#1. Legislative History

N. 1 Art. 58 FC was fundamentally redesigned in the total revision of 1999. While the old Federal Constitution of 1874 only regulated general military service obligation (Art. 18 old FC) and federal military sovereignty (Art. 19-22 old FC), Art. 58 FC formulates explicit constitutional mandates for the army for the first time. The Federal Council Message on a New Federal Constitution of 20 November 1996 states that the army should be «fundamentally organised according to the militia principle», whereby the word «fundamentally» leaves room for exceptions (BBl 1997 I 1, 243).

N. 2 The three paragraphs of Art. 58 FC regulate different aspects: Paragraph 1 anchors the existence of the army and the militia principle as an organisational principle. Paragraph 2 defines the army's tasks in a graduated sequence from conflict prevention through defence to subsidiary tasks. Paragraph 3 clarifies that the deployment of the army is exclusively a federal matter. This clear structure was not present in the old constitution (BBl 1997 I 1, 243-244).

N. 3 The constitutional legislator wanted to take into account the changed security policy situation after the end of the Cold War with the new formulation. Traditional national defence was supplemented by preventive tasks (conflict prevention) and subsidiary deployments. At the same time, however, the militia principle was to be constitutionally secured as an identity-forming element of the Swiss Army (BBl 1997 I 1, 243).

#2. Systematic Classification

N. 4 Art. 58 FC stands in Title 2 (Fundamental Rights, Citizenship Rights and Social Objectives), Section 2 (Security, National Defence, Civil Defence) of the Federal Constitution. This systematic position underscores that national defence represents a core task of the state. The placement immediately before Art. 59 FC (Military and Alternative Service) and Art. 60 FC (Organisation, Training and Equipment of the Army) shows the close connection of these provisions.

N. 5 In relation to the state objectives (Art. 2 FC), Art. 58 FC concretises the protection of the freedom and rights of the people as well as the preservation of the country's independence and security. The connection to Art. 54 FC (Foreign Affairs) becomes relevant in peacekeeping and in international deployments. With Art. 57 FC (Security), the army shares responsibility for internal security, whereby its role is subsidiary (→ Art. 57 FC).

N. 6 The exclusive federal competence for army deployment (para. 3) is to be seen in the context of the distribution of competences between the Confederation and the cantons. While internal security is primarily a cantonal matter (Art. 57 para. 2 FC), military national defence lies entirely with the Confederation. This corresponds to the federal state structure, according to which national tasks are concentrated at the federal level (→ Art. 3 FC, → Art. 42 FC).

#3. Elements of the Offence / Normative Content

#3.1 Existence and Organisation of the Army (para. 1)

N. 7 The constitution states categorically in para. 1 sentence 1: «Switzerland has an army.» This is not merely a description of the status quo, but a constitutional mandate. The Confederation is obligated to maintain a functional army. A complete abolition of the army would only be possible through constitutional amendment.

N. 8 The militia principle in para. 1 sentence 2 means that the army consists primarily of citizens who perform their military service on a part-time basis. The word «fundamentally» allows exceptions for professional military personnel in key functions. The militia principle has historical roots in Switzerland and is understood as an expression of the republican state idea, according to which citizens themselves are responsible for the defence of their country (Saladin, Der verfassungsrechtliche Grundsatz des Milizprinzips der Schweizer Armee, 2012, 45ff.).

#3.2 Tasks of the Army (para. 2)

N. 9 Para. 2 sentence 1 lists three main tasks in a deliberate order: conflict prevention, peacekeeping and defence. This enumeration is ordered according to the subsidiarity principle – preventive measures take priority over reactive ones. The support of civilian authorities (sentence 2) is subsidiary in contrast (Rhinow, Zur Rechtmässigkeit des Armeeeinsatzes im Rahmen der inneren Sicherheit, SJZ 2005, 506).

N. 10 Opinions differ regarding conflict prevention. The prevailing opinion sees this as an independent army task that encompasses preventive military measures for deterrence. Diggelmann/Altwicker, however, understand conflict prevention primarily as a political task to which the army only contributes, for example through its mere existence as a deterrent.

N. 11 Peacekeeping refers mainly to international peace missions. Switzerland can participate in UN-mandated peace operations, whereby neutrality must be observed. Here too, Diggelmann/Altwicker represent the position that this is primarily a state objective, not a specific army task.

N. 12 The term defence is controversial. A broad view encompasses all types of use of force to ward off a threat to the country and its population. Diggelmann/Altwicker advocate for a narrower understanding: defence means only the use or threat of military force to ward off threats of strategic magnitude. This controversy has practical significance for the distinction between military defence tasks and police security tasks.

