SWITZERLAND
1. Definition of Treaties
- A treaty is understood in Swiss practice as an international agreement, generally concluded in written form, between two or more subjects of international law, whereby the parties express their common intention to create legally binding rights and obligations under international law.
- The designation of the instrument (e.g. treaty, agreement, convention) is not determinative; rather, the intention of the parties and the content of the instrument are decisive in determining its legal nature.
- In contrast, instruments that do not create legal obligations are considered non-binding international instruments.
2. Treaty-making Process of Switzerland
- The treaty-making process in Switzerland is not presented as a single linear procedure in the official practice guide, but is instead derived from a series of legal stages, including negotiation, adoption, signature, expression of consent, and entry into force, as follows:
Step 1: Initiation and Preparation
- The process is initiated by the competent federal authority (e.g. Federal Department or Federal Office), which identifies the need to conclude a treaty and prepares the initial draft and policy position.
Step 2: Consultation (Internal and External)
- Relevant stakeholders, including federal authorities, cantons, and, where appropriate, interested groups, are consulted to ensure coherence with domestic policy and legal requirements.
Step 3: Negotiation Mandate
- A mandate to negotiate is generally issued by the Federal Council, particularly for treaties of political or economic significance. This mandate defines the scope and objectives of the negotiations.
Step 4: Negotiation and Drafting
- Authorized representatives conduct negotiations with foreign counterparts. The treaty text may be prepared in advance or developed progressively during negotiations.
Step 5: Adoption and Authentication of the Text
- Once negotiations are concluded, the text of the treaty is formally adopted and authenticated, confirming that it represents the agreed wording between the parties.
Step 6: Signature
- The treaty is signed by duly authorized representatives. Certain high-ranking officials (e.g. Head of State, Head of Government, Minister for Foreign Affairs) may sign without presenting full powers.
- Signature confirms the authenticity of the text and may, in some cases, indicate consent to be bound.
Step 7: Approval and Ratification
Depending on the nature and importance of the treaty, approval may be required by the Federal Assembly (Parliament) or may fall within the competence of the Federal Council.
Consent to be bound is typically expressed through ratification, approval, or accession.
Step 8: Entry into Force
- The treaty enters into force in accordance with its provisions, usually after all parties have completed their respective internal procedures.
Step 9: Publication and Registration
- The treaty is published in the official legal system of Switzerland and, where applicable, registered with the United Nations in accordance with international practice.
3. Exceptions and Practices
- Distinction between binding and non-binding instruments:
Swiss practice places particular emphasis on distinguishing treaties from non-binding instruments, based on the intention of the parties and the wording of the text, rather than its title.
- Role of cantons: Cantons may participate in treaty-making processes and, within their competences, may conclude agreements, provided these do not conflict with federal law or foreign policy.
- Referendum mechanism: Certain treaties of significant importance may be subject to mandatory or optional referendums, reflecting Switzerland’s system of direct democracy.
- Provisional application: In exceptional cases, treaties may be applied provisionally prior to formal ratification, particularly where urgent implementation is required.