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.

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.