1A Canton may conclude treaties with foreign states on matters that lie within the scope of its powers.
2Such treaties must not conflict with the law or the interests of the Confederation, or with the law of any other Cantons. The Canton must inform the Confederation before concluding such a treaty.
3A Canton may deal directly with lower ranking foreign authorities; in other cases, the Confederation shall conduct relations with foreign states on behalf of a Canton.
Art. 56 BV — Relations of the Cantons with Foreign Countries
#Overview
Art. 56 BV governs cantonal foreign policy and grants the cantons a uniquely extensive capacity for action under international law that is unparalleled worldwide. As the St. Gallen Commentary emphasizes, the constituent states in probably no other federal state possess such comprehensive competence in the field of foreign policy (Thürer, BSK BV-Hänni/Borter, Art. 56 N. 33).
The cantons may conclude international treaties with foreign countries within their areas of competence. This treaty-making competence encompasses both public-law state treaties and other international agreements. The delimitation from private-law contracts, which do not fall under Art. 56 BV and lead to difficult delimitation issues, is often problematic (Hangartner, BSK BV-Hänni/Borter, Art. 56 N. 27).
Three barriers limit cantonal freedom to conclude treaties: Cantonal treaties may not contradict federal law, federal interests, or the rights of other cantons. Before concluding treaties, the cantons must inform the Confederation. This obligation to inform replaced the former requirement for approval in 1999 and considerably strengthened the cantons' scope for action.
In communication, the Constitution distinguishes between subordinate and central state foreign authorities. Cantons may communicate directly with municipalities, regions, or federal states. Contact with foreign central governments takes place through federal mediation.
Example: The Canton of Basel-Stadt concludes an agreement with the Alsace region on cross-border police cooperation. After informing the Confederation, the treaty can be negotiated directly with the French regional authorities without requiring federal approval.
Art. 56 FC — Relations of the Cantons with Foreign Countries
#Doctrine
#1. Legislative History
N. 1 Art. 56 FC traces back to Arts. 9 and 10 of the Federal Constitution of 29 May 1874, which in turn adopted Arts. 9 and 10 of the Federal Constitution of 12 September 1848. The competence of the cantons to conclude international treaties has thus been recognised in constitutional law since the founding of the federal state, as an outgrowth of the extensive cantonal treaty practice prior to 1848. Kaempfer, OFK FC, Art. 56 N. 2 characterises this historical continuity as «héritage de la pratique conventionnelle des cantons avant 1848».
N. 2 Compared with the former Federal Constitution, the total revision of 1999 introduced two significant innovations. First, the substantive scope of application was considerably expanded: whereas Art. 9 of the former FC restricted the cantons' treaty-making competence to the fields of economic policy, neighbourly relations and policing, Art. 56 para. 1 FC now applies to all areas «that fall within the competence of the cantons» (BBl 1997 I 1, p. 294). Second, the former requirement of Federal Council approval for cantonal treaties was abolished and replaced by a duty to inform under Art. 56 para. 2 sentence 2 FC. The Federal Council justified this liberalisation on the ground that the cantons had not consistently complied with the approval requirement and that it had unnecessarily hampered cross-border cooperation (BBl 1997 I 1, p. 294; see also Kaempfer, OFK FC, Art. 56 N. 18).
N. 3 The Federal Council's dispatch of 20 November 1996 on the new Federal Constitution (BBl 1997 I 1) characterises the cantons' treaty-making competence as a consistent further development of cooperative federalism. At the same time, it underlines that Art. 54 para. 1 FC — «Foreign affairs are a federal matter» — is retained as the primary basis of competence, and that Art. 56 FC constitutes merely a limited exception thereto.
#2. Systematic Classification
N. 4 Art. 56 FC forms part of the section «Relations with Foreign Countries» (Arts. 54–56 FC). This section governs the distribution of foreign-affairs competences between the Confederation and the cantons and constitutes an exception to the general competence of the Confederation for foreign affairs enshrined in Art. 54 para. 1 FC. The relationship between Arts. 54 and 56 FC is one of rule and exception: ↔ Art. 54 FC (principle of federal competence); Art. 56 FC qualifies this principle by granting the cantons a subsidiary external competence in their own areas of jurisdiction. In legal scholarship this residual cantonal competence in the field of foreign policy is aptly described as «minor foreign policy» (Kaempfer, OFK FC, Art. 56 N. 1; JAAC 70.47 of 22 August 2005, para. 1).
