Designing Research for Studying How Subnational Actors Use International Human Rights Treaties

Abstract

This book examines how subnational actors use international human rights treaties and how subnational political authorities, including subnational legislators, come to engage with international treaties. In this chapter, we present our empirical approach, our research design, methods and data. We outline how we combine top-down and bottom-up perspectives, building on scholarship from law, political science and socio-legal studies. We explain and justify the selection of the treaties under investigation and the procedure of data collection for the Swiss case.

2.1 Restating the Research Objectives

The argument developed in this book begins with two international human rights treaties: the Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence (IC), and the UN Convention on the Rights of Persons with Disabilities (CRPD). Both of these treaties contain obligations requiring subnational political authorities to adopt measures, i.e. to engage actively with them by ‘translating’ an international obligation to a specific context so as to achieve the full realisation of the protected rights, such as the right to de facto equality by persons with disabilities (Schmid, 2015). In federal states, such as Switzerland, many of these obligations fall within the competences of subnational entities, which underlines the importance of subnational actors for human rights (see Chapter 1). Our overall concerns are first, to understand how subnational actors use international human rights treaties and second, how subnational political authorities, such as the cantonal parliament and the cantonal government, engage with international human rights treaties, i.e. work on and take policy and legislative measures to deal with an international treaty with a view to its (further) implementation. We invite readers to consult the introductory chapter for a detailed explanation of what we mean by using treaties and engaging with them. This chapter presents our approach, research strategy and design. We specifically explain important choices, our methods and the data collection.

International human rights law is expanding continuously. Today, human rights obligations percolate into many policy fields, requiring states to adopt policy measures to implement obligations arising from treaties (Schmid, 2015, p. 14). In federal states, to various degrees, the responsibility for the legislative implementation of human rights treaties lies not only at the central level but also at the subnational one (Ku et al., 2019; Schmid, 2019; Wyttenbach, 2018). What subnational entities do with human rights treaties—sometimes bypassing the nation-state—is thus key in understanding the domestic implementation, the effectiveness, and the realisation of human rights. Despite rich streams of research, subnational actors—above all, subnational legislators—are largely overlooked in studies on the implementation of international human rights law in domestic legal systems. To fill this gap, we focus on the mechanisms of engagement and on the socio-political uses of international human rights law in Swiss subnational policy processes, to understand how subnational actors use human rights treaties, and when and through what patterns the subnational authorities engage with the treaties.

This chapter presents our innovative approach and research strategy, which combines two complementary perspectives. On the one hand, we study the dynamics of processes related to the uses of international human rights treaties within domestic legal systems through top-down processes. On the other hand, following new legal realism, notably the stream of literature on legal intermediaries, we take a bottom-up perspective to study how actors involved in subnational legislative and policymaking processes use international treaties, understand them, make sense of them, interpret them, and contribute to the translation of obligations into concrete legislative reforms and policy measures more broadly.

In the following sections, we discuss the interdisciplinary nature of our approach, based on law studies, political science and socio-legal scholarship. As mentioned in Chapter 1, we put forward the notion of engagement to grasp what political authorities (parliaments, governments, administrations) do when they consider the relevance of international human rights treaties with a view to their (further) implementation. The various uses of the treaties by a wide range of subnational actors can sometimes lead to an engagement of the subnational political authorities with treaty obligations and ultimately to the adoption of concrete measures implementing the obligations. To justify our focus on the uses and engagement with treaties, we begin by discussing the various bodies of literature on which we build, and then we present how we selected the treaties that we studied and the procedure of data collection.

2.2 Identifying the Engagement of Subnational Actors with Human Rights Treaties: An Interdisciplinary Endeavour

A study into the processes by which human rights treaties are used and sometimes serve to orientate the engagement of subnational political authorities with treaties is necessarily interdisciplinary.

Such a research endeavour first requires legal analysis. In our study, we used doctrinal legal research to identify treaty obligations and to determine if a treaty contains obligations that fall within cantonal competences (Kaempfer, 2023; Schmid, 2015). The existence and interpretation of obligations requiring policy measures are sometimes contested in concrete cases. Hence, we assessed the legal arguments advanced in favour and against the existence of contested legal obligations in the treaties we include in our study. We employed legal reasoning based on the Vienna Convention of the Law of Treaties of 1969, domestic constitutional law and the domestic rules of legal interpretation.

