The Different Ways in Which Subnational Political Authorities Engage with International Human Rights Treaties

Abstract

Engagement with human rights treaties occurs when the political authorities of a subnational unit try to understand an international treaty and intend to take policy measures to deal with it with a view to its (further) implementation. Our results indicate that there are three different ways in which political authorities engage with treaties: implementation-centred engagement, initiating engagement and embedded engagement. We base this typology on examples from our two case studies on the Istanbul Convention (IC) and the Convention on the Rights of Persons with Disabilities (CRPD), providing a granular understanding of what happens when subnational authorities commit to deal with a human rights treaty. At the end of this chapter, we discuss the conditions favouring and limiting the chances that the uses of treaties succeed in stimulating the engagement of political authorities and we offer a comparative outlook to distil similarities and differences in the patterns of engagement of subnational political authorities with the Istanbul Convention and the CRPD.

5.1 Introduction

We saw in Chapter 4 how subnational actors use international human rights treaties in several ways in subnational policy processes. This chapter now looks at how subnational political authorities engage with them. As explained in Chapter 1, engagement occurs when the political authorities (i.e. parliament and government) of a given subnational jurisdiction intend to take policy and legislative measures to deal with an international treaty with a view of (further) implementing it. When subnational actors use human rights treaties, these uses can stimulate further uses by other actors and sometimes the engagement of the political authorities. Understanding and systematising the patterns of such engagement is the objective of this chapter. Exploring these patterns of engagement shows how international human rights treaties stimulate dynamic policy processes, involving various uses of the treaties that interact with each other, leading subnational political authorities to take measures that ultimately result in often self-reinforcing policy changes. Consistent with previous research on human rights implementation and internalisation (Donald & Speck, 2020; Haglund & Stryker, 2015; Risse et al., 1999), we show that engaging with international human rights treaties is an iterative, non-linear process, which does not stop when measures are taken. Our results also indicate that an evolution or a change of policy approach may occur when subnational authorities commit to engage substantively and treaties can become a cognitive framework of reference in a given public policy field (Dubois, 2012), i.e. actors of this policy field (specialised policy bureaucrats, frontline workers, CSOs, social movements and activists, people concerned) increasingly refer to the treaty not only as a legal reference, but also as a cognitive one to (re)frame their work, the public policy, but also their needs, claims and expectations.

Engaging with a treaty does not guarantee its ultimate implementation but denotes a key shift when political authorities take a step towards a treaty’s implementation. We invite readers to refer to Chapter 1 where we elaborate on the relationship between engagement, implementation and compliance. Studying the variety of uses of a treaty offered us important clues to understand how the engagement of political authorities with a treaty comes about. The next step is now to analyse the different patterns (or types) of engagement as a better understanding of such engagement will provide valuable information on the subsequent implementation processes.

We will proceed as follows. We will identify three different patterns of engagement—according to the weight given to the human rights treaty in the process, the goals of the policy process, the types of measures taken, and the types of cantonal trajectories (existing measures and policymaking process).

5.2 Patterns of Engagement

Based on our two case studies on the Istanbul Convention and the CRPD in Swiss cantonal jurisdictions, the first pattern we observed is an engagement of the political authorities that aims at implementing the treaty either ‘as a whole’ or by focusing on at least one specific issue (Sect. 5.2.1). Second, we introduce the concept of initiating engagement, which we observed in cantons that lack existing measures in the policy domain and have generalist administrations (typically the Social Affairs Office). In such cases, these administrations require additional resources to actively initiate engagement with the treaty (Sect. 5.2.2). Third, embedded engagement occurs when the treaty is used as a cognitive, legal, or political resource alongside other resources. In this case, engagement with the treaty or parts thereof occurs as part of a broader project that extends beyond or alongside the specific issue covered by the treaty and whose main goals are not directly related to implement the treaty or specific obligations (Sect. 5.2.4). These patterns of engagement can sometimes overlap.

