Update: 11.10.2017

No to the Self-Determination Initiative, yes to human rights

The Self-Determination Initiative launched by the Swiss People’s Party (SVP) in August of 2016 will probably be voted on in autumn/winter of 2018. The authors of the initiative want the Federal Constitution to state that constitutional law takes precedence over international law. They also want the relevant authorities to adapt and, if necessary, cancel international agreements that contradict the Constitution. Furthermore, international agreements that were not subject to a referendum will no longer be considered by the Federal Supreme Court (FSC) and the other agencies that implement the law.

The Federal Council, Parliament, and all parties except the SVP strongly oppose the Self-Determination Initiative. The initiative undermines legal certainty in international relations and Switzerland’s credibility as a contracting party. The Self-Determination Initiative also threatens to weaken internationally accepted human rights in Switzerland, in particular the guarantees granted by the European Convention on Human Rights (ECHR).

The origin and contents of the initiative will be briefly explained below before presenting the key arguments against it.

What are the origins of the Self-Determination Initiative?

Since 2007, former Federal Councillor Christoph Blocher and the SVP have been working on an orchestrated polemics campaign and drafting political initiatives against the ECHR and international law in general. But why?

Legal grounds

In Switzerland, ratified international law is automatically incorporated into the national system. The Federal Constitution states that international law is equally applicable as federal law and that the Confederation and the cantons must comply with it. The FSC and the authorities must therefore apply the statutory provisions of international law even if they contradict certain constitutional arrangements.

In the past, certain aspects of popular initiatives have repeatedly contradicted international and human rights norms (e.g. the Preventive Detention Initiative, the minaret Initiative, and the Deportation Initiative). But since international norms are part of the Swiss legal system, they have to be considered when implementing an adopted popular initiative and in legal cases just as much as national and constitutional laws. This is particularly true for international law guarantees in the area of human rights.

Cultivating provoked problems

Parliamentary efforts to transform adopted popular initiatives into laws that comply with human rights have always bothered the SVP. The Swiss People’s Party plans to profit politically from how difficult it is to implement popular initiatives that deal with sensitive human rights issues by systematically fostering stereotypes such as the “foreign magistrates in Strasbourg” or “international law”. After years of polemics, on 10 March 2015 the right-wing populist party launched a petition for their initiative against international law called “Swiss law instead of foreign judges” (Self-Determination Initiative) and integrated the foreign judges campaign into their election campaign in the parliamentary elections in autumn 2015.

Submission of the Self-Determination Initiative

After the test vote concerning national law vs. international law, the Enforcement Initiative initiators, who for the first time mentioned that the explicit supremacy of national law had failed at the polls in February 2016, were reluctant to submit the Self-Determination Initiative. Another campaign was launched against the “foreign judges”, this time against a possible institutional framework agreement between Switzerland and the EU.

The Self-Determination Initiative was finally submitted on 12 August 2016 with 116,428 valid signatures. In July 2017, the Federal Council published its dispatch on the initiative, recommending that Parliament reject it. Now it is up to Parliament to comment on the initiative and, if necessary, draft a counter-proposal before the voters can decide on the Self-Determination Initiative.

What are the aims of the Self-Determination Initiative?

The initiative aims to give the Federal Constitution priority over international law. The text of the initiative purports to carefully regulate the relationship between national and international law and to establish absolute consistency. On second sight, it is obvious that the exact opposite is true because the wording of the initiative raises numerous complicated questions regarding the interpretation of the text.

Precedence of the Federal Constitution

The first part of the Self-Determination Initiative wants to supplement Art. 5 of the Federal Constitution by stating that the Federal Constitution is the primary source of law in Switzerland and takes precedence over international law. The initiative states that only mandatory international law shall be excluded from this regulation.

Elimination of possible contradictions

In a new Art. 56a, the initiative states that neither the Confederation nor cantons are allowed to enter international law obligations that contradict the Federal Constitution. Should such a contradiction arise, a respective “adaptation of the liabilities in international law to the Federal Constitution” has to be made, if necessary “by terminating the respective international law treaties.” Here, too, only mandatory international law shall be excluded from the regulation.

And one major exception

The third article of the Self-Determination Initiative makes its intent abundantly clear. Contrary to the strategic thrust of the first two articles, the suggested amendment to Art. 190 of the Federal Constitution postulates that, besides Federal law, only international treaties “whose decision for approval have been subject to the referendum are authoritative for the Federal Supreme Court and other authorities that apply the law”.

This means that in the Federal Supreme Court, the Federal Constitution would no longer take precedence over an international treaty if there was an option to hold a referendum against the treaty. This makes the supposedly clear position of the Federal Supreme Court relative.

Arguments against the Self-Determination Initiative

There are numerous and serious arguments against the Self-Determination Initiative. The main criticisms of the initiative are explained below. The focus here lies in particular on the protection of human rights and legal certainty in Switzerland. Moreover, the popular initiative does not only hinder the human rights but international law as a whole and therefore also the economic and security policy interests of Switzerland.

