Concluding remarks

More and more creativity is needed to argue away the fact that international law is increasingly of a binding and enforceable nature, even when it conflicts with con­stitutional norms.

Against that background, this chapter attempted a critical approach^[148] to the relationship between constitutional law and treaties. This approach distrusts the

Activism as defence 59 sophisticated arguments given by apex courts for granting primacy to treaties in specific cases while insisting on the principle of the supremacy of the constitution over treaty law in principle. My approach sets out from the presumption that courts have to give in to political realities and improved mechanisms of enforcement of international treaties and organise their jurisprudence around these constraints. The constraints work from three directions:

• from powerful treaty partners (like the EU in the case of Switzerland) or com­paratively effective enforcement mechanisms (like the one that backs the ECHR);

• from constitutions that are - due to their malleability - prone to create con­flicts with treaty law;

• from a restriction of constitutional review that creates both a risk of the vio­lation of a treaty holding an analogous rule as the constitution and an incen­tive for an apex court to circumvent the restriction by elevating the analogous treaty law above the constitution.

Counterintuitively, the practice of the Swiss Federal Court to deal with these constraints is activism as defence. It is activism, in the sense that it interferes with the decisions of other branches of government, namely with the constitutional power, the people and the Cantons. However, it is defensive activism in the sense that its aim is not (only) to enhance the power of the judiciary relative to other state powers, but to reduce the otherwise large friction surface between constitu­tional and international treaty law by granting supremacy to the treaty law.

What does the Swiss government actually mean when it insists that a fixed and inflexible ranking of domestic and international law is to be avoided?^[149] It means that some treaties can be violated without major consequences (and that it wants to reserve itself the possibility to violate those treaties) whilst violating others has become very risky.^[150] It has been argued that keeping the possibility of an emergency break open is a precondition for constitutions to be opened up towards interna­tional law in the first place.^[151] In some cases, the ‘nuclear option’^[152] is too explosive, but in others, it can be risked and therefore the possibility of treaty violation has to be kept open. Which treaties fall into the group ‘too nuclear’, and which ones in the group ‘breakable’, is left for an activist apex court to decide. In this particular sense, therefore, it is overly reductionist to state that supremacy is a ‘formal principle - blind for substance and effect’.^[153] While the substance is, in the Swiss cases, the legitimacy given for the supremacy of some treaties, the effect of their otherwise possible violation is at least as strong an explanatory factor.

The problem can be stated as one of the relative importance of two constitutional principles, the principle of the rule of law and the principle of democracy.^[154] In this

light, it becomes clear that courts, when applying the constitution, have to com­pensate with an overreliance on the principle of the rule of law where the political process limits itself almost entirely on (a questionable understanding of) ¹ the principle of democracy. Put differently: the more the constitution stresses the supremacy of its constituent power, the more the mitigating activism of an apex court - who must deal with the frictions thus produced - is needed.

101 It is a questionable understanding because it reduces democracy to majoritarian pro­cess of decision-making, neglecting the background conditions for such a process to function, such as basic rights, viable protection of minorities and an independent judiciary.