5.2.1 Implementation-Centred Engagement

The first, main and most frequent pattern of engagement is an implementation-centred engagement, i.e. an engagement that aims at implementing the treaty. In this pattern, subnational political authorities (i.e. parliament and government) take legislative (new law, legislative reform) and/or other policy measures (action plans) with a view to (further) implementing the treaty. This pattern of engagement is often a progressive, ‘step-by-step’, process opening a policy path. Implementation-centred engagement involves taking stock of the existing measures and often begins with an identification of the needs on the ground. Implementation-centred engagement revolves around the idea that a treaty or a specific aspect or obligation contained therein must be implemented, in other words, the treaty is the starting point.

How does implementation-centred engagement come about? The process leading to an implementation-centred engagement can involve multiple steps and often passes through one or the other mechanisms described in Chapter 3, and the combination of uses of the treaty by other actors tends to result in a stronger level of engagement. Through this process, a new policy orientation may emerge, with the treaty gradually becoming integrated into the common cognitive framework of policymakers and gaining prominence. Implementation-centred engagement involves political authorities adopting a policy path that takes the treaty as a starting point. This path may either reinforce an existing approach or give rise to a new paradigm or direction inspired by the treaty.

We distinguish two sub-types of implementation-centred engagement: law reform and action plans. The first approach involves enacting new legislation or revising existing laws to align with the treaty’s obligations (Sect. 5.2.1.1). The second approach is bureaucratic in nature, where the authorities develop an action plan to co-ordinate and organise public policy efforts and new measures in the relevant field (Sect. 5.2.1.3). Both approaches can be accompanied by the allocation of additional financial resources and the creation of new positions or institutions to oversee and co-ordinate the implementation of the new law or action plan.

First, we will now turn to implementation-centred engagement in the form of legislative measures, either to implement a treaty as a whole or a specific issue.

5.2.1.1 The Legislative Way: A New Law or a Law Reform to Implement the Treaty as a Whole

Implementation-centred engagement with a treaty can be achieved through the adoption of new legislation or adapting existing ones. In these processes, law is an instrument of the implementation of a treaty. In these cases, the need for implementing the treaty is the main argument supporting the legal changes. The following legislative reform in the canton of Neuchâtel illustrates this type of implementation-centred engagement.

The political authorities in Neuchâtel engaged with the Istanbul Convention when they started the process of what became a new law on domestic violence adopted in November 2019.¹ The authorities initiated the law reform to align the existing legislation with the requirements of the Istanbul Convention. As mentioned in Chapter 4, the cantonal Equality Delegate played a decisive role by using the Istanbul Convention to support her draft legislation. She convinced the Cantonal Minister responsible for her office to present draft legislation to the cantonal parliament and the report that she prepared mentioned that the Istanbul Convention ‘opens a new era in the fight against [violence against women and domestic violence]’, and that the canton ‘will be able to honour its obligations coming from the signature of the Istanbul Convention’.² To the Equality Delegate, ‘the Istanbul Convention is actually more adapted to today’s times’³ and brings new definitions and new measures in this policy domain. Furthermore, ‘the Istanbul Convention makes a very clear link between domestic violence and inequality’.⁴ As we explained in Chapter 4, the Equality Delegate was able to use the Istanbul Convention to support her draft legislation, strengthening the framing of the issues of domestic violence and violence against women that was already present in the cantonal policy. This use developed into an implementation-centred engagement by the political authorities. A lawyer involved in the preparation of the law recounts how the specialised bureaucrats considered the treaty against the background of existing legislation and their options to present a draft law to the cantonal legislator:

Are we complying with the [Istanbul] Convention or not? What could we implement? And then there was already the law on the fight against violence in couples and this Istanbul Convention was the opportunity to extend the field of application of this law on violence.⁵

Thanks to the subnational political authorities’ commitment to engage with the Istanbul Convention, the administration started the process by comparing the existing cantonal law on violence in couple relationships⁶ with the IC. As the existing policy already related to several aspects of the IC, the main adaptations concerned the definitions of the types of violence to be addressed and the scope of law (the scope of the former law on ‘violence in couple relationships’ had to be changed to the notion of ‘domestic violence’ used in the IC, which is a more global concept, including persons who are no longer in a relationship, and children). Also, by linking domestic violence to gender inequalities, the Istanbul Convention ‘gave legitimacy to ideas that already existed’.⁷ Thus, the IC played a crucial role in how the issue of domestic violence was framed in this law-making process.

