Art. 166 BV

#Doctrine

#1. Legislative History

N. 1 The roots of parliamentary participation in foreign policy reach back to the Federal Constitution of 1848. Art. 74 no. 5 of the former BV (1848) already established the Federal Assembly's competence for approving alliances and treaties with foreign states. Although the Constitution of 1874 dispensed with a general provision on Federal Assembly participation in foreign affairs, it retained the approval competence for state treaties in Art. 85 no. 5 of the former BV (1874).

N. 2 Art. 166 BV was created within the framework of the total revision of the Federal Constitution of 1999. The Message of 20 November 1996 on a new Federal Constitution (BBl 1997 I 1, 330 ff.) emphasised the necessity of regulating foreign policy competences between the Federal Council and Federal Assembly more clearly. The constitutional draft was intended to reflect the growing importance of foreign policy and increased parliamentary participation in this area. The current version codifies the practice of cooperative foreign policy-making between the executive and legislative branches.

#2. Systematic Classification

N. 3 Art. 166 BV stands in Chapter 2 (Competences) of Title 5 (Federal Authorities) and regulates the Federal Assembly's foreign policy competences. The provision must be read in connection with the parallel competence norms:

• → Art. 184 BV (relations with foreign countries as Federal Council competence)
• → Art. 185 BV (external security)
• → Art. 54 BV (foreign affairs as federal competence)
• → Art. 140 BV (mandatory referendum for international treaties)
• → Art. 141 BV (optional referendum)

N. 4 The norm concretises the principle of shared foreign policy responsibility between the Federal Council and Federal Assembly. While Art. 184 para. 1 BV assigns operational conduct of foreign policy to the Federal Council («takes care of foreign affairs»), Art. 166 BV secures substantial participation and control rights for the Federal Assembly.

#3. Elements of the Offence / Normative Content

a) Participation in Shaping Foreign Policy (para. 1)

N. 5 The concept of «shaping foreign policy» encompasses the fundamental decisions in Swiss external relations. The Federal Assembly participates in determining foreign policy goals, strategies and priorities. This participation manifests itself particularly through:

• Approval of foreign policy reports and strategies
• Issuing mandates and assignments for negotiations
• Consultation on important foreign policy decisions
• Budget authority over foreign policy expenditures

N. 6 The participation rights are concretised by the Parliament Act (ParlA), notably in Art. 152 ParlA (information and consultation on preparatory acts) and Art. 152a ParlA (consultation of the Foreign Affairs Committees).

b) Supervision over the Conduct of Relations with Foreign Countries (para. 1)

N. 7 The supervisory function relates to control of executive foreign policy. It encompasses retrospective review of foreign policy actions as well as accompanying control of current foreign policy business. Instruments of supervision are:

• Reporting by the Federal Council
• parliamentary initiatives
• supreme oversight by the Control Committees
• activities of the Foreign Affairs Committees (FAC)

c) Approval of International Treaties (para. 2)

N. 8 The approval competence is the Federal Assembly's most important foreign policy power. The concept of «international treaties» is to be understood broadly and encompasses all agreements between subjects of international law that establish rights and obligations under international law (Art. 2 para. 1 lit. a Vienna Convention on the Law of Treaties).

N. 9 Approval takes the form of a simple federal decree (Art. 24 para. 3 ParlA). For treaties subject to referendum, the Federal Assembly additionally passes an approval resolution subject to referendum (→ Art. 140, 141 BV).

d) Exceptions to the Approval Requirement (para. 2)

N. 10 The Federal Council may conclude treaties without parliamentary approval when:

• a law authorises it to do so (statutory delegation)
• an approved international treaty contains corresponding authorisation (contractual delegation)

N. 11 The most important exception is treaties of limited scope according to Art. 7a para. 2 FOGA. The Publication Act specifies in Art. 3 para. 3 that such treaties need not be officially published. According to practice, treaties of limited scope are technical or administrative agreements without significant political or financial importance.

#4. Legal Consequences

N. 12 The Federal Assembly's participation in foreign policy-making establishes a constitutional participation right. The Federal Council is obligated to inform the Federal Assembly timely and comprehensively and to consult it on important foreign policy decisions. A violation of these participation rights may lead to the annulment of Federal Council resolutions.

N. 13 The approval requirement for international treaties has constitutive effect: without parliamentary approval, the Federal Council may not ratify a treaty requiring approval. A treaty ratified in violation of Art. 166 para. 2 BV would be valid under international law (Art. 46 Vienna Convention), but could trigger constitutional responsibilities.

N. 14 The supervisory function empowers the Federal Assembly to comprehensively control executive foreign policy. It may demand reports, conduct investigations and intervene correctively in case of deficiencies, but has no direct sanctioning possibilities other than general parliamentary control instruments.

