What I am convinced of is the need to start with some particularization. I donât find myself at all convinced when people start out claiming they can tell us about judging without some grounding in a specific imagined situation.275
[T]he interpretation of international law is culturally sensitive and needs to be analysed in light of the legal, political and social contexts of the different domestic legal orders.276
1 Introduction
In this chapter, I highlight several characteristics of the Swiss legal order that deserve emphasis for the purposes of this study.277 These characteristics fall into three categories. A first cluster of features pertains to the relationship between the Swiss State and international law (2). It encompasses the characteristics, principles, and goals of Swiss foreign relations law and policy (2.1), and the way the Swiss legal order regulates its relationship with international law (2.2). I then highlight a series of principles of political organization that govern the Swiss State (3): federalism (3.1), linguistic diversity (3.2), the rule of law (3.3), semi-direct democracy (3.4), and legislative supremacy (3.5). Third, I focus on the structure, organization, and functioning of the Swiss judiciary (4), before concluding (5).
As stated at the outset (supra, Chapter 1, section 3), I do not look at the interpretation of international law by domestic courts in abstracto. I focus on a given institutional and domestic legal context,278 and on how courts have decided specific cases. Refraining from focusing on a specific domestic judiciary and on individual cases would lead to an analysis that lacks substance. It would also make it difficult to provide a thorough, reasonably comprehensive, and nuanced account of the challenges and constraints domestic courts face. International law is designed to be implemented in domestic legal orders, which differ in terms of their legal, institutional, and political structures. It would be artificial to sever the domestic case law from the context in which it is nested. Jurisdiction-specific approaches to international law in domestic courts have been widely adopted by international legal scholars,279 and the blending of such approaches with the methods of comparative law has even given birth to a field of its own: âcomparative international lawâ.280
Highlighting the specificities of the Swiss legal order that are significant for an analysis of the Swiss judicial practice of international law has several aims. First, as Duncan Kennedy puts it, these idiosyncrasies are part of the legal âmaterialâ with which Swiss courts have to âworkâ when applying international law domestically.281 Disentangling this domestic âthicketâ282 makes it possible to identify some of the legal (and other) reasons for which Swiss courts interpret international law in a given way.283 Second, domestic law must be factored into any normative appraisal of domestic judicial practices. Third, the present list is also a preliminary step to mapping the Swiss judicial practice of international law through empirical work.284 Fourth, and importantly, this chapter sets the stage for the argument that guides this entire study. As will become apparent, several features of the Swiss legal order explain why the Swiss judicial practice of international law has been predominantly outcome-oriented, anti-theoretical, and deferential towards other branches of government. Yet if Swiss courts are to interpret international law â as opposed to doing something else that does not qualify as such â they must strive to bring their practice into conformity with the interpretative methods of international law, and they must offer predictable, clear, and consistent reasoning in support of their conclusions.
Several caveats apply to this chapter. First, I predominantly flesh out the legal characteristics of the Swiss legal order. Of course, myriad extra-legal peculiarities (be they sociological,285 psychological,286 or anthropological,287 to name but a few examples) explain the domestic judicial practice of international law from an âexternalâ288 vantage point and deserve attention. For reasons of scope and expertise, I take these other approaches into account only at the margins. However, the line between âlegalâ and âextra-legalâ features is not a sharp one, as providing insights into Swiss judgesâ âinternal point of viewâ289 requires looking beyond legal provisions to analyze the way participants in legal practices think, talk, and argue about the law. Hence, I also include aspects that are not strictly âlegalâ (in the sense of being provided for under Swiss law) but that shed light on the Swiss case law.
Second, while I believe to have included what are, for the purpose of this study, noteworthy features of the Swiss legal order, I have certainly not exhausted all the legal characteristics that define the Swiss judicial practice of international law and distinguish it from that of other domestic courts. Additional features include procedural law, for instance, or areas of domestic law that have no obvious connection to international law, but are relevant to a given case.
Third, the facets I highlight should not be considered in isolation. Quite to the contrary, they are likely to influence each other.
Lastly, the significance of the domestic legal context does not mean that domestic courts are not, or must not, be guided by international law, which is the main focus of this study. From the perspective of international law, domestic law cannot in principle justify a Stateâs violation of its international obligations.290 The international legal framework that governs domestic courtsâ interpretation of international law is analyzed in more detail in Chapters 4 and 6 (infra).
2 The Swiss State and International Law
A first cluster of legal specificities that deserves emphasis concerns the relationship between the Swiss State and international law. The goals, principles, and characteristics of Swiss foreign relations law (2.1), and the status, rank, and direct effect of international law in the Swiss legal order (2.2) all constrain Swiss courtsâ adjudication of international legal issues.
2.1 Swiss Foreign Relations Law
Foreign relations law is the body of legal acts that defines the relationship of a State (or of another subject of international law) with other international legal subjects, as well as the rights, duties, and powers of international legal subjects in this context. It must be distinguished from the Stateâs foreign policy, which is primarily driven by strategic, as opposed to legal, considerations (though legal aspects will often be of great importance). In practice, foreign relations law and foreign policy are intermingled: policy goals are achieved through law, which constrains and enables policy, and which defines its general orientation.
What is the relevance of foreign relations law for domestic courtsâ interpretation of international law? A Stateâs foreign relations law determines the type of international legal issues that can be brought before its courts, and it constrains the way in which courts can resolve such issues. It can also make this State âspecially affectedâ291 by specific international legal acts292 (besides other factors, eg geography).293 While some reject the concept of âspecially affected Statesâ due to sovereign equality and Statesâ interconnectedness,294 others contend that if a State is particularly exposed to specific international legal issues, particular weight should be conferred to its practice and opinio juris for the purposes of ascertaining cil.295 In any case, whenever a State is one of the few (or even the only one) to have faced a given international legal issue, its practice will likely be taken into account by other States to determine what international law requires.296
In this subsection, I first highlight the general characteristics of Swiss foreign relations law (2.1.1), before focusing on the domestic separation of powers in foreign relations (2.1.2).
2.1.1 Swiss Foreign Relations Law in General
The Swiss Constitution states that in its foreign relations, the federal State âshall ensure that the independence of Switzerland and its welfare is safeguardedâ and âassist in the alleviation of need and poverty in the world and promote respect for human rights and democracy, the peaceful coexistence of peoples as well as the conservation of natural resourcesâ.297 Another provision that indicates the orientation of Swiss foreign relations is the Confederationâs commitment âto a just and peaceful international orderâ.298 While case law on these constitutional goals and principles is non-existent, concretizations can be found in legislation,299 as well as in a number of governmental documents.300 The Foreign Policy Strategy Report for 2016â19, for instance, enumerates the foundational principles of Swiss foreign relations: the rule of law, neutrality, universality, dialogue, solidarity, responsibility, efficiency, and coherence.301
The commitment of the Swiss State to the rule of law in both interstate and intrastate matters figures among the basic principles of Swiss foreign relations,302 and it is included (either explicitly or through related terms, such as âlegal certaintyâ) under three of the four strategic priorities mentioned in the Swiss Foreign Policy Strategy Report.303 The rule of law also appears in numerous passages of the Federal Councilâs Foreign Policy Report.304 The federal government has linked Switzerlandâs attachment to the rule of law to its acceptance of the icjâs compulsory jurisdiction under art. 36(2) icj Statute,305 to its cooperation with the ad hoc international criminal tribunals,306 and to its ratification of the icc Statute.307 It has also mentioned it in connection with the echr, ratified by Switzerland in 1974,308 and with the iccpr and icescr, which Switzerland ratified in 1992.309 This commitment to the rule of law also manifests itself via the Swiss governmentâs efforts to push reforms of the un Security Council310 and the un treaty bodies.311
Another salient feature of Swiss foreign affairs is Switzerlandâs neutrality.312 It explains why Switzerland has been reluctant (or has refused) to join ios such as the un (Switzerland became a member in 2002),313 nato (Switzerland is not a party to the 1949 North Atlantic Treaty), the eu (Switzerland is not an eu member State), and the eea (Swiss voters rejected a proposed adhesion in 1992). The law of neutrality being relevant for the Swiss legal order, Switzerland is a âspecially affected Stateâ in this regard.
Its neutrality notwithstanding, and in line with its commitment to the rule of law in international relations, Switzerland has entered into a number of international legal relationships with States and other subjects of international law. It has concluded two sets of bilateral agreements with the eu, and it has ratified a wide range of other bilateral and multilateral treaties.314 Switzerland is a member of an array of international and regional organizations, including the un, the wto, the Council of Europe, the efta, the osce, and the oecd, and it cooperates with nato through the âPartnership for Peaceâ program.
Partly owing to its neutrality, Switzerland is the host State of an important number of ios and un agencies. The headquarters of these organizations are mostly in Geneva. The city harbors one of the four main offices of the un, the icrc, the ilo, the who, the wipo, the iso, and many other organizations.315 Other ios are based in Basel (where the bis has its seat) or Bern (where the Universal Postal Union and the Intergovernmental Organization for International Carriage by Rail are located). The presence of these organizations on Swiss territory is governed by domestic legal provisions316 and international treaties317 which clarify these organizationsâ rights and duties, including the privileges and immunities granted by the host State. The international law on privileges and immunities of States, ios, and their agents is hence relevant to the Swiss judicial practice of international law and makes Switzerland a âspecially affected Stateâ in this respect.318 It is worth noting that due to the presence of these organizations, Switzerland is the depositary of many treaties (eg the Geneva Conventions).319
2.1.2 Domestic Separation of Powers in Foreign Relations
The domestic separation of powers defines the respective competences of the three branches of government in foreign relations.320 It constrains domestic courtsâ interpretation of international law by specifying the instances in which courts are legally required to defer to the other branches.
Regarding the horizontal (inter-branch) separation of powers, the Swiss Constitution provides that foreign relations are the primary responsibility of the federal government (the Federal Council).321 The government has the power to sign and ratify treaties,322 which in principle require the subsequent approval of the federal parliament (the Federal Assembly).323 In practice, and like in many States,324 the Federal Council often ratifies treaties based on its independent powers to do so.325 As far as the judiciary is concerned, the Swiss Federal Tribunal has the duty to apply international law,326 although some foreign relations issues fall outside of its jurisdiction (infra, 4.2.1). The Federal Assembly âparticipate[s] in shaping foreign policy and supervise[s] the maintenance of foreign relationsâ.327 The parliamentary powers in foreign relations should not be underestimated. The Federal Assembly comprises two Foreign Policy Committees (one for each house). The Committees examine specific issues referred to them, and they formulate proposals in their area of responsibility.328 The Federal Council regularly informs and consults them.329 By launching initiatives and parliamentary interventions, the Committees can raise issues related to foreign relations.330
It is worth mentioning that in the past, the Swiss constitutional order provided for a âco-mingling of the powers of governmentâ,331 as the federal parliament and the federal executive both exercised âexecutive, legislative, and judicial functionsâ.332 This âco-minglingâ was starkly attenuated by subsequent constitutional amendments.
The Constitution further clarifies the vertical separation of powers between the Confederation and the cantons in international relations (see also infra, 3.1). While foreign affairs are a federal matter,333 the cantons must be consulted by the federal government whenever their interests are affected by a decision,334 and these interests must be respected by foreign policy.335 The cantons also have limited treaty-making powers.336
2.2 International Law in the Swiss Legal Order
Another feature that constrains Swiss courtsâ interpretative activity concerns the way the Swiss legal order regulates its relationship to international law, ie, the status (2.2.1), rank (2.2.2), and direct effect (2.2.3) of international law.337 Given the scarce guidance provided by the Swiss Constitution on these issues, emphasis is placed on the practice of the Swiss authorities. The Swiss Federal Tribunal in particular has clarified several aspects of this relationship.
2.2.1 Status
The domesic status of international law pertains to the conditions under which international law becomes an integral part of domestic law. In this regard, States oscillate between two poles: monism and dualism. Monism does not require that international law be transposed into domestic law to be valid in the domestic legal order. By contrast, dualism demands such a transposition. It is based on a conception of domestic and international law as two separate, âself-containedâ338 sets of norms that ânever overlapâ.339
Overall, Swiss law and practice endorse monism: the Constitution does not require that treaties be transposed to be part of the domestic legal order,340 all levels of government must respect international law,341 courts must apply international law,342 and constitutional amendments cannot disregard so-called mandatory provisions of international law.343 The Swiss Federal Tribunal has mentioned the monism of the Swiss legal order early on,344 and it endorses it with regard to all sources of international law.345 On the other hand, some of the Courtâs early rulings were clearly dualist,346 and past scholarly writings have stated that âSwiss jurists adhere to the dualistic theoryâ.347 While several proposals to switch to dualism have been made at the federal legislative level,348 they have never garnered enough parliamentary support. They have also been consistently rejected by the Federal Council.349
The irritante alternative350 between monism and dualism is often criticized for being simplistic, at odds with reality, and of limited practical significance.351 Still, it remains the most accurate and useful way of capturing the range of positions States adopt with regard to the status of international law in their legal order. However, it is important to note that this status hinges on the practice of a given State352 rather than on its commitments on paper. It could even be argued that States are initially dualist, before positioning themselves on the monist/dualist spectrum via their organs. Another important point is that the distinction between monism and dualism is a spectrum rather than a dichotomy.353 Status is multifaceted: a State may be monist (or dualist) with regard to some sources,354 norms, or substantive areas of international law, but not with regard to others.355 Its practice may change over time, and the practice of different State organs may be inconsistent. In monist States like Switzerland, courts still have to decide whether or not international law is applicable to a given case.356 In this context, they may (consciously or unconsciously) adopt âblunting rulesâ, as the ila Study Group on the Principles on the Engagement of Domestic Courts With International Law (hereinafter: âila Study Group on Domestic Courtsâ) calls them, ie, approaches that mitigate the monism of their legal order.357
Courts are constrained by the monism of the Swiss State, but they also contribute to shaping it. Monism is often associated with a favorable, âopenâ attitude towards international law,358 and vice versa. Granted, dualist States, which apply international law in its domesticated form, are more likely to reason as if they were applying domestic law.359 On the other hand, their organs might be more willing to apply international law than those of monist jurisdictions.360 Much depends, as previously stated, on the practice of the State authorities.361 Swiss courts for instance sometimes mention international law even when it has not been invoked by the parties.362 They also tend to apply domestic and international law in parallel when their subject matters overlap,363 as opposed to courts in other States.364 This matches the observation made by Rosalyn Higgins that in monist jurisdictions, international law is more likely to be âtreated as a familiar topicâ by the courts.365 On the other hand, Swiss courts also refrain from referring to relevant international law in some cases.366 In a judgment issued in 2018, for instance, the Swiss Federal Tribunal held that whenever national law did not conflict with international law (in casu with the Swissâeu Agreement on the Free Movement of Persons), the lower court âmust first apply the national law, with which it is familiarâ.367 Such statements illustrate the ambivalent role domestic courts often adopt with regard to the interpretation of international law.
2.2.2 Rank
The domestic rank of international law pertains to how conflicts between domestic and international law are resolved under domestic law. Although âone of the great principles of international law, informing the whole system and applying to every branch of itâ368 is that international law, qua law, claims supremacy over domestic law,369 including constitutional law,370 the rank of international law in the domestic legal order is governed by domestic law.
In Switzerland, the rank of international law is controversial given the constitutional silence on the matter, and due to the high stakes involved for the Swiss State. The issue regularly surfaces in Swiss politics.371
States often acknowledge the supremacy of international law in principle,372 but they seldom accept that international law is supreme over all of domestic law.373 As a matter of fact, the Swiss Federal Tribunal has made clear that the Constitution does not endorse an âunconditional supremacy of international law over domestic lawâ.374 Indeed, the Constitution does not settle the issue of rank, except for âmandatory provisions of international lawâ375 which constitutional amendments must respect (on this autonomous notion of Swiss law, see infra).
Regardless of how they address the issue of rank, States typically try to avoid conflicts between domestic law and international law in the first place. They do so chiefly through the principle of consistent interpretation,376 which expresses a Stateâs adherence to the supremacy of international law.377 This principle establishes the presumption that legislatures intend to comply with the Stateâs international obligations.378 The Swiss Federal Tribunal first articulated the principle of consistent interpretation in 1968, holding that the federal legislature was to be presumed not to have intended to violate international law.379 âIn case of doubt,â the Court added, âdomestic law is to be interpreted consistently with international lawâ, a principle reflecting ânew trends in France, in the Federal Republic of Germany and in the Netherlandsâ.380
Despite consistent interpretation, conflicts between international law and Swiss law do arise. To analyze how clashes are handled by the Swiss authorities, one must distinguish between cantonal law, federal law to the exclusion of so-called âfederal actsâ (art. 164 Cst.), federal acts, and constitutional law.
The supremacy of international law is uncontroversial with regard to cantonal law,381 since federal law (which includes international law)382 trumps cantonal law.383 An equally straightforward case is the relationship between international law and federal law, excluding federal acts pursuant to art. 164 Cst. The Constitution states that the courts âapply the federal actsâ.384 Apart from federal acts, however, federal law (eg federal ordinances and decrees) gives way to international law.
The relationship between international law and federal acts (as defined by art. 164 Cst.) is without doubt the aspect of the interface between Swiss law and international law that has spilt the most ink.385 To handle conflicts between international law and federal acts, the starting point is art. 190 Cst. This provision states that Swiss courts âapply the federal acts and international lawâ. Art. 190 entails that courts cannot refrain from applying federal acts and international law (infra, 3.5), but it does not clarify their relationship. Hence, whenever federal acts and international law conflict, Swiss courts are in a typical case of âdouble bindâ:386 they are bound by two incompatible legal duties.
The Swiss Federal Tribunalâs interpretation of art. 190 Cst. has fluctuated over time. In its early case law, the Court often denied the existence of a conflict by presuming that the legislature had not intended to derogate from international law.387 Yet in 1933, it held that treaties had âno other value than any other law regularly voted in and promulgatedâ, and that conflicts were to be resolved by giving preference to the lex posterior.388 Later rulings389 reflect an endorsement of the supremacy of international law and of the idea that whenever a treaty settles an issue, federal acts are not applicable, or only on a subsidiary basis.390 Since the early 1990s, the Court has deemed the principle of supremacy âlargely undisputedâ.391 It has emphasized the supremacy of human rights treaties,392 but also of treaties in general,393 and it considers that supremacy âfollows from the very nature of the international legal norm, which is hierarchically superior to any domestic legal normâ.394 It has thereby abandoned its practice of prioritizing the lex posterior,395 at least in principle (on the Schubert Praxis, see infra).
The recent practice confirms the Courtâs ambivalent attitude towards international law. On the one hand, the Court considers that the duty to apply federal acts pursuant to art. 190 Cst. does not prohibit396 examining their conformity with constitutional law and with international law,397 especially with the echr398 (Anwendungsgebot, kein Prüfungsverbot). Hence, the Swiss Federal Tribunal can point to inconsistencies between domestic law and international law, and it can recommend that the legislature amend problematic provisions.399 The Court has gone further. It has refrained from applying federal acts conflicting with the echr400 and with the Swissâeu Agreement on the Free Movement of Persons,401 and it has even hinted that based on the supremacy of international law, it might interpret federal acts contra legem and consistently with international law.402 On the other hand, the Court has adopted a hands-off approach when reviewing the conformity of federal acts with the echr.403 Moreover, the Court maintains a significant exception to the principle of supremacy, namely the so-called Schubert Praxis.404
The Schubert Praxis owes its name to the Swiss Federal Tribunalâs ruling of 1973 in Schubert contro Commissione cantonale ticinese di ricorso. In this case, the Court held that whenever the legislature willingly derogates from the Stateâs existing international legal obligations, the more recent federal act will trump international law.405 The Court allows counter-exceptions to this exception, namely when federal acts are intended to derogate from the echr406 or from the non-discrimination principle enshrined in the Swissâeu Agreement on the Free Movement of Persons.407 Another exception mentioned by judges and scholars is jus cogens.408 In other cases, however, Schubert applies. A flexible, ad hoc approach to the issue of rank enables judges to take the content of international and domestic legal acts into account when settling conflicts between domestic and international law.409 It remains that when Swiss courts apply Schubert, they trigger a violation of international law and, therefore, Switzerlandâs international responsibility. It is worth noting that the Schubert Praxis has been addressed inconsistently by different chambers of the Swiss Federal Tribunal,410 and that some rulings reflect the Courtâs internal divisions in a way that is unusually candid by Swiss standards.411
Another contentious issue relates to conflicts between international law and Swiss constitutional law. Indeed, the Swiss Constitution states that constitutional amendments must respect âmandatory provisions of international lawâ,412 but it does not prohibit constitutional enactments from violating non-mandatory international law.