The cantonal administration drafted a report presenting the draft law to the cantonal parliament and explaining that the aim of the new law was to align with the Istanbul Convention. The relevant parliamentary commission relied on this report. During parliamentary debates, cantonal MPs widely supported the draft law. The cantonal parliament of Neuchâtel unanimously adopted the draft law with only minor changes.

This example shows how an international treaty can prompt subnational political authorities to change, support, or reinforce a particular framing and approach to a public issue, leading them to adopt instruments and legal definitions that align with this approach. In doing so, the subnational political authorities engage with the treaty with a view to its (enhanced) implementation.⁸

Similar implementation-centred engagement was seen with the CRPD. However, unlike the IC example, the CRPD’s aims and approach differ from existing cantonal policies as the treaty calls for a revision of the understanding of disability. The CRPD advances the social model of disability (Heyer, 2015; Oliver, 2009), i.e. the treaty understands disability as a condition resulting from a structural problem preventing people with disabilities from carrying out their usual activities in the environment around them (Hess-Klein, 2017). Disability is thus defined as a relative and evolving reality that arises or disappears depending on the environment’s ability to adapt to the needs of the person affected (Barnes, 2019). Given that Switzerland still has a predominantly medical conception of disability, the cantons must undertake significant legislative reforms to move towards a social and human rights-based understanding of disability.⁹

Recently, four cantons (Basel-Stadt, Basel-Landschaft, Neuchâtel, Valais) adopted new laws on the rights and inclusion of persons with disabilities aiming at implementing the CRPD, while at least two other cantons (Geneva, Vaud) started a similar law-making process, and two other ones (Berne, Zurich) adopted laws on services for people with disabilities that aimed to change the support system according to the CRPD. The political authorities in the canton of Basel-Stadt were the first to engage with the CRPD in an implementation-centred way. As we will see, their engagement played a role in the subsequent engagement of political authorities in other cantons. In this canton (191,395 inhabitants in 2021), cantonal MPs filed a motion asking the government to draft a law ensuring equality for persons with disabilities, mentioning the CRPD in the very first sentence.¹⁰ In 2017, citizens asked for a new constitutional provision on equality for people with disabilities. They could do so with the tool of a popular initiative (that is, an instrument of direct democracy allowing citizens to propose constitutional changes).¹¹ The popular initiative explicitly called for the implementation of the CRPD. The cantonal parliament adopted the new law on the rights of persons with disabilities on 18 September 2019.¹² Academic experts and members of the umbrella association of Swiss organisations for people with disabilities were invited to comment on the draft legislation. Other cantons subsequently mandated the same experts to support them in drafting a law reform or a new law. The implementation-centred engagement of the political authorities and the adopted law in Basel-Stadt thus served as a successful example of good practice to engage with the CRPD and this facilitated further uses of the treaty by other actors as well as further engagement by the political authorities in other cantons. We qualify this example as implementation-centred engagement as the treaty serves as the main starting point and argument for legislative reform. As we observed for uses of treaties by subnational actors, engagement by political authorities of one canton can lead to uses and engagement elsewhere as well, which is well-illustrated by this example.

In two other cantons where new laws on the rights and inclusion of persons with disabilities were adopted and in two others where a legislative process is still ongoing,¹³ the same group of experts analysed the existing legislation, and proposed not only a framework law, but also legal changes in other cantonal existing laws. The experts proposed a legal analysis of the CRPD and helped parliaments and administrations to understand what their obligations were, and how they can implement the treaty. As one of these experts explained to us:

It is clear to [most parliaments and also administrations] that something has to be done. But the complexity in this field prevents them from moving forward and they need explanations. And this is something that we often notice when we talk to people from the administration that […] they don’t know what their obligations are. They are unsure how to do it. […] So they need help. And so that’s what we do. We help them clarify what their obligations are.¹⁴

When political authorities of a canton are willing to engage with a treaty in an implementation-centred way, academic and civil society experts can play a key role to facilitate the implementation process. The experts proposed to the cantons to adopt a framework law on the rights of persons with disabilities which is very general, but contains the central aspects of the treaty and, importantly, is designed to lead to later uses of the treaty by a range of subnational actors, including the concerned individuals, contributing to a dynamic of further implementation.

