Keywords

1.1 Introduction

Human rights aim to make lives safer and freer—freer ‘from fear’ and ‘from want’ (Roosevelt, 1941). All states have accepted a plethora of human rights obligations ‘to secure their universal and effective recognition and observance’ (Universal Declaration of Human Rights, 1948 preamble). Yet, human rights implementation within domestic legal systems is far from automatic, let alone in federal systems, where turning rights into practice requires the presence of committed actors at all levels of the state. What is more, subnational actors in federated entities are likely to enjoy considerable room for manoeuvre in implementation, allowing them to use international human rights strategically in their policy processes.

This book is motivated by the observation that the challenges and opportunities at the intersection of international obligations and domestic legal realities are particularly acute with respect to processes located at the subnational level of federal states. We present data about how subnational actors use international human rights treaties and what the implications for the engagement of subnational political authorities are. Our research allowed us to identify the variety of uses and patterns of engagement with international human rights treaties. In this book, we explain how the uses of human rights treaties and subnational authorities’ engagement with international human rights treaties play out in two case studies and how the engagement of subnational political authorities often provides a useful starting point for legislative and concrete implementation. In short, this is a book about the role of human rights treaties in subnational policy processes in a world increasingly regulated by international law.

We will show that human rights treaties can constitute a political resource for actors at the subnational level. International treaties serve as a political argument for justifying legislative reforms and institutionalising or strengthening a given public policy. We will demonstrate how human rights treaties can be used as legal resources to legitimise the authority of an administration in steering public policy and as cognitive resources for rethinking a public issue, redefining a public policy and the measures to be adopted. Our data reveals how subnational actors use human rights on the ground in subnational policymaking processes and how individual persons can play a role in increasing the engagement of political authorities with an international treaty, and in turn in facilitating stronger implementation.

We take an interdisciplinary analytical perspective, based on international and constitutional law, political science, and the sociology of law, according to which we undertook in-depth case studies at the subnational level in Switzerland through a combination of desk research and over 65 semi-structured interviews with bureaucrats, politicians, civil society actors on two international human rights treaties—the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, better known as the Istanbul Convention; and the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD)—in Swiss subnational jurisdictions.

1.2 What Readers Can Expect from This Book

This is a book about how domestic actors, and namely subnational ones, use, i.e. invoke, understand, contest or incorporate international human rights treaties and obligations into their work, and about what this means for the engagement of the subnational political authorities with human rights treaties. Based on empirical evidence from the Swiss case, we answer two related research questions:

We first ask: How do subnational actors use international human rights treaties that require the adoption of measures implying the active involvement of political authorities (such as subnational parliaments and governments)?

To answer this question, we begin by analysing how federal, inter-cantonal and cantonal actors attempt to orient the ways in which subnational actors will later use the treaties containing obligations within their domains of competence. To do so, they employ the (pre-)ratification procedure and various formal and informal implementation mechanism. This is a top-down perspective. Bottom-up processes unfold simultaneously. We are, therefore, at the same time interested in how subnational actors (such as members of cantonal parliaments, bureaucrats, civil society organisations or academic experts) use human rights treaties or parts thereof.

In this study, the use of a treaty is an instance in which a subnational actor strategically or instrumentally refers to a treaty and/or works with the treaty, e.g. by citing it or by relying on the treaty in a parliamentary speech, a draft law, a report or a discussion. Some scholars use the term ‘mobilisation’ of (or around) treaty commitments (Gurowitz, 1999; Simmons, 2012). For reasons of simplicity and because mobilisation is understood differently by certain scholars and practitioners, we refer to ‘use’ to encompass all forms of practice in which a treaty is explicitly considered by a subnational actor. A use of a treaty can sometimes lead to another use by another actor, creating an incremental and sometimes self-reinforcing process. Some actors use treaties with the explicit aim to encourage the implementation, while others use a treaty or parts of it to strategically support thematic agendas, such as the protection of persons with disabilities or gender equality. Our data shows that subnational actors use human rights treaties in iterative, incremental dynamics that play out in interdependent top-down and bottom-up paths. Subnational actors strategically consider the resources, opportunities and tools a treaty provides, build their own understanding of the obligations, interpret, appropriate, sometimes strategically refer to obligations contained in human rights treaties and occasionally contribute to the translation of obligations into concrete policy measures. Studying the uses of a treaty allows us to capture what subnational actors involved in policy processes do with treaties. Uses are thus a form of law in action (as opposed to law in books) in the sense that uses of international law refer to what actors actually do with a treaty. Yet, even where numerous subnational actors use treaties or parts of them, this does not yet mean that the treaties will be implemented.

For our second question, we are interested in exploring how the various uses of human rights treaties by subnational actors shape the political authorities’ engagement with international human rights treaty obligations.

