms but to achieve them by following appropriate standards.

6.10

Anderson & Morgan: Provoking Memory

The last contribution, “Provoking Memory: Counter-Monuments and the Expulsion of the Acadians/Le Grand Derangement in 1755: A Case from Canada”, authored by Bruce Anderson and Kim Morgan, is a methodological innovation by introducing the role of art in our understanding of ethnicity. “For centuries artists have not only been concerned with re-creating what they see as beautiful landscape paintings and sculptural figures, they have also been interested in representing the way we live, not just what we see, but how and why we see things the way we do. This type of artwork draws attention to, questions, and critiques things that often go unnoticed such as poverty, injustice, class, conflict, human rights and inequality.” There is no doubt that ethnicity can be added to the list. The authors are applying concept of the counter-monuments to one of these “delicate matters” in order to bring attention to neglected historical facts. And these facts can be neglected exactly as they do not fit well with the perception of ethnic identity. We are witnessing that genocide, war crimes, crimes against humanity and ethnic cleansing occur around the world, and the population of multi-ethnic states often face the risk of being the subject of such atrocities by their own governments or by foreign states intervening or conquering such countries. The examples of atrocities in Europe are very well known. Anderson and Morgan remind us of a story that happened in the American continent at a time when such atrocities were not even considered as international delicts. The Acadian people in eighteenth century were expelled from their homeland in New Scotia by military force acquiring the legal power over the territory they inhabited. What the authors prove through their project is that “hatred, racism and deranged ideologies that ground violations of human rights” are difficult to deal with. When atrocities once appear in multi-ethnic communities it is not only that perpetrators should be prosecuted. It is also about preventing such delicts happening again and monuments and memorials have a special role. It is something that we are all aware of today. What we are not sufficiently aware of is that people are often reluctant to face the possibility that the members of their community could commit such crimes. Anderson and Morgan illustrate this fact in the country that is symbol of a multiculturalism today: Canada. The authors not only point to the problem, but they themselves actively addressed such a problem by installing counter-monuments. What this experiment shows is that such an activity can provoke a reaction among the people although mostly a negative one. It is up to those authorized to implement legal power in the community to enforce measures on memorializing past atrocities in an effective way.

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7 CEENJ and Follow-Up? While the contributors to the volume are from the countries as far apart as Spain, Bosnia and Herzegovina, Latvia and Canada, the idea of the workshop that led to this volume has been generated largely within the Central and Eastern Network of Jurisprudence (CEENJ). It is a discussion group that has been gathering in universities in the area from the Adriatic till the Baltic since 2005. A minor reason why the idea emerged in the area is that it has been a theatre of conflicts between ethnic communities that has resembled Plessner’s notorious Belated Nation. A more important reason is that the area is a network of political institutions of ethnic coexistence that has been generated by the Austrian and Hungarian Empire, redesigned by the USSR and other socialist countries, esp. Yugoslavia, and revamped by succeeding liberal but social democracies. Since the problem of the volume is of a wider concern, the editors will do good by continuing this project.

References Aarnio A (1979) Denkweisen der Rechtswissenschaft. Springer, Wien Anastasijević D (n.d.) Kratka istorija paravojnih jedinica u jugoslovenskim ratovima 1991–95: Grabljive zveri i otrovne bube. http://www.yuhistorija.com/serbian/ratovi_91_99_txt01c9.html Aristotle (1885) Politics (trans: Jowett B). Oxford University Press, Oxford Austin J (1861) The province of jurisprudence determined. John Murray, London Barry DD (1986) Spravochnik Partiinogo rabotnika as a source of party law. In: Loeber D et al (eds) Ruling communist parties and their status under law. Kluwer, Dordrecht, pp 37–52 Barth K (1933) The Epistle to the Romans. Tr. of the Roemerbrief, 6th edn. Oxford University Press, London Bauer O (1907) Die Nationalitaetenfrage und die Sozialdemokratie. Wien. https://www.marxists. org/deutsch/archiv/bauer/1907/nationalitaet/21-territorial.html BBC NEWS (2021) Poland enforces controversial near-total abortion ban. BBC NEWS, 28 January 2021. https://www.bbc.com/news/world-europe-55838210 Brown AH (1974) Soviet politics and political science. Macmillan, London Conklin WE (1998) The phenomenology of modern legal discourse: the juridical production and the disclosure of suffering. Ashgate, Aldershot Durkheim É (1964) Elementary forms of religious life (trans: Swain JW), 5th impr. edn. Unwin & Allen, London Durkheim É (1980) In: Nandan Y (ed) Contributions to L’Année sociologique. Free Press, New York Emberland M (2006) The human rights of companies: exploring the structure of ECHR protection. Oxford University Press, Oxford Engelberg S (1993) Czechoslovakia breaks in two, to wide regret. The New York Times, 1 January 1993. https://www.nytimes.com/1993/01/01/world/czechoslovakia-breaks-in-two-to-wideregret.html Eulau H (1963) The behavioral persuasion in politics. Random House, New York Evans PB, Rueschmeyer D, Skocpol H (eds) (1985) Bringing the state back in. Cambridge University Press, Cambridge Feldbrugge FJM (1986) The status of law under Communist Party rule. In: Loeber D et al (eds) Ruling communist parties and their status under law. Kluwer, Dordrecht, pp 3–19

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Fikentscher W (1975) Methoden des Rechts, Bd. 2 Angloamerikanischer Rechtskreis. Mohr, Tuebingen Franck TM, Weisband E (1972) Word politics: verbal strategy among the superpowers. Oxford University Press, New York Giltard D (2019) L’Idéé d’État. Zbornik Pravnog fakulteta u Splitu 56(1):1–12 Glatzer N (2002) Dimensions of job: a study and selected readings. Wipf and Stock, Eugene Granfield DD (1967) Towards a goal-oriented consensus. J Leg Educ 19(4):379–402 Grdešić M (2019) The shape of populism: Serbia before the dissolution of Yugoslavia. University of Michigan Press, Ann Arbor Grdešić I, Kasapović M, Šiber I, Zakošek N (1991) Hrvatska u izborima ’90. Naprijed, Zagreb Green L (1996) The concept of law revisited. Mich Law Rev 94:1687–1717 Greenfeld L (1993) Nationalism: five roads to modernity. Harvard University Press, Cambridge Gregory PR, Stuart RC (1981) Soviet economic structure and performance, 2nd edn. Harper & Row, New York Hart HLA (1961) The concept of law. Oxford University Press, Oxford Hegel GWF (2001) Philosophy of right (trans: Dyde SW). Batoche, Kitchener Herberger M (1981) Dogmatik: Zur Geschichte von Begriff und Methode in Medizin und Jurisprudenz. Klostermann, Frankfurt a.M. Hoare MA (n.d.) How the JNA became a Great Serbian Army. Yu-Historija: the 1990s wars. https:// yuhistorija.com/wars_91_99_txt01c1.html Hobbes T (1968) In: Macpherson CB (ed) Leviathan. Penguin, Harmondsworth Holbrook R (2001) Foreword. In: Macmillan M (ed) Paris 1919: six months that changed the world. Random House, New York, pp i–v. https://bnk.institutkurde.org/images/pdf/EJNCB23UK7.pdf Hondius FW (1968) The Yugoslav community of nations. Mouton, The Hague Human dignity and bioethics: essays commissioned by President’s Council on Bioethics (2008) President’s Council on Bioethics, Washington DC. https://bioethicsarchive.georgetown.edu/ pcbe/reports/human_dignity/index.html Jackson RH (1984) Ethnicity. In: Sartori G (ed) Social science concepts: a systematic analysis. Sage, Beverly Hills, pp 205–233 Kant I (1783) Grundlegung der Metaphysik der Sitten Kelsen H (1916) Die Rechtswissenschaft als Norm- oder als Kulturwissenschaft. In: Klecatsky H, Marcic R, Schambeck H (Hrsg) (1968) Die Wiener Rechsgheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl, Alfrfed Verdross. Europa Verlag, Wien, pp 37–93 Kelsen H (1919) Zur Theorie der juristischen Fiktionen. Mit besonderer Beruecksichtigung von Vaihingers Philosophie des Als Ob. In: Klecatsky H, Marcic R, Schambeck H (Hrsg) (1968) Die Wiener Rechsgheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl, Alfrfed Verdross. Europa Verlag, Wien, pp 1215–1241 Kelsen H (1923) Gott und Staat. In: Kelsen H (1964) Aufsaetze zur Ideologiekritik. Hrsg. v. Topitsch VE. Luchterchand, Neuwid a.R., pp 29–55 Kelsen H (1928) Der soziologische und der juristische Staatsbegriff, 2. Aufl. Mohr, Tuebingen Kelsen H (1942) Society and nature. Chicago University Press, Chicago Kelsen H (1961) General theory of law and state (trans: Wedberg A). Russell & Russell, New York Kelsen H (1967) Pure theory of law (trans: Knight M). University of California at Berkeley, Berkeley Kelsen H (1991) General theory of norms (trans: Hartney M). Oxford University Press, Oxford Klecatsky H, Marcic R, Schambeck H (Hrsg) (1968) Die Wiener Rechsgheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl, Alfrfed Verdross. Europa Verlag, Wien Koschaker P (1953) Europa und das Roemische Recht, 2. Aufl. Beck, Muenchen Loeber D et al (eds) (1986) Ruling communist parties and their status under law. Kluwer, Dordrecht Macmillan M (2001) Paris 1919: six months that changed the world. https://bnk.institutkurde.org/ images/pdf/EJNCB23UK7.pdf McDougal MS, Lasswell HD, Chen L-C (1980) Human rights and world public order: the basic policy for an international law of human dignity. Yale University Press, New Haven

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Meyer T (2005) Theorie der sozialen Demokratie. Verlag fuer Sozialwissenschaften, Wiesbaden Miletić A (n.d.) Generacija srpskih (re)centralista 1968–1990: opravdani zahtevi ili put u raspad Jugoslavije? http://www.yuhistorija.com/serbian/jug_druga_txt01c3.html Minogue KR (1967) Nationalism. Penguin, Baltimore Nacrt prijedloga demokratske alternative (1963) In: Pešelj BM (1989) U vrtlogu hrvatske politike. Bošnjački institut, Zuerich, pp 65–72 Padjen I (1997) Constitutionalism and democracy in the international community. In: Krawietz W, Pattaro E, Erh-Soon Tay A (eds) Rule of law: political and legal systems in transition. Duncker & Humblot, Berlin. Rechtstheorie Bh 17, pp 343–354 Padjen I (2010) Legal nature of religion. In: Convictions philosophiques et religieuses et droits positives. Bruylant, Bruxelles, pp 477–514 Padjen I (2012) Vjera u narod bez vlasti i vlasništva: crkvena šutnja 1971–72 i glasnost 1990 [The faith in narod without power and property: ecclesiastical silence in 1971–72, and glasnost in 1990]. Politička misao 49(4):175–211 Padjen I (2017) Religious rights in Croatia: legal regulation of culturalism. In: Wojcjechowski B, Bekrycht T, Cern KM (eds) The principle of equality as a fundamental norm in law and political philosophy. Wydawnictwo Uniwersytetu Lodzkiego, Lodz, pp 119–154 Padjen I, Matulović M (1996) Cleansing the law of legal theory (editorial). Croatan Crit Law Rev 1(1):1–107 Pico della Mirandola G (1956) Oration on the dignity of man (trans: Caponigri AR, Intr: Kirk R). Regnery, Chicago Pico della Mirandola G (n.d.) Catholic enyclopedia. https://www.newadvent.org/cathen/10352 a.htm Piechowiak M (2010) Auf der Suche nach einer philosophischen Begruendung der Wuerde des Menschen bei Thomas von Aquin und Immanuel Kant. In: Baumbach C, Kunzmann P (Hrsg) Die Menschenwuerde im internationalen Vergleich. Herbert Utz, Muenchen, pp 289–319 Piechowiak M (2019) Plato’s conception of justice and the question of human dignity. Peter Lang, Frankfurt a.M. Pipes R (1968) The formation of the Soviet Union: communism and nationalism 1917–1923, rev. edn. Athenaeum, New York Nacrt Ugovora o jugoslavenskoj konfederaciji – Savezu jugoslavenskih republika (1991) Politička misao 28(2):166–175 Popović P (2013) Horizontalni aspekt ravnoteže snaga u međunarodnim odnosima [Horizontal aspect of balance of power in International Relations]. Politička misao 50(1):58–83 Radcliffe-Brown AR (1952) Structure and function in primitive society: essays and addresses. Cohen and West Ltd., London Reshetar JS Jr (1978) The Soviet polity: government and politics in the USSR, 2nd edn. Harper & Row, New York Ricoeur P (2005) The course of recognition. Harvard University Press, Cambridge Samek R (1974) The legal point of view. Philosophical Library, New York Sampford C (1989) Disorder of law: a critique of legal theory. Blackwell, Oxford Schmitt C (2005) Political theology: four chapters on the concept of sovereignty. Chicago University Press, Chicago Scott DJR (1965) Russian political institutions, rev. edn. Praeger, New York Siedentop L (2014) Inventing the individual: the origins of western liberalism. Penguin, London Šlabek S (1991) Banovina Hrvatska (26.VIII.1939.-10.IV.1941.): pravno povijesni pristup. 2. izd. Ogranak Matice Hrvatske, Kutina Smith GB (1986) Guidance by the communist party of state administrative agencies in the USSR. In: Loeber D et al (eds) (1986) Ruling communist parties and their status under law. Kluwer, Dordrecht, pp 179–188 Stalin I (1936) On the Draft Constitution. November 25, 1936. Tr. of O proekte konstitutsii Soiuza S.S.R. Moscow. Soviethistory: http://soviethistory.msu.edu/1936-2/stalin-constitution/stalinconstitution-texts/stalin-on-the-draft-constitution/

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Stergar R (2019) Nationalities (Austria-Hungary). In: International encyclopedia of the First World War, 1914–1918, Version 1.0, |Last updated 22 July 2019. https://encyclopedia.1914-1918online.net/article/nationalities_austria-hungary The Belavezha Accord Signed (8 December 1991). https://www.prlib.ru/en/history/619792 Thuerer D (1985) Self-determination. In: Encyclopedia of public international law. Instalment 8, pp 470–476 Trbović V (2006) Nation-building under the Austro-Hungarian sceptre: Croat-Serb antagonism and cooperation. Balcanica 37:195–220 Uibopuu H-J (1975) Die Voelkerrechtssubjektivitaet der Unionreubliken der UdSSR. Springer, New York van Creveld M (1999) The rise and decline of the state. Cambridge University Press, Cambridge Villey M (1969) Droit subjectif I: la genèse du droit subjectif chez Guillaume d’Occham. Extrait de l’Archive de philosophie du droit (1964). Repr. in: Villey M, Seize essais de philosophie du droit dont un sur la crise universitaire. Dalloz, Paris, pp 140–178 Visković N (1982) Pojam prava: prilog integralnoj teoriji prava. 2. izd [The concept of law: a contribution to integral theory of law]. Logos i Pravni fakultet, Split Vladisavljević N (2008) Serbia’s antibureaucratic revolution: Milošević, the fall of communism and national mobilization. Palgrave Macmillan, London Von Wright GH (1971) Explanation and understanding. Routledge, London Waldron J (2007) Dignity and rank. Eur J Sociol 48(2):201–237 Weber M (1949) ‘Objectivity’ in social science and social policy. In: Weber M (1949) The methodology of the social sciences. Tr. & ed. by Shils EA, Finch HA. Free Press, Glencoe, pp 50–112 Weinberger O (1982) Kelsens These von der Unanwendbarkeit logischer Regeln auf Normen. In: Die Reine Rechtslehre in wisenschaftlicher Diskussion. Manz, Wien, pp 109–121 Wienzierl-Fischer E (1960) Die oesterreichischen Konkordate von 1855 und 1933. Verlag fuer Geschichte und Politik, Wien Winch P (1958) The idea of a social science and its relation to philosophy. Routledge, London Zamaschikov S (1986) The dissemination of decisions within the party. In: Loeber D et al (eds) Ruling communist parties and their status under law. Kluwer, Dordrecht, pp 53–56

Ivan Padjen is professor of law (ret.) and senior fellow in political science, University of Zagreb and University of Rijeka. Research, teaching and directing in theory of law and state, methodology of legal and social research, public law, political theory and political institutions. Books: with B. Bakotić, Yugoslav foreign affairs: an international and comparative legal study, with a reference to federalism (in Croatian, 1972); The (Im)morality of (international) law (in Croatian, English summary, 1988); Methodology of legal science: law and related disciplines (in Croatian, English summary, 2015). Editor: with N. Katičić & E. Pusić, Pravo i društvo (1980–88); with M. Matulović, Croatian critical law review (1996–99); with Z. Pokrovac, Zabrana uskrate pravosuđa i prava/ Justiz- und Rechtsverweigerungsverbot (2010). The founder of the Croatian IVR section (2007).

Part I

European Principles and Ethnic Conflicts

Compulsory Adjudication: An Emerging Principle of European Law and the Western Balkans’ Accession to the European Union? Mario Krešić

Abstract The principle of compulsory adjudication appears to be of great practical importance for the EU Member States and Western Balkan states, especially in the light of unresolved disputes. Alf Ross’s conception of the sources of international law will be adapted and used as a tool for analysing the principle of compulsory adjudication. The analysis will answer the question to what extent the principle can be determined to be an emerging norm of European law. The positive answer to this question can serve as legal justification for conditioning the Western Balkan accession to EU on the implementation of the principle of compulsory adjudication.

1 Introduction 1.1

Conceptual Problems

The basic conceptual problem of this contribution is the applicability of a theoretical tool to the legal phenomenon known as ‘emerging norm’. The phenomenon is registered by legal scholars and international actors1 in the case of some international norms such as the responsibility to protect (population),2 controlling illicit gun brokering,3 banning nuclear weapons,4 the right to receive visitors in immigration detention5 and carbon pricing.6 In this introductory section it suffices to indicate that, 1 The UN Secretary-General’s High-Level Panel on Threats, Challenges and Change (2004). The Report: A More Secure World. Our Shared Responsibility (A/59/565), para 82 and 203. 2 Eaton (2011). 3 Garcia (2006). 4 Vilmer (2020). 5 Fialho (2016). 6 Thisted and Thisted (2020).

M. Krešić (*) Legal Theory Department, Faculty of Law, University of Zagreb, Zagreb, Croatia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_2

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according to what scholars and actors said about the examples above, an emerging norm cannot plausibly be considered as a legal norm but nevertheless remains legally relevant. The norm which will be explored in this research as the potential exemplar of an emerging norm is the principle of compulsory adjudication as it manifests in the specific context of European law. This context is comprised of regional systems of norms created by organs of European regional organizations and European states as well as norms that are implied by the practices of those entities, and binding for European states or directly for the citizens of those states. The principle of compulsory adjudication, as understood in this research, prescribes that all disputes should be, upon demand, submitted for a decision of a third body which provides final decisions based on the law whereby the demand can be issued by each subject having a legal interest in requesting the decision or by a special organ empowered to initiate such a process of decision-making.7 Following the comments on the concept of compulsory jurisdiction8 that is used in international law practice, a distinction can be made between two obligations required by the principle: to commit in advance the submission of all future disputes to adjudication and to submit all existing disputes to adjudication. The opposite to the principle of compulsory adjudication is the principle, already established in the practice of international law, which designates the right of the subjects of law not to be compelled to resolve a dispute by adjudication.9 The tool to be tested as applicable to the norm which is our concern is Alf Ross’s conception of the sources of law adapted for our purposes.10 His conception will be

7

In accordance with Hans Kelsen’s view on future international organisation, to establish a court endowed with compulsory jurisdiction would mean that all the states of the organization constituted by the treaty establishing this court, should be obligated to submit all their disputes without any exception to the decision of the court (Kelsen 1943, p. 397). 8 For the explanation of the meaning see: Alexandrov (2006). ‘Compulsory jurisdiction’ refers to the special way of expressing consent to exercising of judicial jurisdiction by accepting to refer to the ICJ all or certain categories of disputes. When referring to the categories of disputes, a state can but does not have to include past or existing disputes. The other way, known as voluntary jurisdiction, refers to expressing of the consent through ad hoc agreement for submitting of the existing dispute to the court. As the matter of fact, both ways depend on the consent and ‘compulsory jurisdiction’ of the International Court of Justice as not “truly compulsory” (Alexandrov 2006, p. 29). 9 Hersch Lauterpacht considers that this norm is indeed established by the practice of international courts, but also that it can be questioned by international lawyers, e.g., whether it can be derogated by the general principles of law and by international law conceived as a system of law (Lauterpacht 2000, pp. 427–428). 10 Many of the authors explicitly rely on the norm-users approach to the emergence of a norm as it is—for instance as described by Martha Finnemore and Kathryn Sikkink as the three-stage norm lifecycle process: emergence, cascade, and internalisation (Finnemore and Sikkink 1998). This approach is similar to the approach of equating the process of norm-emerging with the appearance of customary law (see: Condä 2004). In that context, the states use the practice of objecting to a newly emerging norm (see: Green 2016). In this contribution we are following Ross’ approach in which the concept of court has a central role while the custom presents only one of the indicators of norm-emerging.

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restructured in a way to make it sufficiently sharp and explanatory for the analysis of the researched norm. The basic conceptual problem is divided into two parts. (1) The primary problem is the applicability of this restructured conception to the inquiry into the nature of the principle of compulsory adjudication as a potential emerging norm of European law. This problem can be addressed by answering two questions: (1.1) whether the proposed analytical tool is appropriate for researching emerging norms and (1.2) whether the norm in question can be classified as an emerging norm in accordance to how this concept is defined by using the proposed tool. (2) If the answers to both questions regarding the first problem are affirmative, the secondary problem arises as to the applicability of the theoretical assumption to the existence of emerging norms for the justification of legal demands. This problem is specified for the researched norm by posing the question (2.1): whether its implementation by the Western Balkan states negotiating for EU membership may be claimed as a legal prerequisite for their accession to the EU.11

1.2

Practical Problems

The conceptual problems have been brought about by the following two practical considerations. Firstly, it is the legal-political dynamic in the EU concerning: (a) the development of EU law and; (b) the accession of the Western Balkan (WB) countries—Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia—to the EU. The disagreement on conditioning EU enlargement with the development of EU law is illustrated by the views expressed by the French President Emmanuel Macron and the former European Commission President JeanClaude Juncker, before the European Parliament on 17 April 2018. To Macron’s insistence on a change of EU rules before the enlargement of the EU with WB countries, Juncker replied that he did not want a return to war in Western Balkan.12 Secondly, while the rules Macron had in mind hardly include the principle of compulsory adjudication, both EU Member States and EU institutions are increasingly concerned with the fact that the WB countries have unresolved disputes with neighbouring states, including the ones that are already EU member states. The list of unresolved disputes includes, for instance, the dispute of Bosnia and Herzegovina with Croatia over the Pelješac bridge which links the Croatian mainland with its exclave via the sea also claimed by Bosnia and Herzegovina; Croatia with Serbia over missing persons in the Croatian War of Independence and over the 11

Whether a norm is permitted to be used in legal arguments, depends on the justification of such a norm. In addition, the answer could be conditioned by probability judgments formed on the prediction of attitudes of relevant actors toward such a justification. 12 Vatican News, by Stefan Bos (17 April 2018) France’s Macron: ‘EU should reform before expanding’ https://www.vaticannews.va/en/world/news/2018-04/france-macron-eu-reform-expan sion-balkans.html.

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Danube border; Montenegro with Croatia regarding the demarcation of the border in the Bay of Kotor; Serbia with Kosovo over the latter’s status and borders; Serbia with Bosnia and Herzegovina over the borders along the Lim River; Greece with Albania over the border in the Ionian Sea; Serbia with Montenegro over the Serbian Orthodox Church. Since 2018, the list of current disputes in this part of Europe seems to be reduced by only two disputes. The dispute between Northern Macedonia and Greece over the former’s name ended that year and, interestingly enough for our research, it was a dispute which has for years blocked the Euro-Atlantic integration of Northern Macedonia. That year Montenegro and Kosovo also reached an agreement on their border dispute for which it is interesting to note that this initially low-level technical dispute lasted for 10 years with a high level of tension and that the threat of tension might not end after all since Serbia considers the aforementioned agreement invalid due to the unresolved status of Kosovo.

1.3

Methodology and Outline of the Arguments

The three abovementioned questions will be addressed by conceptual analysis connected with the policy-oriented approach to legal study with which we share the object of analysis that is not only the corpus of rules, but also a process of decision “taking place within the context of, and as a response to, a larger community process.”13 The cognition of such an object requires data about a phenomenon provided by a multidisciplinary approach. This requirement is met in our inquiry by collecting and analysing information from legal documents, political statements, and discourses on the cultural background. After this introductory part focused on the subject-matter, problems, relevancy, and methodology of research, the discussion that follows outlines the problems and offers tentative solutions through out five sections. The theoretical framework for the research will be developed in the second section. We will first illustrate Ross’s conception of sources of law, and then his conception will be restructured to serve as a conceptual tool for analysing the principle of compulsory adjudication in the European environment. The developed tool will be compared with the insights of the legal theorists researching the ‘non-hard’ norms of legal relevance. In two sections that follow after an attempt at developing an appropriate theoretical framework, the conceptual tool will be applied to the analysis of the emergence of the compulsory adjudication principle in EU law (Sect. 3) and in the law regulating the relations of the WB countries (Sect. 4). Finally, in the fifth, concluding section we will summarize the answers to the three questions, based on the analytical tool advanced in Sect. 2 and the presentation of findings in Sects. 3 and 4.

13

McDougal (1956), p. 56. For the example of how policy analysis approach developed by Harold D. Lasswell and Myres S. McDougal can be used for analysis of practical problems see: Padjen (2017).

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2 Theoretical Framework 2.1

Ross’s Conception of Sources of International Law

The four major theses determining Ross’s conception of law sources are taken in this research to be as follows: (a) the binding force of legal norms is a socialpsychological experience; (b) the process of identifying the legal norms in a particular society is shaped by its normative ideology; (c) judges have the main role in the formation of normative ideology; (d) factors influencing every normative ideology can be classified into three types depending on the level of formulation of the norm. The first element is the consequence of Ross’s rejection of the metaphysical concept of the binding force of norms as something beyond human practice.14 From his point of view on sources of law as the result of socio-psychological experience,15 there are two main attitudes towards norms which cause humans subject to the law to feel the binding nature of a norm: interested and disinterested attitudes.16 The second structural component of Ross’s conception points to the fact that the existence of legal norms cannot be reduced to the existence of each individual norm in the minds of law practitioners. This would be only possible if the law consisted of a limited number of simple, precise and invariable norms, which is not the case. Therefore, there must be another way in which each norm of the system can be determined. Such identification is achieved through the mental process of legal reasoning formed by the normative ideology as a set of concepts and attitudes that enable the norm to be identified for a specific case.17 The third element concerns the subjects who formulate the normative ideology. Ross attributes the main role for the formation of normative ideology to the judges, while other legal actors are trying to predict, based on knowledge of such normative ideology, what will be a judge’s decision.18 He is aware that general international law does not contain a formulated norm on compulsory adjudication. However, this shortcoming has not prevented Ross from developing the conception of international sources of law that is essentially identical to his conception of national law sources. There are two arguments which can be used to justify his analogy between international and national sources. The first reason can be found in Ross’s thesis that the experience of international law is based on the legal experience that relevant actors in the international arena have due to practicing national law. He conceives international law as a normative system of a conventional non-coercive order with a derived character of law.19 It means that norms arise unorganized, spontaneously, out of the 14

Ross (2004), p. 368. Ross (2006), p. 83. 16 Ross (2004), p. 364. 17 Ross (2004), p. 75. 18 Ibidem. 19 Ross (2006), p. 54. 15

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community; they cannot be enforced by compulsion, but still have the character of law since they share the same maxims with the national normative systems that are plausibly of legal character. The second reason can be found in his position that the content of international law is determined by decisions of international courts and only by those decisions in cases where the parties to the dispute have not set out detailed instructions on how to resolve the dispute.20 Finally, regarding the fourth element of the conception, Ross distinguishes between three main types of international law sources.21 The first type of ‘completely objectivated’ source is defined as a source that has produced completely formulated norms and is paradigmatically presented in international treaties. The sources of the second ‘partially objectivated’ type provide partially formulated norms and encompasses precedence and international customs. In relation to the international customs as a source of law, Ross emphasized the importance of both perceived patterns of the behaviour of states and subjective attitudes towards the facts that occur in relations between states.22 In this respect, we can note that international law is characterized by an ambiguous boundary between customs and legal customs because the method of distinguishing them is, in our opinion, based on differences in attitude to what is an appropriate reaction to a violation of the interest protected by a norm. The third type of ‘non-objectivated’ sources has still not even partially formulated the norms, but they are determinable based on the knowledge of the cultural factors which shape these norms. In international law, these sources are called ‘legal principles’, ‘the idea of law’, or ‘scientific law.’23

2.2

Adapting Ross’s Conception to the Concept of Emerging Norm

Ross’s conception will be restructured in a way that the elements identified above will also include the following characteristics that make the tool more suitable for analysing the nature of the principle of compulsory adjudication in the context of European law. Firstly, some norms, such as the one in question, can be considered as still developing in terms of the socio-psychological experience from norms accompanied with the feeling of moral or conventional commitment towards the norms experienced as producing the legal obligation. The progress (or retrogression) in normdevelopment is a matter of degree. It depends on the extent to which a norm is experienced as suitable to be applied in legal reasoning which differs from moral or conventional reasoning. The measurement of the norm-development includes an 20

Ross (2006), pp. 83 and 271–297. Ross (2004), p. 78; Ross (2006), pp. 92–94. 22 Ross (2006), p. 89. 23 Ross (2006), p. 90. 21

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evaluation of the manifestations of the three relevant factors (texts, customs and culture) in the specific normative context that makes a norm more or less fit to be applicable in legal reasoning, i.e., justiciable. Secondly, the existence of such a norm-development process depends on the normative ideology that shapes the legal reasoning. The norms expressed in the legal documents (formulated legal norms) are more or less easily recognized by the normative ideology to be suitable for consideration in the legal reasoning. Based on the manifestations of the relevant factors, it is possible to construct the norms that a normative ideology may recognize of the same quality, although more disputable, than the ones formulated in the legal documents (unformulated legal norms). In that sense, besides the manifestation of the relevant factors, norm-development depends on the content of normative ideology that enables such constructions. Although it is the normative ideology of judges that is decisive in the identification of an unformulated legal norm, which by that act of the court becomes a formulated legal norm, this does not mean that such a norm cannot be considered to already exist or to be developing in that direction, even though it has not yet been confirmed as such by the court. Thirdly, the possibility of coercive enforcement of law on the grounds of executing a decision of the ‘court’ is the necessary element for the discussion about normdevelopment even in legal orders that are not national. From a theoretical point of view, the organ that makes such decisions does not necessarily have to be formally established as what we know to be a ‘court’ in the national orders. It is conceptually acceptable to count some other bodies as quasi-adjudicative if they fulfil some important features of the adjudication, i.e., they are making final decisions based on law. For instance, the Council of the EU can be conceived as such a body since it is empowered to make a unanimous decision on accepting new members in the community of states (Article 49 of TEU) and the EU law regulates the process of accession.24 The question of coercive enforcement is a debated issue in regard to those orders which are not national. The order of the European states is marked with a specific kind of coercion. The use of physical force is not a reaction that the community of the EU states applies to its members or (potential) candidatecountries. However, there is an essentially higher degree of coercion that can be exercised on these states by the EU than the one exercised by the general international order not counting the issue of peace-keeping. This specific compulsion is the result of two possible reactions of EU states to the behaviour of other European states. The first is the exclusion of disobedient member-states from the benefits of EU membership, primarily by the suspension of rights deriving from membership including voting rights (Article 7 of TEU). The second is refusing disobedient non-EU country’s application for EU membership (Article 49 of TEU). Since the decision on the rights derived from EU membership brings crucially high costs and benefits to citizens, at least in most of the European states, compliance with the EU

24

Once when all Member States agree, it is predictable that the decision of the Council will be followed by the ratification of all Member states.

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norms is motivated not only by a disinterested attitude towards these norms, but also by the interested attitude of avoiding coercion. Whether such coercion is of a quality to be considered a legal sanction and if it is of such quality, how the decision-making process that enables the implementation of such a legal sanction should be regulated? These important questions require an analysis beyond the scope of this research. Fourthly, the manifestations of relevant factors that influence the development of a norm towards the status of an unformulated legal norm in the specific context of European law can be systematized as the existence of: (1) European formulated legal norms that enable the construction of the relevant unformulated legal norm; (2) European customs with the capacity of being recognized as legal customs that enable the construction of the relevant unformulated legal norm; and (3) the content of European culture that enables the construction of the relevant unformulated legal norm directly from the legal-political doctrines embodied in that culture. The four elements in this modification of Ross’ conception of the legal sources immediately above can be put together in the following definition stipulated for the purpose of better understanding and identifying the phenomenon named emerging norm. The emerging norm is a norm experienced as developing the feeling from moral duty or conventional fact towards the feeling of the legal obligation (element 1); due to the manifestations specific for every normative context of: formulated legal norms, customs and culture (element 4); that if sufficiently strong can influence the normative ideology of the (quasi)adjudicative body to identify such a norm as the grounds of coercive enforcement (elements 2 and 3).

2.3

Proposed Concept of Emerging Norm in Light of Contemporary Theoretical Research

In this section we aim to address the first question concerning the first conceptual problem: whether the proposed analytical tool is appropriate for researching emerging norms? In pursuing this aim, we will compare the tool with the main insights of the existing research on the topic. This comparison is expected to result in the confirmation of their general compatibility and highlight the advantages of our tool regarding the sharpness and explanatory capacity for understanding and identifying the emerging norms. This result can serve as an argument in favour of the thesis that the proposed tool is appropriate for the purpose for which it was designed. We will start with what was mentioned in the introductory section about those legal scholars already involved in an identification of targeted norms as emerging norms. What we found common for all these attempts is the understanding of emerging norm as having two characteristics. The first characteristic is that they are not suitable to be placed in the category of the clearly legal norms usually named as ‘hard law’. This category indicates the existence of the opposite category of non-hard norms of the law that are missing such an obvious legal character. Since the

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latter norms are opposed to hard law, they are generally known in legal science as ‘soft law’. However, this term is ambiguous and it is used to refer to different kinds of non-hard norms.25 As long as the term soft law is used in an abstract way only to denote the set of non-hard norms associated with some idea of their legal relevance, the term is referring to the same phenomenon we refer to as emerging norm. It is clear from what is indicated in the stipulated definition (elements 1 and 4) above and from the writings of theorists presented below that the norms of our interest are considered to be in the category of non-hard norms because they do not fulfil some of the generally accepted requirements for being a legal norm of an order. These requirements are usually result of the expectation that all legal norms are formulated. However, the openness of legal reasoning shaped by normative ideology (elements 2 and 4) towards the acceptance of unformulated legal norms shed light on how an emerging norm can finally become a ground for coercive enforcement (element 3). The second characteristic of the general understanding of emerging norms is that in spite of their non-hard character, they are still legally relevant. We can gain additional insight from what was said above and what follows in this section. This relevance is due to the belief that these non-hard norms may be considered as suitable to be applied in the process of adjudication. The reason for such consideration can be found in the factors influencing normative ideology (elements 3 and 4). In addition to compatibility of our concept with the ordinary understanding of emerging norm in legal science as a non-hard but legally relevant norm, we furthermore claim that contemporary legal theories dealing in more detail with the background assumptions of the concept of such norms indicate the same elements that we have structured in our definition although it does not mean that all theories necessarily share the same approach to this phenomenon. With the terminological note mentioned above on soft law in mind, we will present these similarities by referring to the most recent legal-theoretical research in this field. 1. Development of normative experience (element 1). Contemporary legal theories have identified the gradeability as an important feature for understanding of soft law, i.e. the emerging norms. This point makes us revisit the first element of our definition on developing process regarding the shift from experiencing a norm from a moral or conventional perspective to legal feeling. Since we are talking about the developmental process, it is clear that a norm can be more or less developed. In this sense, the comments on gradeability fit within our element pertaining to the development of psycho-sociological experience about norms. The contemporary discussion on this issue is framed by two opposed concepts of norm: the gradable concept and the concept of dichotomy.26 Jaap Hage noticed that: “[..] for the characterization of soft law, we need a notion that allows for degrees. There must be the possibility for a legal rule to be more or less

25 26

For some attempts of classification see Hage (2018), p. 43; Kirste (2018), p. 50. von der Pfordten (2018), p. 14.

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soft.”27 Or in the words of Pauline Westerman: “In the landscape in which a sharp division is made between valid and invalid rules, soft law emerges in the twilight zone, and therefore urges us to reconsider our notion of validity” and to consider a possibility that it can come in degree.28 Marcel M.T.A. Bruss also advocates for a non-binary approach: “there are various degrees of bindingness ranging from nonbinding in form and content at one end of the spectrum to fully binding in form and content at the other end. Often expressions can be placed somewhere along the continuum [. . .]”29 For legal actors in the international arena, including judicial and quasi-judicial bodies, Bruss finds it “impossible to disregard the fact that they have to operate on the continuum between strictly political and strictly legal statements.”30 An objection can be made to some of these theories favouring the gradeability concept for norms, that the reference to the status of validity or bindingness is not the correct status to refer to when discussing emerging norms. Some scholars have correctly highlighted that a rule, as a matter of internal legal claim, can be claimed as binding even if it is not very hard.31 In that sense, we suggest to replace the concept of validity and bindingness with the concept of applicability (justiciability): the social-psychological experience about a norm is developing (element 1) in the context of legal reasoning shaped by judges’ normative ideology (element 2 and 3). Nevertheless, the point on gradeability of norm remains: the emerging norm has to be explained by referring to the degree of progressiveness in the process of norm development. 2. Normative ideology (element 2). The connection between emerging norms and legal reasoning is established in the writings of some theorists. This connection is compatible with emphasising the element of normative ideology in our concept since it determines the structure of legal reasoning in a particular community. Hage has defined soft law in the broad sense as rules that cannot easily be used in legal arguments.32 It is “[. . .] law that can less easily be used in legal arguments than hard law. Or more precisely, a legal rule is softer the less easy it is to use in legal arguments, with as lower boundary [of] the place where a rule stops to be biding law.”33 This approach to non-hard law is part of the larger theory about the usability of rules in legal arguments.34 Similarly, Bruss notes that for understanding the phenomenon, the important question appears to be: what legal weight should those who implement international law give to expressions about behaviour in international relations.35 Westerman equalizes the validity of legal

27

Hage (2018), p. 38. Westerman (2018), p. 166. 29 Brus (2018), p. 263. 30 Brus (2018), p. 250. 31 Hage (2018), p. 38. 32 Hage (2018), p. 39. 33 Ibidem. 34 Hage (2018). 35 Brus (2018), p. 264. 28

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constructs with their reputation36 and considers the question of validity or invalidity as questioning whether the types of such constructs are generally regarded as relevant reasons for decision making.37 3. Adjudicative body (element 3). The normative ideology relevant for the emerging norm is the one of judges in (quasi)judicial bodies since they make decisions relevant for coercive enforcement of law. Many legal theorists are pointing to the practice of the courts as relevant for soft law i.e., emerging norms. Stephan Kirste has pointed to the practice of a court to show how “nonbinding soft law may be transformed into binding law by competent authorities, as the European Charter for Fundamental Rights was by the European Court of Justice, before formally being integrated into the corpus of the European Treaties (Article 6(1) TEU)”.38 In the same vein, Antonia Waltermann has used the case in which the CJEU justified the application of the principle of non-discrimination, not by pedigree of the principle in the legal text, but by being a general principle of Community law. The argument for the application of such principles can be grounded in treating them “not as extralegal but as legal principles by the officials who apply them” and by other for law relevant practices.39 Bruss has emphasized how the principle of sustainable development and connected principles expressed in international soft law documents—i.e., those documents that do not fit within the narrow confines of Article 38 of the ICJ Statute generally considered as instruction on the forms of law appearance—“have become undeniably legally relevant part of international law, as is recognized, for example, in many decisions by international and domestic courts and tribunals.”40 The element of enforcement, which we have connected with court decisions and coerciveness following such decisions, is recognized by Westerman who considers that soft law at the international level often means ‘not yet hard’, i.e., law consisting of “solemn declarations and principles that are not or hardly enforceable.”41 4. Factors influencing the normative ideology of judges (element 4). The final feature of emerging norms refers to the indicators of the suitability of that norm to be applied by judges. The form, understood as criteria defined by norms on competence and procedure, is considered by some legal theorists as not the only criteria for a norm to be justiciable. Waltermann finds it possible that a norm “does not – or did not, at the time – have the relevant pedigree but was nevertheless treated as law.”42 She sees the possibility for argument in favour of norm-application from the perspective of attitude in this and similar

36

Westerman (2018), p. 167. Westerman (2018) p. 180. 38 Kirste (2018), p. 50. 39 Waltermann (2018), p. 214. 40 Brus (2018), p. 251. 41 Westerman (2018), p. 165. 42 Waltermann (2018), p. 214. 37

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situations.43 “What is decisive for the validity of the principle according to this argument is not the procedure according to which it was laid down but that sufficiently many sufficiently relevant people consider to be law.”44 The norm can be accepted for reasons of tradition (custom) or as seen as reasonable.45 Hage has empathized that one of the features which can differentiate hard from nonhard law is exactly that the latter was not validly made,46 and we could see before that he considers the non-hard law to be applicable. Bruss emphasized the importance of predominantly political forms such as UNGA resolutions which may be important in the creation of new international norms in the form of legal principles or of international customary law.47 He certainly refuses to perceive international law in general through “a binary distinction between political statements and legal statements on the basis of either their formal legal validity according to Article 38 or their compliance”.48 Westermann also emphasized that soft law arrangements are seen as relevant even if they are not valid law in the sense of legal rules identifiable by pedigree. On the other hand, hard law issued in strict legal procedure can be seen, if for instance issued by failed state, as irrelevant information which does not figure as reasons for decision making.49 Finally, Anne Ruth Mackor—when talking about a specific kind of soft law that consists of rules that are explicitly created and encoded and often in accordance with specific criteria—differentiates such norms from hard norms due to lack of form: they are produced by a body or person without the competence to create legal rules although they are deemed or even intended to have some legal status and influence.50 All these comments on non-hard law as norms not formulated in a way predicted by law are compatible with the forth element of our definition of emerging norm, referring to three factors influencing the normative ideology. They enable the presentation of the emerging norm as constructed from the manifestations of these factors that, if sufficiently strong, can make the judges identify the emerging norm as the legal norm.

43

Ibidem. Waltermann (2018), p. 214. 45 Ibidem. 46 Hage (2018), p. 39. 47 Brus (2018), p. 250. 48 Ibidem. 49 Westerman (2018), p. 180. 50 Mackor (2018), p. 134. 44

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3 Compulsory Adjudication and European Union 3.1

Principle of Compulsory Adjudication as Emerging from the EU’s Normative Documents

The principle of compulsory adjudication can be explained as emerging from the EU’s normative documents if we ascribe to this principle the status of an unformulated norm derived from the norms formulated in the legally relevant texts of the EU.51 We will outline the possibility of carrying out this principle from the existing legal order in its two areas of regulation: EU law for member-states and EU law for non-member states aspiring for membership. Consequently, in Sect. 3.1.1 it will be shown how the principle can be derived from the norms formulated in the European Treaties; and in Sect. 3.1.2 it will be shown how the principle can be derived from the normative documents regulating EU accession.

3.1.1

Unformulated Principle in the Treaties

The principle of compulsory adjudication can be constructed as the norm deduced from the principles protecting the rule of law and peace. Before this step, it is necessary to justify the thesis on the existence of these two principles which justification could require the construction of these two principles themselves. In this section, we will provide an overview of formulated provisions of the Treaty on European Union (TEU) which can be used to confirm the existence of the principles of the rule of law and peace as the ground for the construction of the principle of compulsory adjudication. Since the TEU and the TFEU are treaties of the same legal value, and together make the constitutional ground of the Union, the principles defined in the former document are applicable to EU functioning determined in more detail by the latter (TEU and TFEU together are hereinafter referred to as “the Treaties”). The TEU prescribes the protection of the rule of law in the preamble as well as in Articles 2 and 21. The preamble describes this value as one of the universal values deriving from the cultural, religious, and humanistic legacy of Europe. The value of such a status is furthermore marked as the one to which Member States confirm their commitment. Following these ascribed qualities, the value is confirmed in Article 2 as one of the fundamental values on which the EU is founded. This status of the rule of law means that it is unavoidable in any legal practice concerning EU law, since Article 2 requires that any interpretation of the Treaty’s provisions should proceed from the fundamental values set out in this article. Now, it has to be noticed that the value of the rule of law can be understood in general as referring to two different kinds of relations: relations within national legal orders and inter-state relations 51

For the theoretical description and legal practice of deducing the unformulated norm from formulated norms in the national legal systems see: Guastini (2011).

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which can have its special manifestation in relations between international organisations and states. In this second case, the value is known as the international rule of law. It can be recognized in part V of the TEU regulating the foreign policy of the EU under the headline: “General Provisions on the Union’s External Action and specific provisions on the Common Foreign and Security Policy.” This regulation includes Article 21 which in the first paragraph states that the “the Union’s action on the international scene shall be guided by the principles which inspired its own creation, development and enlargement and which it seeks to advance in the wider world” and among values protected by these principles the rule of law is mentioned as well as “respect of the principles of the UN Charter and International Law.” Following that, the same paragraph states that “the Union shall seek to develop relations and build partnerships with third countries and international, regional and global organizations which share these principles.” The second paragraph states that the Union “shall work for a higher degree of cooperation in all fields of International Law” in order, among other things, to: “(a) safeguard its values, fundamental interests, security, independence and integrity; and (b) consolidate and support, inter alia, the rule of law and the principles of international law.” The same article in the paragraph 3 states that “the Union shall respect the principles and pursue objectives set out in [the previous paragraphs of the Article 21], in development and implementation of the different areas of external action of the Union’s covered by [this part of TEU on the External Action and Foreign Policy] and by Part Five of the TFEU, and of the external aspects of its other policies.” This text from the TEU confirms the protection of rule of law as the guiding principle of EU foreign policy. We can conclude that if it is the principle of inter-state relations between EU and non-member states, it must also be the principle of inter-state relations among the member-states themselves. The TEU sets out the protection of the value of peace in the Preamble as well as in Articles 1, 3, 5, 8, and 21. The Preamble states that the action of the common foreign and security policy is directed at promoting “peace, security and prosperity in Europe and in the world.” The protection of the value of peace concerning interstate-relations among member states and the relations of the EU with other European countries can be recognized as implied by the goals of EU expressed in the Preamble to create “ever closer union of the peoples of Europe”, to “deepen solidarity among European peoples” and to end “the divisions of the European continent.” Article 1 defines the TEU as a new stage in the process of achieving the first mentioned goal. Article 3, paragraph 1 formulates the Union’s aim as “to promote peace, its values and the welfare of its peoples.” In relations with the wider world, paragraph 5 of the same article stipulates, “the Union shall uphold and promote its values and interests” and among other things, “contribute to peace, security and strict observance and the development of International Law, including the principles of the UN Charter”. With regard to these relations of the EU and the non-member states, the relations with the countries neighbouring the EU are particularly emphasized in Article 8. The Union shall develop a special relationship with them “aiming at establishing an area of prosperity and good neighbouring relations, founded on the values of the Union and characterized by close and peaceful relations based on cooperation.” Finally, the second paragraph of Article 21 states that “the

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Union shall define and pursue common policies and actions and shall work for a higher degree of cooperation in all fields of International Law in order”, among other things to: “(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the UN Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders.” Consequently, all that was said above regarding the rule of law in Article 21 and the headline under which this article is placed also refer to the value of peace. It is clear from the above provisions of the Treaty that the principles protecting the rule of law and peace constitute the fundamental norms of European law. In doing so, both principles protect these values in the relations within each member state, relations between member states themselves, and relations of the EU and the member states with non-EU countries. Once these fundamental norms are recognized, it is possible to construct the principle protecting the value of compulsory adjudication in the following way: it is not possible to protect the peace and the rule of law if compulsory adjudication is not protected.

3.1.2

Unformulated Principle in the Normative Documents for EU Accession

In addition to the Treaties, both norms on the protection of the rule of law and peace that enables the construction of the principle of compulsory adjudication can be found in the normative documents determining the criteria for EU accession. Furthermore, the claim for the existence of the principle of the compulsory adjudication can be perceived as justified on the basis of the formulated norms with the specific content directly related to obligations required by this principle. One of the criteria for membership of the EU, as laid down in Copenhagen in 1993, is determined as the stability of the state institutions guaranteeing the rule of law.52 Concerning the negotiations with the candidates for membership, the EU attaches particular importance to the rule of law (especially Chapter 23 on Justice and Human Rights) and to peaceful relations with neighbouring countries. For example, in the European Parliament Enlargement Resolution (2012), the rule of law and the peaceful resolution of disputes are emphasized as the criteria for accession negotiations.53 Paragraphs 14 and 15 of the Resolution, state that the negotiating approach places priority on judiciary and fundamental rights, as well as on justice and home affairs, and stresses the importance of building an efficient, independent and impartial judiciary that can strengthen the rule of law. The same document requires the settling of the disputes involving countries that want to join the EU. Paragraph 27 requires the EU to support efforts to resolve existing disputes,

52

European Council in Copenhagen 22/06/1993: Conclusions of the Presidency (Doc/93/3). European Parliament resolution of 22 November 2012 on Enlargement: policies, criteria, and the EU’s strategic interests (2012/2025(INI)).

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including border disputes, before accession in accordance with the provisions of the UN Charter and the Helsinki Final Act. The formulated norms with specific content directly related to obligations required by this principle of compulsory adjudication can be found in several normative documents regulating the EU accession process. Firstly, the aforementioned European Parliament Enlargement Resolution (2012) in paragraph 27 “encourages all parties to disputes whose continuation may impair implementation of the Union’s acquis or endanger the preservation of international peace and security to engage constructively in their peaceful resolution and, if appropriate, in case of not being able to reach a bilateral agreement, to refer the matter to the International Court of Justice or to commit themselves to a binding arbitration mechanism of their choice, or else work constructively within an intensive mediation mission.” The European Parliament “reiterates its call on the Commission and the Council to start developing, in accordance with EU Treaties, an arbitration mechanism aimed at resolving bilateral and multilateral disputes.”54 Secondly, the Enlargement Strategy for Western Balkans (2018) warns that the EU will not import bilateral issues and then formulates the norm with the following specific content related to the compulsory adjudication: “[w]here border disputes are not settled bilaterally, the Parties shall submit them unconditionally to binding, final international arbitration, the rulings of which shall be fully applied and respected by both parties before accession and taken into account in the preparation of the Accession Treaties.”55 Thirdly, the documents on EU general position regarding EU accession negotiations with Croatia,56 Turkey,57 Montenegro58 and Serbia59 requires candidate-countries to settle existing border disputes before the ICJ (“ICJ or arbitration” for Serbia) if they fail to resolve such disputes in another way.

54

European Parliament (2012) Resolution on Enlargement: policies, criteria, and the EU’s strategic interests 2012/2025(INI), 22 November 2012, http://www.europarl.europa.eu/sides/getDoc.do? pubRef¼-//EP//TEXT+TA+P7-TA-2012-0453+0+DOC+XML+V0//EN. 55 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A credible enlargement perspective for and enhanced EU engagement with the Western Balkans. Strasbourg, 6.2.2018 COM (2018) 65 final, p. 7. 56 Council of the EU (2005) Negotiating Framework: Principles Governing the Negotiations. Accession negotiations with Croatia: General EU Position, Brussels, 16 March 2005, point 13. http://ec.europa.eu/enlargement/pdf/croatia/st20004_05_hr_framedoc_en.pdf. 57 Council of the EU (2005) Negotiating Framework: Principles Governing Negotiations. Accession negotiations with Turkey: General EU Position, Brussels, 12 Oct 2005, 12823/1/05 REV 1 LIMITE ELARG 64, point 6. 58 Council of the EU (2012) Negotiating framework: principles governing negotiations. Accession negotiations with Montenegro: General EU Position, Brussels, 29 Mar 2012, 8339/12 LIMITE ELARG 31, point 5. 59 Council of the EU (2013) Negotiating Framework: Principles Governing the Negotiations. Accession negotiations with Serbia: General EU Position. Brussels, 17 Dec 2013, 17976/13 LIMITE ELARG 177, point 16 and 23.

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Principle of Compulsory Adjudication as Emerging from Custom in the EU (and EFTA) Region

The principle of compulsory adjudication can be understood as an unformulated norm emerging from custom. This argument requires the existence of a pattern of behaviour of submitting disputes to compulsory adjudication and a subjective awareness of this behaviour as an obligation. This obligation does not have to be necessarily a legal one to qualify a custom as emerging norm, but it has to have the potential to be recognized as legal. In the following two sections we will examine the practice of EU Member States regarding the acceptance of compulsory adjudication (Sect. 3.2.1) and the practice of EU organs manifesting the attitude of recognizing this practice as an obligation (Sect. 3.2.2). When exploring the first, we will add the data on EFTA states—Norway, Switzerland, Liechtenstein, and Iceland—which are in special relations with the EU and share the same practices as the Western European states regarding the principle.

3.2.1

Practice of EU (and EFTA) Member States

One feature in the international relations of EU Member states, especially Western European countries of the EU, is the strong tendency to obey the principle of compulsory adjudication. This tendency will become evident by presenting the commitments of states to accept in advance the compulsory jurisdiction of the judicial body for categories of disputes. The information regarding the acceptance of compulsory conciliation will be also included as it is indicative of the existence of the attitude towards compulsory adjudication. In addition, we will present data on the stronger attitude of some of these states that have not only accepted compulsory adjudication for the type of disputes called legal disputes, but also accept the compulsory adjudication for an additional type of disputes called political disputes. Two introductory notes before presenting the analysis of the data. The first note refers to the distinction between legal and political disputes. It can be understood by following the European Convention on the Settlement of Disputes. According to the Article 1 of this normative document the ICJ has jurisdiction over all legal disputes and, in particular, those concerning: (a) the interpretation of a treaty; (b) any question of international law, (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation.60 While for

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European Convention for the Peaceful Settlement of Disputes (1957) has listed the same examples of the legal dispute as the Statute of the ICJ, with one main difference. While the Statute numbers the legal disputes as the closed list, the Convention mentions the instances of legal disputes as examples. In the article 1 of the Convention the formulation is the following: “[. . .] all international legal disputes [. . .] including, in particular, those concerning [. . .].” On the other side, the Statute in article 36 is formulated as: “[. . .] the jurisdiction of the Court in all legal disputes

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disputes which are not legal in the sense of Article 1, the arbitration is being determined which is normally preceded by conciliation. In this case, arbitration is compulsory only if the states did not, at the time of ratification, declare that they were not bound by the provisions of the Convention. The second note is that a complete picture of the extent to which binding law enforcement is accepted is only possible if the reservations that the states might make when accepting the compulsory adjudication are considered. The reservation may be general or related to a particular kind of dispute, such as, for example, in the case of Ireland, which has excluded from compulsory adjudication the dispute with the United Kingdom on Northern Ireland. In general, these categories refer to future disputes, although some states have accepted the obligation for all disputes. However, most of the EU states have excluded from adjudication existing disputes belonging to one or both of the following categories: those arising before a specified date (usually the date of the acceptance of compulsory adjudication); and those for the purpose of which the party in dispute has only accepted compulsory adjudication. Although the reservations of the state can significantly limit the scope of disputes to be resolved by the rules of law, the acceptance of the compulsory international adjudication by the European states and despite such reservations undoubtedly manifest the tendency of states to build a completed European legal order. The analysis of the data relevant for indicating the practice of the EU (and EFTA) member states towards the principle of compulsory adjudication discovered the following: 1. The practice of accepting compulsory adjudication comes first and foremost from membership in the EU. In those areas of life where normative regulation falls within the jurisdiction of the institutions of the EU, the EU Member States leave the EU Court of Justice to rule on the disputes that otherwise would escalate as disputes between Member States (TFEU Articles 258, 259 and 267). 2. Along with the commitment to the judicial dispute resolution in the area of EU law, almost all EU Member States have accepted compulsory adjudication for all other future legal disputes. The inquiry into the multinational treaties61 reveals

concerning: [. . .]”. European Convention for the Peaceful Settlement of Disputes (1957). UN Treaty Series 320, I-4646, 1959, pp. 243–267. Statute of the International Court of Justice, UN Treaty Series 1 XVI, available at https://treaties.un.org/doc/Publication/CTC/uncharter-all-lang. pdf. 61 The data on practice of states provided in Sects. 3 and 4 are based on the analysis of five multilateral treaties as listed in this note and all of them are accessed on July 20, 2020. (1) Statute of the ICJ (Ibidem); Depositary Notifications (CNs) by the Secretary-General: Declaration recognizing as compulsory the jurisdiction of the ICJ in conformity with Art. 36(2) of the Statute, https:// treaties.un.org/Pages/CNs.aspx?cnTab¼tab2&clang¼_en—Treaty Reference I4. (2) UN Convention on the Law of the Sea, UN Treaty Series 1833 I-31363, 1994; Status of Treaties; Declarations and Reservations: UNCLOS 1982, status of 20 May 2020, https://treaties.un.org/Pages/ ViewDetailsIII.aspx?src¼TREATY&mtdsg_no¼XXI-6&chapter¼21&Temp¼mtdsg3&clang¼_ en. (3) European Convention for the Peaceful Settlement of Disputes (Ibidem); Council of Europe

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that all the Member States of the EU, except France, Czech Republic, Slovenia and Croatia, accept the compulsory jurisdiction of the ICJ. France left the regime of the optional clause, while the rest of the mentioned states never accepted the compulsory regime. In addition, EFTA States, except Iceland, also accepted the jurisdiction of the ICJ. The EU and EFTA States have accepted the jurisdiction of the ICJ based on the European Convention on the Settlement of Disputes (1957),62 the Revised General Act for the Settlement of Disputes (1947), or by accepting the Optional Clause of the ICJ Statute. 3. Indicative for the peaceful settlement of disputes in Europe is that new members from Eastern Europe have accepted the jurisdiction of the ICJ in the process of accession or after their accession to the EU: Estonia (1991), Bulgaria (1992), Hungary (1992), Poland (1996), Slovakia (2004), Lithuania (2012), Romania (2015) and Latvia (2019).63 As we have stated, the Czech Republic, Slovenia and Croatia are the only states from the fifth and sixth waves of enlargement of the EU that have not done the same. 4. Also, from the review of the Convention for the Peaceful Settlement of Disputes, it can be concluded that 11 EU Member States—Austria, Germany, Belgium, Netherlands, Luxembourg, Denmark, Sweden, Finland, Estonia, Greece and Malta—and three EFTA—States, Switzerland, Luxembourg, and Liechtenstein—in addition to accepting the compulsory jurisdiction of ICJ, also accepted arbitration for solving political disputes as defined above. 5. All member states of the EU, except Spain, Ireland, Bulgaria and the Czech Republic, have accepted compulsory conciliation for all future disputes. As part of the Law of the Sea, all the Member States of the EU and the EFTA, apart from

(2020) Reservations and Declarations for Treaty 023—European Convention for the Peaceful Settlement of Disputes. Declarations in force as of today, status as of 20 May 2020, https://www. coe.int/en/web/conventions/full-list/-/conventions/treaty/023/declarations?p_auth¼biM6UAeU; Council of Europe (2020) Chart of signatures and ratifications of Treaty 023—European Convention for the Peaceful Settlement of Disputes status as of 20 May 2020, https://www.coe.int/en/web/ conventions/full-list/-/conventions/treaty/023/signatures?p_auth¼biM6UAeU. (4) Revised General Act for the Pacific Settlement of International Disputes (1949), UN Treaty Series, vol. 71 I-906-923, 1950, pp. 101–127; Status of Treaties: Revised General Act for the Pacific Settlement of International Disputes, status of 20 May 2020, http://treaties.un.org/Pages/ViewDetails.aspx? src¼IND&mtdsg_no¼II-1&chapter¼2&lang¼en. (5) Convention on conciliation and arbitration within the Conference on Security and Co-operation in Europe (1992), UN Treaty Series 1842, I-31413, 1994, pp. 150–311; List showing signatures and ratifications or accessions with respect to the Convention on Conciliation and Arbitration within the OSCE, January 2020, https://www.osce. org/court-of-conciliation-and-arbitration/446104; Convention on conciliation and arbitration within the OSCE—Reservations, Declarations and Statements, Reservations Made on the Basis of Article 19(4), Declarations Made on the Basis of Article 26(2), 13 February 2020, https://www.osce.org/ court-of-conciliation-and-arbitration/109785. 62 For example, before 2015 Italy did not accept jurisdiction of the ICJ under the optional clause of the Statute of the ICJ, but it has accepted the jurisdiction of this Court under the 1957 Convention for the Peaceful Settlement of Disputes. 63 The most Western European countries (15), which have accepted the ICJ, did so before 1960, with the exception of four countries: Spain in 1990, Greece in 1994 and Ireland in 2011.

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Switzerland and Liechtenstein, as non-maritime states, have accepted the system of compulsory conciliation and compulsory adjudication of some judicial body provided by the Convention on the Law of the Sea. In doing so, some States— France, Great Britain, Iceland, Italy, Portugal, Slovenia and Spain—have made reservations regarding adjudication on the boundaries at sea. 6. Finally, all EU Member States and EFTA have accepted the jurisdiction of the International Criminal Court, the European Court of Human Rights and the adjudicative mechanism of the World Trade Organization. Significantly, the UN Convention on the Law of Treaties has been ratified by all EU Member States and EFTA countries except France, Norway and Romania. 3.2.2

Practice of EU Organs: Political Statements on International Rule of Law

In the international arena, the EU has persistently expressed its commitment to the principle of the international rule of law in inter-state relations. As mentioned above this principle implies the principle of compulsory adjudication. The analysis of foreign policy statements discovers that EU representatives in international relations repeat the elements of the following formula: (a) this principle is one of the EU fundamental principles; (b) it has to be respected by all states in their international relations; and (c) it requires the acceptance of compulsory adjudication. We will illustrate the presence of this elements in the selected examples of such statements. On 25 September 2002, the head of the European Commission’s Delegation to the UN John B. Richardson, said in his speech to the National Committee on American Foreign Policy that the analysis of EU foreign policy values—to which the member-states have committed themselves in the EU founding treaties—reveals five ideas of such a policy, among which is the rule of law, as the ground of the interstate relations.64 On 14 October 2009, Erik Wennerström, the principal legal adviser on international law in the Ministry for Foreign Affairs of Sweden, spoke at the session of the Sixth Committee of the UN General Assembly on the Rule of law at the National and International Level on behalf of the EU, its member-states, candidate countries, potential candidates, as well as of Ukraine, Moldova and Georgia. In his statement he said strengthening of the rule of law at the national and international levels was a priority of the EU. He emphasized that the legal order based on rules and respect for the rule of law was the backbone of a peaceful coexistence of nations and an essential prerequisite for interstate-relations. He found the rule of law as one of the key principles on which the EU was building its international relations and its efforts to promote peace, security and prosperity around the world. He stated that the rule of

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Summary: September 25, 2002: Remarks by John B. Richardson, Head of the Delegation of the European Commission to the UN (2001–2005), on “What Unites and What Divides the Transatlantic Community?” at The National Committee on American Foreign Policy (New York). The summary was published at: http://www.europa-eu-un.org.

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law on the international level needed to rest on sufficient and effective means to ensure accountability to law and to dispute settlements when the obedience of the law is in question; and in that context he added that the EU recalled a recommendation from the 2005 World Summit according to which states should consider the acceptance of the ICJ jurisdiction.65 On 19 January 2012, the call to states to accept the compulsory jurisdiction of the ICJ was repeated in the UN Security Council by Thomas Mayr-Harting, the head of the EU’s Delegation to the UN, speaking on behalf of the EU, its member-states, candidate countries, potential candidates as well as of Ukraine and Moldova. He also emphasised the critical importance of the rule of law for the EU’s external policy.66 On 8 October 2018 and 15 October 2019, a similar political statement was provided by Eric Chaboureau, the first counsellor of the EU’s Delegation to the UN, in his last two speeches at the sixth committee of the UN General Assembly. On behalf of the EU, its member states, candidate countries, potential candidates, Ukraine, Moldova and Georgia, he expressed support to acceptance of the compulsory jurisdiction of ICJ for the resolution of inter-state disputes as well, as to the rulebased international legal order.67

3.3

Principle of Compulsory Adjudication as Emerging from EU Culture and the Political Morality of the EU

Two specific features of European culture have strongly influenced the post-war shaping of inter-state relations in Western Europe. The first one is the experience of war dominating the European past. While, for instance, American culture was shaped by the experience of peace on its own territory—with one civil war and one recent ‘September 11’ attack on the American territory—Europeans have for centuries lived in an environment of mutual wars of their states whose hostilities

65 Summary: 14 October 2009, New York—Statement on behalf of the EU by Dr Erik Wennerström, Principal Legal Advisor on International Law, Swedish Ministry for Foreign Affairs, in the Sixth Committee of the General Assembly on Rule of Law at the national and international levels (Agenda item 83), UN. The summary was published at http://www.europa-eu-un.org. See also: https://www.un.org/press/en/2009/gal3367.doc.htm. 66 Summary: 19 January 2012, New York—Statement on behalf of the EU and its Member States by H.E. Thomas Mayr-Harting, Head of the Delegation of the EU to the UN, at the UN Security Council Debate on “The promotion and strengthening of the rule of law in the maintenance of international peace and security”. The summary was published at: http://www.europa-eu-un.org. See also: Security Council Meeting Records S/PV.6705 (Resumption 1) at https://www. securitycouncilreport.org/. 67 Statements (8 October 2018 and 10 October 2019, New York) on behalf of the EU and its Member States by Mr Eric Chaboureau, First Counsellor, Delegation of the EU to the UN at the Sixth Committee of the 73rd and 74th Session of the UN General Assembly on Agenda item: The Rule of Law at the national and international levels, https://eeas.europa.eu/delegations/un-newyork_en.

