Constitutionalising Animal Welfare in Switzerland – Two Initiatives, Two Dynamics, Two Outcomes?

Swiss animal welfare organizations have proposed constitutional bans on importing fur and foie gras. The federal government is planning a counterproposal for the fur-ban initiative, meaning the popular initiative may achieve its goals before even reaching parliament. Conversely, the federal government and parliament oppose a foie gras import ban, preferring labelling that informs consumers of the production method. Unlikely to satisfy the initiative’s proponents, it thus seems that the Swiss people and cantons will decide whether foreign geese and ducks should be protected from being force-fed for the Swiss market, potentially setting the stage for a divisive referendum that may deepen cultural cleavages - write Eva Maria Belser and Simon Mazidi

Introduction

In February 2024, a Swiss non-profit association consisting of various animal welfare organizations announced the successful collection of signatures for two popular initiatives requesting partial revisions of the Federal Constitution of Switzerland. One initiative calls for a constitutional ban on the import of fur products from ‘mistreated animals’, while the other aims to ban the import of foie gras or similar products obtained by force-feeding animals. Both initiatives, which the Swiss people and the cantons will vote on in a mandatory referendum, hence seek to enforce animal welfare concerns through international trade bans.

This piece explores the instrument of popular initiatives as a direct democratic tool for initiating constitutional change in Switzerland and provides background on the current regulation of fur and foie gras products targeted by these initiatives. It then focuses on the role of the federal authorities when dealing with such initiatives and presents the interplays that develop between authorities, initiative committees, and the people when the federal parliament, which can neither stop nor alter the initiatives, decides to interfere by submitting counterproposals. After this, the piece turns to the two initiatives and discusses the tensions they may create between constitutional law and international trade obligations, on the one hand, and between different cultural communities within the country, on the other.

Popular Initiatives as Valves for Popular Concerns

Amendments to the Swiss Federal Constitution can be initiated by a decree of the Federal Assembly (national parliament) or by the people. The people can request a partial revision of the Constitution by collecting 100,000 signatures within 18 months. Popular initiatives, under Chapter 2 of the Constitution, must meet only a few criteria. Formally, they must respect the consistency of form (submitted as a fully formulated constitutional provision or as a general proposal stating only an objective) and the unity of subject matter (dealing with only one issue and not a package of changes). Substantively, the popular initiative must respect mandatory provisions of international law, commonly referred to as jus cogens. If these criteria are met, which they usually are, the popular initiative exactly as submitted must be put to a nationwide vote. It enters into force if approved by the majority of the people and the cantons.

The very first (and successful) popular initiative in 1893 banned the slaughter of animals without being stunned.

Given the low threshold for initiating constitutional changes, it is unsurprising that popular initiatives are voted on frequently, often several times a year, and cover a wide range of topics, from education, healthcare and social security, to economic, financial, and environmental affairs, to migration, trade, and human rights, as well as animal welfare. In fact, the very first (and successful) popular initiative in 1893 banned the slaughter of animals without being stunned, specifically singling out the traditional Jewish ritual of shechita. In doing so, the initiative conflated animal welfare concerns with religious discrimination, tapping into anti-Semitic sentiment among voters.

The ban on the slaughter of animals without stunning was subsequently removed from the Constitution and integrated into legislation when the competence to regulate animal welfare was transferred from the cantons to the federal government. It is still in force today. The Act also provides that kosher and halal meat can be imported to ensure a sufficient supply for the Jewish and Islamic communities. There is much to be said about a long constitutional tradition of religious discrimination that has historically affected religious expression and practice (such as the ban on minarets and face coverings). The two current initiatives, however, are not part of this unfortunate tradition, but focus purely on animal welfare concerns, like the previous unsuccessful initiatives aiming at banning animal testing (2022), prohibiting intensive livestock farming and improving animal welfare legislation (2022) or preventing farmers from removing cows' horns (2018).

At present, the two popular initiatives to ban the import of fur products and foie gras have only been examined by the Federal Council (the national government) and not yet by the bicameral Federal Assembly. The Federal Council rightly considers both initiatives to be valid, but it has already decided to recommend that both initiatives be rejected.

Current Regulations on Fur Products and Foie Gras and Proposed Revisions

The current Constitution does not deal with fur or foie gras products. It only provides, under a comparatively extensive constitutional provision, that the Confederation is competent to legislate on the protection of animals. The federal Animal Welfare Act entered into force in 1978. The Act, as well as the federal ordinance implementing it, have frequently been amended. Under Article 14 of the Animal Welfare Act, the Federal Council has the power to impose conditions on, restrict, or prohibit the import, transit and export of animals and animal products for animal welfare reasons.

