Abstract

The 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.

In Part I of this paper I will concentrate 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. In Part II I will explore 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, I will, in the general introduction and in the conclusion of this paper, shed specific light on the rule of law as a philosophical doctrine.

Introduction

Swiss citizens are responsible for determining justice between themselves. Conceivably, ‘justice is nothing other than the advantage of the stronger’.[1] This perception of justice as a concept of absolute power is anything but new or unique. Thrasymachus, a sophist of Ancient Greece, stated that each kind of regime (whether ochlocratic, democratic, or oligarchic) makes laws in the interests of its ruling party and they declare what they have made – to their own advantage – to be just for their subjects. Because of this gloss on the ‘stronger’ Thrasymachus' position has often been interpreted as: ‘justice in a given community is whatever the laws of that community dictate’.[2]

If we mirror this philosophical position, it can be deduced that on theoretical terms the Swiss legal system is similar to Thrasymachus' ideas on justice because not only are citizens capable of overturning every new law demanded by the cabinet or approved by parliament, but they also have the ability and power to initiate new law as long as there is no ‘stronger’ regime than their own.

In this regard, how could it ever be advisable for the General Assembly to restrict people’s sovereignty by widening the scope of the material bars on popular initiatives? Moreover, how and to what extent could the relationship between domestic law and international law still matter?

There is a second, no less persuasive, philosophical position. Aristotle stated in The Politics that ‘the rule of law is preferable to that of any individual’.[3]  The appeal of law as a control on naked power has been apparent throughout legal history. At a philosophical level, the natural law tradition, whether secular or theological, instructs that the power of the people is not absolute but rather is controlled and limited by the requirements of a ‘higher law’.

Switzerland’s legal system by means of popular initiatives has an inclination towards both schools of thought. However, the new initiative to ban minarets drives the Swiss approach into a philosophical vacuum. The people are regarded as the ultimate authority on justice, which also means that the Swiss nation is endowed with the right of self-determination. Regardless of that, however, there are international human rights commitments which by Western standards are seen as the ‘higher law’, expressing a more permanent position and corresponding to that which is always good and equitable.

So, when contemplating these two archaic and extreme positions the question arises as to whether there is, indeed, a theoretical way out of this divergence.

Human Rights versus the Right of Self-Determination

Original Interpretation of Jus Cogens

Article 194(2) of the Swiss Federal Constitution stipulates among other things that a ‘partial revision may not violate peremptory norms of international law’.[4] Thus, peremptory norms –also known as jus cogens – may act, as I have already indicated, as a material bar to the content of popular initiatives. However, from the wording of Article 194(2) it is unclear what ‘peremptory norms of international law’ actually constitute.

According to the classic approach laid down in Article 53 of the Vienna Convention on the Law of Treaties of 1969, they are rules of customary law which cannot be set aside by treaty or acquiescence but only by the development of a subsequent customary rule to contrary effect. In addition, peremptory norms must be accepted and recognized by the international community of states.[5]

Nonetheless, this very broad definition of the term still does not provide much clarity of the matter in question since there is no simple criterion by which such an indelible rule of international law can be identified.

The International Law Commission in its commentary on Article 53 of the Vienna Convention on the Law of Treaties together with the decisions of the International Court of Justice provide further guidance. The Commission stated that ‘it is not the form of a general rule of international law, but the particular nature of the subject-matter with which it deals that may give it the character of jus cogens’.[6] The International Court of Justice held that the ‘subject-matters’ that may be regarded as jus cogens are: the prohibition of the use of force,[7] the law on genocide, the principle of racial non-discrimination,[8] crimes against humanity, and the rules prohibiting trade in slaves and piracy.[9] Further, the principle of permanent sovereignty of natural resources[10] and the principle of self-determination[11] enjoy the special status of jus cogens in the Court’s decisions.

