Introduction

Introduction

It is perhaps due to the geographical location of Switzerland, her decentralised structures of governance, all within narrow confines, and the proximity of international borders that has led to international law playing a significant role in Swiss legal culture. Many of the foundations of modern international law, rooted in natural law and reason, found early expressions in the French speaking part of the country, in parallel and linked to the doctrines relating to modern statehood and constitutional law at the time. Indeed, the two fields are difficult to separate and should be studied in tandem. Emer de Vattel and Jean-Jacques Burlamaqui are among the founding fathers of modern international law, properly speaking, and the then emerging doctrines of sovereign nation states. Antoine-Henri Jomini, during the same period, developed his teachings of military warfare among nations which lay important foundations, not only on strategy and military tactics, largely adopted in foreign armies, in particular the United States. It also provided important foundations for the development of international law in bello which become the main subject of efforts on humanitarian law.

Geneva, headquarters of the League of Nations after World War I and today the seat of numerous international organisations of the United Nations and the World Trade Organization, assumed an important role in the development of international law ever since the 18th Century. It is here that Henry Dunant initiated the movement towards humanitarian law which was ably set in motion by Gustave Moynier and was instrumental in founding the International Committee of the Red Cross. Since its inception, the Committee has been chaired by Swiss nationals, including Max Huber, and recently Cornelio Sommargua and Jakob Kellenberger and Peter Maurer, all former chief diplomats (secretary of state).

It is in Geneva that William Rappard, after World War I initiated La Genève Internationale and the Graduate Institute of International Studies which ever since has played a leading role in the education and development of international law on Swiss soil. Hundreds of international lawyers from all over the world have been trained at the Institute and established lasting linkages with Switzerland and its legal culture.

The 19th Century and early 20th Century also witness important contributions by scholars from other parts of the country. Johann Caspar Bluntschli, a liberal civil lawyer and father of early codifications in private law, turned to international law upon emigration to Germany and substantially contributed to the idea of codification of international law. Much of this work was developed within the Institute de droit international to which also Ottfried Nippold and Joseph Hornung contributed. Much of the ideas today realised within the European Union at the time were discussed to form the future of international law in the Kantian tradition. After World War I, Max Huber was among the first to develop a sociological and realist perspective of international law, reflecting a long-standing tradition of incorporating considerations which, today, are dealt with by scholars of political science and international relations. His thinking translated into important decisions of the Permanent Court of International Justice to which Huber contributed as Judge. His influence can be traced in the works of Dietrich Schindler, Daniel Thürer and Oliver Diggelmann, all of whom succeeded Max Huber at the University of Zurich. Linking law and political science has emerged as an important trait in Swiss scholarship ever since, in particular the contributions of Alois Riklin, Albert Stahel, Thomas Bernauer, Cédric Dupont, Liliana B. Andonova,  Manfred Elsig and Laurand Götschel and Heinz Krummenacher.

The advent of World War II made Switzerland and Geneva in particular, an important refuge for international lawyers. Hans Kelsen briefly worked in Geneva, and Hans Morgenthau laid the foundations for international relations theory during his years in Geneva. In hindsight, the tradition of doctrinal pluralism in Switzerland facilitated Morgenthau’s transformation of legal studies to international relations theory during his years in Geneva which strongly coined perspectives of international relations in the following period of the Cold War during the second part of the 20th Century.