In order to implement human rights treaties at the subnational level and ensure that they play out the intended positive roles in people’s everyday lives, subnational authorities in almost all cases need to actively take steps, such as adopt or modify cantonal laws, pass budgets, make information available, allocate human resources, change administrative procedures or set up institutional and organisational structures. When we refer to subnational political authorities, we refer to subnational executives and legislative bodies, i.e. actors holding institutional positions of power and formal influence within the system of governance.Footnote 1 For our second research question, we ask whether these political authorities engage with treaties, i.e. whether the political authorities of a given subnational jurisdiction try to understand and deal with an international human rights treaty by working on and eventually taking, or trying to take, policy measures with a view to its (further) implementation.

At this stage, it is sufficient to say that when any actors use human rights treaties, their uses can lead to engagement by the relevant political authorities, but this is not always the case. To give an example, a local nongovernmental organisation (NGO) can use a treaty, e.g. by referring to an international treaty in a report, and this use can potentially result in an engagement of the cantonal legislator or other political authority, but it may also result in subnational authorities not engaging at all. We draw this distinction between use and engagement to clarify the sequence of pre-conditions taking place before the implementation and compliance stages.

Engaging with a treaty is not the same as implementing or complying with a treaty. When a state ratifies a human rights treaty, the state makes a commitment to ‘perform the treaty in good faith’ (art. 26 of the Vienna Convention on the Law of Treaties). When and how the subnational political authorities take note of the consequences of a treaty’s obligations in their field of competence and make a commitment to (further) implementation is a process that requires further attention. Towards the end of this introduction, we will come back to the key notion of engagement, and we will explain why understanding the engagement of political authorities with a treaty is key to appreciate how human rights law works in practice in the subnational policy processes.

Our research contributes to the ‘international turn to the local’ (Eslava, 2015) by examining the ways in which international human rights treaties shape aspects of ‘everyday life for the people’. Indeed, we agree with Eslava that ‘international law (…), is not a normative international—or supra-national—system secluded from national and local administrations and from the daily lives of people. On the contrary, the international attention that is currently being paid to local jurisdictions bears witness to the enmeshment of international law in national and local transformations, and in the material and subjective construction of the world’ (Eslava, 2015, p. 293). It is the dynamic and iterative nature of subnational human rights uses and the political authorities’ engagement with the treaties that we set out to explore.

In the following sections of this chapter, we will first justify the focus on subnational actors and their uses of human rights treaties (Sect. 1.2.1); second, we will explain why we concentrate on international human rights treaties containing obligations that require domestic policy measures (Sect. 1.2.2); third, we justify the focus on Switzerland (Sect. 1.2.3) and we then dedicate subsection 1.3 to explain what we mean by the political authorities’ ‘engagement with human rights treaties’, which is a notion that provides more analytical leverage to understand what subnational authorities do with human rights treaties than a focus on implementation or compliance. We conclude this chapter with an overview of the organisation of the book.

1.2.1 Why Subnational Actors and Human Rights Treaties?

Subnational actors are key human rights actors. We concentrate on the trajectories of international treaties and on their consequences at the subnational level from an actor-centred perspective that also accounts for the context and the processes at work. Our motivation to focus on subnational actors is inspired by one of the most influential studies examining the effects of international human rights treaties at the domestic level: Mobilizing Human Rights by Beth Simmons (Simmons, 2012). Simmons argues that human rights treaties make a notable positive contribution to the concrete realisation of rights protection, particularly ‘where they have domestic political and legal traction’ (Simmons, 2012, p. 12). We read her book as an invitation to shed light on the intricacies of the ‘least likely’ processes: subnational actors are even more remote from foreign policy and international law-making than national actors upon whom studies on human rights law in domestic jurisdictions usually focus. The remoteness and high degree of separation of subnational actors provide them with considerable room for manoeuvre in implementation. Hence, a study into the uses subnational actors make of human rights treaties, the mechanisms through which subnational political authorities engage with international treaty obligations and how this engagement comes about is crucial to understand how contemporary international human rights law works in practice.

1.2.2 Why International Human Rights Treaties with Obligations Requiring the Adoption of Policy Measures?

Simmons writes about the power of treaties to constrain state behaviour (Simmons, 2012, p. 5), but not all human rights obligations are equal. Contemporary human rights law goes much beyond negative obligations (such as that states must abstain from torture) and includes a plethora of obligations requiring state actors to actively take measure to realise rights. We concentrate on treaties that contain obligations that require the adoption or change of policy measures because they are particularly demanding, and we seek to explain the variation in the engagement of subnational political authorities with them.

