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  #101  
Old 05.11.2018, 15:04
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Re: SVP self-determination initiative

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Art. 5/4:

'The Confederation and the Cantons shall respect international law.'

Art. 190:

'The Federal Supreme Court and the other judicial authorities apply the federal acts and international law.'

I can see how someone might think there is a contradiction here, but upon deeper inspection I don't think there is any.

Art. 5/4, to my understanding, is mandating the Confederation and Cantons to respect international law. This does not mean, to me, that any and all international rules/agreements/treaties in existence must be applied/adhered to by Switzerland, but rather that any international rules/agreements/treaties which Switzerland is a signatory to must be respected by Switzerland.

Art. 190, to my understanding, is mandating the Swiss judiciary to apply to their determinations and proceedings the international law which Switzerland are signatories to.

So here is how I see this being laid out:

1. The Swiss people decide that the Swiss Constitution is the highest authority in Switzerland as pertains to law.
2. Following from the above, all domestic and international contracts must be in accordance with the Swiss Constitution.
3. Art. 5/4:
'The Confederation and the Cantons shall respect international law.'
4. Art. 190:
'The Federal Supreme Court and the other judicial authorities apply the federal acts and international law.'

I honestly do not see any contradiction there.
Now you are either picking pieces out of context like a maniac Christian evangelical or are unable to grasp what is written. How about the second part of Art.5 Abs 4 "The Federal Constitution takes precedence over international law, subject to the mandatory provisions of international law."

About Art 56a/2 of the initiative. We already established that it is legally possible and constitutional sound the Swiss acts can contradict the constitution. Art. 141/1/d/3 of the constitution also gives the people the same right as for acts in Art. 141/1/d for international treaties which have legal implications. The problem with the SBI is that it makes no distinction of order of implementation. Unlike the Schubert-Praxis which says newer law trumps older treaties, with the SBI older law would also trump newer treaties. But if the people can veto treaties just like acts, doesn't the people want that newer legislation should take precedence?
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  #102  
Old 05.11.2018, 15:48
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Re: SVP self-determination initiative

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That only works up to a point.
What doesn't?

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If you agree that HR are universally valid, there's a problem once they're withdrawn from any individual or group, whatever the criteria for the withdrawal may happen to be.
I do agree that HR's are universal, and as such I agree that it's a problem if anyone in the world has their HR's violated.

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That's where superior law comes handy.
How so? I am Swiss. I live in my country. My HR's are protected by our Constitution. Everyone's HR's in Switzerland are protected by our Constitution.

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And yes, from that POV the HR agreement is the only means guaranteed to apply to, and therefore protect, everybody.
Aren't there only 47 signatory states to the ECHR? That's not 'everybody' if we are speaking in a 'universal' context.
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  #103  
Old 05.11.2018, 15:52
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Re: SVP self-determination initiative

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How so? I am Swiss. I live in my country. My HR's are protected by our Constitution. Everyone's HR's in Switzerland are protected by our Constitution.
That's now. They're not written in stone, as you know this can be changed relatively easily if it's a constitutional matter only.
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Aren't there only 47 signatory states to the ECHR? That's not 'everybody' if we are speaking in a 'universal' context.
Where do I make such a claim? National law is usually limited the respective country.
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  #104  
Old 05.11.2018, 17:30
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Re: SVP self-determination initiative

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Now you are either picking pieces out of context like a maniac Christian evangelical or are unable to grasp what is written.
Whoa there. There's no need to start name-calling. I would rather we keep the discussion civil and without personal attacks.
Maybe I misunderstood you, or maybe you were not clear enough in what you thought I should be comparing.
I compared the SBI text of Art. 56a/2 against the existing Art. 5/4 and 190. I thought this is what you meant when you wrote:

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Then you can start pondering about the proposed Art. 56a Abs. 2, how a cluster feck of a contradiction Art. 5 and Art. 190 are.
Were you in fact saying that I should compare the SBI text of Art. 56a/2 against the SBI text of Art. 5/4 and 190?

