ARTICLE
Militant democracy, legal pluralism, and
the paradox of self-determination
Patrick Macklem*
The legality of militant democracy—Can a constitutional democracy act legally in
an antidemocratic manner to combat threats to its existence?—is far from clear. The
legality of legal pluralism—the extent to which international law authorizes political
agendas that seek to implement various forms of autonomy—is also unclear. The
elusive legality of these developments creates conditions for the abuse of power both
by states defending democracy and by religious, cultural, and national communities
seeking a measure of independence. Marked by a shared normative commitment to the
paradox of self-determination, the relationship between legal pluralism and militant
democracy provides insight into the legality of both developments in ways that might
be overlooked by viewing each in isolation. This is revealed dramatically by the recent
decision of the European Court of Human Rights in Refah Partisi v. Turkey, in
which the Court upheld the banning of a political party that was advocating a form of
legal pluralism that would introduce elements of Islamic law into the Turkish legal
order. Refah establishes a legal site in which contestations over the constitutional
boundaries of legal pluralism and militant democracy will take place in the future.
1. Introduction
At the dawn of the twenty-first century, Europe once again finds itself
questioning the extent to which a democratic state should act in a militant
and repressive manner to combat threats to its democratic future. ‘‘Militant
democracy,’’ a term coined by Karl Lowenstein in 1937 in a lament on the
inability of democracy to contain fascism, refers to a form of constitutional
democracy authorized to protect civil and political freedom by preemptively
restricting the exercise of such freedoms.1 Its most recent visible
manifestation is the raft of antiterrorism legislative initiatives that many
states introduced in the wake of the events of September 11, 2001. More
traditional manifestations of militant democracy include hate-speech
* Professor of law, University of Toronto. I am indebted to Jarmila Lajcakova, Andrea Napegyi, Zoran Oklopcic,
Umut Özsu, and especially Courtney Jung, for their insightful comments on a previous draft. I am also
indebted to the participants of ‘‘Emerging Legal Issues for Islam in Europe,’’ a conference held at Central
European University, June 3–4, 2005, for their comments. Funding from the Fulbright New Century Scholar
Program and the Social Sciences and Humanities Research Council of Canada is gratefully acknowledged.
Email: [email protected]
1
Karl Lowenstein, Militant Democracy and Fundamental Rights I, 31 AM. POL. SCI. REV.
417 (1937).
ª The Author 2006. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I·CON, Volume 4, Number 3, 2006, pp. 488–516 doi:10.1093/icon/mol017
488
Militant democracy, legal pluralism, and the paradox
489
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.
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, minority
religious, ethnic, and cultural communities, hitherto dormant, are
reawakening and vying for formal recognition. Some of these communities
share an ethnic kinship with states other than the one in which they find
themselves. Some share common cultural traditions that they regard as the
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 typically seek involves a measure of
cultural, political, or territorial autonomy from the parent states in which
they are situated. These demands are increasingly presented as a matter
of right.
The challenge of legal pluralism, like the challenge of militant democracy,
is not new. Forged in the violent collective reconfigurations of territorial
sovereignty, domestic, regional, and international human rights law
historically has blunted this challenge by privileging individual civil and
political rights over collective social and cultural rights. Rights bearers
overwhelmingly are individuals, and their entitlements protect a zone of
individual liberty from the exercise of public power. Although not blind to
the significance of social and cultural interests, international human rights
law—in particular, jurisprudence under the European Convention on
Human Rights (ECHR)—emphasizes the protection of individual freedoms
(of expression, opinion, religion, and association) as essential to liberty and
the rule of law.
Diverse forms of legal pluralism, however, have become increasingly
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 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 distribution of jurisdictions or rights
490 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
within a single polity, legal pluralism may entail, in some cases at least,
the 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—that is, 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 act legally 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 relationships.
In this essay I explore the twin challenges of legal pluralism and militant
democracy. Both manifest a normative commitment to the principle of selfdetermination, namely, the capacity of a collectivity to determine freely 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 (ECtHR) in Refah Partisi(the Welfare Party)
and others v. Turkey, which upheld Turkey’s ban on a political party that
advocated a form of legal pluralism that would entail introducing 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
2
Case of Refah Partisi (The Welfare Party) and Others v. Turkey, App. Nos. 41340/98,
41342/98, 41343/98 and 41344/98, 35 EUR. H.R. REP. 3 (2001) (including a joint dissenting
opinion by Judges Fuhrmann, Loucaides, and Sir Nicolas Bratza) [hereinafter Refah].
Militant democracy, legal pluralism, and the paradox
491
to the rule of law and constitutes a legal site of contestation over the
constitutional boundaries of legal pluralism and militant democracy.
2.
In a tragically belated response to Lowenstein’s lament that ‘‘democracies
that have gone fascist have gravely sinned by their leniency,’’3 the
constitutional expression of militant democracy first occurred in Europe as
a foundational principle of postwar 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 Germany’s ‘‘free basic democratic order.’’5 Other European states
also accepted the postwar necessity of antidemocratic measures to combat
extremist movements seeking to displace democratic norms by means of
radical political agendas. In 1948, for example, 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 the successful exploitation of fears associated with economic and
cultural globalization, may have also provoked states to assume militant
stances toward 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
3
See Lowenstein, supra note 1, at 652–653.
4
For a summary of interwar legislative antecedents in various European jurisdictions, see
Lowenstein, supra note 1, at 638–652.
5
GG art. 18, as amended (F.R.G.). As early as 1952, the German Constitutional Court was called
on to determine whether a neo-Nazi political party constituted such a threat; it found in the
affirmative, see 2 BVerfGE 1 (1952). Six years later, the Court upheld a ban on the German
Communist Party, see BVerfGE 5, 85 (1958).
