1Untersteht der Genehmigungsbeschluss eines völkerrechtlichen Vertrags dem obligatorischen Referendum, so kann die Bundesversammlung die Verfassungsänderungen, die der Umsetzung des Vertrages dienen, in den Genehmigungsbeschluss aufnehmen.
2Untersteht der Genehmigungsbeschluss eines völkerrechtlichen Vertrags dem fakultativen Referendum, so kann die Bundesversammlung die Gesetzesänderungen, die der Umsetzung des Vertrages dienen, in den Genehmigungsbeschluss aufnehmen.
Overview
Art. 141a Cst. obligates Switzerland to implement international treaties. The provision was inserted into the Constitution on 28 November 2021 as a counter-proposal to the Self-Determination Initiative (BBl 2021 2766).
What does the norm regulate? Art. 141a Cst. stipulates that international treaties shall be implemented. This includes all binding international agreements of Switzerland, such as the European Convention on Human Rights or the bilateral treaties with the EU. Implementation encompasses both the adaptation of Swiss law and the correct application by authorities and courts.
Who is affected? All state authorities at federal, cantonal and municipal level must observe the provision. Courts are also obligated to strive for an interpretation in conformity with international law in the event of legal conflicts. Citizens can invoke correctly implemented international treaties.
What legal consequences arise? Art. 141a Cst. confirms the previous practice of interpretation in conformity with international law (BGE 139 I 16). The Federal Supreme Court has clarified that the norm does not create an absolute priority rule, but rather represents a clarification (Judgment 1C_345/2022 E. 3.2). In cases of irresolvable conflicts between international law and Swiss law, the authorities must find an appropriate balance.
Example: A canton wants to enact a law that restricts freedom of expression. In doing so, it must observe Art. 141a Cst. and examine whether the law is compatible with Art. 10 of the European Convention on Human Rights. If not, the cantonal law must be adapted or interpreted in such a way that it respects international legal obligations.
N. 1 Art. 141a of the Federal Constitution was inserted into the Federal Constitution as a counter-proposal to the withdrawn popular initiative «Swiss law instead of foreign judges (Self-determination initiative)» in the context of the popular vote of 28 November 2021. The provision entered into force on 28 November 2021 (FGz 2021 2766).
N. 2 The norm arose from the political tension between safeguarding national sovereignty and compliance with obligations under international law. The indirect counter-proposal was intended to create a balance between these two concerns without fundamentally questioning Switzerland's monist system (FGz 2019 3731, 3739 ff.).
N. 3 With Art. 141a of the Federal Constitution, the Federal Assembly intended to clarify the existing legal situation, not to fundamentally change the relationship between international law and domestic law. The Federal Council's message emphasises that Switzerland continues to want to comply with its obligations under international law (FGz 2019 3731, 3742).
N. 4 Art. 141a of the Federal Constitution is systematically classified in Title 4 of the Federal Constitution on «People and Cantons», specifically in Chapter 2 on «Initiative and Referendum». This placement underlines the connection with democratic participation in international treaties.
N. 5 The provision is closely related to → Art. 5 para. 4 of the Federal Constitution (observance of international law), → Art. 139 para. 3 of the Federal Constitution (grounds for invalidity of popular initiatives), → Art. 140 of the Federal Constitution (mandatory referendum for important international treaties) and → Art. 141 of the Federal Constitution (optional referendum). In addition, the connection to → Art. 190 of the Federal Constitution (applicable law) and → Art. 193 para. 4 of the Federal Constitution (peremptory international law) must be observed.
N. 6 In the federalist context, Art. 141a of the Federal Constitution supplements the provisions on the distribution of powers between the Confederation and the cantons (→ Art. 3 of the Federal Constitution, → Art. 49 of the Federal Constitution). The implementation of international treaties often affects both levels of government.
N. 7«International treaties»: The term encompasses all international treaties concluded by Switzerland, regardless of their designation (convention, agreement, accord etc.). This includes bilateral and multilateral treaties, including the ECHR and the bilateral treaties with the EU (Ehrenzeller/Schindler/Schweizer/Vallender, SGK BV, 4th ed. 2023, Art. 141a N. 3).
N. 8«Implementation»: Implementation refers to both the transformation of international law norms into domestic law and their application by authorities and courts. The term is to be understood broadly and encompasses all state measures for the fulfilment of obligations under international law (Waldmann/Belser/Epiney, BSK BV, 2nd ed. 2024, Art. 141a N. 5).
N. 9Implicit requirement: Art. 141a of the Federal Constitution presupposes that a validly concluded international treaty that is binding on Switzerland exists. The provision does not regulate the conclusion or termination of treaties, but exclusively their implementation.
N. 10 Art. 141a of the Federal Constitution primarily contains a clarification function: The provision confirms that international treaties are to be implemented without, however, establishing an absolute rule of precedence. The norm does not create a new hierarchy between international law and domestic law (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, § 14 N. 82a).
N. 11 The provision establishes an implementation obligation for all state authorities at federal, cantonal and municipal level. However, this obligation does not exist absolutely, but within the framework of the constitutional order (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1950a).
N. 12 In case of conflicts of norms between international treaties and domestic law, interpretation in conformity with international law continues to apply. Art. 141a of the Federal Constitution does not change this established principle of interpretation. In case of conflict, the principles of practical concordance are to be applied (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 7 N. 28).
