Page - 254 - in Austrian Law Journal, Volume 2/2015

ALJ 2/2015 Diversity: Beyond Recognition in Bosnia and Refusal in France 254 But what is legally and politically more significant is the will to improve a real equality between men and women since in this regard the constitutional legislator has chosen the mean of positive discrimination, which is diametrically opposed to the abstract concept of citizens. So the new para 2 of Art 1 reads: ‘Statutes shall promote equal access by women and men to elective offices and posts as well as to professional and social positions.’ Concerning professional and social positions this provision, for the time being, proves to be is- sued from wishful-thinking but in electoral matters, the so-called ‘parity’ has been confirmed and consolidated in Art 4: ‘Political parties and groups shall contribute to the exercise of suffrage. They shall be formed and carry on their activities freely. They shall respect the principles of na- tional sovereignty and democracy. They shall contribute to the implementation of the principle set out in the second paragraph of Art 1 as provided for by statute.’ While the mentioned statutes have instituted the principle of parity lists for the elections, the sanction of the non-observance is only financial so that most parties continue to present more male than female candidates. But for the recent ‘département’ elections, the scrutiny has been changed. Henceforth it is foreseen that the electors vote in favor of a couple of candidates, one women and one man. Thus many women are part now of these assemblies (about 1.000). How- ever, it remains significant that among all these women, only eight have been elected president of their assembly.18 In conclusion it can be observed that in both countries the diversity is admitted and organized almost in the public and political sphere. In Bosnia the diversity is extended to a true power shar- ing and forms a fundamental principle of government whereas in France it is limited to elections, professional and social life forming an important exception to the principle of cultural/ethnic indifference. Consequently the political diversity is not complete; in Bosnia, it does not cover the ‘Others’, in France it concerns only a little segment of political life. And what is lacking in both countries is the organization and the implementation of a real pluralism. III. The kind of diversity and its effectivity: that is the question As formulated by the ECtHR, diversity should become a source of enrichment. This is possible only when diversity is not limited to the political sphere and when it is not locked up in rigid structures. Yet, this is precisely the difficulty in Bosnia first of all, in France to a lower degree. I will illustrate this idea by the persistent Bosnian difficulties to implement the Sejdić and Finci judg- ment (A.) and the problems raised in France by what the ECtHR calls the ‘living together’ (B.). A. The Bosnian difficulties with the Sejdić and Finci judgment’s implementation The ECtHR’s judgment has been delivered in 2009. Before the Bosnian parliamentary elections in 2010, the European institutions – Council of Europe as well as EU – threatened Bosnia not to recognize these elections if there was no implementation of the judgment. Despite all resolutions and recommendations, even the general elections of 2014 have taken place without any modifi- cation. 18 See http://www.interieur.gouv.fr/Elections/Actualites-des-elections/Liste-des-presidents-des-conseils-departementaux- elus (10. 6. 2015).