The period following World War II in Swiss scholarship is marked by a return to a positivist approach mainly represented by the work of Paul Guggenheim and a strong emphasis on neutrality in the work of Rudolf Bindschedler. The absence of Switzerland from the United Nations until 2002, and its abstention from institutional European integration, discussed separately, largely removed Swiss scholars from actively participating in the building of new international institutions. Often they were active in defence of national sovereignty, in particular in the context of post-War reparations which haunted the country until the 1990s and caused otherwise rare attention by the international community, aptly dealt with by Devtlev Vagts of Harvard University. International institution building, at the time, was largely left to international lawyers working within the United Nations, in particular Wilfried Jenks, and the International Law Commission, often working out of Geneva.  In a subsequent period, the most important contributions by Swiss scholarship can be found in the field of the emerging law of development, treaty law and general principles of law. Georges Abi-Saab, substantially contributed to a developing country perspective of international law which in parallel, was also the subject of the Geneva Institute of Development Studies, today merged with the Graduate Institute.  Lucius Caflisch eminently dealt with the law of the sea and was a member of the International Law Commission of the United Nations and an adviser to the Swiss Government. Luzius Wildhaber made an important contribution in assessing treaty-making powers and chaired the European Court of Human Rights in Strasbourg. Mark Villiger wrote a seminal commentary on the law of treaties and followed on the bench in Strasbourg  Jörg Paul Müller strongly developed  protection of good faith and thus what may be called a psychological approach which more recently was followed up by Robert Kolb and Marion Panizzon. Protection of good faith and legitimate expectations has been a constant and typical trait of recent Swiss scholarship in the field and reply to the excesses of positivism in the early 20th Century. It found its way into the leading text book by Müller and Wildhaber, Praxis des Völkerrechts, published so far in three editions.  Today, general theory of international law is mainly represented by Daniel Thürer, Anne Peters, Andrea Bianci, Marcelo Cohen and Samantha Besson who developed in her writings a strong link to the philosophy of law.

Contemporary Swiss scholarship in international law is characterised by a wide field of interests, addressing all essential areas of public international law.

It has been marked by a keen focus on human rights and humanitarian law, strongly represented by Walter Kälin who was critical in developing the law of internally displaced persons and institutional developments in enhanced protection of human rights, reiterating again the role of Geneva in international law. Andrew Clapham, Andrea Bianci, Jörg Künzli, Martina Caroni and Judith Wyttenbach have all contributed to this field.  Christine Kaufmann initiated strong linkages of human rights protection and the corporate world, stressing labour law and the linkages to Corporate Social Responsibility. The strong emphasis on human rights in international law was not limited to international lawyers. In fact, the main impetus stems from penal and constitutional lawyers. Georgio Mallinverni, a constitutional lawyer, was an eminent judge at the European Court of Human Rights. Jean Ziegler, a sociologist, persistently drew attention to inequities in North-South relations, the responsibility of banks, and later served as the special rapporteur on the right to food to the United Nations.

International environmental law emerged as a new discipline with significant contributions being made by Anne Petitpierre, Astrid Epiney, Joelle de Sépibus, Franz Perrez, Laurence Boisson de Chazournes, and Helen Keller, a Judge at the European Court of Human Rights.
The challenges of international economic law, strongly focusing on the emerging law of the Geneva based GATT and subsequently the World Trade Organization brought about a new and strong focus in Swiss scholarship, exploring the linkages of law and economics and interface with other fields of international law by Swiss based lawyers including Ernst Ulrich Petersmann, Frieder Roessler, Gabrielle Marceau, Krista Nadakavukaren Schefer, Joost Pauwelyn,  Andreas A. Ziegler, Michael Hahn, Rolf Weber, Matthias Oesch, Marion Panizzon, Panagiotis Deliminatis and Thomas Cottier. Law and economics has been particularly developed and pursued by Petros Mavroidis and Anne von Aaken.

A new generation of international lawyers has been trained within a large research programme NCCR Trade Regulation (2006-2017), supported by the Swiss National Research Foundation and hosted at the Bern based World Trade Institute, founded in 1999 and hosting a leading postgraduate programme on international law and economics, specialising on trade regulation (MILE). The law of international trade, jointly with human rights and environmental law, triggered a scholarly movement towards constitutionalization of international law. Ernst Ulrich Petersmann was among the first to transport constitutional doctrines into trade law theory. The lines between international law and constitutional law began blurring between regionalisation and globalisation. Thomas Cottier and Maya Hertig Randall proposed an integrated approach and Anne Peters developed a proper theory of constitutionalization of international law. Oliver Diggelmann and Giovanni Biacchini explored the impact of globalization and regionalization on Swiss constitutional law.

