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Courts and ConsociationsHuman Rights versus Power-Sharing$
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Christopher McCrudden and Brendan O'Leary

Print publication date: 2013

Print ISBN-13: 9780199676842

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199676842.001.0001

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The Bosnian Constitutional Court and consociation

The Bosnian Constitutional Court and consociation

(p.85) 6 The Bosnian Constitutional Court and consociation
Courts and Consociations

Christopher McCrudden

Brendan O’Leary

Oxford University Press

This chapter examines the decisions of the Bosnian Constitutional Court. It considers the role of the Constitutinal Court; the Constituent Peoples case; the Court's decision on challenges to presidential election arrangements; and the views of international judges. It shows that the Constitutional Court of Bosnia, including some of its distinguished non-Bosnian members appointed by the European Court of Human Rights (ECtHR), has often acted in line with the hypotheses of Issacaroff and Pildes. Its majorities have generally upheld consociational principles at the state level, respecting the constitution made at Dayton, even when ECtHR rights have arguably been limited. The track record of this Court, at least in key cases, also suggests a distinct pattern of judgment among the judges appointed from Bosnia. Bosniak judges have been more likely to favour integrationist constructions of the constitution and to express such commitments in their opinions. By contrast, the Serb and Croat judges have been more likely to uphold provisions emphasizing the multinational, federal, and consociational character of the constitution negotiated at Dayton.

Keywords:   constitutional courts, constituent peoples, presidential elections, international judges, consociational principle, human rights

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