Art. 53 FC — Existence and Territory of the Cantons

#Doctrine

#1. Legislative History

N. 1 Art. 53 FC is rooted in Arts. 1 and 3 of the Federal Constitution of 1874 (former FC), which placed the existence of the cantons under federal guarantee. The revision commission in the course of the constitutional reform of the 1990s adopted this guarantee in a modernised and more precise form. According to the Federal Council's dispatch (BBl 1997 I 597), the provision was intended to «guarantee the existence and territory of the cantons and to regulate the conditions for changes to existence and changes to territory». The guarantee of existence was characterised as a fundamental federal principle; the dual consent by the cantons concerned and by the People and the Cantons for changes to existence, as well as the democratic participation of the affected population in changes to territory, formed the central elements of the draft.

N. 2 The parliamentary debates introduced a significant innovation: under the previous constitutional law (Art. 1 para. 2 former FC), changes to territory between cantons also required the approval of the People and the Cantons at the federal level. The National Council rapporteur Hubmann Vreni expressly stated: «The commission decided on an important innovation in Article 44. For changes to territory between cantons, the approval of the People and the Cantons is no longer necessary. Approval by the Federal Assembly suffices.» This relaxation was aimed at the practical difficulties that the requirement of the People and the Cantons posed for small-scale intercantonal changes to territory. The Council of States agreed with the concept (AB 1998 SR, Aeby Pierre as rapporteur). Boundary rectifications without federal approval — likewise a new rule in para. 4 — complemented the liberalisation for purely small-scale corrections. The final votes of both Chambers took place on 18 December 1998; the Federal Constitution entered into force on 1 January 2000.

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#2. Systematic Classification

N. 3 Art. 53 FC is situated in Chapter 5 («Confederation and Cantons») of Title 2 of the Federal Constitution and is an organisational provision of both a guarantee and a procedural character. As a competence provision, it determines which actors must participate in territorial changes; as a guarantee provision, it limits the discretion of both the Confederation and the cantons equally. It is not a fundamental rights provision and does not confer individual subjective defensive rights.

N. 4 The provision is closely connected in systematic terms with → Art. 1 FC (enumeration of the cantons as constituent elements of the federal state), → Art. 3 FC (cantons as independent communities with original sovereignty) and → Art. 51 FC (obligation of the Confederation to guarantee cantonal constitutions). Art. 53 FC safeguards the territorial existence without which Arts. 1 and 3 FC would be effectively hollow. ↔ Art. 140 para. 1 lit. c FC requires a popular vote at the federal level for changes to existence pursuant to Art. 53 para. 2 FC as a mandatory condition. The relationship between these provisions is reciprocal: Art. 53 FC defines the substantive conditions, Art. 140 FC the federal voting procedure.

N. 5 Art. 53 FC is not a justiciable provision in the sense that individuals could directly derive from it claims to changes to territory or to the omission thereof. The provision is addressed to state actors (Confederation, cantons, People) and structures their rights and duties of participation. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1136, characterise the guarantee of existence as an institutional guarantee of the federal system, not as a subjective right of the cantons against the Confederation.

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#3. Elements of the Provision / Normative Content

3.1 Paragraph 1: Federal Protection of Existence and Territory

N. 6 Art. 53 para. 1 FC obliges the Confederation to protect «the existence and territory of the cantons». The existence of a canton encompasses its status as an independent member of the federal state. The territory designates the spatial domain of sovereignty within which the canton exercises its public authority. Both concepts are cumulatively protected: a change to existence always also affects territory, but a change to territory does not necessarily affect the existence of a canton.

N. 7 The federal protection under para. 1 is programmatic in nature and is given concrete effect through the procedural rules of paras. 2–4. It prohibits the Confederation from unilaterally interfering with the existence or territory of cantons, and positively obliges it to prevent territorial disintegration. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 847 f., regard para. 1 as a constraint on the federal legislature: no federal act may alter the existence or territory of a canton without complying with the procedures of paras. 2–4.

3.2 Paragraph 2: Changes to the Existence of Cantons

N. 8 Changes to existence are events in which a canton is newly created, ceases to exist, or merges with another. The only completed historical example is the creation of the Canton of Jura in 1979: the former territory of the Canton of Berne attained the status of an independent canton through a popular vote in the relevant districts followed by a federal vote. The attempted reunification of the half-cantons of Basel-Stadt and Basel-Landschaft failed in 1969 in the popular vote procedure (BGE 94 I 525 consid. 7 ff.); the procedure illustrates the federal procedural complexity, even though it was still adjudicated under the former law.

N. 9 The procedure under para. 2 requires three cumulatively satisfied consents:

1. Consent of the affected population: The population directly affected by the change to existence (generally the eligible voters of the canton being created or dissolved, or of the affected sub-territories) must give their approval in a popular vote procedure. The term «affected population» is narrower than «the Swiss People»; it is limited to the directly affected group of persons.
2. Consent of the cantons concerned: The cantons concerned as communities must consent — generally by popular vote at the cantonal level. Cantons not concerned have no right of veto.
3. Approval of the People and the Cantons: At the federal level, a mandatory popular vote (double majority) under Art. 140 para. 1 lit. c FC is required. This federal vote is the formal final approval of the entire Confederation.

N. 10 The sequence of the consents is not mandatorily prescribed by constitutional law, but a practical order follows from practical considerations: first, the affected population and the cantons concerned clarify their agreement before the Switzerland-wide double majority is obtained. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729, refer to the Jura precedent, which has practically established this sequential approach.

3.3 Paragraph 3: Changes to Territory between Cantons

N. 11 Changes to territory under para. 3 cover the transfer of cantonal territory from one canton to another without a canton losing its existence as such. The paradigmatic example is the transfer of the Bernese administrative district of Laufen to the Canton of Basel-Landschaft (1994), which was effected following a popular vote procedure at the cantonal level and subsequent approval by the Federal Assembly.

N. 12 The procedure under para. 3 requires:

1. Consent of the affected population (as under para. 2);
2. Consent of the cantons concerned (as under para. 2);
3. Approval by the Federal Assembly in the form of a simple federal decree (not subject to referendum, cf. Art. 163 para. 2 FC).

The absence of a Switzerland-wide double majority — the central innovation compared with the former law — considerably facilitates intercantonal changes to territory, since no federal popular vote is any longer necessary. The Federal Assembly exercises a purely approval function; it does not have a substantive right of review in the sense of a review of expediency. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1140, characterise the approval as a constitutionally necessary federal act confirming the lawfulness of the cantonal procedure.

N. 13 The ongoing procedure concerning the municipality of Moutier (Canton of Berne → Canton of Jura) illustrates practice under the new law: following repeated municipal popular votes (2017 and 2021) and cantonal approvals by both cantons concerned, the Federal Assembly is called upon to approve the change of canton by federal decree.

3.4 Paragraph 4: Boundary Rectifications

N. 14 Boundary rectifications under para. 4 are small-scale, technical-administrative corrections to the course of the boundary between neighbouring cantons that do not entail any significant exchange of population. They require neither federal approval nor a popular vote; an intercantonal treaty between the cantons concerned suffices. The concept of «boundary rectification» must be distinguished from «change to territory»: the decisive question is whether a significant number of persons or a significant area is changing canton (then para. 3) or whether merely a technical clarification of unclear boundary demarcations is being made (then para. 4). Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 850, point to the fluid boundary between the two and recommend applying the procedure under para. 3 in cases of doubt.

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#4. Legal Consequences

N. 15 If the procedure under para. 2 is not observed, a change to existence is unconstitutional and void. The same applies to changes to territory under para. 3 without the necessary consent of the affected population and cantons and without the federal decree. Since Art. 53 FC has an institutional character, a procedural defect cannot be remedied by subsequent cure.

N. 16 Cantonal legal provisions ordering territorial changes without compliance with the federal procedures are contrary to federal law under Art. 49 para. 1 FC (supremacy of federal law) and are superseded. → Art. 49 FC.

N. 17 Boundary rectifications under para. 4 take effect upon entry into force of the intercantonal treaty. Federal and Federal Tribunal practice has recognised that such treaties do not in principle require a federal guarantee under Art. 51 para. 3 FC, since they do not constitute amendments to cantonal constitutions.

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#5. Disputed Issues

N. 18 Distinction between change to territory and boundary rectification: The dividing line between para. 3 and para. 4 is disputed in legal scholarship. Part of the doctrine (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 850) advocates a restrictive interpretation of «boundary rectification» and requires that only topographic-technical corrections without political effect fall under para. 4. The opposing view (represented in the context of the dispatch BBl 1997 I 597) also permits smaller, sparsely populated transfers of territory to count as boundary rectifications. In practice, the Federal Council and the cantons have thus far resolved this distinction by mutual agreement.

N. 19 Concept of «affected population»: It is disputed whether, in the case of a change to territory, only the population of the directly affected municipality or municipalities or the entire population of the ceding canton must vote. The legislative history of the Jura precedent (1974/1978) and JAAC 52.53 (1988) on the Jura question illustrate that the federal authorities afforded the ceding canton considerable procedural autonomy in defining the voting constituency. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1138, note that federal law does not prescribe detailed rules on the voting perimeter; the cantons shape the procedure within the scope of their constitutional autonomy.