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culminated in two world wars. Particularly, the experience of World War II influenced the political discourse on European unification. The second feature is the experience of multilateral cooperation. The embedded attitude towards cooperation is a powerful part of Western European history68 deriving from the communion of the ‘European spirit’69 and the mutual economic and political interdependence of European peoples. These two European collective experiences on mutual crossborder co-operation and the wars that interrupted it, have influenced the processes of stabilizing the peaceful relations among Western European states after the World War II. One of these processes, which led to the creation of the EU officially began in 1951 with the primary goal of preserving the lasting peace in Europe. With the trauma of World War II, politicians and intellectuals of Europe of different political positions shaped the vision of a united Europe as a means of avoiding future violent conflicts. The political idea of European unification in the post-war period was supported by proponents of both the socialist-leftist and the liberal-right political worldviews in their opposition to the nationalist ideologies that had been radically manifested in national-socialist and fascist movements. The idea of the European Federation was advocated by the left wing of the Italian resistance movement in its 1941 Ventotene Manifesto, in which Altiero Spinelli and Ernesto Rossi warned of the danger of nationalism to the Europe’s peace. The conservative Winston Churchill in his 1945 speech in Zurich, when talking about the tragedy of Europe caused by the nationalist disputes of European states, advocated the creation of the United States of Europe. The French foreign minister Robert Schuman proposed in 1950 the creation of the European Coal and Steel Community, so that the war between France and Germany would become not only unthinkable but materially impossible.70 The father of the EU Jean Monnet recognized in the new form of collective action of the European states a way out of the conflicts grounded on nineteenth century philosophy resulting from the increasing power of the state.71 Joschka Fischer has seen the process of the European integration as the response to the hegemonic wars that led to two world wars in a relatively short period between 1914 and 1945.72 In his 2012 speech about the state of the Union, the former 68

Wallace and Wallace (2000), p. 40. See Morin 1990. Edgar Morin noticed that if we are looking for the essence of Europe, we find evanescent and fluid “European spirit” with origin in Greek, Latin and Christian principles. Morin (1990), p. 37. 70 Robert Schuman in his Declaration from 1950 has emphasized that by pooling basic production and by instituting a new High Authority, whose decisions will bind France, Germany and other member countries, this proposal will lead to the realization of the first concrete foundation of a European federation indispensable to the preservation of peace” Schumann (Schuman Declaration 1950) in: Nelson and Stubb (2003), p. 14. 71 Monnet J. (A Ferment of Change 1960) in: Nelson and Stubb (2003), pp. 21–22. 72 “European integration was the response to centuries of a precarious balance of powers on this continent which again and again resulted in terrible hegemonic wars culminating in the two World Wars between 1914 and 1945. The core of the concept of Europe after 1945 was and still is a rejection of the European balance-of-power principle and the hegemonic ambitions of individual states that had emerged following the Peace of Westphalia in 1648, a rejection which took the form 69

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president of the European Commission José Manuel Durão Barroso, called for the creation of a federation of European states in response to the world economic and political crisis.73 The vision of European peace is expressed in the preamble of the Rome and Paris Treaties establishing the European Communities. The reason for the establishment of the European Coal and Steel Community can inter alia be found in the intention to replace the long-standing rivalry with the unification of fundamental interests and to create the embryo for a future community of peoples that were previously divided by bloody conflicts. The founders of the European Economic Community have found it’s raison d’être in the preservation of peace through the unification of Member States’ resources.74 Finally, the draft of the never-accepted EU Constitution set out the EU’s goal of promoting peace75 and the same goal is finally confirmed in the Lisbon Treaty.76 Although further development of the EU pushed into the foreground the idea of economic development as the primary goal of the integration process, the idea of maintaining the peace on the continent remains one of the fundamental values of the project of the European unification. Accordingly, the political morality of the post-war European order is different from the political morality of the international order. While the international order is still the Westphalian order in which the basis for inter-state relations is the principle of non-interference in the affairs of another state, European order has gone a step further. In the international order, the value of peace still means the exclusion of coercion in mutual relations, so intervention of the international community in state affairs is excluded as long as there is no threat to peace.77 Thus, general international law is not yet the decisive factor for resolving the nonviolent disputes. On the other hand, the post-war European order is based on the idea of peace through the rule of law. It is not enough that there is only the absence of force in the relations between

of closer meshing of vital interests and the transfer of nation-state sovereign rights to supranational European institutions.” Joschka Fischer, From Confederacy to Federation—Thoughts on the Finality of European Integration, speech given at Humboldt University in Berlin, 12 May 2000. In: Nelson and Stubb (2003), pp. 70–71. 73 Speech by Barroso, José Manuel Durão, President of the European Commission, at the State of the Union Conference 2012 (12.9.2012.), http://europa.eu/rapid/press-release_SPEECH-12-596_ en.htm. 74 Schuman’s plan for the establishment of the European coal and steel community was grounded on the idea to stabilize the relations between Germany and France. “The plan was not only economically inspired, but represented an attempt to restabilize relations between France and Germany after the war, to allay French fears about any German military threat, and to bind them within a limited framework of peaceful co-operation in order to avert rivalry over the coal producing regions of Ruhr and Saar.” Craig and de Búrca (2003), p. 8. 75 Draft Treaty establishing a Constitution for Europe, CONV 850/03, 18.7.2013, http://europeanconvention.eu.int. 76 See above Sect. 3.1. 77 The international practice show that intrastate violence could emerge as a relevant fact for international intervention. This expanded concept of the threat to peace or breach of peace is still narrower concept than the concept of peace through law.

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states, but the relations among European states must be regulated by law. Such political morality gets its normative confirmation in the fundamental European legal documents.

4 Compulsory Adjudication and the Western Balkans 4.1

Principle of Compulsory Adjudication in the National’s Normative Systems on EU Accession

As mentioned above, the EU issued an enlargement strategy for the Western Balkans according to which the import of bilateral disputes to EU should not be allowed. The document then formulates the norm on compulsory adjudication with specific content. We will mention two notes regarding this norm. Firstly, the norm explicitly refers only to border disputes. Nevertheless, if the norm is understood as the implementation of the unformulated principle on compulsory adjudication then it is possible to construct the norm broadening the expressed obligation to other disputes. The example below confirms this possibility when the requirement from the Strategy is individualized for each country. Secondly, the norm explicitly refers only to the existing disputes. However, if it is used for the construction of the principle of compulsory adjudication, then the norm postulating the same obligation for future disputes can be constructed as a requirement coming from the principle. The obligation of accepting compulsory adjudication to resolve existing disputes if other means of peaceful resolution of disputes fail seems to be regularly incorporated in the negotiating framework for each of the WB candidate-countries. Montenegro and Serbia, as the only candidate-countries with the negotiating framework from the WB region at the moment, have accepted the mentioned norm that was broadened for Serbia. Montenegro is under an obligation to settle border disputes by the means of compulsory adjudication if necessary. The progress in its preparation for accession will be measured in particular, among others, against the “Montenegro’s undertaking to resolve any border disputes in conformity with the principle of peaceful settlement of disputes in accordance with the UN Charter and the UN Convention on the Law of the Sea, including, if necessary, compulsory jurisdiction of the International Court of Justice.”78 The Republic of Serbia is required to make an “undertaking to resolve any border disputes in conformity with the principle of peaceful settlement of disputes in accordance with the UN Charter, including, if necessary, the compulsory jurisdiction

78

Council of the EU (2012) Negotiating framework: principles governing negotiations. Accession negotiations with Montenegro: General EU Position, Brussels, 29 Mar 2012, 8339/12 LIMITE ELARG 31, point 5.

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of the International Court of Justice or arbitration mechanisms.”79 However, it is interesting to notice that in the EU opening statement for accession negotiations, which precedes the negotiating framework as an integral part of the document, the obligation is formulated in a way to cover all existing issues in regional cooperation. “[The progress will be measured against Serbia’s undertaking to resolve outstanding issues and legacies of the past, in line with international law and relevant Council conclusions, and in conformity with the principle of peaceful settlement of disputes in accordance with the UN Charter, including, if necessary, the compulsory jurisdiction of the International Court of Justice or arbitration mechanisms.”80

4.2

Customs Regarding Disputed Relations in the Western Balkan Region

The practice of WB states in their disputed relations can be evaluated as inadequate when compared to the European trend toward the acceptance of compulsory adjudication.81 The only WB state that has accepted general compulsory adjudication is Macedonia.82 Not even general compulsory conciliation is accepted by Serbia, Montenegro and Kosovo. Consequently, except for some specific disputes defined by specific international conventions such as the one mentioned below on the law of sea, there is no way for one party to the dispute to unilaterally initiate adjudication; and the initiation of conciliation is possible only in the case of disputes among three WB states (Albania, Bosnia and Herzegovina and Northern Macedonia). The situation regarding the possibility of unilaterally initiating adjudication or conciliation in case of a dispute is better concerning the specific area of the Law of the Sea. The situation is better because all WB countries except Kosovo are parties to UNCLOS and Kosovo (as well as Serbia and Northern Macedonia) has no maritime borders. However, even in this specific area of regulation it is interesting to notice that Montenegro has declared a reservation to UNCLOS which makes it excluded from the obligation to submit the maritime border disputes to adjudicative body. An additional problem for the WB region is the practice of Croatia and Slovenia regarding compulsory adjudication. Both EU Member States have a specific relation with the WB states due to previous statehood connections and Croatia, in addition, 79

Council of the EU (2013) Negotiating Framework: Principles Governing the Negotiations. Accession negotiations with Serbia: General EU Position. Brussels, 17 Dec 2013, 17976/13 LIMITE ELARG 177, point 23. 80 Council of the EU (2013) Negotiating Framework: Principles Governing the Negotiations. Accession negotiations with Serbia: General EU Position. Brussels, 17 Dec 2013, 17976/13 LIMITE ELARG 177, point 16. 81 For sources of the data in this section see above note 61. 82 Northern Macedonia has accepted arbitration provided by the Convention on conciliation and arbitration within the Conference on Security and Co-operation in Europe (1992) UN Treaty Series 1842, I-31413, 1994, pp. 150–311.

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has specific relations due to borders with two candidate and one potential candidate countries for EU membership. Many of these relations regarding previous statehood and borders are still in dispute. Interestingly, Slovenia and Croatia have not accepted general compulsory adjudication or conciliation. Regarding the Law of the Sea, Croatia has accepted a mechanism for compulsory adjudication envisaged by the UNCLOS, and Slovenia, although it accepted the same mechanism, excluded the obligation of compulsory adjudication by reservation in the case of territorial disputes.

4.3

Culture and Political Morality of the Western Balkans

The culture and political morality of the WB states have been integrated through the process of EU accession with European culture and political morality as described in the previous section. However, specific factors appear in this region: the historical experience and particularly the experience of the 1991–2001 armed conflicts, the experience of the emergence of new states and the experience of the transformation of communist into capitalist societies. These factors could have produced certain specificities of WB culture and political morality that influence the reluctance towards the principle of compulsory adjudication. Laurence R. Helfer and Anne-Marie Slaughter have analysed the explanations provided in the literature about the factors that influence different manifestations of the cultural reluctance to international adjudication.83 One of these factors is recognized as the lack of commitment to the rule of law. According to the thesis tagged on to this factor, the states committed to the rule of law domestically will be more inclined to accept restrictions on international relations due to the projection or transfer of their domestic habits to the international arena. In other words, the states “accustomed to self-imposed constitutional constraints at home, constraints enforced by an independent judiciary, [. . .] are more likely to accept the constraints of international law as enforced by international or supranational tribunal.”84 Following this thesis, it can be argued that states without a domestic tradition of respect for the rule of law and the subsequent recognition of the importance of an independent judiciary are less inclined to respect the judgments of international courts.85 Another factor, closely connected to the previous one is the belief regarding the relation between law and power. For instance, in many communist states, law was regarded primarily as a tool of elite and in many former colonies, law has been primarily an instrument of state oppression.86 However, Helfer and Slaughter find examples of states with a developed national rule of law opposing international adjudication.

83

Helfer and Slaughter (1997), pp. 328–337. Helfer and Slaughter (1997), p. 332. 85 Ibidem. 86 Ibidem. 84

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Those states, for example the U.S.A., sometimes conclude that they have no need for international supervision but on the contrary receptivity to international law, including the judgments of a supranational court, might weaken the national legal system.87 In the same vein, the highest courts of some European states often fought against acceptance of European law supremacy, in part to defend their institutional prerogatives, but also, particularly in Germany and Italy, to safeguard their role in ensuring a domestic rule of law established by their post-war constitution.88 We can summarize this contemplation by emphasizing three cultural factors that negatively influence the acceptance of the principle of compulsory adjudication: (a) undeveloped attitudes and beliefs towards the rule of law; (b) a belief that law is an instrument of power and; (c) an attitude to protect the national rule of law. This cognition of negative factors could be supplemented with the insights into factors that positively influence the acceptance of the principle. The positive factors might be discovered by exploring the features of the group of Western European countries showing a tendency of accepting the principle that is even stronger than the general positive tendency of all Western European countries. All of the states in this group have accepted not only the general jurisdiction of ICJ, which is a typical characteristic of Western European countries in general, but also arbitrations for political disputes. The reasons for this even stronger inclination towards compulsory adjudication can be sought in some historical and socio-political facts characterizing these group of states such as: (a) the exposure to wars (Scandinavian states, Switzerland); (b) the tradition of neutrality (Austria, Finland, Switzerland); (c) and the size of states and population (Luxembourg, Liechtenstein, Finland). The modest theoretical framework developed above enables us to comment on the cultural factors influencing the rejection of the compulsory adjudication by the WB states. It can be assumed from the specific factors identified above that characterize these countries—history of the region, wars, emergence of new states, communism—that the reason for the rejection of the principle of compulsory adjudication is more likely due to the undeveloped culture of the rule of law and the historical legacy of understanding international law is the one where the more powerful states have the means to impose their will on the weakest. The strength of the negative factors has eliminated the influence of the factors which positively influence the attitude towards the principle. Although each of the positive factors— exposure to recent wars, the size of the countries and even the traces of the inclination towards neutrality—could also be ascribed as characterizing WB states, these factors did not appear to have had any impact on the acceptance of the international compulsory adjudication. The only exception to the prevailing WB paradigm against the principle could be seen in the case of the North Macedonia which has adopted some mechanisms of compulsory adjudication as well as the Interim Accord with Greece regarding the name dispute.

87 88

Ibidem. Helfer and Slaughter (1997), p. 333 in note 261.

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5 Conclusion In previous sections we have argued that the concept proposed in this contribution adequately fits with fundamental theses expressed in the current studies of the phenomena of emerging norms and that it contributes to a better understanding and identification of such norms (Sect. 2.3 as the response to first question of the first conceptual problem). On the basis of analysed data, we have concluded that specific manifestations of formulated norms, customs and culture in regard to the principle of compulsory adjudication in the context of European law are of the character that the principle could be classified as an emerging norm following the proposed concept (Sects. 3 and 4 as the response to the second question of the first conceptual problem). Furthermore, it can be claimed that manifestations of all three factors are strong in EU Member States. Moreover, the EU has formulated norm obliging European states outside the EU to submit existing disputes to adjudication if they have not been resolved in other ways before the EU accession. This norm can be understood as the fulfilment of one of the obligations required by the principle of compulsory adjudication. Namely, the principle imposes a primary obligation to submit all future disputes to adjudication. The obligation to submit existing disputes to adjudication is a secondary obligation which appears when the fulfilment of the primary obligation leaves some disputes outside adjudication. It does not make sense for EU Member States to require European non-member states to submit exiting disputes to adjudication and not require the same for the future disputes. Moreover, it seems unprincipled for EU Member States to accept the obligation for themselves to submit the future disputes to adjudication and leave the existing disputes unresolved. As the result of these contradictions, we can conclude that the formulated norm on existing disputes and the custom concerning future disputes are the implementation of the two requirements of the principle of the compulsory adjudication which should be equal for all the European states. In respect to WB countries, as the group of European non-member states, we have found that custom (second factor) and partially culture (third factor) are the weak factors in regards to the emerging principle. The factor of formulated norms that can be used for the construction of the principle (first factor) is stronger due to the norms on EU accession that are regularly accepted by the WB states with the progress of the accession process. The acceptance of these norms is connected with the strong cultural attitude towards EU accession (third factor). Thus, the principle of compulsory adjudication can be theoretically explained as the emerging norm of European law. It remains to address the question of whether these theoretical considerations of emerging norm may be used to justify the claim for the implementation of the principle as the legal prerequisite for the accession of WB countries to the EU (the question of the second conceptual problem). As the consequence of what was said above, it seems that the acceptance of the secondary obligation of the principle as the legal norm by WB states depends mainly on the compulsion of the EU. The refusal of granting membership to EU is an act which makes the norms for accession de facto coercive. And each EU Member State

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can coerce the candidate-country to fulfil the requirements for EU accession. However, this coercion cannot be presented as the sheer expression of political will. It has to be justified by other norms. And this is where the theoretical explanation of the principle as the emerging norm finds its place in the legally regulated process of accession. If an EU member-state can justify the requirement for the implementation of the principle of compulsory adjudication as based on the emerging norm of European law, and this means to argue why the norm should be considered as justiciable, this seems to be experienced as a legal demand in the process of accession. However, this does not mean that the objection to such requirement cannot be justified by employing other legal principles in legal reasoning. If the objection is formulated by recalling the principle of equality posited as a legal demand in the discussion on fulfilling the requirements for EU accession, this objection can be justified by pointing to four EU Member States that still do not accept the principle. The response to this objection might be based on the specific context of the Western Balkan region and on the argument of a transitional period for accepting the principle which was obvious in the practices of other Eastern Europe member-states. A different issue relevant to the applicability question is the prediction whether the requirement as grounded in law is likely to be recognized and formulated by the actors as relevant for decision-making on the accession process. Although essential for peace-keeping and the rule of law of European order, the legal character of the principle might be neglected if the political discourse overtakes its primacy in an evaluation of the inter-state relations. In that case, the accession process based on objective (i.e. legal) criteria to be fulfilled is transformed in the political process where the claims about any norms including the emerging norms, are part of a tradeoff discourse to which those norms do not originally belong.

References Alexandrov SA (2006) The compulsory jurisdiction of the International Court of Justice: how compulsory is it? Chin J Int Law 5(1):29–38 Brus MMTA (2018) Soft law in public international law: a pragmatic or a principled choice? Comparing the sustainable development goals and the Paris Agreement. In: Westerman P, Hage J, Kirste S, Mackor AR (eds) Legal validity and soft law. Springer, Cham, pp 243–266 Condä HV (2004) A handbook of international human rights terminology. University of Nebraska Press, Lincoln Craig PP, de Búrca G (2003) EU law: text, cases, and materials, 3rd edn. Oxford University Press, Oxford Eaton J (2011) An emerging norm – determining the meaning and legal status of the responsibility to protect. Mich J Int Law 32(4):765–804 Fialho CM (2016) Let us in: an argument for the right to visitation in U.S. immigration detention. In: Guia MJ, Koulish R, Mitsilegas V (eds) Immigration detention, risk and human rights: studies on immigration and crime. Springer, Cham, pp 251–278 Finnemore M, Sikkink K (1998) International norm dynamics and political change. Int Organ 52(4): 887–917

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Garcia D (2006) Small arms and security: new emerging international norms. Routledge, London Green JA (2016) The persistent objector rule in international law. Oxford University Press, Oxford Guastini R (2011) La sintassi del diritto. Giappichelli, Torino Hage J (2018) What is legal validity? Lessons from soft law. In: Westerman P, Hage J, Kirste S, Mackor AR (eds) Legal validity and soft law. Springer, Cham, pp 19–45 Helfer L, Slaughter A-M (1997) Towards a theory of effective supranational adjudication. Yale Law J 107:273–391 Kelsen H (1943) Compulsory adjudication of international disputes. Am J Int Law 37(3):397–406 Kirste S (2018) Concept and validity of law. In: Westerman P, Hage J, Kirste S, Mackor AR (eds) Legal validity and soft law. Springer, Cham, pp 47–73 Lauterpacht H (2000) Functions of law: the function of law in the international community. The Lawbook Exchange, New Jersey Mackor AR (2018) What is legal validity and is it important? Some critical remarks about the legal status of soft law. In: Westerman P, Hage J, Kirste S, Mackor AR (eds) Legal validity and soft law. Springer, Cham, pp 125–164 McDougal MS (1956) Law as a process of decision: a policy-oriented approach to legal study. Nat Law Forum 6:53–72 Morin E (1990) Penser l’Europe. Gallimard, Paris Nelson BF, Stubb A (2003) The European Union: readings on the theory and practice of European integration, 3rd edn. Lynne Rienner Publishers, Boulder Padjen I (2017) Religious rights in Croatia: legal regulation of culturalism. In: Wojciechowski B, Bekrycht T, Cern KM (eds) The principle of equality as a fundamental norm in law and political philosophy. Wydawnictwo Uniwersytetu Lodzkiego, Lodz, pp 119–154 Ross A (2004) On law and justice. The Lawbook Exchange, Clark Ross A (2006) A textbook of international law. The Lawbook Exchange, Clark Thisted EV, Thisted RV (2020) The diffusion of carbon taxes and emission trading schemes: the emerging norm of carbon pricing. Environ Polit 29(5):804–824 Vilmer JJ-B (2020) The forever-emerging norm of banning nuclear weapons. J Strat Stud 43(5): 1–26 von der Pfordten D (2018) Validity in positive law: a mere summary concept. In: Westerman P, Hage J, Kirste S, Mackor AR (eds) Legal validity and soft law. Springer, Cham, pp 1–18 Wallace H, Wallace W (2000) Policy making in the European Union. Oxford University Press, Oxford Waltermann A (2018) Sovereignty and validity: on the relation between the concepts and the role of acceptance. In: Westerman P, Hage J, Kirste S, Mackor AR (eds) Legal validity and soft law. Springer, Cham, pp 203–220 Westerman P (2018) Validity: the reputation of rules. In: Westerman P, Hage J, Kirste S, Mackor AR (eds) Legal validity and soft law. Springer, Cham, pp 165–192

Mario Krešić is assistant professor in the Faculty of Law at the Zagreb University. He holds a PhD in Law, an LLM and a MA in political sciences. His research interests lie in legal theory, international law, constitutional theory and human rights. Selected publications: Process, consequences and means of (de)constitutionalization: a reconstruction of Guastini’s concept of constitutionalization; Legal Consciousness and the (De)constitutionalization of the Legal Order; The Role of Peace in Kelsen and Lauterpacht’s Theories of International Law; Ross’s concept of legal consciousness and deliberate normative change; The Concept of the Quasi-judicial Process in International Law; National or International Adjudication as an Essential Element of International Law?; Implementing Kantorowicz’s and Hart’s Definition of Law in International Law; Legal Theoretical Models of International Law by Kelsen, Lauterpacht and Ross.

Democratic Principle and Nationalistic Aspirations in Plurinational States. A Republican Approach Alberto Carrio Sampedro

Abstract European integration sets up a common acquis beyond state boundaries. Being a political actor in this process involves a commitment to the values on which the EU itself is founded and the rights it safeguards. European integration has paved the way for new ways of political participation that have given a voice to non state actors in this process. From this perspective, this contribution examines the legitimacy of nationalist claims inside EU member states as well as the states facing such claims. I shall argue that as long as both are committed to the common acquis, then both of them are equally legitimate to support their positions. But they are also required to settle these disputes by democratic means in line with that common ground.

1 Introduction Nationalist claims within EU member states are usually seem as somewhat suspicious and a threat to European integration which needs to be carefully handled. Perhaps for this reason, and surely for the need to accommodate institutional differences among member states, legal pluralism has become a distinguishing feature of European integration. On the one hand, the EU institutional framework has devised different decision-making processes enabling non state actors to find a way to promote their interests. On the other hand, there has been a shift in nationalist strategies in order to align with the requirements of European integration within which they aim to have their own voice. As a result, a common ground of legitimacy for the EU’s political institutions, whatever they are, has been gradually established. This contribution aims to examine the legitimacy of EU political actors, both those supporting nationalist claims and those advocating for the status quo. The underlying concern of the contribution is that, as is suspected by some, nationalism

A. Carrio Sampedro (*) Department of Law, Legal Philosophy Area, Pompeu Fabra University, Barcelona, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_3

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claims may jeopardize European integration. But so can member states when dealing with them. Indeed, the most serious challenge to European integration nowadays comes from states themselves rather than nationalist claims from stateless actors. Brexit was a serious challenge to the EU and the implications are still to be seen. While writing this article, we are witnessing the most recent crisis triggered by the Hungarian and Polish veto to the EU budget to deal with the COVID-19 pandemic. Probably the most obvious and saddest example of what I mean. As is well known, the veto is rooted in the refusal to link funding to the commitment to the Rule of Law. Which is to say, the veto is a rejection of the common ground of the legitimacy of EU policies. In any case, both Brexit and the Polish / Hungarian veto are useful examples. They raise a couple of relevant issues for the aim of this article. On the one hand, Brexit sets the basis for an exit agreement. That is to say, it is important in order to learn how to handle a breakdown deal. On the other hand, the Poland / Hungary veto raises a more difficult issue, namely the burden of undermining the foundations of legitimacy of the EU itself. Although the aim of this article is to examine the legitimacy of the EU’s political actors in a broad sense, I shall address the Catalonian-Spanish issue several times since it is the latest clash between nationalist claims and the state’s interest. Having made these explanatory remarks, the roadmap of the article is as follows. In the next section (2), I will introduce what I shall call the meeting point. That is, what each political actor involved in European integration is committed to. Such a meeting point should allow for drafting a line between legitimate and non legitimate claims. Section 3 is aimed at analysing the concept of legitimacy itself and how the values on which it is grounded are safeguarded. Next, in Sect. 4, I will revisit the concept of democracy and shall address an account of republican democracy as non domination as the most consistent way of strengthening European integration. In Sect. 5, I will look at the trustworthy nature of the republican account of democracy as non domination. This republican trust, I shall argue in Sect. 6, is part of the foundations of a free society in which people are allowed to voice political preferences freely and autonomously. That is, they are bound to make agreements among themselves as free and autonomous moral beings. Finally, in Sect. 7, I will address the question of whether nationalism claims can be accommodated within the republican account of democracy as non domination. That is to say, if they can be deemed legitimate claims.

2 The Meeting Point European integration is sometimes seen as the endpoint of nationalistic issues within the European Union (EU). Other times, this process is perceived as an opportunity for the revival of nationalistic demands. The former approach highlights the outdated nature of nationalistic claims at the current stage of transnational integration that is being carried out by EU institutions. But at the same time, this process is seen in the second approach as a big challenge for traditional nation-states. The growing

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importance of Europe of the Regions and the possibilities it gives to new forms of sharing sovereignty and multi-level governance, reinforce this view. Consequently, both, traditional nation-states as main actors in the integration process, and stateless territories working together with EU institutions to build a network with the European Commission and the Committee of Regions, have become enthusiastic supporters of European integration. This enthusiasm and commitment to the European political project has resulted in an important change in the conception and function of the nation-state. Indeed, the main features of the nation-state, namely the traditional link between state, territory, sovereignty and legal competence seems to have been lost in translation. EU member states are no longer sovereigns in very important matters such as national budgets, currency and external borders. The states’ Supreme Courts no longer have the last word on the protection of fundamental rights and legal pluralism is seem as a feature of European political and legal integration. Thus, the European political construction seems to dismiss the traditional concept of state sovereignty at the same time as encouraging legal and constitutional pluralism and the coexistence of, and collaboration among, different legal orders.1 European integration also challenges the idea that the democratic process only works on a state-demos basis.2 That is, this process disparages the traditional link between trust and state identity. Once engaged in the European political project, both trust in institutions and among European citizens, goes beyond state boundaries. It is not by chance that national minorities and nationalistic parties embrace European integration.3 Indeed, European integration is an opportunity for those with nationalistic claims to adapt their strategy in order to have a bigger say in European institutions. Certainly, being part of the process of political integration is a breath of fresh air for nationalistic strategies. But it also implies abandoning the idea of self-determination. In fact, secession is not covered by European laws. It cannot be since being part of a process of shared sovereignty requires reciprocal recognition between state and stateless territories. Thus, territorial organization becomes a domestic matter that must be overcome among the parts inside the European legal framework and accordingly with the values and rights it expresses. In short, it cannot be argued that there is a right to self-determination inside the EU since this right would not apply, by definition, to EU member states. There is no doubt that nationalistic claims could be rooted in, and are usually mixed up with historical facts related to these principles. But there is also little doubt that the same applies to the arguments for supporting the status quo. In any case, I am not interested in discussing these arguments here, nor those related to shared background, or grounded in cost-efficiency reasons. They are all historical and political issues that cause big disagreements among people and as such must be

1

MacCormick (1999), pp. 102ff; Walker (1996), p. 272. Keating (2004), p. 369. 3 This is a common trait of European nationalism, such as Wales, Scotland, Catalonia and the Basque Country. For this and other examples see Keating (2001) and Loughlin (2001). 2

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discussed through a public deliberation process and solved by a fair process of decision making. The aim of the next two sections is to examine the legitimacy of nationalistic claims inside EU member states as well as the legitimacy of the ways adopted to face them. In other words, the legitimacy of both parts acting as political institutions committed to the European acquis and aimed at improving democracy within European borders and beyond. All things considered, once both parts are involved in a common political project, this common view is the only basis to determine which of them better matches the aims of European integration.

3 Legitimate Institutions In the dispute between states and stateless territories, both parties describe themselves as legitimate actors in managing key political issues autonomously, in particular, determining their current and future political status. In other words, what is at stake in this dispute is the legitimacy of keeping the status quo. Long ago, Garzón Valdés distinguished between descriptive and normative legitimacy regarding the stability of political systems.4 The first one refers to people’s assumptions while the second involves ethical principles. The distinction is important because as Garzón Valdés affirms, taking both of them as interchangeable concepts would imply that all political systems are legitimate, since all forms of political domination invoke some kind of legitimacy.5 In similar terms, Buchanan and Keohane, have more recently argued that political legitimacy can be understood in two different ways, namely, sociological and normative.6 The sociological meaning refers to the widespread belief that an institution or government has the right to rule. Buchanan and Keohane exemplify this, referring to international institutions such as the World Trade Organization (WTO) and the World Bank (WB), which are widely recognized as legitimate institutions in this sense. But there are many more cases, such as churches and global Sport Government Bodies (SGBs). The features and functions carried out by these institutions give us an accurate picture of sociological legitimacy. On the one hand, this kind of legitimacy is based on a shared belief, according to which churches and SGBs, as well as WTO and WB, have the right to rule and ask for compliance in their fields. This means, on the other hand, that sociological legitimacy is factual in nature and, consequently, independent, by definition, of any moral and legal reasons.7

4

Garzón Valdés (1987). Garzón Valdés (1987), pp. 576–567. 6 Buchanan and Keohane (2006), p. 405. 7 For a definition of social conventions Lewis (1969), p. 78. On consensus and legitimacy Habermas (1996) Chapter 2. 5

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The normative sense of legitimacy can only be assessed in the light of ethical and moral principles. It deals with the right to rule of a given institution. Thus, in contrast to the sociological meaning, normative legitimacy is independent, by definition, of people’s beliefs. Assessing the normative sense of legitimacy is a much more exigent task than the sociological sense. Since normative legitimacy implies a moral commitment to ethical principles and moral values in which the right to rule that legitimate authorities claim for themselves is rooted, assessing it usually requires being engaged in moral debates. As Buchanan and Keohane say, when people disagree with the decisions of WTO and WB, they do not disagree with their beliefs but with their right to make those decisions. Similarly, when people disagree on the Roman Catholic Church’s prohibition of marriage among divorced people and the attempt of the World Anti Doping Agency (WADA) to implant electronic devices inside the body of athletes to fight doping, they are discussing moral reasons, such as human equality, dignity and so on. Both senses are important to assess the legitimacy of political institutions. The sociological meaning is relevant because the stability and persistence of any political system strongly depend on people’s beliefs. First of all, stability and persistence are descriptive concepts that refer to lasting social facts. Secondly, they both depend on the social acceptance of the rules of authority. Hart’s conception of the rule of recognition of legal systems as a “matter of fact”8 expresses this dependence well. According to Hart, the existence of the rule of recognition is “a complex, but normally concordant practice of the courts, officials, and private individuals in identifying the law by reference to certain criteria”.9 This complex social practice is thus behind the stability and continuity of states. In fact, the stability and continuity of states and other political institutions such as the EU is not different from the continuity of the rule of recognition of the political and legal system.10 In other words, once the rule of recognition is broken, the system fails. Consider the EU, in which the success of the consolidation of the European political project depends on the practice of the courts, officials, private individuals and other political actors applying its laws. Because of this, the challenge that the current UK Prime Minister poses to EU laws is so significant. By refusing to comply with the requirements of the withdrawal agreement, the UK government is challenging the recognition of the EU as a legitimate actor at the international level. In any case, stability and continuity are easily understood as historical facts, such as the political system X has been stable in the period of time T. Let me use a Spanish domestic example to explain this. There is no doubt that the Second Spanish Republic was a legitimate political system before, during and after the brutal military coup d’état in 1936. However, the stability and continuity of the Republican political system lasted as long as its laws were recognized by courts, officials and other states.

8

Hart (1994), p. 119. Ibidem. 10 On legal conventionalism see: Marmor (2001). A view of Hart’s rule of recognition as a constitutive convention, Vilajosana (2019). 9

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Once the military uprising imposed its own legal system, not to mention the war crimes and the crimes against humanity its supporters committed, the Second Spanish Republic no longer existed.11 Even though less dramatic, this change in the rule of recognition was also behind the German Reunification and the Czech and Slovakian split. For better or worse, Europe’s history is littered with examples like these. Not so different from these examples is the aim of stateless nations and territories in the EU. At the end of the day, all of them aim to be recognized as legitimate political actors, which is to say, to have a say in their own political affairs within the EU legal framework.12 But becoming a legitimate actor is both a matter of means and ends. This is why the way of achieving these ends can never be a military dictatorship as occurred in Spain. The right way to achieve this goal is the one followed by both German Republics as well as Czech and Slovakian parties, namely, a mutual recognition as legitimate actors to conclude an agreement on reunification or split processes. This is also the route taken in the Brexit affair. In short, any unilateral measure is understood to be an act of imposition and hence an illegitimate action. This partly explains why the normative side of legitimacy goes beyond people’s beliefs. Even if a large part of the target population supports unilateral measures, this does not make them legitimate. The proper way to solve these issues is always political dialogue. Note, that this requirement works in a dual way. That is to say, it applies to supporters of the status quo as well as to those who support its breakdown. This is because, once it is possible to determine that a large part of the population is asking for political change, ignoring this claim means putting those people under political domination. I shall return to this issue with more detail in the next section. At this point, it is important to retain that the main reason why the normative side of legitimacy goes beyond people’s beliefs is the moral commitment that a legitimate political institution acquires. This moral commitment is usually stated in charters of rights and principles set out in political Constitutions. The commitment includes, at the very least, human rights protection and fair decision-making procedures. That being so, it is easy to see that legitimate institutions are concerned with public deliberation. Otherwise, the moral commitment to the people who allegedly retain the control of political power would be pointless. But public discussion and deliberative processes also need a fair decision-making process to solve the disagreements. This process is what we usually call democracy.

11

It could be alleged that the Second Spanish Republic remained the legitimate Spanish Republican-government-in-exile. There’s no doubt that is an historical fact, but the point to retain is that the Spanish Republican State ceased to exist as such. 12 Bellamy (2019), pp. 90ff.

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4 Democracy There is no doubt that any plausible standard of legitimacy must respect the democratic principle. But what such democratic principle requires is a much-debated issue. On the one hand, democracy can be understood merely as a formal process that allows us to know how many people support a political option. On the other hand, democracy can also be defined as a much more complex process in which the procedure is indissociable from the decision’s content. That is, the democratic procedure is a valuable tool in settling political issues as long as it is aimed at strengthening the moral basis of the political system. In other words, it is a suitable procedure if, and only if, it is meant to protect people’s basic rights and ensure their ultimate control of political power. According to the former approach, democratic procedures are unrestricted. They can be used to adopt any decision. Even those against people’s rights and control of power. The advantage of this approach is that it leaves any kind of decision to the people. The disadvantage is that the majoritarian preference may be against the rights of some people, or even of all. It is, indeed, not difficult to figure out a majoritarian decision against the rights of a minority, or one against the interests of the majority itself. Unfortunately, the dark period of recent European history bears testimony to this. The second approach is seen as the most suitable way to avoid the negative effects of the unrestricted account of democracy, while retaining the positive effects to the greatest extent. According to this account of democracy, there are issues on which the majority cannot decide, the so called “Restricted Area” (Coto Vedado) that Garzón Valdés proposes,13 or on which it is not possible to decide against, as Ferrajoli affirms.14 In short, the moral basis of the political system. This second approach attempts to prevent the risk of domination. That is, it is aimed at safeguarding the basic conditions for an autonomous and free process of decision making. In summary, according to this account of democracy or, if preferred, this conception of democracy as non domination,15 the basic criterion for assessing political legitimacy is the commitment to the basic rights of the people and the power they hold in their hands. Since this second account of democratic legitimacy seems to provide a more fruitful approach, it would be worth exploring it further. This approach certainly requires several other procedural issues, such as transparency, political accountability and also the formal process of listing individual preferences.16 I shall be back to these procedural issues later in this article. There is, however, an additional issue, which, although not usually referred to, is highly important, namely the scope of the Restricted Area. To express it as a question, what is it that cannot be decided? It 13

Garzón Valdés (1990), p. 469. Ferrajoli (2001), p. 51. 15 Pettit (1997), Chapter 6. 16 Bessons and Martí (2018), p. 7. 14

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could certainly be the case that the scope of the Restricted Area is too narrow, but also too wide. The risk of the former is to leave some basic rights unprotected, jeopardizing individual autonomy and equality. The second case, however, threatens individual freedom by limiting the scope of the decision beyond underlying reasons. That is to say, it would be a clear case of ultra vires restriction (beyond authority powers).

4.1

The Moral Basis of Democracy

Let me be clear from the beginning. The moral basis of democracy is basic moral equality. I mean, the equal worth of every human being as a holder of equal moral rights. There is no doubt that basic moral equality is a much debatable concept which I cannot deal with in depth here. Neither is it necessary for the purpose of this article. It is enough to retain the Aristotelian idea of humans as social beings (zoon politikon)17 and political communities as cooperative groups.18 Even if it is usually assumed that Aristotle was not a supporter of democracy, nor of moral equality, it is worth keeping this basic idea in mind. Indeed, despite classifying democracy among deviant political regimes, and disregarding the basic moral equality of women and slaves, among others, this idea summarizes in a nutshell the republican ideal of political communities. It is not my intention to analyse Aristotle’s very well-known political thinking here. Suffice it to say, that according to Aristotle, democracy was a deviation of the Republican regime (politeia), which Aristotle himself defined as “the government of the majority when it is aimed at the common good”.19 Thus, democracy deviation is not due to the decision-making process itself but to the risk of domination by majorities. The opposite case of political regime deviation is that of the oligarchy. That is, when the risk of domination comes from minorities.20 It is well known that Aristotle had differences in wealth among the people in mind but that can be easily translated to the dispute among states and stateless nations. Indeed, mutual charges of domination against both, majorities and oligarchic minorities, have been constantly made in the Spanish-Catalan controversy. In any case, what is worth bearing in mind here is not the deviation of political regimes but the core of the republican ideal (politeia). That is to say, the idea of a political community in which there is a mutual recognition between its members and the need for cooperation among them arises. Indeed, the concepts of equality and cooperation are closely connected. After all, no one in a dominant position seeks cooperation, nor can those who are dominated achieve it.

17

Aristotle (1885) 1253a. Ibidem. 19 Aristotle (1885) 1279b. 20 Ibidem. 18

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This is also the basic assumption of democratic communities. Although we all differ in strength, size, wealth and intellectual capacities, no one is able to dominate nor subdue the others. This idea of approximate equality among humans, which compels us to cooperation, is what justifies the existence of social institutions aimed at setting up and promoting some basic rights, as Hobbes21 and Hart argued.22 This account of cooperation, in addition to a utilitarian view, endorses a formal conception of equality. That is, despite the differences between human beings, it is assumed that they all have equal moral status and are equals before the law. In fact, the diversity of natural endowment and abilities is “a social asset to be used for the common advantage”, as Rawls affirms.23 But it was probably Kant who best expressed the idea of basic equality through the human transition from natural accidents (homo phenomenon) to moral beings (homo noumenon). The Kantian transition from nature to society is in fact the completion of the Aristotelian idea of humans as social beings. That is, the recognition of the equal dignity of every human being, which imposes, at the same time, the duty of respect for each other.24 The consolidation of the idea of basic equality or deep equality, as Dworkin calls it,25 is according to Scanlon the most important moral progress of humankind.26 No doubt this idea is also at the foundation of legitimate political institutions. In the end, if political communities are defined by the need for cooperation, this means that there is at least a set of moral values shared by the members of the community. In short, a political community is not conceivable without committing itself to the idea of basic moral equality. However, it is not always so that this basic moral equality is granted to all its members. This is the case for societies in which gender and racial discrimination remains. But since it is not conceptually possible with regard to legitimate political institutions,27 let us look at the proper duties that legitimate institutions have.

4.2

A Republican Conception of Democracy

Aristotle’s conception of republican governments (politeia) lays out the foundations for democratic republicanism. Certainly, a government of the majority aimed at the common good contains all the ingredients of a democratic regime, even if Aristotle was not, allegedly, a supporter of it. But Aristotelian political choices aside, what matters now is what such a government of the majority aimed at the common good

21

Hobbes (1991), Chapter XVII. Hart (1994), pp. 193ff. 23 Rawls (1971), p. 119. 24 Kant (1997) 4, pp. 433–436. 25 Dworkin (1985), p. 273. 26 Scanlon (2013), p. 5. 27 Garzón Valdés (1990), p. 469. 22

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means. All we know so far is that it requires two necessary and jointly sufficient conditions, namely majority and common good. This is certainly not so much, but as we lack other elements of judgement it would be worth examining each of them more closely. The first thing to note is the different structure of both concepts. The concept of majority works as a rule, while that of common good expresses a principle. I cannot go into a deep analysis of the structural differences between rules and principles and their implications, but for what concerns us here, it is enough to remember that rules have a strictly defined criteria of application, which principles lack. The difference between both concepts is better understood when they are put into practice. The majority rule is just a way of overcoming discrepancies, political or otherwise. A very simple way indeed, since it only requires counting which option has more support. However, the concept of common good is much more controversial. There is not a clear criterion for demarcating its meaning. Due to its vagueness, the concept of common good is an example of what Willians called “thick concepts”. These concepts play an important role in both the moral and legal domain. In the moral domain, according to Willians, the application of these concepts is both, “action guiding” and “guided by the world”. In other words, the application of these concepts depends on how the world is, but once they are applied, they provide people with reasons for action.28 In the legal domain, these concepts are usually part of legal principles, which have been called ideal norms by Von Wright,29 non-conclusive criteria by Dworkin30 and optimization criteria by Alexy.31 Thus, for a republican conception of democracy the relevance of the majority rule is not due to the fact that it is a way of counting preferences, but rather because each preference counts. Indeed, the majority rule would not make sense if there were not discrepancies, they could not be expressed or were not taken into account. We are probably now in a better position to understand the meaning and requirements of the government of the majority. First of all, the government of the majority implies a political community in which different opinions exist and that is seen as a valuable feature. Secondly, it implies, as is obvious, the acceptance of the right of the majoritarian option to rule. Thirdly, a purpose-oriented government. And fourthly, the existence of a shared set of moral values that are at the core of the concept of common good. Seen in this light, the rule of the majority involves more than just aggregating individual preferences. Indeed, individual preferences may only be added if they lie within the purpose of the common good. That is to say, when they are part of the shared set of moral values. Otherwise, the requirement of the government aimed at the common good would not make sense. Such a restriction of valid individual preferences is also the distinctive feature of a republican conception of democracy.

28

Willians (1985), p. 128 and pp. 140–141. Smith (2013), pp. 105ff. von Wright (1963), Chapter V. 30 Dworkin (1977), pp. 37ff. 31 Alexy (1986), p. 75. 29

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This is because the safeguarding of the Restricted Area is conceptually bound to the continuity of the shared set of moral values.32 But since the persistence of a given shared set of moral values is a matter of fact, the concept of common good is worlddependent or, in Williams’ words, “guided by the world”. But once it applies to a community, it also guides authoritative actions. This sort of constrained sovereign33 is characteristic of liberal constitutional democracies, such as that promoted by the European Union. In any case, for a republican account of democracy, the scope of the Restricted Area is circumscribed to the safeguarding of the freedom and autonomy needed to decide on an equal basis. This could be more than some conceptions of liberal democracy require,34 but also less than what is usually comprised within constitutional norms.35 Thus, size matters also in the political arena since the wider the Restricted Area, the narrower the scope of decision.

5 Co-operation and Trust As mentioned above, the average equality among humans or, if preferred, the Aristotelian account of the intrinsic nature of human beings as political animals, is what compels cooperation. This is why Aristotle stressed that the distinctive feature of republicanism is to be found in the idea of the common good. In fact, once it is assumed that the need for cooperation is a defining feature of human beings, each political society must find its own way to cooperate. Although political societies have changed a great deal since Aristotle, they still retain their distinctive features. Consider, for instance, the basic facts that, according to Christiano, define political communities.36 Firstly, a set of morally mandatory aims that each member has reason to embrace. Secondly, substantial disagreement about how to specify these aims. And thirdly, some kind of decision process by which to negotiate the disagreements and conflicts of interests in choosing how to cooperate in realizing these aims. In short, a set of shared values and the acceptance of the rules governing cooperation. In sum, the genuine value of each political community is found in the shared set of values. But that still leaves much room for domination, as happened with women and slaves in Aristotle’s conception of a well-ordered society. And as is still regrettably the case at present for displaced migrants and refugees.

32

Garzón Valdés (1990), p. 469. Garzón Valdés (1983), pp. 181ff. 34 Nozick (1974), pp. 90ff and pp. 160ff. 35 Such as monarchy as state’s political form, the capital city and state’s indivisibility, as is the case of Spanish Constitution. Available online in https://www.boe.es/legislacion/documentos/ ConstitucionINGLES.pdf. 36 Christiano (2016), p. 222. 33

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However, once the Kantian transition from natural to moral beings is assumed, there is no choice other than to acknowledge the equal moral weight of every single human being. This assumption of basic moral equality is really a great progress for humankind. The recognition of, and commitment to, this kind of natural right, a right that as Rawls notes, depends “solely on certain natural attributions”,37 is the basic condition for the legitimacy of any political institution. This implies the protection of these rights but also taking their holders seriously when exercising them. Naturally, this also applies to the members of the political community to the extent that they are moral beings. Moral persons, according to Rawls, are distinguished by two salient features, “first they are capable of having (and are assumed to have) a conception of their good (as expressed by a rational plan of life); and second, they are capable of having (and are assumed to acquire) a sense of justice, a normally effective desire to apply and act upon the principles of justice”.38 In other words, moral persons are, and recognize each other as, rational and autonomous agents. Apart from many other considerations that could be made about autonomy and rationality,39 it is worth bearing in mind these two features since both are crucial for a republican conception of democracy. First of all, these features and capabilities of moral persons are intrinsic to the concept of democracy. Indeed, only by accepting autonomy and rationality can people be held accountable for their actions. Otherwise, democracy would not make sense since individual preferences would not be autonomously expressed, nor rationally adopted and, as a result, people could not be held liable for them. Thus, any genuine conception of democracy grows roots in the assumption that individuals are autonomous agents acting for their own reasons, rather than for arbitrary reasons imposed by others.40 Secondly, the assumption that people act autonomously and rationally demands from authority a reasonable justification of its acts, particularly when authority’s acts may entail an unfair restriction of autonomy and free decisionmaking in expressing preferences. In sum, it requires from the authority a reasoned support for the duties it imposes on the people, given that the obedience the authority demands is grounded in reasons rather than facts, such as the hierarchical position it holds. This is particularly important regarding political preferences. Not only because in a genuine democracy people must be able to express their preferences autonomously and freely, but also because in order to shape individual preferences rationally a wide scope for public deliberation must be granted. In other words, a genuine democratic authority is bound by two different kinds of duties. The first is a negative one, that is, a duty to omit any action that might interfere with the free and autonomous shaping

37

Rawls (1971), p. 505. Ibidem. 39 On rationality, autonomy and capabilities see: Sen (2002) Chapter 20; Nussbaum (2006), pp. 78ff. 40 Pettit (2012), p. 39. 38

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of individual preferences. The second is a positive duty that requires the authority to guarantee a public deliberative process in which all the opinions can be freely discussed. Moreover, promoting public deliberation is a consistent way of taking the defining features of moral persons seriously. And it seems that the right way to do that is by giving them the chance to put into practice their “effective desire to act upon the principles of justice”,41 as Rawls requires. If that is true, it means that by promoting public deliberation, legitimate institutions enhance the trust that people put in them and also the trust among people themselves. If nothing else, this is because by engaging in public deliberation, people exchange reasons and that leads them to improve the reasons they have for supporting their preferences or, alternatively, to modify those preferences in the light of the reasons given by others. A legitimate authority is thus grounded on the idea of trust. Indeed, the idea of trust is behind those of cooperation and common good. Certainly, if no one in a dominant position seeks cooperation and those who are dominated are unable to achieve it, cooperation can only happen among people who have overlapping interests and see each other as equals, at least in achieving the common interest. Such a common interest could be merely coincidental. You and I may have an overlapping interest in sharing a taxi from the airport to the city centre because I want to save money and you are in a hurry. Maybe we both prefer not to share the taxi but that is the most efficient way to achieve our aims. You and I are acting in our own interest, but by doing so, you serve my interest and I also serve yours. If we change taxi for neighbourhoods or plurinational states, things are not much different. The idea of trust as the concept of encapsulated interest is not so demanding. It only requires each person to be confident in the other’s actions,42 as is the case with coordination problems. Note that confidence here is based in knowledge, as are social conventions. Apart from keeping legal and political systems stable, mutual knowledge and confidence in the behaviour of others is crucial for a clear understanding of power delegation to a political authority. Autonomous citizens can certainly delegate the power of acting on their behalf and interfering in some conflicts that can arise among them because they are confident that the authority will act in their overlapping interest. This applies to all authorities, from governments to mafia gangs and this is perhaps why it is sometimes difficult to draw a line between them. Trustworthy authorities, for their part, only need to carry out these common interests, whatever they are. Consider, for instance, the rationale behind investment funds, namely, to increase the wealth of the fund. A trustworthy board of trustees must therefore pursue this end in the most efficient way, even if it sometimes implies getting involved in shady business. Now replace investment funds with crown monarchies, the papacy in the Catholic Church, Sport Government Bodies, a state’s interest in keeping the status quo or the interest of nationalist agendas in challenging it, and draw your conclusions.

41 42

Rawls (1971), p. 505. Hardin (2006), p. 17.

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Reasonable Trust

Therefore, it seems that the trust placed in legitimate institutions demands more than just knowledge. Indeed, once we are aware of the several cases of corruption involving each of the political institutions just mentioned above, the most rational choice would be not to trust them. The kind of trust we are looking for is closer to what Hardin calls “the rational theory of trust as encapsulated interest”.43 This kind of trust is based on the reasons we have to believe that our interests are encapsulated in the interest of political institutions. These reasons are linked to the commitment the institution itself has acquired, but also to the range of actions the institution is expected to carry out. Hence, the reasons we have for trusting legitimate institutions are normative. But each of them aims at different commitments, namely, moral in the first case and procedural in the second. Both commitments may be jointly fulfilled, or not. I may trust the European Union, given its clear commitment to human rights, while distrusting the actions of the European Union as they fail to protect the basic rights of forced migrants and refugees. Similarly, I may trust the World Anti-Doping Agency, given its aim of keeping sports competitions clean, while still being distrustful of some of the steps it takes because they damage the privacy of athletes. I may finally trust the Spanish and Catalan political institutions while complaining about the mistrust I feel when I see they do not comply with procedural rules they are committed to. In any case, the reasons for trusting in political institutions are embedded in an ongoing relationship. That is, in a daily process in which political institutions have to actually carry out the actions they are expected to do on the basis of the purpose they are meant to fulfil. On the one hand, the institution’s reputation is at stake. And no doubt this reputation would be harmed if the institution is not trustworthy in how it deals with people or other institutions. On the other hand, untrustworthy institutions are unstable by definition. Certainly, an increasing distrust of the actions the institution takes calls into question the commitment to the moral aims it is meant to meet. In short, mistrust in political institutions challenges the legitimacy to rule and ask for compliance. This balance between moral and procedural issues, which is often called integrity, reveals a quite paradoxical situation since according to Hardin’s “rational theory of trust as encapsulated interest”, legitimate institutions must encapsulate the interest of each citizen without assuming any of its own interest. In other words, the interest of the institution is to safeguard the autonomy and freedom to enable moral persons to express their preferences.

43

Hardin (2006), p. 19.

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6 Free People and Free Political Choices Legitimate political institutions seek to earn the trust of rational and autonomous people. That is, people who act on their own reasons. Acting on one’s own reasons does not mean disregarding the reasons of others. But it requires being autonomous enough to endorse or refuse the reason others give you for supporting a preference. I may be willing to share the taxi from the airport to the city centre with you because you have offered to pay the cost of the taxi fare. But while we are waiting, you make some blatantly racist and homophobic comments that make me change my mind. I had previously taken into account your interest and my own, but after your comments I decided not to cooperate with you anymore. The other way round, while waiting, you tell me that you are doing some charity work with poor and refugee children and as a result, I am willing not only to share the taxi with you, but also to share the cost of the fare. All things considered, sharing the taxi with you affords me the opportunity to save part of my money while also contributing to a worthy humanitarian cause. In both cases, I can take a decision acting on my own reasons even if yours lead me to take one course of action or another. Indeed, these are the circumstances of true consent.44 Taking a course of action autonomously requires the ability and freedom to decide based on one’s own reasons. Conversely, it is not possible to give consent by fear, manipulation or whatever other circumstances not based on public reasons.45 This is also the moral basis of political consent to which the republican conception of democracy as non domination is committed. Thus, giving political consent requires a political structure that provides people with the freedom and autonomy to make their political choices. If this is so, by promoting public deliberations, a legitimate political structure is able to both maintain the trust people give it and reach the goal of promoting free persons that engage in public debates and make a political structure that lacks domination46 possible.

6.1

Non Dominant Political Communities

Political institutions, to be consistent with the republican view of democracy as non domination, must respect the views and opinions of everyone they govern. This equal concern for all people’s views requires equal participation in the decisionmaking process.47 However, this equal participation could be problematic regarding nationalistic claims since they are territorially and demographically restricted by

44

On the requirements of consent Estlund (2008), pp. 119ff. Dworkin (1988), pp. 113ff. 46 Pettit (2012), p. 149. 47 Buchanan (2004), p. 184. 45

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definition. I shall come back later to the problem that equal participation poses to centralized states facing nationalistic claims. In any case, now it is worth bearing in mind that a fair process of decision making requires previous open public discussions and deliberative processes aimed at framing collective policies. Public deliberation implies the freedom to express political preferences and the duty to do so on the basis of public reasons. In other words, on the basis of the moral aims that each of the members of the political community has reason to see and safeguard. That seems the proper way of building trust between people and political institutions, and among people who see each other as free and rational individuals. On the other hand, an open public discussion on political matters is also necessary in order to ensure that collective policies reflect the pluralistic view of the political community rather than the values and preferences of a part of it.48 This is crucial regarding public affairs and tax policies. Consider wealth distribution, which is usually a source of a great deal of disagreement among people. The broader the scope of public deliberation, the easier it would be to give an account of the reasons supporting public policy in this regard. Consequently, each member would have an equal chance to express their preferences. Nationalistic claims are another source of controversy in unified states. Therefore, the scope of public deliberation is also important in tackling nationalistic claims. If nothing else because these issues are challenging the public acknowledgement that legitimate political institutions seek. In short, because these issues are a matter of survival and a big challenge to the status quo. No legitimate institutions can last over time based on extremely unfair wealth distribution, nor without giving voice to those who disagree with the political status quo. At the end of the day, the public acknowledgement of those to whom the political institution applies is what leads them to relate to each other regarding the rules and procedures and rendering these processes as fair and appropriate.49

6.2

Free Political Arrangements

A free political community that promotes public debates and deliberation among the people must be representative of people’s interests too. One can argue that public debate and deliberation are already aimed at taking into consideration people’s interests. Surely that is mostly the case, but it cannot be taken for granted. Consider again climate change and neighbourhoods. No doubt public deliberation on how to face the real threat of major environmental disaster posed by global warming, or the sustainability of housing in neighbourhoods are a suitable way to frame collective policies at both global and local level. But that does not guarantee that everyone’s interest is taken into account in either the deliberation process or public policies.

48 49

Christiano (2008), Chapter 5. Rawls (1999), pp. 23–25.

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Certainly, it is hardly possible that hundreds of thousands of people who are forced to migrate due to the effects of global warming and the increasing number of homeless people, are able to take part in public deliberation. Sometimes they are simply not allowed to take part and other times they do not have a way of being heard. That is why legitimate political institutions must protect all people’s interests, particularly those of people who do not have a voice or a legal way to make themselves heard. Indeed, this is the proper way of providing people with freedom as non domination that a republican account of democracy requires. That was also Aristotle’s main concern about democracy, namely, the fear of majority domination.50 Certainly, as bad as collective policies which only reflect the values and preferences of a small part of the community, are collective policies dismissing the claims and rights of minorities. Preventing deliberation or participation in public decisions on an equal basis and failing to protect the basic rights of each and every member of the political community can have serious consequences in terms of people’s mistrust. In the end, as Aristotle himself warned long ago, both cases lead to the making of enemies rather than good citizens.51 Conversely, the greater the reasonable trust that people have in political institutions, the stronger their perception of holding political power in their hands. This allows people to make free political arrangements on the basis of the shared set of moral mandatory aims.

7 The Democratic Principle and Nationalism One of the recurring issues of the nationalist problem inside the EU’s member states is the challenge it raises to the democratic principle. It is usually argued that nationalistic claims dismiss the interest of the whole political community. That is to say, they are not aimed at the common good. That is a major concern that deserves to be seriously considered. Nationalistic claims are certainly restricted, by definition, to a specific part of the territory and people. In other words, any democratic approach to address these claims must deal with the preferences of a restricted demos. Indeed, both supporters of nationalist issues, and those who defend the status quo invoke the restricted demos to back their positions. The former to assert the right of an autonomous decision-making process on political issues concerning them. The latter to do the opposite. Either because they deny the existence of such a right to decide, or because they refuse to accept that such a decision concerns the restricted demos. Well considered, each of these views replicates the fear of domination that Aristotle was opposed to in political regimes, either it comes from majorities or minorities. But in a republican account of democracy, as in the Aristotelian ideal of politeia, there is no room for domination. Hence it would be fruitful to explore the ways of

50 51

Aristotle (1885) 1281a-b. Aristotle (1885) 1281b.

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dealing with this problem in a consistent manner. Since claiming the right to decide seems to strengthen the democratic principle, let us look more closely at the reasons that oppose it. That is, the reasons for denying that right or alternatively the scope it has. As these objections have a different structure and implications, I shall briefly discuss each of them in what follows.

7.1

The Democratic Principle Does Not Apply to Nationalism Claims

The most radical opposition to the right of decision-making claimed by democratic nationalist groups consists of denying the existence of such a right to decide. There may be several reasons for the lack of that right. From the simplest one based on the flawed idea that a state’s union is beyond the democratic principle,52 to the more sophisticated one appealing to loyalty to and consistency of the commitments made.53 Since the former is based on arguments that unfairly restrain the democratic principle and therefore cannot be endorsed for public reasons, I will not deal with it. It is more interesting to analyse those claims regarding moral and legal issues that fall within the Restricted Area. As we already know, the aim of the Restricted Area is to protect the shared values at the core of the “common good”. That is, those values that are essential for a rational and free expression of preferences. In other words, the values without which it would not make sense to rely on democratic procedures to overcome political differences. This objection to the right to decide makes sense insofar as nationalist claims are against these values. But it loses its appeal before nationalist aspirations aimed at having their own voice within the EU’s institutional framework. That is because the requirements of legitimacy for nationalist aspirations are no less demanding than those which apply to the states. In other words, the requirements of loyalty to, and consistency of, the commitments made are obviously twin-track. In sum, both stateless territories and current states within which nationalistic claims are arising are equally bound by the democratic principle and the requirements it entails.54 It could be argued that the state’s integrity is safeguarded within the Restricted Area. But this argument does not seem to hold much ground either.55 On the one hand, it is founded on the same reasons that support the restriction of democratic

52 As is well known, this is the view held by a large part of Spain’s political spectrum when defending the status quo. This is also the main argument behind the controversial Spanish King’s speech the 3 October 2017, two days after the referendum that was held in Catalonia which had previously been declared illegal. 53 Ruiz Miguel (2019), p. 106. 54 Vilajosana (2014), pp. 68ff and Vilajosana (2020), pp. 383ff. 55 Moreso (2020), pp. 498–499.

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procedures on state unity. Therefore, identical objections apply to it. On the other hand, the argument itself ends up acknowledging that the scope of the restricted area is too broad. That is to say, it fails under the ultra vires problem I have referred to above.

7.2

The Democratic Principle Applies But Does Not Count

An alternative way of opposing nationalist aspirations is to embrace the democratic principle as a means of solving this disagreement, while rejecting that such a decision is a prerogative of the restricted demos. The reasons for this objection may also be of a different kind. Some of them distrust the liability of referenda on these issues. Others argue that such a decision should be made by the full demos of the state, rather than by one part of it, since in the end, all will be affected by the decision. Several voices have pointed out the risk that such a decision entails for the reliability of a referendum, in particular, after the failure of the referendum on the European Constitution and the impact that the Brexit referendum has had on European integration.56 The arguments underlying that mistrust in referenda are both epistemic and pragmatic. The first concerns the demos’ lack of knowledge of the complex legal and political issues on which it is required to give its opinion. The latter concerns the economic and political situation in which such referenda are held, in particular in times of crisis which tend to encourage exacerbated nationalism. Both arguments are certainly right. The lack of expert knowledge on highly complex legal and political matters must be considered when putting major issues into referenda, as well as the economic and political circumstances, which may tip the balance in one direction or another. But there is also little doubt that both concerns apply to any democratic decision, in particular, to all constitutional processes. Therefore, these objections leave supporters of the legitimacy of the status quo in a weak position. After all, supporting a republican conception of democracy means getting people actively involved in the processes of political deliberation and decision-making, which is the only way to take political equality seriously. But this does not guarantee what the outcome of the decision would be. Nor does it allow the regarding of democratic procedures as valid for some cases while not for others. Finally, it remains to consider the demos issue. Both supporters of nationalism and those who defend the status quo seem to be right about the risk of domination that either of them entails. Those who support the status quo rightly argue that since the constitutional process was adopted by the full demos, this is also the demos entitled to make any changes. In other words, granting this power to the restricted demos will enable the imposition of the will of the minority upon the whole

56

Laporta (2015).

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population. Just the opposite is argued from the nationalist side. That is, if nationalist claims cannot be democratically accommodated, majority domination is enshrined. As it is well-known, the demos itself poses a democratic paradox, since no demos can be democratically elected on its own. Demos are certainly defined on a geopolitical and historical basis, which are sometimes, in turn, built on a domination background. But this paradox does not help in this case, since it applies to all demoi. Thus, the question about which demos should have a voice on this issue remains. In my view, the main problem of this objection lies in understanding both demos having their say as incompatible ways of overcoming the problem. In other words, the problem is presenting this issue as a dilemma. However, this is not truly the case. Actually, the coherent way of addressing this issue from a republican account of democracy as non domination is giving a voice to both demos. That is, taking into account all people’s opinions. It could be argued that this does not solve the problem of balancing competing decisions among them. That is surely a difficult matter. However, there is no doubt that in order to face it, we must first know if it is the case. Otherwise, we would be facing a false problem. The second step is then to find a fair way of giving a voice to both demos. That is, which of them should be asked first. In order to address this question, it is worth considering what the available choices are. It could be the case that both demos agree either to maintaining the status quo or supporting nationalist claims. This case would reveal that we were facing a false problem. The other possibility is certainly that both demos disagree. In this case, a way to accommodate both decisions should be found. But this second case also reveals the proper way of facing this issue, namely, giving voice to the restricted demos first. This is because of both conceptual and practical reasons. It would certainly be pointless to ask the whole demos about a hypothetical scenario, and it would also be inefficient from an institutional point of view. Consider again the choices of this decision. On the one hand, as we have just seen, the whole demos could embrace nationalist claims, even ignoring the support they have among the restricted demos. In short, first giving voice to the full demos could lead to a problem rather than a solution. On the other hand, if the full demos is against the chance of giving voice to the restricted demos on this matter, it would take us back to the weak assumption that this matter is beyond the democratic principle. In sum, to a situation plainly opposed to the requirement of non domination that a republican conception of democracy requires.

8 Conclusion European integration has changed the institutional and legal framework of member states. This institutional and legal pluralism is a salient feature of the EU. It has also led to a shift in nationalist strategies aimed at having their own voice within the EU institutional framework. That is why this article began by recalling an evident fact, namely, where the meeting point is. After all, it is always important to know where to

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head in the event of a disaster. This meeting point is also a way of ensuring that nationalist claims are conducted by democratic procedures in line with the legal framework and intended to enhance the European common endeavour. In sum, the meeting point, despite seeming trivial, helps to draw a line between legitimate and non-legitimate claims. At the end of the day, there is only room inside the EU for political claims aimed at strengthening the European project. But this also applies in the opposite way. Thus, EU member states where nationalist claims arise must deal with them on the same basis. This is why I next looked at the concept of legitimacy. As we have seen, political legitimacy involves a serious commitment to the moral values attached to basic individual rights. That is to say, to the legal rights and the values on which they are grounded, that enable people to express their opinions freely and autonomously. Not more nor less. The protection of the so-called prerequisites of democracy is the purpose of the Restricted Area. This is why I stressed the importance of setting out the scope of this Restricted Area carefully, which is not an easy task at all. In line with the republican account of democracy as non domination which I address in this article, I argued that politically legitimate institutions should promote public debates and ensure free and fair decision-making processes. In short, legitimate political institutions must be trustworthy but also promote trust in, and among, the people they govern. In the end, the greater the trust in political institutions, the stronger the people’s feeling of holding power in their hands. That leads, in turn, to a reinforcement of free political arrangements and democratic procedures as fair processes of decision-making to overcome political disagreements. The question is, then, whether nationalist claims can be accommodated in this conception of democracy. The strongest objection consists of the refusal that nationalist claims can be addressed as democratic procedures. The weakness of this objection is that it becomes inconsistent with the republican conception of democracy as non domination. Alternatively, it ends up admitting a problem of ultra vires in defining the Restricted Area. But even the views more concerned with the democratic principle raise the issue of which demos is entitled to have a voice on that matter. As I pointed out, raising the issue in these terms leads to a false dilemma. The key question is rather how to give voice to both demos in the fairest way. As I have argued, both conceptual and practical reasons support asking the restricted demos first. Doing otherwise would involve the full demos facing a hypothetical issue that could lead to inconsistent policies with the requirement of a republican account of democracy as non domination. Apart from this, of course, it could raise a problem where there was none.

