Verhältnis zwischen Völkerrecht und Landesrecht im Rahmen der schweizerischen Rechtsordnung, Gemeinsame Stellungnahme des Bundesamtes für Justiz und der Direktion für Völkerrecht vom 26. April 1989, Verwaltungspraxis der Bundesbehörden (VPB) 53 Nr. 54 Ziff. III.; Das Verhältnis von Völkerrecht und Landesrecht, Bericht des Bundesrates vom 5. März 2010, Bundesblatt 2010 2263 ff., 2302 f.
Verwaltungspraxis der Bundesbehörden (VPB) 53 Nr. 54 Ziff. III
Background
Already in its earliest decisions the Federal Supreme Court found that international law would become valid within the Swiss legal system upon its ratification. For example, in the Kiesow case of 3 December 1881 (BGE 7 I 774) it was decided, without further argumentation, that the relevant provision of the Customs and Trade Treaty of 13 May 1869 between Switzerland and the German Customs and Trade Association had not been invalidated ipso jure by entry into force of the Federal Trademark Protection Act of 19 December 1879. As far as can be seen, subsequent Federal Supreme Court rulings are similarly brief in terms of outlining argumentation. In later rulings, reference is made to earlier precedents, and only occasionally to (diverging) literature. After 1989, the Federal Supreme Court referred several times (such as in BGE 122 II 234) to the Joint Statement by the Federal Office of Justice and the Directorate of International Law of 26 April 1989, confirming that an international treaty approved by the Federal Assembly becomes binding for the contracting states under international law upon exchanging of the instruments of ratification, taking simultaneous effect in national law and international law. The opinion formed the basis for a dialogue on the relationship between international and national law, which the Federal Supreme Court had requested in its 1988 annual report. The Court had been repeatedly confronted with having to decide conflicts between international legal norm and a national law, finding one to deploy primacy, therefore having to disregard the other norm that the Court would otherwise recognize as binding. The increase in the number of popular initiatives in contravention of international law, and the related parliamentary initiatives submitted to the Federal Council in 2010, i.e. after the new Federal Constitution of 1999 had come into force, gave the Federal Council cause to issue a report on the relationship between international law and national law. Passages from the 1989 and 2010 reports on the validity of international law in the Swiss legal system are summarized below.
Summary
The 1989 report (item III) finds that the Federal Constitution of 1874 does not regulate the relationship between international law and national law within the Swiss legal system, which is why the issue has to be considered in light of the principles and practice of international law, constitutional law and legal theory. The Swiss legal system is monistic, as the report observed. The Federal Supreme Court and the Federal Council, the report further noted, have often found, in accordance with legal theory, that the treaties, customary law or other norms of international law become an integral part of the Swiss legal system from the moment they become legally binding for Switzerland. As long as these are in force for Switzerland, the political, administrative and judicial authorities have to observe and apply them. Individuals can invoke and derive rights and obligations from these at the expense of the state or other parties. Obligations for individuals are only established if the international treaties have been made public.
According to the 2010 report, the monistic structure was already implicit in the old Federal Constitution of 1874. Neither the old nor the new constitution provides for a procedure for transforming international law into national law, as approval decisions are not subject to referendum. The Federal Supreme Court also addresses complaints filed by private individuals over violations of international law. The 1999 Constitution makes clear that the Confederation and cantons have to respect international law, that it is valid for all authorities applying the law and that the Federal Constitution may not be revised in violation of mandatory rules of international law. The Federal Supreme Court, the report found, had recognized the principle of direct applicability since its earliest decisions, and had only deviated from this view in two isolated judgements in 1923 and 1933 on the grounds that approval of an international treaty by the Federal Assembly endows the content thereof with the force of law, making it binding upon authorities and citizens. The majority of legal scholars advocate monism, the report stated, as dualism is not in line with Switzerland’s pragmatic legal tradition.