The Swiss Public Initiative against Mass Immigration (‘Masseneinwanderungsinitiave’): Caught between Constitutional Sovereignty and Pacta Sunt Servanda

Abstract

This article seeks to bring some clarity to the publicly held debate on the Swiss federal popular initiative to limit immigration as it was adopted on 9 February 2014 by the Swiss people. It considers the crux of the matter, which is the implementation of the new Swiss constitutional article in the context of public international law. The initiative is stuck in between Swiss constitutional sovereignty and Swiss treaty obligations flowing from the agreement on free movement of persons between the European Union and the Swiss Confederation. Specific attention is paid to the democratic element anchored in the Swiss Constitution which, in contrast to other systems where the judicial element prevails, is of high importance for whole the process of a bilateral contractual relationship between the European Union and the Swiss Confederation.