Developments in the Interpretation of Jus Cogens

In 1989 the Swiss Federal Council (henceforth ‘Federal Council’) in its official comment to the Vienna Convention on the Law of Treaties affirmed the above-mentioned non-exhaustive list of jus cogens and declared it to be the irreducible core of international law.[12] In accordance with Swiss humanitarian tradition, the Federal Council also considered that specific norms of international humanitarian law qualified as jus cogens.[13]

However, more recent interpretations go further than the classic approach. The Federal Council wrote in its official comment on the total revision of the Federal Constitution of 1999 that ‘at least’ peremptory norms of international law must function as a material bar to constitutional amendments.[14] According to the Council, it is the combined efforts of judicial and academic construction that must develop the actual scope of jus cogens.[15] From this it may be inferred that the Government is fully aware of both the blessing and the curse of the Swiss direct democracy system.[16]

The Federal Supreme Court decided in the Sener case[17] that the material content of Article 3 of the European Convention on Human Rights[18] and Article 3(2) of the European Convention on Extradition[19] is to be regarded as jus cogens.[20] In various other decisions[21] the Court further held that some of an extradited person’s guarantees as stipulated by the Federal Act on International Assistance in Criminal Matters[22] are elements of an international ordre public which any state must comply with.

In addition, some of the most respected Swiss academic commentators speak out for a progressive approach to jus cogens interpretation. Heinrich Koller, for instance, says ‘Switzerland must abide by international law because both systems together form a unity’.[23] The editorial board of the renowned Revue de Droit Suisse agrees with this viewpoint. The board stipulates that there are persuasive arguments for peremptory norms of international law to be understood as a self-contained concept of the Swiss Federal Constitution.[24] To them this is particularly the case where ‘it appears that the material content of popular initiatives is subject to ill-considered draftsmanship because the drafters are affected by particular emotions that merely last for snatches’.[25] The position of the respected jurist Giusep Nay might be even more far-reaching. He says that from an objective viewpoint jus cogens is to be read and given effect in association with fundamental norms of international law.[26] According to Nay, this interpretation means that any state action must be in accordance with fundamental material justice, and applies not only to interpretations of applicable law, but also to new law.[27]

Swiss academics are not alone in holding the view that the scope of jus cogens may extend beyond the classic understanding of the term. International rules on jus cogens do not seem to be in a vacuum; rather they are subject to certain historical conditions and have the purpose of achieving specific objectives.[28] At the Vienna Conference in 1969 there were several proposals that gave the concept of jus cogens a more clearly identified content. For instance, the representative of the Holy See suggested that a principle of interpretation such as the primacy of human rights would give the concept of jus cogens a more concrete value.[29] Other representatives stated that jus cogens consist of the fundamental principles of international law.[30]

In recent years the U.N. Human Rights Committee (hereafter ‘HRC’) in its General Comments seems to have adopted the proposals on interpretation made – but not since applied – at the Vienna Conference in 1969.[31] In light of the following considerations it is all the more noteworthy that Switzerland officially recognized the HRC’s competences by declaration.[32] In addition, Article 40(4) of the Covenant on Civil and Political Rights (henceforth ‘ICCPR’)of 1966[33] provides that the HRC ‘shall study the reports’ submitted by States and ‘shall transmit its reports, and such General Comments as it may consider appropriate’ to the States.[34]

In view of this capacity, in General Comment 24[35] the HRC held that some of the fundamental norms in the ICCPR possess the legal character and quality of jus cogens. According to the HRC, these peremptory norms include, inter alia, the prohibition ‘to deny freedom of thought, conscience and religion’ and the prohibition ‘to deny to minorities the right to enjoy their own culture’ and to ‘profess their own religion’.[36]

Although Article 18(3) of the ICCPR permits some restrictions on the freedom to manifest religion or belief, the freedom from coercion to have or adopt a religion or belief cannot be limited. In addition to this, the HRC observed in its General Comment 22: ‘in interpreting the scope of permissible limitation clauses, State parties should proceed from the need to protect the rights guaranteed under the ICCPR, including the right to equality and non-discrimination’.[37] Moreover, ‘restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner’.[38] Consequently, ‘if a religion is recognized as a State religion, or established as a traditional religion [as it is the case in Switzerland][39] this shall not result in any impairment of the enjoyment of the rights under the ICCPRR, including Article 18 [the right to freedom of thought, conscience and religion] and 27 [the rights of minorities], nor in any discrimination against adherents to other religions. In particular, certain measures discriminating against the latter, such as measures imposing special restrictions on the practice of other faiths’.[40] According to the HRC, the word ‘practice’ encompasses ‘a broad range of acts’, which means that not only does the concept of ‘practice’ extend to ‘ritual and ceremonial acts giving direct expression to belief, but various practices integral to such acts also’. The human rights body in its General Comment 22 expressly mentions a non-exhaustive list of integral acts including the ‘right to build places of worship’.[41]

