1Foreign relations are the responsibility of the Confederation.
2The Confederation shall ensure that the independence of Switzerland and its welfare is safeguarded; it shall in particular assist in the alleviation of need and poverty in the world and promote respect for human rights and democracy, the peaceful co-existence of peoples as well as the conservation of natural resources.
3It shall respect the powers of the Cantons and protect their interests.
Art. 54 BV regulates the Confederation's competence for all of Switzerland's foreign policy relations. The Confederation is exclusively responsible for relations with other states and international organisations (Epiney, BSK BV, Art. 54 N. 18). The cantons may not conclude international treaties without federal authorisation.
The Constitution specifies concrete foreign policy objectives: Switzerland shall preserve its independence, but also actively contribute to solving global problems. This includes combating poverty, protecting human rights, promoting democracy, maintaining peace and protecting the environment. These objectives are programme clauses (guidelines) that do not create enforceable rights for individuals (Epiney, BSK BV, Art. 54 N. 24).
The courts exercise very restrained control over foreign policy decisions. They only review whether the authorities have acted arbitrarily (BGE 137 I 371 E. 1.2). The political authorities enjoy wide discretionary powers.
Despite federal competence, the Confederation must take cantonal interests into account. When international treaties affect cantonal areas of competence, the cantons have a right to information and consultation. A concrete example: Before Switzerland concludes an education agreement with the EU, the Confederation must consult the cantons, since education is fundamentally a cantonal matter.
Exclusive federal competence also means: cantonal authorities are bound by foreign policy acts of the Confederation. When the Federal Department of Foreign Affairs (FDFA) grants diplomatic immunity to a person, all Swiss courts must respect this decision (BGE 130 III 430 E. 3.3). A canton cannot criminally prosecute such a person, even if they have violated Swiss law.
Art. 54 BV — Foreign Affairs
#Doctrine
#1. Legislative History
N. 1 Art. 54 BV traces its origins essentially to Art. 8 of the Federal Constitution of 1874, which conferred on the Confederation exclusive competence to conduct foreign affairs. In the dispatch of 20 November 1996 on the new Federal Constitution (BBl 1997 I 1), the Federal Council presented a preliminary draft whose Art. 49 already largely contained the current three-paragraph structure: para. 1 enshrined the Confederation's comprehensive competence, para. 2 set out guiding objectives of foreign policy, and para. 3 governed the duty to take account of the interests of the cantons (BBl 1997 I 229 f.). The Federal Council adhered to a more concise formulation of the objectives in para. 2 and refrained from incorporating all five foreign policy goals of the 1990s (BBl 1997 I 230 f.).
N. 2 In the National Council, the wording of para. 2 was contested. National Councillor Durrer (C, OW) advocated retaining the Federal Council's text, which he considered less ambitious and therefore more realistic. The committee majority favoured the expanded catalogue of objectives, including the promotion of democracy and the preservation of the natural foundations of life; Rapporteur Vallender (R, AR) emphasised that the committee had deliberately made this extension. National Councillor Schlüer (V, ZH), on behalf of Minority II, moved to enshrine neutrality expressly as a foreign policy objective: «The sovereign understands neutrality as permanent neutrality and states this expressly. It is therefore not a means but an objective.» Federal Councillor Koller opposed this position and referred to historical practice since 1848: «Since the founding of the federal state 150 years ago, neutrality has always been understood as a means and not as an objective of Swiss foreign policy.» National Councillors Günter (S, BE), Pelli (R, TI), and Rapporteur Deiss (C, FR) also rejected Minority II; Pelli emphasised that international recognition of neutrality was not self-evident and that it was therefore unsuitable as a constitutional objective. National Councillors Weigelt (R, SG) and Deiss pointed out that neutrality is already mentioned in (the current) Art. 173 and 185 BV. Minority II was rejected; the committee majority's version prevailed.
N. 3 The final votes in the National Council and the Council of States took place on 18 December 1998; the popular vote of 18 April 1999 adopted the new Federal Constitution. The provision corresponds in substance largely to the Federal Council's preliminary draft, with the Parliament having expanded the catalogue of objectives in para. 2: the promotion of democracy and the preservation of the natural foundations of life were added, as was an express reference to development cooperation.
