The Embargo Act and its constitutional setting

From emergency ordinances to a federal statute

Switzerland applied economic sanctions long before it had a statute for them. When the Security Council of the United Nations imposed an embargo on Iraq in August 1990, the Federal Council adopted the measures for Switzerland although the country was not a member of the United Nations. It relied on its constitutional power to safeguard the interests of the country in foreign affairs. The same technique served for the sanctions against the former Yugoslavia, Libya, Haiti and a series of other states during the 1990s.¹ Each regime rested on an ordinance of the Federal Council that drew its authority directly from the Constitution. That method was quick, but it had two weaknesses. Ordinances based on the Constitution alone must be limited in time, and the criminal provisions that enforced them had a fragile legal basis, because the principle of legality requires that punishable conduct and the penalty be defined in a statute.

The Federal Act of 22 March 2002 on the Implementation of International Sanctions (Embargo Act, EmbA), SR 946.231, removed both weaknesses. It entered into force on 1 January 2003, a few months after Switzerland had joined the United Nations on 10 September 2002.² Its first article defines its purpose. The Confederation "may enact compulsory measures in order to implement sanctions that have been ordered by the United Nations Organisation, by the Organisation for Security and Cooperation in Europe or by Switzerland's most significant trading partners" (Art. 1 para. 1 EmbA). The measures may restrict transactions in goods and services, payments and capital movements and the movement of persons. They may also take the form of "prohibitions, licensing and reporting obligations as well as other restrictions of rights" (Art. 1 para. 3 EmbA).³ The power to safeguard the interests of the country under Article 184 paragraph 3 of the Federal Constitution is expressly reserved (Art. 1 para. 2 EmbA).

The architecture of compulsory measures

The Embargo Act is a framework statute. It does not itself prohibit anything. Under Article 2 the Federal Council enacts the compulsory measures in the form of ordinances. It may provide for exceptions to support humanitarian activities or to safeguard Swiss interests.⁴ Each sanctions regime therefore has its own ordinance, which lists the prohibited goods and services, the persons whose assets are frozen and the licensing procedures. The ordinances also declare which violations are punishable under the criminal provisions of the Act. A regime ordered by the Security Council binds Switzerland under international law. Measures of the European Union, on the other hand, bind Switzerland only to the extent that the Federal Council decides to adopt them, because the European Union is, in the language of the statute, one of "Switzerland's most significant trading partners" without any power to impose its measures on the Confederation.

The practical consequence is a degree of discretion that the European member states do not have. When the Council of the European Union adopts a regulation, it applies directly in Italy from the day of its publication in the Official Journal. When the same regulation concerns Switzerland, SECO must first prepare an amendment of the Swiss ordinance, the Federal Council or the Federal Department of Economic Affairs, Education and Research (EAER) must adopt it, and the amendment must be published in the Official Compilation of federal law. The Swiss text often reproduces the European wording, but it renumbers the provisions, places the lists of goods and persons in annexes of its own and sometimes omits or modifies particular measures. For a trader in Lugano who buys in Italy and sells to Turkey, the difference between the European regulation and the Swiss ordinance is therefore a question of compliance in its own right.

Notes

1. Ordinance of 7 August 1990 on Economic Measures against the Republic of Iraq, SR 946.206, https://www.droit-bilingue.ch/de-fr/9/94/946.206-index.html (preamble amended by the Ordinance of 30 October 2002 so as to rest on Art. 2 EmbA from 1 January 2003, AS 2002 3959); on the practice before 2002 see the Federal Council's message on the Embargo Act of 20 December 2000, BBl 2001 1433, cited in the preamble of the EmbA, https://www.droit-bilingue.ch/en-de/9/94/946.231-preamble-2.html. ↩
2. Federal Act of 22 March 2002 on the Implementation of International Sanctions (Embargo Act, EmbA), SR 946.231, Art. 18 (commencement on 1 January 2003 by Federal Council decision of 30 October 2002), https://www.droit-bilingue.ch/en-de/9/94/946.231-18-21.html; United Nations, "Member States", https://www.un.org/en/about-us/member-states (Switzerland: "Date of Admission: 10-09-2002"). ↩
3. EmbA, Art. 1 paras 1–3, English translation as reproduced at https://www.droit-bilingue.ch/en-de/9/94/946.231-1-4.html. ↩
4. EmbA, Art. 2, https://www.droit-bilingue.ch/en-de/9/94/946.231-2-5.html. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.