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What you need to know about the 'Swiss law first' referendum

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What you need to know about the 'Swiss law first' referendum
Campaign posters for and against the 'self-determination' initiative. Photo: The Local
18:52 CET+01:00
On November 25th Swiss voters will be casting their ballots in what is one of the country's most significant referendums in recent years: the so-called 'Swiss law not foreign judges' initiative. Here we take a look at the key issues.

What is the background to the initiative?

The initiative, also known as the ‘self-determination’ initiative’ (SDI) is backed by the right-wing Swiss People’s Party (SVP) and is part of an ongoing debate in Switzerland about the country’s relationship with the international community and the extent to which international law and international organizations like the the European Union affect Swiss sovereignty.

With the initiative, the SVP, which has a nationalist agenda and supports tighter controls on immigration, wants the role of international law in Switzerland to be greatly reduced so that the country has control over its own affairs.

It argues Switzerland’s adoption of international law is threatening the country’s unique system of direct democracy, where Swiss voters are sovereign and can put forward popular initiatives calling for changes to the constitution.

In recent years, the party has strongly criticised the government for failing to fully implement an SVP-led popular initiative against mass immigration which was backed by voters in 2014 because it would have contravened its free movement agreement with the EU.

The SVP has also accused the government of heavily watering down a 2010 popular initiative to deport foreigners guilty of serious criminals by giving judges discretionary powers.

The party says that the failure to fully implement these initiatives means Swiss freedom and independence are under threat. Many people in Switzerland share these views.

What are the arguments in favour of the initiative?

The Swiss People's Party party says the SDI would protect Switzerland’s system of direct democracy– which it argues is a cornerstone of the country’s success model – as well as create greater legal certainty, and help ensure Swiss freedom and independence.

The SVP also argues the initiative would put an end to the growing influence of international organisations (like the United Nations and the European Union) on Swiss law. In a document outlining why people should vote for the initiative, the party stress it would help the tie the hands of foreign judges at courts such as the European Court of Human Rights in Strasbourg.

What does the initiative entail?

Put simply, the initiative would see Swiss law always take precedence over international law.

The only exceptions would be what the constitution calls the “mandatory provisions of international law”. This is a legal grey area, but the committee behind the initiative has cited bans on slavery and torture as examples where international law would continue to take precedence.

How is this different from the current situation?

The initiative entails a shift in the hierarchy of international law and Swiss law – itself a topic of hot debate. Currently, international law takes precedence over Swiss law – at least in principle. The constitution states the federal government and the cantons must “respect international law”.

But because the constitution doesn’t outline a clear mechanism for how to settle disputes between the two, the Federal Court has plenty of elbow room when it comes to deciding which should take precedence in particular situations.

Under the terms of the SDI, however, Switzerland would be required to apply a strict mechanism to deal with conflicts between international law and the constitution. This would happen, for example, in cases where voters cast their ballots in favour of popular initiatives that contravene international law.

In such cases, Switzerland would have to try and renegotiate international treaties, and if this is not possible, it would have to pull out of them.

With Switzerland bound by some 5,000 international treaties, a ‘yes’ vote could potentially see the country face its own version of Brexit and facing years of negotiations and re-negotiations with its international partners.

Who opposes the initiative?

In short: almost everyone. The SVP is the only political party to support the initiative: other parties in Switzerland have actually taken a united stand against the SDI, which Justice Minister Simonetta Sommaruga recently described as a “dangerous experiment”.

The Swiss parliament and the Swiss government have both come out strongly against the proposal. The government says it threatens the stability, prosperity and credibility of Switzerland as an international partner.

“Switzerland is a small country which has everything to gain by respecting its engagements written in international law,” said the government in a statement last year.

The government at the time noted the initiative could threaten human rights, with Switzerland’s ability to systematically implement the European Convention on Human Rights placed at risk.

It also argues that Switzerland has plenty of room to manoeuvre in terms of how and when it adopts international law, with voters having wide-ranging participation in such decisions. (The SVP has countered this by saying that in recent years international law has had "an absolute and automatic primacy over domestic law".)

A Swiss government video outlining the key details of the initiative (in French).

According to the government, the SDI would actually strip Switzerland of a lot of its flexibility in terms of lawmaking, and would lock the country into a rigid and dangerous mechanism. 

Among the other opponents to the SDI is a group of 120 NGOs known as the Civil Society Alliance which argues the initiative is actually an attempt to deceive the Swiss electorate. The group argues the SVP has wants Switzerland to pull out of the European Convention on Human Rights so that popular initiatives that discriminate against minorities can be rolled out without legal obstacles.

They have described the popular initiative as a “Trojan horse [that] would be released into our constitution, opening gates and doors for arbitrariness and discrimination”.

Also opposing the initiative is the big business lobby economiesuisse which has stated the initiative is an attack on legal certainty and on the ability of Swiss businesses to conduct international trade because it puts in jeopardy hundreds of international treaties that safeguard those firms access to foreign markets.

Is the initiative going to be successful at the polls?

At this stage, it seems unlikely. A recent survey by Bern-based gfs found 39 percent of Swiss voters were either in favour or strongly in favour of the self-determination initiative while 55 percent were against or strongly against it.

However, the issues behind the referendum will not go away any time soon.

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