LAW and DIVERSITY - Francesco Palermo + Jens Woelk

LECTURE OUTLINE
Law and the Protection of Diversity
Objectives:
- legal standards and rules of living-together in diversity
- Minority-protection, autonomy, state (re-)building
Copenhagen criteria: democracy, Human Rights (incl. minority-rights), rule of law

Concepts and Case-Studies
1) Introduction: Law and Diversity - Concepts
• Autonomy and Integration
• Individual and Group Rights
• Segregation versus Interaction
• Balances and Time:
 How did they get there?
 Which solutions?
Constitutional and legal arrangements


2) Minority-Protection within a State: Italy and South Tyrol
a) The Italian “minority-constitution”: various levels of different protections

b) The special case of South Tyrol: (siamo qui!)
- How did they get there? Process: international foundations – domestic solutions? Implementation process
- Which solutions? Territorial autonomy, consociational democracy, veto rights, quota-systems, cultural autonomy, resources, …

c) Topics for discussion
- South Tyrolean autonomy and European integration
- How to achieve fair representation? Past and future of the quota-system
- Tolerance by law or more?
- Participants’ choice: …

3) Case Study: “Poseidonia”
Role game with presentation and discussion of the following issues:
Minority rights: different situations – different types of “special rights”
• Definition(s)
• Different levels and … … instruments of protection:
- International (standards?): FCNM, OSCE-Recommendations (Lund, Oslo, The Hague), … - Equality and non-discrimination (incl. positive/affirmative action)
- National (still main reference for minority issues) - ”Special rights”? Which ones?
- Regional/local - Autonomy: personal vs. territorial
• Political participation: democracy (which kind?) + Rule of law
• Minority governance
Council of Europe: Framework Convention on the Protection of National Minorities

4) State (Re-)Building After Conflict: Bosnia and Herzegovina
- The conflict - origins
- How did they get there? Direct involvement of IC, in part. PIC, OHR and Bonn powers (legislation and sanctions), mixed (international and local) institutions, the problem with “local ownership”, …
- Which solutions?
• The Constitution: international law (“annex 4”), supremacy of ECHR
• The system: Federalism (weak State-level) and complex system of differentiated government, consociational democracy, veto rights (negative effects), incorporation of international HR-documents, …
• The “Constituents People’s Case” (U III-5/98):
 Short introduction (context)
 Meanings of “equality”: formal, substantial, institutional-collective
 Implementation of the decision (OHR, Sarajevo agreement)
• Lessons from Bosnia and Herzegovina: “a European Raj”?
DPA: OHR “final authority in theatre regarding interpretation of this Agreement on the civilian implementation of the peace settlement” (art. 5, annex 10) + extended interpretation by Peace Implementation Council, Bonn 1997. Problem: legal criteria for the exercise of these powers?
• The Opinion of the Council of Europe’s Venice Commission
Discussion

5) Peacekeeping and Reconstruction: Further Examples
Bougainville, Aceh and Timor East, Kosovo, Northern-Ireland, Cyprus …

6) Final Observations and Concluding Remarks
Parallels and differences:
• Efficacy of (security) guarantees given (by the parties)?
• Presence or absence of the political will to sustain a peace process?
• How is monitoring/dispute-settlement arranged?
The result of any verification or peacekeeping operation depends upon the general political environment.
Law_and_Diversity.ppt (143 KB)