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    UNIVERSITY OF TORONTO

    Faculty of Law

    LEGAL STUDIES RESEARCH PAPER

    MILITANTDEMOCRACY,LEGAL

    PLURALISM AND THE PARADOX OF

    SELF-DETERMINATION

    PATRICK MACKLEM

    This paper can be downloaded without charge at:

    The Social Science Research Network Electronic Paper Collection:

    http://ssrn.com/abstract=702465

    No. 05-03

    http://ssrn.com/abstract=702465http://ssrn.com/abstract=702465http://ssrn.com/abstract=702465
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    MILITANT DEMOCRACY, LEGAL PLURALISM,

    AND THE PARADOX OF SELF-DETERMINATION

    Patrick Macklem*

    ABSTRACT

    The international legality of militant democracy when and how a constitutional

    democracy can legally act in an antidemocratic manner to combat threats to its

    democratic existence is far from clear. The legality of legal pluralism the extent towhich international law authorizes transformative political agendas that seek to

    implement forms of religious, cultural or national autonomy is also unclear. The elusive

    legality of these political developments creates conditions for the abuse of power both by

    states acting in defense of democracy, and by religious, cultural and nationalcommunities seeking a measure of legal autonomy. Marked by a shared normative

    commitment to the paradoxical principle of self-determination, the relationship between

    legal pluralism and militant democracy provides insight into the legality of bothdevelopments in ways that might be overlooked by viewing each in isolation. That this is

    the case is revealed dramatically by the recent decision of the European Court of Human

    Rights inRefah v. Turkey, in which the Court upheld the banning of a political party thatadvocated a form of legal pluralism which would introduce elements of Islamic law into

    the Turkish legal order. Refah v. Turkey establishes a legal site in which contestations

    over the boundaries of legal pluralism and militant democracy will take place in the

    future, and reveals how European human rights law seeks to realize the democraticpotential of self-determination.

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    1

    INTRODUCTION

    At the dawn of the twenty first century, Europe finds itself once again questioning the

    extent to which a democratic state should act in a militant manner to combat threats to its

    democratic future. Militant democracy, a term coined by Karl Lowenstein in 1937 in a

    lament to the inability of democracy to contain fascism, refers to a form of constitutional

    democracy authorized to protect civil and political freedom by preemptively restricting

    its exercise.1

    Its most recent visible manifestation is the raft of anti-terrorism legislative

    initiatives that many states introduced in the wake of September 11 2001. More

    traditional manifestations of militant democracy include hate speech legislation, the

    banning of political parties, restrictions on mass demonstrations, and the criminalization

    of certain political organizations.

    Introduced to combat extremist political agendas that threaten peace, security and

    democratic order, these initiatives typically interfere with the exercise of individual

    human rights, such as freedom of expression, opinion, religion, and association, or rights

    to counsel or a fair trial, in the name of democratic self-preservation. Although human

    rights often give way to countervailing state interests in a constitutional democracy, the

    cumulative effect of such initiatives is a dramatic recalibration of the legal relationship

    between the individual and the state a phenomenon that is occurring, albeit unevenly, in

    all European democracies.

    *Professor of Law, University of Toronto. I am indebted to Jarmila Lajcakova, Zoran Oklopcic, and

    especially Courtney Jung, for their insightful comments on a previous draft. Funding from the Fulbright

    New Century Scholar Program and the Social Sciences and Humanities Research Council of Canada is

    gratefully acknowledged.1 Karl Lowenstein, Militant Democracy and Fundamental Rights I (1937) 31 American Political Science

    Review 417.

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    2

    Europe is experiencing the rebirth of another set of legal and political debates

    about the nature of its democratic commitments. In the aftermath of the fall of the Soviet

    Union and the demise of communism, dormant minority religious, ethnic and cultural

    communities are reawakening and vying for formal recognition. Some of these

    communities share an ethnic kinship with a state other than the one in which they are

    located. Some share common cultural traditions which they regard as defining features of

    their collective identities. Some define themselves in terms of religious identities not

    shared by the majority of members of the society in which they are located. Despite their

    differences, the formal recognition that minority communities seek typically involves a

    measure of cultural, political or territorial autonomy from parent states in which they are

    located. These demands are increasingly presented as a matter of right.

    What might be called the challenge of legal pluralism, like the challenge of

    militant democracy, is not new. Forged by the lessons of violent collective

    reconfigurations of territorial sovereignty, domestic, regional and international human

    rights law historically blunted this challenge by privileging individual civil and political

    rights over collective social and cultural rights. Rights-bearers in the field

    overwhelmingly are individuals and their entitlements protect a zone of individual liberty

    from the exercise of public power. Although it is not blind to the significance of social

    and cultural interests, international human rights law in particular, jurisprudence under

    the European Convention on Human Rights emphasizes the protection of individual

    freedoms such as expression, opinion, religion, and association essential to liberty and the

    rule of law.

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    Diverse forms of legal pluralism, however, have increasingly become legitimate

    institutional possibilities in the face of real or potential religious, cultural or national

    conflict. Demands for greater autonomy often take the form of transformative political

    agendas that require the redistribution of state power to enable the introduction of plural

    forms of governance. To the extent that it contemplates that religion, culture, nationality

    or some other marker in addition to citizenship will play a role in distributions of

    jurisdiction or rights within a single polity, legal pluralism, in some cases at least,

    contemplates differential treatment of individuals in ways that appear to threaten

    individual liberty and the rule of law. Nonetheless, legal pluralism in recent years has

    acquired a measure of normative and political legitimacy unimagined by the architects of

    the Europe that emerged from the ashes of world war.

    Perhaps reflecting moral anxiety over its implications, the international legality of

    legal pluralism the extent to which international law authorizes transformative political

    agendas that seek to implement forms of religious, cultural or national autonomy is far

    from clear. Likely for the same reason, the international legality of militant democracy

    when and how a constitutional democracy can legally act in an antidemocratic manner

    is also unclear. The elusive legality of these political developments creates conditions for

    the abuse of power both by states acting in defense of democracy and by religious,

    cultural and national communities seeking a measure of legal autonomy. Each can claim

    the mantle of right to mask oppressive practices in the pursuit of what it believes to be

    essential to its collective future, thereby deepening and exacerbating conflicts that lie at

    the heart of their relationship.

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    In this essay I explore the twin challenges of legal pluralism and militant

    democracy. Both manifest a normative commitment to the principle of self-

    determination, namely, the capacity of a collectivity to freely determine its political status

    and pursue its economic, social and cultural development. This shared commitment

    explains the ambiguous normative and legal status of both developments, yet it also

    reveals an intimate relationship between the two, one that provides insight into their

    normative legality in ways that might be overlooked by viewing each in isolation.

    That this is the case is revealed dramatically by the recent decision of the

    European Court of Human Rights inRefah Partisi v. Turkey, in which Turkey banned a

    political party that advocated a form of legal pluralism which would introduce elements

    of Islamic law into the Turkish legal order.2

    The Court held that Turkey was authorized to

    act in a militant manner in the face of such a transformative political agenda. In so

    holding, the Court engaged broader questions about the relationship between militant

    democracy and legal pluralism.Refah Partisi v. Turkey yields a legal framework for

    determining the international legality of specific forms of militant state action and legal

    pluralism. Informed by a commitment to democratic government, this framework reveals

    the limits and possibilities of subjecting conflicting claims of self-determination to the

    rule of law, and constitutes a legal site in which contestations over the boundaries of legal

    pluralism and militant democracy will take place in the future.

    I.

    2Case of Refah Partisi (The Welfare Party) and Others v. Turkey (application nos. 41340/98, 41342/98,

    41343/98 and 41344/98)(2001), 35 E.H.R.R. 3, including a joint dissenting opinion by Judges Fuhrmann,

    Loucaides, and Sir Nicolas Bratza.

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    In a tragically belated response to Lowensteins lament that democracies that have gone

    fascist have gravely sinned by their leniency,3

    constitutional expression of militant

    democracy first occurred in Europe as a foundational principle of post-war West

    Germany.4

    Drafted against the backdrop of the collapse of the democratic Weimar

    Republic and World War II, the German constitution authorizes the state to regulate and

    in some circumstances prohibit political activities, associations and movements that

    threaten Germanys free basic democratic order.5

    Other European states also accepted

    the post-war necessity of antidemocratic measures to combat extremist movements

    seeking to unseat democratic norms by radical political agendas. In 1948, Italy amended

    its constitution to prohibit the resurrection of the Fascist Party.6

    Article 16 of the French

    Constitution of 1958 authorizes militant state action more generally, empowering the

    President of the Republic to take measures required by the circumstances, when the

    institutions of the Republic are under serious and immediate threat.

