Religion

Human
Rights
Religion and Human Rights 3 (2008) 135–153 www.brill.nl/rhrs

Banning of Minarets: Addressing the Validity of a

Controversial Swiss Popular Initiative

Marcel Stüssi
Researcher and Lecturer in Human Rights Law
University of Lucerne, Switzerland

Abstract
The proposal to ban minarets is controversial by its very nature. On the one hand Swiss citizens are sov-
ereign 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 ‘Assem-
bly’) 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 fea-
sible 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 Assem-
bly 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.

Keywords
Minarets, ban, jus cogens; popular initiatives, Switzerland

I. Introduction

‘Freedom of religion and belief is not black and white.

It deals with people and their faith.
It is in the emotional realm

© Koninklijke Brill NV, Leiden, 2008 DOI: 10.1163/187103208X347376

136 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

rather than cut and dry

rules and regulations’.
(Asma Jahangir, UN Special Rapporteur on Freedom of religion or belief )

On 1 May 2007 a committee made up of members of the Swiss People’s Party

and the Federal Democratic Union of Switzerland launched a popular initiative
which seeks a constitutional ban on minarets. The committee must collect
100,000 votes by 1 November 2008 in order that the initiative can move to the
next stage in the legislative process. Provided that the popular initiative passes all
legal obstacles and it is eventually accepted by the people, it may come into force
in 2010. For now, however, there is a constitutionally enforceable right to build
minarets.
Swiss citizens are responsible for determining justice between themselves. Con-
ceivably, ‘justice is nothing other than the advantage of the stronger’.1 This per-
ception 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
1
Thrasymachus, The Stanford Encyclopedia of Philosophy (Winter 2003 Edition) Edward N. Zalta (ed.)
<http://plato.stanford.edu/> accessed 4 April 2008.
2
Ibid.
3
See Böckenförde Ernst-Wolfgang, Geschichte der Rechts- und Staatsphilosophie (Mohr Siebeck,
Tübingen 2002) p. 97ff.
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 137

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.

II. Human Rights versus the Right of Self-Determination

A. 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 interna-
tional law’ actually constitute.
According to the classic approach laid down in Article 53 of the Vienna Con-
vention 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

4
See Swiss Federal Constitution (Bundesverfassung der Schweizerischen Eidgenossenschaft vom 18.
April 1999, SR 101).
5
See Vienna Convention on the Law of Treaties (Wiener Übereinkommen vom 23. Mai 1969 über
das Recht der Verträge vom 6. Juni 1990, SR 0.111).
6
See Comment of International Law Commission, Y.B.I.L.C., 1966, II, pp. 247–248.
7
See the judgment of the Court in the case concerning military and paramilitary activities in and
against Nicaragua (Merits), ICJ Reports (1986) p. 100–1, para. 190.
138 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

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 resources10 and the principle of self-determina-
tion11 enjoy the special status of jus cogens in the Court’s decisions.

B. 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 humanitar-
ian 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 case17 that the material content
of Article 3 of the European Convention on Human Rights18 and Article 3(2) of

8
See Barcelona Traction case (Second Phase), ICJ Reports (1970) p. 304.
9
See Inter-American Commission of Human Rights in the case of Roach and Pinkerton, decision of
27 March 1987 (OAS General Secretariat) p. 33–6.
10
See General Assembly resolution 1803 (XVII) of 14 December 1962, permanent sovereignty over
natural resources, UNHRC Office <http://www2.ohchr.org/english/law/resources.htm> accessed 10 April
2008.
11
See International Law Commission, Yearbook (1963), ii 187 at 198 (art 37), 211 (art 45), 216
(art 53); See also Arnold Duncan McNair, The Law of Treaties (Hutchinson, Oxford 1989) pp. 213–18.
12
See Federal Council, Official Comment (Botschaft betreffend den Beitritt der Schweiz zur Wiener
Konvention von 1969 über das Recht der Verträge und zur Wiener Konvention von 1986 über das Recht
der Vertrage zwischen Staaten und internationalen Organisationen, BBI 1989 II) pp. 782–3.
13
Ibid.
14
See generally Federal Council, Official Comment (Botschaft über eine neue Bundesverfassung vom
20. November 1996, BBI 149 1996 Bd. I).
15
Ibid.
16
In 1994 the popular initiative ‘against illegal migration’ was the first initiative ever to be held in clear
contradiction of peremptory norms of international law. See Federal Council, official comment (Bot-
schaft betreffend der Eidgenössischen Volksinitiative ‘gegen die illegale Einwanderung’ vom 22. Juni
1994, BBl 1994 III 1486).
17
See Federal Supreme Court Decision (BGE 109 I b 64) p. 72.
18
Article 3 reads: ‘torture, inhuman or degrading treatment or punishment is prohibited’. See Euro-
pean Convention of Human Rights (Konvention zum Schutze der Menschenrechte und Grundfreiheiten,
4. November 1950, Inkrafttreten 28. November 1974, SR 0.101).
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 139

