Littérature scientifique sur le sujet « Treaty-making power – Spain »

This article involves a survey of the treaty practice in ten jurisdictions, namely, Canada, China, France, Germany, India, Japan, The Netherlands, Spain, the United Kingdom and the United States (alphabetically) to find out which theory (monism or dualism) has been adopted by each of these states to give effect to (tax) treaties in their legal systems and to find out further what is the effect, if any, of the choice of a theory adopted by a state on the status enjoyed by (tax) treaties in that state's legal system and consequently on the phenomenon of (tax) treaty override. With a view to appreciate the similarities and dissimilarities in the attitude and practice of these jurisdictions, the author studies both, the general treaty practice and the tax treaty practice for each of these ten jurisdictions, and categorizes, on the basis of information gathered, different aspects of treaty-making such as the power to make (tax) treaties, need for pre-ratification parliamentary approval, mode of receiving (tax) treaties into a state's legal system, status of (tax) treaties as compared to the Constitution and domestic (tax) statutes. It is observed that while some jurisdictions follow the theory of monism so that their tax treaties take direct effect internally without anything more, others are dualists and their tax treaties, although binding internationally, do not take effect internally until transformed by legislative action. Substantial space has been devoted to preparing an inventory of the instances of tax treaty overrides in each of the ten jurisdictions and the judicial response thereto with a view to find out the attitude of the domestic courts of these jurisdictions to situations of potential treaty overrides. The exercise undertaken by the author reveals that in some of the jurisdictions, the judicial approach is to uphold the precedence of tax treaties over domestic tax statutes, while in others, the judicial trend is to give effect to the most recent expression of the sovereign will on the basis of the later-in-time rule. In the end, the author undertakes a comparative analysis to report any perceivable difference in the approach of the monist countries from that of the dualist countries to the phenomenon of treaty override.

Apparently, the Treaty of Tordesillas dismissed the possibility of Spanish shipping via Africa and the Cape of Good Hope. The preferred route to Asia was via Cape Horn or Acapulco. In this article we will show that access to Southern Africa was not entirely closed to the Spanish between the 16th and 18th centuries. We will analyse shipping in this period and, above all, we will discuss the enlightened reforms of the 18th century that changed the connecting routes between Spain and the Philippines, making them pass through Cape Town, as well as the hostility shown to the Hispanic presence in those waters by great powers like the Netherlands. Based on these connections, we will discuss the exchange of plants between Spain and Southern Africa.

The enhanced cooperation procedure has recently acquired a new popularity with EU policy-makers. Yet, the use of enhanced cooperation has also come under scrutiny, with the ECJ being asked to rule for the first time on the matter in the legal challenges brought by Spain and Italy against the decision of the Council to authorize enhanced cooperation for the creation of a unitary patent protection regime. This article examines the Treaty rules on enhanced cooperation and seeks to provide a coherent reconstruction of the function of this procedure in the constitutional system of the EU. As the article argues, an historical and systematic interpretation of positive law suggests that enhanced cooperation is finalized toward multi-speed integration in the EU. As a result, Member States are allowed to resort to this instrument only when they disagree whether to act jointly at the EU level but not when they disagree how to do so. In light of this framework, the article critically examines Spain & Italy v. Council of the EU, dealing with the legality of enhanced cooperation in the creation of a unitary patent and concludes, contrary to the opinion of the AG and the judgment of the ECJ, that Spain and Italy were legally right in challenging the Council decision: despite their unreasonable position from a policy-making perspective, the Council had misused its powers in authorizing an enhanced cooperation in the case.

Shainool Jiwa’s The Rise of a Muslim Empire is a two-volume historical work on the legacy of the Fatimid Empire. The first volume surveys the religious and sociopolitical underpinnings of Fatimid rule from its North African establishment in 909 to its transition to Egypt in 969. Jiwa’s second vol- ume focuses on the pinnacle of Fatimid society up until its decline from 969-1171. This review pertains to the first of the two volumes. Working within this phase, Jiwa details the reigns of the first four Imams: ‘Abd Allāh al-Mahdī, Abū’l-Qāsim Muḥammad, Ismāʿīl al-Manṣūr, and al-Muʿizz li- Dīn Allāh. The second book, which is titled The Fatimid Rule from Egypt, discusses the latter ten Imams (4). The first chapter covers the origins of the Fatimids in respect to both religious and geographical contexts. Jiwa starts by providing the historical background of Ismaili Shiism. Here, everything from the succession crisis of 632 CE to the emergence of the different strands of Shiism are discussed. Jiwa describes the Ismaili sect as having held Ismāʿīl, the eldest son of Jaʿfar al-Ṣādiq, to have been the chosen successor of his father, therefore mak- ing him Imam. Ismāʿīl’s ephemeral mortality caused for the Imamate to then pass over to his young son, Muḥammad b. Ismāʿīl, eponym of the sect (10). The Twelvers are described as having believed in the Imamate of Jaʿfar’s youngest son, Mūsā, whose lineage gives root to the Imams of Twelver Shiism. Jiwa characterizes Ismaili beliefs as having rested on dawr al-satr (period of concealment) and daʿwa (religio-political mission) (11). The dawr al-satr refers to the Imams going into hiding with only their most trusted followers knowing their true identities. Subsequently, these follow- ers promoted the recognition of these hidden Imams, which in large part refers to daʿwa (the act of inviting). Jiwa explains that during dawr al-satr (765–909 CE) Ismaili doctrine had spread as far as from Yemen to Ifriqiya (modern-day Tunisia and eastern Algeria) (12), with its most prominent adherents being the Kutama Berbers of North Africa. Under the teachings of Abū ‘Abd Allāh al-Shīʿī, a pronounced Ismaili dāʿī (inviter), the Kutama had aspired to establish the dawlat al-ḥaqq (the righteous state) (16). This aspiration