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
concerning political party activities in national law, based on a survey of 40 countries, available
at www.venice.coe.int/docs/2000/CDL-INF(2000)001-e.asp.
492 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
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 Kingdom’s Terrorism Act 2000,8 for example, defines
terrorism as certain 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 include not only ‘‘serious violence against a person and endangering
life’’ but also the creation of a ‘‘serious risk’’ to public health or safety, and
‘‘serious interference with or disruption of an electronic system.’’9
Provisions such as section 1(1) of the Terrorism Act are shot through
with ambiguity.10 Phrases such as ‘‘designed to influence the government’’
and ‘‘intimidate the public,’’ and terms such as ‘‘serious’’ and ‘‘risk,’’ can be
interpreted in a variety of ways, and a clearer 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 an offense to promote, form, organize, manage, or finance both
domestic and international associations active in terrorism or the subversion
7
Compare Otto Pfersman, Shaping Militant Democracy: Legal Limits to Democratic Stability, in
MILITANT DEMOCRACY 48–68 (András Sajó ed., Eleven Int’l 2004) (‘‘democracies are always more
or less militant . . . [but] making democracy more militant modifies increasingly the structure
from which it starts’’).
8
Terrorism Act, 2000, ch. 11, s. 1(1). See generally Kent Roach, The World Wide Expansion of
Anti-Terrorism Laws After 11 September 2001, (2004), CXVI (III Serie), III, 2004 Fasc. 3 STUDI
SENESI, 487–527; see also Kent Roach, Anti-Terrorism and Militant Democracy: Some Western and
Eastern Responses, in MILITANT DEMOCRACY, supra note 7, 171–208.
9
Terrorism Act 2000, ch.11, s. 1(2).
10
See Opinion of the Commissioner for Human Rights, Mr. Alvaro Gil-Robles, on certain aspects
of the United Kingdom 2001 derogation from article 5 paragraph 1 of the European Convention
on Human Rights, Aug. 28 2002, available at https://wcd.coe.int/ViewDoc.jsp?id¼980187&
BackColorInternet¼99B5AD&BackColorIntranet¼FABF45&BackColorLogged¼FFC679 (noting
that the definition of terrorism in the U.K. legislation—as amended—enables its application to
persons who are unrelated to any terrorist emergency and thus may jeopardize rights enshrined
in the European Convention).
11
For overviews, see CONFRONTING TERRORISM: EUROPEAN EXPERIENCES, THREAT PERCEPTIONS
POLICIES (Marianne van Leeuwen, ed., Kluwer 2003).
AND
Militant democracy, legal pluralism, and the paradox
493
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 what constitute terrorist and subversive organizations underpin many 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 purportedly
subversive organizations; special procedures for the prosecution of certain
crimes; interstate sharing of personal telecommunications and travel data;
and changes to immigration procedures facilitating the deportation and
expulsion of individuals to foreign states. In early 2004, for example, France
introduced sweeping new legislation aimed at organized criminal networks,
conferring greater police surveillance powers and allowing for detention
without prosecution.13 The U.K. amended its immigration law in late 2001,
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 range beyond the legal realm of statutory interpretation and
engage deeper issues of constitutional authority. As noted, the constitutions
of France, Germany, and Italy contain provisions authorizing militant state
action to combat extremist movements. In recent years, militant forms of
democracy have also found specific authorization in the written constitutions of several European states. The Polish Constitution forbids the
formation of political parties and other organizations devoted to totalitarianism or racial or national hatred.15 The Ukrainian Constitution authorizes
the prohibition of parties that threaten the independence of the state.16
The Bulgarian Constitution prohibits the formation of political parties
on the basis of ethnicity.17 The Spanish Constitution guarantees freedom of
association but authorizes the state to declare an association illegal if its
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, World Wide Expansion, supra note 8.
13
Lawyers Protest Across France at Sweeping Anticrime Law, N Y. TIMES, Feb. 12, 2004, at A11.
14
Anti-terrorism, Crime and Security Act, 2001 c. 24, Part IV.
15
16
17
KONST. RP
KONST. U
art. 13 (Apr. 2, 1997).
art. 37 (June 28, 1996).
KONST. RB
art. 11(4) (July 12, 1991).
494 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
goals or means are criminal or it is of a secret or paramilitary nature.18
While relatively specific, the meaning and scope of such constitutional
provisions are not self-evident and ultimately require judicial interpretation.
The more generally worded constitutional provisions are also often
susceptible to interpretations authorizing the enactment of militant
legislative measures that would infringe civil and political freedoms 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 could deprive an individual of her
liberty or personal security? In the absence of a clearer understanding of the
legality of militant democracy, constitutional provisions authorizing—
explicitly or implicitly—militant forms of democracy create ostensible legal
authority for abusive state action.
