52: Untitled Page 37

I.Treaties

Switzerland traditionally adopts a friendly and respectful attitude towards international law. As a relatively small export-driven country, Switzerland depends on stable international relations, based on the rule of law. It is no surprise, then, that Switzerland participates in numerous international organisations and treaty networks. Nowadays, Switzerland’s membership of the United Nations (UN) provides the foundation. Also significant is Switzerland’s membership of other organisations and treaty networks, covering almost any policy field conceivable, like trade, investment, monetary issues, taxation, transportation, telecommunication, environment, development, food, health, education, culture, metrology, and weapons control. Switzerland is also a signatory to various human rights treaties; amongst them the European Convention on Human Rights (ECHR), which has been attributed a quasi-constitutional status by the Federal Supreme Court.1 It is not a member of the North Atlantic Treaty Organisation (NATO); at least, it participates in Partnership for Peace (PfP). The first section of this chapter examines Switzerland’s participation in various organisations and treaty networks.

Switzerland – despite its location at the heart of the European continent, surrounded by three of the six founding members of the then-named European Economic Community (EEC) – is not a member of the European Union (EU). Still, it is of prime importance to Switzerland that it maintains close and stable relations with the EU and its member states. Swiss membership of the Council of Europe and the bilateral agreements with the EU are also discussed below.

1. UNITED NATIONS AND SPECIALISED AGENCIES

Founded in 1945 in the aftermath of two devastating world wars, the UN’s primary aim is to maintain and achieve collective security. As a truly global organisation, it provides a unique forum for all nations and other actors to co-operate on the international plane. Its outreach, both in terms of its membership and the variety of subject matters it has competence to deal with, is unrivalled by any other international organisation. Currently, its membership encompasses 193 member states. Various programmes, funds and specialised agencies also operate under the UN, all of which have their own memberships and budget. Among the programmes and funds are the United Nations Children’s Fund (UNICEF), the United Nations Development Programme (UNDP), the United Nations Conference on Trade and Development (UNCTAD) and the United Nations Environment Programme (UNEP). The specialised agencies are fully-fledged international organisations; they include, among others, the World Health Organization (WHO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Labour Organization (ILO) and the two Bretton Woods institutions, the World Bank and the International Monetary Fund (IMF). The main seat of the UN in Europe is in Geneva; the headquarters are at the Palais des Nations, which was originally built to house the League of Nations, the predecessor of the UN (1920–1946).

Regarding Switzerland’s involvement with the UN, it did not actually join the organisation until 2002. The accession process was instigated by a popular initiative; the people and the cantons approved of the accession – albeit quite narrowly, by only 54.6 %. Before joining, Switzerland had already participated in many of the UN’s specialised agencies, programmes and funds. It had been a member of the World Bank and the International Monetary Fund since 1992. Since acceding to the UN, Switzerland has played an active role in the organisation. It was involved in the foundation of the new Human Rights Council in 2006 and has actively contributed to the debate on the potential reform of the Security Council.2 Switzerland has also formally applied to become a member of the Security Council for the period of 2023–24; elections are scheduled for 2022. According to the Federal Council, membership of the Security Council would not compromise Switzerland’s policy of neutrality.3

2. TRADE AND INVESTMENT

The World Trade Organization (WTO) sets out the basic legal framework for international trade. It was founded in 1995 as a successor to the General Agreement on Tariffs and Trade of 1947 and largely continued the latter’s approach. The WTO currently has 164 members and is situated in the Centre William Rappard, Geneva. The WTO Agreement, which established the organisation, has three main annexes which legally bind all members: the General Agreement on Tariffs and Trade 1994 (embracing various side-agreements, on issues such as technical barriers to trade, agriculture, anti-dumping, and countervailing measures), the General Agreement on Trade in Services (GATS), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). These agreements provide for the basic principles of market access, non-discrimination, and transparency to be respected by all members while simultaneously allowing them to pursue equally legitimate policy objectives, like the protection of public morals, the environment and human and animal health and life. Another key WTO agreement is the plurilateral Agreement on Government Procurement, which sets out rules for public tendering. The Dispute Settlement Understanding (DSU) provides for a fully-fledged state-to-state dispute resolution mechanism. Panels and, upon appeal, the Appellate Body render binding rulings. If a defending party does not comply with such a ruling, the complaining party is permitted to suspend obligations vis-à-vis the defending party, i.e. to impose retaliatory measures.

