Susanne Leuzinger, Soziale Sicherheit und ihre Rechtswege, Zeitschrift für Schweizerisches Recht (ZSR) 2014 II 491 ff. (excerpts: pp. 525 – 534, 577 – 585)
Thomas Cottier/Maya Hertig, The Prospects of 21st Century Constitutionalism, in: A. von Bogdandy und R. Wolfrum (Eds.), Max Planck Yearbook of United Nations Law, Volume 7, 2003, pp. 261 – 328 (excerpts: Introduction pp. 261 – 264, Towards a Five Storey House/Conclusion pp. 299 – 328)
Susanne Leuzinger – Soziale Sicherheit und ihre Rechtswege
Cottier/Hertig – Prospects of 21st Century Constitutionalism
Background
A discussion of the Federal Supreme Court in an international context cannot be limited to considerations of its role within the state, but needs to address its function in international relations. Switzerland has always had foreign relations requiring legal regulation. Increasing international interdependence brought increased regulation on the international level by means of international law. Under international law, the Swiss authorities are obliged to apply international treaties which the country has ratified. It is only enforceable if applied by national courts and other authorities.
The Federal Constitution provides the framework for the application of international law by the Federal Supreme Court, establishing the Court’s responsibility for also ruling on disputes concerning breach of international law. From the very beginnings of its work, the Federal Supreme Court adopted a judicial policy friendly to international law. Rules of customary international and treaty law were fully integrated into the legal order of the Federation. Albeit the practice of different divisions of the Court was not uniform and always consistent, an overall and long term assessment will find that international law is taken seriously and plays an important part in the life of Swiss courts (Cf. also Cluster on International Law and case law referred). The Federal Supreme Court and the legal culture of the country operate under the doctrine of monism and consider international law to be part of the law, independently of transformation into domestic law. Yet before applying a provision of international law, the Federal Supreme Court has to decide in each case whether a particular norm is self-executing or whether it requires implementation by the political bodies by means of domestic law (regarding international law in federal court rulings see Part II I.; regarding the significance of international law see also Part II D. Constitutional Jurisdiction, Part II E. Fundamental Rights, Part II G. 2.2 Interpretation of unified, harmonized and received law).
It should be noted in addition that the judiciary itself has to comply with international law. The foreground issue is the guarantee of legal recourse per Art. 6 (1) ECHR and Art. 14 (1) UN Covenant II. This guarantee does not however grant the right of access to the Supreme Court. It suffices if the guarantees under the Federal Constitution are fulfilled by the lower courts of the cantons and the Confederation. With regard to the proceedings before the Federal Supreme Court of Switzerland, the ECtHR has found on multiple occasions that the Federal Supreme Court had infringed the right of rebuttal, leading the Federal Supreme Court changing its practices. The guarantees of public trial and public pronouncement of the judgement also derive from the ECHR and UN Covenant II.
International law does not confine itself to the requirement of application by national authorities. Instead, it often creates its own mechanisms for verifying whether and how the member states of an international organization or the contracting states party to an international treaty apply international law. Occasionally, the treaty bodies of an international treaty monitor compliance with that treaty, contributing to its fulfillment by suitable means. Due regard must be paid by the national authorities to the interpretation of international law by treaty bodies. Some international organizations have set up judicial panels to settle disputes based on international law whose decisions are binding and have to be enforced by the contracting states. The Federal Supreme Court thus has to revise its own ruling if the ECtHR finds a violation of the ECHR in a complaint by an affected party if a revision of the ruling appealed is necessary to remedy the violation (regarding dialogue between the Federal Supreme Court and international supreme courts see Part I B. 3.; regarding the activities of federal judges in international courts and dispute settlement bodies, see Part I C. 3.)
Human rights treaties in particular apply and require compliance in all areas of law, whereas the scope of application of other treaties is limited to specific areas of law. A brief description of circumstances in the field of social security law is provided to illustrate the interplay between the national and international decision-making levels, – a subject which the author of this cluster is particularly familiar with. In the subsequent section Thomas Cottier and Maya Hertig Randall sketch out a constitutional order for the 21st century, thereby further developing classic national constitutional law from a legal theory perspective considering the different levels of national and international law in relation to each other and examining questions around their interaction. Attention is paid to the role of the courts at the various levels, which appears in a different light when the different levels are viewed as parts of a larger system. They play a crucial role in realising and implementing transnational doctrines of constitutionalism. The integration of international law in Swiss legal culture and the underlying attitudes of the Swiss Federal Supreme Court is a fact and experience which has stimulated the doctrine of transnational federalism expressed in terms of the Five Storey House by the authors.