All of this in a nutshell can be interpreted to mean that in the view of the HRC the right to freedom of thought, conscience and religion,[42] in association with the rights of minorities,[43] and the right to non-discrimination[44] are, under certain circumstances,[45] to be read and given the same effect in form and quality as jus cogens. Thus, from this perspective and the theological interpretation approach ordinarily applied in international human rights law,[46] it seems most likely that a nationwide ban on minarets – which systematically seeks to discriminate against a specific religion – would violate jus cogens.

Challenges from the Right of Self-Determination

However, the line of reasoning above is not indisputable. People have a right of self-determination.[47] This right was given prominence in the ICCPR. According to Article 1(1), self-determination means that ‘all people have a right to freely determine their political status and freely pursue their economic, social and cultural development’.[48] This collective liberty regards, for instance, the respect of the international community towards the internal affairs of a country (such as political, religious, or linguistic elements) which have evolved over a long period of time.[49] Whether interference originates from a State or in the form of an international body representing several States seems irrelevant. The self-determination of peoples contributes to the establishment of friendly relations through understanding.[50]

In Switzerland it is the Supreme Court’s Schubert Principle that appears to reflect the domestic dimension of the right of external self-determination. In the Schubert case[51] the Court decided that it is to be assumed that the federal lawmaker intends to abide by the rules of international treaties, unless it deliberately enacts domestic law which conflicts with such.

The HRC’s interpretation and qualification of the rights and freedoms discussed above seem at variance with the legal qualification of similar rights guaranteed by the Swiss Federal Constitution.

For instance, the right to freedom of religion and belief as entrenched in Article 15 of the Federal Constitution may justifiably be limited.[52] Only the material content of paragraph 4 of Article 15 is an exception to this general rule. According to paragraph 4, one possesses a negative right not to be forced to join or belong to a religious community, to participate in a religious act, or to follow religious teachings. In Switzerland it is this provision which qualifies the material irreducible core of the right to freedom of religion or belief. Because of this the protected guarantees under paragraph 4 may not be vitiated. The same provision is believed to embrace a further, not expressly stated, irreducible aspect, namely, the freedom from any compulsion to think, to change an opinion or conviction.[53] This fundamental freedom of the forum internum cannot be made subject to any limitation under Article 36 of the Federal Constitution.

The material content of Article 15(4) of the Federal Constitution seems in comparison with the right to freedom from coercion to have or adopt a religion or belief under Article 18(3) of the ICCPR similarly protected. However, the Federal Supreme Court has not yet had the opportunity to decide whether the right to ‘practice’ a religion or belief[54] in association with the right to non-discrimination[55] and the rights of minorities[56] could under certain circumstances qualify as being at the irreducible core of Swiss constitutionally entrenched law.[57] From a dogmatic perspective it is, thus, difficult to reconcile the HRC’s interpretation of jus cogens with the Swiss domestic construction of irreducible rights. It appears, therefore, that domestically the right to build minarets has thus far not been regarded as possessing the quality and form of a right which cannot be restricted.

In this sense Paul Richli, another respected Swiss academic commentator, posed the critical question: ‘How shall the right to practice one’s belief - whether in form of a church tower or a minaret - be considered as a peremptory norm of international law, when, for instance, the death penalty is not?’[58] A further question that can similarly be raised is the following: Why should discrimination against a particular religious minority be regarded as jus cogens when discrimination against a specific gender is not? The commentator Etienne Grisel aptly notes: ‘Les Etats sont ainsi, en tout temps, habilités à modifier leurs desseins et à réviser les règles internationales. Par suite, ils ne sauraient être liés par des dispositions impératives qui interdiraient tout évolution. La réalité même du jus cogens est donc pour le moins douteuse, et les références données par le Conseil fédéral sont loin d’en établir l’existence’.[59]

