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Abstract:
The Swiss Constitution is unique in Europe in the way it organises international co-operation. Three features stand out: the very strong democratisation of foreign policy-making (through Parliament and through involvement of the people by virtue of referendums and popular initiatives), the relatively reluctant judicial review of measures based on international legal acts against the benchmark of fundamental rights, and, finally, the federal elements in conducting international relations. The Swiss case underscores both the desirability and the difficulties of compensatory constitutionalism as a normative programme. Switzerland, with its strong direct-democratic tradition, has started to react early to the impact of all types of global governance measures. However, major reforms, mainly with a view to strengthening the element of democratic control through domestic democratic institutions, have so far not succeeded in soothing popular aversion to ‘foreign’ and undemocratic international law and institutions. With regard to the second main element of contemporary constitutionalism, namely fundamental rights protection and judicial review, the reluctance of the Swiss Federal Tribunal to assume a role in protecting constitutional (or European) fundamental rights when implementing international law has led to conflicts with the ECHR. It is likely that the ECtHR, in compelling Switzerland to exercise such review, might in the end work more in favour of compensatory constitutionalism through the pressure it creates.
