Daniel Wüger, Anwendbarkeit und Justiziabilität völkerrechtlicher Normen im schweizerischen Recht: Grundlagen, Methoden und Kriterien, Berne 2005 (excerpt: pp. 233 – 288)
Daniel Wüger – Anwendbarkeit und Justiziabilität völkerrechtlicher Normen
Background
A distinction must be made between the direct applicability of a norm of international law and its domestic validity, involving a question of whether rights can be derived directly from the norm and asserted in court, i.e. whether the norm is “justiciable” or “self-executing”. If the court considers the norm to be directly applicable to the individual case under review, it decides on the merits. Otherwise, it is up to legislators to specify and shape the norm. Thus the decision regarding direct applicability of a norm of international law about defining the respective responsibilities of legislators and the courts. It goes without saying that the question of direct applicability is a particularly sensitive one where national and international legal norms collide. Whether a legal norm can be applied directly or requires instead specification by legislators is decided through interpretation of the norm. The Federal Supreme Court has consistently ruled that a provision of an international treaty is always directly applicable “if its content is sufficiently clear and precise so as to afford a basis for a decision in a given case”. This characteristic is “not in evidence in merely programmatic articles. Nor is it in evidence in provisions which only broadly regulate a matter, leave the state party considerable discretionary or decision-making powers, or merely contain guiding principles, i.e. which are not addressed to the administrative or judicial authorities but rather to the legislature.” (e.g. BGE 120 Ia 1). In the context of interpreting national law in conformity with international law however, international law which is not directly applicable also has to be considered. The author analyses Federal Supreme Court rulings on the basis of the different elements of the standard formula and other elements of interpretation, comparing these against ECJ and the US Supreme Court rulings.
Summary
According Federal Supreme Court rulings, the wording of a legal norm is of decisive importance with regard to direct applicability, which is the same view taken by the US Supreme Court and the ECJ. Contracting parties can utilise clear wording to favour direct applicability, as in the Agreement on the Free Movement of Persons between Switzerland and the EU, for example. However, the Federal Supreme Court has also declared unclearly formulated norms to be directly applicable, the author notes. Prohibitive norms, non-discrimination clauses, standstill clauses (new restrictions on a right) and conflict-of-law norms often qualify as directly applicable. Programmatic norms contain a programme element, a call for action in a certain area without concrete specifications. The ECJ makes this distinction as well. The UN Covenant I on Economic, Social and Cultural Rights no longer generally qualifies as non-self-executing for the Federal Supreme Court. As with the wording, neither does the programmatic nature of norms constitute a clear distinction favouring direct applicability. The same applies when a matter is only broadly regulated, where considerable discretionary or decision-making leeway is granted or where mere guiding principles are concerned. Discretion in this case does not refer to the administrative concept of discretion but rather to only broadly regulating a matter. Sometimes even relatively inconspicuous additions to a norm suffice for the Federal Supreme Court to affirm broad scope for structuring (e.g. “according to which the contracting parties undertake to adhere to the norms and recommended practices”). The author arrives at the conclusion that it is difficult to determine on the basis of wording alone whether a norm is formulated specifically and clearly enough to apply directly, as the Federal Supreme Court has denied justiciability in cases of specific and clear wording and affirmed it in cases of vague and unclear wording. According to the author, the interpretation of an international law norm cannot be based solely on the wording, as it must take other elements into account to which he applies the concept of normative definiteness. As examples of direct applicability he refers to the international human rights conventions, which are rather vaguely worded. The degree of normative certainty can vary depending on the area of law and the matter to be regulated. The Federal Supreme Court also applies the criterion of sufficient certainty. This assessment is not made by referencing a pre-defined scheme. Rather, sufficient certainty must be determined to be in evidence on a case by case basis. The decisive factor is the suitability of the courts for concretizing a norm in an individual case.
In addition to the text of the norm, the classical elements of interpretation play a role in practice, such as the purpose of the international norm and its systematic classification. Justiciability is more likely to be affirmed if an international agreement seeks to regulate the legal status of individuals directly, such as in the case of classical civil liberties, double taxation agreements, the Agreement on the Free Movement of Persons between Switzerland and the EU and ECHR procedural rights. Agreements to be applied by administrative authorities, such as mutual legal assistance agreements, are also usually “self-executing”. The teleological interpretation tends to speak against the direct applicability of agreements on social rights and commercial law agreements. The treaty system also allows conclusions to be drawn regarding direct applicability. The Federal Supreme Court has used the lack of an enforcement mechanism as an argument both for and against direct applicability in the past. The absence of institutions under national law to implement the obligation under the treaty can be an argument against direct applicability. Courts are not suited to set up new administrative branches or establish new legal remedies. However, depending on the extent to which individual interests are affected and on the importance of a supplementation to existing procedural rules, expanding existing administrative competences and extending appeal proceedings into new areas by the courts is a possibility to enable direct application of a norm of international law. For instance, in this sense, the Federal Supreme Court recognized Art. 6 ECHR as directly applicable (PKK propaganda material, BGE 125 II 417). Unlike the ECJ, for example, the Federal Supreme Court apparently does not take into account applicability in other contracting states (reciprocity) when deciding on direct applicability. Nor did the Federal Supreme Court use lack of implementation by the legislature or imminent implementation as supporting arguments to affirm direct applicability. Particularly stringent requirements regarding the specificity of treaty provisions (with regard to what constitutes a breach and threatened sanctions) must apply regarding sanctioning obligations under international law. The author does not mention any relevant Federal Supreme Court ruling.
The Federal Supreme Court, like the ECJ, has ruled on several occasions that customary international law is directly applicable, such as the general principles of law (principle of good faith, to the extent aimed at protecting individuals, ne bis in idem; the prohibition of significant environmentally damaging effects on the territory of other states was also directly applied). In BGE 125 II 417 (PKK propaganda material) the Court directly applied the customary international law principle of pacta sunt servanda, deriving therefrom the fundamental primacy of international law over national law.
The Federal Supreme Court’s criteria of specificity and clarity of treaty text do not adequately characterize the complexity of Federal Supreme Court rulings, thus a norm should, in the opinion of the author, be justiciable if the authority applying the law is capable of concretizing the norm in connection with a specific legal question or if the norm refers to claims, “the determination, recognition, attribution and conferral of which functionally in any way fall within the judicial scope”, in the words of Jörg Paul Müller. It is against this background that the Federal Supreme Court’s formulation is to be understood that a norm must be sufficiently defined and clear in terms of content to form a basis for a decision in an individual case.