Activism as defence: The role of courts in shaping the relationship between constitutions and international law: A comparison of the apex courts of Switzerland, Germany and Austria

Schlegel, Stefan (2022). Activism as defence: The role of courts in shaping the relationship between constitutions and international law: A comparison of the apex courts of Switzerland, Germany and Austria. In: Belov, Martin (ed.) Courts and Judicial Activism under Crisis Conditions. Comparative Constitutional Change (pp. 43-60). Abingdon: Routledge

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More and more creativity is needed to argue away the fact that international law is increasingly of a binding and enforceable nature, even when it conflicts with constitutional norms. In some cases, where the friction surface between those bodies of norms is especially extended, like in Switzerland, courts had to admit this straightforwardly. Against that background, this chapter attempts a critical approach to the relationship between constitutional law and treaties. This approach distrusts the sophisticated arguments given by apex courts for granting primacy to treaties in specific cases while insisting on the principle of the supremacy of the constitution over treaty law in principle. My approach sets out from the presumption that courts have to give in to political realities and improved mechanisms of enforcement of international treaties and organise their jurisprudence around these constraints.

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