Category Archives: 4. The relationship of international and domestic law

Background

If interpretation of a legal norm under national law in conformity with international law indicates that the national law is in conflict with a directly applicable provision of international law, this gives rise to the issue of which has primacy and trumps the other rule. Legislators strive to avoid conflicts with international law. The relationship to international law is addressed by the Federal Council in its draft legislation and by Parliament in its parliamentary deliberations, although it is naturally not possible to foresee all cases of application and subsequent developments. In the case of popular initiatives aimed at amending the Federal Constitution, it occasionally remains unclear during the voting campaign whether the constitutional amendment violates international law if the issue is not addressed in the amendment itself – which it usually is not. The creators of the 1999 constitution were not aiming to conclusively settle the thorny question. Thus in the rare cases in which a conflict between national and international law become apparent, the Federal Supreme Court has to decide the issue of primacy in a case of application. The Federal Supreme Court rulings have always been favourable to international law without further justification of such finding other than the view that all state organs are obliged to voluntarily fulfil obligations entered into by the state (pacta sunt servanda; see for example BGE 21/1895, 705, 710). Exceptions in which the Federal Supreme Court upholds the primacy of national law are very rare. In BGE 59 II 331, the Federal Supreme Court ruled that international agreements only have the rank of law domestically, and conflicts must be resolved according to the principle of lex posterior derogat priori. The national law was more recent in the case reviewed, so it was seen as having precedence even though the international treaty was amended slightly later on.

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The Primacy of Domestic Law in Case of Deliberately Taking into Account a Conflict with International Law by Parliament in Switzerland

Background

see 4.1

Summary

Precedence of national law when the legislature accepts a conflict with international law: Decision of 2 March 1973 in the case of Schubert v Appeals Commission for Application of the Federal Law on the Purchasing of Real Estate to Persons of Foreign Domicile of the Canton of Ticino (BGE 99 Ib 39)

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The Primacy of International Law over Swiss Federal Acts, in Particular in the Protection of Human Rights

Background

see 4.1

Summary

The primacy of international law over a federal law, especially where the international legal norm serves the protection of human rights: ruling of 26 July 1999 in the case A. v. Swiss Federal Prosecutor (BGE 125 II 417)

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The Primacy of the Agreement on the Free Movement of Persons between Switzerland and the EU over Federal Statutory Law

Background

see 4.1

Summary

Precedence of the Agreement on the Free Movement of Persons between Switzerland and the EC over federal law: ruling of 9 May 2007 in the case of State Secretariat for Economic Affairs v C. (BGE 133 V 367)

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The Primacy of the Agreement on the Free Movement of Persons between Switzerland and the EU over the Federal Constitution

Background

see 4.1

Summary

Priority of the Agreement on the Free Movement of Persons between Switzerland and the EC over the Federal Constitution: ruling of 26 November 2015 in the case A.A. and B.A. v the Migration Office and Security Directorate of the Canton of Zurich (BGE 142 II 35)

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