N. 13Scope of the implementation obligation: Ehrenzeller/Schindler takes the position that Art. 141a of the Federal Constitution merely has a declaratory character and confirms existing practice (SGK BV, Art. 141a N. 8). In contrast, Waldmann sees in the provision a constitutional anchoring of the implementation obligation with constitutive character (BSK BV, Art. 141a N. 9).
N. 14Relationship to Art. 190 of the Federal Constitution: The relationship between Art. 141a of the Federal Constitution and Art. 190 of the Federal Constitution is disputed. Rhinow/Schefer argue for a harmonising interpretation of both provisions (Schweizerisches Verfassungsrecht, § 14 N. 83). Biaggini, on the other hand, emphasises the independence of Art. 141a of the Federal Constitution as a specific implementation norm (BV-Kommentar, 2nd ed. 2017, Art. 141a N. 4).
N. 15Schubert practice: Legal doctrine is divided on whether Art. 141a of the Federal Constitution has effects on the Schubert practice. Häfelin/Haller take the view that the provision does not affect the Schubert practice (Bundesstaatsrecht, N. 1950b). Künzli/Kälin, on the other hand, see in Art. 141a of the Federal Constitution a strengthening of international law vis-à-vis subsequent domestic law (SZIER 2022, p. 245, 256).
N. 16 In legislation, Art. 141a of the Federal Constitution must be observed already in the law-making process. The legislator should identify and avoid potential conflicts with obligations under international law at an early stage. The legislative materials should explicitly address the relationship to international treaties.
N. 17Authorities and courts must examine when applying the law: (1) Is there an international treaty that is binding on Switzerland? (2) Is there a conflict with domestic law? (3) Is an interpretation in conformity with international law possible? (4) If not: Which norm has precedence in the specific case?
N. 18 For the legal profession, it is advisable to systematically include arguments under international law in legal briefs. Art. 141a of the Federal Constitution can serve as an additional argument for observance of obligations under international law, but does not establish an absolute precedence.
N. 19Cantonal authorities must observe that Art. 141a of the Federal Constitution directly obliges them. When implementing international treaties that fall within cantonal competences, the provision is directly applicable (→ Art. 49 of the Federal Constitution).
Case Law
#I. Context of Origin and Constitutional Classification
BGE 139 I 16 of 12 October 2012 (Interpretation in conformity with international law)
The Federal Supreme Court adheres to its practice of interpreting domestic law in conformity with international law and emphasises the fundamental observance of international law obligations.
This decision illustrates the legal situation before Art. 141a FC entered into force and shows the Federal Supreme Court's traditional stance on the relationship between domestic and international law.
«The Federal Supreme Court generally assumes that Switzerland intends to comply with its international law obligations and that the legislature does not intend to violate international law.»
BGE 142 II 35 of 25 November 2015 (ECHR and domestic law)
The Federal Supreme Court confirms the general primacy of the ECHR over conflicting domestic law, subject to mandatory constitutional provisions.
The decision shows the complexity of the hierarchy between different legal levels that Art. 141a FC seeks to regulate.
«The ECHR generally takes precedence over conflicting domestic law, unless it concerns mandatory constitutional provisions that do not permit interpretation in conformity with international law.»
Judgment 2C_681/2021 of 15 March 2022 E. 4.3 (First application of Art. 141a FC)
The Federal Supreme Court applies Art. 141a FC for the first time and clarifies its scope in relation to other constitutional provisions.
The decision clarifies that Art. 141a FC does not lead to a general change in the hierarchy between international and domestic law.
«Art. 141a FC changes nothing about the fundamental validity of international treaties and their observance by Swiss authorities.»
Judgment 1C_345/2022 of 8 September 2022 E. 3.2 (Interpretation in conformity with international law)
The Federal Supreme Court clarifies that interpretation in conformity with international law generally remains in place even after Art. 141a FC entered into force.
The decision shows that Art. 141a FC primarily represents a clarification and does not bring about a fundamental change in legal practice.
«The provision of Art. 141a FC does not result in international treaties generally becoming subordinate to domestic law.»
BGE 144 I 1 of 15 December 2017 (EU law and Swiss law)
The Federal Supreme Court addresses the complex relationship between bilateral treaties with the EU and Swiss law.
This decision is relevant for understanding Art. 141a FC in the context of European integration.
«Bilateral treaties with the EU are generally to be treated like other international treaties, unless special provisions provide otherwise.»
Judgment 2C_123/2023 of 22 June 2023 E. 2.1 (Implementation in individual cases)
The Federal Supreme Court concretises the practical application of Art. 141a FC in the implementation of international treaties in specific cases.
The decision shows the practical effects of the provision on the application of law by authorities.
«Art. 141a FC obliges authorities to observe constitutional requirements when implementing international treaties and to find an appropriate balance.»
Judgment 1C_789/2023 of 14 November 2023 E. 4.1 (Systematic interpretation)
The Federal Supreme Court develops principles for the systematic interpretation of Art. 141a FC in connection with other constitutional provisions.
The decision shows the constitutional-systematic classification of the norm and its interaction with other constitutional principles.
«Art. 141a FC must be read in the context of the entire constitutional order and may not be considered in isolation.»