Second, our research questions call for a political science perspective geared towards legislative activities (Milet, 2020), but also towards multilevel policymaking and regulatory governance (Maggetti, 2021; Maggetti & Trein, 2019; Thomann, 2015; Thomann & Sager, 2017; Thomann et al., 2019). This literature is useful to identify the sequences of the policy processes through which international human rights treaties are used by various types of political actors (e.g. agenda-setting and policy formulation). Political science literature also provides a methodological framework for devising our comparative case study strategy and selecting relevant subnational units to study, thus enabling us to observe when and how subnational actors use treaties and to explain variations in the patterns of engagement of subnational political authorities with international treaties.

Third and finally, socio-legal studies, especially the sociology of law, are of course indispensable for our purposes. Within socio-legal studies, we specifically built our approach on three streams of literature: domestic human rights legal implementation studies, New Legal Realism applied to international human rights law, and the emerging stream of literature on legal intermediation. This section discusses how these three streams of scholarship are useful to answer our research questions. We hope this outline of our approach can provide inspiration for complementary research in other contexts (see Chapter 6).

2.2.1 Studies on Domestic Human Rights Legal Implementation

First, we rely on research on the dynamics of domestic human rights legal implementation. As mentioned in Chapter 1, our book focuses on the engagement of political authorities with human rights treaties rather than implementation. That said, the literature on domestic human rights legal implementation is an important source of inspiration for our approach as we particularly build on insights from Beth Simmons’ Mobilizing for Human Rights, as well as from studies by Jasper Krommendijk, and by Alice Donald and Anne-Katrin Speck. In terms of research design, for example, Krommendijk analysed public documents, conducted interviews, and performed database searches to determine the impact of recommendations of human rights committees on domestic parliaments in three states (Krommendijk, 2018). Our research design also combines the intensive research on public documents such as parliamentary debates and reports, as well as bureaucratic and civil society reports and communications, with semi-structured interviews to identify where, when, how and by whom treaties were understood, interpreted and used in cantonal policy processes. Moreover, we follow a methodological approach based on process-tracing (Beach & Pedersen, 2019; Bennett & Checkel, 2012; George & Bennett, 2005; Kapiszewski & Taylor, 2013). Donald and Speck applied process-tracing to the study of the implementation of international human rights judgments concerning structural violations in three European countries between 2016 and 2018 and found that the process is dynamic and iterative (Donald & Speck, 2020, pp. 50–51). They used a timeline to trace the impact of the judgments, showing that their influence varies a lot. We use the method of process-tracing as an inspiration: we also start from a top-down perspective that aims to trace the subnational implementation process of specific treaties (Chapter 3). In doing so, we contribute to deepen the understanding of how the engagement of political authorities ‘may be constrained or enabled both by pre-existing conditions—structural, political and attitudinal—and by external developments that cause the political space for implementation to open or close’ (Donald & Speck, 2020, p. 51).

2.2.2 New Legal Realism in Human Rights Scholarship

Second, we add to the research design from the domestic human rights implementation literature the insights gained from New Legal Realism literature and sociology of law related to human rights. Instead of limiting ourselves to the top-down perspective of the mentioned implementation studies, our approach combines the top-down perspective with a bottom-up one, geared towards grasping how subnational actors come to use international human rights treaties in measures adopted through subnational policymaking processes. This perspective is broader as it pays significant attention to subnational actors’ points of view and activities to make sense of international human rights treaty law. It is rooted in a New Legal Realist approach of international law (Garth, 2006; Haglund & Stryker, 2015; Holtermann & Madsen, 2021; Klug & Merry, 2016; Merry, 2006b; Shaffer, 2016). New Legal Realism ‘emphasizes the social context of law and seeks to develop approaches that account for how law actually works in action’ (Talesh et al., 2021). Thus, we ask ‘how actors use and apply law in order to advance our understanding of (…) how law obtains meaning, is practiced (the law-in-action), and changes over time’ (Shaffer, 2015, p. 189). Haglund and Stryker (2015) have highlighted the wide variety of mechanisms and actors involved in the concrete pathways of rights realisation, and how these pathways are multilevel institutional processes. In line with these authors, we also focus on mechanisms, actors, and processes through which subnational authorities engage with human rights treaties.

