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The conflict between direct democracy and international law: analysing the Swiss case
[journal article]
Abstract The rising number of Swiss popular initiatives conflicting with international law reflects the decline of Swiss consensus democracy. A case in point is the 2009 ban on the construction of minarets, which focused international attention on Switzerland and its direct democracy. The Constitution can be... view more
The rising number of Swiss popular initiatives conflicting with international law reflects the decline of Swiss consensus democracy. A case in point is the 2009 ban on the construction of minarets, which focused international attention on Switzerland and its direct democracy. The Constitution can be amended through popular initiatives that - following the collection of 100,000 signatures and a popular vote - put demand on the executive and the legislature to transcribe the constitutional popular initiative into a law. Therefore, the Swiss Constitution might violate international law. This conflict arose due to the absence of judicial review, such as a constitutional court, and the absence of limits to popular initiatives. Even though in 1999 jus cogens, or mandatory international law, was established as a criterion to invalidate popular initiatives, this provision has so far never been applied. The article outlines how increased polarization in the Swiss political system has turned the popular initiative into a potentially destabilizing political instrument and analyses efforts to solve the elusive issue of conflicts between popular sovereignty and international law.... view less
Keywords
consociational democracy; direct democracy; international law; plebiscite; referendum; constitutional amendment; legislation; sovereignty of the people; law of nations; Switzerland
Classification
Political System, Constitution, Government
Law
Free Keywords
judicial review
Document language
English
Publication Year
2015
Page/Pages
p. 3-38
Journal
Journal of the Korean-German Association for Social Sciences / Zeitschrift der Koreanisch-Deutschen Gesellschaft für Sozialwissenschaften, 25 (2015) 3
Status
Published Version; reviewed