References Alexy R (1986) Theorie der Grundrechte. Suhrkamp Verlag, Frankfurt am Main Aristotle (1885) Politics. Translated by Benjamin Jowett. Available at: http://classics.mit.edu/ Aristotle/politics.html

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Bellamy R (2019) A republican Europe of states: cosmopolitanism, intergovernmentalism and democracy in the EU. Cambridge University Press, Cambridge. https://doi.org/10.1017/ 9781139136303 Bessons S, Martí JL (2018) Legitimate actors of international law-making: towards a theory of international democratic representation. Jurisprudence 9(3):1–37 Buchanan A (2004) Justice, legitimacy and self-determination. Oxford University Press, New York Buchanan A, Keohane R (2006) The legitimacy of global governance institutions. Ethics Int Aff 20(4):405–437 Christiano T (2008) The constitution of equality: democratic authority and its limits. Oxford University Press, Oxford Christiano T (2016) Replies to David Alvarez, David Lefkowitz, and Michael Blake. Law Ethics Polit 4:221–236 Dworkin R (1977) Taking rights seriously. Harvard University Press, Cambridge Dworkin R (1985) A matter of principle. Harvard University Press, Cambridge Dworkin G (1988) The theory and practice of autonomy. Cambridge University Press, Cambridge Estlund DM (2008) Democratic authority. A philosophical framework. Princeton University Press Ferrajoli L (2001) Derechos y garantías. La ley del más débil. Trotta, Madrid Garzón Valdés E (1983) Las limitaciones jurídicas del soberano. In: Garzón Valdés E (1993) Derecho, ética y política. Centro de Estudios Políticos y Constitucionales, Madrid, pp 181–200 Garzón Valdés E (1987) El Concepto de estabilidad de los sistemas políticos. In: Garzón Valdés E (1993) Derecho, ética y política. Centro de Estudios Políticos y Constitucionales, Madrid, pp 573–609 Garzón Valdés E (1990) Consenso, racionalidad y legitimidad. In: Garzón Valdés E (1993) Derecho, ética y política. Centro de Estudios Políticos y Constitucionales, Madrid, pp 455–471 Habermas J (1996) Facts and norms. Contributions to a discourse theory of law and democracy. The MIT Press, Cambridge Hardin R (2006) Trust. Polity Press, Cambridge Hart HLA (1961/1994) The concept of law, 2nd edn. Oxford University Press, Oxford Hobbes T (1991) Leviathan [1651]. Cambridge University Press (ed Tuck R), Cambridge Kant I (1997) Groundwork of the metaphysics of morals [1797]. Cambridge University Press, Cambridge Keating M (2001) Plurinational democracy. Stateless nations in a post-sovereignty era. Oxford University Press, Oxford Keating M (2004) European integration and the nationalities question. Polit Soc 32(3):367–388. https://doi.org/10.1177/0032329204267295 Laporta FJ (2015) Contra el referéndum. Available at: https://elpais.com/elpais/2016/10/25/ opinion/1477422120_019037.html Lewis D (1969) Convention. Harvard University Press, Cambridge Loughlin J (2001) Subnational democracy in the European Union. Oxford University Press, Oxford MacCormick N (1999) Questioning sovereignty: law, state and nation in the European Commonwealth. Oxford University Press, Oxford Marmor A (2001) Legal conventionalism. In: Coleman J (ed) Hart’s postscript. Essays on the concept of law. Oxford University, Oxford, pp 193–217 Moreso JJ (2020) Los shibolet del procés: Vilajosana sobre el derecho a decidir. Eunomía. Revista en Cultura de la Legalidad 19:495–505 Nozick R (1974) Anarchy, State and Utopia. Blackwell Publishing, Oxford Nussbaum M (2006) Frontiers of justice: disability, nationality, species membership. Harvard University Press, Cambridge Pettit P (1997) Republicanism: a theory of freedom and government. Oxford University Press, Oxford Pettit P (2012) On the people’s terms. Cambridge University Press, Cambridge Rawls J (1971/2015) A theory of justice. The Belknap Press of Harvard University Press, Cambridge, MA

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Rawls J (1999) The law of peoples. Harvard University Press, Cambridge, MA Ruiz Miguel A (2019) Sobre desobediencia, amistad y lealtad. Jueces para la democracia 96:103– 109 Scanlon TM (2013) When does equality matter? Available at: https://www.law.nyu.edu/sites/ default/files/upload_documents/Lecture%201%20revised%20October%202014.pdf Sen A (2002) Rationality and freedom. Harvard University Press, Cambridge Smith M (2013) On the nature and significance of the distinction between thick and thin ethical concepts. In: Kirchin S (ed) Thick concepts. Oxford University Press, Oxford, pp 97–120 Vilajosana JM (2014) The democratic principle and constitutional justification of the right to decide. Catalan Soc Sci Rev 4:57–80 Vilajosana JM (2019) Social facts and law: why the rule of recognition is a convention. In: RamírezLudeña L, Vilajosana J (eds) Legal conventionalism. Law and philosophy library, vol 126. Springer, Cham. https://doi.org/10.1007/978-3-030-03571-6_6 Vilajosana JM (2020) Democracia y derecho a decidir. Eunomía. Revista en Cultura de la legalidad 18:375–391 Von Wright GH (1963) Norm and action. A logical enquiry. Routledge & Kegan Paul, London Walker N (1996) European Constitutionalism and European Integration. Public Law (Summer):266–290 Willians B (1985) Ethics and the limits of philosophy. Harvard University Press, Cambridge, MA

Alberto Carrio Sampedro PhD in Law (University of Oviedo), MA in Law of Sports and MA in European Advanced Studies. He is currently Senior lecturer in Legal Philosophy at the Law Department of the Universitat Pompeu Fabra (Barcelona). Previously he was a pre-doctoral fellow at the Spanish Parliament and the Spanish Agency of Cooperation (Spanish Foreign Office). Dr. Carrio has published several academic papers in Legal Theory, Constitutional Law, Rule of Law, Rules of Sports, Equality and Fairness in Sports, Sport Governance and the impact of new technologies and AI in sport. He is currently Deputy Director of Fair Play, Journal of Philosophy, Ethics and Sports Law, Director of the Centre of Innovation at the Department of Law as well as the Coordinator of the Permanent Seminar of the Legal Clinic of the Pompeu Fabra University.

Individual Identity, Collective Identity and Human Dignity. What Are the Best Models to Accommodate Different Identities? Damir Banović

Abstract The contribution addresses the different theoretical and multidisciplinary approaches and questions of individualism/abstract citizenship and collectivism/ substantial citizenship and corresponding individual and collective identities, politics of recognition, liberal and communitarian perspectives, and recent developments within the stream of liberal multiculturalism. Moreover, this article deals with different models, constitutional arrangements and international human rights law provisions that give priority either to individuals or to collectives. Human dignity as a value has been used as a foundation for both the individual and the collective, arguing that not only individuals have a moral worth and dignity but also the collective has a moral worth and dignity, and consequently they both entail human right(s). Additionally, the article analyses the principle of equality and non-discrimination as mechanisms for equal political and legal recognition of individuals, but also of groups and collectives, regardless of their identity. Collective rights have been constitutional rights within multinational states, whether in the form of federalism or other forms of territorial, fiscal autonomy, non-territorial cultural autonomy, affirmative actions, quotas, veto mechanism, etc. The contribution ends with what, in my view, better frames arguments in the debate of political and legal recognition between the collectives and the individuals.

1 Introduction Debates on collective political and legal representation still have a major influence in countries with several ethnic, national, religious or language groups and/or minorities. On the one hand, communitarianism tries to reaffirm and acknowledge different societal, cultural and traditional contexts, different group and collective

D. Banović (*) Public and International Law Department, Faculty of Law, University of Sarajevo, Sarajevo, Bosnia and Herzegovina e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_4

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identities, and to give “essence” to the theory of justice. According to this approach, the theory of justice and, consequently, of law should mirror specific cultural values, cultural identities and norms. Liberalism, on the other hand, reaffirms abstract individuals where different particular contexts should be appreciated within the private sphere. In comparison to communitarianism, the liberal approach emphasizes formal norms and procedures granting individuals equal position (at least, theoretically). In that context, liberal theory puts more emphasis on political and legal equality and non-discrimination, while multiculturalists stress collective equality, and collective and group rights. We can argue that modern constitutions, regional human rights mechanisms and international human rights law have not only introduced into the legal sphere the principle of political and legal equality, the principle of non-discrimination, antidiscrimination provisions, affirmative actions, collective equality, but also territorial and non-territorial autonomies for different ethnic, religious and linguistic groups, veto mechanisms for the protection of collective national interest, the principle of proportionality, and special rights for indigenous peoples etc. Implementation and understanding depends on the specific national context, whether in a manner that individual rights are understood as primary, and collective rights as supplementary to individual rights or secondary, or vice versa.

2 Substantialist/Essentialist and Constructivist Concepts of Identity, or Identity Defined as a Process A substantialist or essentialist concept of identity1 presupposes it to be something objective or unchangeable, i.e., deeply rooted and marked by permanent features. Essentialism can be traced all the way back to Aristotle and the distinction between “appearance” and “reality”, i.e., between what is the essence or true nature of a thing versus its manifest variations. According to this concept, a person’s identity is almost genetically ingrained, i.e., as the essence which is not subject to evolution and cannot be influenced by an individual or a group. “Paraphrased in philosophical terms, identity is stipulated as being rather than ought, as something we already are rather than something we become, as a state rather than existence.”2 Essentialists treat individuals as singular, integral, harmonized and unproblematic identities whose collective identity is rooted in an “essence” or a series of significant features shared by all members of the collective.3 People therefore possess fixed identities of femininity, masculinity, religion, language, sex and all other social categories. A similar approach is that of culturalism which emphasizes socialization. In order to

1 For more on the debate between the essentialist and constructivist concepts, see Mesić (2006), pp. 288ff. 2 Kalanj (2008), p. 40. 3 Golubović (2007), p. 505.

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fully be a person, we have to accept the patterns of behaviour imposed upon us and identify with our original groups. Those who criticize this viewpoint believe that the concept does not differ significantly from “pure” essentialism, because even though essence is not “genetically” encoded in a person, s/he is left with no other option but to accept the cultural forms of their community. Continuing in this vein, there is also a list of cultural attributes that serve as the basis for an individual, i.e., collective identity.4 A specific variant of essentialism is the “primordial” theories of cultural identity that “are mostly the result of efforts to interpret the issue of ethnicity and ethnic relations from a substantialist or fundamentalist point of view. Wanting to arrive at the very origins of ethnicity and ethnogenesis, these theories seek to discover “natural” and timeless, i.e., “primeval” features.”5 On the other hand, in a constructivist conception, identity understood as process, or a formal concept, emphasizes that identity is a process, or a construct brought to life only by specific interactions in which a person engages. Once established, an identity is not fixed or unchangeable. It is an individual construction, a sense of an individual belonging to a collective entity. Anti-essentialist concepts dismiss the idea of the transcendent oneness of persons. Identity as a category is conditioned by history and its processes; it discards the perception of socially constructed identities as being metaphysical and natural. Constructivists believe nature has had little effect on individual and collective identity. Instead, socialization is said to play the most important role, especially early socialization and the power of social structures. Subjectivity is constructed, it is not an automatic product. An early proponent of this concept was George Herbert Mead.6 According to Donald Horowitz: “Ethnic identity is not static; it changes with the environment”.7 In support of a non-essentialist approach to national identity, theoreticians such as Benedict Anderson, Ernest Gellner and Eric Hobsbawn claim that the nation is “an imagined community, an invention.”8 Identity should be understood as an endless process unfolding in various, changeable, imminent and remote circumstances.9 “Anti-essentialists ardently advocate understanding culture as a process rather than as a series of characteristics inherent to a particular group.”10 In their opinion, multiculturalism is problematic because its basic postulates are rigid and because it enforces the notion of identity as being fixed, thereby curtailing creativity and individuality.

4

Kalanj (2008), pp. 41–42. Kalanj (2008), p. 42. 6 Golubović (2007), pp. 505–506. 7 Kukathas (2002), p. 196. 8 Sakamoto (2002), p. 379. 9 Marko (2009), p. 29. 10 Sakamoto (2002), p. 45. 5

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3 On the Dialogical Concept of Identity, Politics of Recognition and the Development of Self The usual approach to identity politics or “identity model”, as Nancy Fraser calls it, can be traced back to the Hegelian idea that identity is constructed dialogically through a process of mutual recognition.11 According to Hegel, recognition designates an ideal reciprocal relation between subjects, in which each sees the other both as its equal, but also as separate from it.12 This relation is constitutive of subjectivity. One becomes an individual subject only by virtue of recognizing, and being recognized by, another subject.13 Recognition is thus essential to the development of self.14 To be denied recognition, or to be “misrecognized”, creates a distortion of one’s relation to one’s self and an injury to one’s identity.15 Proponents of the identity model transpose the Hegelian model onto the “cultural” and “political” domains and claim that to belong to a group that is devalued by the dominant culture is in fact to be misrecognized which creates a distortion in one’s relation to one’s self.16 This lack of recognition hinders the development of a healthy cultural identity and the politics of recognition tries to repair this internal selfdislocation by conquering and appropriating the demeaning image of the dominant culture.17 There are different approaches within identity politics to the principle of redistribution.18 Many proponents consider the issue of “identity recognition” to be separate from the issue of the redistribution of economic goods and focus on changing the culture, while others recognize the problem of economic redistribution.19 For analytical purposes, we can make a distinction between the “politics of redistribution” and the “politics of recognition”; but they are often combined in practice.20 Some groups find themselves at the very bottom (both in terms of status and the economy) and have to mobilize to achieve a fairer redistribution as well as recognition.21 Marxists believe that status hierarchy is purely secondary and epiphenomenal.22 According to them, the place which a person occupies in the economic hierarchy determines his/her place in the status hierarchy: a group is culturally

11

Fraser (2000), p. 109. Ibidem. 13 Ibidem. 14 Ibidem. 15 Ibidem. 16 Ibidem. 17 Ibidem. 18 Fraser (2000), p. 110. 19 Ibidem. 20 Kymlicka (2009), p. 366. 21 Ibidem. 22 Kymlicka (2009), p. 367. 12

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stigmatized exclusively because it is economically disadvantaged.23 If we abolish economic inequality, cultural inequality will automatically disappear.24 However, indicators show that status hierarchy cannot be reduced to economic hierarchy: some groups enjoy a favourable economic position but are still subject to degrading cultural treatment.25 In most Western democracies, for example, levels of income per capita and education among homosexuals are similar to those of heterosexuals, but the former still suffer extreme homophobia, other examples are immigrants and religious groups such as Arab or Japanese Americans; national minorities such as Catalans and Quebecois.26 On the other hand, we can find examples of groups within the working class that enjoy a favourable status position but are economically disadvantaged: white, Christian, heterosexual men.27 In his work, Charles Taylor primarily focuses on identity and the manner of its construction, introducing into political philosophy the notion of identity politics and championing a dialogical concept of identity. According to his view, modern philosophy has to a great extent emphasized the monological ideal of identity construction, thereby obscuring its dialogical character.28 Identity is constructed through interaction with others and a ceaseless exchange which enables one to structure the self and define it through comparisons and differentiations. Intersubjectivity plays a key role, i.e., the subject is constituted through interactions with others. An individual’s ability to perceive himself/herself as an individual is thoroughly conditioned by his/her interactions and social experiences. An individual cannot form self-consciousness without a dialogical structure. Intersubjective theory strives to acknowledge the importance of rootedness and belonging. Identity is perceived as an empty structure that acquires content through upbringing and education,29 processes which provide individuals with a system of values and enables them to understand their place in it. According to this theory, a sense of belonging does not limit individuals; on the contrary, it prompts them to construct a strong and structured “self”. Dialogical theory of identity enables us to grasp the importance of requests made by certain groups that seek recognition of their

23

Ibidem. Ibidem. 25 Ibidem. 26 Ibidem. 27 Ibidem. 28 Loretoni (2006), pp. 127–144. 29 Upbringing and education refer here to the development of individuals who are capable of understanding themselves in the context of his/her culture, but also taking a critical stance to their identity, changing it, treating others as equals, and choosing to confirm or partly/completely change their identity. However, we should keep in mind that such systems of upbringing and education do not exist in all cultures. Some cultures constitute and maintain identity through a negative relation to the other or, to borrow from Schmitt, through a friend-enemy relation. This mode of identity construction hinders the development of a rational individual capable of taking a critical stance. Instead, it creates individuals trapped in their own identity framework. 24

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difference. In interacting with others, an individual does not merely observe but also includes elements of the other’s identity into his/her own. But comparisons with others can have devastating effects because they can create a sense of humiliation and lead to low self-esteem. This is the reason why certain groups reproach the dominant monocultural group—its aggressive, racist and segregationist approach impacts identity in a negative way. Recognizing differences would eliminate these detrimental and devastating effects, claim multiculturalists. Relations with others are a constitutive element of identity; it is through such relations that we form an awareness of our own self. Charles Taylor connects recognition with identity in that identity, as something which has been formed based on a person’s understanding of who they are, i.e., their fundamental defining of themselves as human beings, is partly shaped by recognition or the lack thereof. Non-recognition or misrecognition can inflict harm, can be a form of oppression or a reduced mode of existence.30 Non-recognition of identity can lead to selfdepreciation of individuals or groups, which turns into a source of self-oppression. The first task is to get rid of the imposed, destructive identity.31 Recognition is not just a matter of courtesy; it is a fundamental human need. What are the factors that contributed to making us preoccupied with identity and recognition? The break-down of the social structure in the eighteenth century was due to honour being understood as ancien régime. Today we have replaced the notion of honour with the modern notion of human dignity which is now used in a universalist and egalitarian sense to denote the inherent dignity of human beings. It is important to note here that all human beings, regardless of individual characteristics and preferences, are born with it and that the concept of dignity is tied to the notion of a democratic society.32 What one is can be understood from the point of view of one’s authenticity, of being true to oneself and one’s particular way of being. “There is a certain way of being human that is my way. I am called upon to live my life in this way, and not in imitation of anyone else’s life. But this notion gives a new importance to being true to myself. If I am not, I miss the point of my life; I miss what being human is for me.”33 Herder further developed the idea of authenticity: each of us has a unique way of being human, we all have our “measure”. His idea of originality can be applied at two levels: to individuals in their relation to other individuals, as well as to culture-bearing people among other peoples. Just like individuals, a Volk should be true to itself, i.e., its own culture.34 In order to understand the relationship between identity and recognition, we have to take into consideration the dialogical character of human life. We become human beings, capable of understanding ourselves, and therefore defining ourselves, through our

30

Taylor (1994), p. 25. For example, the indigenous and colonized peoples being portrayed as uncivilised and inferior. 32 Taylor (1994), pp. 26–27. 33 Taylor (1994), p. 30. 34 Taylor (1994), p. 31. 31

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acquisition of rich human languages of expression.35 These modes of expression are acquired through exchanges with others. People are introduced to them through interactions with others who matter to us—what George Herbert Mead calls “significant others”.36 Identity is always formed through dialogue, and sometimes through conflict, with our significant others regarding the elements of our identity. On the intimate level, we are aware how identity can be formed or malformed through contact with a significant other. On the social level, there is a continuous politics of equal recognition. Both of these levels have been shaped by the ever more prevalent ideal of authenticity, and recognition plays a crucial role in the culture that has arisen around this ideal. Also, on the social level, the understanding that identities are formed through dialogue, not shaped by a pre-existing social framework, has made the politics of recognition even more important. Equal recognition is the appropriate mode for a healthy democratic society.37 The discourse of politics of recognition has developed in two ways in the public sphere: (1) Recognition of equal political rights and suffrage for all citizens of a state. A successful example is the Civil Rights Movement in the USA in the ’60s. We could reformulate it as “all citizens of a given state having the same rights in relation to each other”. (2) The second direction concerns the politics of distinctness, meaning that the recognition of the unique identity of a person or group entails the recognition of their distinctness in relation to others. The idea is that the distinctness has been ignored or assimilated by the dominant identity.38 And this assimilation is the cardinal sin against the ideal of authenticity.39 These two principles, the principle of non-discrimination and the principle of discrimination (in the sense of preserving distinctness), are seemingly in opposition to one another. But the former relates to individual rights while the latter principle of positive discrimination concerns members of a group/collective. Charles Taylor justifies both principles on the basis of dignity.40 Departing from the liberal principle of “difference-blindness” justified by the fact that historical discrimination has created a pattern within which unfavoured groups struggle at a disadvantage, reverse discrimination is defended as a temporary measure that will eventually level the playing field and allow the old blind rules to come back into force in a way that does not disadvantage anyone. On the other hand, the politics of

35

Taylor (1994), p. 32. Ibidem. 37 Taylor (1994), p. 36. 38 Walzer (1994), pp. 99–103. 39 Taylor (1994), p. 38. 40 Taylor (1994), p. 40. 36

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recognition does not strive to reinstate difference-blind rules, but to maintain and cherish distinctness.41 Universal human potential is something inherent to all human beings. In the context of the politics of difference, we can say that universal human potential in essence means the potential to form and define an identity, both individual and cultural. But the politics of recognition goes beyond acknowledging human potential, it also acknowledges what this potential has produced.42 We must believe that the goods produced by various cultures are valuable and beneficial for all of humanity. If we were to compare Charles Taylor’s politics of recognition to liberalism and summarize what needs to be changed, the best thing would be to evoke the two types of liberalism introduced by Michael Walzer.43 Liberalism propagates the strongest possible protection of human rights and a strictly neutral state (in accordance with the concept of the good life). No cultural or religious project or collective good can ever trump personal freedom and physical integrity, the well-being and security of citizens. The other type, Liberalism II, leaves room for the conservation and development of a particular nation, culture or religion, or a particular number of nations, cultures and religions. This is possible as long as fundamental rights of citizens who have different affiliations or have no affiliations at all exist and are protected. Charles Taylor is closest to the latter concept of liberalism.44 In “Morality of Freedom”,45 Raz’s concept of political morality is based on the value of autonomy and freedom in the service of the well-being of people. Taking the cultural context of belonging as a starting point, Raz proposes a special kind of multiculturalism called liberal multiculturalism. Raz’s46 choice of multiculturalism is based on two value judgments: (1) the idea that freedom and the development of individuals depend on their complete and voluntary belonging to a living, cultural and well-respected group and (2) the value pluralism, i.e., the recognition that there can be many valuable cultures, regardless of how mutually incompatible they may be, with relative agency and values. For Raz belonging to a culture is important for three reasons: (1) it is only through an operative culture and its semantic meanings that individuals can perceive and distinguish the various options that imbue life with meaning; (2) respect for other cultures breeds understanding among people and enables socialization; (3) belonging to a culture is one of the most important determinants of one’s identity.47 According to Raz, a liberal state should by no means be neutral. On the contrary, it should promote the well-being of its citizens which cannot be achieved outside a cultural community, since only the community

41

Ibidem. Taylor (1994), pp. 41–42. 43 Walzer (1994), pp. 99–103. 44 Walzer (1994), p. 99. 45 Raz (1988). 46 Raz (2005), p. 192. 47 Raz (2005), p. 196. 42

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gives meaning and validates the goals of the subject. This is why the state needs to take an active role in fostering the harmonious development of different cultures. Today’s debate on multiculturalism differs from previous ones (pre-1989 debates) between liberals and communitarians, in which liberals insisted that individuals should be free to decide on their own conception of the good life and applauded the liberation of individuals of any ascribed or inherited status, while communitarians saw people as embedded in particular social roles and relationships, i.e., they viewed individuals as products of social practices.48 Today’s debate on multiculturalism is mostly a debate amongst liberals on the meaning of liberalism: there are the debates between individuals and groups who endorse the basic liberaldemocratic consensus but who disagree about the interpretation of these principles in multi-ethnic societies, i.e. they disagree about the proper role of language, nationality and ethnic identities within liberal-democratic societies.49 If we accept this approach, then we are talking about liberal multiculturalism. According to Raz, liberal multiculturalism, as a normative example, affirms the political attitude according to which encouraging and assisting the cultural and material prosperity of cultural groups in a society, as well as respecting their identities, is justified for reasons of freedom and human dignity.50 These reasons obligate the government to undertake measures that would go beyond the politics of mere tolerance and nondiscrimination.51 Although it includes the principle of non-discrimination, liberal multiculturalism transcends the individualist approach embodied by such a principle and acknowledges that unimpeded participation in well-respected and prosperous cultural groups is of vital importance to an individual’s well-being.52 The ideal of multiculturalism aims to (1) protect and recognize the cultural tradition of groups that exist in modern, pluralist societies, with such recognition being used to (2) protect the freedom of individuals and their ability to fully develop their own identities.53 Multiculturalism makes identities “political”, regardless of whether they are ethnic, racial, linguistic, gender or sexual and denounces difference-blind rules as they can unfavourably impact certain groups. But whether justice requires (a) general rules for all or (b) differentiated rules for particular groups should be determined on a case-by-case basis, within a particular context, and should not be assumed in advance.54

48

Kymlicka (2009), p. 371. Ibidem. 50 Raz (2005), p. 208. 51 Ibidem. 52 Ibidem. 53 Faso (2007), p. 708. 54 Kymlicka (2009), p. 405. 49

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4 Legal Recognition of Individual and Collective Identities There is a two-fold relation between law and identity. Within the scope of cultural studies of law, Naomi Mezey claims that law shapes individual and group identity, social practices, as well as the meaning of cultural symbols, but all of these things also shape law by changing what is socially desirable, politically feasible and legally legitimate.55 On the other hand, law has played a role in recognizing a right to the goods it distributes, e.g. citizenship, voting, antidiscrimination protection, property ownership, marriage recognition based on membership or status—national, racial, gender, class, religion etc.56 We can argue that there is a specific dialectics between identity and law. Conceptually and, for the purpose of analysis, I differentiate four possible concepts of legal recognition of identity: (1) legally recognizing an individual as equal to other individuals, resulting in individual identity features being used as a positive basis for extending the enjoyment of individuals rights or formally prohibiting anyone’s enjoyment of individual rights being restricted (extending the list of prohibited discriminatory grounds such as sexual orientation and gender identity), (2) legally recognizing a collective57 as equal to other collectives, resulting in a formal and legal validation of collective identity features and the use of identity characteristics of a collective as the basis for extending the enjoyment of collective rights to another collective or the formal prohibition of restricting the enjoyment of collective rights (for example, introducing quotas or veto mechanisms, special procedures for the protection of collective identity before the constitutional court), (3) legally recognizing identity differences of an individual, resulting in a formal and legal use of difference as the basis for establishing special individual rights (for example, the right of a transgender person to have medical insurance supported by the state), (4) legally recognizing identity characteristics that differentiate one collective from another as the basis for establishing special collective rights. Legal recognition can refer to public law (the right to political representation in legislative, executive and other public bodies; quotas, special election systems, veto or blockage mechanisms, rotation in executive, legislative and judicial government branches, the right to autonomy, language rights), as well as law regulating the private sphere (the right to privacy and a negative relationship to the state, the freedom to engage in consensual sexual intercourse, protection of the body and sexuality, freedom to express one’s identity privately and publicly). 55

Mezey (2015), p. 39. Mezey (2015), p. 48. 57 I use the term collective in a broader sense to include groups with strong cohesive elements, such as ethnic or religious groups, but also groups bound together by less potent cohesive elements, such as women, persons with developmental disabilities, sexual and gender minorities etc. 56

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5 The Principle of Equality and Non-discrimination Theoretically, the principle of equality has been constructed as a concept within political philosophy. More precisely, within the philosophy of egalitarianism. Equality is the principle that all people are or should be equal in certain relevant aspects. This means that people should get the same, or be treated the same, or be treated as equals in some respect.58 Egalitarian doctrines tend to rest on a background idea that all human persons are equal in fundamental worth or moral status or that all human beings possess human dignity.59 Egalitarians aim to replace social hierarchies with relations of social equality on the ground that individuals are fundamentally equal.60 They have aimed their critiques at many different types of social hierarchy including slavery, serfdom, debt peonage, feudalism, monarchy, oligarchy, caste and class inequality, racism, patriarchy, colonialism, stigmatization based on sexuality, sexual orientation, disability, age and bodily appearance.61 The sort of social hierarchies that human societies have constructed or have ever been able to construct have all been along the lines of ascriptive identity such as race, class, ethnicity, nationality, gender, sexuality, language and religion.62 There are at least four kinds of equality: (1) political, (2) legal; (3) social and (4) economic. Political equality means the right of all adult citizens, irrespective of their sex, religion, nationality, social status or other characteristics, to equal political participation. It includes the right (1) to elect and (2) to be elected; the right of national minorities to be represented in local bodies proportionately to their percentage in the overall population; the right of indigenous peoples to special political and territorial rights and the right to self-government; the right of ethnic groups to veto the legislative process and to be represented in legislative and executive authorities by quotas; the right of women to political participation; the right to effective freedom of speech and association, freedom of conscience and freedom of opinion, liberty of the person and freedom from the unlawful deprivation of liberty. Legal equality includes matters of fair treatment and legality. Fairness, in this respect, means that courts and government should treat similar cases in an equal manner. Social equality implies the possibility for every person, irrespective of their social status, to develop their abilities and acquire knowledge. Economic equality implies the same level of both income and wealth for all society members. International human rights law places the principle of equality and non-discrimination as one of its fundamental guiding principles, but also as a human right. In its General Comment no. 18 (non-discrimination), the U.N. Human Rights Committee has stated that non-discrimination, together with equality before the law and equal protection of the law without discrimination, constitute basic and general principles 58

Arneson (2013). Ibidem. 60 Anderson (2012), Chapter 1, para. 2. 61 Ibidem. 62 Anderson (2012), Chapter 3, para. 4. 59

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relating to the protection of human rights.63 The principle of equality and non-discrimination guarantees that those in equal circumstances are dealt with equally, both in law and in practice.64 In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.65 The term “other status” has an open-ended meaning, some grounds are not explicitly mentioned (e.g. gender or sexual orientation) but could also be considered as prohibited grounds (General Comment no. 18). Some regional human rights instruments prohibit discrimination. For example, Art. 2 of the American Declaration of the Rights and Duties of Man66 proclaims the right to equality before law; Art. 2 of African Charter on Human and Peoples’ Rights67 prohibits discrimination, while Art. 3 of the Charter proclaims (1) equality before the law and (2) equal protection of the law; Art. 24 of the American Convention on Human Rights68 stipulates the right to equal protection; Art. 6 of the Cairo Declaration on Human Rights in Islam69 proclaims that woman is equal to man in human dignity, and has rights to enjoy as well as duties to perform, while Art. 19 proclaims that all individuals are equal before the law, without distinction between the ruler and the ruled. Article 14 of the European Convention on Human Rights70 provides a framework for discriminatory behaviour and states that the enjoyment of the rights and freedoms set forth in the

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Human Rights Committee, General Comment No. 18: Non-discrimination (1989), para 1. https:// tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang¼en&TreatyID¼8& DocTypeID¼11. 64 See also the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Arts 2.1, 14, 24 and 26; the International Covenant on Economic, Social and Cultural Rights, Art. 2.2; the Convention on the Elimination of All Forms of Racial Discrimination (signed 7 March 1966, entered into force 4 January 1969) 660 UNTS 195, Arts 1, 2, 4 and 5; the Convention on the Rights of the Child (signed 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. Art. 2; the Convention on the Elimination of All Forms of Discrimination Against Women, (signed 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13, Arts 2, 3, 4 and 15; the Convention on the Rights of Persons with Disabilities (signed 13 December 2006, entered into force on 3 May 2008) 2515 UNTS 3. Arts 3, 4, 5 and 12. 65 International Covenant on Civil and Political Rights (1966), Art. 26. 66 American Declaration of the Rights and Duties of Man (signed April 1948, entered into force 2 May 1948) https://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htm. 67 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 (Banjul Charter) https://au.int/sites/default/files/treaties/363 90-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf. 68 American Convention on Human Rights (signed 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (Pact of San José) https://www.cidh.oas.org/basicos/english/basic3. american%20convention.htm. 69 The Cairo Declaration on Human Rights in Islam (adopted 5 August 1990) https://www.cidh.oas. org/basicos/english/basic3.american%20convention.htm. 70 European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 4 September 1953).

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European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Equality sometimes requires states to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination.71 Such actions may involve granting, for a time, that part of the population concerned have preferential treatment in specific matters as compared with the rest of the population (e. g. preferential treatment for national minorities, women, indigenous people, etc.72 Some national constitutions proscribe affirmative actions. For example, in India, it is not considered discrimination if the state makes any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.73 The Constitution in Nepal is more detailed in guaranteeing the making of special provisions by law for the protection, empowerment or advancement of women lagging behind socially and culturally, Dalits, Adibasi, Madhesi, Tharus, Muslims, oppressed classes, backward communities, minorities, marginalized groups, peasants, laborers, youth, children, senior citizens, sexual minorities, persons with disabilities, pregnant, incapacitated and helpless persons, and the citizens who belong to backward regions and financially deprived citizens including the Khas Arya.74 Additionally, the Constitution of Nepal prohibits any gender discrimination regarding remuneration for the same work and social security and also regarding the right to parental property with regard to all family members.75 Generally speaking, in comparative constitutional law, national constitutions provide norms that establish legal principles of equality and non-discrimination and legal norms that enable their implementation (whether in the form of more specified constitutional norms or systematic equality and anti-discrimination statutory norms). Anti-discrimination provisions, whether constitutional or statutory, are needed in order to implement the principle of equality. In addition to providing the grounds which are considered prohibited grounds for a different treatment, some constitutions define the notion of discriminatory behaviour. For example, the Constitution of Barbados, defines the expression “discriminatory” as affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place or origin, political opinions, colour or creed, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject of, or are accorded

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Human Rights Committee (1989), para. 10. See also: Human Rights Committee (1989), para. 10; Convention on the Elimination of All Forms of Discrimination against Women (1979), Art. 4. 73 Constitution of India (1949, last rev. 2019), Art. 15.4. https://www.constituteproject.org/. 74 Constitution of Nepal (2015), Art. 18.3. https://www.constituteproject.org/. 75 Constitution of Nepal (2015), Art. 18.4. 72

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privileges or advantages which are not afforded to persons of another such description.76 For example, Art. 15 (equality before and under law and equal protection and benefit of the law) of the Canadian Charter of Rights and Freedoms77 is premised on the right of individuals to achieve equality. Discrimination based on personal attributes cannot be allowed in a society that respects the dignity of every human being.78 However, when it comes to Canadian society, this focus on individual equality does not address the right of indigenous collectives from being discriminated against on a collectivity—to collectivity level.79 For indigenous peoples, equality is a broader concept than individual rights to equal treatment and it is broader than protecting group rights to be different.80 “It is a concept of equality that requires equal treatment as between political units of government, nations and peoples.”81 In that sense, the concept of equality for indigenous peoples should have two tracks: (1) the track that leads to individual equality—protection for indigenous individuals against unjust discrimination (protected under Art. 15 of the Charter), and (2) collective equality, focusing more on political equality between all of the founding nations of Canada.82 However, both theoretically and practically, we can discuss and argue the need for, and importance of, specific collective rights. Even though it is important, I will not discuss the moral justification for collective rights nor the theoretical concepts differentiating collective rights from individual rights. In the following pages, I will focus my analysis on the possible list of collective rights, both theoretical and practical.

6 Collective Rights In his article “Classifying Cultural Rights”, Jacob T. Levy offers a classification of collective rights that correlate with ethnic political claims. His classification can be helpful in the theoretical debate about collective rights, but also in their practical application. The discussion on collective and individual rights is useful even though it is carried out on the level of political philosophy and therefore does not offer specific guidelines on how to tackle real-life policies and demands.83 The claims of

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Constitution of Barbados (1966, last rev. 2020), Art. 23.2. https://www.constituteproject.org/. Canadian Charter of Rights and Freedoms, https://laws-lois.justice.gc.ca/eng/const/page-15.html. 78 Chartrand (2001), p. 7. 79 Ibidem. 80 Chartrand (2001), p. 8. 81 Ibidem. 82 Chartrand (2001), p. 13; Constitution Act (1982). Section 35 https://indigenousfoundations.arts. ubc.ca/constitution_act_1982_section_35/. 83 Levy (1997), p. 22. 77

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cultural collectives and special policies for accommodating ethnic and linguistic pluralisms include the following list of collective rights: exemptions, assistance, selfgovernment, external rules, internal rules, recognition/enforcement, representation and symbolic claims.84 Collective rights are usually understood as the means to protect elements of collective identity; to preserve the existence of the group; to protect their interests, language, religion, culture, traditions, land, cultural autonomy, and the right to equal redistribution of resources etc. Moreover, the principle of equality can be reconceptualized and can include the equality of collectives or groups. It can mean equal political rights to all groups in the state or equal redistribution of finances/resources, positions in judiciary and administration, etc. One way to protect collectives is by applying models of consociational democracy. In his seminal book “Democracy in Plural Societies”, Arend Lijphart defines his concept of consociational democracy as both an empirical and a normative model for the establishment and maintenance of democracy in plural, heterogeneous societies.85 For example, consociational institutions were introduced in the United Provinces of Canada (1840–1867), the Netherlands (1917–1967), Lebanon (1943–1975 and from 1989 on), Switzerland (1943), Austria (1945–1966), India (1947), Malaysia (1955, with the exception of 1969–1979), Colombia (1958–1974), Cyprus (1960–1963), Belgium (1970), Czechoslovakia (1989–1993), South Africa (according to the 1994 interim constitution), Northern Ireland (1972 and 1998), Northern Macedonia (since the 2001 Ohrid Agreement) and Bosnia and Herzegovina since the 1995 Dayton Peace Agreement.86 Lijphard’s models include 4 elements (1) grand coalitions—elite cooperation takes the form of executive coalitions in which the main leaders of all social groups are represented; (2) veto powers—a mutual veto for groups that see their vital interests at stake; (3) proportionality—proportional representation in assemblies as well as proportional allocation of offices and resources; (4) group autonomy—autonomy for social groups in the spheres important for them.87 Even though the grand coalition principle ensures representation of all groups within the government, it does not prevent one group from being outvoted by a majority of other groups.88 In order to avoid such a situation when a group’s or national vital interests are at stake, each of them is equipped with significant veto powers.89 Veto powers are usually entrenched in the constitution.90 When it comes to group autonomy or cultural autonomy, each group should possess the autonomy to decide all other matters and execute their decisions

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Levy (1997), p. 24. Merdzanovic (2015), p. 107. 86 Merdzanovic (2015), p. 108. 87 Merdzanovic (2015), pp. 114–116. 88 Merdzanovic (2015), p. 115. 89 Ibidem. 90 See Constitution of Bosnia and Herzegovina (1995, amend. 2009), Art. IV.3.e. http://www.ohr. int/ohr-dept/legal/laws-of-bih/pdf/001%20-%20Constitutions/BH/BH%20CONSTITUTION%20. pdf. 85

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autonomously.91 This means that the decision-making authority is delegated as much as possible to the different groups particularly in the areas of education, culture, religion, or language.92 Implementation of group autonomy has taken one of three main forms: (1) federal arrangements in countries in which state and linguistic areas largely coincide (Switzerland); (2) the right of religious and linguistic minorities to establish and administer their own autonomous schools which are supported financially by the state (Netherlands, Belgium) and (3) separate personal laws concerning e.g. marriage, divorce, or inheritance rights for religious minorities (Lebanon, Cyprus).93 In other words, consociational structures rely either on territorial or non-territorial autonomy for the groups.94 In addition to different arrangements introduced in multinational societies, international human rights law also recognizes specific rights that can be conceptualized as collective. More concretely, a large proportion of the rights set out in the UN’s Declaration of the Rights of Indigenous Peoples95 (2007) are collective rights. According to the text of the Declaration, indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms recognized in human rights law (Art. 1). Additionally, indigenous peoples and individuals are free and equal to all other peoples and individuals and have the rights to be free from any kind of discrimination, in the exercise of their rights, in particular based on their indigenous origin or identity (Art. 2). They have the right of self-determination and to freely pursue their economic, social and cultural development (Art. 3); the right to autonomy or self-government in matters relating to their internal and local affairs (Art. 4); the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions while retaining their right to fully participate in political, socio-economic and cultural rights of the State (Art. 5); the right not to be subjected to forced assimilation or destruction of their culture (Art. 8); the right not to be forcibly removed from their land or territories (Art. 10); the right to practice and revitalize their cultural traditions and customs (Art. 11); the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning (Art. 14); the right to establish their own media in their own language and to have access to all other forms of non-indigenous media (Art. 16); the right to participate in decision-making in matters which could affect their rights (Art. 18); the right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired (Art. 26). Indigenous peoples have the right to dignity and diversity of their cultures, traditions, histories and aspirations (Art. 15).

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Merdzanovic (2015), p. 115. Ibidem. 93 Ibidem. 94 Ibidem. 95 United Nations Declaration on The Rights of Indigenous Peoples (2007) https://www.un.org/ development/desa/indigenouspeoples/wpcontent/uploads/sites/19/2018/11/UNDRIP_E_web.pdf. 92

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Nevertheless, it should be emphasized that recent processes and initiatives at the international level have moved in the direction of making a clear distinction between indigenous peoples and minority populations, including a recognition of different status and legal entitlements.96 The most significant development has been the debate over whether indigenous peoples are entitled to enjoy the right to selfdetermination as peoples (guaranteed in the United Nations Charter).97 This trend has not been fully endorsed by existing colonial states such as Canada and there is a strong motivation to characterize indigenous peoples as a class of minority peoples so as to avoid a form of international legal personality being recognized as existing which could ultimately threaten the territorial integrity of Canada.98

7 Conclusion Paradoxically, although it is probably the only solution we have, legal recognition does not permanently solve the conflict or disharmony between identity, which is fluid, constructed, mutable, dynamic, plural, individual and collective, on the one hand, and law, which is static, on the other. The point of (applicable) law is continuity, constancy, predictability, stability and relative immutability, which is not true of identity. A multidisciplinary approach allows us to think of identity as a construct and if we accept the argument that collective rights protect a group (regardless of the degree of its cohesion), then these collective rights can only protect individuals as members of the said group and aspects of individual identity, and not the group as an essentialized, independently viewed entity. So far, all research in social and humanistic sciences has confirmed the idea that individual and collective identities are constructs. If collective identity is a construct, then we cannot strive for permanent recognition of collective rights that seek to anchor supposedly immutable identities. On the contrary, we can introduce collective rights only as temporary and contextualized measures or instruments that enable us to protect the choices and self-actualization of individuals. In my opinion, any claims that evoke (1) essentialized and immutable identities and/or (2) a moral rationale for the existence of a collective as separate from individuals who constitute it, fail to convince. The value of a collective can only be posited within the framework of the value of individual freedom, autonomy and individual choice. Thus, even if we use collective rights as an instrument, this is acceptable only if (1) they protect individuals as actual or supposed members of a collective; (2) they supplement individual rights, (3) they enable individual autonomy and human dignity, regardless of whether individuals exercise this autonomy on their own or as part of a social group; (4) collective rights

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Chartrand (2001), p. 6. Ibidem. 98 Ibidem. 97

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are accepted as a temporary measure and not a permanent solution, since collective identities that are being protected are not immutable; (5) through pluralism of values, the law allows for making individual choices, re-evaluating choices already made and developing a complex individual identity that can be either individual or tied to other persons in various ways, thereby participating in the creation of a collective identity; (6) collective rights are not understood as something that enables a collective to coerce an individual in choosing the appropriate concept of good, but as a way of protecting an individual against the collective; (7) collective rights are subject to temporal and spatial re-interpretations, in accordance with the concept of human dignity and individual freedom.

References Anderson E (2012) Egalitarianism. In: Estlund D (ed) The Oxford handbook of political philosophy (epub). OUP, Oxford Arneson R (2013) Egalitarianism. In: Zalta EN (ed) The Stanford encyclopedia of philosophy, Summer 2013. https://plato.stanford.edu/archives/sum2013/entries/egalitarianism/ Chartrand LN (2001) Shorter article: re-conceptualizing equality: a place for indigenous political identity. Windsor Yearb Access Just 19:243–258 Faso G (2007) Istorija filozofije prava. CID, Univerzitet Mediteran, Podgorica Fraser N (2000) Rethinking recognition. New Left Rev 3:107–120 Golubović Z (2007) Antropologija. Službeni glasnik, Beograd Kalanj R (2008) Modernizacija i identitet. Politička kultura, Zagreb Kukathas C (2002) Postoje li kulturna prava? In: Divjak S (ed) Nacija, kultura i građanstvo. Službeni list, Beograd, pp 191–219 Kymlicka W (2009) Savremena politička filozofija. Nova srpska politička misao, Beograd Levy TJ (1997) Classifying cultural rights. In: Shapiro I, Kymlicka W (eds) Ethnicity and group rights. Nomos XXXIX, New York, London, pp 22–66 Loretoni A (2006) Identitet i priznanje. In: Ceruti F (ed) Identitet i politika. Politička kultura, Zagreb, pp 127–144 Marko D (2009) Zar na Zapadu postoji neki drugi Bog? Media plan institute, Sarajevo Merdzanovic A (2015) Democracy by Decree. Prospects and limits of imposed consociational democracy in Bosnia and Herzegovina. Ibidem Verlag, Stuttgart Mesić M (2006) Multikulturalizam: društveni i teorijski izazovi. Školska knjiga, Zagreb Mezey N (2015) Mapping a cultural studies of law. In: Sarat A, Ewick P (eds) The handbook of law and society. Wiley-Blackwell, Chichester, pp 39–55 Raz J (1988) The morality of freedom. OUP, Oxford Raz J (2005) Etika u javnom domenu: ogledi iz moralnosti prava i politike. CID, Podgorica Sakamoto R (2002) Japan, hibridnost i stvaranje kolonijalističkog diskursa. In: Divjak S (ed) Nacija, kultura i građanstvo. Službeni list, Beograd, pp 379–395 Taylor C (1994) The politics of recognition. In: Gutmann A (ed) Multiculturalisam. Princetone University Press, New Jersey, pp 25–73 Walzer M (1994) Comment. In: Gutmann A (ed) Multiculturalism. Princeton University Press, New Jersey, pp 99–103

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Damir Banović (1983) is an assistant professor at the University of Sarajevo – Faculty of Law (Public and International Law Department). He teaches Introduction to Law, Philosophy of Law and Comparative Federalism. His main research focus is contemporary socio-legal theory, theory of collective rights, minority rights, consocialism and comparative federalism.

Part II

Federalism and Democracy

Constitutional Asymmetry as a Surrogate in Conflict Accommodation or How (Not) to Stabilize a Constitutional System Maja Sahadžić

Abstract To date, the study of federalism in comparative constitutional law has been subject to considerable discussion. In particular, investigating how federalism can be explored as a device for managing internal conflicts is a continuing concern within this field. Equally important, federalism studies have gradually gained importance in international public law due to potential consequences for the territorial integrity of the state linked to the right to self-determination and right to secession. However, there is an existing and growing gap between traditional and contemporary theoretical understandings about federal devices used to address autonomy claims and ultimately accommodate internal conflicts. In contrast to the earlier theoretical framework, contemporary research in federalism recognizes that federal relationships are dynamic. Importantly, distinctive identity markers have been of crucial importance in processes of fragmentation which lead to the establishment of intermediary tiers of government and ultimately to constitutional asymmetries. The theoretical split that has dominated the field of federalism studies reflects on two important aspects linked to constitutional asymmetries: firstly, the use of constitutional asymmetry as a federal device in conflict accommodation and secondly, the understanding of stability. Unlike the traditional federal approach, the contemporary federal perspective remains open for discussing the application of constitutional asymmetries as a tool ensuring the stability of the system as well as for the dynamic interpretation of stability to respond to contemporary challenges. Drawing upon two strands of research, this contribution attempts to transform the narratives about understanding constitutional asymmetry as a federal device. To that end, the contribution explores: first, the theoretical split between traditional and contemporary federal theory; second, perspectives about using constitutional asymmetry in conflict accommodation; and third, its effects on the stability of the constitutional system.

This contribution is part of a research project funded by the Fundamental Research Foundation Flanders (Fonds Wetenschappelijk Onderzoek—FWO). M. Sahadžić (*) Faculty of Law, University of Antwerp, Antwerp, Belgium e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_5

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1 The Groundwork: What Is the Theoretical Split About? Studies investigating the capacity of federal arrangements to manage internal conflicts and autonomy claims are a continuing feature in the field of comparative constitutional law.1 Added to this, the right to self-determination and a right to secession have gradually gained importance in international public law.2 This is due to their potential influence on the territorial integrity of the system.3 What amplifies the debates in both fields is an existing and growing hiatus between traditional and contemporary theoretical approaches. In the face of autonomy claims, traditional federal theory focuses on the following characteristics of federal systems: (1) equality, (2) symmetry, and (3) mono-nationalism. Traditional federal scholarship implies that a federal system is composed of two or more approximately equal component units.4 Importantly, relationships among component units are symmetrical.5 A possible explanation for this might be linked to the period before the Second World War when federalism scholars considered a federal system to be only a substitute for a unitary system.6 Added to this, the so-called “model” federal systems like Germany and the United States of America have been based on purely territorial features.7 Further, traditional federal theory also supports the mono-national idea of the federal system.8 It links symmetry to mono-national systems and the processes of nation-building.9 Traditional scholarship thus suggests that identity differences underline internal disputes.10 If a claim for the institutional and/or procedural accommodation of identity differences is strong enough, it will lead up to an asymmetrical design.11 According to traditional federal theory, federal systems with equal and symmetrical component units without identity differences illustrate very few risks to their survival.12 Traditional scholarship assumes that symmetry safeguards the stability of the system13 because more symmetry means more stability.14 Similarly, multinationalism in systems with federal arrangements is considered to be an

1

Jackson (2005); Choudhry and Hume (2011). Jackson (2005). 3 Sahadžić (2017). 4 Inter alia: Halberstam (2012a); Watts (1997); Kincaid (2005); McGarry (2007). 5 Tarlton (1965). 6 Consult also: Watts (1994); Erk (2008); Stevens (1977). 7 Kymlicka (2005); Popelier (2014); Requejo (2011). 8 Requejo (2011). 9 Requejo (2001a). 10 Fleiner (2005). 11 Máiz (2004). 12 Choudhry and Hume (2011). 13 Similarly: Burgess (2006). 14 Tarlton (1965). 2

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element of instability15 especially if there is no common national identity16 or intermediary identity.17 According to the traditional approach, diversity challenges the constitutional design of the system and consequently influences stability.18 In order to maintain the balance, there needs to be an overarching identity that bonds together all inhabitants within one system.19 A stable constitutional system cannot exist if it generates asymmetrical features.20 To this end, symmetrisation is a mechanism to deal with differences.21 Contemporary federalism scholars, however, offer new insights as they recognize (1) the existence of federal dynamics,22 (2) the emergence of constitutional asymmetries, and (3) the importance of multinationalism in the processes of fragmentation.23 Contemporary federal theory indicates that as a consequence of federal dynamics the concept of equality becomes plural. The reason for this is that the concept needs to support the institutional and procedural accommodation of identity differences.24 This is especially evident in the so-called “holding together” systems25 that apply federal principles to accommodate differences and ultimately hold them together.26 The “holding together” systems can refer to federal systems like Belgium, Bosnia and Herzegovina, and Canada. However, they can also refer to the systems which are not necessarily federal by default but have introduced federal principles as a response to autonomy claims based on identity differences.27 Examples, among others, include Indonesia, Iraq, Italy, Malaysia, Spain, and the United Kingdom. Obviously, federal features have become an appealing concept in systems burdened with identity variations.28 To equalize unequals, the abovementioned systems have introduced constitutional asymmetries meaning that they have granted a differentiated status, powers and competences, and/or fiscal autonomy to component units with territorially embedded differences.29 However, asymmetrical constitutional arrangements underline complicated relations between and among tiers of government and diverse identities.30

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Elazar (2006). McGarry and O’Leary (2007). 17 Keating (1998). 18 Burgess (2006). 19 Gagnon and Iacovino (2004). 20 Tarlton (1965); Fossas (2001). 21 Nagel and Requejo (2011). 22 Geys and Konrad (2012). 23 Friedrich (1968). 24 Requejo (2004). 25 Stepan (2004). 26 Ibidem. 27 Obinger et al. (2005); Stepan (2004); Palermo (2009). 28 Stepan (2004). 29 Máiz (2004). 30 Burgess (2006), p. 213. 16

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Multinational systems with federal arrangements accommodate identity differences31 through the concept of constitutional asymmetry.32 At the same time, this raises the questions about stability of the system.33 Equilibrium in asymmetrical multinational systems with federal arrangements is fragile since it is persistently challenged.34 This is because diversity plays a key role in the processes of fragmentation.35 Stability in these systems depends on the multiplicity of actors and their prevailing interests.36 As constitutional asymmetries feature associative and devolutionary processes at the same time37 it is then crucial to maintain the balance between association and devolution of the system.

2 The Concept of Constitutional Asymmetry: Contemporary Federal Dynamics? The concept of constitutional asymmetries is closely linked to the concept of political asymmetries. In systems with federal arrangements, political asymmetries are differences in the size of the population and territory, the economic character, resources and wealth, identity, and the party system of the component units.38 Constitutional asymmetries emerge when differences are embedded in the constitutional and/or legal text in a way to produce variations among component units and between component units and the central level.39 It is true that several types of differences produce political asymmetries and consequently constitutional asymmetries. However, differences in identity are the main cause of constitutional asymmetries even though they are supported by economic and political factors.40 The identity markers—such as language, religion, culture, and ethnicity—have the underlying potential for political mobilization.41 This is because the groups with a distinctive identity may inspire members of the group to pursue changes within the system by emphasizing variations in identity. When and where this occurs, the groups pursue asymmetrical constitutional

31

Tierney (2006). Gagnon and Laforest (2012). 33 Burgess and Gress (1999). 34 Benz and Broschek (2013). 35 Friedrich (1968). 36 Nishihara (2001); Burgess (2006); Bauböck (2001). 37 Friedrich (1968). 38 Burgess (2006); Watts (1999a). 39 Burgess (2006); Watts (1999a). 40 Popelier and Sahadžić (2019). 41 Choudhry (2008). 32

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solutions to protect their identity. The differences in identity may then explain differences in institutional and procedural arrangements. Constitutional asymmetries are projected through status, distribution of powers and competences, and/or fiscal autonomy.42 This way, constitutional asymmetries interfere with the institutional and procedural framework of the system. For example, the Italian regions do not enjoy institutional representation in the central level legislature, however, they foster inter-governmental relations. While every special region participates on the basis of the principle of parity, the region of South Tyrol has a special commission of six members.43 In Canada, three out of nine judges of the Supreme Court are from Quebec.44 The Dutch-speaking and French-speaking groups in Belgium have been granted quasi-veto powers.45 The Indonesian province of Aceh is authorized to apply Islamic law.46 The Spanish constitution has allowed different fiscal agreements for the Basque Country and Navarre.47 In Malaysia, Sabah can impose sales taxes.48 These are some examples, but the list goes on. While the previously mentioned asymmetrical solutions were introduced to stabilize the system, they have caused other challenges for stability, discussed further in the text. Importantly, stability in asymmetrical multi-tiered multinational systems has to be based on instruments and mechanisms that can guarantee balance among and between all component units and groups within the system.49 It also needs to be established in a way that can protect the balance among and between all component units and groups within the system.50 However, despite its relevance, the relationship between constitutional asymmetries and stability remains unexplored. This is because the scholarship on constitutional asymmetries is mainly devoted to the concept and definitions of asymmetries while the influence on the stability of the system is overlooked.51 One question remains crucial: how to create a stable system?52

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Palermo (2009). Palermo and Valdesalici (2019). 44 Gagnon and Garon (2019). 45 Popelier (2019). 46 Butt (2019). 47 Watts (2008). 48 Salleh et al. (2019). 49 Requejo (2016). 50 Braun et al. (2017b), pp. 14–53. 51 Hombrado (2011). 52 Seijas Villadangos (2014). 43

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3 Stability: The Aspects That Influence? Due to the lack of comprehensive research, stability is conceptualized simply as the absence of secessionist and/or self-determination claim53 and/or the accommodation of diversity.54 Traditionally, a system is considered stable if it lacks fragmentation,55 it is symmetrical, and displays centralizing features.56 However, the nature of multinational systems with federal arrangements with established constitutional asymmetries puts into sharper perspective two opposing directions. In these systems, constitutional asymmetries can either provide bargaining flexibility57 or they can transform autonomy claims into secessionist and/or self-determination claims.58 This is because stability in these systems depends on multiple aspects: (1) the territorial framework and identity variations, (2) horizontal and vertical relationships among the component units and between the component units and central authorities, and (3) structural and fiscal balances. It has been assumed that strong guarantees of participation and representation for component units and/or groups contribute to the stability of the system.59 This is because it has been suggested that participation produces a sense of having influence.60 However, a trend of enabling participation and representation exists, but without defined minimums.61 The reason for this might be that special guarantees of participation and representation may induce further autonomy claims.62 For example, this argument is used to reassess the position of Sabah and Sarawak towards the rest of Malaysia.63 Also, it has been observed that the clear division of powers and competences supports the stability of the system64 as it disables potential disputes. While this trend does not exist in asymmetrical systems like Belgium, Iraq, Italy, or Myanmar65 the example of Bosnia and Herzegovina offers a degree of counter intuition. Despite the clear division of powers and competences, the central level in Bosnia and Herzegovina has a narrow set of exclusive competences. Because of this, the central level has introduced what are known as parallel competences to the discontent of the Republic of Srpska.66 53

Colino and Moreno (2010). Agranoff (1999). McGarry et al. (2008). Pildes (2008). 55 Dikshit (1975). 56 Dikshit (1975). 57 Agranoff (1999). On a similar theme: Hofmeister and Tayao (2016) Knuepling (2016). 58 Agranoff (1999). On a similar theme: Pildes (2008). Cited in: Krisch (2010). 59 Fleiner and Hertig (2010); Verdun (2016). 60 McGarry and O’Leary (1994). 61 Sahadžić (2020). 62 Filippov et al. (2004). 63 Salleh et al. (2019). 64 Filippov et al. (2004). 65 Sahadžić (2020). 66 Sahadžić (2019). 54

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One important aspect to mention is that a political party system67 and political party ideology68 act as congruent features to structural stability.69 Asymmetrical multinational systems with federal arrangements mainly feature fragmented political party systems that are not able to connect the aspects of the system.70 Importantly, political parties in these systems exercise political mobilization based on identity.71 Depending on party ideology, political parties then contribute to either associative or devolutionary forces. One of the examples is certainly Belgium where party ideology coincides with the linguistic and territorial divide.72 Another example is Spain where party ideology is linked to distinct identities in the Basque Country and Catalonia.73 Finally, the fiscal power of component units suggests its level of autonomy.74 Examples include Italy, where the share of national taxes is higher in special regions with major spending powers, such as the Aosta Valley and South Tyrol.75 Also, Papua in Indonesia receives 70% of Indonesia’s oil and gas revenues.76 However, differences in fiscal powers can empower (further) autonomy claims.77 They can also provoke competition. For example, to protect its resources, Catalonia has pushed for the same or similar tax powers that were granted to the Basque Country and Navarre.78 Similarly, equalization transfers might influence the stability of the system, especially when the central level can impose conditions on transfers. In that case, tensions will likely occur.79 This would be the case in Canada where Quebec, compared to other component units, receives the most of equalization transfers.80 As in the previous case, there is a congruent feature—wealth—that underlines differences within the system.81 A particular problem is that the differences and asymmetries often coincide with variations in wealth.82 For example, wealthy Amhara and Oromia in Ethiopia can cover up to 30% of their expenditures, while smaller component units can cover only up to 10%.83

67

Choudhry (2008); Halberstam (2012b). Choudhry (2008). 69 See: Sahadžić (2020). 70 Ibidem. 71 Choudhry (2008). 72 Popelier (2019). 73 Bossacoma Busquets and Sanjaume-Calvet (2019). 74 Watts (1999b). 75 Palermo and Valdesalici (2019). 76 This has been in force since 2001 and will be reduced to 50% after 25 years. Butt (2019). 77 Similar: Burgess (2006). 78 Bossacoma Busquets and Sanjaume-Calvet (2019). 79 Braun et al. (2017a). 80 Kress (2018). 81 See: Sahadžić (2020). 82 Basta (2012). 83 Fessha and Bezabih (2019). 68

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4 Dynamic Stability: Adaptiveness, Trust, and Coordination! Maintaining stability under the scope of traditional federal theory certainly can be achieved through symmetrisation that is often supported by coercive methods.84,85 However, the question is how to do it peacefully.86 From the contemporary federal perspective, the use of constitutional asymmetries can allow for a softer response compared to other more exclusionary claims, such as the right to self-determination and a right to secession. It can, therefore, be assumed that constitutional asymmetries could be used as a surrogate in conflict accommodation and might have favourable effects in maintaining the stability of contemporary multinational systems with federal features.87 However, for the system to remain stable it is crucial to balance association and devolution.88 Achieving overall stability depends on two types of relationships: (1) horizontal relationships among the component units and/or groups and (2) vertical relationships between the component units and/or groups and the central level.89 This means preventing devolutionary pressures from specific component units. It also means preventing associative influence from the central level.90 Importantly, this does not imply keeping the state of affairs unchanged91 but rather a constant and careful adjustment of the system.92 Based on this, it is possible to single out several qualities that support stability in asymmetrical multinational systems with federal arrangements: “adaptiveness— since it requires constant fine-tuning of the common interests and solidarity to maintain structural and fiscal balances; trust—since mutual respect ensures fairplay and predictable expectations in the outcomes of structural and fiscal balances; and coordination—since it connects tiers of government and groups together through their common interest to balance the status, distribution of powers and competences, and fiscal autonomy.”93 The dynamic environment in asymmetrical systems requires all component units and groups to constantly adapt. The examples already given throughout the text show that this does not always happen even though federal dynamics requires a constant rethinking of the division of powers and competences. This is linked to

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Requejo (2001b). Anderson (2013). 86 Ibidem. 87 Hausing (2014). 88 Anderson (2014). 89 Ibidem. 90 Halberstam (2012b). 91 On this trace see: ibidem. 92 Simeon (2001). 93 Sahadžić (2020). 85

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mutual trust and trust in institutions. Favouring specific sub-national entities in equalization policies causes distrust while trust in the fair management of the system supports the coordination of the system. Even then, the system needs to possess coordinating instruments that can connect various groups, the component units, and the central level.

5 Conclusions The aim of this contribution was two folded. The first aim was to examine the potential of applying constitutional asymmetry as a federal device in conflict accommodation, thereby, in maintaining the stability of the system. The second aim, resulting from the first, was to explore the contemporary understanding of the stability of the multinational constitutional system with federal features. One of the more significant findings to arise from this contribution is that traditional federal theory lost its relevance as a consequence of contemporary federal dynamics. Another significant finding is that the theoretical split between the traditional and contemporary approaches has an effect on the perspectives of stability and constitutional asymmetry in federal systems. To answer these theoretical challenges, the contribution focused on pointing to the differences between two theoretical strands and emphasizing the need for (more) flexibility in the traditional interpretation of constitutional asymmetry and stability. Then, it provided a space for the evaluation of constitutional asymmetry as a federal device in conflict accommodation as well as for the dynamic interpretation of stability to conform to contemporary federal dynamics. The findings of this contribution have a number of implications for future research. Despite its exploratory nature, this contribution offers some insight into the relationship between constitutional asymmetry and stability as it sets in motion the further assessment of the relationship. A greater focus on these particular concepts could produce interesting findings that better account for overcoming drawbacks of traditional federal theory. Finally, that would contribute to a better understanding of contemporary federal cha(lle)nges.

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Bauböck R (2001) United in misunderstanding? Asymmetry in multinational federations. ICE Work Pap Ser 26:1–51 Benz A, Broschek J (2013) Federal dynamics: introduction. In: Benz A, Broschek J (eds) Federal dynamics: continuity, change, & the varieties of federalism. Oxford University Press, Oxford, pp 1–26 Bossacoma Busquets P, Sanjaume-Calvet M (2019) Asymmetry as a device for equal recognition and reasonable accommodation of majority and minority nations. A country study on constitutional asymmetry in Spain. In: Popelier P, Sahadžić M (eds) Constitutional asymmetry in multinational federalism, managing multinationalism in multi-tiered systems. Palgrave Macmillan, Cham, pp 429–460 Braun D, Ruiz-Palmero C, Schnabeld J (2017a) Comparative insights and theoretical observations. In: Braun D, Ruiz-Palmero C, Schnabeld J (eds) Consolidation policies in federal states, conflicts and solutions. Routledge, New York, pp 273–298 Braun D, Ruiz-Palmero C, Schnabeld J (2017b) Concepts. In: Braun D, Ruiz-Palmero C, Schnabeld J (eds) Consolidation policies in federal states, conflicts and solutions. Routledge, Oxon and New York, pp 14–53 Burgess M (2006) Comparative federalism, theory and practice. Routledge, London Burgess M, Gress F (1999) Symmetry and asymmetry revisited. In: Agranoff R (ed) Accommodating diversity: asymmetry in federal states. Baden-Baden, Nomos Butt S (2019) Provincial asymmetry in Indonesia: what is so ‘special’ about it? A country study of constitutional asymmetry in Indonesia. In: Popelier P, Sahadžić M (eds) Constitutional asymmetry in multinational federalism, managing multinationalism in multi-tiered systems. Palgrave Macmillan, Cham, pp 227–254 Choudhry S (2008) Bridging comparative politics and comparative constitutional law: constitutional design in divided societies. In: Choudhry S (ed) Constitutional design for divided societies: integration or accommodation? Oxford University Press, New York, pp 3–40 Choudhry S, Hume N (2011) Federalism, devolution and secession: from classical to post-conflict federalism. In: Ginsburg T, Dixon R (eds) Comparative constitutional law. Edward Elgar Publishing, Cheltenham, Northampton Colino C, Moreno L (2010) Comparative conclusions. In: Colino C, Moreno L (eds) Diversity and unity in federal countries. McGill-Queen’s University Press, Montreal & Kingston, London, Ithaca, pp 379–400 Dikshit RD (1975) The political geography of federalism, an inquiry into origins and stability. The Macmillan Company of India Limited, New Delhi Elazar DJ (2006) Exploring federalism. University of Alabama Press, Tuscaloosa Erk J (2008) Explaining federalism, state, society and congruence in Austria, Belgium, Canada. Germany and Switzerland, Abingdon, Routledge Fessha YTF, Bezabih BN (2019) Federation among unequals. A country study of constitutional asymmetry in Ethiopia. In: Popelier P, Sahadžić M (eds) Constitutional asymmetry in multinational federalism, managing multinationalism in multi-tiered systems. Palgrave Macmillan, Cham, pp 137–162 Filippov M, Ordeshook PC, Shvetsova O (2004) Designing federalism: a theory of self-sustainable federal institutions. Cambridge University Press, Cambridge Fleiner T (2005) The challenge of ethnic diversity to federalism. In: Gaudreault-DesBiens J-F, Gélinas F (eds) Le fédéralisme dans tous ses états: Gouvernance, identité et méthodologie/The states and moods of federalism: Governance, identity and methodology. Cowansville, Editions Yvon Blais Fleiner T, Hertig M (2010) Swiss confederation. In: Colino C, Moreno L (eds) Diversity and unity in federal countries. McGill-Queen’s University Press, Montreal and Kingston, London, Ithaca, pp 321–348 Fossas E (2001) National plurality and equality. In: Requejo F (ed) Democracy and national pluralism. Routledge, London and New York

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Friedrich CJ (1968) Trends of federalism in theory and practice. Praeger, New York, Washington, London Gagnon A-G, Garon J-D (2019) Constitutional and non-constitutional asymmetries in the Canada Federation: an exploration into the policy fields of immigration and manpower training. A country study on constitutional asymmetry in Canada. In: Popelier P, Sahadžić M (eds) Constitutional asymmetry in multinational federalism, managing multinationalism in multitiered systems. Palgrave Macmillan, Cham, pp 77–104 Gagnon A-G, Iacovino R (2004) Interculturalism: expanding the boundaries of citizenship. In: Máiz R, Requejo F (eds) Democracy, nationalism, and multiculturalism. London and New York, Frank Cass, pp 25–42 Gagnon A-G, Laforest G (2012) The moral foundation of asymmetrical federalism: normative considerations. In: Requejo F, Badia MC (eds) Federalism, plurinationality and democratic constitutionalism: theory and cases. Routledge, Abingdon and New York Geys B, Konrad KA (2012) Federalism and optimal allocation across levels of governance. In: Enderlein H, Wälti S, Zürn M (eds) Handbook on multi-level governance. Edward Elgar Publishing Halberstam D (2012a) Federalism: theory, policy, law. In: Rosenfeld M, As S (eds) The Oxford handbook of comparative constitutional law. Oxford University Press, Oxford Halberstam D (2012b) Federalism: theory, policy, law. In: Sajó A, Rosenfeld M (eds) The Oxford handbook of comparative constitutional law. Oxford University Press, Oxford, pp 576–608 Hausing KKS (2014) Asymmetric Federalism and the Question of Democratic Justice in Northeast India. India Rev 13(2):87–111 Hofmeister W, Tayao E (2016) Federalism and decentralization, perceptions for political and institutional reforms. Singapore, Manila: Konrad-Adenauer-Stiftung and Local Government Development Foundation Hombrado A (2011) Learning to catch the wave? Regional demands for constitutional change in contexts of asymmetrical arrangements. Region Fed Stud 21(4–5):479–501 Jackson VC (2005) Comparative constitutional federalism: its strenghts and limits. In: GaudreaultDesBiens J-F, Gélinas F (eds) Le fédéralisme dans tous ses états: Gouvernance, identité et méthodologie/The states and moods of federalism: Governance, identity and methodology. Editions Yvon Blais, Cowansville Keating M (1998) What’s wrong with asymmetrical government? Region Fed Stud 8(1):195–218 Kincaid J (2005) Comparative observations. In: Kincaid J, Tarr GA (eds) Constitutional origins, structure, and change in federal countries. McGill’s Queen’s University Press, Montreal & Kingston, London and Ithaca Knuepling F (2016) Federal governance and weak states. In: Hofmeister W, Tayao E (eds) Federalism and decentralization, perceptions for political and institutional reforms. KonradAdenauer-Stiftung and local government development foundation, Singapore, Manila, pp 1–22 Kress A (2018) Accommodating diversity while guaranteeing stability: the role of financial arrangements. In: Valdesalici A, Palermo F (eds) Comparing fiscal federalism. Brill Nijhof, Leiden, Bostin, pp 274–296 Krisch N (2010) Beyond constitutionalism: the pluralist structure of postnational law. Oxford University Press, Oxford Kymlicka W (2005) Is federalism a viable alternative to secession? In: Lehning PB (ed) Theories of secession. Routledge, London Máiz R (2004) Nation and deliberation. In: Máiz R, Requejo F (eds) Democracy, nationalism and multiculturalism. London and New York, Frank Cass McGarry J (2007) Asymmetry in federations, federacies and Unitary States. Ethnopolitics 6(1): 105–116 McGarry J, O’Leary B (1994) The political regulation of national and ethnic conflict. Parliament Aff 47(1):94–115 McGarry J, O’Leary B (2007) Federation and managing nations. In: Burgess M, Pinder J (eds) Multinational federations. Routledge, London

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Maja Sahadžić is Visiting Professor and Researcher at the University of Antwerp. Her research revolves around constitutional asymmetries, federalism, multilevel governance, dynamic legitimacy, dynamic stability, constitutional values and principles, fundamental rights, legal theory, alternative conflict solutions, constitutionalism under extreme measures, and methodology of (legal) research. Her research is interdisciplinary and comparative and she often experiments with innovative methodological frameworks that include a fusion of empirical and qualitative approaches. Selected publications: Asymmetry, multinationalism and constitutional law, managing legitimacy and stability in federalist states (2020); Can asymmetrical constitutional arrangements provide an alternative answer for the disputed? Bringing constitutional Asymmetries into Play in the Middle East peace process (2020); The constitutionalism of emergency, the case of Bosnia and Herzegovina and beyond (2020); Constitutional asymmetry in multinational federalism: managing multinationalism in multi-tiered systems (2019).