N. 20 Legal nature of the Federal Assembly's approval under para. 3: While part of the doctrine understands the approval as a merely formal, review-free executive act, others (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 851) regard it as conferring on the Federal Assembly a constitutional competence to review the lawfulness of the cantonal procedure. The prevailing view holds that the Federal Assembly has no power to review expediency. The federal decree under Art. 53 para. 3 FC is a simple (non-referendum-subject) federal decree pursuant to Art. 163 para. 2 FC, which significantly reduces the democratic legitimacy of the approval compared with the former double-majority requirement.

N. 21 No subjective right to a change of canton: The question of whether a municipality or population can assert a subjective right to the initiation of a change-of-canton procedure has not been definitively resolved in legal scholarship. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1137, deny the existence of an enforceable right; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729, regard Art. 53 FC as a purely organisational provision to be invoked through political-democratic means. Judicial enforcement fails already at the level of standing and the absence of a subjective legal position.

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#6. Practical Notes

N. 22 Historical cases as a guide: The territorial procedures conducted to date under Arts. 1/3 former FC and Art. 53 FC — the creation of the Canton of Jura (1974–1979), the Laufen transfer (1984–1994), and the ongoing Moutier procedure — provide the authoritative procedural practice. Departures from this practice require an explicit constitutional justification.

N. 23 Procedural sequence: Although paras. 2 and 3 do not prescribe an explicit sequence, the following step-by-step model is recognised in practice: (1) popular vote in the affected municipality/region; (2) confirmation by the affected cantonal populations (to the extent provided for under cantonal law); (3) formal consent by the cantonal governments/parliaments; (4) under para. 3: approval by the Federal Assembly; under para. 2: additionally a federal popular vote (double majority). The Federal Council and the Federal Assembly have confirmed in the Moutier practice that this sequential structure is consistent with the Constitution.

N. 24 Intercantonal treaties under para. 4: Boundary rectifications should be clearly designated as such and documented in writing in an intercantonal treaty (Art. 48 FC). Where there is doubt as to whether a measure is to be classified as a boundary rectification or as a change to territory, a precautionary application of the procedure under para. 3 with the involvement of the federal authorities is recommended in order to avoid subsequent challenges on grounds of unconstitutionality. → Art. 48 FC.

N. 25 No direct fundamental rights complaints from Art. 53 FC: Since the provision does not confer subjective rights on individuals, a violation of Art. 53 FC cannot be the subject of a constitutional complaint under Art. 95 lit. a SCA. Complaints concerning territorial questions may in certain circumstances be brought under other constitutional provisions (e.g. political rights, Art. 34 FC). ↔ Art. 34 FC; → Art. 189 para. 4 FC (exclusion of disputes concerning acts of cantonal public law from the jurisdiction of the Federal Tribunal).

Art. 53 BV - Existence and Territory of the Cantons

#Case Law

#Protection of Cantonal Existence and Territories

Federal Supreme Court case law on Art. 53 BV is sparse, as territorial changes between cantons are extremely rare in modern Switzerland. Most available decisions do not concern the provisions on territorial changes (para. 2-4), but rather other aspects of the norm.

BGE 125 I 300 E. 1a (14 June 1999): The Federal Supreme Court established its jurisdiction to review allegations of violations of Art. 53 para. 2 BV, in a case concerning burial rights. The Court specified that other federal legal remedies are only available insofar as the violation of Art. 53 para. 2 BV could be asserted before the Federal Council.

«Ein anderes eidgenössisches Rechtsmittel als die staatsrechtliche Beschwerde steht nur insoweit offen, als die Verletzung von Art. 53 Abs. 2 BV beim Bundesrat geltend zu machen wäre.»

#Historical Case Law on Territorial Questions

From the early case law of the Federal Supreme Court, principles regarding the territorial integrity of the cantons are apparent. In a decision from 1919 (45 I 119), the Court dealt with questions of municipal autonomy and the delimitation of competences between state levels, where territorial aspects played a role.

#Lack of Direct Case Law on Territorial Changes

Case law on the central provisions of Art. 53 BV concerning territorial changes (para. 3) and border adjustments (para. 4) is practically non-existent. This is explained by the fact that:

• Changes in the existence of cantons (para. 2) have not occurred since the founding of the federal state in 1848
• Major territorial changes between cantons (para. 3) are extremely rare and are typically dealt with through political procedures before the Federal Assembly
• Border adjustments (para. 4) are usually small-scale and are resolved through intercantonal treaties without judicial intervention

#Administrative Practice

The practical application of Art. 53 BV occurs primarily through administrative channels. Territorial disputes are generally resolved through negotiations between the affected cantons or through political procedures before they reach the courts.

#Significance for the Constitutional Framework

Although direct case law is lacking, Art. 53 BV is of fundamental importance for the federal structure of Switzerland. The norm guarantees the territorial integrity of the cantons as constitutive elements of the federal state and creates clear procedures for the rare cases of territorial changes.