N. 5 Within the systematic framework of the Constitution, Art. 56 FC is to be understood both as a competence norm and as a cooperation norm. As a competence norm it determines the areas in which the cantons may act externally. As a cooperation norm it regulates the procedure governing these external relations (duty to inform and channel of communication). The provision has no fundamental-rights character and is not a programmatic statement of state objectives within the meaning of Art. 41 FC; rather, it establishes a binding constitutional allocation of competences. → Art. 3 FC (residual competence of the cantons); → Art. 44 FC (duty of federal loyalty); → Art. 48 FC (intercantonal treaties, parallel provision for the domestic dimension); → Art. 172 para. 3 FC and Art. 186 para. 3 FC (parliamentary objection procedure).
N. 6 In the field of cross-border cooperation, Art. 56 FC is supplemented by several instruments of international law: the European Outline Convention of 21 May 1980 on Transfrontier Co-operation between Territorial Communities or Authorities (Madrid Convention, SR 0.131.1, in force for Switzerland since 4 June 1982) and its three additional protocols, the bilateral framework agreement with Italy of 24 February 1993 (SR 0.131.245.4), and the Karlsruhe Agreement of 23 January 1996 on cooperation at the municipal level (Kaempfer, OFK FC, Art. 56 N. 6; JAAC 70.47 of 22 August 2005, para. 2). At the domestic level, Arts. 61c and 62 GAOA and Art. 27o para. 2 lit. b GAOO give concrete expression to the constitutional duty to inform.
#3. Content of the Provision
3.1 Para. 1: Treaty-Making Competence of the Cantons
N. 7 Art. 56 para. 1 FC confers on the cantons the power to conclude treaties with foreign countries in their areas of competence. The term «areas of competence» refers to the general allocation of powers under the Federal Constitution (Arts. 3, 42 et seq. FC): the cantons may act under international law only in areas where they also have domestic competence under the Federal Constitution (Hänni/Börter, BSK FC, Art. 56 N. 4; Pfisterer, SGK FC, Art. 56 N. 6, 3rd ed. 2014). The cantonal competence is subsidiary to that of the Confederation: if the Confederation has already concluded an international treaty in a given area that contains an exhaustive regulation, the cantonal treaty-making competence in that area lapses (Kaempfer, OFK FC, Art. 56 N. 7). The Federal Supreme Court confirmed this in the context of viticulture and AOC (Appellation d'origine contrôlée): by concluding the bilateral agreement on trade in agricultural products with the EU, the Confederation had exercised its competence; the Canton of Geneva was therefore no longer entitled to adopt its own international rules in this area (BGE 135 II 243 E. 3.2).
N. 8 According to a survey by Fassbender/Gübeli (ZBl 119/2018, p. 107 et seq.), 436 international cantonal treaties were in force in Switzerland on 25 September 2017. Practice shows that the cantons are making increasing use of their competence; 15 of the 26 cantons share at least one border with a foreign state. In addition to international treaties, the cantons are concluding an increasing number of informal cooperation arrangements (memoranda of understanding, soft law), for which no formal requirements apply. Legal scholarship considers this informal cooperation to be of greater practical importance than the conclusion of state treaties (Kaempfer, OFK FC, Art. 56 N. 11; Maroonian/Kolb, CR FC, Art. 56 N. 18–19).
N. 9 From the perspective of international law, cantonal treaties are international treaties within the meaning of Art. 2 para. 1 of the Vienna Convention on the Law of Treaties (SR 0.111). Formally, Switzerland as a state is bound, not the individual canton. In the event of a breach of treaty, therefore, only the Confederation bears responsibility under international law (Kaempfer, OFK FC, Art. 56 N. 10; Maroonian/Kolb, CR FC, Art. 56 N. 27). For the domestic rank of such treaties → N. 14.
3.2 Para. 2: Limitations and Duty to Inform
N. 10 Art. 56 para. 2 sentence 1 FC sets out three limits to which cantonal external treaties are subject: compatibility (1.) with federal law, (2.) with the interests of the Confederation, and (3.) with the rights of other cantons. The prohibition on violating federal law encompasses all norms of federal law, i.e. the Constitution, federal acts, ordinances and — pursuant to the principle of the primacy of international law (Art. 5 para. 4 FC) — federal international treaties. The «interests of the Confederation» are to be construed broadly according to Kaempfer (OFK FC, Art. 56 N. 17) and cover national interests such as the maintenance of good relations with foreign states; the identical formulation appears in → Art. 48 para. 3 FC. The Federal Supreme Court does not entirely exclude direct contacts between cantons and international organisations, but prohibits «any measure by a canton that could frustrate or impede Switzerland's relations with other states» (JAAC 70.47 of 22 August 2005, para. 1). In addition, the duty of federal loyalty under Art. 44 para. 2 FC limits the cantons' scope for action.
