Militant democracy, legal pluralism, and the paradox of self-determination

International Journal of Constitutional Law

Volumn 4, Issue 3, 2006, Pages 488-516

  Macklem, Patrick ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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[No Author keywords available]

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EID: 33746064889     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mol017     Document Type: Article

References (128)

1. Karl Lowenstein, Militant Democracy and Fundamental Rights I, 31 Am. Pol. Sci. Rev. 417 (1937).
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].
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).
6. Six years later, the Court upheld a ban on the German Communist Party, see BVerfGE 5, 85 (1958).
7. 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).
8. 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.
9. 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").
10. Terrorism Act, 2000, ch. 11, s. 1 (1).
11. 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
12. see also Kent Roach, Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses, in Militant Democracy, supra note 7, 171-208.
13. Terrorism Act 2000, ch. 11, s. 1 (2).
14. 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 http://wcd.coe.int/ViewDoc.jsp?id=980187&BackColorInternet= 99B5AD&BackColorIntranet=FABF45&BackColorLogged=FFC679 (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).
15. For overviews, see Confronting Terrorism: European Experiences, Threat Perceptions and Policies (Marianne van Leeuwen, ed., Kluwer 2003).
16. 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.
17. Lawyers Protest Across France at Sweeping Anticrime Law, N Y. Times, Feb. 12, 2004, at A11.
18. Anti-terrorism, Crime and Security Act, 2001 c. 24, Part IV.
19. Konst. rp art. 13 (Apr. 2, 1997).
20. Konst. u art. 37 (June 28, 1996).
21. Konst. rb art. 11(4) (July 12, 1991).
22. C.E. arts. 22 (2) and (5). The statute 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 certain 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 Militant Democracy, supra note 7, at 133-156
23. see also Leslie Turano, Spain: Banning Political Parties as a Response to Basque Terrorism, 1 Int'l J. Const. L. (I-CON) 730 (2003).
24. Lawless v. Ireland (No. 3), 1 Eur. H.r. Rep. 15 (1961).
25. McCann and others v. UK, 21 Eur. H.r. Rep. 97 (1995).
26. 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.
27. See, e.g., Kopp v. Switzerland, 27 Eur. H.r. Rep. 91 (1998)
28. P.G. and J.H. v. United Kingdom, App. No. 44787/98, Judgment of Sept. 25, 2001.
29. Incal v. Turkey, 29 Eur. H.r. Rep. 449 (1998).
30. 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].
31. Brannigan and McBride v. United Kingdom, 17 Eur. H.r. Rep. 539 (1993).
32. K.D.P. v. Germany, 1 Y.B. Eur. Conv. H.R. 222 (Eur. Comm'n on H.R.).
33. See also X v. Austria, 26 Eur. Comm'n H.R. Dec. & Rep. 244 (1982)
34. Piperno v. Italy, App. No. 155510/89, 2 Dec 1992 (Commission Report).
35. For a classic articulation of the concept, see John Griffiths, What is legal pluralism?, 24 J. Leg. Pluralism 1.
36. For an insightful exploration of religious legal pluralism, see Perry Dane, The Maps of Sovereignty: A Meditation, 12 Cardozo L. Rev. 959.
37. 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.
38. See generally Protection of Minority Rights Through Bilateral Treaties: The Case of Central and Eastern Europe (Arie Bloed & Pieter van Dijk eds., Kluwer 1999).
39. 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."
40. 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).
41. For detail, see the essays collected in Gypsy Law: Romani Legal Traditions and Culture (Walter O. Weyrauch ed., Univ. Cal. Press. 2001).
42. 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).
43. Art. 14.
44. Arts. 10, 11, 9, 8, and 14, and Art. 3, Protocol 1, respectively.
45. See e.g., Belgian Linguistic Case (1967 and 1968) 1 Eur.H.R. Rep. 241, 252 (1967-1968)
46. G. & E. v. Norway, App. Nos. 9278/81 and 9415/81, 35 Eur. Comm'n H.R. Dec. Rep. 30 (1985)
47. S. v. Sweden, App. No. 16226/90, 2 Sept. 1991 (Commission report)
48. Sürek v. Turkey (No.1), App. No. 26682/95 (1999)
49. Könkämä and 38 other Saami Villages v. Sweden, App. No. 27033/95
50. Buckley v. United Kingdom, 23 Eur. H.R. Rep. 101 (1996)
51. Hasan & Chaush v. Bulgaria, App. No. 30985/96 (2000)
52. Serif v. Greece, 31 Eur.H.R. Rep. 56 (1999).
53. 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).
54. Thlimmenos v. Greece, App. No. 34369/97,31 Eur. H.R. Rep. 411 (2000), at para. 44.
55. 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.
56. See Jane Wright, The OSCE and the Protection of Minority Rights, 18 Hum. Rts. Q. 190 (1996).
57. 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).
58. 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)
59. 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.
