Varieties of How Actors Use Human Rights Treaties in Subnational Policy Processes

Abstract

In this chapter, we examine the varieties of how actors use international human rights treaties in policy processes at the subnational level. As explained in Chapters 1 and 2, our case studies are the Istanbul Convention (IC) and the Convention on the Rights of Persons with Disabilities (CRPD) in Swiss cantons. Here, we identify the most relevant actors and how they come to know about a treaty, and we then categorise various uses according to the actors and to the stage of the policy process in which the actors intervene. We find that various subnational actors—including bureaucrats, elected politicians (members of cantonal parliaments or governments), civil society representatives and academic experts—use treaties according to their own local interests, agendas and strategies. The uses of the treaties often occur along a continuous and incremental process involving back and forth and both top-down and bottom-up dynamics. In the policy process, subnational actors use treaties to (a) set issues on the policy agenda and (b) to support claims (new ones or existing ones). If the relevant subnational political authorities use a treaty with a view to further its implementation, we qualify this type of use as an engagement, which we will address in Chapter 5.

4.1 Introduction

In Switzerland, both the Istanbul Convention (IC) and the Convention on the Rights of Persons with Disabilities (CRPD) concern, to a large extent, cantonal competences such as education, police, construction, social system and health. As Chapter 3 has shown, there is no formal, nor automatic procedure through which subnational units are compelled to engage with these international treaties and the obligations therein. Although Switzerland can incur international state responsibility if subnational units fail to implement obligations within their competences, there is no pre-set federal strategy to coerce or command subnational units to engage with these two treaties. In practice, federal surveillance (art. 49 para. 2 of the Swiss Federal Constitution) is limited as it involves encroaches on cantonal competences (Kaempfer, 2023).

We argue that it is necessary to study the subnational uses of a treaty, to understand how political authorities (i.e. parliament and government) eventually engage with human rights treaties (Chapter 5). As mentioned in the introduction (Chapter 1), a use of a treaty is an instance in which an actor strategically or instrumentally refers to a treaty and works with it, e.g. by citing it or by relying on it in a parliamentary speech, a draft law, a report or a discussion, etc. Studying the uses of a treaty allows us to capture what subnational actors involved in policy processes do with treaties, and eventually sheds light on how human rights law works in practice in subnational policy processes. So, this chapter aims to answer the following question: how do actors use international human rights treaties in subnational policy processes?

We analyse the varieties of actors who use the Istanbul Convention and the CRPD in cantonal policy processes—that we consider as international law intermediaries (Miaz et al., 2024; Pélisse, 2019; Talesh & Pélisse, 2019)—as well as the variety of uses (Merry, 2006). Section 4.1.1 first highlights who the key subnational actors are and how they come to know about the existence of a treaty. Then, in Sects. 4.2 and 4.3, we present the different types of uses by subnational actors. In Sect. 4.2, we show how different actors use the treaties to set a specific issue on the cantonal political agenda. Section 4.3 shows how actors use treaties as legal and political arguments to support their (new or existing) claims and approaches. As explained in Chapter 1, sometimes the use of a treaty by a subnational actor triggers the engagement of the relevant subnational political authorities with the treaty and those subnational authorities begin to study the treaty and to formulate and adopt policy measures. These ‘success stories’ are part of Chapter 5 where we examine the patterns of engagement by political authorities. Here in Chapter 4, we only present the early uses sometimes leading up to later engagements.

Treaties provide opportunities. A priori, subnational actors could perceive treaties as obligations and constraints. However, our results show that cantonal specialised policy bureaucrats often perceive them as a political opportunity, a legitimation tool and a resource.

We also observe that the use of human rights treaties in cantonal policy processes is not systematic, nor linear. Instead, specialised policy bureaucrats, members of cantonal parliaments, and other actors involved in subnational policymaking processes use human rights treaties in various ways which depend on both their strategic goals and on the local political context. As a result, the use of international norms is patchy, complex and very uneven. What is more, the various types of uses of international law identified at different stages in the policy process may interact together, often via a self-reinforcing process.

4.1.1 Who Are the Key Actors Who Use Human Rights Treaties in Subnational Policy Processes and How Do They Come to Know About a Treaty?

Before presenting the varieties of how subnational actors use international human rights treaties, we briefly present who the key actors are and how they come to know the existence of a human rights treaty.