materialized under the allegiance of ‘Abd Allāh al-Mahdī who had been pronounced as Imam by his predecessor and later recognized as the mahdī (messianic figure) (20). This belief, nonetheless, was not accepted by all Ismailis, particularly those following Ḥamdān Qarmaṭ, who later came to be known as the Qaramiṭa (21). Sa- lamiyya (a town located in Syria), the town where ‘Abd Allāh al-Mahdī had resided, became unsafe due to Abbasid persecution, causing the Imam to migrate to various locations and eventually Sijilmasa (22). Meanwhile, the Kutama had grown to such a force that they had been able to seize control over Qayrawān of North Africa under the leadership of al-Shīʿī (22). When al-Mahdī was later arrested in Sijilmasa and the news spread to the Kuta- ma, a campaign of soldiers marched to secure his release and bring him to Qayrawān. Having accomplished this, the Fatimid State came into fruition (22). Jiwa provides sources detailing the events which led up to the Fatim- id establishment, including eyewitness accounts from Jaʿfar al-Ḥājib’s Sīrat Jaʿfar al-Ḥājib, secondary sources such as Aḥmad b. Ibrāhīm al-Naysābūrī’s Istitār al-Imām (‘The Concealment of the Imam’), and other historical works such as the influential Iftitāh al-daʿwa wa-ibtidāʿ al-dawla (‘Com- mencement of the Mission and the Beginnings of the State’) authored by Abū Ḥanīfa al-Nuʿmān (29-30). These references help readers pinpoint who was instrumental in recording Fatimid history. In chapter two, Jiwa discusses the establishment of the Fatimid state, giving details of its institutions, processes, and hallmark locations. Al-Mah- dī is seen to have incorporated officials who had previously served the Aghlabids (the previous rulers of Qayrawān). In addition, institutions such as maẓālim (oppressive acts) courts are discussed as having been estab- lished to provide redress for ordinary civilians against abuses of power (35). During this time of development, dissension amongst the Kutama is seen to have imploded on the basis of marginalized sentiments. Once having been one of the most loyal dāʿīs to al-Mahdī, al-Shīʿī had led a rebellion against his former Imam on charges of being a false mahdī. Ultimately this campaign was pacified, resulting in the execution of al Shīʿī. This chapter also reveals new characters who later became prominent figures in Fatimid history. The heir apparent or Prince Abū’l-Qāsim Muḥammad, the eldest son of al-Mahdī, already took up much of his father’s duties while his own son, Ismāʿīl or al-Manṣūr bi’llāh (‘the One Who is Victorious by God’) was entrusted by the sitting Imam, al-Mahdī (his grandfather), as his most faithful confidant (39). The port city of al-Mahdiyya which had been con- structed by the Fatimids in 916 is described as having been unique in its architectural design and strategic in its location. Al-Mahdiyya served as the new Mediterranean capital and had secured the Fatimids a booming com mercial fabric. Similarly, the city of Palermo in Sicily had been occupied by the Fatimids and had also brought a great deal of cultural exchange and goods. Jiwa brings out images of palaces and charts out maps of the port city to provide visual comprehension of the architecture. Chapter three surveys the reign of al-Manṣūr, discussing his ascension to power under fraught circumstances and his construction of a new city. This chapter focuses attention on the reconstruction of Palermo in vivid archaeological detail. Readers are informed of the Khariji rebellion from Ifrīqiya spearheaded by Abū Yazīd al-Nukkarī. The Kharijis are described to have been insurmountable by the Fatimids, pushing their Empire as far back as to the Mediterranean coast of al-Mahdiyya (60). It was not until al-Ḥasan b. ‘Alī al-Kalbī, the governor of Tunis, and his army pushed back against the Kharijis that the North African coastland would be recaptured (61). Despite this, the Kharijis were too difficult to overcome and remained at conflict with the Fatimids up until the death of Abū’l-Qāsim. Fearful that news of Abū’l-Qāsim’s death would puncture the morale of the Fatimid war effort, al-Manṣūr had managed to keep the news of his father’s passing silent. After an eventful encounter, al-Manṣūr would eventually go on to defeat Abū Yazīd’s army and restore Fatimid rule. Following this victory, al-Manṣūr began taking restorative measures to recover the now war-torn society. Socially considerate policies such as charity stipends, the appoint- ment of a Sunni-based Maliki judge, and omission of taxes were all strides in this effort. But the most significant of his developments was the con- struction of a new capital called Manṣūriyya. Much of this city’s structural inspiration came from the North African ancient ruins al-Manṣūr had been enchanted by (68). Jiwa’s training as a historian is evident in how she cites primary sources every chance she gets, from sermons to testimonies. Clos- ing this chapter, Jiwa provides an anecdote recorded by al-Nuʿmān which romantically relays the moment al-Manṣūr knew that his son, al-Muʿizz li-Dīn Allāh, was ready to ascend to power (77). Jiwa’s anecdotes connect the reader to the ethos of Fatimid personalities. Chapter four delves into the reign of al-Manṣūr’s heir, al-Muʿizz (953- 75), who came into conflict with both the Umayyads and the Byzantines during his reign and would later live out his final days in his new capital, al-Qāhira al-Muʿizziya (‘the Victorious City of al-Muʿizz’)—modern-day Cairo (78). Beyond the royal family, Jiwa presents key stalwarts that the Em- pire was indebted to. Once servant to al-Mahdī, Jawhar, who was of Slavic origin, had risen through the ranks (serving both as scribe and commander in battle), eventually being entrusted with many honorable state positions. This chapter is the longest one of the book and attempts to accomplish many things. Along with discussing the battles which ensued during this juncture, Jiwa also fleshes out the theology of Ismaili beliefs. Al-Nuʿmān is said to have written extensively on the topic—including his text written between 958 and 960, Daʿā’im al-Islām (‘Pillars of Islam’), which delineates such fundamental concepts to Ismaili theology as walāya (allegiance and obedience), īmān (faith), ẓāhir (exoteric), and bāṭin (esoteric) (88-89). The early Fatimid age is described as having been a milieu of knowledge seek- ing, with debates and lectures taking place on a frequent basis. Through the majālis (teaching sessions) program, the Ismaili doctrine would proliferate to the broader society. Jiwa’s text is filled with firsthand accounts which describe Fatimid institutions, ceremonies, and events, providing vivid pic- tures of what is being described (e.g., al-Nuʿmān’s description of the grand circumcision ceremony