Fifteen Eighty Four

Human rights law particularly the right to equality and non-discrimination, seem to come in tension with the use of democratic power-sharing, a pivotal tool for achieving peace in regions plagued by ethnonational conflicts. However this prevailing interpretation of human rights law is unhelpful and unnecessary, and a more comprehensive approach is needed to support the promotion of peace and justice in such deeply divided places. To achieve this goal, I introduce the concept of “Collective Equality” in my recently published book by CUP.

The Significance of Power Sharing in 21st-Century Peacemaking

While there was a period in the latter half of the 20th century when many believed nationalism and the nation-state era were waning, it is now evident that nationalism, including ethnic nationalism, remains a persistent force. Ethno-national conflicts are prevalent in the 21st century and are responsible for most violent conflicts globally. These conflicts, complex and deeply entrenched, exact a heavy toll on human lives. Addressing and resolving them is a daunting challenge, and the traditional approaches of territorial partition and establishment of liberal democracy with human rights safeguards do not prove sufficient to achieve conflict resolution and justice. In response, “power sharing” democracy has emerged as a significant strategy in peacemaking efforts. Unlike majoritarian democracy, power-sharing constitutional frameworks deliberately involve the primary population groups as partners in governance. Despite their potential pitfalls, such arrangements have emerged as central instruments of peacemaking.

Peace v. Justice: The Issue of Power Sharing

A pivotal challenge illustrated by a 2009 ECtHR judgment (Sejdić and Finci v. BiH) is the perceived conflict between power-sharing arrangements, particularly when they are based on ethnonational affiliation and the imperative of equality and non-discrimination. Commonly, the tension between power-sharing arrangements and human rights law is framed as a choice between peace and justice. Approving power-sharing despite its perceived impact on individual equality is generally portrayed as sacrificing justice for the sake of peace, ceding to power.

The problem of an overly individualistic conception of justice

However, this portrayal of peace versus justice results from adopting an excessively individualistic perspective on justice, which does not fully encapsulate the profound injustices that characterize places riven by ethno-national conflicts. Such conflicts arise when attempts to establish inclusive political societies fail, resulting in major population groups coalescing around ethnic affiliations, seeking exclusionary control of the state instead of striving for equitable collaboration based on equality and inclusiveness. Studies demonstrate a correlation between intergroup inequality and the likelihood of violent conflict.

Reassessing Justice in Deeply Divided Places

If we adjust our liberal-individualistic view to include a due sensitivity to the collective dimensions of the situation, we may find that peace and justice are more aligned than seemed at first glance. Ethno-national conflicts are driven by contemporary political interests and rationalities, contrary to the perception that they are inevitable and irrational. These conflicts arise in regions where efforts to establish functional political societies that embrace entire populations have faltered. Rather than pursuing fair social cooperation based on equality and inclusion, major population groups rally around ethnic identities, fighting for control of the state and of the other group (or groups).

Despite recognizing the challenging circumstances that lead to such constitutional arrangements, the ECtHR’s 2009 judgment did not identify legitimate group interests justifying these structures. Misrecognition of the three groups as nations entitled to self-determination is neither accidental nor surprising. It reflects how international law usually perceives the right to self-determination as attached to a state and territory, and not to a people or a national group. The accepted justification for denying the right to self-determination from ethno-national groups is to maintain political stability. However, this legal approach disregards the central place of ethno-national groups in conflict as well as in peace and does not serve justice and equality, as it hinders positive progression towards fairer political arrangements.

Collective Equality: recognition of ethnonational groups as equal to each other

To counteract the overly individualistic interpretation of human rights law and the core principle of equality, the concept of collective equality must be integrated into the human rights paradigm. Collective equality entails acknowledging the legitimacy of ethno-national groups and recognizing them as equals, transcending the minority-majority hierarchy. By connecting the right to self-determination with relational equality, collective equality offers a potent distinction between justified and unjustified claims to political power, rights, and resources. This implies that ethno-national groups’ right to self-determination, whether they are minority or majority, should be equally acknowledged. Drawing on John Rawls’ conception of justice as fairness, collective equality adds fair cooperation among the groups as a crucial component of justice in places where the political landscape includes more than one nation. Informed by Iris Marion Young’s insights, self-determination is viewed as a relationship based on mutual respect, non-domination, and interdependence. Additionally, inspired by Nancy Fraser’s ideas of political justice, collective equality encompasses four dimensions: redistribution, equal recognition, equality in political representation, and equality in negotiation processes.

Collective equality as a realistic utopia

Critics may argue that collective equality might destabilize existing sovereign states and exacerbate ethno-nationalism. However, empirical research shows a correlation between intergroup inequality and the likelihood of violent conflict, highlighting the potential benefits of enhancing equality among groups. The principle of collective equality emerged from real-world peace processes and agreements, where conflict parties outlined conditions for replacing violence with politics. While it may not offer a simple solution guaranteeing eternal peace, recognizing its potential and accurately identifying the challenges of achieving peace and justice in deeply divided regions is crucial for shaping effective legal frameworks. Through a deeper understanding of injustices and their remedies political and constitutional structures can be designed to better manage disagreements within and between states and offer a more viable alternative to war and violence.

In Conclusion

Clinging to an overly individualistic view, I argue, hinders both peace and justice, as it disrupts dealing with the most difficult manifestations of political injustice, characterized by group-based discrimination and oppression. The principle of collective equality, aligned with prevailing justice conceptions in the context of group conflicts and modern peace processes, is brought as a necessary addition to the existing human rights paradigm. By reframing the tension between power-sharing and human rights as a conflict between two principles of justice, individual and collective, we can lessen the conflict between political agreements and international law. This approach enables us to better reconcile power-sharing arrangements with human rights obligations, moving beyond the conventional dichotomy of peace versus justice. Recognizing ethno-national groups’ right to equality and protection from domination, the principle of collective equality aligns with customary international law and proves more suitable for conflict resolution in divided regions.

Dr. Limor Yehuda is a lecturer at the faculty of law at the Hebrew University of Jerusalem and a research fellow at the Truman Institute for the Advancement of Peace at the Hebrew University, at the Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa and the Van Leer Institute. Previously, Yehuda clerked for President Aharon Barak at Israel’s Supreme Court and practiced human rights law at the Association for Civil Rights in Israel (ACRI) where she directed the Department for Human Rights in the Occupied Territories. Recently, her book titled “Collective Equality – Human Rights and Democracy in Ethno-National Conflicts” (CUP 2023) has been published.