N. 11 Art. 56 para. 2 sentence 2 FC establishes an a priori duty to inform: the cantons must notify the Confederation before concluding treaties. This duty is not one of approval; the Confederation cannot prevent the conclusion of the treaty but may only initiate an objection procedure (Art. 62 para. 4 GAOA). If no agreed solution can be reached (Art. 62 para. 3 GAOA), the Federal Council and third cantons may lodge an objection with the Federal Assembly (Arts. 186 para. 3 and 172 para. 3 FC). The Federal Assembly decides conclusively on the approval of the disputed treaty (Art. 172 para. 3 FC). According to Kaempfer (OFK FC, Art. 56 N. 19), the objection procedure has never had to be applied since the entry into force of the new Federal Constitution. Art. 61c para. 2 GAOA provides for exceptions to the duty to inform, in particular for treaties that implement already known agreements or that regulate purely technical or administrative matters.
3.3 Para. 3: Channel of Communication
N. 12 Art. 56 para. 3 FC distinguishes between two channels of communication: (a) the cantons may deal directly with subordinate foreign authorities; (b) in all other cases, dealings take place through the intermediary of the Confederation. As a rule, the Federal Council acts in the name of the cantons concerned when concluding international treaties (Art. 184 para. 2 FC; Kaempfer, OFK FC, Art. 56 N. 12). «Subordinate authorities» are defined in Art. 2 para. 2 of the Madrid Convention as «communities, authorities or bodies exercising local and regional functions and regarded as such under the domestic law of each State» (Kaempfer, OFK FC, Art. 56 N. 22; Maroonian/Kolb, CR FC, Art. 56 N. 33). This covers municipalities, regions and departments, but not central or federal authorities of foreign states. In practice, treaties with subordinate authorities make up the majority of the international treaties concluded by the cantons (Kaempfer, OFK FC, Art. 56 N. 22).
N. 13 The distinction in Art. 56 para. 3 FC is of practical importance because it affects the legal bindingness and the procedure of treaty negotiations. In direct dealings (lit. a), the cantons may also carry out the signing and ratification themselves (Kaempfer, OFK FC, Art. 56 N. 22, with reference to the 2011 agreement concluded between the Canton of Geneva and the Departments of Ain and Haute-Savoie on cross-border emergency care). Cantonal treaties concluded before the entry into force of the Federal Constitution of 1848 remain in force in principle, provided no subsequently concluded federal treaty conflicts with them (BGE 150 III 268 E. 4.5.5 with reference to BGE 104 III 68 E. 3).
#4. Legal Consequences
N. 14 Cantonal state treaties are assigned in domestic law to cantonal law (BGE 104 III 68 E. 2; BGE 109 III 83 E. 3). By their nature, however, they are generally regarded as international law (Biaggini, FC Commentary, 2nd ed. 2017, N. 4 on Art. 56 FC; Häfelin/Haller/Keller/Thurnherr, Swiss Federal Constitutional Law, 10th ed. 2020, para. 1971; Maroonian/Kolb, CR FC, Art. 56 N. 27; as confirmed by the Federal Supreme Court most recently in BGE 150 III 268 E. 4.5.5). This classification has significant consequences: pursuant to the principle of the primacy of international law (Art. 5 para. 4 FC), ratified cantonal state treaties take precedence over subsequent conflicting federal law — subject to the so-called «Schubert reservation», which applies where federal legislation has been enacted in deliberate violation of international law (BGE 150 III 268 E. 4.5.5 with reference to BGE 99 Ib 39 and BGE 148 II 169 E. 5.2).
N. 15 If a canton breaches a treaty it has concluded, Switzerland as a state bears responsibility under international law (Kaempfer, OFK FC, Art. 56 N. 15). The Confederation is therefore — at least in theory — empowered to act in place of the canton by means of federal enforcement (Art. 186 para. 4 FC). In practice, the Confederation rarely makes use of this possibility (Kaempfer, OFK FC, Art. 56 N. 15). Cantonal external treaties that violate Art. 56 para. 2 sentence 1 FC (in particular federal law or federal interests) may be objected to by the Federal Council and annulled by the Federal Assembly (Art. 172 para. 3 FC).