#2. Systematic Classification
N. 4 Art. 54 BV is situated in Title 3 («Confederation, Cantons and Communes»), Chapter 2 («Competences»), Section 1 («Relations with Foreign Countries», Art. 54–56). Section 1 governs in Art. 54 the fundamental competence of the Confederation, in → Art. 55 BV the participation of the cantons in foreign policy decisions, and in → Art. 56 BV the right of the cantons to conclude their own treaties with foreign states. Art. 54 forms the constitutional basis on which Art. 184 BV (the Federal Council's competence for foreign affairs) and Art. 166 BV (the Federal Assembly's competence to approve international treaties) are founded.
N. 5 Unlike most competence provisions in Chapter 2, foreign policy is assigned to the Confederation as an exclusive competence; no residual cantonal competence in the sense of → Art. 3 BV exists in this area. Art. 54 BV is not a fundamental rights provision and does not confer subjective rights on individuals (→ Art. 36 BV is not applicable). It is an organisational and competence provision, whose para. 2 is programmatic in character (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1979).
N. 6 Para. 2 contains a non-exhaustive catalogue of foreign policy principles (BBl 1997 I 230: «non-exhaustive enumeration»). These guiding objectives do not confer enforceable subjective rights; however, they serve as a standard for the exercise of foreign policy discretion by the Federal Council and the Federal Assembly. In this sense, para. 2 differs structurally from the social objectives under → Art. 41 BV only in terms of institutional addressee: para. 2 is directed at foreign policy, Art. 41 at social policy.
#3. Elements of the Provision / Normative Content
3.1 Para. 1: Exclusive Competence of the Confederation
N. 7 The concept of «foreign affairs» encompasses, according to established case law, all activities of the Confederation in the area of relations with other states and international organisations, in particular the conclusion of international treaties, the maintenance of diplomatic relations, diplomatic protection, and the representation of Switzerland in international organisations. The Federal Supreme Court interprets this concept restrictively insofar as it serves as a ground for excluding judicial review (BGE 137 I 371 E. 1.2). As a competence title, however, it encompasses all actions that concern Switzerland's relationship with foreign states or international organisations (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2849).
N. 8 The Confederation's competence under para. 1 is comprehensive and exclusive: cantons may not independently conduct foreign affairs reserved for the Confederation. This includes in particular that the Confederation may conclude international treaties even in subject-matter areas that fall domestically within the cantons' legislative competence (BBl 1997 I 229). Thus BGE 132 II 65 E. 2.2 illustrates that bilateral establishment treaties of the Confederation may directly confer rights on resident foreigners vis-à-vis cantonal foreign nationals authorities; the Confederation's competence under Art. 54 para. 1 also extends to their implementation.
N. 9 Classic «actes de gouvernement» — acts of a predominantly political character in the areas of security, neutrality, diplomatic protection, and other foreign affairs — fall entirely within the executive's margin of discretion. BGE 121 II 248 E. 1b held that a Swiss diplomatic intervention with a foreign state substantially affects foreign relations and is therefore excluded from judicial review. This principle was continued under the Federal Supreme Court Act by BGE 137 I 371 E. 1.2.
N. 10 Examples of acts falling under the exclusive competence of the Confederation under para. 1 cited in case law include: the waiver of diplomatic immunity by the Federal Department of Foreign Affairs (FDFA), which is binding on civil courts as a sovereign act (BGE 130 III 430 E. 3.3); the intervention with the Bank for International Settlements (BGE 137 I 371 E. 1.2); the consular register for Swiss nationals abroad (BGE 110 V 65 E. 3); and the dispatch of representatives to international organisations (FDJA interim ruling of 9 July 2024, file reference 361-3764/3/14, E. 5).
3.2 Para. 2: Guiding Objectives of Foreign Policy
N. 11 Para. 2 sets out in sentence 1 the dual primary objective: safeguarding the independence of Switzerland and its welfare. Sentence 2 elaborates on this through four areas, marked by «in particular» as non-exhaustive (BBl 1997 I 230): (1) alleviating need and poverty in the world (development cooperation, humanitarian aid); (2) respect for human rights and promotion of democracy; (3) peaceful coexistence among nations; (4) preservation of the natural foundations of life. The last two elements were added at the initiative of Parliament compared to the Federal Council's draft.
