Fundamental or not?
Universal human rights challenged in Switzerland
Citizens in Glarus vote in a traditional way on an issue. Decisions born out of Swiss direct democracy have sometimes clashed with human rights. (Keystone)
Human rights may seem a given in many countries, but some Swiss politicians say that international bodies have no legitimacy to judge their nation’s record, saying others do far worse than Switzerland when it comes to protecting their population.
In recent years, the rightwing Swiss People’s Party has challenged the universality of international law stemming from the Declaration of Human Rights first adopted in 1948. The party’s main concern is primacy of international legislation over national laws established by the Vienna Convention in 1969.
Opportunities to attack what is considered interference by foreign “judges” have been frequent in recent years. The report issued by the United Nations special rapporteur on racism in 2006, the first universal review of Switzerland by the Human Rights Council in 2008, or appeals against Swiss voters’ decision to ban new minarets in 2009 at the European Court of Human Rights have raised the People’s Party’s hackles.
Party vice-president and parliamentarian Oskar Freysinger says that many countries that criticise Switzerland should look at the benefits of the Swiss political system and direct democracy instead.
“Our democratic institutions were created as a huge firewall against arbitrary decisions by the state,” he told swissinfo.ch. “There is no other country that provides such legal and political safeguards to its citizens and political rights.”
Challenges exist despite legal framework
For Walter Kälin, an internationally recognized expert on human rights and who has carried out investigations for the Geneva-based Human Rights Council, there is little contradiction between the Swiss legal system and the international definition of human rights.
“If you compare our old constitution from 1874 and the catalogue of human rights, you can see many of these have become international standards and are perfectly compatible with the democratic traditions anchored in our fundamental law,” he said.
However, though the situation in Switzerland is generally good, Kälin warns there are still issues related to human rights.
“There is human trafficking – modern slavery if you prefer – domestic violence, discrimination against women and even racism. Switzerland has serious problems that it shares with most of its European neighbours,” he told swissinfo.ch.
In other words, Switzerland’s direct democracy that allows citizens to overturn government decisions or propose constitutional amendments via referenda and initiatives does not guarantee better respect of human rights than in other types of democracy.
The Swiss political system does allow opinions to appear more easily than they would in the rest of Europe, however. For example, after the minaret ban was voted in, opinion polls in other European countries showed that a majority of those surveyed had similar opinions about minaret construction as the Swiss, despite not having similar laws.
The direct democracy paradox
Kälin points out, like many Swiss politicians and other observers, that direct democracy can be problematic when it comes to human rights.
“Swiss case law, especially that of the Federal Court, always defends human rights. For individual cases, it’s adequate,” he added. “Our legislation has progressed, for example, when dealing with sexual orientation.”
“But it is worrying that initiatives that enshrine rules incompatible with our international obligations are being accepted by a majority of citizens and cantons.”
Other examples besides the minaret initiative are the vote demanding lifelong internment for very dangerous violent and sexual offenders or the decision on the expulsion of foreign criminals.
When faced with this criticism, the People’s Party insists that citizens must always have the last word in Switzerland. Freysinger believes the Swiss system is strong enough, for example, to avoid lapses that would lead to a vote on reintroducing the death penalty.
“We are the only country in the world with a system where the people are sovereign,” he said. “So long as citizens are held responsible for decisions, I don’t see a majority of Swiss voting in favour of the death penalty.”
However, an initiative proposing the reintroduction of executions was launched in 2010, before being withdrawn after the uproar it caused.
For Kälin, stating that Swiss democratic traditions allow citizens to decide issues while ignoring human rights calls into question the universality of those rights. The founder of modern Singapore, Lee Kuan Yew, was a case in point, as during the 1990s, he put forward so-called “Asian values” in response to criticism of his country’s human rights record.
Freysinger agrees with Kälin’s point, somewhat. “The understanding of what constitutes human rights in China, India, the Muslim world and in Switzerland demonstrates that there is no universality.”