The first group of key actors are ‘specialised policy bureaucrats’. We refer here to the notion of ‘policy bureaucrat’, discussed by Page and Jenkins (Page & Jenkins, 2005). In their analysis, these authors emphasised that policymaking is not exclusively a political activity but also a bureaucratic one. They argued that the processes within policy bureaucracies are more than just subordinate acts and that officials have a certain degree of discretion in making policy decisions. This includes the ability to design ‘the legal, financial, and organizational arrangements which go to make the policy’ (Page, 2012). However, these proposals usually require approval from their superiors, ministers, government members or parliament. Consequently, bureaucrats must anticipate their reactions and develop proposals that are likely to gain their approval. In this book, specialised policy bureaucrats are bureaucrats specialising in a particular policy field (gender equality, domestic violence, disability policy) and who can be, because of this position, specifically committed to a particular cause (gender equality, women’s rights, disability rights, human rights). As we will show, these actors often use international human rights treaties.

The specialised bureaucrats we interviewed underline that, in their specific domain (violence against women, domestic violence, disability) the treaties are ‘omnipresent’, they are ‘everywhere’. Information about the existence and ratification of a human rights treaty is communicated by the federal offices—the Federal Office for Gender Equality and the Federal Office of Equality for Persons with Disabilities—and in the inter-cantonal conferences, such as the Swiss Conference on Domestic Violence or the Conference of Cantonal Delegates for Disability Issues. In these information exchanges, concrete topics in relation to the implementation of the treaty are discussed with colleagues from other cantons. An interviewee mentions, for example, how events organised by the Federal Office for Gender Equality helped to inform specialised policy bureaucrats of the existence of a treaty that needs to be implemented:

I was at a conference […] where the Istanbul Convention was presented and also the expectations were communicated relatively clearly, what is expected of the cantons. And for me, that was already such an ‘aha effect’, where I really heard for the first time what is in store for us, what the experiences are – not least also that other cantons are much further along here. And that really fired us up and motivated us, drove us to really move forward quickly.¹

Conferences, meetings and working groups organised by federal authorities or inter-cantonal instances can encourage cantonal bureaucrats to use a treaty. Law reforms and policy changes taking place in other cantons also encourage them to use a treaty. The reviewing process through which the UN Committee on the Rights of Persons with Disabilities or the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) monitor the implementation of the treaty also participates in the information of specialised policy bureaucrats, sometimes after the recommendations are communicated by these bodies. Finally, these specialised policy bureaucrats are in contact with the ‘field’, including civil society organisations (CSOs), frontline workers and institutions working ‘on the ground’, and people directly concerned by the issues on which the treaties focus (i.e. people with disabilities, those affected by gender stereotypes or domestic violence). To one of the interviewees, the CRPD has become unavoidable: this was one of the first documents he read when he started working in this domain, ‘because it is there, it is present, it is everywhere. It permeates us a little bit from all sides. As I said, it is a driving force, a groundswell that is taking everything in its path’.²

We will see that subnational cantonal members of parliament (MPs) also use international treaties but often only after other subnational actors draw the MPs attention to a treaty. Cantonal MPs are seldom specialists in domestic violence, disability or human rights (only some of them are), and they often come to know of international treaties through other actors. The following provides a useful illustration of the key role of actors outside the subnational parliament to inform cantonal MPs about the existence of a human rights treaty: in the case of the Istanbul Convention, the Women’s Group of the Swiss Social Democratic Party received in 2018 a representative of the NGO Brava (which is part of the NGO network Netzwerk Istanbul Konvention, a coalition of NGOs created in order to observe the implementation of the treaty) in order to get to know the Istanbul Convention. Following this meeting, the Women’s Group of the Social Democratic Party drafted a parliamentary interpellation, together with this NGO. The interpellation was addressed to cantonal MPs of the Social Democratic Party, with a request that they submit it to their respective government.³ The authors asked questions related to the implementation of the Istanbul Convention, with the aim to ‘map’ existing measures in all cantons. This interpellation was submitted, at times with modifications, in several cantons. This example shows that cantonal MPs are likely to get to know international treaties through the mediation of other subnational actors, notably civil society organisations. The example also shows that cantonal MPs who are specifically committed to a specific cause, like gender equality and women’s rights, or disability rights, are interested and likely to be aware that a treaty exists and can use the treaty to advance their cause.