Breach of human rights

The real aim of the SVP initiative is to make the European Convention on Human Rights relative, and possibly to terminate it. Since the Convention was not subject to a referendum when it was ratified in 1974, the human rights guarantees it contains could be considered no longer decisive by Swiss authorities and courts in the case of a future conflict of norms with national law. Respective reprimands by the European Court of Human Rights (ECHR) would have to be ignored. The ECHR would only be applied on a case-by-case basis, following Russia’s example. If this were to happen, Switzerland would be forced to withdraw from both the ECHR and the Council of Europe.

The initiative thus endangers the application of the European-wide minimum standards for human rights in Switzerland and their legal security. The European Convention on Human Rights assures that a violation of human rights by the legislator or the voters can be resolved in court. Since there are no roadblocks to amending the Swiss Constitution apart from mandatory international law, it is all the more important to ensure individual freedoms by means of international protection of fundamental rights.

Erosion of the European community of values

The European Convention on Human Rights also is a guarantee of peace, security and liberal achievements in Europe. A forced breach of the European Convention on Human Rights (and a disregard of the judgements of the European Court of Human Rights) or even a withdrawal from the Council of Europe would severely endanger this pillar of human rights protection in Switzerland and would turn Switzerland into the only country in Europe besides Belarus that denies their citizens the protection of the European Convention on Human Rights.

A dishonest initiative

The SVP does not openly attack human rights but tries to weaken them by putting the idea of“priority” into the Constitution. Even the initiators of the Self-Determination Initiative know that an open refusal of human rights would be very unpopular. They are therefore trying to achieve a popular decision against human rights by focusing on abstract terms such as “international law” and on the popular trope of “foreign judges”.

Priority rule is inherently contradictory

As previously mentioned, the attempt to make the priority rule relative in the third part of the initiative’s text has led to an unbalanced blend. International agreements of subordinate importance are declared authoritative while top-priority international agreements have to take second place behind the Federal Constitution. For example: the international agreement on the monitoring and treatment of ballast water and sediments of ships was subject to a referendum while the Convention on the Prevention and Punishment of the Crime of Genocide was not subject to an optional referendum by the voters. The Self-Determination Initiative therefore contradicts its claim to provide a universal and conclusive explanation of the relationship between national and international law.

Top-level breach of treaties and trust

As with private agreements and contracts, agreements and contracts entered into under international law are binding (according to the international law principle pacta sunt servanda). Without this obvious principle it would make no sense to enter into an agreement and the other party would have no interest in it. Therefore, countries may also not refer to national law to justify the breach of an international agreement.

The Self-Determination Initiative provides clear instructions on the breach of international agreements. Swiss legislation would be forced to ignore international law obligations that were not subject to a referendum and that are in conflict with the Constitution. What’s more, the Confederation would be forced to renegotiate these obligations or to terminate them if necessary. Should the initiative be accepted by the electorate, Switzerland would be in breach of all its international agreements and would no longer be a trusted partner of the international community. In doing so, Switzerland would put itself offside and would paralyse itself, as no other countries would have any interest in entering agreements with Switzerland on such a basis.

Weakening of international law: shooting ourselves in the foot

Small countries like Switzerland have a strong interest in general rules for all countries. By signing an international agreement, participating states commit themselves in a voluntary and sovereign manner to follow the rules set down in the treaty. This makes the world of nations more predictable.

In a world of states without international law, the stronger states overpower the others. This is why Switzerland has always supported stronger, binding international laws. Supporting the Self-Determination Initiative would be like shooting ourselves in the foot. The initiative undermines an international system which is essential to the existence of Switzerland as country.

The business location: Switzerland is not an island

Swiss interest in the application of international law is also of great importance because its national economy is integrated into global economy and because Swiss wealth depends on this involvement. A functioning system of international economic law is an essential prerequisite for Switzerland as a business location. The WTO system is of great importance to Swiss companies and their access to international markets. The Self-Determination Initiative endangers the basis of Swiss wealth.

Widespread resistance against the Self-Determination Initiative

Ever since the SVP publicised its frontal attack on human rights in Switzerland, widespread resistance has formed in civil society and politics. When the party launched their “foreign judges” initiative, the civil society campaign “Schutzfaktor M”, involving humanrights.ch and over 100 other organisations, and all relevant political Swiss parties (except the SVP) took a very clear stand against the initiative. Many other actors and organisations have joined the fight against the Self-Determination Initiative since. An overview of the most important campaigns, comprehensive lists of arguments, and contributions against the Self-Determination Initiative can be found in the following article:

Conclusion

The Self-Determination Initiative is an attack on the Swiss legal system. The effects of it on the Swiss legal system would be extremely serious, since the initiative would endanger individual basic rights, legal certainty, stability and prosperity in Switzerland for decades to come. The possible chaos resulting from it can be seen in the present problems connected to Brexit. But unlike the UK, Switzerland would not terminate agreements with just one partner — all agreements with all countries would be in danger.

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