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The Federal Constitution contains many provisions relevant to Switzerland’s international engagement. These provisions regulate a variety of matters from the goals to be pursued in international relations to the different competences of various actors in this area, in particular those of the federation, the cantons and the people. Finally, the jurisprudence of the Federal Supreme Court has had a strong influence on the position of international law in Switzerland. These areas will be discussed in the upcoming paragraphs.
The Constitution enlists the goals which Switzerland shall pursue in its international relations. Partly, these goals are of an egoistic nature while partly, they direct the authorities to act altruistically (Preamble, Articles 2 IV, 54 II and 101 I Constitution). They state that the people and the cantons are resolved to act in a spirit of solidarity and openness towards the world; the confederation is committed to a just and peaceful international order; it shall ensure that the independence of the country and its welfare is safeguarded; it shall contribute to the alleviation of need and poverty in the world, to the respect for human rights and democracy, to the peaceful co-existence of peoples, and to the conservation of natural resources; it shall safeguard the interests of the Swiss economy abroad. Regrettably, the Constitution does not reflect the true extent of Swiss participation in international and European organisations and treaty networks. Only Switzerland’s UN membership is mentioned; it, at least, has found its way into the transitional provisions (Article 197 No 1 Constitution).
These constitutional goals are framed in rather abstract terms. Thus, in essence, it falls under the discretion of the authorities to concretise them when they decide on specific foreign policy measures. Moreover, the Constitution does not provide for any applicable rules to follow in the event of a conflict between these goals. For instance, there might be controversial debate over whether and, if so, to what extent the protection of fundamental rights should be taken into account in the context of free trade agreements. The Constitution provides no real guidance in this context. There was some debate over this issue when Switzerland negotiated and concluded its free trade agreement with China in 2014; there were concerns that such an agreement could foster human rights violations if free trade was relied upon too heavily as an end in itself. The eventual result of these negotiations was an agreement that reaffirms both parties’ commitment to respecting selected fundamental rights and “fundamental norms of international relations” in the Preamble, supplemented by a side-agreement on labour and employment.
Some argue that the concept of neutrality also amounts to a principle which guides Swiss foreign policy. Back in 1815 at the Congress of Vienna, the then predominant European powers recognised the neutrality of the Swiss confederation. Since then, this status has been reconfirmed several times, and Switzerland has adhered to the notion of (armed) neutrality as acknowledged in public international law. However, the Constitution does not state that neutrality in itself is a goal of Swiss foreign policy.9 Rather, neutrality is to be used as one of many instruments in order to achieve the goals set out above.
Foreign relations fall under the competences and responsibilities of the federation (Article 54 Constitution). This includes the competence to conclude treaties. This competence for concluding treaties can result in the federation dealing with issues that also encompass policy areas which internally fall into the cantons’ domain. Thus, the federal authorities are obliged to protect the interests of the cantons in such a situation and to ensure that they participate in preparing and conducting treaty negotiations in an appropriate manner (Article 55 Constitution).
Despite the existence of Article 55 Constitution, the increasing tendency to take recourse to treaties has resulted in a tacit neutralisation of cantonal competences. The bilateral agreements Switzerland has established with the EU, for instance, deal with matters partly falling into the domain of the cantons, such as cantonal police, recognition of professional qualifications and public procurement. Accordingly, to ensure that the cantons are not being effectively ignored or undermined, consultation and cooperation between the different layers of government are fundamentally important; more so today than in the past. The cantons have also taken their own steps to ensure their interests are represented: in 1993 they founded the Conference of the Cantonal Governments (KdK) which helps coordinate the efforts of the cantons to pool their interests and speak with one stronger voice.
The cantons are competent to independently conclude international treaties in areas which fall under their remit, as long as the federation has not taken action in that specific policy field itself (Article 56 Constitution). For example, treaties between cantons and neighbouring states or sub-levels of states, such as the German Bundesländer, concern cross-border issues like transportation, infrastructure, waste management, and the protection of the environment.
b)Federal Council, Federal Assembly, Federal Courts
The fundamental principle of the separation of powers between the different branches of government is not just relevant to the Swiss political system in general,10 but is also a key principle in Swiss foreign policy. The functions of the Federal Council (including the federal administration), the Federal Assembly and the Federal Supreme Court within the context of international relations are as follows:
-The Federal Council is primarily responsible for foreign relations, subject to the right of participation of the Federal Assembly (Article 184 Constitution). It represents Switzerland abroad. The federal administration negotiates treaties, based on a mandate established by the Federal Council. The Federal Council is competent to conclude treaties of limited scope on its own; this is the case, inter alia, when a treaty does not create new obligations for Switzerland or when a treaty primarily concerns the authorities and involves technical administrative issues (Article 7a of the Government and Administration Organisation Act).11
-The Federal Assembly participates in shaping foreign policy and supervises the maintenance of foreign relations (Article 166 Constitution). It must agree to the conclusion of treaties (unless the Federal Council can do so on its own). However, the Federal Assembly can only approve or reject a signed treaty in toto. In particular, in the case of “package deals” (such as the accession to the WTO),12 the Federal Assembly realistically has no other choice than to “wave” a treaty through. From a democratic point of view, this is problematic. It does not allow the treaty at issue to be subjected to proper scrutiny by the Federal Assembly in order to propose amendments. It should be noted, however, that the Foreign Affairs Committees of the National Council and the Council of States must be consulted before the Federal Council adopts a negotiation mandate. Further, these committees are periodically informed about ongoing negotiations, to ensure they are able to offer relevant and up-to-date advice in this regard.
