A fine Swiss model


An interesting referendum took place in Switzerland on “sovereignty”. In specific terms, the referendum was about the conflict, if any, between international treaties and international law with the constitution of the Swiss Confederation, and which set of legal norms enjoy priority.

In theory, this is really a classroom issue, not an actual one in the real world. Only few countries bother to remove any conflict between their organic law and binding international norms, including international treaties. In the real world, this has never been a real issue, as countries big and small, democratic or undemocratic, take in their stride any such conflict. In my 30-odd years of involvement in treaty bodies’ jurisprudence on human rights, this issue often arises, but by and large, the constitutions of states are taken for granted as enjoying precedence.

Most countries stipulate in their ratification process of human rights treaties that the treaty obligations enjoy priority over the laws of the country but not over the constitution. In theory, at least, treaties enjoy priority over laws and constitutions but the constitutional dimension is seldom pursued, except by a pious recommendation that lingering conflicts with the treaty provisions need to be rectified.
So why did Bern decide to undertake an expensive referendum to test an abstract legal situation, when in the real world it does not really exist? The Swiss exercise is meaningful, nevertheless, in testing the case of conflicts between treaties and the constitution of the country. The Swiss voted by a majority of 67 per cent for according precedence to international treaties and laws over their own constitution, with only 33 per cent voting otherwise. By so “saying”, Switzerland is setting a fine example for all nations to follow the Swiss model. The Swiss referendum is also raising the issue of conflicts between constitutions and international treaties by putting it on the front burner.
The big hurdle that remains is the fact that most articles of international human rights treaties are not so clear as to make them precise enough for rendering a meaningful examination on their conflicts, if any, with constitutions of nations. Human rights treaty bodies make it their business to interpret vague provisions of human rights treaties, so as to make them susceptible for comparison with organic laws of states. Yet, the problem does not end there. Dictum of the human rights treaty bodies is not universally viewed as binding on state members of treaties.

In the final analysis, it is the political will to observe, faithfully, treaty obligations or the absence, therefore, that counts most. Switzerland has demonstrated, by holding the referendum, that it enjoys that kind of political will and this is backed by the overwhelming majority support of the Swiss people. This makes Switzerland stand out among countries of the world as a true believer in international standards on the promotion and protection of human rights.




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