The advantages of power-sharing arrangements as a tool of peacemaking are gradually being substantiated in practice and research, but have not yet gained normative legitimacy, nor have they been properly incorporated into either the human rights framework or international and regional law. When power-sharing arrangements utilize predefined ethno-national groups as a central feature of the constitutional structure, they are widely seen as illiberal (and unjust) and as violating individual rights to equality and nondiscrimination. This conflict between power-sharing and human rights is generally viewed as a dilemma between peace and justice, and the main justification given to support the maintenance of the arrangements is that they are an indispensable political compromise to overcome violent conflict and are preferable to the continuation of bloodshed. However, this justification is not always enough, as the European Court of Human Rights ruling in the case of Bosnia and Herzegovina’s constitution illustrates. But is this “peace versus justice” framing of the tensions between power-sharing and human rights accurate? Does it properly account for the meaning and requirements of justice in loci of deeply divided places?

The theoretical framework of collective equality changes how tensions between power-sharing arrangements and human rights are viewed: Instead of a dilemma of peace versus justice, it is framed as between two conceptions of justice as we evaluate power-sharing and other collective measures as a way for promoting justice (in addition to peace). This chapter brings the collective equality framework into the legal debate and explores its key implications for human rights law. It also offers an alternative way to mitigate the tensions between existing international law (International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, Article 1) and contemporary peacemaking practice, which is more apt to the contemporary task of international law: regulating disputes and conflicting demands made by ethno-national groups. This proposed framework aims to contribute to an already happening shift, from a state-centered interpretation of the right to self-determination to a more nuanced and substantive understanding of that right as an international legal right of peoples to secure their freedom and equality.

Faced with the challenge of accommodating diversity, liberal justice and human rights promise to provide an adequate normative framework for securing equal liberties and rights for all. However, despite great advancements in theory and law, discrimination endures, and these promises have not been fulfilled for enduring minorities, especially in places of ethno-national conflict. The problem this chapter aims to highlight is that while liberal democracy and human rights frameworks provide us with a desirable ideal, they fail to provide useful guidance for progress, from a situation of ethno-national conflict – which often involves political exclusion, sharp inequalities, low mutual trust, and high animosity – to more just and peaceful societies that respect the human rights of all. Self-determination is currently blocked as a legal remedy; states are reluctant to grant minority rights, especially in cases where majority–minority relations are in conflict; and scholars of equality law, asserting that any real advancement is blocked because of the individualist orientation of the law, send us back to collective measures.

Chapter 3 explores the social conditions and normative constraints that influence the achievements that can be obtained through partition. The chapter’s main argument is that although novel ideas for “homogenizing” territories may arise, a reasonable theory for peace must assume that forcible transfers of population in any form are prohibited, and consequently that demographically homogenous territories are unattainable. By looking at the social realities in the four cases of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine, the chapter illustrates that in most actual cases of ethno-national conflict, partition does not offer a viable course of action, if the goal is the creation of ethnically homogenous territories that can become “defensible enclaves” or “true” nation-states. Even in those cases where territorial partition make sense – as in the Israeli–Palestinian conflict, in postdivision Cyprus, or in Bosnia and Herzegovina after the ethnic cleansing – peace must be attained not on the basis of ethnically homogenous nation-states, but rather on the basis of ethnically heterogenous territories and states. Thus, the chapter concludes that while territorial partition may be considered as one tool for peacemaking in ethno-national conflicts, its limitations must be recognized, and attained with other policies for accommodating ethno-national diversity.

This chapter substantiates the argument that promoting collective equality as a core rationale of peacemaking is not only utopian, but a realistic goal that corresponds with reducing the likelihood of violent conflict and increasing the potential for durable peace. In the first part of the chapter, the argument that collective equality posits a realistic goal for peacemaking is presented. In the second part, the claim that promoting collective equality should be regarded as an effective peacebuilding strategy is promoted. I base this claim on empirical findings found in the literature, mainly writings on ethnic conflicts, nation-building, and peace. Lastly, the chapter engages with three possible objections related to the relationship between collective equality and power politics.

