Schubert practice, also known as the Schubert jurisprudence (less often called Schubert doctrine), is a 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 by virtue of being rendered inoperative in the area of international human rights law.(de) ATF 125 II 417. 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.

Status of international law in Switzerland

Primacy of international law

Federal Constitution of 1874 and the Spengler ruling

From 1875 (entry into force of the Federal Constitution of 1874 and institution of the Federal Supreme Court)(fr) Tribunal fédéral, "Naissance et rôle du Tribunal fédéral suisse" [PDF], sur bger.ch, december 2013, p. 3. to 1933, Switzerland's highest judicial body affirmed the principle of the primacy of international law over domestic law, and did so as a matter of course.Baumann 2010, no 6, p. 1010. This is illustrated by the Spengler ruling, in which Mon-Repos (the seat of the Federal Tribunal in Lausanne) states that an international treaty "binds the contracting States by virtue of the universally accepted principles of the law of nations, and without regard to their respective national legislation".(fr) ATF 35 I 467, consid. 5 p. 473.

Steenworden ruling As early as 1923, with the Lepeschkin ruling,(fr) ATF 49 I 188 (« Lepeschkin ») du 2 février 1923 read online, consid. 3 p. 196. some authors noted that the principle of the primacy of international law over domestic law (and consequently federal laws) was beginning to weaken.(de) Dietrich Schindler, Die Schweiz und das Völkerrecht in (de) Alois Riklin (dir.), Hans Haug (dir.) and Raymond Probst (dir.), Neues Handbuch der schweizerischen Aussenpolitik ["New Handbook of Swiss Foreign Policy"], Berne/Stuttgart/Vienne, Haupt, 1992, 1125 p. (), p. 114.Lammers 2015, p. 78.

In 1933, the Federal Court made a paradigmCottier and Pannatier 1995, p. 14. shift with the Steenworden ruling, influenced by a dualist conception.Baumann 2010, p. 1010.

In fact, Henri Steenworden, a Geneva café-brasserie operator, played gramophone records on a daily basis in his establishment.(fr) ATF 59 II 331, consid. A p. 331 s. However, as the records were not made in Switzerland (although the ruling does not indicate their precise origin), the French Société des auteurs, compositeurs et éditeurs de musique (SACEM) sued him for copyright infringement. After being condemned by the Geneva Court of Civil Justice, he appealed to the Swiss Federal Court. In its ruling, the Federal Court refers to the Berne Convention for the Protection of Literary and Artistic Works, of 1886, without mentioning which party is invoking it ("Vainement prétendrait-on").(fr) ATF 59 II 331, consid. 4 p. 337.

Referring back to the 1923 ruling, the Federal Court states:"If [...] there were opposition between a federal law and an international convention regulating the same subject, the convention should not necessarily be preferred to the law [...] Their opposition should be resolved as an opposition between two contradictory texts of law, by virtue of the maxim "lex posterior derogat priori". In accordance with this maxim, [...] the recent law paralyzes the application in Switzerland of the contrary provisions of an older treaty".

- ATF 59 II 331, consid. 3 p. 337 s.With this ruling, the Federal Supreme Court applies the principle of lex posterior derogat legi priori ("later law derogates from earlier law") in resolving conflicts between international and national law, sometimes even subsequently applying the principle of lex specialis derogat legi generali ("special law derogates from general law").Baumann 2010, p. 1010 and cited reference.

Lang ruling

Lang and Legler are two Swiss amateur pilots who flew over Lake Constance. At the end of November 1947, a bird-hunting party was organized by boat between Triboltingen (today Ermatingen), the Konstanzer Ried (German shore) and Reichenaustrasse (downtown Constance). The two pilots saw this as an infringement of their right to fly in the area. To scare off the hunters, they made a series of low passes (up to ten meters above water level).(de) ATF 76 IV 43, consid. A p. 44.

In October 1948, they were convicted of criminal offences by the Kreuzlingen District Court.(de) ATF 76 IV 43, consid. B p. 44. The conviction was based on the 1919 Convention Relating to the Regulation of Aerial Navigation, a Federal Council decree(fr) Arrêté du Conseil fédéral concernant la réglementation de la circulation aérienne en Suisse du 27 janvier 1920. and art. 237 ch. 2 of the Swiss Criminal Code. They were acquitted on appeal to the Thurgau Supreme Court in April 1949, on the grounds, among others, that the 1919 Convention did not contain any penal provisions.(de) ATF 76 IV 43, consid. B p. 45. The Thurgau public prosecutor appealed to the Federal Supreme Court against this acquittal.(de) ATF 76 IV 43, consid. C p. 45.