Apart from academia, international law in Switzerland is mainly of interest to the Federal Government. A few politicians only excelled in international law and relations. Giuseppe Motta, Max Petitpierre, Traugott Wahlen, Hans Schaffner, Walther Hofer, Ernst Mühlemann Gaby Vermont and Dick Marty in particular should be named. A number of lawyers excelled in representing Swiss interests around the world and in European Integration. Matthias Krafft was instrumental in drafting the institutional provisions of the European Economic Area (EEA) Agreement together with the late Bruno Spinner and the late Olivier Jacot-Guillarmod, who later became a Judge at the Swiss Federal Court in Lausanne. Valentin Zellweger was critical in establishing the International Criminal Court, and Nicolas Michel served as the legal advisor to the Secretary-General of the United Nations. Many diplomats and officials, in their practical work, made eminent contributions to the development of international law and relations in their practical work. We name especially, although do not limit ourselves to, Michael Ambühl, Silvio Arioli, Franz Blankart, Carl Burckhardt, Jacques de Watteville, Emanuel Diez, Christian Etter, Franz von Däniken, Walter Fust, Jean-Daniel Gerber, Tim Guldimann, Gret Haller, Gabrielle Ineichen-Fleisch, Didier Jeanbovey, Paul Jolles, Jakob Kellenberger, Franz Perrez, Carla del Ponte, Raymond Probst, Paul Seger, Marc Stucki, Heidi Tagliavni, Benedikt von Tscharner, Luzius Wasescha and Albert Weitnauer.

The practical application of the law has become increasingly important within universities increasingly taking part in inter-institutional and international MOOT courts. Related to this, the study and teaching of international negotiations in Switzerland has been pioneered by Felix Addor, at the University of Bern.

Many of the international lawyers working in Switzerland were trained abroad. International law by its very nature is least dependent upon domestic law and ever since its foundation universities, traditionally open to hiring international staff have attracted foreign talent to the country. This, and again, the political structure of federalism and decentralization in Switzerland and its interaction with Geneva based international lawyers allows Switzerland to make its continued contribution to the development of international law in coping with the challenges of the 21st Century.

Swiss courts significantly contributed to the development of international law with a number of leading cases. The monist tradition of the country was open to the influence of international law, perhaps balancing an otherwise strong influence of direct democracy, thus establishing a perhaps more hidden mark of Swiss legal identity. The Swiss Federal Court in particular recognised a strong role of international law by granting direct effect and adopting the doctrine of consistent interpretation. Moreover, it gave a prominent status to the European Convention on Human Rights, overruling national legislation which otherwise is not subject to constitutional review. At the same time, we must recall that public international law has played only a minor role in private legal practice. Few practitioners, like Robert Briner and Pierre Lalive, have been mainly working in international law properly speaking during parts of their distinguished careers, beyond the occasional recourse to international law in litigation. Most of them are involved in commercial arbitration and thus closer to private international law. The same is true for companies and industry. Even large companies do not closely follow developments in international law, and trade associations are limited to specialists in international economic relations and law. Partly this finding is due to the fact that international law does not play an important role in basic legal education, and a great number of students and future lawyers are never exposed to the subject beyond a basic knowledge. Professional associations dedicated to international law have largely remained a domain of academics and government officials. It is thanks to the practitioners in government, international organizations and in Non-Governmental Organizations, mainly operating out of Geneva that public international law has not remained a matter limited to academia and the Federal Government.

Distinct from other areas of the law where Swiss legal culture has been increasingly influenced by law developed abroad, in particular the legal traditions of neighbouring countries and today of European law, the Swiss contribution to the development of international law and relations has remained an active one commensurate to a country that ranks among the twenty largest trading nations of the world. The tradition of humanitarian law has been strongly anchored with Switzerland as a depositary state of the Geneva Convention ever since. Swiss based lawyers have been actively participating in international fora and associations. More recent years have seen active contributions in particular in the field of international environmental law and the field of international economic law in response to the processes of regionalization and globalization.

The Anthology on international law partly overlaps with the clusters on Europeanization, Globalization and Americanization of Swiss law and legal culture. We refrain from addressing relations to the European Union in the present cluster, albeit they legally form part of international law and relations. The following texts offer a small number of excerpts exemplifying the rich work on international law based in Switzerland. The emphasis is on academic writing, and far less than deserved are included. It inherently is a selection which leaves many, many texts aside, and a majority of those mentioned in this introduction could not be included for practical reasons in order to keep the collection within a reasonable size. As the anthology develops further, additional entries will be added over time. Being a work in progress, the anthology will be further expanded and updated to include international relations.