Does federal law trump state law

Political consequences of the SVP polemic against the European Court of Human Rights

The polemic that the Swiss People's Party (SVP) has been pursuing for years against the European Convention on Human Rights (ECHR) took on a new political quality in autumn 2013: The senseless course of confrontation casts its shadow on the political agenda of the Swiss parliament.

Advancing profiling

After the rumor had spread that the SVP would make Switzerland happy on August 1, 2013 with an initiative entitled “Land law before international law”, the FDP hastened to forestall the SVP “out of love for Switzerland” and publish the position paper “Better compatibility of national law and International law ».

In this paper, the FDP combines its rejection of the Federal Council proposal, which aims to achieve a better compatibility of popular initiatives with the applicable human rights, with a critical stance towards the dynamic case law of the European Court of Human Rights (ECHR). The FDP position paper then tries to redirect the SVP discourse “national law before international law” in a way that does not question Switzerland's membership in the European Convention on Human Rights (ECHR) as such. At the same time, however, the FDP takes up the central SVP concern of strengthening direct democratic legitimation as a criterion for ranking different areas of law.

The specific FDP proposals concentrate on a gradation of the legal rank of international agreements as well as the definition of a clear hierarchy between different layers of national law and international law according to their support in referendums. These proposals have now taken political form in a postulate of the FDP.

In addition, the FDP recommends that the federal government advocate reforms of the ECHR. The FDP is running open doors with this concern, however, because a reform process of the ECHR has been going on for years, not least initiated by Switzerland at the Interlaken Conference in 2010.

The international devil

On August 12th, the SVP published a position paper instead of the expected popular initiative. In it, she presents an analysis that places Switzerland's obligations under international law in sharpest contrast to the principles of direct democracy. This view is illustrated, among other things, with some selected judgments of the ECHR, which are intended to prove the politically undesirable consequences of the supposed predominance of the "foreign judges".

After international law has been painted on the wall as the devil, under the motto "How can Switzerland determine its own law again?" presents the solutions in the form of proposals for popular initiatives which, in all their variants, consist in establishing the primacy of national law over international law in the constitution. The threatening gesture is obvious.

This positioning, too, has meanwhile been transformed into a political initiative in the form of a parliamentary initiative by Heinz Brand; He would like to establish a clear priority of the Federal Constitution over international law (with the exception of “mandatory international law”).

Inconvenient ECHR judgments are being scandalized

Not only the SVP, but increasingly also the media and, in their wake, certain exponents of the middle-class bourgeois parties take individual uncomfortable, sometimes difficult to understand judgments of the ECHR as an opportunity to crack a broad side against the human rights protective wall of the European Convention on Human Rights.

Of course, judgments from Strasbourg are not sacrosanct; one can and should criticize them if one can bring strong arguments against a verdict into the field. But if, disregarding the importance of the ECHR for the European legal order, the individual judgment is taken for the whole and connected with the call for a termination of the ECHR, the criticism of the individual example tips into demagogy.

The SVP, which had already submitted an interpellation to terminate the ECHR in spring 2013, is in charge here as well. At least the Federal Council had given this request a clear rejection in its response.

National Council on course for confrontation

On March 20, 2014, the National Council decided to initiate a strictly verbatim implementation of the deportation initiative in the sense of the enforcement initiative. In doing so, the National Council is openly confronting fundamental legal provisions of the Federal Constitution and the ECHR.

Defending the obvious

Due to the systematic management of various public channels, the SVP slogan «Land law before international law» is gaining momentum. The resulting threat of being able to pull the trump card of a popular initiative of the same name out of the sleeve at any time seems to make a number of politicians of the central parties shy.

This negative spiral must be countered with arguments. The elementary basic and human rights must be defended against the politically motivated polemics. It should be clear to everyone: Anyone who wants to put “national law before international law” across the board is breaking the law at international level and dismantling fundamental rights at national level.

The SVP obviously also fails to recognize that the primacy of the ECHR results from state law itself (cf. Art. 122 BGG). For this reason, the primacy of the ECHR would remain, even if the BV stated that national law takes precedence over international law.