Domestic Courts and the Interpretation of International Law The titles published in this series are listed at brill.com/ diil Developments in International Law volume 72 LEIDEN | BOSTON Domestic Courts and the Interpretation of International Law Methods and Reasoning Based on the Swiss Example By Odile Ammann Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 0924- 5332 isbn 978- 90- 04- 40986- 6 (hardback) isbn 978- 90- 04- 40987- 3 (e-book) Copyright 2020 by Odile Ammann. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect the publication against unauthorized use and to authorize dissemination by means of offprints, legitimate photocopies, microform editions, reprints, translations, and secondary information sources, such as abstracting and indexing services including databases. Requests for commercial re-use, use of parts of the publication, and/or translations must be addressed to Koninklijke Brill NV. This book is printed on acid- free paper and produced in a sustainable manner. This is an open access title distributed under the terms of the CC- BY- NC 4.0 License, which permits any non-commercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited. The Faculty of Law of the University of Fribourg (Switzerland) does not intend to approve or disapprove the opinions expressed in a dissertation; they must be considered as the author’s own (decision of the Faculty Council of 1 July 1916). Published with the support of the Swiss National Science Foundation. Cover illustration: Lady Justice sorting methodically through the Swiss case law on international law. © 2019 Rae Pozdro. All rights reserved. www.pozdro.net The Library of Congress Cataloging-in- Publication Data is available online at http:// catalog.loc.gov LC record available at http:// lccn.loc.gov/2019948876 Dissertation submitted to the Faculty of Law of the University of Fribourg (Switzerland) by Odile Ammann for the obtention of the degree of Dr. iur. Accepted by the Faculty of Law on 18 December 2017 upon the proposal of Professor Samantha Besson ( first rapporteur) and Professor Eva Maria Belser (second rapporteur) Contents Acknowledgments xi Abbreviations xv Introduction 1 1 The Subject and Basic Claims of This Book 1 2 Structure and Approach 3 3 The Benchmarks of Legality and Quality 7 part 1 What Is Interpretation? 1 The Interpretation of International Law by Domestic Courts – A Topic That Matters 15 1 Introduction 15 2 The State of the Literature 15 2.1 Descriptive Bias 17 2.2 Domestic Bias 20 2.3 ‘Amour Impossible’ 22 2.4 Legal Imperative 23 2.5 Swiss Gap 24 3 Why Switzerland? 26 4 Why Courts? 30 5 Why Domestic Courts? 31 6 Why International Law? 34 7 Why Focus on the Law’s Interpretative Methods? 37 2 Terminology and Conceptual Apparatus 44 1 Introduction 44 2 Legal Interpretation 44 3 Judicial Interpretation 47 4 Domestic Judicial Interpretation 52 5 Methods of Interpretation 54 5.1 Normative Interpretative Theories 54 5.2 Structural and Axiological Interpretative Principles 55 5.3 Rules 56 5.4 Auxiliary Means 57 5.5 Argument Types 57 6 The Interpretation of International Law 58 viii Contents 3 Interpreting International Law in Context – Domestic Specificities 62 1 Introduction 62 2 The Swiss State and International Law 65 2.1 Swiss Foreign Relations Law 65 2.2 International Law in the Swiss Legal Order 71 3 Legal Principles of Political Organization 87 3.1 Federalism 87 3.2 Linguistic Diversity 89 3.3 The Rule of Law 90 3.4 Semi- Direct Democracy 92 3.5 The Federal Assembly qua ‘Supreme Authority of the Confederation’ 95 4 The Swiss Judiciary 97 4.1 The Structure of the Swiss Judiciary 97 4.2 Characteristics of Swiss Courts’ Interpretative Activity 105 5 Conclusion 128 part 2 Why Interpret? 4 The Legal Effect of Domestic Rulings in International Law 133 1 Introduction 133 2 Domestic Rulings as Means of Enforcement of International Law 137 3 Domestic Rulings as Contributors to the Sources and Interpretation of International Law 142 3.1 Domestic Rulings in the Sources of International Law (Art. 38(1) (a)– (c) icj Statute) 145 3.2 Domestic Rulings as Auxiliary Means (Art. 38(1)(d) icj Statute) 153 4 Conclusion 158 part 3 How to Interpret? 