It’s all the issues that affect the whole administration, the whole legal system. So, these are the things that we propose to put in a framework law. So [the framework law] is very, very general. And if you look at the framework law that the canton of Basel has made, or also the canton of Valais, the revised law. So, these are general issues, but it is a concretisation of the rights that are in the CRPD and this is important. Because it is precisely an experience that people with disabilities make. Without a law, not much happens. And there, especially when there is a subjective right, they have something in hand to make things move and to ask that their rights be implemented effectively. And that is the importance of these framework laws. And so, the framework law is very general, but precisely with very important principles and then, on the other hand, all the sectoral laws, the special laws, as we say, that is another field and normally we should also look at all the laws, to see if they comply with the CRPD.¹⁵

The experts take the binding legal nature of the treaty obligations as their starting point and identify the international obligations of the cantons to propose new laws and legal modifications aiming at implementing these obligations.

We tell them (the cantons) what the CRPD says and what their obligations are. And these are legal obligations. We explain, we give them explanations. We highlight what other countries are doing, what the committee says on the issue and we try to make them understand that they are obliged to do something.¹⁶

When a commitment to engage with the treaty exists, such input has proven to be of high practical relevance. Several cantonal parliaments unanimously adopted legislative changes and those changes came with several innovations and new resources for the disability policy of the cantons, all of which allow for further uses of the CRPD by subnational actors.

The canton of Valais offers another example of implementation-centred engagement. In the canton of Valais (346,562 inhabitants), the Head of the Office for the Co-ordination of Social Institutions¹⁷—started a reform of the ‘Law for the Integration of Persons with Disabilities’¹⁸ into a ‘Law on the Rights and Inclusion of Persons with Disabilities’. The legislative reform started from the administration: ‘we decided we wanted to do something’. There too, we qualify the engagement with the treaty as implementation-centred, with the treaty at its core. The Head of Office ‘saw what [was] happening in other places in Switzerland’, like in Basel-Stadt. She explains that the existing law ‘was already quite good’.¹⁹ However:

[…] There was not this part of rights for people with disabilities [that the CRPD requires]. And then, in order to have a law that also corresponds to the demand of the UN, we contacted the University of Basel, Professor Schefer and his team, and we asked them to propose us a partial revision of our law to integrate it in our law.²⁰

In comparison with the legislative processes in Basel-Stadt, where the starting point was a motion and a popular initiative, this legislative process thus started in the bureaucracy. The legislative process again involved academic experts as well as a support group composed of representatives of cantonal institutions and civil society. The responsible department of the cantonal administration organised a ‘World Café’ (an interactive discussion format) with the help of a local association, Forum Handicap Valais, to ‘include people with disabilities and their relatives in the reflection process related to the modification of the legal bases that concern them.’²¹ The event aimed to facilitate discussions on the legislative modifications that concern people with disabilities, and to identify actions and projects that could enhance their quality of life. The president of Forum Handicap Valais, who is also a member of the Social Democratic Party in the cantonal parliament, explained how the involvement of those directly concerned was important for the later engagement of the authorities with the treaty:

because finally, [persons with disabilities] had the impression that it was the first time that we were going to ask them directly what they thought. [Because] when we talk about disability, we tend, at least until now, to go and discuss with the directors of institutions, heads of service, of some services for disability, but finally do they come to ask us? Well, until a few months ago, at least, that was not the case. So, there is this whole notion, they make a law for us, but they don’t come to consult us, before this process.²²

The ‘World Café’ allowed the identification of the needs and experiences of people most directly concerned and the cantonal political authorities reaffirmed their commitment to implementation-centred engagement with the CRPD. The academic experts then prepared a ‘draft law with comments’ in July 2020, which served as a basis for the legislative revision. Compared to the existing cantonal law prior to the reform, the legal framework underwent significant changes, which included the addition of a new chapter titled ‘Rights of Persons with Disabilities’.²³ Additionally, the office responsible for co-ordinating disability issues was renamed ‘Office of Co-ordination for Disability Issues’. The law’s primary objective, which was previously to promote the integration of persons with disabilities, was redefined to emphasise the realisation of the rights of persons with disabilities in all areas of society. The drafters also adjusted the uses of the term ‘disability’ or ‘handicap’ to reflect a view that disability is a product of social and societal barriers, rather than merely an impairment. The legal terminology was accordingly adjusted to reflect this change. Finally, the implementation of the legal changes called for the creation of a specialised centre for the rights of persons with disabilities, which required additional means (one full-time employee).