The concept of âmandatory provisions of international lawâ is an autonomous concept of Swiss law. Its scope is broader than the (in any case contested and unsharp) international concept of jus cogens pursuant to art. 53 vclt, as âSwissâ jus cogens includes non-derogable echr and iccpr rights.413 However, the Swiss Constitution does not exclude the possibility that its provisions might violate derogable international human rights.414 Although the Federal Council has stated that constitutional law must be interpreted in light of the supremacy of international law, except when âfundamental principles or the core content of fundamental rightsâ are at stake,415 this one-time statement has not been taken up by Swiss courts. Yet the Swiss Federal Tribunal has sought to mitigate the risk that Switzerlandâs international responsibility be triggered by constitutional provisions violating non-mandatory international law, especially echr guarantees. It has held that constitutional law lacking direct effect must be further specified by the federal legislature, especially regarding its relationship with international law.416 In this landmark case pertaining to the popular initiative on the expulsion of foreign criminals, the Court considered that even if a constitutional provision conflicting with the echr has direct effect, judges must respect the European Convention when applying the Constitution.417 Another sign that the Court seeks to avert international responsibility is that it has preventively given preference to the echr by pointing out that under Swiss law, its own decisions may be revised if the ECtHR subsequently rules that they have triggered an echr violation.418
The question of rank is often contentious, and even more so considering the ambiguity of the Swiss Constitution regarding this subject. Given that the determination of this sensitive issue is conferred to the courts, it is essential that Swiss judges settle it based on the lawâs interpretative methods, in a predictable, clear, and consistent way.
2.2.3 Direct Effect
An international legal act has direct effect (ie, it is âdirectly enforceableâ or âself-executingâ) if it can be relied upon by individuals in court. If it lacks direct effect, the act cannot be invoked until the legislature has concretized it.419 Direct effect raises the question of which State organ has the legal power to reduce the lawâs vagueness.420 The modalities of direct effect are usually defined by domestic law.421 In rare cases, however, direct effect is mandated by international law.422
The direct effect of international law is a complex issue that cannot be fully addressed here.423 In the following subsections, I set out and evaluate the practice of the Swiss Federal Tribunal regarding the direct effect of written (2.2.3.1) and unwritten (2.2.3.2) international law, before providing some concluding remarks (2.2.3.3). I focus on the case law of the Swiss Federal Tribunal because it is particularly rich and detailed compared to that of other Swiss courts.
2.2.3.1 Written International Law
The Swiss Federal Tribunal has mainly addressed the criteria of direct effect in connection with treaty law. The Court, which deems direct effect âa question of interpretationâ,424 considers that an international legal act has direct effect if three conditions are fulfilled: (i) the act is sufficiently precise to be able to form the basis of a decision, (ii) it pertains to the rights and duties of individuals, and (iii) it is addressed to the law-applying (as opposed to the legislative) authorities.425 In some cases, the Court only mentions some of these criteria (eg (i),426 or (i) and (iii)),427 which is problematic from the perspective of predictability, clarity, and consistency.
Countless rulings have dealt with the direct effect of written international law in the Swiss legal order, and it would be tedious (if at all feasible) to enumerate them. In this subsection, I highlight four particularly controversial and â in my view â problematic cases. They pertain to the icescr, the cedaw, the 1972 Swissâeec Free Trade Agreement, and European social security law. I discuss Swiss courtsâ interpretation of treaties in general in Chapter 7 (infra).
The Swiss Federal Tribunal has often held that the icescr does not in principle have direct effect,428 with the exception of art. 8(1)(a) icescr.429 It has considered art. 2(2),430 art. 3,431 art. 7(d),432 art. 9,433 art. 11(1),434 and art. 13(2)(b) and (c) icescr435 to lack direct effect, and it has left open the direct effect of art. 8(1)(d)436 and art. 13(2)(a) icescr.437 This contradicts the statement of the un Committee on Economic, Social and Cultural Rights that a lack of direct effect of some icescr provisions438 is âdifficult to sustainâ, and that art. 2(3)(a) icescr requires that States provide effective judicial remedies.439 As a matter of fact, the Committee has criticized the Swiss case law for systematically denying direct effect to most icescr rights.440 Many scholars have criticized the Swiss case law, stating that there are in principle no obstacles to granting social rights direct effect.441 It is also worth noting that several domestic socio-economic rights have direct effect in the Swiss legal order.442
A second illustration is provided by the cedaw, which Switzerland ratified in 1997. The Swiss Federal Tribunal has held that art. 11(1)(e) cedaw (pursuant to which States must treat women and men equally in terms of social security benefits) lacked direct effect.443 It has also cited the Federal Councilâs statement that most provisions of the cedaw lacked direct effect.444 The Court did not challenge or reexamine the governmentâs sweeping assessment, although the Federal Council had actually left open the possibility that the Swiss Federal Tribunal might grant direct effect to some cedaw guarantees in the future.445 In another context, with regard to the un Convention on the Rights of Persons With Disabilities, the Federal Council has stressed that the law-applying authorities must determine direct effect on a case-by-case basis.446 This suggests that the Courtâs deference to the government when interpreting the cedaw is unwarranted, especially given that the Convention provides that States must provide effective judicial remedies. The Swiss judicial practice has been repeatedly deplored by the cedaw Committee.447 It is worth adding that the Swiss Federal Tribunal has denied the direct effect of other treaties aimed at protecting women.448
Another interesting example pertains to the 1972 Free Trade Agreement (fta) between Switzerland and the eec. For several decades, and in spite of widespread scholarly criticism,449 the Swiss Federal Tribunal declined to grant direct effect to the ftaâs provisions.450 In 2005, however, the Court tacitly overruled its previous case law and applied the provisions of the fta without even mentioning the issue of direct effect.451 Daniel Wüger notes that the Federal Council had previously enjoined the Court to overrule its case law,452 and that the Federal Appeals Commission for Customs, in a decision of 2001, had contradicted the Court on the very issue that the federal judges addressed in 2005.453 In light of these facts, the Courtâs silence on direct effect is disconcerting and raises the suspicion that the judges caved due to political pressure.
Yet another case where the Court suddenly flipped its approach to direct effect pertains to ilo Convention No 128 and to the European Code of Social Security.454 In a âspectacularâ455 turnaround, the Swiss Federal Tribunal overruled its (much criticized)456 case law based on which these treaties had no direct effect. It granted direct effect to art. 32(1)(e) of the ilo Convention No 128 and art. 68(f) of the European Code of Social Security.457
In all four examples, the Swiss Federal Tribunalâs approach to direct effect fails to convince. Its case law does not appear to follow a predictable, clear, and consistent method.
2.2.3.2 Unwritten International Law
The Swiss Federal Tribunal has barely ever dealt with the issue of whether unwritten international legal acts (ie, cil and general principles of international law) have direct effect. The Court often mentions the notion of âdirect applicabilityâ, but uses it to refer to both direct effect and rank.458 This makes it difficult to determine whether the Court is actually considering the issue of direct effect. The Court has stated that non-refoulement is a mandatory principle of international law that, qua cil, has direct effect in the United States, yet the customary character of the principle was (as is often the case, infra, Chapter 8) only mentioned in passing.459 In several decisions, the Court has noted that âthe general principles of international law are directly applicable in Switzerland qua domestic lawâ.460 In most instances, however, it applies unwritten international law without examining its direct effect.461 The direct effect of unwritten international law is also sidelined in Swiss legal scholarship,462 as is the method based on which direct effect ought to be determined.463
2.2.3.3 Concluding Remarks
To summarize the findings of the previous subsections (2.2.3.1 and 2.2.3.2, supra), the Swiss Federal Tribunal has developed criteria based on which direct effect is determined. However, this test is anything but predictable, clear, and consistent, and it is not applied to unwritten international law. The Court does not appear to refer to art. 31 f vclt when determining the direct effect of treaty provisions. A provisionâs (lack of) direct effect is often asserted without being carefully demonstrated.
Direct effect has implications for the Stateâs duties towards individuals. Therefore, it is politically sensitive, especially regarding economic, social, and cultural rights.464 The absence of a predictable, clear, and consistent method of determining direct effect creates the risk that courts will do so based on considerations that are unrelated to the legal act under scrutiny, including political pressure. In reality, courts routinely grant some treaty provisions direct effect, while consistently denying direct effect to others. The axiomatic character of Swiss judicial decisions on direct effect matches Forteau and Nollkaemperâs findings that domestic courts seldom explain why an international legal act has or lacks direct effect465 and that some rulings on direct effect seem âfundamentally politicalâ.466 It also reflects what Nollkaemper calls the âdualityâ of direct effect: domestic courts use direct effect either âas a powerful sword that can pierce the boundary of the national legal order and protect individual rightsâ, or as a way of âshield[ing] the national legal order from the effects of international lawâ.467
The lack of a predictable, clear, and consistent method regarding direct effect makes it difficult for individuals to anticipate whether they can invoke an international legal act in court. It is also problematic when courts clarify other aspects of the relationship between domestic and international law.
3 Legal Principles of Political Organization
The legal relationship between the State and other international legal subjects (supra, section 2) is not the only constraint on domestic courtsâ interpretation of international law. Judges are also limited by legal principles that structure the polity. In Switzerland, these principles include federalism (3.1), linguistic diversity (3.2), the rule of law (3.3), semi-direct democracy (3.4), and the supremacy of the federal legislature (3.5).
3.1 Federalism
Most States are unitary States. They are ruled by a central government which decides which powers it wants to delegate to the Stateâs subunits. By contrast, Switzerland â like the United States, Germany, Austria, Belgium, India, and Russia, among other examples â is a federal State, ie, a State composed of sovereign units468 (26 cantons) which have transferred some of their competences to the federal level (the Confederation).469
The Swiss cantons enjoy regulatory autonomy in some respects, while being subjected to federal law in others. On the one hand, the federal government, qua government of enumerated powers, can only exercise the powers delegated to it by the cantons.470 Moreover, popular initiatives requesting a partial constitutional revision471 and so-called âmandatory referendaâ472 require a majority of both the people and the cantons. On the other hand, federal law overrides contrary provisions of cantonal law,473 and the cantons must faithfully implement federal law474 (which includes international law).475
From the perspective of international responsibility, the acts of federal subunits are attributable to the State.476 Besides triggering a violation of their Stateâs existing international obligations, cantonal laws and practices can hinder the ratification of treaties, or make it necessary for the State to add reservations upon ratification.477 I address the structure of the cantonal judiciary in subsection 4.1.2 (infra).
A telling illustration of the challenges cantonal laws create from the perspective of international law (inter alia due to the sensitivity of cantonal prerogatives) is the constitutional ban on face-covering headgear which entered into force in the canton of Ticino on 1 July 2016, after being accepted in a cantonal popular vote in 2013.478 One of the effects of the ban is that women are prevented from wearing burqas and niqabs in public.479 Besides interfering with cantonal and federal constitutional law,480 the ban contradicts Switzerlandâs international obligations to protect freedom of conscience and religion.481 Nonetheless, in March 2015, the proposed amendment of the Constitution of the canton of Ticino obtained the Federal Assemblyâs seal of approval, the âfederal guaranteeâ.482 In September 2018, 66.6% of voters in the canton of St. Gallen accepted to enshrine a similar ban in their cantonal law. As of June 2019, a popular vote on a federal ban on face-covering headgear was still pending.483 It is worth noting that in October 2018, the Swiss Federal Tribunal partly granted two appeals lodged against the cantonal law implementing the Ticino ban.484 The Court ordered that the law be amended so as not to disproportionately harm specific constitutional rights, ie, freedom of assembly, freedom of expression, and economic freedom. While it mentioned the s.a.s. ruling of the ECtHR,485 the Swiss Federal Tribunal did not examine whether the cantonal law infringed freedom of religion, as the appellants had not invoked this provision.
3.2 Linguistic Diversity
From a comparative perspective, Switzerlandâs linguistic diversity is noteworthy. It impacts Swiss judgesâ activity in several respects.486
Linguistic diversity has been part of Switzerlandâs cultural identity since the mid-19th century.487 It is protected by Swiss constitutional law, which states that Switzerland has four national languages: German, French, Italian, and Romansh.488 A national language can be used to address the federal authorities, and individuals are entitled to receive an answer in this language.489 Switzerlandâs official languages, on the other hand, ie, German, French, and Italian,490 are the languages in which federal legislation is published.491 All three linguistic versions enjoy the same legal authority.492
Linguistic diversity is one criterion for constituting the chambers of the Swiss Federal Tribunal.493 Legal briefs submitted to the Court must be written in an official language,494 and judicial proceedings take place in one of the four national languages.495 This linguistic variety can create inconsistencies in the case law when a legal issue is addressed differently in proceedings conducted in different languages. Judges predominantly working in a specific language (as well as their clerks) might for example be biased in terms of the scholarship they resort to. Language can hence partly explain variations in the way Swiss courts interpret international law. On the other hand, and like judges in other multilingual States (eg Belgium, South Africa, and Canada), Swiss judges are familiar with the interpretive difficulties that may be triggered when legal acts are available in several authoritative linguistic versions. Such linguistic discrepancies are liable to arise, mutatis mutandis, in the context of treay law with different, yet equally authoritative linguistic versions.496
3.3 The Rule of Law
Art. 5 Cst., entitled ârule of lawâ,497 was adopted in the constitutional revision of 1999. It codifies a previously âunwritten principle of Swiss constitutional lawâ498 which, according to the Swiss Federal Tribunal, âimpregnate[s] the Swiss constitutional orderâ.499 When referring to this concept, I am addressing the legal principle of the rule of law. I am not looking at the moral principle of the rule of law, nor am I analyzing how its respective conceptualizations in continental500 versus common law501 jurisdictions relate.502
The Swiss constitutional principle of the rule of law is four-pronged. It provides that State activities âare based on and limited by lawâ (para 1), that State action must be proportionate (para 2), that State authorities must act in good faith (para 3) and, finally and importantly, that the Confederation and the cantons must ârespect international lawâ (para 4). Art. 5(1) and (4) are particularly interesting from the perspective of domestic courtsâ interpretation of international law. Art. 5(1) Cst. (the principle of legality)503 requires that State authorities abide by the law504 and that their activity be traceable to a (sufficiently determinate)505 legal basis.506 It is not a self-standing constitutional right and must be invoked jointly with the principle of the separation of powers, the prohibition of arbitrariness, or specific constitutional rights, for instance.507 Art. 5(4) (the principle of the international rule of law)508 requires that State authorities (including courts) ârespectâ (and, though not explicitly stated, apply)509 international law. The provision has regularly been invoked by the Swiss Federal Tribunal to highlight the applicability of international law and to justify its supremacy over domestic law.510
The constitutional principle of the rule of law is complemented by the prohibition of arbitrariness (art. 9 Cst.) and the principle of good faith (art. 5(3) and 9 Cst.). Arbitrariness, which art. 9 Cst. prohibits, is, according to the Swiss Federal Tribunal, âthe negation of [the] principle [of the rule of law]â.511 Another concretization of the constitutional principle of the rule of law is the right of individuals to have their case reviewed by an independent, impartial court.512 All these provisions apply to and constrain Swiss courtsâ interpretation of international law. It is worth noting that judicial independence, impartiality, and respect for the law are also mandated by Switzerlandâs international obligations, especially art. 6 echr and art. 14 iccpr. Litigants often invoke them jointly with domestic constitutional law before Swiss courts.513
3.4 Semi-Direct Democracy
Switzerland is a semi-direct democracy. Its political structure is characterized by elements of direct and representative democracy, both at the cantonal and federal level. It is especially due to its mechanisms of direct democracy â on which I focus in this subsection â that the Swiss political system stands out from a comparative perspective.
On the federal plane, instruments of direct democracy include the popular initiative and the referendum. It is important to stress that the word âreferendumâ has a specific meaning under Swiss law that differs from the usage of this term in scholarship outside Switzerland. Popular initiatives give Swiss voters the possibility to request a total or partial revision of the Constitution.514 Mandatory and optional referenda require or allow voters to decide certain issues in a popular vote.515 Referenda are required, inter alia, in the context of âaccession to organizations for collective security or to supranational communitiesâ.516 Both the referendum and the popular initiative also exist at the cantonal and subcantonal level. The cantons of Geneva,517 Zurich,518 Basel-Stadt,519 and Bern520 (the case law of which is included in this study, see infra, 4.1.2) all provide for mandatory and optional referenda, popular constitutional initiatives, and popular legislative initiatives, both at the cantonal and at the municipal level. Some of these cantonal instruments are even designed to address issues of international law.521
On the one hand, scholars point out that governments can âlock inâ domestic constituencies by entering into treaties from which these constituencies cannot opt out.522 On the other hand, recent examples show that referenda, even if they are not binding from the perspective of international law, influence the relationship between the domestic legal order and international law. They can even lead to a renegotiation of (or to a withdrawal from) treaties. The âBrexitâ vote of 23 June 2016 (which, in and of itself, is not even legally binding under uk law) is a case in point. Another example is Swiss votersâ decision, on 9 February 2014, to introduce a cap on foreign immigration.523 The outcome of this vote conflicts with the Swissâeu Agreement on the Free Movement of Persons.
Federal popular initiatives increasingly challenge Switzerlandâs international obligations. Out of the 22 constitutional initiatives accepted by Swiss voters (status as of June 2019), the first of which dates back to 1893, 10 were adopted between 2002 and 2014.524 Some of these votes have modified Switzerlandâs foreign relations in a fundamental way. On 3 March 2002, for instance, Swiss voters approved Switzerlandâs accession to the un.525 Other votes have created tensions with the Stateâs obligations on the international plane, eg the 2004 vote in favor of the âlife-long imprisonment of extremely dangerous and non-reformable criminalsâ,526 or the 2009 ban on the construction of minarets.527
One reason for this trend is the extremely deferential review exercised by the Federal Assembly when it examines the substantive validity of constitutional popular initiatives.528 Initiatives must be declared invalid âin whole or in partâ if they violate âthe requirements of consistency of form, and of subject matter, or [â¦] mandatory provisions of international lawâ.529 Moreover, they cannot be manifestly impracticable.530 Since the creation of the constitutional initiative, in 1891, the Federal Assembly declared a popular initiative invalid as a whole only four times,531 and only once because it considered that an initiative breached mandatory provisions of international law.532 It partially invalidated the âenforcement initiativeâ due to its narrow definition of jus cogens.533 Several proposals to reform the conditions of the validity of constitutional initiatives have been rejected by the Federal Assembly, including proposals to involve the Swiss Federal Tribunal via advisory opinions.534 It is worth noting that in a landmark case decided in April 2019, the Court invalidated a federal popular vote for the first time in its history, on the grounds that the federal government had provided incorrect information ahead of the vote.535
A range of initiatives have explicitly addressed Switzerlandâs relationship to international law. Examples include the (unsuccessful) initiative requiring a popular vote for the ratification of specific international treaties,536 or the (equally unsuccessful) initiative on âself-determinationâ, which proposed to introduce the supremacy of Swiss constitutional law over international law, except for mandatory provisions of international law.537 Some proposals did not gather the required number of signatures to be put to vote, eg the initiative on Swiss neutrality,538 the initiative âfor an eu accession moratoriumâ, which demanded that no negotiations on eu accession be conducted for at least ten years,539 and yet another initiative requesting that the udhr be part of the Swiss Constitution.540
In recent years, political parties and interest groups have used the instruments of direct democracy in ways that have tended to exacerbate the tensions between Swiss law and international law. These tensions also come to the fore in cases brought before Swiss courts. The political sensitivity of these issues makes it even more important that Swiss courts, when they interpret international law, respect its interpretative methods, and that they reason predictably, clearly, and consistently.
3.5 The Federal Assembly qua âSupreme Authority of the Confederationâ
An important feature of the Swiss case law is that courts tend to defer to the federal legislature (the Federal Assembly), be it with regard to domestic legal issues or with regard to international law (on this last point, see also infra, 4.2.2.2). Indeed, the Swiss Constitution provides that â[s]ubject to the rights of the People and the Cantons, the Federal Assembly is the supreme authority of the Confederationâ.541
The bicameral structure542 of the Federal Assembly is inspired by the us political system. While the National Council543 represents the interests of the people (its 200 seats being allocated proportionally to the Swiss cantonsâ respective populations), the Council of States544 encompasses two representatives per canton (and, if applicable, one per half-canton). In addition to adopting federal acts,545 the Federal Assembly appoints high officials at the federal level,546 and it exercises oversight over the other federal branches.547 It is tasked with various further issues (eg taking measures to enforce federal law, and ruling on the validity of popular initiatives),548 and it has other residual federal powers not entrusted to any other federal authority.549 One major expression of the supremacy of the federal legislature is that federal acts are immune from judicial review550 (see also supra, 2.2.2).
Considering this legislative supremacy, Swiss courts usually show deference towards the federal legislature, even when federal acts appear to violate constitutional or international law. This is in stark contrast to courtsâ activism in other States with constitutional review. Moreover, considerations of democratic legitimacy frequently surface in Swiss rulings.551 The Swiss Federal Tribunal has stressed that judicial proceedings be transparent, so that court decisions are subject to a âdemocratic checkâ.552 In a cantonal case pertaining to life-long internment, the President of the District Court of Weinfelden is reported to have stated that the court âmust respect the will of the people and is prohibited from circumventing it with legal tricks and stratagemsâ.553 As I will emphasize, another manifestation of the importance accorded to democratic legitimacy is that Swiss judges are appointed by the legislature or, in some cases, by the people (infra, 4.2.4).
Democratic legitimacy should be a pivotal concern for Swiss judges given the commitment of the Swiss legal order to democratic principles. This commitment is also reflected in some of Switzerlandâs international obligations, especially in the echr. On the other hand, as is well known, democratic legitimacy is not the sole vector of political legitimacy. Democracy requires to be complemented by fundamental rights, some of which are protected by international law. Otherwise, democracy becomes tyrannical. When weighing these potentially conflicting considerations, and given the sensitivity of the issue, judges may be tempted to give in to political pressure. To mitigate this risk, lawful and high-quality judicial reasoning is key (infra, Chapter 5).