Contemporary international human rights norms regularly require the adoption of measures, and such measures must often include the adoption or change of existing domestic legal norms (Schmid, 2015). International human rights treaties, for instance, oblige states to have a legislative framework in place that effectively protects individuals from domestic violence. States must not only have legislation that criminalises domestic violence, but they must also have legislative provisions aiming to prevent domestic violence, to ensure that victims be fairly and respectfully treated by all actors and in all legal procedures, and legislators must allot budgets and allocate responsibilities, e.g. to provide for a sufficient number of shelter places. Such treaty obligations are called positive obligations because states cannot meet them by abstention but only by actively taking measures aiming at their implementation. They are often also legislative obligations because their implementation requires the contribution of lawmakers. Sometimes, international human rights treaties mention the compulsory adoption of legislative measures. More often, the legislator is not mentioned explicitly in the treaty itself but the contribution of the domestic legislators is necessary because the domestic competence lies with the legislative branch (Kaempfer, 2021; Schmid, 2015). We will now explain why we are particularly interested in treaty obligations requiring subnational political authorities to adopt new domestic norms, change existing ones or to adopt other concrete policy measures.

‘Human rights treaties are difficult to implement’ (Fraser, 2020, p. 111) and this is particularly so for positive obligations. Human rights treaties contain numerous obligations requiring the active contribution of domestic political authorities. As mentioned, these obligations cannot be complied with by mere abstention but require political choices about the concrete measures to be adopted and funded and this fact renders their implementation complex. As Robin West pointed out, there is a ‘relative absence of questions about the positive duties of legislators, not negative duties to restrain from acting (such as a duty not to infringe upon speech) or negative duties to restrain from acting in particular ways (such as a duty not to legislate in discriminatory ways), but positive, affirmative duties to pass laws so as to achieve various (…) ends’ (West, 2006, p. 221). This relative lack of research on positive international obligations is important because the predominant conception of statehood has changed over the past centuries towards a state that is expected to play a significant role in the prevention or mitigation of harm, the provision of services or the realisation of human rights, including in domains that used to be considered ‘private spheres’ (Clapham, 1996; Lavrysen, 2016). Our starting points are two treaties that contain numerous obligations requiring the active contribution of domestic political authorities. To examine how treaties containing such positive obligations unfold at the subnational level, we study the uses of two such treaties by subnational actors and how subnational political authorities, i.e. cantonal parliaments and governments, engage with these treaties.

The attention we pay to positive obligations at the subnational level and the uses of treaties by a variety of actors means that courts play a marginal role in this book. For a long time, international lawyers examining international law in domestic legal systems have tended to focus on tribunals, rather than on actors taking part in the political process (Ammann, 2020; Bjorge, 2015; McCrudden, 2015; Nollkaemper, 2011; Tzanakopoulos, 2011). We and the authors who studied international law in domestic courts share the underlying assumption that international jurisdiction and enforcement remain limited and national organs maintain a crucial role in shaping the reality of international law. Yet, a focus on domestic tribunals has major disadvantages: first, many challenges related to the implementation of international legal obligations are never addressed in the courtroom. It is a significant misconception to believe that human rights realisation happens primarily in courtrooms. Courts are important for human rights protection but most individuals whose everyday life is affected by human rights implementation gaps never litigate. Access to courts for insufficient implementation of human rights norms is far from obvious—for procedural, financial and sociological reasons (Arnardóttir, 2003). Moreover, when court cases arise, tribunals generally find themselves in a delicate position vis-à-vis the legislature because of separation of power issues, and a focus on tribunals only analyses situations in which there is (allegedly) already a ‘pathology’ in implementation. We, therefore, deliberately want to look elsewhere, namely on the actors who have the institutional competence and power to adopt the necessary policy measures and those who can use treaties to encourage the engagement of political authorities with human rights treaties.

In Switzerland, a focus on domestic courts falls particularly short. The Swiss Federal Supreme Court usually concludes that norms aimed (primarily) at a law-making organ are not directly applicable.Footnote 2 The approach of the Swiss Federal Supreme Court accentuates the fact that treaty obligations requiring legislative concretisation are usually not addressed in much detail by the Swiss courts, if at all. The relative lack of systematic analysis of subnational actors, rather than courts, and their uses of human rights treaties thus comes with serious drawbacks to our understanding of the complex relationships between international law and the domestic legal system. It is therefore of fundamental interest to study what subnational actors involved in subnational policy processes do with human rights treaties and to understand how they do it, when and through which mechanisms they do it and what explains the variations in the engagement of political authorities. As soon (or as long) as a constitutional system allocates competence at a subnational level, the subnational actors, first and foremost, the cantonal parliaments and the cantonal bureaucracies, will be the ones charged with the implementation of numerous treaty obligations and subnational actors inevitably become key players in furthering or denying rights implementation. Courts play second fiddle at best.