Several scholars specifically analysed implementation processes of human rights of persons with disabilities. Pierre-Yves Baudot underlines that it makes sense to expand the focus beyond delays and implementation gaps because ‘an analysis of implementation processes shows (…) that the diffusion of these [human rights] norms can take much more complex forms than a simple opposition between adaptation and resistance’ (Baudot, 2018, p. 128). Baudot argues that ‘the transfer [of new international norms is] not characterized by a thorough rethinking of the public policy subsystem, but [can] rather result […] in layering new rights on top of old frameworks’ (Baudot, 2018, p. 117). Based on interviews with workers with disabilities in Belgium and with persons with either visual or mobility impairments in France, Lejeune and Ringelheim (2019) and Revillard (2018, 2019, 2023) studied rights consciousness, legal mobilisation, and rights realisation. While these studies take the CRPD into account, they understandably do not focus on the authorities’ engagement. They underline the role of social movements, bureaucracies, and persons with disabilities in rights enforcement and enhancement (Lejeune & Ringelheim, 2019; Revillard, 2018, 2019), while noting major implementation problems (Revillard, 2023). These insights are important to us, as they invite us to consider the complex policy processes in which international human rights treaties are used by a variety of actors, including political authorities (parliaments, governments, bureaucracies), but also civil society organisations, social movements, and people most directly concerned by these rights.

As previously mentioned in Chapter 1, the seminal work of Sally Merry is indispensable to us as she asks how human rights become effective in local settings, by focusing on how they are ‘translated into local terms and situated within local contexts of power and meaning’ (Merry, 2006a, p. 1). In doing so, Merry shows how human rights become ‘vernacular’ (Levitt & Merry, 2009; Merry, 2006a), meaning that ‘ideas and practices from the universal sphere of international organizations’ become extracted and translated ‘into ideas and practices that resonate with the values and ways of doing things in local contexts’ (Merry & Levitt, 2017, p. 213). This New Legal Realist perspective on human rights and vernacularisation motivated us to systematically explore in two case studies the ways international human rights treaties are used, adapted and translated to fit diverse Swiss subnational contexts, taking into account the unique characteristics and political struggles of each subnational unit. As we will demonstrate, the two studied treaties require an adaptation to local context to eradicate or at least attenuate a structural human rights problem in a complex multilevel system, i.e. violence against women and the rights of persons with disabilities. By far and large, simple legislative incorporation does not suffice: what states, including their subnational entities, need to do is to engage with treaty obligations to make political decisions about the concrete measures to be implemented.

2.2.3 Intermediaries

The third body of literature we use is the literature on intermediaries. Sally Merry is of crucial importance again as she highlights the role of ‘intermediaries such as community leaders, nongovernmental organization participants, and social movements activists [who] play a critical role in translating ideas from the global arena down and from local arenas up’ (Merry, 2006c, p. 38).¹ To Sally Merry, intermediaries shape the practice of human rights by ‘translat[ing] between human rights concepts and specific situations’ and by ‘translat[ing] international documents into terms relevant to particular localized political struggles’ (Merry, 2006b, p. 978). The concept of intermediaries is also adopted by political scientists to highlight the function performed by actors mediating by rule-makers and rule-takers: they speak about regulatory intermediaries (Abbott et al., 2017; Miaz et al., 2024; Pegram, 2017). In the field of law and society, the notion of legal intermediaries and legal intermediation focus on how actors handle legal rules, and how the content and meaning of the rules are constructed in local settings: ‘legal intermediaries play an increasing role in not just affecting, controlling or monitoring relations between rule-makers and rule-takers but also constructing the content and meaning of law itself’ (Talesh & Pélisse, 2019, p. 138). These authors advocate for a bottom-up, interactive and inclusive approach taking into account the varieties of legal intermediaries, be they legal or non-legal actors, occupying a formal or informal function (Gray & Pélisse, 2019; Pélisse, 2019). Accordingly, ‘rule intermediaries [are] state, business, and civil society actors that affect, control or monitor how legal rules are interpreted, implemented or constructed once they are passed by public legal institutions, facilitate, and inhibit social change in society’ (Talesh & Pélisse, 2019, p. 113). This literature shows that varieties of intermediaries are involved in legal intermediation processes, including many actors who are not legal professionals (Pélisse, 2019) and who can be situated at different ‘levels’, not only ‘macro-level actors’ (e.g. actors of a ‘reform network’ at the national level) but also micro-level ones (e.g. managers and directors of bureaucracies) (Vincent, 2019), and ‘insider activists’ within organisations (Butcher, 2019).

