Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

Switzerland: Voters Reject Popular Initiative on Giving Swiss Constitution Explicit Precedence over International Law

(Dec. 17, 2018) On November 25, 2018, Swiss voters rejected by a vote of 66.2% to 33.8% a popular initiative known as the “Self-Determination Initiative.” Voter turnout was 47.7%. (Vorlage Nr. 624. Vorläufige amtliche Endergebnisse. Volksinitiative vom 12.08.2016 “Schweizer Recht statt fremde Richter (Selbstbestimmungsinitiative)” [Proposal No. 624, Preliminary Official Results: Popular Initiative of Aug. 12, 2016 “Swiss Law Instead of Foreign Judges (Self-Determination Initiative)”], Nov. 25, 2018, Swiss Federal Chancellery website.) The initiative would have amended the Swiss Constitution to explicitly state that the Swiss Constitution is the supreme law of the land and has precedence over international law, with the exception of jus cogens (peremptory norms). In addition, the proposed text prohibited the Federation and Swiss cantons from entering into international agreements that “conflict” with the Constitution. In case of a conflict, they would have been obligated to either renegotiate the international agreement, so that it conformed to the Constitution, or terminate the agreement if necessary. (Bundesbeschluss über die Volksinitiative, “Schweizer Recht statt fremde Richter (Selbstbestimmungsinitiative)” [Federal Decision on the Popular Initiative, “Swiss Law Instead of Foreign Judges (Self-Determination Initiative)” (June 15, 2018), BUNDESBLATT [BBl.] [FEDERAL GAZETTE] 3497 (2018).)

Position of the Initiative Committee

The committee that submitted the popular initiative stated that the amendment of the Swiss Constitution was necessary to preserve direct democracy and provide legal certainty. (Bundesrat [Federal Council], Erläuterungen des Bundesrates – Volksabstimmung vom 25.11.2018 [Explanations of the Federal Council – Referendum of Nov. 25, 2018], at 7 (last visited Dec. 13, 2018).) It explained that international bodies and agencies constantly expand the scope of international agreements, with the result that politicians and Swiss courts refuse to implement Swiss referendums with reference to those international treaties. According to the committee, this leads to legal uncertainty. As examples, they list sentenced criminals who cannot be deported to their home country due to international law norms or the impossibility of independently managing migration due to the European Union (EU) Agreement on the Free Movement of Persons. (Id. at 22.)

Position of the Swiss Federal Council

Both the Swiss Federal Assembly (the Swiss Parliament) and the Federal Council (the Swiss government) recommended rejecting the initiative. (Bundesbeschluss art. 2; Erläuterungen des Bundesrates, supra, at 7.) The Federal Council argued that Switzerland already decides which international agreements to conclude, weighing the advantages and disadvantages, and that the people may participate in the decision-making process. Switzerland is free to renegotiate agreements, terminate them, or find alternative solutions, and should not be restricted in its options. (Erläuterungen des Bundesrates, supra, at 24.)

Furthermore, the Federal Council warned that accepting the initiative would threaten stability and legal certainty, because it could be understood as a call to breach international agreements. This would harm Switzerland’s reputation and undermine the trust that the other parties to the international agreement place in it. (Id.)

Lastly, the Federal Council stated that the initiative would weaken international human rights protection, in particular the guarantees codified in the European Convention on Human Rights (ECHR). (Id. at 7; Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] [ECHR], Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website.) In the opinion of the Federal Council, voting in favor of the initiative would mean that Switzerland would not be able to apply certain provisions of the ECHR and might prevent it from participating in the Council of Europe, which would be equivalent to terminating the ECHR. (Volksinitiative “Schweizer Recht statt fremde Richter (Selbstbestimmungsinitiative)” [Popular Initiative “Swiss Law Instead of Foreign Judges (Self-Determination Initiative)”], EIDGENÖSSISCHES JUSTIZ- UND POLIZEIDEPARTMENT [EJPD] [FEDERAL DEPARTMENT OF JUSTICE AND POLICE] [FDJP] (last updated Nov. 25, 2018).)