Despite the focus on domestic courts by international law scholars, legal scholars studying the complex interplay between international law and domestic legal systems have increasingly recognised the importance of domestic legislative actors for the effectiveness of international law (Beenakker, 2018; Cassese, 2012; MacNaughton & Duger, 2020; Slaughter & Burke-White, 2006). When the role of political actors, including legislators, has been examined, two main limitations remain: first, most studies have investigated the impact of a treaty on national legal systems and the domestic legislative outcomes (Keller & Stone Sweet, 2008; Risse et al., 2013; Simmons, 2012), but only very rarely the mechanisms and conditions behind the process leading to this effect (for a notable exception, see: Haglund & Stryker, 2015). Second, when the processes have been studied, the literature has so far mostly dealt with the legislative implementation of specific judgements of international tribunals, such as the European Court of Human Rights (Donald & Speck, 2020; Saul, 2021).

These studies offer fruitful insights into what others have called the ‘drilling down in norm diffusion’ (Restoy & Elbe, 2021) but they do not yet answer the question of how the actors use international human rights treaty norms in local processes and how these uses relate to the engagement of the relevant subnational political authorities in the absence of a previous court condemnation. We aim to understand how subnational political authorities engage with treaties in concrete cases, specifically in the most common scenarios in which no tribunal has sentenced the state for an implementation failure.

1.2.3 International Treaty Obligations at the Subnational Level in Switzerland

As mentioned, we collected our data in Switzerland. We focus on Switzerland because the implementation of human rights obligations is particularly complex in federal states and the role of subnational actors is especially relevant (Ku et al., 2019; Wyttenbach, 2017). Swiss subnational legislators, i.e. cantonal parliaments and the actors surrounding them offer a prime instance of understudied and yet crucial actors for the implementation of human rights treaties. In the chapter on subnational legislatures in the Oxford Handbook of Legislative Studies written by William Downs, the author ends by suggesting that increased attention to subnational legislatures is ‘a pressing issue for the future’ and will further our ‘understanding of one of representative democracy’s most overshadowed institutional layers’ (Downs, 2014, p. 622). Downs complains that subnational legislatures have traditionally been viewed as being of nominal importance, despite the fact that they are ‘intrinsically crucial to understanding governance and political behaviour’ (Downs, 2014, p. 609). Indeed, Swiss cantons are anything but unimportant for human rights implementation.

Switzerland provides an ideal case for the study of how subnational actors use human rights treaties in policy processes. From a purely international legal point of view, the situation is simple: international law requires that the states fully implement all relevant human rights obligations and comply with international treaties no matter their internal organisation.Footnote 3 It is up to each state’s own legal system to ensure that all levels of state authority do what is required by the state’s international obligations. If a state fails to ensure implementation across its legal system, it incurs international state responsibility.Footnote 4 The Swiss Federal Constitution requires that all levels of the state shall respect international law (art. 5 al. 4). Those unfamiliar with the intricacies of human rights implementation might think that there is a smooth allocation of tasks and a pre-determined path to be taken when a state ratifies a new human rights treaty and incurs new obligations. In practice, however, subnational actors must first at least know about the existence of a relevant human rights treaty concerning them. As our data shows, this cannot be taken for granted. Subnational actors sometimes do not know that they have international obligations and what these obligations might mean. Once subnational actors know about a treaty, such knowledge does of course not yet mean that the treaty and all its obligations will be implemented. The high number, diversity and autonomy of Swiss subnational units implies that there will inevitably be challenges with subnational human rights implementation. Moreover, Switzerland is a small country with an open economy that is not a member of the European Union. These features raise the relevance of an engagement with international law (Miaz et al., 2024). International treaties that require the adoption of policy measures thus create challenges for the Swiss legal system. We can group the reasons for these challenges into two groups.

The first specificity is that Swiss federalism is a highly decentred system organised in diverse units of a relatively small scale. The 26 subnational units are competent to legislate in relation to numerous international obligations and they enjoy large autonomy. Cantons have indeed ‘considerable room for manoeuvre in significant political areas (e.g. education, culture, language, health care, law enforcement)’ (Vatter, 2018, p. 104). Moreover, the Swiss legal system is considered monist, meaning that ratified international treaties become part of the Swiss legal system as soon as they enter into force. As soon as a human rights treaty binds Switzerland and contains at least one obligation that requires the adoption of policy measures that falls within a cantonal domain of competence and this treaty obligation is not already perfectly implemented in all cantons, up to 26 legislatures must become active and are supposed to engage with these obligations (Kaempfer, 2021). This means that the most important place where human rights realisation is shaped is regularly neither a courtroom nor a federal chamber, but the 26 cantons and their policy processes.

Second, Swiss subnational parliaments remain semi-professional, i.e. they are composed of members from various backgrounds who meet on a non-permanent basis (Pilotti, 2017). The identification of the various obligations in an international human rights treaty, the interpretation of treaty norms and the assessment of what measures seem necessary or suitable to implement them regularly require special expertise that is not, or at least not always, easily available to semi-professional parliaments or their secretariats. It is not surprising that this situation can at times overwhelm.