5 The Need for Interpretative Methods in International Law 161 1 Introduction 161 Contents ix 2 Why Does the Law Need Interpretative Methods? a Comparison With Interpretation Outside the Law 162 2.1 Similarities 164 2.2 Differences 166 3 The Origins of Interpretative Methods in Domestic and International Law 167 3.1 Domestic Law 168 3.2 International Law 170 3.3 The Relationship between the Interpretative Methods of Domestic and International Law 175 4 Three Reasons for Requiring States to Use Interpretative Methods 176 4.1 Vagueness 176 4.2 Counter- Majoritarian Decisions 180 4.3 Judicial Politics 181 5 Three Objections against Interpretative Methods 184 5.1 The ‘Vague Methods’ Objection 184 5.2 The ‘Self- Made Methods’ Objection 187 5.3 The ‘Outcome Over Process’ Objection 189 6 Conclusion 190 6 The Interpretative Methods of International Law: What Are They, and Why Use Them? 191 1 Introduction 191 2 The Interpretative Methods of International Law 192 2.1 Textual Interpretation 197 2.2 Systematic Interpretation 202 2.3 Teleological Interpretation 208 2.4 Historical Interpretation 213 2.5 The Relationship between the Various Interpretative Methods 219 3 Conclusion 221 7 Swiss Courts and Treaty Interpretation 223 1 Introduction 223 2 Domestic Courts and the Methods of Treaty Interpretation 226 2.1 Introductory Remarks 226 2.2 Exposing and Evaluating the Practice 229 x Contents 3 Swiss Courts and the Methods of Treaty Interpretation 234 3.1 The Swiss Federal Tribunal and Treaty Interpretation before the vclt’s Entry into Force (1954–1980) 235 3.2 The Swiss Federal Tribunal and Treaty Interpretation after the vclt’s Entry into Force and before Its Ratification by Switzerland (1980–1990) 238 3.3 Swiss Courts and Treaty Interpretation after the vclt’s Entry into Force in Switzerland (1990–2016) 239 3.4 Relationship with Interpretative Methods under Swiss Law 265 3.5 Comparing the Practice of Swiss Courts 267 3.6 Putting the Swiss Judicial Practice into Perspective 269 4 Evaluation 270 8 Swiss Courts and the Interpretation of Unwritten International Law 272 1 Introduction 272 2 Customary International Law 274 2.1 Domestic Courts and the Interpretation of Customary International Law 274 2.2 Swiss Courts and the Interpretation of Customary International Law 283 3 General Principles of International Law 302 3.1 Domestic Courts and the Interpretation of General Principles of International Law 303 3.2 Swiss Courts and the Interpretation of General Principles of International Law 305 4 Evaluation 316 Conclusion and Recommendations 320 1 The Argument Defended in This Book 320 2 Recommendations 323 2.1 Improving the Legality and the Quality of Domestic Rulings 323 2.2 Enhancing the Accessibility of Domestic Rulings 329 Bibliography 333 Index 373 Acknowledgments I submitted this work as a doctoral thesis to the Faculty of Law of the University of Fribourg on 4 July 2017. The viva took place on 18 December 2017, the day on which the Faculty of Law accepted this thesis. Subsequent developments, including relevant case law and scholarship, have been taken into account up to June 2019. I would not have completed this thesis without the support of many people, to whom I would like to express all my gratitude. First, I am deeply grateful to Samantha Besson, my supervisor, for her guidance and generosity throughout the thesis. Her extremely thorough, intellectually stimulating, and constructive feedback helped me tremendously. I would like to warmly thank her for allow- ing me to learn from her own work and outstanding scholarship, for continu- ously encouraging me, but also for always challenging me, and for prompting me not to take any concepts or theories for granted. Timothy Endicott has been an incredibly generous, thoughtful, and inspir- ing mentor during my research stay at the University of Oxford in 2016–17. I am extremely grateful for the detailed and continuous feedback he provided on the various theoretical chapters of this book, as well as for his consistent sup- port while I was in the final months of my research. His encouragement and guidance helped me tie up the loose ends of this book, and prepare the manu- script for submission. Several people at my alma mater , the University of Fribourg, made indis- pensable contributions to my analysis. The many insightful