Since 2013, a federal ordinance requires a comprehensive declaration for all furs and fur products sold within Switzerland’s borders. Sellers must ensure that all furs and fur products carry a clearly visible and legible label indicating that the product is “real fur” and specifying the animal species (cat and dog furs are banned by law), the country of origin, and the method of production (hunting or breeding). The declaration duty is enforced through a system of self-regulation supplemented by selective inspections. However, recent reports from the Federal Food Safety and Veterinary Office (FSVO) reveal a high rate of non-compliance. In fact, inspections found deficiencies in 79 per cent of sales outlets (FSVO, Ordinance on the declaration of furs: results of the 2020/2021 control period, pp. 2 and 4). This persistent lack of compliance with the declaration requirements by the industry may have been one of the drivers triggering the popular initiative.

The production of foie gras has been prohibited in Switzerland for over 40 years.

The production of foie gras has been prohibited in Switzerland for over 40 years. As the Animal Welfare Act bans the mistreatment of animals, force-feeding has been prohibited since 1978. In 2008, the Federal Council expressly introduced a ban on force-feeding in the Animal Welfare Ordinance. As in the case of kosher and halal meat, however, the importation of foie gras from other countries remains permissible, with most imports coming from France.

Two parliamentary proposals have previously called for declaration requirements for foods produced by methods banned in Switzerland. In 2020, a parliamentary motion took a step further, seeking to instruct the government to implement an import ban on foie gras. The government opposed the motion and argued in favour of a declaration requirement. The two chambers of the Federal Assembly, in determining the fate of the motion, struggled to reach consensus. The lower house, the National Council, initially supported the ban, but the upper house, the Council of State, opted for a mere declaration duty (as the vote resulted in a tie, its president cast the deciding vote). In the end, the National Council conceded, dropping the idea of a ban and instead mandating the government to introduce declaration requirements for products derived from force-feeding geese and ducks. The reluctance of the government and the ambivalence of the parliament in this matter were also likely among the drivers of the popular initiative.

Interplays Between the Authorities, Initiative Committees, and the People

While the federal authorities cannot directly influence a popular initiative, they can propose alternatives to the popular initiative in the form of a counterproposal. A direct counterproposal is a constitutional amendment drafted by the Federal Assembly that addresses the concerns raised by the popular initiative but is typically more moderate. In this case, the initiative committee can either withdraw its initiative, allowing only the direct counterproposal to go to vote, or maintain it, in which case both proposals are voted on simultaneously. Alternatively, the federal authorities may opt for an indirect counterproposal. In doing so, they address the popular concern by amending an act, such as the criminal code, immigration laws, or animal welfare regulations. If the initiative committee is satisfied with the indirect counterproposal, it can decide to withdraw its initiative. If it believes that the authorities have watered down or weakened their proposal too much – and considers that the people and the cantons are likely to accept a more far-reaching change – it can maintain the original initiative.

An initiative does not necessarily need to go to a referendum or be accepted at the ballot box to achieve its objective. 

The Federal Council has already announced plans to submit an indirect counterproposal to the fur initiative and to propose an amendment to the Animal Welfare Act in summer 2025. To speed up the process (and probably to motivate the initiative committee to withdraw its initiative), the government has also announced an interim ban on the import of fur and fur products from ‘mistreated animals’ by ordinance. While the Federal Council recommends the rejection of the initiative, it still considers the ban justified by the failure of the fur industry and the retail trade to comply with the mandatory declaration requirements. In this regard, the initiative has already prompted the authorities to act swiftly and shows that an initiative does not necessarily need to go to a referendum or be accepted at the ballot box to achieve its objective. In fact, it is not infrequent that the mere submission of an initiative, as in the fur case, generates enough pressure to compel the authorities to act. In contrast, the Federal Council has no plans to submit a direct or indirect counterproposal to the foie gras initiative, preferring declaration duties and referring to Switzerland’s international trade obligations, which would only allow an import ban if less stringent measures proved ineffective. Thus, it is highly unlikely that the initiative committee will withdraw its foie gras proposal.

In this way, we can see how popular initiatives, beyond proposing new ideas and serving as outlets for popular concerns, can also be used as tools of opposition to express popular dissatisfaction with the (in)actions of federal authorities and to bypass traditional (representative democratic) legislative procedures. The popular initiative calling for an import ban of foie gras is an example of the latter. Instead of calling for an import ban, the Federal Assembly instructed the government to merely draw up regulations on declaration requirements for imported foie gras. By submitting a popular initiative, the coordinating initiative committee (and the people signing the initiative) expressed their dissatisfaction with such an approach and aimed to circumvent parliamentary processes by placing the import ban directly into the Federal Constitution. Similarly, the popular initiative requesting an import ban on fur products was not a popular innovation but instead an instrument to exert pressure on federal authorities to act within their competences.

