Background
see 4.1
Summary
Precedence of national law when the legislature accepts a conflict with international law: Decision of 2 March 1973 in the case of Schubert v Appeals Commission for Application of the Federal Law on the Purchasing of Real Estate to Persons of Foreign Domicile of the Canton of Ticino (BGE 99 Ib 39)
On the basis of the federal decree requiring persons of foreign domicile to obtain a permit to purchase real estate, Schubert, a citizen and resident of Austria, was denied a permit to purchase real estate property in Brissago on the Lake Maggiore adjacent to a property owned by him due to lacking an interest worth protecting. Schubert argued that the rejection on the basis of the 1961 Federal Decree violated the 1875 friendship and commerce treaty between Switzerland and the Austro-Hungarian Empire which provided for equal treatment of nationals of the two countries in real estate purchases. International law, he argued, takes precedence as lex specialis over national law. The Federal Supreme Court argued that it is generally presumed that the federal legislature intends to respect and comply with properly concluded international treaties. This presumption, however, is rebutted if Parliament knowingly takes the possibility into account of a conflict between national and international law. Giving preference to national law over older or newer treaty law in such cases could serve to alleviate hardship cases and effectively safeguard certain significant interests. Deliberate deviation by the legislature, as the highest authority of the Confederation, from a provision of international law does not change the rights and obligations of the state vis-à-vis the international community. Yet, internally as a matter of domestic law it is binding upon courts of law. Conflicts and potential conflicts could however be avoided by interpreting national law to the utmost extent possible so as to conform international law, thus upholding the primacy of international law. In the case under review legislators had taken the possibility of conflicts into account, thus the Federal Supreme Court found that it was bound to the national law resolution. Therefore, it was not possible to rule on whether a conflict with international law may have been in evidence.