4 The Swiss Judiciary
The domestic judicial practice of international law cannot be fully grasped without at least a basic understanding of the domestic judicial system under scrutiny. After clarifying the structure of the Swiss judiciary (4.1), I flesh out the most relevant characteristics of Swiss courtsâ activity from the perspective of the topic of this book (4.2).
4.1 The Structure of the Swiss Judiciary
In this subsection, I explain how the Swiss judiciary is structured, both on the federal level (4.1.1) and in the four cantons which I use as case studies (4.1.2). These remarks will help us understand the legal powers and characteristics of various Swiss courts, and why these courtsâ case law is of interest to a study about international law.
4.1.1 Federal Courts
Besides the Swiss Federal Tribunal (4.1.1.1), the Swiss federal judiciary554 encompasses the Federal Administrative Court (4.1.1.2), the Federal Criminal Court (4.1.1.3), and the Federal Patent Court. Due to its narrow jurisdiction555 and to the marginal relevance of international law to its activity, the Patent Court is left out of this book. The case law of the two other judicial bodies is considered to the extent that it provides insights into international legal issues. Because of the relatively young age of these two bodies, the number of available cases is significantly limited compared to those of the Swiss Federal Tribunal. I do not consider the decisions of appeals commissions (or other quasi-judicial bodies) subsequently replaced by courts in the course of the reform of the judiciary in the early 2000s.
4.1.1.1 The Swiss Federal Tribunal
In this book, I often highlight the practice of the Swiss Federal Tribunal, although the decisions of other federal (infra, 4.1.1.2 and 4.1.1.3), cantonal (infra, 4.1.2), and military courts (infra, 4.1.3) are also taken into account (see especially Chapters 7 and 8, infra). I emphasize the case law of the âsupreme judicial authority of the Confederationâ556 for several reasons.
First, while all Swiss courts have jurisdiction over international legal issues and are hence liable to trigger the Stateâs international responsibility, the Swiss Federal Tribunal arguably enjoys the highest interpretive authority on the domestic plane. It is also the most authoritative expression of the Swiss practice of international law, at least as regards the interpretation of federal law (a notion which, under Swiss law, includes international law).557 This should not detract from the fact that other federal courts (and federal authorities) have the same legal authority to interpret federal law, unless the Swiss Federal Tribunal acts within its powers to review their decisions. Second, the case law of the Swiss Federal Tribunal spans over many decades, contrary to that of other federal courts established in the early 2000s. The Swiss Federal Tribunalâs practice is hence particularly suited to an in-depth and representative analysis. A third reason is the breadth of the Courtâs jurisdiction, which explains the richness of its case law from the perspective of international law. Lastly, from a practical perspective, the Swiss Federal Tribunalâs case law is easily accessible, and the Court has the most elaborate search engine of all Swiss courts (see Chapters 7 and 8, infra).
As regards its internal organization, the Court has seven chambers (or divisions). Two of them specialize in public law, two in civil law, one in criminal law, and two in social insurance law.558 While international law is particularly likely to be invoked in public law cases, the other chambers are frequently confronted with such issues as well.559 The Swiss Federal Tribunal counts 38 full-time judges and 19 part-time judges. Judges are elected by the Federal Assembly (see also infra, 4.2.4).560 Any individual holding the right to vote at the federal level is eligible.561 Federal judges serve for a six-year term.562 They can be reelected an unlimited number of times, until they reach the age of 68.563 As of June 2019, the Court employed 153 law clerks.564
I analyze the Courtâs jurisdiction with respect to international legal issues in subsection section 4.2.1 (infra).
4.1.1.2 The Swiss Federal Administrative Court
The Swiss Federal Administrative Court (sfac) started its activity in 2007. It was created as part of the reform of the Swiss judiciary, in 2000.565
The Court is divided into six chambers. The third chamber (which handles cases dealing with social insurance and public health), the fourth and fifth chambers (which examine asylum law cases), and the sixth chamber (which deals with cases pertaining to the legislation on foreign nationals) are particularly significant for present purposes. However, all chambers are liable to be confronted with international legal issues. The judges are elected by the Federal Assembly for a six-year term.566 At the end of 2018, the Court counted 76 judges, who were assisted by 238 clerks.567
The Court has jurisdiction to review challenges against the decisions of specific federal authorities.568 Such decisions sometimes pertain to Swiss foreign relations and to Switzerlandâs international obligations. Violations of (directly applicable) international legal acts are âviolations of federal lawâ that can be appealed to the Court.569 The Courtâs case law can be expected to provide insights into the interpretation of international immigration and refugee law, dtas, and various other bilateral agreements (eg treaties on the recognition and enforcement of foreign judgments, and treaties on mutual legal assistance).
4.1.1.3 The Swiss Federal Criminal Court
The Swiss Federal Criminal Court (sfcc) started its activity in 2004. Like the sfac, it was established in the context of the reform of the Swiss judiciary.570
The Court is divided into a Criminal Law Chamber and an Appellate Chamber. As of June 2019, the Court was staffed by 20 regular judges571 and 10 substitute judges.572 The judges are elected by the Federal Assembly for a six-year term.573
The sfcc574 has jurisdiction over several international legal issues, including claims pertaining to international legal assistance575 and violations of icl, ihl, and ihrl.576 Its case law can especially provide insights into the interpretation of cil and into specific substantive areas of international law, such as the law of immunities.
4.1.2 Selected Cantonal Courts
As previously mentioned, Switzerland is a federal State that counts 26 cantons (supra, 3.1). The cantons have their own political and legal institutions, including their own judiciary, usually composed of several district courts and of a cantonal supreme court. The decisions of cantonal courts can only be reviewed by the Swiss Federal Tribunal on specific grounds, which include alleged violations of federal and international law.577
International legal scholarship dealing with the case law of lower courts is scarce. International lawyers typically focus on the decisions of higher domestic courts. They likely do so because of the greater interpretive authority of these decisions from the perspective of domestic law and, hence, qua expression of the Stateâs practice on international law,578 especially when these higher courts overrule the decisions of lower courts on issues of international law.579 Moreover, in some States, scholars note that international law is more often invoked in the higher courts than at the lower levels.580
Ignoring lower courts is unjustified, however. First, not all lower court cases dealing with international law reach the highest courts, either because these courts lack jurisdiction or simply because no appeal is lodged.581
Second, lower courts play an important role in the implementation of federal law and, hence, of at least some areas of international law, eg ihrl.582 A related reason that justifies consulting the case law of lower courts is its quantitative importance compared to that of higher courts: a significant share of a Stateâs âjudicial businessâ is conducted in the lower courts.583
Third, lower courtsâ case law is of interest when it departs from the established case law in a given State or on the international plane. Although such unorthodox rulings are unlikely to speak authoritatively for the State and, hence, to contribute to State practice on the international plane, they can influence the case law of other courts in later cases. As highlighted by Louis Brandeis, federal subunits are analogous to âlaboratoriesâ where experimentations are (for better or worse) carried out.584 As a matter of fact, Simonetta Stirling-Zanda, in her analysis of the determination of cil in selected European courts, observes that lower courts are often âbolder and more progressiveâ in their reasoning than higher courts.585 In Switzerland, for instance, the Administrative Court of the canton of St. Gallen has adopted a particularly international law-friendly approach to the issue of reverse discrimination of Swiss nationals.586 Of course, the highest court of a legal order may set limits on these idiosyncratic interpretations to secure hermeneutic uniformity.
Fourth, although fact-finding is not the focus of this study,587 it is important to note that lower courts play an important role in establishing the facts of a case, while higher courts usually review them under narrow circumstances only.588
Fifth, even when it does not deal with issues of international law, the case law of federal subunits can be of interest because federalism relies on concepts that also exist, mutatis mutandis, at the international level. Examples include the principle of subsidiarity, self-determination, and territorial integrity, and cases pertaining to intercantonal agreements.589
In light of these reasons, the present analysis includes the decisions of Swiss cantonal courts to the extent they are relevant from the viewpoint of international law.590 For reasons of feasibility, I have focused on the decisions of the highest courts of the cantons of Geneva (4.1.2.1),591 Zurich (4.1.2.2),592 Basel-Stadt (4.1.2.3),593 and Bern (4.1.2.4).594 This choice is due to these cantonsâ demographic and socio-economic importance, but also to the existence of ios, diplomatic representations, and multinational corporations on their territory. Hence, international law can be expected to have practical relevance in these cantonal jurisdictions. Moreover, most of the recent595 case law of the highest courts of these cantons is accessible online in full-text mode, even if the searches can be laborious due to the characteristics of some cantonal databases.596 The case law of other cantonal and district courts was not surveyed systematically. It was occasionally considered based on case reports published in Swiss legal journals, and based on search results in the Swisslex database.597
The following subsections briefly describe the structure and functioning of the aforementioned cantonal courts.
4.1.2.1 The Supreme Court of the Canton of Geneva
The Supreme Court (Cour de justice) is the highest court of the canton of Geneva. It is divided into a Civil Law, a Criminal Law, and a Public Law Division, which all encompass various subdivisions. Recent rulings can be accessed online,598 although the dates from which this case law is available vary from one subdivision to the other.599
As of June 2019, the Supreme Court was staffed by 37 regular judges.600 Judges in the canton of Geneva are elected by the people,601 except for labor court judges, who are elected by the cantonal parliament.602 Judges serve for a six-year term.603
4.1.2.2 The High Court and the Administrative Court of the Canton of Zurich
The High Court (Obergericht) is the highest court of the canton of Zurich in civil and criminal matters.604 It is divided into two Civil Law and three Criminal Law Chambers. As of January 2019, the High Court counted 44 regular judges.605
The Administrative Court (Verwaltungsgericht) adjudicates disputes in public law matters.606 It encompasses four specialized divisions. As of June 2019, it was staffed by 14 regular judges.607 All judges are elected by the cantonal parliament and serve for a six-year term.608
4.1.2.3 The Court of Appeals of the Canton of Basel-Stadt
The Court of Appeals (Appellationsgericht) is the highest judicial body in the canton of Basel-Stadt in civil, criminal, administrative, and constitutional matters.609
As of June 2019, 8 presiding judges and 14 part-time judges were serving on the Court.610 Presiding judges are elected by the people.611 Part-time judges are chosen by the cantonal parliament.612 Judges serve for a six-year term.613
4.1.2.4 The High Court and the Administrative Court of the Canton of Bern
The High Court (Obergericht) is the highest court in civil and criminal matters in the canton of Bern.614 As of June 2019, it encompassed 22 regular judges.615 Regular judges are elected by the cantonal parliament for a six-year term.616
The Administrative Court (Verwaltungsgericht) is the highest cantonal court in public law matters.617 It is divided into three chambers, which deal with administrative law, social insurance law, and cases in French, respectively (the canton of Bern is bilingual). As of June 2019, 19 regular judges were serving on the Court.618 All judges are elected by the cantonal parliament for a six-year term.619
4.1.3 Military Tribunals
Besides the decisions of federal and cantonal courts, it is important not to overlook the rulings of military tribunals, which adjudicate disputes pursuant to military law.
In Switzerland, which has a militia army primarily composed of conscripts and volunteers,620 the Swiss Criminal Code does not apply to offences subject to military criminal law.621 Offences that fall under the Swiss Military Criminal Code (smcc) can be prosecuted regardless of where they have been committed.622 Offences criminalized by the smcc include violations of the neutrality of Switzerland,623 other acts undermining military security, genocide, crimes against humanity, and war crimes.624 Decisions of military tribunals are hence liable to provide insights into the interpretation of ihl, icl, and ihrl.625
The Swiss military justice system includes eight military tribunals of first instance, three military courts of appeal and, at the top of the hierarchy, the Military Court of Cassation (mcc). In this book, I primarily consider the decisions of the mcc which have been published on the website of the Swiss authorities since 2006.626 Exceptionally, I rely on the decisions of lower military tribunals.
Members of the military justice system must be officers in the army and, in principle, have graduated in law.627 Judges serving on the lower military tribunals are appointed by the Federal Council for a four-year term.628 Appointments to the mcc are made by the Federal Assembly for a four-year term.629
4.2 Characteristics of Swiss Courtsâ Interpretative Activity
In this subsection, my goal is to capture features of Swiss courtsâ interpretative activity that illuminate the legal context of courtsâ interpretation of international law. These features include courtsâ jurisdiction over international legal issues (4.2.1), the extent to which they defer to the other branches (4.2.2),630 courtsâ duties as regards the interpretation of international law (4.2.3),631 the procedure pertaining to judgesâ appointment (4.2.4) and to the drafting of their judgments (4.2.5), the Swiss Federal Tribunalâs so-called âpragmatic methodological pluralismâ (4.2.6) and, finally, the legal authority of judicial law in the Swiss legal order (4.2.7).
4.2.1 Jurisdiction Over International Legal Issues
The jurisdiction of federal courts other than the Swiss Federal Tribunal has been examined in subsections 4.1.1.2 and 4.1.1.3 (supra). Cantonal laws do not exclude the jurisdiction of cantonal courts over international legal issues. The most detailed laws on Swiss courtsâ jurisdiction over international legal issues concern the Swiss Federal Tribunal.
While the Swiss Federal Tribunal has general jurisdiction over international legal issues (supra, 4.1.1.1), there are exceptions to this principle. Some issues that may trigger the application of international law are outside the Courtâs jurisdiction. The Swiss Constitution provides that acts of the Federal Council and of the Federal Assembly cannot in principle632 be reviewed by the Swiss Federal Tribunal.633 These acts, according to the Court, are âessentially political decisionsâ.634 A jurisdictional exclusion also applies to decisions in matters pertaining to foreign relations and is hence likely to involve questions of international law. The Federal Act on the Swiss Federal Tribunal further clarifies the scope of the Courtâs jurisdiction.635
Swiss courts have not developed an elaborate approach to their own jurisdiction, analogous to the political question doctrine636 or the act of State doctrine637 of us and uk courts.638 These doctrines state the conditions under which courts can review the acts of other domestic authorities or other States. The Swiss Federal Tribunal considers that the notion of âother matters pertaining to foreign affairsâ639 (which are outside its jurisdiction) must be interpreted narrowly. On the other hand, it has noted that the executive enjoys a wide margin of appreciation to defend the Stateâs interests domestically and abroad, and that it has the sole responsibility for decisions taken in this area.640
Swiss courts have refused to review some claims by resorting to specific judicial strategies (or âavoidance doctrinesâ, as Eyal Benvenisti calls them).641 One illustration which I have already mentioned concerns the determination of direct effect (supra, 2.2.3).642 Another example pertains to the law of immunities. According to the Swiss case law, disputes involving a foreign State are justiciable only if they display a sufficiently tight nexus (a so-called âBinnenbeziehungâ) to Switzerland.643 The way courts justify their resort to such âavoidance doctrinesâ must be scrutinized, as these doctrines might allow them to abdicate from their duty to apply the law.644
4.2.2 Courtsâ Relationship With the Other Branches of Government
In principle, Swiss courts adjudicate international legal issues independently from the other branches.645 Yet the Swiss Federal Tribunal frequently takes the back seat and defers to or cites the federal executive (infra, 4.2.2.1) and the federal legislature (infra, 4.2.2.2). It is worth noting at the outset that the fuzzy division of competences between the Federal Assembly and the Federal Council in foreign relations (supra, 2.1.2) creates uncertainty as to their respective powers to apply and interpret (and, hence, to contribute to the formation of) international law. This uncertainty affects the activity of Swiss courts, which often consult the practice of their own State on a given international legal issue (see Chapters 7 and 8, infra).
4.2.2.1 The Federal Executive
The Swiss Federal Tribunal frequently mentions the executiveâs position on international law and/or its relationship to domestic law. This especially applies to the Federal Department of Foreign Affairs (fdfa) and its Directorate of International Law (dil).
The Court has particularly often invoked reports, statements, and other documents issued by the dil on the relationship between domestic and international law.646 Other topics on which the Swiss Federal Tribunal has cited the dil include domestic treaty-making powers,647 State succession,648 State recognition,649 immunities of officials of ios,650 and the service abroad of official documents.651 Hence, the Court has mainly cited the Directorate on matters of general international law, or with regard to the politically sensitive issue of foreign immunities. At times, the Court has requested the Directorate to provide information deemed relevant to the case.652 In some instances, it is unclear whether the dilâs view has been solicited by the Court or one of the parties, or whether the dil has submitted it proprio motu.653 The Directorate actively intervened in several federal court cases on the immunities of States and ios and their officials.654 Empirical work is needed to assess the extent to which the dil influences the Court in its decision-making, especially in high-profile cases. However, such an endeavor is complicated by the confidential character of judicial work, and by judgesâ (understandable) reluctance to state that the other branches influence them.
Many rulings of the Swiss Federal Tribunal refer to official documents or statements issued by the fdfa, eg in cases pertaining to the law of immunities,655 the Stateâs treaty-making power,656 or human rights protection in foreign States.657 The fdfa has been asked to provide information by the Swiss Federal Tribunal in some cases,658 and the Court has sometimes used its statements to corroborate its own interpretations.659 Although it generally emphasizes the separation of powers in foreign affairs, the Swiss Federal Tribunal frequently defers to the fdfa, eg in cases pertaining to privileges and immunities or targeted sanctions.660 The Swiss Federal Tribunal also acknowledges the powers of the Department over specific issues, for instance as regards visa requirements.661 Exceptionally, however, the Court has explicitly disavowed the fdfa, for example regarding an extradition request662 or immunities from execution.663
Many of the Swiss Federal Tribunalâs rulings with respect to international law refer to the Federal Council. The Court mentions it when the Council acts within its competences with regard to international law (eg concerning State recognition664 or foreign relations),665 and when it issues interpretive declarations pertaining to specific treaties.666 It also mentions the Council to identify the Swiss practice on specific international legal issues.667 The Swiss Federal Tribunal frequently cites the dispatch written by the Federal Council prior to the ratification of a treaty by the Federal Assembly.668 This can be problematic if this domestic document is used as a substitute for the (international) travaux préparatoires to the treaty (art. 32 vclt). The Court has further deferred to the government on questions of treaty interpretation,669 on the interpretation of domestic laws with a nexus to Swiss foreign relations,670 and on issues pertaining to the law of immunities671 and extradition.672 It has backed the Federal Council in high-profile human rights cases673 and issues pertaining to the privileges and immunities of ios,674 as well as in a case of diplomatic treason.675 The Court has also cited the Federal Council on matters pertaining to the relationship between domestic and international law676 and the definition of jus cogens.677 Some rulings even mention the position of individual members of the Federal Council.678 Others provide evidence of a close collaboration between the Swiss Federal Tribunal and the federal government.679 On rare occasions, the Court explicitly disagrees with the government.680 In other cases, the Swiss Federal Tribunal strives to show that it does not contradict the Federal Councilâs position.681
To conclude, even if the Swiss Federal Tribunalâs deference towards the federal government in foreign affairs is nowhere near as pronounced as in some other States,682 it generally markedly relies on the federal executive. While deference may be warranted when the Federal Council acts within its designated constitutional competences in foreign affairs, it is important to stress that courts must adjudicate disputes with independence and impartiality. This duty is reflected in Swiss law, but also (qua State duty) in international law.683 Courts must not shy away from examining the (domestic and international) legality of foreign affairs.
4.2.2.2 The Federal Legislature
As already noted (supra, 2.2.2), art. 190 Cst. states that the Swiss Federal Tribunal must apply federal acts and international law.684 One consequence is that federal acts are immune from judicial review, even when they are deemed incompatible with constitutional law or international law. Proposals to introduce constitutional review or to strengthen judicial review have been discussed many times,685 but they have always been rejected by the federal parliament. In 2012, the federal governmentâs proposal to abrogate art. 190 and to introduce a concrete review of federal acts686 was once again rejected by the parliament.687
While the Swiss Federal Tribunal cannot invalidate federal acts deemed incompatible with international law, the Court can âinvite the legislatureâ to amend acts deemed problematic.688 On its official website, the Court notes that âcontroversial judgments can nourish the political debate and eventually lead the parliament to reformulate laws or to incorporate new topicsâ.689 In several cases, the Swiss Federal Tribunal has indeed ânudgedâ the federal legislature by pointing out that in case of prolonged legislative inaction, it might intervene in the future and enforce the supremacy of international law.690
The Courtâs involvement has been timid, however. One example pertains to reverse discrimination (ie, the discrimination of Swiss citizens compared to eu citizens), which the Swiss Federal Tribunal deems problematic from the perspective of art. 8 and 14 echr. In 2010, the Court indicated that it might eventually tackle the issue itself, should the legislature fail to design a remedy compatible with the Constitution and the echr âin a predictable futureâ.691 In 2015, however, the Court backed down and merely acknowledged the legislatureâs failure to address the problem, without taking any further steps.692
4.2.3 The Duty to âApplyâ and âRespectâ International Law
The Constitution states that Swiss courts âapply the federal acts and international lawâ693 and that federal and cantonal authorities âshall respect international lawâ.694 However, Swiss courts have no domestic legal duty to consider international law, unlike the Supreme Court of South Africa, for instance.695 They are free, under domestic law, to choose the means they consider appropriate to ensure that Switzerland respects its international obligations. Of course, from the perspective of international law, they may trigger their Stateâs international responsibility, regardless of what domestic law provides.696
As previously noted (supra, 3.4), the constitutional popular initiative âon self-determinationâ sought to amend art. 190 Cst. and to establish the supremacy of the Swiss Constitution over other laws, including the Stateâs international obligations. The initiative was rejected by Swiss voters on 25 November 2018.
