|Cours||Introduction to law|
- The definition of law
- The State
- The different branches of law
- The sources of law
- The great formative traditions of law
- The elements of the legal relationship
- The application of law
- The implementation of a law
- The evolution of Switzerland from its origins to the 20th century
- Switzerland's domestic legal framework
- Switzerland's state structure, political system and neutrality
- The evolution of international relations from the end of the 19th century to the middle of the 20th century
- The universal organizations
- European organisations and their relations with Switzerland
- Categories and generations of fundamental rights
- The origins of fundamental rights
- Declarations of rights at the end of the 18th century
- Towards the construction of a universal conception of fundamental rights in the 20th century
To understand how Europe has developed today, we must look at the consequences of the Second World War.
The Council of Europe[modifier | modifier le wikicode]
Europe emerged bloodless from the Second World War. The discovery of concentration camps is a horror that upsets the whole of Europe, but also the world.
Two superpowers will emerge in opposition: the United States and the USSR. An antagonistic ideological opposition marked by a different socio-economic ideology. Europe is divided by an "iron curtain" which is symbolized by the Berlin Wall.
Representatives of the resistance movements, namely France, Denmark, Italy, the Netherlands, Norway, Poland, Czechoslovakia, Yugoslavia and Germany, met in secret in Geneva in 1944. The objective is to consider not only the reconstruction of Europe, but also the possibility of uniting it. In particular through the Graduate Institute of International Studies, which brings together Europe subjugated by Nazism, political refugees and embodies a liberal space.
In 1946, Churchill launched his appeal from Zurich. This evolved idea was taken up by the first major post-war European political congress held in Montreux in 1947.
From 8 to 10 May 1948, the Hague Congress was held: it brought together about a thousand people from 19 European countries, deeply divided between unionists, supporters of intergovernmental cooperation, and federalists in favour of transferring sovereignty to the European structure that was to be created. A political resolution will be adopted calling for:
- a European assembly which will be the Council of Europe;
- a human rights charter, namely the 1953 European Convention on Human Rights;
- a Supreme Court which will be the European Court of Human Rights.
From this congress was born the European movement whose action would later lead to the creation of the Council of Europe. This proposal will be taken up by the French Foreign Ministers, Robert Schuman and the Belgian Spaak. The objective is to create the equivalent of a European constituency bringing together an assembly of delegates from national parliaments in order to prepare for the transfer of part of the sovereignty of Member States to a European identity.
The Council of Europe was established on 5 May 1949 by a convention signed in London by ten countries (France, Belgium, Denmark, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden, United Kingdom) and its headquarters was designated in Strasbourg as a symbol of reconciliation between Germany and France.
It is an organisation that now includes almost all the countries of the European continent, with the exception of Belarus and Kosovo. It develops intergovernmental cooperation activities, particularly in the fields of culture, social, health, education and the environment.
The organs of the Council of Europe are:
- Consultative and Parliamentary Assembly: a deliberative body composed of representatives of the national parliaments of the Member States. Switzerland is entitled to 6 seats (4 national councillors + 2 state councillors).
- Council of Ministers: intergovernmental body competent to act on behalf of the Council of Europe.
- Secretariat: composed of the Secretary General elected by the Parliamentary Assembly on the recommendation of the Council of Ministers.
Its role has been considerable in spreading democratic values and respect for human rights on the European continent.
Its main task is to draw up European conventions and agreements. In 1950, the member countries of the Council of Europe signed the European Convention on Human Rights, which entered into force in 1953.
This European Convention on Human Rights is a real revolution in international relations. From now on, there is an international mechanism of precise controls and sanctions providing 4 essential innovations:
- it recognizes that an individual has rights to which the reason of State must bow;
- created a court to guarantee the principles it affirms: creation of the European Court of Human Rights;
- establishes a genuine legal obligation for States;
- allows an individual to file a complaint against a country responsible for a violation of the rights listed in this Convention.
The European Convention for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment[modifier | modifier le wikicode]
Since the end of the Second World War, there have been an inordinate number of international texts prohibiting and condemning torture.
This convention states that no one may be subjected to torture or inhuman and degrading treatment. However, most laws do not impose a control mechanism to impose penalties. On the other hand, the control is carried out after the fact. In these circumstances, increasing attention has been paid to preventive methods to address the roots of the phenomenon of torture.
The origins of this agreement date back to a proposal made by a Geneva banker, Jean-Jacques Gautier [1912 - 1988]. He considered that as a banker, he had responsibilities to society.
It proposes the development of a system of visits to all places of detention in order to ensure control and to be able to combat torture not ex post, but ex ante.
