“The Impact from Without: International Law and the Structure of Federal Government in Switzerland”, in Peter Knoepfel, Wolf Linder (Hrsg.), Verwaltung Regierung und Verfassung im Wandel, Gedächtnisschrift für R. Germann, Basel, Genf, München, 2000, S. 213-230, reprinted in Thomas Cottier, The Challenge of WTO Law, Collected Essays, London, p. 371-390, 2007.
The text at hand has been published in honour of the late Professor Raimund Germann, who was a political scientist. With regards to Professor Germann, Thomas Cottier writes in the introduction “We all owe [Raimund Germann] a critical and consistent appraisal of direct democracy and coalition government in Switzerland. Over many years of his fruitful academic life, he had the courage to question the conventional wisdom of the political system as practiced in this country. He developed conceptual ideas, far away from the mainstream in this country, on representation and maturity rules with parties in opposition. He intended to move the Swiss to parliamentary democracy and thus towards the mainstream model in Western Europe, and perhaps throughout the globe. He doubted, whether direct democracy would be able to cope with the challenges of the modern world, with European integration and globalization.”
The text reflects a long-standing interest of Thomas Cottier in constitutional law and thus the impact of globalization and regionalization on the structure and functioning of government, in particular on horizontal and vertical separations of powers under the Constitution. It is the first of a series of texts which introduce the concept of a five story house, by which he depicts a vertical system of allocating powers ranging from local, cantonal, national to regional (European) and global levels. He uses his constitutional law background and his openness and closeness to neighbouring social sciences in describing a bigger picture of the vertical and horizontal paths of mutual influences in the process of globalization on the political and legal system of Switzerland. The text was written at a time, when Switzerland was at pains in finding its way and orientation in the changing landscapes of Europe and the globe. He argues, that changes, both domestically and in foreign relations, require considerable shifts in mainstream attitudes that need to translate in popular vote focusing on a key element of the Swiss governmental system. According to Cottier, resistance to changing paradigms in foreign policy and international integration is not limited to nationalist parties and groups. The loss of boundaries is a cause of considerable angst and anxiety with many fearing a loss of national identity. The feeling reaches far into the mainstream political spectrum and into the respective sciences as well. According to Cottier, it would be fair to say that without direct democracy and with a system of representational majority government, changes within Switzerland would have occurred more rapidly in order to integrate the country into new European landscapes. All of the Swiss down-to-earth pragmatism and impossibility to bring about substantive constitutional changes are characteristic of Switzerland’s trials and tribulations in accepting and facing European integration, Americanization, and globalization. According to Cottier, experience shows that changes in the system of government will not occur formally from within given stable and social economic conditions in the countries. They may occur informally and shift the political system towards some of the ideas of the political system more adequate to globalization.
The text is an example of incremental academic working within the underlying, slow, and gradual changes in legal and political culture and constitutional practices. The text focuses on the silent changes, the role of international law on the constitutional structures and the political system, which informally shapes constitutional law more and more, all within the bounds of the written constitution. The text specifically explores the idea to what extent the decline of parliament will eventually shift constitutional practices towards a system of representative government with the Federal Council more directly depending on majorities of the day. According to Cottier, all this depends on the future of the institution of the referendum. He argues that there is little or no room to limit that referendum. He admits that the referendum may lose some of its tradition and importance in the light of recentralization in globalization. Moreover, its role might also change with the introduction of constitutional review over federal statutes.
Under the heading The transformation of law-making, he argues, that as in periods before, political and legal change is less induced from within the country and its utterly stable constellation, but from without i.e. from a changing international context of the constitution. Technological advances, in particular in communications, have profoundly changed business and private lives. Regulatory needs transgress the traditional bounds of the traditional nation states, legal scientists and lawyers alike increasingly draw to facts that law and regulation are being increasingly shaped in international process. The age of comprehensive national codification has come to an end. Most areas of law, today, have an international and European legal dimension. The impact has been of paramount importance in the field of economic law, regulating commerce both domestically and internationally. Particularly in a regional context , these developments are more advanced and intrusive. The developments of the European Union have gone much beyond transboundary non-discrimination and market access. It regulates entire walks of life, such as agriculture or competition, and it increasingly shapes what formerly was national law, both in public and in private law spheres.
Thomas Cottier analyzes the impact of European and international law on the balance of federal powers. The text describes the silent profound impacts on the structure of government and the constitution of the nation state in particular and notes a decline of parliament. The powers of the people by way of referendum, mandatory or not, states an option which always has been limited to approval or veto power without any bargaining powers. He notes that the threat to use a referendum is of very limited use in the context of international agreements and the evolution of recentralization and globalization of law – many areas lead from losses in bargaining power of parliament to a further shift into the executive branch.
The text floats the idea towards transnational parliamentary states and that joining the European Union would be a major strategy to reestablish the balance of power between elected representation and government. The methods need to focus on a long-term view. With regards to the short term rebalancing of power, the text addresses a number of reforms of government from a practical perspective. Under the heading Long-Term Rebalancing of Power, the text addresses the problem of referendum and raises the question if there is a possibility to reinforce parliament by limiting direct democracy. The text analyzes in detail the virtues of referendum rights and describes the potential practical decline of the referendum.
Thomas Cottier’s final and core argument of the text addresses concerns of The Impact of European and International Law on Federalism. International law and international relations do not only affect the balance of powers between the Swiss parliament, the people and the government. It also affects the balance between the Cantons and the Federation, as much between the member states and the European Union.
The text ends with a call for a new concept of constitutionalism addressing the interaction of all layers of government, from local to global levels. The influence of international law on structures of government no longer allows to remain within traditional concepts of constitutionalism. The perception and concepts need to be expanded to the level of regional integration and to global integration. He advocates the metaphor of a multy-story-house, whereby the different floors remain of different importance and impact. Switzerland needs to start looking to all these levels, as different as they are, as a combined system of different polities.