During its deliberations on the Lang(de) ATF 76 IV 43 judgment in 1950, the Criminal Court of Cassation of the Federal Supreme Court considered the compatibility of the 1919 Convention with Swiss domestic law. In its reasoning, the Court made no mention of the Steenworden ruling. Instead, it refers to a 1931 ruling(fr) ATF 57 I 19 ("Heini contre Pietsch") du 20 février 1931 read online, consid. 1 p. 23. (thus preceding Steenworden) to affirm that "international treaty law takes precedence over federal law".(de) ATF 76 IV 43, consid. 2 p. 49.

With the Lang ruling, the Federal Court thus reaffirmed the primacy of international law over federal law.Baumann 2010, no 8, p. 1010.

Frigerio ruling

In 1962, Max Frigerio, a Rhine transport entrepreneur, was granted a concession to transport passengers between Tössegg (confluence of the Töss and Rhine rivers) and Rüdlingen. The concession was later extended downstream to Eglisau. On October 31, 1967, Frigerio filed an application with the then Federal Department of Environment, Transport, Energy and Communications (DETEC, German: Eidgenössisches Departement für Umwelt, Verkehr, Energie und Kommunikation, Italian: Dipartimento federale dell'ambiente, dei trasporti, dell'energia e delle comunicazioni, French: Département fédéral de l'environnement, des transports, de l'énergie et des communications). The purpose of this request was to ascertain that river passenger traffic between Neuhausen am Rheinfall (where the Rhine Falls are located) and Basel was not in any way subject to the granting of a concession.(de) ATF 94 I 669, consid. B p. 671.

He bases his reasoning on an agreement signed between Switzerland and the Grand Duchy of Baden on May 10, 1879.(fr) Convention entre la Suisse et le Grand-Duché de Bade au sujet de la navigation sur le Rhin, de Neuhausen jusqu’en aval de Bâle du 10 mai 1879 (January 1st, 1880), RS 0.747.224.32. Article 1 of the agreement states:"Navigation and floating on the Rhine, from Neuhausen to below Basel, are permitted to everyone; they are subject only to restrictions required by tax and customs regulations, or by police necessities for the safety and regularity of communications."In the context of an obiter dictumBy the Federal Court's own admission in 2002, cf. (de) ATF 128 IV 201 of July 26th, 2002 read online, consid. 1.3 p. 205. 205. (other things said)Rapport Conseil fédéral 2011, p. 3443. in the Frigerio ruling, the FC leaves the door open to the possibility of deviating from international law. It states that international treaties are in force in Switzerland, as long as the legislator does not clearly decide to enact a domestic norm that would be contrary to them;(de) ATF 94 I 669, consid. 6a p. 678. the way is thus paved for the adoption of the Schubert ruling.Baumann 2010, no 8, p. 1011.Lammers 2015, p. 79.

Monism

Switzerland has a monistic system of international law.(de) ATF 127 II 177 du 1er mai 2001 read online, consid. 2c p. 181 : Normen des Völkerrechts sind, sobald sie für die Schweiz rechtskräftig geworden sind, fester Bestandteil der innerstaatlichen Rechtsordnung und von allen Staatsorganen einzuhalten und anzuwenden ... Eines besonderen Aktes für die Transformation der völkerrechtlichen Regel in das Landesrecht bedarf es nicht ("Norms of international law, as soon as they have become legally binding for Switzerland, are an integral part of the domestic legal order and are to be observed and applied by all state organs ... A special act for the transformation of the rule of international law into national law is not required").(de+fr) Publication OFJ/DDIP 1989, p. 38.(fr) Yves Le Roy et Marie-Bernadette Schœnenberger, Introduction générale au droit suisse, Fribourg, Schulthess, 2015, 4e éd. (1st ed. 2002), 694 p. (), p. 110.Hangartner 1998, p. 204. This means that, in the eyes of Swiss judges, domestic (Swiss) law and international law form a unitary block;(de) Astrid Epiney, "Das Primat des Völkerrechts als Bestandteil des Rechtsstaatsprinzips", Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht, vol. 95, 1994, p. 537-561 (ISSN 1422-0709), p. 541. international law is an integral part of the law of the domestic legal order.(de+fr) Publication OFJ/DDIP 1989, p. 36. In fact, the 1999 Federal Constitution states that "the Confederation and the Cantons shall respect international law". In contrast, in a dualist system, domestic law and international law are two distinct blocks. According to a dualist system, international law must be translated or transposed into domestic law.Art. 5 al. 4 Cst. 1999.