Constitutional Courts and the Preservation of Ethnic Hegemony in the Western Balkans
Across the Western Balkans, “judicial silence” on language rights and ethnic representation is becoming increasingly apparent. Looking at the examples of North Macedonia and Bosnia and Herzegovina (BiH), constitutional courts have consistently deferred decisions on language equality and ethnic representation. This article argues that in these post-conflict, multiethnic societies, judicial institutions have become complicit in preserving ethnic power balances by avoiding substantive adjudication. This silence not only delays justice but institutionalises ambiguity, paralysing democratic integration and reconciliation. This article examines how constitutional courts in North Macedonia and BiH use legal inaction to uphold the current ethnicisation of politics, ultimately preserving elite hegemony and obstructing civic transformation.
Strategic ambiguity as hegemonic preservation
The above depicted pattern reflects what Ran Hirschl has termed hegemonic preservation. He argues that political elites, anticipating potential losses in influence due to democratisation or demographic shifts, strategically entrench their power through constitutional mechanisms. By transferring decision-making authority from parliaments to insulated judicial bodies, elites safeguard their core interests under the guise of neutral, rights-based constitutionalism. Yet, looking at the Western Balkans, there is a regional twist to Hirschl’s hegemonic preservation thesis: instead of actively using courts to entrench elite interests, elites in the Western Balkans use constitutional silence or deferral to preserve the hegemony of an ethnically defined state structure, instead of daring the transition towards a civic state. Importantly, it does not matter which ethnic elite we look at; all sides, be it Albanian or North Macedonian, Serbian, Bosnian or Croatian, remain invested in ethnic identity politics rather than in genuine integration and reconciliation.
North Macedonia: Judicial inaction and the politics of language
In North Macedonia, the legal trajectory of Albanian language rights reveals the persistent tension between constitutional reform and ethnopolitical preservation. Following the 2001 Ohrid Framework Agreement (OFA), the Albanian language gained expanded recognition in the state’s legal and administrative framework. The 2008 Language Law operationalised the OFA’s provisions and allowed the use of minority languages in municipalities where the population met the 20% threshold. Later, the 2019 language law mandated bilingualism in official documents, currency, uniforms, and extended the right to use Albanian in all official communications and proceedings.
Despite these legislative milestones, true linguistic equality remains elusive. The 20% threshold is insufficient, leaving many communities in linguistic limbo. Moreover, Albanian’s status is not enshrined in the constitution, making it vulnerable to political shifts. Since 2020, several legal attempts have challenged the law’s constitutionality. Ethnic Macedonian political parties like the conservative VMRO-DPMNE have consistently sought to undermine or repeal the 2019 Law on the Use of Languages, framing it as a threat to the country’s unitary character and legal stability. The Constitutional Court of North Macedonia has yet to deliver a ruling on the matter.
Significantly, the impasse is sustained from within the judiciary itself: Albanian minority judges, such as Osman Kadriu and Naser Ajdari, have deliberately boycotted court sessions addressing the law. Kadriu has defended these actions as necessary to protect minority rights and to allow time for broader constitutional reform to enshrine Albanian’s official status. North Macedonian parties now use the law’s unresolved status to resist what they describe as concessions to Albanian parties under international pressure. The judicial deadlock has become a tool for ethnic political mobilisation.
Bosnia and Herzegovina: Ethnic power-sharing and judicial abdication
The Constitution of BiH, created under Annexe 4 of the 1995 Dayton Peace Agreement, offers another example of how hegemonic preservation operates through the formalisation of ethnic division. The agreement entrenched ethnic division and created a rigid power-sharing system that protects nationalist elites. Rather than fostering a unified, democratic state, it formalised wartime divisions and made ethnicity the key to political participation.
