Federal Constitution: a close collaboration between the federal government and the cantons
According to the Federal Constitution (Art. 54, paras. 1 and 2, Art. 16, Art 184, paras. 1 and 2), concluding international agreements is the prerogative of the Confederation. However, the Swiss Federal Constitution (Art. 56, para. 1) grants the cantons the right to conclude agreements with foreign authorities on matters that lie within their competences.
The Federal Council’s practice has allowed the cantons maximum autonomy in the conduct of their cross-border relations. They can conclude agreements with foreign authorities in all fields for which they are responsible. However, agreements must not contain anything contrary to the interests of the Confederation or of other cantons.
Swiss law requires the Confederation and the cantons to collaborate closely on cross-border matters. The cantons may thus maintain direct contacts with lower-ranking authorities, i.e. with local or regional authorities. It is generally a matter of dealing with specific problems of relations between neighbours within the region.
However, the cantons may not correspond directly with the central authorities of a foreign State. The Federal Constitution (Article 56, para. 3) provides that official contacts between cantons and the central authorities of foreign countries must be arranged by the Federal Council. It is therefore up to the Federal Council to conduct negotiations and to sign and ratify the agreement. Although the Federal Council acts at the request and on behalf of the cantons concerned, it also takes account of the interests of the Confederation or of other cantons.
The Federal Council usually concludes agreements on behalf of the cantons, which are contracting parties. Therefore, the treaties must be approved in accordance with cantonal procedures. If it is in the direct interests of the Confederation, however, the Federal Council can also conclude agreements on behalf of itself.
The cantons must notify the federal government of proposed agreements in advance (Federal Constitution, Article 56, para. 2). The federal authorities then verify that the agreement is constitutional and that it accords with the foreign policy of the Confederation.