#5. Contested Issues
N. 16 The question of the rank to be assigned in domestic law to international treaties concluded by the cantons is disputed. Part of the legal literature assigns them to cantonal law (along these lines, the Federal Supreme Court in BGE 104 III 68 E. 2; BGE 109 III 83 E. 3). The prevailing scholarship — including Biaggini (FC Commentary, 2nd ed. 2017, N. 4 on Art. 56 FC), Häfelin/Haller/Keller/Thurnherr (Swiss Federal Constitutional Law, 10th ed. 2020, para. 1971), Maroonian/Kolb (CR FC, Art. 56 N. 27) and Kaempfer (OFK FC, Art. 56 N. 14) — qualifies these treaties as international law, since they are international treaties and since assigning them to cantonal law would have practically untenable consequences: they would be subject to the derogation rule of federal law (Art. 49 FC) and, contrary to the general view, could not take precedence over subsequent federal law. The Federal Supreme Court aligned itself with the majority opinion in BGE 150 III 268 E. 4.5.5, confirming the precedence of cantonal state treaties over subsequent federal legislation.
N. 17 The question of whether municipalities may conclude international treaties is disputed. Pfisterer (SGK FC, Art. 56 N. 8, 3rd ed. 2014) takes the view that municipalities may conclude international treaties if cantonal law so permits. The prevailing scholarship — represented inter alia by Kaempfer (OFK FC, Art. 56 N. 8), Maroonian/Kolb (CR FC, Art. 56 N. 12) and Hänni/Börter (BSK FC, Art. 56 N. 12) — rejects this: municipalities are not empowered to conclude international treaties; municipal cross-border cooperation therefore falls exclusively within the sphere of private law. In support of this position, Art. 7 para. 1 of the Karlsruhe Agreement provides that the contractual obligations arising from municipal cooperation agreements cannot give rise to state liability — which would be incompatible with the nature of an international treaty (Kaempfer, OFK FC, Art. 56 N. 8).
N. 18 A further matter of debate is the democratic deficit in the negotiation of cantonal external treaties. Kaempfer (OFK FC, Art. 56 N. 13) criticises the dominant role of the cantonal executive in the elaboration of international treaties as unsatisfactory from a democratic perspective; parliaments are frequently faced with the binary choice of accepting or rejecting treaties en bloc, without having been able to shape their content beforehand. In addition, informal cooperation instruments (soft law) require no parliamentary approval. As a remedy, the author proposes that cantonal parliaments be involved at an earlier stage in the negotiation phase. The Agreement on the participation of cantonal parliaments in the drafting, ratification, implementation and amendment of intercantonal treaties and treaties concluded by the cantons with foreign countries represents a first step in this direction (Kaempfer, OFK FC, Art. 56 N. 6; Fassbender/Gübeli, ZBl 119/2018, p. 107 et seq.).
#6. Practical Notes
N. 19 When examining whether a canton may conclude an external treaty in a specific area, a three-step approach is required: (1.) Does cantonal competence exist with respect to the subject matter (Art. 3 FC, allocation of powers)? (2.) Has the Confederation not already covered that competence by means of its own state treaty (subsidiary nature of cantonal competence, N. 7)? (3.) Does the planned treaty conflict with Art. 56 para. 2 sentence 1 FC (federal law, federal interests, rights of other cantons)?
N. 20 The duty to inform under Art. 56 para. 2 sentence 2 FC must be fulfilled before the conclusion of the treaty. It also applies where the treaty comes about through the intermediary of the Federal Council (Art. 61c para. 1 GAOA). Exceptions apply only to treaties that implement already known federal treaties or that regulate purely technical or administrative matters (Art. 61c para. 2 GAOA). The Confederation informs the other cantons via the Federal Gazette (Art. 62 para. 1 GAOA). The objection procedure provided for (Art. 62 para. 4 GAOA, Art. 172 para. 3 FC) has never yet been applied (Kaempfer, OFK FC, Art. 56 N. 19).
N. 21 Regarding legal certainty for historical cantonal treaties, it should be noted that the Federal Supreme Court confirmed in BGE 150 III 268 E. 4.5.5 that cantonal state treaties concluded before 1848 remain in force in principle. The absence of publication in the Classified Compilation has no adverse legal consequences for validity (cf. Federal Administrative Court, judgment B-1277/2007 of 18 September 2007, E. 5.5–5.6). A treaty loses its force only if it has been expressly repealed or superseded by a subsequently concluded federal state treaty.
N. 22 Art. 56 FC does not apply to purely informal acts of cooperation such as resolutions adopted by cantonal parliaments on events abroad. Such acts may, however, violate the duty to safeguard federal interests (Art. 56 para. 2 sentence 1 FC) and the duty of federal loyalty under Art. 44 para. 2 FC if they are liable to impair Switzerland's relations with other states (Kaempfer, OFK FC, Art. 56 N. 17; cf. also JAAC 70.47 of 22 August 2005, para. 1). → Art. 44 FC.