In the cantonal parliament, the parliamentary Commission on Health, Social Affairs and Integration dealt with the draft partial revision of the law. The commission made some modifications and adopted the revision with ten voices for, two against and no abstention. Finally, the cantonal parliament unanimously approved the legislative modifications after the first reading. This example of cantonal engagement with the CRPD thus started from the specialised policy bureaucracy—with the approval of the cantonal government—and involved experts, civil society and people with disabilities. It is an implementation-centred engagement because the CRPD was at the core of the process which finally led to a legislative amendment accepted by the cantonal parliament.

To summarise, introducing legislative reforms with the aim of aligning with a treaty represents an implementation-centred engagement with the treaty. This engagement can be initiated by the uses of the treaties by specialised bureaucrats (Chapter 4) or civil society, and it often benefits from the participation of diverse actors. Regardless of who initiates or participates in the process, the parliament and government—as subnational political authorities—engage with the treaty by adopting the new law or legislative reform.

5.2.1.2 Issue-Specific Engagement: A Sub-Type of Implementation-Centred Engagement

Within the implementation-centred engagement, which we mainly constructed to refer to cases in which the main goal of the law project is to implement a treaty ‘as a whole’ (even if not all the obligations of the treaty are eventually implemented), we identified a sub-type of issue-specific engagement. Issue-specific engagement occurs when political authorities decide to engage with only one or some obligations of the treaty. In this type of engagement, they do not engage with the treaty ‘as a whole’, in a comprehensive way, but limit their engagement to a specific issue. This type of engagement can be a first step leading to a more comprehensive implementation-centred engagement or, to the contrary, can follow an implementation-centred engagement by dealing with a specific issue that would not have been dealt with before. We observed some cases in which a law reformed adapted the existing legislation to consider a specific issue raised by a treaty. For example, the modification of the Protection against Violence Act (Gewaltschutzgesetz) in Zurich to extend the scope of application so as to help victims of stalking. This reform notably referred to the obligation made by the Istanbul Convention to punish stalking (art. 34, IC). Hereafter, we present a paradigmatic case that directly aims at implementing one specific article of the CRPD by modifying the cantonal constitution.

In the canton of Geneva, a parliamentary commission studied a draft constitutional law on the political rights of persons with disabilities. The CRPD played no role whatsoever at the beginning of this process. Rather, the authorities’ original idea was to simply align the cantonal constitutional text with the federal legislation to address the practical problem of having to deal with different electoral registers at the cantonal and the federal level.²⁴ The CRPD (nor the European Convention on Human Right) appears nowhere in the report of the government presenting the new law.²⁵ During the commission’s work, cantonal MPs decided to seek input from two professors of constitutional law from the University of Geneva who brought the attention of the commission to the fact that Switzerland was a party to the CRPD and that the treaty was relevant for the canton.²⁶ The commission then invited Caroline Hess-Klein, an expert in disability law and a representative of the CSO Inclusion Handicap.

It was only through these hearings that the parliamentary commission and the cantonal government realised that the draft constitutional law was not aligned with international law. Subsequently, cantonal MPs drafted their own attempt to modify the cantonal constitution. They not only mentioned the CRPD in the explanatory text, but entitled their proposal as a draft law to ‘ensure conformity with the CRPD’ more than a year later.²⁷ The commission of cantonal MPs proposed an amendment to ensure that no one with a disability would be denied political rights at the cantonal level. This amendment was ultimately transformed into a constitutional law reform entitled ‘Constitutional Law Amending the Constitution of the Republic and Canton of Geneva (Implementation of Article 29 of the UN Convention on the Rights of Persons with Disabilities—CRPD) (A 2 00 – 12211)’. On 29 November 2020, a large majority (74.77% of voters) accepted the reform.²⁸