To sum up, by considering the right of self-determination on the one hand, and human rights commitments on the other, the likelihood is that strong legal arguments can be found both for and against the question of the validity of this popular initiative. Because of this it is unclear which of the two approaches should prevail. And when we turn our attention back to the philosophical rhetoric used in the introduction to this article it can – in preliminary terms – be concluded that neither the positivist approach of Thrasymachus nor the moralistic approach of Aristotle proves to be superior. Because of this classic impasse the question of whether it is advisable for the General Assembly to make concessions to the people’s sovereignty by widening the traditional scope of the material bars to popular initiatives cannot – at this stage – be answered. Nonetheless, from the above legal assessment a specific and important point of certainty has quietly evolved. It can be said that the decision to hold the proposed ban on minarets as valid is equally as legal as holding it invalid. In other words, it means that the General Assembly can decide either way, for the right of self-determination or for the widening of the scope of jus cogens, and its decision will be in line with the positions described above. Why this claim must be regarded as incomplete will be shown by considering the legal implications of a possible ban on minarets.

On the Legal Implications of a Possible Ban

Permissibility of Reservations

The question of whether the possible ban on minarets breaches the material content of jus cogens can for this part be left open. Nonetheless, a law that bans minarets is very likely to interfere with the right to freedom of thought, conscience and religion under Article 18; the right to non-discrimination under Articles 2(1), 3, and 26; and the rights of minorities under Article 27 of the ICCPR.[60] At first glance there is a solution to this.

Opting out of particular human rights responsibilities may be possible via the concept of reservations. In other words, reservations exclude the duty to provide and guarantee particular rights in the ICCPR.[61] Upon accession Switzerland made several reservations[62] to the ICCPR. Relevant here is the reservation concerning Article 26 only. The reservation states that ‘the equality of all persons before the law and their entitlement without any discrimination to the equal protection of the law shall be guaranteed only in connection with other rights contained in the present Covenant’.[63] This reservation has never been withdrawn and is therefore still in effect. This means that the right to non-discrimination possesses no stand-alone character and must therefore be read and given effect in conjunction with other rights. Yet for Switzerland the rights under the ICCPR develop their full legal capacity.

From this inference the question arises whether it would be permissible to make new reservations to the ICCPR in respect to all the rights discussed above. The HRC in this respect said: ‘The possibility of entering reservations may encourage States which consider that they have difficulties in guaranteeing all the rights in the Covenant none the less to accept the generality of the obligations in that instrument’.[64] The ICCPR neither prohibits reservations nor mentions particular types of permitted reservations,[65] though the matter was discussed extensively during its drafting.[66] The absence of a prohibition on reservations does not, however, imply that any reservation is permitted, as the matter of reservations is governed by international law.[67] Article 19(c) of the Vienna Convention on the Law of Treaties provides the relevant guidance.[68] It stipulates that where a reservation is not prohibited by the treaty or falls within the specified permitted category, a State may make a reservation provided it is not incompatible with the ‘object’ and ‘purpose’ of the treaty.[69]

Naturally, this raises the ever-intriguing question of what the ‘object’ and ‘purpose’ of the Covenant might be. First of all, it has been suggested that Article 4 of the Covenant, the non-derogation clause – which especially applies to the right to freedom of thought, conscience and religion, and the right to non-discrimination[70] – is an indication of its ‘object’ and ‘purpose’.[71]

The HRC observes in its General Comment Nr. 24 firstly: ‘while reservations to particular clauses may be acceptable, a general reservation would not be’.[72] And, secondly, the HRC further stipulates: ‘a reservation to the obligation to respect and ensure the rights, and to do so on a discriminatory basis would not be acceptable’.[73]

Despite the fact that a ban on minarets, if eventually enacted, would be a specific and not a general ban, it appears unacceptable because the ban systematically discriminates against the Swiss Muslim community. The content and the scope of such a reservation may not only undermine the effective implementation of the ICCPR, but to a certain extent may even call into question its very raison d’être.[74]

Provided that opting out is not an alternative to overcoming the legal difficulties in question, can the ICCPR be terminated, denunciated, or withdrawn?