Once a subnational actor has found out about the existence of a human rights treaty, how exactly can subnational actors use the treaty? We identified two main varieties of uses: agenda-setting (Sect. 4.2) and supporting claims and policy approaches (Sect. 4.3)—claims on specific treaty obligations, claims to support demands from ‘the ground’ and claims to support existing policy approaches.

4.2 Using Treaties for Agenda-Setting

In this section, we show that subnational actors use international treaties as a means to set a public problem on the cantonal political agenda. Treaty ratifications create a ‘policy window’ (Kingdon, 2014) for bureaucratic, parliamentary, and civil society actors who defend equality’s and the women’s cause (Bereni, 2021; Bereni & Revillard, 2018; Childs & Krook, 2009), disability rights (Heyer, 2015; Revillard, 2019; Vanhala, 2011), or more generally human rights. We will first focus on specialised policy bureaucrats as agenda-setters (subsection 4.2.1). We will then show how a variety of other subnational actors such as members of cantonal parliaments, civil society actors and experts, also use treaties to put their implementation on the political agenda (subsection 4.2.2).

4.2.1 Specialised Policy Bureaucrats as Agenda-Setters

Specialised policy bureaucrats may use international human rights treaties as an opportunity to put an issue on the political agenda in their canton. For example, with respect to the Istanbul Convention, the Head of the Office for Family Policy and Gender Equality (the ‘Equality Delegate’) succeeded in initiating a law-making process in 2018 in the canton of Neuchâtel (173,333 inhabitants in 2021)—around the same time as the entry into force of the IC. The initiative led to the adoption of a new law on combatting domestic violence. The Equality Delegate contributed to the elaboration of the new law, replacing a former one on the fight against violence in couple relationships, ‘to adapt it to the Istanbul Convention’.⁴ Thus, the IC provided the motivation and set the timing for launching a legislative reform: the Equality Delegate used the ratification of the treaty and the obligation to implement it as a means to support her draft legislation. The report presenting the new legislation to the cantonal parliament mentioned that the canton ‘will be able to honour its obligations coming from the signature of the Istanbul Convention’.⁵ In this example, the Equality Delegate used the treaty as a tool to set the issue of domestic violence on the political agenda, and to push for a law-making process involving the cantonal parliament. The Istanbul Convention was also used as a cognitive resource in the formulation of the new law and to reframe the public problem of violence in ‘couple relationships’ into a more global public problem of ‘domestic violence’, while emphasising the fact that such violence is gender-based violence. The next chapter, Chapter 5, will delve into how this use of the treaty resulted in an engagement with the Istanbul Convention.

In several other cantons, specialised policy bureaucrats also used the Istanbul Convention for agenda-setting. Specialised bureaucrats launched a policy process to engage with the Istanbul Convention either through a law reform, through an action plan or by asking for means to implement the IC. The role of bureaucrats setting the issue of the implementation of the Istanbul Convention on the agenda is also observed in the case of the CRPD, but less frequently. In Valais (346,562 inhabitants in 2021), the Head of the co-ordination office for questions in the field of disability explained that the former law did not include a part on the rights of persons with disabilities.

In order to have a law that also corresponds to the request of the UN, we contacted [a Professor] and his team and we asked them to make a partial revision of our law to integrate this into our law. And then they made a proposal with comments.⁶

In collaboration with the academic experts and based on recommendations collected during meetings with people with disabilities, specialised bureaucrats prepared a revision of the cantonal law on the rights and inclusion of people with disabilities and thus succeeded in creating an engagement by the subnational political authorities (see Chapter 5).

Thus, specialised policy bureaucrats—as they are responsible for the main field addressed by the treaties, and the treaties provide them with an opportunity to advance their expertise—act as agenda-setters (Guaschino, 2023). To these specialised policy bureaucrats, treaties are useful ‘because when we have to put together a file for parliament, the [treaty] allows us to rely on it because it is a strong lever that is recognised by all’.⁷ Thus, to them, the treaties provide opportunities and resources—international law offering a strong argument of authority—to reform and extend a policy program.

