Constitutional Law
Constitutional Law
Constitutional Law
Fichier Détails
| Cartes-fiches | 62 |
|---|---|
| Langue | English |
| Catégorie | Droit |
| Niveau | Université |
| Crée / Actualisé | 12.05.2014 / 03.05.2023 |
| Lien de web |
https://card2brain.ch/box/constitutional_law
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Framework competency (meaning)
The federation lays down principles. The federation makes "skeleton laws", leaving the cantons enough latitude for detailed regulations.
Promotion competency (meaning)
The Federation "supports" or "encourages" efforts in areas for which the cantons are primarily responsible (e.g. culture, heritage)
Initiatives for complete revision of the constitution (requirements)
- Form: General proposal
- 100'000 signatures
- Double majority (people and cantons)
Popular initiative for partial revision of the constitution (requirements)
- Signature list (Prepared list to collect signatures needs to be sent to the Federal Chancellery)
- Collection of Signatures: 100'000 signatures within 18 months
- Submission at the Federal Changellery within 18 months
- Validity of the Initiative
Is a popular initiative valid?
- Consistency of form
- Cohesion of subject matter
- Compliance with mandatory provisions of international law
- Feasibility
Principle of consistency of form...
...initiative drafted exclusively in the form of
- a general proposal or of
- a specigic draft provision
Principle of cohesion of subject matter...
...intrinsic connection between the individual parts of the initiative (voters must be able to express their opinion clearly)
Compliance with mandatory provisions of international law...
...norms accepted by the international community of states as a whole as norms from which no derogation is permitted
Feasibility of a proposal...
...the imposibility has to be manifest and simple practical difficulties or legal problems in implementing a popular initiative do not lead to infeasibility
Fundamental Rights - Key aspects
- Beneficiaries
- Addressee
- Entitlements
- Content
- Sources
Fundamental Rights - Addressee
- Claims concerning fundamental rights can not be filed against private persons
- Exception: Men and women have the right to equal pay for work of equal value
Fundamental Rights - Beneficiaries
- Beneficiaries of fundamental rights are natural persons
- Some fundamental rights may be guaranteed to legal persons under private law (except protection of an aspect of human existence); legal persons constituted under public law can invoke a fundamental right only under exceptional circumstances (e.g. they act under private law)
Fundamental Rights - Entitlements
- Fundamental rights create individual entitlements
- Fundamental rights are conceived as directly enforcable rights of the indivuals in courts
Fundamental Rights - Content / Categories
- Protect individual freedoms necessary to safeguard human dignity and the development of the essential characteristics of a person
- Categories:
- Civil liberties
- Basic procedural rights
- Equality before the law
- Basic social rights
Fundamental Rights - Sources
- Constitutions on both the federal level and the cantonal level (Art. 190 important!)
- Various international treaties
Fundamental Rights - Restrictions
- Art. 36 very important!!!
- Restrictions on fundamental rights must have a legal basis
- Restrictions on fundamental rights must be justified in the public interest of by the fundamental rights of others
- Any restrictions on fundamental rights must be proportinate
- Essence of fundamental rights must be respected
Primary sources of public international law
- International treaties (conventions)
- International customs (customary international law)
- General prinicple of law
Monist theory
International law and national law are two components of a single body of law (International law prevails over national law)
Dualist theory
International law and national law are two independent systems of law, do not operate in the same sphere (international courts apply international law, national courts apply national law)
Doctrine of incorporation
No need for express adoption by national legislation, a rule of international law becomes automatically binding
Doctrine of transformation
Every rule of international law to be expressly adopted by the state. Only part of national legal system if adopted by the state
A subject of international law...
(a legal person) is an entity that is capable of possessing and exercising rights and duties under international law.