#5. Controversies

N. 15 Scope of the approval requirement: In doctrine, it is disputed how far the exceptions to the approval requirement extend. Ehrenzeller/Schindler/Schweizer/Vallender (St. Gallen Commentary BV, Art. 166 N. 15) advocate a restrictive interpretation and emphasise that parliamentary approval is the rule, delegation the exception. Waldmann/Belser/Epiney (BSK BV, Art. 166 N. 22) recognise a greater scope for executive treaty-making in technical matters.

N. 16 Legal nature of Memoranda of Understanding: Whether legally non-binding declarations of intent (MoU) fall under Art. 166 BV is controversially discussed. The Federal Council's practice (JAAC 68.83) denies the approval requirement for legally non-binding instruments. Parts of the doctrine criticise this practice as too far-reaching, as even politically significant declarations of intent should be subject to parliamentary control (Thürer/Müller, in: Ehrenzeller et al., St. Gallen Commentary BV, Art. 166 N. 18).

N. 17 Termination of international treaties: It remains unclear whether termination of a treaty approved by the Federal Assembly also requires parliamentary consent. The Federal Administrative Court left open in C-4828/2010 whether the Federal Council may decide not to continue a treaty without Federal Assembly participation. The prevailing doctrine affirms a parliamentary participation right for politically significant treaty terminations (Rhinow/Schefer/Uebersax, Swiss Constitutional Law, 3rd ed. 2016, para. 3458).

#6. Practice Notes

N. 18 In qualifying international agreements, the primary focus should be on the parties' objective intention to be bound. Formulations such as «legally non-binding» in a document are not solely decisive if the content suggests an intention to create legal obligations. In case of doubt, the approval requirement should be assumed.

N. 19 Consultation of the Foreign Affairs Committees according to Art. 152a ParlA must occur timely, i.e., at a point when room for action still exists. Mere information about decisions already made does not suffice. For negotiating mandates, consultation should occur before negotiations commence.

N. 20 For the practice of the federal administration: Administrative agreements within the framework of existing state treaties require no renewed parliamentary approval, provided they remain within the scope of the contractual authorisation. In case of uncertainty about the scope of a delegation, the Directorate of International Law (DIL) should be consulted.

Art. 166 BV

#Case Law

#Approval requirement for international treaties

BGE 129 II 193 (21.2.2003)
Federal Council decree concerning entry ban for reasons of safeguarding national interests
Confirms the division of powers between the Federal Council and Federal Assembly in foreign policy measures

«Foreign affairs belong according to Art. 184 para. 1 Cst. basically to the sphere of tasks of the Federal Council, while the Federal Assembly according to Art. 166 para. 1 Cst. participates in the shaping of foreign policy and supervises the cultivation of relations with foreign countries.»

Judgment 9C_662/2012 (19.6.2013)
Applicability of the social insurance agreement with Kosovo after its independence
Specifies the role of the Federal Assembly in approving international treaties according to Art. 166 para. 2 Cst.

«Art. 166 para. 1 Cst. stipulates that the Federal Assembly participates in the shaping of foreign policy and supervises the cultivation of relations with foreign countries. It approves international treaties; excepted are treaties for whose conclusion the Federal Council is competent on the basis of an act or international treaty (para. 2).»

#Delimitation of powers to Art. 184 Cst.

JAAC 68.83 (6.1.2004)
Competences for the conclusion of international treaties
Specifies the application of Art. 166 Cst. for legally non-binding agreements

«The competence to conclude treaties is governed by Art. 166 Cst. In the case of a legally non-binding instrument of international cooperation, there is a joint political declaration of intent that is not subject to parliamentary approval requirements.»

JAAC 70.69 (14.6.2006)
Division of powers for international agreements
Systematises the approval competences according to Art. 166 Cst.

«The Federal Assembly is basically competent for the approval of international treaties. It may delegate the competence for conclusion in a formal act to the Federal Council or a department or, for treaties of limited scope, to a group or a federal office.»

#Parliamentary participation in foreign policy

JAAC 56.49 (31.1.1992)
Constitutional foundations of parliamentary foreign policy participation
Explains the participation rights of the Federal Assembly according to Art. 166 para. 1 Cst.

«The approval of treaties of state subject to the treaty referendum regulated in Art. 89 para. 3-5 Cst. and measures for safeguarding external security belong to the core competences of the Federal Assembly in shaping foreign policy.»

JAAC 51.58 (14.12.1987)
Foreign policy division of competences between federal authorities
Fundamental decision on the delimitation of the competences of the Federal Council and Federal Assembly

«While the Federal Council according to Art. 102 no. 8 old Cst. has to handle foreign affairs in general, relations with foreign countries and measures for safeguarding external security as well as the approval of treaties of state fall within the competence of the Federal Assembly.»