Switzerland has a long history of involvement with the General Agreement on Tariffs and Trade 1947. It had become a member of the General Agreement on Tariffs and Trade in 1966 (having applied its rules de facto since 1960). Subsequently, when the WTO became the successor of the General Agreement on Tariffs and Trade in 1995, Switzerland was an original member. Since then, the WTO has provided the backbone of Swiss external economic relations. Swiss companies profit from binding market access rights abroad. To date, Switzerland has only once actively participated in WTO dispute settlement proceedings as a complaining or defending party – it participated as a complaining party in the US – Steel case.4

Further, aside from WTO agreements, Switzerland has concluded a series of free trade agreements with countries all over the globe.5 In addition to the European Free Trade Association (EFTA) and the free trade agreement with the EU,6 Switzerland currently has a network of 28 free trade agreements with 38 partners. Switzerland has usually concluded its free trade agreements together with its EFTA partners Norway, Iceland and Liechtenstein; examples are the agreements with Macedonia, Serbia, Ukraine, Turkey, Israel, Egypt, Mexico, Singapore, Chile, the Republic of Korea, the SACU States (including South Africa), Canada, and Hong Kong. Recently, Switzerland has also entered into agreements on its own; this has been the case with respect to the agreements with Japan and China. The main objective of free trade agreements is not only to improve market access for Swiss companies per se, but also to ensure that Swiss companies enjoy market access conditions which are at least as favourable as those enjoyed by its main competitors (in particular those competitors located in the EU). In this context, the conclusion of the Comprehensive Economic and Trade Agreement between the EU and Canada (CETA) has led Switzerland to try to renegotiate specific elements of the free trade agreement with Canada. Further, the possible (although currently highly unlikely) conclusion of the Transatlantic Trade and Investment Partnership between the EU and the US (TTIP) would result in even clearer disadvantages for Swiss companies vis-à-vis their competitors in the EU; Switzerland would be forced to make new attempts to level the playing field.

Switzerland is also a party to other international organisations and treaty networks which complement the multilateral trading system under the WTO and free trade agreements. Examples include the World Customs Organization (WCO) and the Organization of Economic Co-operation and Development (OECD). Furthermore, Switzerland has concluded 130 bilateral investment treaties (BITs), mainly with developing and least-developed countries. These treaties allow Swiss firms to request the establishment of arbitration tribunals, in particular based on the rules of the International Centre for Settlement of Investment Disputes (ICSID), in order to review expropriations.

3. SWITZERLAND AND EUROPE

a)General Framework

Switzerland was hesitant about joining European organisations and treaty networks after the end of the Second World War, being concerned that such action may compromise its position of neutrality, independency and autonomy in external trade matters. However, it did join the Organisation for European Economic Co-operation (OEEC), whose key purpose was to administer the European Recovery Program (Marshall Plan), as an original member at its creation in 1948. In 1961, the OEEC was renamed the OECD, and both its mandate and membership were substantially broadened. Regarding European integration, Switzerland did not participate in the efforts to further this through joining the EEC/EC/EU. Instead, in 1960, Switzerland founded the EFTA, together with six other European countries. It is still a member of EFTA to this day, together with Iceland, Liechtenstein and Norway. In 1963, Switzerland became a member of the Council of Europe, whose prime objective is to promote democracy, human rights and the rule of law. Further, in 1974, it also ratified the ECHR. In 1972, Switzerland and the EEC concluded a comprehensive free trade agreement which has been providing the basis for bilateral relations with the EU up to this day. In 1975, Switzerland became an original member of the Conference on Security and Co-operation in Europe (CSCE) – renamed the Organisation for Security and Co-operation in Europe (OSCE) in 1994. In 1992, the people and the cantons rejected accession to the European Economic Area (EEA). Thereafter, Switzerland focused, faute de mieux, on concluding sectoral treaties with the EC/EU, combined with the policy of autonomous adaptation of Swiss law to ensure compliance with EU law. This approach, the “Swiss model” of European integration, has proven to be successful, as will be further outlined below.

b)Bilateral Agreements

Together with the free trade agreement Switzerland concluded with the EEC in 1972, the two sets of bilateral agreements of 1999 and 2004 between Switzerland and the EU (the “Bilaterals I” and the “Bilaterals II”) provide the legal framework for the Swiss-EU relationship. The Bilaterals I consist of seven agreements, mainly dealing with market access (free movement of persons, public procurement, technical barriers to trade, trade in agricultural products, land transport, air transport, and research). These agreements are tied together by a guillotine clause; the termination of one agreement automatically leads to the termination of the others. The EU insisted on such a clause in order to prevent “cherry picking” on the part of Switzerland; the former feared that the Swiss people would reject the Agreement on the Free Movement of Persons – a particularly sensitive issue in this country but a conditio sine qua non for the EU – in a referendum. The Bilaterals II consist of nine agreements and in some respects go beyond market access: they also deal with political issues and co-operation in culture and education (Schengen/Dublin, taxation of savings, fight against fraud, trade in processed agricultural products, MEDIA, environment, statistics, pensions of former EU officials, education and youth programmes). The Bilaterals II do not contain a guillotine clause; only the Schengen/Dublin association agreements share a common fate. The main agreements are supplemented by over 100 other (secondary) agreements. Institutionally, the agreements fail to go beyond the classic tools of diplomatic dispute resolution. Dispute resolution under such agreements proceeds in agreement-specific mixed committees which decide by consensus.