A Dêmoicratic Account of the Catalan Case Ander Errasti López

Abstract This contribution argues that dêmoicratic theory could contribute to moving forward in the current debates around the Catalan case. It begins, in Sect. 1, by addressing the Catalan case in relation to discussions about the status of Spanish democracy. The first section argues that those debates are fundamentally defined by the analysts’ perspectives and frameworks of understanding, arguing for the need to introduce alternative approaches. Section 2 synthesises the three main ways of portraying the Catalan case: a clash of recognitions, a nationalist conflict, or an alignment with global trends. This contribution argues that a comprehensive analysis of the case needs to combine, at least, the three perspectives. The third section introduces an overview of the theory of dêmoicracy, adding a dimension that has often been ignored by its proponents: the idea that the moral requirement to avoid any dynamic of internal and external domination between the components of a plurality of demos or demoi (and their citizens) not only applies among nation-states, but also within nation-states. This contribution concludes with a brief overview of three different scenarios that, based on a dêmoicratic account, could contribute to building alternative paths that move beyond the dichotomies that lead to pureconflict dynamics.

This contribution is part of a research project funded by the Fundamental Research Foundation Flanders (Fonds Wetenschappelijk Onderzoek—FWO). I would like to thank the colleagues attending the 2019 IVR World Congress Lucerna and the Self-Determination in a Context of Shared Sovereignty: How to Devise a European Approach? event organised by the Coppieters Foundation for their previous comments on this text. I would also like to thank my colleagues at the Institut d’Estudis de l’Autogovern for their support. Any improvable or mistaken elements are solely my responsibility, while any of the positive elements the chapter may contain are the result of having the opportunity to discuss them with my colleagues. Finally, I would also like to show my gratitude to the editors for their patience and support, despite the difficult circumstances in 2020, and to Laura Lloret for her thorough language review. A. Errasti López (*) Political and Administrative Sciences Department, Faculty of Law, University of Barcelona, Barcelona, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_6

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1 Introduction: The Demoicratic Theory in a Nutshell From the rise of non-democratic rhetoric, leaders, and practices, the loss of trust in traditional institutions of modernity, the increasing pressure of disruptive global risks, to many other threats to democracy, it seems fair to state that democracy finds itself in an unstable situation. This does not mean that many of those threats have emerged for the first time, nor that they are doing so in a homogeneous way. It neither is about whether or not democracy is in crisis in, primarily, material terms; it is not necessarily a matter of the wrong individuals being in power and lacking resources. Rather, as Daniel Innerarity argues,1 this crisis of democracy often has more to do with the lack of adequate theoretical tools to capture, understand and transform the reality that we aim to maintain as democratic, rather than with who is exerting power. At the very least, citizens and institutions will struggle to overcome the crisis of democracy without previously updating the theoretical approaches. That is the main reason to promote alternative views such as the theory of dêmoicracy. In such a period of effervescence of the democratic political systems as we know them, particularly in Europe, the Catalan case2 represents another opportunity to further explore the dêmoicratic alternative, as a means to better deal with crisis. While the case itself is comparatively not significant in global terms—despite all the conflict dynamics and imprisonments, it remains mostly peaceful—it contains many of the elements that we can identify with the crisis of democracy. Further, although scholars have previously applied the dêmoicratic perspective to different cases3 and matters,4 they have barely explored its potential to address conflicts within nationstates. That is why the Catalan case and its connection with Spanish and European democracies broader evolution offers a unique scenario to test out this dêmoicratic account. Firstly, such a test introduces alternative theoretical approaches that might help to overcome the current dichotomies and dead-end debates. Secondly, such testing can prove the potential of the dêmoicratic perspective to reflect on innovative ways of facing the challenges that European democracy is confronting, particularly on sovereignty-related matters. And lastly, this dêmoicratic testing can provide an

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Innerarity (2020), p. 12. The chapter regularly refers to “the Catalan case”. However, it does not include a thorough and exhaustive review of the case. This is due to three main motives: (1) such an endeavour would require much more space, (2) as I’ll argue, a complete account will require the combination of multiple perspectives and disciplines that this chapter does not include, and (3) as the chapter does not necessarily have a descriptive ambition, none of the empirical references to the case are likely to undermine the chapter’s normative and methodological point. Still, for those completely unfamiliar with the case, it refers to the unresolved territorial conflict following the will to decide their own collective future sustainedly claimed by a significant part of the Catalan population (in the 2000s in the form of reforming the Autonomous Community’s Statute, and in the 2010s in the form of holding an independence referendum). 3 Sternberg et al. (2018) and Nicolaïdis (2019). 4 Bellamy (2019). 2

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approach that, due to its combination of vertical and horizontal institutional dynamics, has the potential of adapting to both supranational and subnational cases. We can define dêmoicratic theory as the theory that states that democracy does not require a single demos and is compatible with a plurality of demoi in peoples’ sense, governing together but not as one. It’s a theory that states that those principles that are usually linked with democracy (e.g. representation, accountability, legitimacy, participation, responsiveness, the rule of law or even respect of basic fundamental rights) are feasible beyond the more usual contemporary institutional design of democracy, the nation-state. Traditional debates on democracy often start from the premise that either we renounce to build democracy beyond the national demos (statist view) or, to grant democracy at the supranational sphere, we need to develop a demos at that level (supra nationalist view).5 Alternatively, the dêmoicratic theory breaks the puzzle and provides a more nuanced perspective beyond the rigid statist versus supra nationalist dichotomy. That is, it opens the possibility of building democracy beyond the nation-state structure, but without eliminating the nationstates from the equation. Despite not being normatively neutral—as the dêmoicratic approach is based on republican values of mutual-recognition and non-domination6 (that the contribution addresses later)—its main asset is its methodological value, rather than its normative strength. It is no surprise that the dêmoicratic approach avoids an a priori conception of the institutional domain, both regarding intra-demos and inter-demos interactions. Dêmoicratic theory does not focus on which entities constitute the demos, nor which is the best way of institutionalising each demos. Instead, it focuses on balancing the existing demos with an institutional design capable of adapting to changing realities thereby fostering democratic principles. From this point of departure, the dêmoicratic proposal advocates for combining empirical realism with ideal aspirations, setting the ground for rethinking democracy in terms of a realistic utopia. It is an approach that neither denies reality nor steps down from the endeavour of transforming it. Based on this ethos, the contribution argues that the dêmoicratic approach could move in the current debates of the Catalan case forward. It begins, in Sect. 1, by addressing the Catalan case in relation to discussions about the status of Spanish democracy. The first section argues that those debates are fundamentally defined by the analysts’ perspectives and frameworks of understanding, arguing for the need to introduce alternative approaches. Section 2 synthesises the three main ways of portraying the Catalan case: a clash of recognitions, a nationalist conflict, or an alignment with global trends. This contribution argues that, regardless of the disagreements present within each of those elements, a comprehensive analysis of the case needs to combine, at least, the three perspectives. That is, it argues in favour of a more complex understanding of the matter; none of the elements on their own are enough to understand the situation. The third section introduces an overview of the

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Innerarity (2015), Martí (2018) and Näsström (2013). Nicolaïdis (2013, 2019).

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theory of dêmoicracy, adding a dimension that has often been ignored by its proponents: the idea that the moral requirement to avoid any dynamic of internal and external domination between the components of a plurality of demos or demoi (and their citizens) not only applies among nation-states, but also within nation-states, particularly in fragmented, plural or compound states such as Spain. This contribution concludes with a brief overview of three different scenarios that, based on a dêmoicratic account, could contribute to building alternative paths that move beyond the dichotomies that lead to pure-conflict dynamics. While context-dependent factors may condition the success of any of these paths (particularly the political evolution of the case and the subsequent transformation of incentive schemes of stakeholders), a dêmoicratic approach to the case opens up a more nuanced view and a more promising path to develop consensual and cooperative arrangements. In sum, this contribution aims to provide an alternative theoretical approach that can contribute moving beyond the current pure-conflict dynamics based on an a priori understanding of the case and its potential paths for resolution.

2 The Catalan Case and the Crisis of Spanish Democracy Under Scrutiny Is it uncontroversial to state that democracy is in crisis in Spain? Further, how relevant is the Catalan case when seeking an answer? The answer to both questions depends, primarily, on two main elements: the way in which each of us conceives democracy and the way in which we can depict the Catalan case. Despite the efforts to make rigorous and evidence-based accounts of any political phenomena, we portray our background perspectives and assumptions in our account of each case. Analyses of the Catalan case are far from being an exception to this rule. In regards to the first question, the answer to whether or not Spanish democracy is in crisis varies according to our normative and empirical standpoints. In relation to the normative dimension, the answer might depend on the way we try to find a balance between addressing the people’s voice and endorsing the rule of law, the criteria we use to define who or what constitutes a people, our understanding of plurality or even the way in which we determine the values that we consider necessary to maintain an organized and well-ordered society.7 Regarding the empirical standpoint, some scholars may focus more on the evolution of key indicators since the 1970s–1980s transition (from dictatorship to democracy): freedom of speech, development of the welfare state, gender equality, civil rights, free-market, free-media, etc. Others may consider a broader historical picture and evaluate the quality of Spanish democracy in terms of the long-standing ideological struggles that begun far before the democratic transition, including the debates between liberals and conservatives, centralisation and decentralisation, radicals and moderates, 7

Dahl (2008).

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inclusive and exclusive understandings of the community, majority and minority nationalisms, etc. There might also be a difference between those who analyse the present-day quality of Spanish democracy from a quantitative perspective (i.e., the Catalan case does not necessarily affect the overall functioning of democracy but just particular groups) and those who have a more qualitative approach in which the aspects of the Catalan case are relevant, regardless of the number of individuals involved and necessarily affects the overall quality of Spanish democracy. With respect to the second inquiry about the importance given to the Catalan case when evaluating the quality of Spanish democracy, the answer mostly depends on accounts of the aforementioned controversial elements. For instance, if we focus on the evolution of Spanish democracy since the dictatorship ended, the development of the Catalan case over the last long decade may not be so decisive. There are several signs of progress that show an objective improvement of the democracy in Spain, at least since the last global backlash. Alternatively, we may choose to address the evolution of democracy in the Spanish State based on how it has accommodated the claims raised by Catalan citizens unsatisfied with the territorial status quo. In that case, the answer may include a different assessment. The same applies to the way we may have theoretically conceived democracy. If we emphasise that the quality of a democracy lies on its ability to equalise resources among its citizens—even if we consider that after the 2008 great recession Spanish democracy has critical flaws in this area—the Catalan case might not be determinative. Some may state that Spanish democracy is in crisis, but for reasons unrelated to the Catalan case. On the contrary, if our understanding of democracy considers minority-related issues—such as their recognition, the possibility of promoting constitutional reforms or even the option of opting out—as fundamental features of democracy, the development of the Catalan case may greatly influence our assessment of the quality of Spanish democracy. Of course, this overview of opposed or even contradictory views requires plenty of nuances, and that is because most of the analyses do not match any of those oversimplified dichotomies. However, the crossed-conditionalities that I have mentioned still apply: evaluating both the quality of Spanish democracy and the impact of the Catalan case is not independent of the evaluator’s theoretical and methodological standpoint. An assessment might be rigorous, both theoretically and empirically well-founded and even allegedly neutral, but the perspective adopted by the analysis will still define it. This does not mean that the views are biased or partisan, as that is another debate. It means that (1) there is a methodological point of view that frames the terms of the discussion on which we elaborate our positions, (2) this methodological point of view is not, necessarily, right or wrong in normative terms, and that (3) the distinct methodological points of view could result in equally valid but divergent answers to the same question. Denying these conditionalities and assuming that the statements on both Spanish Democracy and the Catalan case are a mere matter of analysing facts, where we only debate the authenticity of those facts, implies the underestimation of a broader concern: that when we argue about specific cases we are discussing, more or less indirectly, general principles and conceptual frameworks that underlie the analysis.

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This contribution aims, then, to introduce an alternative perspective regarding the Catalan case and its impact on Spanish democracy; namely the dêmoicratic approach. The contribution does not aim to present a different account of the facts (empirical analysis) or to challenge contributions raised within a specific framework of the debate (technical/specialised analysis). First, there are already plenty of studies that address the Catalan case, both empirically and technically. And aside from that, both approaches fall beyond this contribution’s concern, political philosophy. Second, the current tug-of-war between the different positions within each of the stabilised frameworks of debate, while valuable and robust in empirical and technical/specialised terms, seems to contribute very little, with few exceptions,8 to exploring potential paths to overcome the conflict or, at least, to channel it more constructively. Third, the contribution does not intend to deny the partial truths that an impartial analyst could identify, even in entirely opposed interpretations of the case. No wonder, there are conflicting interpretations since many opinions related to such sensitive political matters as sovereignty, identity, minority rights, recognition or territorial power often set aside any subtlety or honour of valid points. The dêmoicratic account provides an innovative perspective for trying to build a balance between the nationalist empirical reality of a world divided into sovereign nation-states and the cosmopolitan normative aspiration of an international arena organised into cooperative schemes of shared sovereignties. It provides a perspective that is not in contradiction with empirical facts and technical views but precedes them, hence making normative aspirations explicit. Moreover, it does so without assuming any specific institutional design as necessarily valid. This allows the dêmoicratic perspective to endorse the contingency of the socio-political reality that it aims to address. Thus, it provides original solutions to the conflicts and challenges that the socio-political reality may face. Additionally, its proponents presented the dêmoicratic theory to address transnational political realms, particularly the European Union, implying that the dêmoicratic reflection is not limited to the domestic sphere. This element is particularly relevant to the issues at stake in this contribution insofar as they happen within a member state of the European Union and, more importantly, within the European democracy. Furthermore, trying to solve the case focusing solely on the domestic arena tends to cover up the fact that Europe is becoming more and more cosmopolitanised;9 this is to say that we cannot sufficiently address national conflicts only nationally, and as we cannot foster cosmopolitan ideals without recognising national claims (and subsequent disputes). The contribution will present the main features of the dêmoicratic approach and its potential application to the Catalan case. The following section introduces the three main explanatory frameworks that scholars present regarding the Catalan case and argues that none of them is capable of providing a comprehensive analysis.

8

This initiative organised by the Catalan International Peace Institute is remarkable in this regard, although there have been further more or less public examples in the same line: https://www. youtube.com/watch?v¼y3Af3K0fe_Y&t¼2s. 9 Beck (2006), Beck and Grande (2004), Delanty (2009), Fine (2007) and Ingram (2013).

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3 The Catalan Case from a Complex Perspective As mentioned above, the scholarly debate around the Catalan case mostly addresses technical or specialised aspects. These approaches focus on the facts they deal with while neglecting the debate’s deeper conceptual and normative aspects. We can identify two key perspectives that drive the academic discussion: the legal and the political. Regarding the former, the debate is mostly about the Spanish State’s constitutional structure, the articulation of Catalan self-government institutions within or beyond that constitutional arrangement, and the accommodation of the case within European law (mainly the European Union’s and European Council’s) and international law. Recently, the legal approach has also focused on the debate over using criminal law to tackle the decisions made by those favouring independence in Catalonia, particularly concerning the 2017 September-October events.10 By contrast, from the political perspective the discussion is more focused on the political rights of citizens, understanding citizens’ preferences and how these are explained, the relevance of the democratic principle and/or the rule of law, the competition between parties and its effects, and/or the features of the different nationalist views involved in the case. Even when we refer to the consequences events of the fall of the 2017, the political debate has a contribution in the justification of the decisions taken by pro-independence actors (particularly the institutional representatives) and the State’s reaction. However, this section does not intend to defend or reject particular contributions to those specific legal and political debates. Rather, it provides a different perspective that may allow those engaged in these debates to make more nuanced descriptions and, ultimately, to offer more effective proposals to overcome the conflict. That is why the following description of the Catalan case is neither a premise of the contribution’s argument or an empirical standpoint on the topic. Instead, it is a brief methodological note to show the possibilities of a different perspective could broadening specialised scholarly debates. Even if the elements that the contribution describes in this section are controversial and contested, the methodological—rather than substantive—point will remain valid. To no one’s surprise, the current approaches and debates have so far proven to be relatively unhelpful. First, they get lost in technicalities, rather than using technical tools to make better descriptions, diagnoses, and proposals. Second, they use technicalities to cover or avoid deeper principle-based and political-perspective debates that underlie the conflict. The main shortcoming of these current scholarly approaches to the case is methodological. They presume an over-simplified understanding of politics.11 To make the point clear, let us identify what I found to be three of the most comprehensive ways of understanding the Catalan case in both empirical and technical debates, from both a legal and a political perspective: a recognition-based conflict, a nationalistic controversy and a democratic dispute. 10 11

Requejo et al. (2020a, b). Innerarity (2020).

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The first approach refers to a fundamental issue in terms of democratic legitimacy. The claim is that the principle of political equality is linked to the broader philosophical idea of recognition. Political equality entails providing those affected by democratic decision-making with the possibility of having a say in that decisionmaking process. That means that all interests, preferences, wishes and aspirations of the individuals have the same chances of determining the decision-making process. An ideal that implies that, whenever some views have unequal weight in the decision process (either because they are rejected a priori or subjected to affirmative action), this unequal weight could only be justified as a means to grant further political equality.12 Individuals wishes, aspirations, preferences, and interests are the result of individual reflection, and the product of our social interactions. Those interactions tend to happen within the framework of our collective sense of belongings. Belongings linked to our national bonds are still particularly relevant when defining an individual’s lifeworld.13 Also, when shaping individuals wishes, aspirations, preferences, and interests it is arguable whether shared national belongings defining our lifeworlds is a normatively desirable phenomena or not,14 but it seems hard to reject it as an empirical fact. Therefore, if we agree that political equality is a fundamental condition of democracy, we may decide that this political equality cannot be blind to collective belongings that define our preferences, wishes, and desires. In favourable terms, we may state that recognising the sites where individuals root the group they identify with is necessary to ensure their political equality: a polity cannot grant a say to those who do not even recognise it. In homogenous and non-plurinational polities, this need of recognition will apply to different non-territorialised minority groups. In compound and plurinational polities, where those belongings are territorially and institutionally settled, recognition becomes far more complex. Nonetheless, it sounds plausible to conceive that a minority nation within an encompassing nation-state may refer to their claim of political equality in terms of recognition. In turn, the majority nation may consider that the institutional setting already provides the necessary means for the citizens’ political equality (regardless of their sub-state citizenship or belonging) and, thus, there is no lack of recognition. Furthermore, the majority group may perceive the recognition of the minority nation as a threat to their recognition. This debate can include disputes on numerous linguistic, ethnic, institutional, historical, cultural, or political conflicts. The driving factors of these disputes vary from case to case. Even within the same subject, not all actors raising any of both claims (i.e., that they’re not recognised and, thus, their

12

The importance of political equality, as stated by Isaiah Berlin (Berlin and Hardi 1999), is its normative power: once we accept that we live in a democratic system, political equality does not require any further justification. Moreover, if we need a justification for any deviation from the principle of political equality it’s, precisely, because those deviations need to be justified in terms of strengthening the political equality among citizens. 13 Norman (2006). 14 Caney (2005).

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political equality is granted or denied) share them univocally. That’s precisely why it’s so difficult to reach a consensus on whether recognition has been given or not. The Catalan case is not an exception in this regard. Those who think that Spain’s current institutional arrangement and potential evolution will not provide adequate political equality to Catalan citizens point out very distinct elements to denounce its flaws on recognition (from fiscal imbalances, to linguistic rights, to issues related to having a say on the international arena, to rather symbolic matters, including reparation of historic grievances). Similarly, those who defend either the status quo grant of political equality or the possibility of transforming the status quo into a model that may give greater political equality, consider it unfair to denounce Spain’s inability to recognise Catalan citizens’ belonging. Furthermore, those in favour of addressing Catalan claims to grant political equality and avoiding the democratic exclusion of a significant number of Catalan citizens feel that their claims are democratic and, therefore, can only be tackled democratically.15 Those against the possibility of addressing the Catalan claims, deny their democratic nature and consider addressing them as incompatible with preserving Spanish democracy.16 No matter which position is right, the truth is that the claims around the so-called right to decide—despite the variety of specific formulations underlying it increased after the failed process of reforming the Autonomy Statute. The inability of Spain’s majority to provide them with a political channel shows that the issue of political equality is unresolved, and recognition is still a source of conflict. Moreover, the dispute on the lack of recognition has fuelled the lack of trust, making it more challenging to agree on solutions that could have the potential to overcome the absence of a common purposive, performative, and processual framework to redirect the conflict. Another way of addressing the Catalan case is by presenting it as a clash of nationalisms, understanding the Catalan case as a conflict over the distribution of power between two distinct national communities. While it is an essentially controversial term,17 we could define nationalism as the ideology or political project that defends (a) the existence of a given nation and (b) the importance of providing that nation with an institutional setting that will grant it the ability to govern itself into the future. Regardless of whether we consider that the nation-states around the world are the result of this ideology since the late eighteenth century to today,18 or that this ideology arises precisely as a means to defend pre-existing nations during the process of state-building,19 the truth is that both nation-states and nationalism coexist all around the world.20 However, this coexistence is far from uncontroversial, particularly regarding two phenomena: the increasing

15

Lopez (2018). Closa (2020). 17 Iglesias (2006). 18 Gellner (1998). 19 Smith (1995). 20 Breuilly (2013). 16

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cosmopolitanising of the world21, leading to far more heterogeneous national identities, and the non-violent means that nationalist movements from minority nations use to state their claims, at least in the so-called western democracies.22 In the Catalan case, we could argue that we are dealing with two different approaches to the process of nation-building: the Spanish and the Catalan.23 There the focus is the process of providing the nationalist project with the legal, institutional, and political tools to materialise as a singular nation. In both legal and political terms, this process is usually framed in terms of self-determination.24 The debate in this issue delves mostly into two topics: the citizens who can claim the right to self-determination and the consequences of its realisation. On one side, the subjects of self-determination, the debate focuses on whether Catalonia constitutes a national group. While Catalan nationalists claim the national character of the Catalan people as a fact existing long before the 1978 Spanish Constitution’s approval, Spanish nationalists consider that the Catalan people are not a nation, at least in political terms, as the community is the result of the 1978 constitutional arrangements that created the unity of the Spanish nation. The critical point of the discussion is whether accepting Catalonia as a political nation has broader implications such as the need for granting Catalonia the right to selfdetermination, than symbolic recognition. Nevertheless, both nationalist views agree that, if the Spanish Constitution recognised Catalonia as a nation in political terms, it should have the possibility of exerting its sovereignty. Consequently, the debate is limited to the case of the minority nation’s right to secede or the State’s right to preserve its territorial integrity. This debate also focuses on the consequences of exercising the right to selfdetermination, the possibility of becoming an independent nation-state. The first dispute is focused on the legal precedent it will cause. Those who oppose the Catalan nation’s right to self-determination argue that, if the law granted it, selfdetermination would no longer be the last resort to counteract colonial and unfair situations due to majority oppression. Consequently, they argue that sub-state nationalist movements will proliferate in the world and self-determination will not meet the aim of avoiding oppression. Those in favour of the sub-state nation’s rights to self-determination oppose this view, arguing that it would be unfair to favour established self-determined nations. The second conflict is more concerned with internal and external political consequences. Those who oppose the minority nation’s right to self-determination argue that, internally, the risk of ethnocultural homogeneity and recurrent oppression against the minority will increase. Externally, they say that legitimising minority nationalist claims will increase autarchic dynamics, the difficulty of fostering redistributive flows, and the impossibility of defining common interests. By contrast, 21

Beck (2016). For a reflection on the western non-western distinction see Young (2015). 23 Requejo and Sanjaume (2013, 2015). 24 See Sanjaume-Calvet (2020) for this debates. 22

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those in favour of minority nationalist positions argue that there is no empirical evidence of these internal and external risks applied to the sub-state nations, at least no higher risk than the one existing in the case of already settled nation-states. Therefore, they say, it would be unfair to oppose an emerging nationalist project for reasons that do not invalidate nationalist projects that have already accomplished their goal of granting their nation self-determination. These difficulties in finding a balance between competing nationalist positions could explain the Catalan case. Finally, we have a broader explanatory framework regarding the Catalan case, namely the approaches that explain the case as another example of a global trend threatening liberal democracy. These approaches try to identify several features that define this global trend, some of them already mentioned at this contribution’s introduction: the increase in politically precarious layers of society that end up going against the political systems;25 the more prominent role of identity and emotions in the political debates;26 the crisis in both the input and output legitimacy of the traditional institutions of modernity, particularly regarding their ability to interpret and mediate; the reappearance or spread of radical ideologies that threaten the pillars of liberal democracies fuelled by the misuse of new digital media, plus the increasing polarisation that makes the possibility of building consensus even harder. While it is yet to be seen whether these trends are new phenomena or newer expressions of well-known risks, as well as their final impact on democracy, it seems to be mostly agreed that they do exist. When addressing the Catalan case, this perspective tends to explain it in line with those patterns. Thus, the reaction against the failed reform of the Autonomy Statute either corresponds to building institutions that gain a higher trust of their citizens due to their improved input and output legitimacy or it serves as another example of the fake illusion of taking back control in times of uncertainty and turmoil. Similarly, the linguistic issues linked with the nationalist claims are portrayed either as a way of protecting the minority citizens’ individual and collective rights against the threat of an exclusive State nationalism, or as the realisation of the Catalan nationalists’ hidden wish to create a homogeneous polity. The European Union’s position vis-à-vis the case should either protect and reinforce Catalan citizens’ claims as a means of breaking with the State hegemony and move towards a more horizontal European democracy or vigorously oppose the Claims of the Catalan nationalists27 as incompatible with cosmopolitan values. Another example would be the shift in electoral preferences, which is justified either in terms of a bottom-up citizens’ empowerment aligned with the early 2010s democratic springs (e.g. the Indignados or 15M movement in Spain), or in terms of a top-down process following partisan 25

Fernández-Albertos (2018) and Errasti (2019). Aira (2020). 27 While I use the term “Catalan nationalists”, it should be noted that this is not an ideological reference shared by all the citizens sharing the claims in favour of the Catalan nation and its selfdetermination. That is, it could be arguable whether they all are, in political terms, nationalists. Still, in purely scholarly terms, it’s hard to argue that those defending the Catalan nation (even if they may not refer to it as a nation) and its self-determination are not, in some level, nationalists. 26

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interests such as hiding corruption, keeping political power, or strategies that distract attention from the consequences of austerity policies in the aftermath of the 2008 elections. Even civil mobilisations in the Catalan case, particularly regarding the 2014 and 2017 non-binding referendums or the several massive peaceful demonstrations, are either depicted as another example of a renewal of civil disobedience and pacific resistance coming back in the face of pressing risks such as climate emergency and gender equality, or as proof that populism is boycotting the respect for both the institutional dimension of politics and the rule of law. These kinds of explanations are not much help in providing an overarching description of the conflict. At their best, they explain very concrete elements of the case that cannot be considered as complete explanations. Moreover, using global patterns to explain local phenomena provides an a priori explanatory framework. Hence it offers incentives to analysts to cherry-pick who may choose those elements of the Catalan case that make it possible to present the case as yet another example of a pre-existing global trend. They instead contribute to building political narratives that may provide a solid ground for our political views, but they hardly ever help us better understand complex political phenomena. This does not imply, in any way, that from a descriptive point of view it is not possible to identify patterns of the Catalan case that are related to global trends. However, if those elements are included in the explanation ex-ante, rather than ex-post, instead of making the issue more understandable, it will make it more difficult and complex. In summary, in a period when democracy in Europe and beyond seems in crisis, we need more nuanced approaches that allow us to reconsider the theoretical assumptions underlying the technical debates and avoid the aprioristic positions that often dominate the discussion. The Catalan case is a fitting example of how single-dimension and linear analysis do not solve the political conflicts of an everincreasing complex context. In other words, a complex political context requires complex approaches. In this regard, pretending that the focus on the clash of recognitions, the nationalist dispute or the connection with ongoing global trends could explain the Catalan case by themselves, omits the case’s complexity. In the same way that it is hard to conceive that the Catalan case could be described without focusing on issues of recognition, nationalism and ongoing global trends (among many others), it’s hard to believe that it could be understood from a single standpoint of one of these dimensions. Further, not only are there analytical reasons to reject these oversimplifications, but also political ones. A unidimensional account focuses on generating black-and-white approaches where whoever is opposing one’s view is automatically an enemy, blocking any possibility of cooperative conflict resolution and, at the very least, what professor Teresa Bejan has recently called “mere civility”28. The following section presents a radically pluralistic account of democracy, the dêmoicratic theory, that may provide adequate analytical tools to reflect on this diversity of views in a unified way and provide potentially viable solutions, all capable of being taken into account.

28

Bejan (2019).

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4 The Unexplored Potential of the Dêmoicratic Theory The debate on how democracy should find a balance between territorialised popular sovereignty on one hand, and globalisation and cosmopolitan justice on the other, has long defined the European project. That controversy will also limit the debate around the future of democracy in Europe. On the one hand lies the fact that democracy needs some political basis to function. Since the nineteenth century this political ground has mostly been defined by the national demos. The point, then, is whether we can conceive the subject that constitutes the demos beyond the nation or, conversely, imagine democracy without unified demos. The underlying question is whether or not we can ensure a certain level of joint engagement, collective agency, or social cohesion without some institutionally channelled shared sense of belonging. That is, whether there could be territorialised popular sovereignty either without a demos or a nation. On the other hand, the globalisation and cosmopolitan justice dimension, in turn, highlights that, in an era of interdependencies we cannot constrain the scope of our duties in the domestic realm. Nationality has become as morally irrelevant in justifying discrimination as race, gender, and religion. This has two significant grounds, the normative and the empirical. The normative side is based on the idea that human beings have value in themselves, have equal moral value, and that it applies to all human beings. On the empirical side, the implication is that in a world where social, political, and cultural interactions are not restricted anymore to the nation-state, we should move towards a legal and institutional framework that responds to cosmopolitan normative requirements. Traditionally, both approaches tend to appear contradictory. The clearest example is the debate on the European integration project; those views favouring an intergovernmental arrangement are incompatible with those who want to move towards a more federalised Europe.29 According to the former view, the only way of granting diversity within the EU is to prioritise nation-states. Insofar as there is no single and united European demos, a European democracy won’t be possible. Thus, the EU can only be a tool used to reach agreements between national governments. The most extreme version of this approach is the exclusive and populist-nationalist views. Nonetheless, in populist-nationalist views, the EU is an external power that aims to interfere in domestic policies. The take-back control motto during the Brexit campaign is a clear example of this view, as it pictures the EU as a foreign institution usurping legitimate domestic power. The alternative to this approach is the federalist perspective. In their opinion, nation-states are a burden for the European integration process. Thus, the goal should be to move towards a European demos that can be a substitute for nation-state demos. The aim should be to replicate the nation-state structure at the EU level.30 29

I have explained this idea further in Errasti (2018). A clear example of this view would be the Europe in Fire manifesto that more than 30 literature Nobel Prize winners signed in 2018 (see: https://www.theguardian.com/commentisfree/2019/jan/2 5/fight-europe-wreckers-patriots-nationalist).

30

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The dêmoicratic approach attempts to argue that none of these models can provide an adequate solution, while also arguing that it is possible to build an institutional arrangement in Europe that protects territorialised popular sovereignty and cosmopolitan justice. The dêmoicratic view holds that both intergovernmental and federalist views of Europe assume an a priori standpoint. On one side, they seem to be incapable of thinking beyond the nation-state paradigm: either they want to strengthen it nationally or expand it supranationally. On the other side, they promote the false dichotomy that either we should accept reality as it is (the state-nationalist view) or deny it and build an entirely new alternative (the ideal cosmopolitan view). These views, however, are not capable of facing the challenges created by the ongoing cosmopolitanisation process. It is no wonder they keep repeating the same pattern present in the nation-state dynamics: either at the member-states level or the EU level. Consequently, the state-nationalist view cannot build an institutional framework that may tackle the transnational challenges that we face in common,31 jeopardising the functional dimension of democracy. In turn, the ideal cosmopolitan view cannot recognise European diversity, risking not only the substantive extent of democracy but also risking even the fundamental principle of non-domination that fuelled the European project since its very beginning.32 Opposed to these positions, the dêmoicratic view holds that there is a way that avoids such a priori standpoints. It claims that there are alternatives to the nationstate paradigm (the EU’s evolution, despite its flaws, is a real example). We do not have to choose between reality as it is or reality as we would like it to be. In the dêmoicratic view, what is truly valuable is the basic set of principles that needs to be ensured; how exactly that will be achieved will depend on contingent factors. More importantly, it is not defined a priori. Regarding the no-demos thesis,33 the dêmoicratic theory holds that in Europe it is viable to build a democracy without needing a single demos. It’s possible to make a democracy on demoi grounds (i.e. a plurality of demos). Even though the dêmoicratic approach is closer to the federalist view,34 it does not reject the realistic approach of the sovereigntist view. It is no surprise how it holds the point that all the demoi in Europe are fundamental to keeping democracy in Europe. That’s why Article 50 of the EU Treaty (which specified the content of Article 49 of the Treaty of Lisbon) is so important from a dêmoicratic perspective in that it clarifies that the participation in the European dêmoicracy is voluntary. However, as opposed to the sovereigntist view, it also holds that membership in a common institutional framework is not only optional but desirable. Nevertheless, in a context of interdependencies and shared externalities, states no longer can exert real sovereignty in an autarchic and exclusive way. They

31

The management of the Covid-19 pandemic has, due to its pressing risks, provided elements to reckon that things are evolving towards a more dêmoicratic dynamic. However, it’s still too early to make a solid point on this regard. 32 Nicolaïdis (2016). 33 Martí (2018). 34 Lacey (2017), pp. 86–87.

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shouldn’t be able for normative cosmopolitan reasons, of course, but also for purely selfish interests.35 From a dêmoicratic standpoint, this participation in the European democracy is not a matter of compulsory teleology (in the sense that there is no alternative) towards a given project, as federalists often state referring to membership in the EU. It’s more about having incentives to cooperate and together build the necessary institutional means to meet common challenges. Unsurprisingly, as opposed to the spread false-beliefs, the European Union is not the result of the will of building an anti-national project, but rather an anti-hegemonic project.36 In other words, either the nations cooperate, or they will continuously be threatened. The EU is, thus, conceived as an imperfect balance of both fission and fusion tendencies. Just as the two forces underlying the motto united in diversity—unity and diversity—are both fundamental and continually changing, we need to rethink the balance between them continually. That’s the critical element of the dêmoicratic theory, that its constant search for an imperfect balance, rather than the will of fostering a predefined solution, makes it more compatible with the idea of a realistic utopia. It is realistic in the sense that it admits that the existing sovereign demoi not only will not disappear, but there are good reasons for them expecting to persist.37 Utopic since it does not reject the idea of pushing the elements that form the EU, mostly citizens and member states, towards the construction of a common democratic framework with cosmopolitan grounds. The question for the advocates of the dêmoicratic theory is practical and political. How do you materialise realistic utopias? Their answer is: by using pragmatic strategies without falling into cynical positions. Correctly identifying the challenges (i.e., adjusting all the elements that form Europe as an increasingly interdependent and cosmopolitanised reality with its challenges) and pursuing it without defining ex-ante solutions. A clear example of the failure of the non-dêmoicratic approach to the challenges of cooperating transnationally is the failed attempt at building a European Constitution. Regardless of the nuances of the case, we can state that the initiative’s underlying goal was to approve a common constitution. However, let’s suppose we assume a dêmoicratic view. In that case, we may try to go a step back in our reflection and argue that the underlying goal was not “to approve a European constitution”, but to formally grant the elements usually granted by constitutions. For instance, in the case of fundamental rights, is it a necessary condition to have a European Constitution to have a European system of fundamental rights’ protection? From an a priori perspective, yes, of course: how else could Europe grant fundamental rights if not by codifying them into a European Constitution? After all, this has been the way fundamental rights have been kept protected since they were developed in early modernity.

35

Baubock (2018), Keating (2001) and Hale and Held (2017). Nicolaïdis (2016), p. 140. 37 Calhoun (2007) and Tamir (2019). 36

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However, the evolution of that matter after the failure of the European Constitution project shows that it was not as straightforward as it seemed. Which came as no surprise, since there are plenty of elements in Europe that together provide one of the highest fundamental rights protection standards in the world. All the European Union member states have signed the European Convention of Human Rights, the European Union is linked to the convention, the member states reflect the protection of fundamental rights as well as the respect for international treaties in their domestic constitutions. Not to mention the approval in 2007 of the EU Charter of Fundamental Rights. There are, of course, reasonable arguments to defend the stance that states should fully transfer the protection of fundamental rights to the supranational level.38 However, even if those opposing views39 are correct, they do not deny the underlying point, namely that there is no need to, strictly speaking, approve a European Constitution to grant fundamental rights in Europe. Moreover, the failed attempt at building a European Constitution implied the risk of fuelling exclusive nationalistic tendencies that may resort to the rhetoric of unjustified external interference and lack of democratic legitimacy. Regardless of the lack of validity of such rhetoric, it is an avoidable obstacle for the main goal of building a European system of fundamental rights protection, rather than doing it by approving a European Constitution. Let’s go back to building a democracy united in diversity. The dêmoicratic theory promotes the same approach as the one mentioned regarding the European Constitution. The fundamental goal is not to create a European democracy, but rather to promote and protect democracy in Europe.40 Even if building a European democracy was allegedly unproblematic (which it is not, particularly considering our most recent internal and external history41), fostering this goal at any cost will still be problematic for that same reason. Alternatively, the dêmoicratic theory intends to promote some fundamental values to grant democracy in Europe in the current context. That is the principle that should guide practical efforts when moving forward in building democracy in Europe without ending up as cynics. This contribution will only highlight two principles that connect directly with the Catalan case at stake and will show the Dêmoicratic Theory’s potential to address the Catalan case: mutual recognition and non-domination. Recognition refers to acknowledging the need for recognising the other, both from an epistemic perspective (i.e., as a distinct reality) and recognizing other identity and values.42 This recognition is mutual; insofar as each of us wants to be recognised, we should also recognise the others. Nonetheless, it is the first step towards realising that the others are, in many aspects, closer to us than we may think.

38

Williams and Greer (2009), p. 468. Hoffmann (2009), p. 8. 40 The difference between “European” and “in Europe” is fundamental in this regard. Nevertheless, the Dêmoicratic theory tends to understand Europe as a space Kalypso and Viehoff (2017), rather than as a self-contained territory. 41 Nicolaïdis et al. (2015). 42 Sternberg et al. (2015), p. 2. 39

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On the contrary, if we start from the idea that there is no such other, we may end up imposing our own understanding of values and identity. According to the dêmoicratic proposal, this mutual recognition should acknowledge citizens and nations. From the citizens’ point of view, mutual recognition dynamics based on diversity (that is, not overcoming diversity) make it easier to collaborate when facing everyday challenges locally. Predictably, while these challenges may be shared, they affect each individual according to their contextual details.43 In the case of the nation, the dêmoicratic approach states that stemming from the recognition of the different institutional settings in which citizens have managed to build and develop democracy all through modernity is a fundamental step towards building a common democracy despite the underlying diversity. Democracy, in the end, is not a closed programme that institutions impose within a territory and its citizens. Consolidating democracy is a long process that involves several actors, from general citizens, to political parties, media, or civil society associations, and the organised elites. These processes happen within a concrete territorial realm where concrete institutions exercise their responsibilities. Rather than ignoring or even erasing this reality in order to build democracy at the supranational level, the dêmoicratic theory argues that democracy at the supranational level should be grounded in this reality composed by democratic citizens and their diverse institutional frameworks. This approach requires, in turn, granting a second principle, namely non-domination. Nevertheless, from a dêmoicratic perspective, it is a requirement of the institutional framework that the plurality of demoi avoids any form of arbitrary and unjustified form of interference both among the different demoi and the supranational level. The dêmoicratic approach takes this idea from Republican political philosophy.44 In this view, political freedom is not, as liberals tend to assert, the lack of direct interference. Republican freedom is the idea that someone enjoys freedom only to the extent they remain independent from arbitrary power. This does not mean that the ideal of republican freedom is always and in all contexts the most adequate understanding of freedom. However, in the same way as it happens with the ideal of political equality, its stance on normative power is, precisely, that the burden of proving its inadequacy falls on those who want to violate the republican understanding of freedom, not on those who enjoy it. We can illustrate this understanding of freedom through two common examples: slave-master relations and colony-metropolis relations. In the former case, let’s think of a master owning a group of slaves. This master tends to avoid direct interference with the slaves as long as they meet their duties as slaves. Still, he usually does not need to take any action to ensure that the slaves meet their obligations. If we choose to consider freedom as the mere absence of interference, we could conclude that the slaves are free. But would not that contradict the fact that they are slaves? It seems clear that it would be an oxymoron. In the latter case, let’s imagine that a colony only interacts with the metropolis occasionally. In this sense, the citizens of the colony

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Sassen (1991, 1996), Beck (2016) and Innerarity and Errasti (2019). Petit (2015).

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barely perceive interference by the metropolitan authority. At some point, the empire falls, and the colony gains external self-determination. However, after the first democratic elections, the new government starts to make plenty of decisions that directly affect citizens’ lives: taxation, compulsory education, public health measures and restrictions, etc. As a result, citizens experience far more interference with their everyday lives during the postcolonial times than before. Would it be reasonable to state that the colony and its citizens were freer while being a colony than when they became a free people? Although the example does not capture the complexities of colonial times (as that is not its purpose), it seems clear that a selfdetermined people enjoys more political freedom than when it was subjected to the empire. That is the key to the non-domination principle: to present a more demanding but also malleable understanding of liberty. The dêmoicratic theory presents the non-domination principle as a critical element to drive relations among nations.45 The association between the institutions that form the European democracy (particularly the EU) and the national political facts that it contains46 should not, therefore, be based on domination. European nations are not under the EU’s domination. Among other reasons this is because the EU is, in the end, all the elements that comprise it, primarily the European nations

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Nicolaïdis (2013), p. 15. As both Professor Innerarity and I explained (2019), pp. 66–67: “We may define a social fact as a group of individuals who interact in a way that could be identified, although they do not necessarily need to be identified, both by the internal participants and the external observers, as constituting a social fact. The supporters of a football team, people who share a sexual orientation, people who have the same level of income or people visiting foreign cities for a short period of time. could constitute social facts. People who share a language may also constitute a social fact. By social fact we are referring to an intersubjective practice that, while not being material, acquires factual category: regardless of which precise definition and limits each of us may apply, we can talk about social facts such as “tourists” or “Manchester City fans” in the same way we can talk about apples and buildings. When we talk about social facts that become political facts, it is often the case that those willing to oppose the political fact tend to use the strategy of denying even the social fact. However, this does not make the social fact less factual. If we follow the definition of a political fact used by Francis Cheneval and Kalypso Nicolaïdis (2017) a political fact is a social fact that meets, at least, three requirements: (1) those who constitute the social fact recognize and value the status of the social fact as a social fact, (2) there is a defined set of rules and laws that will rule the social fact, and (3) those belonging to the social fact show the will of projecting the social fact towards the future, that is, of ensuring its progress. However, in Nicolaïdis and Cheneval’s definition, when we deal with national social facts, the application of these requirements automatically equates “national political facts” with “nation-states.” While we agree that not all the social facts that become political facts can be considered national political facts (municipalities, for instance, are social facts turned into political facts, but not national political facts), we hold that national political facts cannot be limited to nation-states either. Instead, we introduce two additional requirements to ensure that a political fact should be considered a national political fact: (1) the existence of an institutional framework within a territory that could potentially act autonomously and (2) that the individuals within that territory (for various reasons that vary from place to place and through time) identify and value a certain bond with those institutions, i.e. they value their citizenship in those institutions. Therefore, the definition of national social facts is not necessarily restricted to nation-states.” 46

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and citizens. As the EU nations participate in a joint cooperative project, they are, foremost, member nations. Therefore, it is no longer feasible to understand each member nations’ reality without referring to their membership in the EU. Simply focusing on their exercise of sovereignty or from their national identity and territoriality is insufficient. Although we still need more context to have the complete picture, this circumstance seems a plausible explanation of the stance of the UK after their withdrawal of the EU. However, in the same way, it will not be possible to grant democracy within the EU by excluding the nations it contains. It’s no wonder that, despite not being able to persist by themselves, those nations within the EU are still based fundamentally on democratic schemes. This means that political equality is already functioning within these nations.47 This is, precisely, the main contribution of the dêmoicratic theory in this regard: that we need to change European nations to transform democracy in Europe, as well as we need to transform European nations to change democracy in Europe. That is to say it provides a perspective that opens a promising path, as the dêmoicratic theory has pointed at so far, regarding supranational integration (particularly in Europe), but also the internal matters of compound states such as Spain. Nevertheless, it allows breaking with most of the perverse dichotomies underlying these intra-state conflicts, such as the status quo or systemic crash, rule of law or democratic principle, assimilation or secession, full sovereignty or non-sovereignty, nation-state or minority-nation citizenship, etc. Suppose we approach these dichotomies from the dêmoicratic perspective, which provides the methodological grounds for a more nuanced, forward looking, and constructive approach. Now, the dichotomies do not seem irreconcilable anymore. It is not because the dêmoicratic theory provides a virtuous middle point—as in some cases it is not a matter of finding a balance between equally valid positions but because it does not define any a priori solutions. If we think about the Catalan case and the Spanish State, this becomes clear. Return to the three explanatory frameworks presented in Sect. 2. From the point of view of recognition, the key dêmoicratic element does not neglect the majority’s tyranny and it ensures that it is granting citizens’ political equality. The critical factor is whether or not political equality is given at all levels. This means that both Catalan and Spanish institutions are entitled to ensure that they recognise their citizens and

47

It is arguable that, considering the developments of some member state democracies such as Hungary or Poland, this statement is not valid anymore. However, two considerations: first, that the situation in those cases is still contingent (i.e., the result of who has the power at this moment), not structural (i.e., the structures aimed to grant political equality will remain once those currently in power leave). Secondly, more connected to the dêmoicratic approach, it is perfectly plausible that a once democratic nation-state becomes a non-democratic nation-state. Nevertheless, as the dêmoicratic view holds, there is nothing intrinsic to nations that ensures democracy to arise, same way as the EU proves that democracy is possible without the need of being based on a single demos. Therefore, in the event that those cases now involved in illiberal trends will consolidate as non-democratic, this will not cancel the dêmoicratic point as the non-domination principle will then balance differently than in the case of democratic EU member states.

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their claims,48 as well as the institutions they use to channel those claims as a means to grant them political equality. The fact that Catalans are a minority within the State is a contingent element that requires additional measures on the State’s side to ensure that it grants political equality. But the analysis of the case and the proposal to overcome the conflict should not start from that static minority-majority distinction, as both Catalonia and Spain face the potential risk of not being able to avoid the majority’s tyranny internally. How possible majority tyranny is in each case is a matter of contingent scale and power distribution. We cannot ignore the current scale and power distribution asymmetries that make Spain a persistent majority and Catalonia a persistent minority (realist dimension). However, if we want to make an adequate diagnosis and fruitful proposal, we can also not limit ourselves to sticking to this division as it will make any further changes more difficult (utopic dimension). Nevertheless, persisting in either the realistic or the utopic dimensions will force the debate into the fake dichotomies the contribution introduced before. It will mainly fuel the fear that if Catalonia would self-determine, it would reproduce the minority domination dynamics that provoked Catalan nationalists’ to reproach the Spanish State. Rather than basing the analysis on a fixed minority-majority distinction, if we founded the proposal on the principles we want to protect—mutual recognition and non-domination—the more chances the analysis would contribute to diminishing the pure conflict dynamics. In the case of the nationalist conflict, the dêmoicratic approach also allows the breaking of the assumption that building a national project implies excluding other nations and the possibility of creating a common institutional framework. The EU does not need to become a European nation to provide a European demos that will ground democracy in Europe. And the Spanish State does not need to act as a single demos to grant democracy in Spain. In the same way that the dêmoicratic theory holds that democracy in Europe is feasible without needing a single European demos, democracy in Spain is attainable without needing a single Spanish demos. Without going through the different accounts of what Spain and Catalonia are and could be (both from a political and legal perspective), there are two hard-to-argue statements to consider: (1) that, regardless of how controversial its origins and definition might be, Catalonia and its citizens constitute a national political fact within the Spanish State and (2) that among the Catalan citizens there are individuals who either share their allegiance to both the Catalan and Spanish national political facts or just to one of them. Any of both nation-building processes should assume these two facts to avoid mutual domination. There is still territoriality that is simpler within the European Union—or in the United Kingdom regarding Scotland, for

48

It is important to note that recognising citizens’ claims is not equivalent to taking their claims as a mandate. Same way as the authorities have the duty of recognising and addressing the claims of their citizens, it is arguable how those authorities should consider and balance those claims before making a decision.

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instance—than in Spain. However, this element might be a practical challenge to solve, rather than an insoluble problem. If we bring our attention to global threads, the dêmoicratic approach’s potential to better understand the case is even more evident. Nonetheless, the dêmoicratic view, putting the interdependencies at its core, carries an endless search to balance internal and external influences. Furthermore, it tends to almost break up with this distinction or portray it as fluid as it is in reality. Therefore, that what happens in Catalonia is neither the result of global trends nor completely detached from them. It is just that Catalonia (as any other territory) is more and more global, generating a permanent feedback loop between the global and the local. We cannot understand either without the other one. Suppose we think about it in traditional democratic terms. This implies recognising that citizens’ interests, wishes, preferences and desires, while still experienced and channelled mainly nationally, are no longer shaped merely nationally. The connection between citizens, their interest, their demos and other demoi is changing in a way that the dêmoicratic theory acknowledges. The dêmoicratic theory recognises this and, therefore, holds that we cannot capture the local phenomena basing only on exogenous global threads. In the same way, we cannot understand the local phenomena as the sole result of endogenous factors.

5 Conclusion: The Catalan Case as a Proof That Theoretical Frameworks Can Contribute to Grounding Non-conflict Dynamics The Catalan case, as other local phenomena that have had international echoes in recent years (such as the Scottish referendum and more distinct ones such as the United Kingdom’s withdrawal from the European Union) combine internal polarisation with global concerns. In this sense, we can neither analyse them solely locally nor ignore their particularities in a global perspective. Still, all of them prove that the goal of promoting polities that are united in diversity is an open challenge. Further, traditional approaches, rather than offer the possibility of a complex understanding of these types of cases, tend to make the dichotomies that fuel polarisation even deeper. The dêmoicratic approach, on the contrary, stems from the idea that focusing on the underlying principles rather than on the current or aspired institutional realities allows moving beyond those dichotomies. While traditionally applied to inter-state or inter-nation relations (especially in the case of the European Union), this alternative perspective also provides solid ground for developing alternative paths for reflection for intra-state or intra-national relations, particularly in compound states such as Spain. In the Catalan case, this alternative path becomes apparent when applied to three of the potential conflict resolution options: the idea of a plurinational Spanish democracy, the resource of a European mediation and the development of a sort of European Clarity Act. Without going into too much detail with each of them, it is

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worth pointing out the benefits of reflecting on each of them from a dêmoicratic standpoint. In the specific case of building a plurinational democracy, the fact that the dêmoicratic approach begins with the idea that it’s possible to create a shared institutional framework at the top of a plurality of demoi allows breaking with the fake dichotomy of either recognising different national political facts that lead the constitution of distinct, independent nation-states or the reduction of the various national facts to mere cultural elements thereby emptying them of any political content. It allows us to reflect on building a genuinely plurinational polity rather than focusing on debating its factual plurinational character. In the mediation case, which would be desirable in the event of an escalation of the conflict,49 the dêmoicratic approach also provides a more fruitful path for reflection. Nevertheless, due to the role that interdependencies play in the dêmoicratic point of view, the participation of non-local agents in the deliberation or negotiation does not imply an external interference, as those intervenors are, to a certain extent, part of the case. It is no wonder that the distinction between internal and external interests is much more blurred than in the purely nationalistic view, but it is not completely misplaced as in the strictly cosmopolitan view. Finally, regarding the possibility of implementing a sort of European Clarity Act, the dêmoicratic approach also provides a framework to discuss such a tool beyond traditional dead-end dichotomies. Offering a common European legal framework to channel claims from citizens belonging to sub-state national political groups will not imply promoting secession or making the institutional status quo ironclad. Instead, the reflections from a dêmoicratic theory may show that mutual recognition and nondomination are granted in cases regardless of the institutional framework. As previously stated, the Catalan case is a mere spot in the myriad of global phenomena that show the ongoing challenges that liberal democracies are facing. Still, it provides valuable elements to reflect on how we could better address those challenges. As argued in this contribution, the first step is to have an adequate theoretical and methodological approach. The dêmoicratic theory offers a promising path in that regard as its constant search for balance is more compatible with looking for cooperative dynamics leading to win-win solutions instead of the pure conflict dynamics that currently define these phenomena. While theory and methodology won’t be enough to overcome these cases, political and legal institutions will struggle to provide adequate solutions without getting it right on the underlying theoretical and methodological approaches right.

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It is not the purpose of this contribution, as expressed earlier, to assess these contingent circumstances.

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Martí JL (2018) European democracy and the no-demos thesis. In: Innerarity D, White J, Astier C, Errasti A (eds) New narrative for a new Europe. Rowman & Littlefield International, London, pp 49–70 Näsström S (2013) Normative power of political equality. In: Erman E, Näsström S (eds) Political equality in transnational democracy. Palgrave McMillan, New York, pp 157–181 Nicolaïdis K (2013) European demoicracy and its crisis. J Common Mark Stud 51(2):351–369 Nicolaïdis K (2016) My EUtopia: empathy in a Union of others. In: Segers M, Albrecht Y (eds) Re: thinking Europe: thoughts on Europe: past, present and future. Amsterdam University Press B. V., Amsterdam, pp 131–154 Nicolaïdis K (2019) Exodus. Reckoning. Sacrifice. Three meanings of Brexit. Unbound, London Nicolaïdis K, Sèbe B, Maas G (eds) (2015) Echoes of empire: memory, identity and colonial legacies. I. B. Tauris, London Norman W (2006) Negotiating nationalism: nation-building, federalism and secession in the multinational state. Oxford University Press, New York Petit P (2015) The republican law of peoples: a restatement. In: Buckinx B, Trejo-Mathys J, Waligore T (eds) Domination and global political justice: conceptual, historical, and institutional perspectives. Routledge, London Requejo F, Sanjaume M (2013) Secession and liberal democracy: the case of the Basque Country. In: Cabestan J-P, Pavcovic A (eds) Secessionism and separatism in Europe and Asia. To have a state of one’s own. Routledge, London, pp 110–126 Requejo F, Sanjaume M (2015) Recognitions and political accommodation: from regionalism to secessionism – the Catalan case. In: Grégoire JF, Jewkes M (eds) Recognition and redistribution in multinational federations. Leuven University Press, Leuven, pp 107–132 Requejo F, Martín G, Mora H, Morales A (2020a) La Sentència del Tribunal Suprem sobre el referèndum d’autodeterminació de Catalunya de l’1 d’octubre 2017. Institut d’Estudis de l’Autogovern 1/2020, Barcelona Requejo F, Martín G, Mora H, Morales A (2020b) International briefing: The Spanish Supreme Court’s decision on the self-determination referendum in Catalonia held on 1 October 2017. Institut d’Estudis de l’Autogovern, Barcelona Sanjaume-Calvet M (2020) Moralism in theories of secession: a realist perspective. Nations Nationalism 26:323–343 Sassen S (1991) The global city: New York, London, Tokyo. Princeton, Princeton University Press Sassen S (1996) Losing control? Sovereignty in the age of globalization. Columbia University Press, New York Smith A (1995) Nations and nationalism in a global era. Polity Press, Cambridge Sternberg C, Nicolaïdis K, Gartzou-Katsouyanni K (2015) The Greco-German affair in the Euro crisis: mutual recognition lost? Palgrave, London Tamir Y (2019) Why nationalism? Princeton University Press, New York Williams A, Greer S (2009) Human rights in the Council of Europe and the EU: towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice? Eur Law J 15(4):462–481 Young R (2015) The puzzle of non-western democracy. Carnegie Endowment for International Peace, Washington

Ander Errasti López (1988) is a PhD in Humanities: Ethics and Political Philosophy (Universitat Pompeu Fabra – UPF, 2017), Advanced LLM in Legal Sciences (UPF, 2014), Diploma in Business (University of Barcelona – UB, 2013) and MA in Political Philosophy (UPF, 2011). Since june 2020 he has been a full-time researcher at the Catalan Government’s Institute for Self-Government Studies (Institut d’Estudis de l’Autogovern, IEA) and from April 2021 he will become the University of Barcelona’s Chief of Staff. Currently, he is also an Associate Professor at the UB and the Open University of Catalonia, as well as a researcher in Globernance: Instituto de Gobernanza Democrática de Donostia – San Sebastián. Previously he has also worked as the Knowledge Manager at the Humanities Department of the UPF (2019–2020). He has been a

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visiting PhD student at the University of Oxford (2016), a visiting researcher at the University of Edinburgh (2017–2018) and a Policy Leader Fellow at the European University Institute’s School of Transnational Governance (2019). As a member of the GISME group at the University of Barcelona (UB), he has been enrolled in several European projects both as Project Manager (SIforAGE: Social Innovation on Active and Healthy Ageing for a Sustainable Economic Growth, 2013–2016, FP7) and Member of the Coordination (CCentre: A narrative approach to improve citizens’ ageing and well-being, EIT Health, 2016–2020). His main research interests are the normative debates on nationalism and cosmopolitanism, theories of democracy, the effects of the different types of globalisation in nationalism studies and the constitutional debates around the European integration process. His last contributions on the chapter’s topic are on the reference list.

The Role of the Constitutional Court of Bosnia and Herzegovina in Profiling Cooperative Federalism in a Multinational State Harun Išerić

Abstract When the new Constitution of Bosnia and Herzegovina was introduced in 1995, Bosnia and Herzegovina was described in academic papers as one of the “weakest federations” in the world. The main reason for that was the division of competence between the central government and subnational units. That might have been the case in 1995, but 25 years later Bosnian federalism has been transformed from dual to cooperative. The central government has strengthened, and the scope of its competences has been extended. Shared competences between Bosnia and Herzegovina and its entities (Republika Srpska and Federation of Bosnia and Herzegovina) are largely present on the constitutional scene although they are not explicitly mentioned in the Constitution. The credit for such transformations belongs largely with the Constitutional Court of Bosnia and Herzegovina. This contribution reflects on the case-law and judicial activism of the Court in fulfilling its functions in the Bosnian federation. Focus is on two of the most important issues in every federation: the supremacy clause and the division of competences. In addition to that, certain constitutional disputes in which the Court failed to fulfil its duty are discussed.

1 Introduction The first constitutional court, the one of Austria, was to be the “‘clip’ holding together” the federation.1 It remains the “clip”, by “transforming political disputes between the federal and the federated levels into legal matters.”2 The constitutional

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Hinghofer-Szalkay (2017), p. 3. Hinghofer-Szalkay (2017), p. 8.