N. 12 Sentence 1 of para. 2 contains an apparent tension between independence and welfare on the one hand and humanitarian objectives on the other. The dispatch (BBl 1997 I 230) and the prevailing doctrine, however, regard these as complementary: a credible foreign policy grounded in human rights and international solidarity strengthens Switzerland's position and thus its independence in the long term (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 729 f.).
N. 13 Neutrality — consistent with the outcome of parliamentary deliberations — was deliberately not included in para. 2. It is mentioned in Art. 173 para. 1 lit. a and Art. 185 para. 1 BV as a competence and task assignment, but according to prevailing doctrine it is regarded as an instrument of security policy, not as an objective of foreign policy (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1979).
3.3 Para. 3: Duty to Have Regard for the Cantons
N. 14 Para. 3 obliges the Confederation, when exercising its foreign policy competence, to have regard for the competences of the cantons and to safeguard their interests. The dispatch expressly stated that a stronger formulation («safeguarding the competences») was deliberately rejected: the Confederation must take into account the concerns of the cantons, but need not allow its competence to be restricted by cantonal competences (BBl 1997 I 231). Para. 3 is not a limitation on the Confederation's competence but rather a duty of conduct and consideration (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2855).
N. 15 The duty of consideration under para. 3 is given institutional expression through → Art. 55 BV and, at the level of ordinary legislation, through the Federal Act on the Participation of the Cantons in the Foreign Policy of the Confederation (CPFPA, SR 138.1). The cantons are involved in particular in the preparation of treaty negotiations when their competences are substantially affected. ↔ Art. 45 BV (participation of the cantons in federal decision-making) supplements this duty at the level of federal-cantonal cooperation.
#4. Legal Consequences
N. 16 Para. 1 entails, first, that cantons that seek independently to conduct foreign affairs (outside the narrow framework of Art. 56 BV) act in breach of the Federal Constitution. The Confederation may render such cantonal activities ineffective by virtue of → Art. 49 BV (supremacy of federal law).
N. 17 Para. 1 entails, second, that the Confederation may, on the basis of its comprehensive foreign policy competence, conclude international treaties that encroach upon cantonal subject-matter areas. Such treaties take precedence over conflicting cantonal law pursuant to → Art. 190 BV, insofar as they are applicable. The duty of implementation rests on the Confederation and the cantons jointly, as provided for in the treaty.
N. 18 Para. 2 does not generate enforceable subjective rights. Individuals cannot derive from the guiding objectives any entitlement to benefits from the Confederation, such as the granting of diplomatic protection or the implementation of humanitarian measures. This corresponds to its classification as a programmatic provision (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1979 f.).
N. 19 Para. 3 imposes a procedural duty on the federal authorities. A breach of the duty of consideration may be raised by the cantons by way of a constitutional complaint, insofar as procedural duties under federal law (in particular under the CPFPA) have been violated.
N. 20 Foreign policy acts are subject only to limited judicial review. Decisions in the area of internal and external security, neutrality, diplomatic protection, and other foreign affairs are excluded from appeal to the Federal Supreme Court (Art. 83 lit. a SCA) and from appeal to the Federal Administrative Court (Art. 32 para. 1 lit. a FACA), insofar as international law does not confer a right to judicial determination. For this category of acts, the Federal Council is competent as the appellate authority pursuant to Art. 72 lit. a APA. The term «other foreign affairs» must be interpreted restrictively and additionally requires that the act be of a predominantly political character (BGE 137 I 371 E. 1.2; FDJA interim ruling of 9 July 2024, E. 4).
#5. Disputed Questions
N. 21 Scope of the concept of «foreign affairs»: Doctrine is divided as to the extent of the competence title under para. 1. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2849) advocate a broad interpretation encompassing all state activities with a foreign dimension. Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1979), by contrast, distinguish between foreign policy in the strict sense (relations with other subjects of public international law) and the mere external effects of domestic policy measures. The case law of the Federal Supreme Court, for the purposes of excluding the judicial avenue, supports the narrower interpretation (BGE 137 I 371 E. 1.2: restrictive interpretation of the exclusion ground), while permitting a more generous determination for the purposes of the competence title.