This example illustrates how subnational political authorities did not originally intend a reform to implement an obligation of the CRPD as such. Rather, this type of engagement occurred when the relevant subnational authorities tried to address a concrete issue and ‘en route’ discovered that they were drafting legislative modifications in a way that was not compatible with the CRPD and the authorities then started to look more closely into article 29 of the CRPD on political rights of persons with disabilities. It is worth noting the pivotal role played by the parliamentary commission, academic experts and a civil society representative, who effectively communicated to the parliamentarians about their international obligations and the evolving landscape of international law. By using the treaty as a legal basis, members of the commission drafted a motion engaging with the CRPD to implement Article 29 of the CRPD by modifying the cantonal constitution, eventually improving the political rights enjoyment of persons with disabilities at the subnational level.

This case serves as an example for other cantons who are studying the possibility of following Geneva and also improving the political rights of persons with disabilities in their canton.

We will now turn to the second type of implementation-centred engagement: this time, the route is not a legislative action, but action plans crafted within the cantonal administration.

5.2.1.3 The Bureaucratic Way: Adopting Action Plans

Subnational political authorities can also carry out an implementation-centred engagement with a treaty by adopting an action plan aimed at implementing a human rights treaty. The development of an action plan involves specialised policy bureaucrats who are tasked to implement the treaty or managing the policy area related to the treaty. The goal of such an instrument is to (re)organise the actions, means, funding, instruments, actors, institutional framework and sometimes the goals and policy paradigm (cognitive dimension) in the domain targeted by the treaty. An action plan is about co-ordinating and organising public policy, so we consider it a policy bureaucratic approach (Page & Jenkins, 2005) to implementation-centred engagement. The measures contained in an action plan do not always require parliamentary ratification, but the support of the cantonal government is necessary for practical and financial reasons.

We observed that the adoption of action plans is a particularly popular type of implementation-centred engagement in relation to the Istanbul Convention.

According to a 2023 stocktaking report of the Swiss Conference against Domestic Violence (CSVD), 20 cantons have already adopted cantonal action plans or series of measures mandated by the cantonal government to fight against violence against women and/or domestic violence, with a view to implement the Istanbul Convention. According to our interviewees, action plans have been encouraged by the Swiss Conference against Domestic Violence and the Federal Office for Gender Equality. Most specialised policy bureaucrats whom we interviewed explained that they used the report of the Swiss Conference against Domestic Violence and the seven priority themes to build their stocktaking report, and then their action plan. Thus, they use mediations (Miaz, 2019) and implementation mechanisms (Kaempfer, 2021) to interpret the treaty and relate it to local realities. The report of the Swiss Conference against Domestic Violence thus significantly shapes the ways political authorities at the subnational level engage with the treaty. Specialised policy bureaucrats elaborating action plans refer not only (and even sometimes not at all) to the human rights treaty as such, but also (or only) to the report of the Swiss Conference against Domestic Violence. We qualify this type of engagement as implementation-centred as there is a commitment by the subnational political authorities to deal with the treaty, including when the authorities only refer to the report prepared at the inter-cantonal level.

Elaborating action plans suggests a back-and-forth process between treaty and field needs. The process of developing action plans, much like the process of elaborating law reforms, often involves a collaboration between policy bureaucrats, street-level organisations and civil society groups. For all the action plans identified in this study, the specialised policy bureaucrats are the key actors co-ordinating the elaboration of the action plan. Typically, members of cantonal parliaments do not play a significant role in this process, but we observed that they play an important role earlier in the process when they use the treaty to push the cantonal government to engage with it by elaborating an action plan (see Chapter 4 on the example from Zurich in relation to the Istanbul Convention, where use of the treaty by individual parliamentarians was decisive to spur a later engagement by the subnational authorities). In Vaud, a specialised policy bureaucrat explained that following the adoption of the cantonal ‘Law on the Organisation of the Fight against Domestic Violence’ in 2017,²⁹ the Federal Office for Gender Equality collaborated with the cantonal commission on the fight against domestic violence to develop an action plan. This commission was composed of various bureaucratic services, such as the Welfare and Social Assistance Department, the Youth Protection Service, the cantonal police, the judiciary, and institutions specialising in the treatment of domestic violence, including housing and victim support services.