doctoral seminars, workshops, and conferences organized by Samantha Besson while I worked as her research assistant in 2013–15 (but also beyond) played a crucial role in both the early and more advanced stages of my research. Among those are the two doctoral conferences I attended in Münchenwiler (2014) and Ueberstorf (2015), the two ProDoc conferences in Fribourg (2014 and 2015), and a range of methodological and substantive seminars and scientific workshops with sen- ior scholars, from which I have benefitted hugely. The lunch talks organized by Professor Pascal Pichonnaz allowed me to collect constructive feedback, nota- bly from Professors Michel Heinzmann, Alexandra Rumo, and Walter Stoffel, as well as from peer doctoral researchers. My thinking has also been stimulated by Professor Edward Swiderski’s fascinating philosophy course on ‘Interpreta- tion in the Arts’, which I audited in Spring 2014 at the University of Fribourg. I would like to thank the members of my jury, Professors Samantha Besson, Eva Maria Belser, Gerhard Fiolka, and Alexandra Rumo, for their insightful xii Acknowledgments questions and comments. I am also grateful to Professor Adriano Previtali for presiding over the viva with his usual delightful and calming sense of humor. I would like to thank those who took the time to engage with my work during my research stay in the United Kingdom in 2016–17. Raquel Barradas de Freitas generously shared her unpublished and truly excellent work with me and pro- vided some very thoughtful and illuminating comments. I am grateful to the participants in the Oxford Public International Law Research Seminar and in the Oxford Graduate Legal Research Conference for their feedback. I especially thank Miles Jackson and Dapo Akande for their critical and stimulating obser- vations. I am also grateful to Eyal Benvenisti for generously sharing some of his then unpublished work on international law in domestic courts with me. I am indebted to many people whose path I crossed during my LL.M. and subsequent research stay at Harvard Law School in 2015–16. William Alford, Jane Bestor, Gabriella Blum, Scott Brewer, Richard Fallon, Gábor Kajtar, David Kennedy, Duncan Kennedy, Michael Klarman, Priyasha Saksena, and Lewis Sargentich all provided very helpful comments while I was working on differ- ent papers on international law and legal theory. Jane Bestor kindly suggested that I present an early draft of what is now Chapter 5 at Harvard Law School in November 2016, and I am very grateful for the feedback I received on this oc- casion. I am also indebted to the participants to the 2016 Doctoral Scholarship Conference at Yale Law School for their helpful comments on this draft. In Heidelberg, I was able to access relevant scholarly resources, to partic- ipate in academic discussions pertaining to international law, and to discuss some of the difficulties experienced in my research with a range of legal schol- ars and peers specializing in international law. I would like to thank Anne Peters for offering me this opportunity. My research stays would not have been possible without the support of Samantha Besson, Gabriella Blum, Timothy Endicott, Bernard Jaggy, Flavien Mariatte, Anne Peters, Nicolas Queloz, and Victor V. Ramraj. I am immensely grateful to them. I am also very thankful to the Fulbright Foreign Student Pro- gram, to the Janggen-Pöhn Foundation, and to Harvard Law School for their generous financial support, which made it possible for me to spend over a year in the United States (August 2015–September 2016). Through its Doc. Mobility scheme, the Swiss National Science Foundation provided invaluable support in the second phase of my research at the University of Oxford (Oc- tober 2016– June 2017) and at the Max Planck Institute in Heidelberg (July– September 2017). I am also very grateful to the Swiss National Science Founda- tion for supporting the pre-press stage of this publication. Several people kindly accepted to answer my questions linked to the me- chanics of judicial reasoning. I am thankful to Judge Heinz Aemisegger, Acknowledgments xiii Anne-Laurence Graf-Brugère, Julia Hänni, and Marie Jenny. I also thank Pola Cebulak, Benjamin Cheynel, Benedikt Pirker, Yael