The Swiss division of competences comes with some opportunities but also with obvious complexity (Wyttenbach, 2017, pp. 559–560). The opportunities include the ability of cantons to consider the specificity of each context, increased legitimacy and ownership and the fact that dealing with multiple normative levels is a familiar task in the Swiss legal system. Moreover, new ideas can be tested in one canton and if they are successful, the ideas can later provide inspiration for another canton. At the same time, these structural aspects of the Swiss legal system suggest that it can be difficult for subnational authorities to engage with international treaties even in situations in which political will and leadership would be forthcoming. Wyttenbach summarises how the decentred situation may create delays in subnational implementation and favour the emergence of a reactive attitude whereby the federal level is expected to take the lead on the implementation of an international legal obligation. To this author, if federal engagement is not forthcoming, the likelihood of gaps between law in books and law in action at the subnational level increases (Wyttenbach, 2017, pp. 99–102).Footnote 5 These challenges and the crucial role of the cantons in the implementation of international human rights treaties strengthen the pertinence of undertaking research on the relation between international obligations, mechanisms and processes. Given the complexities of conducting empirical research in relation to international norms at the subnational level, it may be unsurprising that this gap in the field has not been filled. Generalisation is necessarily limited but our findings allow a number of important conclusions to be drawn about the socio-political uses of international human rights law in subnational law-making, and more broadly, in subnational policy processes, to understand how subnational actors relate to human rights obligations and are affected by them. Many of the processes of using human rights treaties are also available to actors in more centralised jurisdictions, including those who use treaties with the aim of furthering the engagement of a national assembly. We will return to the generalisation and needs for further research in Chapter 6.

We will now explain what we mean by the key notion of engagement with human rights treaties.

1.3 Key Terms: Subnational Political Authorities’ Engagement with Human Rights Treaties

We employ the concept of engagement to convey the idea that political authorities (i.e. parliament and government) of a given subnational jurisdiction try to understand and deal with an international human rights treaty by working on and eventually taking, or trying to take, policy measures with a view to its (further) implementation. Engagement thus happens when actors holding institutional positions of power and influence intend to take steps towards implementing a treaty or parts thereof.

Readers may ask what the distinction is between using a treaty and engaging with a treaty. Engagement can be triggered by uses of the treaty but the two are distinct. We reserve the term engagement for the conduct of political authorities, and we only refer to ‘engagement’ when political authorities move towards the production of implementation outputs, i.e. when political authorities start proposing legislative reforms, action plans, or when they approve budgets, i.e. to grant (additional) financial or human resources. The outcome of an engagement can be legislative or other policy measures taken by subnational political authorities. The implementation of treaty obligations may not necessarily be successful, or it may be incomplete, and it may only in part be due to the existence of the international treaty. We consider that political authorities can engage with a treaty for a variety of reasons and the intention to improve implementation may not necessarily be the main motivation. Political authorities can, for instance, be interested in a legislative process to adopt a law on integrative schooling of children with disabilities and we do not attempt to argue that their main motivation is the implementation of the UN Convention on the Rights of Persons with Disabilities. Rather, we are interested in the process leading to the moment in which we can identify what we call engagement: the political authorities using the treaty to deal with the obligations and their implementation within their political sphere. The concept of engagement is significant because it denotes the key shift at which political authorities take up a treaty or some obligations of it and make some sort of implementation commitment. This crucial step has so far been overlooked in research and is sometimes even assumed as self-evident, but empirical reality shows that it is not. Engagement is only a pre-condition for implementation, and not a sufficient one, but a very crucial one. As we show in Chapter 5, such engagement may and often does stem from the uses that other actors make of the treaty, although by far not all uses lead to engagement. One of the main contributions of our analysis is precisely to shed light on the processes that lead up to an engagement by political authorities.

Engaging with a treaty may involve the legislative implementation of the obligations arising from the treaty, and result in the concrete implementation of these obligations. Engaging with a treaty can also mean creating an institution or a position to implement or prepare the implementation of the treaty, to grant additional (financial) resources to the responsible bureaucracy, to progressively change the policy paradigm according to the treaty. We do not establish causal links between uses, engagement and implementation. Rather, we show the complex and iterative process between various actors’ uses of the treaties and the decision of political authorities to engage with a treaty and although we do not present causal data, we believe it is entirely reasonable to assume that such engagement is often useful to further concrete implementation. Political authorities engaging with a human rights treaty will usually mean that the political space for implementation tends to open or widen because political authorities show commitment to the treaty or at least some parts thereof.

But how do we know if political authorities act with a view towards implementation? Our definition of engagement presupposes that political authorities intend to implement at least to some extent a treaty or some of its obligations. If authorities simply refer to a treaty to dismiss its relevance, we will qualify the example as a use of the treaty, but not as an engagement. In doing so, we decided our analysis of engagement would include situations in which political authorities use a treaty as a cognitive resource (e.g. to convince members of a parliament to accept some measures) or mention a treaty as a legal basis for a legislative proposal that may also have been proposed for reasons other than the treaty. We acknowledge that political authorities may sometimes merely refer to a treaty as an add-on to an already decided course of action. Nevertheless, even in this scenario, the treaty gains in profile within the subnational jurisdiction and even a lukewarm commitment to further implementation is sometimes an entry-point for later and more significant engagements.