4.2.4 Judgesâ Election by the Parliament and Political Affiliation
Swiss judges are elected by the parliament and, for some of them, by the people. In most cases, they are appointed for a determinate period of time, with the consequence that judges must run for reelection. While this Swiss peculiarity attenuates the counter-majoritarian697 traits of judicial decision-making by unelected judges, it also generates difficulties, as I will emphasize. Only a few cantons have mitigated the influence of political parties on judges,698 eg Fribourg699 and Ticino.700
The legislature701 enjoys substantial leeway when electing federal judges, as the law does not prescribe specific criteria.702 Linguistic representativeness is of great relevance to judgesâ election (on linguistic diversity, see supra, 3.2). The representation of the three official languages was constitutionally required until the revision of the Constitution in 1999,703 and the Federal Act on the Swiss Federal Tribunal still mandates the federal legislature to take linguistic diversity into account when electing federal judges.704 Another important (yet soft) criterion is political representativeness.705 Because their (re)election is usually entrusted to the legislature, Swiss judges are, de facto, forced to join a political party,706 to which they pay an annual fee of up to 5% of their yearly salary.707 The politicization of Swiss judges has increased in recent years, with fewer judges being members of no political party. While in the 1920s, close to 30% of judges serving on the Swiss Federal Tribunal had no party affiliation, this percentage is now close to zero.708
The parliamentary (or even popular) election of Swiss judges is a peculiarity from a comparative law perspective.709 It contrasts with other States where judges are appointed by the President, as is the case with judges of the French Cour de Cassation or Austrian Constitutional Court judges, for instance. It also differs from hybrid modes of selection, like in Italy, where constitutional judges are chosen in part by the parliament, in part by the President, and in part by the judiciary. Judgesâ reelection also distinguishes the Swiss judiciary from States where judges in the highest courts have life tenure,710 or where reelection is impossible.711
Several Swiss judges have defended the Swiss system in their writings.712 Yet as many scholars713 and even some Swiss magistrates714 highlight, this legislative (or popular) mode of selection and, hence, the partisan affiliation of most Swiss judges, the fee they pay their political party, and the fact that they need to run for reelection, all jeopardize courtsâ independence and impartiality. The importance of judicial independence is reflected in domestic constitutional law and international law. It is also stressed in soft law instruments,715 including as regards the judicial interpretation of international law.716 These features of the Swiss system have been criticized by the Group of States Against Corruption (greco), with little success so far.717
Of course, judges decide based on a (more or less consistent) set of beliefs regardless of any formal political affiliation. Moreover, Swiss judgesâ political affiliation has the merit of being transparent, and it is a way of ensuring that in making their decisions, they remain accountable to the legislature.718 However, the absence of separate opinions in the Swiss judiciary (infra, 4.2.5) makes it almost impossible to identify when a judge departs from the partyâs line. In recent years, studies have sought to establish a correlation between judgesâ affiliation to a political party and the outcome of their decisions (a correlation which judges themselves deny for understandable reasons).719 In October 2016, the Swiss newspaper Tagesanzeiger published the results of an empirical study of 29,263 asylum claims brought before the Federal Administrative Court. The study shows that left-wing judges are up to three times more likely to grant appeals than judges leaning towards the political right.720
The increasing number of popular initiatives aimed at limiting Swiss courtsâ interpretative freedom shows that judicial decision-making is under pressure.721 Especially in the area of criminal law, several initiatives express a popular distrust of the judiciary, eg the 2010 vote on the âexpulsion of foreign criminalsâ722 and its unsuccessful successor, the so-called âenforcement initiativeâ of 2016.723 Several popular votes have restricted judgesâ interpretative leeway in cases involving dangerous sexual or violent offenders.724 Finally, the initiative on self-determination, rejected in 2018, sought to limit Swiss courtsâ interpretative freedom in the arbitration of conflicts between domestic and international law.725
Given Swiss judgesâ mode of selection, it is interesting to take a look at the composition of the Swiss Federal Tribunal. A judge serving on the Swiss Federal Tribunal is typically German-speaking, male, white, and leans towards the right. As of June 2019, out of 38 judges serving on the Swiss Federal Tribunal, 3 spoke Italian as their main language, 12 French, and 23 German.726 At the same date, 14 out of the 38 federal judges in office were women.727 As of June 2019, 222 out of the 228 former federal judges were men (the first female federal judge, Margrith Bigler-Eggenberger, was elected in 1972 and became a regular federal judge in 1974), and none of the 97 former presidents of the Swiss Federal Tribunal were female.728 The Swiss Federal Tribunal counts few (if any) members of racial or religious minorities.729
As of June 2019, the Court counted 9 members of the Socialist Party and 4 members of the Green Party. Thus, one third of the Court (13 out of 38 judges) leaned towards the left. Twenty-five judges were at the center or on the political right: 6 judges were affiliated to the Christian Democratic Party (cvp), 10 to the Swiss Peopleâs Party (svp), 7 to the Free Democratic Party (fdp)/Liberals, 1 to the Conservative Democratic Party (bdp), and 1 to the Green Liberal Party.730
4.2.5 The Absence of Separate Opinions
Another idiosyncratic feature of the Swiss judiciary (especially compared to common law jurisdictions) is that judgments do not in principle include separate opinions, ie, dissents or concurrences. Thus, Swiss courtsâ decision-making is more of a black box than that of courts in many other States731 and of some international courts.732 Contrary to what applies to other jurisdictions,733 it is difficult to determine how individual Swiss judges position themselves with regard to particular domestic or international interpretative issues, and how their political affiliation (supra, 4.2.4) affects their decisions. Whenever courts do not deliberate publicly (and they rarely do), one can only analyze the final decision, ie, the aggregation of the preferences of the judges involved in a given case.734
The Swiss Federal Tribunal for example takes its decisions by majority vote.735 Its rulings only reflect the opinion of the majority, and they do not disclose the breakdown of the votes.736 A proposal to introduce dissenting opinions in the Swiss Federal Tribunal was rejected by the Swiss parliament in 1997.737 In 2014, both chambers of the parliament agreed to task the Federal Council with preparing a draft version of the Federal Act on the Swiss Federal Tribunal so that rulings can reflect dissenting opinions.738 At the time this book was being finalized (June 2019), the governmentâs proposal739 had not yet been discussed by the two chambers of the federal parliament. The Swiss Federal Tribunal is opposed to the aforementioned legislative amendment.740 When considering whether a legislative amendment is necessary, it is worth noting that it is increasingly rare for the Swiss Federal Tribunalâs deliberations to be public. In 2012, for instance, only 0.8% of all deliberations were.741 In 2018, a public deliberation was held in 48 out of 8,040 cases (ie, in 0.6% of all cases).742 In light of this development, but also due to other reasons, calls for introducing dissenting opinions have become more vocal of late.743 At the cantonal level, only a handful of cantonal judiciaries (Aargau, Geneva, Schaffhausen, Vaud, and Zurich) provide for separate opinions;744 this option is rarely used in practice, however. When it is, separate opinions usually take the form of concise dissents.745
The fact that disagreements among Swiss judges are not reflected in their opinions (at least as far as federal courts and most cantonal courts are concerned) obscures the truth. Even a judgment adopted unanimously is not monolithic. The âtyranny of the majorityâ and the flaws of decisions by majority vote, which are typically criticized in the context of democratic (legislative or popular) decision-making, are equally problematic in the context of judicial decision-making.746 Publishing separate opinions can bring to light the conflicting considerations involved in the decisions. It provides helpful information for future cases and strengthens judicial accountability. Together with other factors, the absence of dissents and concurrences also explains the style of Swiss judicial opinions. They are, indeed, impersonal and relatively short, compared to those of English or American courts, for instance.747
On the other hand, it is worth noting that by law, pleadings (when applicable), as well as judgesâ oral deliberations and votes whenever a public deliberation is held, must be public.748 This publicity creates difficulties too. It may put additional pressure on judges, especially in politically sensitive cases like those pertaining to the relationship between international law and constitutional law. This pressure could increase in the future, given recent trends towards a greater transparency of judicial proceedings.749
4.2.6 âPragmatic Methodological Pluralismâ
One trademark of the Swiss Federal Tribunal is its âpragmatic methodological pluralismâ, as the Court describes its approach to interpretation (see also supra, Chapter 1, section 3).750 The Court articulated this conception of judicial interpretation in the 1980s,751 but used it implicitly in earlier rulings.752 It relies on it to interpret domestic statutory law, but also other domestic legal acts, as well as international law.753 Pragmatic methodological pluralism is regularly mentioned by other federal754 and cantonal755 courts, including in the context of international law.756 However, the specific implications of the Courtâs eclectic method for the interpretation of international law have been neglected in Swiss scholarship.757 In the following paragraphs, I unpack the notions of âmethodological pluralismâ and âpragmatismâ, before highlighting the advantages and drawbacks of pragmatic methodological pluralism. I address the implications of this approach for international law in Part 3 (Chapters 5 and following, infra).
By endorsing âmethodological pluralismâ, the Swiss Federal Tribunal refuses to accept any hierarchy among different interpretative methods.758 In the case of written law, the Court acknowledges that textual interpretation is the starting point of interpretation, and that the text should not be departed from lightly.759 (On the centrality of textual interpretation, see infra, Chapter 6, 2.1.1.) The four main methods the Court refers to are the literal, systematic, teleological, and historical method.760 Except for teleological interpretation, which Friedrich Karl von Savigny considered to be applicable in exceptional cases,761 these methods go back to Savignyâs âfour elementsâ doctrine,762 later taken up, in a slightly adjusted form, by the Swiss jurist Arthur Meier-Hayoz in his commentary of art. 1 of the Swiss Civil Code.763 The four methods are part of the first-year curriculum in Swiss law faculties, and they are mentioned in most Swiss doctrinal analyses of legal reasoning and interpretation.764 As I will show (Chapters 5 and 6, infra), these four methods are used in other States as well, even if the terminology is inconsistent,765 and even if not all States draw upon Savigny.
The Swiss Federal Tribunal uses âpragmatismâ as a synonym for both result-oriented and anti-theoretical decision-making. This conception of âpragmatismâ must hence be distinguished from other (especially philosophical)766 usages of the term. Pragmatism, according to the Court, requires determining which interpretive argument(s) ought to be decisive to ascertain the âtrue meaning of the provisionâ,767 based on the circumstances of the case.768 The Swiss Federal Tribunal has offered various definitions of pragmatic methodological pluralism. Some of them emphasize that the starting point must remain the wording of the provision,769 or that the legal act must be interpreted primarily âout of itselfâ, ie, pursuant to the four aforementioned methods.770 Another variation states that the literal meaning can be the basis of the interpretative result only if it yields a âjust substantive outcomeâ.771 Yet other rulings highlight the need for a âsatisfactory result of the ratio legisâ,772 and the importance of avoiding subjective value judgments.773 These formulations reveal the evaluative nature of the interpretative process.
This result-oriented approach, and the reluctance to endorse âgrand theoriesâ of judicial decision-making, are rooted in the Swiss polity and its idiosyncrasies. Democratic decision-making (supra, 3.4) and the governmental principle of collegiality require finding solutions that can be accepted inter alia because they are âworkableâ.774 This is not specific to Switzerland, however. In Norway, for instance, courts invoke so-called âreelle hensynâ (âreal considerationsâ),775 through which they openly take policy considerations into account. The importance and ineluctability of such considerations, and lawyersâ reluctance to believe in a âheaven of legal conceptsâ,776 have also been emphasized by us judges and legal theorists.777 In English administrative law, scholars have argued that questions of fact must be distinguished from questions of law based on a âpragmaticâ approach, which they oppose to an âanalyticalâ one.778 An analytical approach, as Timothy Endicott defines it, is âan attempt to understandâ, to flesh out the reasons leading to the judicial decision.779 Pragmatists dispense with such an analysis. A given interpretation is chosen because it is useful, because it âwill achieve the right outcomeâ.780 Of course, said Norwegian and us doctrines are peculiar to their respective legal, political, and cultural context. Their emphasis on policy considerations starkly differs from the language that characterizes Swiss judicial reasoning.781 Still, Swiss courtsâ âpragmatismâ is arguably not an isolated phenomenon.
Both pluralism and pragmatism can be a virtue, in the sense that judges are not straight-jacketed by a specific interpretative philosophy and pay attention to the characteristics of each case. This is in line with judgesâ duty to abide by the law and to be independent and impartial. One could argue that judges may make good decisions without adopting an analytical approach in the aforementioned sense, and by sticking to a pragmatic one.782 One could also claim that pragmatic methodological pluralism is mandated by international law. Indeed, the methods of treaty interpretation, according to the ilc and to the drafters of the vclt, must be âthrown into the crucible, and their interaction [will] give the legally relevant interpretationâ.783
On the other hand, pluralism and especially pragmatism can also be a vice. They create the risk that interpretative arguments are invoked and relied upon opportunistically, depending on the outcome judges seek to achieve, while contrary arguments are ignored. The anti-theoretical flavor of pragmatism may also legitimize a lack of judicial candor, and it dispenses judges from giving articulate reasons for their decisions. As a matter of fact, Swiss judges tend to cite the arguments that support the interpretative result reached by the ruling and, therefore, to consider only one part of the argumentative picture. Pragmatic methodological pluralism can encourage a form of lawlessness, thereby undermining judgesâ duty to obey the law. Moreover, as I will argue in more detail, pragmatic methodological pluralism may be unsuited to the interpretation of international law if it disregards the characteristics of it sources and its interpretative methods (Chapters 5 and following).
References to pragmatism often appear in the practice of other Swiss authorities as well. Pragmatism is frequently invoked in the context of Swiss foreign relations.784 Moreover, the consensual nature of Swiss politics785 requires finding workable solutions. Finally, âpragmatismâ also influences Swiss scholarship (supra, Chapter 1, 2.5), which rarely overtly criticizes the Swiss Federal Tribunalâs interpretative approach. In the United States, judges and scholars often endorse a distinctive interpretative philosophy,786 and they have offered elaborate theoretical accounts of legal and judicial interpretation.787 Swiss judges and scholars, by contrast, do not usually advocate the superiority of one interpretative method, nor do they seek to theorize their interpretative approach.788 Swiss constitutional legal scholars describe their field as âskeptical towards overly abstract conceptsâ,789 but they barely dwell on the reasons for this skepticism. Few scholars depart from this path to analyze the Courtâs interpretative methods.790 The handful of authors who have more openly criticized the Swiss Federal Tribunalâs âpragmatic methodological pluralismâ have called it a âmethod without methodâ,791 a âprincipled unprinciplednessâ,792 a âtactical eclecticismâ,793 âa self-service storeâ,794 and âcherry-picking without a clear conceptâ795.796 They have shown that pragmatic methodological pluralism hardly constrains the Swiss Federal Tribunal, which is the sole arbiter of the results yielded by different methods797 (see infra, Chapter 5, 3.3). They have also demonstrated that the Court, which must imperatively reach a decision and, in this sense, be result-oriented (âpragmaticâ), is often primarily guided by teleology.798
4.2.7 The Legal Authority of Domestic Rulings in the Swiss Legal Order
Lastly, we must clarify the legal authority that court rulings enjoy in the Swiss legal order, ie, the extent to which Swiss judicial decisions are a source of domestic law799 (on their legal effect in international law, see infra, Chapter 4, section 3). When we talk about judicial lawmaking, what is at stake is not only courtsâ decisional authority, ie, their authority to settle a particular case, but also their (potential) interpretive authority, ie, their legal authority in a given legal order beyond this particular dispute (eg in the context of future interpretations of the law).800
Art. 1 of the Swiss Civil Code, which applies to the Swiss legal order, is particularly interesting (though ambiguous) in this regard. It provides that the court, in the absence of an applicable legal provision, must decide based on customary law âand, in the absence [thereof], in accordance with the rule that it would make as a legislatorâ.801 The position Swiss courts and lawyers adopt towards judgesâ interpretive authority is influenced by the commitment of the Swiss polity to the rule of law and legislative supremacy (supra, 3.3 and 3.5). They typically consider that the law is the basis and limit of Swiss judgesâ activity, and that judges must apply, not make law.802 In short, they do not deem judicial rulings a source of domestic law. Although the Swiss Federal Tribunal does not see itself as a âjuridical machineâ or a âsubsumption automatonâ,803 it often uses mechanistic, non-evaluative language and emphasizes the syllogism that characterizes deduction804 without mentioning its creative effect. Swiss scholars have defined the judge as a âperson whose syllogistic reasoning produces legal effectsâ.805
Still, art. 1(2) of the Swiss Civil Code shows that judicial lawmaking is not unfamiliar to the Swiss legal order. In cases pertaining to domestic law, the Swiss Federal Tribunal has acknowledged the need for judges to interpret the law âin light of [its] general development and of contemporary circumstancesâ when legislative intent is indeterminate.806 It has also used the notions of lawmaking, law development, adjustment, and gap-filling when describing the task of judges.807
The conditions under which the Court engages in dynamic interpretation are narrow.808 Nonetheless, the Court has assumed a lawmaking role in some areas of domestic law, including in constitutional law. In a way that, mutatis mutandis, reminds us of the us Supreme Courtâs unenumerated rights adjudication,809 the Swiss Federal Tribunal has identified several unwritten fundamental rights810 based on existing provisions of the Federal Constitution811 and of cantonal constitutions. This case law was subsequently codified in the 1999 revision of the Federal Constitution.812 Judges themselves note in their writings that interpretation involves evaluation,813 and Swiss scholarship increasingly emphasizes the creative dimensions of judicial reasoning.814
The orthodox doctrine based on which courts must remain independent from the political branches and especially from the legislature sits uneasily with judgesâ power to make law in individual cases, and even to influence the formation and development of domestic815 law. Yet all three branches of government have lawmaking powers, even if they must exercise them separately in their respective domains of activity, without interfering with one another. Swiss courts make law in individual cases. In doing so, they also influence future interpretations of the law.
5 Conclusion
The Swiss legal order is characterized by a range of specificities that affect and constrain Swiss courtsâ activity, including when they apply international law. Swiss foreign affairs give prominence to some areas of international law, while other areas are relatively unimportant in practice. This influences the issues likely to be brought before Swiss courts. The monism of the Swiss legal order entails that international law can immediately be applied by Swiss courts once it becomes binding on their State. Courts hence typically interpret international laws that have not gone through a domestic legislative filter. The rank of international law in the Swiss legal order is not settled, and in some cases, especially in connection with the so-called âSchubert Praxisâ, courts have made domestic laws trump international law. A similar ambivalence can be noticed regarding direct effect, which courts interpret in a way that is at times open, at times closed towards international law. In this context, courtsâ interpretative reasoning lacks predictability, clarity, and consistency, and it does not demonstrably conform with the interpretative methods of international law.
Courtsâ activity, including as regards international legal issues, is conditioned by several principles that structure the Swiss polity. Federalism protects the interests and competences of the cantons. Linguistic diversity influences the composition of the federal authorities, and it impacts federal legislation and judicial proceedings. It may also create interpretative divergence. Another important constraint on Swiss judges is their duty to abide by the law and to respect international law, which flows from the Swiss constitutional principle of the rule of law. Instruments of direct democracy give Swiss voters the possibility to shape Switzerlandâs foreign policy. As a result, clashes between domestic and international law may come to the fore in the courts. The supremacy of the federal legislature over other Swiss authorities explains Switzerlandâs weak system of judicial review, and Swiss judgesâ deference towards federal acts, especially when the legislature willingly derogates from international law.
The Swiss judiciary has several layers. The Swiss Federal Tribunal has jurisdiction over international legal issues, except for some foreign relations matters. Nonetheless, the Court often defers to other federal authorities, at least with regard to some questions of international law. Swiss courts have the duty to apply international law and to respect the Stateâs international obligations. While the Swiss legal order is committed to the rule of law, Swiss judges are not insulated from the influence of politics. They are elected by the parliament or, in some cases, by the people. Moreover, they are in office for a limited period. Yet judgesâ accountability towards their constituency is hampered by the fact that rulings typically only reflect the opinion of the majority. As regards Swiss courtsâ interpretative approach, the Swiss Federal Tribunal endorses âpragmatic methodological pluralismâ, which consists in a result-oriented balancing of considerations yielded by textual, teleological, systematic, and historical interpretation. Judicial decisions are not typically acknowledged as a source of domestic law by the State authorities. However, judicial decisions influence the interpretation of the law in subsequent cases. Moreover, the Swiss Federal Tribunal has contributed to the identification, formation, and modification of domestic law, including constitutional law.
Kennedy, âFreedom and Constraint in Adjudication: A Critical Phenomenologyâ (n 75) 45.
Aust and Nolte (n 47) v.
Many characteristics mentioned in this chapter have originally been identified in Besson and Ammann (n 60).
Etymologically, âcontextâ points to what is weaved together (from con-, with, and -texere, to weave). A contextual approach aims at disentangling a set of circumstances that are knit together and form the background of an issue or activity.
Sloss (n 120); Aust and Nolte (n 47); August Reinisch, International Organizations Before National Courts (Cambridge University Press 2000).