Ronen, Christa Tobler, Philippa Webb, and Marlene Wind for their comments on papers written in parallel to my PhD and which informed this book. My research was especially enriched by the two workshops on ‘International Courts and Domestic Poli- tics’ convened by Marlene Wind at the Center of Excellence for International Courts (iCourts) of the University of Copenhagen (2014) and at the Center for the Study of the Legitimate Roles of the Judiciary in the Global Order (Pluri- Courts) of the University of Oslo (2015). I also benefitted from participating in the conference on ‘The Neglected Methodologies of International Law’ which Rossana Deplano and Paolo Vargiu organized at the University of Leicester in January 2018. I am grateful to Valentin Jeutner for his kind invitation to pres- ent my work at Lund University in September 2018, which made it possible for me to obtain additional feedback. Evelyne Schmid and her students at the University of Lausanne provided helpful comments on several pieces re- lated to this project when I was finalizing the manuscript for publication in Spring 2019. I am particularly indebted to León Castellanos-Jankiewicz, Raffael Fasel, Marie-Louise Gächter-Alge, Benedikt Pirker, Talita Sousa Dias, and Jonas Wüthrich for their constructive feedback on various draft chapters. All errors remain, of course, my own. Since 2014, I have been able to contribute to the Oxford Reports on Inter- national law in Domestic Courts (ildc). I am grateful to Professor Andreas Ziegler for giving me the opportunity to be part of the Swiss reporters’ team, and to the editors of ildc for the constructive feedback they have provided on the headnotes I have submitted over the years. I would like to thank Marie Sheldon, Kelley Baylis, and Johanna Lee from Brill/Nijhoff, who guided me through the publication process and answered all the questions I had. I am also grateful to two anonymous peer reviewers for their constructive and excellent comments, and for their (and the editors’) interest in a book that focuses on the Swiss case law on international law. Many thanks are owed to Chantal Ammann-Doubliez, Hans-Robert Ammann, Vincent Bar- ras, and Hélène Feest for patiently and diligently proofreading the final manu- script and the proofs, and for their excellent and thoughtful suggestions. I am also indebted to Angela Hefti, who helped me access relevant scholarship as I was finalizing the manuscript. I am very grateful to Rae Pozdro, who designed the cover of this book. I cannot think of a better cover than one of her drawings. From May 2018 onwards, the Public Law Research Group (‘Fachgruppe Öffentliches Recht’) of the Law Institute of the University of Zurich offered me a privileged environment to focus on my research, which also made it pos- sible for me to work on the final edits leading to the publication of this book. xiv Acknowledgments I am deeply grateful to all members of the Research Group for giving me this opportunity. The PhD experience would not have been the same without my dear friends, in Switzerland and abroad. They have all contributed, in some way or another, to the completion of this book – they know who they are! Thank you also to the baristas of Darwin’s Ltd, Bourbon Coffee, Hi-Rise, Society Coffee, Gail’s, Café Nero, and Vicafé, who provided me with my favorite beverage, especially in the most intense writing phases. I would like to thank my parents and my sister for their unconditional en- couragement throughout my education, law studies, and doctorate. This book is dedicated to them. Finally, I am deeply grateful to my partner for his unwa- vering support from the very beginning of this project. Zurich, June 2019 Abbreviations aalco Asian-African Legal Consultative Organization Aarhus Convention Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters of 25 June 1998 (sr 0.814.07) ag- bs Appellationsgericht des Kantons Basel-Stadt (Court of Appeals of the canton of Basel-Stadt) ap ii Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (sr 0.518.522) App Application arsiwa Draft Articles on the Responsibility of States for Internationally Wrongful Acts art. article(s) bdp Bürgerlich-Demokratische Partei (Conservative Democratic Party) bge Amtliche Sammlung der