Luzius Wildhaber, ‘Distribution of Powers Between Federal Government and Member Unites’ in Luzius Wildhaber, Treaty-Making Power and Constitution: An International and Comparative Study (Basel and Stuttgart: Helbing and Lichtenhahn, 1971) pp. 254-272.
Wildhaber – Treaty Making Power
Background
Luzius Wildhaber is a distinguished academic and judge who was the first President of the new European Court of Human Rights. He has published widely notably in the areas of international law, constitutional law and comparative law. In particular, he authored together with Jörg Paul Müller the leading Swiss case book on international law Praxis des Völkerrechts (3rd ed. Stämpfli, 2001). The extract is taken from Luzius Wildhaber’s habilitation thesis published in 1971 and entitled Treaty-Making Power and Constitution: An International and Comparative Study. The book was mainly written at Yale Law School in the United States. It analyses the interaction between treaty-making procedures and the constitutional law of a number of democratic countries: Australia, Austria, Belgium, France, the Federal Republic of Germany, Switzerland, the United Kingdom and the United States. The habilitation discusses, in detail, considerations on the participation of the people in the treaty-making process. This is particularly important in the case of Switzerland where treaty referendum is provided by the Swiss Constitution. No other country knows rights to participate in the process of adopting international treaties as extensive as Switzerland. The right to referendum essentially extends to all international agreements of a law-making nature, parallel to the referendum on domestic federal legislation.
Summary
The extract is from the second part of the habilitation which addresses the distribution of powers in matters of treaties in federal states between the national government and member units. Wildhaber argues that it is the federal government that holds international treaty-making capacity while derivatives lack such a competence. From this it is the federal government which is liable should a member unit violate an international treaty. Also included are the analysis of the making and the performance of treaties in the federal states of Canada and Switzerland. It is highlighted by Wildhaber that although the Canadian provinces may have had an increase in matters of treaties in contrast the historical rights of Swiss cantons, in this respect, have all but vanished.