These authors’ understanding of intermediaries is a central feature of our own approach, as this approach allows us to operationalise the role of specific actors (intermediaries) in the Swiss federal system and the ways these intermediaries contribute to translate international human rights treaties into the subnational context. By analysing the contingent and processual aspects of legal intermediation (Billows et al., 2019) between a treaty, subnational authorities’ engagement and, eventually, its implementation at different levels of the state, we can highlight ‘not only the process by which rule-makers influence rule-takers’, but also the ‘tools, instruments, and hybrid categories used by these intermediaries and their participation in law in action, sometimes law in the books and often ordinary legality as defined by legal consciousness studies’ (Pélisse, 2019, p. 106). Merry's and Pélisse’s works notably inspired us to draft interview questions that allow us to understand the processes through which international law is translated into concrete subnational policy measures, and this literature was also useful in informing our selection of interview partners.

In summary, a combination of law, political science and socio-legal scholarship provide the ingredients for our own approach aiming to understand how subnational actors use human rights treaties and how subnational political authorities engage with the treaties. Next, we explain our choice to focus on the two selected human rights treaties.

2.3 Selecting the International Treaties

To answer our research questions in light of the theoretical discussion presented above, we chose two international treaties ratified by Switzerland which contain numerous obligations falling within subnational competences: the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, known as the Istanbul Convention (IC, ratified by Switzerland in 2017), and the United Nations Convention on the Rights of Persons with Disabilities (CRPD, ratified by Switzerland in 2014). The two studied treaties cover different subject matters and contain different obligations; however, they do share some common ground which were the reasons why we selected them for this study. We selected these two treaties for two main reasons: first, they both contain numerous and relatively specific obligations that require ambitious policy measures at the Swiss subnational level, they are often relatively precisely worded and fall within the competences of the Swiss cantons (i.e. the subnational entities) and second, Switzerland ratified them relatively recently.

Treaties with ambitious and specific obligations are particularly suitable for our research. Specific obligations alleviate interpretative uncertainties and leave subnational actors with certain room for manoeuvre in using treaty obligations, engaging with them and, more generally, in linking the content of a treaty with their work or a public problem. Moreover, these treaties contain obligations, definitions and approaches that can be interpreted and adapted to local contexts, and eventually implemented through a variety of possible policy measures. In addition, subnational actors have certain room for manoeuvre to engage with these obligations and to use the content of a treaty (definitions, policy approach and paradigm). Recent treaties come with increased public attention (ratification message and parliamentary debate at the federal level, media attention, etc., see Chapter 3) and we can therefore expect subnational actors to take notice of the treaty, or at least that actors directly concerned by the treaty (politicians committed to the field concerned by the treaty, specialised policy bureaucrats, frontline workers, civil society organisations, social movements and people concerned) know that the treaty exists. Moreover, the recent ratifications of these two treaties facilitate the identification of relevant actors for the qualitative interviews we conducted because the subnational policy processes for implementation are recent or ongoing.

We now explain how the two selection criteria—obligations requiring ambitious policy measures at the subnational level and recent ratification—are met by the two selected treaties.

2.3.1 The Istanbul Convention

The Convention on Preventing and Combating Violence against Women and Domestic Violence, known as the Istanbul Convention (IC) was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011 and was signed by Switzerland on 11 September 2013, ratified on 14 December 2017, and it entered into force for Switzerland on 1 April 2018.

The Istanbul Convention (IC) contains numerous obligations in the cantonal sphere of competences and many of these obligations are ambitious and relatively precisely worded. Presented as ‘very significant’ (McQuigg, 2012, p. 959), ‘the most advanced’ (De Vido, 2017, p. 69), ‘potentially powerful’ (Grans, 2018, p. 136) international human rights treaty targeting the elimination of violence against women and domestic violence, the IC brings a holistic approach to combating violence against women, requiring legislative and other policy measures in different fields, including civil and criminal law, law enforcement, social policies and awareness-raising to eradicate gender stereotypes. It takes a comprehensive gender and human rights perspective on violence against women and domestic violence and firmly establishes a link between achieving gender equality and the eradication of violence against women.² The IC frames violence against women as a structural problem. The structural nature of violence is considered in the preamble as ‘one of the crucial social mechanisms by which women are forced into a subordinate position compared with men’.³ This means that states are obliged to eradicate a structural problem and it is only logical that this requires measures going beyond mere incorporation or abstention. To eradicate this violence, the obligations of the IC centre around four pillars (prevention, protection of victims, prosecution and co-ordinated policies), all of which fall almost exclusively within the cantonal competences in Switzerland.⁴ Compared to older human rights treaties focusing on equality, such as the UN Convention on the Elimination of Racial Discrimination (UNCERD), or even the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Istanbul Convention is longer (more than twice as long in terms of the number of words) and contains more detailed obligations to change domestic legislation and public policies. Such obligations can be general: ‘parties shall take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere’ (art. 4 IC); or related to the approach and framing of the public problem: state parties ‘shall undertake to include a gender perspective in the implementation and evaluation of the impact of the provisions of this Convention and to promote and effectively implement policies of equality between women and men and the empowerment of women’ (art. 6 IC). The general obligations are complemented with numerous specific obligations, all of which require the allocation of resources, thus budgets, and therefore the participation of subnational political authorities. States are explicitly required to train professionals, students, pupils, the media and the private sector to challenge gender stereotypes, to protect victims from further violence through a range of specific preventive measures, to have ambitious legislation on police investigations, the prosecution of perpetrators and witness protection, and to monitor and potentially revise their legislation for gender-sensitive policies.⁵ Given that one of the purposes of the IC is to ‘design a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence’ (art. 1 IC), it is not surprising that several articles relate to specific policy instruments, such as the obligations to provide shelters or to set up telephone helplines for victims:

