Stay adaptable for real needs

by Dr iur. Richard Wengle, lawyer, Richterswil, Switzerland

International treaties have two massive drawbacks compared to internal legislation:

1.    In practice, they can partly only under very difficult conditions and partly not at all be adapted to changed circumstances.

2.    Where international committees are mandated with adaptation, treaties do not seldom get completely out of hand.

Flexibility as competitive advantage

We all know: The world changes and in fact rapidly. Those who cannot adapt flexibly and in time will fail. That is also true for states. Who remains flexible has massive advantages.

How flexible are our laws?

1.    For the adaptation of our purely Swiss internal rules one legislative process is sufficient, that is our own.

2.    In case we want to adapt a treaty with a foreign state to our needs, a second process adds to our internal one, namely the legislative process of the treaty partner. This has two negative consequences:

•    If the adaptation proposal appears negative for the treaty partner, there will be no adaptation to our needs.

•    If he finds the proposal positive in principle he will demand counterclaims; furthermore two legislatives are involved, and it is not seldom that the issue might be misused for political campaigns (like the tax quarrel with Germany shows).

International treaties with one other state are more complicated, but allow at least adaptations at minimum limit.

3.    If we want to adapt a bilateral treaty with the EU to changed needs (for instance the Schengen treaty) the adaptation obstacles will multiply. Not only must the EU-administration be persuaded, the EU-commission, perhaps the EU-parliament, but also a qualified majority of the 27 EU-member states has to consent. The process is so long, unclear and non-transparent that an adaptation to changed needs seems to be nearly impossible.

4.    Worst of all are multilateral international Conventions. An adaptation to changed needs is politically and practically impossible. Rules of multinational treaties are carved in stone.

For all these reasons it becomes clear: International treaties make a juridical status permanent and impede or prevent later adaptation to changed needs.
Is inflexibility a rare, unimportant, a minimal problem? No.

International treaties are too numerous

In our federal legislation they will fill more pages than our internal Swiss law pretty soon. Thus in 50 percent of cases, adaptations to changed circumstances are impeded or impossible.

We must put an end to this situation. An international treaty should no longer be signed for every small matter. Joining for the sake of mere participation must stop.

If international treaties must be – according to the initiative – presented to the sovereign, the Federal Council must prove a considerable advantage for Switzerland in case of each international treaty.

So-called dynamic treaties

There are international committees entrusted with adaptations. We signed , e.g. the European Convention on Human Rights, to prevent killings, torture and arbitrary arrests. But what does the Court of Human Rights do instead? It deals with photographs of princess Caroline of Monaco, protects an association serving the purpose of illegal squatting of buildings and orders insurance companies to be obliged to pay for gender reassignments. That was definitely never the intention. An attempt to lead the Court back to its kernel competences failed miserably not long ago.

Does an international regulation not serve the interests of the Great Powers, they simply ignore it. The USA simply say “no” to further financial commitments to the International Monetary Fund (IMF). And what about us?

There would never have been a consent to joining the IMF, had the sovereign known that two years ago 16,000 millions and this year 10,000 millions of obligations had to be fulfilled. And how many billions next year? With this money we could refurbish all of our social services.

He, who believes that with piling up IMF debts on top of the old state debts one could overcome the European debt crisis is barking up the wrong tree.
Here plebiscites are obligatory. Let us stop this galloping nonsense with a Yes to the initiative.
The initiative

•    sharpens the view for the disadvantages of the inflexibility that each international commitment implies.

•    prevents international treaties that do not have a considerable advantage for Switzerland.

•    prevents exorbitant obligations by circumvention of the plebiscite.

Also for these reasons a Yes for the initiative!