The relationship between international law and national law in switzerland

International law includes all legally binding rules that apply at the international level. In particular, international law has a regulating function between the subjects of international law on the basis of sovereign equality. Arguably, the Charter of the United Nations is one of the most important sources of positive law.

A norm of international law acquires legal force in Switzerland once it has been adopted. Upon adoption, the provisins become part of the norms applicable in Switzerland. Article 5(4) of the Swiss Federal Constitution state that the confederation and the cantons observe international law. Thus, in principle, international law takes precedence over national law. An absolute priority of international law over domestic law is however, rejected.

With regard to the direct or indirect applicability of international law provisions, a distinction can be made between the monistic and the dualistic system. In Switzerland, a norm of international law acquires legal force as soon as Switzerland has adopted this norm. This is the monistic system. In comparison, the dualistic system requires a further legal act that transposes the norm of international law into domestic law. This can include the legal norm first being transcribed into the respective national language. In Switzerland, such an act is not necessary and the norm in question acquires domestic validity as soon as the approval procedures have been fully completed.

Nevertheless, not every norm of international law is directly applicable in Switzerland. Whether a provision directly translates into rights and obligations which depend on the criteria established by the Federal Supreme Court. These state that a norm of international law is directly applicable if: it concerns the rights and obligations of individuals, it is justiciable and if it is addressed to the authorities applying the law and not to the legislator. A provision is justiciable if it is sufficiently concrete and clear so that an authority or a court can directly apply the norm. These three requirements must be met cumulatively for the provisions to have direct legal force in Switzerland.

The principle of pacta sunt servanda also applies in the context of international law. This principle states that treaties must be complied with. If Switzerland enters into a treaty with other subjects of international law, these agreements must in principle be complied with. The case law of the Federal Supreme Court confirms the principle of the primacy of international law over national law but provides for exceptions. This is the Schubert practice. Domestic law takes precedence over international law if parliament has deliberately enacted a law that is contrary to international law. However, there is another exception to the Schubert practice. According to this counter-exception, international human rights guarantees, such as those laid down in the European Convention of Human Rights (ECHR), always take precedence over federal law. This counter-exception is the so-called PKK practice.

If you have a concern regarding international legal issues or further questions, the lawyers of Teichmann International in St. Gallen, Zurich and Frauenfeld will be pleased to help you.