(Aug. 28, 2019) On July 16, 2019, the Swiss government announced that the popular initiative called the “Against Weapons-Exports to Regions Affected by Civil War (Correction-Initiative)” has achieved the required 100,000 signatures to be put to a vote. The initiative seeks to increase democratic control over the regulation of war material exports by inscribing the fundamental criteria for exports directly into the Swiss Constitution, making changes to the regulations subject to a popular vote. If the initiative is accepted by a majority of Swiss voters and cantons, the Federal Council—the executive—would effectively lose its competency to regulate the export of war material. Further, the popular initiative seeks to go back to the stricter pre-2014 standards when war material exports to countries that are known for systematically violating human rights were prohibited outright. Currently, in accordance with article 5, paragraph 2 of the Ordinance on War Material, war material can be exported to such states if there is low risk that the material will be used against the civilian population. The Federal Council and the Swiss parliament have yet to debate the popular initiative and make a recommendation to the Swiss public, and no date has been set for the popular vote.
The Swiss Constitution provides the federal government with the competency to regulate the export of war material in article 107 but does not specify a responsible authority. Articles 26 and 29 of the Federal Act on War Material of 1996 designate the Federal Council as the authority to set regulations for the manufacturing, trade, brokerage, import, export, and transit of war material. The regulations the Federal Council sets forth in the Ordinance on War Material are not subject to direct democratic instruments; according to the Swiss Constitution’s section on political rights (arts. 138–141), referenda are applicable only if changes are made to federal law or constitutional provisions.
The current debate about greater democratic control over the criteria for the export of war material was sparked by the Federal Council’s announcement in May 2018 that it would ease restrictions to allow exports to states involved in civil war if there is no evidence that the exported war material would be used in such a conflict. The Federal Council argued that the changes are necessary to guarantee the production capacity of the Swiss defense industry, which has been struggling partially due to strict restrictions on the export of war material. However, after backlash from the parliament and Swiss civil society, the Federal Council ultimately decided to forgo the proposed changes.
Parliamentary opposition to the proposed changes came in the form of a motion requesting the provisions for the export of war material to be set in federal acts instead of ordinances. This move would have given the parliament the competency to decide on the criteria for the export of war material instead of the Federal Council. The motion passed in the National Council—the lower chamber, but ultimately failed in the Council of States—the upper chamber.
The “Correction-Initiative” was launched when it became clear that the motion would not pass through the parliament. The initiative is supported by a broad coalition of parties spanning the left to the center of the political spectrum, including the Social Democratic Party, the Green Party, the Green Liberal Party, and the Conservative Democratic Party. The goals of the popular initiative are similar to those of the motion but would mean a more profound democratization of war material exports. Enshrining the fundamental principles on war material exports in the Constitution would guarantee that the Swiss public automatically have a say regarding any changes made to the criteria through a mandatory referendum, as is required by article 140 of the Swiss Constitution. Further, changes to the fundamental export criteria would be made more difficult, as constitutional amendments need to gain a majority of Swiss voters and cantons. (Const. art. 142, para. 2.)
These proposals to increase democratic control over the war material export process resonate with the Swiss public because, despite Switzerland possessing one of the strictest regulatory regimes concerning the export of war material, several recent cases of Swiss war material being used in conflict zones have arisen. Additionally, a report by the Swiss Federal Audit Office published in 2018 showed that the existing regulations can be circumvented legally and that the control mechanisms were not adequate to prevent the misuse or misdirection of war material.
The report by the Swiss Federal Audit Office also suggested that the State Secretariat for Economic Affairs (SECO), the enforcement agency for the regulations on war material exports, tended to interpret existing regulations in a manner favorable to the Swiss defense industry and the views of its lobbyists. In 2018, SECO approved 2,2791 export requests with a value of 2.088 billion Swiss francs (CHF) (about US$2.106 billion) and denied 12 requests. In total, Swiss companies exported war material amounting to CHF509.9 million (about US$514.360 million) in 2018. Although war material exports made up only 0.17% of all Swiss exports in 2018, Switzerland was the 13th biggest war material exporter worldwide between 2014 and 2018, according to a study by the Stockholm International Peace Research Institute. Switzerland’s biggest clients during that period were Saudi Arabia, China, and Indonesia.
Prepared by Anne-Cathérine Stolz, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.
Updated September 3, 2019