Put national law before international law? Other countries do.

Lady Justice originates from the personification of justice in ancient Rome. Her attributes are a blindfold, a balance and a sword. 123RF

A people’s initiative proposes that the Swiss constitution take precedence over international law. How do other countries regulate the interplay of national and international law? Here is a quick summary.

The Swiss House of Representatives on Wednesday began a debate on a people’s initiative which proposes to define the relationship between Swiss national law and international law. Discussions in parliament are set to continue next week. 

The present legislative situation in Switzerland is somewhat ambiguous.

There is no clear way to resolve conflicts when they arise. Switzerland’s highest court has been giving precedence to international law more and more. This has prompted the rightwing Swiss People’s Party to launch its “self-determination initiative”.

The self-determination initiative in a nutshell

– The Swiss constitution should have precedence over international law in principle, but not over imperative laws such as those on torture, slavery or war.

– The federal state and the cantons will not be allowed to enter into international obligations that contradict the constitution.

– In the case of conflict between the constitution and international law, Switzerland should change or terminate the international agreements.

– The Swiss constitution is the highest legal source of the country.

– Only those international treaties which have been subject to a referendum in Switzerland are relevant for Swiss courts.

How do other countries manage the relationship between international law and national law? The Federal Justice Office has commissioned a report on this matter. swissinfo.ch has been taking a look at the report and summarises its findings here.

Germany: constitution comes before ECHR

In GermanyExternal link (link in German) international law basically takes precedence over national law. There is one exception: international treaties which determine political relations of Germany, or which deal with matters of national legislation, require parliamentary ratification. So these agreements do not take precedence, but are at the same level as a domestic piece of legislation. This includes the European Convention on Human Rights (ECHR). The law of the European Communities – European law in the narrow sense – takes precedence over German law.

France: International law stands above national laws

In FranceExternal link (link in French) international agreements have greater legal force than domestic laws – so long as the other parties adhere to the agreement as well. Yet it is a matter of debate as to whether international law ranks higher than French constitutional law. Neither the constitution itself nor legal tradition nor existing case-law provide a clear answer to this question. The constitutional court (Conseil constitutionnel) and the supreme court for administrative law (Conseil d’Etat) consider the French constitution as taking precedence over international law.

Community law (EU law) stands above national law, according to French jurisprudence. If it contradicts the French constitution, then the constitution needs to be amended.

UK: International law holds only in the form of British laws

Given that Britain lacks a written constitution, international agreements are converted into British laws, and then have the same rank as other domestic legislation. Only Community law (EU law) takes precedence over all other laws.

The US Supreme Court in Washington does not consider the findings of international courts of justice as binding. AP

United States: Federal law comes first

The US is well known as taking a sceptical position towards international law. The American constitution cannot be added to, amended or restricted by international law. There is no explicit order of precedence established between federal law and international agreements. According to existing case-law, Congress may pass legislation incompatible with international law – and it then takes precedence.

International law does take precedence over the laws of the states – just as in Switzerland it takes precedence over cantonal laws. Since direct democracy mechanisms exist only at state level in the US, the validity of people’s initiatives incompatible with international law is not such an issue as it is in Switzerland.

Courts have repeatedly declined to apply international law, basing themselves on federal or even state law. The US Supreme Court does not regard the findings of international courts of justice as binding.

Sweden: a varied approach

In Sweden international agreements (with the exception of parts of Community law) have to be converted into a national law or regulation – this even applies to the ECHR. The agreement then has the same force as domestic legislation or regulations.

If conflicts arise, Swedish law takes precedence. The ECHR takes precedence only if there is an obvious incompatibility. That hardly ever occurs, since parliament is careful not to to pass any laws that might be incompatible with the ECHR.

EU law takes precedence over Swedish legislation. Yet the relationship of Community law to Sweden’s constitution is a matter of some controversy. The government takes the view that the Swedish constitution is supreme. According to the Swiss experts it is unlikely, however, that Sweden’s courts would ever decline to apply Community law on the grounds of incompatibility with the constitution.

India: international law slow to be implemented

In India, international law has to be made into national legislation and thereafter has the same status as the latter. In the past, however, India has often signed up to international agreements and then neglected to convert them into national law. Judges attempt to mitigate this by consulting the international agreement in their interpretations.

Conclusion: no total precedence to international law

None of the countries mentioned here gives international law automatic precedence. The Federal Justice Office puts it like this: “As regards precedence, none of the countries studied was found to subscribe to the idea of ‘automatic primacy of international law’.”

This is encouraging news for the promoters of the “self-determination initiative”. For they argue that our government’s, parliament’s and Federal Court’s practice of giving precedence to international law over Swiss national law is unique among the nations of the worldExternal link (link in German). Critics of the initiative however caution against “summary” international comparisonsExternal link (link in German).

Switzerland goes its own way

Switzerland’s situation is in fact unique, due to three factors:

First there is direct democracy. The justice office puts it this way: “Problems arising in the context of direct democracy in Switzerland cannot be compared either directly or indirectly to any situation in the other countries studied.”

The matter at stake here is people’s initiatives which clash with international law. Thus for example the ban on building minarets may not be compatible with freedom-of-religion guarantees in international treatiesExternal link (link in German) – there is no case-law on this yet. Only if a people’s initiative offends against very basic international law or does not have “unity of form and matter”, it may be declared invalid at the outset. This has happened very rarely.

Secondly, mention must be made of the lack of specific constitutional jurisdiction. Switzerland has no constitutional court (link in German) empowered to evaluate the conformity of new pieces of legislation with the constitution. National legislation that is unconstitutional (link in German) must still be applied by the courts. The Federal Court is able to mitigate this by declining to apply national law which conflicts with the European Convention on Human Rights. Since human rights and constitutional rights really amount to the same thing, there is a “quasi-constitutional jurisdiction” as regards human rights after all. International protection for human rights is accordingly more crucial for Switzerland than for other countries. The “quasi-constitutional jurisdiction” might cease to exist if the country withdrew from the ECHR – something which opponents of the self-determination initiative fearExternal link (link in German/French/Italian).

Thirdly, Switzerland is not a member of the EU. Automatic precedence of Community law over national law is something, therefore, that does not apply to Switzerland (as yet). Bilateral agreements with the EU determine what parts of Community law also apply to Switzerland. At the moment a framework agreement with the EU is in the works, which would combine all the bilateral agreements in such a way that every change in EU law would not have to be painstakingly negotiated with Switzerland but would be adopted by Switzerland “dynamically”. If it failed to do so, the EU would have the option of taking counter-measures.

Translated from German by Terence MacNamee