One potential source of clarity about the constitutional limits of militant
democracy lies in international human rights law. Domestic legal commitments to militant forms of democracy coexist with international legal
commitments to respect civil and political freedom—commitments
enshrined, regionally, in the ECHR. The European Court of Human Rights
has provided some guidance on the extent to which rights and freedoms
enshrined in the convention constrain a state’s capacity to combat perceived
threats to its democratic existence.19 The Court has held that the right to life
set forth in article 2 requires a state to seek to minimize the risk to life in
antiterrorist operations.20 It has held that the right to a private life in article
8 means that a state does not possess ‘‘unlimited discretion to subject
persons within their jurisdiction to secret surveillance’’ despite the fact that
‘‘democratic societies nowadays find themselves threatened by highly
sophisticated forms of espionage and by terrorism.’’21 It has held that the
presence of a military officer on a special court created to protect national
18
C.E. arts. 22 (2) and (5). The statute is Ley Orgánica de Partidos Polı́ticos LO 6/2002. Spain
has accepted this constitutional invitation to combat radical elements within the Basque
independence movement, introducing legislation in 2000 prohibiting certain organizations
despite the fact that, strictly speaking, they might not be criminal in nature. See generally Vı́ctor
Ferreres Comella, The New Regulation of Political Parties in Spain, and the Decision to Outlaw
Batasuna, in MILITANT DEMOCRACY, supra note 7, at 133–156; see also Leslie Turano, Spain:
Banning Political Parties as a Response to Basque Terrorism, 1 INT’L J. CONST. L. (I·CON) 730 (2003).
19
Lawless v. Ireland (No. 3), 1
20
McCann and others v. UK, 21
21
EUR. H.R. REP.
15 (1961).
EUR. H.R. REP.
97 (1995).
Klass v. Germany, 2 EUR. H.R. REP. 214, 232 (1978) (at paras. 48 and 49). The Court has been
generally sensitive to advances in surveillance technologies. See, e.g., Kopp v. Switzerland, 27 EUR.
H.R. REP. 91 (1998); P.G. and J.H. v. United Kingdom, App. No. 44787/98, Judgment of
Sept. 25, 2001.
495
Militant democracy, legal pluralism, and the paradox
security violates the right to a fair trial as guaranteed by article 6.22 The
convention also contains an absolute prohibition on torture and inhuman or
degrading treatment or punishment.23 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.’’24
Although these decisions assist in assessing the international legality
of the means chosen to combat threats to democracy, they provide less
guidance on what could constitute a threat to democracy so grave that a
state may deviate from traditional democratic norms and assume a
preemptive militant stance. Article 17 of the ECHR provides some insight
into 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. In the early years of the convention, the European Commission
relied on article 17 in its support of West Germany’s ban on the German
Communist Party as well as its exclusion of individuals who distributed racist
pamphlets from participation in an election.25 Article 17 suggests that a
state might be entitled to act in a militant manner toward associations or
organizations that aim to destroy the rights and freedoms enshrined in the
convention, but it fails to stipulate any criteria for determining 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 defining those associations,
organizations, or actions against which a state is entitled to act in a militant
manner.
3.
Perhaps counterintuitively, a source of insight into the international
legality of militant democracy lies in the debates centered on legitimate
forms of legal pluralism. By legal pluralism, I mean the coexistence of two or
22
Incal v. Turkey, 29
EUR. H.R. REP.
449 (1998).
23
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 [hereinafter
European Convention].
24
25
Brannigan and McBride v. United Kingdom, 17
EUR. H.R. REP.
539 (1993).
K.D.P. v. Germany, 1 Y.B. Eur. Conv. H.R. 222 (Eur. Comm’n on H.R.). See also X v. Austria,
26 Eur. Comm’n H.R. Dec. & Rep. 244 (1982); Piperno v. Italy, App. No. 155510/89, 2 Dec
1992 (Commission Report).
496 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
more legal orders within or across the boundaries of a sovereign state.26
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, thus enabling the
exercise of delegated lawmaking authority to a subsection of a state’s
population. Collective minority rights may also promote legal pluralism, to
the extent that they contemplate a minority community having 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, concerned with
religious, cultural, and national minorities within their midst, promote
differential treatment up to and including forms of legal pluralism. Several
states have entered into bilateral treaties protecting the rights of national
minorities living outside the state with which these minorities share an
historical affiliation.27 Hungary, Slovenia, and Croatia, to varying degrees,
extend a measure of cultural autonomy to minorities through local
self-government. The asymmetrical devolution of power to the various
autonomous regions in Spain offers another example of legal pluralism. The
European Union itself embodies a commitment to legal pluralism both in its
respect for the sovereign authority of its members as well as for the rights of
persons belonging to minorities.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 may structure the social and political life of communities
despite the fact that it is often not regarded as law by the state.29 And
26
For a classic articulation of the concept, see John Griffiths, What is legal pluralism?, 24 J. LEG.
PLURALISM 1. For an insightful exploration of religious legal pluralism, see Perry Dane, The Maps
of Sovereignty: A Meditation, 12 CARDOZO L. REV. 959.
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 its treaty with Hungary, Romania has entered into treaties with Ukraine
and Moldova. Other examples include treaties between Croatia and Hungary and Italy. See
generally PROTECTION OF MINORITY RIGHTS THROUGH BILATERAL TREATIES: THE CASE OF CENTRAL AND
EASTERN EUROPE (Arie Bloed & Pieter van Dijk eds., Kluwer 1999).
28
Draft Treaty establishing a Constitution for Europe, 2003 O.J. (C 169) 1 (Aug. 18, 2003)
refers in article 1(2) to both ‘‘pluralism’’ and ‘‘the value of respect for human rights, . .
including the rights of persons belonging to minorities.’’
29
See, e.g., RICHARD DALY, OUR BOX WAS FULL: AN ETHNOGRAPHY FOR THE DELGAMUUKW PLAINTIFFS
(UBC Press 2005) (documenting the pre- and postcontract institutions, system of production,
and exchange, dispute settlement, and proprietorship of the Gitksan and Witsuwit’en peoples of
northwest British Columbia).
