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The Intercantonal Law of Switzerland (Swiss Interstate Law)

Published online by Cambridge University Press:  04 May 2017

Max Huber
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Extract

Interstate law is the law governing the relations between the members of a confederation of states with each other, in so far as these are opposed to each other as states. It is distinguished from international law because its subjects are not sovereigns, but belong to a governed body of a superordinate commonwealth. As opposed to federal state law it is characterized by having for its object not relations of supremacy and subordination between the federation and its members, but relations of coordination between the members of the federal state. Interstate law is an intermediary conception between the law of confederations and the law of nations.

Type
Research Article
Information
American Journal of International Law , Volume 3 , Issue 1 , January 1909 , pp. 62 - 98
Copyright
Copyright © American Society of International Law 1909

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References

1 Interstate law in contradistinction to international law signifies the law between the states of a compound state, particularly of a federal state, while international law relates to the law between nations, viz, fundamental sovereign states. There is no expression either in the German or in the French or Italian language which will precisely correspond to the American idea interstate. For the Swiss constitutional law there is of course an expression which exactly corresponds to the American idea interstate — intercantonal — the “states” of the Swiss Federal State being called Cantons. This term, however, is only applicable to Switzerland. It is precisely identical with the more general term interstate, with which it is used here without distinction referring to Switzerland.

To-day the “states” of Switzerland are regularly called Cantons, and more rarely “Stände” (old German term for political body). Before the Helvetic revolution the states of the Confederacy were termed “ Orte,” inasmuch as they were complete sovereign members of the Confederation.

2 English translation taken from Vincent, J. M., Government in Switzerland — New York, 1900 Google Scholar.

3 The expression “concordat” for intercantonal contracts seems to come from the fact that the first contract made between two Cantons, after the reestablishment of the cantonal personality of statehood under the Mediation of 1803, dealt with matters relating to the church. As the treaties between civil governments and the Roman curia (papal court) had been designated as concordats ever since the Middle Ages, it seems that these intercantonal agreements had also been given the name concordat. The name was then applied also in other cases which had nothing to do with church matters.

However, it does not follow that all intercantonal agreements were called concordats. The terminology has unhappily never been strictly adhered to, but it can be said that as a rule only those treaties were called concordats which established legal norms and did not deal with mere concrete relations. About the different meanings of the “eidgenössische Kankordate” (Federal concordats) before and after the introduction of the Federal Constitution of 1848, as opposed to the special concordats, it will be discussed farther on.

4 Modern intercantonal law has been fully and very ably treated by Bolle, Arnold, “Das interkantonale Recht,” La Chaux-de-Fonds, 1907 Google Scholar. This work is the only comprehensive and systematical description of the subject. Special questions, 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 Schellenberger.

5 American Journal of International Law, Vol. I, pages 245-249.

6 American Journal of International Law, Vol. I, pages 237-245.