Swiss Review 5/2018

Swiss Review / September 2018 / No.5 10 Politics A fight for national law, international law and human rights The SVP wants to anchor precedence of national law over international law in the Constitution – a fundamental issue is at stake in the party’s referendum campaign. And it will be hard fought. JÜRG MÜLLER “National law before international law” and “Swiss law instead of foreign judges”: these de- mands perfectly fit times of globally resurgent nationalism. They are simple messages with a great deal of black and white – no shades of grey. And that is the pattern being followed by the so- called Self-Determination Initiative (SDI) of the Swiss People’s Party (SVP), which is to be decided by voters on 25November 2018. The key demand: “The Federal Constitution stands above interna- tional law and takes precedence,” except over a few compulsory laws such as prohibition of tor- ture. In the case of international agreements that go against the Constitution, Switzerland would have to renegotiate or terminate them if neces- sary. Additionally, for the Federal SupremeCourt under the initiative only those agreementswould be binding that have been subject to referendum. According to the SVP, self-determination and the independence of Switzerland are threatened – by “politicians, public officials and professors” who want “that the Swiss people no longer have the last word. They would like to restrict the po- litical rights of the people,” according to the initi- ative text. It argues that their stance is increas- ingly “that foreign law, foreign judges and courts countmore than that of Swiss lawdeterminedby the people and the cantons”. The self-determina- tion initiativewouldensure “that Swiss lawis our highest source of law” and “that referendums be implementedwithout any ifs andbuts, regardless whether the decision suits the ‘elite’ in federal Bern or not”. Apart from that, the SVPmaintains that their initiative provides for “legal certainty and stability, in which the relationship between national law and international law is clarified”. Threat to stability and reliability That is just not true, say opponents of the SDI. Be- cause the initiative demands that Swiss interna- tional agreements that contradict the Constitution be re- negotiated or terminated if necessary, that “calls into question the international obligations of Switzerland, thus threatening Switzerland’s stability and reliability”, notes the Federal Council. Among other things, the SDI would harm Switzerland’s economic position. “It jeopardises le- gal certainty in international trade relations” and would complicate planning for Swiss companies. With rigid rules for dealing with possible conflicts be- tween constitutional law and international law, the initia- tivewould restrict the scope of the Federal Council and par- liament: the pragmatic search for broadly supported solutions that would be to the satisfaction of both legal ju- risdictionswould no longer be possible. Switzerlandwould then have only two options: the change, or renegotiation, of an agreement or its termination. International law as contract law The contrast between international lawand Swiss law is in any case largely construed, as international law is not sim- ply foreign law that is imposed on Switzerland: interna- tional law is for the most part contract law that two states or groups of states have negotiated. International agree- ments in Switzerland go through a democratic process, as is usual with the enactment of national law. Today all im- portant international agreements are subject to optional or even obligatory referendum. Opponents of the SDI – the Federal Council, the parlia- mentarymajority and practically all parties except the SVP – judge as particularly sensitive the demand that only those international agreements are to be binding that have been subject to referendum. Thus “the initiative urges authori- ties to defy existing contractual obligations”, the federal- government maintains. This call for breach of contract couldmassivelyweaken Switzerland, it says, since contract- ing parties would no longer feel bound by agreements with Switzerland. Kathrin Alder, lawyer and Federal Supreme Court cor- respondent of the “Neue Zürcher Zeitung”, is carrying out an in depth analysis of the “referendum problem”. The dis- cussion about the conflict of national law versus interna-