When subnational authorities engage with the treaty by initiating the establishment of a cantonal action plan, the cantonal administration considers different types of information. First, those elaborating on the action plan recounted that they aimed to respond to the needs and realities of the field. The engagement with the treaty thus implies a variety of actors working ‘on the ground’ to ensure that the action plan is in line with the context-specific needs of the field and the drafters engage in a collective and relational work. Second, in this process, the treaty is used alongside various documents and mediations. The specialised policy bureaucrat responsible for developing the action plan in Vaud explained that she relied not only on the Istanbul Convention, but also on the questionnaire sent by the GREVIO and the documentation provided by the Federal Office for Gender Equality. As a result, the action plans we identified in relation to the Istanbul Convention usually emphasise the seven priority themes identified by the Swiss Conference against Domestic Violence, the CSVD (on the role of the report by the CSVD, see Chapter 3) For instance, in the canton of Valais, the action plan follows these priority themes. It sets nine axes of intervention for the canton, based on both the report of the Swiss Conference against Domestic Violence and the recommendations made in a report that took stock of the existing measures in the canton:

In short, we took these recommendations [of the report of the CSVD] along with the recommendations of the report [established by an external expert who works in an institution for victims of domestic violence in another canton] and that’s really what made up the architecture of our action plan, and for us it was important that the action plan be validated afterwards by the cantonal government, and then that’s really our roadmap.³⁰

Similarly, the subnational government in the canton of Zurich adopted an action plan that draws heavily from the recommendations of the CSVD. The authorities decided to engage comprehensively with the Istanbul Convention as a result of uses of the treaty by two cantonal MPs (see Chapter 4) and tasked their bureaucracy to elaborate an action plan. The administration used, ‘above all’ the report of the Swiss Conference against Domestic Violence.³¹ The cantonal government approved the final list of measures on 31 March 2021³² and each of the 16 measures references specific articles of the Istanbul Convention. The decision also includes an additional full-time position and a stronger Intervention Centre against Domestic Violence.

Just like the ‘in chain’ reaction observed after the adoption of a law on the rights of persons with disabilities in the canton of Basel-Stadt, we also observe a mechanism of diffusion in which specialised policy bureaucrats draw inspiration from examples set by other cantons. For instance, in the small canton of Jura, a specialised policy bureaucrat explains that she followed the lead of the canton of Valais, which had previously adopted an action plan.³³ Therefore, this engagement pattern is also disseminated through examples of ‘good practices’ inspiring other cantons.

In summary, action plans typically start by taking stock of the existing measures and identifying the gaps and needs on the ground. They involve specialised policy bureaucrats, other public sector organisations, street-level actors, civil society organisations and non-profit organisations involved in public policy. In the case of the CRPD, persons concerned have also been involved through consultative commissions and some cantonal authorities initiated the elaboration of an action plan. The subnational government in Zurich adopted such an action plan for the CRPD and another one is being prepared in Neuchâtel. Compared to the Istanbul Convention, however, implementation-centred engagement by way of adopting an action plan seems less common.

5.2.1.4 The Continuation of Implementation-Centred Engagement After Legislative Change or the Adoption of an Action Plan

So far, we have distinguished two sub-types of implementation-centred engagement: one going through the cantonal parliament and the other one based on action plans elaborated by the specialised bureaucracy. What remains to be mentioned in this section is the combination of the two within one and the same cantonal jurisdiction and the progressive and intertwined processes. Implementation-centred engagement with a treaty does not end with the adoption of a law or an action plan. Rather, it is a progressive and continuous process, as seen in Neuchâtel, where after the adoption of the law on domestic violence in 2019, cantonal MPs used various parliamentary tools to ask questions about specific issues related to the Istanbul Convention. In response, in June 2022, the cantonal government presented an information report on the ‘Cantonal action plan for the prevention and fight against domestic violence‘.³⁴ This example illustrates that the implementation-centred engagement with a treaty is an ongoing process that continues as the treaty becomes part of the legal landscape and public policy. Specialised policy bureaucrats, parliamentarians and civil society can all drive law reforms, and while specialised policy bureaucrats are the key actors in action plans, members of cantonal parliaments can play a supporting or agenda-setting role. In other words, the subnational authorities’ engagement leads to further uses of the treaty by subnational actors and those uses, in turn, again stimulate further engagement by the authorities.