    Despite its historical pedigree, questions relating to the nature and scope of

    militant democracy have acquired greater political and legal salience in recent years. No

    doubt the rejuvenation of militant democracy is partly a response to the profoundly

    destabilizing potential of new forms of terrorism and religious fundamentalism. Neo-Nazi

    movements, empowered perhaps by successful exploitation of fears associated with

    economic and cultural globalization, may have also provoked states to assume militant

    3 See Lowenstein,supra note 1, at 652-53.4 For a summary of interwar legislative antecedents in various European jurisdictions, see Lowenstein, ibid,at 638-52.5 Article 18, Basic Law for the Federal Republic of Germany of 23 May 1949, as amended.6 See Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures, adopted by

    the Venice Commission at its 41st plenary session (December 1999) (CDL-INF (2000)1). See Appendix I

    Prohibition of Political Parties and Analogous Measures for an overview of restrictions concerningpolitical party activities in national law, based on a survey of 40 countries. Online:

    http://www.venice.coe.int/docs/2000/CDL-INF(2000)001-e.asp

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    stances towards threats to democratic institutions. Whatever its causes, militant

    democracy is emerging as a new archetype of statehood. It represents a fundamental

    challenge to traditional conceptions of constitutional democracy at the very moment

    when Europe itself appears to be evolving into its own constitutional order.7

    Yet the limits of militant democracy remain to be defined and defended, leaving

    fundamental freedoms exposed to the risk of abusive state action. This problem presents

    itself most vividly in the context of legislation containing broad definitions and open-

    ended delegations of authority initially aimed at suppressing domestic forms of

    extremism or terrorism. Section 1 of the United Kingdoms Terrorism Act, 2000,

    8

    for

    example, defines terrorism as actions that are designed to influence the government or to

    intimidate the public or a section of the public and made for the purpose of advancing a

    political, religious or ideological cause. Such actions potentially include not only serious

    violence against a person and endangering life, but also the creation of a serious right to

    public health or safety, and serious interference with or disruption of an electronic

    system.9 Provisions such as s. 1(1) of the UK Terrorism Act are shot through with

    interpretive ambiguity.10

    Phrases such as designed to influence the government and

    intimidate the public can be interpreted in a variety of ways, and a clearer

    7 Compare Otto Pfersman, Shaping Militant Democracy: Legal Limits to Democratic Stability, in A. Sajo

    (ed.), Militant Democracy (2004) 48-68, at (democracies are always more or less militant. [but] making

    democracy more militant modifies increasingly the structure from which it starts).8Terrorism Act, 2000 U.K., ch. 11, s. 1(1). See generally Kent Roach, The World Wide Expansion of

    Anti-Terrorism Laws After 11 September 2001, Studi Senesi (forthcoming); see also Roach, Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses, in Sajo (ed.), Militant

    Democracy, supra, at 171-208.9Ibid, s. 1(2).10 See the Human Rights Commissioner of the Council of Europe, opinion 1/2002 and 26 August 2002

    (noting that the definition of terrorism in the UK legislation as amended enables its application topersons who are unrelated to any terrorist emergency and thus may jeopardize rights enshrined in the

    European Convention).

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    understanding of the limits of militant democracy is needed to determine their

    international legality and reach.

    Recent restrictions on freedom of expression and association introduced by some

    states in the war against terrorism have exacerbated these concerns.11

    In late 2001, for

    example, Italy amended its Criminal Code to make it a criminal offence to promote,

    form, organize, manage or finance associations active in terrorism, even international, or

    the subversion of the democratic order.12

    What constitutes a subversive association is

    often not immediately apparent from the text of such legislative initiatives, raising

    questions about the extent to which a state can criminalize activity that ordinarily would

    be regarded as a legitimate exercise of civil and political freedom.

    Vague definitions of terrorist and subversive organizations underpin additional

    militant state legislative initiatives, such as the extension of powers of investigation,

    surveillance and prosecution, the intensification of the monitoring of communications,

    the confiscation of certain forms of property, prohibitions on the financing of subversive

    organizations, special procedures for the prosecution of certain crimes, inter-state sharing

    of personal telecommunications and travel data, and changes to immigration procedures

    facilitating deportation and expulsion of individuals to foreign states.In early 2004, for

    example, France introduced sweeping new legislation aimed at organized criminal

    networks, and conferring greater police surveillance powers and detention without

    prosecution.13

    The United Kingdom amended its immigration law in late 2001,

    11 For overviews, see M. van Leeuwen (ed.), Confronting Terrorism: European Experiences, Threat

    Perceptions and Policies (2003).12 Introduced by the Decree-law of 18 October 2001, no. 374 (converted with amendments into the law of

    15 December 2001 no. 438:Dispositzioni urgenti per contrastare il terrorismo internazionale). For

    critique, see Roach, The World Wide Expansion of Anti-Terrorism Laws After 11 September 2001,supra.13 Lawyers Protest Across France at Sweeping Anticrime Law, New York Times, 12 February 2004, A11.

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    authorizing the indeterminate detention of a person on the basis of a reasonable suspicion

    that he or she is supporting or assisting an international terrorist organization.14

    Questions surrounding legislative measures that authorize militant state action

    often spill beyond the legal realm of statutory interpretation and engage deeper issues of

    constitutional authority. As noted, Article 21 of Germanys Basic Law declares

    unconstitutional political parties that threaten the free basic democratic order, and the

    German Constitutional Court as early as 1952 was called on to determine whether a neo-

    Nazi political party constituted such a threat.15

    In recent years, militant forms of

    democracy have found specific authorization in the written constitutions of several

    European states. The Polish Constitution forbids political parties and other organizations

    devoted to totalitarianism or racial or national hatred.16

    The Ukrainian constitution

    authorizes the prohibition of parties that threaten the independence of the state.17

    The

    Bulgarian constitution prohibits the formation of political parties on the basis of

    ethnicity.18

    The Spanish constitution guarantees freedom of association but authorizes the

    state to declare an association illegal if its goals or means are criminal or it is of a secret

    or paramilitary nature.19

    While relatively specific, the meaning and scope of such

    constitutional provisions are not self-evident and ultimately require judicial

    interpretation.

    14Anti-terrorism, Crime and Security Act, 2001 c. 24, Part IV.15 It found in the affirmative: 2 BVerfGE 1 (1952). Six years later, the Court upheld a ban on the German

    Communist Party: BVerfGE 5, 85 (1958).16 Art. 13, Constitution of Poland of 2 April 1997.17 Art. 37 of the Ukrainian Constitution of 28 June 1996.18 Art. 11(4) of the Bulgarian Constitution of 12 July 1991.19 Art. 22, paras. 2 and 5 of the Spanish Constitution. The statute in question is Ley Orgnica de Partidos

    Polticos LO 6/2002. Spain has accepted this constitutional invitation to combat radical elements within the

    Basque independence movement, introducing legislation in 2000 prohibiting organizations despite the factthat, strictly speaking, they might not be criminal in nature. See generally Vctor Ferreres Comella, The

    New Regulation of Political Parties in Spain, and the Decision to Outlaw Batasuna, in Sajo (ed.), Militant

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    More generally worded constitutional provisions are also often capable of being

    interpreted to authorize the enactment of militant legislative measures that infringe civil

    and political freedom in the name of democratic self-preservation. Article 55(1) of the

    Hungarian Constitution, for example, guarantees that everyone has the right to liberty

    and personal security, and no one may be deprived of freedom except for reasons defined

    in the law. Do provisions such as Article 55(1) prohibit or authorize militant state

    action that deprives an individual of her or her liberty or personal security? In the absence

    of a clearer understanding of the legality of militant democracy, constitutional provisions

    explicitly or implicitly authorizing militant forms of democracy create ostensible

    legal authority for abusive state action.