hosted in 962 and Ibn Haytham’s description of the diversity of attendees and tailoring of lessons in the majālis by teach- ers such as Aflaḥ b. Hārūn al-Mālūsī, 95). The tension between the Uma- yyads in Spain and the Fatimids is also presented in this chapter, depicted as stemming from their varying loyalties in the rivalry between ‘Alī b. Abī Ṭālib and Muʿāwiya. The coastal regions of the Mediterranean and North Africa would see many conflicts between the Fatimids and Umayyads; the Umayyads and the Byzantines worked together to suppress their Fatimid adversary, with the Byzantines launching campaigns on the parts of the Empire closest to Sicily while the Umayyads attacked the most western part. After briefly losing parts of their North African territories, the Fatimids eventually reasserted their control over the Maghrib, leaving the Umayyads no choice but to resort to a peace treaty (103). The Ismaili daʿwā reached far and wide, with its message gaining adherents from the Gulf of Yemen to as far as Sind. Jiwa also describes the Kalbid dynasty of Fatimid Sicily, which had come under the governorship of al-Ḥasan al-Kalbī. During this period (960-65), Sicily had been the site of intense warfare between the Fatimids and the Byzantines, with two distinct battles resulting in the most pivotal outcomes for the region, namely the Pit and the Straits (119). Like the Umayyads, the Byzantines would also later come to negotiate terms of peace with the Fatimids in 958 (116). Chapter five speaks to the venture the Fatimids made into Egypt in 966. Here, readers are presented with the terms acknowledged by local nobles such as Sharīf Abū Jaʿfar Muslim al-Ḥusaynī and the Fatimids, the founding of the new capital (al-Qāhira), and the relocation of al-Muʿizz along with a significant portion of the Manṣūriyyan population in 972. The chapter serves as both a close to the book and a cliffhanger for the second volume of the series (which turns to Fatimid rule in Egypt under the son of al-Muʿizz, Niẓār b. al-Muʿizz). Capturing the cohesive religious fabric of Fatimid rule, Jiwa notes that al-Muʿizz pledged to maintain Sunni religious life while ruling over Egypt (126); she describes pillars of Sunni Islam that can serve as points of contrast to the Ismaili tradition (127). Individuals who can justly be seen as archetypes of the Fatimid intel- ligentsia are referenced both biographically and through their works. Jiwa introduces her readers to eminent characters including missionaries like Abū Yaʿqūb al-Sijistānī of Khurāsān (d. after 971); writers and thinkers who composed the Fatimid ideology such as Qāḍī al-Nuʿmān; poets who gave inspiration such as Muḥammad b. Hānī; and generals who rendered their lives for the Fatimid Empire such as al-Ḥasan b. ‘Ali al-Kalbī. Although some readers may be frustrated by the detail of jumping back and forth across names, dates, and events, those who are able to follow the work the- matically will certainly find this work to be nothing short of informative. Jiwa impressively condenses a rich and fluid history into few pages while including the most essential elements, people, and institutions making up this period. Readers are provided with visual aids (maps, family tree charts, and city maps) to help identify and locations and structures which would otherwise come off as abstract and jargon-heavy. In addition, she includes colorful images of important monuments such as mosques, coins, and ar- tifacts. Ameen OmarMA, Islamic Studies & HistoryThe George Washington University

Shainool Jiwa’s The Rise of a Muslim Empire is a two-volume historical work on the legacy of the Fatimid Empire. The first volume surveys the religious and sociopolitical underpinnings of Fatimid rule from its North African establishment in 909 to its transition to Egypt in 969. Jiwa’s second vol- ume focuses on the pinnacle of Fatimid society up until its decline from 969-1171. This review pertains to the first of the two volumes. Working within this phase, Jiwa details the reigns of the first four Imams: ‘Abd Allāh al-Mahdī, Abū’l-Qāsim Muḥammad, Ismāʿīl al-Manṣūr, and al-Muʿizz li- Dīn Allāh. The second book, which is titled The Fatimid Rule from Egypt, discusses the latter ten Imams (4). The first chapter covers the origins of the Fatimids in respect to both religious and geographical contexts. Jiwa starts by providing the historical background of Ismaili Shiism. Here, everything from the succession crisis of 632 CE to the emergence of the different strands of Shiism are discussed. Jiwa describes the Ismaili sect as having held Ismāʿīl, the eldest son of Jaʿfar al-Ṣādiq, to have been the chosen successor of his father, therefore mak- ing him Imam. Ismāʿīl’s ephemeral mortality caused for the Imamate to then pass over to his young son, Muḥammad b. Ismāʿīl, eponym of the sect (10). The Twelvers are described as having believed in the Imamate of Jaʿfar’s youngest son, Mūsā, whose lineage gives root to the Imams of Twelver Shiism. Jiwa characterizes Ismaili beliefs as having rested on dawr al-satr (period of concealment) and daʿwa (religio-political mission) (11). The dawr al-satr refers to the Imams going into hiding with only their most trusted followers knowing their true identities. Subsequently, these follow- ers promoted the recognition of these hidden Imams, which in large part refers to daʿwa (the act of inviting). Jiwa explains that during dawr al-satr (765–909 CE) Ismaili doctrine had spread as far as from Yemen to Ifriqiya (modern-day Tunisia and eastern Algeria) (12), with its most prominent adherents being the Kutama Berbers of North Africa. Under the teachings of Abū ‘Abd Allāh al-Shīʿī, a pronounced Ismaili dāʿī (inviter), the Kutama had aspired to establish the dawlat al-ḥaqq (the righteous state) (16). This aspiration materialized under the allegiance of ‘Abd Allāh al-Mahdī who had been pronounced as Imam by his predecessor and later recognized as the mahdī (messianic figure) (20). This belief, nonetheless, was not accepted by all Ismailis, particularly those following Ḥamdān Qarmaṭ, who later came to be known as the Qaramiṭa (21). Sa- lamiyya (a town located in Syria), the town where ‘Abd Allāh al-Mahdī had resided, became unsafe due to Abbasid persecution, causing the Imam to migrate to various locations and eventually Sijilmasa (22). Meanwhile, the Kutama had grown to such a force that they had been able to seize control over Qayrawān of North Africa under the leadership of al-Shīʿī (22). When al-Mahdī was later arrested in Sijilmasa and the news spread to the Kuta- ma, a campaign of soldiers marched to secure his release and bring him to Qayrawān. Having accomplished this, the Fatimid State came into fruition (22). Jiwa provides sources detailing the events which led up to