Its proposal first materialized at the United Nations level in the form of a protocol. The text is prepared by a committee and a Swiss commission of lawyers. It was officially submitted by Costa Rica to the United Nations Commission on Human Rights in March 1980. However, it was blocked, leading to a mobilisation at European level to implement Jean-Jacques Gautier's idea. Subsequently, the Assembly of the Council of Europe adopted a recommendation on torture, including in an annex the draft convention drawn up by Jean-Jacques Gautier, his committee and the International Committee of Jurists.
After four years of discussions, the project was completed on 26 November 1987, ratified in 1988 and entered into force on 1 February 1989. As a result, the European Committee for the Prevention of Torture was created with the aim of preventing torture.
This protection is provided by a committee of experts chosen for their integrity and independence, they are entitled to visit the places where arrested persons are staying (prison, police station, psychiatric establishment, etc.). After each visit, the Committee shall submit a report to the State concerned containing recommendations aimed at better protecting the rights of persons deprived of their liberty. If the State refuses to take the recommendations into account, the report can be made public: the International Committee of the Red Cross calls on public opinion to denounce the conditions of detention of prisoners of war. However, this only applies to States that have signed the Convention.
The European Union[modifier | modifier le wikicode]
Jean Monnet (1888-1979) was an economist born in Cognac who held various positions in the French government and the League of Nations before the war. After the war, General de Gaulle called on him to appoint him as commissioner of the plan in order to carry out an industrialization program.
The federalist approach advocated by the supporters of European confederalism aims to address the issue of state sovereignty. It would not overcome this obstacle and would limit intergovernmental cooperation.
It is to avoid this type of interference with sovereignty that he will propose to Foreign Ministers Robert Schuman a sectoral approach to the construction of Europe: the idea was to place certain key sectors of economic life under European supranational authority. It was not a question of confronting nationalisms, but of injecting into European life an integrating virus that could bring together European States in certain key sectors. It will make it possible to create de facto solidarity in key sectors.
The first idea is to bring coal and steel production under European control. It is a sectoral integration in a particular field that makes it possible to bypass the nationalist opposition.
In April 1951, the European Coal and Steel Community was established, which came into force in 1952. The treaty was signed by Germany, France, Benelux and Italy. It is headed by a supranational high authority headed by a college of senior officials independent of member governments. The first president is Jean Monnet.
The High Authority is responsible for managing the pooling of coal and steel resources. The decision and recommendations are binding on the 6 Member States themselves, which are represented by a Special Council of Ministers that works in conjunction with the High Authority. A Consultative Assembly composed of members of the 6 national parliaments completes it. This institutional framework is also supplemented by a Court of Justice.
After sectoral integration, two initiatives will be launched:
- create a European Defence Community: this is a failure due to the negative attitude of the French Parliament, which refuses to ratify the Treaty in 1954.
- Political Community: led to the signing in Rome in 1957 of a treaty establishing the European Economic Community (EEC), also known as the "common market", which entered into force in 1958 and provides for a customs union and the implementation of a common agricultural policy. Later on, it will be transformed, in particular following the Maastricht Treaty, making the EEC a European Union. Other treaties will amend it, the most recent of which dates from 2007 and has been in force since 2009 is the Treaty of Lisbon.
To achieve the common objectives, in particular that of creating a single market, the Member States have developed a customs union and the free movement of products, but also services and people within a framework of harmonising economic policies and protecting free competition.
At European level, there is a tangle of competences:
- European Parliament: composed of members elected by direct universal suffrage in the Member States since 1979. Even if he is not the legislator, he is nowadays a co-legislator with legislative tasks, but not all of this power. On the other hand, it has budgetary power and democratic control over the European institutions. The European Parliament elects the President of the European Commission, currently Jean-Claude Juncker. This highlights a difficulty with the sectoral approach in order to have a clear vision of the responsibilities of the various bodies of the European Union. Council: it consists of one representative at ministerial level from each Member State of the European Union. Each representative and authorized to commit his government. According to the Lisbon Treaty, this Council is chaired by a President elected by the Heads of Member States for a 2-year term of office, currently Donald Tusk. Its function is mainly to carry out the Union's legislative functions in collaboration with the European Parliament. It takes action on the Common Foreign and Security Policy, meeting twice a year.
Jean-Claude Juncker: its function is to be a true executive composed of one Commissioner per Member State; the team of Commissioners is ratified by the European Parliament. Its vocation is to be the executive body, and the Treaty of Lisbon also establishes the position of Commissioner for Foreign Affairs and Security represented by Frederica Mogherini. On the other hand, it prepares draft laws and submits them to the Council and Parliament. To carry out its activity, it is composed of 25,000 civil servants.
- Court of Justice: in order to ensure the uniform and correct application of the legislation, a common court is established, which sits in Luxembourg. It includes the Court of Justice and a Court of First Instance of the European Communities which ensures compliance with the Community's Treaty Law. Judges are appointed by the Council.