60. 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).
61. For an extended defense of democratic government in these terms, see Ian Shapiro, The State of Democratic Theory (Princeton Univ. Press 2003).
62. Diane Orentlicher, Separation Anxiety: International Responses to Ethno-Separatist Claims 23 Yale J. Int'l L. 1 22 (1998).
63. Namibia [1971] I.C.J. 16, at 31
64. Western Sahara, [1975] L.C.J. at 31.
65. 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. I 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).
66. I take this insight from the work of Martti Koskenniemi. See Martti Koskenniemi, National Self-Determination 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").
67. 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).
68. Reference re Secession of Québec, [1998] 2 S.C.R. 217.
69. Id.
70. See also Frederic Kirgis Jr., The Degrees of Self-Determination in the United Nations Era, 88 Am. J. Int'l. L. 304, 306 (1994) ("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").
71. 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.
72. 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).
73. Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal 348 (Cambridge Univ. Press 1998) (arguing that internal self-determination bridges this gulf)
74. 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")
75. see also Frederik Harhoff, Institutions of Autonomy, 55 Nordic J. Int'l L. 31, 31-40 (1986) (exploring link between "autonomy" and "self-determination").
76. 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").
77. 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").
78. 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."
79. J.G.A. Diergaart v. Namibia, CCPR/C/69/D/760/1996 (July 25, 2000), para. 10.3
80. 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."
81. For a review of the committee's views on article 27, see Gaetano Pentassuglia, Minorities in International Law 97-111 (Council of Europe 2002).
82. See generally Cassese, supra note 49.
83. 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)
84. see Allan Rosas, Internal Self-Determination, 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.
85. 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").
86. 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).
87. 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).
88. See also Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Univ. Pa. Press 1996).
89. For analysis of minority rights in international law, see Patrick Thornberry, International Law and the Rights of Minorities (Clarendon 1991).
90. Pfersmann, Shaping Militant Democracy, supra note 7, at 68.
91. United Communist Party of Turkey and Others v. Turkey, App. No. 133/1996/ 752/951, 26 Eur. H.R. Rep. 121 (1998).
92. 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.
93. Id. at 154.
94. Socialist Party and Others v. Turkey, App. No. 20/1997/804/1007, 27 Eur.H.R. Rep. 51 (1998).
95. Id. at 85.
96. Freedom and Democracy Party (OZDEP) v. Turkey, App. No. 23885/94, Judgment of December 8, 1999.
97. Yazar and others v. Turkey, App. Nos. 22723/93, 22724/93 and 22725/93, Judgment of April 9, 2002, at para. 49.
98. 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 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."
99. 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).
100. Refah, supra note 2.
101. Id. at para. 99.
102. 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.").
103. 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."
104. Refah, supra note 2, at para. 119 (quoting the chamber court, at para. 70).
105. 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").
106. 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).
107. Refah, supra note 2, at para. 119 (quoting the chamber court, at para. 70).
108. 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
109. Kevin Boyle, Human Rights, Religion and Democracy: The Refah Party Case, 1 Essex Hum. Rts. L. Rev. 1 (2004).
110. Refah, supra note 2, at para. 98.
111. 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).
112. See also Gregory H. Fox, The Right to Political Participation, 17 Yale J. Int'l Law 539 (1992).
113. Refah, supra note 2, at para. 45.
114. Id. at para. 87.
115. Id. at para. 123.
116. Id. at para. 123 (quoting the Chamber court, at para. 72).
117. 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).
118. Refah, supra note 2, at para. 108.
119. See, e.g., Boyle, supra note 74
120. Moe, supra note 74.
121. See Cass R. Sunstein, Fear and Liberty, 71 Soc. Res. 967, 983 (2004).
122. Refah, supra note 2, at para. 102 (quoting the Chamber's judgment, at para. 81).
123. Id. at para. 104.
124. 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."
125. 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.
126. Id. at para. 104.
127. 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).
128. Sunstein, Fear and Liberty, supra note 84, at 977.