Group rights encourage tyranny

My inbox floweth over. I’ve received two long letters arguing that the European Court of Human Rights should affirm its recent Kovačević v. Bosnia and Herzegovina decision. One comes mainly from the Bosnian diaspora in the US and Europe:

The other comes from the Democratization Policy Council:

The authors argue their cases well. Those concerned with the fate of Bosnia and Herzegovina should give them close attention.

What’s it all about?

I’ll take a less legalistic perspective and try to avoid reference to the details. The basic issue is the one Timothy Snyder refers to as “who belongs to the state”? But in the 21st century I think it better to ask “to whom does the state belong?”

The US constitution is clear on this question: it belongs to “we, the people.” This simple formula has many ramifications. American history has seen the individual rights originally reserved to rich, white men inexorably extended to all American citizens. The US Constitution recognizes groups rights only for American Indians. Sadly, the US government has honored those more in the breach than in the observance.

In the Balkans, most of the constitutions can be summarized in an equally simple formula: “we the peoples.” The Bosnian constitution specifically names Bosniaks, Croats, and Serbs. It provides those groups with rights and powers in addition to those assigned to individuals and other groups. To gain power under this constitution you need to identify with one of the “constituent peoples.”

This all but guarantees the permanence in power of political parties that associate themselves with ethnic groups. Non-ethnic parties are disadvantaged. In its not-yet-final decision the ECHR has decided that this ethnonationalist constitution discriminates against people who do not identify with one of the ethnic groups. That makes it impermissible in a member state of the Council of Europe. The European Convention on Human Rights applies directly in Bosnia and Herzegovina.

What difference does it make?

It makes a big difference. Without the empowerment of ethnic groups, the citizens of Bosnia and Herzegovina would have many more ways in which to organize themselves and their politics. Ethnonationalist leaders would no longer have a monopoly on power. More conventional left and right parties could gain greater weight.

That is why the ethnonationalists, their co-nationals in Zagreb and Belgrade, and their apologists worldwide oppose the proposed ECHR decision. If implemented, it would disempower all of them. So they resist. The ethnonationalists have still not implemented a 2009 ECHR decision to allow citizens who don’t identify with the three main ethnic groups to serve in the presidency.

The Kovačević decision is more sweeping. It essentially requires a complete rewrite of the Dayton constitution that ended Bosnia’s 1992/5 war. Instead of group rights, individual rights would predominate. The geographical structure of the country, based on the warring parties, would have to be changed. The Croat/Bosniak Federation and Republika Srpska could dissolve in favor of strengthened municipal governance.

That would eliminate much unnecessary expenditure on intermediate levels of governance. In many municipalities, one ethnic group or another would dominate. But all municipalities would be required to respect the rights of the minority. At the “state” level, politicians would have the option of organizing across ethnic lines. Appealing to your own ethnic group would of course still be permitted. But access to power would no longer depend on ethnic identity.

Bosnians need to decide

How to rewrite their constitution is up to the citizens of Bosnia. But I don’t wish for them any less than I wish for myself. I would not trade my individual rights in the US for any form of group rights. That is because the courts can be relied on to enforce my individual rights. I wish nothing less for Bosnians: rule of law that guarantees implementation of individual rights. Power should flow from the choices of individuals, organized how they prefer. Forcing people into an ethnic mold is not freedom. Group rights encourage tyranny.