    One potential source of clarity about the limits of militant democracy lies in

    international human rights law. Domestic legal commitments to militant forms of

    democracy co-exist with international legal commitments to respect civil and political

    freedom commitments enshrined regionally in the European Convention on Human

    Rights. The European Court of Human Rights has provided some guidance on the extent

    to which rights and freedoms enshrined in the European Convention constrain a states

    capacity to combat perceived threats to its democratic existence.20

    The Court has held

    that the right to life enshrined in Article 2 requires a state to seek to minimize the risk to

    life in anti-terrorist operations.21

    It has held that the right to a private life enshrined in

    Article 8 entails that a state does not possess unlimited discretion to subject persons

    within their jurisdiction to secret surveillance despite the fact that democratic societies

    Democracy, supra, at 133-156; see also Leslie Turano, Spain: Banning political parties as a response to

    Basque terrorism (2003) 1(4)International Journal of Constitutional Law 730.20Lawless v. Ireland (No. 3) (1961) 1 EHRR 15.21McCann and others v. UK(1995), 21 E.H.R.R. 97.

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    nowadays find themselves threatened by highly sophisticated forms of espionage and by

    terrorism.22

    It has held that the presence of a military officer on a special court created to

    protect national security to violate the right to a fair trial as guaranteed by Article 6.23

    The

    Convention also contains an absolute prohibition on torture and inhuman or degrading

    treatment or punishment.24

    States may derogate from other Convention guarantees but the

    Court has held that it retains supervisory authority to determine whether a state invoking

    the power of derogation has exceeded what, in the words of Article 15, is strictly

    required by the exigencies of the situation.25

    Although these decisions assist in assessing the international legality of the means

    chosen to combat threats to democracy, they provide less guidance on what constitutes a

    threat to democracy sufficiently grave for a state to deviate from traditional democratic

    norms and assume a preemptive militant stance. Article 17 of the European Convention

    on Human Rights provides some insight on this question. It stipulates that the Convention

    does not confer on any State, group or person any right to engage in any activity or

    perform any act aimed at the destruction of any of the rights and freedoms enshrined in

    the Convention.Article 17 was relied on in the early years of the Convention by the

    European Commission in its support of West Germanys ban on the German Communist

    Party as well as its exclusion of individuals distributing racist pamphlets from

    participating in an election.26

    It suggests that a state might be entitled to act in a militant

    22Klass v. Germany (1978), 2 E.H.R.R. 214 paras. 49, 48 at 232. The Court has been generally sensitive to

    advances in surveillance technologies. See e.g.Kopp v. Switzerland(1998), 27 EHRR 91;PG and JH v.United Kingdom, (Application no. 44787/98) Judgment of 25 September 2001.23Incal v. Turkey (1998), 29 EHRR 449.24 Article 3, Convention for the Protection of Human Rights and Fundamental Freedoms, opened for

    signature 4 November 1950, C. E. T.S. No. 5, entry into force 3 September 1953 [European Convention].25

    Brannigan and McBride v. UK(1993), 17 EHRR 539.26KDP v. Germany (1957) 1 YB Eur. Conv. H.R. 222 (EComm HR). See alsoX v. Austria (1981) 26 Eur.

    Comm. H.R.D.R. (EComm HR);Piperno v. Italy Application 155510/89, 2 Dec 1992, EComm.

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    manner toward associations or organizations that aim to destroy rights and freedoms

    enshrined in the Convention, but Article 17 itself does not stipulate any criteria to

    determine whether an organization or association fits this description. The international

    legality of militant democracy in all of its manifestations will remain uncertain until

    the field is able to provide legal standards for determining those associations,

    organizations or actions against which a state is entitled to act in a militant manner.

    II.

    Perhaps counter-intuitively, a source of insight into the international legality of militant

    democracy lies in legal and political debates regarding legitimate forms of legal

    pluralism. By legal pluralism, I mean the coexistence of two or more legal orders within

    or across the confines of a sovereign state. Many institutional mechanisms can give

    formal expression to the presence of plural legal orders. A federal system, for example,

    constitutionally vests lawmaking authority in two levels of government, each relatively

    autonomous within its sphere of legislative authority. A state can also devolve power to

    regional or local levels of government to enable the exercise of delegated lawmaking

    authority by a subsection of a states population. Collective minority rights also possess

    the capacity to promote legal pluralism, to the extent that they contemplate a minority

    community vested with a measure of lawmaking authority relatively shielded from the

    legislative power of the broader society in which it is located.

    A variety of mechanisms in several European states aimed at religious, cultural

    and national minorities within their midst that promote differential treatment up to and

    including forms of legal pluralism. Several states have entered into bilateral treaties

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    protecting the rights of national minorities living outside of the state with which its

    members share an historical affiliation.27

    Hungary, Slovenia and Croatia, in varying

    degrees, extend a measure of cultural autonomy to minorities through local self-

    government. Spanish measures that establish a measure of self-government for the

    Basque population is another form of legal pluralism. So too are the constitutionally

    entrenched socio-economic regions and language communities that provide linguistic and

    lawmaking autonomy to linguistic and ethnic communities in Belgium. The complex

    multi-level governance structure of the European Union itself embodies a commitment to

    legal pluralism both in its respect for the sovereign authority of its members as well as the

    rights of national minorities within their midst.28

    To be sure, formal recognition is not a precondition of legal pluralism. This is

    illustrated powerfully in North America and elsewhere, where indigenous law structures

    the social and political life of indigenous communities despite the fact that it is often not

    regarded as law by the state.29

    And numerous ethnic, cultural and religious communities

    in Europe are governed by norms and rules that do not receive formal recognition by the

    state but which are seen as authoritative and binding by community members themselves.

    Some Roma communities, for example, govern themselves by a system of laws called

    Romaniya although it does not possess formal legal status in the states in which they are

    27 Poland has entered into treaties with the Federal Republic of Germany (1991), the Czech and Slovak

    Republic (1991), the Russian Federation (1992), Belarus (1992) and Lithuania (1994). In the 1990s,

    Hungary has entered into treaties with Ukraine, Slovenia, Croatia, Slovakia and Romania. In addition to itstreaty with Hungary, Romania has entered into treaties with Ukraine and Moldova. Other examples include

    treaties between Croatia and Hungary and Italy. See generally, Arie Bloed & Pieter van Dijk (eds.),Protection of Minority Rights Through Bilateral Treaties: The Case of Central and Eastern Europe (TheHague: Kluwer Law International, 1999).28 Article 1(2) of the Draft Constitutional Treaty for the European Union states that it is founded on the

    value of respect for human rights, including the rights of national minorities.29

    See, for example, Richard Daly, Our Box Was Full: An Ethnography for the Delgamuukw Plaintiffs

    (Vancouver: University of British Columbia Press, 2005) (documenting the pre- and post-contact

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    located.30

    Yet legal recognition whether in the form of minority rights, federal division

    of legislative authority, statutory delegation of lawmaking authority, or rights of self-

    government is what many ethnic, cultural and religious communities are increasingly

    seeking in Europe and elsewhere.

    Imagine a religious, ethnic or cultural community that wants to protect its

    collective identity from assimilative forces emanating from a broader society in which it

    forms a minority. It seeks a type of legal pluralism to exercise some measure of

    autonomy a form of autonomy not authorized by the constitution of the state in which

    the community is located. Can this community justifiably claim that it possesses such a

    right which its parent state, despite domestic constitutional requirements to the contrary,

    must recognize as a matter of international law?

    The European Convention on Human Rights does not expressly enshrine a right to

    forms of legal pluralism. Its text is thoroughly individualistic in nature, and devoted

    overwhelmingly to the protection of civil and political rights. Collective rights were not

    part of the post-war vision of a future Europe; the Convention was drafted in light of

    wartime atrocities, primarily if not exclusively as an instrument that would safeguard

    interests associated with civil and political rights from the raw exercise of collective

    political power. The sole express exception to its focus on civil and political rights lies in

    its equality guarantee, which refers to minority membership, but it protects only explicitly

    institutions, system of production and exchange, dispute settlement, and proprietorship of the Gitksan and

    Witsuwiten peoples of northwest British Columbia).30 For detail, see the essays collected in Walter O. Weyrauch, ed., Gypsy Law: Romani Legal Traditions

    and Culture (Berkeley: University of California Press, 2001). See also Thomas A. Acton, A Three-Cornered Choice: Structural Consequences of Value-Priorities in Gypsy Law as a Model For More General

    Understanding of Variations in the Administration of Justice (2003) 51 Am. J. Comp. L. 639.

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    the right of an individual not to be discriminated as a member of a minority defined by

    language, religion or national origin.31

    Several if not all civil and political rights, such as freedom of expression,

    association, and religion, as well as the right to a family life, the Conventions equality

    guarantee, and the right to free elections, are all textually capable of protecting collective

    interests of a religious, ethnic or cultural community.32

    However, the European Court of

    Human Rights the primary judicial body responsible for interpreting the European

    Convention to date has not been particularly eager to take up the challenge of

    delineating their collective dimensions. Although several of its decisions suggest that

    certain civil and political rights protect interests associated with cultural difference,33

    the

    Court has been cautious about claims asserting political or legal autonomy of a religious,

    ethnic or cultural community.