Peacemaking practice shows that national minorities are aware of the shortcomings of liberal democracy and human rights to secure their fundamental interests, and when they come to the negotiating table their focal points are not bills of rights, but rather inclusive political institutions. This political inclusivity often involves the use of power-sharing democracy, a political framework that intentionally accommodates competing ethno-national groups within the state’s governing structures. Many experts, nongovernmental organizations, scholars, and policymakers have also recommended power-sharing as the more adequate institutional design for such places. This chapter evaluates democratic power-sharing vis-è-vis the more common model of majoritarian democracy to support the argument that a revision of our taken-for-granted assumptions about what “proper” democracy looks like is needed. To illustrate the general observations, the chapter reviews the use of power-sharing systems in Cyprus, Bosnia and Herzegovina, and Northern Ireland.

A central criticism of power-sharing arrangements, and especially of their ethnic-corporate versions, is that they violate the basic principle of equality and nondiscrimination. The case of Sejdić and Finci v. Bosnia & Herzegovina, submitted in 2006 and delivered by the European Court of Human Rights (ECtHR) in 2009, vividly illustrates this problem. In this case, the ECtHR struck down central features of Bosnia and Herzegovina’s power-sharing arrangements on the grounds that they breached the right to nondiscrimination with regard to participation in elections for the legislature and presidency of Bosnia and Herzegovina. To better understand the legal analysis and normative assumptions underlying this prominent perception of power-sharing arrangements, and to explore its shortcomings that the concept of collective equality aims to address, this chapter presents the ECtHR rulings regarding Bosnia and Herzegovina’s constitutional arrangements and the criticisms raised against it. It shows how the legal framing portrays the conflict as another version of the peace versus justice debate, in which human rights obligations represent the demands of justice, while power-sharing arrangements represent the unavoidable, though regrettable (in terms of justice), price of peace. This legal appraisal, the chapter argues, avoids a central and crucial normative feature of the situation – the “elephant in the room” of national self-determination in multinational places.

In recent decades international and regional human rights norms have been increasingly applied to constitutional provisions, revealing significant tensions between primary political arrangements, such as power-sharing institutions, and human rights norms. This book argues that these tensions, generally framed as a peace versus justice dilemma, are built on an individualistic conception of justice that fails to account for the meaning and requirements of justice in deeply divided places, which are characterized by ethnically based political exclusion and inequalities.

By introducing the concept of collective equality as a new theoretical basis for the law of peace, this book proposes a new approach for dealing with the tensions between peace-related arrangements and human rights. Through principled, pragmatic, and legal reasoning, the book develops a new paradigm that captures more accurately what democracy and human rights mean and require in the context of ethno-national conflicts, and provides potent guidance for advancing justice and peace in such places.

Chapter 2 starts with an overview of the modern phenomena of ethnicity, nationalism, and ethno-national conflicts, and about the probable causes and background conditions that provide fertile ground for their outbreak, as these understandings are essential for evaluating the prevailing theoretical assumptions about justice and democracy in places of ethno-national conflict. To deepen the understanding of the sociology of ethno-national conflicts, the chapter introduces the four conflicts of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine. This chapter singles out political exclusion, the struggle over public goods of the nation-state, and group inequalities along ethno-national lines as leading factors that explain the outbreak of violent conflicts.

This chapter opens the third part of the book in which a new theoretical account called collective equality is offered. At the core of collective equality, we find a recognition of the centrality of collectives and their equal relations as the primary pillar of justice and peace. Deeply divided places riven by ethno-national conflicts are characterized not only by national divide, but most often by practices of discrimination, political exclusion, and domination of one ethno-national group over the other(s). While the national divide itself is unlikely to disappear in such places, the way in which the ethno-national “border” is managed, or in other words how the groups and their members relate and interact, can dramatically change. Alongside liberal multiculturalism and liberal nationalism, collective equality introduces the paradigm of equality between the national groups that occupy a specific territory. In the realities of conflict-riven places, this new paradigm must respond to concerns that lay at the root of contemporary conflicts – the objection to or fear of foreign domination – common to both national minorities and national majorities caught in an “intimate conflict.”