Militant democracy, legal pluralism, and the paradox
497
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 such law
does not possess formal legal status in host states.30 Yet legal recognition—
whether in the form of minority rights, a federal division of legislative
authority, statutory delegation of lawmaking authority, rights of selfgovernment, or territorial autonomy—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 the broader
society in which it forms a minority. It seeks a type of legal pluralism in order
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, one 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
rights that speak directly to legal pluralism in its various forms. Its focus is on
the individual and it is devoted overwhelmingly to the protection of civil and
political rights. Collective rights were not part of the postwar vision of a
future Europe; the convention was drafted in light of wartime atrocities and
was seen primarily if not exclusively as an instrument protecting 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 only
explicitly protects the right of an individual not to be discriminated against
as a member of a minority defined by language, religion, or national
origin.31
Several if not all of the civil and political rights, such as freedom of
expression, association, and religion, as well as the right to a family life, the
convention’s equality guarantee, and the right to free elections, are all
textually capable of protecting the 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 convention—to date
has not been particularly eager to take up the challenge of delineating
30
For detail, see the essays collected in GYPSY LAW: ROMANI LEGAL TRADITIONS AND CULTURE (Walter
O. Weyrauch ed., Univ. Cal. 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, 51 AM. J. COMP. L. 639 (2003).
31
Art. 14.
32
Arts. 10, 11, 9, 8, and 14, and Art. 3, Protocol 1, respectively.
498 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
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 the political
or legal autonomy of a discrete 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 pertinent in this respect. 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 different.’’34 Thlimmenos effectively introduces the concept of
indirect discrimination into the convention’s equality jurisprudence; it
further 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 Organization 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 it
monitors the extent to which states parties comply with their terms.37
33
See e.g., Belgian Linguistic Case (1967 and 1968) 1 EUR. H.R. REP. 241, 252 (1967–1968); G. & E. v.
Norway, App. Nos. 9278/81 and 9415/81, 35 Eur. Comm’n H.R. Dec. & Rep. 30 (1985); S. v. Sweden,
App. No. 16226/90, 2 Sept. 1991 (Commission report); Sürek v. Turkey (No.1), App. No. 26682/95
(1999); Könkämä and 38 other Saami Villages v. Sweden, App. No. 27033/95; Buckley v. United
Kingdom, 23 EUR. H.R. REP. 101 (1996); Hasan & Chaush v. Bulgaria, App. No. 30985/96 (2000); Serif
v. Greece, 31 EUR. H.R. REP. 56 (1999). For a detailed review of the Court’s jurisprudence, see Fernand de
Varennes, Using the European Court of Human Rights to Protect the Rights of Minorities, in MECHANISMS FOR
THE IMPLEMENTATION OF MINORITY RIGHTS 83–108 (Council of Europe 2004).
34
Thlimmenos v. Greece, App. No. 34369/97, 31
EUR. H.R. REP.
411 (2000), at para. 44.
35
For commentary on Thlimmenos in the context of minority protection, see Sia Spiliopoulou
Åkermark, The Limits of Pluralism—Recent Jurisprudence of the European Court of Human Rights
with Regard to Minorities: Does the Prohibition of Discrimination Add Anything?, 3 J. ETHNOPOLITICS &
MINORITY ISS. EUR. (2002), available at www.ecmi.de/jemie/special_3_2002.html.
36
37
See Jane Wright, The OSCE and the Protection of Minority Rights, 18 HUM. RTS. Q. 190 (1996).
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, 18 HUM. RTS.
Q. 160 (1996).
Militant democracy, legal pluralism, and the paradox
499
Moreover, the European Union and NATO require candidate countries to
provide minority protection as a condition of membership.38 Yet none of
these institutions or instruments has produced a consensus on the
international legal status of the various forms of legal pluralism in European
human rights law.39
Political developments regarding legal pluralism 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 has a paradox at its core.
4.
The principle of self-determination is the normative foundation of any claim
by a cultural or ethnic community when 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 destiny. Its social and
cultural dimensions speak to interests such as social security and cultural
integrity. Its political dimension includes the freedom to determine one’s
political status and to participate in the formation of laws affecting the
group’s future.
Viewed statically, the political dimension of self-determination represents
the freedom of a people to choose whatever form of government they wish to
38
Candidate countries have to meet the ‘‘Copenhagen criteria’’ for admission to EU membership
set out by the 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 of minorities.’’ 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, 12 Eur. J. Int’l L. 3 (2001); Martin Brusis, The European Union and Interethnic
Power-sharing Arrangements in Accession Countries, 1 J. ETHNOPOLITICS & MINORITY ISS. EUR. (2003),
available at www.ecmi.de/jemie/special_1/2003.html. 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, NATO Public
Diplomacy Division, June 2004, at 21, available at www.nato.int/docu/nato-trans/nato-transeng.pdf.
39
For a collection of essays on the merits of minority protection in Europe, see CAN LIBERAL
PLURALISM BE EXPORTED? WESTERN POLITICAL THEORY AND ETHNIC RELATIONS IN EASTERN EUROPE (Will
Kymlicka & Magda Opalski eds., Oxford Univ. Press 2001).
500 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
be subject to; on this account, self-determination says little if anything about
what kind 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 participate freely 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
Normative dimensions of the principle of self-determination receive partial
protection in international law. The field traditionally understood selfdetermination as statically vesting in the entire population of an existing
state. Before the end of the World War I, ‘‘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, selfdetermination 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. Selfdetermination 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 essence of human
freedom: the capacity to control one’s present and future free of external
interference.
The principle of self-determination receives freestanding 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
40
OF
For an extended defense of democratic government in these terms, see IAN SHAPIRO, THE STATE
DEMOCRATIC THEORY (Princeton Univ. Press 2003).