the Fatim- id establishment, including eyewitness accounts from Jaʿfar al-Ḥājib’s Sīrat Jaʿfar al-Ḥājib, secondary sources such as Aḥmad b. Ibrāhīm al-Naysābūrī’s Istitār al-Imām (‘The Concealment of the Imam’), and other historical works such as the influential Iftitāh al-daʿwa wa-ibtidāʿ al-dawla (‘Com- mencement of the Mission and the Beginnings of the State’) authored by Abū Ḥanīfa al-Nuʿmān (29-30). These references help readers pinpoint who was instrumental in recording Fatimid history. In chapter two, Jiwa discusses the establishment of the Fatimid state, giving details of its institutions, processes, and hallmark locations. Al-Mah- dī is seen to have incorporated officials who had previously served the Aghlabids (the previous rulers of Qayrawān). In addition, institutions such as maẓālim (oppressive acts) courts are discussed as having been estab- lished to provide redress for ordinary civilians against abuses of power (35). During this time of development, dissension amongst the Kutama is seen to have imploded on the basis of marginalized sentiments. Once having been one of the most loyal dāʿīs to al-Mahdī, al-Shīʿī had led a rebellion against his former Imam on charges of being a false mahdī. Ultimately this campaign was pacified, resulting in the execution of al Shīʿī. This chapter also reveals new characters who later became prominent figures in Fatimid history. The heir apparent or Prince Abū’l-Qāsim Muḥammad, the eldest son of al-Mahdī, already took up much of his father’s duties while his own son, Ismāʿīl or al-Manṣūr bi’llāh (‘the One Who is Victorious by God’) was entrusted by the sitting Imam, al-Mahdī (his grandfather), as his most faithful confidant (39). The port city of al-Mahdiyya which had been con- structed by the Fatimids in 916 is described as having been unique in its architectural design and strategic in its location. Al-Mahdiyya served as the new Mediterranean capital and had secured the Fatimids a booming com mercial fabric. Similarly, the city of Palermo in Sicily had been occupied by the Fatimids and had also brought a great deal of cultural exchange and goods. Jiwa brings out images of palaces and charts out maps of the port city to provide visual comprehension of the architecture. Chapter three surveys the reign of al-Manṣūr, discussing his ascension to power under fraught circumstances and his construction of a new city. This chapter focuses attention on the reconstruction of Palermo in vivid archaeological detail. Readers are informed of the Khariji rebellion from Ifrīqiya spearheaded by Abū Yazīd al-Nukkarī. The Kharijis are described to have been insurmountable by the Fatimids, pushing their Empire as far back as to the Mediterranean coast of al-Mahdiyya (60). It was not until al-Ḥasan b. ‘Alī al-Kalbī, the governor of Tunis, and his army pushed back against the Kharijis that the North African coastland would be recaptured (61). Despite this, the Kharijis were too difficult to overcome and remained at conflict with the Fatimids up until the death of Abū’l-Qāsim. Fearful that news of Abū’l-Qāsim’s death would puncture the morale of the Fatimid war effort, al-Manṣūr had managed to keep the news of his father’s passing silent. After an eventful encounter, al-Manṣūr would eventually go on to defeat Abū Yazīd’s army and restore Fatimid rule. Following this victory, al-Manṣūr began taking restorative measures to recover the now war-torn society. Socially considerate policies such as charity stipends, the appoint- ment of a Sunni-based Maliki judge, and omission of taxes were all strides in this effort. But the most significant of his developments was the con- struction of a new capital called Manṣūriyya. Much of this city’s structural inspiration came from the North African ancient ruins al-Manṣūr had been enchanted by (68). Jiwa’s training as a historian is evident in how she cites primary sources every chance she gets, from sermons to testimonies. Clos- ing this chapter, Jiwa provides an anecdote recorded by al-Nuʿmān which romantically relays the moment al-Manṣūr knew that his son, al-Muʿizz li-Dīn Allāh, was ready to ascend to power (77). Jiwa’s anecdotes connect the reader to the ethos of Fatimid personalities. Chapter four delves into the reign of al-Manṣūr’s heir, al-Muʿizz (953- 75), who came into conflict with both the Umayyads and the Byzantines during his reign and would later live out his final days in his new capital, al-Qāhira al-Muʿizziya (‘the Victorious City of al-Muʿizz’)—modern-day Cairo (78). Beyond the royal family, Jiwa presents key stalwarts that the Em- pire was indebted to. Once servant to al-Mahdī, Jawhar, who was of Slavic origin, had risen through the ranks (serving both as scribe and commander in battle), eventually being entrusted with many honorable state positions. This chapter is the longest one of the book and attempts to accomplish many things. Along with discussing the battles which ensued during this juncture, Jiwa also fleshes out the theology of Ismaili beliefs. Al-Nuʿmān is said to have written extensively on the topic—including his text written between 958 and 960, Daʿā’im al-Islām (‘Pillars of Islam’), which delineates such fundamental concepts to Ismaili theology as walāya (allegiance and obedience), īmān (faith), ẓāhir (exoteric), and bāṭin (esoteric) (88-89). The early Fatimid age is described as having been a milieu of knowledge seek- ing, with debates and lectures taking place on a frequent basis. Through the majālis (teaching sessions) program, the Ismaili doctrine would proliferate to the broader society. Jiwa’s text is filled with firsthand accounts which describe Fatimid institutions, ceremonies, and events, providing vivid pic- tures of what is being described (e.g., al-Nuʿmān’s description of the grand circumcision ceremony hosted in 962 and Ibn Haytham’s description of the diversity of attendees and tailoring of lessons in the majālis by teach- ers such as Aflaḥ b. Hārūn al-Mālūsī, 95). The tension between the Uma- yyads in Spain and the Fatimids is also presented in this chapter, depicted as stemming from their varying loyalties in the rivalry between ‘Alī b. Abī Ṭālib and Muʿāwiya. The coastal regions of the Mediterranean and North Africa would see many conflicts between the Fatimids and Umayyads; the Umayyads and the Byzantines worked together to suppress their Fatimid adversary, with the Byzantines launching campaigns on the parts of the Empire closest to Sicily while the Umayyads attacked the most western part. After briefly losing parts of their North African territories, the Fatimids eventually reasserted their control over the Maghrib, leaving the Umayyads no choice but to resort to a peace treaty (103). The Ismaili daʿwā reached far and wide, with its message gaining adherents