پژوهش تطبیقی حقوق اسلام و غرب (Sep 2020)
The Right to Self-Determination in International Human Rights Law and Ultra-Constitutional Principles: A Critical Examination of Article 177 of the Islamic Republic of Iran’s Constitution
Abstract
The right to sovereignty over one's own destiny is a fundamental and undeniable right rooted in the inherent dignity of man. In a democratic system, the recognition of the founding power - the will of the nation - and the superstructural nature of the sovereignty of the people in determining their own destiny are considered to be a principle that must necessarily be established in an sphere outside the established norms of law that governs all established institutions that not be arisen from nor be limited to them. Therefore, the constitution that is the product of the will of the nation cannot limit the will of its founder. In this article, through a descriptive-analytic method, we have dealt with this question whether considering some articles of the constitution as irreplaceable principles damages the right of the people to sovereignty over their own destiny? The research hypothesis is that the unchangeable principles of the constitution are contrary to the sovereignty of the people in determining their destiny, because the constitution will not be capable of countering the political will of the people and restricting the founding power that is the basis of the constitution. It is for this reason that the constitution must continually conform to the political will of each generation, and the real sovereignty rests on this principle that the will of no generation be imposed on other generations. Thus, it seems that recognizing the unchangeable articles in the constitutions should be considered as their notable significance in the view of founding power and their fundamental role in the construction of the constitution without which the nature of the structure based on that constitution would be changed. This cannot be regarded as ignorance of the the principle of self-determination, because the will of the majority of the society has the ability to change the existing constitutional order and create a new one at any time.
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