H. Išerić (*) Public and International Law Department, Faculty of Law, University of Sarajevo, Sarajevo, Bosnia and Herzegovina e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_7

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court of the federation is the “umpire of federalism”3 and “the most intuitive interpreter of the constitution.”4 According to Watts, federations have relied upon the constitutional court to play a major adjudicating role by performing three functions: (1) “impartial constitutional interpretation”, (2) “adaptation of the constitution to changing circumstances”, especially where constitutional amendment is difficult and (3) “resolution of intergovernmental conflicts.”5 In executing these functions, the constitutional court ensures compliance with the division of competences between the federation and federal units and also ensures mutual compliance among different categories of general acts adopted by the federation and its units.6 The division of competences is the political core of the idea of a federal state,7 and preservation of such division is a “political question of life and death.”8 The constitutional court is “an objective authority“ which is needed to “mediate” fights in competitions between federation and subnational units “in a peaceful way.”9 If the division of competences is the cornerstone of the federation, then it can be said that judicial review “fences that corner with barbed wire.”10 This important role of the court in the division of competences is due to two reasons: (1) “regardless of whether a detailed or rather loose division of powers between the national and the subnational level, constitutional practice constantly presents borderline cases that give rise to divergent interpretations and ultimately need to be settled in court” and (2) “every constitution contains clauses that can have (and in practice always have had) an expansive effect in that their rather open phrasing is often used by the courts to make the division of powers flexible and adaptable to the overall circumstances [. . .].”11 Constitutional review is based on the supremacy clauses which exist in nearly all federal systems.12 The “principal purpose” of the constitutional court in a federation is “protecting the supremacy of the (federal) constitution within the legal order [. . .].”13 This contribution sheds light on “one of the greatest success stories among the institutions of Bosnia and Herzegovina”14 (B&H)—the Constitutional Court of

3

Ginsburg and Dixon (2011), p. 357. Bednar (2013), p. 279. 5 Watts (1996), p. 92. 6 Jovičić (2006), p. 283. 7 Stanković (2020), p. 235; Vinx (2015), p. 73. 8 Vinx (2015), p. 73. 9 Ibidem. 10 Stanković (2020), p. 235. 11 Palermo and Kössler (2017), p. 120. 12 Palermo and Kössler (2017), p. 112. 13 Palermo and Kössler (2017), p. 226. 14 Feldman (2005), p. 118. 4

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Bosnia and Herzegovina (CC or the Court).15 The Court is one of five state institutions established by Annex 4 of the General Framework Agreement for Peace in B&H (GFAP) which is the Constitution of B&H (Constitution).16 The Constitution established an Austrian-German model of judicial review.17 The Constitution inaugurates, without saying, “unusually” and “particularly” a “weak federal state.”18 15

Constitution of B&H, article VI. For jurisdiction of the Court, see also: Constitution of B&H, article IV.3 (procedures), Amendment I to the Constitution of Bosnia and Herzegovina (Official Gazette of B&H 25/2009), Election Law of B&H (Official Gazette of B&H 23/20001, 7/2002, 9/2002, 20/2002, 25/2002, 4/2004, 20/2004, 25/2005, 77/2005, 11/2006, 24/2006, 33/2008, 37/2008, 32/2010, 48/2011, 63/2011, 18/2013, 7/2014, 31/2016, 54/2017 and 41/2020), article 8.7 and article 8.8. For the proceedings before the CC and its organization see: Rules of the Constitutional Court of B&H – revised text (Official Gazette of B&H 94/2014). English version of the Rules is published in: Tadić (2015). For the latest overview of the Court’s case-law see: Ćeman and Dumanjić (2020). Decisions of the CC are available at CC’s website: http://www.ccbh. ba/odluke/. For the overview of the Court’s composition, jurisdiction and organization see: Smailagić (2020). 16 The Constitution of B&H has not been published in the Official Gazette. The one to which we shall refer in the paper is published by the Office of High Representative (OHR) and it is used by CC. It is available at http://www.ohr.int/ohr-dept/legal/laws-of-bih/pdf/001%20-%20Constitutions/ BH/BH%20CONSTITUTION%20.pdf. 17 Marko (2019), p. 207. 18 Venice Commission opinions: Opinion on the compatibility of the constitutions of the Federation of Bosnia and Herzegovina and the Republika Srpska with the constitution of Bosnia and Herzegovina, in: Opinions of the constitutional regime of Bosnia and Herzegovina, p. 60, https:// www.venice.coe.int/webforms/documents/default.aspx?pdffile¼CDL-INF(1998)015-e; Opinion on the need for a judicial institution at the level of the state of Bosnia and Herzegovina, p. 2, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile¼CDL-INF(1998)017-e; Opinion on the scope of the responsibilities of Bosnia and Herzegovina in the field of immigration and asylum with particular regard to possible involvement of the entities, para 12, https://www. venice.coe.int/webforms/documents/?pdf¼CDL-INF(1999)006-e; Amicus Curiae Brief for the Constitutional Court of Bosnia and Herzegovina on the law of the Republika Srpska on the status of state property located on the territory of the Republika Srpska and under the disposal, para 12, https://www.venice.coe.int/webforms/documents/?pdf¼CDL-AD(2011)030-e. B&H started as forced-together (Burgess (2012), p. 36, Woelk (2010), p. 53.), to become a hold together system (Palermo and Kössler (2017), p. 37, Burgess (2012), p. 41). B&H federalism is seen as “essential – the “essential nuisance” – short of establishing separate states and forgoing whatever economies of scale might exist from an united entity.” Filippov et al. (2004), p. 263. B&H “remains the case that in practice the foundations have been laid for a federal constitution and a federal state in B&H in all but the name” Burgess (2012), p. 36. “This constitutional design makes BiH by far the weakest ‘federation’ from the perspective of comparative federalism – to the extent that the Entities were not required to dismantle the three different armies or to integrate police forces.” Marko (2013), p. 289, similar in: Marko (2006), p. 520 and Marko (2019), p. 203. In addition to the silence of the Constitution, the Court abstained from defining the type of the constitutional-legal order of B&H (Decision on admissibility and merits in case no U 12/09, para 3). In contrast, the prevailing opinion of the former judges, stated in their academic papers, is that it is a federation. Former president Snežana Savić has described it as “complex state union” (Ustavni sud BiH (2001a), p. IX, as well as in: Savić (2000), p. 39, where she adds: “with the predominant elements of the confederal, but also with certain elements of the federal form of government”). Former president, Kasim I. Begić spoke about Bosnia as “federal and complex state” (Ustavni sud BiH (2001b), p. 25), as well as a

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The weakness of this federation is seen most clearly in the division of competences between the state and entity19 governments.20 Soon after the Constitution went into effect, it was predicted that the interpretation by the Court, may result in the improvement21 and strengthening of the central government. The Court was established with the “burden of responsibility for upholding and guaranteeing constitutional practices and for both strengthening the federal government and reining in the more ambitious claims and activities of the Entities.”22 The aim of this contribution is to verify, if and to what extent, this happened. The central question of the contribution is what has been the role of the Court during the 25 year history of B&H as a federation? The contribution has two parts. One is dedicated to the interpretation of the supremacy clause contained in the Constitution,23 and the second part is focused on the interpretation of the division of competences in B&H. The importance of the supremacy clause is highlighted in B&H, since its entities, FB&H and RS, have the “highest possible form of territorial and institutional autonomy.” It is the way to ensure B&H legal integration.24 The division of competences is a constitutional issue around which the sharpest political struggle between Bosnian national political elites in the post-war period was waged.25 Finally, this contribution reflects on the role the Court has played in transforming Bosnian dual federalism to cooperative

state with “federal structure” (Begić (1997), p. 297). Former vice president of the CC, Joseph Marko, wrote that B&H is the “weakest federation in the world - if it can be considered a federation at all” (Marko (2006), p. 520. Similar in: Marko (2013), p. 289, Marko (2019), p. 203). Former judge, Ismet Dautbašić wrote for B&H to be “unusually weak federation” (Dautbašić (1996), p. 36). Former judge Ćazim Sadiković claims similarly in: Sadiković (1997), p. 250. Later, Sadiković changed his opinion and claimed that B&H was not a federation. (See: Venice Commission, 62nd Plenary Session Venice: session report, https://www.venice.coe.int/webforms/documents/? pdf¼CDL-PV(2005)001-e). Former judge Zvonko Miljko, stated that due to the multinational structure of B&H, the federal state has imposed itself as “the most realistic solution in itself” (Miljko (2006), p. 185). At the same time, CC in its decisions pointed out the “comparative experience of federal states.” (Decision on admissibility and merits in case no U 12/09, para 34, Decision on admissibility and merits in case no U 7/12, para 53). While describing the constitutional-legal order of B&H, CC has used different phrases like: “complex constitutional structure” (Decision on admissibility and merits in case no U 12/09, para 34), “complex legal system” (Decision on admissibility and merits in case no U 4/12, para 41), “complex constitutionallegal system” (Decision on admissibility and merits in case no U 17/11, para 27 and 30) and “complex state system” (Decision on admissibility and merits in case no U 7/12, para 25). 19 Entities are: Republika Srpska (RS) and Federation of Bosnia and Herzegovina (FB&H) (Constitution, article I.3). There is also Brčko District (BD) of B&H, which is a self-government unit under direct sovereignty of B&H. 20 Morrison (1996), p. 147. 21 Yee (1996), p. 192. 22 Burgess (2012), p. 37. 23 Constitution, article III.3 (b). 24 Marko (2013), p. 292. 25 Marković (2012), p. 365.

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federalism.26 Has the Court been an “active driver of change (mostly towards centralisation)” or has it just acquiesced to change induced by the political branches?27

2 Supremacy Clause The Supremacy clause is contained in Article III.3 (b) of the Constitution which states: The Entities and any sub divisions thereof shall comply fully with this Constitution, which supersedes inconsistent provisions of the law of Bosnia and Herzegovina and of the constitutions and law of the Entities, and with the decisions of the institutions of Bosnia and Herzegovina.

This article is described by the Court as a constitutional principle of the responsibilities of the entities.28 The whole hierarchy of the legal system of B&H follows from this provision, in which the supreme place is occupied by the Constitution.29 It raises a system of derogation, in which the constitution of B&H and decisions by B&H institutions will override provisions of the constitutions and laws or bylaws of entities.30 Interpreting the meaning of the “decision of the institutions of B&H”, the CC has determined that it includes the “law” of the Parliamentary Assembly of B&H (PA)31 and the bylaws of the Council of Ministers (CoM).32 However, this does not exhaust the meaning of “decisions of B&H institutions.” It would also include a bylaw of the state ministry of any state administrative institution. Failure to comply with article III.3 (b) is very often linked to a violation of article I.2 (the principle of the rule of law).33 In cases which concerned different issues such as: (1) where the government of one entity by its bylaw regulated a matter previously regulated by the law adopted at the state level,34 (2) where the entity adopted bylaws in order to implement the state law (which was the responsibility of

26

Marković (2012), p. 387. Palermo and Kössler (2017), p. 227. 28 Decision on admissibility and merits in case no U 10/14, para 84. 29 Decision in case no U 25/00, para 33; Partial decision in case no U 5/98-I, para 31; Decision on admissibility and merits in case no U 1/11, para 80. 30 Decision on admissibility and merits in case no U 1/11, para 67; Partial decision in case no U 5/ 98-II, para 15; Decision in case no U 1/98. 31 Decision on admissibility and merits in case no U 2/11, para 54; Decision on admissibility and merits in case no U 11/15, para 52; Decision on admissibility and merits in case no U 4/12, para 44. 32 Decision on admissibility and merits in case no U 16/11, para 41. 33 Decision on admissibility and merits in case no U 10/14, para 84; Decision on admissibility and merits in case no U 11/15, para 50; Šarčević (2012), p. 117. 34 Decision on admissibility and merits in case no U 10/14. 27

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the state ministry),35 (3) where the entity regulated by its law issue previously regulated by the state by means of a bylaw36 and finally (4) where the entity adopted a law regulating a matter that was previously regulated by the state law,37 the CC found such actions unconstitutional due to violating article III.3 (b) and/or article I.2. Two controversial issues emerged from the Court’s case-law regarding the supremacy clause. First, entities’ duties to comply with the obligation imposed on them through the laws passed by the PA and second, the appellate jurisdiction over decisions of entities’ constitutional courts. The CC emphasizes that entities and other administrative units of B&H must comply with the obligations imposed on them through the laws passed by the PA.38 Thus, the enactment of entity laws or the laws of other administrative units in B&H, contrary to the procedure prescribed by state law, might amount to the breach of the provisions of article III.3 (b). So, the fact that obligations under a state law have not been fulfilled may lead to the violation of the Constitution.39 In the words of the Court: If held otherwise, besides completely bringing into doubt the authority of the institutions of Bosnia and Herzegovina, it would also challenge the principle of Article I(2) [. . .]. In that case the question might rightly be posed regarding the purpose of the State laws [. . .] if the entities or any sub divisions thereof in Bosnia and Herzegovina could pass laws violating or evading obligations imposed to those by the provisions of the State legislation [. . .].40

Therefore, the adoption of entity laws contrary to the procedure prescribed by state laws raises the question of the constitutionality of such laws in terms of the provision of article III.3 (b).41 But in the opinion of the CC, it does not automatically lead to the violation of the article. Thus, the question which arises is: in which situations a violation of article III.3 (b) will occur? In two different cases, the CC tried to answer this question. In case no U 14/04, the CC assessed the constitutionality of indirect tax laws enacted by the FB&H Parliament, without following the procedure prescribed by the state Law on the Indirect Taxation System in B&H. The CC took the position that by doing this the FB&H Parliament “de facto assumed competences that it [. . .] transferred to the State of Bosnia and Herzegovina.”42 The CC added that “in

35

Ibidem. Decision on admissibility and merits in case no U 16/11. 37 Decision on admissibility and merits in case no U 1/11. 38 Decision on admissibility and merits in case no U 2/11, para 52; Decision on admissibility and merits in case no U 18/14, para 29. 39 Decision on admissibility and merits in case no U 18/14, para 29; Decision on admissibility and merits in case no U 2/11, para 54. 40 Decision on admissibility and merits in case no U 2/11, para 52; Decision on admissibility and merits in case no U 11/15, para 51. 41 Decision on admissibility and merits in case no U 14/04, para 28; Decision on admissibility and merits in case no U 2/11, para 51; Decision on admissibility and merits in case no U 4/12, para 43. 42 Decision on admissibility and merits in case no U 14/04, para 28. 36

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particular, it violated the provision of Article III(3)(b) [. . .] since the Parliament of the Federation of Bosnia and Herzegovina failed to comply with the procedure laid down in the Law on the Indirect Taxation System. [. . .] Furthermore, by adopting the contested laws [. . .] the Parliament of the Federation of Bosnia and Herzegovina violated the provision of Article III(5)(a) [. . .] by entering the scope of competences transferred to Bosnia and Herzegovina [. . .].”43 Therefore, two conclusions can be drawn from this brief explanation of the Court: (1) if the procedure for enacting an entity law is prescribed by the state, the entities have an obligation to comply with such an obligation in accordance with articles I.2 and III.3 (b) of the Constitution and (2) that the matter transferred to the state becomes its exclusive competence, which as such cannot be transferred back to the entity’s competence and cannot be regulated by the entity. Further, interference with such competence leads to the violation of the article III.5 (a) (which speaks about the transfer of competences to the state by the agreement of entities).44 A couple of years later the CC tried to elaborate on the situations in which failure to follow the procedure under state law does not lead to the violation of the article III.3 (b). The RS passed the Law on Execution of the Budget and the Decision on Adoption of the Budget for 2011, although the Global Framework of Fiscal Balance and Policies in B&H was not adopted at that time. However, according to the Law on the Fiscal Council in B&H, if an agreement on a global framework is not reached all levels of government are obliged to make a decision on interim funding. But, the RS did not make a decision on interim financing. Rather, it adopted the challenged acts. In only two paragraphs, explaining why there was not violation of the Constitution, the CC pointed out that by the adoption of the law on the entity budget, RS did not fall within the competence of B&H institutions in the field of indirect taxation and thus affected B&H competences based on article III.5 (a) of the Constitution. In the words of the Court: “[. . .] the adoption of the law on the Entity budget is indisputably within the competence of the legislative body of the Entity.”45 Thus, the CC did not refer at all to article III.3 (b) and its potential violation, but only to the article III.5 (a). However, the non-violation of article III.5 (a) is not questionable, because unlike the facts in the case no U 14/04, the entity legislator did not regulate a matter that is in the exclusive competence of B&H, but was within its own competence. However, in doing so, it did not respect the procedure prescribed by the state law. The conclusion that emerges from the CC decisions in these two cases and the different outcomes is that the violation of article III.3 (b) will occur only when the entity adopts laws contrary to the procedure prescribed by state law and at the same time regulates matters of state competences. In that case, a violation of article III.5 (a) will also occur. Therefore, according to the logic of the Court, only if there is a

43

Ibidem. For details, see in this chapter 3.3 Additional competences of the state - the curious case of Bosnia and Herzegovina. 45 Decision on admissibility and merits in case no U 2/11, para 54. 44

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violation of article III.5 (a) can there be a violation of article III.3 (b) (!). By contrast, in case no U 11/15, the CC stated that it “upholds the obligation to comply with the procedures prescribed by the State laws and that both Entities and the Brčko District of Bosnia and Herzegovina must follow such procedures [. . .] thereby contributing to respect for the principle of the rule of law, legal certainty and procedural equality of all parties to the proceedings.”46 In the context of the supremacy of B&H, it is necessary to point out the recent developments of the Court’s case-law within its appellate jurisdiction against the decisions of the entity constitutional courts made concerning the procedures of abstract judicial review. In their academic papers, the former president of the Court, Kasim I. Begić, as well as the former vice president of the Court, Joseph Marko, pointed out that the appellate jurisdiction of the Court over the decisions of the entity constitutional courts derives from the “supremacy of the B&H Constitution over the entity constitutions.”47 The CC initially established its jurisdiction over such decisions of the entity constitutional courts, explaining that its absence would “considerably reduce the effectiveness of the appellate review” effectuated by the CC.48 However, the CC later denied itself this jurisdiction.49 The Court argued that decisions of the constitutional courts of entities are “final and binding.” Thus a review of such decisions “does not contribute to legal certainty and the rule of law”, and that it is not “in the spirit” of the Constitution.50 This change in Court’s practice has been strongly criticized by the following arguments: (1) the Court has been reducing its own appellate jurisdiction, (2) such change in the case-law lacks quality in reasoning and (3) it is contrary to comparative law, primarily the jurisprudence of the Federal Constitutional Court of Germany.51 To sum it up, although the CC has upheld the supremacy of B&H in number of cases, it also has partially constrained it by (1) tolerating violations of the procedure for enacting entity regulations, which is prescribed by state law52 and by (2) rejecting appeals, due to inadmissibility, against decisions of the entity constitutional courts made by following the procedure of abstract judicial review.

46

Decision on admissibility and merits in case no U 11/15, para. 56. Ustavni sud BiH (2001b), p. 35; Marko (2004), p. 20. 48 Decision in case no U 5/99; Decision in case no U 39/00. 49 Decision on admissibility in case no AP 2391/07, para 12; Decision on admissibility in case no AP 2567/16, para. 6 and 7. 50 Decision on admissibility in case no AP 2391/07, para 12. 51 See Mrkonjić P (2019) Apelacijska nadležnost Ustavnog suda BiH u odnosu na odluke entitetskih ustavnih sudova. http://fcjp.ba/templates/ja_avian_ii_d/images/green/Petar_Mrkonjic2.pdf; Popović I (2019) Dopustivost apelacija protiv odluka ustavnih sudova entiteta u Bosni i Hercegovini. http://fcjp.ba/analize/Igor_Popovic1_Dopustivost_apelacija_protiv_odluka_ ustavnih_sudova_entiteta_u_Bosni_i_Hercegovini.pdf; Ožegović (2019), pp. 97–99. 52 Once again: in a paradoxical explanation, the CC states that the entities must respect the obligations imposed by state law, and the fact that they have not been complied with may lead to a violation of the Constitution. Decision on admissibility and merits in case no U 4/12, para. 43. 47

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3 Division of Competences Each level of government in B&H has its own competencies that are determined or determinable by the Constitution. It is the B&H constitution (not the entity’s constitutions) that is the guarantor of the division of competences between the state, on the one hand, and the entities, on the other. An entity can exercise only those competencies that are assigned to it by the Constitution53 and not by its own constitution. The division of competences can be changed only in the manner provided by the Constitution of B&H, namely provisions of article III.5 and article X of the Constitution.54 The CC emphasizes that the entities cannot take over the competencies of the state that are stipulated by the Constitution as exclusive to the state,55 or the competencies of another entity.56 Although the issue of the division of competences between B&H and entities has been considered in a number of cases, the CC stated that, in relation to this issue, it is not possible to adopt a general position that will apply in each and every case.57 It is important to point out that the fact that the PA did not enact a law to regulate a matter which falls within its competences does not mean that the entities may regulate it by their own laws that matter.58 Article III is the key constitutional provision. It lists ten exclusive competences of the state,59 while residual powers are entrusted to entities. Competences of B&H are described as “broadly defined competences,”60 while entities’ are described as a “formidable array of powers and competences.”61 The rule on the division of competences in B&H creates a “weak central authority and the comparative strength of its two constituent units.”62 But, on the other hand, the Constitution contains flexible elements for changes in competence division without requiring formal constitutional changes. In fact, it defines mechanisms for transferring competences by the entities to the state and defines matters in which the state can constitute its competence, without entities consent (so called “implied powers”). Finally, the Presidency of B&H is given a power to facilitate inter-entity cooperation on matters

53

Decision on admissibility and merits in case no U 1/11, para 67. Ibidem. 55 Decision in case no U 18/00, para 36. Decision on admissibility and merits in case no U 13/14, para 52. 56 Decision on admissibility and merits in case no U 13/14, para 52. 57 Decision on admissibility and merits in case no U 16/11, para 31. 58 Decision on admissibility and merits in case no U 8/19, para 42. 59 Marko (2013), p. 289: “that can be seen as ‘essential’ elements of state sovereignty, namely defence, police or fiscal policy, do not belong to the common institutions of the state, but to the Entities.” See also: Marko (2019), p. 203; Pobrić (2000), p. 342. 60 Palermo and Kössler (2017), p. 119. 61 Burgess (2012), p. 39. 62 Burgess (2012), p. 36. 54

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which do not fall within the competence of B&H, and thus expand the competence of the state.63

3.1 3.1.1

Exclusive Competence of the State: The Weakest Federation Ever? Article III.1 as a Central Constitutional Provision

By the method of positive enumeration, the Constitution lists ten exclusive competencies of B&H institutions: (1) foreign policy,64 (2) foreign trade policy,65 (3) customs policy, (4) monetary policy, as provided by Article VII of the Constitution,66 (5) financing of B&H institutions and international obligations,67 (6) policy and regulation of immigration, refugees and asylum seekers,68 (7) enforcement of international and inter-entity criminal law, including relations with Interpol,69 (8) establishment and operation of common and international means of communication, (9) regulation of inter-entity transport and (10) regulation of air traffic control. These competencies are exclusively the competencies of the B&H institutions and there is no constitutional basis upon which they could be transferred to the entities.70 It is evident from the above-mentioned constitutional provision that by conferring competence to the state for a particular matter, the Constitution grants it the right to conduct policy. What does policy mean and is it just a normative competence entrusted to the state level? Explaining the meaning of the word “politics”, the CC pointed out that it includes “legislative proposals” in the respective field.71 But, it does not only include legislation.72 In addition, it means that B&H institutions are responsible for both legislation and its application.73

63

Miljko (2006), p. 210; Nešković (2013), p. 311; Ibrahimagić (1998), p. 60. Decision on admissibility and merits in case no U 15/08, para 35. 65 Ibidem. 66 Partial decision in case no U 5/98-I, para 49. 67 Decision on admissibility and merits in case no U 16/11, para 33 and 34. 68 Partial decision in case no U 5/98-I, para 26; Decision on admissibility and merits in case no U 13/14, para 52. 69 Partial decision in case no U 5/98-I, para 22; Decision on admissibility and merits in case no U 16/08, para 36. 70 Decision on admissibility and merits in case no U 11/08, para 21. 71 Partial decision in case no U 5/98-I, para 51. 72 Venice Commission, Opinion on the scope of the responsibilities of Bosnia and Herzegovina in the field of immigration and asylum with particular regard to possible involvement of the entities, para 8, https://www.venice.coe.int/webforms/documents/?pdf¼CDL-INF(1999)006-e. 73 Venice Commission, Opinion on the scope of the responsibilities of Bosnia and Herzegovina in the field of immigration and asylum with particular regard to possible involvement of the entities, para 9, https://www.venice.coe.int/webforms/documents/?pdf¼CDL-INF(1999)006-e. 64

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Moreover, the state has an obligation to enact laws “important to its functioning and to provide judicial protection for individuals”; otherwise it risks violating human rights and freedoms.74 The Constitution establishes the basic constitutional principles and goals for the functioning of B&H, inter alia, through discharging competencies and stipulating commitments of state institutions. Thus, it is a positive constitutional obligation on B&H and its institutions to create the necessary legal framework specifying constitutional obligations. In that sense the Constitution establishes only the basic constitutional principles that the legislator is obliged to elaborate.75 In addition, “the state cannot avoid” this obligation. There is a constitutional obligation to form institutions (operational and judicial bodies) that can carry out all of B&H obligations in accordance with the Constitution.76 That is especially the case in relation to human rights protection. Take the case of the absence of a state court before which a Bosnian citizens could try to exercise their civil rights which lead to a violation of article 6 para 1 of the European convention on human rights (ECHR).77 Furthermore, the CC emphasises that the Prosecutor’s Office of B&H was established as an independent body in order to ensure the efficient exercise of the competencies of the state of B&H, the respect of human rights and legality on its territory.78 Such an institution is the Court of B&H which, according to the CC, will strengthen the legal protection of citizens and ensure compliance with the principles of the ECHR.79 One of the institutions that the state should have established is the Public Radio and Television Service of B&H, as well as a joint corporation of public broadcasters.80 In the case no AP 1785/06, the CC pointed out that different case-law of courts at different levels on the issue of war crimes prosecution, is “probably the result of lack of a court at the level of Bosnia and Herzegovina, which would harmonize the case-law of all courts [. . .] and contribute to the full expansion of the rule of law in Bosnia and Herzegovina.”81 Here the CC pointed out to the state legislator the need to establish a new state judicial body - the Supreme Court of B&H, which would harmonize case-law, specifically, in war crimes cases. Consequently, the state legislator could form a state Supreme Court, relying on the Constitution, without implementing formal constitutional changes or procedures under article III.5 (a) (obtaining entity consent) or article III.5 (b) (entity negotiations). 74

Decision in case no U 18/00, para 48. Decision on admissibility and merits in case no U 1/08, para 19. 76 Decision in case no U 18/00, para 36 and 37. In its Decision no U 42/03, the CC stated that, in addition to those explicitly provided for in the Constitution of B&H, B&H is obliged to establish other mechanisms and additional institutions that are necessary for it to exercise its competencies. Also, in: Decision on admissibility and merits in case no U 42/03, para 23; Decision in case no U 26/01, para 26. 77 Decision in the case no U 18/00, para 41. 78 Decision on admissibility and merits in case no U 15/18, para 33. 79 Decision in case no U 26/01, para 26. 80 Decision on admissibility and merits in case no U 42/03, para 23. 81 Decision on admissibility and merits in case no AP 1785/06, para 90. 75

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At its beginning, the Court tried to determine the extent of the application of ten B&H exclusive competences and to answer whether the competencies of B&H are limited to only these ten. How complex this issue has been, is evident in foreign policy which has been particularly sensitive given some residual competences of the entities in this matter. It is also a competence about which the CC has the most comprehensive case-law. The Court pointed out that foreign policy and foreign trade policy are “essentially” the prerogatives of B&H institutions,82 and that the entities have been assigned some residual powers. In addition to residual powers allocated by the Constitution,83 the CC concluded that “entities have the right to establish representations abroad as long as this right does not interfere with the authority of Bosnia and Herzegovina to be represented as a state.”84 Another residual power of the entities is to “propose” ambassadors and international representatives “as part of the selection process.”85 However, such proposals must be regarded as “nothing more than proposals and cannot restrict the right of the Presidency of B&H to appoint ambassadors and other international representatives from either the persons proposed by entity institutions or persons who have not been proposed by them.”86 The CC pointed out that the issue of the constitutional division of competencies in the field of foreign policy can be raised when the activities undertaken by entity officials and financed from the entity budget represent the interference or deprivation of some of the competencies of B&H.87 Examples of such activities that the CC cited include: establishing diplomatic relations with another state, concluding agreements with another country or international organization, representing the entity abroad as an independent state.88 However, in case no U 15/08, the CC did not find there to be an interference in foreign policy as the exclusive competence of the state, when the RS undoubtedly presented itself as an independent state89 or when the RS submitted a report to the United Nations Security Council on the situation in B&H.90 Although the CC had the opportunity, it refused to define foreign policy as well as foreign trade policy.91 However, in our opinion the CC had to give a definition of the

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Partial decision in case no U 5/98-I, para 40. Constitution, article III.2 (d). 84 Partial decision in case no U 5/98-I, para 41. 85 Partial decision in case no U 5/98-I, para 43. 86 Ibidem. 87 Decision on admissibility and merits in case no U 15/08, para 35. 88 Ibidem. 89 For details see: Separate opinion in case no U 15/08 by the judge Seada Palavrić. 90 See: Decision on admissibility and merits in case no U 15/09. RS kept sending reports to the Security Council of the UN. In October 2020 RS delivered its 22nd Report. Reports are available at: http://www.predsjednikrs.net/en/. 91 Decision on admissibility and merits in case no U 15/08, para 35; Decision on admissibility and merits in case no U 15/09, para 42. 83

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constitutional standard of foreign policy in order to clearly separate the activities that can be undertaken on the international stage by the entities from those which can be undertaken by the state.92 The consequences of the non-existence of such a definition are also visible from the recent activities of both entities.93 In case no U 6/08, the applicant requested the constitutional review of the Resolution of the National Assembly of RS (NA RS) on the non-recognition of the unilaterally declared independence of Kosovo and Metohija and the commitments of the RS. The CC declared itself incompetent, because the Resolution is an act that represents a “type of political proclamation that is not legally binding.”94 This position of the CC was later the basis for the NA RS to pass a Resolution on the protection of the constitutional order and the declaration of military neutrality of the RS.95 Although the resolutions are legally non-binding documents, politicians coming from the RS, that are working in B&H institutions emphasized that they would “adhere” to them and that for them “there is no other policy than the policy of the NA RS and the governing structure in RS.”96 In this way, a non-binding document became de facto binding, and the entities abducted B&H’s exclusive competence in the field of foreign policy. Foreign policy, as the prerogative of the state of B&H, turns out to be significantly limited and dependent on the positions taken by one entity, which is contrary to the constitutional division of competencies in this matter. It is our opinion that the CC should have introduced a principle of federal loyalty97 in cases concerning foreign policy. By doing so, the Court would provide entity governments with a clear indication of the boundaries of their activities in

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Separate opinion in case no U 15/08 by the judge Seada Palavrić; Dissenting opinion of judge Mirsad Ćeman joined by judges Valerija Galić and Seada Palavrić in case no U 15/09. 93 By adopting the Law on Republic Administration, (Official Gazette of RS 115/2018) the NA RS determined the competence of the Ministry of European Integration and International Cooperation, in a way which raises doubts about the compliance with the constitutional division of competences in foreign policy. Constitutional review procedure before CC B&H against the legislative provision on the Ministry’s competences was initiated on 11 December 2020. At the same time, in January 2021 the upper house of FB&H Parliament adopted the Law on Enforcement of Courts Decisions, which interferes with the jurisdiction of B&H in the implementation of international obligations, more precisely, the enforcement of judgments of the European Court for Human Rights (ECtHR). CC in its decisions pointed out that implementation of ECtHR judgement is an international legal obligation of B&H. See: Decision on admissibility in case no U 12/08, para 8; Decision on admissibility and merits in case no U 2/13, para 28. 94 Decision on admissibility in case no U 6/08, para 10. 95 Resolution is available in Serbian at: https://www.narodnaskupstinars.net/?q¼la/akti/ostali-akti/ rezolucija-o-za%C5%A1titi-ustavnog-poretka-i-progla%C5%A1enju-vojne-neutralnostirepublike-srpske. 96 Dodik: Pridržavat ću se Rezolucije Narodne skupštine, http://ba.n1info.com/Vijesti/a301469/ Dodik-Pridrzavat-cu-se-Rezolucije-Narodne-skupstine.html. 97 “Cooperation and mutual consultation are often provided in constitutions as underlying principles of the federal system (. . .) or are declared by the constitutional courts as being inherent to the constitutional system (. . .).” Palermo and Kössler (2017), p. 126. In the case no U 1/11 the CC hinted at the existence of this principle in the constitutional order of B&H. See: Decision on admissibility and merits in case no U 1/11, para 83.

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foreign policy as well as in other areas of their activities. It failed to do so.98 That would substitute for its refusal to define foreign policy and clearly define boundaries of the entity’s activities. Judge Seada Palavrić, in her separate opinion in case no U 15/08, held that in states where there are multiple levels of government, those levels must follow “the principle of loyalty to the central level of government as well as mutual solidarity must be adhered to” (para 6). She adds that, accordingly, the entities (1) must respect the competencies of the state, (2) must harmonize their activities with the fact that they not dispose of any type of “statehood” so rare they allocated an international legal personality by the Constitution, (3) are subject to the “sovereignty” which exclusively pertains to B&H (para 6). Finally, when it comes to foreign relations, it should also be mentioned that there is a positive obligation of the state of B&H to take into account the constitutional order of B&H when taking on international legal obligations.99 This position of the CC is extremely important when, by the ratification of the integrational agreement, B&H undertakes obligations in areas that are not in its exclusive competence, but are in the competence of entities. On the other hand, the entities have an obligation that, when implementing different policies, they must prioritize the fulfilment, for the most part, of the international obligations assumed by the state of B&H.100 The Court used foreign policy as an argument in assessing state laws that were adopted as obligations that arise from the European integration process, which is an integral part of foreign policy, in particular the Stabilization and Association Agreement (SAA) and membership to the Council of Europe.101 The Court believes that adoption of these laws can essentially be expressed as the duty of B&H to fulfil the obligations it undertook by signing the SAA with the aim of joining the EU.102

3.1.2

Looking Beyond the Article III.1

Further interpreting the division of competences in the Constitution, the CC pointed out: However, the Constitution of B&H not only creates powers within this general division system of powers in Article III. In creating the B&H State institutions, the Constitution also confers upon them relatively specific powers, [. . .] It must then be concluded that matters which are not expressly enumerated in Article III.1 are not necessarily under the exclusive

Šarčević in his Expert opinion in case no U 1/11 stated that federal loyalty in constitutional law of B&H arises from the “systematic relationships of Article III.5 with Article III.2 (d) and Article III.3. (b), with lines 2, 3 and 6 of the Preamble and Article I.1 [. . .].” Šarčević (2012), p. 119. 99 Decision on admissibility and merits in case no U 1/11, para 83. 100 Decision on admissibility and merits in case no U 9/12, para 29. 101 Public Procurement Law of B&H (Decision on admissibility and merits in case no U 6/07, para 20), Law on Statistics of B&H (Decision on admissibility and merits in case no U 9/07, para 19) and Law on Insurance Agency in B&H (Decision on admissibility and merits in case no U 17/09, para 19). 102 Decision on admissibility and merits in case no U 17/09, para 16. 98

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jurisdiction of the Entities in the same way as the Entities might have residual powers with respect to the responsibilities of the B&H institutions.103

At the same time, the above position of the CC is supported by the fact that although B&H institutions have exclusive competence in foreign policy and foreign trade policy, the entities also have the right, for example, to establish special parallel relations with neighbouring countries, according to article III.2 (a).104 The state also has those competencies that have been assigned to its institutions. The CC position can be supported by the following examples: (1) Parliamentary Assembly of B&H. Regarding article IV.4 (e)105 of the Constitution, the CC pointed out that “it may cover a wider scope of competencies than those listed in article III/1.”106 For example, it includes the control function of the PA which is to supervise over the spending of public funds, so that it is efficient, responsible and transparent.107 Referring to this provision, the CC found that it resulted in the right of the state to regulate the issue of state property,108 navigation on interstate and international rivers,109 public radio and television system,110 and the appearance of passports.111 (2) Presidency of B&H. For example, the competence of the civilian command over the armed forces is derived from Article V.5 (a) although Article III.1 does not explicitly state military affairs within the competence of the B&H.112 (3) Constitutional court of B&H. The CC also pointed out that regarding the adoption of measures that are the exclusive competence of the institution of B&H, but do not fall under ten exclusive competences of B&H, such as the adoption of an interim measure during the entity-entity dispute and entity-B&H before the CC, “there is no room left for unilateral measures” to be taken by the entity institutions.113 103 Partial decision in case no U 5/98-II, para 12; Decision in case no U 25/00; Decision in case no U 26/01, para 22; Decision on admissibility and merits in case no U 6/07, para 18; Decision on admissibility and merits in case no U 1/11, para 69. 104 Partial decision in case no U 5/98-II, para 12; Decision on admissibility and merits in case no U 25/00, para 31. 105 “The Parliamentary Assembly shall have responsibility for: e. Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities.” 106 Decision on admissibility and merits in case no U 1/11, para 69. Opposing view of former president of CC Snežana Savić, according to which, competence of PA is “very modest” and “does not cover the competencies necessary for the life of a state.” Savić (2000), p. 30. 107 Decision on admissibility and merits in case no U 6/07, para 19. 108 Decision on admissibility and merits in case no U 1/11, para 80; Decision on admissibility and merits in case no U 8/19, para 40. 109 Decision on admissibility and merits in case no U 9/19, para 49. 110 Decision on admissibility and merits in case no U 42/03, para 23. 111 Decision in case no U 25/00, para 31. 112 Partial decision in case no U 5/98-II, para 12; Decision in case no U 26/01, para 22; Decision on admissibility and merits in case no U 6/07, para 18. 113 Partial decision in case no U 5/98-I, para 57.

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In the next phase of the development of its practice, the Court pointed out that the list of exclusive competences of state or entity in article III, cannot be constructed separately from “other constitutional provisions.”114 In addition to reviewing the constitutional provisions on competence division, the CC questioned the competencies of the state or entity to regulate a particular matter by “examining the whole Constitution as well as its context.”115 The CC added that in addition to the exclusive competencies in article III.1, the B&H Constitution in accordance with article I.2 (“fundamental principle of democracy”) and also the state internal structure from article I.3, assigns to B&H following the “responsibilities and competencies”: (1) “to ensure its sovereignty, territorial integrity, political independence and international personality”,116 (2) “the highest level of internationally recognized human rights and fundamental freedoms”,117 (3) “free and democratic elections” i.e. the adoption of the Election Law,118 (4) issues of B&H citizenship.119 In the case no U 1/11 the Court pointed out that this list should be supplemented by article I.1 of the Constitution.120 Furthermore, the CC pointed to the argument of the rule of law principle (article I.2) as it confirmed the constitutionality of the establishment of the Court of B&H,121 the determination of the subject matter jurisdiction of the Court of B&H,122 the system of public radio and television broadcasting in B&H,123 the adoption of Law on Public Procurement of B&H124 and the Law on Statistics125 Also, relying on the principle of continuity from Article I.1 of the Constitution, the CC has determined

114 Decision on admissibility and merits in case no U 6/07, para 18; Decision on admissibility and merits in case no U 1/11, para 69. 115 Decision on admissibility and merits in case no U 11/08, para 19; Decision on admissibility and merits in case no U 1/11, para 64. Opposing view of the former president of CC Snežana Savić, according to which if something is not mentioned as a competence in article III/1 or as competence of the state institutions, it means it is the competence of entities. See: Savić (2000), pp. 34–35. 116 Decision in case no U 26/01, para 18 and 20; Decision on admissibility and merits in case no U 42/03, para 15. 117 Ibidem. 118 Ibidem. Venice Commission, Opinion on the competence of Bosnia and Herzegovina in electoral matters, p. 4, https://www.venice.coe.int/webforms/documents/?pdf¼CDL-INF(1998)01 6-e. 119 Decision in case no U 26/01, para 2; Decision on admissibility and merits in case no U 42/03, para 17. 120 Decision on admissibility and merits in case no U 1/11 para 71. 121 Decision in case no. U 26/01, para 24 and 26. 122 Decision on admissibility and merits in case no U 16/08, para 41. 123 Decision on admissibility and merits in case no U 42/03, para 22. 124 Decision on admissibility and merits in case no U 6/07, para 20. 125 Decision on admissibility and merits in case no U 9/07, para 20.

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that the state has competence to regulate “state property”126, “agricultural land” that constitutes a part of the State property127, navigation on interstate and international rivers, as well as the competence of state and entity bodies in that matter128 and old foreign currency savings.129 It also follows from the Court’s case-law that the constitutional provisions on human rights represent a stronghold for the competence of the state. Assessing the constitutionality of the Law on the Court of B&H, the CC pointed out that its establishment “can be expected to be an important element in ensuring that the institutions of Bosnia and Herzegovina act [. . .] in satisfying the requirements of the European Convention in regard to fair hearings before a court and effective legal remedies”,130 because until the Court of B&H begins to function, “there is no possibility to challenge the decisions of B&H institutions before a body that fulfils the requirements of an independent and impartial tribunal.”131 Determining the constitutionality of the Law on the Fundamentals of the Public Broadcasting System and the Public Broadcasting Service of B&H, the CC referred to the “right of expression and receiving and imparting information.”132 In a case concerning old foreign currency savings, due to the absence of a state law that would effectively protect the appellants’ right to property, the CC found a violation of the State’s positive obligation under rights to property.133 In the case concerning the constitutionality of the Law on Statistics, the CC pointed out that its adoption will ensure “the right of access to information of all citizens.”134 Finally, the CC notes that it is the state that is the guardian of the constitutional principles and that it must effectively ensure the realization of those principles.135 The lack of a legal guarantee that the state will ensure the constitutional principle and leaving it to the entities to guarantee constitutional principles, threatens those principles, leading to a feeling of legal insecurity among citizens136 and a violation of the Constitution. One of these principles is the principle of the single market (guaranteed by Article I/4 of the Constitution),137 which has the biggest potential in 126

Decision on admissibility and merits in case no U 1/11, para 80. Decision on admissibility and merits in case no U 8/19, para 38. 128 Decision on admissibility and merits in case no U 9/19, para 49. 129 Decision on admissibility and merits in case no AP 130/04, para 76. 130 Decision on admissibility and merits in case no U 26/01, para 24. 131 Decision on admissibility and merits in case no U 26/01, para 25. Venice Commission, Opinion on the need for a judicial institution at the level of the state of Bosnia and Herzegovina, https:// www.venice.coe.int/webforms/documents/default.aspx?pdffile¼CDL-INF(1998)017-e. 132 Decision on admissibility and merits in case no U 42/03, para 22. 133 Decision on admissibility and merits in case no AP 130/04, para 78. 134 Decision on admissibility and merits in case no U 9/07, para 20. 135 Decision on admissibility and merits in case no U 68/02, para 45. 136 Ibidem. 137 For the case-law see: Decision on merits in case no AP 130/04; Decision on admissibility and merits in case no AP 129/06; Decision on merits in case no U 68/02; Decision on admissibility and merits in case no U 14/04; Decision on admissibility and merits in case no U 3/08; Decision on admissibility and merits in case no U 12/09; Decision on admissibility and merits in case no U 17/09. 127

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terms of expanding the competences of the state. It raises the obligation of the state to establish a functioning economic system and economic balance in B&H.138 The realization of this principle imposes an obligation on the state to realize its goals (positive obligation) and a negative obligation on the entities not to prevent the realization of this principle.139 The fact that the state must achieve an efficient single market and that the entities regulate certain areas of it does not automatically mean that the principle of the common market is compromised. In this sense, the state has a wide field of responsibility in terms of organizing the single market within its borders in the most suitable way. Although the constitutional division of competencies from article III of the Constitution assigns certain matters to the entities, which may affect the realization of the single market as a state obligation, the autonomy of the entities is conditioned by hierarchically superior competencies of the state, which includes the protection of the Constitution and its principles.

3.2

Exclusive Competences of Entities

Article III.3 (a) of the Constitution explicitly prescribes that: All governmental functions and powers that are not explicitly entrusted by this Constitution to the institutions of Bosnia and Herzegovina belong to the entities.

In its decisions, the CC determined some of the exclusive competencies of the entities.140 For instance, one entity has no right to regulate the rights of returnees in another entity or BD, because returnees are under the jurisdiction of that entity and

138

Decision on admissibility and merits in case no U 68/02, para 40. Decision on admissibility and merits in case no U 68/02, para 41. 140 These are: the entity’s judicial system (Decision on merits in case no U 56/02, para 17), regulation of payment of excise tax and turnover tax on products subject to payment of excise tax (Decision on merits in case no U 68/02, para 27), social politics (Decision on admissibility and merits in case no U 12/09, para 28, Decision on admissibility and merits in case no U 9/12, para 23, Decision on admissibility and merits in case no U 2/13, para 23, Decision on admissibility and merits in case no U 17/14, para 22), pension and disability insurance (Decision on admissibility and merits in case no U 2/13, para 23, Decision on admissibility and merits in case no U 13/14, para 55, Decision on admissibility and merits in case no U 17/14, para 22), regulating the collection of direct taxes (Decision on admissibility and merits in case no U 7/11, para 27), issues of persons with disabilities (Decision on admissibility and merits in case no U 9/12, para 23), issue of the internal organization of the entities, their administrative units and local self-government units, and regulating the symbols of these units (Decision on admissibility in case no U 28/13, para 19), health care, protection of civilian victims of war, veteran-disabled protection, income taxation, etc. (Decision on admissibility and merits in case no U 13/14, para 55), primary and secondary education (Decision on admissibility and merits in case no U 26/13, para 40), regulation of the issue of inland navigation, exclusively in inland waters, which are waters that are not at the same time state borders and international navigable rivers (Decision on admissibility and merits in case no U 9/19, para 45). 139

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not the one attempting to regulate their rights to return in another entity. Otherwise, the entity violates the obligation to protect legal certainty.141 The former CC president, Kasim I. Begić, pointed out that the presumption of jurisdiction in favour of the entities cannot be understood or read without article III.5, which “not only relativizes in the narrower sense the presumption of jurisdiction but also emphasizes elements of modern - cooperative federalism.”142

3.3

Additional Competences of the State: The Curious Case of Bosnia and Herzegovina

Mechanisms for the transfer of competences (article III.5) from entities to the state were meant to be “institutions and mechanism for state reconstruction and reconciliation”—“integrative forces to strengthen the state and to provide for social cohesion.”143 Article III.5 discusses how B&H can expand its competencies without formal constitutional changes. The former president of the CC FB&H, Omer Ibrahimagić, described article III.5 as a “gold mine” of functions and competencies of the institutions of B&H.144 However, as the former CC president, Kasim I. Begić, noted, article III.5 is a norm of a “contractual nature” and “under the current conditions, its practical operationalization is quite questionable.”145 That was the case in 1998 as well as more than twenty years after. The Court has determined that article III.5 (a) distinguishes between “three mutually independent hypotheses”, according to which, B&H shall assume competence for matters that are: (1) Agreed by the entities, (2) Provided for in annexes 5, 6, 7 and 8 to the GFAP,146 (3) Necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of B&H.147 These are called “reserved powers” of the state.148

141

Decision on admissibility and merits in case no U 13/14, para 61. Begić (1997), pp. 299–300. 143 Marko (2006), p. 522; Šarčević (1997), p. 122. 144 Ibrahimagić (1998), p. 13. Ibrahimagić also described article III.5 (a) as a “ore field” which the Constitution hides. Ibrahimagić (1997), pp. 228–229. 145 Begić (1998), p. 27. Also: Trnka (2000), p. 361. 146 Establishing arbitration between the entities, protection of human rights and freedoms, then realization of the rights of refugees and displaced persons, and protection of cultural and historical heritage. 147 Decision in case no U 9/00, para 10; Decision in case no U 26/01, para 21; Decision on admissibility and merits in case no U 6/07, para 17; Decision on admissibility and merits in case no U 11/08, para 22; Decision on admissibility and merits in case no U 1/11, para 68. 148 Marko (2013), p. 291. 142

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“Independent hypotheses” primarily means that the consent of the entities is not required to take over competences in cases under items (2) and (3) above. So, it should be understood that there is a transfer of competence in cases where it is agreed by entities. But, when it comes to matters listed under (2) and (3), we speak about taking over the competences by the state. Assumption of competences under article III.5 (a) is described as a factual constitutional reform, despite being a possibility by the text of formal Constitution. This stands for two reasons: (1) this kind of constitutional reform is not mentioned in the constitutional provision on constitutional amendment and (2) these changes do not affect the text of the Constitution, which remains unchanged.149 Article III.5 cannot be interpreted in a way that the entities have delegated powers to the state and that in this regard the entities are the holders of rights over the goods they own. On contrary, it means that the state “interpreting the true meaning of this article, in specific social circumstances, transferred broad powers to the territorial units - entities, but retained the right to ‘take over competencies in those matters [. . .] that are necessary to preserve’”150 the values referred to in article III.5 (a). Thus, the state could “take back” some of the competencies that it has handed over to the entities in order to achieve some of its constitutional goals.151 The former CC president, Mirsad Ćeman, pointed out that the constitutional court’s interpretation of “additional competencies” is not possible without “constitutional court activism, i.e. [. . .] courageous, extensive, creative and dynamic interpretation of constitutional provisions in favour of protecting constitutional rights and freedoms, but also resolving possible disputes concerning functionality and competencies within Bosnia and Herzegovina.”152 The Court referred to article III.5 (a), in particular to the reason of necessity to preserve values listed in the article in several cases in which it was deciding on the existence of state competence over the following matters: (1) the State Border Service,153 (2) the Public radio and television system,154 (3) old foreign currency savings,155 (4) the subject matter jurisdiction of the Court of B&H156 and (5) state property.157

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Kulenović (2019), p. 205. Vehabović (2006), p. 49. 151 Decision on merits in case no U 14/05, para 49. Opposing opinion by Snežana Savić, former president of the CC: “[. . .] entities have transferred its original competences to the institutions of B&H.” Savić (2000), p. 26. 152 Ćeman (2016), p. 161. 153 Decision in case no U 9/00, para 13. 154 Decision on admissibility and merits in case no U 42/03, para 23. 155 Decision on merits in case no AP 130/04, para 78. 156 Decision on admissibility and merits in case no U 16/08, para 41. 157 Decision on admissibility and merits in case no U 1/11, para 73; Decision on admissibility and merits in case no U 8/19, para 40. 150

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The CC points out that it is clear that the meaning of article III.5 (a) gives jurisdiction with the aim of preserving the international subjectivity of B&H, because “the failure to respect human rights and fundamental freedoms and the failure to fulfil international obligations inevitably leads to international isolation and, through the lack of recognition of the institutions of such a state, to the disappearance of that personality.”158 Regarding the agreement of entities as a technique for the transfer of powers,159 a number of questions remain unanswered. The Constitution does not tell us (1) who the parties are of such an agreement, and more to the point, what is the role of the state, (2) what is the form of the agreement, (3) what is its content, (4) which issues can be transferred and finally (5) can entities withdraw from the agreement.160 The Court’s case-law gives us answers to some of these questions. The formal transfer of competences in the case of article III.5 (a) happens by the agreement between the entities.161 It is necessary that the entities are parties of the agreement, which is not the case for the state. By concluding the agreement, it is understood that the entities have given their consent, which is the constitutional basis for the adoption of laws in a matter that has been transferred to the state level.162 But which entity institution has to give its consent remains unanswered. For the exclusive competences listed in article III.1 there is no constitutional basis established upon which these could be transferred to entities.163 The same goes for the competences transferred by entity agreement as they become exclusive competences of the state.164 When it comes to the subject of such an agreement, since the Constitution does not impose any restrictions, anything can be transferred to the state, either in full or partially. The Court did not question the constitutionality of a partial transfer of competences. Other questions are left to be answered. The Court’s task is to answer them and clarify the body of law concerning article III.5, as it will “inevitably contribute to the stability and sustainability of the many reforms and institutions based or established on the basis of its provisions.”165 Adoption of legislation by an entity in the area transferred to the jurisdiction of B&H, after the agreement was reached by the entities, violates article III.5 (a) of the

158 Decision on merits in case no U 14/05, para 50; Decision on merits in case no AP 164/04, para 92. 159 So far, entities have reached two agreements based on article III.5 (a): agreement on indirect taxation (partial transfer in field of taxation policy) and agreement on defence (full transfer of competence). For details see: Išerić (2017), pp. 31–34. 160 Steiner and Ademović (2010), pp. 595–604. 161 Decision on admissibility and merits in case no U 11/08, para 23. 162 Ibidem. 163 Decision on admissibility and merits in case no U 11/08, para 21. 164 Cases no U 14/04 and U 2/11. See also opinion of OHR: OHR: Transfer of Competency Agreement Withdrawal Legally Questionable, http://www.ohr.int/ohr-transfer-of-competencyagreement-withdrawal-legally-questionable/. 165 Steiner and Ademović (2010), p. 611.

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Constitution because the entity enters the scope of the competence of B&H.166 The constitutionality of the state law is not questioned when the PA in the preamble of the law adopted on the basis of an entity agreement from article III.5 (a), does not mention it, but only refers to article IV.4 (a) which represents “universal competence for passing laws” as there is an indisputable competence of the PA to pass laws.167 In addition to article III.5 (a), article III.5 (b) provides a basis for the transfer of competences. It says: Within six months of the entry into force of this Constitution, the Entities shall begin negotiations with a view to including in the responsibilities of the institutions of Bosnia and Herzegovina other matters, including utilization of energy resources and cooperative economic projects.

This constitutional provision makes the Constitution unique by the fact that it actually encourages, not just recommends, a constitutional change.168 Similar to article III.5 (a), article III.5 (b) leaves us with a number of similar questions,169 in addition to one about the timeline—is it possible to conduct such negotiation after six months have passed? Analysing article III.5 (b), the CC pointed out that the actions to be taken are: entity negotiations and an agreement between the entities entrusting the state of B&H with jurisdiction over a certain issue.170 In several areas, in which there was a transfer of competence by an agreement under article III.5 (b), the constitutionality of laws enacted under such agreements was challenged in such a way that the appellants argued that they were enacted contrary to the entities’ agreement. Thus, an assessment of the compliance of the law with the entity agreement was sought. However, the CC pointed out that it is not competent to assess the compliance of the laws with the agreements because the provisions of such agreements do not form part of the Constitution, and such laws can only be examined in relation to article III.5 (b) of the Constitution.171 Finally, the CC did not find unconstitutional the fact that agreements were reached in negotiations which occurred far later than six months after the Constitution entered into force.172

166

Decision on admissibility and merits in case no U 14/04, para 28. Decision on admissibility and merits in case no U 11/08, para 24. See also Decision on admissibility and merits in case no U 5/11, para 22. 168 Kulenović (2019), p. 210. 169 Based on article III.5 (b), entities concluded following agreements: Agreement on the application of unique methodologies and unique standards in the production of B&H statistical data, Agreement on the transfer of certain competencies of the entities through the establishment of the HJPC B&H and Agreement on Transmission Company and the Independent System Operator. For details see: Išerić (2017), pp. 37–39. 170 Decision on admissibility and merits in case no U 17/05, para 17. 171 Decision on admissibility and merits in case no U 17/05, para 16. 172 Cases no U 17/05 and U 11/08. 167

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Shared Competences

The former CC president, Kasim I. Begić, pointed out that “regardless of the fact that the Constitution does not explicitly specify the joint competence of B&H and the entities, the constitutional provisions nevertheless determine their joint responsibilities on several important issues.”173 In case no U 1/11, the CC recognized the existence of a “common framework or competitive competence of the state and entities”174 and thus recognized the existence of different types of competences, in addition to exclusive ones, in the constitutional law of B&H. The framework law was first introduced by the OHR. The Court referred to it in a Partial decision in case no U 5/98-II, without contesting its constitutionality.175 In the second and fourth partial decisions in case no U 5/98, the Court used the framework laws in order to counteract “segregationist tendencies and disintegrative forces”176 and “to establish a clear constitutional basis for economic integration and, thereby, the integration of the state as such.”177 That is how the Court affirmed “framework legislation” in matters considered to be the exclusive competence of the entities although the Constitution itself does not recognize the concept of framework legislation.178 In addition to finding framework legislation constitutional, the CC in the reasoning of its decision encouraged and suggested the adoption of such laws in matters of human rights and freedoms, old foreign currency savings, civil law, economic system and the use of languages.

3.4.1

Human Rights and Freedoms

Human rights and its protection are “a key part” of B&H’s constitutional order and the “embryo of the future direction of [its] development.”179 In case no U 5/98-II, the

173 Begić (1997), p. 300. See also: Dissenting opinion of Prof. Dr. Joseph Marko in the Partial Decision in the case U 5/98 of 18 and 19 August 2000 With regard to Article 80, para 1, as modified by Amendment XL, item 1, Article 106, para 2 of the Constitution of RS, and Article III.1 a), as modified by Amendment VIII, Article IV.B.7a) (I) through (III) and Article IV.B.8 of the Constitution of Federation of B&H and Marković (2012), pp. 141–142. Today, in constitutional theory and practice, there is no doubt about the existence of joint competencies of the state and the entities. Authors who had claimed that there are no joint competencies of the entities and B&H (see Pobrić (2000), p. 343), later changed their opinion (see Pobrić (2011), p. 81). 174 Decision on admissibility and merits in case no U 1/11, para 68. 175 Partial decision in case no U 5/98-II, para 28. 176 Marko (2006), p. 540. 177 Marko (2006), p. 538. 178 The Human Rights Chamber/Human Rights Commission within the Constitutional Court of B&H in its case-law recognized the existence of concurring competitions. See Decision on merits and admissibility in case no CH/02/12468 and CH/03/15129, para 152. Decisions are available at: http://www.hrc.ba/commission/eng/decisions/index.asp. See also, Ademović (2006), p. 65 and Meškić (2011), p. 115. 179 Vehabović (2016), pp. 123–124.

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CC stated that the general constitutional provision cataloguing human rights “grants a general authority to the joint institutions of B&H to regulate all matters enumerated in the catalogue of human rights, which cannot be exclusively left to the Entities because the protection must be guaranteed to ‘all persons within the territory of B&H’.”180 The supremacy of the state over the entities and the BD, arising from article III.3 (b) enables B&H to take “appropriate measures to enable all persons to enjoy constitutional rights.”181 The CC emphasizes that, in accordance with article II.1 of the Constitution, B&H and the two entities should ensure the highest level of internationally recognized human rights and fundamental freedoms.182 In other words entities are responsible for protecting the constitutional and human rights of all persons in their territory.183 It means that this must be ensured by both the state and the entities adopting appropriate regulations.184 It follows from Annex 6 of the GFAP (Agreement on Human Rights) that the intention of its creators was primarily to provide mechanisms for the protection of human rights and freedoms at the state level. Thus, the state must create a framework for the protection of human rights and freedoms.185 At the end of the day, the state is responsible for human rights violations on the international scene.186 The right to a fair trial and right to property are the rights that were mostly discussed in the Court’s decisions in the context of the division of competences. Article II.3 (e) of the Constitution guarantees all persons on the territory of B&H the right to a fair trial in civil and criminal matters.187 Thus, the state is obliged to organize its legal system in such a way as to ensure compliance with the requirements of Article 6 para 1 of the ECHR, including a request for a trial within a reasonable time.188 The state has the right and obligation to make the system Partial decision in case no U 5/98-II, para 13. “B&H is a state that in its Constitution has opted for respect for human rights and fundamental freedoms.” Decision on admissibility and merits in case no U 9/12, para 22. 181 Decision on merits in case no U 68/02, para 44. 182 See for example: Decision on merits in case no U 5/02, para 21; Decision on merits in case no U 14/02, para 12; Decision on admissibility and merits in case no U 42/03, para 20; Partial decision on merits in case U 4/04-I, para 12; Decision on merits in case no U 14/05, para 47; Decision on admissibility and merits in case no AP 524/04, para 29; Decision on merits in case no AP 994/04, para 17; Decision on merits in case no AP 1070/05, para 31. Decision on admissibility and merits in case no AP 1410/05, para 23. 183 Decision on admissibility and merits in case no AP 2582/05, para 38. 184 Decision on admissibility and merits in case no U 3/08, para 73. 185 Decision on merits in case no AP 130/04, para 87; Decision on merits in case no AP 14/05, para 52. 186 Decision on merits in case no U 18/00, para 39. “[. . .] when a certain issue falls under the exclusive competence of one entity, if it is also a question of human rights and protection, it must be taken into account.” Decision on admissibility and merits in case no U 9/12, para 28. 187 Decision on admissibility and merits in case no AP 311/04, para 24. 188 Decision on admissibility and merits in case no AP 2008/06, para 75; Decision on admissibility and merits in case no U 53/03, para 36. 180

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functionally organized, efficient and to enable everyone to take advantage of this system in determining (among other things) civil rights.189 The right to property has a very important place in the Constitution. It is conditioned by the Preamble, article I.4 and article II.3 (k) of the Constitution. Not only is it an individual right that must be judicially protected from any illegitimate state interference, but it is also an institutional guarantor that is one of the preconditions for the functioning of a market economy.190 B&H and the entities have a constitutional obligation to create the necessary legal framework to specify these constitutional obligations191 as well as “conditions necessary to enjoy this right.”192

3.4.2

Old Foreign Currency Savings

In case no U 3/08, the CC concluded that the protection of property rights falls within the competence of the state and the entities, and therefore, old foreign currency savings, is a matter of “concurrent responsibility, i.e. overlapping of responsibilities of two administrative-territorial levels in charge of regulating and implementing the issue of payment of ‘old foreign currency savings’.”193 Pointing to the competencies of B&H from article III.5 (a), article III.1 (e), and to the obligations of the state from Annex 6 of the GFAP, the CC concluded that B&H is competent to adopt a single law for resolving the issue of old foreign currency savings. Hence, B&H had to regulate this issue with the Framework Law.194 Only then could entities and the BD, within their entrusted powers, regulate this issue in accordance with the principles established by state law.195 In this way, B&H would provide sufficient guarantees to adequately address this issue in accordance with the standards of Article 1 of Protocol No. 1 to the ECHR.196 On the contrary, given its obligations to ensure the highest level of internationally recognized human rights and freedoms, B&H could not rely on the entities and the BD, within their competences in the field of monetary policy, to solve this problem efficiently and effectively.197 Then, the CC pointed out the financing of institutions and international obligations of B&H, emphasizing that the old foreign currency savings represent a large financial obligation, which have direct repercussions for the international

189

Decision in case no U 49/02 para 40; Decision in case no U 149/03, para 40; Decision on admissibility and merits in case no AP 752/04, para 29; Decision on admissibility and merits in case no AP 384/03, para 40. 190 Partial decision in case no U 5-98-II, para 14. 191 Ibidem. 192 Partial decision in case no U 5-98-II, para 13. 193 Decision on admissibility and merits in case no U 3/08, para 73. 194 Decision on merits in case no AP 130/04, para 78. 195 Decision on merits in case no AP 130/04, para 56. 196 Decision on merits in case no AP 130/04, para 53. 197 Ibidem.

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obligations of B&H.198 Thus, the CC believes that the state must regulate this issue in a certain way, on which the success of the planned modality of paying old foreign currency savings will directly depend. The state was not expected to regulate this fully, but in principle, which means: (1) providing guarantees for payment from a certain relevant international capital institution and (2) harmonization of standards throughout the country taking into account the realization of the single market in B&H and the macroeconomic stability of the state. This will lead to the right to property not being endangered in the future, insofar as that the legislation meets the standards imposed by the positive obligation of the state, which derives from Article 1 of Protocol No. 1 to the ECHR.

3.4.3

Civil Law and the Economic System

In case no U 5/98, the CC constructed a specific constitutional order which stated that for a functioning economy, based on a single market and institutional guarantors of private property, it is necessary for the state to pass framework laws and the entities to elaborate them.199 The reason for such an order was that obstacles to the free movement of goods and capital could be created by different legal systems of the entities, with different forms of property or property law regulations. “Such framework legislation should determine, at least, the various forms of property, the holders of these rights, and the general principles for the exercise of property rights in property law that are usually part of the civil law codes in democratic societies.”200 However, the state legislature never acted on the orders of the CC. It only adopted a Framework Law on Pledge.201 Moreover, the PA completely ignored it and when passing the state Law on Obligations, which in accordance with the CC’s position could be passed on the basis of the existing division of competencies between the state and the entities. The PA rejected the Law on the grounds that no agreement was reached on the transfer of competencies from the entities to the state, and to be more precise, because the NA RS did not give its consent. The solvency of the entity is in the interest of the state, because the power of the state and its macroeconomic stability directly depend on it. The state, in order to defend the form and type of its political existence, can and must take all necessary measures. Therefore, the state must ensure the functioning of all competent territorial units in terms of regulated parts of the financial economy which will continue to be 198

Decision on merits in case no AP 130/04, para 45; Decision on merits in case no 164/04, para 88. Later, the CC concluded that the payment of old foreign currency savings does not concern article III.1 (e) of the Constitution, because it is the “internal” debt of B&H towards its own citizens, and not an international obligation of B&H. Decision on admissibility and merits in case no U 3/08, para 76. 199 Marko (2004), pp. 28–29. 200 Partial decision in case no U 5/98-II, para 29. 201 Official Gazette of B&H 28/2004 and 54/2004.

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exposed to major problems and risks (for example, solving the problem of restitution). This can be achieved only by the state establishing by law a single principle for the entire territory, which would be the outcome of economic analysis of the macroeconomic stability of the state in the context of the existing problem.202

3.4.4

Use of Languages

The shared competence of B&H and the entities includes the issue of “effective opportunities for equal use of the Bosnian, Croatian and Serbian languages.” It does not regard only its use in the institutions of B&H, but also in institutions of lower levels of government, in the legislative, executive and judicial authorities and in public life. In the words of the Court: “[. . .] there is an implicit but necessary responsibility of the State of B&H to provide for minimum standards for the use of languages through the framework legislation.”203 However, the PA also failed to act in accordance with this Court’s order.

3.4.5

Balance

The competences of the state and the competences of the entities are not defined only in article III.1 or article III.5 (a). Article III does not bring the whole truth about the division of competencies between the entities and the state. Doubts about the existence of competences must be considered in the entirety of the Constitution. That derives from the Constitution itself.204 Considering the Constitution, it can be concluded that it gives “very little power to the state”, but offers very broad powers to “take over all the competencies necessary for the state to guarantee the application of constitutional and legal principles, human rights or preserve its statehood in the broadest sense of the word both externally and internally.”205 Through its case-law, the CC firstly affirmed the existence of exclusive competencies of B&H outside the framework of article III.1, then introduced the shared competencies of B&H and the entities based on the framework legislation. We can say that the CC has fulfilled its role as an institutional guarantor of the division of competencies in B&H constitutional law. Based on a brief review of CC’s decisions, it can be concluded that the CC deserves credit for the progress the central government has made, which previously was referred to as the weakest one in the world.

202

Decision on merits in case no AP 130/04, para 73. Partial decision in case no U 5/98-IV, para 34. 204 In a number of places, the Constitution speaks about entrusted competences and powers by the Constitution, not just by article. See: Constitution, article III.3 (a); article III.4. 205 Ademović (2006), p. 67. 203

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4 Conclusion Just like in any other case, B&H federalism is constantly in motion.206 It has gone through a development from dual federalism to a cooperative federalism.207 This development has been under the constant overview of the Court. In that process, not a single state law was found to be unconstitutional due to violating constitutional provisions of competence division. In contrast, a number of entity laws, mainly those of RS, were found unconstitutional on that basis. In addition, the CC added fuel to the development of federalism through its decisions and evolution of the case-law. As previously pointed out, the CC not only confirmed the constitutionality of the framework legislation, but it also affirmed and ordered the state to enact a whole range of framework laws. In this way, the CC encouraged the development of shared competences of the state and the entities, which are not explicitly listed as such in the Constitution. Although the Constitution was supposed to be a transitional document,208 it turned out to be almost immutable. That emphasises even more the role of the Court. A strong and independent CC, as an institution that guards the Constitution209 and ensures its effective protection,210 is essential in B&H (which is marked by entity dominance and a relatively weak central government) to ensure that central institutions and the integrity of the Constitution are not compromised.211 Its strength, but also its reputation and respect by the public, springs from the quality of its decisions and its independence. The quality of decisions is the only shield against its politicization. As argued, the quality of CC decisions is questionable in some cases, especially those in which the CC has been changing its previous case-law. In such cases, the CC must argue in detail the reasons for the change. At the same time, to the extent that it has demonstrated “judicial activism”, a “principled and courageous search for and standing behind the normative capacity, real scope and possible meaning of the constitutional text”,212 the CC has remained passive. One example is the failure to introduce the unwritten principle of federal loyalty. The sensitive matter of foreign policy is the best example of the matter where the CC had to rely on the principle of loyalty when resolving constitutional disputes. This principle is of particular importance for the constitutional law of B&H, given that there is no mechanism to ensure the obedience of the entities and

206

Benz and Broschek (2013), p. 7. Burgess (2012), p. 41; Balić (2020), pp. 34–35; Marković (2012), p. 378. 208 Morrison (1996), p. 145. 209 Decision on admissibility and merits in case no U 106/03, para 34. 210 Decision in case no U 1/98; Decision in case no U 25/00; Decision on admissibility and merits in case no U 24/03, para 47; Decision on admissibility and merits in case no U 5/09, para 22. 211 Decision on admissibility and merits in case no U 6/06, para 29; Burgess (2012), p. 41. 212 Tadić (2017), p. 10. 207

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efficient implementation of B&H laws, strengthen the state government and the rule of law.213 However, in general terms, the CC has managed to respond to the challenges posed by B&H’s complex form of government, ensuring the supremacy of B&H, the constitutional division of competences between B&H and the entities, and protecting the central government from disobedience and the encroachment of entities. The other side of the CC’s work is the neglect and failure of the legislator to implement the Court’s orders. Although the legislature has enforced most CC decisions, it has failed to read their reasoning and act on CC orders outside the dictum itself. Bosnian politicians as well as the international community, failed to use the CC decisions as a legal platform for political action aimed at strengthening B&H’s central government and institutions and to empower B&H for EU and NATO integration. That revolutionary capacity of CC decisions has remained unused and the potential of B&H federalism has been weakened and turned into a tool for unconstitutional blockades.

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213 Illustration for it is NA RS ignoring and acting contrary to the Decision on the temporary measure in case no U 10/16. See: Decision on admissibility and merits in case no U 10/16.

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Harun Išerić is teaching and research assistant at the Faculty of Law of University of Sarajevo. His research interests lie in constitutional law, constitutional judiciary, human rights law, administrative law, federalism and transitional justice.

