Page - 251 - in Austrian Law Journal, Volume 2/2015

ALJ 2/2015 Constance Grewe 251 diversity, ethnic difference and cultural or national minorities whereas the French model of the ‘state nation’ relying on cultural indifference acknowledges only abstract citizens and no minori- ties. While the German model leads to ‘institutional segregation and/or territorial separation’3 the French model aims at assimilation. As history shows, both of these models have failed insomuch as they do not have succeeded to transform diversity from a threat to a source of enrichment. To the contrary, ethnic conflicts and divided societies have resulted from the ethnic differences in ex-Yugoslavia, namely in Bosnia and Herzegovina (BiH). The recognition of ethnic differences and the adoption of a power-sharing mechanism in the Dayton-Constitution not only prove to be insufficient but also discriminatory. And instead of assimilation the French denial of ethnic and cultural diversity has been pushed to introduce increasing derogations without being able to manage some hot social and/or ethnic crises. To put it in a nutshell, recognize or not diversity, that is not the question (II.). The question is rather what kind of diversity should be recognized and with which legal and/or political conse- quences (III.). This is what I would like to underline here by the opposite examples of BiH and France. II. Recognition of diversity: that is not the question As can be seen in BiH, the recognition of ethnic diversity does not overcome the divide between majority and minority since it does not include all citizens (A.). Paradoxically, the French example converges with this statement insofar as it admits some exceptions from the principle of the universality of citizens (B.). A. The scope of ethnic diversity enshrined in the Bosnian Constitution The Dayton Constitution, still in force, implicitly but clearly rejects the concepts of a single nation state or of minority rights in concluding the preamble by the following formula: ‘Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows.’ The – completely fictive4 – constituent power mentioned in this provision are the three ethnic groups, the ‘Others’ being put into brackets in their quality as both constituent peoples and citi- zens. According to this provision, the Bosnian State is first of all composed by the constituent peoples and only secondarily by the citizens. Therefore the power sharing is limited to the three constituent peoples. The Constitution institutes the monopoly of the three ethnic groups for the Presidency and the House of Peoples. Furthermore, each one disposes of a veto power when it considers that its vital interest has been violated. The Bosnian Constitutional Court has been confronted with the consequences of ethnicity in numerous proceedings. The landmark ruling is in this regard the ‘Constituent peoples’ case of 20005 where Joseph Marko has been the judge rap- porteur. 3 Marko in Corradetti 268. 4 Maziau, L’internationalisation du pouvoir constituant, RGDIP 2002, 549 (568). 5 CC, U 5/98, Constituent peoples – four partial decisions: 28/30 January, 18/19 February, 30 June/1 July and 18/19 August 2000. The decisions of the Constitutional Court of BiH are available at http://www.ccbh.ba/eng/ (10. 6. 2015). See Marko, Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A First Balance, European Diversity and Autonomy Papers 7/2004, available at http://www.eurac.edu/edap (10. 6. 2015).