Since 2004, only a few agreements have been concluded, amongst them an agreement on customs facilitation and security, which substantially revised an older version (1990/2009), and an agreement on the cooperation of competition authorities (2013). Moreover, under further bilateral agreements, Switzerland participates in various EU agencies and programmes, including Europol, Eurojust, the European Border and Coast Guard Agency (Frontex) and the European Aviation Safety Agency (EASA). Such participation allows Swiss representatives to be integrated into EU transgovernmental structures. Swiss representatives are informed on ongoing action and can influence the work, mainly by relying on the power of the pen (decision shaping). Naturally, they do not possess voting rights (decision-making).

Currently, Switzerland’s “bilateral way” of cooperating with the EU faces two major challenges. The first major challenge has arrived in the form of a popular initiative approved by the people and the cantons called “against mass immigration” (“Gegen Masseneinwanderung”, 2014). According to the initiative’s newly introduced Articles 121a and 197 No 11 Constitution,7 Switzerland shall control the immigration of foreign nationals autonomously, by introducing annual quotas and granting Swiss citizens priority on the job market. After the approval of the initiative, the EU made it clear in response that it was not willing to renegotiate the Agreement on the Free Movement of Persons of 1999 to the effect that quotas and a discriminatory priority system for Swiss citizens would be permitted. Against this background, the Federal Assembly decided to implement the initiative in a way that ensured it would not violate the Agreement on the Free Movement of Persons. In the context of the Swiss policy of cooperation with the EU, this outcome has been welcomed by most commentators. The danger posed to the continuation of the current bilateral way has been, at least for the time being, dispelled. However, from a constitutional law perspective the outcome is problematic. The wording of the initiative’s newly introduced constitutional provisions is clear, and the implementing legislation fails to reflect this properly. An initiative committee successfully collected more than 100’000 signatures for their initiative “out of the dead end” (“Raus aus der Sackgasse”, RASA), which provided for the deletion of Articles 121a and 197 No 11 Constitution, the articles which had been created by the “against mass immigration” initiative. However, the initiative committee withdrew the initiative in late 2017, meaning the people and the cantons do not have the possibility to vote on the matter again. This is regrettable.

The second major challenge to the bilateral agreement approach is the fact that as of 2008, the EU has made it clear that it expects Switzerland to conclude an institutional agreement which provides common rules on the dynamic updating of the bilateral agreements, the supervision of their correct interpretation and application, and dispute resolution. An institutional agreement would apply to both new and existing market access agreements which are based on EU law. In Switzerland, the prospect of such an institutional agreement is controversial; some see it as a threat to Switzerland’s sovereignty. However, it might actually be advantageous for Switzerland to have the increasingly complex treaty network established on a new and clearer basis: this would enhance legal security, transparency and efficiency. The EU and Switzerland would have a right to bring disputes before a juridical body, presumably an arbitration panel (which must involve the European Court of Justice where a dispute concerns the interpretation of EU law). Switzerland would not depend exclusively on the goodwill of the EU in resolving disputes as is the case today. Moreover, the EU has made the conclusion of new market access agreements (for example an agreement on electricity and on financial services) conditional upon the conclusion of an institutional agreement. Thus, if Switzerland wants to benefit from such agreements in the future, it must act to establish this institutional agreement. The current state of affairs regarding the institutional agreement is that Switzerland and the EU are still in the negotiation phase.

c)Autonomous Adaptation of Swiss Law to EU Law

In parallel to the tight network of bilateral agreements Switzerland is party to, it has adopted another approach to mitigate the negative consequences of not being a member of the EU or the EEA: namely, the policy of autonomous adaptation of Swiss law to ensure compliance with EU law. According to the Federal Council, Switzerland’s “goal has to be to secure the greatest compatibility of our legislation with the legislation of our European partners in the areas of cross-border significance.”8 Of course, it is entirely possible for Switzerland to deviate from EU regulations and directives; however, this shall only be the chosen approach if there are cogent political and/or economic reasons for doing so.

Overall, the policy of autonomous adaptation has led to the systematic adoption of EU law. Typical examples where autonomous adaptation is employed are laws concerning technical regulations and standards, data protection and financial markets. It has been estimated that 30–50 % of all federal acts and ordinances are influenced by EU law, directly or indirectly: certainly no insignificant proportion.

1See the chapter on Constitutional Law, p. 144.

2Federal Department of Foreign Affairs (FDFA; https://perma.cc/A6SY-TXYK).

3For more detail on Switzerland’s policy of neutrality, see p. 174.

4See pp. 183.

5State Secretariat for Economic Affairs (SECO; https://perma.cc/JBY6-CRC3).

6See pp. 169.

7Federal Constitution of the Swiss Confederation of 18 April 1999, SR 101; see for an English version of the Swiss Constitution www.admin.ch (https://perma.cc/M8UJ-S369).

8Bericht über die Stellung der Schweiz im europäischen Integrationsprozess vom 24. August 1988, Federal Gazette No 37 of 20 September 1988, pp. 249, p. 380 (own translation).