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How about the second part of Art.5 Abs 4 "The Federal Constitution takes precedence over international law, subject to the mandatory provisions of international law."
I don't know exactly. It seems on first glance to be contradictory. I have been doing some digging and inquiring about this. So far I haven't found much more than it referring to 'mandatory provisions such as the prohibition of torture'. https://www.bernerzeitung.ch/schweiz...story/13092133

But I'll keep looking.

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About Art 56a/2 of the initiative. We already established that it is legally possible and constitutional sound the Swiss acts can contradict the constitution.
Sorry, but I'm not 100% clear on this.
Federal Acts (I take it this is what you are referring to with 'Swiss acts') are passed by the Federal Assembly. Ok, But that such an Act can contradict the Swiss Constitution ... that I don't recall having been verified.

Let's use an example - Art 18 The freedom to use any language is guaranteed.

Is it technically possible for the Federal Assembly to pass an Act (law) such as the following: It is a criminal offence for Russian to be spoken by anyone in Switzerland.

If the answer is Yes, then there is still the 100 days in which the Swiss electorate could have their say. Correct?

In this case there exists the (technical) possibility that the Swiss electorate still vote in favor of this (hypothetical) Act.

So what this would come down to then is:

1. It is technically possible for the Swiss people to decide to negatively alter the human rights currently written into the Swiss Constitution.
... and in the same vein ...
2. It is also technically possible for the tenets upon which the ECHR currently operates to be negatively altered.

Then the question is not "what is technically possible?" but instead "what is likely/probable to occur?". Which is more likely ... 1. or 2.?

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The problem with the SBI is that it makes no distinction of order of implementation. Unlike the Schubert-Praxis which says newer law trumps older treaties, with the SBI older law would also trump newer treaties. But if the people can veto treaties just like acts, doesn't the people want that newer legislation should take precedence?
I added the bold.
It sounds like you are saying that currently newly made (state) treaties are permitted to be made even if they violate existing Swiss law. Did I understand you correctly?

As far as I understand it, the SBI is pretty clear on 'order of implementation' (primacy).
Swiss law is number one. No contracts can be made in violation of Swiss law. So Swiss law, in the form that it exists at the time of contract X being negotiated/deliberated/signed, supersedes all non-Swiss law.

Perhaps I am not understanding your point precisely. Do you have an example that could be useful ... even a hypothetical?
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  #105  
Old 05.11.2018, 17:44
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Re: SVP self-determination initiative

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That's now. They're not written in stone, as you know this can be changed relatively easily if it's a constitutional matter only.
It would need a double-majority to pass (people and cantons). Not sure how easy that would be in the case of wishing to negatively alter currently protected human rights. In fact, I don't think it probable at all. Possible? Yes. Probable? No.
It's also possible that the tenets upon which the ECHR operate under could be negatively altered. Some would say that they think this to be more likely than the Swiss people and cantons voting to do away with existing Constitutional rights.

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Where do I make such a claim? National law is usually limited the respective country.
It just sounded like we were speaking in relation to 'universal' Human Rights. Apologies if I misunderstood you there.
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  #106  
Old 11.11.2018, 02:18
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Re: SVP self-determination initiative

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.
It sounds like you are saying that currently newly made (state) treaties are permitted to be made even if they violate existing Swiss law. Did I understand you correctly?

As far as I understand it, the SBI is pretty clear on 'order of implementation' (primacy).
Swiss law is number one. No contracts can be made in violation of Swiss law. So Swiss law, in the form that it exists at the time of contract X being negotiated/deliberated/signed, supersedes all non-Swiss law.

