Direct Democracy and Obligations Stemming from Public International Law in Conflict (German with an English Summary)

Abstract

The Swiss Federal Constitution (Swiss Fed. Const.) grants 100,000 eligible citizens the right to propose a constitutional amendment. Such proposal can be altered by neither the executive nor the legislative branch. Also, no form of prior judicial review of such initiatives exists. Yet, the parliament declares popular initiatives invalid should they fail to respect, inter alia “peremptory rules of international law”. As a consequence, popular initiatives can come into conflict with provisions of international law not being part of these “peremptory rules”. Solutions to such constitutional frictions have been fiercely debated in recent years. Most scholarly contributions propose either a broader interpretation of the term “peremptory rules of international law”, limiting the substantive scope of popular initiatives or call for a more robust role for courts in order to enforce the alleged absolute supremacy of international over domestic law. However, such proposals are hardly in line with a methodically sound interpretation of the present Constitution. The interplay of legislative history, text, constitutional structure and the ultimate purpose of the norm instead ask for an integrated interpretation of Swiss Fed. Const. art. 139 § 2. The constitutional model presented in this paper rationalizes the mitigation of frictions between international law and popular initiatives through a transparent and accountable multi-level procedure striving for practical concordance.

Keywords: direct democracy, popular initiative, jus cogens, public international law, Swiss Federal Constitutional Law

JEL Classification: K00, K19, K33, D72, D74, H1