Other authors used the term ‘engagement’ differently. Krommendijk refers to ‘engagement with a treaty’ to capture both what he calls ‘the impact and effectiveness’ of a treaty obligation.Footnote 6 Unlike Krommendijk, we employ the notion of engagement independent of the effectiveness of a treaty obligation because we are interested in the genesis of the engagement as such, rather than the measurement of its effectiveness. Krommendijk speaks of the impact of the treaty whenever actors involved in legislative or policymaking processes have used or referred to the treaty or the obligation (Krommendijk, 2018, p. 231). In our study, referring to a treaty obligation is a use of a treaty and an engagement if the invocation of the treaty comes from political authorities who intend to move towards implementation.

Now that we have introduced the key notion of engagement, we move to explain why studying the uses of treaties by subnational actors and the engagement of subnational political authorities with treaties provides more analytical leverage than a focus on compliance or implementation would.

1.4 Why Focus on Engagement, Rather than Compliance or Implementation?

Let us begin by distinguishing compliance from implementation. Compliance exists ‘when the actual behaviour of a given subject conforms to prescribed behaviour’ (Raustiala & Slaughter, 2002). For international human rights law in federal states, compliance means that the conduct of subnational entities, in law and in fact, corresponds to what international obligations in the field of competence of the subnational units require. Considerable international research has been undertaken on compliance with international human rights (e.g. Cole, 2015; Hafner-Burton & Tsutsui, 2007; Hillebrecht, 2014).

Implementation is a process by which the obligations contained in the human rights treaties are translated into domestic law (legislative implementation) and are de facto realised so that human rights are protected in concrete individual situations (concrete implementation, usually taking place at the ‘street level’, e.g. by police officers or social workers). Legislative implementation does not necessarily result in concrete implementation, and concrete implementation may sometimes occur without previous legislative implementation. When a state succeeds in implementing all aspects of an international obligation, that state is in full compliance. Some key studies on implementation include those by Keller & Stone Sweet (2008) and by Risse Ropp and Sikkink (1999, 2013), and those studies that focused on the implementation of international courts’ judgements and decisions of human rights bodies (Beenakker, 2018; Betts & Orchard, 2014; Donald & Speck, 2020; Murray & Long, 2022). Simmons highlighted that, once ratified, treaties are likely to impact policymaking and ‘alter politics’ by setting goals for public policy and practice, by empowering domestic actors (see also Dai, 1999) with resources (knowledge, tools) and opportunities to claim for treaty implementation, and by setting the political agenda (Simmons, 2012). Previous implementation literature has thus shown that international human rights law can lead to domestic change resulting from domestic mechanisms and processes—to Simmons, agenda-setting, litigation, and political mobilisations (Simmons, 2012)—, or through a process of socialisation, whereby pressure on governments comes both ‘from above’ and ‘from below’ (Risse et al., 1999, p. 276).

The literatures on compliance and implementation relate to our study. We all aim to shed light on the conditions and factors influencing human rights realisation by domestic actors with human rights treaties, but—put simply—our attention on the engagement with treaties focuses on an earlier moment in the process in which domestic actors deal with human rights treaties. The focus on engagement has significant advantages.

First, focusing on engagement allows us to explain the key phenomena occurring in between the unawareness of treaties and full compliance. As Başak Çalı has convincingly argued, compliance with international law is often difficult to measure and a matter of degree rather than ‘an either/or concept’ (Çalı, 2015, p. 179). This underlines the importance of understanding what comes first: when the wheels are set in motion to commit to (further) implementation or compliance. In contrast to compliance studies, we do not aim to assess whether or to what extent subnational entities comply with international treaties or not, nor if they violate human rights. We place the focus on the uses of, and on political authorities’ engagement with international treaties, rather than an evaluation of whether specific conduct falls within the categories of compliance vs non-compliance, obedience vs disobedience. We are not primarily interested in the final implementation outcomes nor the establishment of causal relationships between the use of treaties and the implementation of the obligations. Rather, we aim to understand the processes leading up to the engagement of the subnational political authorities with the treaties in the first place and how we can categorise and understand this engagement. We are interested in finding out how the engagement by subnational political authorities comes about because such an engagement is usually a key preliminary condition for later implementation or compliance. Our contribution is to explain the origins and patterns of the subnational political authorities’ engagement with international treaties and the uses and factors encouraging such engagement.