Permissibility of Termination

The ICCPR does not contain any provision regarding its termination, nor does it provide for denunciation or withdrawal.[75] As a consequence the possibility of termination, denunciation or withdrawal must be examined by means of the applicable rules of customary international law. The Vienna Convention on the Law of Treaties stipulates in Article 56: ‘A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty’.[76]

The HRC held in its General Comment 26 that the parties to the ICCPR did not admit the possibility of denunciation, withdrawal or termination.[77] By way of comparison the International Convention on the Elimination of All Forms of Racial Discrimination – adopted one year prior to the completion of the drafting of the ICCPR – expressly permits denunciation. It can therefore be concluded that the drafters of the Covenant deliberately intended to exclude the possibility of denunciation.[78] The HRC is therefore firmly of the view that ‘international law does not permit a State which has ratified or acceded or succeeded to the Covenant to denounce it or withdraw from it’.[79]

In Case of Non-Compliance with an ICJ Judgement

According to Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke the provisions of its internal law to justify its failure to conform to a treaty.[80] In the case of Elettronica Sicula the International Court of Justice stated: ‘Compliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty position’.[81]

The International Court of Justice decided in this respect that the priority of international law over domestic law prevails even when a domestic lawmaker deliberately violates international law.[82] Although this ruling contradicts the Federal Supreme Court’s Schubert principle, it seems to be in line with the Federal Constitution, which reads: ‘the Confederation and the Cantons shall respect international law’.[83] Moreover, Switzerland had declared on 28 July 1948 that it recognized the compulsory jurisdiction of the International Court of Justice in all legal disputes concerning:[84]

Thus, by assuming that a ban interferes with universal human rights protected by the ICCPR, and by considering the fact that reservations to these rights are very likely to be impermissible, and the Covenant cannot be terminated, it is only reasonable to conclude that a constitutionally entrenched ban on minarets may cause legal proceedings against Switzerland to be initiated at the U.N. level. If Switzerland failed to perform the obligations incumbent upon it under the judgement of the International Court, the other State party may have recourse to the Security Council, which may, if it deems it necessary, make recommendations on or decide upon the measures to be taken to give effect to the judgement.[85]

Concluding Remarks

Considerations in the Narrow Sense

In Part I I drew the inference that when giving heed to an isolated view – which merely focuses on the widening of jus cogens versus the right of self-determination – it is as legal to hold the popular initiative to ban minarets valid as to hold it invalid. The solution to this deadlock lies, arguably, in the considerations made in Part II. In other words, it is the thesis of this article that the references made in Part II generate persuasive arguments for the taking of concrete decisions.

On 18 June 1992 Switzerland ratified the International ICCPR. The enactment of the ICCPR was never challenged despite the fact that via a referendum the people would have been able to do so.[86] The Sovereign created by implied consent legal obligations to the international community. Moreover, Switzerland declared its recognition of the HRC’s competences, as it had recognized, many years before, the compulsory jurisdiction of the International Court of Justice. Therefore, the citizens of Switzerland should come to terms with the international interpretation that reservations, and derogations may not be made and that the ICCPR may not be terminated. These findings do not directly contribute to the legal construction of jus cogens, but a fortiori provide tangible arguments to legitimize the decision to hold the initiative invalid, and thus void. The ‘prospective effect approach’ introduced here should not be interpreted as meaning that every interference with rights encompassed by the ICCPR provides such compelling indication for a subsequent invalidation of popular initiatives, but suggests that each individual popular initiative should be assessed on its own merits including a conjectural analysis of its legal implications if enacted.