Roberts and others (n 8). See also Mathias Forteau, âComparative International Law Within, Not Against International Law: Lessons From the International Law Commissionâ (2015) 109 American Journal of International Law 498. While I do not engage in a comprehensive comparative legal analysis, I will refer to the practices of courts in other States to put the Swiss case law into perspective (see Chapters 7 and 8, infra).
Kennedy, âFreedom and Constraint in Adjudication: A Critical Phenomenologyâ (n 75).
Carter and Weiner (n 89) 150.
On the importance of this question, see Manuel J Ventura, âBook Review: Sharon Weill, The Role of National Courts in Applying International Humanitarian Lawâ (2016) 14 Journal of International Criminal Justice 744. On the us historical context, for example, see Bradley and Goldsmith (n 171) ch 1; David L Sloss, Michael D Ramsey, and William S Dodge (eds), International Law in the u.s. Supreme Court: Continuity and Change (Cambridge University Press 2011).
Ammann, âInternational Law in Domestic Courts Through an Empirical Lens: The Swiss Federal Tribunalâs Practice of International Law in Figuresâ (n 5).
Simone Rau and Barnaby Skinner, âDas sind die härtesten Asylrichter der Schweizâ (Tagesanzeiger, 2016) <blog.tagesanzeiger.ch/datenblog/index.php/12556/je-nach-richter- dreimal-hoehere-erfolgschancen>.
Hänni (n 75).
Sally Engle Merry, âTransnational Human Rights and Local Activism: Mapping the Middleâ (2006) 108 American Anthropologist 38.
On external approaches in legal scholarship, see McCrudden (n 7). On the relationship between these approaches and international law, see Besson, âInternational Legal Theory qua Practice of International Lawâ (n 204).
Hart (n 78) 82 ff.
Art. 27 vclt.
icj, case concerning the North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), merits, judgment, icj Reports 1969, 20 February 1969, 3, at 42 f, para 73 f. See also icj, case concerning the Legality of the Threat or Use of Nuclear Weapons, advisory opinion, icj Reports 1996, 8 July 1996, 226, at 253 f, para 65.
Eg States that have concluded specific treaties, are nuclear powers, or are engaged in an international armed conflict.
For an example: Bernard H Oxman, âSome Observations on the Draft Conclusions on Identification of Customary Law Provisionally Adopted by the ilcâs Drafting Committee at the Sixty-Sixth Sessionâ (2014) ajil Unbound <
Dissenting opinion of Judge Shahabuddeen in icj, case concerning the Legality of the Threat or Use of Nuclear Weapons, advisory opinion, icj Reports 1996, 8 July 1996, 375, at 414; dissenting opinion of Judge Weeramantry in ibid 429, at 536. The concept was initially included, but later removed from the ilcâs draft conclusions on cil. Compare the following reports: ilc, âThird Report on Identification of Customary International Law by Michael Wood, Special Rapporteurâ (2015) un Doc a/cn.4/682; ilc, âFourth Report on Identification of Customary International Law by Michael Wood, Special Rapporteurâ (2016) un Doc a/cn.4/695. See also un General Assembly, Report of the ilc, 67th session (4 May â 5 June and 6 July â 7 August 2015), un Doc a/70/10, 44, para 82.
icj, case concerning the Legality of the Threat or Use of Nuclear Weapons, advisory opinion, icj Reports 1996, 8 July 1996, 226, at 253 f, para 65. Some States emphasized the practice and opinio juris of âthose [States] who possess [nuclear] weaponsâ to suggest the existence of cil prohibiting the threat or use of nuclear weapons. See also ilc, âFifth Report on Identification of Customary International Law by Michael Wood, Special Rapporteurâ (2018) un Doc a/cn.4/717 29 ff para 64 ff.
One example is the Pinochet litigation in the House of Lords. See ilc, âFragmentation of International Law: Difficulties Arising From the Diversification and Fragmentation of International Lawâ (2006) un Doc a/cn.4/l.682 para 187 at 371. For a critique, see Ingrid Wuerth, âPinochetâs Legacy Reassessedâ (2012) 106 American Journal of International Law 731.
Art. 54(2) Cst.
Art. 2(4) Cst.
See especially the fa-cpp.
Such documents include the Foreign Strategy Report, which the fdfa submits to the Federal Council at the beginning of a legislative term (fdfa, Swiss Foreign Policy Strategy 2016â19: Federal Council Report on the Priorities for the 2016â19 Legislative Period, <
fdfa, Swiss Foreign Policy Strategy 2016â19 (n 300) 11 ff.
Ibid 5.
Ie, ârelations with the European Union and the eu and efta member statesâ, ârelations with global partnersâ, âpeace and securityâ, and âsustainable development and prosperityâ, ibid 14 ff.
Federal Council, Foreign Policy Report 2018 (n 300); for an earlier example, see Federal Council, Foreign Policy Report 2015, fg 2016 503, <
fdfa, Handbook on Accepting the Jurisdiction of the International Court of Justice: Model Clauses and Templates, 2014, <
Federal Council, Botschaft betreffend den Bundesbeschluss über die Zusammenarbeit mit den Internationalen Gerichten zur Verfolgung von schwerwiegenden Verletzungen des humanitären Völkerrechts, 18 October 1995, fg 1995 iv 1101, for instance at 1105.
Federal Council, Botschaft über das Römer Statut des Internationalen Strafgerichtshofs, das Bundesgesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof und eine Revision des Strafrechts, 15 November 2000, fg 2001 391, for instance at 406, 431, and 483.
Federal Council, 40 Jahre emrk-Beitritt der Schweiz: Erfahrungen und Perspektiven, Bericht des Bundesrates in Erfüllung des Postulats Stöckli 13.4187 vom 12. Dezember 2013, 14 November 2014, fg 2015 357, at 359, 407 f, 410. The echr was ratified after the removal of two constitutional obstacles. First, womenâs suffrage was introduced in 1971. Then, in 1973, the so-called âconfessional articlesâ of the Swiss Constitution (which discriminated against the Jesuits, and prohibited both the creation of new monasteries or religious orders and the restoration of abolished ones) were abrogated.
Federal Council, Botschaft betreffend den Beitritt der Schweiz zu den beiden internationalen Menschenrechtspakten von 1966 und zu einer Ãnderung des Bundesrechtspflegegesetzes vom 30. Januar 1991, 2 April 1991, fg 1991 i 1189, at 1196.
<
<
For an analysis of Switzerlandâs history of neutrality from the perspective of international law, see Detlev F Vagts, âEditorial Comment: Switzerland, International Law and World War IIâ (1997) 91 American Journal of Jurisprudence 466.
In 1947, Manley O Hudson wrote: âAs [Switzerland] had stayed out of all but humanitarian action through two World Wars, she was not to be regarded in 1945 as a âpeace-lovingâ state. Of course the scenes on the stage of 1945 have now shifted to some extent, and possibly Switzerland could today qualify for United Nations membership. She has made no application for such membership, however, and her centuries-old tradition of neutrality may keep her from shouldering the obligations of the Charter for many years to comeâ. See Hudson (n 1) 867.
For an overview: <
<
See especially the Federal Act on the Privileges, Immunities and Facilities, and the Financial Subsidies Granted by Switzerland as a Host State of 22 June 2007 (sr 192.12).
As of June 2019, Switzerland had entered into headquarters agreements with 27 ios: see <
On the Swiss practice in this area, see Neumann and Peters (n 12).
As of June 2019, Switzerland was the depositary of 79 treaties. See <
For an analysis of international law in domestic courts from the perspective of the constitutional separation of powers: David Haljan, Separating Powers: International Law Before National Courts (tmc Asser Press 2013).
Art. 184(1) Cst.
Art. 184(2) Cst.
Art. 166(2) Cst.
One example is the high practical relevance of sole executive agreements in us foreign relations.
Art. 7a of the Federal Government and Administration Organization Act of 21 March 1997 (sr 172.010).
Art. 190 Cst.
Art. 166(1) Cst.
Art. 44 fa-fa.
Art. 152 fa-fa.
Art. 45(1)(a) fa-fa.
Ruth D Masters, International Law in National Courts: A Study of the Enforcement of International Law in German, Swiss, French and Belgian Courts (Columbia University Press 1932) 90.
See ibid 91.
Art. 54(1) Cst.
Art. 55(1) Cst; Federal Act on the Participation of the Cantons in the Foreign Policy of the Confederation of 22 December 1999 (sr 138.1).
Art. 54(3) Cst.
Art. 56(1) Cst.
See already Besson and Ammann (n 60). See also (with references): Besson, Droit international public : Abrégé de cours et résumés de jurisprudence (n 89) 303 ff.
Giorgio Gaja, âDualism: A Reviewâ in Janne E Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (Oxford University Press 2007) 52.
In the original: âdeux cercles qui sont en contact intime, mais qui ne se superposent jamaisâ; Heinrich Triepel, âLes rapports entre le droit interne et le droit internationalâ (1923) 1 Recueil des cours de lâAcadémie de droit international 83.
bge 127 ii 177, at 2 c).
Art. 5(4) Cst.
Art. 190 Cst.
Art. 139(3), art. 193(4), art. 194(2) Cst.
See the decision cited in Federal Council, Botschaft an die Bundesversammlung betreffend die Mitwirkung der Schweiz bei Ausführung der Generalakte der Konferenz von Algesiras vom 7. April 1906, fg 1907 ii 112, 15 March 1907, at 119; the case is mentioned by Masters (n 331) 96. See also ibid 98. For later decisions, see eg bge 132 iii 122, at 3.1.1 (explicit reference to monism with primacy of international law); BGer, judgment 9C_873/2012 of 25 February 2013, at 4.2 (explicit reference to monism); bge 130 i 312, at 4.1 (explicit reference to monism with primacy of international law); bge 122 ii 234, at 4 a), and bge 94 i 669, at 2 (implicit references to monism).
BGer, judgments 2A.783/2006, 2A.784/2006, and 2A.785/2006 of 23 January 2008, at 7.1; bge 133 ii 450, at 6.1; bge 44 i 49, at 4. See further: BGer, judgment 2C_950/2012 of 8 August 2013, at 2.2 (treaties); bge 115 Ib 496, at 5 b) (cil); BGer, judgment 1A.63/2002 of 9 April 2002, at 2.1 (general principles of international law). See for instance Astrid Epiney, âDas Verhältnis von Völkerrecht und Landesrecht aus der Sicht des Bundesgerichts: Anmerkung zum bge 2C_828/2011 vom 12. Oktober 2012â Jusletter of 18 March 2013.
bge 49 i 188, at 3, cited in Masters (n 331) 97.
See ibid 98.
Lukas Reimann, Motion 14.3221 and Motion 16.3239, Dualismus statt Monismus, 27 May 2014 and 3 May 2016; Swiss Peopleâs Party, Postulat 09.3676, Völkerrecht und Landesrecht: Systemwechsel vom Monismus zum Dualismus, 11 June 2009; Christoph Mörgeli, Interpellation 04.3802, Europäische Menschenrechtskonvention und schweizerische Souveränität, 16 December 2004; Samuel Schmid, Interpellation 96.3479, Völkerrecht: Wechsel zum Dualismus, 2 October 1996; Alexander J. Baumann, Motion 96.3482, Systemwechsel für die Einführung von Völkerrecht, 2 October 1996.
Federal Council, 2010 Report on International and Domestic Law (n 143), at 2320.
Denis Alland, âLes destins internes du droit international publicâ, Anzilotti et le droit international public : un essai (2nd edn, Pedone 2013) 91.
Pierre-Hugues Verdier and Mila Versteeg, âInternational Law in National Legal Systems: An Empirical Investigationâ (2015) 109 American Journal of International Law 514, 516; ila, âPreliminary Report of the ila Study Group on Principles on the Engagement of Domestic Courts With International Lawâ (n 61) 6; Charlesworth and others (n 65) 2; Besson, âTheorizing the Sources of International Lawâ (n 151) 184. See also Federal Council, 2010 Report on International and Domestic Law (n 143), at 2286.
For such a diagnosis: Nijman and Nollkaemper (n 144) 2 f; Mattias Kumm, âDemocratic Constitutionalism Encounters International Law: Terms of Engagementâ in Sujit Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press 2006) 257.
Jean Dhommeaux, âMonismes et dualismes en droit international des droits de lâhommeâ (1995) 41 Annuaire français de droit international 447, 448; Andreas L Paulus, âThe Emergence of the International Community and the Divide Between International and Domestic Lawâ in Janne E Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (Oxford University Press 2007) 229; Charlesworth and others (n 65) 2. See also Federal Council, 2010 Report on International and Domestic Law (n 143), at 2291.
Bugalo Maripe, âGiving Effect to International Human Rights Law in the Domestic Context of Botswana: Dissonance and Incongruity in Judicial Interpretationâ (2014) 14 Oxford University Commonwealth Law Journal 251, 258.
See the examples in ila, â(Study Group on) Principles on the Engagement of Domestic Courts With International Law, Final Report: Mapping the Engagement of Domestic Courts With International Lawâ (n 15) 8 f.
This preliminary question is reminiscent of what, in us law, has been called Chevron step zero, see Cass R Sunstein, âChevron Step Zeroâ (2006) 92 Virginia Law Review 187. I am indebted to David Scott Louk for drawing my attention to this point.
See infra (n 641). The cedaw Committee for instance, in its Concluding Observations of 2016 pertaining to Switzerlandâs 4th and 5th periodic reports, criticizes âthe limited awareness of the [cedaw] Convention and the general recommendations of the Committee as important tools of interpretation within the judiciaryâ, among other actors. See Concluding Observations of the cedaw Committee, un Doc cedaw/c/che/co/4-5, 18 November 2016, para 10 f.
Gaja (n 338) 61. See also Federal Council, 2010 Report on International and Domestic Law (n 143), 2285.
Richard Gardiner, Treaty Interpretation (2nd edn, Oxford University Press 2016) 143.
Federal Council, 2010 Report on International and Domestic Law (n 143), 2286. See also (on dualist South Africa): John Dugard, âSouth Africaâ in David L Sloss (ed), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (Cambridge University Press 2009) 475.
Federal Council, 2010 Report on International and Domestic Law (n 143), at 2300. For an example, see Melissa A Waters, âCreeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treatiesâ (2007) 107 Columbia Law Review 628.
bge 139 i 129, at 3.3 (art. 6(1) echr and art. 14 icescr). See also bge 141 i 211 (regarding the echr and the iccpr). See, by contrast, bge 141 i 97, where the appellant was explicitly relying on art. 6(1) echr (at 5) and art. 14 iccpr (at 6).
bge 140 iv 108, at 6.8 (art. 17(3) Cst. and art. 10 echr); bge 141 ii 182, at 6.3.6, 6.4.1 (art. 16(3) Cst. and art. 10 echr).
Eg Veronika Fikfak, âEnglish Courts and the âInternalisationâ of the European Convention of Human Rights? Between Theory and Practiceâ (2015) 5 uk Supreme Court Annual Review 118, 24 ss.
Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press 1994) 206.
One example is bge 136 iii 168, at 3.3.4, where the Court applied the Schubert Praxis but did not mention contradictory international law, especially not the principle pacta sunt servanda (art. 26 vclt). See, by contrast, bge 139 i 16, at 5.1, where the Court mentioned art. 27 vclt.
Bge 145 v 55, at 4.1.
Gerald Fitzmaurice, âThe General Principles of International Law Considered From the Standpoint of the Rule of Lawâ (1957) 92 Recueil des cours de lâAcadémie de droit international 85.
icj, case concerning the Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, advisory opinion, icj Reports 1988, 26 April 1988, 12, 34 f, para 57.
pcij, case concerning the Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, advisory opinion, pcij Series a/b No 44, 4 February 1932, 3, at 24; icj, case concerning Avena and Other Mexican Nationals (Mexico v. United States), judgment, icj Reports 2004, 31 March 2004, 12, at 65, para 139; Anne Peters, âSupremacy Lost: International Law Meets Domestic Constitutional Lawâ (2009) 3 Vienna Online Journal on International Constitutional Law 170, 183 f.
To mention two recent examples: first, a popular initiative launched by the Swiss Peopleâs Party and rejected by Swiss voters in 2018 aimed, inter alia, at establishing the supremacy of the Swiss Constitution over international law, except for mandatory provisions of international law (see <
BGer, judgment 1A.161/2000 of 15 June 2000, at 4 f).
André Nollkaemper, âRethinking the Supremacy of International Lawâ (2010) 65 Zeitschrift für öffentliches Recht 65.
bge 133 v 367, at 11.1.2.
Art. 139(3), 193(4), and 194(2) Cst.
For an articulation of this principle in the United States, see Murray v. the Charming Betsey, 6 u.s. 64 (1804).
bge 122 ii 234, at 4 e). On Statesâ duty of consistent interpretation, see pcij, case concerning the Exchange of Greek and Turkish Populations, advisory opinion, pcij Series B No 10, 21 Feburary 1925, 6, at 20.
On this point, see The Interpretation of Statutes (n 54) 8 f.
bge 94 i 669, at 6 a).
Ibid.
bge 135 ii 243, at 3.1.
Bernhard Ehrenzeller, Benjamin Schindler, and Rainer J Schweizer (eds), Die schweizerische Bundesverfassung: St. Galler Kommentar (3rd edn, Dike 2014) 1044.
Art. 49(1) Cst.
Art. 190 Cst.
Eg Stefan Schürer, âHat die pkk-Rechtsprechung die Schubert-Praxis relativiert? Eine Analyse der pkk-Rechtsprechung und ihrer Auswirkungen auf die Schubert-Praxisâ (2015) 116 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 115; Marco Sassòli, âVölkerrecht und Landesrecht: Plädoyer eines Völkerrechtlers für Schubertâ in François Bellanger and Jacques de Werra (eds), Genève au confluent du droit interne et du droit international : Mélanges offerts par la Faculté de droit de lâUniversité de Genève à la Société suisse des juristes à lâoccasion du Congrès 2012 (Schulthess 2012).
Nollkaemper, National Courts and the International Rule of Law (n 47) 14.
Masters (n 331) 100 ff. As early as 1884, in bge 10 i 583, at 1, the Court applied a treaty contradicting a prior federal act. For early rulings in which the Court endorses the supremacy of international law, see bge 42 i 102, at 1; bge 27 i 52, at 1; bge 7 i 774, at 4.
bge 59 ii 331, at 4.
bge 123 ii 279, at 2 d); bge 119 v 171, at 4 a); bge 116 Ib 106, at 1 a); bge 111 v 201, at 2 b); bge 110 v 72, at 2 b); bge 109 Ib 165 at 7 b); bge 106 Ib 400, at 5 a); bge 100 Ia 407, at 1 b); bge 97 i 372, at 1; bge 91 i 127, at 2; bge 87 i 134, at 2.
bge 123 ii 134, at 1 a); bge 122 ii 485, at 1; bge 122 ii 140, at 2 (on the so-called âprinciple of favorâ, pursuant to which the Court applies domestic laws if they are more generous regarding mutual legal assistance in criminal matters).
bge 119 v 171, at 4 a).
bge 125 ii 417, at 4 d).
bge 141 ii 436, at 4.1; bge 139 i 16, at 5.1; bge 138 ii 524, at 5.1. See also (implicitly) bge 123 ii 279, at 2 d).
bge 131 v 66, at 3.2.
bge 122 ii 485, at 3 a).
Some scholars even argue that the Court should be required to bring such inconsistencies to the legislatureâs attention, see Ehrenzeller, Schindler, and Schweizer (n 382) 3053.
bge 136 i 49, at 3.1.
bge 117 Ib 367, at 2 e) and f).
bge 136 i 49, at 3.1 (regarding constitutional law); bge 117 Ib 367, at 2 e) and f) (regarding international law).
bge 125 ii 417, at 4 d); bge 130 i 312, at 1.1 and 4.3.1.
See especially bge 133 v 367, at 11. See also bge 131 ii 352, at 1.3.2.
bge 136 ii 120, at 3.5.3. The case pertained to the Federal Act on Foreign Nationals (sr 142.20) and art. 14 echr.
Stefan Schürer, âDie punktuelle Neutralisierung der emrk in der Praxis des Bundesgerichts. Zur verkürzten Grundrechtsprüfung bei der Anwendung von Bundesgesetzenâ (2016) 117 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 171.
bge 136 iii 168.
bge 99 Ib 39, at 3, 4.
See the references in bge 139 i 16, at 5.1.
bge 133 v 367, at 11 and especially 11.6; bge 142 ii 35, at 3.
Gilbert Kolly, âLe Tribunal fédéral suisseâ (2016) 3 Les Nouveaux Cahiers du Conseil constitutionnel 47, 52; Sassòli (n 385) 198 f.
Federal Council, Klares Verhältnis zwischen Völkerrecht und Landesrecht, Bericht des Bundesrates in Erfüllung des Postulates 13.3805, 12 June 2015, <
Compare for instance bge 139 i 16 and bge 136 iii 168.
In a decision of 1993, the Court noted that the principle of the supremacy of international law was âlargely undisputedâ; the only contrary opinion it mentioned was a law review article by federal judge Hansjörg Seiler, who was not involved in deciding the case and whose opinion the Court deemed âvery much in the minorityâ (bge 119 v 171, at 4 a)).
Art. 139(3), 193(4), and 194(2) Cst.