Perhaps I am not understanding your point precisely. Do you have an example that could be useful ... even a hypothetical?
This is wrong. Internal law can never justify the non execution of validly concluded international obligations (art. 27 Vienna Convention on the law of treaties RS 0.111). Any head of government or foreign minister is competent to engage his country in an international obligation (art. 7 ibid).
The federal council ratifies the treaties concluded by the Swiss Confederation, either as a whole, by delegating the power to a diplomat, or as a commission/representative of the council (either the foreign minister or the president of the confederation). The treaties that our government sign bind our state, whether we like them or not. The principles of pacta sunt servants and the good faith execution of treaties form the cornerstone of international relations and are codified elements of customary international law.
Swiss law does not supersede non-Swiss law and the fact that you think that shows you don’t understand how international or Swiss law works. In Swiss law we have the principe of the hierarchy of norms: a federal law overrules a cantonal law and a cantonal law overrules a municipal law. In the exact same way, a rule of international law overrules are rule of Swiss law.
If this crazy initiative, which the overwhelming majority of jurists reject, is passed, it won’t mean that certain treaties no long bind us. What will happen is that we will be violating treaties (ECHR for example). We will then be opening the door to other countries pursuing suits against us in international tribunals.
Imagine if you and I were to validly conclude a contract agreeing that I could use your swimming pool on 25.03.2019 in exchange for 300 CHF. If you thereafter decided that you no longer wished to let me use the swimming pool, you would be violating a validly concluded contract and would expose yourself to me suing you for inexecution.
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  #107  
Old 11.11.2018, 02:29
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Re: SVP self-determination initiative

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That seems to be quite a stark claim.
You mentioned Article 190 of the Federal Constitution:

The Federal Supreme Court and the other judicial authorities apply the federal acts and international law.

Are you implying that Federal Acts can lawfully be made in violation of Title 2 > Chapter 1 Fundamental Rights?

Could you please expound on that a bit more?
Art. 190 Cst. immunises federal laws in the sense that a contradiction with the constitution cannot be invoked in order to prevent their application.

Suppose the federal assembly passes a law reinstating the death penalty. This clearly violates art. 10 al. 1 Cst.. Prima facie, the authorities would have to apply the federal law regardless of its blatant contradiction with the Constitution because art. 190 immunises unconstitutional dispositions of federal laws.

Switzerland is however party to the ECHR and its related protocoles which prohibit the death penalty. An authority would therefore nuance the apparent equal rank of international law and federal laws found in art. 190 Cst. by applying art. 5 al. 4 Cst. which requires all authorities to respect international law. Combining these two principles, federal jurisprudence is able to protect fundamental rights by favouring international norms when a contradiction arises with a disposition of an otherwise immunises federal law. In sum, art. 10 al. 1 Cst. does not prevent the reinstitution of capital punishment, but international treaties and art. 5 al. 4 Cst. do.
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  #108  
Old 11.11.2018, 09:26
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Re: SVP self-determination initiative

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This is wrong. Internal law can never justify the non execution of validly concluded international obligations
Hmm, so why is there a Schubert-Praxis?

See the last three slides: http://www.ivr.uzh.ch/dam/jcr:000000...0folienweb.pdf
https://www.ivr.uzh.ch/dam/jcr:00000...t_07102011.pdf

and also

https://www.eda.admin.ch/dam/eda/de/...esrecht_de.pdf
https://www.eda.admin.ch/eda/en/home...in-der-schweiz
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  #109  
Old 11.11.2018, 10:28
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Re: SVP self-determination initiative

The Schubert jurisprudence is an anomaly. The TF used it once 45 years ago and then never again. A lot of constitutional authors regard it as dated and no longer the actual opinion of the TF. It’s of course important and interesting from a constitutional law perspective but I think its application would only occur where: 1. The contradiction is not blatant, ie a question of interpretation and 2. When the international agreement is not of huge importance.
Also a distinction must be made between the norms applicable by internal authorities and the norms which bind the internal legal order as a whole. In the first case, the Schubert jurisprudence could result in an authority theoretically not applying a norm. In the second case however, the non application of a norm does not mean that that norm does not bind the state. Art. 27 CVT (RS 0.111) is the codification of this piece of customary international law.

