U NIVERSITY OF T ORONTO

Faculty of Law
L EGAL S TUDIES R ESEARCH P APER
No. 05-03

M ILITANT D EMOCRACY , L EGAL

P LURALISM AND THE P ARADOX OF
S ELF -D ETERMINATION
P ATRICK M ACKLEM

This paper can be downloaded without charge at:

The Social Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract=702465
 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 to
which 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 national
communities 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 both
developments 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 in Refah v. Turkey, in which the Court upheld the banning of a political party that
advocated 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 democratic
potential of self-determination.
 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.

1
 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.

2
 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.

3
 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 in Refah 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.

2
Case 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.

4
In a tragically belated response to Lowenstein’s 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 Germany’s ‘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 concerning
political 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

5
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 Kingdom’s 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’).
8
Terrorism 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.
9
Ibid, 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 to
persons who are unrelated to any terrorist emergency and thus may jeopardize rights enshrined in the
European Convention).

6
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.

7
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 Germany’s 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.

14
Anti-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 Orgánica de Partidos
Políticos 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 fact
that, strictly speaking, they might not be criminal in nature. See generally Víctor Ferreres Comella, ‘The
New Regulation of Political Parties in Spain, and the Decision to Outlaw Batasuna,’ in Sajo (ed.), Militant

8
 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 state’s

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.
20
Lawless v. Ireland (No. 3) (1961) 1 EHRR 15.
21
McCann and others v. UK (1995), 21 E.H.R.R. 97.

9
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 Germany’s 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

22
Klass 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.
23
Incal 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.
26
KDP v. Germany (1957) 1 YB Eur. Conv. H.R. 222 (EComm HR). See also X v. Austria (1981) 26 Eur.
Comm. H.R.D.R. (EComm HR); Piperno v. Italy Application 155510/89, 2 Dec 1992, EComm.

10
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 state’s 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

11
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 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, Arie Bloed & Pieter van Dijk (eds.),
Protection of Minority Rights Through Bilateral Treaties: The Case of Central and Eastern Europe (The
Hague: 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

12
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
Witsuwit’en 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.

13
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 Convention’s 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; Sürek v. Turkey (No.1)(1999) (Application no.
26682/95); Könkämä and 38 other Saami Villages v. Sweden (1996) (Application no. 27033/95); Buckley
v. 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 Court’s jurisprudence, see
Fernand 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.

14
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

34
Thlimmenos 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 Ǻkermark,
‘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 and
Minority 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 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” (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.

15
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 one’s political status and to

participate in the formation of laws affecting one’s 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

16
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).

17
essence of human freedom: the capacity to control one’s 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. Int’l Law 1, 22.
42
Namibia, [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.

18
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 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 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 in
‘matters concerning groups formerly invisible behind the veil of sovereignty,’ see Nathaniel Berman, ‘But

19
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.
46
Reference re Secession of Québec, [1998] 2 S.C.R. 217.
47
Ibid. 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 a
government is extremely unrepresentative, much more destabilizing self-determination claims may well be
recognized’).
48
The African Commission on Human and Peoples’ Rights, in Katangese Peoples’ Congress v. Zaire, for
example, 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, http://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 Theodore S. Orlin, Alan Rosas,

20
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 doesn’t

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. Int’l L. 31, 31-40 (exploring
link 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 state’s constitutional authority by sub-state national societies ‘compromise the reality of
the State’s … sovereignty’ and ‘constrict the capacity and at times even to 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’).

21
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 Covenant’s supervisory body, the

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

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 realizing
internal self-determination, such as devolution, autonomy, or “regional” self-government’).
52
See Lubicon 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 other
rights 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

22
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 own
language.’ For a review of the Committee’s 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 University
Press, 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 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: Oxford University Press, 1997).
56
For analyses of international law’s ambivalence toward the concept of legal autonomy, see the essays
collected in Markku Suksi (ed.), Autonomy: Applications and Implications (The Hague: Kluwer Law
International, 1998). See also Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The
Accommodation of Conflicting Rights (Philadelphia: University of Philadelphia Press, 1996). For analysis

23
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 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

of minority rights in international law, see Patrick Thornberry, International Law and the Rights of
Minorities (Oxford: Clarendon Press, 1991).

