Why Swiss neutrality is no obstacle to joining the Treaty on the Prohibition of Nuclear Weapons (TPNW)

By Daniel Rietiker

  • Introduction

Neutrality is a holy cow for Switzerland and, for good reasons, one of the unifying and integrating values of its citizens. Unfortunately, this concept is often invoked in a misleading way, most recently in the debate about whether Switzerland should join the TPNW. Last week, a strong majority (16) of the Foreign Policy Committee of the lower chamber (Nationalrat) of the Swiss parliament called on the Swiss government to sign the treaty as soon as possible. A minority (6) is, however, of the view that “the constitutionally enshrined principle of neutrality precludes the ratification of this treaty”.

It is very hard to see how this could be true. The interdepartmental working group who analysed the treaty’s implications in detail found no neutrality problems either. Three different dimensions of neutrality can be distinguished in this debate: First, a strictly legal notion – which is not at issue here; second, neutrality in a foreign policy and security sense – which is no bar to joining the TPNW – and, third, neutrality understood as a search for a middle ground position – which is an unacceptable position for Switzerland to adopt in this debate.

  • Neutrality in a strictly legal sense

First, as far as the strictly legal notion is concerned, the law provides neutral states with a good deal of scope in peacetime, as recognized in the brochure issued by the Swiss Federal Department of Foreign Affairs on “Swiss Neutrality” (4th ed.). Even arms sales to States that are not engaged in an armed conflict are basically allowed in light of Swiss neutrality, even if they might be restricted under other national and international norms. It is therefore not expected that the TPNW would constitute a problem for Swiss neutrality in times of peace.

As far as war time is concerned, it is noteworthy to recall that Swiss neutrality does not derive from Swiss law, but from international law, in particular from the 1907 Hague Convention (IV) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The brochure on “Swiss Neutrality”, mentioned above, summarizes the most important rights and obligations of neutral states during an armed conflict in light of that Convention. The most important right is that of territorial inviola­bility. It is obvious that this right is not affected or limited by the ratification of the TPNW. On the contrary, it would even be strengthened by the new treaty, since the latter prohibits “any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.” (Art. 1 g). As a result, this prohibition would be a significant protection against potential pressure from nuclear powers intending to use Swiss territory for their nuclear endeavours.

The TPNW provides for a complete prohibition of nuclear weapons, including possession, use and threat of use of nuclear weapons or other nuclear explosive devices, with the aim to achieve a world free of nuclear weapons. It is hard to see how the obligations deriving from this treaty could be in conflict with the duties of neutral States. It could even be argued that, since it prohibits the transfer or to receive the transfer of nuclear weapons or other nuclear explosive devices (Art. 1 b. and c.), it will strengthen the NPT, which is another main concern of the Swiss Government in the ongoing debate. By prohibiting the transfer and control over nuclear weapons in absolute terms (“to any recipient whatsoever”), the TPNW does not distinguish between different categories of States Parties, in contrast to the NPT which treats the nuclear weapons States different from non-nuclear weapons States. The TPNW is, therefore, a completely equal, non-discriminatory and impartial instrument, fully compatible with Swiss neutrality and values.

In sum, neutrality in a legal sense is no bar to joining the TPNW. On the contrary, neutrality in a wider sense is even likely to be fortified by its ratification.

  • Neutrality in a foreign and security policy sense

Second, a strictly legal notion of neutrality cannot be considered in isolation but must be placed into the political and security context. It is argued here that neutrality in a foreign and security policy sense is no bar to joining the TPNW, neither. On the contrary, as I wrote in an article for the Wochenzeitung (WoZ), published with Prof. Giorgio Malinverni on 11 October 2018, the perception in the eyes of the international community of  Switzerland as an independent and neutral state would be strengthened by not siding with NATO and foregoing the option of a nuclear umbrella, i.e. by joining the TPNW. In the above mentioned brochure on “Swiss neutrality”, the Government underlines that modern Swiss neutrality comprises an “active” element (aktive Neutralität), exercised, for instance, by offering their good offices in international disputes and conflicts. ICAN Switzerland argues that non-ratification by Switzerland raises doubts about her independence and neutrality and, as a result, weakens its role as bridge builder (“Brückenbauer”). In other words, Switzerland’s role as a neutral mediator would be consolidated by its fast ratification of the TPNW.

  • Neutrality understood as a search for a middle ground position

Third, reference to “neutrality” in this context is probably best understood as a search for a middle ground position, i.e. an attempt to be neither for nor against the TPNW. Such a position is not defendable:  in a matter of such importance for international peace and security, disarmament and humanitarianism, and therefore for Swiss traditional values and interests, there is no middle ground. There is no neutrality vis-à-vis weapons that have the potential to erase humanity.

Switzerland has shown in the past that it can maintain a tough position on issues that are not necessarily shared by the super powers, in particular the USA, such as torture in the fight against terrorism or the death penalty. Even if states argue that they need to practice torture or the death penalty for their national security, the majority of civilized countries abhor these practices.

To mention only one example, Federal Presi­dent Moritz Leuenberger’s words after the terrorist attacks on America of 11 September 2001: “Achievements and values such as peace, liberal society and tolerance have suffered a severe setback due to this gigantic act of hate. Nevertheless, these are values we continue to believe in.” Faced with inhumane practices, the right way is to take a clear stand against them by declaring them unacceptable, by prohibiting them. Switzerland should follow the same path in regards nuclear weapons now.

  • Conclusion

In conclusion, Swiss neutrality is no bar to the ratification of the TPNW; on the contrary, it may even be fortified by this step. Austria, as proud of its neutrality and independence as Switzerland, ratified the TPNW, as the ninth State, already on 8 May 2018, thus only ten months after its adoption. Why should the same not be possible for Switzerland? When we are faced with the threat of nuclear weapons and the total destruction of our planet, all States are equally concerned, and therefore there can’t be any Sonderfall.

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