The primary sources of Community law are the Treaties and then the:
- regulations ;
- directives that oblige Member States to oblige a policy even if it leaves the freedom to choose the means of compliance;
- decisions that are binding measures for recipients who may between the State or individuals;
- recommendations that are instruments for indirect actions in the fields of monetary policy management;
- opinions express the opinion of the community of European Union countries.
The European Free Trade Association and the European Economic Area[modifier | modifier le wikicode]
It was created in response to the creation of the European Community. The initiators are the United Kingdom, Denmark, Austria, Portugal, Sweden, Norway and Switzerland.
It was created on 4 July 1960, the aim being to create a European free trade organisation against the influence of the EEC on European countries that did not participate in it. The objective was to establish a trade agreement between member countries as opposed to the UNECE, which proposes sectoral integration. Finland, Iceland and Liechtenstein will join EFTA.
Its council acts as a governing body. Each State is represented by one representative with one vote in the Council. It meets twice a year at the level of ministerial representations and twice a year at the level of permanent representatives. Its headquarters are in Geneva.
As the European Community evolves, the EFTA countries will have to leave it to join the European Union. In 1984, the EEC and EFTA will intensify their relations with the result of the Porto Agreement of 2 May 1992, which establishes the European Economic Area.
It was negotiated between the EFTA and EEC countries as a preparation for integration.
Switzerland refused this agreement with a double "no" from the People and the Cantons on 6 December 1992, while Austria, Finland and Liechtenstein accepted it.
In the meantime, the other countries have joined the European Union. At present, EFTA has only 4 members, namely Switzerland, Iceland, Liechtenstein and Norway.
The 1994 Treaty is based on two bases:
- the CEE base;
- the AELEEE base.
The European Economic Area now consists of the European Union, Norway, Iceland and Liechtenstein.
The European Economic Area consists of a Council with representatives of the Council of the European Union and a member of each member's government. This Joint Committee is responsible for the day-to-day management that involves the implementation of the Porto Agreements. It is composed of ambassadors from the EFTA States and representatives of the European Union.
Of course, Switzerland has actively participated in the negotiation of this European Economic Area. In preparing for the entry, which was not made, the Federal Council had established an entry policy by asking Parliament to review the legislation. This unsuccessful project was called EUROLEX, which allowed Switzerland to comply with the European area.
On December 6, 1992, the People and the Cantons refused to allow the deployment of this economic space marginalizing Switzerland. Faced with this refusal, the Federal Council and Parliament had to find another solution, the famous bilateral ones.
Since this refusal, Switzerland has not been in a favourable position, as it is neither part of the European Union nor of the European Economic Area.
Despite this refusal, Switzerland is obliged to follow the main guidelines of the European Union in adapting its legislation to that of Europe. In anticipation of Switzerland's entry into the EEA, the Federal Council had amended Swiss legislation, after the rejection of the agreement a large part of the EUROLEX project was retained, which evolved into the SUISSELEX project to avoid the marginalisation of Swiss legislation in relation to European legislation.
As a result, Switzerland will be obliged to negotiate with the European Union leading to the bilateral agreements I concluded between the European Union and the Swiss Confederation. These are agreements signed in 1999 in Luxembourg and approved on 21 May 2000 by 67% of the Swiss people. These agreements were in the form of an order subject to an optional referendum.
Basically, these bilateral agreements satisfied everyone, coming into force in June 2002. These are sectoral agreements covering a range of sectors:
- land transport;
- air transport;
- the free movement of persons;
- public procurement;
- and aims to eliminate technical barriers to trade in the field of competition.
Switzerland will conclude bilateral agreements II constituting Switzerland's participation in the Schengen and Dublin agreements. They were accepted by the people at 55% of "yes" in 2005. They make it possible to strengthen its cooperation with the European Union in the areas of:
- the police;
- of the asylum.
This prevents Switzerland's borders from being blocked by systematic controls on Swiss nationals.
Annexes[modifier | modifier le wikicode]
- Churchill – discours de Zurich
- Jean-Jacques Gautier et la prévention de la torture : l’idée d’action
References[modifier | modifier le wikicode]
- Publication de Victor Monnier repertoriées sur le site de l'Université de Genève
- Hommage à Victor Monnier sur le site de l'Université de Genève
- Publications de Victor Monnier sur Cairn.info
- Publications de Victor Monnier sur Openedition.org
- Page personnelle de Victor Monnier sur le site de l'Université de Aix-Marseille
- En Hommage À Victor Monnier.” Hommages.ch, 11 Mar. 2019, www.hommages.ch/Defunt/119766/Victor_MONNIER.