Is Switzerland about to follow Russia's legal lead?

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International treaties or national law – what takes precedence? In Switzerland, a people’s initiative wants to decide this once and for all, but is coming up against strong resistance in parliament and civil society.

This content was published on March 13, 2018 minutes

Switzerland has signed over 5,000 international treaties with other states. But those behind the people’s initiative “Swiss law instead of foreign judgesExternal link” want to ensure that in the future Swiss law takes precedence over the international.

Launched by the conservative-right Swiss People’s Party, the initiative proposes that the federal constitution should take precedence over international law, and that the country cannot take on international obligations that run against it. If this was to be the case, it says, Switzerland would have to either modify or leave the international treaty in question.

“Here, it’s us that decide”, the initiators say. Whatever the Swiss electorate chooses should be applied – regardless of what has been agreed with other countries or how instances presided by foreign judges might interpret the norm.

During the current spring session, the Swiss parliament is debating both the initiative and a possible counter-proposal. This latter would foresee an alternative enshrining a controversial piece of legislation suggested by the Federal Supreme Court, the “Schubert practice”. This practice essentially means that, if parliament approves a law that it is aware conflicts with international obligations, the law would nevertheless take precedence because deputies would have deliberately chosen to move away from international law. However, the “Schubert practice” would not apply when it comes to laws governing human rights and their violation.

Parliament will decide if the initiative is put to voters with or without the counter-proposal; the Senate will be the first to debate the issue, on Wednesday, March 13.

Strong pushback

Civil society is fighting hard against both the initiative and the counter-proposal: academics, Caritas, Amnesty International, economiesuisse, Opération Libero – the list of opponents is long. Indeed, in 2014, the campaign “Facteur de protection DExternal link” was established with the specific goal of stopping the initiative.

As for political parties, a large coalition of left and centre parties reckons that the initiative seeks to undermine the European Convention on Human Rights, an action that would seriously harm Switzerland’s image.

The Federal Council, Switzerland’s government, has also recommended that parliament rejects the imitative without offering any counter-proposal. The government can support neither the overall approach nor the details of the initative, it writes in explanation of why no counter-proposal is necessary.

After analysis of the ramifications of the initiative and the changes from the existing practices of regulating conflicts between the constitution and international law, the judicial affairs committee of the Senate has also proposed a rejection, also without any counter-proposal.

Switzerland (still) a model pupil

Meanwhile, while the debate rolls on in Switzerland, Russia has made its decision: in 2015, its constitutional court ruled that international law no longer took primacy over national law.

It’s important to remember that Russia regularly loses cases in the European Court of Human Rights, which means paying back heavy fines and reparation costs. Thus, Moscow was not looking to revoke the Convention, but rather its authorities can now simply ignore the judgements coming from the Strasbourg court.

Such a strategy is hardly one to be adopted by ‘honest’ Switzerland: up to now, at least, the country has always scrupulously applied the decisions of the European Court, however much these decisions may have sometimes grated.

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