4.2.2 Members of Cantonal Parliaments and Civil Society Actors as Agenda-Setters

Specialised policy bureaucrats are not the only ones who use treaties to set an issue on the political agenda. Cantonal MPs, civil society actors and experts (such as academic actors) use treaties for agenda-setting. Let us first turn to cantonal MPs. Cantonal MPs use parliamentary interventions, such as questions,⁸ interpellations,⁹ postulates,¹⁰ and motions,¹¹ to put the implementation of the treaties, or issues related to them, on the political agenda. In the case of the Istanbul Convention, cantonal parliament members who are committed to the causes of equality—mainly members of the Social Democratic Party, the Greens or other left-wing parties¹²—used the treaty to request information on its implementation, or to put a specific issue or obligation on the political agenda. In the case of the CRPD, some members of cantonal parliaments who are committed to the defence of disability rights used parliamentary interventions to request a new comprehensive law on inclusion and the rights of persons with disabilities or to ask for measures on specific issues related to the treaty. While most of the elected politicians who use the CRPD are from the above-mentioned left-wing parties, some individual politicians affiliated with other parties also used the treaties for agenda-setting. Some of these politicians are committed in civil society organisations (CSOs) of persons with disabilities and their families or in disability rights movements, and some of them live with disabilities.

A typical way to put the implementation of a convention on the cantonal political agenda is to request information on it through a parliamentary question or interpellation. In the case of the Istanbul Convention, we explained above that the Women’s Group of the Social Democratic Party drafted an intervention template with the support of an NGO, which was sent out to all the cantonal sections of the Social Democratic Party, with a suggestion to submit it to their respective governments.¹³ As a consequence, several cantonal MPs of the Social Democratic Party submitted these interventions, setting the political agenda of their own parliament. For instance, in Neuchâtel the interpellation ‘Istanbul Convention: what about its implementation?’¹⁴ was filed by a cantonal MP of the Social Democratic Party on 11 November 2018. In Schwyz, the interpellation ‘Violence against women – what does Canton Schwyz?’¹⁵ was filed on 5 December 2018 by two MPs of the Social Democratic Party. This co-ordinated action helped setting the issue of violence against women and domestic violence on the political agenda of cantons where this was not as yet a topic.

The following examples further illustrate the agenda-setting function of the uses of treaties by cantonal MPs. In Zurich (1,537,408 inhabitants in 2021), a series of parliamentary interventions¹⁶ related to the Istanbul Convention was submitted by a group of cantonal MPs from the Social Democratic Party. The first one on ‘Violence against women’ was partly inspired by the intervention template from the national Social Democratic Party. The goal of these interventions was ‘to put the topic on the political agenda, to bring it to the public’.¹⁷ The interventions received media coverage. According to people from the Zurich Intervention Centre against Domestic Violence, the parliamentary interventions put pressure on the government.¹⁸ It is perhaps not a coincidence that shortly after these interventions, on 27 February 2019, the cantonal government decided to include a focus on violence against women in its law enforcement strategy 2019–2022. During our interview, two of these cantonal MPs explained that their goal was to put the issue on the political agenda and to press the cantonal government to act but not to specify the concrete measures:

So, I think it is important to see the following: we are not somehow operationally active in this topic. What we do is try to put the topic on the political agenda, to bring it to the public and thereby also bring about an awareness and visibility for this topic. But quasi operationally or legally […] that is like not our level, that is done by the administration. And […] even if we, now for example, demand measures, then we would actually say that. I’ll make an example now: we would like an action plan with measures that help to curb violence against women. But we would not somehow already make a legal interpretation or also an operational interpretation, so to speak. We would rather give a general impulse and pressure. And then, so to speak, about the operationalisation of this concern, that would be done by the cantonal administration and the government. I think that there is simply this division of tasks.¹⁹

The use of the Istanbul Convention in the parliamentary interventions demanding its implementation put political pressure on the cantonal government of Zurich, which subsequently made it a priority theme in its strategy for the 2019–2022 legislative period, and decided to adopt an action plan.²⁰

In the case of the CRPD as well, cantonal MPs filed interventions to request information on the implementation of the treaty. In Zurich, three parliamentarians from different political parties filed the question: ‘Implementation of the UN Convention on the Rights of Persons with Disabilities by the Canton of Zurich’.²¹ In Schwyz, the postulate filed by a cantonal MP of the Social Democratic Party argues that the federal Disability Equality Act and the CRPD require periodic reporting to ‘call on the government to provide information on the current disability policy of the Canton of Schwyz in an impact report’.²²

