Banning of Minarets: Addressing the Validity of a Controversial Swiss Popular Initiative

2008 ◽  
Vol 3 (2) ◽  
pp. 135-153 ◽  
Author(s):  
Marcel Stüssi
Keyword(s):  
International Law ◽  
Prima Facie ◽  
General Assembly ◽  
Constitutional Amendments ◽  
The People ◽  
The One ◽  
The Right ◽  
Popular Initiative ◽  
Peremptory Norms ◽  
The Relationship

AbstractThe proposal to ban minarets is controversial by its very nature. On the one hand Swiss citizens are sovereign and act as the ultimate supreme authority. By their will they may seek via popular initiative to enact, revoke or alter such, and any, constitutional provision as they see fit. On the other hand there are so-called material bars to Swiss constitutional amendments—such as human rights—arising from the provisions of international law. Not surprisingly, these material bars to absolute sovereignty are fiercely contested because they mean either greater or lesser powers to the citizen and, indirectly, to the political parties. The popular initiative to ban minarets raises not only questions in respect of the relationship between domestic and international law, but also appears to challenge the legal architecture of Switzerland. The initiative may be held invalid by the Swiss General Assembly (henceforth 'General Assembly' or 'Assembly') on the grounds that it breaches the peremptory norms of international law. If this proves to be the case, the Swiss people will not be given the opportunity to vote on it. Arguably, such interference is feasible only if the material bar to initiatives is widened beyond its originally accepted scope. Apparently, the powers of the Swiss Sovereign became thereby unequivocally curbed. The relationship between Swiss domestic law and international law is pivotal also should the General Assembly declare the initiative to be valid. The people would as a consequence of the Assembly's decision possess the right to vote either for or against the initiative. But regardless of the poplar vote's outcome, the second option prima facie implies that the sovereignty of the Swiss citizens has been upheld, and concessions need only to be made by those who are either for or against the proposed ban. Yet in its international context the matter is more complex and more far-reaching than that. The first part of this paper concentrates on the question of whether it is advisable for the General Assembly to compromise the people's sovereignty by widening the original scope of peremptory norms. The second part explores what a popular vote in favour of the ban on minarets could mean in law. In order to raise the awareness of the subject matter beyond its legal dimension, the introduction and conclusion of this paper will shed specific light on the rule of law as a philosophical doctrine.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

Decolonization in International Law

2019 ◽  
Author(s):  
Mai Taha
Keyword(s):  
International Economic ◽  
International Law ◽  
Third World ◽  
International Economic Order ◽  
Self Determination ◽  
Economic Order ◽  
General Assembly ◽  
The People ◽  
The Right ◽  
The Third World

In Gillo Pontecorvo’s evocative film The Battle of Algiers (1966), viewers reach the conclusion that the fight against colonialism would not be fought at the UN General Assembly. Decolonization would take place through the organized resistance of colonized people. Still, the 1945 United Nations Charter and the 1948 Universal Declaration of Human Rights provided some legal basis, albeit tenuous, for self-determination. When Third World leaders assembled in the 1955 Bandung Conference, it became clear that the UN needed to shift gears on the question of decolonization. By 1960, and through a show of Asian and African votes at the General Assembly, the Declaration for the Granting of Independence to Colonial Countries and Peoples was adopted, effectively outlawing colonialism and affirming the right of all peoples to self-determination. Afro-Asian solidarity took a different form in the 1966 Tricontinental Conference in Havana, which founded the Organization of Solidarity with the People of Asia, Africa and Latin America. The conference gathered leftist activists and leaders from across the Third World, who would later inspire radical movements and scholarship on decolonization and anticolonial socialism. This would also influence the adoption of the 1974 Declaration on the Establishment of a New International Economic Order and later lead to UNESCO’s series that starts with Mohammed Bedjaoui’s famous overture, Towards a New International Economic Order (1979; cited as Bedjaoui 1979 under the Decolonization “Moment”). This article situates this history within important international-law scholarship on decolonization. First, it introduces different approaches to decolonization and international law; namely, postcolonial, Marxist, feminist, and Indigenous approaches. Second, it highlights seminal texts on international law and the colonial encounter. Third, it focuses on scholarship that captures the spirit of the “decolonization moment” as a political and temporal rupture, but also as a continuity, addressing, fourth, decolonization and neocolonial practices. Finally, this article ends with some of the most important works on international law and settler colonialism in the 21st century.

scholarly journals The One-State as a Demand of International Law: Jus Cogens, Challenging Apartheid and the Legal Validity of Israel

