Miscellaneous (non-anglophone) Politics: Self-Determination

[mitsho]

Oh wow, I am only going to respond to a few of the points. But first I have to restate how very detailed the Swiss Constitution is. We change it up to 4 times per year after all!

No court is neutral, that is another fig leaf useful for the exercise of political power.

Courts are a necessary evil but people should know that decisions on whether or not to prosecute, interpretations of the law and so on are made by the people who happen to have a seat at the table and only those. This is ultimately a political thing: well-intended laws can easily be abused. To trust a foreign court with authority over a country's issues is obviously a political problem and a threat to its internal democratic decision-making.

These courts do not decide on political issues. Such a court is a big point of debate in the current negotiations on a framing treaty between the EU and Switzerland (currently on hold due to Brexit, thanks for that...), as we Swiss do not want that either. No, these courts decide on cases whether the a Swiss Policeman has used excessive force when deporting someone or whether a Swiss School can force Muslim school children to take part in sports class. It‘s individual issues which makes your further points kinda obsolete, since political conflicts are not a matter of court, but of politics (negotiations, threats, tariffs, wars - you know, what trump does).

So they can easily end up with a constitution in conflict with international treaties and apparently, the Swiss courts have politicians get away with just not enforcing those provisions in the constitution, which I think is quite unsatisfactory and needs to be addressed at one point.

The Swiss Federal Court isn't even allowed to interpret our constitution. Only Parliament has that power. That is one of three (and the only) big flaws in our system: No transparency in financial political contribution, the militia system and no constitutional jurisprudence.

Just giving automatic precedence to the constitutional clauses that are the result of initiatives is a bad idea in my opinion, because you might up with an idea that sounds reasonable and gets voted in, but later it is noticed that it is in violation of a large number of really important treaties, which now all have to be canceled (realistically, Switzerland is not in the position to renegotiate most of them) severely hurting the country in the process. If that had been known at the time of the vote, it might not have received the necessary majority.

I think the solution would be to allow initiatives to cancel international treaties only when they explicitly mention them. So the "mass immigration" initiative would have had to mention all the Bilateral Treaties with the EU. If a violation of an international treaty was found later, an automatic revote would need to be triggered that mentions this international treaty and strikes the offending passage from the constitution if it fails to get a majority.

Which is the true reason for this initiative. The SVP knew that they will not get a majority for abolishing these treaties so they try to get around it with such a logical sounding proposal leading to the same end. Thus, quoted for truth:

I find the initiative as exceedingly silly, but at least it's a chance to shut op the SVP and their "fremde Richter" talk for some time.

[...]

Funny thing is, this was a discussion during the campaign on "mass immigration" and the very same SVP claimed back then that this wouldn't affect or endanger the bilateral treaties. Polls showed that most people clearly would favour keeping the bilateral treaties if the two were at odds with each other.

I would also note for how devious the SVP is their current change in tone. If that is a sign of things to come (as the populist tone was an early trend for politicians like the AfD, Kurz, Le Pen and Wilders), then we will be looking at some truly magnificious language arobatics...

And @Cheetah I have nothing to add to your post. The incredible complexity of such a simple proposal always blows my mind.

 

[Yeekim]

I believe uppi has summed the problem up quite nicely.

In principle, this initiative has some merit. Politicians should be bound by the constitution and shouldn't be able to circumvent it by pointing to international law. For example, if the constitution guarantees freedom of religion, politicians shouldn't be able to make a treaty with the Vatican that demands closing all non-Catholic churches. So if a a treaty is in violation of the constitution, something needs to change, either the constitution or the treaty. Usually, this is not much of a problem, since a normal constitution rarely touches subjects that are in conflict with international treaties. And when there are clauses that contradict the ECHR, for example, it is probably a good idea to eliminate these clauses (which must and does happen in most other countries).

The problem is that the Swiss are prone to write everything in their constitution - apparently even cow horns - and that they do this by popular initiatives, which usually do not concern themselves all that much how this impacts international treaties. So they can easily end up with a constitution in conflict with international treaties and apparently, the Swiss courts have politicians get away with just not enforcing those provisions in the constitution, which I think is quite unsatisfactory and needs to be addressed at one point. The question is, how to handle this.

What consequences?

Like losing whatever rights/benefits the treaty you unilaterally withdrew from was providing you and facing reluctance to be entered into treaties with in the future?