from the Gulf of Yemen to as far as Sind. Jiwa also describes the Kalbid dynasty of Fatimid Sicily, which had come under the governorship of al-Ḥasan al-Kalbī. During this period (960-65), Sicily had been the site of intense warfare between the Fatimids and the Byzantines, with two distinct battles resulting in the most pivotal outcomes for the region, namely the Pit and the Straits (119). Like the Umayyads, the Byzantines would also later come to negotiate terms of peace with the Fatimids in 958 (116). Chapter five speaks to the venture the Fatimids made into Egypt in 966. Here, readers are presented with the terms acknowledged by local nobles such as Sharīf Abū Jaʿfar Muslim al-Ḥusaynī and the Fatimids, the founding of the new capital (al-Qāhira), and the relocation of al-Muʿizz along with a significant portion of the Manṣūriyyan population in 972. The chapter serves as both a close to the book and a cliffhanger for the second volume of the series (which turns to Fatimid rule in Egypt under the son of al-Muʿizz, Niẓār b. al-Muʿizz). Capturing the cohesive religious fabric of Fatimid rule, Jiwa notes that al-Muʿizz pledged to maintain Sunni religious life while ruling over Egypt (126); she describes pillars of Sunni Islam that can serve as points of contrast to the Ismaili tradition (127). Individuals who can justly be seen as archetypes of the Fatimid intel- ligentsia are referenced both biographically and through their works. Jiwa introduces her readers to eminent characters including missionaries like Abū Yaʿqūb al-Sijistānī of Khurāsān (d. after 971); writers and thinkers who composed the Fatimid ideology such as Qāḍī al-Nuʿmān; poets who gave inspiration such as Muḥammad b. Hānī; and generals who rendered their lives for the Fatimid Empire such as al-Ḥasan b. ‘Ali al-Kalbī. Although some readers may be frustrated by the detail of jumping back and forth across names, dates, and events, those who are able to follow the work the- matically will certainly find this work to be nothing short of informative. Jiwa impressively condenses a rich and fluid history into few pages while including the most essential elements, people, and institutions making up this period. Readers are provided with visual aids (maps, family tree charts, and city maps) to help identify and locations and structures which would otherwise come off as abstract and jargon-heavy. In addition, she includes colorful images of important monuments such as mosques, coins, and ar- tifacts. Ameen OmarMA, Islamic Studies & HistoryThe George Washington University

IllegitimacyBack in 1987, Gregory Bateson argued that:Kurt Vonnegut gives us wary advice – that we should be careful what we pretend because we become what we pretend. And something like that, some sort of self-fulfilment, occurs in all organisations and human cultures. What people presume to be ‘human’ is what they will build in as premises of their social arrangements, and what they build in is sure to be learned, is sure to become a part of the character of those who participate. (178)The human capacity to marginalise and discriminate against others on the basis of innate and constructed characteristics is evident from the long history of discrimination against people whose existence is ‘illegitimate’, defined as being outside the law. What is inside or outside the law depends upon the context under consideration. For example, in societies such as ancient Greece and the antebellum United States, where slavery was legal, people who were constructed as ‘slaves’ could legitimately be treated very differently from ‘citizens’: free people who benefit from a range of human rights (Northup). The discernment of what is legitimate from that which is illegitimate is thus implicated within the law but extends into the wider experience of community life and is evident within the civil structures through which society is organised and regulated.The division between the legitimate and illegitimate is an arbitrary one, susceptible to changing circumstances. Within recent memory a romantic/sexual relationship between two people of the same sex was constructed as illegitimate and actively persecuted. This was particularly the case for same-sex attracted men, since the societies regulating these relationships generally permitted women a wider repertoire of emotional response than men were allowed. Even when lesbian and gay relationships were legalised, they were constructed as less legitimate in the sense that they often had different rules around the age of consent for homosexual and heterosexual couples. In Australia, the refusal to allow same sex couples to marry perpetuates ways in which these relationships are constructed as illegitimate – beyond the remit of the legislation concerning marriage.The archetypal incidence of illegitimacy has historically referred to people born out of wedlock. The circumstances of birth, for example whether a person was born as a result of a legally-sanctioned marital relationship or not, could have ramifications throughout an individual’s life. Stories abound (for example, Cookson) of the implications of being illegitimate. In some social stings, such as Catherine Cookson’s north-eastern England at the turn of the twentieth century, illegitimate children were often shunned. Parents frequently refused permission for their (legitimate) children to play with illegitimate classmates, as if these children born out of wedlock embodied a contaminating variety of evil. Illegitimate children were treated differently in the law in matters of inheritance, for example, and may still be. They frequently lived in fear of needing to show a birth certificate to gain a passport, for example, or to marry. Sometimes, it was at this point in adult life, that a person first discovered their illegitimacy, changing their entire understanding of their family and their place in the world. It might be possible to argue that the emphasis upon the legitimacy of a birth has lessened in proportion to an acceptance of genetic markers as an indicator of biological paternity, but that is not the endeavour here.Given the arbitrariness and mutability of the division between legitimacy and illegitimacy as a constructed boundary, it is policed by social and legal sanctions. Boundaries, such as the differentiation between the raw and the cooked (Lévi-Strauss), or S/Z (Barthes), or purity and danger (Douglas), serve important cultural functions and also convey critical information about the societies that enforce them. Categories of person, place or thing which are closest to boundaries between the legitimate and the illegitimate can prompt existential anxiety since the capacity to discern between these categories is most challenged at the margins. The legal shenanigans