2013 ◽  
Vol 12 (2) ◽  
pp. 181-205
Author(s):  
Oren Ben-Dor
Keyword(s):  
International Law ◽  
International Crime ◽  
Self Determination ◽  
State Recognition ◽  
Democratic State ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
State Of Israel

This article provides the initial contours of an argument that uses International Law to challenge the validity of Israeli apartheid. It challenges the conventional discourse of legal debates on Israel's actions and borders and seeks to link the illegalities of these actions to the validity of an inbuilt Israeli apartheid. The argument also connects the deontological doctrine of peremptory norms of International Law (jus cogens), the right of self-determination and the International Crime of Apartheid to the doctrine of state recognition. It applies these to the State of Israel and the vision of a single democratic state in historic Palestine.

Constituent Power and the Law

2020 ◽  
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Latin American ◽  
Constitutional History ◽  
Constitutional Courts ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
Constitutional Order ◽  
The People ◽  
The Right ◽  
Popular Initiative ◽  
Constitution Making

This book examines the place of the concept of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. It shows that constituent power, even though having historically been associated with extra-legality and violations of the constitutional order, has played important functions in the making of determinations of legal validity. Constitutional courts have employed it to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have recurred to it to defend the legality of the transformation of the constitutional order through procedures not contemplated in the constitution’s amendment rule but considered participatory enough to be seen as equivalent to ‘the people in action’, and these attempts have sometimes been sanctioned by courts. Commentators and citizens have relied on the theory of constituent power to defend the idea that electors have the right to instruct representatives, and that the creation of new constitutions must take place through extra-legislative entities, such as primary assemblies open to all citizens. Several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Building on these findings, the book ultimately develops a distinction between sovereignty and constituent power and argues that even a constitution-making body can be made legally subject to the conditions arising from a constituent referendum.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

scholarly journals Konsep Khilafah Menurut Sayyid Quthb dan Taqiyuddin Al-Nabhani dalam Perspektif Syiasyah Syar’iyyah

PALAPA ◽  
2020 ◽  
Vol 8 (2) ◽  
pp. 244-284
Author(s):  
Nurhadi Nurhadi ◽  
Mawardi Dalimunthe
Keyword(s):  
Islamic Law ◽  
Descriptive Analysis ◽  
Data Sources ◽  
Primary Data ◽  
Legal Basis ◽  
Islamic World ◽  
The People ◽  
Qualitative Descriptive ◽  
The One ◽  
The Right

The purpose of this study is to find out the concept of khilafah according to Sayyid Quthub and Taqiyuddin al-Nabhani, differences and legal basis. This study is a library model, with primary data sources, the Zhilalal-Qur'anic Tafseer and Nizham Al-Hukmi Fi Al-Islam and qualitative descriptive analysis methods. The result is the thought of the concept of khilafah according to sayyid Quthub: 1). The concept of the ruler / caliph, that who becomes the ruler of the choice of the Muslims, acts in absolute freedom, but that person gets the authority because he constantly applies the law of Allah Almighty. 2). The Islamic government system, the Supra Nasional government (the unity of the entire Islamic world). 3). The pillars of his Islamic government: a). Justice of the ruler; b). People's obedience; c). Consultation between the people and the authorities. Thought of the concept of the Caliphate according to Taqiyuddin Al-Nabhani: 1). The concept of the ruler / caliph is a person who represents the Ummah in government affairs and power and in applying syara 'laws. 2). The system of government is khilafah. 3). The pillars of his Islamic government: a). Sovereignty in the hands of syara '; b). Power of the people; c). To appoint a legal Caliph fardlu for all Muslims; d). Only Khailfah has the right to carry out tabanni (adoption) against syara 'laws; e) The Caliph has the right to make constitutions and all other laws. The differences in the concept of khilafah are both: 1). According to Sayyid Quthub, if the ruler fails, then the ruler can be dismissed if the Muslims are no longer satisfied with him. This statement gives a signal that the people get rid of the rulers who no longer fulfill their functions (zhalim rulers). It is different from the opinion of Taqiyuddin al-Nabhani. An Amir al-mu'minin (Khalifah), even though he is responsible before the people and his representatives, but the people and their representatives are not entitled to dismiss him. Nor will the Caliph be dismissed, except when deviating from Shara law. The one who determined the dismissal was only the Mazhalim court. 2). The system of Islamic government according to Sayyid Quthub does not question any system of government in accordance with the system of conditions of society, but this government is characterized by respect for the supremacy of Islamic law (shari'ah). Whereas According to Taqiyuddin Al-Nabhani that the system of Islamic government is khilafah. 3). The pillars of Islamic government according to Sayyid Quthub and Taqiyyuddin al-Nabhani, points three parts a and b at the above conclusions are: 1). Sayyid Quthub: a). Justice of the ruler; b). People's obedience; c). Consultation between the people and the authorities. 2). Taqiyyuddin al-Nabhani: a). Sovereignty in the hands of syara; b). Power of the people; c). To appoint a legal Caliph fardlu for all Muslims; d). Only Khailfah has the right to do tabanni (adoption) against the laws of shara; e). The Caliph has the right to make constitutions and all other laws. The legal bases for determining the Caliphate according to both: 1). The legal basis for the establishment of the Caliphate according to Sayyid Quthub: 1). Ruler, Qur'an Surah (2) al-Baqarah verse 30; 2). Islamic Government System, Qur'an Surah (24) an-Nur verse 55; 3). Pillars of Islamic Government, Qur'an Surah (4) an-Nisa 'verse 58. 2). The legal basis for the establishment of the Caliphate according to Taqiyyuddin al-Nabhani: 1). Ruler, hadith of Muslim history from Abu Said Al khudri, Hadith no. 1853 and Muslims from Abdullah Bin Amru Bin Ash, Hadith no. 1844; 2). Islamic Government System, Al-Qur'an surah an-Nisa '(4) verse 59, an-Nisa' (4) verse 65. Muslim, saheeh Muslim, volumes, 3 pp., 1459 and 1480; 3). Islamic Pillars of Government al-Qur'an surah An-Nisa (3) verse 65, and Surah An-Nisa (3) verses': 5.