N. 22 Legal nature of para. 2: Sutter (Gerichtlicher Rechtsschutz in auswärtigen Angelegenheiten, Zurich/St Gallen 2012, pp. 107 ff.) classifies para. 2 as a purely programmatic state objective provision with no binding effect on courts. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, pp. 729 f.), on the other hand, emphasise that the guiding objectives are nonetheless legally relevant through their indirect effect on the exercise of discretion by the Federal Council in applying → Art. 184 BV: they provide standards for parliamentary oversight and political accountability. There is consensus that para. 2 does not confer enforceable rights.
N. 23 Neutrality as a constitutional objective: The question of whether neutrality should have been included as an objective in para. 2 was controversially debated during the legislative process (→ N. 2). In doctrine, Tschannen (Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 44 N. 18) takes the view that the deliberate non-inclusion by the constitutional legislator clearly qualifies neutrality as a means. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2858) concur with this interpretation but note that political practice sometimes applies a different evaluation.
N. 24 Protective duty dimension of para. 2 and human rights: Sutter (Gerichtlicher Rechtsschutz in auswärtigen Angelegenheiten, Zurich/St Gallen 2012, pp. 128 ff.) argues that the objective of respect for human rights in para. 2 generates at least an institutional-procedural protective duty: the Confederation may not make foreign policy discretionary decisions in a manner whereby it actively contributes to violations of fundamental human rights. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 730), by contrast, emphasise that combining para. 2 with → Art. 35 BV (realisation of fundamental rights) does not generate additional individually enforceable protective duties, as long as no specific fundamental rights provision is violated. This disputed question has practical relevance for whether requests for diplomatic protection can trigger a legal duty on the part of the FDFA to act.
#6. Practical Notes
N. 25 Qualification as a foreign affair: Whether a state act qualifies as a foreign affair — and consequently restricts the judicial avenue — is determined by a two-stage test: (1) Does the act concern a subject-matter area covered by Art. 83 lit. a SCA or Art. 32 para. 1 lit. a FACA (internal/external security, neutrality, diplomatic protection, other foreign affairs)? (2) Is the act of a predominantly political character that significantly engages governmental discretion? Only if both questions are answered in the affirmative is the avenue of appeal to the Federal Supreme Court and the Federal Administrative Court excluded (BGE 137 I 371 E. 1.2); the appeal to the Federal Council under Art. 72 lit. a APA remains available in such cases.
N. 26 International treaties in cantonal subject-matter areas: Practitioners should note that the Confederation's conclusion of an international treaty is permissible even where the subject-matter of the treaty falls domestically within the cantons' legislative competence (BBl 1997 I 229). Cantonal provisions that conflict with such federal treaties are inapplicable pursuant to → Art. 49 para. 1 BV. The cantons must be involved prior to treaty negotiations in accordance with the CPFPA and → Art. 55 BV; however, a breach of this procedural duty does not in principle affect the validity of the concluded international treaty.
N. 27 Diplomatic protection: Under Swiss law, there is in principle no entitlement to the granting of diplomatic protection by the FDFA; the FDFA decides at its discretion (BGE 121 II 248 E. 1b). To the extent that international treaties (in particular Art. 6 ECHR) confer a right to judicial determination of individual rights, the exclusion under Art. 83 lit. a SCA must be reduced teleologically (BGE 137 I 371 E. 1.3). In practice, this means: whenever a party can rely on a legally protected position guaranteed under international law, the Federal Supreme Court is not excluded from review, even if the act is attributable to the area of foreign affairs.
N. 28 Duty to have regard for the cantons (para. 3) in practice: The FDFA is obliged, in treaty negotiations affecting cantonal subject-matter areas (e.g. education, police, tax law), to involve the cantons at an early stage in accordance with the CPFPA and ↔ Art. 55 BV. In the event of a dispute, the cantons may bring an alleged breach of this duty before the Federal Council. A breach of the duty of consideration does not, however, render a concluded international treaty void, since para. 3 imposes an internal duty of conduct on the federal authorities and does not constitute an external limit on the Confederation's competence.
#Case Law
#Concept of foreign affairs
BGE 137 I 371 E. 1.2 of 22 November 2011
Switzerland's intervention with the Bank for International Settlements falls under foreign affairs. Legal significance for the delimitation of federal competence under Art. 54 para. 1 Const.