which can result speak volumes for which aspects of life have the potential to unsettle a culture. One example of this which is writ large in the recent history of Australia is our treatment of refugees and asylum seekers and the impact of this upon Australia’s multicultural project.Foreshadowing the sexual connotations of the illegitimate, one of us has written elsewhere (Green, ‘Bordering on the Inconceivable’) about the inconceivability of the Howard administration’s ‘Pacific solution’. This used legal devices to rewrite Australia’s borders to limit access to the rights accruing to refugees upon landing in a safe haven entitling them to seek asylum. Internationally condemned as an illegitimate construction of an artificial ‘migration zone’, this policy has been revisited and made more brutal under the Abbot regime with at least two people – Reza Barati and Hamid Khazaei – dying in the past year in what is supposed to be a place of safety provided by Australian authorities under their legal obligations to those fleeing from persecution. Crock points out, echoing the discourse of illegitimacy, that it is and always has been inappropriate to label “undocumented asylum seekers” as “‘illegal’” because: “until such people cross the border onto Australian territory, the language of illegality is nonsense. People who have no visas to enter Australia can hardly be ‘illegals’ until they enter Australia” (77). For Australians who identify in some ways – religion, culture, fellow feeling – with the detainees incarcerated on Nauru and Manus Island, it is hard to ignore the disparity between the government’s treatment of visa overstayers and “illegals” who arrive by boat (Wilson). It is a comparatively short step to construct this disparity as reflecting upon the legitimacy within Australia of communities who share salient characteristics with detained asylum seekers: “The overwhelmingly negative discourse which links asylum seekers, Islam and terrorism” (McKay, Thomas & Kneebone, 129). Some communities feel themselves constructed in the public and political spheres as less legitimately Australian than others. This is particularly true of communities where members can be identified via markers of visible difference, including indicators of ethnic, cultural and religious identities: “a group who [some 585 respondent Australians …] perceived would maintain their own languages, customs and traditions […] this cultural diversity posed an extreme threat to Australian national identity” (McKay, Thomas & Kneebone, 129). Where a community shares salient characteristics such as ethnicity or religion with many detained asylum seekers they can become fearful of the discourses around keeping borders strong and protecting Australia from illegitimate entrants. MethodologyThe qualitative fieldwork upon which this paper is based took place some 6-8 years ago (2006-2008), but the project remains one of the most recent and extensive studies of its kind. There are no grounds for believing that any of the findings are less valid than previously. On the contrary, if political actions are constructed as a proxy for mainstream public consent, opinions have become more polarised and have hardened. Ten focus groups were held involving 86 participants with a variety of backgrounds including differences in age, gender, religious observance, religious identification and ethnicity. Four focus groups involved solely Muslim participants; six drew from the wider Australian community. The aim was to examine the response of different communities to mainstream Australian media representations of Islam, Muslims, and terrorism. Research questions included: “Are there differences in the ways in which Australian Muslims respond to messages about ‘fear’ and ‘terror’ compared with broader community Australians’ responses to the same messages?” and “How do Australian Muslims construct the perceptions and attitudes of the broader Australian community based on the messages that circulate in the media?” Recent examples of kinds of messages investigated include media coverage of Islamic State’s (ISIS’s) activities (Karam & Salama), and the fear-provoking coverage around the possible recruitment of Australians to join the fighting in Syria and Iraq (Cox). The ten focus groups were augmented by 60 interviews, 30 with respondents who identified as Muslim (15 males, 15 female) and 30 respondents from the broader community (same gender divisions). Finally, a market research company was commissioned to conduct a ‘fear survey’, based on an established ‘fear of rape’ inventory (Aly and Balnaves), delivered by telephone to a random sample of 750 over-18 y.o. Australians in which Muslims formed a deliberative sub-group, to ensure they were over-sampled and constituted at least 150 respondents. The face-to-face surveys and focus groups were conducted by co-author, Dr Anne Aly. General FindingsMuslim respondents indicate a heightened intensity of reaction to media messages around fear and terror. In addition to a generalised fear of the potential impact of terrorism upon Australian society and culture, Muslim respondents experienced a specific fear that any terrorist-related media coverage might trigger hostility towards Muslim Australian communities and their own family members. According to the ‘fear survey’ scale, Muslim Australians at the time of the research experienced approximately twice the fear level of mainstream Australian respondents. Broader Australian community Australian Muslim communityFear of a terrorist attackFear of a terrorist attack combines with the fear of a community backlashSpecific victims: dead, injured, bereavedCommunity is full of general victims in addition to any specific victimsShort-term; intense impactsProtracted, diffuse impactsSociety-wide sympathy and support for specific victims and all those involved in dealing with the trauma and aftermathSociety-wide suspicion and a marginalisation of those affected by the backlashVictims of a terrorist attack are embraced by broader communityVictims of backlash experience hostility from the broader communityFour main fears were identified by Australian Muslims as a component of the fear of terrorism:Fear of physical harm. In addition to the fear of actual terrorist acts, Australian Muslims fear backlash reprisals such as those experienced after such events as 9/11, the Bali bombings, and attacks upon public transport passengers in Spain and the UK. These and similar events were constructed as precipitating increased aggression against identifiable Australian Muslims, along with shunning of Muslims and avoidance of their company.The construction of politically-motivated fear. Although fear is an understandable response to concerns around terrorism, many respondents