    The Court refers regularly to other international and regional human rights

    instruments, and its current jurisprudential caution may yield to a greater willingness in

    the future to consider minority concerns when interpreting Convention guarantees. Its

    case law on the equality guarantee in Article 14 is a case in point. In Thlimmenos v.

    Greece, the Court, for the first time, expressly held that nondiscrimination in certain

    circumstances requires the differential treatment of persons who are significantly

    31

    Art. 14.32 Arts. 10, 11, 9, 8, and14, and Art. 3, Protocol 1, respectively.33 See e.g. Belgian Linguistic Case (1967 and 1968) 1 E.H.R.R. 241 and 252; G. and E. v. Norway(Application nos. 9278/81 and 9415/81) DR 35, 1985 at 30 EComm HR ; S. v. Sweden (Application no.

    16226/90) Report of 2 September 1991 EComm HR; Srek v. Turkey (No.1)(1999) (Application no.

    26682/95);Knkm and 38 other Saami Villages v. Sweden (1996) (Application no. 27033/95);Buckleyv. United Kingdom (1996) 23 E.H.R.R. 101;Hasan and Chaush v. Bulgaria (2000) (Application no.

    30985/96); Serif v. Greece (1999), 31 E.H.R.R. 56. For a detailed review of the Courts jurisprudence, seeFernand de Varennes, Using the European Court of Human Rights to Protect the Rights of Minorities in

    Council of Europe Publishing (ed.), Mechanisms for the Implementation of Minority Rights (2004) 83-108.

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    different.34

    Thlimmenos effectively introduces the concept of indirect discrimination to

    Convention equality jurisprudence and suggests that the equality guarantee, in certain

    circumstances, imposes positive obligations on the state to treat some members of

    society, including members of minorities, differently than others.35

    There are other regional institutions that address minority concerns more directly,

    most visibly the Organisation on Security and Cooperation in Europe, under the auspices

    of the Office of the High Commission on National Minorities, which monitors the

    treatment of minorities throughout Europe in the name of regional security and

    cooperation.

    36

    The Council of Europe adopted the Framework Convention on the

    Protection of National Minorities and the European Charter for Regional or Minority

    Languages, and monitors the extent to which states party to the Convention comply with

    their terms.37

    The European Union and NATO require candidate countries to provide

    minority protection as a condition of membership.38

    Yet none of these institutions or

    34Thlimmenos v. Greece, (Application No. 34369/97) (2000) 31 E.H.R.R. 411, para. 44.35 For commentary on Thlimmenos in the context of minority protection, see Sia Spiliopoulou kermark,The Limits of Pluralism Recent Jurisprudence of the European Court of Human Rights with Regard to

    Minorities: Does the Prohibition of Discrimination Add Anything? (2002) 3 Journal on Ethnopolitics andMinority Issues in Europe (online).36 See J. Wright, The OSCE and the Protection of Minority Rights (1996) 18 Human Rights Quarterly

    190.37 European Charter for Regional or Minority Languages, C. E.T. S. No. 148, opened for signature 5

    November 1992, entry into force 1 March 1998; Framework Convention for the Protection of National

    Minorities C. E. T. S. No. 157, opened for signature on 1 February 1995, entry into force on 1 February

    1998. See Geoff Gilbert, The Council of Europe and Minority Rights (1996) 18 Human Rights Quarterly

    160.38

    Candidate countries have to meet the Copenhagen criteria for admission to EU membership set out bythe European Council in 1993, which inter alia require candidate countries to have achieved stability of

    institutions guaranteeing democracy, the rule of law, human rights and respect for and protection ofminorities. Bulletin of the European Community, 6/1993, at I.13. See generally on EU policy, Gaetano

    Pentassuglia, The EU and the Protection of Minorities: The Case of Eastern Europe (2001) 12 E.J.I.L.3;

    Martin Brusis, The European Union and Interethnic Power-sharing Arrangements in Accession Countries

    (2003) 1 Journal on Ethnopolitics and Minority Issues in Europe (online). A functioning democratic

    political system, including respect for persons belonging to minorities in accordance with OSCE standards,is one of the political criteria of NATO membership. See e.g.NATO Transformed(Brussels: NATO Public

    Diplomacy Division, June 2004) at 21. online: http://www.nato.int/docu/nato-trans/nato-trans-eng.pdf.

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    instruments has produced a consensus on the international legal status of forms of legal

    pluralism in European human rights law.39

    Political developments regarding legal pluralism thus have far outpaced its

    reception in international human rights law at least with respect to the European

    Convention on Human Rights. As a result, legal pluralism like militant democracy is

    attaining a measure of political legitimacy against a backdrop of jurisprudential

    uncertainty over the international legality of its myriad forms. It is not coincidental that

    the international legality of both political developments is unclear. Both share a

    normative commitment to a principle that possesses a paradox at its heart.

    III.

    The principle of self-determination is the normative foundation of a claim by a religious,

    cultural or national community asserting an international right to some form of legal

    pluralism to protect its collective identity. In normative terms, self-determination refers

    to the value of a collectivity freely determining its political status and pursuing its

    economic, social and cultural development. Its economic dimension is often described in

    terms of the ability of a people to have control over its economic future. Its social and

    cultural dimensions speak to interests such as social security and cultural integrity. Its

    political dimension includes the freedom to determine ones political status and to

    participate in the formation of laws affecting ones future.

    Viewed statically, the political dimension of self-determination constitutes the

    freedom of a people to choose whatever form of government to which they wish to be

    39 For a collection of essays on the merits of minority protection in Europe, see Will Kymlicka and Magda

    Opalski (eds), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in

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    subject. On this account, self-determination says little if anything about what form of

    political arrangements a people ought to choose. It values the capacity of choice and

    protects political arrangements, once chosen, from internal or external interference.

    Viewed dynamically, the principle values the capacity of choice but also calls for

    political arrangements that respect the ongoing capacity of individuals and groups to

    freely participate in the formation of laws affecting their future. On this account, self-

    determination privileges democratic forms of government. It does so because democratic

    government representative political institutions exercising lawmaking authority and an

    independent judiciary vested with the authority to uphold the rule of law manages

    power relations in ways that enable people to participate in the formation of laws

    affecting their future far more successfully than any of its alternatives.40

    The normative dimensions of the principle of self-determination receive partial

    protection in international law. The field traditionally understood self-determination as

    statically vesting in the entire population of an existing state. Before the end of the First

    World War, if international law enforced any conception of self-determination, it meant

    one thing: established states had a right to be left alone by other states.41

    Since 1918,

    however, self-determination was repeatedly invoked to validate traumatic remappings of

    territorial boundaries in Europe. It legitimated cataclysmic changes in Africa and Asia as

    colonies freed themselves from their colonial masters. Self-determination frames

    contemporary indigenous struggles for cultural, political and territorial autonomy. Its

    complex relation to these historic struggles lies in the fact that it speaks to what is the

    Eastern Europe (Oxford: Oxford University Press, 2001).40 For an extended defense of democratic government in these terms, see Ian Shapiro, The State of

    Democratic Theory (Princeton: Princeton University Press, 2003).

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    essence of human freedom: the capacity to control ones present and future free of

    external interference.

    The principle of self-determination receives free-standing international legal

    affirmation in Article 1(2) of the Charter of the United Nations, which lists it as one of

    the purposes of the United Nations, and Article 55 of the Charter, which calls for the

    promotion of a number of social and economic goals [w]ith a view to the creation of

    conditions of stability and well-being which are necessary for peaceful and friendly

    relations among nations based on respect for the principle of equal rights and self-

    determination of peoples. International law also regards self-determination as a right.

