61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

those concerned, the rigorous separation of parents and children until 1943 was
also problematical, to say the least. 38
Switzerland’s refugee policy also appears highly questionable in terms of the
ordre public (public order) in private international law. From 1935, the Swiss
Federal Supreme Court made it quite clear in numerous decisions that Nazi
racial laws conflicted with the fundamental values of Swiss law and therefore
Switzerland’s ordre public. 39 This was disregarded by the Swiss authorities, which
adopted measures that directly followed on from the German racial laws: in
particular, the introduction of visas for German «non-Aryans» in October 1938,
by which Switzerland «made the German system of categorisation the basis for
its own restrictive immigration practice», 40 and the withdrawal of residence
permits, in November 1941, from German Jews who had been deprived of their
citizenship. 41 This conformism with anti-Semitic Nazi legislation in administrative
practice conflicted with the spirit of the Swiss ordre public as an expression
of liberal rule-of-law principles. 42
Diplomatic protection
Whereas under «classic» international law, nationals and stateless persons had no
defence whatsoever against the authority of their home state or state of residence,
this did not apply to foreign nationals. The provisions governing the status of
foreigners in international law, which were anchored both in international
common law and international treaty law, greatly restricted states’ powers over
foreign nationals. During the inter-war period, the legal view that foreign
nationals should certainly be guaranteed a core of fundamental rights and
freedoms (e.g., legal capacity, protection of life and physical integrity, rights
pertaining to liberty, protection of private property rights, the right to fair trial,
etc.) in accordance with the principle of the rule of law gradually gained ground. 43
If a state violated this minimum standard of rights, customary international law
established an obligation to stop this violation and restore the situation as
required by international law. This right to restitution under international law
could be enforced by the home state 44 of the individual concerned under specific
conditions. 45 However, the person whose treatment violated international law
had no direct claim to restitution under international law (principle of mediatisation
of individuals through their home states). If the violating state refused to
fulfil its obligation to provide restitution, the home state concerned could apply
various sanctions 46 in response to the wrongful act committed. The home state
could decide, at its own discretion, whether and how it would guarantee diplomatic
protection: under international law, the home state had – and still has –
no obligation to protect its nationals from treatment in other countries which
violates international law. 47
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