perceived fears as being deliberately exacerbated for political motives. Such strategies as “Be alert, not alarmed” (Bassio), labelling asylum seekers as potential terrorists, and talk about home-grown terrorists, are among the kinds of fears which were identified as politically motivated. The political motivation behind such actions might include presenting a particular party as strong, resolute and effective. Some Muslim Australians construct such approaches as indicating that their government is more interested in political advantage than social harmony.Fear of losing civil liberties. As well as sharing the alarm of the broader Australian community at the dozens of legislative changes banning people, organisations and materials, and increasing surveillance and security checks, Muslim Australians fear for the human rights implications across their community, up to and including the lives of their young people. This fear is heightened when community members may look visibly different from the mainstream. Examples of the events fuelling such fears include the London police killing of Jean Charles de Menezes, a Brazilian Catholic working as an electrician in the UK and shot in the month following the 7/7 attacks on the London Underground system (Pugliese). In Australia, the case of Mohamed Hannef indicated that innocent people could easily be unjustly accused and wrongly targeted, and even when this was evident the political agenda made it almost impossible for authorities to admit their error (Rix).Feeling insecure. Australian Muslims argue that personal insecurity has become “the new normal” (Massumi), disproportionately affecting Muslim communities in both physical and psychological ways. Physical insecurity is triggered by the routine avoidance, shunning and animosity experienced by many community members in public places. Psychological insecurity includes fear for the safety of younger members of the community compounded by concern that young people may become ‘radicalised’ as a result of the discrimination they experience. Australian Muslims fear the backlash following any possible terrorist attack on Australian soil and describe the possible impact as ‘unimaginable’ (Aly and Green, ‘Moderate Islam’).In addition to this range of fears expressed by Australian Muslims and constructed in response to wider societal reactions to increased concerns over radical Islam and the threat of terrorist activity, an analysis of respondents’ statements indicate that Muslim Australians construct the broader community as exhibiting:Fear of religious conviction (without recognising the role of their own secular/religious convictions underpinning this fear);Fear of extremism (expressed in various extreme ways);Fear of powerlessness (responded to by disempowering others); andFear of political action overseas having political effects at home (without acknowledging that it is the broader community’s response to such overseas events, such as 9/11 [Green ‘Did the world really change?’], which has also had impacts at home).These constructions, extrapolations and understandings by Australian Muslims of the fears of the broader community underpinning the responses to the threat of terror have been addressed elsewhere (Green and Aly). Legitimate Australian MuslimsOne frustration identified by many Muslim respondents centres upon a perceived ‘acceptable’ way to be an Australian Muslim. Arguing that the broader community construct Muslims as a homogenous group defined by their religious affiliation, these interviewees felt that the many differences within and between the twenty-plus national, linguistic, ethnic, cultural and faith-based groupings that constitute WA’s Muslim population were being ignored. Being treated as a homogenised group on a basis of faith appears to have the effect of putting that religious identity under pressure, paradoxically strengthening and reinforcing it (Aly, ‘Australian Muslim Responses to the Discourse on Terrorism’). The appeal to Australian Muslims to embrace membership in a secular society and treat religion as a private matter also led some respondents to suggest they were expected to deny their own view of their faith, in which they express their religious identity across their social spheres and in public and private contexts. Such expression is common in observant Judaism, Hinduism and some forms of Christianity, as well as in some expressions of Islam (Aly and Green, ‘Less than equal’). Massumi argues that even the ways in which some Muslims dress, indicating faith-based behaviour, can lead to what he terms as ‘affective modulation’ (Massumi), repeating and amplifying the fear affect as a result of experiencing the wider community’s fear response to such triggers as water bottles (from airport travel) and backpacks, on the basis of perceived physical difference and a supposed identification with Muslim communities, regardless of the situation. Such respondents constructed this (implied) injunction to suppress their religious and cultural affiliation as akin to constructing the expression of their identity as illegitimate and somehow shameful. Parallels can be drawn with previous social responses to a person born out of wedlock, and to people in same-sex relationships: a ‘don’t ask, don’t tell’ kind of denial.Australian Muslims who see their faith as denied or marginalised may respond by identifying more strongly with other Muslims in their community, since the community-based context is one in which they feel welcomed and understood. The faith-based community also allows and encourages a wider repertoire of acceptable beliefs and actions entailed in the performance of ‘being Muslim’. Hand in hand with a perception of being required to express their religious identity in ways that were acceptable to the majority community, these respondents provided a range of examples of self-protective behaviours to defend themselves and others from the impacts of perceived marginalisation. Such behaviours included: changing their surnames to deflect discrimination based solely on a name (Aly and Green, ‘Fear, Anxiety and the State of Terror’); keeping their opinions private, even when they were in line with those being expressed by the majority community (Aly and Green, ‘Moderate Islam’); the identification of ‘less safe’ and ‘safe’ activities and areas; concerns about visibly different young men in the Muslim community and discussions with them about their public behaviour and demeanour; and women who chose not to leave their homes for fear of being targeted in public places (all discussed in Aly, ‘Australian Muslim Responses to the Discourse on Terrorism’). Many of these behaviours, including changing surnames, restricting socialisation to people who know a person well, and