Already in the preamble, the Constitution identifies three “constituent peoples” with exclusive political rights. Central state organs, including the presidency and the parliamentary assembly, are also organised along ethnonational lines. The presidency, for instance, consists of one Bosniak and one Croat directly elected from the Federation of BiH and one Serb elected from Republika Srpska. This restricts not only ethnic minorities such as Roma and Jews from running for high office but also members of the constituent peoples who do not reside in their “designated” entities.
Legislative mechanisms further reinforce the ethnic structuring. The House of Peoples mandates equal representation of the three constituent peoples regardless of demographic realities. Moreover, the “vital national interest” veto and the requirement of entity-based voting in the parliamentary assembly serve to block legislation that does not receive cross-ethnic consensus. Such consociational arrangements freeze the wartime power distributions and even lead to authoritarianism. Similar to North Macedonia, political elites across all major groups have shown little interest in dismantling this system. On the contrary, they rely on it. Elections are conducted through ethnic quotas and entity-based voting rules that ensure the primacy of group identity over ideological or programmatic platforms.
The Constitutional Court of Bosnia and Herzegovina has attempted to address these issues. In its 2000 “Constituent Peoples” decision, it ruled that all three groups must be equally represented in both entities. While this seemed progressive, it again confirmed ethnicity as the core of the political order. Similarly, in Sejdić and Finci v. BiH (2009), the European Court of Human Rights found that barring minorities from the presidency and the parliament violated the European Convention on Human Rights. Despite this and multiple follow-up judgements such as Zornić v. Bosnia and Herzegovina (2014), a subsequent amendment of the Constitution remains absent. This non-compliance is not simply a result of technical difficulties but reflects the deep entrenchment of a hegemonic political structure in which nationalist elites on all sides benefit from the continuation of the current order.
Furthermore, the Office of the High Representative (OHR), originally tasked with overseeing the civilian implementation of the Dayton Accords, has increasingly drawn legal criticism for imposing legislation, dismissing elected officials and overriding judicial decisions. Rather than advancing Bosnia and Herzegovina’s transformation into a sovereign, democratic state governed by the rule of law, the OHR obstructs this process and undermines the DPA’s civilian goals. By entrenching ethnonational power structures and bypassing domestic institutions, it acts as an agent of hegemonic preservation. Thus, the international community, while instrumental in designing the current system, has become complicit in its continued perpetuation.
Moving forward by looking back
In North Macedonia and BiH, the ethnic logics of language laws and Dayton have frozen political development and blocked progress towards a civic, inclusive state. The formalisation of ethnic divisions has evolved into a system that consolidates the power of entrenched elites. The legal structure, while appearing to offer checks and balances and minority protections, in fact operates the hegemonic preservation of an ethnic state structure.
It is often argued that transforming ethnopolitics towards a more pluralistic and civic state form risks reigniting conflict. In line with this, the stereotype prevails that ethnic hatred is an inherent characteristic of the region, leading to the assumption that states must be organised along ethnic lines. Yet, as this article shows, one may also argue that it is the ethnicisation itself that risks violence breaking out again and hinders any reconciliation from the start.
Historically, there is evidence of an early model of multinational governance in Southeastern Europe: the Habsburg Empire. The study of the Habsburg constitutional system critiques modern nationalist narratives by showing that national equality can exist within a pluralistic order. The empire managed multiethnic diversity through legal pluralism, recognition of individual and collective rights and regionally adapted governance rather than through exclusive ethnic domination. Though far from perfect, when looking at practical power imbalances or inconsistent implementation, the former Habsburg approach demonstrates the possibility of guaranteeing language rights in a supranational, not ethnically defined state. As “judicial silence” continues to sustain ethnic hegemony in the Western Balkans, revisiting historical legal traditions shows that pluralism must not rely on division and that a more civic future is possible.
Antonie Blumberg is currently completing her Master’s in Eastern European Studies at the University of Hamburg. She holds a Bachelor’s degree in Liberal Arts and Sciences from University College Maastricht and spent two months as a trainee at the IDM and another month as a trainee at Documenta – Centre for Dealing with the Past in Zagreb.
