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member states may be deprived of their statehood in numerous and important matters of public administration, the fundamental relations between Confederation and Cantons are of contractual nature, i. e., they can not be changed but by mutual understanding. Thus, article 5 of the Federal Constitution, which guarantees to the Cantons their territory and sovereignty, is not, as other parts of the Constitution, subject to constitutional revision, unless the Cantons concerned agree. It is the same about the principle of equality of the Cantons. If unlimited powers of constitutional revision (“ Kompetenz-Kompetenz ") were vested in the Federal Government, no logical difference between a federal and a unitary state could be established. However, it must be said that the rights of member states within the Federal Constitution, beside the fundamental rights of statehood and equality, are presumed to depend on Federal constitutional law.
The legal personality of the Cantons in international law has not been taken away by the Federal Constitution. The Cantons can acquire rights and duties by treaties with foreign nations about specified matters, viz, administration of public property and border and police intercourse. Such treaties are to be negotiated by the Federal Council, because the Cantons are not authorized to have immediate official intercourse with foreign governments, except purely administrative relations to inferior officers of other states.
The statehood of Cantons in their mutual relations is determined by the contitutional limitations upon cantonal powers.
As far as cantonal law has not been superseded by Federal law, the Cantons have retained the status of states both in relation to the people re siding on their territory and towards each other. Therefore, the Cantons exercise the powers left to them in full independence, limited only by the rules of federal interstate law. Thus, the Cantons are above all authorized to make laws and provisions about all matters within their powers. It is a question of interpretation whether in matters ruled by Federal law the latter excludes implicitly cantonal legislation in cases not expressly settled by Federal law.
tions, as, e. g., on settlement, extradition, etc., have been treated in monographs. For further information consult the two leading commentaries on the Federal Constitution by Burckhardt and Schollenberger.
The Cantons exercise their powers autonomously not only as to their interior organization, but also as to interstate relations. In this respect, however, they are bound by article 60 of the Federal Constitution, which reads as follows:
All Cantons are bound to treat the citizens of the other confederated states like those of their own state in legislation and judicial proceedings.
But this reciprocity clause does not exclude a different treatment of persons residing in one Canton and those living in another.
Beside the autonomous regulation of matters of intercantonal importance, the Cantons have the power to conclude treaties among each other concerning such subjects. The treaty-making power of the Cantons is not identical with their legislative and administrative power, which covers a larger field of action. Article 7 of the Federal Constitution recognizes the right of the Cantons to make conventions among themselves upon legislative, administrative, or judicial subjects, i. e., upon all subjects of activity of a state. This general permission, however, is limited by a restriction of general character — all separate alliances and all treaties of a political character are forbidden. Though the Cantons may pursue a policy of their own as separate commoi
tonwealths, they may not combine to common political action by treaties.
While the jus foederis, albeit restricted, is recognized, the Constitution seems to exclude an interstate jus legationis, because diplomatic intercourse among Cantons is superfluous for ordinary transactions, and political cooperation of Cantons is formally forbidden. It is a question of little importance, and not yet decided by the Federal authorities, whether official delegates of a Canton enjoy on the territory of another Canton the privileges of exterritoriality.
One of the most important restrictions laid upon state powers is the formal and total exclusion of all means of self-aid. Though military legislation is within the exclusive power of the Confederation, the Constitution itself guarantees to the Cantons to a certain degree military self-administration and the right of disposing of the troops recruited in their territory, but only for maintaining interior order -- never for violence against other Cantons or foreign nations.
The interdiction of self-aid does not relate only to war, but to all kinds of self-aid, as retorsion, differential treatment, seizure, ect. All intercantonal differences must be settled amicably, i. e., by negotiations between the Cantons concerned or by arbitration or by the Federal Court.
2. Cantonal territory
The Federal Constitution guarantees to the Cantons their territories, but makes no other provisions relating to this subject. · Therefore, the territorial relations of Cantons with each other are ruled by common international law or by interstate treaties. Rivers forming the boundary between two Cantons are, according to a recent decision of the Federal Court, divided by the middle line, not by the thalweg, because the Swiss rivers are generally not navigable. Navigation, however, will become important in Switzerland and the Federal Assembly has voted this year a bill for a constitutional amendment conferring powers on the Confederation to make regulations on the exploitation of water powers and on navigation.
