New zealand law commission

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A82 Executive authority in Switzerland is exercised by the Federal Council, headed by the President, and the Federal Chancellor. The Federal Council has seven members elected by a joint meeting of the two Houses of Parliament. The electorate must vote on amendments to the Constitution, and it may vote on laws and on international treaties. The Federal Council negotiates and signs treaties and has the power to discontinue an unsatisfactory project without consulting the Federal Assembly.290

A83 Once a treaty has been negotiated and signed, there are four possible procedures by which treaties can be concluded, depending upon their nature.

  • Agreements which Parliament has authorised in advance – those which necessitate a provisional entry into force without delay and those which relate to matters of a purely administrative or technical nature and are of minor importance – may be concluded by the executive alone.

  • The agreement may require approval by Parliament.

  • The agreement may be subjected to an optional referendum as provided for in Article 89(3) of the Constitution. This category includes: treaties concluded for an indefinite period and without possibility of denunciation; treaties implying multilateral unification of law; and treaties relating to the adherence to international organisations. Treaties can also be subjected ad hoc to an optional referendum by a discretionary decision of the Federal Assembly, under Article 89(4) of the Constitution. Although possible under this provision, the Assembly generally refrains from putting politically and legally sensitive treaties to referendum.

  • The agreement must be approved by compulsory referendum. Article 89(5) provides that treaties which provide for the adherence to supra-national organisations and to organisations for collective security must be subjected to compulsory referendum.291

A84 Although the Constitution provides that the Federal Assembly must approve treaties, it does not specify at which stage in the treaty making process this is to occur. The usual procedure involves specific approval by Parliament between signature and ratification, although in some cases the approval is sought earlier, in advance of negotiations. The approval of a treaty by the Federal Assembly is in effect an authorisation to the Federal Council to ratify it, by way of federal decree. Parliamentary involvement is not restricted to one point in the treaty making process: sometimes parliamentary involvement occurs at a number of stages. For example, if authorisation was sought prior to negotiation the treaty may be subsequently submitted to Parliament for specific approval after ratification – ratification having been given subject to approval.292

A85 There is basically no possibility for Parliament to influence the content of a draft treaty or to modify it. Parliament cannot amend the text of the treaty itself because in approving the treaty the chambers are acting upon federal decree. Generally it is the executive which suggests reservations and issues interpretative declarations.

A86 However, Parliament also has the power to qualify its approval by requiring the executive to make specific reservations or declarations when ratifying a treaty. Therefore it can change the reservations and declarations formulated by the executive; it can introduce new reservations or declarations; and it can ask the executive to examine whether a specific reservation can be omitted from the treaty. Although it is the executive which has the power to decide whether or not to terminate or denounce a treaty, Parliament arguably has the power to force the executive to carry out either of these actions, and this has on occasion occurred.293 The legislature insists upon regular and timely information from its preparatory commissions, and important treaties undergo comprehensive scrutiny (particularly in relation to possible membership of the European Union).

A87 In 1991, a preparatory commission of the National Council formulated proposals for increased parliamentary participation in treaty making. It was suggested that before negotiations took place with international organisations Parliament should be more fully and regularly informed about international developments, and that consultation should take place with the External Affairs Com­missions of the Federal Assembly. It was also suggested that the External Affairs Commissions send observers to negotiations of treaties and international conferences.

A88 The executive rejected the suggestion of obligatory consultation of parliamentary commissions before treaty negotiations and the inclusion of observers in Swiss delegations to international conferences. But a diluted version of the other proposals was accepted which will enhance parliamentary participation at an early stage, emphasising regular information and consultation.294

A89 In relation to the application of treaties in domestic law, after ratification and upon official publication, treaties are directly enforceable in law. In the monistic tradition, any self-executing treaty can be enforced by an individual in a court.

A90 In summary, Switzerland has several different processes for the conclusion of a treaty, depending upon the nature of the treaty in question. This practical and flexible approach allows for adequate scrutiny of those agreements with significant implications but also ensures that participation in treaty making is efficient. Parliament can become involved prior to negotiation, however, guidelines specifying which treaties are to be subjected to particular procedures are required to ensure that parliamentary involvement is consistent. Once the contents of a treaty have been decided upon, Parliament does not have the ability to influence or modify its terms.

A91 Swiss treaty making provides an alternative method of dealing with urgent or sensitive treaties, whereby ratification is subject to denunciation in the case of subsequent refusal of parliamentary consent. Unique to Swiss politics is the use of the referendum to obtain the direct consent of the electorate. In the case of agreements with onerous obligations, the use of an optional referendum is perhaps the most democratic procedure for obtaining approval. However, its successful employment may in part be due to the fact that referenda form an integral part of political participation in Switzerland.

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