Entscheidungen des Schweizerischen Bundesgerichts (official compendium of the decisions of the Swiss Federal Tribunal) BGer Bundesgericht (Swiss Federal Tribunal) bis Bank for International Settlements bk book BVerfG Bundesverfassungsgericht (German Federal Constitutional Court) BVerfGE Entscheidungen des Bundesverfassungsgerichts (decisions of the German Federal Constitutional Court) cedaw Convention on the Elimination of All Forms of Discrimination Against Women of 18 December 1979 (sr 0.108) cerd Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (sr 0.104) cern European Organization for Nuclear Research (formerly: Conseil européen pour la recherche nucléaire) cescr un Committee on Economic, Social and Cultural Rights ch chapter cil customary international law cjeu Court of Justice of the European Union cj- ge Cour de justice du canton de Genève (Supreme Court of the canton of Geneva) xvi Abbreviations cls Critical Legal Studies Cst. Constitution of the Swiss Confederation of 18 April 1999 (sr 101) Cst-be Constitution of the canton of Bern of 6 June 1993 (sr 131.212) Cst-bs Constitution of the canton of Basel-Stadt of 23 March 2005 (sr 131.222.1) Cst-fr Constitution of the canton of Fribourg of 16 May 2004 (sr 131.219) Cst-ge Constitution of the Republic and canton of Geneva of 14 October 2012 (sr 131.234) Cst-ti Constitution of the canton of Ticino of 14 December 1997 (sr 131.229) Cst-zh Constitution of the canton of Zurich of 27 February 2005 (sr 131.211) cvp Christlichdemokratische Volkspartei (Christian Democratic Party) detec Swiss Federal Department of the Environment, Transport, Energy, and Communications dil Swiss Directorate of International Law dmcc Decisions of the Military Court of Cassation dta Double Taxation Agreement eg exempli gratia echr European Convention on Human Rights ECtHR European Court of Human Rights ed(s) editor(s) eea European Economic Area eec European Economic Community efta European Free Trade Association et al. et alii/ aliae / alia etc. et cetera eu European Union f/ ff and following fa- cflfg Federal Act on the Compilations of Federal Legislation and the Federal Gazette of 18 June 2004 (sr 170.512) fa- cpp Federal Act on Civil Peace Promotion and the Strengthening of Human Rights of 19 December 2003 (sr 193.9) fa- fa Federal Act on the Federal Assembly of 13 December 2002 (sr 171.10) fa- fap Federal Act on Federal Administrative Procedure of 20 December 1968 (sr 172.021) fa- fn Federal Act on Foreign Nationals and Integration of 16 December 2005 (sr 142.20) fa- fpc Federal Act on the Federal Patent Court of 20 March 2009 (sr 173.41) fa- nl Federal Act on the National Languages and Understanding Between the Linguistic Communities of 5 October 2007 (sr 441.1) fa- ofca Federal Act on the Organization of the Federal Criminal Authorities of 19 March 2010 (sr 173.71) Abbreviations xvii fa- sfac Federal Act on the Federal Administrative Court of 17 June 2005 (sr 173.32) fa- sft Federal Act on the Swiss Federal Tribunal of 17 June 2005 (sr 173.110) fdfa Swiss Federal Department of Foreign Affairs fdp Freisinnig-Demokratische Partei (Free Democratic Party) fg Bundesblatt (Federal Gazette) fta Free Trade Agreement greco Group of States Against Corruption IACtHR Inter-American Court of Human Rights ibid ibidem icc International Criminal Court icc Statute Rome Statute of the International Criminal Court of 17 July 1998 (sr 0.312.1) iccpr International Covenant on Civil and Political Rights of 16 December 1966 (sr 0.103.2) icescr International Covenant on Economic, Social and Cultural Rights of 16 December 1966 (sr 0.103.1) icj International Court of Justice icj Statute Statute of the International Court of Justice of 26 June 1945 (sr 0.193.501) icl international criminal law icrc International Committee of the Red Cross ictr International Criminal Tribunal for Rwanda icty International Criminal Tribunal for the former Yugoslavia ie id est ihl international humanitarian law ihrl international human rights law ila International Law Association ilc International Law Commission ilc Statute Statute of the International Law Commission of 21 November 1947 ildc Oxford Reports on International Law in Domestic Courts ilo International Labor Organization io international