The intercantonal boundaries, as far as they are not geometrically fixed, can be changed by natural processes. If in such cases international law is to be interpreted by analogy to private law, it must be presumed that Swiss private law, as embodied in the new Federal civil code, is applicable.
If cession of territory from one Canton to another is to be effected, such cession has to take the form of an intercantonal treaty and must therefore be brought to the attention of the Federal Council. If the cessions have not the character of subordinate boundary regulations, but relate to a considerable territory, such treaties are certainly to be classed as political treaties, which are forbidden. However, such a cession might be in certain cases in the interest both of the Cantons concerned and the Confederation itself. In a case of this kind the Federal Assembly as presumptive possessor of all Federal powers would certainly be entitled to make such treaties lawful. But in no event intercantonal cession necessitates a revision of the Constitution, as some writers suppose. The Constitution enumerates the Cantons forming the Confederation, but only as political entities, which remain the same as long as the same political organization continues to exist on a part of the territory. Only in the case of the creation of new Cantons by way of fusion or dismembration constitutional revision would be necessary.
The territorial rights of the Cantons can under the Federal Constitution be modified, beside the unimportant case of physical changes, only by treaties and not, as in international law, by prescription, i. e., undisputed possession. Thus, the Federal Court held that the Canton of Zurich, which during more than half a century exercised sovereignty over the southern half of the Rhine at Schaffhausen, could not acquire legally that river territory because the Canton of Schaffhausen had never consented through its constitutional organs to an abandonment of its exceptional rights on the whole river. The court did not give arguments for its opinion, which is, however, justified because the Federal Constitution guarantees the powers vested by the cantonal constitutions in the state authorities.
The constitutional guaranty of state territory by the Confederation does not only protect the Cantons against attacks, it forbids every Canton to interfere with the status quo of another Canton. The interstate rules of vicinage are the same as those of international law, e. g., if a river flows through two Cantons, the upper Canton is obliged to secure to the lower one the natural flow of the water, but according to private law it is authorized to accumulate the water during the usual hours of rest of work. The pending constitutional amendment will give to the Confederation the necessary power of making provisions for the exploitation of intercantonal rivers. Since in all the most important water powers of Switzerland more than one Canton is interested, and this source of energy is a most valuable equivalent for coal, which must all be imported, the question of intercantonal rivers is one of great national concern and can not be longer left to interstate negotiations and quarrels.
So-called interstate servitudes are rare, but they exist and are recognized by the Federal authorities. By treaty one Canton can grant to another the exercise of territorial rights, e. g., the prerogative of conceding the right of fishing, or the incorporation of a township in the school or church system of another Canton.
5 AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. I, pages 245–249.
If intercantonal cessions of territory take place, the rules of succession of states are applied in the same way as in international law. The rights acquired under the former rule must be recognized by the new sovereign as if they were acquired under his own law.6
3. Intercantonal treaties The power of Cantons of concluding treaties is determined positively by the recognition of interstate treaties on legislative, administrative, and judicial matters and negatively by the prohibition of particular leagues and political treaties in general and by the condition that treaties on lawful subjects contain nothing contrary to the Confederation and to the rights of other Cantons. While this condition is clear and flows necessarily from the preeminence of Federal and interstate law over cantonal law, the two other prescriptions need some explanation. The notion of a political treaty is not defined by the Constitution and it is indeed impossible to do it. It may be said in general that an interstate treaty is political if it tends to strengthen the influence of one or more Cantons at the expense of others, either in state or in Federal politics, e. g., it would be unlawful if Cantons of similar political tendencies would combine for joint exercise of their powers relating to Federal legislation. There are conventions which in some cases may be purely businesslike, whilst under certain circumstances they might be irreconciliable with Federal interests, e. g., conventions concerning the construction of railways. Since the eetablishment of the Federal State in 1848 the question of political treaties has fortunately ceased to be a matter of actual Swiss politics, but in the stormy period of the liberal reforms in the thirties alliances of liberal Cantons on one side and of conservative and Catholic Cantons on the other played a great and dangerous rôle in Swiss politics.
The enumeration of lawful treaties, viz, treaties on legislative, administrative, and judicial matters, does not relate to special sub
6 AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol.