#1. Legislative History
N. 1 Art. 40 FC traces back to Art. 45bis of the Federal Constitution of 1874, which had been inserted into the old FC in 1966 and authorised the Confederation to promote the ties of Swiss nationals abroad with their homeland and to enact provisions on political rights. Even at that time there was a need to create a constitutional basis for federal activities for the growing diaspora — the so-called «Fifth Switzerland». The low take-up of political rights despite formal entitlement prompted the Federal Council to examine reform measures in the 1980s (cf. parliamentary postulate Oehen, AB 1987 N 1107).
N. 2 In the course of the total revision of the Federal Constitution, the provision was revised and incorporated as Art. 40 into the Federal Council's draft. The Federal Council's dispatch of 20 November 1996 (BBl 1997 I 598) formulated the purpose of the provision as a mandate to promote the ties of Swiss nationals abroad with Switzerland and with one another, and to regulate their rights and duties. The Federal Council provided for a two-paragraph structure: para. 1 contains the mandate to promote and the discretionary power to support organisations; para. 2 contains the mandatory competence to legislate on rights and duties. Art. 45 of the 1996 preliminary draft (PD 96) contained no corresponding provision; Art. 40 FC was in that respect a novelty of the total revision.
N. 3 During the parliamentary deliberations, the precise formulation of para. 2 was contested. Rapporteur Pierre Aeby (S, FR) explained to the Council of States that, as against the National Council's draft, the committee retained the mandatory formulation for the Confederation's obligation to legislate. The Council of States decided on 21 January 1998 to depart from the National Council's draft; after several rounds of the procedure for resolving differences, both chambers approved the text in the final vote on 18 December 1998. Aeby also pointed to a discrepancy between the German text («Auslandschweizerinnen und Auslandschweizer», gender-neutral) and the French text («Suisses de l'étranger», generic masculine) — a tension that was ultimately accepted.
#2. Systematic Classification
N. 4 Art. 40 FC is situated in Chapter 3 of Title 2 of the FC («Confederation and Cantons») and is accordingly conceived as a competence norm and a programme norm, not as a fundamental right. The provision does not confer subjective rights on Swiss nationals abroad, but rather assigns to the Confederation duties to promote and legislative competences. Häfelin/Haller/Keller/Thurnherr qualify such norms as institutional guarantees of an objective-law character (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 270 ff.).
N. 5 In relation to other constitutional provisions, there is a close connection to → Art. 37 FC (citizenship as the connecting factor for qualification as a Swiss national abroad), → Art. 39 FC (exercise of political rights), → Art. 59 FC (military service obligation) and → Art. 115 FC (support of persons in need by the cantons as a general principle, from which Art. 40 para. 2 FC provides a special rule in matters of social assistance). The Federal Supreme Court expressly held in BGE 138 V 445 E. 6.4.1 that federal support under the FSDA, which is based on Art. 40 para. 2 FC, constitutes a special rule as against the principle enshrined in Art. 115 FC that persons in need are supported by their canton of domicile.
N. 6 At the legislative level, the Confederation has enacted several statutes on the basis of Art. 40 para. 2 FC: the Swiss Abroad Act of 26 September 2014 (SAA; SR 195.1), the Federal Act on Political Rights (APR; SR 161.1), the Federal Act on Social Assistance and Loans for Swiss Nationals Abroad (FSDA; SR 852.1), as well as the Military Act and the corresponding provisions on the compulsory service substitute levy. The Organisation of the Swiss Abroad (OSA) receives federal subsidies on the basis of Art. 40 para. 1 FC (Arts. 59 ff. SAA).
#3. Elements of the Provision / Normative Content
N. 7 Paragraph 1 — Mandate to promote: The Confederation is obliged to promote ties among Swiss nationals abroad «with one another and with Switzerland» («promotes» = mandatory provision). The dual orientation — both the internal cohesion of the diaspora and the bond with the homeland — is characteristic. Support for organisations, by contrast, is formulated as a discretionary power («may»); the Confederation is not obliged to provide it but is authorised to do so. This enables institutional support for the OSA and Swiss Abroad services without creating a constitutional entitlement for individual organisations.
N. 8 Concept of «Swiss nationals abroad»: The Constitution does not define the concept itself. The statutory definition in the SAA is decisive: Swiss nationals abroad are Swiss citizens who have their domicile or habitual residence abroad. Swiss citizenship (→ Art. 37 FC) is the primary connecting factor; domicile abroad is the secondary one. The stay abroad must be permanent; temporary stays do not give rise to the status of a Swiss national abroad. Rhinow/Schefer/Uebersax emphasise that the domicile requirement is politically significant because it also helps define the circle of persons entitled to vote from abroad (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862 ff.).
N. 9 Paragraph 2 — Legislative competence: The formulation «enacts provisions» establishes an exclusive federal legislative competence for the subject matters listed in para. 2. The enumeration is illustrative («in particular»); the Confederation may regulate further rights and duties provided there is a material connection with the special status of Swiss nationals abroad. The four expressly mentioned areas are:
- Political rights at the federal level: Active and passive voting and electoral rights as well as signature rights; details in the APR and the voter registration ordinance.
- Military or civilian service: The constitutional basis of the general military service obligation (→ Art. 59 FC) also applies to Swiss nationals abroad; the Confederation regulates their special service duties and the substitute levy. In peacetime, Swiss nationals abroad are exempt from instruction service and equipment inspections (BGE 122 II 56 E. 2), but remain subject to military service obligations in principle.
- Support: Social assistance to Swiss nationals abroad (FSDA) and the Confederation's obligation to reimburse costs upon return (BGE 138 V 445).
- Social insurance: Voluntary affiliation with the AVS/AI for Swiss nationals abroad outside the EU/EFTA area (Art. 2 AHVG).
#4. Legal Consequences
N. 10 Mandate to promote (para. 1): The mandatory formulation («promotes») gives rise to an objective-law duty of activation on the part of the Confederation; it may not cease its promotional activities entirely. However, individual Swiss nationals abroad have no subjective right to state promotional benefits. Individuals cannot directly claim specific benefits under Art. 40 para. 1 FC; statutory concretisation is required (→ Art. 5 para. 1 FC: principle of legality).
N. 11 Legislative competence (para. 2): The competence norm authorises the federal legislature and precludes cantonal legislation in the subject matters mentioned (exclusive federal competence; → Art. 49 para. 1 FC). The special legislation gives concrete form to the constitutional provision; disputes are therefore typically resolved at the level of statutory application rather than constitutional interpretation. The Federal Supreme Court expressly drew the connection to the predecessor provision (Art. 45bis oFC) in BGE 138 V 445 E. 6.2.1 and confirmed its continuity in Art. 40 FC.
N. 12 Relationship with Art. 115 FC: Since Swiss nationals abroad, upon returning to Switzerland, do not initially have a canton of domicile, the cantonal social assistance obligation (→ Art. 115 FC) would not be applicable without a special rule. The FSDA therefore creates a time-limited federal obligation to cover costs (three months). The Federal Supreme Court interprets this exception restrictively: federal costs are reimbursed only for those social assistance benefits that address the need for support during the first three months from the date of return (pro rata temporis), and not for payments that fall due within the three-month period but cover benefit periods extending beyond it (BGE 138 V 445 E. 6.5).
#5. Contested Issues
N. 13 Justiciability of the mandate to promote: Legal scholarship is divided on whether a legally enforceable subjective right can be derived from the mandate to promote in para. 1. Müller/Schefer deny this for programmatic promotional norms in general and emphasise that social and promotional objectives do not give rise to justiciable claims without statutory concretisation (Grundrechte in der Schweiz, 4th ed. 2008, pp. 729 f.). Rhinow/Schefer/Uebersax draw a distinction: while individual claims to benefits are ruled out, the case of omission — a complete failure by the Confederation to undertake any promotion — might be susceptible to constitutional judicial review (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1855). A Federal Supreme Court decision on this question is still lacking.
N. 14 Mandatory vs. discretionary provision in para. 2: The controversy between the Council of States (mandatory provision) and the National Council (discretionary provision), which was played out in the parliamentary process, was resolved in the enacted text in favour of the mandatory formula («enacts provisions»). Scholarly opinion is unanimous that this establishes an obligation to enact legislative rules for the mentioned subject matters; inaction on the part of the legislature would be unconstitutional. However, it is disputed whether this obligation also encompasses the ongoing updating of existing enactments. Häfelin/Haller/Keller/Thurnherr read Art. 40 para. 2 FC as a continuing legislative mandate obliging the Confederation to continuously adapt to the changing living conditions of the diaspora (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 749).
N. 15 Scope of the «in particular» enumeration: It is unclear how far the general clause «in particular» in para. 2 extends. The wording suggests that the Confederation may also regulate further subject matters, provided there is a material connection with the special status of Swiss nationals abroad. A minority view (represented in the commentary literature on Art. 40 in the context of its drafting history) argues for a narrow interpretation: the general clause only covers areas that are materially comparable to the four listed. Practice — in particular the comprehensive SAA of 2014 — follows the extensive interpretation.
N. 16 Dual nationals and military service obligation: The delimitation issues arising in the case of dual nationals with domicile abroad — who qualifies as a «Swiss national abroad» for the purposes of military service provisions? — are resolved pragmatically in case law. The Federal Supreme Court relies on «habitual residence» when a clear centre of life cannot be established (BGE 122 II 56 E. 4b). Since the military service obligation is tied to nationality rather than domicile (personality principle), the delimitation is particularly complex for dual nationals; bilateral treaties provide clarity where they exist.
#6. Practical Notes
N. 17 Scope of application: Art. 40 FC is not a directly applicable provision conferring entitlements. Advisory practice and administrative enforcement are always based on the implementing statutes (SAA, FSDA, APR, AHVG Art. 2). A lawyer representing a Swiss national abroad must first determine which special statute is applicable before invoking Art. 40 FC as a subsidiary standard of review.
N. 18 Social assistance upon return: The Confederation reimburses social assistance costs for returning persons for a maximum of three months from the date of return (pro rata temporis). Ongoing benefits such as rent payments are reimbursed only proportionally for the portion of the benefit period falling within the three-month window (BGE 138 V 445 E. 6.5). The Federal Office of Justice is responsible for reimbursement applications from the cantons (Art. 14 FSDA). Jurisdictional conflicts between the Confederation and cantons over reimbursement disputes are to be brought to the Federal Supreme Court by way of appeal in public law matters (Art. 82 lit. a BGG; BGE 138 V 445 E. 1.5).
N. 19 Political rights: Swiss nationals abroad exercise their federal voting rights through the competent Swiss representations abroad. Registration in the register of Swiss nationals abroad entitled to vote is a prerequisite. Registrations submitted late cannot be cured retroactively; no extension of time is available, even if the Swiss representation abroad failed to draw attention to the deadlines (BGE 97 V 213 E. 2 on Art. 2 AHVG, with analogous reasoning for related registration matters).
N. 20 Military service obligation abroad: Swiss nationals abroad who are dual nationals and perform military service in their foreign state of domicile or pay a corresponding substitute levy may be exempted from the Swiss compulsory military service substitute levy (Art. 4a MPEG). The concept of domicile is to be determined under public law; where the centre of life is unclear, habitual residence is determinative (BGE 122 II 56 E. 4b). In practice, it is advisable to deregister from military service at an early stage when moving abroad and to clarify any applicable bilateral treaties.