Art. 139a BV governs the examination of federal popular initiatives for their compatibility with international law. This provision was created in 2018 as an indirect counter-proposal to the withdrawn self-determination initiative and entered into force on 1 January 2019 (BBl 2019 219).
What does the provision regulate?
The Federal Assembly must examine every valid constitutional initiative to determine whether it is compatible with Switzerland's international legal obligations. This encompasses all types of international law — from international treaties to customary international law (Waldmann, BSK BV, Art. 139a N. 4). If incompatibility is established, the Federal Council and Federal Assembly must inform the electorate about the «significance and scope» of accepting the initiative.
Who is affected?
Directly affected are the initiative committees whose proposals are examined, as well as the electorate, who should receive complete information about possible conflicts with international law. The Federal Assembly bears primary responsibility for the examination procedure, while the Federal Council participates in informing the public.
What are the legal consequences?
Unlike Art. 139 para. 3 BV, established incompatibility with international law does not lead to the initiative being declared invalid. The main legal consequence consists in an enhanced duty to inform: the voting materials must provide objective and comprehensible information about the consequences of acceptance (Epiney, BSK BV, Art. 139a N. 8). The initiative remains valid and proceeds to a vote.
Concrete example
A popular initiative demands that Switzerland withdraw from the European Convention on Human Rights. The Federal Assembly establishes that this would be incompatible with international legal obligations. The initiative is not declared invalid, but the voting materials must explain in detail what legal and political consequences withdrawal would have — such as the loss of human rights protection or diplomatic consequences.
Art. 139a BV thus strengthens direct democracy through complete information, without restricting popular rights through additional grounds for invalidity. The people decide with knowledge of all consequences (BBl 2017 5355, 5380).
N. 1 Art. 139a FC was inserted into the Federal Constitution by resolution of the Federal Assembly of 21 December 2018 and entered into force on 1 January 2019 (BBl 2019 219). The provision arose as an indirect counter-proposal to the withdrawn popular initiative «Swiss Law Instead of Foreign Judges (Self-Determination Initiative)».
N. 2 The Federal Council's message of 5 July 2017 (BBl 2017 5355) identified the central problem: constitutional initiatives that do not violate mandatory international law (and therefore cannot be declared invalid), but nevertheless collide with other international legal obligations of Switzerland. This constellation led to considerable legal uncertainty about the consequences of accepting such initiatives.
N. 3 The historical legislature pursued three main objectives: First, strengthening direct democracy by maintaining the narrow grounds for invalidity (only in case of violation of mandatory international law), second, ensuring Switzerland's reliability under international law, and third, guaranteeing an informed decision by voters about possible international legal conflicts (BBl 2017 5355, 5380).
N. 4 Art. 139a FC supplements the provisions on the popular initiative for partial revision of the Federal Constitution (→ Art. 139 FC) and is closely connected with the procedure for validity review (→ Art. 139 para. 3 FC). The norm forms a bridge between popular rights (Title 4, Chapter 2 FC) and the relationship between domestic law and international law (→ Art. 5 para. 4 FC).
N. 5 In the context of the separation of powers (→ Art. 148 et seq. FC), Art. 139a FC establishes a special distribution of competences: The Federal Assembly examines compatibility with international law (para. 1), while the Federal Council and Federal Assembly jointly indicate the consequences of a possible acceptance (para. 3). This division of tasks reflects the constitutional position of the Federal Assembly as the supreme authority of the Confederation (→ Art. 148 para. 1 FC).
N. 6 The provision is also connected with → Art. 190 FC (applicable law), which establishes the binding nature of federal acts and international law for law-applying authorities. Art. 139a FC creates a procedural mechanism to make potential conflicts between new constitutional norms and existing international law transparent.
N. 7Duty to examine (para. 1): The Federal Assembly is obliged to examine, for every valid constitutional initiative, whether it is compatible with international law. The term «international law» encompasses, according to Waldmann (BSK BV, Art. 139a N. 4), all international legal obligations of Switzerland, not only mandatory international law within the meaning of → Art. 139 para. 3 FC.
N. 8Scope of examination: The compatibility review extends to international treaties, customary international law and general principles of law. Belser (BSK BV, Art. 139a N. 5) emphasises that «soft law» instruments must also be included in the assessment insofar as they establish concrete obligations.
N. 9Duty to inform (para. 3): If the Federal Assembly determines incompatibility, the Federal Council and Federal Assembly must jointly explain the «significance and scope» of accepting the initiative in the voting materials. This information must, according to Epiney (BSK BV, Art. 139a N. 8), be objective, complete and comprehensible to voters.
N. 10No declaration of invalidity: A determined incompatibility with non-mandatory international law does not lead to invalidity of the initiative. This fundamentally distinguishes Art. 139a FC from → Art. 139 para. 3 FC, which provides for declaration of invalidity in case of violation of mandatory international law.
N. 11Enhanced information transparency: The main legal consequence consists in the qualified duty to inform voters. Waldmann (BSK BV, Art. 139a N. 9) sees this as strengthening democratic will-formation through complete information about the consequences.
N. 12No prejudicial effect: The determination of incompatibility does not, according to Belser (BSK BV, Art. 139a N. 10), prejudice the later interpretation and application of an accepted initiative. The law-applying authorities remain obliged to seek an interpretation compatible with international law (→ Art. 5 para. 4 FC).