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  #110  
Old 11.11.2018, 20:22
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Re: SVP self-determination initiative

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This is wrong. Internal law can never justify the non execution of validly concluded international obligations (art. 27 Vienna Convention on the law of treaties RS 0.111). Any head of government or foreign minister is competent to engage his country in an international obligation (art. 7 ibid).
The federal council ratifies the treaties concluded by the Swiss Confederation, either as a whole, by delegating the power to a diplomat, or as a commission/representative of the council (either the foreign minister or the president of the confederation). The treaties that our government sign bind our state, whether we like them or not. The principles of pacta sunt servants and the good faith execution of treaties form the cornerstone of international relations and are codified elements of customary international law.
Swiss law does not supersede non-Swiss law and the fact that you think that shows you don’t understand how international or Swiss law works. In Swiss law we have the principe of the hierarchy of norms: a federal law overrules a cantonal law and a cantonal law overrules a municipal law. In the exact same way, a rule of international law overrules are rule of Swiss law.
If this crazy initiative, which the overwhelming majority of jurists reject, is passed, it won’t mean that certain treaties no long bind us. What will happen is that we will be violating treaties (ECHR for example). We will then be opening the door to other countries pursuing suits against us in international tribunals.
Imagine if you and I were to validly conclude a contract agreeing that I could use your swimming pool on 25.03.2019 in exchange for 300 CHF. If you thereafter decided that you no longer wished to let me use the swimming pool, you would be violating a validly concluded contract and would expose yourself to me suing you for inexecution.
Sorry but I don't see anything in there that would make it unlawful for a country to decide:

1. That the constitution is the highest law of the land
2. That no domestic or international contracts may be made which contravene to the constitution
3. That all previously made domestic and/or international contracts which contravene the constitution must either be renegotiated or, if non-negotiable, be terminated.


Your example is not quite fitting imo. If we had concluded such a deal, and I later on thought that the deal was no longer satisfactory, I would request the renegotiation of the contract. If renegotiation were not possible the contract in it's entirety could be terminated without risk of being sued. The only reason for a party to sue would be if that party had kept their part of the contract, while the other had not. For example if you had already given me the 300Fr.- before having ever used the pool, and I denied you access and/or sought renegotiation or termination of the contract, without ever having reimbursing you your fee, you would have just cause to sue me.
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  #111  
Old 11.11.2018, 20:37
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Re: SVP self-determination initiative

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Sorry but I don't see anything in there that would make it unlawful for a country to decide:

1. That the constitution is the highest law of the land
2. That no domestic or international contracts may be made which contravene to the constitution
3. That all previously made domestic and/or international contracts which contravene the constitution must either be renegotiated or, if non-negotiable, be terminated.


Your example is not quite fitting imo. If we had concluded such a deal, and I later on thought that the deal was no longer satisfactory, I would request the renegotiation of the contract. If renegotiation were not possible the contract in it's entirety could be terminated without risk of being sued. The only reason for a party to sue would be if that party had kept their part of the contract, while the other had not. For example if you had already given me the 300Fr.- before having ever used the pool, and I denied you access and/or sought renegotiation or termination of the contract, without ever having reimbursing you your fee, you would have just cause to sue me.
Yes the precise mechanisms of inexecution as detailed in our CO are not entirely the same as international law, but it wasn’t my intention to suggest them as being the same.
No one is suggesting that the Constitution is not the ‘highest law of the land’ because that is what it is! But the land, my friend, is next to other lands, themselves next to other lands. Those lands then form continents and those then form the world. Much as how cantons forwent their sovereignty in favour of empowering the Confederation to make decisions, so do two sovereign states compromise on their sovereignties to create rules of law to which their internal legal orders are subject. You should avoid using the word ‘contract’ when you mean a treaty. With the exception of public law contracts, contracts are instruments of private law usually between physical persons and/or legal persons founded in private law. Domestic treaties (I presume you mean intercantonal law) are of course required to conform to federal law. The government can and will still be able to conclude treaties that violate the constitution because they are empowered to do so by customary international law. Certain treaties are not subject to repudiation. Multilateral treaties are almost impossible to renegotiate. Anyone who suggests a possible renegotion of the ECHR is either naive or a liar.
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  #112  
Old 11.11.2018, 20:55
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Re: SVP self-determination initiative

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Art. 190 Cst. immunises federal laws in the sense that a contradiction with the constitution cannot be invoked in order to prevent their application.