On the question of whether such function should be within the powers of the Swiss General Assembly some of the leading Swiss academic commentators have already voiced their opinion. According to the editorial board of the Revue de Droit Suisse, the General Assembly would not be the proper institution to provide such legal vetting because the power to guarantee the rule of law lies with the judiciary and not the legislature. For these reasons it would be necessary to seek judicial review in the Federal Supreme Court.[87]

Plausibly, the introduction of this new procedure will not challenge the authority of the Swiss Sovereign at its foundation because an all-embracing viewpoint reveals that the locus of Swiss citizens’ action would be limited only to the scope of the self-imposed international laws. So the actual bar to their power lies in the will to comply with human rights. This spirit seems traditionally to be reflected in the Preamble to the Swiss Federal Constitution, which reads: ‘we are mindful of our responsibility towards creation; resolve to renew our alliance to strengthen liberty and democracy, independence and peace in solidarity and openness towards the world; are determined to live our diversity in unity respecting one another’.[88]

Broader Considerations

This conclusion can also be transformed into the language adopted in the introduction to this paper. In the first instance the grounds for the limitation of the Sovereign’s power does not derive from ‘higher law’ expressing a more permanent position and corresponding to that which is always good and equitable, but presumably from Thrasymachus’ philosophy that holds: ‘justice in a given community is whatever the laws of that community dictate’. It is this position that prevails since the Sovereign accepted that the greater ‘community’ is not simply confined to its territory but extends to a web of inter-State exchanges of mutual obligations.

In the second instance, however, morals in the form and quality of human rights come into play. For the advantage of the ‘greater community’ Swiss citizens should be able and willing to construct the actual meaning of a particular human rights provision. Their willingness to do so may depend on two factors. Firstly, they should be aware of the possible implications of any particular popular initiative. Secondly, they should understand that the protection of international human rights law depends on the proper exercise of citizenship rights, both individually and collectively.[89] The Swiss should be taught the meaning and scope of human rights. They should be required to see and comprehend the necessity of such fundamental values. Simultaneously they are required to adopt a critical position towards human rights, for instance, in that lessons are learned from history.

Asma Jahangir, the U.N. Special Rapporteur on Freedom of religion or belief, wisely said: ‘Freedom of religion and belief is not black and white. It deals with people and their faith. It is in the emotional realm rather than cut and dry rules and regulations’.[90] This statement may imply that a ban on minarets cannot primarily be about law; rather it concerns the feelings of the people. Specific attention should therefore be given to disagreements between Muslims and non-Muslims living in Switzerland and the actual causes of conflict.

In this sense the question arises as to what are the factors that make a disagreement become serious and escalate. The majority of today’s conflicts arise between different ethnic, religious, and economic groups. They escalate not only because of unsatisfied material desires,[91] the unequal separation of powers, and an inequitable access to resources, but also because of an insufficiency in, or a lack of, identity, acceptance, autonomy and dignity.[92] Culture can play a pivotal role when it comes to serious disagreements. Not long ago, culture was interpreted to mean the special achievements of a nation in art, music and architecture. Nowadays culture can be defined as a system of mutual belief, religion, common practices and norms which vary from one nation or region to another.[93] American anthropologist Melville Jean Herskovits described culture as ‘the man-made part of the human environment’.[94]

The capability of self-reflection and the consciousness of one’s own mortality[95] can be seen as a continuous source of existential anguish.[96] According to the Terror Management Theory,[97] culture in the modern sense diminishes this psychological terror by providing meaning, organization and continuity to men and women. Compliance with particular cultural values and norms enhances the feeling of security and self-esteem, provided that the individual is capable of living in accordance with the cultural standards of his or her community. Belief in the rightness of these cultural values and standards creates the conviction to live a reasonable and meaningful life. Because of this, men and women strive to have their cultural worldview confirmed by others, thereby receiving the community’s estimation and respect.

However, whenever one’s religion or belief is threatened by the religion or belief of another individual, one’s self-respect is endangered as well. In such circumstances people not only endeavour to deny or devalue the importance of the other worldview, but try to controvert those ideas and opinions. Differing worldviews between two persons or a group of individuals may for these reasons produce anger and hatred, and in the worst scenario create the desire for the complete destruction of others’ existence.[98]

The question of paramount importance which arises after following the above line of reasoning is: how can the escalation of attacks on people’s perceptions and convictions be kept within the bounds of a State’s internal and external security, stability and peace? According to the German philosopher Friedrich Hegel, the State is required to regulate between individuals. To him it is Anerkennung[99] through reasoning which creates the willingness of individuals to tolerate a difficult or unpleasant situation. However, Immanuel Kant was of the opinion that it is not primarily the State’s duty to encourage and control the willingness to tolerate, but to leave it up to the people to reason and determine for themselves. To him, individuals understand through their autonomous reasoning ‘to act only according to that maxim by which they can at the same time will that it would become a universal law’.[100]

