BERN The question of whether Swiss law should have priority over international law is expected to be decided when the Council of States convenes its next session either this summer or early fall. The issue is whether to go along with suggestions by the Swiss People’s Party (UDC) and others that Swiss law should stand above international treaties ratified by Switzerland, even if that would violate international human rights law.
A study by the Swiss Centre for Expertise in Human rights (SCHR) examined the legal ramifications for Swiss relations with the Council of Europe if Swiss law were to prevail over the European Convention on Human Rights (ECHR). The study was commissioned by Swiss human rights organizations. Hanging in the balance is not only the question of whether Switzerland has the right to cherry-pick international conventions, but whether it can remain a Council of Europe member by abrogating the ECHR treaty. Both scenarios would not only affect negatively the protection of human rights in Switzerland, but in Europe as well.
One of the study’s authors, Bern’s Stefan Schlegel, said they examined what would happen if such measures were adopted. “Our main finding was that it is not possible for Switzerland to have a sort of a la carte membership with the ECHR – to be part of the Council of Europe, but not accept all its requirements. If Switzerland should decide that the law of the land has priority over the ECHR, the result would be prolonged conflict with the Council of Europe, which could result in Switzerland exiting the Council.”
The Council of Europe was created in 1949 to further peace, rule of law, democracy and human rights in Europe and has a larger membership  than the European Union. The EU, which grew out of the European Economic Community in the 1950s, today has a membership of 28 countries.
“One reason we have international treaties is that a lot of the world’s problems cross borders and cannot be solved by one nation alone, but must be resolved by cooperating with other states,” said Schlegel. “This only works if states can trust each other and know their commitments will not be broken in favor of domestic law. If Switzerland were to weaken the ECHR, this in turn would weaken human rights protection in other member states, which may not have their own strict human rights laws.” he said.
Headed by noted international human rights professor Walter Kalin, also from Bern, the study was conducted in order to sensitize politicians, who are either unaware, or not interested, in the legal consequences. For the authors it is not an issue of Left vs. Right, but rather the fact that the electorate is often uninformed of the consequences of a vote that goes against a treaty their government has signed. Regardless, a national referendum would be required to establish the supremacy of Swiss law over international law.
The Federal Parliament is currently dealing with various motions calling for national law to have primacy over international law. A first test will be the initiative to expel foreign criminals, which the Council of States, the second chamber of Parliament, will debate during the summer session. In March, the National Council was unable to reconcile the popular will of the electorate with ECHR exigencies and decided to implement the initiative according to the intentions of the UDC. Angela Huber of the Swiss Centre of Human rights said: “We now need the Federal Parliament to act responsibly and in Switzerland’s best interests.”