Federal Council, 2010 Report on International and Domestic Law (n 143), at 2314. See also bge 133 ii 450, at 7.1, where the Swiss Federal Tribunal considers that non-derogability indicates that a norm has the character of jus cogens. See also Federal Council, Botschaft zur Volksinitative âSchweizer Recht statt fremde Richter (Selbstbestimmungsinitiative)â, fg 2017 5355, at 5365.
bge 139 i 16, at 5.2.1.
Federal Council, Botschaft zur Genehmigung des Abkommens über den Europäischen Wirtschaftsraum vom 18. Mai 1992, 21 August 1992, fg 1992 iv 1, at 92 (âGrundprinzipien und Kerngehalte der Grundrechteâ). The French translation speaks of âprincipes fondamentaux ou lâessence même des droits fondamentauxâ, see the French version of fg 1992 iv 1, at 87.
bge 139 i 16, at 4.3.4.
Ibid, at 5.3. The case has been widely discussed in Swiss scholarship and politics. See for instance Giovanni Biaggini, âÃber die Auslegung der Bundesverfassung und ihr Verhältnis zur emrkâ (2013) 114 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 316; Astrid Epiney, âZur Rolle des Bundesgerichts bei der Verfassungsauslegung: Gedanken zu bge 139 I 16â Jusletter of 6 October 2014; Yvo Hangartner, âBundesgerichtlicher Positionsbezug zum Verhältnis von Bundesverfassung und Völkerrechtâ (2013) Aktuelle juristische Praxis / Pratique juridique actuelle 698.
Ehrenzeller, Schindler, and Schweizer (n 382) 3051. See art. 122 fa-sft.
Federal Council, 2010 Report on International and Domestic Law (n 143), at 2286.
Wüger (n 104) 205.
Thomas Buergenthal, âSelf-Executing and Non-Self-Executing Treaties in National and International Lawâ (1992) 235 Recueil des cours de lâAcadémie de droit international 303, 396; Forteau (n 108) 99 f. See also bge 126 i 240, at 2 g).
icj, LaGrand (Germany v. United States), judgment, icj Reports 2001, 27 June 2001, 466, at 494, para 77, regarding art. 36(1) vccr; pcij, case on the Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials Who Have Passed Into the Polish Service, Against the Polish Railways Administration), advisory opinion, pcij Series B No 15, 3 March 1928, 4, at 17 f (on the Danish-Polish Agreement Concerning Officials (Beamtenabkommen)).
Eg Wüger (n 104).
bge 136 i 290, at 2.3.1. See also bge 121 v 246, at 2 b).
bge 124 iii 90, at 3 a); bge 120 Ia 1, at 5 b); Christine Kaufmann and Christoph Good, âDie Anwendbarkeit von ilo-Recht vor Schweizer Gerichten: Potential und Grenzenâ (2016) Aktuelle juristische Praxis / Pratique juridique actuelle 647, 647; Ziegler, âThe Application of wto Law in Switzerlandâ (n 12) 395.
bge 136 i 290, at 2.3.1.
bge 124 ii 293, at 4 b).
bge 136 i 290, at 2.3.1; bge 135 i 161, at 2.2; bge 126 i 240, at 2 c); bge 125 iii 277, at 2 e); bge 123 ii 472, at 4 d); bge 122 i 101, at 2 a); bge 122 v 221, at 3 a); bge 121 v 246, at 2 c); bge 121 v 229, at 3 a).
bge 122 v 221, at 3 a).
Ibid.
Ibid.
bge 136 i 290, at 2.3.
bge 139 i 257, at 6; bge 135 i 161, at 2.2.
bge 122 i 101, at 2 a).
bge 120 Ia 1, at 5 d).
bge 125 iii 277, at 2 e). While the Court considered that there were âweighty reasonsâ to consider the provision to have direct effect (at 2 d) bb)), it left the question open.
bge 133 i 156, at 3.6.4.
Ie, art. 3, art. 7(a)(i), art. 8, art. 10(3), art. 13(2)(a), (3), and (4), and art. 15(3) icescr. See cescr, General Comment No 3: The Nature of States Partiesâ Obligations (art. 2, para 1, of the Covenant), 14 December 1990, un Doc e/1991/23, at para 5. See also cescr, General Comment No 9: The Domestic Application of the Covenant, 3 December 1998, un Doc e/c.12/1998/24, at para 10.
cescr, General Comment No 3 (footnote 438), at para 5. See also cescr, General Comment No 9 (footnote 438), at para 2 and 3; and para 7, 10 (emphasizing the importance of justiciability), and 14.
cescr, Consideration of Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant, Concluding Observations: Switzerland, un Doc e/c.12/che/co/2-3, 26 November 2010, at para 5.
See Maya Hertig Randall and Gregor T Chatton, âLes droits sociaux en Suisseâ in Krzysztof Wojtyczek (ed), Social Rights as Fundamental Rights (Eleven International Publishing 2016) 435 ff.
Jörg Künzli, Anja Eugster, and Alexander Spring, Die Anerkennung justiziabler Rechte im Bereich der wirtschaftlichen, sozialen und kulturellen Menschenrechte durch das Bundes- und das kantonale Recht (Schweizer Kompetenzzentrum für Menschenrechte 2014) 68 f. For an overview: Hertig Randall and Chatton (n 441) 439 ff.
bge 139 i 257, at 6.
bge 137 i 305, at 3.2. See also Federal Council, Botschaft betreffend das Ãbereinkommen von 1979 zur Beseitigung jeder Form von Diskriminierung der Frau, 23 August 1995, fg 1995 iv 901, at 925; Federal Council, Botschaft über die Genehmigung des Fakultativprotokolls vom 6. Oktober 1999 zum Ãbereinkommen vom 18. Dezember 1979 zur Beseitigung jeder Form von Diskriminierung der Frau (op cedaw), 29 November 2006, fg 2006 9787, at 9802 and 9813.
Federal Council, Botschaft über die Genehmigung des Fakultativprotokolls vom 6. Oktober 1999 zum Ãbereinkommen vom 18. Dezember 1979 zur Beseitigung jeder Form von Diskriminierung der Frau (op cedaw), 29 November 2006, fg 2006 9787, at 9802 (considering that the Swiss Federal Tribunal could accept the direct effect of âat least some partsâ of art. 9 cedaw and art. 15 cedaw, and âpotentially alsoâ of art. 7 cedaw and art. 16 cedaw); Federal Council, Botschaft betreffend das Ãbereinkommen von 1979 zur Beseitigung jeder Form von Diskriminierung der Frau, 23 August 1995, fg 1995 iv 901, at 923 ff (noting that the issue of direct effect would have to be considered by the Swiss law-applying authorities, while stating its own view according to which most provisions of the cedaw lacked direct effect).
Federal Council, Botschaft zur Genehmigung des Ãbereinkommens vom 13. Dezember 2006 über die Rechte von Menschen mit Behinderungen, 19 December 2012, fg 2013 661, at 674.
Concluding Observations of the cedaw Committee, un Doc cedaw/c/che/co/4â5, 18 November 2016, at para 12 f; Concluding Observations of the cedaw Committee, un Doc cedaw/c/che/co/3, 7 August 2009, para 15; Concluding Observations of the cedaw Committee, un Doc a/58/38(supp), 18 August 2003, para 97 ff, at para 106 f.
The Court has denied direct effect to the International Agreements for the Suppression of the White Slave Traffic of 1904, 1910, 1921, and 1933 (bge 128 iv 117, at 3 b)), as well as to the provisions of ilo Convention No 111 Concerning Discrimination in Respect of Employment and Occupation (bge 106 Ib 182, at 4 a)).
Christina Schnell, Arbeitnehmerfreizügigkeit in der Schweiz: Ausgewählte rechtliche Aspekte zum Personenfreizügigkeitsabkommen (Schulthess 2010) 86; Thomas Cottier and Erik Evtimov, âDie sektoriellen Abkommen der Schweiz mit der eg: Anwendung und Rechtsschutzâ (2003) 139 Zeitschrift des Bernischen Juristenvereins 77, 101 ff.
bge 104 iv 175, at 2 c); bge 105 ii 49, at 3 b); bge 118 Ib 367, at 6 a).
bge 131 ii 271, at 10; Daniel Wüger, âBundesgericht wendet Freihandelsabkommen erstmals unmittelbar an â ein Schritt vorwärts, ein Schritt zurückâ Jusletter of 4 April 2005.
See ibid 43.
vpb 66.44, decision of the Federal Appeals Commission for Customs, 29 August 2001, at 5 a) bb).
On this case law, see Hertig Randall and Chatton (n 441) 444 f.
See ibid 445.
Kaufmann and Good (n 425) 653.
bge 119 v 171, at 4 b). See also bge 120 v 224, at 2. Regarding art. 68(f) of the European Code of Social Security, see also bge 121 v 45, at 1.
bge 117 Ib 337, at 2 a); bge 125 ii 417, at 4 d); BGer, judgment 1A.63/2002 of 9 April 2002, at 2.1; Christian Dominicé, âLe droit international coutumier dans lâordre juridique suisseâ in Jeanne Belhumeur and Luigi Condorelli (eds), Lâordre juridique international entre tradition et innovation (Graduate Institute Publications 1997) para 8.
BGer, judgment 1A.212/2000 of 19 September 2000, at 5 a).
bge 117 Ib 337, at 2 a): âSelon les conceptions en vigueur en Suisse, les principes généraux du droit des gens y sont directement applicables comme droit interneâ. See also bge 125 ii 417, at 4 d); BGer, judgment 1A.63/2002 of 9 April 2002, at 2.1.
Wüger (n 104) 284.
See ibid 283â286; Simonetta Stirling-Zanda, Lâapplication judiciaire du droit international coutumier : étude comparée de la pratique européenne (Schulthess 2000) 152 ff. See however Robert Baumann, Der Einfluss des Völkerrechts auf die Gewaltenteilung: am Beispiel Deutschlands, Frankreichs, des Vereinigten Königreichs, der Vereinigten Staaten von Amerika, Schwedens und der Schweiz (Schulthess 2002) 358 ff. See also Dominicé (n 458) para 16 ff.
Daniel Wüger for instance, in his study on the direct effect of international law in the Swiss legal order, merely states that the direct effect of cil should be assessed âno differently than that of treaty lawâ. Wüger (n 104) 286.
On social rights, see Hertig Randall and Chatton (n 441) 393.
Forteau (n 108) 105 f.
Nollkaemper, âThe Duality of Direct Effect of International Lawâ (n 59) 109.
See ibid 108.
Art. 3 Cst.
Wolfgang Rudolf, âFederal Statesâ, Max Planck Encyclopedia of Public International Law (Online Edition) (Oxford University Press 2011) para 13 <opil.ouplaw.com>.
Art. 42(1) Cst. The principle of cantonal autonomy enjoys constitutional protection (art. 47), and State tasks must be allocated based on the principle of subsidiarity (art. 5a and art. 43a).
Art. 138(4) Cst.
Art. 140(1) Cst.
Art. 49(1) Cst. Eg bge 141 v 455, at 6.1.
Art. 46(1) Cst.
Ehrenzeller, Schindler, and Schweizer (n 382) 1044.
Art. 4(1) arsiwa. Various us Statesâ repeated violations of foreign nationalsâ rights under the vccr, for instance, have triggered the international responsibility of the United States. See icj, case concerning Avena and Other Mexican Nationals (Mexico v. United States), judgment, icj Reports 2004, 31 March 2004, 12.
Switzerland has for instance added a reservation to art. 25(b) iccpr (which, inter alia, guarantees voting secrecy) to take into account some communal voting procedures and the cantonal âLandsgemeindenâ, a secular voting tradition by show of hands still practiced in some cantons. See Federal Council, Botschaft betreffend den Beitritt zur Schweiz zu den beiden internationalen Menschenrechtspakten von 1966 und zu einer Ãnderung des Bundesrechtspflegegesetzes, 30 January 1991, fg 1991 i 1189, at 1201. This explains why Switzerland has signed, but not ratified Protocol 1 to the echr, art. 3 of which guarantees the right to free elections by secret ballot.
On this issue, see Samuele Vorpe, âDas Burkaverbot im Lichte der Religionsfreiheit: Ist die Tessiner kantonale Verfassungsbestimmung über das Gesichtsverhüllungsverbot mit Art. 15 bv vereinbar?â Jusletter of 20 June 2016.
Federal Council, Botschaft zur Gewährleistung der geänderten Verfassungen der Kantone Bern, Uri, Solothurn, Basel-Stadt, Basel-Landschaft, Appenzell Ausserrhoden, Appenzell Innerrhoden, Tessin, Waadt und Jura, 12 November 2014, fg 2014 9091, at 9110.
Eg art. 15 Cst.
Eg art. 9 echr and art. 18 iccpr. See however ECtHR (Grand Chamber), s.a.s. v. France, App No 43835/11 (echr Reports 2014), 1 July 2014. For an analysis of this decision, see Samantha Besson, âHuman Rights Waivers and the Right to Do Wrong Under the European Convention on Human Rightsâ in Josep Casadevall and others (eds), Mélanges en lâhonneur de / Essays in honour of Dean Spielmann (Wolf Legal Publishers 2015). It is worth noting that in 2014, the ag-bs, in an exceptionally detailed ruling, confirmed the invalidity of an analogous cantonal constitutional initiative on these grounds. See ag-bs, judgment vg 2013.1 of 1 January 2014. The decision is also reported by Andreas Glaser, âTeil 3: Demokratische Gesetzgebung im Gleichheitsdilemma: Diskriminierungsverbot und Demokratie â ein Widerspruch?â in Béatrice Ziegler (ed), Ungleichheit(en) und Demokratie (Schulthess 2016) 145 f.
Art. 51(2) and art. 172(2) Cst. See Federal Assembly, Bundesbeschluss über die Gewährleistung der geänderten Verfassungen der Kantone Bern, Uri, Solothurn, Basel-Stadt, Basel-Landschaft, Appenzell Ausserrhoden, Appenzell Innerrhoden, Tessin, Waadt und Jura, 11 March 2015, fg 2015 2035.
<
bge 144 i 281.
Ibid, at 3.2.
Of course, linguistic diversity also influences the activity of other Swiss officials, eg qua criterion for the election of the members of the Federal Council (art. 175(4) Cst).
Georges Lüdi, âMehrsprachigkeitâ, Historisches Lexikon der Schweiz / Dictionnaire historique de la Suisse / Dizionario storico della Svizzera (2013) <
Art. 4 Cst. On linguistic diversity and law in Switzerland, see Niccolò Raselli, âLangues et justices dans un Etat plurilingueâ (2016) Aktuelle juristische Praxis / Pratique juridique actuelle 639.
Art. 6(3) fa-nl.
Art. 70(1) Cst.
Art. 10(1) and art. 11 fa-nl.
Art. 14 fa-cflfg.
Art. 18(2) fa-sft.
Art. 42(1) fa-sft.
Art. 54(1) fa-sft. The Act refers to âofficial languagesâ as including Romansh, which contradicts art. 70(1) Cst.
For examples of inconsistencies between different linguistic versions of a treaty, see bge 102 Ia 179, at 3 a) (echr); bge 83 i 16, at 3 (Refugee Convention); bge 98 ii 231, at 4 (Warsaw Convention). See also Marie-Louise Gächter-Alge, Mehrsprachigkeit im Völkervertragsrecht: Von der Ausarbeitung zur Auslegung (Difo-Druck 2011).
<
Federal Council, Botschaft über eine neue Bundesverfassung, 20 November 1996, fg 1997 i 1, at 131 f, with reference to bge 103 Ia 369 (see especially at 6) and bge 121 i 22 (see at 3 a)).
bge 139 i 16, at 4.3.2.
Scholars have used the notion of the âlegal Stateâ to distinguish the continental conception of the rule of law from the rule of law as conceptualized in Anglo-American legal theory. See Stephan Kirste, âPhilosophical Foundations of the Principle of the Legal State (Rechtsstaat) and the Rule of Lawâ in James R Silkenat, James E Hickey, and Peter D Barenboim (eds), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (Springer 2014). Moreover, Swiss scholars differentiate between the Swiss conception of the rule of law (or âlegal Stateâ) and the principle of the âRechtsstaatâ or âEtat de droitâ as articulated in continental political philosophy, see Ehrenzeller, Schindler and Schweizer (n 382) 105. This gives credence to Kirsteâs observation that the principle of the rule of law/of the legal State branches out into diverse conceptions adopted by different domestic legal orders, based on a given Stateâs history and dominating moral and political philosophy.
Raz, âThe Rule of Law and Its Virtueâ (n 18); Lamond (n 206); Jeremy Waldron, âThe Rule of Law and the Importance of Procedureâ in James Fleming (ed), Getting to the Rule of Law (New York University Press 2011) 5 f; Finnis (n 79) 270 f.
According to Stephan Kirste, even if the historical, cultural, and ideological contexts of their respective emergence differ, both concepts pursue a âcommon goalâ. In both cases, their philosophical justification lies in the protection of individual freedom. See Kirste (n 500). On the rule of law in international law, see Wohlwend (n 17).
bge 131 ii 13, at 6.3.
âVorrang des Rechtsâ, see bge 91 i 266, at 7; bge 104 Ib 74, at 5 b) bb). See also bge 141 v 557, at 5.2 (applicable to private individuals exercising a public function, in casu a private company providing compulsory health insurance services).
bge 109 Ia 273, at 4 d). According to the Court, the requirement of legal determinacy aims at preventing that the law-applying authorities make âunnecessarily substantial value judgmentsâ.
âVorbehalt des Rechtsâ, see bge 82 i 21, at 3 a); bge 106 Ia 277, at 3 d). Regarding taxes and fees: bge 95 i 243, at 4 a); bge 83 i 81, at 5; bge 84 i 89, at 2. See however bge 112 Ia 18, at 3 b). On these two aspects, see Federal Council, Botschaft über eine neue Bundesverfassung, 20 November 1996, fg 1997 i 1, at 132.
bge 136 i 241, at 2.5.
Ehrenzeller, Schindler, and Schweizer (n 382) 130.
See ibid.
bge 139 i 16, at 5.1.
ECtHR, Al-Dulimi and Montana Management Inc. v. Switzerland, App No 5809/08 (echr Reports 2016), 21 June 2016, para 145.
Art. 30(1) Cst; see also art. 29, 29a, and art. 191c Cst.
bge 137 i 128, at 4; bge 133 ii 450, at 7.3.
Art. 138 f Cst.
Art. 140 f Cst.
Art. 140(1)(b) Cst.
Art. 56 ff Cst-ge.
Art. 22 ff Cst-zh.
Art. 44 ff Cst-bs.
Art. 55 ff Cst-be.
Art. 23(e) Cst-zh, for instance, provides that popular initiatives can request that negotiations be started regarding the conclusion, amendment, or termination of an intercantonal or international agreement that is subject to a referendum.
Tom Ginsburg, âLocking in Democracy: Constitutions, Commitment, and International Lawâ (2006) 38 nyu Journal of International Law and Politics 707, 712.
<
See also Council of States, Political Institutions Committee, Requirements as Regards the Validity of Popular Initiatives, Analysis of the Need for Reform, fg 2015 7099, at 7102. For a similar diagnosis: Cesla Amarelle, âLégislation au forceps et sous la pression du temps à la lumière des initiatives populairesâ (2014) 25 LeGes 419.
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Other reasons identified by the Political Institutions Committee of the Council of States include societal tensions, the use of popular initiatives for electoral purposes, and the expansion of the scope of international law binding upon Switzerland. See fg 2015 7099, at 7113.
Art. 139(3) Cst. See also art. 98 fa-fa.
Giovanni Biaggini, bv Kommentar: Bundesverfassung der Schweizerischen Eidgenossenschaft (2nd edn, Orell Füssli 2017) 1098 f.
Ie, the initiative for the âtemporary reduction of military expenditures (weaponry truce)â (1955), the initiative against âhigh costs of living and inflationâ (1977), and the initiative for âlower military expenditures and a stronger peace policyâ (1995). I am indebted to Camilla Jacquemoud for her input on this topic.
In 1996, the Federal Assembly invalidated the initiative for a âreasonable asylum policyâ (Federal Assembly, Federal Decree on the Popular Initiative âFor A Reasonable Asylum Policyâ, 14 March 1996, fg 1996 i 1355).
Federal Assembly, Federal Decree on the Popular Initiative âFor the Enforcement of the Expulsion of Foreign Criminals (Enforcement Initiative)â, 20 March 2015, fg 2015 2701.
Council of States, Political Institutions Committee, Requirements as Regards the Validity of Popular Initiatives, Analysis of the Need for Reform, fg 2015 7099, at 7111 f. The Federal Assembly and the Federal Council considered that entrusting the Court with such a role would interfere with the separation of powers and introduce constitutional review through the backdoor: fg 2015 7099, at 7111 f. See also Federal Council, 2010 Report on International and Domestic Law (n 143), at 2326 ff.
BGer, judgment 1C_338/2018 of 10 April 2019 (to be published in the official compendium). See also BGer, judgments 1C_315/2018, 1C_316/2018, 1C_329/2018, 1C_331/2018, 1C_335/2018, 1C_337/2018, 1C_339/2018, and 1C_347/2018 of 10 April 2019.
<
<
<
<
<
Art. 148(1) Cst.
Art. 148(2) Cst.
Art. 149 Cst.