Suppose the federal assembly passes a law reinstating the death penalty. This clearly violates art. 10 al. 1 Cst.. Prima facie, the authorities would have to apply the federal law regardless of its blatant contradiction with the Constitution because art. 190 immunises unconstitutional dispositions of federal laws.
Ok, but wouldn't the law be subject to the Swiss electorate? In other words, in order for the death penalty to be rewritten into law wouldn't it have to pass the gauntlet of being subject to the will of the Swiss Cantons and electorate?

In this case it seems that you are ignoring/overlooking the most essential component in this process - the Direct Democracy itself - and just jumping straight into "imagine if the death penalty was reinstated".

This comes back to the issue of technical possibility vs probability - in that, while it is technically possible for the Swiss electorate and cantons to reinstate the death penalty, it is improbable. Likewise, it is also technically possible, yet also improbable, that the tenets upon which the ECHR operate could be negatively impacted. The technical possibility of tyranny is present whether we are referring to the Swiss electorate and political system, or supranational organisations. Therefore the question moves away from what is technically possible to what is more probable ...
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Old 11.11.2018, 21:05
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Re: SVP self-determination initiative

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Ok, but wouldn't the law be subject to the Swiss electorate? In other words, in order for the death penalty to be rewritten into law wouldn't it have to pass the gauntlet of being subject to the will of the Swiss Cantons and electorate?

In this case it seems that you are ignoring/overlooking the most essential component in this process - the Direct Democracy itself - and just jumping straight into "imagine if the death penalty was reinstated".

This comes back to the issue of technical possibility vs probability - in that, while it is technically possible for the Swiss electorate and cantons to reinstate the death penalty, it is improbable. Likewise, it is also technically possible, yet also improbable, that the tenets upon which the ECHR operate could be negatively impacted. The technical possibility of tyranny is present whether we are referring to the Swiss electorate and political system, or supranational organisations. Therefore the question moves away from what is technically possible to what is more probable ...
It is also technically possible, yet also improbable that people reply to your ever more far fetched arguments but they still do
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  #114  
Old 11.11.2018, 21:10
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Re: SVP self-determination initiative

So, YES it is then.

Expect a landslide in Ticino, the only canton that matters!

Tom
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  #115  
Old 11.11.2018, 21:23
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Re: SVP self-determination initiative

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Ok, but wouldn't the law be subject to the Swiss electorate? In other words, in order for the death penalty to be rewritten into law wouldn't it have to pass the gauntlet of being subject to the will of the Swiss Cantons and electorate?

In this case it seems that you are ignoring/overlooking the most essential component in this process - the Direct Democracy itself - and just jumping straight into "imagine if the death penalty was reinstated".

This comes back to the issue of technical possibility vs probability - in that, while it is technically possible for the Swiss electorate and cantons to reinstate the death penalty, it is improbable. Likewise, it is also technically possible, yet also improbable, that the tenets upon which the ECHR operate could be negatively impacted. The technical possibility of tyranny is present whether we are referring to the Swiss electorate and political system, or supranational organisations. Therefore the question moves away from what is technically possible to what is more probable ...
Well first of all the cantons’ voices do not count in a referendum as only the majority of the Swiss electorate must vote in favour. Speaking of tyranny is hyperbolic and not useful. The tenants upon which the ECHR operate in Swiss law would be negatively affected because the ECHR would not be applied with the same force as federal laws if art. 190 Cst. is modified as the proponents desire.
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Old 11.11.2018, 21:40
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Re: SVP self-determination initiative