    Thirty four years after the coming into force of the UN Charter, self-determination

    received formal recognition as a right by the International Court of Justice.42

    And major

    international human rights instruments proclaim that all peoples have the right of self-

    determination, and that [b]y virtue of that right they freely determine their political

    status and freely pursue their economic, social and cultural development.43

    Despite or perhaps because of its intimate relation to freedom, a paradox lies

    at its heart: self-determination both legitimates and challenges sovereign authority.44

    On

    one hand, sovereignty is the formal expression of the principle of self-determination in

    international law. Sovereignty provides a shield that protects the capacity of a people to

    determine freely the ways in which they wish to govern themselves, and authorizes state

    41 Diane Orentlicher, Separation Anxiety: International Responses to Ethno-Separatist Claims (1998) 23

    Yale J. Intl Law 1, 22.42Namibia, [1971] I.C.J. 16, at 31; Western Sahara, [1975] I.C.J. 12, at 31.43 International Covenant on Civil and Political Rights, Art. 1, opened for signature 19 Dec. 1966, 999

    U.N.T.S. 171 (entered into force 23 Mar. 1976). Art. 1 of the International Covenant on Economic, Social

    and Cultural Rights, opened for signature 19 Dec. 1966, 993 U.N.T.S. 3 (entered into force 3 Jan. 1976,

    contains identical language.

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    action to protect chosen arrangements from internal or external threat. On the other hand,

    self-determination can stand to challenge sovereign authority. It contemplates the

    freedom of a people to alter the ways in which they are governed, thereby pitting the

    legitimacy of current constitutional arrangements against the legitimacy of proposed

    alternatives.

    This paradox accounts for much, if not all, of the international legal ambiguity

    surrounding demands by religious, cultural and national minorities for legal measures that

    provide a measure of autonomy from parent states in which they are located. This is most

    obvious in the case of a group asserting a right to independent statehood in the name of

    self-determination. Sovereign independence secures the freedom of a people to determine

    freely its own future, yet it radically disrupts the sovereign integrity of the state from

    which secession occurs. Perhaps partly in an effort to address this paradox, international

    law has for some time ceased to regard the right of self-determination in absolute terms,

    as solely authorizing complete sovereign independence for a people subject to the

    sovereign authority of a state that is not their own. Instead, the right is increasingly

    viewed dynamically as also housing a spectrum of constitutional and institutional

    possibilities that fall short of secession but which can nonetheless protect a communitys

    identity, culture, territory and self-governing capacity.45

    International legal discourse refers to this spectrum of possibilities as internal

    self-determination. In the Quebec Secession Reference, the Supreme Court of Canada

    44 I take this insight from the work of Martti Koskenniemi. See M. Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice (1994) 43 Int. & Comp. L.Q. 241, 245

    (identifying the paradox that national self-determination both supports and challenges statehood).45 For an account of the emergence of conceptions of international law as an international legal order

    legitimately capable of supervising systems of minority protection and more generally of intervening inmatters concerning groups formerly invisible behind the veil of sovereignty, see Nathaniel Berman, But

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    was asked to provide its opinion of the international legality of a possible secession by

    Quebec from Canada.46

    The Court drew a distinction between the traditional formulation

    of the right as entitling a people to sovereign independence, which it referred to as

    external self-determination, and measures that provide a people with a measure of

    autonomy short of independence, which it termed internal self-determination. It

    interpreted international law as recognizing a right of external self-determination in

    circumstances where a state fails to secure internal self-determination for a people in its

    midst.47

    At one end of the spectrum of institutional possibilities short of sovereign

    independence contemplated by internal self-determination ranges are measures that

    enhance representation in the political institutions of the broader society in which the

    community is located. At its other end are measures that contemplate the redistribution or

    devolution of lawmaking authority.48

    Between these two poles lie intermediate measures

    such as policies that provide for differential treatment of religious, cultural and national

    communities and the recognition or provision of cultural and minority rights of varying

    the Alternative is Despair: European Nationalism and the Modernist Renewal of International Law (1993)106 Harv. L. Rev. 1792.46Reference re Secession of Qubec, [1998] 2 S.C.R. 217.47Ibid. See also Frederic Kirgis Jr., The Degrees of Self-Determination in the United Nations Era (1994)

    88 Am. J. Int. L. 304, 306(if a government is at the high end of democracy, the only self-determination

    claims that will be given international credence are those with minimal destabilizing effect [but] if agovernment is extremely unrepresentative, much more destabilizing self-determination claims may well be

    recognized).48 The African Commission on Human and Peoples Rights, inKatangese Peoples Congress v. Zaire, for

    example, has ruled that article 20 of the African Charter on Human and Peoples Rights, which guaranteesthe right to self-determination, can be exercised through a number of different internal arrangements. The

    Commission listed independence, self-government, local government, federalism, confederalism,

    unitarianism, or any other form of relations that accords with the wishes of the people but fully cognizantof other recognized principles such as sovereignty and territorial integrity.Katangese Peoples Congress v.

    Zaire, For a summary of this case, see Annex VI of Eighth Annual Activity Report of the Commission on

    Human and Peoples Rights, 1994-1995, Thirty-first Ordinary Session, 26-28 June 1995, Addis Ababa,

    Ethiopia, http://www.umn.edu/humanrts/africa/comision.html. For analysis, see Martin Scheinin, The Rightto Enjoy a Distinct Culture: Indigenous and Competing Uses of Land, in Theodore S. Orlin, Alan Rosas,

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    scope in the name of minority protection.49

    This spectrum offers different forms of legal

    pluralism to a religious, cultural or national community seeking a measure of autonomy

    from the state in which it is located. Establishing a plural legal order is no mean feat, and

    often communities enlist the discourse of rights in support of such an aspiration. Because

    it contemplates a variety of forms of legal autonomy short of secession, a right of internal

    self-determination is a natural organizing principle for transformative political agendas

    aimed at introducing a plurality of legal orders.

    Redesigning and disaggregating the right of self-determination to dynamically

    accommodate diverse forms of legal pluralism short of secession displaces but doesnt

    eliminate the paradox at its heart. In all of its manifestations, self-determination stands to

    legitimate and challenge sovereign authority. A plural legal order can secure a measure of

    freedom to determine its own future, yet its implementation often renders insecure the

    freedom of the broader population to protect chosen constitutional arrangements from

    transformation.50

    There is no way of knowing in theory whether the recognition or

    establishment of a plurality of legal orders will produce stable or unstable forms of

    government. Will the establishment or recognition of a plurality of legal orders promote

    intercultural harmony or will it harden collective identities, deepen divisions, and

    and Martin Scheinin, eds., The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach

    (Turku: Institute for Human Rights Abo Akademi University, 2000), 159-222, at 182-183.49 Antonio Cassese, Self-Determination of Peoples : A Legal Appraisal(Cambridge: Cambridge University

    Press), at 348ff (arguing that internal self-determination bridges this gulf);Gnanapala Welhenggama,

    Minorities Claims: From Autonomy to Secession (Aldershot: Ashgate, 2000), at 128(these two concepts,minority autonomy and internal self-determination, are increasingly being seen as two sides of the same

    coin); see also F. Harhoff, Institutions of Autonomy (1986) 55 Nordic J. Intl L. 31, 31-40 (exploringlink between autonomy and self-determination).50 Compare Stephen Tierney, Reframing Sovereignty? Sub-State National Societies and Contemporary

    Challenges to the Nation-State (2005) 54 International and Comparative Law Quarterly 161, at 175-76

    (challenges to a states constitutional authority by sub-state national societies compromise the reality of

    the States sovereignty and constrict the capacity and at times even to competence of the Stateconstitution to act as the ultimate repository of governmental power which supposedly allocates and

    coordinates in totality the division of public legal functions operating within the States territory).

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    embolden a minority community to demand more and more concessions from the centre?

    The right to internal self-determination, beyond vesting in a people a right to a form of

    autonomy short of secession, provides little guidance on which form is appropriate in any

    given context.51

    Yet a wholly contextual determination of the appropriate form of legal pluralism

    that internal self-determination should assume in any given state threatens to undermine

    this goal. How can international law subject ethnic, religious, cultural, or national conflict

    to the rule of law if it cannot identify, in advance and with a certain degree of specificity,

    a legal framework in which contextual considerations can be brought to bear to assess

    whether a community is legally justified in seeking a measure of legal pluralism? Absent

    some kind of framework to assist in this task, the legality of legal pluralism remains

    unclear.