Part III

Minority Rights

Protection of Human Dignity, Plural Democracy and Minority Rights in the Case Law of the Constitutional Court of Slovenia Jernej Letnar Černič

Abstract Human dignity, plural democracy and minority rights are the backbones of the constitutional democracy in Slovenia. Constitutional democracy aims in theory to protect the rights of minority social groups against the interests of the majority. It limits the power of the majority by insisting on the protection of constitutional values and principles. The Slovenian constitutional democracy was founded on the values of human dignity, freedom, equality, solidarity and pluralism. The Constitutional Court of Slovenia has in the past decades delivered several seminal decisions relating to the values of pluralism, tolerance and broadmindedness. However, not much if anything has been published as to the reasons and judicial ideology behind those judgements. What triggers constitutional judges to protect in some cases the rights of the minority and in others to safeguard the interests of the majority? This contribution is based on the research project titled “Ideology in the Courts: the Influence of Judges’ Worldviews on their Decisions”. The aim is to empirically measure the presence of three-fold judicial ideology at the Constitutional Court of Slovenia. The research group has in the course of the project developed a three-fold methodological and theoretical model aimed at measuring judicial ideology. In doing so, the research group has empirically measured decisions and separate opinions from selected periods of the first three mandates of the Slovenian Constitutional Court. As a result, the objective of this contribution is to present the results of measuring ideological profiles of the Court and its individual

This chapter has been written under auspices of the research project “Ideology at Courts: The Influence of Judges’ World-views on Their Decisions”, Slovenian Research Agency (2017–2021), J5-8240 (A) and the research project “Holistic Approach to Business and Human Rights: A Normative Reform of Slovenian and International Legal Order”, Slovenian Research Agency (2019–2022, no. JP-1790). This chapter is based on Matej Avbelj, Polona Batagelj, Maja Cigoj, Jernej Letnar Černič, Ana Jevšek Pezdir, Janez Šušteršič, Snežana Šušteršič, Katarina Vatovec, Ideologija na sodiščih, Nova Gorica, Nova univerza, 2021. J. Letnar Černič (*) Faculty of Government and European Studies, European Faculty of Law, New University, Ljubljana/Kranj, Slovenia © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_8

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judges relating to the social dimension of judicial ideology. The empirical results illustrate that all three mandates of the Constitutional Court attempted, in their decision-making concerning the social dimension of judicial ideology, to protect the values of pluralism, tolerance and broadmindedness as the pillars of any constitutional democracy.

1 Introduction Human dignity, plural democracy and minority rights are the backbones of the constitutional democracy in Slovenia. Constitutional democracy aims in theory to protect the rights of minority social groups against the interests of the majority. It limits the power of the majority by insisting on the protection of constitutional values and principles. Slovenian constitutional democracy was founded in 1991 on the values of human dignity, freedom, equality, solidarity and pluralism. Those are the principal constitutional values that portray the qualities of modern day Slovenian society.1 As a rule, they curtail the power and interests of not only governing institutional elites, but also informal networks.2 On one hand, its highest normative documents such as its Constitution protect the values of constitutional democracy.3 The Slovenian Constitution is a textbook example of a modern constitutional text based on constitutional democracy.4 On the other hand, the enforcement on those values has been lacking on the practical level. Several commentators have contended that constitutional values have not been internalized in Slovenian society. Slovenian constitutional democracy has been, since its creation, a textbook example of a flawed and deficient constitutional democracy.5 Protection of minority rights is the backbone of the state based on the rule of law. A serious constitutional democracy cannot turn a blind eye to the concerns, interests and rights of minorities. Constitutional democracies traditionally protect minorities through individual and collective rights. They have introduced protective measures of militant democracy to protect minorities from the excessive powers of the majority.6 Majoritarian groups and populist politicians, on the other hand, argue that the popular will takes precedence over every constitutional value and principles. In their opinion, in each and every case the wishes of the majority trump the will of

Avbelj and Letnar Černič (2020); Uzelac (2010), Avbelj et al. (2021). Zobec and Letnar Černič (2015). 3 See, for example, Bugarič and Kuhelj (2015); Zyberi and Letnar Černič (2016); Accetto (2007); Beširević (2014); Hodžić (2010); Letnar Černič and Avbelj (2018). 4 Constitution of the Republic of Slovenia, (Official Gazette of the Republic of Slovenia, št. 33/91-I, 42/97 – UZS68, 66/00 – UZ80, 24/03 – UZ3a, 47, 68, 69/04 – UZ14, 69/04 – UZ43, 69/04 – UZ50, 68/06 – UZ121,140,143, 47/13 – UZ148, 47/13 – UZ90,97,99 in 75/16 – UZ70a). 5 Czarnota et al. (2005); Letnar Černič (2018a, b); Avbelj (2018a, b). 6 Letnar Černič (2020a); Letnar Černič (2018c). 1 2

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the minority. The protection of the values of human dignity and constitutional democracy is not self-explanatory in the Slovenian system. The Slovenian Constitutional Court has observed in its earlier case law that “the former Yugoslav, and within its framework the Slovenian constitutional and state institutional system, in contrast with this tradition of European legal civilisation, did not put forward human rights and did not pose clear legal restrictions on the state authority and its tyranny. Therefore, it opened up possibilities for arbitrary power, and its Constitution was not a fully legal document in the sense of a modern European legal civilisation.”7 It added that the constitutional values of Slovenian Constitutional democracy “[. . .] do not originate only in historical experience of the international and in particular the European legal civilisation based on democracy and human rights, but also in the particular Slovenian democratic and historical experience and tradition of spiritual and public opposition to the former system of hegemony of the monopolistic political party. [. . .] the historical mission of the Slovenian Constitution is to prevent every attempt to re-establish totalitarianism, whereas the most important direct aim of the Constitution is to protect the basic human rights and fundamental freedoms of everyone here and now.”8 This contribution empirically examines the protection of human dignity, plural democracy and minority rights in the case law of the Constitutional Court of Slovenia and draws conclusions as to the relationship between the protection of the rights of minority and majority social groups in Slovenia. The Constitutional Court of Slovenia has in the past decades delivered several seminal decisions relating to the values of pluralism, tolerance and broadmindedness. However, not much if anything has been published as to the reasons and judicial ideology that triggered such judgements. What causes constitutional judges to protect in some cases the rights of the minority and in other cases the interests of the majority? If the authoritarian dimension of judicial ideology measures the protection of human rights in the vertical relationship between individual and state authorities then the social dimension of judicial ideology measures the protection of human rights in the horizontal relationship between individuals and private actors. Human rights and fundamental freedoms do not only apply only to vertical relationships between individuals and state, but also horizontally.9 The Slovenian Constitutional Court carries positive obligations to also protect human rights in the private sphere. As a result, it is also obliged to protect the rights of minorities as one of the foundations of constitutional democracy. This contribution accordingly examines the social dimension of judicial ideology of the Slovenian Constitutional Court. It addresses the relationship between individual and collective interests. It does not deal with the authoritarian dimension of judicial ideology, which measures relationships between individual rights.

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Constitutional Court of the Republic of Slovenia, U-I-109/10, 26 September 2011, para. 17. Ibidem. 9 Letnar Černič (2020b); Zobec (2015); Letnar Černič et al. (2018). 8

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The judiciary is the institution that ensures the procedural protection of human rights and fundamental freedoms in a state governed by the rule of law. In the Slovenian legal and democratic state, the Constitutional Court is the last defender of the rule of law, human rights and fundamental freedoms. At the beginning of the existence of the independent and sovereign Slovenian democratic state, the first term of office of the Constitutional Court established formal legal standards of constitutional democracy and the rule of law. As a result, it engineered the process of internalizing fundamental values in the Slovenian constitutional democracy. The Slovenian constitutional court consists of nine judges elected by the National Assembly on the recommendation of the President of the Republic. Judges of the Constitutional Court come from a variety of legal specialities and social and family backgrounds.10 They come to Beethovnova street 10 in Ljubljana, where the Constitutional Court is located, as already formed personalities. Their legal thinking is shaped and conditioned by their family and professional environment, friendships and personal interests. The persons who hold the position of constitutional judges are therefore not blank pages, but mature persons with an established ideology, including a judicial one, which influences their judicial decision-making. As a rule, judges are not robots that decide cases based on computer algorithms.11 They are shaped by their environment, experiences, emotions and other factors, which are thus reflected in most of their decisions at the Constitutional Court. Judicial ideology is therefore a reality and not a myth.12 Not much has been so far written on the judicial ideology at the highest courts in Central and Eastern Europe.13 This contribution is based on the research project on “Ideology in the Courts: the Influence of Judges’ Worldviews on their Decisions”. Its aim is to empirically measure the presence of three-fold judicial ideology at the Constitutional Court of Slovenia. The research group has in the course of the project developed a three-fold methodological and theoretical model aimed at measuring judicial ideology. In doing so, the research group empirically measured decisions and separate opinions from selected periods of the first three mandates of the Slovenian Constitutional Court. As a result, the objective of this contribution is to present the results of measuring the ideological profiles of the Court and its individual judges relating to the social dimension of judicial ideology. The empirical results illustrate that all three mandates of the Constitutional Court attempted in their decision-making concerning the social dimension of judicial ideology to protect the values of pluralism, tolerance and broadmindedness as the pillar of any constitutional democracy.

Avbelj (2019); Avbelj and Šušteršič (2019); Avbelj et al. (2018, 2020). Kleinberg et al. (2018). 12 Letnar Černič (2019). 13 Hönnige (2010); Kantorowicz and Garoupa (2016); Pócza et al. (2017). 10 11

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2 Methodology This contribution discusses the relationship between the interests and rights of minority and majority social groups. As a part of the project, we have developed a multidimensional methodological approach that enables the measurement of judicial ideology in the Slovenian Constitutional Court within its economic, social and authoritarian dimensions.14 Such an approach made it possible to measure various aspects and nuances of decision-making in the Slovenian Constitutional Court.15 We examined and coded the most important decisions in the selected five-year periods of the first three terms of the Constitutional Court, the first term (1993–1997), the second term (2002–2006) and the third term (2011–2016). Thereafter, we selected around twenty of the most important decisions from each of the selected years of its three mandates. The decisions were chosen for their importance, as established in the annual reports of the Constitutional Court and other criteria. Avbelj and Šušteršič explained in more detail that the decisions were selected on the basis of the following criteria: “Decisions declared significant by the Court in their annual reports”; “Decisions not taken unanimously or with the consent or inconsistency of dissenting opinions”; “Decisions on important legal and social issues relating to our definition of the three ideological dimensions”, “decisions of a preliminary nature or with significant social consequences”; and “decisions related to highly controversial issues in political and public debates”.16 A total of 336 decisions of the Slovenian Constitutional Court were examined, coded and evaluated. After the selection, we first examined whether the decisions included the economic, social, and authoritarian dimension of judicial ideology or all of them. Some of the decisions included all three dimensions, namely economic, social and authoritarian dimensions; others had only one or two. However, all decisions included at least one dimension of judicial ideology. More specifically, in the first mandate 47 out of 102 decisions also included the social dimension, in the second 52 out 108, and 49 out 126 in the third. Empirical data were in this way obtained for each of the dimensions. We then proceeded to manually encode each dimension with an ideological position in the range of 1 to 5, from one end of the ideological range concerning social dimension to the other. The ideological positions of the opposing decisions were also manually coded. In this way, we used a multi-stage peer review process to ensure quality control and the relevance of the ideological positions that were given to each decision. Ideological positions for each selected decision were manually coded by a member of the research team, who then sent their assessment to another member of the research team. In the case of a disagreement between the author of the assessment of the individual decision of the Constitutional Court and the reviewer, the draft was then discussed at regular sessions of the research group. All researchers then read the 14 Bailey (2016); Pócza et al. (2019); Cross and Tiller (1998); Epstein (2016); Garoupa (2010); Bader Ginsburg (2010); Grossman (1966); Hanretty (2014); Harris and Sen (2019). 15 Avbelj and Šušteršič (2019). 16 Avbelj and Šušteršič (2019), p. 148.

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draft report and the reviewer’s opinion, with all researchers then voting on the proposed position and then unanimously adopting it in most cases. The present contribution presents and analyses only the results that relate to the social dimension of judicial ideology in the first three mandates of the Constitutional Court. The social dimension of judicial ideology, as explained in the table below, measures whether a judge has been more in favour of protecting the human rights of minority social groups (position 1) or prefers to protect the rights and interest of the majority (position 5). The middle ideological position 3 illustrates the balance between the rights of the minority social groups and the interests of majority social groups. The social dimension measures the horizontal relationship between the rights and interests of minority social groups and the collective interests of the majority. Ideological position 1 is traditionally associated with leftist political movements. On the other hand, ideological position 5 is associated with rightwing ideological positions, whereas the middle position represents the centrist position between the interests and rights of minority social groups and the collective interests of the majority. The measurement of judicial ideology has taken place in several stages. For example, a decision on freedom of religion was coded at ideological position 1 or 2 if the Constitutional Court protected the rights and interests of a religious minority against the interests of majority social groups. On the contrary, the decision would have been placed at ideological position 4 or 5 if the Constitutional Court decided to protect the collective interests of the majority. Ideological positions 1 or 5 denote an extreme ideological position, whereas positions 2, 3, and 4 illustrate more balanced ideological positions. Table 1 below further explains different ideological positions.

3 Measuring Ideological Profiles and Ideal Points of the Slovenian Constitutional Court Concerning the Social Dimension of Judicial Ideology This section measures and presents results concerning ideological profiles and ideal points of the judges of the Constitutional Court concerning the social dimension. It describes and explains the ideological profiles of all three mandates of the Slovenian Constitutional Court (1993–1997, 2002–2006, 2011–2016) and its judges concerning the social dimension of judicial ideology. It first discusses and presents ideological profiles and ideal points of individual mandates of the Constitutional Court concerning social dimension. Within a discussion on the judicial ideology of the individual mandate, it also presents and analyses ideological profiles and ideal points of the individual judges of the Constitutional Court concerning the social dimension. Empirical results have produced a very clear picture of the judicial ideology of individual mandates and judges concerning the social dimension. They illustrate how all three mandates of the Constitutional Court have formed their judicial-decision making concerning protections of the rights of majority and

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Table 1 Explanation of ideological positions of the social ideological dimension of judicial ideology Ideological position 1

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Social ideological dimension This position reflects strong preference for the individual and collective rights of minority social groups in their relationship with the majority. The rights of the prevailing social groups are of secondary importance. Human rights and fundamental freedoms of minority groups enjoy preference over the collective interests of society. The state is not justified to limit absolute rights such as the right to life, the prohibition of torture and the prohibition of forced and slave labour, and it can only infringe upon relative rights when it is legitimate and necessary in a democratic society. This position reflects a moderate preference for individual and collective rights of minority social groups in their relationship with the majority. Nonetheless, collective rights of minority social groups do not enjoy absolute preference over the rights of the majority. Collective interests can prevail if their application is legitimate and necessary in democratic society. The horizontal relationship between the collective interests of minority and majority social groups can be determined through the application of proportionality principle. This position reflects a centrist approach in the relationship between the collective interests of minority and majority social groups. It illustrates a balance between interests and rights of both groups by paying attention to the values of constitutional democracy. This position shows that the Constitutional Court and its judges has favoured a reasonable balance between the rights and interests of minority and majority. This position reflects a moderate preference for the individual and the collective rights of majority in their relationship with minority social groups. Nonetheless, collective rights of majority social groups do not enjoy absolute preference over the rights of minorities. Rights and interests of majority social groups can prevail if their application is legitimate and necessary in democratic society. The horizontal relationship between the collective interests of minority and majority social groups can be determined through the application of proportionality principle. This position reflects a strong preference for the individual and the collective rights of majoritarian social groups in their relationship with the minority social groups. The rights of the minority social groups are of secondary importance. Human rights and fundamental freedoms of majority social groups enjoy preference over the collective interests of minority social groups. The state is justified to limit the relative rights of minority social groups in order to protect the collective interests of majoritarian social groups in society.

Source: Author’s own

minority social groups. They show whether judges have more often protected either minority rights or have shown greater preference for the protection of majority interests. In this way, such results portray the judicial attitude of the Slovenian Constitutional Court towards implementation of the social dimension of judicial ideology. As a result, they illustrate the degree of respect for constitutional democracy in the Slovenian legal system.

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3.1

The First Mandate of the Constitutional Court (1993-1997)

The ideological profile and ideal points for the first mandate of the Constitutional Court concerning the social dimension of judicial ideology are located at 2,7 ideological points. Such positions illustrate that the first mandate slightly favoured the rights of the minority over majority rights and interests. The highest number of decisions were coded at the positions 1 and 3 and the lowest at the position 5 and 2. The data illustrates that the first mandate of the Constitutional Court was located slightly to the right of the middle of the possible ideological positions concerning the social dimension of judicial ideology. Most of the judges of the first mandate also shared the ideological profile and ideal points. Such an ideological position has revealed that in general the first mandate attempted in its judicial decision-making to protect the rights and interests of majority social groups over those of minority groups. Nonetheless, their ideological positions are not extreme as they are located close to the centre. In other words, the first mandate could have in their judicial decision-making taken an even more favourable position towards protection of minority social groups and could have even better strengthened constitutional democracy. In comparison to the second and third mandates of the Constitutional Court, the first mandate has been located slightly to the right of the middle of the possible ideological positions concerning the social dimension of judicial ideology, whereas the second and third mandates were more left of the middle. However, one can explain such an ideological profile by the period of the functioning of the first mandate. More specifically, the first mandate of the Constitutional Court had to introduce the formal standards of constitutional democracy in the Slovenian legal order and was perhaps more preoccupied with the protections of individual rights against state authorities than with safeguarding the rights of minority social groups (Figs. 1 and 2). The ideological profile and ideal points of Judges Krivic and Šinkovec of the first mandate of the Constitutional Court concerning the social dimension of judicial ideology are located slightly to the left of the ideological spectrum (both at position 2.6). Even though their ideological positions are located to the left, they are still located closely to the centre. The highest number of their decisions were coded at the positions 1 and 2, thereby suggesting perhaps a more left of the centre ideological approach concerning the social dimension of judicial ideology as it is seen from the average score. The lowest number of their decisions are located at position 4 and 5. Their decisions that were placed at position 1 were quite higher than the number of decisions coded at position 5. On the contrary, the ideological profile and ideal points of Judges Ude and Testen of the first mandate of the Constitutional Court concerning the social dimension of judicial ideology are located close to the centre of the ideological spectrum (at the positions 2.9 and 2.8 respectively). The highest numbers of their decisions have been coded and placed and positions 2 and 4 for both judges. Their ideological positions show that they have slightly favoured the rights and interests of the majority over the

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minority. Such decision-making is seen from the fact that the ideological points of both judges Ude and Testen are almost equally distributed with most of their decisions located at position 2. Figure 2 shows that Judge Testen was in his judicial-decision making slightly less inclined towards protecting the rights of the majority than judge Ude. Nonetheless, he is still located to the right of the ideological spectrum. This position illustrates that he also slightly favoured the rights of majority over minority rights. Nonetheless, the empirical research shows that judges of the first mandate of the Constitutional Court have been in the majority located close to the middle of the possible ideological positions concerning the social dimension of judicial ideology. Their ideological profile and ideal points concerning the social dimension of judicial ideology suggests that the first mandate favoured the centrist approach, however it was nevertheless located slightly to the left of the ideological spectrum. Such an ideological profile and ideal points are in contrast with the ideological profile and points of the second and third mandates, which appear to have slightly favoured rights of minority social groups over those of majority groups.

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The Second Mandate of the Constitutional Court (2002-2006)

The ideological profile and ideal points for the second mandate of the Constitutional Court concerning the social dimension of judicial ideology are located at 2,1 ideological points. This position illustrates that the second mandate slightly favoured the rights of minorities over majoritarian and collective interests. The highest number of decisions were coded at the positions 2 and 1 and the lowest at the

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Fig. 2 Ideological profile and ideal points of selected judges of Constitutional Court (1993–1997) concerning the social dimension of judicial ideology. (a) Ideological profile and ideal points of Judge Krivic of the Constitutional Court (1993–1997) concerning the social dimension; (b) Ideological profile and ideal points of Judge Šinkovec of the Constitutional Court (1993–1997) concerning the social dimension; (c) Ideological profile and ideal points of Judge Ude of the Constitutional Court (1993–1997) concerning the social dimension; (d) Ideological profile and ideal points of Judge Testen of the Constitutional Court (1993–1997) concerning the social dimension (The author of the Fig. 2 is Janez Šušteršič, a member of the research project “Ideology in Courts: The Influence of Judges’ Worldview on Their Decisions”, no. J5-8240 (A), co-financed by the Public Agency for Research of the Republic of Slovenia. He drafted the figures on the basis of empirical data produced by the research group as whole)

positions 5 and 4. The number of decisions that were placed at positions 2 and 1 was several times the number of decisions coded at the ideological positions 4 and 5. Such a disproportionate number of decisions coded at positions 1 and 2 appears to show that the second mandate has protected the minority interests and rights to an even higher degree than that of the average of ideological points of 2.2. The data illustrate that the second mandate of the Constitutional Court has been located

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Fig. 3 Ideological profile and ideal points of the Constitutional Court (2002–2006) concerning social dimension of judicial ideology (The author of the figure is Janez Šušteršič, a member of the research project “Ideology in Courts: The Influence of Judges’ Worldview on Their Decisions”, no. J5-8240 (A), co-financed by the Public Agency for Research of the Republic of Slovenia. He drafted the figure on the basis of empirical data produced by the research group as a whole)

slightly to the left of the middle of the possible ideological positions concerning the social dimension of judicial ideology. Most of the judges of the third mandate also shared this ideological profile and ideal points. Such an ideological position reveals that most judicial decisions of the second mandate attempted to protect the rights and interests of minority social groups over those of the majority (Figs. 3 and 4). The ideological profile and ideal points of Judges Škrk and Wedam Lukić of the third mandate of the Constitutional Court concerning the social dimension of judicial ideology are located to the left of the ideological spectrum (at positions 2.0 and 2.1 respectively). Even though their ideological positions are located to the left, they are still located close to the centre. The greatest number of their decisions were coded at positions 1 and 2, thereby reaffirming perhaps a more left of the centre ideological approach concerning the social dimension of judicial ideology as it is seen from the average score. The smallest number of their decisions were located at the position 4 and 5. Judge Škrk has been among judges in all mandates, the one whose decisionmaking has been the furthest to the left concerning the social dimension of judicial ideology. The decisions of judges Škrt and Wedam Lukić that were placed at positions 1 and 2 were almost ten times higher than the number of decisions coded at positions 4 and 5. Such a disproportionate number were coded at positions 1 and 2 appears to show that the second mandate protected minority interests and rights to an even higher degree than that of the average of ideological points of 2.0 and 2.1 respectively. On the contrary, the ideological profile and ideal points of Judges Modrijan and Čebulj of the second mandate of the Constitutional Court concerning the social dimension of judicial ideology are located slightly to the left of the ideological spectrum (both at position 2.3.). The highest numbers of their decisions have been coded and placed at positions 2 and 1. Their ideological positions showed that they have slightly favoured the rights and interests of minority social groups over the

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Fig. 4 Ideological profile and ideal points of selected judges of the Constitutional Court (2002–2006) concerning the social dimension of judicial ideology. (a) Ideological profile and ideal points of Judge Škrk of the Constitutional Court (2002–2006) concerning the social dimension; (b) Ideological profile and ideal points of Judge Wedam Lukić of the Constitutional Court (2002–2006) concerning the social dimension; (c) Ideological profile and ideal points of Judge Modrijan of the Constitutional Court (2002–2006) concerning the social dimension; (d) Ideological profile and ideal points of Judge Čebulj of the Constitutional Court (2002–2006) concerning the social dimension (The author of the Fig. 4 is Janez Šušteršič, a member of the research project “Ideology in Courts: The Influence of Judges’ Worldview on Their Decisions”, no. J5-8240 (A), co-financed by the Public Agency for Research of the Republic of Slovenia. He drafted figures on the basis of empirical data produced by the research group as a whole)

majority. Such decision-making derives from the fact that the ideological points of both judges Modrijan and Čebulj are almost equally distributed with most of their decisions located at position 2. In contrast, the lowest number of their decisions are

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located at position 5. Their decisions that were placed at positions 1 and 2 were much higher than the number of decisions coded at positions 4 and 5. Figure 4 show that judges Modrijan and Čebulj were in their judicial-decision making slightly less inclined towards protecting rights of minority social groups. Nonetheless, the empirical research shows that the majority of judges during the second mandate of the Constitutional Court have been located slightly to the left of the middle of the possible ideological positions concerning the social dimension of judicial ideology. Their ideological profile and ideal points concerning the social dimension of judicial ideology suggest that the second mandate favoured a balanced approach. Such an ideological profile and ideal points are in contrast with the ideological profile and points of the first mandate, which appears to have slightly favoured the rights of majority social groups.

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The Third Mandate of the Constitutional Court (2011–2016)

The ideological profile and ideal points for the third mandate of the Constitutional Court concerning the social dimension of judicial ideology are located at the average number of 2,1 ideological points. This position illustrates that the third mandate slightly favoured the rights of minority social groups over majoritarian and collective interests. The highest number of decisions was coded at positions 1 and 2 and the lowest at the position 5 and 4. The number of decisions that were placed at positions 1 and 2 were much higher than the number of decisions coded at positions 4 and 5. Such a disproportionate number coded at positions 1 and 2 appears to show that the third mandate protected the minority interests and rights to an even higher degree that follows from the average of ideological points of 2.2. The data illustrate that the third mandate of the Constitutional Court has been located slightly to the left of the middle of the possible ideological positions concerning the social dimension of judicial ideology. Most of the judges of the third mandate also shared this ideological profile and ideal points. This ideological position reveals that in most decisions judicial decision-making of the third mandate attempted to protect the rights and interests of minority social groups over those of the majority. Nonetheless, their ideological positions are not extreme as they are close to the centre. In other words, the third mandate could possibly have in their judicial decision-making taken an even more progressive approach than the previous mandates by protecting rights of minority social groups and values of constitutional democracy (Figs. 5 and 6). The ideological profile and ideal points of Judges Sovdat and Zobec of the third mandate of the Constitutional Court concerning the social dimension of judicial ideology are located slightly to the left of the ideological spectrum (at positions 2.1 and 2.2 respectively). The greatest numbers of their decisions have been coded and placed at positions 1 and 2. Their ideological positions point out that they have slightly favoured the rights and interests of the minority over the majority. Such

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decision-making derives particularly from the ideological points of Judge Sovdat as most of her decisions are located at ideological position 1. The number of their decisions that were placed at position 1 were several higher than the number of decisions coded at position 5. Figure 6 shows that Judge Deisinger has been in his judicial-decision making slightly less inclined towards protecting the rights of minority social groups. Nonetheless, he is still located to the left of the centre of the ideological spectrum. Such a position illustrates that he also slightly favours the rights of minority social groups over majoritarian and collective interests. The greatest number of voting patterns of Judges Sovdat, Zobec and Desinger were coded at positions 1 and 2 and the least at positions 5 and 4. In contrast, the ideological profile and ideal points of Judge Klampfer concerning social dimension are located slightly to the right of the ideological spectrum (at position 2.8). The greatest number of her decisions were coded at the positions 2 and 4, suggesting a balanced ideological position concerning the social dimension of judicial ideology. By contrast, the fewer number of her decisions are located at positions 3 and 5. Nonetheless, the empirical research shows that judges of the third mandate of the Constitutional Court are generally located slightly to the left of the middle of the possible ideological positions concerning the social dimension of judicial ideology.

4 Empirical Lessons from the Case Law of the Slovenian Constitutional Court The Slovenian Constitutional Court in its first three mandates has constructed solid normative foundations for the protection of human dignity, plural democracy and minority rights. Our empirical research shows that all three mandates of the

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Fig. 6 Ideological profile and ideal points of selected judges of Constitutional Court (2011–2016) concerning the social dimension of judicial ideology. (a) Ideological profile and ideal points of Judge Sovdat of the Constitutional Court (2011–2016) concerning the social dimension; (b) Ideological profile and ideal points of Judge Zobec of the Constitutional Court (2011–2016) concerning the social dimension; (c) Ideological profile and ideal points of Judge Klampfer of the Constitutional Court (2011–2016) concerning the social dimension; (d) Ideological profile and ideal points of Judge Deisinger of the Constitutional Court (2011–2016) concerning the social dimension (The author of the Fig. 6 is Janez Šušteršič, a member of the research project “Ideology in Courts: The Influence of Judges’ Worldview on Their Decisions”, no. J5-8240 (A), co-financed by the Public Agency for Research of the Republic of Slovenia. He drafted figures on the basis of empirical data produced by the research group as a whole)

Constitutional Court have been clearly ideological in their decision-making concerning the social dimension of judicial ideology. Our research points out that judicial ideology has represented an important factor in judicial decision-making at the highest levels. The examination of all the selected decisions by the Constitutional Court illustrates that all three examined mandates found themselves somewhere in

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the middle of the ideological spectrum between the protection of minority rights and the preservation of collective interests of majority social groups. Our research discovered that the first mandate of the Constitutional Court was located close to the middle of the possible ideological positions concerning protections of rights and interests of minority and majority social groups. By contrast, our empirical results illustrate that the second and third mandates of the Constitutional Court have been located slightly to the left of the middle of the possible ideological positions concerning the social dimension of judicial ideology. The judges of those two mandates appear to have been more inclined to protect the rights of minorities against those of the majority. More specifically, the empirical research shows that judges of the second mandate of the Constitutional Court have generally been located slightly to the left of the middle of the possible ideological positions concerning the social dimension of judicial ideology. Their ideological profile and ideal points concerning the social dimension of judicial ideology suggest that the second mandate was the most in favour of the protection of rights of minority social groups over majority rights. More specifically, Judge Škrk of the second mandate has been among judges of all three mandates, the one whose decision-making has been the furthest to the left concerning the social dimension of judicial ideology. Her decisions placed at positions 1 and 2 were several times higher than the number of decisions coded at positions 4 and 5. It is perhaps unexpected that the first mandate was less inclined to protect the rights and interest of minority social groups. The first mandate of the Constitutional Court is known in the literature to have established the formal standards of constitutional democracy.17 It engineered the break from the former totalitarian regime and centred the newly-formed constitutional system on the value of human dignity.18 Nonetheless, it was perhaps overly preoccupied with the construction of formal standards that it did not pay adequate attention to the protection of the interests and rights of minority social groups. By contrast, the second and third mandates of the Constitutional Court showed a slight preference towards the rights and interests of minority social groups against the interest of the majority. The second (2002–2006) and third mandates (2011–2016) of the Constitutional Court have been, therefore, a bit more favourable towards the protection of the rights and interests of minority social groups than the first mandate. Even though they have been located close to the ideological centre of the social dimension of judicial ideology, they have leaned slightly to the left. Such results can be interpreted as the judges of the second and third mandates have at least attempted to internalize the values of constitutional democracy, among them most importantly, the relationship between the rights and interests of minority and majority social groups. The Slovenian constitutional democracy has, over the last three decades, struggled to translate values and principles of the rule of law and constitutional

17 18

Zobec (2015); Avbelj (2018a, b). Avbelj and Letnar Černič (2020).

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democracy from normative frameworks into practice.19 In this process much depends on persons working and holding public functions in state institutions and public administration. Our results pinpoint in this way that the Constitutional Court as the supreme guardian of the constitution has attempted to implement constitutional standards not only on the normative level, but it has attempted to translate them into practice. The interests of the majority have not in any of the three mandates of the Constitutional Court trumped the rights and interests of minority social groups. As a result, one can conclude that the process has been at least partially successful as the Constitutional Court has attempted to protect Slovenian constitutional democracy through constitutional values and principles. What is required is not only that the Constitutional Court, but also other state institutions and public administration, do not turn a blind eye to protection of the rights and interests of minority social groups.

5 Conclusion The Slovenian Constitutional Court has, in the past three decades, engineered the transition from a totalitarian legal system into a constitutional democracy. It has established the normative standards of the rule of law and constitutional democracy and condemned systematic and widespread human rights violations, abuses of the rule of law, conflicts of interests and general arbitrariness in the previous totalitarian regime. It was not the easiest of tasks, as the previous totalitarian system rejected the fundamental principles of the rule of law such as the separation of powers and systems of checks and balances. The first three mandates have introduced the formal standards of the protections of minority social groups based on human dignity, pluralism, broadmindedness and tolerance. It established the principles and rule of a free democratic society based on pluralist democracy. Constitutional democracy protects free exchanges of expression of minority and majority social groups. However, those values and principles of constitutional democracy have not been fully internalized and translated into practice. This contribution has argued that judicial ideology has been always present in the decision-making of the Slovenian Constitutional Court. It can be seen from the decisions of the Constitutional Court and dissenting opinions of judges. All the judges of the Constitutional Court have through their decision-making formed a judicial ideology that explains their decisions and also predicts future decisions. The objectivist approach to law, which so far has been prevalent in Slovenia and elsewhere in Central and Eastern Europe, cannot explain how and why judges decide cases as they do. As a result, it should in all instances be replaced by a discursive approach giving prominence to the persuasiveness and transparency of legal argumentation and the application of the canons of legal interpretation. To be clear,

19

Ibidem.

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judicial ideology does not allow judges to decide cases arbitrarily. On the contrary, it explains the context of the judicial decision-making at the highest courts. This contribution aimed to examine the extent of the judicial ideology present in the case-law of the Constitutional Court by answering the question of how inclined it has been to protect the rights of minority and majority social groups in the first three mandates of its existence? Our research shows that the social dimension of judicial ideology of the Constitutional Court is located slightly to the left of the ideological spectrum. That conclusion has been particularly true for the decision-making of the second and third mandates. On the other hand, the first mandate of the Constitutional Court was located slightly to the right of the ideological spectrum concerning the social dimension of judicial ideology. It follows that the Constitutional Court has so far been generally inclined to protect the rights and interests of the minority social groups over the majority. The research therefore illustrates that the Constitutional Court has attempted at least in its second and third mandates to protect the rights and interests of minorities over the majority thereby safeguarding human dignity, plural democracy and minority rights in the Slovenian constitutional system. Diversity, pluralism and human dignity are the backbone of the Slovenian Constitutional system and therefore the rights of the majority have to be guaranteed and interpreted in harmony with the rights of the minority. The Constitutional Court has attempted to protect minority interests so do they not get trumped by majoritarian interests. The first term of the Slovenian Constitutional Court is otherwise known for its practice of being the harbinger of the rule of law and the protection of human rights and fundamental freedoms. However, the results of the research show that the second and third terms of the Constitutional Court slightly favoured the protection of minority rights in relation to the majority compared to with the first term. Nevertheless, we cannot label any of the three terms as hostile towards the minority in its judicial ideology. Therefore, we can generally conclude that the Constitutional Court was in its first three mandates more or less inclined to protect minority rights in its judicial decision-making. Its judicial ideology was located somewhere in the middle between the two extreme positions concerning the social dimension of judicial ideology.

References Accetto M (2007) On law and politics in the federal balance: lessons from Yugoslavia. Rev Central East Eur Law 32(2):191–231 Avbelj M (2018a) The sociology of (Slovenian) constitutional democracy. Hague J Rule Law 10(3): 35–57 Avbelj M (2018b) Contextual analysis of judicial governance in Slovenia. German Law J 19(7): 1902–1930 Avbelj M (2019) Pomen sodne ideologije v pravu. Pravnik: revija za pravno teorijo in prakso 74-7/ 8:437–461, 515–516 Avbelj M, Letnar Černič J (2020) Impact of European institutions on the rule of law and democracy: Slovenia and Beyond. Hart (Bloomsbury), Oxford

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Avbelj M, Šušteršič J (2019) Conceptual framework and empirical methodology for measuring multidimensional judicial ideology. DANUBE: Law Econ Soc Iss Rev 10(2):129–159 Avbelj M, Šušteršič J, Vatovec K, Jevšek Pezdir A, Letnar Černič J, Šušteršič S, (2018) Pojmovni okvir in empirična metodologija za merjenje večdimenzionalne ideologije na sodiščih. Pravna praksa 37/44 pril. II-VIII Avbelj M, Batagelj P, Cigoj M, Letnar Černič J, Jevšek Pezdir A, Šušteršič J, Šušteršič S, Vatovec K (2020) Obvladovanje ideologije in politike na ustavnem sodišču. Pravna praksa 39(33):24–29 Avbelj M, Batagelj B, Cigoj M, Letnar Černič J, Jevšek Pezdir A, Šušteršič J, Šušteršič S, Vatovec K (2021) Ideologija na sodiščih, Nova Gorica, Nova univerza Bader Ginsburg R (2010) The role of dissenting opinions. Minn Law Rev 95 Bailey MA (2016) Measuring ideology on the courts. In: Howard RM, Randazzo KA (eds) Routledge handbook of judicial behavior. Routledge, New York Beširević V (2014) Governing without judiciary: the politics of the Constitutional Court of Serbia. Int J Const Law 12(4):954–979 Bugarič B, Kuhelj A (2015) Slovenia in crisis: a tale of unfinished democratization in East-Central Europe. Commun Post-Commun Stud 4(48):273–279 Cross FB, Tiller EH (1998) Judicial partisanship and obedience to legal Doctrine: Whistleblowing on the Federal Courts of Appeals. Yale Law J 107(7):2155–2176 Czarnota A, Krygier M, Sadurski W (2005) Introduction. In: Czarnota A, Krygier M, Sadurski W (eds) Rethinking the rule of law after communism. Central European University, Budapest Epstein L (2016) Some thoughts on the study of judicial behavior. William Mary Law Rev 57(6): 2017–2073 Garoupa N (2010) Empirical Legal Studies and Constitutional Courts. Illinois Law and Economics Research Papers Series, Research Paper No. LE-10-015 Grossman J (1966) Social backgrounds and judicial decision-making. Harv Law Rev 79(8): 1551–1564 Hanretty C (2014) The Bulgarian constitutional court as an additional legislative chamber. East Eur Polit Soc 28(3):540–558 Harris AP, Sen M (2019) Bias and judging. Ann Rev Polit Sci 22:241–259 Hodžić R (2010) Living the legacy of mass atrocities: victims’ perspectives on war crimes trials. J Int Crim Just 8(1):113–136 Hönnige C (2010) Beyond judicialization: why we need more comparative research about constitutional courts. Eur Pol Sci 10(3):346–358 Kantorowicz J, Garoupa N (2016) An empirical analysis of constitutional review voting in the Polish constitutional tribunal, 2003–2014. Const Polit Econ 27:66–92 Kleinberg J, Lakkaraju H, Leskovec J, Ludwig J, Mullainathan S (2018) Human decisions and machine predictions. Quart J Econ 133(1):237–293 Letnar Černič J (2018a) Impact of the European Court of Human Rights on the Rule of Law in Central and Eastern Europe. Hague J Rule Law 10(1):111–137 Letnar Černič J (2018b) The European Court of Human Rights in the states of the Former Yugoslavia. East Eur Yearb Human Rights 1(1):32–54 Letnar Černič J (2018c) Slovenija na razpotju: geneza varstva človekovih pravic v slovenski družbi. Nova univerza, Fakulteta za državne in evropske študije, Kranj Letnar Černič J (2019) Ustavno sodišče v iskanju identitete? IUS-INFO Letnar Černič J (2020a) Militant constitutionalism: safeguarding constitutional democracy in the case-law of the European Court of Human Rights. Hong Kong J Law Public Aff 2:94–112 Letnar Černič J (2020b) Corporate accountability under socio-economic rights (Transnational Law and Governance). Routledge, Oxon, New York Letnar Černič J, Avbelj M (2018) Introduction to the special issue on the crisis of constitutional democracy in Central and Eastern Europe. Hague J Rule Law 10(1):1–3 Letnar Černič J, Avbelj M, Novak M; Valentinčič D. (2018) Reforma demokratične in pravne države v Sloveniji. 1. natis. Nova univerza, Fakulteta za državne in evropske študije, Kranj

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Pócza K, Dobos G, Gyulai A (2017) How to measure the strength of judicial decisions: a methodological framework. German Law J 18(6):1557–1586 Pócza K, Dobos G, Gyulai A (2019) Dissenting Coalitions at the Hungarian Constitutional Court 1990–2018. In: Martin B (ed) The role of courts in contemporary legal orders. Eleven International Publishing, The Hague, Hollandia, pp 359–370 Uzelac A (2010), Survival of the third legal tradition?, Supreme Court Law Rev 49 S.C.L.R. (2d):377–396 Zobec J (2015) Slovenia: just a glass Bead game? In: Motoc I, Ziemele I (eds) The impact of the ECHR on democratic change in Central and Eastern Europe: Judicial perspectives. Cambridge University Press, Cambridge, pp 425–456 Zobec J, Letnar Černič J (2015) The remains of the authoritarian mentality within the Slovene judiciary. In: Bobek M (ed) Central European judges under the European influence: the transformative power of the EU revisited (EU law in the member states), vol 2. Hart, Oxford, pp 125–148 Zyberi G, Letnar Černič J (2016) Transitional justice processes and reconciliation in the former Yugoslavia: challenges and prospects. Nordic J Human Rights 33(2):132–157 Jernej Letnar Černič is Full Professor of Human Rights and Constitutional Law at the European Faculty of Law and the Faculty of Government and European Studies of the New University, Ljubljana/Kranj, Slovenia. He has published extensively on business and human rights, the rule of law and human rights law. Jernej has recently published two scientific monographs, namely: Corporate accountability under socio-economic rights, Oxon, New York: Routledge (2019) and The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond, Oxford: Hart-Bloomsbury (2020) (with Matej Avbelj). His studies have been cited in the reports of the United Nations, the European Parliament and the Council of Europe, decisions of the Slovenian Constitutional Court and academic studies from all parts of the world. He has been active in various roles in Slovenian and global civil society, participating in numerous domestic and international humanitarian projects.

Citizenship and State Continuity: The Example of Latvia Jānis Pleps

Abstract This contribution reviews the practical expression of the principle of continuity of citizenship in the context of the principle of state continuity with examples from the practice of Latvia. The continuity of citizenship is a consequence of state continuity. In the case of Latvia, the international community has recognized its claim regarding state continuity. Despite fifty years of occupation under the Soviet yoke, Latvia has retained its identity and status as an international legal person—the same state that was founded on November 18, 1918. It follows that citizenship of Latvia, as established by the August 23, 1919 Law on Citizenship, has likewise existed without interruption. After regaining independence, Latvia did not ascertain its body of citizens de novo. Rather, it legally established the continued existence of its body of citizens, taking into account the August 23, 1919 Law on Citizenship and the principle of ius sanguinis. This contribution considers the existence of Latvian citizenship during the Soviet occupation of the state by discussing the actions taken by the Latvian diplomatic and consular corps abroad to preserve the body of Latvian citizens, and then evaluating them from a legal standpoint.

1 Introduction The identity of the Republic of Latvia as a state and an international legal person is determined by the principle of state continuity. According to this principle, the Republic of Latvia that was founded on November 18, 1918 has never ceased to exist in the legal sense. The occupation of Latvia under the Soviet Union for nearly

J. Pleps (*) Department of Legal Theory and History, Faculty of Law, University of Latvia, Rīga, Latvia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_9

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half a century has not changed the legal nature or existence of Latvia as a state and an international legal person.1 The legal grounds for state continuity lies in international law, as well as specific violations of international law that were committed by the Soviet Union by occupying Latvia in the summer of 1940.2 As the Latvian Constitutional Court has found, the USSR in 1940 committed an act of aggression against the Republic of Latvia (and subsequent unlawful occupation of the Republic of Latvia), unlawfully intervened in the internal affairs of the Republic of Latvia, as well as unlawfully annexed the Republic of Latvia, ignoring the rules of international law and fundamental rules of domestic law of Latvia.3

Latvia has never recognized the legality of Soviet actions and has continuously maintained its claim for the recognition of its continuity. In reaction to Soviet acts, other states formulated a policy of non-recognition of the occupation of Latvia. In total, Soviet actions were deemed unlawful by over 50 countries, thereby forming a consensus of the international community on this issue of international law.4 After the restoration of independence, Latvia has deliberately maintained that its identity as a state was founded on November 18, 1918, and it is a continuation of that entity. The position on the continuity of Latvian state has been accepted by the international community5 resulting in the formation of an idiosyncratic legal framework both internationally, and at the national level in Latvia. Thus, state continuity is not simply a political slogan, a matter of history or a foreign policy argument. It is an integral element of Latvian constitutional legal reality, still guiding legal thought, with concrete practical consequences.6 This contribution will discuss Latvian citizenship policy as a distinct example of the consequences created by pursuing the claim of state continuity. The continuity of citizenship is claimed in a similar way to state continuity, by creating a duty on the state to recognize the body of its citizens in a legally sound manner and to pursue a citizenship policy in accordance with the principle of the 1 Border Treaty (2018), para. 32–34, pp. 229–238. See more: Ziemele (2005); Krūma and Plepa (2016), pp. 18–20. 2 The Constitutional Court, through a legal analysis of the events of 1940 in its Case No. 2007-100102, has concluded that the Soviet Union violated both specific norms of international treaty law and the customary international law. The international treaty norms binding upon the Soviet Union and Latvia were included in the August 11, 1920 Peace Treaty between Latvia and the Soviet Union, the August 27, 1928 Kellogg–Briand Pact, February 5, 1932 Treaty of Non-Aggression between Latvia and the Soviet Union, July 3, 1933 London Convention for the Definition of Aggression and the October 5, 1939 Soviet–Latvian Mutual Assistance Treaty. International customary law, in turn, provided for a prohibition on the use of force and threats of force, a prohibition of annexing other states by force or using threats of force, as well as the principle of ex iniuria ius non oritur that prohibited the recognition of occupation and annexation of other states as legal under international law. See more: Border Treaty (2018), para. 22–29, pp. 211–226. 3 Border Treaty (2018), para. 29.2, p. 226. 4 Hough (1985), pp. 391–446. 5 Crawford (2006), pp. 689–690; Crawford and Boyle, pp. 88–89. 6 Ziemele (2009), p. 107.

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continuity of citizenship. In the case of Latvia, the practice of the Latvian diplomatic and consular corps during the period of occupation to continue issuing travelling passports to Latvian citizens and applying the respective legislation of Latvia, is legally relevant. Likewise, after the restoration of independence the parliament was bound by the principle of continuity of citizenship in drafting the new framework of citizenship.7 The Constitutional and Supreme Courts have dealt with particular legal issues, thereby confirming the relevance of the doctrine of state continuity in legal reality and the complexity of the legal issues surrounding it. This broader context of state continuity is not always understood correctly, especially when commenting on Latvian citizenship policy.8

2 Latvian Law on Citizenship, August 23, 1919 To establish the existence of a state as an international legal person, it is necessary to ascertain that it has a permanent population, a defined territory, its own government and the capacity to enter international relations.9 The general theory of the state considers these constituent elements mandatory to establish the existence of a state.10 The existence of a permanent population is of particular importance to the existence of a state, as a modern state cannot exist without its population. In fact, the other constituent elements of a state are subordinate to the existence of its population.11 This view is also reflected in the definition of state as a politically organized people. For instance, “a State is a People organized for law within a definite territory”.12 It is through citizenship that states determine their body of citizens. The ICJ has found that:

7

Augstākās tiesas Administratīvo lietu departamenta 2018.gada 22.jūnija spriedums lietā Nr.SKA237/2018 [Judgment of the Department of Administrative Cases of the Supreme Court in case no. SA-1/2014 of February 12, 2014], http://www.at.gov.lv/downloadfile/4383. 8 For example: Sajó and Uitz (2019), p. 84. 9 The relevant elements are legally set in Article 1 of the December 26, 1933 Montevideo Convention: The state as a person of international law should possess the following qualifications: a. a permanent population; b. a defined territory; c. government; and d. capacity to enter into relations with the other states. See: Montevideo Convention on the Rights and Duties of States, https://www.jus.uio.no/english/ services/library/treaties/01/1-02/rights-duties-states.xml. See also: Crawford (2006), pp. 45–62. 10 Kelsen (2006), p. 207. 11 Dišlers (1930), pp. 12–18. 12 Wilson (1918), p. 8.

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nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.13

A similar understanding of citizenship is included in the July 22, 1994 Citizenship Law of Latvia: (1) Latvian citizenship is an enduring legal connection of a person with the State of Latvia. (2) The content of Latvian citizenship is formed by the entirety of interrelated rights and obligations between a citizen and the State.14

States enjoy a wide margin of appreciation in determining the body of its citizens, and citizenship policy is a manifestation of state sovereignty.15 Citizenship characterizes a person’s belonging to the people of a state that exercises the popular sovereignty in said state. Thus, having a citizenship entitles a person to certain political rights in the process of governing their state. Usually the body of citizens is not yet determined with accuracy at the moment a new state is founded, as drafting the necessary laws might take an extended period of time.16 However, there is usually sufficient clarity about the potential future citizenry at the moment of founding. Addressing all Latvian citizens the interim parliament, the Latvian People’s Council, announced the establishment of the Republic of Latvia—to take place on November 18, 1918—in a separate proclamation.17 Although the work on drafting a law on citizenship had not begun and the interim Constitution did not specify the concept of citizenship in extended detail, the body of Latvian citizens had been politically and constitutionally created simultaneously with the declaration of the state of Latvia. “When founding the state of Latvia, the permanent residents of the areas making up its territory (Kurzeme, Vidzeme, Latgale) were deemed to be Latvian citizens”.18 Because of this, the Latvian People’s Council could inform all citizens of Latvia about the founding of a new state and invite them to submit to the decrees of the new government. The founders of the state envisioned Latvian citizenship to be available to all residents of the new state. The first Prime Minister, Kārlis Ulmanis, emphasized that “all citizens without regard to nationality are called to contribute, since the rights of

13

International Court of Justice. Nottebohm Case (Liechtenstein v. Guatemala), Judgment of April 6th, 1955, p. 23, https://www.icj-cij.org/public/files/case-related/18/018-19550406-JUD-0100-EN.pdf. 14 Citizenship Law, https://likumi.lv/ta/en/id/57512-citizenship-law. 15 Kučs (2017), pp. 312–315. 16 Dišlers (1930), p. 17. 17 Latvijas pilsoņiem! [To the citizens of Latvia!]. Pagaidu Valdības Vēstnesis [Provisional Government Herald], 14th December, 1918, No. 1, p. 1. 18 Dišlers (1930), p. 77.

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all nationalities in Latvia will be ensured”.19 Determining the initial body of Latvian citizens was to be done under a new law on citizenship that would determine persons to be deemed Latvian citizens in a legally sound manner.20 “The law on citizenship of a new state requires another important rule, namely, on the initial contingent of subjects or citizens of that state.”21 The body of Latvian citizens was established by the interim parliament—the Latvian People’s Council—which adopted the Law on Citizenship on August 23, 1919.22 Article 1 of the Law on Citizenship stated: Every citizen of the former state of Russia, without regard to nationality or faith, living within the borders of Latvia, coming from areas within the borders of Latvia or already resident in these borders under Russian law before August 1, 1914, and who has not switched citizenship to another up to the day this Law is promulgated, shall be deemed a citizen of Latvia.23

The original body of Latvian citizens was determined in accordance with a person’s ties to the territory of Latvia (the principle of ius soli).24 This legislative practice was in line with the general pattern, given that “the initial contingent of citizens in a newly founded state is made up of persons who the law counts among its nationals mainly due to the fact that they are connected to the territory of the new state by birth or a certain residence period.”25 The Law on Citizenship has been amended multiple times since 1919, extending the possibility of acquiring Latvian citizenship to certain groups of persons. However, the law has always only envisioned individual accession to the body of citizens though naturalization.26 The original body of Latvian citizens was established only once and prescribed by the Law on Citizenship coming into force in 1919. After the Law on Citizenship had come into force, new citizens could accede to the body of Latvian citizens in accordance with the principle of ius sanguinis, namely, if their parents had been citizens of Latvia at the moment of their birth, or of their own individual volition become citizens of Latvia through naturalization.27 The Law on Citizenship can be considered the most important element of Latvian citizenship policy that determined the initial body of Latvian citizens under the

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Latvijas Tautas padome [Latvian People’s Council]. Rīga: Satversmes sapulces izdevums [Edition of Constitutional Assembly], 1920, pp. 8–9. 20 Dual Citizenship (2018), para. 12.1, p. 521. 21 Dišlers (1930), p. 77. 22 Likums par pavalstniecību [Law on Citizenship]. Valdības Vēstnesis [Government Herald], 5th September, 1919, No. 31, p. 1. 23 Ibidem. See also: Latvijas Tautas padome [Latvian People’s Council]. Rīga: Satversmes sapulces izdevums [Edition of Constitutional Assembly], 1920, pp. 228–243. 24 Dišlers (1930), p. 77. See also: Dual Citizenship (2018), para. 12.1, p. 521. 25 Dišlers (1930), p. 16. 26 Kučs (2015), p. 141. 27 Dišlers (1930), p. 16.

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principle of ius soli and the continuation of the body of Latvian citizens throughout the existence of the state of Latvia under the principle of ius sanguinis.28

3 Latvian Citizenship in the Period of Occupation Latvian occupation did not end the existence of the Latvian state or its citizenship de iure. In accordance with the doctrine of state continuity, Latvian citizenship continued to exist de iure throughout the entire period of occupation.29 As stated in legal doctrine, the August 23, 1919 Law on Citizenship remained in force during the period of occupation. Thus, Latvian citizenship continued to exist and, in accordance with the principle of ius sanguinis, was also handed down to the next generations as long as one of the parents was a Latvian citizen.30

However, Soviet citizenship was unlawfully imposed en masse on Latvian citizens living in occupied Latvia. On September 7, 1940, the Presidium of the Supreme Soviet of the USSR automatically deemed all Latvian citizens to be Soviet citizens as of the day Latvia was admitted to the Soviet Union.31 The state of Latvia has never acknowledged the imposition of Soviet citizenship upon its citizens as legitimate and legally binding. After regaining independence, the Supreme Council of the Republic of Latvia established that, “although the Republic of Latvia was occupied on June 17, 1940 and the state lost its sovereignty, the body of Latvian citizens continues to exist in accordance with the August 23, 1919 Law on Citizenship of the Republic of Latvia” and also decided to “declare the September 7, 1940 Decree of the Supreme Soviet of the USSR “On the arrangements of how the citizens of Lithuanian, Latvian and Estonian Soviet socialist republics are granted the citizenship of USSR” to be invalid and non-existent in respect of citizens of the Republic of Latvia”.32 The decision made by the Supreme Council legally established the fact that no citizen of Latvia lost their Latvian citizenship during the period of occupation and no Latvian citizen has ever been a citizen of the USSR (although Soviet citizenship was imposed during the occupation). Similarly, children born to Latvian citizens became Latvian citizens automatically upon birth, therefore continuing the body of

28

Levits (2012), p. 13. Ziemele (2005), p. 166. 30 Levits (2012), p. 13. 31 Blūzma (2000), pp. 321–322. 32 Augstākās padomes 1991.gada 15. oktobra lēmums “Par Latvijas Republikas pilsoņa tiesību atjaunošanu un naturalizācijas pamatnoteikumiem” [Decision of the Supreme Council 15th October, 1991 “On the Restoration of the Rights of the Citizens of the Republic of Latvia and the Basic Principles of Naturalisation”], https://likumi.lv/ta/id/69914-par-latvijas-republikas-pilsonutiesibu-atjaunosanu-un-naturalizacijas-pamatnoteikumiem. See: Ziemele (2005), p. 155. 29

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Latvian citizens.33 Further, “the Latvian state did not cease to exist during the occupation and the Law on Citizenship remained in force. [..] Latvian citizenship continued to exist and be transferred to the next generations in accordance with the principle of ius sanguinis.”34 It is important to note that the Latvian diplomatic and consular corps, which continued its work abroad during the period of occupation, continued to issue travelling passports to Latvian citizens and those passports were recognized as valid foreign residence and travel documents. Therefore, the body of Latvian citizens continued to exist not only in the legal sense, but also factually, as Latvian citizens in exile who possessed Latvian travelling passports.35 The Latvian diplomatic and consular corps abroad did not recognize the occupation of Latvia and protested against Latvia being incorporated into the Soviet Union, expressing the official position of Latvia in their countries abroad.36 As a response to the protests by the diplomatic and consular service of Latvia, the governments of their states of residence formulated a policy of non-recognition towards the acts of the Soviet Union: the occupation of Latvia, and its incorporation in the Soviet Union.37 States that pursued the policy of non-recognition and continued to regard Latvia as a de iure still-existing international legal person often recognized the rights of Latvian consular and diplomatic officials to continue their activities representing the interests of Latvia and its citizens. Latvian embassies in Washington, D.C., and London, and for a shorter period embassies in Buenos Aires, Geneva, Rio de Janeiro and Madrid, as well as numerous other consulates, continued to operate without interruptions throughout the period of occupation.38 The diplomatic and consular service of Latvia acted in Latvia’s name and interests to ensure the continued existence of the Latvian state. Latvian ambassadors were recognized internationally as high-level officials of the Latvian state,39 representing the official position of

33

Levits (2012), p. 13; Kučs (2017), p. 316. Augstākās tiesas Administratīvo lietu departamenta 2018.gada 22.jūnija spriedums lietā Nr.SKA237/2018 [Judgment of the Department of Administrative Cases of the Supreme Court in case no. SKA-237/2018, 22 June, 2018], para. 24, http://www.at.gov.lv/downloadfile/5466. 35 Levits (1991). 36 Dual Citizenship (2018), para. 13.1, p. 522. See more: Bilmanis (1944) and Lerhis (2015). 37 Border Treaty (2018), para. 34.1, pp. 235–236. 38 Lerhis (2017) and Beķere (2017). See more: McHugh and Pacy (2001). 39 This is especially true for the Heads of Latvian diplomatic and consular service—Kārlis Zariņš (1879–1963; Head of Service from 1940–1963), Arnolds Spekke (1887–1972; Head of Service from 1963–1970) and Anatols Dinbergs (1911–1993; Head of Service from 1970–1991). See more: On guard for Latvia’s statehood. Latvia’s Foreign Service Staff in Exile During the Years of Occupation, June 17, 1941–August 21, 1991. https://www.mfa.gov.lv/en/about-the-ministry/ history-of-the-foreign-service/on-guard-for-latvia-s-statehood-latvia-s-foreign-service-staff-inexile-during-the-years-of-occupation-june-17-1941-august-21-1991/2-uncategorised/4654-onguard-for-latvia-s-statehood-latvia-s-foreign-service-staff-in-exile-during-the-years-of-occupationjune-17-1941-august-21-1991. 34

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Latvia on matters of international politics and events affecting the interests of Latvia and its citizens.40 The diplomatic and consular corps of Latvia is the only state institution of Latvia that has been functioning since the establishment of the Latvian state in 1918, continuing to represent the interests of Latvia and its citizens throughout the entire period of occupation.41 As noted by the Supreme Court, the diplomatic and consular service abroad continued to function uninterrupted throughout the entire period of occupation. During the period of occupation, the Latvian diplomatic and consular service abroad worked with the purpose of continuing the representation of the Latvian state that existed de iure, to make diplomatic efforts to maintain the international legal status of Latvia, to fight for a future restoration of independence and to protect Latvian citizens and their property abroad.42

The Constitutional Court found that “during the period of occupation the actions of Latvian diplomatic missions were the only manifestation of the legal capability of the Latvian state”.43 Both the Constitutional Court and the Supreme Court have found that the decisions and actions of the Latvian diplomatic and consular corps have legal weight and they remain binding on Latvia after the restoration of independence. One of the most important functions the Latvian diplomatic and consular corps continued to exercise was the issuance and extension of Latvian travelling passports to Latvian citizens abroad.44 Since the occupation of Latvia was not considered lawful under international law, many countries deemed the travelling passports of Latvian citizens that were issued by the Latvian diplomatic and consular service to be valid residence and travel documents of citizens of Latvia. Throughout the occupation of Latvia, the Latvian diplomatic and consular corps regularly issued and extended travelling passports of Latvian citizens who expressed the desire to receive and use such documents. Similarly, the Latvian diplomatic and consular service kept a record of Latvian citizens in exile, recording the travelling passports issued to Latvian citizens in a consular register.45 The Constitutional Court found that, “the registers of diplomatic missions in those countries, where the missions of Latvian state were found or where the validity of Latvian travelling passports was

40

Augstākās tiesas Administratīvo lietu departamenta 2018.gada 22.jūnija spriedums lietā Nr.SKA237/2018 [Judgment of the Department of Administrative Cases of the Supreme Court in case no. SKA-237/2018, 22 June, 2018], para. 10, http://www.at.gov.lv/downloadfile/5466. 41 Rinkēvičs (2020), p. 14. 42 Augstākās tiesas Administratīvo lietu departamenta 2018.gada 22.jūnija spriedums lietā Nr.SKA237/2018 [Judgment of the Department of Administrative Cases of the Supreme Court in case no. SKA-237/2018 of June 22, 2018], para. 10, http://www.at.gov.lv/downloadfile/5466. 43 Dual Citizenship (2018), para. 13.1, p. 523. 44 Augstākās tiesas Administratīvo lietu departamenta 2018.gada 22.jūnija spriedums lietā Nr.SKA237/2018 [Judgment of the Department of Administrative Cases of the Supreme Court in case no. SKA-237/2018 of June 22, 2018], para. 11, http://www.at.gov.lv/downloadfile/5466. 45 Dual Citizenship (2018), para. 15.2.2, p. 533.

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extended, became the only registers, which continued registering Latvian citizens.”46 After Latvia was occupied, many citizens of Latvia elected to remain abroad instead of returning to their homeland under occupation. Numerous citizens of Latvia also went into exile near the end of World War II to escape the reestablished occupation by the USSR. They were issued Latvian travelling passports by the Latvian diplomatic and consular corps as a means to enable them to prove their nationality and facilitate their residence abroad.47 It was crucial for citizens of Latvia to acquire Latvian travelling passports, as they served as documents of identity and nationality, and many countries recognized a Latvian travelling passport as a valid travel document.48 Latvian citizens who emigrated from the Soviet Union during the occupation were also eligible for Latvian travelling passports issued by the Latvian diplomatic and consular institutions. When issuing travelling passports to Latvian citizens, the Latvian diplomatic and consular corps did not act arbitrarily, but applied the relevant legislation of Latvia.49 The right to Latvian citizenship was established in accordance with the August 23, 1919 Law on Citizenship.50 The powers of the Latvian diplomatic and consular service to issue travelling passports to Latvian citizens was envisioned in the February 20, 1936 Law on Travelling Passports.51 In accordance with Article 1 of that law, “Latvian citizens may leave Latvia, reside abroad and return within the borders of the state only by using a travelling passport”. Article 2 of the Law on Travelling Passports provided that travelling passports abroad are issued and extended by Latvian representations. It is important to note that the diplomatic and consular service of Latvia applied Latvian legislation in accordance with its purpose and meaning, rather than formally, taking into account the complex situation posed by the occupation. The Constitutional Court has emphasized: In those circumstances Latvian missions, indeed, had to act in a way so as to ensure the preservation of the state as much as possible, therefore formal implementation of the Law on Citizenship became impossible. The application of the pre-occupation legal acts had to be subordinated to the assessment of the interests of the state as to their merits, considering the political and historical reality.52

46

Dual Citizenship (2018), para. 13.2., p. 525. Dual Citizenship (2018), para. 13.3, pp. 525–526. 48 Augstākās tiesas Administratīvo lietu departamenta 2018.gada 22.jūnija spriedums lietā Nr.SKA237/2018 [Judgment of the Department of Administrative Cases of the Supreme Court in case no. SKA-237/2018 of June 22, 2018], para. 12, http://www.at.gov.lv/downloadfile/5466. 49 See more: Dual Citizenship (2018), para. 13.2, pp. 524–525. 50 Likums par pavalstniecību [Law on Citizenship]. Valdības Vēstnesis [Government Herald], 5th September, 1919, No. 31, p. 1. 51 Likums par ārzemju pasēm [Law on Travelling Passports]. Valdības Vēstnesis [Government Herald], 26th February, 1936, No. 47, p. 1. 52 Dual Citizenship (2018), para. 13.4, p. 527. 47

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The diplomatic and consular corps of Latvia applied Latvian legislation in accordance with the highest interests of the state to ensure the continued existence of the Latvian state and body of Latvian citizens, as well as to maintain the legal link between Latvian citizens with their state. In certain cases, this required the non-application of Latvian legal norms formally in force, as well as developing the law in a reasonable manner according to the state’s interests.53 For example, Article 8 of the Law on Citizenship provided that “no one shall be a citizen of Latvia and another state at the same time. Otherwise, he shall lose the rights accorded to Latvian citizens”.54 However, the diplomatic and consular service of Latvia accepted that, during the occupation of the state, citizens of Latvia may acquire citizenship of another state. In such cases the corps would continue to issue them Latvian travelling passports.55 In practice, the diplomatic and consular service of Latvia thereby established the concept of dual citizenship, which was also recognized and respected by the Latvian legislature after the restoration of independence.

4 Latvian Citizenship After Regaining Independence A favourable situation for the restoration of the independence of Latvia arose at the end of the 1980s. In pursuit of this aim, the independence restoration movement discussed whether to establish a new state upon leaving the USSR or restore de facto the Republic of Latvia that had still existed de iure throughout the entire occupation and had been founded on November 18, 1918. Due to the influence of Latvian foreign diplomatic and consular service, as well as Latvian expats, the option of restoring de facto the state that had existed de iure prevailed in the end.56 The independence of Latvia was restored in accordance with the requirements of the doctrine of state continuity.57 The preamble of Constitution (Satversme) establishes the following: “The people of Latvia did not recognize the occupation regimes, resisted them and regained their freedom by restoring national independence on 4 May 1990 on the basis of the continuity of the State.”58

53

Augstākās tiesas Administratīvo lietu departamenta 2018.gada 22.jūnija spriedums lietā Nr.SKA237/2018 [Judgment of the Department of Administrative Cases of the Supreme Court in case no. SKA-237/2018 of June 22, 2018], para. 15, http://www.at.gov.lv/downloadfile/5466. See also: Levits (2018). 54 Likums par pavalstniecību [Law on Citizenship]. Valdības Vēstnesis [Government Herald], 5th September, 1919, No. 31, p. 1. 55 Dual Citizenship (2018), para. 13.4, pp. 526–527. 56 Jundzis (2018). See more: Deksnis and Jundzis (2015). 57 See more: Border Treaty (2018). 58 The Constitution of the Republic of Latvia, https://likumi.lv/ta/en/id/57980-the-constitution-ofthe-republic-of-latvia.