Engagement with the treaty is often what leads to improved implementation and potentially compliance. A focus on compliance would provide information about the comparison between obligations and the situation in the examined state and at best the correlation between the outcome and various possible reasons. What we are most interested in, however, is not the examination of possible gaps between obligations and state conduct, but the uses of the treaties and the processes that can lead political authorities to engage with treaty obligations—paving the way for democratically legitimised subnational legislators to ensure the legislative implementation of the treaty,Footnote 7 and generally subnational political authorities’ weight in policy processes improving rights realisation. As Howse and Teitel have remarked for Simmons’ Mobilizing for Human Rights, ‘going beyond rule compliance can produce illuminating quantitative and qualitative analysis of international law impacts’ (Howse & Teitel, 2011, p. 813). We share this view. We believe that our focus on engagement allows us to shed light on the understudied but indispensable pre-conditions of compliance in many cases.Footnote 8

Our approach (and specifically our focus on the uses of human rights treaties and on the notion of engagement) is inspired by Sally Merry’s work. Like Sally Merry, we also use an actor-centred approach and, in Chapters 4 and 5 of the book, we take a bottom-up perspective to identify varieties of how subnational actors use human rights treaties and how subnational political authorities engage with treaties. Our empirical research is inspired by a shared motivation with her work to study how subnational or local actors use law. We notably borrow the concern for the ‘translation’ of norms to a local context (Merry, 2006). In her influential account, ‘translation’ does not necessarily favour ‘justice’ (or, to use the terms of our own study, an engagement with human rights that would favour the successful implementation). Rather, the notion of translation refers to the constitutive power of law and ‘the meanings produced by law in the habitual, possibly resistant, practices of everyday life’ (Merry, 1995, p. 25). Our research examines both this constitutive power of legal norms and the constructive understanding of norms contained within treaties.

That said, Sally Merry and those working with her have not been concerned about how the engagement with binding norms of international human rights law by political authorities comes about (let alone in a subnational entity). Sally Merry’s main contribution lies in the social understandings and the local uses of legal norms but not the lead-up of political authorities’ engagement with treaties. We take treaty obligations as starting points and therefore place more emphasis on legal bindingness than Sally Merry. But we do not assume that the legal bindingness of a norm necessarily determines implementation or even the engagement of domestic actors with international norms (to take into account a criticism of widespread assumptions in traditional legal scholarship already voiced by Karen Knop’s work (Knop, 2000)). We are interested in examining the varieties in which subnational actors make use of legal bindingness, how they use the bindingness of a treaty in subnational policymaking processes, and what patterns of engagement by the political authorities we can identify. These processes are best captured by looking at the uses of treaties by subnational actors and the engagement by political authorities rather than the potential (but never automatic) implementation that can come after such engagement. We will expose the ways in which we pin down engagement in Chapter 2 where we present the empirical research design.

1.5 Organisation of the Book

Our book is structured into six chapters. This introduction explored the reasons for studying the role of subnational actors and the ways in which they use human rights treaties and when political authorities engage with treaties. The introduction is followed, in Chapter 2, by a detailed presentation of our approach, research design, methods and data on the uses of human rights at the subnational level and our justification for the selection of the case studies. We explain the ways in which we draw inspiration from methodological insights from previous studies to understand how uses of treaties can relate to the engagement of the subnational political authorities with the treaties. Our core analysis is divided into three chapters, Chapters 3, 4 and 5. Conclusions follow in Chapter 6.

In Chapter 3, we first explain how international human rights treaties are ratified in Switzerland’s federalist, monist system and how this pre-ratification phase influences the later uses of the treaties and what mechanisms are later employed to stimulate the engagement of subnational political authorities. Chapter 3 is written from the point of view of actors who want or who are sometimes even legally required to facilitate the compliance of Switzerland with its treaty obligations and who often enjoy a privileged position within the Swiss multilevel system. These actors include individuals and offices at the level of the Confederation, inter-cantonal conferences, mandated experts, and sometimes civil society. These actors use available formal and informal domestic mechanisms to ‘translate’ international treaty obligations into concrete human rights measures at the subnational level, often with the ideal in mind that all cantons should engage with the treaty. They believe that treaty obligations must be implemented. Based on previous research, we use a classification of four categories of mechanisms aiming to orient, often from the top, the ways in which international law treaties can be implemented at a subnational level (namely, sanctions, rewards, awareness-raising and co-operation, see [Kaempfer, 2023]). For better or worse, one of us observed, in a previous study, that in the case of international human rights treaties in Switzerland, almost exclusively one type of mechanisms is used: information/awareness-raising. What is more, we find that these mechanisms do not fall from the sky; they are themselves imbricated in a dynamic interaction with the uses of human rights treaties by subnational actors—which is the focus of Chapter 4. Thus, Chapter 3 cautions against simplistic assumptions that a domestic legal system disposes of a pre-arranged machinery to implement treaty obligations within its jurisdiction. Chapters 3 and 4 are complementary in that they analyse the same process from two interdependent perspectives.