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Yes the precise mechanisms of inexecution as detailed in our CO are not entirely the same as international law, but it wasn’t my intention to suggest them as being the same.
No one is suggesting that the Constitution is not the ‘highest law of the land’ because that is what it is! But the land, my friend, is next to other lands, themselves next to other lands. Those lands then form continents and those then form the world. Much as how cantons forwent their sovereignty in favour of empowering the Confederation to make decisions, so do two sovereign states compromise on their sovereignties to create rules of law to which their internal legal orders are subject. You should avoid using the word ‘contract’ when you mean a treaty. With the exception of public law contracts, contracts are instruments of private law usually between physical persons and/or legal persons founded in private law. Domestic treaties (I presume you mean intercantonal law) are of course required to conform to federal law. The government can and will still be able to conclude treaties that violate the constitution because they are empowered to do so by customary international law. Certain treaties are not subject to repudiation. Multilateral treaties are almost impossible to renegotiate. Anyone who suggests a possible renegotion of the ECHR is either naive or a liar.
You know it just struck me that in all the discussions and debates that I have watched and read on the SBI I haven't seen all this info being brought up by all the anti-SBI side. So I have to wonder ... either you are on to something that eludes all these people, or those discussions are occurring in the more obscure corners of the media, or they aren't legitimate arguments.
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Old 11.11.2018, 21:52
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Re: SVP self-determination initiative

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You know it just struck me that in all the discussions and debates that I have watched and read on the SBI I haven't seen all this info being brought up by all the anti-SBI side. So I have to wonder ... either you are on to something that eludes all these people, or those discussions are occurring in the more obscure corners of the media, or they aren't legitimate arguments.
If you want to claim they aren't legitimate arguments then you need show why, otherwise it is just your opinion.
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  #118  
Old 11.11.2018, 22:06
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Re: SVP self-determination initiative

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You know it just struck me that in all the discussions and debates that I have watched and read on the SBI I haven't seen all this info being brought up by all the anti-SBI side. So I have to wonder ... either you are on to something that eludes all these people, or those discussions are occurring in the more obscure corners of the media, or they aren't legitimate arguments.
Well I’ll disregard the conceited insult but you’ve simply not been going to events of sufficient intellectual rigour. Every Swiss university law faculty has organised debates on this matter and these topics have all been raised.
Given that you’ve given ultimate recourse to insult, it behoves me to conclude that you, as previously suggested, you are a troll.
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  #119  
Old 11.11.2018, 22:10
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Re: SVP self-determination initiative

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...... This comes back to the issue of technical possibility vs probability - in that, while it is technically possible for the Swiss electorate and cantons to reinstate the death penalty, it is improbable.......
The point is that when voting about something important like this one has to decide about possibilities. Who cares whether it seems improbable. Times change, a lot (A LOT) of things seemed improbable and then the unbelievable happened.

We're not voting for the next 2 years, we're most likely voting for generations to come.
If a law is changed, it must be phrased very clearly. What is it supposed to achieve and what should it make possible. And also what it should NOT make possible. It should definitely not contain possibilities most people don't want.
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Old 11.11.2018, 22:40
EAB EAB is offline
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Re: SVP self-determination initiative

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Well first of all the cantons’ voices do not count in a referendum as only the majority of the Swiss electorate must vote in favour.
If I am not mistaken there are 2 ways in which the death penalty could be reinstated:

1. Popular Initiative - requires 100'000 signatures in 18 months, and then a double majority (people and Cantons) to pass.
This would be reinstatement of the death penalty by the people and Cantons.

2. Optional Referendum - requires 50'000 signatures or a request from 8 cantons, within 100 days, and a simple majority (people) to pass.
This would be reinstatement of the death penalty by the parliament, and a referendum being called for in an attempt to stop it. Of course it could still pass if the majority of the people (and already the parliament) wanted it to.

Either way, it either takes the people and cantons, or the people and parliament.


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Speaking of tyranny is hyperbolic and not useful.
It's the terminology that the anti-SBI side uses. This is something they use quite commonly actually.

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The tenants upon which the ECHR operate in Swiss law would be negatively affected because the ECHR would not be applied with the same force as federal laws if art. 190 Cst. is modified as the proponents desire.
*tenets

And .. .. .. how is that a bad thing?
I have looked into several of the ECHR rulings as regards Switzerland and I was not at all impressed. Not at all!
But something else came to mind ... does the ECHR ever make judgments against the Swiss Constitution itself? Afaik they don't.
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