Besides cantonal MPs, civil society organisations also use parliamentary interventions to put the implementation of the treaties or related issues on the political agenda. Members of civil society organisations can sometimes use parliamentary interventions themselves through a popular motion²³ in the cantons where this instrument is available, or indirectly by asking cantonal MPs to relay a parliamentary intervention, or by helping them write one. This was the case in Neuchâtel, where a CSO—Forum Handicap Neuchâtel—filed a motion ‘For a real cantonal policy on equality for people with disabilities and reduced mobility’,²⁴ which argued that the federal law on the equality for people with disabilities celebrated its tenth year in 2014, and that the CRPD was ratified the same year by Switzerland. In doing so, Forum Handicap Neuchâtel put the issues of the equality for people with disabilities and of the implementation of the CRPD on the cantonal political agenda. The motion was adopted in 2015 and led the cantonal government to prepare a law project with the goal of complying with the CRPD. This led to the adoption of a cantonal law on the inclusion and support of people living with a disability (in French: Loi sur l’inclusion et l’accompagnement des personnes vivant avec un handicap) entered into force on 1 January 2022.

Besides agenda-setting, subnational actors use human rights treaties to support claims—sometimes to implement a treaty and sometimes rather as an ‘add-on’ to support a claim from below.

4.3 Using International Treaties to Support Claims

While subnational actors use international treaties to place an issue on the agenda, they often also use treaties to make specific claims, according to their own interests, agendas and strategies. In this section, we will show that cantonal MPs often use treaties, including specific obligations, to support some of their claims in relation to treaty implementation (Sect. 4.3.1). We will show that some of these claims originate from civil society ‘on the ground’, and that the treaty is used afterwards as an argument or a contextual reference to provide additional weight to a claim (Sect. 4.3.2). Finally, another type of use we observed concerns scenarios in which actors do not make claims for new measures but rather use treaties to legitimise, maintain or strengthen existing ones (Sect. 4.3.3).

4.3.1 Using International Treaties to Support Claims on Specific Treaty Obligations

We observe that cantonal MPs often base their claim on specific obligations of a treaty or ask for the implementation of a specific article. In the case of the Istanbul Convention, in Neuchâtel, cantonal MPs of the Social Democratic Party filed a recommendation²⁵ which aimed at the provision of a 24-hour hotline for victims of domestic violence based on an obligation related to article 24 of the Istanbul Convention.²⁶ While this demand concerns the implementation of a specific obligation of the IC, subnational actors also use the CRPD to support specific claims or issues that are based on specific treaty provisions. For instance, in a motion filed by Mohamed Hamdaoui (Alliance of the Centre) in the canton of Berne (‘For an official recognition of the sign language’), specific articles of the CRPD are quoted to underline a claim about the lack of implementation of the CRPD in the canton:

Switzerland is one of the last countries in Europe not to have recognised sign language at the national level. At the cantonal level, sign language is mentioned in the constitutions of Geneva and Zurich. This lack of recognition is in contradiction with the UN Convention on the Rights of Persons with Disabilities. In article 2, it defines sign language as a language in its own right. Article 30 (para. 4) of the Convention on the Rights of Persons with Disabilities is even more explicit about deaf language and culture: ‘Persons with disabilities have the right, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture.’²⁷

This example shows how a cantonal MP uses the treaty to support a claim and the treaty is the key argument supporting that claim. Similarly, in Zurich, on 12 December 2018, three parliamentarians of the Evangelical People’s Party relayed, in a parliamentary question, demands for the implementation of the CRPD made by the Zurich and Schaffhausen sections of the Swiss Association for the Blind and Visually Impaired. The authors of the question used the CRPD (as well as a federal law, the Disability Equality Act of 2004) to ask whether or to what extent the cantonal government was prepared to implement these demands, and if not, to provide a justification.²⁸

Another example of a use of a treaty to support a claim revolving around one of the human rights treaties is an ‘urgent written question’ filed by a cantonal MP in Geneva. A member of the Social Democratic Party asked the cantonal government about the measures it plans to take concerning treatment plans in psychiatric hospitals and the oversight of the latter to comply with the CRPD (the text quotes art. 16 para. 3 CRPD).²⁹ The cantonal MP uses the treaty to address a very specific and concrete issue. He relied on help from a lawyer working in a CSO with whom the MP was in contact. Thus, the cantonal MP relayed this question to support a claim around the treaty itself and to require specific information from the cantonal government.³⁰ The cantonal MPs can thus relay claims, questions and demands on concrete issues, sometimes formulated by CSO, and use the treaties as arguments or highlighting obligations within.