N. 13 Support of civilian authorities (para. 2 sentence 2) is limited to two cases: serious threats to internal security and extraordinary situations. Examples are disaster relief, guarding embassies or support at major events such as the WEF in Davos. The temporal limitation of such deployments is controversial. One view also considers temporally unlimited support tasks to be permissible. The opposing view, represented by Diggelmann/Altwicker, demands a temporal limitation of subsidiary security deployments, since otherwise the primary responsibility of the cantons for internal security would be undermined.

N. 14 The general clause «The law may provide for additional tasks» (para. 2 sentence 3) enables the assignment of additional tasks to the army. However, these must be in accordance with the constitutional purpose of the army. Pure economic promotion or general administrative tasks cannot be assigned to the army (Meyer, Grundaufgaben der Armee und weitere Aufgaben des Staates, 2004, 78ff.).

#3.3 Federal Competence (para. 3)

N. 15 Para. 3 establishes the exclusive federal competence for army deployment. This applies both to deployments for national defence and to subsidiary deployments domestically. The cantons have no military of their own and cannot independently decide on army deployments. However, they can request military support according to Art. 185 para. 2 FC (→ Art. 185 FC).

#4. Legal Consequences

N. 16 Various legal consequences arise from Art. 58 FC. The Confederation is obligated to maintain an operational army and provide the necessary resources for this. The militia principle limits the proportion of professional military personnel. The defined tasks legitimise and simultaneously limit army deployment.

N. 17 Art. 58 FC does not create any immediate subjective rights for citizens. Military service obligation arises from Art. 59 FC, not from Art. 58 FC. However, defensive rights can arise from the task limitation in para. 2 if the army were deployed outside its constitutional tasks.

N. 18 The cantons are bound by federal competence and must tolerate army deployments on their territory. However, they can co-determine within the framework of the right of application according to Art. 185 para. 2 FC whether and how the army is deployed for support. The costs of subsidiary deployments are fundamentally borne by the cantons (Art. 68 MG).

#5. Disputes

N. 19 The central point of dispute concerns the scope of the concept of defence. While a broad interpretation encompasses any military use of force for averting danger, Diggelmann/Altwicker limit the concept to threats of strategic magnitude. This controversy is not only academic, but has effects on the distinction between army and police tasks.

N. 20 Another dispute concerns the temporal limitation of subsidiary security deployments. Practice knows factually unlimited army deployments such as embassy guarding. Critics such as Diggelmann/Altwicker see in this a creeping militarisation of internal security and an undermining of cantonal police sovereignty. The opposing opinion emphasises the flexibility of the constitution and the necessity to be able to react to permanent security threats.

N. 21 The scope of the general clause in para. 2 sentence 3 is also controversial. While an extensive interpretation grants the legislator extensive freedom in defining new army tasks, a restrictive view demands a close connection to the constitutional core tasks. Schindler warns against an over-extension of the army mandate that could endanger the militia principle (Schindler, Verfassungsrechtliche Schranken für das Projekt «Armee XXI», 1999, 45ff.).

N. 22 Participation in international peace missions raises questions about neutrality. Koller argues that peacekeeping measures under UN mandate are compatible with neutrality as long as no combat operations take place (Koller, Kampf gegen den Terrorismus, ZSR 2006 I, 120). Critics see even participation in robust peace missions as endangering neutrality.

#6. Practice Guidelines

N. 23 When applying for army deployments for support, the cantons must observe the subsidiarity threshold. Own resources must be exhausted or obviously insufficient. The army deployment at the WEF in Davos has precedent character: the Federal Supreme Court accepted the deployment because of the special international dimension of the event (cf. Judgment 1P.117/2000).

N. 24 For military leadership, the task hierarchy in para. 2 is action-guiding. Resources are to be used with priority for core tasks (conflict prevention, defence). Subsidiary deployments may not endanger operational readiness for the case of defence (Art. 67 MG).

N. 25 In legislation, the constitutional framework must be observed. New army tasks according to para. 2 sentence 3 must have a factual connection to security. The assignment of purely civilian tasks to the army would be unconstitutional. The militia principle also sets limits to professionalisation – a professional army would only be possible after constitutional amendment.

N. 26 In current practice, the significance of Art. 58 FC is particularly evident in hybrid threats (cyber attacks, disinformation, terrorism). The distinction between military defence and police danger prevention is becoming increasingly difficult. The doctrine of «comprehensive security» attempts to better coordinate army and civilian security organs, but must respect the constitutional competence limits (→ Art. 57 FC).

