Between Constitutional Nationalism and Human Rights - the Future of the Rule of Law in Bosnia and Herzegovina?

Abstract

This paper analyzes the constitutional position of Bosnia and Herzegovina (BiH) between constitutional nationalism and human rights. In its judgments in Sejdić and Finci v. BiH, and Zornić v. BiH, the European Court of Human Rights (ECtHR) found that the BiH Constitution was not in line with the European Convention on Human Rights and Fundamental Freedoms (ECHR). Namely, the privilege of the three constituent peoples in the Constitution of BiH, the ECHR was assessed as contrary to the prohibited discrimination prescribed by the ECHR. In this sense, the paper analyzes the current Bosnian constitutional model of a form of consociational democracy or constitutional nationalism. The authors analyze the presumption of the ECtHR in terms of the (non) existence of a legitimate goal for maintaining discriminatory provisions in the Constitution of BiH. Also, the paper analyzes the importance of the implementation of the ECtHR judgment for the future of the rule of law in BiH.

Keywords

• constitutional nationalism
• human rights
• ecthr
• echr
• consociational democracy