Art. 150 Cst.
Art. 163 ff Cst.
Art. 168(1) Cst.
Art. 169 Cst.
Art. 173(1) Cst.
Art. 173(2) Cst.
Art. 190 Cst.
bge 125 i 119, at 3 d); bge 125 i 209, at 8 a) (comparing the requirements in terms of impartiality of members of the executive, on the one hand, and of judges, subject to art. 6(1) echr, on the other hand); bge 131 i 333, at 4.3, and bge 135 i 233, at 2.1 (on the required democratic legitimacy of a municipal legislative act). Constitutional provisions enjoy a high degree of democratic legitimacy due to their enactment procedure, see bge 133 i 110, at 6.2. Democratic legitimacy is also very often mentioned by the Court in relation to the freedom of vote, see for instance in bge 140 i 394, at 8.2.
bge 139 i 129, at 3.3.
Alex Baur, âWenn Juristen das Recht biegenâ Die Weltwoche (2010) <
<
Art. 26 fa-fpc.
Art. 188(1) Cst.
Ehrenzeller, Schindler, and Schweizer (n 382) 1044.
<
Eg bge 136 iii 168. See also Ammann, âInternational Law in Domestic Courts Through an Empirical Lens: The Swiss Federal Tribunalâs Practice of International Law in Figuresâ (n 5).
Art. 5(1) fa-sft, art. 135 fa-fa.
Art. 5(2) fa-sft; art. 136(1) Cst.
Art. 9(1) fa-sft.
Art. 9(2) fa-sft.
<
Art. 191a(2) Cst.
Art. 5(1) and art. 9(1) fa-sfac.
See the sfacâs annual report for 2018, <
Art. 5 fa-fap; art. 31 ff fa-sfac.
Art. 49(a) fa-fap. Eg Elias Hofstetter and Oliver Zibung, âArt. 49â in Bernhard Waldmann and Philippe Weissenberger (eds), Praxiskommentar zum Bundesgesetz über das Verwaltungsverfahren (Schulthess 2009) 977.
On this reform, see Federal Council, Botschaft zur Totalrevision der Bundesrechtspflege, 28 February 2001, fg 2001 4202. The Federal Council notes that the reform takes international law into account, âthe implementation of which is increasingly part of the tasks of the Swiss judgeâ (ibid 4475). By creating an appeal in federal criminal matters, Switzerland was able to withdraw its reservation to art. 14(5) of the iccpr and to respect the requirements of art. 2 of Protocol 7 to the echr. See ibid at 4476.
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Art. 42(1) and 48(1) fa-ofca.
<
Art. 37(2)(a) fa-ofca.
Art. 23 f of the Swiss Criminal Procedure Code of 5 October 2007 (sr 312.0).
Art. 95(b) fa-sft. See also Federal Council, Botschaft zur Totalrevision der Bundesrechtspflege, 28 February 2001, fg 2001 4202, at 4335.
ilc, âSecond Report on Identification of Customary International Law by Special Rapporteur Sir Michael Woodâ (2014) un Doc a/cn.4/672 25, para 41 e.
One example is the decision of the Greek Supreme Court in Distomo, stating that Germany enjoyed no State immunity for war crimes. The decision was subsequently overruled by the Greek Special Supreme Court in Margellos, a decision followed by other Greek courts. The icj concluded that Distomo was of âlimited precendential valueâ, Petersen (n 73) 20. See icj, Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), judgment, icj Reports 2012, 3 February 2012, 99, at 134, para 76.
Hegde (n 46) 56.
As David Zaring notes with regard to the us judiciary, many scholars focus on the application of international law by the us Supreme Court although â[t]he chance that any case will end up in the Supreme Court [â¦] is today infinitesimalâ. David Zaring, âThe Use of Foreign Decisions by Federal Courts: An Empirical Analysisâ (2006) 3 Journal of Empirical Legal Studies 297, 305. See also ilc, âFifth Report on Identification of Customary International Law by Michael Wood, Special Rapporteurâ (n 295) 25 f para 56.
Samantha Besson and Eva Maria Belser (eds), La Convention européenne des droits de lâhomme et les cantons / Die Europäische Menschenrechtskonvention und die Kantone (Schulthess 2014).
See (for the United States): Thomas R Phillips, âState Supreme Courts: Local Courts in a Global Worldâ (2003) 38 Texas International Law Journal 557, 557.
New State Ice Co. v. Liebmann, 285 u.s. 262 (1932), at 311. This expression has also been used in Swiss legal scholarship, see for instance Hertig Randall and Chatton (n 441) 405 f.
Stirling-Zanda (n 102) 5.
The Court has made a teleological interpretation of art. 42(2) fa-fn, inter alia in light of art. 8 and 14 echr. See VwGer-sg, decision B 2011/74 of 6 July 2011 (published in gvp 2011:1), at 2.8.
Of course, as I will emphasize, the interpretation of many international legal acts requires an empirical inquiry, eg to ascertain State practice and opinio juris (Chapter 8, infra). This specific fact-finding role of courts will be considered.
Regarding Switzerland, see art. 97 fa-sft.
In Switzerland, for example, the efforts of some separatist forces in the canton of Bern to join the canton of Jura raise issues in terms of the right to self-determination and of the territorial integrity of the Swiss cantons. See bge 117 Ia 233, at 4 c).
See the list of cantonal courts available at <
<ge.ch/justice/cour-de-justice>.
<
<
<
One exception pertains to the decisions of the ag-bs, the availability of which is more limited.
One example is the Supreme Court of the canton of Geneva, which is divided into various divisions (âcoursâ) and chambers (âchambresâ). When performing a keyword search, the search must be conducted separately for each subdivison. Another difficulty is that cantonal databases do not recognize the grammatical variations of a given keyword.
<swisslex.ch>.
<ge.ch/justice/dans-la-jurisprudence>.
Civil Law Court: Civil Law Chamber (since 2004), Labor Tribunal (since 1998), Tenancy Law Tribunal (since 2007), Chamber of Surveillance in Matters Pertaining to the Commercial Register and to the Land Register, to the Tribunal for the Protection of Children and Adults and to the Former Guardianship Court (since 2007), Chamber of Surveillance in Matters of Debt Collection and Bankruptcy (since 2004), Lawyersâ Taxation Commission (since 2007). Criminal Court: Criminal Law Chamber (since 2007), Criminal Appeals Chamber (since 2011), Indictment Chamber (since 2007), Board of Appeals and Revisions (since 2011).
<ge.ch/justice/sites/default/files/justice/common/listes/magistrats/Magistrats_CJ.pdf>. Figures on the judiciary of the canton of Geneva are also available at <ge.ch/justice/magistrats>.
Art. 122(1) Cst-ge.
Art. 123(1) Cst-ge.
Art. 122(1) Cst-ge.
Art. 98(1)(b) and art. 99(1)(e) Cst-zh.
See the Courtâs annual report for 2018, available at <
See Art. 1 of the Verwaltungsrechtspflegegesetz of the canton of Zurich of 24 May 1959.
<
Art. 75(1) and 41(2) Cst-zh.
Art. 117(1) Cst-bs.
<
Art. 44(1)(d) Cst-bs.
Art. 89(1) Cst-bs.
Art. 73(2) Cst-bs.
Art. 98(1)(b) and art. 99(1)(e) Cst-be.
<bit.ly/2W9YFfP>.
Art. 77(1)(d) and (e) Cst-be.
Art. 100(1) Cst-be.
<bit.ly/2I15O8t>.
Art. 77(d) and (e) Cst-be.
Art. 58(1) Cst.
Art. 9(1) SCrimC. Art. 3â8 S smcc clarify which persons are subject to military criminal law.
Art. 10(1) SCrimC.
Art. 92 f SCrimC.
See Chapters 5, 6, and 6bis, respectively.
Eg mcc, N. and Auditor v. Military Appeals Tribunal 1A, judgment of 27 April 2001, dmc Vol 12 No 21; mcc, Auditor v. Divisional Tribunal 1, judgment of 5 September 1997, dmc Vol 12 No 4. Most relevant rulings are available at <
<ww.oa.admin.ch/de/entscheidungen-militaerjustiz.html>. I excluded the more comprehensive database (<eu.alma.exlibrisgroup.com/view/delivery/41BIG_INST/12329 504630001791#main-carousel>) for reasons of scope.
Art. 2(1) Swiss Military Criminal Procedure Code of 23 March 1979 (sr 322.1).
Ibid, art. 7(1) and art. 11(1).
Ibid, art. 14(1).
See already Besson and Ammann (n 60) 40.
See also ibid 32.
See however bge 125 ii 417, at 4 b) (where the Court reviewed the compatibility of a confiscation order of the Federal Council with art. 6(1) echr).
Art. 189(4) fa-sft.
bge 134 v 443, at 3.1.
Art. 83 fa-sft. Appeals in public law matters are inadmissible if they deal with specific foreign relations matters or international legal issues, including decisions affecting the Stateâs external security, neutrality, diplomatic protection, and other issues pertaining to foreign relations, except where international law establishes a right that the issue be adjudicated by a court ((a); see also bge 132 i 229, at 6.1). Decisions on international administrative assistance are also outside the Courtâs jurisdiction, with the exception of administrative assistance in fiscal matters ((h); see also art. 84a). Appeals against decisions pertaining to international assistance in criminal matters are admissible only in specific cases and if these cases are deemed âparticularly importantâ, eg when the procedure conducted in a foreign State violates fundamental principles or displays serious flaws (art. 84).
In the United States, see Baker v. Carr, 369 u.s. 186 (1962) and, in foreign affairs, Goldwater v. Carter, 444 u.s. 996 (1979); Zivotofsky v. Clinton, 132 u.s. 1421 (2012). In the United Kingdom, see R (Campaign for Nuclear Disarmament) v. Prime Minister and Others, (2002) ewhc 2777 (Admin), cited by Weill (n 61) 76, footnote 41.
In the United States, see Underhill v. Hernandez, 168 u.s. 250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 u.s. 398 (1964). On the uk doctrine of non-justiciability, see Buttes Gas & Oil v. Hammer (No 3), (1982) ac 888 ukhl, 931.
(Regarding the political question doctrine) Bernhard Ehrenzeller, âPolitische Fragen vor Verwaltungsgerichtenâ (2016) 117 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 3, 16. On these doctrines, see Weill (n 61) 70 ff.
Art. 83(a) fa-sft.
bge 137 i 371, at 1.2.
Benvenisti, âJudicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courtsâ (n 183). On the âavoiding roleâ of domestic courts applying ihl, see Weill (n 61) 69 ff. The ila Study Group on Domestic Courts talks about âblunting rulesâ. See ila, â(Study Group on) Principles on the Engagement of Domestic Courts With International Law, Final Report: Mapping the Engagement of Domestic Courts With International Lawâ (n 15) 10 ff.
Ehrenzeller (n 638) 17.
bge 134 iii 570, at 2.2.
See also Weill (n 61) 70.
bge 132 ii 65, at 4.2.3. As the Swiss Federal Tribunal stated in Frigerio with regard to treaty interpretation, âthe practice of the political and administrative authorities does not bind the courtsâ, even if this practice is ânot insignificant for the judgeâs own opinion-formingâ, bge 94 i 669, at 5; see also bge 105 Ib 286, at 1 b). The latter especially applies when the agreement is primarily applied by other authorities. In such cases, departures from their practice must be justified by âcompelling reasonsâ, bge 94 i 669, at 5. See also bge 112 Ia 148, at 5 b). To emphasize judicial independence, the Court has also stressed that all Swiss authorities have the duty to apply and to respect international law within the limits of their competences, see bge 117 Ib 367, at 2 e). Somewhat ironically, the Court has then cited the fdfaâs report on the relationship between domestic and international law.
bge 125 ii 417, at 4 d); bge 120 Ib 360, at 2 c); bge 116 iv 262, at 3 b) cc); bge 123 ii 595, at 7 c) and c) hh); bge 119 v 171, at 4 a).
bge 120 Ib 360, at 2 b).
bge 132 ii 65, at 3.5.2; bge 139 v 263, at 5.3 and 6.2; bge 123 ii 511, at 5 d).
bge 130 ii 217, at 5.3.
bge 120 v 405, at 3 b).
bge 136 v 295, at 5.1 and 5.2.
bge 111 v 65, at D and 4 b).
bge 136 iii 575, at 4.3.1.
bge 136 iii 379, at B.b (intervening in favor of the bis); bge 134 iii 177, at A. (intervening in favor of Russia).
bge 108 iii 107, at 3; bge 115 v 11, at 3 a); bge 134 iii 122, at 5.2.
bge 112 Ia 75, at 4 c).
bge 133 iv 76, at 4.3 (although the Court emphasizes in this case that such reports, even if they must be taken seriously, do not exclude extradition per se, see at 4.4).
bge 110 v 145, at D.
bge 131 v 174, at 3.4.
The Court has considered that the fdfaâs refusal to intervene with the bis to protect the interests of corporations incorporated in Switzerland is an act that lies within the Departmentâs discretionary power, see bge 137 i 371, at 1.3.2. It has backed the fdfa in a case pertaining to decisions on targeted sanctions taken by the Department in the aftermath of the Arab Spring on the basis of the power of the executive branch to âissue ordinancesâ âwhen the interests of the countryâ are at stake (art. 184(3) Cst.), a notion that the Court interprets in a highly deferential way. See bge 141 i 20, at 5.1.1 (regarding sanctions taken against Egyptian nationals close to Hosni Mubarak in the aftermath of the Arab spring); bge 132 i 229, at 10.3 (regarding sanctions against former Congolese dictator Mobutu). The Court has upheld targeted sanctions taken in order to pursue prudential interests, such as the aim of âpreventing that the reputation of Switzerland be tarnished on the international planeâ (bge 132 i 229, at 10.2), and decisions of the fdfa with regard to the privileges and immunities of foreign State representatives (bge 130 iii 430). It has also backed the fdfaâs handling of a dispute between the cern and two co-contractors, rejecting the claim that the Department had failed to respond to the request of the co-contractors (and to intervene with the cern on their behalf) âwithin a reasonable timeâ, as required by art. 6(1) echr (bge 130 i 312, at 5.4.2.1).
bge 139 i 37, at 3.2.2.
In a suit pertaining to an extradition request from Kazakhstan, the Court, contrary to the fdfaâs and to the Federal Office of Justiceâs statements (bge 124 ii 132, at B.), concluded that the Kazakh authorities had not given sufficient guarantees for extradition to be granted.
In bge 134 iii 122, at 5.3.3, the Court rejected the fdfaâs statement that immunities from execution can be forfeited only for assets assigned to activities jure gestionis.
bge 139 v 263, at 3 (recognition of Kosovo); bge 130 ii 217, at 5.3 (absence of recognition of Taiwan).
bge 141 ii 436, at 4.4.1 (regarding the Swiss Federal Councilâs decision to adopt the oecd standard regarding automatic exchange of information); bge 123 ii 175, at 2 b) (regarding the collaboration of Switzerland with the ad hoc international criminal tribunals).
bge 118 Ib 462, at 2 a) (on the European Convention on Extradition).
bge 112 Ia 75, at 4 c) (on art. 46 vclt); bge 123 ii 595, at 4 b) (on the principle of good faith in mutual legal assistance cases); bge 130 iii 430, at 3.4.2 (on the deprivation of diplomatic immunity); bge 108 ii 398, at 3 a) (on the incorporation theory endorsed by Switzerland to determine the nationality of corporations, despite the fact that the Swiss Federal Tribunalâs case law slightly differs from this theory, at 3 b)).
bge 141 ii 233, at 4.3.1 (on the Aarhus Convention); bge 97 i 359, at 6 b) (on a treaty concluded in 1858 between the Swiss Confederation and the Grand Duchy of Baden); bge 81 ii 366, at 1 (on the 1952 SwissâGerman Settlement Agreement); bge 110 Ib 191, at 2 (regarding the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards); bge 136 ii 241, at 14.2, bge 133 v 367, at 9.1, and bge 131 v 390, at 10.1 (on the Swissâeu Agreement on the Free Movement of Persons); bge 110 Ib 208, at 2 b) (on the Refugee Convention); bge 104 Ia 448, at 7 c), and bge 99 Ia 78, at 5 a) (on the European Convention on Mutual Assistance in Criminal Matters); bge 102 ii 128, at 3 (on the Hague Convention of 1956 on the Law Applicable to Maintenance Obligations in Respect of Children); bge 103 Ia 293, at 7 b) (on the echr); bge 108 Ib 525, at 3 (on the Swissâus Extradition Treaty of 1900).
bge 132 ii 65, at 2.3 (on the interpretation of treaties of establishment); bge 141 ii 233, at 4.3 (on the interpretation of the Aarhus Convention); bge 110 Ib 82, at 4 b) bb) (on the European Convention on Mutual Assistance in Criminal Matters); bge 123 i 19, at 4 (on the cerd); bge 84 ii 487, at 2 b) (on the SwissâFrench Agreement of 1869 on Jurisdiction and the Enforcement of Judgments); bge 105 Ib 37, at 4 c) (on treaties pertaining to the recognition and enforcement of foreign judgments); bge 103 Ia 517, at 4 f) (on ilo Conventions No 100 and 111); bge 111 v 201, at 3 (on ilo Convention No 128).
bge 126 iv 236, at 4 c) (on art. 267(2) SCrimC, which criminalizes diplomatic treason); bge 120 v 150, at 2 b) (on the domestic legal consequences of Switzerlandâs ratification of the echr); bge 133 v 233, at 3.4 (on the social security status of Swiss un officials); bge 109 iv 51, at 2 (on the domestic implementation of the Single Convention of Narcotic Drugs of 1961).
bge 106 Ia 142, at 2 a) (on the right of foreign States to challenge enforcement measures in Swiss courts); bge 120 v 405, at 3 a), and bge 110 v 145, at 2 a) (on the regime of privileges and immunities of the members of permanent representations to ios).
bge 99 iv 257, at 5 d).
bge 125 ii 417 (pkk-case); bge 126 ii 145 (on a liability suit pertaining to Switzerlandâs restrictive asylum policy during World War ii; BGer, judgment 2A.784/2006 of 23 January 2008 (Al-Dulimi), and bge 133 ii 450 (Nada), two cases in which the Court backed the executiveâs implementation of un targeted sanctions and for which Switzerland was subsequently found to have violated the echr by the ECtHR. See ECtHR, Al-Dulimi and Montana Management Inc. v. Switzerland, App No 5809/08 (echr Reports 2016), 21 June 2016; ECtHR, Nada v. Switzerland, App No 10593/08 (echr Reports 2012), 12 September 2012.
bge 130 i 312.
bge 126 iv 236, at 9.
bge 133 ii 450, at 6.1 (on the issue of what international legal norms bind Switzerland); bge 139 i 16, at 5.2.1 (on the relationship between international law and a subsequently enacted, contradictory contitutional provision); bge 137 i 305, at 3.2 (on the cedawâs status in the Swiss legal order; the issue of direct effect was left open by the Court); bge 93 ii 192, at 4 (on the supremacy of a SwissâFrench Treaty on Jurisdiction and on the Enforcement of Civil Judgments over Swiss law); bge 121 v 246, at 2 c) (on the lack of direct effect, in principle, of the provisions of the icescr).
bge 133 ii 450, at 7.3.
bge 123 ii 595, at 4 d), where the Court reports the legislative history of the domestic statute at stake and mentions in detail the disagreements between the Federal Council and the legislature; bge 133 ii 97, at 2.2 (mentioning the position of Federal Councillor Christoph Blocher).
In Nada, for instance, the Federal Council and the Swiss Federal Tribunal conducted an exchange of views before the Federal Council transferred the complaint of Youssef Nada to the Court. See bge 133 ii 450 (facts).
One example pertains to an interpretative declaration of the Federal Council to the echr, which the Court deemed an invalid reservation, see bge 118 Ia 473.
bge 82 i 75, at 9 (on the law of immunities).
On a past French practice according to which the Conseil dâEtat deferred to the French Ministry of Foreign Affairs on matters of treaty interpretation, and which the ECtHR considered contrary to art. 6(1) echr, see ECtHR, Beaumartin v. France, App No 15287/89 (echr Reports Series A No 296-B), 24 November 1994, See also United States v. Curtiss-Wright Export Corp., 299 u.s. 304 (1936), where the us Supreme Court famously held that the President was the âsole organ of the nation in its external relationsâ. For an example of utter deference of domestic courts to the executive, see Congyan (n 44).
See art. 5(1) and (4) and art. 30(1) Cst., on the one hand, and art. 6 echr and art. 14 iccpr, on the other hand.
Art. 190 Cst.
Federal Council, Botschaft über eine neue Bundesverfassung, 20 November 1996, fg 1997 i 1, at 505 ff; Federal Council, Botschaft zur Neugestaltung des Finanzausgleichs und der Aufgaben zwischen Bund und Kantonen (nfa), 14 November 2001, fg 2002 2291, at 2464 ff; Otto Zwygart, Parliamentary Initiative 99.455, Verfassungsgerichtsbarkeit, 10 October 1999; Heiner Studer, Parliamentary Initiative 05.445, Verfassungsgerichtsbarkeit, 6 October 2005; Vreni Müller-Hemmi, Parliamentary Initiative 07.476, Bundesverfassung massgebend für rechtsanwendende Behörden, 10 October 2007. See also the comprehensive article of Maya Hertig Randall, âLâinternationalisation de la juridiction constitutionnelle : défis et perspectivesâ (2010) 129 Zeitschrift für Schweizerisches Recht / Revue de droit suisse 221.