41
Diane Orentlicher, Separation Anxiety: International Responses to Ethno-Separatist Claims,
23 YALE J. INT’L L. 1, 22 (1998).
42
Namibia, [1971] I.C.J. 16, at 31; Western Sahara, [1975] I.C.J. 12, at 31.
Militant democracy, legal pluralism, and the paradox
501
‘‘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 the 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 it authorizes state action
to protect the chosen arrangements from internal or external threat. On the
other hand, self-determination can stand as a challenge to 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 various sorts of minorities for legal
measures that would provide a measure of autonomy from their parent
states. 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 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 for some time has ceased to regard the right of selfdetermination 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
harboring a spectrum of constitutional and institutional possibilities that
fall short of secession but which, nonetheless, can protect a community’s
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
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).
44
I take this insight from the work of Martti Koskenniemi. See Martti Koskenniemi, National SelfDetermination Today: Problems of Legal Theory and Practice, 43 INT’L. & COMP. L.Q. 241, 245 (1994)
(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 in ‘‘matters concerning groups formerly invisible behind the veil of sovereignty,’’ see
Nathaniel Berman, But the Alternative is Despair: European Nationalism and the Modernist Renewal
of International Law, 106 HARV. L. REV. 1792 (1993).
502 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
Court of Canada was asked to provide its opinion of the international legality
of a possible secession by Québec 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 selfdetermination.’’ 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
the sovereign independence contemplated by external self-determination,
are measures that enhance representation in the political institutions of the
broader society in which the community is located. At the 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 the differential treatment of religious, cultural, and
national communities and the recognition or provision of cultural rights of
varying scope in the name of minority protection.49 This spectrum offers
different forms of legal pluralism to communities seeking a measure of
46
Reference re Secession of Québec, [1998] 2 S.C.R. 217.
47
Id. See also Frederic Kirgis Jr., The Degrees of Self-Determination in the United Nations Era, 88 AM.
J. INT’I. L. 304, 306 (1994) (‘‘if a government is at the high end of democracy, the only selfdetermination claims that will be given international credence are those with minimal
destabilizing effect [but] if a government is extremely unrepresentative, much more destabilizing
self-determination claims may well be recognized’’).
48
For example, the African Commission on Human and Peoples’ Rights, in Katangese Peoples’
Congress v. Zaire, has ruled that article 20 of the African Charter on Human and Peoples’ Rights,
which guarantees the 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 cognizant of 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, available at
www.umn.edu/humanrts/africa/comision.html. For analysis, see Martin Scheinin, The Right to
Enjoy a Distinct Culture: Indigenous and Competing Uses of Land, in THE JURISPRUDENCE OF HUMAN
RIGHTS LAW: A COMPARATIVE INTERPRETIVE APPROACH 159, 182–183 (Theodore S. Orlin, Alan
Rosas, & Martin Scheinin, eds., Institute for Human Rights Abo Akademi Univ. 2000).
49
ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL APPRAISAL 348 (Cambridge Univ.
Press 1998) (arguing that internal self-determination bridges this gulf); GNANAPALA WELHENGGAMA, MINORITIES’ CLAIMS: FROM AUTONOMY TO SECESSION 128 (Ashgate 2000) (‘‘these two concepts,
minority autonomy and internal self-determination, are increasingly being seen as two sides of
the same coin’’); see also Frederik Harhoff, Institutions of Autonomy, 55 NORDIC J. INT’L L. 31,
31–40 (1986) (exploring link between ‘‘autonomy’’ and ‘‘self-determination’’).
Militant democracy, legal pluralism, and the paradox
503
autonomy within the state in which they are located. Establishing a plural
legal order is no mean feat, and communities often enlist the discourse of
rights in support of such an aspiration. Because it contemplates a variety
of forms of legal autonomy short of secession, the right of internal selfdetermination 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
accommodate, dynamically, diverse forms of legal pluralism displaces but
does not 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 embolden a minority community
to demand more and more concessions from the center? The right to internal
self-determination, beyond vesting in a people the right to a form of
autonomy 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 in order 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
50
Cf. Stephen Tierney, Reframing Sovereignty? Sub-State National Societies and Contemporary
Challenges to the Nation-State, 54 INT‘L & COMP. L.Q. 161, 175–176 (2005) (challenges to a state’s
constitutional authority by substate national societies ‘‘compromise the reality of the State’s
. . . sovereignty’’ and ‘‘constrict the capacity and at times even competence of the State
constitution 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 State’s
territory’’).
51
See CASSESE, SELF-DETERMINATION OF PEOPLES, supra note 49, at 332 (‘‘both customary and treaty
law on internal self-determination . . . do not furnish workable standards concerning some
possible forms of realizing internal self-determination, such as devolution, autonomy, or
‘regional’ self-government’’).
504 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
institutional and jurisprudential settings. 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 covenant’s monitoring body, the UN Human Rights Committee,
which is empowered to hear only individual, not collective, claims.52
Notwithstanding the Supreme Court of Canada’s decision in the Quebec
Secession Reference, the field remains divided on whether the right of external
self-determination extends beyond the contexts of colonization and foreign
occupation to include and to legitimate certain secessionist movements.53
Equally uncertain is the definition of ‘‘peoples’’ who are 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
that provide disaggregated protection to the various dimensions of the
principle of self-determination.
Moreover, states appear determined to uphold an international legal order
that sharply separates legal developments concerning self-determination
from those concerning minority protection.55 In addition, the international
legal status of the latter is even more ambiguous than the former—especially
when the form of minority protection in question would extend to a minority
52
See Lubicon Lake v. Canada, CCPR/C/38/D/167/1984 (March 26, 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 article 1
‘‘may be relevant in the interpretation of other rights protected by the Covenant.’’ J.G.A.
