In a globalised and interconnected world, international law regulates relations between states. Many everyday situations are regulated by international law without us being aware of it. For example, there are double taxation agreements, which ensure that a person does not have to pay tax on the same assets in two different countries. Or trade agreements that make it easier for countries to import and export goods. Or agreements on international mutual assistance and extradition, which make it possible to bring criminals to justice even when they flee to another country.
International law in everyday life (On the website of the Federal Departement of Foreign Affairs FDFA)
The fact that an international agreement exists does not mean that Switzerland is obliged to comply with it; this is only the case once the national ratification process has been completed. Important agreements must be approved by Parliament and are subject to a mandatory or optional referendum.
Accession to collective security organisations or supranational communities (e.g. the European Union) is subject to a mandatory referendum. For example, Switzerland’s accession to the European Economic Area was subject to a mandatory referendum and was rejected by the people and the cantons in 1992.
What does the Federal Constitution say?
The Federal Constitution requires the Confederation and the cantons to comply with international law. Normally international law takes precedence over national law. However, it is not clear from the Constitution that international law takes precedence over national law in every case. Under the Constitution, the courts must apply both international law and federal law. However, it has no express provision on what happens in the event of a conflict of law.
The legal precedent (the decisions) of the Federal Supreme Court
The Federal Supreme Court has developed the following rules based on the provisions of the Federal Constitution and general legal principles:
In the event of a conflict between a provision of international law that applies in Switzerland and a provision of national law, the Federal Supreme Court will first try to interpret and implement the national law provision in the spirit of the international law binding on Switzerland.
If this interpretation is not possible, the international law provision takes precedence.
However, if Parliament has deliberately enacted a law that contradicts international law, the federal law applies by way of exception.
An exception to this exception are the human rights that are guaranteed under international law (for example the right to family life); these always take precedence over national law.
Switzerland has ratified the ECHR and is therefore obliged to comply with its terms. If the rules of the ECHR are violated, the first step is to take action in the Swiss courts; the European Court of Human Rights in Strasbourg, whose decisions are binding on the parties, can only be used as a court of appeal.
The content of a popular initiative must comply with the mandatory provisions of international law, i.e. the principles of international law that the international community has recognised as inviolable. These provisions include, for example, the bans on torture, genocide and slavery. The Federal Assembly will declare an initiative wholly or partly invalid if it violates the mandatory provisions of international law.
On the other hand, an initiative that violates non-mandatory provisions of international law may be declared valid. Like all other popular initiatives, it is submitted to a vote of the people and the cantons.
If such an initiative is adopted, Parliament will try, as far as possible, to implement it in such a way that due account is taken of the initiative’s demands without Switzerland being in breach of its international obligations.