 

[uppi]

The main reason for that is that there is no popular initiative for normal laws. The only way the people can bring anything in that the parliament doesn't want is by popular initiative; and those generate changes to the constitution.

I know and I think this is somewhat of a design flaw.

Funny thing is, this was a discussion during the campaign on "mass immigration" and the very same SVP claimed back then that this wouldn't affect or endanger the bilateral treaties. Polls showed that most people clearly would favour keeping the bilateral treaties if the two were at odds with each other.

Yeah, exactly. This is why I think treaties that are to be broken need to be explicitly mentioned or it doesn't count.

The Swiss Federal Court isn't even allowed to interpret our constitution. Only Parliament has that power. That is one of three (and the only) big flaws in our system: No transparency in financial political contribution, the militia system and no constitutional jurisprudence.

Interesting, I didn't know that. That alters the balance of powers quite a bit.

 

[Azem.Ocram]

I believe the constitution of a country to be the supreme law of the land (of its respective country) with how a country treats its citizens on its soil and treaties are there to facilitate international issues (tourism, migration, trade, etc). I firmly believe in direct democracy; I have more faith in direct democracy than laws passed by 2+ degrees of seperation of elected officials (such as elected by representatives, yes the US president is elected through 2 degrees of seperation given the Electoral College).

Therefore, I believe the Swiss government should respect the wishes of its citizens, especially if the result is a decisive true majority of eligible voters ir supermajority of votes.

 

[sophie]

I'll echo @mitsho 's point that doesn't seem to have been satisfactorily answered:

What is the point of international law if a nation can nullify it at any point for any reason?

 

[brennan]

The point of it, is that it is better than anarchy.

 

[sophie]

The point of it, is that it is better than anarchy.

I don't see how that follows if the law can be disregarded by the nation any time it suits the nation to do so.

 

[brennan]

Because in practice, most countries meet most of their treaty obligations most of the time, just like most citizens of countries follow their country's laws most of the time.

As a species, we are getting better at civilisation.

 

[PPQ_Purple]

I'll echo @mitsho 's point that doesn't seem to have been satisfactorily answered:

What is the point of international law if a nation can nullify it at any point for any reason?

And what is the alternative? Having treaties that once signed can newer ever ever be gotten out of no matter what?

 

[mitsho]

That doesn't sound very reassuring: Most of the time...

To answer again, the point of International Law is to protect the small from the arbitrariness of the strong. That includes btw. both small states like Switzerland which profit from that liberal* world order as well as individual citizens with regard to their Human Rights. Otherwise the US could do everything it wants. Well, it still does a lot of things...

*liberal as as in the academic field of International relations: a rule-based order as opposed to realist or structuralist conceptions.

 

[brennan]

It's a hell of a lot better than when Realism was the norm and people thought the exercise of power was a zero sum game.

 

[Yeekim]

I'll echo @mitsho 's point that doesn't seem to have been satisfactorily answered:

What is the point of international law if a nation can nullify it at any point for any reason?

The point? I really don't understand the question.
Of course any sovereign country CAN break any treaty at any time.
There are, however, consequences. Trust is a valuable commodity, after all.

 

[HoloDoc]

The point of it, is that it is better than anarchy.

Hedley Bull begs to differ.

Because in practice, most countries meet most of their treaty obligations most of the time, just like most citizens of countries follow their country's laws most of the time.

As a species, we are getting better at civilisation.

Most people wouldn't commit murder if it was suddenly possible to disregard that law either, despite what The Purge says. That's not the point.

The reason people obey the law is because there is a body which enforces that law; the state. They fear punishment. The same is true in international relations, which is why big states - or their BFFs; hi Israel! - tend to get away with flagrant legal violations, and small states don't. Unless Switzerland has a nuclear arsenal I'm unaware of, ignoring international law when it feels like it would be a rather stupid decision on its part.

It's a hell of a lot better than when Realism was the norm and people thought the exercise of power was a zero sum game.

80 years ago? Not all that relevant, is it?

 

[brennan]

It's totally relevant when its the scenario implicit in your comment, and in Owen's.

Neither people, nor states primarily obey the law because they fear enforcement, they do so because they understand that laws (treaties) are sensible and benefit everyone, because we (well most of us) have a built-in desire as social organisms to follow social norms and to cooperate as a species with our in-groups - and our in-group is currently becoming a global one.

