What Price for Self-Determination?

The Swiss are having a referendum on the 25th November. On its own, that's not exactly news to an outsider - the Swiss are famous for holding a lot of referendums. The SVP sponsored Self Determination Initiative is particularly noteworthy though, because of the impacts it would have on Switzerland's relationship with the outside world. The full name of the proposed law indicates the core of the proposal. In English, it translates to 'Swiss Law instead of Foreign Judges (Self Determination Initiative)'. Its purpose is to make sure that Swiss law is preeminent over international treaties. Any treaties that conflict with the Swiss constitution would need to be revised or cancelled. Treaties that have been approved by a referendum are exempt from this, as are agreements that are mandatory under international law.

To an outsider, the SVP proposal sounds relatively unremarkable. Few countries allow international law to override their constitutions. This is true even in the EU, where the principle that EU law overrides domestic law is well established and accepted by member states. Every major EU treaty change has been accompanied by a referendum in Ireland or other member states, precisely because implementation requires a constitutional amendment. EU laws have been appealed to the German Constitutional Court in the past, due to pressure groups or opposition parties wanting them to be blocked because they are contrary to the German Constitution.

However, the initiative has provoked a strong reaction from the cantonal and federal governments, who have produced a long list of treaties that they believe Switzerland would have to withdraw from if the measure is approved in November. This ranges from the EU Erasmus program to the European Convention on Human Rights. Their argument is that this would make Switzerland an unreliable partner to international agreements.

The domestic Swiss perception is that this proposal is targeted at one international agreement in particular - the European Convention on Human Rights (ECHR). The SVP have a long history of campaigning against the ECHR and have explicitly mentioned it in their justification for the proposal. This is a particularly emotive issue for the Swiss left because the ECHR is directly responsible for a number of equal rights laws that were passed in the early nineties. It's widely known that Switzerland was one of the last places in the world to give women the vote - the measure was blocked by some of the more socially Conservative cantons. It's less well known that the ECHR was the mechanism used to override the objectors. More recently the ECHR has also been used to push back against SVP proposals on immigration and criminal justice. The SVP see human right laws being used to block their policies, so want them scrapped. The right wing of the British Conservative Party have the same policy concerning the ECHR for the same reasons.

The core principle motivating both the SVP and the Conservative Party is that of sovereignty. This is the idea that the policies of national governments should be decided by the democratically elected leaders of that country. This was first established by the treaty of Westphalia in 1648, and has been at the centre of international law ever since. This is of special concern to the Swiss due to their history. Switzerland evolved from an alliance of local rulers wanting to protect themselves from external interference.

In recent decades, Sovereignty has been eroded by globalisation. An increasingly interconnected world requires frameworks for international cooperation and harmonisation of regulations for anything that crosses borders. Free trade, environmental regulation and criminal justice all require agreements between nations on common standards and how to share information. As such, these treaties are often highly technical in nature, covering the minutiae of their specialist subject. The existence of such agreements is rarely controversial. Everyone on all side of the political debate accepts that these agreements need to exist, even the SVP have produced a long list of subject matters which they think would not be covered by their self-determination law.

The problem is that nation states are no longer the only actors on the international stage, multi-national corporations, IGOs and NGOs have significant influence over international treaties and the actions of governments. Most people accept that agreements between governments require compromises, the problem is when those compromises appear designed to benefit a non-governmental actor, be this an IGO such as the EU or UN, or a multinational. This has led to a backlash in the west against large corporations, amid concerns they are undermining national sovereignty for their own benefit. The truth is that they are, but only because their home governments encourage them to do so. International leaders spend a lot of time trying to promote the interests of the leading businesses in their country - most state visits will be accompanied by a group of officials and business leaders trying to win trade and business deals from the host country. This is accepted as part of their job. The economic benefits of those deals are well understood. The same applies to free trade deals. Negotiators use the principle of comparative advantage to try gain access to foreign markets for their favoured industries.

There is now widespread concern that this is being pushed too far. Government attempts to promote their national champions are resulting in measures that are harmful to national sovereignty and consumer rights. The classic example of this is the Investor-state dispute settlement (ISDS) system designed to resolve disputes between governments and foreign businesses investing in countries as a result of free trade agreements. This was intended to ensure that companies had a mechanism to protect themselves from arbitrary expropriation of their local subsidiaries without compensation. However, they have also been used by businesses to challenge regulatory changes such as new environmental standards or social protections. This has led to protests and many countries declaring that they will not sign treaties that include an ISDS clause.

These kind of arbitration panels and international courts are common in all areas of international law as a mechanism to enforce human rights and safeguard treaties. The complaint from opponents is that they lack democratic legitimacy. In a democracy, the people are generally considered to be sovereign. Governments act in the name of the people, which means that so long as the right legal processes are followed, voters believe that the government has the final say on what the law of the land should be. Voters do reserve the right to challenge the actions of their government, and force them out of office or repeal unpopular laws. The concept that decisions made under international law or as a result of treaty obligations can't be overridden is poorly understood because people don't understand the reasons why.

Even the widely known concept of human rights legislation faces this challenge. People support human rights in general, but when it is used to push back against government legislation they like, they became hostile to the specific convention used as the basis of the judgement. In countries with a long democratic tradition such as Switzerland or the UK this is a particular problem. In these countries human rights laws are seen as unnecessary by a large section of the population because voters just can't conceive of their rights being violated by the authorities. Yet, even in these countries the ECHR still serves a useful purpose by providing a backstop to protect social undesirables and unpopular minorities from the tyranny of the majority.

Ultimately, the SVP do have a point. An awful lot of law is decided at international level, some of which can severely restrict government policies and the scope for politicians to act according to the demands of the electorate. Furthermore, the capacity of voters to amend or reject such agreements is frequently limited. This does pose a threat to democracy and popular sovereignty. Token gestures such as the Self Determination Initiative won’t do anything to help with the problem. Instead, it requires voters and domestic stakeholders to become more involved in the process of shaping international treaties, and it requires governments to be more transparent about agreements so that the democratic process can be used to shape them. This is one area where the EU are particularly good. Despite being a notoriously bureaucratic organisation, they also have a culture of transparency which allows draft directives to be published and debated in the open. This doesn't always work to popular benefit – but it does help.

Update:

The referendum on the Self Determination Initiative resulted in a landslide victory for the No camp, with 63% voting against. The measure was expected to face defeat, but the margin is higher than forecast