    As a result, legal pluralism possesses an ambiguous legal status in international

    human rights law. This ambiguity presents itself in several institutional and

    jurisprudential contexts. Its normative source, the principle of self-determination, is

    recognized as a right in the International Covenant on Civil and Political Rights, yet it

    cannot be made the basis of a complaint before the Covenants supervisory body, the

    Human Rights Committee, which is empowered to hear only individual, not collective,

    claims.52

    Notwithstanding the Supreme Court of Canadas decision in the Quebec

    51 See Cassese, Self-Determination of People, supra, at 332 (both customary and treaty law on internal

    self-determination . do not furnish workable standards concerning some possible forms of realizinginternal self-determination, such as devolution, autonomy, or regional self-government).52 SeeLubicon Lake v. Canada, CCPR/C/38/D/167/1984 (26 March 1990), paras. 31.1, 32.2 (the author, as

    an individual, cannot claim under the Optional Protocol to be a victim of a violation of the right to self-

    determination enshrined in article 1 of the Covenant, which deals with rights conferred on peoples as

    such). The Committee, however, has also held that Art. 1 may be relevant in the interpretation of otherrights protected by the Covenant.J.G.A. Diergaart v. Namibia, CCPR/C/69/D/760/1996 (25 July 2000),

    para. 10.3; Gillot v. France, CCPR/C/75/D/932/2000 (15 July 2002), para. 13.4. Most significant in this

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    Secession Reference, the field remains divided on whether the right of external self-

    determination extends beyond the contexts of colonization and foreign occupation to

    legitimate certain secessionist movements.53

    Equally uncertain is what collectivities

    constitute peoples capable of asserting the right in either its external or more

    controversial internal form.54

    Nor is there anything approaching a consensus that

    international human rights which do receive unambiguous international legal recognition,

    such as civil and political and social and economic rights, possess collective dimensions

    so as to provide disaggregated protection to various dimensions of the principle of self-

    determination.

    Moreover, states appear determined to an international legal order that separates

    sharply legal developments concerning self-determination from those concerning

    minority protection,55

    and the international legal status of the latter are even more

    ambiguous than the former especially when the form of minority protection in question

    would extend to a minority a measure of domestic legal autonomy.56

    And, as noted, the

    regard is Art 27, which provides that in those states in which ethnic, religious or linguistic minorities exist,

    persons belonging to such minorities shall not be denied the right, in community with the other members of

    their group, to enjoy their own culture, to profess and practice their own religion, or to use their ownlanguage. For a review of the Committees views on Art. 27, see Gaetano Pentassuglia, Minorities in

    International Law (Strasbourg, 2002), at 97-111.53 See generally Cassese, ibid.54 See Karen Knop,Diversity and Self-Determination in International Law (Oxford: Oxford UniversityPress, 2002) 51-65 for discussion of debates in the field concerning definitions of peoples (contrasting

    approaches that utilize categories from those that seek coherence); See Allan Rosas, Internal Self-

    Determination in Christian Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht: Martinus

    Ninjhoff, 1993), at 225-252 for discussion of debates in the field concerning the legal status of internal self-

    determination.55 Cassese, ibid, at 348 (the major international instruments adopted so far by States all hinge on a

    fundamental and sharp dichotomy between the self-determination of peoples on the one side and theprotection of minorities on the other). For a detailed account of the international legal history of the

    principle of self-determination and minority protection, see Thomas D. Musgrave, Self-Determination and

    National Minorities (Oxford: Oxford University Press, 1997).56 For analyses of international laws ambivalence toward the concept of legal autonomy, see the essays

    collected in Markku Suksi (ed.),Autonomy: Applications and Implications (The Hague: Kluwer LawInternational, 1998). See also Hurst Hannum,Autonomy, Sovereignty, and Self-Determination: The

    Accommodation of Conflicting Rights (Philadelphia: University of Philadelphia Press, 1996). For analysis

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    European Convention on Human Rights does not enshrine a right of self-determination

    nor does it expressly enshrine minority rights, and institutions in the region vested with

    authority over minority protection primarily rely on political means for their promotion.

    That self-determination stands to both legitimate and challenge sovereign

    authority also accounts for ambiguities surrounding the international legal status of

    militant state action. To the extent that a constitutional democracy dynamically embodies

    the freedom of a people to govern itself and participate in the formation of laws

    governing its future, self-determination provides a measure of normative legitimacy to

    exercise of at least some forms of state action designed to combat threats to democracy

    itself. Yet self-determination also contemplates the freedom of a people to alter the ways

    in which they are governed, and a constitutional democracy further provides citizens with

    the democratic means in the form of civil and political freedoms to propose and

    implement alternative forms of government, including those antithetical to the democratic

    order itself. A democracy can structure itselfex ante to minimize threats to its democratic

    future by diffusing power, establishing checks and balances, enshrining judicial review,

    and providing other mechanisms that make it difficult for antidemocratic forces to

    assume the reins of power through democratic means. But militant democracy ex post

    deployment of antidemocratic measures to protect democracy risks voiding the object

    of which it is a guardian.57

    Pitched in the abstract, the dilemma is evident. Militant democracy risks

    undermining the very freedom it seeks to protect the freedom of a people to govern

    itself against threats otherwise authorized by democracy itself. But the dilemma rarely

    of minority rights in international law, see Patrick Thornberry,International Law and the Rights of

    Minorities (Oxford: Clarendon Press, 1991).

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    presents itself in the abstract. It typically arises in particular contexts where what is at

    issue is a specific militant action or set of actions for which the state seeks legal approval.

    In such circumstances, it is not at all clear how to resolve this dilemma absent a

    contextual analysis of the competing interests in the case at hand to weigh the extent of

    the risk against the intensity of the threat. Yet turning to context to determine the legality

    of militant democracy threatens democratic commitments to the rule of law. Even where

    the dilemma does present itself in the abstract, and a state formally chooses to become a

    militant democracy, as in the case of post-war Germany, form alone will not yield the

    substance needed to resolve particular cases. Like legal pluralism, militant democracy

    requires some substantive legal criteria in which contextual considerations can be brought

    to bear to assess its legitimacy in particular cases. Absent such criteria, the legality of

    both developments remains indeterminate.

    Militant democracy and legal pluralism thus both share a normative commitment

    to the principle of self-determination and to the paradox at its heart. Their shared

    commitment explains the ambiguous legal status of both developments. In the next

    section, I examine the decision of the European Court of Human Rights inRefah v.

    Turkey. InRefah, the Court was asked to determine the extent to which militant forms of

    state action are consistent with European human rights law. Its decision reveals that there

    is an intimate relationship between militant democracy and legal pluralism. In subsequent

    sections, I argue that this relationship provides insight into the legality of both

    developments in ways that might be overlooked by viewing each in isolation.

    IV.

    57 Pfersmann, Shaping Militant Democracy,supra, at 68.

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    In several notable cases involving the banning of political parties in Turkey, the European

    Court of Human Rights has explored the extent to which a state can infringe civil and

    political rights in an effort to safeguard constitutional democracy. Until its most recent

    decision, the Court had not been prepared to hold that the state is entitled to act in a

    militant manner and ban a political party in the name of democracy. In United

    Communist Party of Turkey v. Turkey,58

    for example, the political party in question

    asserted the inalienability of the right of self-determination, called for constitutional

    recognition of the Kurdish people, and advocated peaceful Turkish-Kurdish co-existence

    within the borders of the Turkish Republic.

    59

    The European Court held the violation to

    be contrary to freedom of association and expression, stating that there can be no

    justification for hindering a political group solely because it seeks to debate in public the

    situation of part of the States population and to take part in the nations political life in

    order to find, according to democratic rules, solutions capable of satisfying everyone

    concerned.60

    Similarly, in Socialist Party and Others v. Turkey,61 the Socialist Party claimed

    that the Kurdish people possessed an unconditional right of self-determination, up to and

    including external self-determination. Given historical circumstances, however, the Party

    advocated a form of internal self-determination or legal pluralism involving the

    establishment of a bi-national and bilingual federal constitutional order that would allow

    for the peaceful co-existence of the Kurdish and Turkish peoples. Holding Turkey in

    58United Communist Party of Turkey and Others v. Turkey (Application no: 133/1996/752/951) (1998), 26

    E.H.R.R. 121.59 The United Communist Party of Turkey Program, Chapter Towards a peaceful, democratic and fair

    solution of the Kurdish problem, quoted in ibid. at 125.60Ibid. at 154.61Socialist Party and Others v. Turkey (Application no 20/1997/804/1007) (1998) 27 E.H.R.R. 51.