the European Convention on Extradition19 is to be regarded as jus cogens.20 In

various other decisions21 the Court further held that some of an extradited per-
son’s guarantees as stipulated by the Federal Act on International Assistance in
Criminal Matters22 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 particu-
larly the case where ‘it appears that the material content of popular initiatives is
subject to ill-considered draftsmanship because the drafters are affected by par-
ticular 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 objec-
tive viewpoint jus cogens is to be read and given effect in association with funda-
mental 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 his-
torical conditions and have the purpose of achieving specific objectives.28 At the

19
Article 3(2) reads: ‘an extradition request is invalid, provided that a person is prosecuted just because
of his or her race, religion, national or political world view, or if a person’s situation is aggravated because
of one of these grounds’. See European Convention on Extradition (Europäisches Auslieferungsüberein-
kommen of 13. Dezember 1957, Inkrafttreten 20. März 1967, SR 0.353.1).
20
See Federal Council, Official Comment (Botschaft betreffend den Beitritt der Schweiz zur Wiener
Konvention von 1969 über das Recht der Verträge und zur Wiener Konvention von 1986 über das Recht
der Vertrage zwischen Staaten und internationalen Organisationen, BBI 1989 II) p. 783.
21
See Federal Supreme Court Decisions (BGE 111 I b 138) p. 145; see also (BGE 113 I b 175) p. 178;
and (BGE 113 I b 257) p. 273.
22
See Federal Act on International Assistance in Criminal Matters (Bundesgesetz über die Internatio-
nale Rechtshilfe in Strafsachen vom 20. März 1981, SR 351.1).
23
See Frédéric Burnand, ‘Harsche Kritik an Attacken gegen das Völkerrecht’, swissinfo.ch (Berne 14 August
2007) <http://www.swissinfo.ch> accessed 4 April 2008.
24
See Editorial Board composed of: Bernard Dutoit, Stephen V Berti., Pascal Pichonnaz, Anton K
Schnyder., T Daniel hürer, and Hans Peter Walter, ‘Volksinitiativen: Gefahren des Missbrauchs’ (RDS
2007/I).
25
Ibid.
26
See Nay Giusep, ‘Soll der Bund Volksinitiativen ungültig erklären, wenn sie gegen nicht zwingendes
Völkerrecht verstossen?’ (plädoyer 2007/3).
27
Ibid.
28
See Robert Kolb, Théorie du ius cogens international (Presses Universitaires de France, Paris 2001)
p. 31ff.
140 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

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 offi-
cially recognized the HRC’s competences by declaration.32 In addition, Article
40(4) of the Covenant on Civil and Political Rights (henceforth ‘ICCPR’)of
196633 provides that the HRC ‘shall study the reports’ submitted by States and
‘shall transmit its reports, and such General Comments as it may consider appro-
priate’ to the States.34
In view of this capacity, in General Comment 2435 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 prohi-
bition ‘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 free-
dom 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