Diergaart v. Namibia, CCPR/C/69/D/760/1996 (July 25, 2000), para. 10.3; Gillot v. France,
CCPR/C/75/D/932/2000 (July 15, 2002), para. 13.4. Most significant in this regard is article
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 own language.’’ For a review of the committee’s views on article 27, see GAETANO
PENTASSUGLIA, MINORITIES IN INTERNATIONAL LAW 97–111 (Council of Europe 2002).
53
See generally CASSESE, supra note 49.
54
See KAREN KNOP, DIVERSITY AND SELF-DETERMINATION IN INTERNATIONAL LAW 51–65 (Oxford Univ.
Press 2002) 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 SelfDetermination, in MODERN LAW OF SELF-DETERMINATION 225–252 (Christian Tomuschat ed.,
Martinus Ninjhoff 1993) for discussion of debates in the field concerning the legal status of
internal self-determination.
55
CASSESE, supra note 49, 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 the protection 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 Univ. Press 1997).
Militant democracy, legal pluralism, and the paradox
505
a measure of domestic legal autonomy.56 And, as noted earlier, the European
Convention on Human Rights does not establish a right of self-determination
nor does it expressly enshrine minority rights.
That self-determination both legitimates and challenges sovereign
authority also accounts for the 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 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 itself, ex 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 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 apart from a contextual
analysis of the competing interests in the case at hand, weighing the extent
of the risk against the intensity of the threat. Yet recourse to context, in order
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 postwar Germany, form alone will not yield the substance
needed to resolve particular cases. Like legal pluralism, militant democracy
requires some substantive legal criteria governing the contextual considerations that may properly be brought to bear to assess its legitimacy in
56
For analyses of international law’s ambivalence toward the concept of legal autonomy, see the
essays collected in AUTONOMY: APPLICATIONS AND IMPLICATIONS (Markku Suksi ed., Kluwer 1998).
See also HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION: THE ACCOMMODATION OF
CONFLICTING RIGHTS (Univ. Pa. Press 1996). For analysis of minority rights in international law,
see PATRICK THORNBERRY, INTERNATIONAL LAW AND THE RIGHTS OF MINORITIES (Clarendon 1991).
57
Pfersmann, Shaping Militant Democracy, supra note 7, at 68.
506 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
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. This shared commitment explains the ambiguous legal status of both
developments. In the next section, I examine the decision of the ECtHR in
Refah Partisi v. Turkey. In Refah, 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 when viewing each in isolation.
5.
In several notable cases involving the banning of political parties in Turkey,
the ECtHR 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 selfdetermination, called for constitutional recognition of the Kurdish people,
and advocated peaceful Turkish-Kurdish coexistence ‘‘within the borders of
the Turkish Republic.’’59 The European Court held that banning the party
was 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 State’s population and to take
part in the nation’s 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 selfdetermination, 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
binational and bilingual federal constitutional order that would allow for the
58
United Communist Party of Turkey and Others v. Turkey, App. No. 133/1996/752/951, 26
121 (1998).
EUR. H.R. REP.
59
Towards a Peaceful, Democratic and Fair Solution of the Kurdish Problem, THE UNITED COMMUNIST
PARTY OF TURKEY PROGRAM, quoted in United Communist Party of Turkey, supra note 58, at 125.
60
Id. at 154.
61
Socialist Party and Others v. Turkey, App. No. 20/1997/804/1007, 27 EUR. H.R. REP. 51 (1998).
Militant democracy, legal pluralism, and the paradox
507
peaceful coexistence of the Kurdish and Turkish peoples. Holding Turkey in
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. In Freedom 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 Court’s 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 may assume a
militant stance. However, in its most recent decision, Refah Partisi v. Turkey,
the Court identifies one such political agenda. In so doing, it provides a
valuable insight into the legality of militant democracy. Because of the
agenda in question, the Court’s decision also provides insight into the forms
of legal pluralism that are acceptable to European human rights law.
The background to the Court’s decision in Refah 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, it had the most seats in
the Turkish Parliament, having gained approximately 22 percent 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 Turkey’s
constitutional commitment to secularism, which, in Turkish constitutional
tradition, calls for a radical separation between church and state.65
62
Id. at 85.
63
Freedom and Democracy Party (OZDEP) v. Turkey, App. No. 23885/94, Judgment of
December 8, 1999.
64
Yazar and others v. Turkey, App. Nos. 22723/93, 22724/93 and 22725/93, Judgment of
April 9, 2002, at para. 49.
65
Specifically, section 103 of Turkey’s Law on Political Parties authorizes the dissolution of a
political party that is a ‘‘centre’’ for activities contrary to the principle of secularism enshrined in
article 2 of the Turkish Constitution. Article 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 in Refah, supra note 2, at 73. Section 78 of the Law on
508 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
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 chamber’s 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 examples of this in modern European history.’’67 It further 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 Turkey’s militant action is that
the party in question 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. Apparently, it proposed dividing Turkish society into
several religious orders, requiring 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
Political Parties also prohibits political parties from seeking to ‘‘change the republican form of the
Turkish State.’’ According to section 103, ‘‘where it is found that 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
Court’s jurisprudence on the constitutionality of political party bans, see Dicle Kogacioglu, Progress,
Unity, and Democracy: Dissolving Political Parties in Turkey, 38 L. & SOC. REV. 434 (arguing that the
Court has been constructing a boundary between cultural and political Islam).
66
Refah, supra note 2.
67
Id. at para. 99.
68
Id. 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 State’s institutions, of the right to protect those institutions.’’).
69
Paragraph 2 of article 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 society in 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.’’