-The Federal Supreme Court acts on appeal, hearing cases decided either by the highest cantonal courts or by other federal courts. Thereby, it also interprets international law and shapes the relationship between international law and Swiss law.13
The ongoing shift in law-making from domestic legislation towards international treaties has led to a readjustment of the power balance between the Federal Assembly and the Federal Council (including the federal administration). The power of the latter is increased to the detriment of the former. Consequently, new procedures should be sought in order to enhance the participation of the Federal Assembly as well as that of cantons and civil society groups both in the preparatory phase of and throughout negotiations. Currently, the aforementioned groups’ participation in the treaty-making process is, from a democratic viewpoint, too marginal.
Swiss citizens are regularly called upon to vote on issues which either directly or indirectly concern foreign relations and Switzerland’s position on the international plane. The direct democratic tools on offer – popular initiatives and referenda – have decisively shaped the treaty-making process in Switzerland.14 The instruments are two distinct creations, but have a similarly strong impact on Swiss international relations:
-A popular initiative allows a minimum of 100’000 citizens to demand a vote on a proposed revision of the Constitution (Articles 138–139b Constitution). Through popular initiatives, the people can have a significant influence on Switzerland’s international relations. A prime example of this was the popular initiative for the accession of Switzerland to the UN, which was approved of by the people and the cantons in 2002. This was a positive step forward in terms of Switzerland’s cooperation with the international community. However, over the last decade, an increasing number of initiatives have been incompatible with international law, considering their unambiguous wording. Key examples are the initiative “against the construction of minarets” (“Gegen den Bau von Minaretten”, 2009), the initiative “for the expulsion of criminal foreign nationals” (“für die Ausschaffung krimineller Ausländer”, 2010) and the initiative “against mass immigration” (“Gegen Masseneinwanderung”, 2014). The implementation of initiatives such as these presents huge problems. This is particularly the case when the initiatives violate basic norms of international law. The initiative “against the construction of minarets” is not compatible with the freedom of religion (Article 9 ECHR) and the prohibition of discrimination (Article 14 ECHR). The initiative “for the expulsion of criminal foreign nationals” and the initiative “against mass immigration” are both incompatible with the Agreement on the Free Movement of Persons with the EU. Moreover, the initiative “for the expulsion of criminal foreign nationals” also violates the right to respect for private and family life (Article 8 ECHR). Often, it is simply not possible to fully implement such initiatives. Proposals for reform in this problematic area have been put forward; for example, there have been calls to introduce a provision according to which a popular initiative must comply with basic fundamental rights as guaranteed, for instance, in the ECHR in order to be valid. However, it is crucial to note that any revision to this effect would itself require the approval of the people and the cantons, which may pose a real obstacle.15
-A referendum allows citizens to vote, inter alia, on the conclusion of an international treaty (Articles 140–142 Constitution). A mandatory referendum takes places in the case of an accession to an organisation for collective security (e.g. NATO) or to a supranational community (e.g. the EU); such an accession needs the approval of a majority of the people and a majority of the cantons. The vote on the envisaged accession to the EEA, eventually rejected by the people and the cantons in 1992, was conducted under this title, due to its potential political and economic significance. In addition, an optional referendum can be requested by 50’000 citizens against the conclusion of an international treaty that: is of unlimited duration and cannot be terminated; provides for accession to an international organisation; contains important legislative provisions or requires the enactment of federal legislation for implementation. Decisive for the outcome is the vote of the people; a majority of the cantons is not required. The bilateral agreements concluded with the EU in 1999, the “Bilaterals I”, and the Schengen/Dublin association agreements of 2004 were all approved of in optional referenda.
It should be noted that regarding referendum votes on treaties, the people often do not possess a real option (a situation somewhat resembling that faced by the Federal Assembly in the case of “package deals”). Practical constraints and opportunity costs can de facto force the people to approve a treaty. Typical examples of this sort of situation are votes on amendments to the Schengen/Dublin association agreements in order to keep them in line with dynamic EU law; rejecting such amendments would seriously endanger the fate of these agreements altogether. Therefore, when the people approved the incorporation of the Council Regulation on biometrics in passports and travel documents16 into the Schengen Agreement with 50.1 % of the votes in 2008, many breathed a sigh of relief – a negative vote could have seriously endangered the continuation of the Schengen Association Agreement and, by virtue of the guillotine clause linking these two treaties, also of the Dublin Association Agreement.
3. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND SWISS LAW
The federal authorities and the cantons are obliged to respect international law in all their activities (Article 5 IV Constitution). Based thereon and in light of the principle of pacta sunt servanda, the Federal Supreme Court has developed a rich stream of case law concerning the validity, rank and effect of international law in Switzerland:
-Swiss law follows the monist tradition. Therefore, treaties which have been duly entered into force automatically become part of domestic law. An act of transformation is not needed.17
-International law generally takes precedence over national law. This is unequivocally the case for peremptory norms of international law (ius cogens); such norms always overrule any conflicting provisions of national law. Moreover, treaties concluded by Switzerland supersede federal acts in the case of a conflict, unless the Federal Assembly has intentionally enacted legislation which violates the treaty obligation; in such a case, the authorities shall apply the federal act (Schubert case law).18 However, this Schubert exception is subject to two key limitations: treaties which guarantee fundamental rights, such as the ECHR, and the Agreement on the Free Movement of Persons with the EU19 must be respected in all cases; the Schubert exception does not apply.20 The Federal Supreme Court has not yet explicitly decided whether these considerations equally apply in the case of a conflict between a treaty and the Constitution.21
-A powerful instrument for averting conflict is the method of interpreting Swiss law in a way that ensures its conformity with international law. The Swiss authorities routinely employ this method.22
-Individuals can invoke treaty provisions in proceedings before public authorities directly if they are self-executing, i.e. if they both confer rights on individuals and are sufficiently clear and unconditional to preclude any need for implementing legislation.23 Typically, human rights treaties as well as the main bilateral agreements with the EU are directly applicable. However, a key problem with this principle is its vulnerability to interpretation: sometimes the courts refrain from applying treaty provisions directly, even though they seem to obviously meet the conditions of clarity and unconditionality. WTO agreements, for instance, are not considered to be directly applicable.24 The Federal Supreme Court has also, time and again, refused to directly apply the free trade agreement concluded in 1972 with the EU. This mercantilist approach is the subject of controversial debate. There are competing interests at stake: for example, ensuring the effectiveness of international law versus maintaining both balanced international legal relations (reciprocity) and the domestic balance of powers. Concerns as to the lack of adequate democratic representation in international law-making are a key part of the debate.
In 2016, the Swiss People’s Party (SVP) submitted the initiative “Swiss law instead of foreign judges (self-determination initiative)” (“Schweizer Recht statt fremde Richter [Selbstbestimmungsinitiative]”). According to the proposed text, the Swiss Constitution is the highest source of law in Switzerland. In the case of a conflict between the Constitution and a treaty, the former prevails (with the exception of ius cogens). In such a circumstance, the treaty must be renegotiated; if necessary, it must be terminated. The proposed text reflects the concern that the scope for domestic policy-making is becoming increasingly limited by international law. However, the way the text addresses this concern is hardly useful. The idea of establishing a rigid hierarchy between the Constitution and international law oversimplifies the complex interplay between these legal dimensions. Moreover, the wording of the initiative is too ambiguous: for example, under what exact circumstances would it become “necessary” to terminate a treaty? Fundamentally, this initiative endangers both legal security and Switzerland’s reputation as a reliable partner in international relations. The people will vote on this proposal in due course.
9THOMAS FLEINER/ALEXANDER MISIC/NICOLE TÖPPERWIEN, Constitutional Law in Switzerland, 2nd edition, Alphen aan den Rijn 2012, n. 24; WALTER HALLER, The Swiss Constitution in a Comparative Context, 2nd edition, Zurich/St. Gallen 2016, n. 71 et seq.
10See the chapter on Constitutional Law, pp. 151.
11Government and Administration Organisation Act of 21 March 1997 (GAOA), SR 172.010. See for an English version of the act www.admin.ch (https://perma.cc/7A5T-PQ6B).
12See pp. 167.
13See pp. 179.
14For more information on these instruments, see the chapter on Constitutional Law, pp. 151.
15HALLER, n. 597 et seqq.
16Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents.
17See already BGE 7 I 774, a judgment of the Federal Supreme Court of 1881.
18BGE 99 Ib 39.
19See pp. 181.
20BGE 125 II 417; BGE 142 II 35.
21See BGE 139 I 16.
22BGE 94 I 669.
23BGE 124 III 90.
24THOMAS COTTIER/MATTHIAS OESCH, International Trade Regulation: Law and Policy in the WTO, the European Union and Switzerland. Comments, Cases, and Materials, Bern/London 2005, pp. 223.