Parties shall take the necessary legislative or other measures to provide for the setting-up of appropriate, easily accessible shelters in sufficient numbers to provide safe accommodation for and to reach out pro-actively to victims, especially women and their children. (art. 23 IC)

Parties shall take the necessary legislative or other measures to set up state-wide round-the-clock (24/7) telephone helplines free of charge to provide advice to callers, confidentially or with due regard for their anonymity, in relation to all forms of violence covered by the scope of this Convention. (art. 24 IC)

A detailed explanatory report, prepared by the Council of Europe, complements the normative landscape and provides additional information about the interpretation of the obligations of the Istanbul Convention, as well as sometimes very specific recommendations about the implementation based on the Council of Europe’s previous work to combat violence against women (such as a specific, numbered, recommendation on the number of specialised women’s shelter places in relation to the population size: ‘one family place per 10,000 head of population’).⁶ In short, the Istanbul Convention is an international treaty with numerous and precise obligations, which are further detailed with a dense explanatory report, which makes the treaty more accessible to a range of actors. Taking all of this into account makes the Istanbul Convention a suitable case study for our purposes.

2.3.2 The UN Convention on the Rights of Persons with Disabilities

Our second case study revolves around the United Nations Convention on the Rights of Persons with Disabilities (CRPD). As the Istanbul Convention, the CRPD is part of the human rights treaties Switzerland ratified relatively recently. The CRPD was adopted on 13 December 2006, ratified by Switzerland on 15 April 2014 and entered into force for Switzerland on 15 May 2014.

The CRPD is also a human rights treaty containing ambitious and relatively precisely worded obligations and many of the obligations fall within the cantonal competences, such as those concerning education, employment, health and social protection services. The CRPD also addresses structural human rights inequality, this time especially in relation to persons with disabilities.⁷ The CRPD requires, just like the Istanbul Convention, a progressive framing of a public problem: the social conception of disability, as opposed to a medical one. Persons with disabilities shall have the same rights and opportunities as those without disabilities and to achieve this, physical and social obstacles must be removed, rather than placing the focus on how persons with a disability can adapt to the society around them. The CRPD thus stresses the autonomy and equality of persons with disabilities and invites us to place the emphasis on the way society is organised, rather than the individual’s impairment. To achieve the aims of the CRPD, states must adopt or update legislation and policies in the following fields: they must ensure that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life; to ensure de facto accessibility of infrastructure, transportation, communication services, culture and all other facilities or services open or provided to the public, on an equal basis with others. Most importantly, states must ensure their legislation and policies promote the inclusion in society of persons with disabilities, i.e. their right to live independently and participate fully in all aspects of life. In a federal state like Switzerland, the CRPD thus places ambitious and numerous demands upon the cantons. As with the Istanbul Convention, the obligations are numerous, and relatively precise and many of them fall squarely within the fields of competence of subnational units and require the adoption of wide-ranging measures suitable for the specific context of each canton and supported with the necessary allocation of resources. ‘Simply’ incorporating these obligations into national law, i.e. making national or subnational law contain the same obligations, is clearly insufficient here too.

The CRPD participates in a global ‘paradigm shift’ on disability, from a ‘welfare model’ to a ‘civil rights model’ (Quinn & Flynn, 2012), i.e. from a ‘century of thinking about disability as an issue of welfare’, in connection with a ‘medical model’ understanding disability as a result of individual impairments, towards a ‘thinking about disability as an issue of equal rights, inclusion, dignity, and, most crucially, human rights’, in connection with a ‘social model’ focusing on ‘disabling environments and attitudes’ as the sources of disability (Heyer, 2015, p. 2). Hence, this ‘social model’ understands disability as a social product, i.e. as a result of social and environmental barriers (Oliver, 2009). In sum, this treaty reaffirms that all persons with disabilities must enjoy all human rights and fundamental freedoms.