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    violation of the Convention for banning the party, the Court stated that it is the essence

    of democracy to allow diverse political programs to be proposed and debated, even those

    that call into question the way a State is currently organized, provided that they do not

    harm democracy itself.62

    In two other cases, the Court assumed a similar stance. InFreedom and

    Democracy Party v. Turkey,63

    the Court upheld the right of a political party to advocate

    the establishment of a democratic assembly of elected representatives to address the place

    of the Kurdish people in the Turkish constitutional order. In Yazar and others v. Turkey,

    the Court held that a transformative political agenda must be compatible with

    fundamental democratic principles and the means chosen to implement such an agenda

    themselves must be legal and democratic.64

    In none of these cases had the political party proposed or sought to implement an

    agenda in a way that, according to the Court, ran counter to Convention values of liberty

    and democracy. The Courts jurisprudence implies that a state can act in a militant

    manner to preserve these values in the face of a political agenda that seeks their

    destruction but it offers little indication of the type of political agenda against which a

    state is authorized to assume a militant stance. In its most recent decision,Refah Party v.

    Turkey, the Court identifies one such political agenda. In so doing, it provides valuable

    insight into the legality of militant democracy. Because of the agenda in question, the

    Courts decision also provides insight into forms of legal pluralism that are acceptable to

    European human rights law.

    62Ibid. at 85.63Freedom and Democracy Party (OZDEP) v. Turkey (Application no. 23885/94) Judgment of 8 December1999.

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    The background to the Courts decision inRefah Party v. Turkey is as follows. In

    1998, the Turkish Constitutional Court dissolved the Refah Party. Refah had been in

    existence for fifteen years. At the time of its dissolution in 1998, it had the most seats in

    the Turkish Parliament, having gained approximately 22% of the popular vote, and was

    part of a national coalition government. The leader of Refah, Necmettin Erkaban, was the

    Prime Minister of Turkey. The Constitutional Court held that Refah was inconsistent with

    Turkeys constitutional commitment to secularism, which, in Turkish constitutional

    tradition, calls for a radical separation between church and state.65

    An appeal to the European Court of Human Rights, asserting a violation of

    freedom of association as guaranteed by article 11 of the European Convention on

    Human Rights, was unsuccessful. In 2001, a Chamber of the Court affirmed the

    dissolution, holding that the prohibition had been prescribed by law, in support of a

    legitimate aim, and necessary in a democratic society.66

    In 2003, a Grand Chamber of

    the Court unanimously upheld the Chambers ruling, stating that it is not at all

    improbable that totalitarian movements, organized in the form of democratic parties,

    might do away with democracy, after prospering under a democratic regime, there being

    64Yazar and others v. Turkey, (Application nos. 22723/93, 22724/93 and 22725/93) Judgment of 9 April

    2002, para. 49.65 Specifically, s. 103 of Turkeys Law on Political Parties authorizes the dissolution of a political party thatis a centre for activities contrary to the principle of secularism enshrined in Art. 2 of the Turkish

    Constitution. Art. 2 declares that the Republic of Turkey is a democratic, secular and social State based on

    the rule of law, respectful of human rights in a spirit of social peace. English translation as appears inRefah case, supra note 2 at 73. Section 78 of the Law on Political Parties also prohibits political parties

    from seeking to change the republican form of the Turkish State. According to s. 103, where it is foundthat a political party has become a centre of activities contrary to the provisions of sections 78 to 88 and

    section 97 of the present Law, the party shall be dissolved by the Constitutional Court. For analysis on the

    Turkish Constitutional Courts jurisprudence on the constitutionality of political party bans, see Dicle

    Kogacioglu, Progress, Unity, and Democracy: Dissolving Political Parties in Turkey (2004) 38 Law &Society Review 434 (arguing that the Court has been constructing a boundary between cultural and political

    Islam).

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    examples of this in modern European history.67

    It held that state authorities possess a

    right to protect state institutions from an association that, through its activities,

    jeopardizes democracy.68

    Specifically, the Court held that the ban was a justifiable

    interference with the Convention guarantee of freedom of association because it pursued

    a legitimate aim and was necessary in a democratic society.69

    By its decision, the

    principle of militant democracy has become an explicit feature of European law.

    One reason the Court offered in support of Turkeys militant action is that the

    party proposed an unacceptable form of legal pluralism. Refah advocated a type of legal

    pluralism that appears to have had its origins in a system established in the early years of

    Islam where Jewish and polytheist communities possessed a modicum of self-government

    independent of Islamic law. It apparently proposed to divide Turkish society into several

    religious orders and require each individual to choose the order to which he or she would

    be subject. Refah argued that all it sought to introduce was a private law civil law

    system founded on freedom of contract, enabling individuals to conduct their private

    lives in accordance with their religious beliefs, not public law reforms that would alter

    relations between individuals and the state. The Court held that such a regime would run

    counter to the Conventions guarantee of equality and more generally the rule of law.

    This is because, according to the Court, it would undeniably infringe the principle of

    66Refah Partisi (The Welfare Party) and Others v. Turkey, Judgment, Strasbourg, 31 July 2001

    (applications nos. 41340/98, 41342/98, 41343/98, 41344/98), including a joint dissenting opinion by JudgesFuhrmann, Loucaides, and Sir Nicolas Bratza.67Ibid, at para. 99.68Ibid, at para. 96 (The freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention,

    cannot deprive the authorities of a State in which an association, through its activities, jeopardizes that

    States institutions, of the right to protect those institutions).69 Para. 2 of Art. 11 of the Convention provides that no restrictions shall be placed on the exercise of

    [freedom of association] other than such as are prescribed by law and are necessary in a democratic societyin the interests of national security or public safety, for the prevention of disorder or crime, for the

    protection of health or morals or for the protection of the rights and freedoms of others.

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    non-discrimination between individuals as regards their enjoyment of their public

    freedoms.70

    That this is the case is difficult to deny; even the thinnest formulations of the

    principle of the rule of law include a non-discrimination principle.71

    And yet not all

    differential treatment constitutes discrimination, as evidenced by the Courts

    jurisprudence elsewhere on religious freedom that suggests that differential treatment to

    protect religious practices is consistent with the values underpinning the European

    Convention.72

    Whether Refahs model of legal pluralism would produce discrimination

    would depend in part on the extent to which an individual can choose to be bound by the

    laws of his or her religion or elect to be governed by secular law on the same topic. The

    evidence before the Court on the role of consent in Refahs model was inconclusive at

    best and the Court appeared to have assumed that individual choice was not one of the

    models central features.

    Additional factors relevant to such an inquiry would include the nature and scope

    of lawmaking authority to be vested in the various religious legal orders, and the extent to

    which state law is paramount over religious law in the event of conflict. The Court

    assumed that religious legal orders would assume jurisdiction over all fields of public

    and private law and that the state would be incapable of acting as the guarantor of

    individual rights and freedoms and as the impartial organizer of the practice of various

    70Refah, supra, at para. 119 (quoting the Chamber Court, at para. 70).71 See, e.g., A.V. Dicey,Introduction to the Study of the Law of the Constitution (10th ed. 1959), at 202-203

    (the rule of law inter alia means equality before the law or the equal subjection of all classes to the

    ordinary law of the land).72

    Chaare Shalom Ve Tsedek v. France, (Application no. 27417/95) Judgment of 27 June 2000 (upholdinga French law conferring legal capacity on Jewish groups to make laws that conflict with French law in

    relation to the slaughtering of animals).

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    beliefs and religion in a democratic society.73

    Several scholars have criticized the Court

    for reaching these critical conclusions in the absence of supporting evidence.74

    For present purposes, what is relevant is not whether these conclusions were

    supported by the evidence but, assuming their validity, the extent to which they reveal an

    international legal relationship between militant democracy and legal pluralism.Refah

    identifies a transformative political agenda that, according to European human rights law,

    seeks an unacceptable form of legal pluralism in the name of self-determination. Turkey

    is entitled to act in a militant manner because of the nature of this agenda and the means

    employed to implement it. Refahs proposed agenda was unacceptable because it did not

    guarantee individual choice or limit the lawmaking authority of the various religious

    orders, and failed to ensure the states capacity to protect individual rights and freedoms.

    The legality Turkeys militant democratic stance, in other words, rested on the

    illegality of Refahs proposed model of legal pluralism. This is not to say that the state is

    entitled to introduce militant measures only to combat unacceptable forms of legal

    pluralism. But the fact that an unacceptable form of legal pluralism authorizes a

    constitutional democracy to act in a militant manner provides insight into broader

    questions surrounding the legality of each political development.

    V.

    By identifying a political agenda against which a constitutional democracy can assume a

    militant stance,Refah inferentially reveals forms of legal pluralism constitutional and

    73Ibid. at para. 119 (quoting the Chamber Court, at para. 70).74

    See especially Christian Moe, Refah Revisited: Strasbourgs Construction of Islam (unpublished paperpresented at Central European University on file with author (June 2003)); Kevin Boyle, Human Rights,

    Religion and Democracy: The Refah Party Case (2004) 1 Essex Human Rights Law Review 1.