Summary
The paper by Susanne Leuzinger recalls that Switzerland has concluded bilateral or multilateral social security agreements with many states to ensure equal treatment of nationals of the contracting parties, the provision of social security benefits abroad, the retention of entitlements when switching between national social security systems and the provision of administrative and legal assistance for/by the executing bodies. These treaties are directly applicable. Many of these treaties establish an arbitration tribunal for authoritative resolution of disputes which can be exclusively brought by the contracting states. In a few treaties, a joint committee working on the basis of unanimity is employed to settle any differences of opinion, while some treaties dispense entirely with creating such a body. At the European level, intercoordination of social security systems is ensured under the Agreement on the Free Movement of Persons between Switzerland and the European Union and its Member States. This Agreement also is directly applicable. Politically, the contracting parties can bring disputes over interpretation or application of the Agreement before the Joint Committee, which can only decide by consensus. If mediation efforts fail, the contracting parties only have recourse to general measures of international law, such as retaliatory measures. For the future, the EU wishes to leave final decisions on the interpretation on EU law as incorporated into the agreement to the European Court of Justice. The EFTA Convention with Iceland, Liechtenstein and Norway, which is also directly applicable, has both a Joint Committee and an arbitration tribunal. Switzerland ratified several normative social security conventions of the International Labour Organization (now a specialized agency of the United Nations) which have social law content (e.g. Convention No. 102 on minimum social security standards) and the European Social Security Code of the Council of Europe. Only some of these conventions are self-executing. Out of the United Nations human rights conventions ratified by Switzerland which have explicit social law provisions (Refugee Convention, UN Covenant I, UN Convention on the Rights of the Child, Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Elimination of All Forms of Racial Discrimination), only the Refugee Convention was recognized by the Federal Supreme Court as directly applicable under social security law. The Committee on Economic, Social and Cultural Rights, which is responsible for monitoring UN Covenant I, objects to such restrictive ruling by the Federal Supreme Court (as does Swiss doctrine). Furthermore, human rights conventions have been ratified without express social law requirements, the provisions of which however do have to be complied with in the area of social security, namely UN Covenant II and the ECHR of the Council of Europe, which according to Federal Supreme Court social security case law are directly applicable. In all universal human rights conventions, committees are utilized to monitor the application of treaties which convene primarily in Geneva. As part of their regular state reporting procedures, these committees make recommendations to the contracting parties on the realization of the obligations entered into under the state treaty. In some cases, affected persons may bring disputes (individual complaints) before these committees, and other states may do so as well (state complaints). The International Labour Organization, the conventions on the legal status of refugees and stateless persons and individual UN human rights conventions provide that the International Court of Justice is the final legal decision-making body as the main judicial organ of the United Nations. The ECtHR is the most effective enforcement mechanism for the ECHR. A complaint may be brought before the Court by any natural person, non-governmental organization, group of persons or other member state. The Council of Ministers of the Council of Europe monitors implementation of the judgements by the member states. As mentioned, the Federal Supreme Court will revise its own judgement if the ECtHR finds a violation of the ECHR to be in evidence requiring appeal to remedy the violation. The introduction of international courts of justice is also being discussed for other treaties (International Court of Human Rights for UN human rights conventions, European Social Court for the European Social Charter – not yet ratified by Switzerland – and the expansion of the jurisdiction of the ECtHR through the adoption of additional protocols on social rights). The paper by Thomas Cottier and Maya Hertig Randall discusses impending challenges in applying international law in the context of globalisation and European integration in the 21st century and how the role of courts of law will be affected thereby. It hopes to offer a framework within which courts of law may find guidance in defining their proper role in the process of globalization and enhanced importance of European and international law. In the 21st century, the traditional foundations of the constitutional state are facing new challenges due to increased international interdependence and economic, technological and communicational globalization. The authors explore these challenges from the point of view of legal theory and constitutional law perspectives. In doing so, they reaffirm the constitutional objectives of upholding freedom, justice and dignity while ensuring equity, effectiveness and security. The ways and means to achieve these objectives however require further development in the context of an increasingly globalized society. A constitutional order of the 21st century has to take these circumstances into account, extending therefore beyond the borders of nation states. Legal theory generally asks the question what decision-making levels are constitutionally ordered other than the national level, and in connection therewith, what features characterize a constitution. The authors believe that the distinctions between different decision-making levels within or outside constitutions are artificial. The recognition of such dfferences does not assist in solving specific problems in a world where the boundaries between national and international law are increasingly blurred. Distributing responsibilities to and between decision-making levels, creating protective measures on the various levels and redefining the relationships between the various levels – in respect of human rights or market access, – are the main tasks for a constitutional order of the 21st century. This concept of the constitution is likened to a five-storey building comprised of levels from the local to the global storey, including their points of interface. It is not a static system but rather a process with changing assignment of responsibilities that allows a wide variety of structure types and combinations.