29
See U.N.C.L.T., Off. Recs., First Session, pp. 258–9, para 75.
30
See the intervention of the representative of the former Czechoslovakia at the 781st meeting of the
Sixth Committee of the United Nations General Assembly (Twenty-fifth session) in Maurizio Ragazzi,
The Concept of International Obligations Erga Omnes (Oxford University Press, Oxford 1997) p. 49ff.
31
See e.g., Human Rights Committee, General Comment 22 of 30 July 1993 (CCPR/C/21/Rev.1/
Add.4); and, General Comment 24 of 4 November 1994 (CCPR/C/21/Rev.1/Add.6).
32
Switzerland officially declared under Article 41 of the International Covenant on Civil and Political
Rights of 1966 that it recognizes the competence of the Human Rights Committee to receive and con-
sider communications in case obligations under the Covenant are not fulfilled. It seems also necessary
to point out that such communications must not be confused with court decisions as they are legally
non-binding. See International Covenant on Civil and Political Rights (Internationale Pakt über bürger-
liche und politische Rechte vom 16. Dezember 1966, Inkrafttreten 18. September 1992, SR 0.103.2,
AS 1993 750).
33
Ibid.
34
See Henry J Steiner., International Human Rights in Context: law, politics, morals: text and materials,
2nd edn. (Oxford University Press, Oxford 2000) p. 731; For a detailed analysis on the relevance of
general comments see Wolfrum Rüdinger and Röben Volker (eds), Developments of International Law in
Treaty Making (Springer, Berlin 2005) p. 560ff.
35
See Human Rights Committee, General Comment Nr. 24 of 4 November 1994 (CCPR/C/21/
Rev.1/Add.6).
36
Ibid. para. 8.
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 141

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 dis-
criminatory manner’.38 Consequently, ‘if a religion is recognized as a State reli-
gion, 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 inte-
gral 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-discrimination44 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.

37
See Human Rights Committee, General Comment Nr. 22 of 30 July 1993 (CCPR/C/21/Rev.1/
Add.4) para. 8.
38
Ibid.
39
In Switzerland there is no wall of separation between church and state except as it regards the Can-
tons of Geneva and Neuchâtel. See Christoph Winzeler, Einführung in das Religionsverfassungsrecht der
Schweiz, (Schulthess, Zürich, Basel, Genf, 2005) p. 117ff.
40
See Human Rights Committee, General Comment Nr. 22 of 30 July 1993 (CCPR/C/21/Rev.1/
Add.4) para. 9.
41
Ibid., para 4.
42
See International Covenant on Civil and Political Rights (Internationale Pakt über bürgerliche und
politische Rechte vom 16. Dezember 1966, Inkrafttreten 18. September 1992, SR 0.103.2, AS 1993
750) art. 18.
43
Ibid., art. 27.
44
Ibid., art. 2(1), 3, 26.
45
Provided that the right to build minarets is interpreted as an irreducible core of the rights dis-
cussed.
46
See Henry J Steiner., International Human Rights in Context: law, politics, morals: text and materials,
2nd edn. (Oxford University Press, Oxford 2000) p. 999ff.
142 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

C. 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 cul-
tural 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 inter-
national body representing several States seems irrelevant. The self-determination
of peoples contributes to the establishment of friendly relations through under-
standing.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 case51 the Court decided that it is to be assumed that the federal law-
maker 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 dis-
cussed above seem at variance with the legal qualification of similar rights guar-
anteed by the Swiss Federal Constitution.
For instance, the right to freedom of religion and belief as entrenched in Arti-
cle 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. Accord-
ing 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

47
For a detailed discussion on this matter see Dominic McGoldrick, The Human Rights Committee: its
role in the development of the international covenant on civil and political rights (Clarendon Press,
Oxford 2001) p. 14.
48
See International Covenant on Civil and Political Rights (Internationale Pakt über bürgerliche und
politische Rechte vom 16. Dezember 1966, Inkrafttreten 18. September 1992, SR 0.103.2, AS 1993
750) art. 1.
49
See Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Polit-
ical Rights: cases, materials, and commentary (Oxford University Press, New York 2000) p. 101; See also
Sarah Joseph, ‘Resolving Conflicting Claims of Territorial Sovereignty and External Self-Determination’,
Part 1 (1999) 3(1) International Journal of Human Rights 40, p. 42–5.
50
See Louis Henkin, The International Bill of Rights: The Universal Declaration and the Covenants in
International enforcement of human rights: reports submitted to the Colloquium of the International
Association of Legal Science, Heidelberg, 28–30 August 1985 (Springer, Berlin 1987) p. 10.
51
See Federal Court Decision (BGE 99 Ib 39) p. 41.
52
Ulrich Häfelin, and Walter Haller, Schweizerisches Bundesstaatsrecht: die neue Bundesverfassung 6
ed. (Schulthess, Zürich 2005) p. 129.
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 143