If we combined the two philosophies in a synthesis, it could be said in general terms that the State should not interfere but allow reason to prevail as long as people understand that their actions are to be taken in ways that would be equitable to them if taken by others. However, at a time of religious and cultural frictions, and in instances where conflicts are even exploited for violent ends, it must be concluded that people are to a certain extent unable to regulate themselves. It is thus the State’s obligation to intervene in this sphere and re-establish respectfulness, stability, and justness among the people.

Are State institutions able to overcome such difficulties on their own? In other words, can they encourage citizens to find their inner willingness to accept varying cultural and religious traditions and truths?

In thinking about our interrelated, interdependent and intercultural world, it seems unlikely that dialogue and its accompanying actions on a purely secular basis will be sufficient. In order to overcome the difficulties of the 21st Century, intercultural and inter-religious exchange is required. The interest in discovering human richness in thought and appreciation should not, therefore, be limited to a mundane level, but be taken onto a spiritual one. Personally speaking, it is time not only to promote Hegel’s Anerkennung and Kant’s Categorical Imperative, but to simultaneously leap forward in creating a common desire for intercultural as well as inter-religious candour, veracitas, respectfulness, and even admiration. It will be difficult, but it is the challenge we should finally face.

Summary

The Swiss People’s Party and the Federal Democratic Union of Switzerland have launched a popular initiative which seeks a ban on minarets at a constitutional level. This initiative is controversial in its nature because on the one hand Swiss citizens are sovereign and act as the ultimate supreme authority, and on the other, they must respect material bars – deriving from human rights commitments – to Swiss constitutional amendments. Not surprisingly, these material bars to absolute sovereignty, also known as jus cogens, are fiercely contested because they mean either more or less powers to the citizens and, indirectly, to the political parties.

Recent interpretations of jus cogens go further than the classic, and today little disputed, approach. For instance, the Swiss Federal Council wrote in its official comment on the total revision of the Federal Constitution of 1999 that ‘at least’ peremptory norms of international law must function as a material bar to constitutional amendments. And the U.N. Human Rights Committee opined in its 24th general comment that some of the fundamental norms in the International Covenant on Civil and Political Rights possess the legal character and quality of jus cogens. According to the HRC, these peremptory norms include, inter alia, the prohibition ‘to deny freedom of thought, conscience and religion’, as well as the prohibition ‘to deny to minorities the right to enjoy their own culture’, and to ‘profess their own religion’.

But proponents of the ban on minarets argue that Swiss citizens have a right of self-determination in that ‘all people have a right to freely determine their political status and freely pursue their economic, social and cultural development’. This collective liberty regards, for instance, the respect of the international community towards the internal affairs of a country (such as political, religious, or linguistic elements) which have evolved over a long period of time.

When balancing both internationally accepted legal positions against each other it is unclear which of the two should prevail. What appears to be certain, however, is the fact that under the above isolated viewpoints the decision to hold the popular initiative to ban minarets as valid is equally as legal as holding it to be invalid. The solution to this legal deadlock lies, arguably, in further consideration of the probable legal implications of such a ban. In this respect the thesis assumes that if a ban on minarets was ever enacted, it would be incompatible with international human rights commitments. This is arguably the case because reservations and derogations to the International Covenant are very likely to be impermissible and a termination of the Covenant unacceptable. Although these findings do not directly contribute to the legal construction of jus cogens, they a fortiori provide tangible arguments to legitimize the decision to hold the initiative invalid, and thus void. This ‘prospective effect approach’ should not be interpreted as meaning that every interference with rights encompassed by the International Covenant of Civil and Political Rights provides such compelling indication for a subsequent invalidation of popular initiatives, rather it suggests that each individual popular initiative should be assessed on its own merits including a conjectural analysis of its legal implications if enacted.

The solution put forward in this paper has as its objective participation in the guarantee and development of a just, respectful, and secure Swiss society.