The International and Domestic Context of the Initiatives

Both initiatives are the latest in a series challenging trade commitments for reasons of animal welfare or environmental protection, following others such as the fair-food initiative and initiative for food sovereignty. The growing tensions between direct-democratic demands expressed through popular initiatives and the constraints placed on domestic regulatory autonomy by international obligations are a complex issue with many layers to consider. The earlier initiatives failed at referendum, leaving untested the compatibility of import bans or stricter import regulations for animal welfare or environmental concerns with international trade obligations.

Unilateral measures by World Trade Organization members based on moral or ethical concerns are not per se inconsistent with the WTO legal framework . . . 

The federal authorities tend to oppose such initiatives, citing international obligations. However, the government’s claim that an import ban of foie gras would be incompatible with Switzerland’s trade obligations is too absolute, if not simply inaccurate. Unilateral measures by World Trade Organization (WTO) members based on moral or ethical concerns are not per se inconsistent with the WTO legal framework or the EU-Swiss Free Trade Agreement. WTO members are permitted to condition access to their domestic markets on compliance with a policy unilaterally prescribed by the importing country, as long as the policy is capable of being justified under the general exceptions allowed under Article XX GATT (the EU-Swiss Free Trade Agreement contains an analogous exception in Article 20).

According to case law, animal welfare is recognized as an aspect of public morals, and measures taken on this basis fall under the exception of Article XX(a) GATT 1994. Further, although an import ban is rigid, it is intended to bring import requirements into line with the domestic ban that has been in place for over 40 years and is thus unlikely to qualify as protectionist. In addition, the availability of less restrictive measures does not mean that stricter measures are prohibited. The crucial question is whether less restrictive measures (influencing customers’ choices through declaration requirements) are suitable for achieving the desired regulatory objective (protection of animal welfare) in the same way as the stricter measure (import ban). Hence, an import ban on foie gras is not a priori incompatible with Switzerland’s international obligations. If well explained and justified, it could even lead to a broader recognition of animal welfare as an exception to trade regulations at the international level.

The Federal Council’s international trade law arguments against a ban may conceal a deep concern about domestic matters. While an import ban on fur products carries no cultural connotations in Switzerland, a ban on foie gras does. A 2020 survey by animal welfare organization Vier Pfoten found that 83 per cent of people in Switzerland oppose breeding and killing animals to produce fur for the fashion industry, and 75 per cent believe the sale of real fur is outdated (Vier Pfoten, p. 13). In contrast, a study carried out by the same organization showed considerable regional differences of foie gras consumption: only 15 per cent of respondents in German-speaking Switzerland consume foie gras, compared to 71 per cent in French-speaking Switzerland and 49 per cent in Italian-speaking Ticino.

When the motion to introduce an import ban was discussed in parliament, the debate generally unfolded along linguistic lines.

In a national referendum, the German-speaking majority (61.8 per cent) and the 17 monolingual German-speaking cantons could easily achieve the double majority (majority of voters and cantons) needed to pass a constitutional amendment. The double majority threshold, historically designed to protect small Catholic cantons, fails to protect linguistic and cultural minorities. Consequently, there is a concern that a referendum on an import ban of foie gras might polarize and divide the country. While German-speakers, who by and large do not consume foie gras, easily refer to animal welfare, this debate involves a much-cherished culinary tradition often served during festive occasions, which is now at stake for many French-speakers. When the motion to introduce an import ban was discussed in parliament, the debate generally unfolded along linguistic lines. The parliamentary decision to opt for declaration requirements rather than an import ban might therefore have been motivated by a desire to avoid further aggravating cultural cleavages. It remains to be seen what effects the initiative will have on the social and cultural cohesion of the country already strained by other issues.

Next Steps

Both initiatives will next be examined in each chamber of the bicameral Federal Assembly. Time will tell how parliament will engage with the two initiatives and how the initiative committee will respond to the Federal Council’s indirect counterproposal for an import ban on fur products. Given the Federal Council’s promise to act swiftly, it seems likely that the initiative committee will withdraw the fur products initiative. Conversely, the federal authorities’ approach to foie gras makes it probable that the initiative committee will insist on its proposal, and that its fate will be decided in a referendum.

Prof. Eva Maria Belser holds a Chair for Constitutional and Administrative Law at the University of Fribourg and a UNESCO Chair in Human Rights and Democracy.

Simon Mazidi is a PhD student and Lecturer in Public Law at the University of Fribourg.

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Suggested citation: Eva Maria Belser and Simon Mazidi, ‘Constitutionalising Animal Welfare in Switzerland – Two Initiatives, Two Dynamics, Two Outcomes?’, ConstitutionNet, International IDEA, 5 July 2024, https://constitutionnet.org/news/voices/constitutionalising-animal-welfare-switzerland-two-initiatives

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