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Schubert practice

Schubert practice,[1] also known as the Schubert jurisprudence (less often called Schubert doctrine[2]), is a partially abandoned legal doctrine in Swiss law manifested in a series of decisions of the Federal Supreme Court of Switzerland, according to which provisions of domestic law have practical primacy over otherwise binding, but conflicting, provisions of international law as long as the former are lex posterior – even if the latter are lex specialis – based on a generalized hypothesis that a posterior act of the legislator whereby an existing act of international law has been contradicted was, in reality, a conscious, albeit implicit, act of abrogation. As an immediate consequence, when the doctrine is applied, international law is violated.

It derives from the 1973 Schubert case ruling, in which the Supreme Court upheld the decision of a cantonal authority to forbid an Austrian man from Vienna from acquiring Swiss land, in spite of him asserting entitlement to such acquisition under a 1875 treaty between Switzerland and Austria (then part of Austria-Hungary). The treaty provided that each signatories' nationals shall enjoy the same rights in this regard on both signatories' territories. The court cited a 1961 federal decree which gave authorities the power to grant or withhold authorization of acquisition of land by foreign residents and gave it primacy over the treaty. In response, Austria suspended the concerned article, citing non-fulfillment of reciprocity.

Switzerland, historically, has had a tradition of following the principle of primacy of international law, but its highest judicial body, the Supreme Court, does not have judicial review authority over federal legislation to be able to declare it unconstitutional if it comes in conflict with the Constitution (Cst.) or international law (principle of immunity of federal laws). The emergence of the Schubert practice was thus an attempt to bring into line the will of the Swiss legislator and the obligations arising from international law.

The court doctrine has been much criticized by legal scholars, and has been refined and supplemented over time, particularly in relation to the European Convention on Human Rights (ECHR). After a 1999 ruling, the doctrine was relativized[3] by virtue of being rendered inoperative in the area of international human rights law.[4] In the early 2010s, it seems to have been abandoned. In the realm of politics, there have been multiple initiatives to enshrine the doctrine in law.

  1. ^ Biaggini, Giovanni (2020). "Constitutional adjudication in Switzerland (chapter 15)". In Bogdandy, Armin von; et al. (eds.). The Max Planck Handbooks in European Public Law. Vol. III: Constitutional Adjudication: Institutions. Oxford University Press. pp. 779–839. doi:10.1093/oso/9780198726418.003.0015. ISBN 978-0-19-872641-8. Retrieved 10 September 2023. According to the Schubert judgment, a federal law has precedent if the legislature intends to consciously stray from a constitutional obligation, thereby accepting a violation of international law; ... The Court never formally overruled this so-called Schubert practice, despite the overwhelmingly critical reception in academia. As a consequence of the Schubert judgment, art 2 of the Settlement Treaty was formally suspended ...
  2. ^ Fleiner, Thomas; Misic, Alexander; Töpperwien, Nicole (2005). Swiss constitutional law. The Hague: Kluwer Law International. ISBN 978-90-411-2404-3 – via Google Books.
  3. ^ Cite error: The named reference :11 was invoked but never defined (see the help page).
  4. ^ (de) ATF 125 II 417.
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