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-dis-
crimination55 and the rights of minorities56 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 interpre-
tation 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 ques-
tion that can similarly be raised is the following: Why should discrimination
against a particular religious minority be regarded as jus cogens when discrimina-
tion 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
53
See Regina Kiener and Walter Kälin, Grundrechte, (Schultess, Bern 2007) p. 276.
54
See Swiss Federal Constitution (Bundesverfassung der Schweizerischen Eidgenossenschaft vom 18.
April 1999, Inkrafttreten 1. Januar 2000, SR 101) art. 15(2).
55
Ibid., art. 8.
56
The Federal Constitution does not expressly protect the rights of minorities. Implied protection
may, for instance, arise from Articles 7 and 10 of the Constitution. See Swiss Federal Constitution (Bun-
desverfassung der Schweizerischen Eidgenossenschaft vom 18. April 1999, Inkrafttreten 1. January 2000,
SR 101).
57
The Federal Supreme Court upheld the ruling of the lower court but did not decide over the mate-
rial content of constitutional rights. The claim to build minarets was challenged in respect to Swiss
planning laws only. See Federal Court Decision (BGE 1P.26/2007) <http://jumpcgi.bger.ch/> accessed
12 April 2008.
58
Interview with Paul Richli, Professor of Public Law, Faculty of Law, University of Lucerne (Lucerne
3 April 2008).
59
(Author’s translation) “States are, at any time, empowered to modify their designs and to revise
international rules. As a result, they can not be bound by mandatory provisions of international law
which prohibit any development. The reality of jus cogens is therefore doubtful, and the references given
144 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

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 peo-
ple’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 consider-
ing the legal implications of a possible ban on minarets.

II. On the Legal Implications of a Possible Ban

A. Permissibility of Reservations
The question of whether the possible ban on minarets breaches the material con-
tent 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, con-
science 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 reservations62 to the ICCPR. Relevant here is the reservation con-
cerning Article 26 only. The reservation states that ‘the equality of all persons

by the Federal Council are far from being existent.” See Etienne Grisel, Initiative et référendum populaires:
Traité de la démocratie semi-directe en droit suisse, (3rd edn, Staempfli, Berne 2004) p. 258.
60
For a detailed analysis on the actual scope of the human rights in question see, for instance, Manfred
Novak, U.N. Covenant on Civil and Political Rights: CCPR commentary (2nd rev. ed., N.P. Engel, Kehl,
2005) p. 406ff.
61
See Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Polit-
ical Rights: cases, materials, and commentary (Oxford University Press, New York 2000) p. 599.
62
See Office of the United Nations Human Rights Commissioner, ‘Declarations and Reservations’
<http://www2.ohchr.org/english/bodies/ratification/4_1.htm> accessed 8 April 2008.
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 145

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 encour-
age 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, how-
ever, imply that any reservation is permitted, as the matter of reservations is gov-
erned 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 ‘pur-
pose’ 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-discrimina-
tion70—is an indication of its ‘object’ and ‘purpose’.71

