Switzerland: ICJ and ICJ-Switzerland’s position on the “self-determination initiative” referendum

The ICJ and the Swiss Section of the ICJ called today on Swiss people to seriously consider the adverse implications, if adopted, of the popular initiative called the “Swiss law instead of foreign judges – initiative for self-determination” by its proponents. On 25 November 2018, Swiss citizens will be called to vote on this initiative.

The campaign against the initiative has identified it as an “anti-human rights” referendum.

“The initiative, if approved, would have the effect of making it very difficult for people in Switzerland to access Swiss courts to vindicate their human rights,” said Massimo Frigo, ICJ Senior Legal Adviser.

“Swiss people would lose important defences against abuses by the State or private entities,” he added.

Unlike the title suggests the scope of the initiative is directed against international law in general (except for very few existing peremptory norms) which includes international multilateral treaties or bilateral commercial and administrative agreements.

The initiative would therefore fly in the fact of a fundamental legal principle essential to the rule of law, namely that individual States cannot use their national arrangements as an excuse to avoid their international legal obligations.

“Switzerland, as home to numerous international law-making institutions, has a long and distinguished history of championing international law. Adoption of this initiative would be a blow to the country’s reputation and leadership in this area,” said Massimo Frigo.

“The role accorded to international law by the Swiss Constitution and the jurisprudence of the Swiss Supreme Court is essential to uphold reliability of Switzerland as party to international treaties, its role as central actor and generator in many fields of law including international trade, but also legal certainty in Switzerland”, said Professor Marco Sassoli, board member of the Swiss Section of the ICJ and ICJ Commissioner.

“Much of the economic and diplomatic success of Switzerland is based on its faithful adherence and promotion of international law. Essential Swiss values such as its neutrality or its commitment to the protection of war victims are based upon international law,” said Professor Sassoli.

Contrary to its title the initiative is not directed against “foreign judges” but against the practice of Swiss judges, those of the Swiss Federal Supreme Court, and neglects that the self-determination of peoples leads to their direct submission to international law and that the conclusion of treaties is an expression of and not contrary to the sovereignty of the State.

The text of this initiative if approved could lead to the erosion of primacy of international law among the sources of law in Switzerland.

The ICJ and ICJ-Swiss Section join the several NGOs, trade unions, economic actors, political parties and people of Switzerland that want to secure their rights and those of everyone in Switzerland and appeal to the voters before casting their vote to seriously consider the above arguments and not to decide based upon mere slogans such as “self-determination”, “democracy” or “foreign judges”.

Massimo Frigo, ICJ Senior Legal Adviser, t: +41 22 979 38 05 ; e: massimo.frigo(a)icj.org

PDF available in Italian: Switzerland-25 November Referendum-News-Press Release-2018-ITA

PDF available in German: Switzerland-25 November Referendum-News-Press Release-2018-GER

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