Is Swiss sovereignty being eroded by foreign judges? The promoters of the “Self-Determination Initiative” argue that Switzerland’s constitution and its laws should take precedence over international treaties. The People’s Party targets the bilateral treaties with the EU and the European Court of Justice in particular, according to political experts. Opponents of the initiative say the rightwing proposal would undermine Switzerland’s international reputation and its role as a reliable trading partner, as well as deal a blow to human rights.
The question of primacy between national and international law has been simmering for years in Switzerland and elsewhere. Human rights are of course international. We use the terminology that they are universal. This is obviously somewhat inconvenient for the government of nation-states, who have traditionally claimed absolute power over their citizens. The extent to which we have international human rights, or a court of international human rights, is necessarily going to interfere with the kind of claims that a national government can make. Additionally, these rights may be inconvenient in relation to what a nation state might intend to do. These rules and standards bestow upon the nation-state — one of the major violators of human rights — the responsibility of protecting human rights. It is called the “paradox of human rights”. International human rights rely on the nation-states to put rights into effect. And yet nation-states are often reluctant to countenance human rights because those human rights will necessarily put a limitation to the kind of power they have as national governments; their state sovereignty. These themes run through all human rights law. They run through the European Convention on Human Rights as much as through the Universal Declaration of Human Rights by the United Nations, or any other body of human rights.
It is worth stressing that with the European Convention on Human Rights we are looking at a system where individual petitions can be submitted to a court. As a citizen, I can take a case to the European Court of Human Rights, and the court may award remedies. Hoffman and Rowe (2010) argue that the Convention was an extremely radical innovation. Never before has there been a system of international law which holds states accountable to some superior court in respect of actions against their own citizens. Previous international courts and tribunals were constituted solely to settle disputes between states, or in the case of the Nuremberg tribunal, to try individuals for their own criminal responsibility. Coming back to the so-called Swiss “Self-Determination Initiative”: if my government violates my human rights and has no more obligation to protect them, where can I go?
Image credits: Stan Wayman, extracted from IPTC Photo
[Hoffman, D., & Rowe, J. J. (2010) Human Rights in the UK: An Introduction to the Human Rights Act 1998, Pearson Education]