63
Ibid.
64
See Human Rights Committee, General Comment Nr. 24 of 4 November 1994 (CCPR/C/21/
Rev.1/Add.6) para. 4.
65
Ibid.
66
See Liesbeth Lijnzaad, Reservations to UN-Human Rights Treaties: ratify and ruin? Martinus Nijhoff,
Dordrecht 1995) p. 185–6; Raymond Higgins, ‘Derogations Under Human Rights Treaties’, (1976)
48th British Yearbook of International Law, 281–320; See also, ‘The Development of the Covenant on
Civil and Political Rights’, (1981) The International Bill of Rights, Louise Henking, (ed.), p. 32–71.
67
See Egon Schwelb, The International Covenants on Human Rights, in: Eide Asbjorn, Schou August,
International Protection of Human Rights, (Kelsvrov, Stockholm 1968) p. 144; See also Human Rights
Committee, General Comment Nr. 24 of 4 November 1994 (CCPR/C/21/Rev.1/Add.6) para. 4.
68
See Bernhard Graefrath, Menschenrechten und internationale Kooperation usw., (Berlin 1988)
p. 69–85.
69
See Vienna Convention on the Law of Treaties (Wiener Übereinkommen vom 23. Mai 1969 über
das Recht der Verträge, Inkrafttreten 6. Juni 1990, SR 0111).
70
See International Covenant on Civil and Political Rights (Internationale Pakt über bürgerliche und
politische Rechte vom 16. Dezember 1966, Inkrafttreten 18. September 1992, SR 0.103.2, AS 1993
750) Art. 4(1) and 4(2).
71
See Liesbeth Lijnzaad, Reservations to UN-Human Rights Treaties: ratify and ruin? (Martinus Nijhoff,
Dordrecht, 1995) p. 187.
146 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

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 spe-
cific 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 difficul-
ties in question, can the ICCPR be terminated, denunciated, or withdrawn?

B. 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 with-
drawal 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

72
See Human Rights Committee, General Comment Nr. 24 of 4 November 1994 (CCPR/C/21/
Rev.1/Add.6) para 8.
73
Ibid., para 9.
74
Arguably, this is only the case if the building of a minaret was seen as an irreducible core of the rights
discussed. See Agnes Winkler, Zulässigkeit und Rechtswirkungen von Vorbehalten nach der Wiener Ver-
tragsrechtskonvention (Kovač, Hamburg 2007) p. 93.
75
See Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Polit-
ical Rights: cases, materials, and commentary (Oxford University Press, New York, 2000) p. 622.
76
See Vienna Convention on the Law of Treaties (Wiener Übereinkommen vom 23. Mai 1969 über
das Recht der Verträge, Inkrafttreten 6. Juni 1990, SR 0111).
77
See Human Rights Committee, General Comment Nr. 26 of 8 December 1997 (CCPR/C/21/
Rev.1/Add.8) para 2.
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 147

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 Cove-
nant to denounce it or withdraw from it’.79

C. 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 Fed-
eral 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

a. the interpretation of a treaty;

b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obli-
gation; and
d. the nature or extent of the reparation to be made for the breach of an international obligation.

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

78
Ibid.
79
Ibid., para. 5.
80
See Vienna Convention on the Law of Treaties (Wiener Übereinkommen vom 23. Mai 1969 über
das Recht der Verträge, Inkrafttreten 6. Juni 1990, SR 0111).
81
See Elettronica Sicula S.p.A. (ELSI) (I.C.J. Reports 1989) p. 15ff.
82
Ibid.
83
See Swiss Federal Constitution (Bundesverfassung der Schweizerischen Eidgenossenschaft vom 18.
April 1999, SR 101) art. 5(4).
84
See Statute of the International Court of Justice (Statut des Internationalen Gerichtshofs vom 26.
Juni 1945, Inkrafttreten 28. Juli 1948, 0.193.501) art 36(1); See also the detailed commentary of Zim-
mermann Andreas and others, The Statute of the International Court of Justice (Oxford University Press,
Oxford 2006) p. 162.
148 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

Switzerland failed to perform the obligations incumbent upon it under the judge-
ment 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

III. Concluding Remarks

A. Considerations in the Narrow Sense

In the first 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 consider-
ations made in the second part. In other words, it is the thesis of this article that
the references made in the second part generate persuasive arguments for the tak-
ing of concrete decisions.
On 18 June 1992 Switzerland ratified the International ICCPR. The enact-
ment 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 legit-
imize 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

85
See United Nations Charter, (Charta der Vereinten Nationen vom 26. Juni 1945, Inkrafttreten 10.
September 2002, SR 0.120) art. 94(2); See also Andreas Zimmermann and others, The Statute of the
International Court of Justice (Oxford University Press, Oxford 2006) p. 171.
86
See Swiss Federal Constitution (Bundesverfassung der Schweizerischen Eidgenossenschaft vom 18.
April 1999, SR 101) art. 141(d)(1).
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 149

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 author-
ity 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

B. Broader Considerations
This conclusion can also be transformed into the language adopted in the intro-
duction 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 com-
munity 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 initia-
tive. 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 fun-
damental values. Simultaneously they are required to adopt a critical position
towards human rights, for instance, in that lessons are learned from history.

