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jects, but seems to cover the cantonal powers in all possible forms. Legislation in contradistinction to administration and justice can not mean legislation as constitutional expression of the supreme will of the state, but is identical with regulations, i. e., promulgation of abstract rules to be applied uniformly in the contracting Cantons, e. g., the concordat on the cattle trade is an example of a purely legislative convention, because it provides uniform private law on a special subject.

The existing interstate treaties are to be divided in two classes, viz, (a) Federal concordats and (b) particular concordats, and other interstate conventions. Federal concordats as they existed under the Mediation Constitution and the Federal treaty of 1815 and formed an intermediary form of intercantonal and Federal law can not be concluded since 1848, because the old Diet has been abolished, but the concordats existing in 1848 have been recognized by the Federal Constitution and exist to this day, though some embrace now only a minority of Cantons. Under the present Constitution those interstate conventions are called Federal concordats which either go back to the Federal concordats of the Mediation and the Confederacy or have been concluded since by a majority of Cantons or are at least of interest for and open to Cantons other than the original signataries. All other intercantonal conventions are particular concordats or ordinary conventions. Though the distinction between the two classes of intercantonal agreements is not very sharp, the Federal concordats are in one respect differently treated, inasmuch as the Federal Council has to watch ex officio, not only as in other concordats at the request of the parties, over the observation of Federal concordats.

The Federal Constitution does not only place limitations of material character on the treaty-making power of the Cantons, but it contains also prescriptions of formal nature. The contracting Cantons are bound to submit all conventions concluded among themselves to the Federal authorities, viz, the Federal Council, which is authorized to prevent the execution of unlawful treaties. This prescription is purely formal. Though the Federal Court refused once to apply a convention not submitted to the Federal Council, an intercantonal treaty is nevertheless executory according to the prevailing opinion as soon as it is ratified by the cantonal authorities in which the treaty-making power is vested, even if the Cantons have not brought it to the attention of the Federal Council. If, on the contrary, the constitutional prescription has been observed and the interstate convention has been approved by the Federal Council this approbation has not the character of a final sanction. If later on either the Federal Council or the Federal Court have to secure the execution of the convention, they are authorized to examine again its lawfulness.

Interstate treaties may conflict with Federal law or with the rights of other Cantons or with rights and interests of the Confederation. In the first case they are, so far, nul and void; in the two other cases the Federal Council has power to prohibit their execution. If the Federal Council refuses to recognize such a convention, or if other Cantons protest against it, the convention is to be brought before the Federal Assembly, which examines ex officio the lawfulness of the assailed treaty and pronounces either approbation or prohibition. But even in this case the Federal Assembly can come back on its decision and the Federal Court is not bound by such an approbation of the Federal Parliament.

If Federal law is changed, either by ordinary legislation or by constitutional revision, interstate treaties become ipso facto nul and void as far as they conflict with the new Federal law.

If two Cantons settle matters of common interest, not by formal treaties, but only in the way of a modus vivendi by which no party is legally bound, the approval of Federal authorities is not necessary. JIowever, the Federal Council, which has to watch over Federal law, could intervene and Cantons injured in their rights might lodge a complaint with the Federal Court against an unlawful practice of other Cantons.

If intercantonal treaties are not unlawful, they are not only allowed, but effectively protected by Federal law, even if they have not been submitted in due time to approval. In the case of Federal concordats the Federal Council has to watch ex officio over their execution, at least as far as public interests are engaged. As regards particular concordats and other interstate conventions the Federal


Council intervenes only at the request of a Canton and it is obliged to secure in such a case the execution of intercantonal treaties, even, if necessary, by force. In such case, however, the Canton which is in the rôle of the defendant will probably contest the legal point of view of the plaintiff, so that before a Federal decree of execution may

be issued the Federal Court has to decide the case. If a Canton is reluctant to execute a sentence given against it, the Federal Council is bound to compel it.

But practically intercantonal disputes regarding conventions do not have the character of an actual conflict, but that of a legal dispute, which is settled by the Federal Court if the parties do not institute an arbitral tribunal for the case. Besides the provisions of the Federal Constitution for the judicial settlement of interstate differences which are treated below, the Constitution provides still another mean which secures indirectly but very effectually interstate treaties. Any private individual or corporation may lodge a complaint (petition of public law) with the Federal Court, if deemed to be injured by nonapplication or wrong application of any intercantonal agreement by cantonal officers. The subjective rights acquired through or under intercantonal treaties enjoy the same judicial protection as the rights granted by the Federal or cantonal constitutions or by international treaties. This jurisdiction of the Federal Court relates only to questions of public law, so that cases in which cantonal courts apply private law established by concordats can not be brought before the Federal Court as petitions of public law, but only as ordinary complaints, under the same circumstances under which an ordinary appeal lies from the cantonal civil courts to the Federal Court. It is the same with penal prescriptions of concordats.