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On May 4, 1990, the Supreme Council of the Republic of Latvia adopted the declaration “On the Restoration of Independence of the Republic of Latvia”.59 The Supreme Council established that “the incorporation of the Republic of Latvia in the Soviet Union is invalid under international law and the Republic of Latvia still exists de iure as an international legal person recognized by more than 50 states of the world”. On the basis of this finding, the Supreme Council declared as invalid ab initio the July 21, 1940 declaration “On the accession of Latvia to the Union of the Soviet Socialist Republics” that had been adopted by the Soviet-controlled “puppet parliament”, and restored the functioning of February 15, 1922 Constitution of the Republic of Latvia (Satversme) in the entire territory of Latvia. On August 21, 1991, the Supreme Council adopted the constitutional law “On the Statehood of the Republic of Latvia”, which fully restored the independence of Latvia that had been recognized by the international community.60 After restoring independence, it was necessary to legislate on citizenship issues, taking account of the body of Latvian citizens and prescribing the conditions and arrangements of gaining Latvian citizenship.61 In accordance with the interim constitution, the Supreme Council was not restricted in its law-making power and could decide on any legislative issue, including matters of citizenship.62 However, the Supreme Council was bound by the May 4, 1990 declaration “On the Restoration of Independence of the Republic of Latvia” as well as the doctrine of state continuity, which limited its powers in practice. The Supreme Council was not a full-fledged parliament of Latvia with full legislative powers, but rather a transitional parliament tasked with the restoration of the independence of Latvia and organizing free elections of the parliament, Saeima.63 Although the Supreme Council had announced and begun to discuss a new law “On Citizenship”, when debating the draft law, the prevailing view was that the Supreme Council, being a transitional parliament, cannot decide on the body of Latvian citizens.64 As a transitional parliament, the Supreme Council was aware that it did not have a constitutional mandate to definitive resolve matters of citizenship. Retrospectively, and in a particular case, the Constitutional Court also concluded

Augstākās padomes 1990.gada 4.maija deklarācija “Par Latvijas Republikas neatkarības atjaunošanu” [Decision of the Supreme Council 4th May, 1990 “On the Restoration of Independence of the Republic of Latvia”], https://likumi.lv/ta/id/75539-par-latvijas-republikas-neatkaribasatjaunosanu. See more: Levits (2000). 60 Constitutional Law “On the Statehood of the Republic of Latvia”, https://likumi.lv/ta/en/en/id/ 69512-law-on-the-statehood-of-the-republic-of-latvia. See more: Ziemele (2005), pp. 32–35. 61 Deksnis and Jundzis (2015), pp. 89–90. 62 Jelāgins (1997). 63 Border Treaty (2018), para. 61, pp. 272–274. 64 Augstākās padomes 1991.gada 15. oktobra sēdes stenogramma [Minutes of the Meeting of the Supreme Council on 15th October, 1991], https://www.saeima.lv/steno/AP_steno/1991/st_911015. htm. 59

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that the Supreme Council did not have sufficient constitutional powers to adopt a new law regarding citizenship.65 On October 15, 1991, the Supreme Council adopted a decision on taking account of the body of citizens of Latvia.66 That decision was based on the principles of state and citizenship continuity. The Supreme Council concluded that the body of Latvian citizens, regardless of the occupation of Latvia, has continually existed pursuant to the August 23, 1919 Law on Citizenship and it can be ascertained, namely, citizens of Latvia are all persons belonging to the body of Latvian citizens and having had Latvian citizenship at the moment of occupation, as well as their descendants.67 The decision of the Supreme Council did not entail granting Latvian citizenship to persons. Rather it made a declaratory (instead of a legislative) confirmation of citizenship that existed pursuant to the Law on Citizenship.68 This, in turn, meant that the body of Latvian citizens was not established de novo after the restoration of independence, as had been previously done by the August 23, 1919 Law on Citizenship, but merely confirmed in accordance with the principle of ius sanguinis.69 On November 27, 1991 the Supreme Council clarified the October 15, 1991 decision concerning Latvian citizens and their descendants living abroad.70 This clarification accepted the dual nationality of Latvian citizens that had been previously permitted by the Latvian diplomatic and consular service. It was necessary to take account of the body of Latvian citizens to organize free elections of the parliament, Saeima, since the Satversme provides that the citizens of Latvia shall have the right to elect Saeima. Thus, the Constitutional Court has concluded that the Supreme Council was competent to adopt the decisions of

65

Dual Citizenship (2018), para. 14, pp. 527–530. Augstākās padomes 1991.gada 15. oktobra lēmums “Par Latvijas Republikas pilsoņa tiesību atjaunošanu un naturalizācijas pamatnoteikumiem” [Decision of the Supreme Council 15th October, 1991 “On the Restoration of the Rights of the Citizens of the Republic of Latvia and the Basic Principles of Naturalisation”], https://likumi.lv/ta/id/69914-par-latvijas-republikas-pilsonutiesibu-atjaunosanu-un-naturalizacijas-pamatnoteikumiem. See: Ziemele (2005), p. 155. 67 Kučs (2017), pp. 316–317. 68 Levits (2012), p. 13. See more: Ziemele (2005), pp. 155–156. 69 Ziemele (2012); Krūma and Plepa (2016), pp. 151–152. 70 Augstākās padomes 1991.gada 27.novembra lēmums “Par Latvijas Republikas Augstākās Padomes 1991.gada 15.oktobra lēmuma “Par Latvijas Republikas pilsoņa tiesību atjaunošanu un naturalizācijas pamatnoteikumiem” piemērošanu ārvalstīs dzīvojošajiem Latvijas Republikas pilsoņiem” [Decision of the Supreme Council 27th November, 1991 “On application of 15 October 1991 Decision of the Supreme Council of the Republic of Latvia “On the Restoration of the Rights of the Citizens of the Republic of Latvia and the Basic Principles of Naturalisation” to the Citizens of the Republic of Latvia Residing Abroad”], https://likumi.lv/ta/id/70516-par-latvijas-republikasaugstakas-padomes-1991-gada-15-oktobra-lemuma-par-latvijas-republikas-pilsonu-tiesibuatjaunosanu-un-naturalizacijas-pamatnoteikumiem-piemerosanu-arvalstis-dzivojosajiem-latvijasrepublikas-pilsoniem. 66

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October 15, 1991 and November 27, 1991 to ensure uninterrupted rights for citizens of Latvia.71 On July 22, 1994, the freely elected 5th Saeima adopted the Citizenship Law currently in force, which is based on the principle of continuity of citizenship and the Law of Citizenship of August 23, 1919.72 The Citizenship Law determines the present body of Latvian citizens in accordance with the rules of the Law on Citizenship, connecting Latvian citizenship with persons who were Latvian citizens at the moment of occupation or the descendants of them.73 In principle, the Citizenship Law adopted the body of Latvian citizens identified in the August 23, 1919 as it has evolved naturally over time74 in accordance with the principle of ius sanguinis.75 In establishing the body of Latvian citizens after the restoration of independence, the Citizenship Law implements the requirements of the principle of continuity of citizenship.76

5 Conclusion The issuance of Latvian travelling passports to Latvian citizens by the Latvian foreign diplomatic and consular service ensured the factual existence of part of the body of Latvian citizens throughout the period of Soviet occupation. Therefore, the very operation of Latvian diplomatic and consular service abroad, representing Latvia in an internationally recognized manner throughout the entire period of occupation, are essential to the continuity of the state of Latvia. The operation of this service facilitated not only raising and pursuing the claim of state continuity, but also ensured a partial legal capacity of the Republic of Latvia against the background of restrictions under the occupation. The fundamental principles of the citizenship policy, as well as the interpretation of the August 23, 1919 Law of Citizenship arose in the practice of the Latvian diplomatic and consular service. The Latvian legislature attempted to continue this practice after the restoration of independence, as the October 15, 1991 and November 27, 1991 decisions of the Supreme Council, and the July 22, 1994 Citizenship Law are all founded upon the principle of continuity of citizenship and the August 23, 1919 Law on Citizenship. In the context of continuity of citizenship, it is notable that Latvia has established its body of citizens only once—after founding the state, with the August 23, 1919 Law on Citizenship. The body of Latvian citizens was not established de novo after

71

Dual Citizenship (2018), para. 14.2, p. 528. Citizenship Law, https://likumi.lv/ta/en/id/57512-citizenship-law. 73 Kučs (2017), p. 318. 74 Ziemele (2012). 75 Krūma and Plepa (2016), p. 152. 76 Dual Citizenship (2018), para. 11, pp. 520–521. 72

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the restoration of independence, but merely confirmed as the body of citizens that had always existed in accordance with the August 23, 1919 Law on Citizenship. After the restoration of independence, instead of granting citizenship de novo, the parliament of Latvia legally established the scope of persons who had always had Latvian citizenship, taking into account the principles of continuity of citizenship and ius sanguinis. While thirty years have passed since the restoration of independence, matters of citizenship during the period of occupation are relevant to jurisprudence today. The Constitutional Court case on dual nationality and the Supreme Court case concerning the recognition of citizenship of a person whose father had his Latvian citizen’s rights recognized by Ambassador Kārlis Zariņš, have provided an opportunity for an extended discussion of this aspect of state continuity.

References Beķere K (2017) The diplomatic service in exile: champions of Latvia’s independence and international challenges. In: Sprūds A, Ščerbinskis V, Potjomkina D (eds) The centenary of Latvia’s foreign affairs: activities and personalities. Latvian Institute of International Affairs, Riga, pp 122–135 Bilmanis A (ed) (1944) Latvian – Russian Relations (1944). Documents. The Latvian Legation, Washington Blūzma V (2000) Latvijas inkorporācija PSRS sastāvā un padomju tiesību uzspiešana Latvijai (1940 – 1941) [Incorporation of Latvian into the USSR and imposition of the Soviet law (1940 – 1941)]. In: Loeber DA (ed) Latvijas tiesību vēsture (1914–2000) [Latvian legal history (1914 – 2000)]. LU žurnāla “Latvijas Vēsture” fonds, Rīga, pp 283–348 Border Treaty (2018) Judgment in the case no. 2007-10-0102. In: Selected Case-Law of the Constitutional Court of the Republic of Latvia: 1996 – 2017. The Constitutional Court of the Republic of Latvia, Riga, pp 189–298. https://www.satv.tiesa.gov.lv/other/2018-ST-Zelta-gala %20versija.pdf Crawford J (2006) The creation of states in international law, 2nd edn. Clarendon Press, Oxford Crawford J, Boyle A Opinion: Referendum of the Independence of Scotland – International Law aspects. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attach ment_data/file/79408/Annex_A.pdf Deksnis EB, Jundzis T (2015) Restoration of sovereignty and independence of the Republic of Latvia 1986–1994. Latvian Academy of Science, Baltic Centre for Strategic Studies, Riga Dišlers K (1930) Ievads Latvijas valststiesību zinātnē [Introduction to the Latvian constitutional law]. A.Gulbis, Rīga Dual Citizenship (2018) Judgment in the case no. 2009-94-01. In: Selected Case-Law of the Constitutional Court of the Republic of Latvia: 1996 – 2017. The Constitutional Court of the Republic of Latvia, Riga, pp 514–542. https://www.satv.tiesa.gov.lv/other/2018-ST-Zelta-gala %20versija.pdf Hough WJH III (1985) The annexation of the Baltic states and its effect on the development of law prohibiting forcible seizure of territory. N Y School Law J Int Comp Law 6(2):301–533 Jelāgins J (1997) Latvijas rakstītā konstitūcija [The written constitution of Latvia]. Jurista Vārds [Lawyer’s Word], 14th May, No. 10 Jundzis T (2018) Regaining the independence of Latvia. In: Latvia and Latvians. Collection of scholarly articles in 2 volumes. Volume I. Latvian Academy of Science, Riga, pp 54–92

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Kelsen H (2006) General theory of law and state. Transaction Publishers, New Brunswick and London Krūma K, Plepa D (2016) Constitutional law in Latvia. Kluwer Law International B.V., Alphen aan den Rijn Kučs A (2015) Pilsonība [Citizenship]. In: Latvijas valsts tiesību avoti. Valsts dibināšana – neatkarības atjaunošana. Dokumentu krājums [The sources of the Latvian state law. Creation of state – restoration of independence. Collection of documents]. Tiesu Namu Aģentūra, Rīga, pp 141–167 Kučs A (2017) Latvijas pilsoņu kopuma atjaunošana [The restoration of the entity of citizens of Latvia]. In: Jundzis T (ed) Nepārtrauktības doktrīna Latvijas vēstures kontekstā [The doctrine of continuity in the context of Latvian history]. Latvijas Zinātņu Akadēmijas Baltijas stratēģisko pētījumu centrs, Rīga, pp 311–323 Lerhis A (ed) (2015) Latvijas Republikas oficiālā nostāja Latvijas diplomātiskā dienesta dokumentos 1940. - 1991.gadā [Official position of the Republic of Latvia in Latvian diplomatic service documents in 1940 – 1991]. LU Vēstures institūta apgāds, Rīga Lerhis A (2017) Latvijas Republikas diplomātiskais dienests – Latvijas de iure pastāvēšanas apliecinājums (1940 – 1991) [The diplomatic service of the Republic of Latvia – proof of existence de iure of Latvia (1940 - 1991)]. In: Jundzis T (ed) Nepārtrauktības doktrīna Latvijas vēstures kontekstā [The doctrine of continuity in the context of Latvian history]. Latvijas Zinātņu Akadēmijas Baltijas stratēģisko pētījumu centrs, Rīga, pp 183–226 Levits E (1991) Trimda – pilsoņu kopuma un latviešu nācijas sastāvdaļa [Exile – integral part of the entity of citizens and Latvian nation]. Diena, November 20, 225:2 Levits E (2000) 4.maija Deklarācija Latvijas tiesību sistēmā [4th May Declaration in the Latvian Legal System]. In: Jundzis T (ed) 4.maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju [4th May. Collection of articles, memories and documents about the Declaration of Independence]. LU žurnāla “Latvijas Vēsture” fonds, Rīga, pp 52–68 Levits E (2012) Latvijas pilsonība un tās reforma [Latvian citizenship and its reform]. Jurista Vārds [Lawyer’s Word], 3rd April, 14/15:13–17 Levits E (2018) Nozīmīgs spriedums par pilsonības nepārtrauktību valsts nepārtrauktības doktrīnas ietvarā [Important judgment about the continuity of citizenship in the context of the state continuity]. Jurista Vārds [Lawyer’s Word], 24th July, 30:23–24 McHugh JT, Pacy JS (2001) Diplomats without a country: Baltic diplomacy, international law and the Cold War. Greenwood Press, Westport and London Rinkēvičs E (2020) No spalvas līdz datoram – Latvijas interešu sardzē [From Pen to Computer – protecting interests of Latvia]. In: Drēģeris M (ed) Latvijas diplomātijas gadsimts. Latvijas diplomātijas un ārlietu dienesta pirmais gadsimts (1919–2019) diplomātu esejās [Century of Latvian Diplomacy. First century of the Latvian diplomacy and Foreign Office (1919–2019) in diplomat’s essays]. Zvaigzne ABC, Rīga, pp 11–19 Sajó A, Uitz R (2019) The constitution of freedom: an introduction to legal constitutionalism. Oxford University Press, Oxford Wilson W (1918) The State. Elements of historical and practical politics. D.C.Heath & Co, Boston, New York and Chicago Ziemele I (2005) State continuity and nationality: The Baltic States and Russia. Past, present and future as defined by international law. Martinus Nijhoff Publishers, Leiden and Boston Ziemele I (2009) The state border between Latvia and Russia and the doctrine of continuity of the Republic of Latvia. International and constitutional law in interaction. Baltic Yearb Int Law 9: 95–132 Ziemele I (2012) Pilsonības nepārtrauktības princips valsts nepārtrauktības situācijā [The principle of the continuity of citizenship in the case of the state continuity]. Jurista Vārds [Lawyer’s Word], 3rd April, 4/15:12

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Jānis Pleps is assistant professor in the Faculty of Law at the University of Latvia. His research interests lie in legal theory, constitutional law and legal history. Selected publications: Human Dignity in Latvia (co-author); The Constitutional Foundations of the Republic of Latvia; The law of the Baltic states (co-editor); The continuity of the constitutions: the examples of the Baltic states and Georgia; Role of the Latvian Central Council’s Practice in Interpretation of the Constitution of Latvia.

EU Minority Conditionality and the Rule of Law: The Case of Croatia Snježana Vasiljević

Abstract The idea of European integration and the motto ‘united in diversity’ can be seen as the connection between diverse European national cultures and the bridge between ‘old’ and ‘new’ Member States. On one hand, it is important to acknowledge that the rule of law is a necessary element of democratic survival in a multiethnic Europe. On the other hand, addressing the needs of minority groups in the post-war period in Croatia as the youngest Member State is a crucial component of rule-of-law reforms. Supporting minority rights can help to safeguard citizens respect for the rule of law and build confidence in a new, fragile justice system. Although pre-accession minority conditionality, proposed by the Copenhagen summit, has resulted in the implementation of international and European norms on minority rights in Croatian legislation, the lack of a monitoring mechanism after the accession has produced limited progress in the field of ethnic minorities protection.

1 Introduction After 1991, the break-up of former Yugoslavia caused a harsh war that changed the whole picture of the Western Balkans and also the state of minds therein. The notion of ethnic minorities on the territory of newly independent states was closely linked to religious affiliation and the expression of national identity as an indivisible part of the historical process in the former Yugoslavia.1 The consequences of the war and a 1

According to the 2011 Census, Croatia is inhabited mostly by Croats (90.42%). Among the ethnic minorities, the largest is the Serbian minority (4.36%), while other minorities each amount to less than 1% of the population (Albanians, Austrians, Bosnians, Bulgarians, Montenegrins, Czechs, Hungarians, Macedonians, Germans, Poles, Roma, Romanians, Russians, Ruthenians, Slovaks, Slovenians, Italians, Turks, Ukrainians, Vlachs, Jews). Members of national minorities are guaranteed the right to education in their language and script as defined by the Constitution of the Republic of Croatia, the Constitutional Act on the Rights of National Minorities and the Act on

S. Vasiljević (*) Department of European Public Law, Faculty of Law, University of Zagreb, Zagreb, Croatia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_10

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very complex economic and social situation aggravated the exercise of the rights of national minorities. During the accession period, Croatia put huge effort into fulfilling all the necessary conditions to join the EU, including the protection of human rights. The key criteria for accession were set by the European Council at the Copenhagen Summit in 1993 (the Copenhagen criteria)2 and stated “that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights, and the respect for and protection of minorities.”3 Moreover, Article 2 of the Treaty on European Union (TEU) which entered into force in 1993 stipulates: the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.4

As confirmed by the TEU, protection of human rights in all Member States is a central issue in building the rule of law in the EU. The idea of European integration and the motto ‘united in diversity’ can be seen as the connection between diverse European national cultures and the bridge between ‘old’ and ‘new’ Member States. On one hand, it is important to acknowledge that the rule of law is a necessary element of democratic survival in a multi-ethnic Europe. On the other hand, addressing the needs of minority groups in the post-war period in Croatia as the youngest Member State is a crucial component of rule-of-law reforms. Supporting minority rights can help to safeguard citizens respect for the rule of law and build confidence in a new, fragile justice system. Although pre-accession minority conditionality, proposed by the Copenhagen summit, has resulted in the implementation of international and European norms on minority rights in Croatian legislation, the lack of a monitoring mechanism after the accession has resulted in limited progress in the field of ethnic minorities protection. Education in the Language and Script of National Minorities. See: Croatian Bureau of Statistics, 2011. https://www.dzs.hr/hrv/censuses/census2011/results/htm/H01_01_04/h01_01_04_RH.html. 2 The Copenhagen criteria are the rules that define which country is eligible to join the European Union. In 1993, following the former communist countries’ application for EU membership, the European Council adopted three main criteria that candidate countries must meet if they want to become members: the political criterion—stability of institutions that ensure democracy, rule of law, respect for human and minority rights; acceptance of EU policy objectives; the economic criterion—the existence of an efficient market economy, and the ability of market factors to cope with competitive pressures and market laws within the EU; the legal criterion—the adoption of the entire EU acquis. In addition to these three criteria, each country wishing to become a full member of the EU must meet the fourth, administrative criterion (Madrid criterion), which requires the adjustment of appropriate administrative structures in order to ensure the conditions for gradual and harmonious integration. 3 European Council in Copenhagen (1993) Conclusions of the presidency, Copenhagen, SN 180/93, p. 12. 4 Consolidated Version of the Treaty on the European Union, OJ C326/13.

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EU minority conditionality, designed for the Central and Eastern European Countries (CEE) countries willing to join the EU, has evolved with respect to the Western Balkan region. In addition to the criteria that were originally designed for the CEE countries, second-generation minority conditionality was developed for the Western Balkans, requiring the sustained return of refugees and the pursuit of transitional justice and inter-ethnic reconciliation in a post-conflict setting. Expectations that Croatia would make progress in these important areas within a reasonable time plummeted very soon after joining the EU. In fact, the issues remain unresolved in Croatia. The biggest problems related to certain national minorities are the return of refugees and the resolution of their status (the Serbian national minority), social problems and the problems of integration (the Roma national minority), and the restitution of lost property (that of Serbs and Jews). This contribution attempts to answer the following questions: Does the EU have competence in ethnic minority protection? What are the objectives and outcomes of the harmonization of Croatian legislation and policy with EU standards on minority rights? Does the efficacy of EU conditionality necessarily deteriorate after accession? Have the changes to national legislation and minority policies generated by pre-accession conditionality improved minority rights following accession?

2 EU Legislative and the Policy Approach Towards Ethnic Discrimination 2.1

Rights of Ethnic Minorities in the Global Arena

To begin, this contribution attempts to answer the question of whether the EU has competence in ethnic minority protection? In order to understand the complex issue of ethnic minority protection at the international and European levels, this contribution first analyses the general legal framework of the protection of ethnic minorities in international and EU law. The protection of ethnic minority rights is one of the oldest concerns of international law. The trigger of progress in the court system regarding racial and ethnic discrimination was the historic verdict of the US Supreme Court in the case Brown v. Board of Education of Topeka, in which the US Supreme Court took the view that racial segregation in public schools, which was allowed by state law, was unconstitutional.5 This judgement represents a cornerstone of the legislative reform in the field of civil rights in the United States that resulted in the adoption of the Civil Rights Act of 1964,6 which outlaws discrimination based on race, colour, religion, sex, national

“[S]eparate educational facilities are inherently unequal” and therefore violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). 6 Civil Rights Act, 42 USCS § 2000e (1964). 5

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origin, and later—sexual orientation. It prohibits unequal application of voter registration requirements, racial segregation in schools and public accommodations, and employment discrimination. The civil rights movement in the United States reached its peak in the fight against institutional racial segregation and discrimination in the 1960s, but the prompt for international change was the assassination of Martin Luther King in 1968, who, in the history of modern civilization, in the post-World War II period, was among the most significant leaders in the fight against racism and discrimination. One year later, in 1969, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)7 entered into force and represents a key international treaty that defines racial discrimination as: any discrimination, exclusion, restriction or preference based on race, colour, origin, national or ethnic origin which have as their object or effect the violation or violation of the recognition, enjoyment or exercise, under equal conditions, of human rights and fundamental freedoms in political, economic, social, cultural or any other field in public life.8

The ICERD Preamble states that States Parties to this Convention are “convinced that any doctrine of superiority based on the distinction between races is scientifically false, morally unjust and socially unjust and dangerous, and there is no justification for racial discrimination in theory or in practice”.9 What constitutes the principle of non-discrimination on the grounds of racial or ethnic origin are the rights of persons belonging to racial, ethnic or national minorities to equality before the law and equal protection through law.10 Furthermore, the International Covenant on Civil and Political Rights of 1966 (which entered into force only in 1976) contains an independent law that clearly requires the law to prohibit discrimination “on any grounds such as race, colour, sex, language, religion, political or other belief, national or social origin, property status, birth or any other status” (Article 26).11 Article 26 does not define restrictions but prohibits discrimination in law or practice in any area regulated and protected by public authorities. Article 2, paragraph 1 not only obliges States to ensure protection but also prohibits discrimination under the law and guarantees all people equal and effective protection. The International Covenant on Economic, Social and Cultural Rights of 1966 (which also entered into force in 1976) equally prohibits

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Resolution 2106 A/XX/ 21/12/1965. Article 1(1) International Convention on the Elimination of All Forms of Racial Discrimination. 9 In 1963, the UN General Assembly adopted the Declaration on the Elimination of All Forms of Racial Discrimination, and, two years later, the Convention on the Elimination of All Forms of Racial Discrimination. 10 Vasiljević (2015), pp. 177–195. 11 The Republic of Croatia is a state party to the International Covenant on Civil and Political Rights of 6 October 1991 pursuant to the Decision on the Publication of Multilateral International Treaties to which the Republic of Croatia is a party on the basis of succession notifications. This decision was made by the Government of the Republic of Croatia on 30 September 1993 (Official Gazette International Agreements, No. 12/1993); Decision promulgating the Act ratifying the Optional Protocol to the International Covenant on Civil and Political Rights of 16 December 1966, Official Gazette 7/1995. 8

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discrimination, with a guarantee that this international treaty will be applied without discrimination on any grounds such as race, colour, sex, etc. (Art. 2).12 The Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) of 1995—the most comprehensive multilateral treaty in Europe—is devoted to combat discrimination, promote equality, preserve and develop the culture and identity of national minorities, guarantee certain freedoms in relation to access to the media, minority languages and education and encourage the participation of national minorities in public life. Article 25 of the Framework Convention binds Member States to submit a report to the Council of Europe containing “full information on the legislative and other measures taken to give effect to the principles set out in this framework Convention.”13 Article 14 of the European Convention on Human Rights (ECHR)—also an international treaty—explicitly prohibits discrimination in respect of the enjoyment of the rights contained in the Convention:14 The enjoyment of the rights and freedoms recognized in this Convention shall be ensured without discrimination on any grounds, such as sex, race, colour, language, religion, political or other opinion, national or social origin, belonging to a national minority, property, birth or other circumstance.15

The ECHR does not have specific provisions on the protection of racial or ethnic groups, but protects against racial and ethnic discrimination through a general prohibition of discrimination by Article 14 of the Convention, including

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International Covenant on Economic, Social and Cultural Rights of 16 December 1966 (Decision on the publication of multilateral international agreements to which the Republic of Croatia is a party on the basis of notifications of succession, Official Gazette/International Agreements 012/1993). 13 Council of Europe, Framework Convention for the Protection of National Minorities, 1 February 1995, ETS 157. 14 In addition, Article 14 of the ECHR is of a subsidiary nature as the ECtHR examines an alleged violation of Article 14 of the Convention in relation to an article containing substantive Convention law only if there is “clear inequality of treatment in the enjoyment of the right in question”, for this is the “fundamental aspect, of the case in question.” Read more in ECtHR, Airey v. Ireland Application No. 6289/73 (1979). 15 Article 14 of the EC explicitly states discriminatory grounds, and, thanks to the so-called openclause, “other circumstances”. Potential other grounds include: marital status (adoption), sexual orientation, legality or illegality at birth, professional status, and military status or military rank. Its Protocol 12 prohibits discrimination not only in relation to the rights contained in the ECHR, but also in relation to the rights protected by national regulations. However, the prohibition of discrimination within the meaning of Article 14 is not considered an independent substantive or substantive Convention right and is limited to the substantive Convention rights governed by Articles 2 to 13 of the Convention and the relevant provisions of the Protocols relating thereto. Norms of European primary and secondary law are independent in nature, but are limited in scope. The scope of Article 14 of the ECHR is limited if the circumstances of a particular case go beyond the scope of a Convention law, interpreted in accordance with the case law of the ECtHR, and then there is no possibility of invoking Article 14 of the Convention.

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discrimination on the ground of association with a national minority. In other words, racial discrimination in a broader sense includes ethnic discrimination.16 In order to support this argument, the European Court on Human Rights (ECtHR) in Sejdić and Finci v. Bosnia and Herzegovina17 considered ethnic discrimination to be part of racial discrimination in the broader sense.18 Such a broad interpretation of racial discrimination was initially established by the ECtHR in the case of Timishev v. Russia:19 Ethnicity and race are linked concepts that overlap. While the notion of race is rooted in the idea of the biological classification of human beings into subspecies according to morphological features such as skin colour or facial characteristics, ethnicity has its roots in the idea of social groups marked by common nationality, tribal affiliation, religion, common language or cultural and traditional sources and grounds.20 Discrimination on the basis of one’s actual or perceived ethnicity is a form of racial discrimination.21 In conclusion, since the applicant’s right to freedom of movement was restricted only on the basis of ethnic origin, such a difference constitutes racial discrimination within the meaning of Article 14 of the ECHR. There has accordingly been a violation of Article 14 in conjunction with Article 2 of Protocol No. 14.22

As the ECHR, as the most powerful international human rights treaty in Europe, enjoys a special status in the EU legal order, it is important to understand how EU law actually protects ethnic minority rights. Moreover, as the Court of Justice of the European Union (CJEU) does not yet have well-developed case law in the field of racial or ethnic discrimination, it draws its inspiration from the already established case law of the ECtHR. We will explain how EU law recognizes racial or ethnic discrimination in the following section.

2.2 2.2.1

Rights of Ethnic Minorities in the EU Development of the Ethnic Minority Protection in the EU

The protection of ethnic minorities rights was a condition for membership of the new Member States long before the legal framework for the protection of ethnic 16

Handbook on European anti-discrimination law (2010), Fundamental Rights Agency, Vienna. ECtHR, Sejdić and Finci v. Bosnia and Herzegovina, Application No. 27996/06 & 34836/06. 18 A problem could arise if the CJEU interpreted a provision of Directive 2000/43/EC with regard to specific measures in the way it interpreted a similar provision with regard to specific measures in the field of gender equality. For example, if it is about employment, then it would mean giving preference to the underrepresented group (if all the conditions from the tender are met), which is in fact a solution that is already regulated in the Croatian legal framework in Article 22(a) of the Constitutional Law on Protection of National Minorities. 19 ECtHR, Timishev v. Russia, Application No. 55762/00 and 55974/00. 20 ECtHR, Timishev v. Russia, Application No. 55762/00 and 55974/00, para 55. 21 ECtHR, Timishev v. Russia, Application No. 55762/00 and 55974/00, para 56. 22 ECtHR, Timishev v. Russia, Application No. 55762/00 and 55974/00, para 57. 17

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minorities was established at the level of European legislation. One of the EU accession criteria set up by the European Council at the Copenhagen Summit in 1993 was “that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights, and the respect for and protection of minorities.”23 Conditionality was designed for CEE countries as a tool for democratic development and Europeanisation. Moreover, as Sasse claims, “the issue of minority rights is a test for the very notion of conditionality.”24 Although the protection of ethnic minorities in the last decade of the 20th century is an example of the policy of European active external relations in the processes of stabilization and association of CEE countries, it is also an example of the shortcomings of the European regulatory framework in matters of the protection of ethnic minorities. Although the EU is considered a multiethnic community, the protection of minority interests is at the heart of European human rights activism through various policies and soft law mechanisms, as human rights have long been out of the EU’s focus and have not initially enjoyed special protection through European legislation. “The EU has in fact promoted norms which lack a basis in EU law and do not directly translate into the acquis communautaire. Minority rights fall outside the EC’s and the EU’s traditional catalogue of fundamental freedoms and competences.”25 However, “the Treaty of Maastricht (1992) incorporated for the first time in the history of the EU specific provisions on fundamental rights and a vague recognition of the requirement that the Community shall respect ‘national and regional diversity’ within the Member States”.26 The EU’s external relations with the countries that emerged from the disintegration of communism and aspired to EU membership have encouraged the EU to reconsider its own approach and has had a long-term impact on the rethinking of the EU’s internal values, objectives and policies. In fact, only with the Treaty of Lisbon in 2009 would the standard of respect and protection of minority rights considered part of the acquis communautaire. Obviously, the EU has given more significance to ethnic minority rights in its external relations during the enlargement process, but the same standard does not apply to old Member States. For the countries that aspire to become EU Member States, the standards concerning minority rights are contained in the Copenhagen criteria, where the direct reference was made to the “respect and protection of minority rights.” The principle of conditionality, set up by the Copenhagen criteria, “serves as the basic guideline for the Commission which administers the applications for EU 23

European Council in Copenhagen (1993) Conclusions of the presidency, Copenhagen, SN 180/93, p. 12. 24 Sasse (2005), p. 9. 25 Ibidem. 26 Article 6 TEU stipulated that “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law”. Consolidated version of the Treaty on European Union, OJ C 326, 26.10.2012, p. 13-390.

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membership”.27 According to Kochenov, the Commission’s choice is crucial “to bring about various levels of compliance.”28 The protection of minority rights is an essential element of the fundamental rights and the rule of law protection. Minority rights include individual rights as applied to members of racial, ethnic, class, religious, linguistic, gender or sexual minorities and the collective rights accorded to any minority group. The protection of ethnic minorities is extremely important in times of crisis, especially because racial and ethnic minorities have suffered disproportionally during the Coronavirus crisis.29 This part of the contribution will analyse how European law prohibits racial or ethnic discrimination through primary and secondary law. In European primary law, the Founding Treaties contain the general principles on which the Union is founded,30 and also some specific provisions on the prohibition of discrimination.31 Through European secondary law, what we today call European anti-discrimination law, has developed. There are two key directives that have enriched the content of European anti-discrimination law based on the general and specific provisions of the Founding Treaties: Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin32 and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.33

2.2.2

European Primary Law

The adoption of Article 13 in the Treaty establishing the European Community (TEC),34 now Article 19 of the Treaty on the Functioning of the European Union (TFEU),35 which, although not directly effective, has nonetheless enabled directives to be adopted to combat discrimination on the grounds of racial or ethnic origin, age, disability, religion and sexual orientation. This provision extended the prohibition of sex discrimination (Article 119 TEC, now 157 TFEU) to other forms of discrimination based on race, ethnic origin, ability, age and sexual orientation. The adoption of 27

Kochenov (2008), p. 39. Kochenov (2008), p. 79. 29 ENAR (2020) Policy paper: #CovidImpact - Lifting structural barriers: A priority in the fight against racism, Brussels. 30 Case 29/69 Stauder ECLI: ECLI:EU:C:1969:57. 31 141 EEC and 19 TFEU, Article 21 of the Charter of Fundamental Rights. 32 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19.7.2000, pp. 22–26. 33 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, pp. 16–22. 34 Treaty Establishing the European Community (Consolidated Version), Rome Treaty, 25 March 1957. 35 European Union, Consolidated version of the Treaty on the Functioning of the European Union, 26 October 2012, OJ L 326/47-326/390; 26.10.2012. 28

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Article 13 reflects the growing recognition of the need to develop a coherent and integrated approach to combating certain forms of discrimination, as well as multiple discrimination. Anti-discrimination measures are also included in the EU’s core objectives.36 In addition, the Treaty of Amsterdam strengthens the existing provisions on the protection of human rights in the Treaty on European Union (Articles 6 and 7) by introducing a number of principles on which the Union is founded (“freedom, democracy, respect for human rights and fundamental rights and the rule of law”), and the hitherto valid prohibition of remuneration discrimination between men and women extended to the promotion of gender equality in all areas of life and the prohibition of any discrimination based on sex, race, ethnic origin, ability, age and sexual orientation.37 However, Article 13 of the TEC is not the only provision in the founding treaties that prohibits discrimination. For example, Article 2 TEU states that the Union is based, inter alia, on the values of respect for human dignity, equality and respect for human rights, and Article 3 TEU states that the European Union has an obligation, inter alia, to combat social exclusion and discrimination. The general principle of non-discrimination is part of the general legal principles of the EU that have emerged from the case law of the Court of Justice of the EU and form part of European primary law. Of particular importance in primary European law today is the EU Charter of Fundamental Rights (EU Charter), which in Article 21 contains a guarantee of non-discrimination on a number of grounds, referring to racial or ethnic discrimination in situations where the EU Charter applies. In particular, Article 21 of the EU Charter prohibits discrimination based on racial or ethnic origin.38 The previously analysed provisions of EU primary law are elaborated in detail through EU secondary law.

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The article obliged the Council of Ministers to take concrete action, so two directives and an action programme for the period from 2001 to 2006 were adopted. 37 Article 13 TEC: “1. Without prejudice to other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. Treaty establishing the European Community (consolidated version 1997), OJ C 340 of 10 November 1997. 38 Article 21 of the EU Charter: 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited. Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, pp. 391–340.

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European Secondary Law

The European Commission decided to give effect to the powers listed in Article 13 of the TEC and in 1999 adopted a package of proposals. This led to the unanimous adoption of key directives in 2000 aimed at providing effective legal protection against discrimination to all individuals living in the territory of the European Union.39 Discrimination on the grounds of race and/or ethnic origin is widespread in Europe.40 In the late 1990s, political circumstances in Europe indicated the growing need for a stricter prohibition of discrimination on the grounds of racial and/or ethnic origin. Strengthening the right wing party in Austria accelerated the adoption of the new Directive 2000/43/EC on the application of the principle of equality between persons irrespective of racial or ethnic origin, which, in the history of secondary European legislation, was one of the most rapidly adopted legislative acts at the EU level. Nevertheless, it took a very long time for Member States to transpose Directive 2000/43/EC into national law. The development of anti-discrimination law at the European level encourages the fight against racism on two levels: through racial equality and racial justice.41 The purpose of Directive 2000/43/EC of 29 June 2000 on the application of the principle of equality between persons irrespective of racial or ethnic origin is to establish frameworks to combat discrimination based on racial or ethnic origin in order to apply the principle of equality in the Member States. Directive 2000/43/EC does not define the terms racial or ethnic origin.42 Since Directive 2000/43/EC does not define these terms, Member States must decide whether to define them in their national law. Under Article 3(1)(h), discrimination is prohibited in relation to “access to and provision of products or services that are available to the public, including housing”. The Directive applies to “the public and private sectors, but certain actions of Member States (e.g. the police) could involve the exercise of public authority without an element of the provision of a ‘service’ in the sense of the term in the Treaties and the case law of the CJEU”. In parallel with the adoption of Directive 2000/43/EC, Directive 2000/78/EC on employment equality was adopted, which aims to combat discrimination based on religion, age, disability and sexual orientation in the areas of employment,

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Council Directive 2000/43/EC adopting the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L 180 and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303. 40 ENAR (2017). Shadow report on racism & discrimination in employment in Europe 2013–2017. 41 Petrova (2001). 42 In 2007, the European Commission instituted proceedings against fourteen Member States for late or incomplete implementation of the Racial Equality Directive 2000/43 and against seventeen Member States for non-implementation of the Equal Employment Opportunity Directive 2000/78. The European Commission’s EU Action Against Discrimination Activity Report 2007–2008, sec. 2.1.1.

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promotion and advancement. Both EU directives are key for the suppression of discrimination and prescribe the minimum standards of protection against discrimination which must be laid down in national rules and the minimum obligations of the Member States relating to the adoption of provisions and mechanisms for the implementation and application of such rules and the promotion of equal treatment. Both directives had 3 years for their transposition into national law, with some Member States requesting an extension. Both anti-discrimination directives prohibit discrimination on the grounds of racial or ethnic origin (Directive 2000/43/EC) and religion or belief, disability, age or sexual orientation (Directive 2000/78/EC). Protection is provided in a number of key areas of life: employment and vocational training (both directives), education, social security and health, and access to and supply of products and services, including housing (Directive 2000/43/EC). Various forms of discrimination are prohibited: direct and indirect discrimination, harassment, incitement to discrimination and victimisation, and Member States are required to provide effective sanctions and remedies. In addition to Directive 2000/43/EC and Directive 2000/78/EC, the Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law defines racism and xenophobia as acts involving violence and hatred directed against groups based on race, colour, religion, origin and national or ethnic origin important in combating racism and xenophobia.43 In short, the Framework Decision is aimed at combating hate speech which, in most cases, represents a form of direct racial or ethnic discrimination. One of the definitions of hate speech is contained in the appendix to the Recommendation of the Council of Europe Committee of Ministers No. R (97) 20 on hate speech. The document states that: hate speech includes all forms of expression that spread, incite, incite or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed in the form of aggressive nationalism and ethnocentrism, and discrimination and hostility towards minorities, migrants and persons of immigrant origin.44

The ECtHR in Strasbourg defines hate speech as “any form of expression that spreads, encourages, promotes, or justifies hatred based on intolerance, including religious intolerance”.45 Although the CJEU has not yet explicitly discussed hate speech, in its ground breaking direct race and ethnic discrimination case, the Feryn judgment, Advocate

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Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L 328/55. 44 Recommendation No. R (97) 20 of the Committee of Ministers to Member States on “hate speech”, 30 October 1997. 45 ECtHR, Le Pen v. France, Application No. 18788/09; Feret v. Belgium, Application No. 15615/ 07.

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General Maduro in his opinion speaks about a ‘speech act’.46 Discrimination and discriminatory speech based on racial or ethnicity is prohibited by Directive 2000/ 43/EC. The Feryn judgment is an example of direct racial discrimination as defined by Directive 2000/43 (Article 2), takes direct discrimination to occur where a person is treated less favourably than another is, has been, or would be, treated in a comparable situation. However, indirect discrimination is more frequent on an everyday basis but is difficult to recognise. In the case of indirect discrimination, the truly discriminatory effects result indirectly and covertly from the application of some seemingly neutral legal norms (criteria or practices). Indirect discrimination exists when a certain seemingly neutral provision, criterion or practice places at a disadvantage, or would disadvantage, a person because of his or her particular characteristics, status, affiliation, beliefs or value system that form the basis for the prohibition of discrimination.47 In practice, indirect discrimination is very difficult to prove, so it is not surprising that in Croatian case law we do not find final judgments on indirect discrimination. Nevertheless, inspiration can be found in recent ECtHR decisions. In Oršuš v. Croatia,48 for example, the placement of Roma children in special classes is a procedure used in a very small number of primary schools, i.e. in four schools, in only one region, due to the high proportion of Roma students in these schools.49 In an unanimous decision, the ECtHR found that the applicants right to a trial within a reasonable time had been violated because it had taken the Constitutional Court of the Republic of Croatia more than 4 years to resolve this case, especially given that it was an important case concerning the right to education of children. With regard to the complaint of discrimination in education, the ECtHR found, by a narrow majority (9:8 votes), indirect discrimination against the applicants while attending primary school. The ECtHR explicitly emphasized the efforts of the Republic of Croatia to ensure the education of Roma children, the fact that there was no discriminatory intention on the part of Croatian authorities, and that other positive measures were taken, such as providing free education after primary school. However, taking into account the circumstances of the case at hand and acknowledging the efforts made by the Croatian authorities to provide education for Roma children, the Court considered that at the relevant time there were no adequate guarantees to ensure and maintain reasonable proportionality between the means

“By publicly stating his intention not to hire persons of a certain racial or ethnic origin, the employer is, in fact, excluding those persons from the application process and from his workfloor. He is not merely talking about discriminating, he is discriminating. He is not simply uttering words, he is performing a ‘speech act’”, Opinion of the advocate general Miguel Poiares Maduro delivered on 12 March 2008 in case C-54/07 Feryn, ECLI:EU:C:2008:155, para. 16. 47 For the purposes of Directive 2000/43/EC, “indirect discrimination exists if a seemingly neutral provision, criterion or practice would place persons of a particular racial or ethnic origin at a particular disadvantage compared to other persons, unless such a provision, criterion or practice is objectively justified by a legitimate aim, and the means to achieve it are appropriate and necessary”. 48 ECtHR, Orsus and others v. Croatia [GC] Application No. 15766/03. 49 ECtHR, Orsus and others v. Croatia [GC] Application No. 15766/03, para 66. 46

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employed and the legitimate aim pursued. It follows that the assignment of applicants to exclusively Roma classrooms at certain periods during their primary education was not objectively and reasonably justified.50 Thus, a violation was established due to the lack of a clear and specific legal basis for placing children who did not know Croatian in separate classes, and due to the lack of transparency and clear criteria for transferring children from Roma to mixed classes. The ECtHR therefore found that there had been a violation of Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 in the case.51 In addition to defining direct and indirect discrimination and harassment,52 Directive 2000/43/EC allows Member States to maintain or adopt specific measures aimed at preventing or compensating for disadvantages related to racial or ethnic origin.53 The added value of this Directive is the recognition of the concept of multiple discrimination, but the definition of the problem is left to the Member States. Thus, Recital 14 of the Directive states that: In implementing the principle of equal treatment regardless of racial or ethnic origin, the Community should, in accordance with the provisions of Article 3(2) of the EC Treaty, aim to eliminate inequalities and promote equality between men and women, especially since women are often victims of multiple discrimination.

Despite the enriched legislative anti-discrimination framework, there is still sparse case law of the CJEU in the field of ethnic discrimination, what there is concerned with issues of language discrimination.54 Looking at the legal framework for the protection of fundamental rights in the EU and the active role of the CJEU in the protection of fundamental rights, it can be concluded that the answer to the initial question in this section about whether fundamental rights enjoy effective legal protection in the EU is positive. The EU’s system of protection of fundamental rights comprises primary and secondary EU legislation, and the support mechanism of equivalent protection at the level of the Council of Europe through the European Convention. However, the existing system has some limitations. The EU can only act in areas for which it has competence, and

50

ECtHR, Orsus and others v. Croatia [GC] Application No. 15766/03, para 184. ECtHR, Orsus and others v. Croatia [GC] Application No. 15766/03, para 185. 52 For the purposes of Directive 2000/43/EC, harassment is discrimination in the event of undesirable behaviour related to racial or ethnic origin aimed at or affecting a person’s dignity and creating an environment in which there is intimidation, hostility, degradation, humiliation or assault. In that context, the concept of harassment may be determined in accordance with the provisions of the national law and practice of the Member States. Encouraging discrimination against persons on the grounds of racial or ethnic origin is also considered discrimination, and the directives do not insist on the existence of intent. 53 Article 22(a) of the Croatian Constitutional Act on Rights of Ethnic Minorities introduced a specific measure to increase the number of members of ethnic minorities in the public sector. 54 Case C-42/97, European Parliament v Council of the European Union. Council Decision 96/664/ EC - Promotion of linguistic diversity of the Community in the information society - Case C-42/ 97, ECLI:EU:C:1999:81; C-137/84 Mutsch ECLI:EU:C:1985:335, C-274/96 Bickel & Franz ECLI: EU:C:1998:563. 51

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that is when it applies EU law.55 Additionally, the EU Charter does not provide unlimited protection, i.e the rights guaranteed by the EU Charter are not absolute, and the restrictions of certain rights are subject to control and to the principle of proportionality. In essence, the EU Charter embodies a large number of rights already contained in the European Convention. However, viewed individually, each of them represents a separate mechanism of legal protection and is the basis of the jurisprudence of two different European courts. In other words, in order to establish an effective and efficient human rights protection mechanism on the entire continent, dialogue and cooperation between national and European courts is necessary.

2.2.4

Fundamental Rights and the Rule of Law in the EU

Despite the comprehensive EU anti-discrimination legal framework and proactive EU conditionality policy, in the struggle to improve the process of stabilization in the area of the Western Balkans, the lack of precise and consistent conditionality standards has resulted in the systematic erosion of fundamental rights, including the rule of law after the accession. In my opinion, the protection of human rights and ethnic minorities is an essential component of the concept of rule of law in the EU. Although the rule of law is protected within the EU legal framework, there are certain limitations in its effective protection stemming from the EU’s strictly defined competences in the Founding Treaties. Nevertheless, in its recent case law, which will be analysed below, the CJEU has sought to ‘push’ these boundaries and move beyond its current jurisdiction by taking an active role as a ‘guardian’ of the rule of law throughout the EU.56 Values captured by Article 2 TEU on which the EU is founded are respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society where pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. It follows from the wording of Article 2 TEU that the rule of law is one of the fundamental values of the Union. In addition, the rule of law is a constitutional principle and the foundation of a democratic system in all Member States, necessary to ensure the protection of fundamental rights. Thus, Pech believes that “the rule of law is not only a common political idea, but has also become a legal principle of constitutional value in most European countries”.57

55

Case C-617/10 Ackerberg Fransson ECLI:EU:C:2013:105. Case C-64/16 Associação Sindical dos Juízes Portuguese protiv Tribunal de Contas; Case C-284/ 16 Achmea ECLI:EU:C:2018:158; Case C-216/18 PPU LM ECLI:EU:C:2018:586; Case C-621/18 Wightman ECLI:EU:C:2018:999; Case C-619/18 R Commission v. Poland ECLI:EU:C:2018:1021. 57 Pech (2009), p. 42. 56

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The rule of law is a precondition for the functioning of the internal market58 and mutual trust in institutions and the judicial system. Faced with a new systematic disabling of controls and changes in constitutional arrangements by newly elected autocratic leaders, the EU institutions have faced an unexpected challenge, as the assumption that the application of the so-called conditionality policies in the pre-accession period guarantee that states will not be able to become Member States if it is not a consolidated democracy based on the rule of law. Such an assumption proved to be wrong.59

The European Commission responded to systematic threats to the rule of law in Poland and Hungary in 2014 by adopting a preventive Framework for the Rule of Law60 to address existing threats to the rule of law in all Member States. The aim of the Rule of Law Framework is to prevent a further escalation of the collapse of the concept of the rule of law and the potential initiation of legal proceedings by the Commission under the mechanism provided in Article 7 TEU. This is achieved through dialogue with the EU country concerned. The Commission established the Rule of Law Framework in 2014,61 and its role has been recognized by the CJEU.62 The Rule of Law Framework allows for a gradual process of dialogue with the Member States, structured on the basis of the Commission’s opinions and recommendations.63 Today, more than ever, there are more and more debates on whether the EU should sanction Member States for violating the rule of law and fundamental rights. The annual rule of law review made by the European Commission on 1 October 2020 condemned Hungary, Bulgaria, Romania, Croatia and Slovakia for insufficiently ensuring the courts’ independence. The majority of EU countries backed the German EU presidency’s proposal to suspend EU funds in the case of rule-of-law breaches.64 In 1986, the CJEU, in its historic judgment in Les Verts, found that the EEC is a Community based on the rule of law, as neither its Member States nor the institutions can avoid questioning whether the measures they adopt are in line with the foundations laid down in the Founding Treaties.65 The Les Verts case is significant in that it is the first case in which the CJEU found that the European Union is based on ‘the rule of law’. It was not until 2006 that the CJEU ruled that the notion of ‘independence of the judiciary’ was an autonomous notion of EU law and that this meant that judges must be protected from any outside intervention that could jeopardize their independent

58

The rule of law is also one of the principles guiding the EU’s external action (Article 21 TEU). Pech and Kochenov (2019). 60 Communication from the Commission to the European Parliament and the Council “A new EU Framework to strengthen the Rule of Law” COM (2014) 158 final. 61 Ibidem. 62 Case C-619/18 Commission v. Poland ECLI:EU:C:2018:1021. 63 The first, and so far the only, use of the Rule of Law Framework began a dialogue with Poland in January 2016. 64 Zalan (2020). 65 Case 294/83 Les Verts ECLI:EU:C:1986:166, para 23. 59

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judgment.66 In 2018, a number of important judgments followed. First, the CJEU held that Member States must ensure under EU law that their courts meet the requirements of effective judicial protection, a concrete expression of the rule of law and that the independence of national courts is crucial to ensure such judicial protection.67 In other judgments, the CJEU has defined in more detail the requirements of guarantees of independence and impartiality, noting their key importance for the proper functioning of the judicial cooperation system embodied in the previous judgment mechanism under Article 267 TFEU and for secondary sources of law based on mutual trust.68 The CJEU has also issued interim measures to suspend national reforms that would affect the independence of the judiciary.69 There are a number of pending cases before the CJEU related to the rule of law. Fundamental rights are intrinsically linked with the concept of the rule of law. In this regard, I agree with Šimonović, the former UN Assistant Secretary-General for Human Rights, who stated: Without entering into theoretical debates whether the rule of law is only a technical mechanism for subjecting everyone in the state, including the head of state, to laws, or includes the substantive harmonization of laws with human rights, as provided by the UN definition, it is clear that in real life rights and human rights are inseparable. Without the rule of law, human rights cannot be realized. Without human rights, the rule of law is a technical mechanism without a value guideline.70

Given the analysis of the existing EU legal framework and the case law of the CJEU, the question arises as to whether fundamental rights and the rule of law enjoy effective legal protection in the EU. By analysing the provisions of the Founding Treaties and the EU mechanism called the Rule of Law Framework, the rule of law as a concept has been recognized at the very core of the EU’s core values. Fundamental rights are protected by primary European law (founding treaties, general principles, the EU Charter), but also by the European Convention and the constitutional traditions of the Member States. In the field of protection of fundamental rights, there is already a rich case law of the CJEU and the ECtHR, while in the field of interpretation of the content of the rule of law, it is very scarce. The rule of law is still a whirlwind of differing understandings and interpretations, but it is undeniably an important backbone to support the European institutions in continuing to work for an even stronger Union that will provide its citizens with legal certainty and confidence. However, the kinds of political turmoil and legislative reforms seen in Poland and Hungary warn us that every debate on the rule of law has two sides and

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Case C-506/04 Wilson, ECLI:EU:C:2006:587. Case C-64/16 Associação Sindical dos Juízes Portugueses ECLI:EU:C:2018:117; Case C-49/18 Escribano Vindel ECLI:EU:C:2019:106. 68 “In terms of the composition of a judicial body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members as well as of the disciplinary regime governing judges.” Case C-216/18 PPU LM, ECLI:EU:C:2018:586. 69 Case C-619/18 R, Commission v. Poland ECLI:EU:C:2018:910. 70 Šimonović (2012). 67

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that in different circumstances and in different Member States the rule of law can be understood and interpreted differently. However, for the EU to function as a community of states, the fundamental values as set out in the Founding Treaties need to be uniformly and uniquely interpreted in order for a European value system based on the principles of solidarity, loyalty and mutual trust to remain stable and resilient in future political and economic crises. In the current discussion, the precise question is “do the violations of human rights lead to a deterioration of the concept of rule of law?” The protection of fundamental human rights is a necessary precondition for the survival of the concept of the rule of law. Member States have an obligation to refrain from violations of fundamental rights, but also a positive obligation to protect and promote them. For such protection to be effective, it is necessary to have an independent and impartial judiciary capable of ensuring adequate rule of law.71 Moreover, the uncoordinated restrictions of fundamental rights in Member States in times of crisis, such as nowadays the global Covid-19 pandemic, lead us to the conclusion that the rule of law in the EU cannot survive if we do not have a coordinated approach to human rights protection in all Member States. For instance, if one Member State protects the rights of racial and ethnic minorities and others do not, their fundamental rights might be limited, or they can be discriminated against in a Member State which violates the rights of ethnic minorities. Consequently, their right to free movement might also be restricted. For instance, if a Croat or a member of the Serb national minority living in Croatia, where they enjoy the right to express themselves in their own language and script, wishes to live and work in Slovenia, they will not enjoy the same rights, as Slovenia does not recognize these rights. In September 2020, the Committee of Ministers of the Council of Europe reiterated its longstanding recommendation that Slovenian authorities recognize Croatian, German and Serbian, which are present in parts of Slovenia, as traditional minority languages.72 Despite the proactive external relations and conditionality policy, in the struggle to enhance the process of stabilization in the area of the Western Balkans, the lack of precise and consistent conditionality standards has resulted in the systematic erosion of fundamental rights, including ethnic minority rights after the accession of Central and Eastern European countries to the EU. The examples of Hungary, Poland and Croatia bear witness to how the lack of monitoring mechanisms can decrease the achieved standards which may consequently diminish or even endanger the existence of the rule of law as a fundamental value of the EU. Although the policy of conditionality towards candidate countries is often perceived positively, practice often shows that such a policy is neither appropriate nor applicable to the Western Balkans. By insisting on meeting the formal requirements for the EU membership, the candidate countries have focused all activities on achieving the formal legal

71

Corstens (2014). Council of Europe (2019) Report of the Committee of Experts presented to the Committee of Ministers of the Council of Europe in accordance with the Article 16 of the Charter, Fifth Report: Slovenia.

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requirements while minimizing the effectiveness and application of such solutions in practice. One of the reasons is certainly distrust in institutions, especially in the judiciary, and the lack of timely and radical reforms. Systematic human rights violations in some Member States have already prompted EU institutions to take specific steps and measures to prevent a further escalation of the collapse of the protection of fundamental human rights, and consequently the concept of the rule of law. Thus, in the cases of Bulgaria and Romania, the European Commission established the so-called Cooperation and Verification Mechanism, which assesses and supports the progress of Bulgaria and Romania in certain areas, such as judicial reform, the fight against corruption and organized crime, in line with the Commission Decision establishing the Cooperation and Verification Mechanism.73 In October 2016, the European Parliament adopted a Resolution on the EU Mechanism on Democracy, Rule of Law and Fundamental Rights.74 The resolution calls on the Commission to establish comprehensive monitoring of all EU Member States and institutions and an annual cycle of reporting and recommendations. This call was repeated in 2018.75 In addition, the European Parliament adopted resolutions on the rule of law in several Member States.76 The challenges of protecting fundamental rights in the EU occur daily. Given the space restrictions of this contribution, a comprehensive analysis of all the rule of law issues in the EU is not possible, but the following section will highlight why the protection of ethnic minority rights in one Member State is an essential element of the rule of law and why the protection of fundamental rights and the rule of law are among the EU’s fundamental values.

73

The Cooperation and Verification Mechanism (CVM) was established as a transitional measure under the Accession Treaty with Bulgaria and Romania on 1 January 2007, operating in the so-called third safeguard clauses formally introduced by a Commission decision of 13 December 2006. For the first time in the history of the EU, the new Member States were placed under a supervisory mechanism after accession. 74 European Parliament resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/ 2254(INL)). 75 European Parliament resolution of 14 November 2018 on the need for a comprehensive EU mechanism for the protection of democracy, the rule of law and fundamental rights (2018/2886 (RSP)). 76 “Establishing an EU mechanism on democracy, rule of law and fundamental rights”. Available at: https://www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-rights/ file-eu-mechanism-on-democracy-the-rule-of-law-and-fundamental-rights.

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3 Ethnic Minority Conditionality and the Rule of Law in Croatia 3.1

Race and Ethnic Discrimination Before and After Croatia Joined the EU

Building on the debate over the protection of fundamental rights and the rule of law in the EU, in the case of the Republic of Croatia, by tracing the situation during and after negotiations in the field of the protection of ethnic minorities, I will try to answer the question of whether there has been progress in protecting fundamental rights since accession to the EU. Given that human rights and the rule of law are fundamental European values and that human rights are an integral part of the rule of law, it is important that Member States respect the common values agreed to in the Founding Treaties. If Member States treated common core values differently, this would jeopardize the survival and integrity of the European Union in the long run. Croatia joined the EU in July 2013. The outcome of the harmonization of Croatian legislation and policy on minority rights with EU standards is the adoption of a wide range of anti-discrimination legislative measures. Ethnic discrimination is regulated through special provisions on the rights of national minorities. However, it took Croatia a long time to create effective legal protection and a comprehensive legislative framework for the promotion of the rights of national minorities. Minority policy marked a turning point in the protection of human rights and is the cradle of Croatian anti-discrimination law. The Croatian Constitution prohibits racial and other discrimination, and in Article 14 it lists discriminatory grounds in addition to the so-called open clause ‘other characteristics’: Everyone in the Republic of Croatia has rights and freedoms, regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, education, social status or other characteristics.77

The Constitution of the Republic of Croatia guarantees the equality of members of all national minorities. Equality and protection of the rights of national minorities are regulated by a constitutional act (Article 15).78 The first Constitutional Act on Human Rights and Freedoms and the Rights of Ethnic or National Communities or Minorities was enacted in December 1991. This Constitutional Act guaranteed national minorities and communities human rights and freedoms, cultural autonomy, the proportional participation of minorities in representative and other bodies, the special status of municipalities in which members of a minority make up more than one-half, a share in municipal courts and police administrations in proportion to the population, education in the language and 77

Croatian Constitution, Article 14, Official Gazette No. 41/01. The Constitution guarantees members of all national minorities the freedom to express their nationality, the freedom to use their language and script and cultural autonomy.

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script of national minorities, and other rights. The obligation to adopt the new Constitutional Act on the Rights of National Minorities dates back to 1996, to Croatia’s accession to the Council of Europe, and the Council of Europe Resolution of February 2002 on the implementation of the Framework Convention for the Protection of National Minorities,79 the Reports of the European Commission on the Stabilization and Accession Agreement of April 2002 and the Mission’s Status Report of June 2002.80 With the adoption of the new Constitutional Act Croatia fulfilled one of the conditions for membership in the European Union.81 Compared to the previous Constitutional Act, the number of minority Members of Parliament increased from five to eight, and minorities were given the right to elect their representatives in local and regional self-governments. Two new institutions were also established: councils and representatives of national minorities in local and regional self-government units. The new Constitutional Act also established the Council for National Minorities, for the purpose of increasing the participation of national minorities in the public life of the Republic of Croatia, and especially considering and proposing regulations and resolving issues related to exercising and protecting the rights and freedoms of national minorities. The criterion for the protection of human rights is one of the Copenhagen criteria set for European countries and future candidates for membership in the European Union. Additionally, the obligation to adopt and implement the new Constitutional Act is also a constitutional obligation. The first part of the obligation (adoption) was fulfilled with the entry into force of the Constitutional Act, but the second part of the obligation (application) is still an inexhaustible source of inspiration for numerous scientific and professional analyses highlighting that discrimination based on ethnicity still exists in Croatian society. The Constitutional Act of 2002, has remained the oldest Croatian anti-discrimination act.82 In addition to the Constitutional Act, in the context of the exercise of rights of persons belonging to national minorities, the rights are guaranteed by a number of other regulations.83 79

Croatia ratified the Framework Convention for the Protection of National Minorities in October 1997 and submitted its first report in March 1999. In April 2001, the Advisory Committee issued a position forming the basis for a 2002 resolution of the Council of Ministers. The Act on Ratification of the Framework Convention for the Protection of National Minorities, Official Gazette - International Agreements, No. 14/1997. 80 With the Stabilization and Association Agreement with the European Union, the Republic of Croatia undertook to adopt a new constitutional act on the rights of national minorities. At its session on 13 December 2002, the Croatian Parliament adopted a Decision on the promulgation of the Constitutional Act on the Rights of National Minorities, which created a normative framework for the full protection of the rights of persons belonging to national minorities. 81 The new Constitutional Act was attached to Croatia’s candidacy for membership in the European Union in February 2003. 82 Croatian Constitutional Court Decision No. U-I-3786/2010; U-I-3597/2010 and U-I-120/2011. 83 The Act on the Use of Languages and Scripts of National Minorities in the Republic of Croatia (OG 51/00, 56/00 - correction), the Act on Education in the Language and Script of National Minorities (OG 51/00), the Act on the Election of Representatives to the Croatian Parliament OG

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In Croatia, the comprehensive Anti-Discrimination Act (ADA) entered into force in 2009, recognizing as many as eighteen discriminatory grounds listed exhaustively.84 Such a technique has not proven appropriate in practice nor is it in line with the constitutional prohibition of discrimination since Article 14(1) of the Constitution contains an open list of discriminatory grounds as does the European Convention, which provides the possibility to add to the list of existing protected grounds others such as citizenship, professional or military status. The basis for the adoption of the ADA was the previously mentioned and analysed Directives 2000/43/EC and 2000/78/EC. The ADA also goes beyond the requirements of EU law in terms of forms of discrimination, given that there are seven: direct discrimination, indirect discrimination, harassment, sexual harassment, incitement to discrimination, failure to make reasonable adjustments, segregation. Some are defined more broadly than required by the Directives, that it is clearly stated that failure to make reasonable accommodation is a form of discrimination. In addition to discrimination on the basis of discriminatory grounds, the ADA also recognizes discrimination on the basis of misconception, and discrimination on the basis of affiliation. In the context of racial or ethnic discrimination, the ADA therefore prohibits direct discrimination, indirect discrimination, harassment, incitement to discrimination and segregation. The ADA goes a step further than Directive 2000/43/EC and prohibits multiple discrimination as a more serious form of discrimination.85 Despite the implementation of various anti-discrimination norms in line with European equality standards, following the entry into force of the AntiDiscrimination Act in January 2009, there were very few final court judgments regarding discrimination. Awareness of the prohibition of discrimination is not yet sufficiently developed, and neither is, consequently, the culture of reporting discrimination. The result is a small number of lawsuits, and thus judgments. However, citizens report discrimination to independent institutions, so, according to the 2018 and 2019 Report, the Ombudsperson for Human Rights states that the most common

116/99, 109/00, 53/03, 69/03 - consolidated text), the Act on the Election of Members of Representative Bodies of Local and Regional Self-Government Units (OG 10/02, 155/02, 45/03, 43/04, 40/05 and 44/05 - consolidated text). 84 The Anti-Discrimination Act prohibits discrimination based on race or ethnicity, colour, sex, language, religion, political or other belief, national or social origin, property status, trade union membership, education, social status, marital or family status, age, health status, disability, genetic inheritance, gender identity, expression or sexual orientation. 85 The Roma population is the most excluded minority group, and inequalities for Roma girls start early and increase with age. As many as 78 percent of Roma girls drop out of school early, compared to 60 percent of Roma boys. Only six percent of the female Roma population complete secondary or higher education, compared to 24 percent of the male Roma population. With a high 82 percent for women and 72 percent for men, Croatia has the second highest rate of Roma outside education, work or training in Europe after Spain (World Bank Report, Croatia 2019).

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discriminatory basis in complaints is race or ethnicity, skin colour and national origin.86 Despite the rich anti-discrimination regulations, ethnic discrimination is still significant in Croatian society. In addition to constitutional, normative protection against discrimination, the Croatian legal framework also provides for judicial de facto protection against discrimination in civil, misdemeanour and criminal proceedings. However, only a small number of reported cases of discrimination end up in court.87 In Croatia, discrimination on the basis of ethnicity is very closely linked to discriminatory speech or hate speech. The ADA has a special provision punishing such speech (Article 25). The public is aware of the verdict against a national football team member, the end of whose playing career was marked by an incident leading to international condemnation. He appealed to the ECtHR against his conviction, claiming that his act of speech enjoys protection under the right of freedom of expression. On 22 January 2019, the ECtHR ruled inadmissibility in this case and rejected it as unfounded. The ECtHR found that the term ‘For Home’ did not enjoy protection under the right to freedom of expression.88 86

Annual Reports of the Ombudsperson for Human Rights for 2018 and 2019. Available at: https:// www.ombudsman.hr/en/. 87 Zagreb Municipal Civil Court, Pn-1726/13-29 and Varaždin County Court, Gž-399/2017. 88 Šimunić submitted an application to the ECtHR, claiming that the decisions of domestic courts violated the following rights from the European Convention: the right to a fair trial under Article 6 of the Convention, nullum crimen nulla poena sine lege of Article 7 of the European Convention because the incriminated expression is not prohibited by any domestic law or regulation, the right to freedom of expression under Article 10 of the Convention, the right to an effective remedy under Article 13 of the Convention, the prohibition of discrimination under Article 14 and the prohibition of systematic discrimination referred to in Article 1 of Protocol No. 12 to the European Convention. The ECtHR did not find a violation of its Article 6 because the two (different) judgments of the domestic courts in relation to this issue submitted by the applicant as evidence of his claims did not constitute evidence of obvious and profound discrepancy in the case law. The ECtHR did not find a violation of Article 7 of the ECHR (nullum crimen nulla poena sine lege) as the applicant had not exhausted all domestic remedies in this respect before raising this complaint before the ECtHR (there was no appeal).Furthermore, deciding on the alleged violation of Article 10 of the European Convention, the ECtHR did not assess whether the term “For Home” constituted an offence based on hatred of a minority and thus contrary to the values guaranteed by the Convention, but stressed that the domestic courts in this case had conducted a thorough procedure and established all relevant facts, in particular that they conducted an analysis and context of the meaning of that term. The domestic courts found that the term had a meaning and context directed against the rights protected by the Convention. The applicant’s conviction in the misdemeanour proceedings constituted State interference with his right to freedom of expression, but according to the ECtHR this interference was based on law (the Act on the Prevention of Disorders at Sports Competitions) and had a legitimate aim. In view of the above, as well as the fact that the State’s interference was, in the ECtHR’s view, necessary in a democratic society, the applicant’s complaint that his right to freedom of expression had been violated was declared manifestly ill-founded. The ECtHR also ruled that the other complaints related to alleged discrimination were unfounded. In its conclusion, the ECtHR particularly noted that the applicant, as a well-known footballer, should have been aware of the negative impact of his behaviour and should have refrained from such behaviour, especially in front of a large number of spectators. ECtHR, Šimunić v. Croatia, Application No. 20373/17.