scholarly journals RAIKY CULTURE IN THE MIDDLE DNIEPER

2021 ◽  
Vol 40 (3) ◽  
pp. 155-168
Author(s):  
D. G. Diachenko
Keyword(s):  
Material Culture ◽  
Rapid Development ◽  
Left Bank ◽  
Significant Development ◽  
Two Cultures ◽  
The People ◽  
The Rich ◽  
The Right ◽  
The Relationship ◽  
Numerical Advantage

The paper is devoted to the Raiky culture in the Middle Dnieper. It reveals major issues of the phenomenon of Raiky culture and their possible solutions considering the achievements of Ukrainian archeologists in this field. The genesis, chronology and features of the development of material culture of the Raiky sites in the 8th—9th centuries of the right-bank of the Dnieper are analyzed. In general the existence of the Raiky culture in the Middle Dnieper region can be described as follows. It was formed in first half of the 8th century in the Tiasmyn basin. The first wheel-made pottery has begun to manufacture quite early, from the mid-8th century (probably at the beginning of the third quarter). At the first stage, the early vessels have imitated the hand-made Raiky forms as well as the Saltovo-Mayaki imported vessels. Significant development of the material culture occurs during the second half of the 8th century. At the same time, the movement of the people of Raiky culture and the population of the sites of Sаkhnivka type has begun in the northern direction which was marked by the appearance of the Kaniv settlement, Monastyrok, and possibly Buchak. This stage is characterized by the syncretism both in the ceramic complex and in the features of design of the heating structures. Numerous influences of the people of Volyntsevo culture (and through them – of Saltovo-Mayaki one) are recorded in the Raiky culture. It is observed not only in direct imports but also in the efforts of the Raiky population to imitate the pottery of Volyntsevo and Saltovo-Mayaki cultures, however, based on their own technological capabilities. The nature of the relationship between the bearers of these cultures is still interesting. The population of Raiky accepts the imported items of Saltovo-Mayaki and Volyntsevo cultures, tries to imitate high-quality pottery of them, and even one can see the peaceful coexistence of two cultures in one settlement — Monastyrok, Buchak, Stovpyagy. However, the reverse pulses are absent. There are no tendencies to assimilate each other. Although, given the number and size of the sites, the numerical advantage of the Volyntsevo population in the region seems obvious. There is currently no answer to this question. The first third of the 9th century became the watershed. The destruction of the Bytytsia hill-fort and the charred ruins to which most of the settlements of the Volyntsevo culture has turned, is explained in the literature by the early penetration of Scandinavians into the region or as result of the resettlement of Magyars to the Northern Pontic region. In any case, this led to a change in the ethnic and cultural situation in the Dnieper basin. According to some researchers, the surviving part of the population of Volyntsevo culture migrated to the Oka and Don interfluve. For some time, but not for long, the settlements of Raiky culture remained abandoned. Apparently, after the stabilization of situation, the residents have returned which is reflected by the reconstruction of the Kaniv settlement and Monastyrok; in addition, on the latter the fortifications have been erected. The final stage of the existence of culture is characterized by contacts with the area of the left bank of Dnieper, the influx of the items of the «Danube circle», as well as the rapid development of the forms of early wheel-made pottery. The general profiling of vessels and design of the rim became more complicated, the rich linear-wavy ornament which covers practically all surface of the item became characteristic. This suggests the use of a quick hand wheel which has improved the symmetry of the vessels, as well as permitted to create the larger specimens. The evolution of the early wheel-made ceramic complex took place only by a variety of forms, however, technological indicators (dough composition, firing, density and thickness of vessel walls) indicate the actual invariability and sustainability of the manufacture tradition. The discontinuance of the functioning of the latest Raiky sites (Monastyrok and Kaniv settlements) can be attributed as the consequences of the first stages of consolidation of the Rus people in the Middle Dnieper dating to the late 9th — the turn of the 9th—10th centuries.