#Bibliography
- Biaggini Giovanni, FC Commentary, 2nd ed., Zurich 2017, N. 4 on Art. 56 FC
- Fassbender Bardo/Gübeli Raffael, Die gegenwärtig gültigen völkerrechtlichen Verträge der Kantone, ZBl 119 (2018), p. 107 et seq.
- Hänni Peter/Börter Emanuel, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (eds.), Basler Kommentar Bundesverfassung, Basel 2015, Art. 56
- Häfelin Ulrich/Haller Walter/Keller Helen/Thurnherr Daniela, Swiss Federal Constitutional Law, 10th ed., Zurich 2020, para. 1971
- Kaempfer Constance, in: Schlegel Stefan/Ammann Odile (eds.), Online Commentary on the Swiss Federal Constitution, Art. 56 FC, as of: 24 May 2023, online: onlinekommentar.ch/de/kommentare/bv56 (CC-BY-4.0)
- Maroonian Anaïs/Kolb Robert, in: Martenet Vincent/Dubey Jacques (eds.), Commentaire Romand, Constitution fédérale, Basel 2021, Art. 56
- Pfisterer Thomas, in: Ehrenzeller Bernhard/Schindler Benjamin/Schweizer Rainer J./Vallender Klaus A. (eds.), St. Galler Kommentar, Die Schweizerische Bundesverfassung, 3rd ed., Zurich 2014, Art. 56
- Federal Council dispatch of 20 November 1996 on the new Federal Constitution, BBl 1997 I 1, p. 294
Art. 56 BV — Relations of the cantons with foreign countries
#Case law
#Cantonal treaties with foreign partners
BGE 150 III 268 (29 April 2024) — Validity of historical cantonal treaties
The agreement of 11 May 1834 between Swiss cantons and the Kingdom of Bavaria on equal treatment of mutual nationals in bankruptcy cases has not been repealed by the subsequently enacted PILA. The bankruptcy agreement does not require recognition of the foreign bankruptcy decree under Art. 166 PILA within its scope of application. The judgment confirms the continued validity of historical cantonal treaties with foreign countries, provided they have not been expressly repealed.
«The bankruptcy agreement with the Kingdom of Bavaria has not been repealed by the subsequently enacted PILA and does not require recognition of the foreign bankruptcy decree under Art. 166 PILA within its scope of application.»
Judgment 8C_501/2016 (19 December 2017) — Inter-cantonal cooperation with foreign states
The founding agreement for the University of Applied Sciences Buchs between the cantons of St. Gallen and Graubünden with the Principality of Liechtenstein is an international treaty within the meaning of Art. 56 BV. Under the old Federal Constitution, cantons were authorised to conclude such treaties. The new Constitution has confirmed this competence and replaced the approval requirement with an information obligation.
«This founding agreement is an international treaty that the Swiss cantons of St. Gallen and Graubünden concluded with the Principality of Liechtenstein. The cantons were authorised to do so.»
#Cross-border cooperation
JAAC 70.47 (22 August 2005) — Institutional framework of cross-border cooperation
The Directorate of International Law confirms the broad autonomy of the cantons in cross-border cooperation. Cantons may conclude treaties with foreign countries within their areas of competence, which under the new Federal Constitution no longer require approval by the Federal Council. However, the cantons must inform the Confederation before concluding the treaties. The cantons may conclude treaties with subordinate foreign authorities directly, but with central or federal authorities only through the mediation of the Confederation.
«The cantons may conclude treaties with foreign countries within their areas of competence, which under the new Federal Constitution no longer require approval by the Federal Council. However, the cantons must inform the Confederation before concluding the treaties.»
JAAC 52.18 (24 April 1987) — Legal foundations of cross-border cooperation
The European Outline Convention of 20 May 1981 on Transfrontier Co-operation between Territorial Communities or Authorities obliges the contracting parties to facilitate and promote transfrontier cooperation between territorial communities. The cantons make increasing use of their competence for cross-border cooperation.
«The European Outline Convention of 20 May 1981 on Transfrontier Co-operation between Territorial Communities or Authorities obliges the contracting parties to facilitate and promote transfrontier cooperation between territorial communities.»
#Delimitation from other constitutional provisions
The case law on Art. 56 BV shows no conflicts with other constitutional provisions. Rather, the few decisions confirm the constitutional order of cantonal foreign policy. The practical application of Art. 56 BV occurs primarily in the area of cross-border cooperation, without raising fundamental legal questions.
#Legal development
The case law on Art. 56 BV is sparse, which indicates the clear allocation of competences and the practicable design of the norm. The few available decisions show a continuous development from the approval requirement under the old Constitution to the information obligation under the new Constitution. The cantons use their expanded competences particularly in the area of cross-border cooperation, without this leading to constitutional problems.