Militant democracy, legal pluralism, and the paradox
509
between individuals and the state. The Court held that such a regime would
run counter to the convention’s guarantee of equality and, more generally,
the rule of law. This is because, according to the Court, it would ‘‘undeniably
infringe the principle of 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 nondiscrimination principle.71 And yet not all differential treatment constitutes
discrimination, as evidenced by the Court’s jurisprudence elsewhere on
religious freedom, which suggests that differential treatment to protect
religious practices is consistent with the values underpinning the European
Convention.72 Whether Refah’s 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 Refah’s model, was inconclusive at best; the Court
appeared to assume that individual choice was not one of the model’s central
features.
Additional factors relevant to an inquiry to determine the discriminatory
effects of legal pluralism 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 beliefs and religion
in a democratic society.’’73 Several scholars have found fault with 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
70
Refah, supra note 2, at para. 119 (quoting the chamber court, at para. 70).
71
See, e.g., ALBERT V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 202–203
(Macmillan 1959, 10th ed.) (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
Cha’are Shalom Ve Tsedek v. France, App. No. 27417/95, Judgment of June 27, 2000
(upholding a French law conferring legal capacity on Jewish groups to make laws that conflict
with French law in relation to the slaughtering of animals).
73
74
Refah, supra note 2, at para. 119 (quoting the chamber court, at para. 70).
See especially Christian Moe, Refah Revisited: Strasbourg’s Construction of Islam, available at
www.strasbourgconference.org/papers/Refah Revisited- Strasbourg’s Construction of Islam.pdf;
Kevin Boyle, Human Rights, Religion and Democracy: The Refah Party Case, 1 ESSEX HUM. RTS. L.
REV. 1 (2004).
510 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
to which they reveal an international legal relationship between
militant democracy and legal pluralism. Refah proclaimed 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 by the party to implement it.
Refah’s 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 state’s capacity to protect individual
rights and freedoms. The legality of Turkey’s militant democratic stance,
in other words, rested on the illegality of Refah’s 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.
6.
By identifying a political agenda against which a constitutional
democracy can assume a militant stance, Refah reveals inferentially the
forms of legal pluralism—that is, the constitutional and 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 the distinctive and embedded
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 range and effect. Third, a plural legal order
must respect and retain the state’s role as a democratic guarantor of
individual rights and freedoms.
The Court’s description of the acceptable limits of militant democracy thus
provides a set of conditions for understanding the legality of legal pluralism.
But the Court’s decision yields a converse insight as well. It offered a second
reason why Turkey’s ban was not in violation of the convention’s guarantee
of freedom of association, namely, that Refah had advocated a religious jihad
and the use of 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 groups and individuals 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
Militant democracy, legal pluralism, and the paradox
511
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 where 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-determination’s most 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 both
the legality of legal pluralism and militant state action is consistent with the
Court’s 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 in Refah 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 fulfill a ‘‘primordial role’’
in the ‘‘proper functioning of a democracy.’’78
Beyond this institutional minimum, any question as to 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 for a minority within its midst could just as 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
75
Refah, supra note 2, at para. 98.
76
That a commitment to the democratic potential of the principle of self-determination
underpins the international legality of legal pluralism and militant democracy—at least in the
European context—is consistent with Thomas Franck’s thesis that we are witnessing the
transformation of self-determination into a commitment to democratic government; see Thomas
M. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT’L L. 46 (1992). See also
Gregory H. Fox, The Right to Political Participation, 17 YALE J. INT’L LAW 539 (1992).
77
Refah, supra note 2, at para. 45.
78
Id. at para. 87.
512 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
federal system would produce; and the extent to which such an arrangement
was intended to or—regardless of its intent—would harden ethnic, cultural,
or national differences among citizens, leading 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 on the part of
the broader society in which it is situated. 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.
Rather, 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 in Refah by the Court’s
failure to do so. The Court offered a third reason why the Refah Party could
not avail itself of the convention guarantee of freedom of association. Refah
sought the introduction of Shari’a as one of the several legal orders intended
to operate within the plurality of legal systems it proposed. In the Court’s
view, ‘‘sharia is incompatible with the fundamental principles of democracy.’’79 It also approved the chamber court’s statement that ‘‘[i]t is difficult
to declare one’s 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 Shari’a and the convention’s
values of democracy and human rights, especially, as the Court notes, in
light of Shari’a’s approach to criminality and the legal status of women,
Shari’a is a complex body of law, rich in its scope and depth, arguably as
comprehensive in range 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.
Yet the Court rejects wholesale all of Shari’a instead of crafting a decision
that allows for the future examination of the possible compatibility of
different aspects of Shari’a with European Convention values. Had it been
more nuanced in its response, it could have begun a jurisprudential dialogue
79
Id. at para. 123.
80
Id. at para. 123 (quoting the Chamber court, at para. 72).
Militant democracy, legal pluralism, and the paradox
513
between European and Islamic legal orders, where the 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 Shari’a 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 authority that
yielded the rules was limited, 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 Shari’a—at a level of
abstraction that forecloses further jurisprudential debate on the topic.
The Court’s decision in Refah 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 after it had come to power and
formed part of a governing coalition. The parties before the European Court
agreed that Refah had neither proposed legal reforms 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, which forecast that Refah was likely to obtain 67 percent 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, standard of proof, and probability of harm. In
the absence of relatively specific rules and presumptions addressing these
81
Judge Kowler, concurring in the result, makes this point when he characterizes Shari’a 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 and Democracy, supra note 78, at 13 (calling for expert pleadings to
bring to light debates within Islam on Shari’a and democracy and elements of Shari’a that
conflict with international human rights standards).