N. 13Scope of the duty to examine: Waldmann (BSK BV, Art. 139a N. 6) advocates a comprehensive duty to examine every initiative, while Epiney (BSK BV, Art. 139a N. 7) favours limiting it to initiatives with obvious potential for conflict. The practice of the Federal Assembly tends towards comprehensive examination.
N. 14Justiciability of the compatibility review: It is controversial whether the Federal Assembly's determination of compatibility with international law is subject to judicial review. Belser (BSK BV, Art. 139a N. 11) affirms limited review for arbitrariness, while Waldmann (BSK BV, Art. 139a N. 12) qualifies the determination as a political act without justiciability.
N. 15Scope of the duty to inform: It is disputed how detailed the information about possible international legal consequences must be. Epiney (BSK BV, Art. 139a N. 13) demands comprehensive presentation of all conceivable scenarios, while Waldmann (BSK BV, Art. 139a N. 14) advocates limiting it to the most likely consequences.
N. 16Initiative committees should already consider the international legal dimension when formulating their initiative. Early consultation of relevant international legal obligations can avoid later conflicts or at least make them transparent.
N. 17Parliamentary deliberation: The Federal Assembly should conduct the compatibility review in a structured procedure. Obtaining expert opinions from the Federal Office of Justice and, where appropriate, external international law specialists is recommended.
N. 18Voting campaign: When incompatibility is determined, special importance attaches to the voting materials. The information must be balanced and must not appear as voting propaganda, but must at the same time clearly identify the international legal risks.
N. 19Implementation of accepted initiatives: If an initiative identified as contrary to international law is accepted, all possibilities of interpretation compatible with international law must be exhausted in implementation. Where appropriate, international legal obligations must be renegotiated or — as ultima ratio — terminated.
Art. 139a FC — Case Law
Art. 139a FC was incorporated into the Federal Constitution in 2019 and has hardly been applied in case law so far. There are therefore no BGE that directly interpret or apply this provision. The following decisions deal with the fundamental constitutional principles that led to the introduction of Art. 139a FC, as well as related questions concerning the relationship between international law and domestic law in popular initiatives.
#I. Basic Principles of the Relationship between International Law and Domestic Law
BGE 133 II 450 E. 7
14 November 2007
The Federal Supreme Court defines peremptory international law and its precedence over national law.
This decision is relevant to Art. 139a FC as it determines the limits of peremptory international law that must be observed in the validity review of constitutional initiatives according to Art. 139a para. 3 FC.
«Peremptory international law (ius cogens) within the meaning of Art. 53 of the Vienna Convention on the Law of Treaties encompasses the totality of peremptory norms of general international law that are recognised by the international community of states as a whole as norms from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.»
#Proportionality Review in Initiatives Violating International Law
BGE 139 I 16 E. 5.5.1
19 December 2012
The Federal Supreme Court develops criteria for dealing with popular initiatives that violate international law prior to the introduction of Art. 139a FC.
Although this decision was rendered before the introduction of Art. 139a FC, it demonstrates the legal problems that led to the creation of the new article.
«In case of an irreconcilable conflict between international law and a constitutional provision adopted by the people, international law takes precedence in principle, provided that it concerns peremptory international law or the international legal obligations serve to respect human rights.»
BGE 143 I 129 E. 2.1
14 December 2016
The Federal Supreme Court specifies the requirements for the material compatibility of popular initiatives with higher-ranking law.
These principles are relevant to the application of Art. 139a FC as they shape the review procedure for initiatives violating international law.
«Cantonal popular initiatives must be compatible with higher-ranking law. The review of material lawfulness is conducted restrictively and is limited to obvious and serious violations of higher-ranking law.»
BGE 129 I 232 E. 3.2
7 April 2003
The Federal Supreme Court establishes the limits for declaring popular initiatives invalid.
This decision shapes the understanding of the exceptional situation in which initiatives can be declared invalid - a principle that was codified in Art. 139a FC.
«A popular initiative can only be declared invalid if it violates peremptory international law. This results from the fundamental importance of popular rights in Swiss democracy.»
Since Art. 139a FC entered into force on 1 January 2019, no BGE have been rendered that directly apply this provision. This can be explained by the fact that:
No federal constitutional initiatives have been put to a vote that would have triggered Art. 139a FC
The review procedure according to Art. 139a FC has not yet been practically applied
The Federal Assembly has not yet classified any constitutional initiative as violating international law
VB.2023.00485 of the Zurich Administrative Court
12 October 2023
The Zurich Administrative Court applies the principles of validity review to a municipal initiative.
This decision shows the practical application of the principles underlying Art. 139a FC at a subordinate level.
«The review of compatibility with higher-ranking law is conducted with restraint and is limited to clear violations of binding legal norms.»
#IV. Case Law on the Self-Determination Initiative (Background to Art. 139a FC)
#Discussion on Initiatives Violating International Law
Judgment 1C_591/2018 of the Federal Supreme Court
12 November 2018
The Federal Supreme Court deals with appeals regarding the Self-Determination Initiative, which contributed to the considerations that led to the introduction of Art. 139a FC.
This decision illustrates the constitutional tensions that Art. 139a FC sought to resolve.
«The initiative raises fundamental questions about the relationship between international law and domestic law that require constitutional clarification.»
The practical significance of Art. 139a FC will only become apparent with future constitutional initiatives that trigger the procedure defined in para. 3. However, the existing case law on related questions provides important interpretative guidance for the future application of this provision.