24
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 in Refah 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 by viewing each in isolation.

IV.

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

25
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 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 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

58
United 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.
60
Ibid. at 154.
61
Socialist Party and Others v. Turkey (Application no 20/1997/804/1007) (1998) 27 E.H.R.R. 51.

26
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 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

Court’s decision also provides insight into forms of legal pluralism that are acceptable to

European human rights law.

62
Ibid. at 85.
63
Freedom and Democracy Party (OZDEP) v. Turkey (Application no. 23885/94) Judgment of 8 December
1999.

27
 The background to the Court’s decision in Refah 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

Turkey’s 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 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

64
Yazar 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 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 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 in
Refah 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 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’ (2004) 38 Law &
Society Review 434 (arguing that the Court has been constructing a boundary between cultural and political
Islam).

28
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 Turkey’s 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 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

66
Refah 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 Judges
Fuhrmann, Loucaides, and Sir Nicolas Bratza.
67
Ibid, at para. 99.
68
Ibid, 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
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 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.’

29
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 Court’s

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

model’s 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

70
Refah, 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
Cha’are Shalom Ve Tsedek v. France, (Application no. 27417/95) Judgment of 27 June 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).

30
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. 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 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.

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

73
Ibid. at para. 119 (quoting the Chamber Court, at para. 70).
74
See especially Christian Moe, ‘Refah Revisited: Strasbourg’s Construction of Islam’ (unpublished paper
presented 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.

31
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 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 reverse insight as well. It offered a second reason why Turkey’s

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-determination’s most

32
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 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 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

75
Supra, 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 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. Int’l Law. 539.
77
Supra, at para. 45.
78
Supra at para. 87.

33
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 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 sharia

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

34
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 sharia and Convention values of

democracy and human rights, especially, as the Court notes, in light of sharia’s 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

79
Supra, at para. 123.
80
Supra, 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 and
Democracy,’ 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).

35
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 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 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,

82
Supra, at para. 108.
83
See, e.g., Boyle, supra; Coe, supra.

36
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 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 stated 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 is 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, if

implemented, will 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 political violence or criminal

activity, there is no legal conflict until the party comes to power and begins to introduce

84
See Cass R. Sunstein, ‘Fear and Liberty’ (2004) 71(4) Social Research 967-996, 983.
85
Para. 102 (quoting the Chamber’s judgment, at para. 81).
86
Para. 104.

37
legislation or policy or otherwise engages in action that represents the realization of such

an agenda, and 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.

With respect to standard of proof, the Court held that there need only be

‘plausible evidence’ of a risk to democratic government.89 Yet, at least in the context of a

banning of 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 such a 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.

87
Art. 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, at para. 110.
89
Para. 104.

38
 With respect to the probability of harm, the standard of ‘sufficient imminence’

fails to account for several factors that need to be factored into an assessment of risk.

Assessing the imminent level of a threat to democracy, as Andras Sajo has argued, is a

complex endeavour 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 may encourage

further antidemocratic events that increase the probability of harm in cumulative but

unpredictable ways.90

Yet an assessment the probability of harm of a single event or action 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 presence 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 possess the capacity to check and diffuse its cumulative potential,

which in turn requires a contextual assessment of the durability of 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.

90
Sajo, ‘Militant Democracy and Transition towards Democracy,’ in Sajo (ed.), Militant Democracy, supra
at 217 (suggesting as well that risk assessment in post-totalitarian and post-communist countries raises
unique concerns).
91
Sunstein, ‘Fear and Liberty,’ supra, at 977.

39
 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 will 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, to combat the

exercise of civil and political freedom that constitutes 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

from which 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 produced by

the paradox of self-determination to the rule of law.

40