N. 27 Concrete examples from recent practice illustrate the application of Art. 58 FC: The army deployment during the Covid-19 pandemic 2020/21 was based on the «extraordinary situation» according to para. 2. The army's cyber defence strategy moves in the tension field between defence (in case of state cyber attacks) and internal security (in case of criminal hackers). The discussion about armed drones shows the challenges of the militia principle with high-technology weapon systems.

Art. 58 Cst. in its current form (since 2000) has so far produced little supreme court jurisprudence. The few decisions deal mainly with sub-statutory aspects of military organisation and the consequences of military service obligation. Central constitutional questions regarding the army mandate, the militia principle or the exclusive federal competence have not yet been clarified by the supreme court.

#Military service replacement tax and equal treatment

Judgment 2C_221/2009 of 21 January 2010 The Federal Supreme Court dealt with the constitutionality of the military service replacement tax intended only for men. The appellant claimed discrimination based on gender. The court held that the gender-specific levy of the replacement tax is compatible with Art. 8 Cst. and international treaties, as it is already provided for in Art. 59 Cst.

«Art. 59 para. 3 Cst. as lex specialis [takes precedence over] the general principle of equal treatment and the general equality mandate of Art. 8 Cst.»

Ryser v. Switzerland, ECtHR, Judgment No. 23040/13 of 12 January 2021 The European Court of Human Rights found a violation of Art. 14 in conjunction with Art. 8 ECHR in the replacement tax obligation of a person unfit for military service for health reasons. Relevance: The decision indirectly confirms the constitutional admissibility of military service obligation as such, but criticises its discriminatory implementation in the replacement tax obligation.

«Une taxe perçue par l'Etat qui trouve son origine dans l'incapacité à servir dans l'armée en raison d'une maladie [...] tombe sous l'empire de l'art. 8 CEDH.»

#State liability in military activities

BGE 127 II 289 of 24 July 2001 The Federal Supreme Court clarified the relationship between federal liability under the Military Act and under the Military Insurance Act. Military insurance excludes other liability claims against the Confederation. Relevance: The decision shows the practical significance of Art. 58 para. 3 Cst. (deployment of the army is a federal matter) for the distribution of liability.

«The provisions of the Military Insurance Act are 'other liability provisions' according to Art. 135 para. 3 MilA and exclude liability under the Military Act.»

BGE 123 II 577 of 12 September 1997 In a collision between a military and civilian aircraft, the Federal Supreme Court established that federal liability should be assessed not under the Aviation Act, but under the Military Organisation (now: Military Act). Relevance: Confirms the comprehensive federal competence for military activities according to Art. 58 para. 3 Cst.

«Federal liability for a collision between a military and a civilian aircraft in the air is governed not by the Aviation Act, but by the Military Organisation.»

#Military expropriations

BGE 109 Ib 130 of 3 June 1983 The Federal Supreme Court confirmed the authority of the Federal Department of Defence to initiate expropriation proceedings for military purposes. This competence derives from the constitutional assignment of tasks to the Confederation. Relevance: Concretises the constitutional mandate of national defence from a procedural law perspective.

«The Federal Department of Defence is authorised to initiate expropriation proceedings based on constitutional foundations.»

BGE 112 Ib 280 of 25 July 1986 In expropriation proceedings for a weapons range, the Federal Supreme Court specified the competences of the Department of Defence and the procedural rights of environmental protection organisations. Relevance: Shows the practical implementation of federal competence for the army in cases of conflicting constitutional interests (national defence vs. environmental protection).

#Recent developments

Administrative Court of Zurich VB.2024.00624 of 28 November 2024 In a recent decision on military service replacement for naturalised Swiss citizens, the Administrative Court of Zurich confirmed that the replacement obligation does not depend on prior recruitment. Relevance: Shows the continuous development of case law on the effects of military service obligation.

«The replacement obligation does not depend on prior recruitment and those who are no longer of recruitment age at naturalisation are also liable for replacement service.»

#Gaps in case law

Central constitutional questions regarding Art. 58 Cst. have so far remained unresolved:

• The precise delimitation between «war prevention» and «peacekeeping» (para. 2)
• The constitutional limits of «other tasks» according to Art. 58 para. 2 sentence 3 Cst.
• The concrete implementation of the militia principle and possible exceptions thereto
• The relationship between the army mandate and international peace missions

The sparse case law on Art. 58 Cst. reflects that the fundamental constitutional questions regarding the army are usually decided at the political level and are rarely the subject of judicial review.