This proposal was made by the Federal Council namely in order to ensure a congruence between the powers of the Swiss Federal Tribunal and those of the ECtHR, which can assess the compatibility of federal acts with the echr; Federal Council, Botschaft über eine neue Bundesverfassung, 20 November 1996, fg 1997 i 1, at 508.
One of the arguments raised in parliament was that âjudicial decisions are ultimately not more rational than popular decisionsâ, see Paul Rechsteiner, Council of States, Summer Session 2012, 7th session, 4 June 2012, 8.15 am (regarding parliamentary initiatives 05.445 and 07.476).
bge 136 i 65, at 3.2.
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bge 125 iii 209, at 6 e).
bge 136 ii 120, at 3.5.3.
BGer, judgment 2C_1071/2014 of 28 May 2015, at 2.1.
Art. 190 Cst.
Art. 5(4) Cst. In all these cases, the term âinternational lawâ refers to the sources of international law listed in art. 38 icj Statute, see Ehrenzeller, Schindler, and Schweizer (n 382) 3038.
Art. 39(1) of the Constitution of the Republic of South Africa of 16 December 1996: âWhen interpreting the Bill of Rights, a court, tribunal or forum â (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign lawâ.
Art. 27 vclt, art. 4(1) arsiwa.
Alexander M Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Bobbs-Merrill 1962) 16 ff.
Marco Borghi, âLa mainmise des partis politiques suisses sur lâélection des jugesâ (2016) Justiz â Justice â Giustizia para 3.
Judges are elected for an indeterminate period of time, see art. 121(2) Cst-fr.
Prior to the election of judges by the cantonal parliament, a committee of experts issues a recommendation as to the candidatesâ aptitude, see art. 36(2) Cst-ti.
Federal judges are elected by the Federal Assembly based on a proposal of the Judicial Committee. See <
Luc Gonin and Olivier Bigler, âLa sélection des juges fédéraux en Suisse, avec un aperçu cantonal de la situation dans le Canton de Genèveâ in Lukas Heckendorn Urscheler (ed), Rapports suisses présentés au xixe Congrès international de droit comparé : Vienne, du 20 juillet au 26 juillet 2014 (Schulthess 2014) 17 f.
Art. 107(1) of the Swiss Constitution of 29 May 1874.
Art. 18(2) fa-sft.
<
See the list at <
Tiziano Balmelli, âQuelques remarques sur lâexigence de réformer les procédures de désignation des juges : la controverse des contributions financières réclamées par les partisâ (2006) Justiz â Justice â Giustizia.
Adrian Vatter, âDie Parteifarben der obersten Richter im Wandelâ nzz of 23 September 2013.
Benjamin Suter, âAppointment, Discipline and Removal of Judges: A Comparison Between Swiss and New Zealand Judiciariesâ (2015) 46 Victoria University of Wellington Law Review 267; Borghi (n 698) 10.
Eg in the United States, Belgium, France, and the Netherlands.
Eg in Germany.
Hansjörg Seiler, âRichter als Parteivertreterâ (2006) Justiz â Justice â Giustizia; Peter Albrecht, âRichter als (politische) Parteivertreter?â (2006) Justiz â Justice â Giustizia.
Borghi (n 698); Balmelli (n 707); Queloz (n 706).
Niccolò Raselli, âRichterliche Unabhängigkeitâ (2011) Justiz â Justice â Giustizia 6 f; Karl Spühler, âDer Richter und die Politikâ (1994) 130 Zeitschrift des Bernischen Juristenvereins 28.
European Charter on the Statute for Judges of 8â10 July 1998, at 2.1; un Commission on Human Rights, Civil and Political Rights, Including the Questions of Independence of the Judiciary, Administration of Justice, Impunity, Annex: Bangalore Principles of Judicial Conduct, un Doc e/cn.4/2003/65, 10 January 2003, Value 1.
Institut de droit international, âThe Activities of National Judges and the International Relations of Their Stateâ (1993) <
greco, Corruption Prevention in Respect of Members of Parliament, Judges and Prosecutors, Evaluation Report, Switzerland, Fourth Evaluation Round, GrecoEval4Rep(2016)5, 2 December 2016, <rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent? documentId=09000016806fceda> (para 95 ff and para 291); greco, Corruption Prevention in Respect of Members of Parliament, Judges and Prosecutors, Compliance Report, Switzerland, Fourth Evaluation Round, GrecoRc4(2019)2, 22 March 2019, <rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/168094e860> (para 49â63, para 107, and para 109).
Seiler (n 712) para 10 ff.
Borghi (n 698) para 23. See for instance Albrecht (n 712).
Rau and Skinner (n 285).
fg 2015 7099, at 7102.
<
<
Art. 123a, 123b, and 123c Cst., adopted by popular votes in 2004, 2008, and 2014, respectively.
<
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Ibid.
<
Bigler and Gonin only mention religious diversity as regards Catholics and Protestants. See Gonin and Bigler (n 702) 18. Vera Rottenberg Liatowitsch, elected in 1994, was the first Jewish judge to serve on the Swiss Federal Tribunal.
At the time of writing, it was still unclear whether a retiring svp judge of the Swiss Federal Tribunalâs second public law chamber would be replaced by a judge of the same party or, instead, by a cvp judge. The Judicial Committee recommended electing the latter, supposedly to avoid a dominance of the svp (3 instead of 2 judges out of 6) in the chamber that addresses conflicts between international law and domestic law. See Fabian Schäfer, âAngst vor der svp: Hintergrund der umstrittenen Richterwahl sind die Konflikte zwischen Landes â und Völkerrechtâ nzz of 15 June 2019.
In common law jurisdictions, courts usually publish concurrences and dissents and disclose the positions of individual judges.
Most international courts allow for dissents and concurrences. The cjeu is an exception in this regard.
In the United States: David M OâBrien, âMore Smoke Than Fire: the Rehnquist Courtâs Use of Comparative Judicial Opinions in the Construction of Constitutional Rightsâ (2006) 22 Journal of Law and Politics 83; Ryan C Black and others, âUpending a Global Debate: An Empirical Analysis of the u.s. Supreme Courtâs Use of Transnational Law to Interpret Domestic Doctrineâ (2014) 103 Georgetown Law Journal 1.
This method is used by Rau and Skinner (n 285).
Art. 21 fa-sft.
Art. 122 fa-sft.
Margrith von Felten, Motion 97.3368, Dissenting opinion in Bundesgerichtsentscheiden, 20 June 1997, <
National Council, Legal Affairs Committee, Motion 14.3667, Bundesgericht: Dissenting Opinions, 14 August 2014, <
Art. 60(1bis) fa-sft. See fg 2018 4663, at 4664.
âGeschäftsbericht des Bundesgerichts 2014â (2015) 11 <
Michael Baum, âMinderheitsvoten nur selten publiziertâ (2013) 5 plädoyer 64.
<
Arnold Marti, âOffenlegen von Minderheitsmeinungen (âdissenting opinionâ): Eine Forderung von Transparenz und Fairness im gerichtlichen Verfahrenâ (2012) Justiz â Justice â Giustizia; Patricia Egli, âDissenting Opinions: Abweichende Richtermeinungen im Schweizer Rechtâ in Franco Lorandi and Daniel Staehelin (eds), Innovatives Recht: Festschrift für Ivo Schwander (Dike 2011); Andreas Glaser and Arthur Brunner, âPolitik in der Defensive: Zwischen Vorrang des fza und dynamischer Rezeption der EuGH-Rechtsprechungâ Jusletter of 18 April 2016 19 f. On this trend, see Mirjam Baldegger, âDer wiederkehrende Ruf nach dissenting opinions am Bundesgericht: Wünschbarkeit, Auswirkungen und Ausgestaltung richterlicher Sondervoten in der Schweizâ (2017) 118 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 131. For a recent proposal to introduce separate opinions in Swiss courts in public law cases, see Luc Gonin, âLâopinion dissidente en droit public suisse : une nécessité pratique et théoriqueâ (2017) 136 Zeitschrift für Schweizerisches Recht / Revue de droit suisse 63. For a more cautious view, see Helen Keller and Laura Zimmermann, âDissenting Opinions am Bundesgericht: Individuelle Transparenz oder Gefährdung der richterlichen Unabhängigkeit?â (2019) 138 Zeitschrift für Schweizerisches Recht / Revue de droit suisse 137.
Ehrenzeller (n 638) 19 f; Marti (n 743); Gonin (n 743) 65 f.
There are exceptions, as Michael Baum points out, inter alia with reference to decision hg110192-o of the Commercial Court (Handelsgericht) of the canton of Zurich of 30 March 2012 (where a 21-page minority opinion is appended to the 8-page-long majority opinion), see Baum (n 741).
On this point, see Jeremy Waldron, âThe Core of the Case Against Judicial Reviewâ (2006) 115 Yale Law Journal 1346.
Similar to what Gráinne de Búrca notes regarding the cjeu, it could be said about the Swiss Federal Tribunal that âthe collegiate nature of the judgments and the formalistic style of judicial reasoning is very different from the richly textured, individualized and often colorful opinions of the [us] Supreme Court justicesâ. Gráinne De Búrca, âInternational Law Before the Courts: the eu and the us Comparedâ (2015) 55 Virginia Journal of International Law 685, 693. For such a colorful example, see Justice Scaliaâs dissent in National Federation of Independent Business v. Sebelius, 567 u.s. 519 (2012).
Art. 59(1) fa-sft.
In 2014, the National Council rejected the proposal of parliamentarian Martin Schmid to livestream proceedings before the Swiss Federal Tribunal (<
Eg bge 140 ii 495, at 2.3.3.
bge 110 Ib 1, at 2 c) cc); bge 114 v 219, at 3 a).
See bge 83 i 173, at 4, a decision of 1957 stating that the Court does not exclude any method and âresorts to the interpretative processes that seem the most proper, in the particular case, to bring out the true meaning of the normâ. See also bge 59 ii 264, at 6: âEs geht nun nicht an, mit der Beklagten aus formellen Gründen eine ârestriktiveâ Auslegungsmethode zu wählen, die der Sache nicht gerecht wird, sondern es muss der Bestimmung der Sinn beigelegt werden, der mit dem gekennzeichneten Ziel der Gemeinwesen am besten harmoniert (â¦)â. The Court transposed this method of statutory interpretation to the Constitution in the 1940s: Johannes Reich, Grundsatz der Wirtschaftsfreiheit: Evolution und Dogmatik von Art. 94 Abs. 1 und 4 der Bundesverfassung der Schweizerischen Eidgenossenschaft vom 18. April 1999 (Dike 2011) 33.
Besson and Ammann (n 97).
sfac, judgment A-5836/2015 of 26 May 2016, at 7.1.1.
VwGer-zh, 4th chamber, decision vb.2014.00351 of 21 January 2015, at 3.2.2.1.
sfac, judgment C-7063/2008 of 15 May 2009, at 3.3.1.1.
Virtually all authors focus on pragmatic methodological pluralism in the context of domestic law. See, among many others, Marc Amstutz, âOuroboros: Nachbemerkungen zum pragmatischen Methodenpluralismusâ in Peter Gauch, Franz Werro, and Pascal Pichonnaz (eds), Mélanges en lâhonneur de Pierre Tercier (Schulthess 2008); Pichonnaz and Vogenauer (n 105); Keshelava (n 105).
bge 125 ii 238, at 5 a); bge 134 ii 308, at 5.2; bge 139 ii 49, at 5.3.1; bge 140 v 227, at 3.2.
bge 140 ii 495, 2.3.1â2.3.3.
bge 141 iii 155, at 4.2.
Friedrich Karl von Savigny, System des heutigen römischen Rechts (Bei Veit und Comp 1840) 220.
See ibid 212 ff. Eg Reich (n 752) 19 ff. Savignyâs elements also included âlogical interpretationâ, which today is usually associated with systematic interpretation: von Savigny (n 761) 214.
Reich (n 752) 22.
Conformity with international law has sometimes been mentioned as the fifth method, eg bge 131 ii 13, at 8.1. Peter Kunz considers that the four methods should not be supplemented by a fifth, âcomparative lawâ method: Peter V Kunz, âUmgang mit internationalem und mit europäischem Recht. Ãberblick über den âSwiss Approachââ (2012) 23 LeGes 265, 270 f.
Systematic interpretation for instance seems to match what Bradley and Goldsmith refer to as âstructuralismâ. See Bradley and Goldsmith (n 171) 41 f.
On the philosophy of pragmatism, see Hookway (n 117).
bge 140 ii 495, at 2.3.3: âIst der Text unklar bzw. nicht restlos klar und bleiben verschiedene Interpretationen möglich, muss nach der wahren Tragweite der Bestimmung gesucht werden.â
bge 138 i 274, at 1.2. As the Court often states, the norm is not reducible to its wording and must be âunderstood and specified with regard to the facts of the particular caseâ. See bge 141 iii 155, at 4.2.
Ie, literal interpretation does enjoy priority unless the wording is not âabsolutely clearâ, see bge 131 ii 13, at 7.1; bge 135 v 215, at 7.1; bge 135 v 249, at 4.1; bge 139 ii 49, at 5.3.1; bge 139 iii 135, at 4.1; bge 140 ii 495, at 2.3.3; bge 141 iii 444, at 2.1.
bge 140 i 305, at 6.1.
bge 139 iv 270, at 2.2; bge 140 iv 118, at 3.3.
bge 140 i 305, at 6.1.
bge 123 ii 595, at 4 a); bge 140 i 305, at 6.2.
Art. 177(1) Cst.
Tor-Inge Harbo, âThe European Economic Area Agreement: A Case of Legal Pluralismâ (2009) 78 Nordic Journal of International Law 201, 209 f.
Felix Cohen, âTranscendental Nonsense and the Functional Approachâ (1935) 35 Columbia Law Review 809.
Holmes (n 22). See also Lochner v. New York, 198 u.s. 45 (1902), and John Dewey, âLogical Method and Lawâ (1924) 33 Philosophical Review 560. us judges such as Richard Posner have defended a âpragmaticâ view of adjudication: Richard A Posner, âPragmatic Adjudicationâ (1996) 18 Cardozo Law Review 1. The approach of the us Supreme Court to constitutional interpretation has been described as âpragmaticâ, see Mark Tushnet, âEclecticism in the Service of Pragmatismâ in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (Oxford University Press 2006). Emmanuelle Jouannet opposes the ârationalismâ of French lawyers to the fact that âculturally, Americans do not like grand, formal, pre-determined structures and distrust the excessive use of legal categoriesâ. See Emmanuelle Jouannet, âLes visions française et américaine du droit international : cultures juridiques et droit internationalâ in sfdi (ed), Droit international et diversité des cultures juridiques (Pedone 2008) 305.
On this issue, see Timothy Endicott, âQuestions of Lawâ (1998) 114 Law Quarterly Review 292.
See ibid 308 f.
See ibid 315. See also Walter (n 118).
bge 98 Ib 385, at 2 a); BGer, judgment 4A_214/2013 of 5 August 2013, at 5.2.2.
This argument is mentioned by Endicott (n 778) 309.
ilc, âDraft Articles on the Law of Treaties With Commentariesâ (1966) ii Yearbook of the International Law Commission 220.
fdfa, Swiss Foreign Policy Strategy 2016â19 (n 300).
The Federal Council for instance is composed of seven ministers belonging to different representative political parties.
Examples include originalism, living constitutionalism, or political process theory.
See for instance Richard Fallon, âA Constructivist Coherence Account of Constitutional Interpretationâ (1987) 100 Harvard Law Review 1189.
Walter (n 118).
Ehrenzeller, Schindler, and Schweizer (n 382) 106.
For innovative approaches, however, see Amstutz (n 757); Marc Amstutz, âDer Text des Gesetzes: Genealogie und Evolution von Art. 1 zgbâ (2007) 126 Zeitschrift für Schweizerisches Recht / Revue de droit suisse 237; Amstutz and Niggli (n 105); Papaux (n 105); Keshelava (n 105).
Pichonnaz and Vogenauer (n 105).
Arthur Meier-Hayoz, Schweizerisches Zivilgesetzbuch, Einleitung, Art. 1â10 zgb (Stämpfli 1966) 138 f.
Yann Grandjean borrows this expression from French scholar Jean Carbonnier. See Grandjean (n 175) 370.
Kramer (n 105) 179.
Kunz, âUmgang mit internationalem und mit europäischem Recht. Ãberblick über den âSwiss Approachââ (n 764) 270.
See also Besson and Ammann (n 97) 339.
Grandjean (n 175) 370.
Pichonnaz and Vogenauer (n 105) 424 f; Grandjean (n 175) 370; Besson and Ammann (n 97) 340 ff.
On this issue, see Riccardo Guastini, âLes juges créent-ils du droit ? Les idées de Alf Rossâ (2014) 24 Revus 99; Jan Komárek, âJudicial Lawmaking and Precedent in Supreme Courtsâ (2011) 4 <eprints.lse.ac.uk/38468/1/WPS2011-04_Komarek.pdf>; Michel van de Kerchove, âLa jurisprudence revisitée : un retour aux sourcesâ in Isabelle Hachez and others (eds), Les sources du droit revisitées â Vol 2 : Normes internes infraconstitutionnelles (Anthémis/Publications des Facultés universitaires Saint-Louis 2012).
On this distinction, see Besson, âThe Erga Omnes Effect of Judgments of the European Court of Human Rights â Whatâs in a Name?â (n 137).
Art. 1(2) scc.
Karl-Ludwig Kunz, âPolitisches Engagement und die Unbefangenheit des Richtersâ in Marianne Heer, Marcel Alexander Niggli, and Marc Thommen (eds), Toujours agité â jamais abattu: Festschrift für Hans Wiprächtiger (Helbing & Lichtenhahn 2011).
Hans Peter Walter, âDer Methodenpluralismus des Bundesgerichts bei der Gesetzesauslegungâ (1999) 17 recht 157, 157. See however Ehrenzeller, Schindler, and Schweizer (n 382) 3049.
bge 98 Ib 385, at 2 a).
Grandjean (n 175) 366.
bge 86 iv 92, at b).
bge 137 v 167, at 3.2; bge 137 v 126, at 4.1; bge 137 v 90, at 5.2; bge 128 v 108, at 4 b); bge 128 v 199, at 5 b). See also bge 124 v 301, at 5. In a decision of 2012, the Swiss Federal Tribunal has stated that besides the protection of individuals, the task of the judiciary (at least as regards the highest court) is the uniform application of the law, as well as law development. See bge 138 v 271, at 3.3. It has also noted that âpursuant to contemporary conceptions, to apply a prima facie clear legal norm by analogy to a particular situation at which the norm is not aimed is an act of judicial lawmaking, and not an inadmissible interference with legislative powerâ, see bge 127 v 484, at 3 b) bb).
Thus, in a decision pertaining to guardianship rights, the Swiss Federal Tribunal dismissed scholarly criticism according to which the Court had ignored new legal developments, stating that it was a âlaw-applyingâ authority which could only exceptionally depart from the law (bge 123 iii 445, at 2 b)). See also bge 124 v 159, at 4 c).
Griswold v. Connecticut, 381 u.s. 479 (1965).
Gonin and Bigler (n 702) 22 ff; Andreas Kley, âDer Grundrechtskatalog der nachgeführten Bundesverfassung: Ausgewählte Neuerungenâ (1999) 135 Zeitschrift des Bernischen Juristenvereins 301; Hertig Randall and Chatton (n 441) 393. One example of such an unwritten constitutional right is the right to personal freedom, see bge 89 i 92, at 3 f; Kley 319 ff. Another example is the right to secure oneâs livelihood, see bge 121 i 367, at 2.
The Court has especially relied on the right to equality, protected by art. 4 of the Swiss Constitution of 1874. See Gonin and Bigler (n 702) 23.
Federal Council, Botschaft über eine neue Bundesverfassung, 20 November 1996, fg 1997 i 1, at 115. More generally, a range of constitutional and statutory provisions have been enacted or amended to reflect the Swiss Federal Tribunalâs case law. See for instance Federal Council, Botschaft über die Genehmigung und die Umsetzung des Notenaustauschs zwischen der Schweiz und der eg betreffend die Ãbernahme der egâRückführungsrichtlinie (Richtlinie 2008/115/eg) und über eine Ãnderung des Bundesgesetzes über die Ausländerinnen und Ausländer (Automatisierte Grenzkontrolle, Dokumentenberaterinnen und Dokumentenberater, Informationssystem mides), 18 November 2009, fg 2009 8881, at 8901 (regarding art. 81(2) fa-fn); Federal Council, Botschaft zur Ãnderung des Strafgesetzbuches (Allgemeine Bestimmungen, Einführung und Anwendung des Gesetzes) und des Militärstrafgesetzes sowie zu einem Bundesgesetz über das Jugendstrafrecht, 21 September 1998, fg 1999 ii 1979, at 2000 (on title 2 of the SCrimC), 2062 (regarding art. 50 SCrimC), and 2087 (regarding art. 62c(2) phrase 2 SCrimC).
Seiler (n 712); Albrecht (n 712).
Ehrenzeller (n 638); Papaux (n 105); Amstutz and Niggli (n 105).