In Chapter 4, we change perspective and focus on the subnational actors and their socio-political uses of human rights treaty obligations. We explore how subnational actors use human rights treaties or parts thereof in their fields of activity. Here, we focus on cantonal actors who are not necessarily interested in human rights treaties as such and who are not necessarily familiar with international law but may use a treaty or a specific obligation to advance their objectives. We observe that the various ways in which international human rights treaty obligations are used are part of everyday political realities ‘on the ground’: the use of treaties and their obligations is patchy, very variable, and sometimes leads to further, sometimes consequential, uses by the same or other actors, raising the awareness of the treaty and sometimes to nothing tangible, such as a failed trial balloon that lands somewhere and then fades into oblivion. The variety of uses of treaties or parts thereof shows that the processes are not a top-down and predictable phenomenon. Rather, the use of human rights treaties happens in a complex way. Where a use is perceived as successful, a use of a human rights treaty by one actor can lead to an iterative process of translating some of the treaty norms into strategies, day-to-day work and—as we will see in Chapter 5—sometimes the engagement by political authorities to, for instance, adopt a new law or put in place and finance new institutional structures. Chapter 4 also shows how the agendas of the subnational actors are in turn sometimes (re)framed by other subnational actors’ understanding of a treaty and/or the framing of the social problem to be addressed.

Chapter 5 analytically categorises the patterns of engagement of political authorities with international treaties (or parts thereof) that require subnational units to take active measures. The typology identifies three distinct patterns of engagement. The first is implementation-centred engagement, which has the implementation of the treaty as its primary objective. The second is initiating engagement, which arises when no policy measures exist in the relevant policy domain. The third pattern is embedded engagement, which takes place as part of (or is embedded in) a more extensive project that goes beyond or runs parallel to the specific issue covered by the treaty and whose main goals are not the implementation of the treaty. The chapter also offers a comparative outlook to distil similarities and differences in the patterns of engagement of the Istanbul Convention and the Convention on the Rights of Persons with Disabilities. It does not come as a surprise that we find that context, notably the political balance of power and financial resources, matters. We also observe how the engagement by political authorities sometimes depends on the agency of committed and specialised individual actors using human rights treaties.

The sixth and final chapter reflects on the interpretation to be given to our finding that subnational actors remain crucial craftsmen and—women of human rights implementation. Our findings indicate that only a limited number of core subnational actors use international human rights treaties or parts thereof, but these uses can lead to further uses by other actors, and most significantly, to the engagement of political authorities. Specifically, we have observed how uses of human rights treaties can enable bottom-up dynamics that may ultimately shape subnational legislative implementation in significant ways. This finding implies that the strengthening and the support allocated to the engagement of subnational political authorities with human rights treaties is a decisive and worthwhile leverage for those who want to support human rights implementation in practice, so as to have a real impact on individuals’ lives and their everyday possibilities to enjoy human rights protection.

We will emphasise the need for further research in this field and encourage interdisciplinary research on the empirical realities of international law outside courtrooms. Our research strategy can provide a blueprint for other researchers and practitioners who wish to study (or influence) the concrete engagement of subnational actors and ultimately the implementation of human rights obligations.

Finally, shedding light on the complex processes at the subnational level is of practical importance. As we explained in this introductory chapter, subnational actors are crucial to ensure that international human rights law is effective, but their remoteness and high degree of separation complexify implementation. Moreover, when implementation occurs successfully, the success stories are rarely at the forefront of public attention, and this lack of visibility can arguably lead to the inaccurate impression of a sweeping irrelevance of human rights law. At the time of writing, there is widespread scepticism towards international human rights treaties. It is time to critically review the ways in which human rights treaties are used at the subnational level, with real impact on people’s everyday lives. While criticism of human rights is currently fashionable and some argue that human rights law needs some sort of ‘saving’ or ‘fixing’ (Moyn, 2018; Tasioulas, 2019; Wuerth, 2022), we caution that a focus on the day-to-day realities of human rights treaties in subnational policy processes is important. Human rights law is not a panacea for the problems of this world, but our results indicate that human rights norms have important but ‘mundane’ effects in domestic policy processes, away from the radar screen of mainstream legal literature (Van Ho et al., 2022). The engagement of subnational political authorities with international human rights treaties has real effects not only on subnational laws and policies but also on real people. A deeper understanding of the processes behind this engagement of subnational political authorities with human rights norms is an important safeguard against overly broad conclusions of the alleged inefficacity or—conversely—overreaching power of international human rights law.

As we will see throughout the book, subnational realities of whether or not a human rights treaty is known and used has real consequences. The subnational engagement of political authorities with international human rights treaties has in the past opened or widened the space for implementation progress. This can mean that the child next door with a disability can attend classes with their peers in the neighbourhood, a threatened woman knows where to find safety from domestic violence, the police officer questions her in a sensitive way or the person with an intellectual disability has regained the right to vote, to name just a few.