The ECHR and the new Swiss constitutional ban on minarets

The decision by Swiss voters, by a 57.5% margin, to ratify a constitutional amendment backed by nationalist parties that bans the construction of new minarets is not a proud moment for Switzerland. It is hard to see what motivation could lie behind popular ratification of the amendment except old-fashioned religious prejudice. Perhaps precisely for this reason, the Swiss government seems both embarrassed of its own citizens and greatly vexed by the diplomatic fallout, which has already included a rebuke from the UN High Commissioner for Human Rights (who is, conveniently, based in Switzerland).

The interesting part for those who follow judicial politics is the widely discussed (and, it would seem, reasonably likely) prospect of intervention by the European Court of Human Rights (ECHR). Although Swiss voters rejected membership in the European Union by an overwhelming margin a few years ago, Switzerland has been a member of the Council of Europe for decades and is thus subject to the jurisdiction of the ECHR.

The prospect of ECHR intervention in this particular instance illustrates a few closely related and increasingly apparent phenomena: the internationalization of constitutional law, the constitutionalization of international law, and the judicialization of politics.

(1) The internationalization of constitutional law: Here, domestic constitutional law is longer the last word within the domestic legal system. The applicable “constitutional law” in this case, defined as the higher law to which all other laws must yield, is likely to prove transnational in character, in the form of the European Convention on Human Rights. (Note, too, that this is not happening in the context of the European Union, where the member states have already ceded substantial policymaking authority to the union, and one might thus expect that the governing law would be transnational rather than national in character. The Council of Europe is more like a loose club than a supranational government or pooling of sovereignty.)

(2) The constitutionalization of international law: Note the sheer difficulty of distinguishing treaty law from constitutional law in a meaningful way here. From the property rights provisions in NAFTA that override the Calvo Clause of the Mexican Constitution to the prospect that a human rights treaty will prevent Switzerland from amending its constitution to discriminate against Muslims, it is reasonable to question what, if any, useful purpose is served by an analytical distinction between treaty law and domestic constitutional law.

(3) The judicialization of politics: The popular passage of a constitutional amendment that is opposed by the government gives the government a short-term incentive to support the judicialization of politics. Over the long run, the Swiss government, and other national governments, might not be happy to cede a constitutional policy veto to the ECHR, which has seemed at times to veer between excessive deference and overly exacting scrutiny. But in this case, it seems clear from the Swiss foreign minister’s comments that she would welcome intervention by the ECHR. And she is surely not the only Swiss official who is desperately hoping that the ECHR will step in and do what the Swiss government itself cannot do–at least, not without a little supranational judicial help.