Cross-border cooperation is based on international, national and cantonal law. These rules, and hence the powers and freedom of action of subordinated authorities, vary widely depending on a state’s institutional structure.

The Council of Europe plays a central role in the development of a legal framework. Switzerland, with the consent of the cantons, has joined all the legal instruments of the Council of Europe on the development and promotion of cross-border cooperation.

Like its five neighbouring states, Switzerland is a member of the European Convention of 21 May 1980 on cross-border cooperation between territorial authorities (the Madrid Convention). It has also ratified the two optional protocols.

The objective of the Madrid Convention is to promote and facilitate the conclusion of agreements between regions and local authorities on opposite sides of a border. It provides a legal framework for cooperation below national level, for example in regional, urban and rural development, environmental protection, infrastructure improvements and disaster relief.

The Convention provides model agreements and treaties for cross-border cooperation. These range from the loose mutual exchange of information to clearly defined legal obligations. The parties undertake to overcome any difficulties that might impede cross-border cooperation.

The optional protocol of 9 November 1995 was designed to strengthen cross-border cooperation among European countries. Its objective is to give the overall convention backing, expressly acknowledging the rights of territorial authorities in certain circumstances to conclude agreements on cross-border cooperation.

The second optional protocol to the Madrid Convention of 5 May 1998 is designed to promote cooperation between the authorities of territories that are not directly contiguous.

Further outline agreements on cross-border cooperation exist at regional level.

According to the Federal Constitution (Art. 54 paras. 1 and 2, Art. 166, Art 184 paras. 1 and 2), concluding international agreements is the prerogative of the federal government. However, the Swiss Federal Constitution (Art. 56 paragraph 1) grants the cantons the right to conclude agreements with foreign agencies in the areas for which they are responsible. The powers of the cantons, however, are subordinate to those of the federal government.

It has for many years been the Federal Council’s liberal practice to allow the cantons maximum autonomy in the conduct of their cross-border relations. They can conclude agreements with foreign agencies not only in fields such as economic relations, official contacts, police and the like, but in all fields for which they are contitutionally responsible. However, agreements must not contain anything contrary to the interests of the confederation or of other cantons.

Swiss law requires the federal government and the cantons to collaborate closely on cross-border matters. The cantons may thus maintain direct contacts with subordinate – i.e. local or regional authorities. This applies to territorial but not to central authorities. It is generally a matter of dealing with specific problems of relations between neighbours within the region.

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 accordingly for the Federal Council to conduct negotiations and to sign and ratify the agreement. Though 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 the agreement on behalf of a canton. The canton is thus a party to the agreement, and it must consent to it in accordance with its own internal procedures. If it is in the direct intersts of the Confederation, however, the federal government can also conclude agreements on behalf of itself and of the cantons.

The cantons must notify the federal government of proposed agreements in advance (Federal Constitution, Article 56 paragraph 2). The federal authorities then verify that the agreement is consitutional and that it accords with the foreign policy of the federal government.

By entering into agreements with effects extending beyond the national border, the cantons have given themselves a legal framework for facilitating relations with their cross-border partners. The relevant areas of activity have a regional orientation and are framed very broadly. Such agreements are designed to develop contacts between Swiss cantons and their cross-border partners at subordinate level.