scholarly journals The Cultural Populism of Iosif I. Kablits (Yuzov) and its Foundations

2020 ◽  
Vol 19 (3) ◽  
pp. 641-653
Author(s):  
Gennadiy N. Mokshin
Keyword(s):  
Social Life ◽  
Cultural Work ◽  
Right Wing ◽  
Social Transformations ◽  
Leading Role ◽  
The People ◽  
Long Time ◽  
The One ◽  
The Right ◽  
The Masses

This article reconstructs the cultural doctrine of the famous publicist of populism (narodnichestvo), I.I. Kablits (Yuzov). To just equate Kablits views with the slogan of yuzovshchina would be a narrow interpretation of his kul'turnichestvo; the slogan is characteristic for extreme right-wing populism during the upsurge of the revolutionary populist movement (narodovol'cheskoe dvizhenie). In 1880, Kablits was the first of the legal populists to pose the question, What is populism? According to the publicist, true narodnichestvo should be based on the principle that the forms of public life of the people must be in conformity with the development level of their consciousness. The author explains Kablits evolution from Bakunism to a peasant-centered narodnichestvo by his interpretation of the reasons for the split between the intelligentsia and the people. Kablits considered them antagonists, and defined the ultimate goal of the narodniki as the liberation of the people from the power of the intellectualbureaucratic minority, the latter supposedly trying to subjugate the life of the masses to its will. The article analyzes the main provisions of Kablits sociocultural concept of social transformations: apolitism, populism, and the initiative of the masses. The article identifies the differences between his program of developing the cultural identity of the people, on the one hand, and other populists' understanding of the tasks of cultural work, on the other. Particular attention is paid to Kablits-Yuzov's attitude towards the problem of educating the masses. Kablits was one of the few Russian populists who opposed the idea that the foundations of the worldview of the people must be changed, arguing that this would eliminate the traditional moral values of the village, including the sense of collectivism. The author assesses how Kablits, the leading publicist of the newspaper Nedelya, contributed to the establishment of a cultural direction in narodnichestvo at the turn of the 1870s and 1880s. According to the author, Kablits played a leading role in shaping the ideology of the right flank of the cultural direction in narodnichestvo. However, the pure populism of Kablits turned out to be too pseudo-scientific, dogmatic and irrational to attract the democratic intelligentsia for a long time; the latter had already become disillusioned with the idea of the people as the creator of new forms of social life.

Hell Disarmed? The Function of Hell in Reformation Spirituality

Numen ◽  
2009 ◽  
Vol 56 (2-3) ◽  
pp. 366-384 ◽  
Author(s):  
Tarald Rasmussen
Keyword(s):  
The Other ◽  
Protestant Reformation ◽  
Late Medieval ◽  
Ars Moriendi ◽  
Religious Importance ◽  
The One ◽  
The Right ◽  
The Relationship ◽  
Medieval Christianity

In Late Medieval Christianity, the concept of hell was closely connected to the sacrament of penance. Hell could be avoided through the right use of penance. And the cleansing sufferings in purgatory could to a certain extent replace the eternal sufferings in hell. The Protestant Reformation rejected purgatory, and returned to a traditional dualistic view of the relationship between heaven and hell. At the same time, hell seems to lose some of its religious importance in early Protestant spirituality. This change is illustrated through a comparison of two central texts belonging more or less to the same genre: on the one hand the famous Late Medieval illustrated Ars moriendi and on the other Luther's Sermon von der Bereitung zum Sterben from 1519.

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