Helen Keller, Rezeption des Völkerrechts, eine rechtsvergleichende Studie zur Praxis des U.S. Supreme Court, des Gerichtshofes der Europäischen Gemeinschaften und des schweizerischen Bundesgerichts in ausgewählten Bereichen, Berlin etc. 2003 (excerpts: pp. 341 – 372, 16 – 19)
Helen Keller – Rezeption des Völkerrechts
Background
Increasing international interdependence across all areas of society increased the importance of international and supranational law, and this trend continues. As a result, Federal Supreme Court rulings and legal theory literature on international law issues have addressed a correspondingly broad and deep array of issues. The framework within which the Federal Supreme Court decides cases requires some introductory discussion. On the one hand the principle of international law applies that a State Party is bound to uphold international legal norms in good faith and cannot cite national law as a valid basis for extricating itself from obligations under an international treaty (see for example Articles 26 and 27 of the Vienna Convention on the Law of Treaties). However, international law does not concern itself with the manner in which the State fulfils this obligation. On the other hand, the Federal Constitution provides a framework for Federal Supreme Court rulings. A text by Helen Keller, who is Professor of Public, European and International Law at the University of Zurich and a former Swiss judge on the ECtHR, is thus cited by way of introduction. The text summarizes the evolution in how the Constitution has addressed the status of international law and the fundamental judicial conflict connected with its application. Parts II I. 2, 3 and 4 following are devoted to a discussion of the three fundamental questions in the relationship between international law and national law (which the author addresses but are not summarized below). The first question is whether international law becomes directly valid within the domestic legal system or whether a domestic act of transformation is required for this (monism or dualism, see Part II I. 2.). Distinction must be made between whether international law applies directly in the national context or requires specific definition under national law (direct applicability, see Part II I. 3.). In case of a conflict between international law and national law, the question of priority arises (Part II I. 4.). Important judgements on international law in Swiss jurisdiction can be found in the cluster “Public International Law” https://www.legalanthology.ch/category/international-law/d-contributions-of-the-courts/.
Summary
Like the Constitution of the United States or the founding treaties of the EC, the Federal Constitution of 1874 only rudimentarily addressed core questions concerning the relationship between international law and national law. Federal Supreme Court rulings, integration policy issues and the 1999 constitutional revision prompted more intensive examination of fundamental questions regarding this relationship. In that interim period, the understanding of international law had changed. At the time of founding of the Swiss Confederation in 1848, international law was understood mainly as a means of building up a diplomatic and consular network. Towards the end of the 19th century, a network of bilateral treaties was established, which made the agreement-oriented nature of international law more important. In addition, the view emerged that Switzerland, as a small nation, cannot afford to ignore international legal norms. This insight spurred commitment to developing mechanisms for international dispute settlement. The concept of the universality of international law only became established in the last century, as reflected, for example, in the announcements of accession to the Statute of the International Court of Justice, the ECHR and the UN human rights covenants. The Federal Constitution of 1999 made compliance with international law a principle characterizing the actions of a law-abiding nation, declaring international law to be binding on the Federal Supreme Court (in addition to federal laws). The Constitution does not exhaustively regulate questions of legal precedence, leaving these open as a matter of application of the law. Only mandatory international law enjoys constitutionally recognized precedence over national law.
Early Federal Supreme Court rulings were decidedly favourable to international law, partly in that the Federal Supreme Court adopted general rules of international law, norms of customary international law and general principles of law. In the interwar period, in the event of a conflict between national and international law the courts increasingly focused on national legislation as an outflow of sovereignty. Towards the end of the 20th century, a more pro-international law stance once again emerged. The Federal Supreme Court also utilised soft law in interpreting international legal norms and observed international law in exercising its discretionary powers. The judiciary is in a fundamentally difficult position with regard to the reception of international law. Because international law has relatively weak dispute settlement mechanisms, it essentially depends upon the application and enforcement by the domestic courts. Domestic judges are thus the main guardians of the international order. However, their self-understanding is informed by their task of ensuring the uniformity of law in the federal state. They do not have a comparable self-understanding with regard to further developments and uniform application of international law. They are not trained for this, nor are the practices of other countries sufficiently developed. In the absence of an international judicial body, not all states have the same understanding regarding a particular international legal norm. National courts can only ensure action in accordance with international law to a limited extent, as they can only decide individual cases and cannot substitute for the legislation and government. Thus they leave the general harmonization of national law with international law up to the political bodies unless legislators fail to do so. When action is filed over conflict between a national legal norm and an international one, the court has various conflict resolution strategies at its disposal: A conflict is not in evidence if the case to be reviewed does not fall within the scope of application of the international legal norm or if the norm is not directly applicable or is not even violated. Conflicts can also be avoided by interpreting national law in conformity with international law, which has a de facto coordinating function. The act-of-state and political-question doctrines familiar in the Anglo-American world are not part of Swiss law.