«Le concept des 'autres affaires relevant des relations extérieures' mentionné à l'art. 83 let. a LTF doit recevoir une interprétation restrictive. L'exception vise les 'actes de gouvernement' classiques. Elle s'applique aux actes ayant un caractère politique prépondérant, le gouvernement et l'administration jouissant d'une marge d'appréciation considérable.»
BGE 130 III 430 E. 3.3 of 8 April 2004
Diplomatic immunity falls under exclusive federal competence. FDFA rulings on diplomatic status bind civil courts as sovereign acts in the field of foreign affairs.
«Bei einer Verfügung des EDA über den diplomatischen Status einer Person handelt es sich um einen hoheitlichen Akt auf dem Gebiet der auswärtigen Angelegenheiten. Die Zivilgerichte sind daran grundsätzlich gebunden.»
#State treaties and cantonal interests
BGE 132 II 65 E. 2.2 of 22 November 2005
Bilateral establishment treaties establish rights for established foreign nationals. Federal competence under Art. 54 para. 1 Const. also includes the implementation of international legal obligations in foreign nationals law.
«Die Beschwerdeführer berufen sich auf einen zwischen Russland und der Schweiz am 26./14. Dezember 1872 abgeschlossenen Niederlassungs- und Handelsvertrag. Dieser enthält in seinem Art. 1 folgende Regelung: 'Zwischen der schweizerischen Eidgenossenschaft und dem russischen Kaiserreich soll gegenseitig das Recht der freien Niederlassung bestehen.'»
#Relationship to fundamental rights
BGE 119 II 264 E. 4 of 1 January 1993
Recognition of foreign marriages belongs to foreign affairs. Non-recognition of same-sex marriages violates neither Art. 54 Const. (old version) nor Art. 12 ECHR.
«Der Beschwerdeführer rügt des weitern eine Verletzung von Art. 54 BV und Art. 12 EMRK. Diese Rüge läuft darauf hinaus, aus diesen Bestimmungen einen Anspruch auf Anerkennung der in Dänemark geschlossenen Ehe herzuleiten. Ein solcher Anspruch besteht indessen nicht.»
BGE 100 IV 244 E. 2 of 1 January 1974
The expulsion of foreign spouses affects federal competence for foreign affairs. The Federal Supreme Court cannot examine whether aliens police provisions violate the constitutional right to marriage.
«Das Bundesgericht kann nicht prüfen, ob diese Bestimmung vor dem das Recht zur Ehe gewährleistenden Art. 54 BV standhält (Art. 113 Abs. 3 BV).»
#Justiciability of acts of foreign policy
BGE 130 III 430 E. 3.4 of 8 April 2004
The withdrawal of diplomatic immunity is a discretionary act of foreign policy. The FDFA decides on the application of international legal immunity provisions based on Art. 54 para. 1 Const.
«Im bilateralen Verhältnis kann der Empfangsstaat dem Entsendestaat jederzeit und ohne Angabe von Gründen notifizieren, dass der Missionschef oder ein Mitglied des diplomatischen Personals der Mission persona non grata oder dass ein anderes Mitglied des Personals der Mission ihm nicht genehm ist.»
#Cantonal competences and federal law
BGE 110 V 65 E. 3 of 25 May 1984
The consular register for Swiss abroad is a foreign affair of the Confederation. Cantons cannot require this as a prerequisite for social security benefits.
«Die Möglichkeit, der freiwilligen Versicherung für Auslandschweizer beizutreten, darf nicht vom Eintrag in der Konsularmatrikel abhängig gemacht werden, da dies die Bundeskompetenz für auswärtige Angelegenheiten verletzen würde.»
BGE 87 I 451 E. 5 of 1 January 1961
Cantonal commercial police provisions may not extend to foreign countries. The territorial scope of cantonal competences finds its limit in federal competence for foreign affairs.
«Ein Kanton, der die öffentliche Reklame an Kinoleinwänden regelt, kann diese Regelung nicht auf Filme erstrecken, die ausschliesslich für das Ausland bestimmt sind, da dies in die Bundeskompetenz für auswärtige Angelegenheiten eingreifen würde.»