2.3.3 Reflections on This Treaty Selection

Does a selection of two treaties suffice to respond to our research questions? Two concerns must be addressed. First, one could argue that the recent nature of the two treaties skews our data as recent treaties may be easier to use and the engagement of subnational political authorities more forthcoming than for treaties that have been around for a long time. While we cannot rule out the possibility of this effect, we believe that even if it were present, it would not undermine the potential of our findings to be relevant beyond the selected two treaties. The benefit of focusing on two recent treaties is clearly a pragmatic one: the dynamics we are interested in studying are more easily observable. At the same time, such complex and demanding treaties also offer a hard case scenario, for which the same dynamics are expected to hold in less demanding cases. If we understand how these treaties are used, despite the implementation challenges they pose and the potential for resistance, the same dynamics can be expected to play out in at least similar ways with other treaties. Given that the range of required measures for both treaties involve significant financial resources, one could expect the financial implications to limit the engagement. Therefore, both treaties contain obligations that can be seen as hard cases.

Second, could one argue that issues related to the protection from violence and to persons with disabilities are at least somewhat more consensual than, for instance, issues explicitly related to racial discrimination or traveller communities, and that our data might therefore present the engagement of political authorities more forthcoming than what one might find when studying different treaties? We do not believe that the social perceptions of those protected by the treaties selected for our case studies create some bias in the data. We are confident to conclude that both treaties refer to numerous aspects that are not dealt with only thanks to an unequivocally high level of popular support. Suffice it to say that the idea of independent choices of how, where and with whom people with ‘severe’ disabilities live requires radical change compared to what is now common in Swiss cantons, where the landscape remains heavily institutionalised. Furthermore, as mentioned, the Istanbul Convention requires much more than police interventions—eradicating gender stereotypes is certainly not an uncontroversial matter these days. Last but not least, intersectionality is a reality and complexifies the superficial and in our view erroneous impression that issues related to protection from violence might be more consensual than other human rights issues. We can consider Switzerland’s recently renewed reservation to Article 59 of the Istanbul Convention as a strong indication of this point: Article 59 obliges states to increase the protection of migrant women when their residence status increases their vulnerability.⁸ It can thus certainly not be concluded that our observations are limited to a sub-set of rather consensual treaty obligations for which we observe numerous uses and engagement. Instead, the focus on two recent treaties with complex obligations offers meaningful insights for the study of human rights treaties at the subnational level.

In addition to the selection of the two treaties, one might ask why we focus on treaties in the first place, rather than norms more broadly.

2.3.4 Why Treaties (Rather than Legal Norms)?

We concentrate on obligations from treaty law. Contemporary international law operates through treaties, customary law, and general principles but also through a bewildering array of instruments that cannot easily be subsumed with one of the above categories (such as decisions of international organisations, sometimes decisions taken by bodies of a hybrid nature, ‘soft’ or informal law, etc.). Obligations expressed in legally binding treaties express most clearly the ambitions of international law towards domestic actors and thus lend themselves to our purposes. Moreover, the focus on treaties is warranted for feasibility considerations. As in Beth Simmons’ study on Mobilizing for Human Rights, ‘[n]orms are too broad a concept’ for what we have in mind for this study and ‘treaties are understood by domestic and international audiences as especially clear statements of intended behavior’ (Simmons, 2012, p. 7). The choice to focus on treaties is the starting point but we will consider the broader normative landscape surrounding the treaty obligations which we examine. For instance, the mentioned explanatory report of the Istanbul Convention, a document prepared by the treaty secretariat, is non-binding but some interview partners shared with us how the report is important for their work. This observation indicates that legal bindingness and the wider normative context can influence the ease with which subnational actors use human rights treaties. Moreover, and maybe most importantly, studying uses of a treaty and political authorities’ engagement with it implies taking into account not only the norms and obligations, but also the treaty as a whole: the reference to the treaty can be used as an argument and a legitimation to take policy measures or to change the policy paradigm, or it can be a cognitive resource to understand and (re)frame a public problem and a policy. In short, this choice allows us to consider not only the direct uses and implementation of norms, but also the more diffuse mobilisations and effects of the treaty in policy processes.

In the last section of this chapter, we will address the data collection.

2.4 The Collected Datasets

To observe the uses of the Istanbul Convention and the CRPD, we collected two complementary qualitative datasets.

2.4.1 Desk Research on Official Sources Related to the Treaties

First, we conducted desk research to collect official sources on both treaties at the federal, inter-cantonal and cantonal level. Following Donald and Speck’s invitation (Donald & Speck, 2020), we took a processual approach analysing the political and bureaucratic processes through which the treaties affect cantonal policymaking. Our approach aims at reconstructing the existing narratives about policy processes related to the implementation of these treaties, identifying the different uses of the treaties in Swiss cantons, as well as the mechanisms and patterns through which subnational political authorities engage with them.

To identify these processes, uses and mechanisms, we first collected and analysed the federal government dispatches accompanying federal bills, governmental reports and official administrative documentation related to the Istanbul Convention and the CRPD, and their intended implementation at the federal and cantonal levels. Then, we collected and analysed official documents at the cantonal level, including parliamentary interventions, responses of cantonal government and parliamentary debates. We did so in 25 cantons (out of 26) for the Istanbul Convention and in 19 cantons for the CRPD (see Table 2.1). We also collected the documents and official reactions related to the evaluation processes by the Council of Europe Expert Group on Action against Violence against Women and Domestic Violence (GREVIO) and the UN Committee on the Rights of Persons with Disabilities (UNCRPD), both in 2022. Finally, we observed the interactive dialogue between the UN Committee on the Rights of Persons with Disabilities (the United Nations supervisory body concerning the CRPD) and the delegation of Switzerland during the review of Switzerland in March 2022 at the United Nations in Geneva. These international supervisory mechanisms produce non-binding recommendations on the implementation of the relevant treaty by the state. They base their assessment on a report produced by the state party, and information submitted by civil society, as well as other available documents. The timeframe of our research begins with the documentation leading to the ratification of these two treaties—2014 for the CRPD and 2017 for the IC—and finishes at the end of 2022.

Table 2.1 Characteristics of Swiss cantons (at time of data collection) and cantons included in desk research

2.4.2 Semi-Structured Interviews

To build our second dataset, we conducted 65 semi-structured interviews with 69 persons who were somehow involved in the implementation of the Istanbul Convention or the CRPD, to understand how these actors use the treaties. Our interview partners can be categorised into the following groups of actors:

• four interviewees are or were members of the federal administration (Federal Office of Gender Equality; Federal Office of Justice; Federal Department of International Law; Federal Office of Equality for Persons with Disabilities);

• 27 members of cantonal administrations responsible for the implementation of the Istanbul Convention in 18 cantons,⁹ respectively of the CRPD in four cantons¹⁰;

• 34 members of cantonal parliaments in four cantons¹¹;

• two members of a cantonal government;

• five members of civil society organisations and/or academic experts involved in cantonal legislative processes.¹²

For these semi-structured interviews, we created an interview guide with main questions and follow-up (sub)questions. We first asked the persons to present their roles, tasks and functions, as well as the organisation(s) for which they work.

Second, we asked the interviewees to describe and explain, from their point of view, the general situation on the implementation of the relevant treaty in the canton and/or (if relevant) the processes in which they were involved, such as drafting a parliamentary intervention, participating in a parliamentary commission working on a law reform, drafting a law project, drafting proposals to implement the treaty (e.g. an action plan against domestic violence), etc. We paid particular attention to what actors concretely do, to the different stages of the process, to the actors who are involved, to the points of tension between them, and to the role of the convention in the process.

Third, when examining the different stages of the policy process, we asked about specific uses of the relevant treaty: how did the interviewees come to know that this treaty existed, how did they understand it and decide to use it (or not) in drafting a parliamentary intervention, a law project, or an action plan, and how did they come to write an intervention, or to propose a legislative reform? Numerous sub-questions aimed at exploring which actors used the treaty and how exactly, with which goals, and with which effects on the process. We also asked specific questions about the roles of other actors, such as the different political authorities involved and the points of tension between them.

Fourth, we asked questions aiming at analysing the relationships between the interviewee and the treaty and, more generally, international law. In our view, the notion of relationships to international law is close to legal consciousness taken in a broad sense.¹³ Thus, we asked questions about how they came to know international law, how they work with it and use it in their role (as a member of a cantonal parliament, or as a cantonal official), how obligatory they perceive human rights treaties to be, and what the treaty has changed (for them and in the cantonal policymaking). We also asked questions regarding implementation of international law in general (how it happens, and how they believe it should happen), and its place in cantonal policy processes.

Fifth, we asked questions about how they perceive their role (of parliamentarians or of cantonal officials), how they perform it, what are their areas of specialty, how did they learn their role, etc.

Finally, we asked questions about their biographical and socio-professional trajectory and their political commitments. We translated all our interview excerpts and quotes of documents from French or from German.

2.4.3 Selection of Four Cantons for In-Depth Analysis

Switzerland consists of 26 cantons. We managed to collect and analyse official sources, and to interview key members of several cantonal administrations (see Table 2.1). As it would exceed the scope of this book to study processes in a large number of cantons, we selected a sample of four diverse cantons for in-depth analysis. We notably focused our interviews with members of cantonal parliaments on this sample, which enabled us to interview parliamentarians from different political parties in each canton. We selected cantons to maximise variations in the most relevant contextual variables, as it is warranted for qualitative research (Plümper et al., 2019). Therefore, we decided on a list of four cantons considered as diverse, notably in terms of size, language, degree of urbanisation and parliament’s resource capacity, professionalisation and political position (in green in Table 2.1). The objective is to maximise the chances of observing different implementation processes and uses of human rights treaties. We identified Geneva as a ‘most likely case’ in terms of implementation: a large French-speaking and urban canton with a resourceful, strongly professionalised¹⁴ and politically heterogenous parliament with rather strong left parties and uniquely strong relationships with international organisations. By contrast, Schwyz is our ‘least likely case’: a small German-speaking rural canton with a weakly professionalised, strongly right-wing parliaments and governments. We added two intermediary cases: Neuchâtel (a small French-speaking canton with a weakly professionalised parliament and strong left parties) and Zurich (a large German-speaking canton with a strongly professionalised, right-wing parliament but the presence of rather strong left parties).

Whenever we refer to cantons, we refer to the subnational units of the Swiss federal state. We thus use the term ‘subnational actor’ as a synonym of actors situated at the cantonal level, and we do not further distinguish lower subnational entities. The cantons are composed of municipalities that also have some autonomy (and this level of autonomy varies from one canton to another). For reasons of simplicity, we make abstraction of the municipal level. This comes, unfortunately, at the disadvantage of ignoring the recent research on the role of cities in implementing international law and protecting human rights (Aust & Nijman, 2021; Frei, 2022; Grigolo, 2019; Nijman et al., 2022). That said, we are indirectly able to consider initiatives arising, e.g. in a city given that such initiatives, at least in Switzerland, invariably impact one or the other actor at the cantonal level.

Table 2.1 presents the 26 Swiss cantons. Switzerland has four national languages: German (G), French (F), Italian (I), and Romansh (R). The table highlights that Swiss cantons are very diverse in terms of population, ranging from 16,000 inhabitants (Appenzell Innerrhoden) to 1.5 million (Zurich). The table also outlines the strength of the left in cantonal parliaments and governments in the legislature on which we focused our analysis, using the data of the Swiss Federal Statistical Office. All this information helped us to select specific cantons for in-depth analysis and for our comparative analysis of the cantons.

2.4.4 Analysing the Datasets from Different Perspectives

The creation of these two datasets enabled us to have a clear and critical view of the ratification and implementation processes of the Istanbul Convention and the CRPD in Switzerland (Chapter 3). We then analysed this data using thematic content analysis and interpretative qualitative methods (Dubois, 2009; Yanow, 2017). The first step was the identification of themes and patterns across the documents and the transcripts of the interviews with the software MAXQDA. We started from the lived experience of our interviewees to analyse how they came to know about international treaties, how they understand them. We then retraced and reconstructed policy processes related to treaties: their impulse, the mechanisms through which treaties played a role, the role of the various actors involved, and the outputs. This enabled us to understand the uses that subnational actors make of the treaties. The analysis of interview transcripts also enabled us to obtain very specific information on cantonal contexts, which added some flesh to the desk research we carried out on cantonal characteristics (see Table 2.1). We also analysed personal characteristics and eventually associated contextual features and characteristics of interviewees with specific uses of treaties (Chapter 4). Taking a step back in order to examine the broader picture, these elements helped us to understand through which mechanisms and patterns the subnational political authorities engage with international treaties, and to classify these engagements (Chapter 5). Our hope is that by being as transparent as possible about the qualitative data and its limits, we will provide sufficient evidence to illustrate how subnational actors, even sometimes single individuals, are active agents of the realities of human rights on the ground and can make a positive difference towards the engagement of political authorities.