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Swiss voters have resoundingly rejected a referendum calling for the Swiss Constitution to take precedence over international treaties and law.
Two-thirds (66.2%) of voters in the November 25 referendum opposed the "self-determination" initiative, put forward by the eurosceptic Swiss People's Party (Schweizerische Volkspartei, SVP), the largest party in the Swiss parliament.
SVP leaders had argued that the new law was necessary to safeguard national sovereignty from further encroachment by supranational organizations such as the European Union and the United Nations.
The Swiss government countered that the proposal would undermine Switzerland's economic stability as it would require Bern to amend existing bilateral agreements with the EU, the country's largest trade partner, to bring them into compliance with the Swiss Constitution.
The proposal's defeat comes ahead of pending decisions by the Swiss government over whether to sign a wide-ranging EU "framework agreement," and a controversial UN "migration pact."
Switzerland is not a member of the EU, but has gained access to the European single market by signing a series of bilateral agreements in which Switzerland has given away large slices of its national sovereignty, including control over boundaries and immigration. In all, Switzerland has more than 120 bilateral agreements that govern its relations with the European Union.
The EU is now pressing Switzerland to sign a comprehensive "framework agreement" that would require Bern to cede even more sovereignty to Brussels. The EU, for instance, wants Switzerland to subject itself to the jurisdiction of the European Court of Justice (ECJ). If Switzerland complies with the demand, the ECJ would outrank the Swiss Supreme Court as the final arbiter of legal disputes in the country.
The EU has now increased the pressure by resorting to blackmail: Brussels is making its continued recognition of Switzerland's SIX Swiss Exchange, the fourth-largest stock market in Europe, contingent on Swiss acceptance of the framework agreement. Switzerland's current stock exchange agreement with the EU expires at the end of December; failure to renew it would deprive the Swiss exchange of EU-based business that generates more than half its volume.
Swiss leaders have said they doubt that any proposed treaty could win the backing of parliament or voters in a referendum under the Swiss system of direct democracy.
Bloomberg News encapsulated the dilemma facing Switzerland:
"The Swiss government now faces the prospect of choosing between two evils: agree to the EU framework deal only to have it torpedoed by voters in a referendum, or renege on the treaty and risk reprisals from Brussels that hurt the economy."
A key point of contention in Swiss-EU relations revolves around a long-running dispute over the EU's "Agreement on the Free Movement of Persons." The agreement, which Switzerland signed in June 1999, allows EU citizens to live and work in Switzerland, and vice versa. The original agreement applied to 15 EU member states, but with the enlargement of the European Union in 2004, 2007 and 2013, the agreement now applies to 28 EU member states, including the poorer countries in Eastern Europe.
In an effort to curb the increasing amount of crime associated with immigration, Swiss voters in November 2010 approved a referendum to deport foreigners who commit serious crimes in Switzerland.
The EU warned that deporting EU citizens for any reason would be a violation of Switzerland's treaty obligations regarding the free movement of persons. The Swiss parliament, seeking to avoid economic reprisals, eventually passed a watered-down law aimed at reconciling the will of Swiss voters with Switzerland's obligations under EU law.
SVP MP Adrian Amstutz argued that in its zeal to please the EU, the Swiss parliament's new deportation law would prove to be worthless in practice:
"According to the parliament's implementation of the law for the deportation initiative, courts would have the possibility to put aside a deportation — even in the case of the most serious offenses — via the hardship clause. Current legal practices show that judges would frequently make use of this option. As a consequence, hardly any foreign criminals would be deported."
In February 2014, Swiss voters approved a referendum to reintroduce quotas for immigration from EU countries. Proponents of the quotas argued that foreign workers were driving down wages and increasing demand for housing, health, education and transport.
The EU warned that any restrictions on access to the Swiss labor market would violate the agreement on the freedom of movement of persons, and threatened "serious consequences." The Swiss parliament again yielded to EU pressure, this time by passing watered-down restrictions on immigration.
Another flashpoint in bilateral relations involves the European Court of Human Rights (ECHR). In November 2014, the ECHR prohibited Switzerland from sending Afghan asylum seekers back to Italy. Although Italian authorities had agreed to take them back, the ECHR ruled that doing so would violate Article 3 of the European Convention on Human Rights (Prohibition of Inhuman and Degrading Treatments) because of overcrowding and poor conditions at Italian asylum facilities.
SVP leader Christoph Blocher criticized the ECHR for ignoring the principle of subsidiarity, which holds that decisions should be taken, if possible, at the local level:
"Don't we trust federal judges to decide on human rights issues? We had those principles written into our constitution well before the ECHR. The problem with the convention is that it decides things from far away. The consequences, what happens next, don't concern the judges."
Martin Schubarth, a former Swiss federal judge, echoed those concerns:
"It is unacceptable that a small panel of [ECHR] judges, who generally lack the expert knowledge about the [Swiss] legislative authority, handle matters in an undemocratic way instead of the [Swiss] authority itself."
In February 2018, Swiss public television SRF reported that the European Commission had presented the Swiss government with a 19-page "sin list" of Swiss violations of EU law.
Switzerland's ongoing disputes with the EU, and the concomitant erosion of Swiss sovereignty, prompted the SVP to sponsor the referendum to ensure the precedence of Swiss law.
The sponsor of the initiative, SVP MP Hans-Ueli Vogt, expressed surprise at the scale of the defeat — a rare setback for the SVP, one of the most successful anti-EU parties in Europe — but said he would continue to fight against "creeping EU accession."
The measure was opposed by a coalition of Swiss business groups, which convincingly argued that the referendum was a question of economics and access to international markets for the export-dependent country. "Ultimately, it is about maintaining prosperity in Switzerland and keeping the companies and jobs here," said Monika Rühl, director of the business group Economiesuisse.
Some Swiss newspapers described result of the referendum as a "fiasco" and a "serious setback" for the SVP. Others were more circumspect. "The object of the initiative was very legitimate: it was about national sovereignty and its relationship with international law in a globalized world," noted La Liberté, a paper based in Fribourg. The Geneva-based L'Express added:
"The SVP suffered a defeat because it failed to mobilize and convince beyond its base. The voters wanted a pragmatic assessment between international law and national law. Depending on the situation, one or the other should apply. The definitive prevalence of one over the other, on the other hand, is not shared by the majority."
La Tribune de Genève wrote: "What the Swiss have supported this Sunday is a pragmatic, negotiated, piecemeal approach to our national interests. Voting is in no way a declaration of love to a European Union in crisis."
The Swiss People's Party said that despite the loss, the referendum "brought a welcome and suppressed debate about the relationship between Swiss law and international law and the importance of direct democracy." The SVP added that its fight for Swiss self-determination would continue:
"First of all, the SVP demands that Switzerland not join the UN migration pact. We are counting on the pledges of the representatives of the other parties, that at the very least it is presented to the parliament with the aim of holding a referendum on the matter, so that Swiss voters can have their say about such a far-reaching pact.
"Secondly, the SVP rejects a one-sided submission to EU institutions, aimed at establishing an institutional connection of Switzerland to the EU apparatus, with a dynamic EU legal takeover and, ultimately, the subordination of Switzerland to the EU Court of Justice. A dynamic adoption of EU law would be another massive erosion of our direct democracy."
Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute.