Hybrid constitutional courts are associated with deeply divided and post-conflict contexts where the impartiality of the domestic judiciary is suspect. Such courts enlist international (i.e., foreign) judges to create an ostensibly neutral counterbalance to the presumed political biases of local judges. This mixed-methods case study of the Constitutional Court of Bosnia-Herzegovina questions the value of these hybrid courts. Contrary to what might be expected, the results of multidimensional scaling indicate that Bosnia’s foreign judges have not provided a reliable counterbalance to apparent ethno-national divisions on the Court. Furthermore, qualitative analysis suggests that the foreign judges have contributed to several strategic mistakes that have probably harmed the Court’s tenuous authority. It is also suggested that the presence of international judges on constitutional courts may actually discourage the kind of strategic behavior that is needed to build and sustain judicial power, particularly in deeply divided and post-conflict contexts.

/pdf/international-judges-on-constitutional-courts-cautionary-3vh433xqhe.pdf

International Judges on Constitutional Courts: Cautionary Evidence from Post‐Conflict Bosnia

Tension between ‘rights’ and ‘democracy’ principle in highly political cases – ECtHR’s wide margin of appreciation on elections put into question by recent cases – Sejdic-Finci v Bosnia-Herzegovina (BiH): ethnic criteria for standing in election violate Convention – Zornic v BiH: candidate’s exclusion from standing in election on account of her self-chosen identity violates P-12 – Mathieu-Mohin and Clerfayt v Belgium overruled? – ‘Integrative democratic tolerance’ approach: five legal and political principles to reconcile ‘rights’ and ‘democracy’ principle in highly political cases.

/pdf/democracy-v-human-rights-the-strasbourg-court-and-the-1myzpcwy2q.pdf

Democracy v Human Rights ? The Strasbourg Court and the Challenge of Power Sharing

This article concerns the concept and practice of international(ized) constitutions, which have become characteristic of situations where there is deep international involvement in peacebuilding efforts. The process and nature of internationalized constitutions challenge traditional ideas about sovereignty, self-determination, and constitutions. While they reinforce the importance of constitutional documents themselves as an indicator of sovereignty, internationalized constitutions simultaneously legitimize a high degree of external influence in the creation and even implementation of that document. This article argues that internationalized constitutions are not inherently legitimate or illegitimate, but have the potential to be either in any given situation. Internationalized constitutions in Iraq and Kosovo are used as case studies to investigate how the dilemmas of internationalized constitutions have played out in two recent scenarios.

International(ized) Constitutions and Peacebuilding

The aim of this essay is to present and then to critically discuss some arguments that have cast serious doubt on whether the conception of democratic constituent power is appropriate for, and should be invoked in, divided, conflict-ridden societies to avoid or fend off, among others, the prospect of a constitutional imposition. The author’s main argument is that the conception of democratic constituent power in such cases can be a matrix of normative (and potentially legalized) principles and standards, which do not preclude the intervention of external powers as such, but frame the demand for self-restraint as regards the forms, the aims, the intensity and the extent of such intervention. The invocation of the constituent power of ‘We the People’ in divided societies entails important risks, and one should take recourse to its rhetorical use only upon prudential, consequentialist considerations,which should include the possible exclusionary effects of the nationalist version of constituent power. Nevertheless, the prudential calculus can also indicate that such invocation may become useful as a reference point for a  forward-looking learning (and potentially therapeutic) process, which will not aspire to simply obliterate the past and its original sins. Ultimately, everything depends on the context and on the virtues of the people and of their leaders.

Avoidance of Constitutional Imposition and Democratic Constituent Power in Divided, Conflict-Ridden Societies

Constitutional visions of the nation and multi-ethnic societies in Europe

https://www.mpil.de/files/pdf3/mpunyb_01_Riegner_152.pdf

Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared

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Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared