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The relationship between national and international law
An international norm approved by Switzerland automatically becomes part of Swiss law. In the hierarchy of legal norms, in principle international law takes precedence over national law. The Federal Constitution requires the Confederation and the cantons to comply with international law.
International law integrated into Swiss law
Once approved by Switzerland, an international legal norm becomes an integral part of Swiss law and must be applied by and complied with by all state organs. This is the distinctive feature of a monist system. In contrast to what would happen in a dualist system, there is no need to pass additional legislation, for example a specific act of parliament, for an international legal instrument to become part of Swiss law. An international legal provision which is binding upon Switzerland is automatically valid under national law.
This is why the Federal Council checks, prior to ratifying an international legal instrument, that its provisions comply with national law. If there is domestic political opposition to implementing certain provisions, Switzerland can, in principle, make a reservation.
The direct applicability of the norms of international law
The norms of international law do not all create rights and obligations directly. It may occasionally be necessary to adapt and define them. International law that is not directly applicable is most often of a programmatic nature, leaving its implementation to the national legislator.
The Federal Court has developed criteria for determining whether a provision of international law is directly applicable (see Federal Court Decision 124 III 90 or 129 II 249, p. 257):
- The provision must relate to the rights and obligations of the individual
- The provision must be justiciable, i.e. sufficiently concrete and clear to be applied to a specific legal case by an authority or court.
- The provision must be aimed at the authorities responsible for applying the law and not at legislatures
Precedence of international law over national law
The Federal government and the cantons are required by the Swiss Constitution to observe international law. However, the Constitution does not contain rules for cases of conflict between provisions of Swiss and international law. In principle, international law takes precedence. This arises from the obligation to perform treaties in good faith.
Article 5 of the Swiss Constitution (fr)
Article 26 of the Vienna Convention (fr)
According to the Federal Council’s Message on the Swiss Constitution, all state organs must ensure that their actions comply with Switzerland’s international obligations. In its latest findings, the Federal Court confirms without reservation the principle that international law takes precedence over national law (see Federal Court Decision 125 II 417, p. 424 s., 128 IV 201, p. 205 s. or Decision of 12 October 2012 (2C_828/2011) Consideration 5).