International law is included within this constitutional concept. Despite their differing origins, constitutional law and international law have heavily influenced each other. The multi-storey building concept is not new, being in fact familiar with the constitutional notion of federalism. In a constitutional order seen as a comprehensive system, relationships between individual levels are subject to change. The EU represents a fourth level in addition to the three national levels – in the case of Switzerland – of the municipality, the canton and the federal government. Although Switzerland is not a member of the EU, it largely adapts its national law to coincide with EU law to avoid trade barriers and transaction costs to the extent possible. The fifth level is the global level. The validity and enforcement of global law and effective dispute settlement mechanisms are creating increasingly strong ties between states and international organizations and require adjustments at the cantonal, national and regional levels. The concept of the multi-storey building entails a new understanding of vertical checks and balances. The state constitution can no longer claim to represent the supreme instance of authority from which all other governance structures are derived. The nation state becomes more of a pouvoir intermédiare, sharing sovereignty with other levels of governance. There is no reason why the federalist idea of distributing state power over various levels cannot be extended to the international and supranational decision-making levels, each with its own sources of law and political identities. This allows taking differences within the system into account and avoiding extremist secession demands by ethnic minorities, for example, or calls for a unitary European state.
Distributing regulatory responsibilities across various levels raises questions of priority in case of conflicts. There are multiple reasons for the primacy of the respective higher level. Firstly, the principle is widely accepted in federalism and in the relationship between national and international law. Also, the upper levels cannot perform their coordinating functions if the lower levels do not conform, and participation in negotiations over and agreement on rules to be applied at a higher level implies and legitimizes respect for those rules on the lower levels. However, there are exceptions to the primacy of the respectively higher level. Norms on a higher level may, for example, result in violation of inalienable human and civil rights which then will be protected by subsequent layers of governance. This principle can be generalized and also applied domestically. Also, international law is only directly applicable domestically if the same democratic rights were granted domestically at the time of enactment as have to be respected when national laws regulating the same matters are enacted (e.g. by parliament or referendum). Otherwise, national legislators are obliged to transpose international law into national law in conformity with the democratic rules of procedure (monism and dualism in the relationships between multiple decision-making levels). The general question of primacy becomes more urgent where international law does not respect the core values of national law and dialogue between levels is not cultivated. The development of the protection of human rights at the national, European and global (UN) levels provides a good example of interaction between different levels in the development and monitoring of minimum constitutional requirements which have to be met on all levels.
The national approach to dividing responsibilities across different levels is not easily transferable to the regional and global levels. There are several reasons for this. For example, the development of the welfare state and changes in science and technology have created an extensive need for regulation and led to the expansion of increasing complexity in the public sector. This renders it difficult to exclusively assign responsibilities to a single level. In addition, international organizations typically do not regulate comprehensively but rather only selectively within their area of responsibility. This requires supplementation or enactment in national law. An important problem in enforcing international law is the fact that within a state, the highest federal level is responsible for international relations, but not necessarily responsible for enforcement. Migration in particular as an issue of international law requires domestic cooperation and the creation of legal rules at various levels. The realities involved in many issues are so complex that it would be inappropriate to try to divide these up into sub-issues assigned to an individual regulatory level. Instead, such assignment should be guided by principles around content and procedure. Regarding content, a balance must be found between the goal of being oriented around the citizenry, favouring assignment to a lower level generally, and considerations of suitability for achieving the desired result, favouring assignment to a higher level in many cases. Cooperation in which the higher level adopts framework legislation and recommendations and the lower level adopts detailed regulations would thus likely often be called for. The loss of decision-making competence at the lower level can be compensated for procedurally by rights of participation at a higher level. In addition, higher-level decision-making instances should be obliged to consult lower-level instances and justify why an intended solution to a problem cannot be adopted by the lower levels.
A constitutional order of the 21st century would also include a more coherent understanding of the role of courts in the application of international commercial law. International courts, such as those of the WTO, tend to freely and comprehensively review national laws and decisions as to their conformity with international law in the interest of achieving the objectives of international law. National courts however tend to limit their activity to arbitrary-or-capricious testing because foreign policy is seen more as being within the government’s sphere of responsibility. Achieving a more coherent role for the judiciary is only possible if all levels are viewed as elements of a larger overall constitutional system. National courts would then conduct testing more stringently and international courts would weigh economic and other legitimate interests with regard to constitutionality. How much judicial review should take place on all levels should be gauged by applying justiciability as a common yardstick, i.e. whether court review is suitable and appropriate for deciding a question or whether the matter should be decided instead through political processes. The role of the judiciary varies from country to country, thus differences will emerge in assessing justiciability. But a minimum level of judicial review is ensured as long as all courts apply the same criterion of justiciability, as this is essential to ensure that checks and balances are in place between the various decision-making levels and which safeguard the rights of parties not represented in the policy area concerned.