organization iso International Organization for Standardization itlos International Tribunal for the Law of the Sea mcc Military Court of Cassation nato North Atlantic Treaty Organization ngo non-governmental organization No number oecd Organization for Economic Co-operation and Development oger- be Obergericht des Kantons Bern (High Court of the canton of Bern) xviii Abbreviations oger-zh Obergericht des Kantons Zürich (High Court of the canton of Zurich) osce Organization for Security and Co-operation in Europe p. page(s) para paragraph(s) pcij Permanent Court of International Justice pkk Partiya Karkerên Kurdistanê (Kurdistan Workers’ Party) scc Swiss Civil Code of 10 December 1907 (sr 210) SCrimC Swiss Criminal Code of 21 December 1937 (sr 311.0) sfac Swiss Federal Administrative Court sfcc Swiss Federal Criminal Court sfdi Société française de droit international smcc Swiss Military Criminal Code of 13 June 1927 (sr 321.0) sr Systematische Sammlung des Bundesrechts (Systematic Compilation of Federal Legislation) svp Schweizerische Volkspartei (Swiss People’s Party) trips Agreement on Trade-Related Aspects of Intellectual Property Rights of 15 April 1994 (sr 0.632.20, Annex 1C) twail Third World Approaches to International Law ubs Union de banques suisses udhr Universal Declaration of Human Rights of 10 December 1948 uk United Kingdom un United Nations uncsi un Convention on the Jurisdictional Immunities of States and Their Property of 2 December 2004 unhcr un High Commissioner for Refugees us United States v. versus vcdr Vienna Convention on Diplomatic Relations of 18 April 1961 (sr 0.191.01) vclt Vienna Convention on the Law of Treaties of 23 May 1969 (sr 0.111) Vol volume(s) vpb Verwaltungspraxis der Bundesbehörden (Administrative Practice of the Federal Authorities) VwGer-be Verwaltungsgericht des Kantons Bern (Administrative Court of the canton ofBern) VwGer-sg Verwaltungsgericht des Kantons St. Gallen (Administrative Court of the canton of St. Gallen) VwGer-zh Verwaltungsgericht des Kantons Zürich (Administrative Court of the canton of Zurich) who World Health Organization wipo World Intellectual Property Organization wto World Trade Organization newgenprepdf © Odile Ammann, 2020 | DOI:10.1163/9789004409873_002 This is an open access chapter distributed under the terms of the CC-BY-NC 4.0 License. Introduction [One] cannot but admire the striking example of democracy which this small multi-racial and multilingual nation has set for the world. Nor can [one] fail to give her credit for the loyalty with which she has cooperated with other nations in the past. Not only have various international bureaus been located at Bern, but Switzerland contin- ued to give hospitality to the League of Nations when potentially hostile armies were massed on all her frontiers. The whole world expects Switzerland to hew the line of legal propriety, to chart her course with meticulous regard for her obligations under interna- tional law.1 ∵ 1 The Subject and Basic Claims of This Book The above quote, written by Manley O Hudson, dates back to 1947. Today, more than seven decades later, Hudson’s optimistic remarks about Switzer- land’s expected compliance with international law leave us wondering how the practice of the Swiss authorities has evolved. Has Switzerland indeed been ‘chart[ing] her course with meticulous regard for her obligations under inter- national law’?2 In this book, I examine how Swiss courts, but also domestic courts in gen- eral, do and must interpret3 international law. For this purpose, I analyze whether they comply with what international law requires from States when they interpret their international legal obligations. I also assess whether Swiss courts’ interpretations are predictable, clear, and consistent. I then suggest how to improve this domestic judicial practice from these two perspectives. The two basic claims guiding my study are the following. First, Switzer- land and other States, when interpreting international law via their organs, 1 Manley O Hudson, ‘Switzerland and the International Court of Justice’ (1947) 41 American Journal of International Law 866, 867 f. 2 See ibid 868. 3 In Chapter 2 ( infra ), I discuss the variety of activities involved in this context.