82
Refah, supra note 2, at para. 108.
83
See, e.g., Boyle, supra note 74; Moe, supra note 74.
514 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
issues, this framework invites an entirely ad hoc exercise of interest
balancing. Given the stakes, such an exercise would not only fail to provide
guidance on the legality of militant state action; it would likely accord
undue judicial deference to state interests at the expense of democratic
freedom.84
With respect to timing, the Court ruled that a state can exercise its ‘‘power
of preventive intervention’’ before a party assumes power and begins to
implement an antidemocratic agenda ‘‘through concrete steps that might
prejudice civil peace and the country’s democratic regime.’’85 Elsewhere in
its judgment the Court held that the state is entitled to act when the threat to
democracy is ‘‘sufficiently imminent.’’86 It defended this conclusion by
stating that it was consistent with article 1 of the convention, which imposes
on states a positive state obligation to secure the rights and freedoms of
individuals within its jurisdiction.87
Militant democracy—what the Court terms ‘‘preventive intervention’’—
involves steps to prevent the peaceful accession to power of those with
political agendas that would, if implemented, dismantle democracy itself.
Until it becomes policy, however, a radical political agenda—whether
advanced by an individual or a political party—represents freedom of
expression and association in action. The traditional democratic approach to
such an agenda is to determine its constitutionality when it begins to conflict
with the rights of others. In the absence of accompanying violence or
criminal activity, there is no legal conflict until the party comes to power and
begins to introduce legislation or policies or otherwise engages in actions
that represent the realization of such an agenda; the task of democratic
institutions is to restrain the government of the day from acting in an
unconstitutional manner. Militant democracy constitutes a stark departure
from this traditional democratic stance.88 To minimize the possibility of
abusive state action in such circumstances, what is meant by a ‘‘sufficiently
imminent’’ threat must be more closely defined to justify such a deviation.
Political agendas should be scrutinized not ex ante but as close to the
threshold between proposal and policy as possible.
84
See Cass R. Sunstein, Fear and Liberty, 71 SOC. RES. 967, 983 (2004).
85
Refah, supra note 2, at para. 102 (quoting the Chamber’s judgment, at para. 81).
86
Id. at para. 104.
87
Article 1 provides that ‘‘the High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of this Convention.’’
88
The starkness of this departure is reflected in the Court’s blunt refusal to criticize the
Constitutional Court’s decision not to wait ‘‘for Refah to seize power and swing into action, for
example by tabling bills in parliament, in order to implement its plans.’’ Supra note 2, at
para. 110.
Militant democracy, legal pluralism, and the paradox
515
With respect to the standard of proof, the Court held that there need be
only ‘‘plausible evidence’’ of a risk to democratic government.89 Yet, at least
in the context of banning a political party, mere plausibility is an excessively
lax standard of proof by which to assess an imminent threat to democracy.
A state should be required to introduce clear and convincing evidence that
the party in question is likely to come to power and that the implementation
of its platform will necessarily and immediately result in the dismantlement
of democratic institutions. A ban on such a party should only be upheld
in circumstances where the acceptable and unacceptable components of
a party platform are inextricably intertwined, rendering it impossible for a
court to declare certain components, but not the party platform and the
party itself, contrary to convention democratic values.
With respect to the probability of harm, the standard of ‘‘sufficient
imminence’’ fails to account for several factors that need to be considered in
an assessment of risk. Assessing the imminent level of a threat to democracy,
as András Sajó has argued, is a complex endeavor not simply because events
are too scarce to calculate the probability and extent of harm but also
because a single event or action typically does not tend to produce
democratic deterioration. An event that, when viewed in isolation, would
not be regarded as a serious threat to the future of democratic government,
nevertheless, may encourage further antidemocratic events, increasing the
probability of harm in cumulative but unpredictable ways.90
Yet an assessment of the probability of harm, stemming from a single
event or action and with an eye to its cascading potential, must acknowledge
that a highly visible fear-inducing threat can also lead people—and states—
to exaggerate the probability of future harm.91 Probability assessment,
therefore, should include an examination of the availability of alternative
means of preventing democratic deterioration. Efforts to ascertain the
probability of harm associated with a highly visible threat must first
determine the extent to which existing constitutional measures would be
able to check and diffuse its cumulative potential, which, in turn, requires a
contextual assessment of the durability of the democratic traditions in the
society in question. Guiding this turn to context—like that associated with
legal pluralism—is a commitment to the value of democratic government as
it assumes concrete identity in the case at hand.
89
Id. at para. 104.
90
András Sajó, Militant Democracy and Transition towards Democracy, in MILITANT DEMOCRACY,
supra note 7, at 217 (suggesting as well that risk assessment in posttotalitarian and
postcommunist countries raises unique concerns).
91
Sunstein, Fear and Liberty, supra note 84, at 977.
516 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
Patrick Macklem
7. Conclusion
As a result of the Court’s decision in Refah, international law has produced a
legal site in which contestations over the limits of state power and pluralism
may take place in the future. This site authorizes a constitutional democracy
to act in a militant manner—subject to conditions relating to timing, burden
of proof, and probability of harm—and to combat any exercise of civil and
political freedom that would constitute an imminent threat to its democratic
future. It also authorizes attempts by a religious, cultural, or national
community to secure—subject to conditions relating to freedom of choice
and jurisdictional scope—a form of legal pluralism that would provide a
measure of autonomy vis-à-vis the state in which it is located. The
international legality of both militant democracy and legal pluralism,
however, ultimately rests on the extent to which they promote the
democratic potential of self-determination. With its commitment to
democratic government, international law has begun to subject the politics
surrounding the paradox of self-determination to the rule of law.