Human rights and citizenship in Bosnia and Herzegovina

Human rights Bosnia and Herzegovina.jpg
By Elena Cirkovic · 10 May 2013
Human rights Bosnia and Herzegovina.jpg

In the 'Groundwork of the Metaphysics of Morals', Immanuel Kant writes: 'In the kingdom of ends everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits to no equivalent has a dignity.' [1] More than half a century after the adoption of the UNDHR, the characteristics of the bearer of 'universal' rights and dignity, still remain unclear.

The case from Bosnia and Herzegovina (BiH) Sejdic and Finci reveals and targets the persisting problem of discrimination against minorities. The case has special significance considering that generally the ECHR does not refer directly to minorities, with the exception of Article 14, which states that 'the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as … association with a national minority'. In addition, BiH is one of the seventeen Council of Europe member States, which have ratified Protocol No. 12. Thirty other member States have not done so. [2] The structural ambivalence of human rights prevents the assertion that human rights and dignity constitute fundamental normative underpinnings of global governance. This ambivalence is particularly pronounced in the tension between aspirations to cosmopolitanism on the one hand, and particularism of exceptional cases, such as BiH, on the other hand.

The question of what it means to be a citizen, at global, regional, or local levels, is directly related to the legitimacy of rule and the capacity of human beings to act as political subjects. State legitimacy in international law has been historically connected to forms of rule and perceptions of who is capable of self-rule. However, at the same time, the international community itself is not a coherent subject, neither unified in purpose nor in existence prior to the practices formulated in its name. In this sense, the 'international community' has in part, been performatively constituted through its interventions. Bosnian citizens, who in this case are of Jewish and Roma origins, have accessed the regional human rights body to claim their status not only as members of the Bosnian community, but also to claim universal rights of citizenship, which should be accessible to them as 'universal citizens' and members of the international community. A denial of rights to these individuals is based on the greater good as it has been envisioned for both BiH and the international peace and security.

Spatial and temporal components of the definition and scope of 'human dignity' become unclear in contexts where an individual loses communal membership. While, the multiplicity of governing and regulatory frameworks at local, regional, and global levels leaves open the possibility for citizenship and rules governing human rights protection beyond the state, the distinction in the status of citizen/non citizen is more of a blurred hybrid. While individuals have a degree of capacity to act and claim their rights beyond state borders, citizenship and human rights protection still depend on membership in a community, as well as statehood. In other words, it also matters which state provides the citizenship thus influencing the existence of the individual not only as member of that particular community, but how the individual can enter the supranational realm. The so-called 'Balkan' region has been allocated to the realm of exception, rather than a norm. Hence, categories of citizenship have been conditioned by both local self-images and international perspectives on the region. [3]

In his recent commentary on BiH, Christian Tomuschat writes: 'The first thing an outside observer notes when having a look at the title is that the word 'Balkans' has been carefully avoided. Southeast Europe sounds more neutral, more sober. Indeed, the word 'Balkans' has acquired a negative connotation not only here in Germany through a history which the public in Western and Central Europe has never understood completely, a history of turmoil and revolutions, of which mostly the dark sides and not the promising and future-oriented aspects have been highlighted.' [4] If we are accustomed to such a perspective, the discriminatory measures in the BiH can become an acceptable norm, rather than a measure for exceptional circumstances. AsSejdic and Fincijudgement indicates, ethnic quotes of federalism in the BiH are legally problematic. BiH has historically been a site of overlapping identities and contemporary governing and legal structures would have to reflect such multiplicity without ethno-cultural domination. International diplomacy favoured the creation of a national absolute in BiH through a conception of homogenous territories based on some pre-given identity. At the same time, equal citizenship continues to be the criteria guaranteeing the 'right to have rights' in international law. [5]

[1] Immanuel Kant, Groundwork of the Metaphysics of Morals, transl. by Mary Gregor (Cambridge University Press, 1998) 42.

[2] Sejdic and Finci v. Bosnia and Herzegovina , Application nos. 27996/06 and 34836/06, Council of Europe: European Court of Human Rights, 22 December 2009, available at: http://www.unhcr.org/refworld/docid/4b44a28a2.html. Accessed on 20 March 2013.

[3] Igor Štiks, 'Nationality and Citizenship in the Former Yugoslavia: From Disintegration to European Integration' (2006) 6 Southeast European and Black Sea Studies 4, 483-500.

[4] Christian Tomuschat, Introductory Lecture "Citizenship, Sovereignty and Soft Borders in Southeast Europe" Workshop, Fakultät für Rechtswissenschaft der Universität Hamburg, March 11 2011.

[5] Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace and Jovanovich, (1951), 1968). See also Seyla Benhabib, The Reluctant Modernism of Hannah Arendt (New York: Rowman and Littlefield, (1996), 2003).

Oecumene: Citizenship after Orientalism is funded by an European Research Council (ERC) Advanced Grant (Institutions, values, beliefs and behaviour ERC-AG-SH2).

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