Antoine Favre, Les droits constitutionnels et la garantie internationale des droits de l’homme, in: Juristische Fakultäten der schweizerischen Universitäten (Hrsg.), Freiheit des Bürgers im schweizerischen Recht, Festgabe zur Hundertjahrfeier der Bundesverfassung, 1948, pp. 335 – 358
Antoine Favre – Les droits constitutionnels
Background
Federal Supreme Court justices have on many occasions held seats on international tribunals and arbitration panels before, during and after their careers as federal judges. A portrait of the first Swiss federal judge to sit on the European Court of Human Rights (ECtHR) in Strasbourg (apparently on a part-time basis) is provided below. Other such judges of note include the following (ordered by year of appointment to the Federal Supreme Court; see the Historical Lexicon of Switzerland, https://hls-dhs-dss.ch):
– Agostino Soldati, federal justice from 1892 to 1936: Member of the Permanent International Court of Justice in The Hague; chairman of international arbitration tribunals for the determination of war reparations after the First World War
– Fritz Ostertag, federal justice from 1904 to 1926: Director of the International Intellectual Property Office in Bern (BIRPI)
– Fernando Pedrini, Member of the Federal Insurance Court 1931 – 1950, Federal Supreme Court justice 1950 – 1962: Member of the Permanent Conciliation and Arbitration Commission between Italy and Norway (1939)
– Robert Guex, federal justice from 1932 to 1948: 1923 – 1924 Arbitrator on the French-German Court, from 1924 president of various bilateral arbitration tribunals of the League of Nations
– André Panchaud, federal justice from 1948 to 1970: seat holder at the Permanent Court of International Justice in The Hague
– André Grisel, federal justice from 1956 to 1978: Judge at the Administrative Tribunal of the International Labour Organization (President 1981 – 1987)
– Rolando Forni, federal justice from 1962 to 1994: OSCE Court of Conciliation and Arbitration
– Jean François Egli, federal justice from 1979 – 1996: Judge on the Administrative Tribunal of the International Labour Organization
– Andreas Zünd, federal justice from 2004 – 2021: Judge on the European Court of Human Rights in Strasbourg
Antoine Favre was born in 1897 in Sion, Canton of Valais. After obtaining the licence ès lettres from the Sorbonne in Paris he read law at the University of Freiburg i.Ü. and Humboldt University in Berlin. In 1926 he received his doctorate in Freiburg i.Ü. After being admitted to the bar in the Canton of Valais, he worked as an attorney in Sion. From 1930 to 1972 he taught Swiss and international public law and collection and bankruptcy law at the University of Freiburg i.Ü. – from 1932 as full professor. He published several works of foundational importance in these areas. From 1943 – 1952 he was a member of the National Council. In 1952 he was appointed as federal judge. Antoine Favre became the first Swiss judge in Strasbourg when Switzerland joined the Council of Europe in 1963, thereby obtaining a seat in the European Court of Human Rights (ECtHR). He resigned as ECHR justice in 1974, and as federal judge in 1976. From 1967 he was Honorary Senator at the University of Freiburg i.Ü.
Favre wrote the text referenced below on the occasion of the centenary anniversary of the Federal Constitution in 1948. While still a professor, in the year of adoption of the UN Universal Declaration of Human Rights, which was two years before the adoption of the ECHR and fifteen years before his appointment as first Swiss justice at the ECtHR, he chose as a topic the relationship between constitutional rights and international guarantees of human rights. Andreas Kley later found it astonishing how Favre, a Catholic, addressed constitutional rights in detail, as the Catholic doctrine of natural law strictly rejected human rights until after the Second Vatican Council. Therefore, as Kley observed, no other Catholic professors had addressed human and fundamental rights, and Favre was ahead of his Catholic colleagues in this respect (Andreas Kley/Martin Sigrist, Der Beitritt der Schweiz zur EMRK, in: Tobias Jaag/Christine Kaufmann, Hrsg., 40 Jahre Beitritt der Schweiz zur EMRK, 2015, p. 17 ff., 45 f.)
https://hls-dhs-dss.ch/de/articles/004988/2011-01-27/; swisscovery – antoine favre (slsp.ch)
Summary
The author first discusses the development of constitutional rights, starting with the political philosophy that enabled the overcoming of absolutism and the emergence of the constitutional state in the 18th century. Man is by nature imbued with rights, which society must recognize, uphold and respect. Laws define the boundaries of the autonomy of the individual, which may only be restricted to the extent the liberties of others or the public interest are thereby compromised. The Declaration of Human and Civil Rights of the French National Assembly of 1789, which was guided by these principles, had an immense impact on most civilized societies, which adopted the principles and often the wording outlined therein. The Swiss cantons introduced the separation of powers, indirect democracy and popular sovereignty in constitutional matters around 1830, and also declared the principle of equality before the law and a large number of fundamental rights. The author then addresses the development of fundamental freedoms and political rights in the federal constitutions of 1848 and 1874 and the recognition of social rights from the end of the 19th century. The author discusses the relevance of harmonious international cooperation as the only way to create the economic conditions that enable states to guarantee their citizens adequate social security. Traditional international law had been based on the idea of the full sovereignty of states, subject to international treaties and customary international law. Individuals were not concerned in it, other than with regard to the nationals of foreign countries. Only in time did interest develop in certain groups of domestic individuals, prohibiting practices such as slavery. However, no rights were recognized for the individuals concerned, which was a matter left exclusively to the states. Only when the League of Nations was formed in Geneva in 1920 was the protection of human rights taken up as interest in protecting particularly vulnerable groups increased, such as the populations of mandate territories (“League of Nations Mandates”) and national minorities. To this end, a permanent Council was formed to monitor the government of mandate territories by the states thus entrusted, which became the model for creation of the United Nations Trusteeship Council. In the days of the League of Nations, individuals finally emerged as objects of international law although they were as yet unable to assert rights under international law. Once the protections afforded national minorities by the League of Nations proved ultimately to be weak, the recognition of universal human rights under international law appeared to be the solution. The author next outlines the process of evolution from the International Declaration of Human Rights of the Institute for International Law of 1929 to through the drafts of American doctrine, primarily Latin American and up to the Charter of the United Nations of 1945. The author concludes with a detailed discussion of the conflict that emerged during the deliberations on the UN Universal Declaration of Human Rights – not yet adopted at the time of writing -, in which the Western view that the individual should be a subject of international law with individual rights vis-à-vis the state which should be protected by international law collided with the Communist view, which placed economic and social rights in the foreground. The author was particularly concerned that communist states regarded the protection of human rights by an international court as unnecessary interference in their internal affairs, stating that there are fundamental human rights and an international community whose obligation it is to protect those rights, and that an interest therein furthermore exists from the perspective of Swiss law. In describing the individual, social and political rights to be protected by the Universal Declaration of Human Rights and the equality of rights, the author points out the differing concepts on the part of the states, vis-à-vis equal rights for example, in view of the lack of voting and electoral rights for women in Switzerland. While fraught with difficulties, the author maintains that such procedures are necessary for the protection of human rights by international bodies, recommending an incremental approach.