The Engagement of Domestic Courts with International Law: Comparative Perspectives
André Nollkaemper (ed.) et al.
Published:
2024
Online ISBN:
9780191954894
Print ISBN:
9780192864185
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The Engagement of Domestic Courts with International Law: Comparative Perspectives
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Eva Maria Belser,
Rekha Oleschak-Pillai
Pages
271–290
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Published:
May 2024
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Belser, Eva Maria, and Rekha Oleschak-Pillai, 'Engagement of Swiss Courts with International Law', in André Nollkaemper, and others (eds), The Engagement of Domestic Courts with International Law: Comparative Perspectives, International Law and Domestic Legal Orders (2024; online edn, Oxford Academic), https://doi.org/10.1093/law/9780192864185.003.0014, accessed 7 Aug. 2024.
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Abstract
Judicial engagement with international law in Switzerland is much debated, both in law and politics. The monist Swiss system easily receives international norms, yet the Federal Supreme Court’s strategies in resolving tensions between international and domestic norms are ambiguous and regularly contested, particularly when domestic norms adopted on the basis of direct democracy clash with internationally (and nationally) guaranteed human rights. The chapter outlines the various strategies Swiss authorities adopt to avoid judicial engagement with international law, as well as strategies used by courts when engagement is inevitable. These include various kinds of alignment or avoidance, making judicial outcomes often unpredictable. Engaging with international law, especially the European Convention on Human Rights, has enabled the Federal Supreme Court to review federal acts, practising ‘backdoor constitutional review’ in human rights cases; however, domestic courts have not used their power consistently, and in some instances have failed to uphold their counter-majoritarian role.
Keywords: Human rights
Subject
Human Rights and Immigration Human Rights Private International Law and Conflict of Laws Sources, Foundations and Principles of International Law International Courts and Tribunals
Series
International Law and Domestic Legal Orders
Collection: Oxford Scholarly Authorities on International Law
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