The conclusion of intercantonal treaties is ruled by cantonal constitutional law. In all Cantons the executive power is authorized to negotiate with other cantonal governments, either at its own initiative or at the request of the Parliament. In some cases of Federal concern, if Federal legislation seemed to be impracticable for the time

, the Cantons negotiated concordats at the invitation of the Federal Council and under the presidency of a Federal councilor; thus, recently the concordat concluded in order to adapt interstate law to international law concerning the cautio judicatum solvi (convention of The Hague) and the concordat on automobile traffic.

By the Federal law on fishing the Cantons are even bound to make conventions for regulating the fisheries in intercantonal waters.

Before the ratification, as an act of interstate intercourse, can take place, i. e., before the covenanting Cantons declare to each other to be bound by the agreement they have negotiated and signed by the cantonal executive authorities, the latter have to obtain the approbation of the cantonal legislative assembly and in many

Cantons besides that the sanction of the people. In some Cantons the constitution prescribes expressly that all interstate conventions, or at least the most important classes of them, have to pass the plebiscite in the same way as ordinary legislative acts (obligatory referendum), or the popular vote is to be taken because all decrees of the parliament, and therefore also the decree of ratification of an interstate agreement, are subject to the final sanction of the voters. In other Cantons there exists only a facultative referendum (i. e., depending on being requested by a certain number of citizens) or the conclusion of interstate conventions is vested exclusively in the legislative power. In practice the cantonal executive officers are generally competent to make agreements on minor matters or without legal force (modus vivendi), especially reciprocity declarations.

The extinction of intercantonal treaties as consequence of their becoming impossible or by mutuus dissensus of the parties or other causes general to all contracts does not differ from that of international treaties. Regarding denunciation of intercantonal conventions there is, according to the opinion of the Federal Court, to be made the same distinction as in international law, viz, between conventions having a concrete object (e. g., territory, servitude, financial guaranty, etc.) and concordats establishing for the parties common rules of law (concordats). In the first case denunciation is excluded, unless the maintenance of the treaty becomes for one of the parties irreconcilable with its existence as an independent community or unless circumstances have changed to a degree that the raison d'être of the treaty has ceased to exist. The theory of the clausula rebus sich stantibus has been recognized by the Federal Court as applicable to interstate agreements. In the case of concordats we must distinguish between Federal concordats anterior to the year 1848 and other conventions of this character. The former are still to-day subject to the special system of denunciation established in 1836; the latter, on the contrary, can be denounced freely at any time, in the case of modern Federal concordats, by simply giving notice to the Federal Council.

As for the abolition of interstate treaties by Federal law and Federal authorities the reader may be referred to that which has been said above.

4. The pacific settlement of intercantonal differences · It has already been stated that self-aid of all kinds is banished from interstate relations. The settlement of disagreements and disputes is left in the first line to interstate negotiations, but there is no constitutional prohibition against Federal good offices and mediation being requested or offered. If an amicable understanding can not be arrived at, the Cantons, if they do not drop the question, are compelled to have recourse to judicial proceedings. Two possibilities are offered to them — arbitration and process before the Federal Court. The first eventuality is of no practical importance and never resorted to, but the Constitution formally empowers and obliges the Federal Council to execute arbitral sentences in intercantonal disputes. The normal way of settling intercantonal disputes is by petition to the Federal Court. This supreme tribunal of Switzerland, which has its seat not as the Federal Council and Assembly in Berne but in Lausanne, is composed of sixteen judges and nine deputy judges. No special provision is made for the representation of the states, only by the act of organization of Federal justice it has been made a duty of the Federal Assembly, which elects the judges, to provide for a representation of the three national languages. The judges who are citizens of a Canton being a party in a trial can not sit in the court for that case.

The judges enjoy on the territory of the Canton where they exercise their functions the same immunities which are accorded to the Federal Council. Before the constitutional revision of 1874 the Federal

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