the identification of safe and less safe activities in relation to the risk of self-revelation, were common strategies used by people who were stigmatised in previous times as a result of their illegitimacy.ConclusionConstructions of the legitimate and illegitimate provide one means through which we can investigate complex negotiations around Australianness and citizenship, thrown into sharp relief by the Australian government’s treatment of asylum seekers, also deemed “illegals”. Because they arrive in Australia (or, as the government would prefer, on Australia’s doorstep) by illegitimate channels these would-be citizens are treated very differently from people who arrive at an airport and overstay their visa. The impetus to exclude aspects of geographical Australia from the migration zone, and to house asylum seekers offshore, reveals an anxiety about borders which physically reflects the anxiety of western nations in the post-9/11 world. Asylum seekers who arrive by boat have rarely had safe opportunity to secure passports or visas, or to purchase tickets from commercial airlines or shipping companies. They represent those ethnicities and cultures which are currently in turmoil: a turmoil frequently exacerbated by western intervention, variously constructed as an il/legitimate expression of western power and interests.What this paper has demonstrated is that the boundary between Australia and the rest, the legitimate and the illegitimate, is failing in its aim of creating a stronger Australia. The means through which this project is pursued is making visible a range of motivations and concerns which are variously interpreted depending upon the position of the interpreter. The United Nations, for example, has expressed strong concern over Australia’s reneging upon its treaty obligations to refugees (Gordon). Less vocal, and more fearful, are those communities within Australia which identify as community members with the excluded illegals. The Australian government’s treatment of detainees on Manus Island and Nauru, who generally exhibit markers of visible difference as a result of ethnicity or culture, is one aspect of a raft of government policies which serve to make some people feel that their Australianness is somehow less legitimate than that of the broader community. AcknowledgementsThis paper is based on the findings of an Australian Research Council Discovery Project (DP0559707), 2005-7, “Australian responses to the images and discourses of terrorism and the other: establishing a metric of fear”, awarded to Professors Lelia Green and Mark Balnaves. The research involved 10 focus groups and 60 individual in-depth interviews and a telephone ‘fear of terrorism’ survey. The authors wish to acknowledge the participation and contributions of WA community members and wider Australian respondents to the telephone survey. ReferencesAly, Anne. “Australian Muslim Responses to the Discourse on Terrorism in the Australian Popular Media.” Australian Journal of Social Issues 42.1 (2007): 27-40.Aly, Anne, and Lelia Green. “Fear, Anxiety and the State of Terror.” Studies in Conflict and Terrorism 33.3 (Feb 2010): 268-81.Aly, Anne, and Lelia Green. “Less than Equal: Secularism, Religious Pluralism and Privilege.” M/C Journal 11.2 (2008). 15 Oct. 2009 ‹http://journal.media-culture.org.au/index.php/mcjournal/article/view/32›.Aly, Anne, and Lelia Green. “‘Moderate Islam’: Defining the Good Citizen”. 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Thomas, and Susan Kneebone. “‘It Would Be Okay If They Came through the Proper Channels’: Community Perceptions and Attitudes toward Asylum Seekers in Australia”. Journal of Refugee Studies 25.1 (2011): 113-133.Northup, Solomon. Twelve Years a Slave. New York: Derby & Miller, 1853.Pugliese, Joseph. “Asymmetries of Terror: Visual Regimes of Racial Profiling and the Shooting of John Charles de Menezes in the Context of the War in Iraq.” Borderlands 5.1 (2006). 11 Sep. 2014 ‹http://www.borderlands.net.au/vol5no1_2006/pugliese.htm›.Rix, M. “With Reckless Abandon: Haneef and Ul-Haque in Australia’s ‘War on Terror’.” In K. Michael and M.G. Micheal (eds.), The Third Workshop on the Social Implications of National Security Australia. Canberra, July 2008. 107-122. 11 Sep. 2014 ‹http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1011&context=gsbpapers›.Said, Edward. Orientalism. London: Penguin, 1977.Wilson, Lauren. “More Visa Over-Stayers than Asylum-Seekers”. The Australian 11 Oct. 2012. 11 Sep. 2014 ‹http://www.theaustralian.com.au/national-affairs/immigration/more-visa-over-stayers-than-asylum-seekers/story-fn9hm1gu-1226493178289›.

Defence date: 23 June 1989
Examining board: Prof. Joseph H.H. Weiler (President) ; Prof. Antonio Cassese ; Prof. P. van Dijk ; Prof. Antonio Remiro Brotons ; Prof. Bruno de Witte
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017

The European Union (EU) is not a state and is not a traditional International Organization. It is common to characterize it as a hybrid system with a federal component. Since nothing comparable to this exists at this point, understanding the internal system of the EU is crucial. In addition to outlining the internal policy-making of the EU, it is also important to understand the internal system of the Mercosur, particularly given that the Mercosur has tried to replicate the institutional design of the EU. Since its creation in 1957 with the Treaty of Rome, the EU has changed dramatically in a variety of ways in a short period of time. The discussion will examine these changes in relation to the period between 1985 and 2007. In addition to analysing the changes in policy-making over this period of the time it is also important to note that the number of EU member states has quadruplicated since it was created in 1957. It could be argued that this has resulted in a decline in the amount of power held by each individual member state. In 1986 Spain and, to a lesser extent, Portugal brought a Mediterranean influence into EU politics. This was later balanced out by further enlargement in 1995 which saw Austria, Finland and Sweden joining the EU. However, the single largest enlargement in the history of the EU took place in 2004 when 10 Central and Eastern Europe countries became EU members. Prior to 2004, this issue was the main focus of the EU external relations since 1989 until it came into effect in 2004. The end of the Cold War and the breakup of the Soviet Union into several independent republics absorbed EU external relations to the point that it had an effect on other external relations, including external relations with Latin America. The enlargement of the EU in 2007 is not discussed in any detail here because it did not have an impact on the EU policy towards Mercosur.