87
See Editorial Board composed of: Bernard Dutoit, Stephen V. Berti, Pascal Pichonnaz, Anton K.
Schnyder, Daniel Thürer, and Hans Peter Walter, ‘Volksinitiativen: Gefahren des Missbrauchs’ (RDS
2007/I).
88
See Preamble of the Swiss Federal Constitution (Bundesverfassung der Schweizerischen Eidgenos-
senschaft vom 18. April 1999, SR 101).
89
Although Swiss citizens are sovereign, they must respect international human rights law.
150 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

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 disagree-
ment 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 inequi-
table 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. Nowa-
days culture can be defined as a system of mutual belief, religion, common prac-
tices 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 mortality95
can be seen as a continuous source of existential anguish.96 According to the Ter-
ror Management Theory,97 culture in the modern sense diminishes this psycho-
logical terror by providing meaning, organization and continuity to men and
women. Compliance with particular cultural values and norms enhances the feel-
ing 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

90
See Farah Mihlar Ahamed, Women Living Under Muslim Laws, ‘UN: Asma Jahangir, UN Special
Rapporteur on Religious Freedom or Belief ’ <http://www.wluml.org> accessed 8 April 2008.
91
Caused by an unjust distribution of goods.
92
See Hebert Kelman, ‘Interactive Problem Solving as a Metaphor for International Conflict Resolu-
tions’: Lessons for the Policy Process, Peace and Conflict (Journal of Peace Psychology, 1999) p. 201–218.
93
See Günter Bierbrauer, Interkulturelles Verhandeln (F. Haft v. Schlieffen (Hg.), Handbuch Media-
tion, München, 2002) p. 266–288.
94
See Melville Jean Herskovits, Man and His Works: The Science of Cultural Anthropology (New York
1948).
95
This is believed to be to the unique preserve of humans.
96
See Ernest Becker, Dynamik des Todes, Die Überwindung der Todesfurcht—Ursprung der Kultur
(Freiburg 1976).
97
See Sheldon Solomon, Jeff Greenberg and Tom Pyszczynski, A Terror Management Theory of Social
Behaviour (The Psychological Functions of Self-Esteem and Cultural Wold Views, Mark P. Zanna. (ed.),
Advances in Experimental Social Psychology, 1991) p. 93–159.
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 151

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 cir-
cumstances people not only endeavour to deny or devalue the importance of the
other worldview, but try to controvert those ideas and opinions. Differing world-
views between two persons or a group of individuals may for these reasons pro-
duce 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 diffi-
cult 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 toler-
ate, 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 equi-
table to them if taken by others. However, at a time of religious and cultural fric-
tions, 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 respectful-
ness, 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 vary-
ing 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

98
See generally Günter Bierbrauer, Triebe, Instinkte, Kultur und Todesangst (Osnabrücker Jahrbuch
Frieden und Wissenschaft, Göttingen, Universität Osnabrück 2003) p. 137–146.
99
Anerkennung, German for ‘in acceptance’, see generally Georg Wilhelm Friedrich Hegel, Grundli-
nien der Philosophie des Rechts of 1820 (Helmut Reichelt, Ullstein-Buch, Frankfurt am Main 1972).
100
See generally Immanuel Kant, Essay Beantwortung der Frage: ‘Was ist Aufklärung’ (Berlinische
Monatsschrift, Johann Erich Biester und Friedrich Gedike, Berlin 1784).
152 M. Stüssi / Religion and Human Rights 3 (2008) 135–153

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.

IV. Conclusion
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 abso-
lute 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 consti-
tutional 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 politi-
cal 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 inter-
 M. Stüssi / Religion and Human Rights 3 (2008) 135–153 153

national human rights commitments. This is arguably the case because reserva-
tions 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 inter-
preted as meaning that every interference with rights encompassed by the Inter-
national 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.