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    institutional possibilities contemplated by internal self-determination acceptable to

    European democratic aspirations. Legal pluralism, it appears, must comply with three

    baseline conditions. First, the advocacy and introduction of a plural legal order must

    provide individuals with the freedom to choose whether to be bound by the norms of

    religious, ethnic or cultural communities to which they belong or by state law on the

    same topic. Second, the scope of lawmaking authority vested in the various legal orders

    nested within a state must be limited in scope. Third, a plural legal order must respect and

    retain the states role as a democratic guarantor of individual rights and freedoms.

    The Courts description of the acceptable limits of militant democracy thus

    provides a set of conditions for understanding the legality of legal pluralism. But the

    Courts decision yields reverse insight as well. It offered a second reason why Turkeys

    ban was not in violation of the Convention guarantee of freedom of association, namely,

    that Refah had advocated a religious jihad and the use of political violence to achieve its

    ends. It is here where the decision, by addressing the acceptable limits of legal pluralism,

    provides a set of baseline conditions that clarifies the legality of militant democracy. A

    state is entitled to act in a militant manner toward individuals and groups who engage in

    violent conduct in the promotion or implementation of their beliefs or who exercise civil

    and political freedom in a way that poses an imminent threat to the capacity of a

    constitutional democracy to secure the civil and political freedom of others.75

    These two sets of conditions one relating to the legality of legal pluralism, the

    other to the legality of militant democracy intersect at the point at which each demands

    respect for the capacity of a democracy to protect rights and freedoms guaranteed by the

    Convention. The point of intersection, in other words, is self-determinations most

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    successful offspring: democratic government. At an institutional minimum, democratic

    government requires representative institutions exercising lawmaking authority and an

    independent judiciary vested with the authority to uphold the rule of law. Proposals or

    policies whether in the name of legal pluralism or militant democracy that vest the

    authority to enact or interpret laws in unrepresentative or partial institutions would not

    receive international legal authorization.76

    Identifying the value of democratic government as the measure of the legality of

    legal pluralism and militant state action is consistent with the Courts more general

    understanding of the normative basis of the European Convention. In the United

    Communist Party of Turkey case, the Court stated that democracy appears to be the

    only political model contemplated by the Convention and, accordingly, the only one

    compatible with it.77

    The Court inRefah reiterated the significance of the value of

    democratic government and affirmed the special role that political parties play in the

    political life of a democratic state, stating that they play a primordial role in the proper

    functioning of a democracy.78

    Beyond this institutional minimum, whether legal pluralism or militant democracy

    is consistent with the value of democratic government cannot be answered in the abstract.

    A proposed transformation of a unitary state into, say, a federal system that distributes

    lawmaking authority between two levels of government to secure greater local autonomy

    75Supra, at para. 98.76 That a commitment to the democratic potential of the principle of self-determination underpins theinternational legality of legal pluralism and militant democracy at least in the European context is

    consistent with Thomas Francks thesis that we are witnessing the transformation of self-determination into

    a commitment to democratic government: see Franck, The Emerging Right to Democratic Governance

    (1992) 86 American Journal of International Law 46. See also Gregory H. Fox, The Right to Political

    Participation (1992) 17 Yale J. Intl Law. 539.77Supra, at para. 45.78Supra at para. 87.

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    for a minority within its midst could just easily enhance as diminish democratic

    government. Whether it would accomplish the former or the latter would depend on many

    factors, including the extent of democratic deficit currently plaguing the unitary state, the

    presence and anticipated effectiveness of parallel protections for new minorities that a

    federal system would produce, and the extent to which such an arrangement is in fact

    intended to or regardless of its intent would harden ethnic, cultural or national

    differences among citizens and lead to antidemocratic outcomes in the future.

    Similarly, a proposed ban on parties organized around ethnicity, for example, may

    promote democratic government by creating incentives for different ethnic groups to seek

    common political ground. Or it may arbitrarily deny valuable organizational

    opportunities for a discrete and insular minority to secure greater capacity to govern itself

    in the face of historically systematic political exclusion and discrimination from the

    broader society in which it is located. Answers to these questions can only emerge from a

    contextual analysis of the specific proposal or policy at issue in light of the competing

    interests it implicates and the historical, political and constitutional environment from

    which it has emerged. Such an assessment would not be an entirely ad hoc exercise of

    interest balancing, which would risk reproducing the ambiguity it seeks to resolve. It

    would be guided by a general commitment to democratic government instantiated in the

    specific baseline conditions applicable to the case at hand.

    This need to turn to context is neatly illustrated inRefah by the Courts failure to

    do so. The Court offereda third reason why the Refah Party could not avail itself of the

    Convention guarantee of freedom of association. Refah sought the introduction of sharia

    as one of the several legal orders to operate within the plurality of legal systems it

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    proposed. In the Courts view, sharia is incompatible with the fundamental principles of

    democracy.79

    It also approved the Chamber Courts statement that [i]t is difficult to

    declare ones respect for democracy and human rights while at the same time supporting

    a regime based on sharia, which clearly diverges from Convention values.80

    Although it may be difficult to reconcile sharia and Convention values of

    democracy and human rights, especially, as the Court notes, in light of sharias approach

    to criminality and the legal status of women, sharia is a complex body of law, rich in its

    scope and depth, arguably as comprehensive in scope as the common law. Many of its

    rules and components for example, rules governing economic transactions appear to

    present no challenge to norms underpinning the European Convention. The Court rejects

    wholesale all of sharia instead of crafting a decision that allows for the future

    examination of the compatibility of different aspects of sharia with Convention values.

    Had it been more nuanced in its response, it could have begun a jurisprudential dialogue

    between European and Islamic legal orders, where individual tenets of one system are

    tested against those of the other.81

    This testing could occur by deploying the baseline conditions the Court itself

    offered for determining the legality of a proposed plural legal order. Specific rules based

    on sharia could be deemed compatible or incompatible with the European Convention, on

    a case-by-case basis, by assessing whether they provided individuals with freedom of

    choice to be bound by the rules in question, whether the scope of the jurisdictional

    79Supra, at para. 123.80Supra, at para. 123 (quoting the Chamber Court, at para. 72).81 Judge Kowler, concurring in the result, makes this point when he characterizes sharia as the legal

    expression of a religion whose traditions go back more than a thousand years and which has its fixed points

    of reference and its excesses like any other complex system. See also Boyle, Human Rights, Religion andDemocracy,supra, at 13 (calling for expert pleadings to bring to light debates within Islam on sharia and

    democracy and elements of sharia that conflict with international human rights standards).

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    authority that yielded the rules was limited in scope, and whether the rules were

    consistent with the overarching authority of the state. Instead, the Court turned a blind

    eye to this opportunity by defining democracy and sharia at a level of abstraction that

    forecloses further jurisprudential debate on the topic.

    The Courts decision inRefah also demonstrates that the baseline conditions

    relating to the legality of militant democracy require greater specificity lest they

    reproduce the ambiguity they ought to resolve. As stated, the legality of militant state

    action turns in part on whether the targeted agenda poses an imminent threat to the

    capacity of a constitutional democracy to secure civil and political freedom. The Turkish

    Constitutional Court, it will be recalled, dissolved Refah afterit had come to power and

    formed part of a governing coalition. The parties before the European Court agreed that

    Refah had neither proposed legal reform contrary to Turkish democracy nor negotiated

    any such proposed alterations in the coalition agreement. The Court concluded that Refah

    was a threat to democracy on the basis of statements and stances taken by party members,

    most of which occurred before the election. It further held that at the time of its

    dissolution Refah had the real potential to seize political power without being restricted

    by the compromises inherent in a coalition.82

    It based this conclusion on an opinion poll

    carried out just before the decision of the Turkish Constitutional Court that forecast that

    Refah was likely to obtain 67% of the votes in a future general election.

    These conclusions have been subject to searching criticism.83

    For present

    purposes, what they reveal is that the framework the Court offers for determining the

    legality of militant democracy requires greater specificity on issues relating to timing,

    82Supra, at para. 108.83 See, e.g., Boyle,supra; Coe,supra.

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    standard of proof, and probability of harm. In the absence of relatively specific rules and

    presumptions addressing these issues, this framework invites an entirely ad hoc exercise

    of interest balancing. Given the stake


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