These examples show how a treaty can be used by parliamentarians, as well as by civil society organisations (relayed here by cantonal MPs) as a reference to formulate and argue their claims and demands according to the treaty. These claims sometimes request the implementation of specific measures and obligations contained in a human rights treaty. In such cases, it is not the implementation of the treaty as a whole that is requested, but specific measures based on (or referring to) the treaty. Thus, specific groups (CSO and their allies in the parliament) use the treaty as a basis for formulating claims (cognitive resource), as a legal reference (sometimes highlighting problems of implementation) to support specific demands (legal resource), and as an argument of authority to place an issue on the political agenda and to urge the cantonal government to act (political resource). Thus, treaties provide important resources to subnational actors committed to a specific cause (gender equality, women’s rights, disability rights, human rights) to set the cantonal political agenda and push political authorities to take policy measures or make reforms.

4.3.2 Using International Treaties as an ‘Add-on’ to Support Claims from Below

Several uses of international treaties by cantonal MPs originate not in the treaties themselves, but from below. Contrary to the uses in the previous section, subnational actors sometimes do not take the treaty as the starting point, but rather as an ‘add-on’. In these cases, an issue, a problem or a claim is identified by civil society, or simply observed ‘on the ground’, and the treaty is used afterwards, i.e. as a later added argument or a contextual reference supporting the construction of the problem and the related claims.

In Geneva, for example, a motion filed by Léna Strasser (Social Democratic Party)—‘What if the administration made itself understood by using language that was easy to read and understand?’³¹—referred to the CRPD in the legal background and in the explanatory statement, explaining that:

Specifically for people with disabilities, it should be noted that the simplified language complies with the UN Convention on the Rights of Persons with Disabilities, which Switzerland ratified in 2014. The treaty requires accessibility in all areas of life and therefore accessibility to written information concerning for example health, work, education, practical life, culture, elections, etc.³²

During the hearing organised by the legislative commission of the cantonal parliament in charge of studying her motion, this cantonal MP explained that the idea of this motion arose during a discussion with associations at the beginning of the school year. The administrative texts concerning the start of the school year were not understandable for the various groups concerned, which led her to look at methods of simplifying the language.³³ In the report of the parliamentary commission, the commission does not mention the CRPD (although a reference figured in the text of her motion). It was only during the hearing of a Head of association by the parliamentary commission that this civil society organisation representative mentioned the CRPD by saying that simplifying language would also make it possible to respect international treaties on persons with disabilities.³⁴ Thus, in this case, the reference to the CRPD was used as an additional legal argument and a legal background, that supports claims based on statements and needs observed ‘on the ground’. The main purpose of this motion was not to implement the treaty but to bring solutions to a problem identified ‘on the ground’, with the side argument that it would also contribute to strengthening the implementation of the treaty.

Another example of a use of the treaty as an ‘add-on’ concerns shelters for victims of domestic violence in the canton of Geneva. Two cantonal MPs from the Social Democratic Party requested more shelters for victims of domestic violence. The motion is mainly based on statistics related to domestic violence and on the ‘current overcrowding of shelters for victims of domestic violence and their children [which] led to the refusal of 487 applications for protection in 2018, out of a total of 1771 in Switzerland’.³⁵ The accompanying statement mentions the Istanbul Convention to highlight a ‘duty to provide sufficient and dignified shelters for every victim’.³⁶ During their hearing by the parliamentary commission in charge of studying their motion, the two cantonal MPs quote Article 23 of the Istanbul Convention, which formulates an obligation to provide for the setting-up of shelters in sufficient numbers. The report of the parliamentary commission summarises the stakes as follows:

Ms. Marti recalls that Switzerland has made a number of commitments concerning the fight against domestic violence and this at the level of the Council of Europe Convention on preventing and combating violence against women and domestic violence. Article 23 stipulates that its signatory members must take measures to ensure appropriate and sufficient accommodation that guarantees the safety of victims. Article 26 states that the rights and needs of children who are affected by such violence if they are with a parent must be taken into account.³⁷

However, as the two parliamentarians who wrote this motion explained to us, ‘the primary objective was not to implement the Istanbul Convention’.³⁸ The writing of this motion took place some weeks before the 2019 Women’s Strike in Switzerland (14 June 2019). In this context, these two members of the cantonal parliament aimed at bringing ‘part of the claims [of this mobilisation] to the [cantonal parliament]’. The manifesto of the collective of the Women’s Strike included claims for gender equality, but also protection of women against violence. So, the two cantonal MPs studied the situation in Geneva and realised ‘that there was a very critical situation in this field, with a rather cruel lack of accommodation places and of emergency accommodation’.³⁹ They worked on the text of their motion with a parliamentary assistant who found the Istanbul Convention:

[…] we had some elements to show that there were needs, but also in terms of legal and moral obligations on the part of the State and it is there [at this stage], to be completely transparent, it is our parliamentary assistant who found ... well who came across this Istanbul Convention to which Switzerland is bound. And there you have it, it is a rather strong argument to show that there is a need, especially a need for Switzerland and the cantons to act in these areas.⁴⁰

Hence, even if what this motion requests matches with an obligation of the treaty, the use of the treaty occurred a bit haphazardly during an ongoing attempt to formulate a specific claim. The authors did not primarily seek to implement the treaty as one of them explains:

There is no real in-depth work [from us] in relation to the Istanbul Convention, to be honest. The Istanbul Convention is cited to support the fact that Switzerland has commitments, particularly with regard to the issue of domestic violence.⁴¹

Hence, the treaty is used here as a support and an argument for a claim that comes from the field, and which matches an obligation of the treaty. This shows the specific ‘force’ (Bourdieu, 1987) of a treaty, and of international law, which imbues demands and claims with the legitimacy and incontestability of ‘superior law’. Subnational actors use treaties in this way when the obligations are used not just to emphasise a need, but when the actors also want to flag a legal responsibility to take specific actions or measures. In short, this motion was mainly based on the goal to bring claims of the Women’s Strike to the parliament and on an observation of concrete problems ‘on the ground’ (the insufficient places for victims of domestic violence in shelters). The use of the Istanbul Convention, and more specifically its Article 23, was an opportunity—that they came to know of ‘on the go’, working on the text of their motion—to add an additional argument supporting their claims.

4.3.3 Using Treaties as Legitimation Tools for Existing Claims

Where some implementation has occurred, the implementation of a treaty is never written in stone. When the subnational authorities in cantons in the past took measures, these measures and notably the financial means to sustain them can later continue to be contested. Specialised policy bureaucrats then sometimes use treaties to legitimise existing measures. In other cantons, specialised policy bureaucrats can also use treaties to reinforce or further develop an already-existing policy.

We observe this type of use in French-speaking cantons in regard to the Istanbul Convention. This is so because the services responsible for this domain are ‘Gender Equality Offices’, while in German-speaking cantons and Ticino (Italian-speaking), these are ‘specialised or co-ordination offices against domestic violence’ in departments of police, security, interior or social services. In the cantons where the public problem of violence against women and domestic violence was already framed as a problem linked to gender equality as intended by the Istanbul Convention, and where gender equality offices previously promoted public policies in this direction (Delage et al., 2020; Roca i Escoda & Lieber, 2015), the IC came ‘to clarify certain points and at the same time to legitimise everything that had been done until then, which seemed right, which seemed to be going in the right direction’.⁴² One equality delegate also underlines that the IC not only legitimises the framing of a public problem and a policy approach, but it also provides a status of priority by strengthening the argument according to which there is a necessity to take policy measures in this domain. International law has a specific ‘force’ as an argument of authority.

And then the Istanbul Convention is a good way to reinforce the message on the need to implement measures that respond to the needs of victims, perpetrators, children concerned and whether it is in terms of promotion of awareness measures and concrete care for different people (...) and the Istanbul Convention gives a stronger foundation, it is not just the will of a cantonal equality office or feminist associations, or this, or that association. It’s really society as a whole.⁴³

This example shows that in those cantons in which ‘Gender Equality Offices’ are in charge of the issues around domestic violence and violence against women, the IC gave legitimacy to ideas that already existed, and reinforced the policy path that was already taken. The treaty provided an opportunity to strengthen the message on the need to implement measures in this field in the various directions set by the IC: prevention of all forms of violence, protection of victims from further violence, prosecution of perpetrators, and co-ordinated policies. In cantons in which the subject matter of the Istanbul Convention is perceived as mostly an issue of police and justice, the same type of use of the treaty could not be observed.