 

[HoloDoc]

It's totally relevant when its the scenario implicit in your comment, and in Owen's.

Neither people, nor states primarily obey the law because they fear enforcement, they do so because they understand that laws (treaties) are sensible and benefit everyone, because we (well most of us) have a built-in desire as social organisms to follow social norms and to cooperate as a species with our in-groups - and our in-group is currently becoming a global one.

Realism died 80 years ago, and apparently didn't say what you thought it meant anyway. I mentioned Hedley Bull for a reason. He's a Neorealist theorist who wrote The Anarchic Society. Neorealist theory doesn't really have an issue with the concept of international law.

 

[brennan]

I can't help but notice some equivocation over the term 'anarchy' here.

 

[uppi]

I'll echo @mitsho 's point that doesn't seem to have been satisfactorily answered:

What is the point of international law if a nation can nullify it at any point for any reason?

In my opinion, the point is to codify what is acceptable behavior between countries. It defines a line and tells everyone that crossing this line will cause problems. That doesn't mean that states cannot cross that line, but it means that this includes a willful decision to offend a neighbor. The idea is to prevent conflict by pointing out where there will be conflict so no one accidentally provokes conflict.

A agreed upon border (a literal line) is essentially international law. If there is no border, then there will most likely be conflict when agents of each state try to enforce the law of their respective state on disputed territory. If you define the line that separates the states, everyone will know that the best way to avoid conflict is to stay on their side of the line. Everyone understands that crossing this line without authorization might cause conflict. Now any state can try to send forces across the line, but doing so signals that it wants conflict and can be met with the proper response.

 

[HoloDoc]

I can't help but notice some equivocation over the term 'anarchy' here.

I don't think so..?

 

[Thorgalaeg]

Interesting topic. I think that, in fact, there is not any international law in the proper sense of the word law, so a general mandatory norm which can be enforced by a superior authority. So, not such a thing as an ius cogens in international relations, it is law of the jungle basically. Countries will do as they please as long as they are strong enough to do so.

There have been attempts as international courts, UN and such, but in fact there is not an official list of mandatory international norms, nor a structure or authoriry able to enforce them beyond the will of individual countries, which is moved by national interests only.

Of course there are treaties countries have signed, which will be respected as long as observing it benefit the parties more than not doing so. But they are based in a contractual kind of relationship, a relationship between equals not a legal relationship where there is a superior authority. If such treaties include giving up some sovereignty, as the EU, it is always voluntarily, and only on aspects specifically listed in the treaties.

Not country, organization or international court can obligate other country how organize or work internally, there is not real obligation of being a democracy, or observing freedom of religion, or opinion, et cetera, or even observing the most basic human rights, neither a legal generally accepted way of enforcing it. When such things happens, it usually is nothing but a facade hiding spurious motivations, and it takes the form of a country or a group of countries taking economical or militar measures over other country purely because national interests, and against the will of the other half of the world. Old east vs west kind of situation.

There can not be an international legal frame for a country to meddle in other country sovereignty because sovereignty is a de facto thing, a product of the history of humanity, of wars won or lost and such, which is beyond law because predates it, laws emanates from sovereignty and are a product of it, not the other way around. Only as it was born, so in a de facto way, can sovereignty be modified. Be it voluntary or by force, but not because a law coming from a authority superior to said sovereignty, because not such thing can exist unless some almighty superior alien authority from some distant star land a day among us and tell us what is good and what is wrong beyond any subjectivity, cultural background, opinion, personal agenda or selfishness.

 

[brennan]

Realism died 80 years ago, and apparently didn't say what you thought it meant anyway

"Realists... believe that competition between the major powers in the international system is the normal state of affairs. ... Realists see the perpetual threat of conflict and war because states are trapped in a cycle of fear caused by lack of trust and competition to dominate the system."

C.f. Hedley Bull:

...he argues that despite the anarchical character of the international arena, it is characterised by the formation of not only a system of states, but a society of states. His requirements for an entity to be called a state are that it must claim sovereignty over (i) a group of people (ii) a defined territory, and that it must have a government. States form a system when they have a sufficient degree of interaction, and impact on each other's decisions, so as they "behave — at least in some measure — as parts of a whole." A system of states can exist without it also being a society of states. A society of states comes into existence "when a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions."

These are very different worldviews, one competitive and driven by lack of trust, and one involving rules and cooperation for the greater good.