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‘For Home - Ready’ or ‘For Homeland – Ready’ was a salute used during World War II by the Croatian Ustaša movement (equivalent of the fascist or Nazi salute Sieg heil). In fact, the subject of the applicant’s request was his conviction on 8 December 2015 in misdemeanour proceedings when the Zagreb Misdemeanour Court rendered a first-instance decision finding the applicant guilty of publicly shouting “For Home” at a match between the Croatian national football team and the Icelandic national team which took place in 2013 at ‘Maksimir’ stadium in Zagreb.89 The Constitutional Court of the Republic of Croatia dismissed the applicant’s constitutional complaint against the Zagreb Misdemeanour Court’s judgment. Croatia had been waiting for EU membership for many years and in that pre-accession period a great deal of work had been done to bring national legislation and standards into line with the EU and Council of Europe requirements for the protection of the rights of ethnic minorities. The level of protection of human rights and the rights of ethnic minorities was negotiated under Chapter 23 “Judiciary and Fundamental Rights”. This chapter was also the last chapter to be closed in the negotiation process in 2011. The biggest difficulties in closing this chapter were related to the level of protection of human rights and the rights of ethnic minorities. It was during this period that the representatives of ethnic minorities, specifically those of the Serbian ethnic minorities, for the first time, were given their own representative in the executive branch, specifically the Deputy Prime Minister for Human Rights and Social Affairs. Nevertheless, the issue of under-representation of persons belonging to ethnic minorities in public authorities throughout the membership negotiations was continuously highlighted as inadequate and only partially attained. According to the number of complaints received by the Ombudsperson for Human Rights, the group most affected by discrimination in employment is the Serbian minority.90 Under the Constitutional Act on the Rights of National Minorities, representatives of national minorities have the right to be represented in state public administration and judiciary bodies and the right to benefit from positive action. The Constitutional Act also stipulates the obligation for national minorities to be adequately represented in both representative and executive local and regional bodies. In 2011, the Plan of Employment of Members of National Minorities in the Civil Service in State Administration Bodies91 was adopted for the purpose of achieving minority representation of 5.5% in the state administration. On the basis of this plan,

On 27 January 2016, the High Misdemeanour Court upheld the first-instance conviction and increased the fine from HRK 5000 to HRK 25,000, Judgement of the Croatian High Misdemeanour Court Jž-188/2016 of 27 January 2016. The Constitutional Court did not accept the freedom of expression as constitutionally relevant in the specific case (item 7), which accepts the reasoning of the High Misdemeanour Court in the specific case. Croatian Constitutional Court decisions No. U-III-1296/2016.and U-III-2588/2016. 90 Ombudsperson for Human Rights, ‘Annual Report 2013’, p. 33. 91 Plan of employment of members of national minorities in civil service in state administration bodies from 2011 until 2014, Official Gazette 65/11. 89

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short-term plans were adopted.92 Despite the Constitutional Act and the national plans, the share of persons belonging to ethnic minorities in the public sector decreased between 2009 and 2013.93 This is particularly noteworthy with respect to Serbs in Serbian dominated areas. Here, the Government is committed to guaranteeing a 5% rate of representation for Serbians, but rates dropped from 4.2% in 2009 to 3.4% in 2011.94 For instance, in one case a position was left vacant rather than being filled by a qualified member of the Serbian community.95 There have also been reports of inappropriate questions related to ethnicity in the recruitment of police officers.96 In the private sector, discrimination occurs during the recruitment process and it is manifest in the refusal to hire and in harassment at the workplace. Discrimination is also manifest in unequal payments and the lack of promotion in the workplace.97 There are no policy measures targeting discrimination on the ground of race or ethnicity in employment in the private sector.

3.2

Ethnic Minority Rights in the Light of the EU Conditionality Policy

In the case of Croatia and other Western Balkan countries, the Stabilisation and Association Process was formulated to address the most urgent problem at the region of that time: the stabilisation of fragile political systems. However, the main strategic document related to the implementation of minority rights standards was the Enlargement Strategy and Main Challenges 2010–2011, in which minorities were referred to by the Commission not just in terms of security but also in social terms. Nevertheless, the formulation remained vague: “the economic crisis has had a negative impact on social welfare in the enlargement countries. Vulnerable groups, including minorities, disadvantaged communities and people with disabilities, have been particularly affected”.98

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Plan of employment in the civil service in the state election committee of the Republic of Croatia for 2013, Official Gazette 5/13, Plan of employment in civil service in state administration bodies and expert services and offices of the government of the Republic of Croatia for 2013 Official Gazette. 50/13, 76/13 and 128/13. 93 Milošević (2014). 94 Nestic et al. (2019). 95 ECRI, Fourth Report on Croatia (2012), published on September 2012. Available at: https://rm. coe.int/government-comments-on-the-fourth-report-on-croatia/16808b57ca. 96 ENAR Shadow Report 2009/2010 in the Republic of Croatia. Available at: http://cms.horus.be/ files/99935/MediaArchive/publications/Croatia.pdf. 97 Pilar I., Research: prevalence and characteristics of discrimination on the Croatian labour market—survey among unemployed persons and employers, Croatian Bureau for Employment and Institute for Social Sciences. 98 Communication from the Commission to the European Parliament and the Council (2010) Enlargement Strategy and Main Challenges 2010–2011, COM(2010) 660, Brussels, p. 7.

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Croatia was the second country to sign the Stabilisation and Association Agreement which entered into force in 2005 and negotiations were officially launched on 3 October 2005. The conditionality policy, in instances of the ethnic minority protection, revealed different criteria applied in countries which declared independence after the break-up of former Yugoslavia.99 Some authors believe that Slovenian’s approach to ethnic minority protection was evaluated positively,100 “whereas Croatia had trouble meeting the minority rights demands due to its ‘preoccupation with nation’ and its contested process of building a sovereign nation-state until the late 1990s.”101 When both countries are compared it seems that conditionality policy was applied in Croatia in a stricter way than in Croatia.102 In its last Progress Report on Croatia’s accession to the EU, the European Commission stated that Croatia had made good progress in the judiciary and fundamental rights, but emphasized that in certain areas, such as judicial reform, protection and enforcement of fundamental rights especially of minorities and refugees, impunity for war crimes, the fight against corruption, further progress was needed.103 The EC declared in its Interim report on Chapter 23 three months before the closure of negotiations that “further work remains to be done, in particular to establish convincing track-records in the field of the judiciary and the fight against corruption, to address impunity for war crimes and to settle the outstanding refugee return issues” and thus it “will continue to monitor Croatia’s progress closely and to further support Croatia /. . ./ to enable it to meet the benchmarks in this chapter” (European Commission 2011, p. 7).104 99 Bojinović Fenko and Urlić (2015) compared the frequency of use for the term ‘minority/ies’ in the two respective Reports the Commission’s Progress Reports on Croatia mentioned the topic of minorities 356 times which is more than 300 per cent of the frequency in its Progress Reports on Slovenia (111 times). As they claim, this can be explained by the difference in the de facto situation in practice as regards the respect of minorities in the two states, since the standard of minority protection in Slovenia has been viewed positively. 100 Bučar (1999), p. 342. 101 Boduszyński (2013), pp. 45–46. 102 The European Council (2011, p. 12) on the basis of a proposal by the Commission refers to monitoring up to accession as a “necessary assurance to Croatia and current member states” and concludes the paragraph with a warning that it may otherwise, “acting by qualified majority on a proposal from the Commission, take all appropriate measures”, meaning also to put a hold on the accession process. The same provision is included in the Croatian Accession Treaty to the EU (Title IV, Art. 36, point 1, Para1 and point 2). 103 Croatia 2010 Progress Report accompanying the Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2010–2011, COM(2010) 660, Brussels 09 November 2010. 104 This is backed by the following evidence: the difference in the Commission’s initial assessments of the two applicant states, the frequency of reference to political criteria and minority/ies in Vol. XVIII, No. 66 - 2012 XXI (72) - 2015 121 the Commission’s Progress Reports, the Commission’s (non)persistence in monitoring the case of the ‘erased’ in Slovenia vs. a design of a special negotiation chapter for Croatia on Judiciary and Fundamental Rights, the difference in thoroughness of the EC’s final remarks on the political criteria before the states’ accession, the invention of

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With respect to ethnic minority protection in Croatia, the goal of the political conditionality was to achieve a more proportionate representation of persons belonging to ethnic minorities in public authority, but even this goal has not been reached today. Through the lens of the Croatian example, it seems that the principle of conditionality deteriorates after the accession of a country to the EU. Since Croatia joined the EU in July 2013 there has been no monitoring mechanism on human rights which has resulted in stagnation of the protection of ethnic minorities and consequently the destabilization of the rule of law. Claims for damages in war crimes cases due to the killing of close family members and material damage due to the burning and demolition of houses and the failure or slowness of reconstruction which were brought before national courts mostly failed or are still waiting final judgment. In some cases, persons have not had access to a court due to the lack of financial resources and the lack of trust in the justice system. Croatia has a relatively well-defined national framework for the protection of the rights of ethnic minorities, but in practice there are significant problems in the implementation of the rights of certain ethnic communities, especially Roma and Serbs. Croatia exerted tremendous effort to implement all the legal and policy standards on ethnic minority rights during the accession process, but after joining the EU, the situation has deteriorated.105 Some examples are the suspension of minority rights from the evaluation of the last National Programme on Human Rights 2013–2016. Most of the goals of the National Programme have not been fulfilled: increasing the representation of ethnic minorities in state administration; completing the process of the return of refugees; resolving outstanding housing issues and combating ethnic discrimination; encouraging multiculturalism in education; intensifying efforts to combat all forms of intolerance, racism, anti-Semitism and xenophobia in the media.106 It is also important to mention that since 2016, Croatia has not had a basic public policy for the protection and promotion of human rights, nor a National Policy for Gender Equality. The state has done very little to investigate violence, hate crimes and individual cases of discrimination against persons belonging to ethnic minorities, as evidenced by recent ECtHR judgments.107 The European Court on Human Rights has been perceived as the main guardian of the rule of law, democracy and human rights. However, additional efforts are needed to enforce the judgements and decisions of the ECtHR.

benchmarks and track-record to assess Croatian implementation of accession criteria, the European Council Conclusions exposing political criteria for Croatia more often and with negative conditionality compared to Slovenia and finally, the invention of the monitoring mechanism during the ratification process with a possibility of withholding entry. European Commission (2011) Interim report from the Commission to the Council and the European Parliament on reforms in Croatia in the field of judiciary and fundamental rights (negotiation chapter 23), COM (2011) 110, 2 March. 105 Vasiljević (2020). 106 National Programme for the Protection and Promotion of Human Rights for the period from 2013 to 2016, Government of the Republic of Croatia, 2013. 107 Secis v Croatia, Application No. 40116/0 (2007), Oršus and others v Croatia, Application No. 15766/03 (2008), Skendžić and Krznarić v Croatia, Application No. 16212/08 (2011).

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According to the data of the Ombudsperson for Human Rights published in her annual reports and reports delivered by independent civil society organizations, ethnic discrimination is still highly present in Croatian society.108 Despite existing anti-discrimination legislative and policy measures, the public’s attitude is generally overwhelmingly affected by stereotypes and prejudices with a low level of tolerance towards vulnerable groups.109 Furthermore, ethnic discrimination is also manifest with respect to the return conditions for Serbian refugees, in the housing, education and healthcare sectors.110 Members of minority groups experience difficulties in accessing justice due to complex and lengthy procedures, high costs, and difficulties in obtaining free legal aid.111 Despite the improvement of the formal legal framework for the protection of ethnic minorities since 2002, one of the biggest problems to date is the underrepresentation of minorities in public administration, the judiciary and the police.112 Ethnic minorities are most often affected by hate speech and discriminatory speech in public.113 In addition, the current limited case law in hate speech is uneven despite recent decisions by the Croatian Constitutional Court,114 the final judgment of the Zagreb Misdemeanour Court115 and the decision of the ECtHR in Šimunić v. Croatia.116 To sum up, the changes to national legislation and minority policies generated by pre-accession conditionality have not significantly improved minority rights after the accession. Although EU pressure and conditionality policies have in principle had a positive effect on changing the formal framework in national law, this has not achieved substantive equality. Progress in the new Member States, such as Croatia, on the exercise of minority rights was monitored through conditionality policy instruments, namely the EC’s annual reports, but no serious warning in situations of obvious violations of minority rights or sanctions followed in the years after

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Human Rights House Croatia (2019) Human rights in Croatia: overview of 2019, Zagreb. Ombudsperson for Human Rights, ‘Annual report 2013’, pp. 1–3. 110 Mesić and Bagić (2011). 111 Vasiljević (2013). 112 According to the Ombudsperson’s annual reports, the representation of national minorities is unsatisfactory, as the representation of national minorities is 3.5% and it is necessary to achieve 5.5% of the total number of employees in these bodies. Annual Report of 2018. 113 “It is established that in a statement broadcast on Radio Soundset Plavi on 15 March 2013, the defendant Z.M. violated the dignity of the plaintiff Ž.J. on the basis of national origin.” Zagreb Municipal Civil Court, Pn-1726/13-29 and Varaždin County Court, Gž-399/2017. 114 Croatian Constitutional Court decisions No. U-III-1296/2016. and U-III-2588/2016. 115 Judgement of the Croatian High Misdemeanour Court Jž-188/2016 of 27 January 2016. 116 ECtHR, Šimunić v. Croatia, Application No. 20373/17 (2019) in which the ECtHR ruled that it was inadmissible, finding that the term “For Home” did not enjoy protection under the right to freedom of expression. The ECtHR did not find a violation of Art. 6 of the European Convention because the two (different only in terms of the misdemeanour sentence imposed) judgments of the domestic courts on this issue submitted by the applicant as evidence of his claims did not constitute evidence of obvious and profound discrepancy in the case law. 109

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membership. Moreover, the lack of an effective monitoring mechanism during and after the accession period has weakened citizens trust in the EU as a community and many members of ethnic (national) minorities have remained isolated and deprived of their fundamental rights. Despite commitments taken during the negotiation and the accession process, limited progress has been made in human rights protection since then. From the Croatian example, it can be concluded that the effectiveness of EU conditionality deteriorates after accession. Reforming the justice system and improving an individual’s capacity to access justice go hand-in-hand with enforcing the rule of law. Among others, access to justice, equality and non-discrimination are essential elements of the rule of law in the EU. By reforming the judicial system and restoring trust in institutions, Croatia would make progress in protecting human rights and achieving the substantive equality. Croatia as the youngest EU Member State should respect the EU fundamental values and serve as a positive example for other Western Balkans countries waiting for EU accession.

4 Conclusion The protection of ethnic minorities rights was a condition for membership of the new Member States long before the legal framework for the protection of ethnic minorities was established at the level of European legislation. By analysing the legal framework for the protection of fundamental rights in the EU and the active role of the CJEU in the protection of fundamental rights, it can be concluded that fundamental rights enjoy effective legal protection in the EU. The protection of human rights and ethnic minorities is an essential component of the concept of rule of law in the EU. EU conditionality policy aimed to improve the protection of human rights, especially the rights of ethnic minorities in new Member States. Through the lens of the Croatian example, it seems that the principle of conditionality deteriorates after the accession of a country to the EU. It does not appear that the changes in national legislation and minority policies generated by pre-accession conditionality have improved minority rights post-accession. Although the policy of conditionality towards candidate countries is often perceived positively, practice often shows that such a policy is neither appropriate nor applicable to the Western Balkans. By insisting on meeting the formal requirements for the EU membership, the candidate countries have focused all activities on achieving the formal legal requirements while minimizing the effectiveness and application of such solutions in practice. However, in less than three decades, Croatia has moved from the category of an ethnically heterogeneous and multicultural state to the category of an ethnically homogeneous state. If we follow the census of 1991 through the census of 2001 to that of 2011 when it last took place, it is clear that the share of national minorities has been constantly declining. Thus, in 1991, the share of the majority Croatian population was around 78%, ten years later the share of Croats rose to 89%, and in 2011

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this figure exceeded 90%, when Croatia crossed the threshold that had previously classified it as an ethnically heterogeneous state. Croatia is multiculturally and ethnically diverse because as many as 22 national minorities live in its territory, but given their small share in the total population, Croatia is classified as an ethnically very homogeneous country. In terms of objectives and outcomes of the harmonization with EU standards of the Croatian legislation and policy on ethnic minority rights, it might be concluded that Croatia engaged in a tremendous effort to achieve formal equality and adjust its legal framework on the protection of ethnic minorities to European norms and standards. However, in terms of achieving substantive equality, work should be done to eliminate ethnic intolerance and hate speech that limit the exercise of formal, and legally guaranteed rights. Despite the consequences of the war and long-standing intolerance towards minority groups, Croatia has made great efforts to adopt European standards and harmonize its national legal framework with European acquis communitaire. However, in these efforts Croatia did some mistakes that need to be corrected in order to respect the fundamental values guaranteed by the EU founding treaties.

References Boduszyński MP (2013) The trials and triumphs of Europeanization in Croatia: the unbearable weight of structure and state-building? In: Elbasani A (ed) European integration and transformation in the Western Balkans; Europeanization or business as usual. Routledge, Oxon and New York, pp 39–53 Bojinović Fenko A, Urlić A (2015) Political criteria vs. political conditionality: comparative analysis of Slovenian and Croatian European Union accession process. CIRR XXI/72:107–137 Bučar B (1999) The issue of the rule of law in the EU enlargement process: aspects of SlovenianItalian relations. In: Benedek W, Isak H, Kicker R (eds) Development and developing international and European law: essays in honour of Konrad Ginther on the occasion of his 65th birthday. Peter Lang, Frankfurt am Main, etc., pp 339–353 Corstens G (2014) Human rights and the rule of law, EUI LAW, Centre for Judicial Cooperation DL Fredman S (ed) Discrimination and human rights: the case of racism. Oxford University Press, Oxford Kochenov D (2008) EU enlargement and the failure of conditionality. Pre-accession conditionality in the fields of democracy and the rule of law. Kluwer Law International BV, The Netherlands Mesić M, Bagić D (2011) Minority return to Croatia – study of an open process. UNHCR Milošević S (ed) (2014) Neostvarena prava i promašene politike: zastupljenost nacionalnih manjina u državnoj upravi, pravosuđu i policiji. Serb National Council, Zagreb Nestic D et al (2019) The employment and social situation in Croatia, Directorate General for Internal Policies, European Parliament Pech L (2009) The rule of law as a constitutional principle of European Union. Jean Monnet Working Paper Series 4:1–79 Pech L, Kochenov D (2019) Strengthening the rule of law within the European Union: diagnoses, recommendations and what to avoid, RECONNECT Project Policy Brief Petrova D (2001) Racial discrimination and the rights of minority cultures. In: Fredman S (ed) Discrimination and human rights: the case of racism. Oxford University Press, Oxford

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Pilar I, Research: prevalence and characteristics of discrimination on the Croatian labour market – survey among unemployed persons and employers. Croatian Bureau for Employment and Institute for Social Sciences Sasse G (2005) EU conditionality and minority rights: translating the Copenhagen criterion into policy. EUI Working Papers RSCAC 2015 16:1–20 Šimonović I (2012) Dolazi li razdoblje ljudskih prava i vladavine prava? Revus, Revija za ustavno teorijo in filozofijo prava. https://journals.openedition.org/revus/2289 Vasiljević S (2013) Gender equality and the non-discrimination principle in the context of Croatian accession to the EU. Heinrich Boll Stiftung, Zagreb Vasiljević S (2015) Equality, non-discrimination & fundamental rights: old habits die hard! In: Vinković M (ed) New developments in EU labour, equality and human rights law. Josip Juraj Strossmayer University, Osijek, pp 177–195 Vasiljević S (2020) Temeljna prava i vladavina prava u EU: izazovi prije i nakon pridruživanja. HAZU, Zagreb Zalan E (2020) Paper tiger? EU roars in the first rule of law report. https://euobserver.com/ political/149593

Snježana Vasiljević M. Phil (Cantab), Ph.D (Zagreb) is an associate professor of European Public Law, Fundamental Rights in the European Union and European Equality Law at the University of Zagreb. She specialized in European law and fundamental rights at the London School of Economics and Political Science, University of Liverpool, Johannes Kepler Univarsität Linz, Columbia University, New York and University of California Los Angeles. She works as a senior expert for the Fundamental Rights Agency and Council of Europe. She is an expert member of the Justice Committee and former expert member of the Legislative Committee of the Croatian Parliament. She was a leader of the Jean Monnet Module “EU Law and Gender: Making Equality Effective,” researcher at the Jean Monnet Centre of Excellence “EU Global Leadership in the Rule of Law” and currently serves as a member of the management board of the COST Action “Women on the Move”. She is author of three books, book chapters and more than 50 scientific papers. Since 2019, she is the Croatian ad hoc judge at the European Court of Human Rights.

Provoking Memory: Counter-Monuments and the Expulsion of the Acadians/Le grand derangement in 1755: A Case from Canada Bruce Anderson and Kim Morgan

Abstract We commonly mark and commemorate important events, significant battles, and great accomplishments with monuments and sculptures. But we also use memorials and sculptures to remember atrocities and tragedies. This contribution explores the competing and contradictory functions and effects of three modern-day traditional monuments erected on land once occupied by the Acadians in Nova Scotia, Canada. It then discusses the authors’ rationale for creating and installing three counter-monuments and the differing responses to them by the public. It ends by noting the significance of the symbolic dimension of remembering and forgetting, and human rights and their violations.

1 Introduction From 1755 to 1758 approximately 11,500 French speaking Catholics—the Acadians—out of a total of 14,000 were forcibly removed from their land (or died) in Nova Scotia, Canada by the British military government. They were taken by ships to the United States, England, and France. In 1760 their lands were given to settlers from New England (today north-east USA) known as Planters. Today, their descendants farm the fertile land once populated by the Acadians. After comparing what happened to the Acadians to war in the former Yugoslavia during the 1990s, the Armenian Genocide during and after World War I, the Holocaust, the deportations of the Chechens and Crimean Tartars at the end of World War II, and the genocide in Rwanda in the 1990s, the historian John Mack Faragher concludes that “across the centuries, the similarities are stunning. Before

B. Anderson (*) Department of Accounting and Law, Saint Mary’s University, Halifax, NS, Canada e-mail: [email protected] K. Morgan Department of Fine Arts, Nova Scotia College of Art and Design, Halifax, NS, Canada e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1_11

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1755 there are many instances of horrible violence against innocent people in North America. But the removal of the Acadians was the first episode of state-sponsored ethnic cleansing in North American history.”1 We begin by identifying competing and contradictory functions and effects of monuments and memorials. Then we consider the effects of three monuments erected after the Acadians were expelled from Nova Scotia. A brief historical time-line helps provide a fuller context for the subsequent discussion of the functions and effects of both these three monuments and the three counter-monuments that the authors created and installed nearby in response to the monuments.

2 The Functions and Effects of Monuments and Memorials We commonly mark, commemorate, remember, and memorialize important events, significant battles, and great accomplishments with monuments and sculptures. These memorials are made of lasting materials such as bronze or stone and are meant to signify shared symbolic principles which will endure through generations. There are, for instance, the Arc de Triomphe in Paris, the Brandenburg Gates in Berlin, and the Mitrovica Miners Monument in Kosovo, triumphant military leaders riding bronze horses, and statues of figures ranging from Joseph Stalin, Sadam Hussein, to Edward Cornwallis. For some people these monuments mark moments of glory, heroism, noble deeds, sacrifice, and call upon us to admire, emulate, and remember them. Recently, however, communities are grappling with how to deal with the controversies provoked by many public monuments and memorials. While a monument might mark glorious events or heroic figures for some people, for others they signify oppression and powerlessness, neglect and exclusion. Consider the statues of Sadam Hussein pulled down after the invasion of Iraq and the 110 monuments to the Confederate cause during the American Civil that have been removed since the massacre of nine African Americans at the Mother Emanual Church in Charleston, South Carolina.2 Other communities have also removed or relocated controversial statues. Halifax, the city where we live, has removed a statue of Edward Cornwallis, the founder of Halifax, because he put a bounty on the scalps of Mi’kmaq people. Another way communities have responded to contentious memorials has been to add markers or kiosks to provide historical context and commentary on the monuments. Responses such as the public art interventions by Polish artist Krzysztof Wodiczko modify existing monuments in order to change their meaning or to reveal missing information to the public. Wodiczko projects images and video onto existing architecture to critically animate historic monuments thereby changing the way the site is read by the public. For example, he projected images of the arms race onto the

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Faragher (2005), p. 473. Beatty (2018), p. 3.

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Soldiers’ and Sailors’ Arch in Brooklyn, New York. Though temporary, his projections are monumental gestures that highlight competing stories and neglected issues, giving voice to the unheard. But we also mark, commemorate, and memorialize atrocities and tragic events with monuments and statues. In the past fifty years contemporary artists have created public art works that are intended to better represent the complexity of events and histories, and to call attention to events and issues that have been neglected, ignored, forgotten, and people who have been excluded, silenced, and killed. While these events are not celebrating a victory or heroic figure they still fit within the category of commemorative public art. This work is not always comfortable for the public, particularly if the memorial is situated in the same location in which both the perpetrators and victims live. It is one thing to be reminded of the atrocities inflicted on your community; it is another to be reminded of the crimes your community committed. These types of work originated in Germany and are called countermonuments, a term coined by historian James E. Young. A few outstanding examples include the Memorial to the Murdered Jews of Europe in Berlin, the Monument Against Fascism in Hamburg-Harburg, the Aschrott Fountain in Kassel, the Abraham Lincoln War Veterans Projection in New York City, and the National Memorial for Peace and Justice in Montgomery, USA. Whatever their meaning, which may or may not be adequately articulated, there is no doubt that public monuments and statues provoke many types of reactions. Spontaneous acts of tearing down bronze statues, loud and angry defences of others, and intractable controversies concerning proposed memorials show that public monuments are very important. They can make people angry, proud, reverential, sad, awe-struck, critical, or puzzled. But public monuments and memorials, by focusing on particular events and aspects of stories can encourage forgetting, hide significant events and competing stories, re-write history, and promote misunderstanding and bias. In this way public monuments and memorials function as tools of oppression and exclusion, not the purported high-minded commemoration of noble deeds and sacrifices that many people take for granted and simply walk past every day. What is missing is forgotten. What is forgotten never happened. Public monuments and art-works then are deeply political. And, of course, the monuments related to the Expulsion of the Acadians/Le grand derangement fit this pattern. Let’s see how.

3 A Critique of Three Monuments in Acadia In the area where the Acadians once lived and farmed in Nova Scotia before they were deported there are three monuments which became the focus of our attention when we were invited to participate in a public art exhibition throughout King’s County, Nova Scotia called Uncommon/Common Art. There is a stone monument at Starr’s Point. That monument is called the Planters’ Cairn and was installed in 1983

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and funded by descendants of the New England Planters who took over the land of the Acadians after they were deported. The bronze plaque on the monument reads: Following the expulsion of the Acadians in 1755, these fertile lands lay empty. In response to an invitation from Nova Scotia, New England settlers, known as Planters, landed on this site on June 4, 1760. This natural landing place was known to the Acadians as Boudreau’s Bank on the Grand Habitant River. The Planters designated a town site area to be know as Town Plot. Although the name still remains the town was never developed and the river and district were renamed Cornwallis. From here a public ferry linked the two townships of Cornwallis and Horton. Today these historic lands are one of the most fruitful agricultural areas in Canada. Descendants of the Planters who make their home here are proud of their heritage.

The second monument, called the French Cross, is situated in a community called Morden on the shore of the Bay of Fundy. The memorial consists of round beach stones cemented into the shape of a cross. Its plaque reads: Tradition has it that on this site Acadians from Belle Isle wintered in 1755-1756. In the spring of 1756 Pierre Melanson with an Indian Boy crossed the bay for aid. On the return trip he died.

The third monument, the Longfellow 1807-1882 monument, is a bust of American writer Henry Wadsworth Longfellow who wrote a poem called Evangeline. This poem romanticized the expulsion of the Acadians and portrayed the expulsion story as an American story. It is by reading and hearing about this poem that many people, including one of the authors as a young Grade Four student, learned about the expulsion of the Acadians. This bust was installed on the grounds of the Parks Canada Heritage Site at Grand Pre in 1955, marking the 200th anniversary of the expulsion. The plaque below Longfellow’s bust states: Evangeline’s poignant tale of the Acadian lovers of Grand Pre has enshrined in the hearts of the world the tragic memory of the expulsion two Centuries ago.

The Parks Canada website states that the “Grand-Pré National Historic Site of Canada is located at the former Acadian village of Grand-Pré, beside the upper Bay of Fundy, north of Wolfville, Nova Scotia. The site consists of a memorial park created to commemorate the deportation of the Acadians, who settled in the area between 1682 and 1755.”3 This is a historical site with its share of historic signage, artifacts and busts that acknowledges the Acadians’ transformation of the land. It is important to note this contribution. The Acadians brought with them a system of building dykes from France which enabled them to turn salty marshlands into fertile soil over time. Over generations and through the ingenuity of the dyke system the Acadian land became one of the most fertile lands in what is now eastern Canada. What stand out from our visit to the Parks Canada Museum and World Heritage site are a large display highlighting the ingenuity and hard work of the Acadians who

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Parks Canada Grand-Pré National Historic Site of Canada, Grand- Pré, Nova Scotia, Canada.

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drained salt marshes transforming them into fertile farmland, a poster depicting where the Acadians were sent when they were deported, audio recordings of actors posing as an Acadian, a British officer, and a Mi’kmaq prior to 1755 offering competing versions of the political situation at that time. There is also a pencil tracing of an Acadian cross that now stands at Horton’s Landing, one of the places where Acadians were loaded onto ships. Finally, there is a video about the expulsion that is designed so that no one gets upset, offended or implicated. What struck us about these three monuments and the Parks Canada Heritage site was what they ignored and neglected to articulate. Nowhere were three important questions even raised. “Why, exactly, were the Acadians deported?” “Who was responsible for the expulsion?” and “Is the expulsion of the Acadians an act of ethnic cleansing?” The words we used to capture what we saw was ‘white-washing.’ So what happened in Acadia? What is the story? Is it a straight-forward story as portrayed by the plaque on the Planters’ Cairn of the Acadians expelled from the land and the Planters taking up vacant land? Can the story be captured by a poem about two lovers separated during the expulsion who never find each other? Is it summed up by a man who dies?

4 Warring European Empires, Oaths of Allegiance, Neutrality A brief timeline offers a competing view of what happened. In what follows we draw on the historian John Mack Faragher’s book A Grand and Noble Scheme: The Tragic Story of the Expulsion of the Acadians from Their American Homeland. In 1606 France established its first agricultural colony in North America at Port Royal, Nova Scotia when forty men arrived from France. They survived the winter with the help of the Mi’kmaq, the indigenous people who lived in the area. In 1654 a British raid originating in New England captured 220 soldiers at Port Royal and sent them back to France. The British told the French inhabitants they could return to France or stay “with liberty of conscience” and they would be allowed to practice their religion if they took an oath that they would no longer bear arms against the English nation. . .”4 Acadia remained under English control for sixteen years until 1670. In 1671 Acadia was returned to France in exchange for territory in the West Indies. In 1688 the war between France and England in Europe spread to North America. In May 1690 New England ships looted Port Royal and the French surrendered. The Acadians were told either to take a pledge of allegiance to the English monarch or their houses would be burned and they would become prisoners of war.

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Faragher (2005), p. 59.

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In 1692 the Acadians promised “they would remain neutral between the French and Mi’kmaq in the struggle between England and France.”5 In 1697 the Treaty of Ryswick ended the war between France and England and Spain. In 1702 England and France were at war again during the War of the Spanish Succession.6 In 1710 the French garrison at Port Royal surrendered to New England raiders led by Major Benjamin Church and were sent to France. Previously in 1704, Church burned farms in Grand Pre and other settlements. The Acadians were told they would have “the right to remain on their Estates, with their Corn, Cattle, and Furniture during two years. . .providing they took an oath of allegiance to the British queen.”7 In 1713 the Treaty of Utrecht ended the War of Spanish Succession and Acadia was returned to British rule. The Acadians were told either to become British subjects or leave. This meant they would have to swear an unconditional oath of allegiance and they would not be exempt from fighting against the French or the Mi’kmaq.8 The Acadians refused. In 1714 the Acadians said they were willing to promise not to take up arms as long as they were under English control.9 The English accepted this condition. In 1717 under pressure to pledge an unconditional oath of allegiance, the Acadians again said they would take an oath on the condition that they would not take up arms against Britain, France, or their allies. This was rejected by the Lieutenant Governor John Doucette. In 1720 Governor Philipps wanted the Acadians to pledge unconditional allegiance to the King of England. The Acadians promised to remain neutral. In 1726 Lieutenant Governor Major Lawrence demanded the Acadians to take an oath of allegiance, but the Acadians insisted that the clause “that they might not be obliged to take arms” be added. This condition was added to the margin of the French text, but not added to the English version sent to London.10 In 1727 the Acadians were told to take the oath of allegiance without any conditions. When the Acadians replied they needed the neutrality clause, their leaders were imprisoned. Ensign Robert Wroth agreed to a neutrality clause with the Acadians at Grand Pre and Beaubassin, but the Governor’s Council declared the agreement null and void.11 In 1730 Governor Philipps returned to Annapolis Royal (previously called Port Royal) and made an oral commitment to exempt the Acadians from bearing arms and

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Faragher (2005), p. 108. Ibidem. 7 Faragher (2005), p. 122. 8 Faragher (2005), p. 140. 9 Faragher (2005), p. 143. 10 Faragher (2005), p. 169. 11 Faragher (2005), p. 173. 6

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fighting against the French and Mi’kmaq. But he told the colonial office in London that the Acadians took an unconditional oath of allegiance.”12 From 1744 to 1748 France and England were at war again during the War of Austrian Succession. Lieutenant Governor Mascarene reported to Governor Shirley in New England that during that time “the Acadians showed their loyalty and did not violate the neutrality agreement.” In 1749 Colonel Edward Cornwallis demanded that the Acadians take an unconditional oath of allegiance to Britain. The Acadians replied that they wanted a guarantee of freedom of religion and to be exempt from bearing arms in time of war. A conflict began between the Mi’kmaq and the English. In 1753 the Acadians said they would take the same oath of allegiance that they had given to Ensign Wroth in 1727. In 1754 Charles Morris completed the operational plan for expelling the Acadians.13 The legal justification for the deportation, provided by the Chief Justice of Nova Scotia, Jonathan Belcher, was that by refusing to swear allegiance to the king the Acadian leaders had committed the crime of recusancy. But the law related to recusancy required only officials of the church or the state to take an anti-Catholic oath, not all Catholics. Further, there was no penalty for refusing to take the oath. J.M. Faragher declared that “In short, the laws regarding recusancy simply did not apply to the situation at hand.”14 In June/July 1755 the Acadian leaders were summoned to Halifax and told to take an oath of unconditional allegiance. When they refused, but said they would remain neutral, they were imprisoned. In August 1755 the deportation began. Acadians were sent to South Carolina, Georgia, Virginia, Maryland, Pennsylvania, New York, Connecticut. In 1758, in its first session, the Nova Scotia Assembly passed the Act for the Quieting of Possessions to Protestant grantees of the Lands formerly occupied by the French inhabitants. It declared that the Acadians had no title to their land from the 1713 Treaty of Utrecht until 1755, and that any other rights acquired had been extinguished.15 In 1760 New England ‘Planters’ arrived to take up the land the Acadians had farmed. In ten years over 10,000 Planters had arrived. In 1955 the bust of Longfellow was unveiled at Grand Pre. In 2003 Governor General of Canada Adrian Clarkson, the British Queen’s representative in Canada, acknowledged responsibility of the British government for the deportation in a Royal Proclamation. J.M. Faragher concluded in 2005, “this is an Acadian, French, British, and American story,” a story involving warring empires, anti-Catholic ideologies, antiFrench ideologies, systemic racial hatred of the Mi’kmaq by the British, and troops

12

Faragher (2005), p. 177. Faragher (2005), pp. 288–289. 14 Faragher (2005), p. 321. 15 Faragher (2005), p. 407. 13

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from Massachusetts who feared and hated the Acadians, certain of their own moral superiority.”16 In 2019 the Acadian Society of New Brunswick decided to appoint a committee of experts to determine whether the expulsion was a genocide.17

5 The Creation and Installation of Three Counter-Monuments What, then, are we to make of the three monuments directly connected to Le grand derangement/the great upheaval in light of the snapshot of history above? What do they mean? What do they refer to? What is that they memorialize? What memories do they help recall? What stories do they tell? What feelings do they evoke? What functions do they serve? For us, these monuments hid more than they exposed. They white-washed history. They were simplistic. They were uncritical. They were boring. So, our questions became “So how do we adequately respond to this situation? What sort of art-work is called for here?” In the article Counter-Monument: Memory against itself in Germany today, James Young discusses the notion of counter-monuments in the context of Germany’s memorial conundrum. He describes counter-monuments as “brazen, painfully self-conscious memorial spaces conceived to challenge the very premises of their being.”18 They “push back at conventional memorials and markers that seal memory off from awareness altogether.”19 His key point is that “conventional monuments may not remember events so much as bury them.”20 Our response to the invitation to participate in the Uncommon/Common Ground public art exhibition was to create and install three counter-monuments. Our countermonuments were not stone cairns or bronze busts. Rather, each counter-monument consisted of a plaque in the style of the tourist information signs that are scattered throughout Nova Scotia, a thin board with an image and text attached to legs stuck in the ground. Each one comprised a colour photograph of either the Starr’s Point Planters’ Cairn, the French Cross, or the Longfellow monument and a text in French and English we selected from J.M. Faragher’s book that matched a particular monument. Recall that the bronze plaque on the Starr’s Point Planters’ Cairn monument reads: Following the expulsion of the Acadians in 1755, these fertile lands lay empty. In response to an invitation from Nova Scotia, New England settlers, known as Planters, landed on this site on June 4, 1760.

16

Faragher (2005), p. 471. MacDonald (2019). 18 Young (1990), p. 53. 19 Young (1990), p. 54. 20 Young (1990), p. 54. 17

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Fig. 1 Starr’s Point Counter-Monument

This natural landing place was known to the Acadians as Boudreau’s Bank on the Grand Habitant River. The Planters designated a town site area to be known as Town Plot. Although the name still remains the town was never developed and the river and district were renamed Cornwallis. From here a public ferry linked the two townships of Cornwallis and Horton. Today these historic lands are one of the most fruitful agricultural areas in Canada. Descendants of the Planters who make their home here are proud of their heritage.

By contrast, the text on the counter-monument that we installed directly in front of the Starr’s Point Planters’ Cairn was (Fig. 1): We are now upon a great and noble Scheme of sending the neutral French out of this Province, who have always been the Secret Enemies, and have encouraged our Savages to cut our throats. If we effect their Expulsion, it will be one of the greatest things that ever the English did in America, for by all Accounts, that Part of the Country they possess, is as good land as any in the World: In case therefore we could get some good English Farmers in their Room, this Province would abound with all Kinds of Provisions. Quoted by J.M. Faragher. Previously published in the Pennsylvania Gazette, 4 September 1755; the New York Gazette, 25 August 1755; and the Maryland Gazette, 18 September 1755.

Recall that on the French Cross monument are the following words: Tradition has it that on this site Acadians from Belle Isle wintered in 1755-1756. In the spring of 1756 Pierre Melanson with an Indian Boy crossed the bay for aid.

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Fig. 2 French Cross Counter-Monument

On the return trip he died.

By contrast, the text on our counter-monument reads (Fig. 2): The Acadian entry in the book of the dead is staggering: in July 1755 they numbered some eighteen thousand persons in the maritime region. Over the next eight years an estimated ten thousand exiles and refugees lost their lives as a direct result of the campaign of expulsion. J.M. Faragher, 470.

The Longfellow Monument plaque contains the following words: Evangeline’s poignant tale of the Acadian lovers of Grand-Pre has enshrined in the hearts of the world the tragic memory of the expulsion two Centuries ago.

By contrast, the text on our counter-monument states (Fig. 3): The material interest of Winslow and his troops in the expulsion of the Acadians was a culmination of the critical role played by New Englanders in the history of l’Acadie. The project was conceived and expedited by Governor William Shirley of Massachusetts, the legal justification provided by Chief Justice Jonathan Belcher, son of Shirley’s predecessor as governor, the operational plan written by Surveyor-general Charles Morris, Shirley’s protégé, the decision made by a council that had always been dominated by men hailing from Massachusetts. The Acadians were to be transported to distant destinations in New England vessels hired by one of the most important trading houses in Boston. They were to be forced from their homes by troops and officers from New England, and it was expected that those very men would repossess and resettle the land. It was a thoroughly Yankee operation. J.M. Faragher, 333.

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Fig. 3 Longfellow Counter-Monument

On a cold windy rainy Saturday afternoon in May 2018 we installed our countermonuments. We placed the Starr’s Point Counter-Monument directly in front of the stone cairn monument, and did the same with our French Cross Counter-Monument. Parks Canada denied us permission to install the Longfellow Counter-Monument near the Longfellow bronze bust so we installed it outside the four-foot high hedge that marks the Heritage Site, and not in sight of the Longfellow monument. We were told by a Parks Canada representative that the expulsion of the Acadians is a “delicate matter.” Within twenty-four hours of installing the counter-monuments we received an urgent phone call from the Director of the Uncommon/Common Ground public art exhibition. She was getting phone calls from people in the area telling her that our counter-monuments were not art and they have been taken down and she should pick them up. She immediately arranged for someone to retrieve our counter-monuments and asked us to make a sign explaining our project to be placed adjacent to our counter-monuments. We complied by writing the following text. For centuries artists have not only been concerned with re-creating what they see as beautiful landscape paintings and sculptural figures, they have also been interested in representing the way we live, not just what we see, but how and why we see things the way we do. This type of artwork draws attention to, questions, and critiques things that often go unnoticed such as poverty, injustice, class, conflict, human rights and inequality. Today, not only is it important for artists to accurately represent what actually happened, but also to acknowledge the complexity of situations and actions. For instance, artists throughout the world are focusing their attention on traditional monuments and memorials. This type of public artwork is called counter-monuments. These artists want to bring attention to neglected historical facts. Hence the title of our artwork.

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With our work the intention is to initiate a discussion regarding the suitability of existing memorials to remember and mark the complex history surrounding the Expulsion of the Acadians. We hope to raise the possibility of creating and building monuments that more accurately and poignantly represent and memorialize the historical events preceding, during, and following The Expulsion of the Acadians, Le Grand Dérangement. We invite you to participate in a discussion on these topics, hosted by the artists, on July 25th.

We re-installed each counter-monument adjacent to a sign with the text immediately above. On the advice of the Director of the exhibition we installed the Starr’s Point Counter-Monument across the road from the stone cairn monument because the monument itself is on private property and we did not have permission to install our counter-monument there. We placed the Longfellow Counter-Monument and its accompanying explanation on the shoulder of a public highway even further away from the Parks Canada Site than our initial installation. Then we reinstalled the French Cross Counter-Monument and the sign with the explanatory text more or less in the same place as before. A couple of months later when the exhibition ended, we retrieved our countermonuments and signs and discovered the Starr’s Point Counter-Monument had been pulled out of the ground and thrown down a bank into the woods. But we also found the following anonymous comments written in a booklet attached to the explanatory sign: “Thank you for doing this project of Counter Monuments. It is much needed. The quote by JM Faragher is so telling of how things really were in those times.” And “Thanks for your efforts in counterpointing some of the bull shit presented in our so-called ‘history’ texts. Through small projects like this we can begin to learn our actual history.” The Longfellow Counter-Monument had also been pulled up and we found it face-down in tall grass in a ditch. By contrast, the French Cross Counter-Monument and its companion sign were still standing, but in a different place, actually a better place than where we had placed them. They seemed to have shuffled around the French Cross under someone’s watchful eye. Apart from the fact that many people in Nova Scotia do not understand or appreciate contemporary public art, it is apparent that today, 250 years after the Expulsion of the Acadians/Le grand derangement, history and memory are still colliding. Further, a culture of forgetting and denying violations of human rights persists. While making laws to protect and promote human rights is crucial, the hatred, racism, and deranged ideologies that ground violations of human rights are far more difficult to grasp and deal with. Our counter-monuments simply scratched the surface of the symbolic dimension of them to reveal their significance, their function, and their alarming endurance.

References Beatty B (2018) Six strategies for dealing with controversial monuments and memorials. Hyperallergic, June 7:3

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Faragher JM (2005) A great and noble scheme: the tragic story of the expulsion of the French Acadians from their American Homeland. Norton and Norton, New York Grand-Pré National Historic Site of Canada. http://www.pc.gc.ca/apps/dfhd/page_nhs_eng.aspx? id¼267 MacDonald M (2019) Was the Acadian expulsion a genocide? New committee to explore that question. City News. June 17. www.citynews.ca Young J (1990) Counter-monument: memory against itself in Germany today. In: Mitchell WT (ed) Art and the public sphere. University of Chicago Press, Chicago

Bruce Anderson is Professor of Law at Saint Mary’s University, Nova Scotia, Canada. He teaches courses in business law and legal theory. His recent publications are concerned with the decisionmaking process in law, objectivity, law and morality, economic theory, and law and art. In 2011 he graduated with a Bachelor of Fine Arts degree from NSCAD University. Kim Morgan Professor at NSCAD University, is a visual artist working in public space. For the last fifteen years she has been exploring the process of cross-disciplinary collaborations through the creation of interactive public art projects. Her work addresses the impact of technology on the human body, our perceptions of time and space, and the shifting boundaries between the private and the public. Her work has been exhibited in Canada, United States, New Zealand, Spain, and Poland. www.kimmorgan.ca.

Index

A Acadians expulsion of, 253, 257, 258, 260 Adjudication, 20, 38, 43, 45, 64 See also Compulsory adjudication Affirmative action, 5, 92, 103, 134, 245 Albania, 20, 39, 61 Aristotle, vii, 7, 74, 75, 77, 83 Asymmetry constitutional (see Constitutional arrangements, constitutional asymmetry) political, 116, 146 Atrocity, 29, 255 ethnic cleansing, 5, 29, 254, 257 genocide, 29, 255, 260 Austria-Hungary (AH), 10 Autonomy group, vii, 9, 105, 118, 120, 156, 170, 241 (see also Right(s), self-government, to) individual, 74, 78, 98, 107 B Bosnia and Herzegovina, 2, 14, 20, 25, 30, 39, 61, 105, 115, 118, 153, 228 Dayton Peace Agreement, 105 Brexit, 3, 68, 72, 85, 139 Bruss, Marcel M.T.A., 46, 48 Buchanan, A., 70, 71, 81 C Canada, 29, 104, 105, 107, 115, 117, 119

Nova Scotia, 253, 259 Quebec, 95, 117, 119 Catalonia, 24, 95, 119, 136, 146 Catalonian-Spanish issue (Catalan case), 21, 24, 25, 68, 84, 130, 131, 133, 145 Citizens, 14, 22, 24, 27, 38, 43, 69, 80, 83, 97, 98, 101, 103, 128, 130, 131, 133, 135, 137, 141, 143, 145, 146, 148, 163, 169, 178, 207–220, 224, 238, 243, 250 Citizenship, 5, 100, 134, 144, 145, 168, 207– 220, 243 body of citizens, 27 citizenship law, 27, 209–212, 215, 216, 219 continuity of citizenship, 27 (see also Principle, continuity of citizenship, of) de iure, 212 de novo, 27, 218 dual, 216 ius sanguinis, 27, 211–213, 218, 219 ius soli, 211 Latvian citizen’s passport, 208, 213–216, 219 Soviet, 212 Coercion, 15, 17, 18, 23, 24, 43, 44, 47, 59, 64, 108, 120 Communitarianism, 92, 99 Competence, 24, 26, 117, 118, 120, 158, 159, 236 additional, 171–174 division of, 26, 154, 156, 161, 181 exclusive, 118, 161, 164, 167, 170, 173, 175 shared, 175–180

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Krešić et al. (eds.), Ethnic Diversity, Plural Democracy and Human Dignity, Ius Gentium: Comparative Perspectives on Law and Justice 99, https://doi.org/10.1007/978-3-030-97917-1

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268 Compulsory adjudication, v, 20, 37–65 acceptance of, 53, 54, 56, 57, 61, 63, 64 (see also Principle, compulsory adjudication, of) cultural factors, and, 48–59, 62, 63 EU accession, and, 51, 52, 60 multilateral treaties, in, 54 Conflict, 50, 58, 62, 79, 225, 257–260 conflict-resolution, 25, 147 constitutional (dispute), 8, 23, 114–121, 128–148, 153 ethnic, 1–3, 29, 249 internal (disputes), 70, 74, 114, 118 (see also Conflict, constitutional (dispute)) meta-conflict, 2 national, 132 (see also International disputes) See also World War(s) Constitution, 103, 105, 148, 154, 156, 188 Bosnia and Hercegovina, of, 25, 154–181 Croatia, of, 241, 243 European, 141, 142 first, 18 international law, of, 19 Latvia, of, 27, 210, 216, 217 Slovenia, of, 188, 189, 203 Soviet Union, of, 11 Spain, of, 24, 119, 135 Supremacy clause, and (see Supremacy clause) Yugoslavia, of, 2, 12 Constitutional arrangements, 24, 103, 115 confederal, 13 constitutional asymmetry, 23, 116–117, 121 federal (see Federation (federal system)) See also Institutional arrangement (framework, setting, design) Constitutional court, 100, 153, 154, 158, 160, 172 Bosnia and Herzegovina, 25, 153–181 Croatia, of, 234, 245, 250 Latvia, of, 208, 214, 215, 217, 218, 220 Slovenia, of, 26, 188–204 Constitutional law, 14, 175, 179, 180, 217 See also Theory (and methodology), comparative constitutional law Constitutional system, 23, 115, 202, 204 Cooperation, 4, 12, 21, 50, 58, 61, 74, 75, 77, 79, 81, 105, 161, 165, 236, 238, 240 Cosmopolitanism, 132, 139–141 Court(s), 16, 63, 69, 71, 101, 154, 163, 190, 204, 236, 237, 241, 244, 248

Index COVID-19 pandemic, 4, 21, 68, 140, 239 Croatia, 2, 9, 12, 13, 28, 39, 52, 55, 61, 224, 225, 234, 237, 239, 241–251 Culture, 2–4, 23, 94 dominant, 94 emerging norm, and, 20, 21, 42–44, 57, 59 European culture, 57–60 Western Balkan, of, 62, 63 Customary law, 15, 19, 38, 48, 53–59, 61, 64 compulsory adjudication, and, 53–57, 60, 64 emerging norm, and, 38, 44 source of law, and, 42 Czechoslovakia (former), 11, 105 Czech Republic, 55, 72 D Deliberation, 70, 72, 78, 82, 83, 85, 148 Democracy, 4, 7, 10, 15, 20, 21, 24, 26, 68, 70, 73–77, 81, 83, 85, 86, 128–148, 188–204 consociational, 105 constitutional, 27 crisis of, 24, 128, 130 democratic equality, 24 (see also Democracy, moral basis of) liberal, 7, 10, 30 moral basis, 74, 75 plural, 4, 8, 20, 26, 138 social, 8, 10, 30 Dêmoicracy, 24, 25, 128–130, 132, 139–148 Demos (people), 2, 22, 25, see People Discrimination, 9, 97, 102–104, 106, 139, 225– 246, 248, 249 anti-discrimination, 92, 100, 103, 230–233, 235, 236, 241–243, 249 direct discrimination, 234, 243 ethnic discrimination, 225, 227, 228, 230, 231, 233, 235, 241, 244, 249 indirect discrimination, 233, 234, 243 multiple discrimination, 231, 235, 243 non-discrimination, 23, 92, 99, 101, 226, 236, 250 (see also Principle, non-discrimination, of) prohibition of discrimination, 227, 230, 232, 234, 243, 244 racial discrimination, 75, 226, 228, 234 Domination, 21, 70, 72–74, 77, 83, 85, 130, 146 non-domination, 73, 81, 83, 86, 87, 129, 140, 142, 143, 145, 146, 148 Durkheim, É., 6 Dworkin, R., 75, 76

Index E Economy (economic), 4, 12, 16, 94, 178, 226 affairs (instruments, development), 11, 106, 170, 224 cooperation (integration), 174, 175 crisis (stagnation, recession), 3, 85, 239, 246 doctrine (ideology), 26, 191 equality (see Equality, economic) market, 4, 177, 224 power (hierarchy), 3, 11, 94 redistribution, 94 Emerging norm, 20, 38, 44–48 characteristics, 44 definition, 42 elements, 44–48 examples, 38 soft law, and, 45 Equality, 23, 28, 65, 71, 74, 75, 77, 78, 92, 103, 114, 115, 130, 134, 160, 188, 224, 227, 231, 232, 236, 241, 250 collective, 92, 104, 105 economic, 23, 101 individual, 104 legal, 92, 101, 133, 134, 226 political, 85, 92, 101, 134–135, 143, 145 principle of (see Principle, equality, of) social, 23, 101 substantive, 28, 250, 251 Estonia, 3, 212 Ethnic communities (ethnos), 2, 5, 6, 8, 13, 22, 25, 227, 241 ethnic cleansing (see Atrocity, ethnic cleansing) ethnic conflict (see Conflict, ethnic) ethnic discrimination (see Discrimination, ethnic discrimination) ethnic diversity, 5, 7, 8, 224 ethnicism, 3, 7, 8 ethnic majority, 2, 134–136, 145, 146 ethnic minorities (see Minorities, national) EU accession, 20, 28, 51, 52, 55, 64, 65, 224, 225, 236, 241, 248, 250 art. 49 of Treaty on EU, 43, 140 Central and Eastern European Countries, and, 225, 229, 239 conditionality policy, 28, 225, 229, 236, 239, 241, 247, 248, 250 Copenhagen criteria, 28, 51, 224, 229, 242 enlargement strategy, 52, 60, 246 European Parliament’s resolution, 51 negotiations, 51, 52, 61, 241, 245, 247

269 Western Balkan, and, 39, 52, 60, 61, 225, 236, 239, 246, 250 Europe, 1–4, 10, 12, 17, 20, 21, 25, 29, 37–65, 232 Central and Eastern, 8, 10, 28, 190, 203, 225, 239 European Community(es), 6, 13, 59, 230, 231 European Convention for the Protection of Human Rights and Fundamental Freedoms, 102, 163, 177, 178, 227, 228, 244 European Court of Human Rights, 21, 56, 165, 227, 228, 233–235, 238, 244, 248 European integration, 25, 58, 68–70, 85, 86, 139, 166, 224 European Union, 4, 8, 10, 13, 21, 28 Charter of Fundamental Rights of, 47, 142, 231, 236 Court of Justice of, 47, 228, 229, 231–233, 235–238, 250 enlargement of (see EU accession) European Commission, 39, 59, 69, 232, 237, 240, 242, 247 European Committee of the Regions, 69 European Parliament, 51, 240, 242 law of, 17, 20, 28, 39, 40, 43, 49, 54, 225, 227–236 treaty on, 47, 51, 52, 224, 229, 231, 236 treaty on functioning of, 49, 51, 54, 230, 238 F Faragher, J.M., 257, 259, 260, 262, 264 Federalism, 5, 20, 23, 25, 114, 115 constitutional asymmetry (see Constitutional asymmetry) cooperative, 25, 156, 171, 180 dual, 156, 180 Federation (federal system), 11, 12, 23, 25, 106, 114–116, 118–120, 153–156 European, 58, 59, 139 multinational system with federal arrangement (features) (see Federation (federal system)) Fragmentation, 23, 116, 118, 119, 130 Fraser, N., 94 Freedom, 23, 74, 77, 80, 98, 99, 102, 143, 188, 192, 216, 224, 226, 227, 231, 236, 241, 242 specific, vii, x, 130, 244, 249, 259 See also Right(s), freedom (fundamental) Free people, 81, 144

270 G Globalisation, 3, 14, 24, 25, 128, 129, 137, 139 Greece, 3, 40, 55, 63 H Hage, J., 45, 46, 48 Hardin, R., 80 Hart, H.L.A., 71, 75 Hate speech, 233, 244, 249, 251 Hegel, G.W.F., 94 Helfer, L.R., 62 Herder, J.G., 96 Horowitz, D., 93 Human dignity, 4, 6, 8, 9, 15, 19, 22, 26, 71, 75, 96, 99, 101, 104, 107, 188, 189, 200, 202, 203, 224, 231, 236 Hungary, 55, 68, 145, 237–239 I Ideal type, 5, 15, 17 Identity, 95 collective (group), 100, 105, 107, 118 cultural, 94 ethnic, 93 intersubjectivity, and, 95 law, and, 100 national, 115 recognition, and (see Recognition) substantialist concept of, 92, 93 Ideology, 9, 24, 135 judicial, 26, 188–204 normative (see Normative ideology) party, 119 Independence (political), 2, 11, 12, 22, 25, 27, 39, 133, 165, 168, 171 constitutional decision of sovereignty and independence, 13 referendum (see Referendum, independence) restoration of, 208, 214, 216–220 Innerarity, D., 128 Institutional arrangement (framework, setting, design), 24, 117, 129, 132, 135, 139, 140, 143, 144, 146, 148 International community, 25, 27, 59, 181, 208, 217 International Court of Justice, 38, 52, 54, 60, 210 International disputes, 21, 38, 42, 52–55, 61, 62 legal and political, 63

Index Western Balkan, in, v, 20, 21, 39, 52 International law, 2, 4, 5, 7–9, 13–16, 18, 19, 22, 38, 46, 48, 50, 53, 59, 61–63, 114, 133, 208, 209, 214, 217, 225 international human rights law, 92, 101, 106 international legal person, 166, 208, 209, 213, 217 sources of, 40 Interpretation, 7, 16, 17, 19, 23, 49, 53, 99, 108, 121, 132, 154, 156, 172, 203, 219, 228, 238 Isolationism, 3 J Judiciary, 5, 51, 105, 190, 237, 238, 240, 245, 247, 249 K Kant, I., 6, 75 Kelsen, H., 14, 17, 18, 27 Keohane, R.O., 70 Kirste, S., 47 Kosovo, 4, 13, 61, 165, 254 Kymlicka, W., 94 L Lasswell, H.D., 8 Latvia, 27, 30, 55, 207–220 diplomatic and consular corps (service) of, 27, 209, 213 Latvian People’s Council, 210, 211, 216, 219 parliament of, 217, 218 Supreme council, of, 212, 217–219 Law conceptions of, 14–19 hard and soft, 44, 46, 48, 229 identity, 100 legal scholarship, and, 15–17 religion, and, 116 social, 18 Legitimacy, 67, 68, 70–73, 78, 80, 84, 85, 87, 129, 134, 137, 142 Le grand derangement, see Acadians, expulsion of Levy, J.T., 104 Liberalism, 92, 98 Lijphart, A., 105

Index M Mackor, A.R., 48 Majority, 11, 22, 27, 73–76, 83, 105, 188–204 See also Ethnic communities (ethnos), ethnic majority McDougal, M.S., 8, 40 Mead, G.H., 93 Memorials, 29, 254–257, 260 See also Monuments Mezey, N., 100 Minorities, 103 ethnic (see Minorities, national) linguistic, 106 national, vi, 28, 69, 91, 95, 101, 103 religious, 106 representation of, 91, 100 Moldova, 3, 56, 57 Montenegro, 3, 14, 20, 39, 40, 52, 60, 61 Monuments counter-monuments, 255, 260–264 critique of, 255–257 functions and effects of, 254–255 Multiculturalism, 92, 93, 98, 99 N Nation, 2, 5, 10, 13, 21, 24, 93, 98, 114, 135– 137, 139, 140, 143–146, 148, 210, 211, 215, 223, 224 majority, 134 minority, 134, 136, 145 nation-state (see State, nation-state) stateless, 69, 72, 74, 84 Nationalism, 21, 24, 58, 67–69, 83–86, 114, 131, 133, 135, 137, 138, 142, 148, 233 Nationality, 139 Norm, 18, 19, 41, 42, 44, 45, 47 applicability of, 43 basic, 18 binding force of, 41, 46, 47 emerging (see Emerging norm) existence of, 18 formulated, 42 gradeability, 45 non-hard, 48 power-conferring, 17 rules and principles, 76 standard of conduct, as, 15 unformulated, 44, 45 validity, 46 Normative ideology, 41, 43–47 Northern Macedonia, 40, 61 North Macedonia, 3, 20, 39, 63, 105

271 O Occupation Latvia, of, 27, 212–220 P Peace, 5, 49–51, 55–57, 59, 61 culture, and, 57–60 EU accession documents, in, 51 People, 2–4, 9, 18, 22, 24, 29, 68–74, 76, 78, 80–83, 85, 87, 92, 96, 98, 101, 103, 129, 130, 136, 144, 209, 210, 216, 226, 254, 257 Pettit, P., 73, 78, 143 Pluralism, 27, 98, 105, 108, 188–190, 203, 224, 236 legal, 19, 21, 67, 69, 86 plural democracy (see Democracy, plural) plurality of demos (demoi), 129, 140, 143, 148 Poland, 6, 55, 68, 145, 237–239 Populism, 3, 9, 138, 139 Principle, 47, 59, 94, 169, 179 compulsory adjudication, of, 20, 38, 39, 42, 48, 51, 53, 54, 57, 62–65 (see also Compulsory adjudication) conditionality, of, 28, 229 (see also EU accession, conditionality policy) continuity of citizenship, of, 209, 219 democracy of, (democratic principle), 73, 84–86, 129, 168 (see also Democracy) equality, of, 23, 101–105, 134, 232 (see also Equality) federal loyalty, of, 166, 180 non-discrimination, of, 23, 47, 92, 97, 99, 101–104, 226, 231 (see also Discrimination) non-domination, of, 140 (see also Domination) peace, of, 50, 60 (see also Peace) proportionality, of, 92, 236 responsibilities of entities, of, 157 rule of law, of, 49, 50, 56, 157, 160, 236– 240 (see also Rule of law) R Racism, 29, 101, 226, 232, 233, 248, 264 Rawls, J., 75, 78, 79, 82 Raz, J., 98 Recognition, 142 collective of, 100 individual of, 94, 96, 100

272 Referendum, 85 independence, 13, 128 Religion, 5, 9, 25, 98, 100, 102, 106, 116, 139, 192, 226, 228 Representation groups, of, 105, 118 territorial units, of, 118, 119 Republicanism, 21, 68, 71, 74–76, 78, 83, 85– 87, 129, 143 Restricted Area, 22, 73, 77, 84, 87 Right(s), 4, 37, 38, 43, 71, 73, 84, 130, 135, 169, 170, 176–178, 210, 215, 216, 220, 234 collective, 22, 92, 100, 104–108, 137, 188, 193 decide, to, 83, 84, 99, 105, 128, 135 freedom (fundamental), 21, 69, 98, 102, 106, 129, 141–143, 163, 168, 171, 173, 176, 177, 188, 189, 193, 204, 224, 226, 229, 231, 236–239, 241, 251, 259 human, 8, 9, 19, 28, 98, 163, 169, 173, 176, 189, 192, 193, 203, 224, 226, 229, 231, 236, 238, 240, 248, 264 individual, 92, 97, 100, 102, 108, 137, 189, 194 minority, 10, 26–28, 132, 188, 189, 191– 195, 197, 199, 200, 204, 224, 225, 228– 230, 236, 239, 242, 245, 247, 249–251 political, 23, 97, 100, 103, 133, 210 self-determination, to, 2, 9, 69, 106, 107, 114, 136 self-government, to, 24, 101, 105, 106, 133, 156, 170, 242 Ross, A., 41, 44 Rule of law, 5, 50, 51, 56, 62, 130, 133, 138, 157, 160, 163, 168, 181, 188, 190, 202, 203, 224, 236–240 culture and, 62, 63 EU accession, and, 51, 224 EU, and, 49, 50, 55, 56, 236–240 Rule of recognition, 17, 71 S Secession, 4, 5, 9–14, 23, 69, 114, 120, 145, 148 Self-determination, 9–14 See also Right(s), self-determination, to Serbia, 3, 12, 13, 20, 39, 40, 52, 60, 61 Slaughter, A.-M., 62 Slovakia, 55 Slovenia, 13, 26, 55, 61, 188–204, 239, 247 Sources of law, 15, 17, 40, 41, 238 emerging norm, and, 42 objective and subjective, 15

Index Sovereignty, 2, 13, 25, 69, 128, 132, 136, 139–141, 145, 156, 161, 166, 168, 171, 210, 212 Soviet Union, 11, 16, 207, 208, 212, 213, 215, 217 Spain, 3, 24, 55, 72, 115, 119, 130, 131, 135, 137, 145–147, 243, 258 Basque Country, 119 Catalonia (see Catalonia) State borders, 2, 3, 5, 10, 14, 20, 40, 50, 52, 60, 61, 172, 211 continuity, 71, 212, 216, 217, 219 de iure and de facto, 2, 213, 214, 216 incorporation of, 213, 217 independence of (see Independence (political)) interests of, 4, 215, 216 multinational (compound, plural plurinational), 130, 134, 145, 147 nation-state, 1, 5, 20, 25, 27, 68, 69, 128, 129, 132, 134–136, 139, 140, 145, 148, 247 Statehood, 5–7, 11, 14, 18, 20, 22, 61, 166, 179, 213, 217 Supremacy clause, 26, 154, 156–160 Supreme court, 69, 117 Bosnia and Herzegovina, of, 157 Latvia, of, 214, 220 United States, of, 225 T Taylor, C., 96, 98 Territory, 29, 57, 69, 83, 116, 143, 144, 147, 163, 176, 209–211, 217, 223, 232, 257 Theory (and methodology), 128, 131 comparative constitutional law, 103, 114 conceptual analysis, 40, 133 constructivist, 92, 93 cultural study of law, 100 dêmoicratic (see Dêmoicracy) descriptive (empirical), 70, 105, 130, 132 dialogical, 95 egalitarianism, of, 101 essentialist, 92, 93 federal, 114, 115, 120 (see also Federalism) judicial ideology measuring, of, 191–193 legal, 14–19, 91, 133 natural-rights, 15 normative, 70, 99, 129, 130, 132 policy-oriented legal, 16, 40 political, 95, 101, 132 sociological, 17 state, of, 14, 16, 17, 19

Index Trust, 21, 24, 68, 69, 77, 79–83, 87, 120, 128, 135, 137, 237–239, 248, 250 U Ukraine, 4, 56, 57 United Kingdom, 4, 54, 115, 145–147 Northern Ireland, 54 Scotland, 146 Wales, 69 United Nations, 164 Charter, 102, 107 Declaration on The Rights of Indigenous Peoples, 106 Human Rights Committee, 101 International Convention on the Elimination of All Forms of Racial Discrimination, 226 International Covenant on Civil and Political Rights, 226 International Covenant on Economic, Social and Cultural Rights, 227 V Valdés, G., 70, 73 Veto

273 Polish/Hungarian, 68 powers, 5, 92, 100, 105, 117 W Waltermann, A., 47 Watts, R.L., 154 Westermann, P., 48 Western Balkan countries, 39, 62, 63 culture, and, 62–63 EU accession, and (see EU accession, Western Balkan and) World War(s), 12, 58, 114, 215, 226, 245, 253 von Wright, G.H., 76 X Xenophobia, 233, 248 Y Young, J., 260 Yugoslavia (former), 2, 12, 30, 189, 223, 247, 253 Arbitration Commission of the Peace Conference on, 2