Chapter 5 will present the sequel stories to those uses which have led to the engagement of the relevant subnational political authorities with the treaties and we will categorise patterns of this engagement. However, as mentioned in Chapter 1, subnational actors regularly use treaties without the later engagement of the political authorities. At the end of Chapter 5, we will summarise the favouring and limiting factors and the potential that a use of a treaty by a subnational actor succeeds in stimulating the authorities’ engagement.

4.4 Discussion and Conclusion

This chapter presented the variety of uses of treaties by actors at the subnational level. The two studied human rights treaties are used (a) to set an issue on the cantonal political agenda and (b) to support new or existing claims. The actors using treaties thereby try to push for the engagement of the subnational political authorities with the treaty and ultimately the adoption of policy measures. Treaties like the IC and the CRPD can be used as a tool in political struggles to contest, reform or improve local norms regarding disability, gender equality or violence against women and domestic violence. As Heyer shows about the CRPD in Germany and Japan, the adoption of the CRPD ‘offered a new arena for activists to draw attention to those rights and to put pressure on their governments to enact reforms’ (Heyer, 2015, p. 204), and provided ‘a powerful awareness-raising tool for activists’ (Heyer, 2015, p. 209). We confirm these observations in our two case studies, extending the analysis made for activists to specialised policy bureaucrats and parliamentarians who are committed to a cause (gender equality, women’s rights, disability rights) (Bereni, 2021; Bereni & Revillard, 2018; Childs & Krook, 2009; Revillard, 2019; Vanhala, 2011). Thus, while human rights treaties could a priori be conceived as constraints to subnational authorities, they also open a ‘window of opportunity’ (Kingdon, 2014) to actors for whom using a treaty—as a whole, or with specific obligations—matches with their own interests. Certain specialised bureaucrats use treaties to legitimise existing policies and the approach that they promoted so far, i.e. their framing of the public problem (Brown, 2018; Delage et al., 2020). This legitimation enables them to further develop the existing policies in the path already taken—placing reforms and new measures on the political agenda, and requesting additional resources –, and to strengthen their leading and co-ordinating position as well as their legitimacy as a policy focal point in the field of public policy (Bourdieu, 1994; Dubois, 2012), i.e. in their relations with the other actors involved in a policy process.⁴⁴

Subnational parliamentarians also make a variety of uses of treaties: requesting their implementation or measures to comply with specific obligations, mobilising them as legal and political arguments to support their claims, building them on the basis of the treaty (cognitive resource). The members of cantonal parliaments who use treaties are the most often committed to a cause (equality’s and women’s cause, disability rights’ cause, human rights). In this sense, they use the treaty to advance their cause’s interests, also because the treaty matches with these interests. In doing so, they can be analysed as international law intermediaries (more specifically agenda-setting intermediaries), performing an intermediary function (Pélisse, 2019; Talesh & Pélisse, 2019) between the global and local levels by translating and using international treaties in subnational policymaking processes, as we demonstrated elsewhere (Miaz et al., 2024).

The two studied human rights treaties provide important legal, political and cognitive resources to subnational actors to set an issue on the agenda, to frame a public problem, to argue their claims and to impulse policy processes (for a summary, see Table 4.1). Studying how actors refer to treaties, we also observe that their uses are not predetermined by some systematic legal analysis, but rather are pragmatic and crafty.

Table 4.1 Variety of uses of human rights treaties (summary)

Human rights treaties can support subnational actors to make the most of their agency. Despite the usually very significant distance between subnational actors and those who made the international treaties, subnational actors can make active use of these obligations, by adapting them to the local context in accordance with their goals and interests.

However, not all actors are equal. The role of legislators in taking the first steps leading up to an engagement is relatively marginal, as they are rarely proactive or directly in charge in that regard (Niederhauser & Maggetti, 2023). Instead, specialised policy bureaucrats are particularly prominent at different stages observed in Swiss cantonal policy processes. A small number of them, sometimes single individuals,—those with competencies, expertise, information, motivation and some resources—stand out as key players, who are able to use human rights treaties in accordance with their strategy. At the same time, the ultimate impact of these strategies is highly dependent on the political context of the subnational unit at stake, and in particular on the degree of favourableness of the political majority within cantonal political institutions. In this chapter, we have focused the analysis on subnational uses of international treaties. In the next chapter, we show through which patterns uses of the treaty often result in engagement, i.e. political authorities taking policy and law measures as a result of the treaty.