Ultimately, the implementation-centred engagements examined in this section have a common goal of implementing a treaty’s obligations and we can say with reasonable confidence that such engagement is an ideal starting point for a dynamic implementation process that promises to lead to practical improvements of human rights realisation in real-life situations.

Not surprisingly, however, not all subnational political authorities opt for what we have termed implementation-centred engagement. We will now turn to what we call initiating engagement.

5.2.2 Initiating Engagement

We observed initiating engagement in certain cantons where there are limited or no previous policy measures in the domain covered by the relevant treaty. Initiating engagement represents a crucial first step towards implementing at least some aspects of the treaty. Typically, an initiating engagement originates with cantonal bureaucracies, who request the establishment of an office or allocation of additional resources. In this context, the treaty is leveraged as a cognitive, legal and political resource by bureaucrats to institutionalise and co-ordinate policymaking in the relevant domain. Contrary to implementation-centred engagement, the treaty is not used as a starting point for legislative changes or an action plan with a view to implement the treaty as such, but initiating engagement aims at the allocation of some resources and mandates to take stock of the situation and suggest improvements.

We have observed such a pattern of initiating engagement with the Istanbul Convention in Schaffhausen. In this small canton (82,537 inhabitants in 2021), the head of the Social Security Office was, among many other tasks, also responsible for addressing issues related to domestic violence, and viewed the Istanbul Convention as a significant opportunity to secure resources, including a new position dedicated to implementing the Istanbul Convention:

So for us, the Istanbul Convention is a huge opportunity. It is the best legitimisation in this field, the need to act, to comply; to do more in qualitative and quantitative terms than we have done so far. This is a huge opportunity. I believe that if we did not have this Istanbul Convention, it would have been much more difficult to politically legitimise doing more in this area.³⁵

During our discussions, the interviewee explained that there was no comprehensive strategy in place to prevent and combat violence against women and domestic violence, and that he thought the domain lacked co-ordination. The initiating engagement by the public authorities led to the creation of a new position: the Co-ordination Office for the Prevention of Violence against Women and Domestic Violence. Its primary task is to identify gaps in this area and work towards addressing them.

We knew that there were gaps, but we had neither the resources nor the mandate to identify these gaps. But we knew that, for example, in the area of perpetrator prevention, also in dealing with children in victim assistance, etc., there are various gaps […].³⁶

The establishment of this new office has facilitated the institutionalisation and organisation of co-ordination efforts within this policy domain.

The position is the Co-ordination Office for the Prevention of Violence against Women and Domestic Violence Istanbul Convention. So it’s really clear: we are the co-ordinating body for the implementation of the Istanbul Convention. […] And there is a clear mandate from the government council for this position. So then to the question, what are your frameworks and requests, and [what my tasks are]. First and foremost, that is really to co-ordinate the actors, to drive the implementation of the Convention and immediately, to promote this interdisciplinary cooperation.³⁷

To summarise this example, a bureaucrat’s use of the treaty succeeded in securing at least an initiating engagement with the Istanbul Convention. The impetus for action first came from the Social Affairs Office, which then led to the establishment of the Co-ordination Office. The cantonal government supported the proposal to create a new position, and the cantonal parliament approved the proposition,³⁸ resulting in the creation of the Co-ordination Office.³⁹ Compared to implementation-centred engagement, the engagement of the subnational political authorities is much more limited: there is no overarching commitment (yet) to implement the relevant treaty as such, but a willingness to initiate a certain institutionalisation and the provision of additional resources to address at least some aspects of the treaty. This initiating engagement was finally followed by a more implementation-centred one through the elaboration and adoption of the cantonal action plan 2022–2026 for the implementation of the Istanbul Convention.

Another initiating engagement also involved a commitment to undertake a preliminary stocktaking exercise and the creation of a new position within the cantonal administration. In the small canton of Glarus (40,370 inhabitants in 2021), a parliamentary intervention by the members of the Social Democratic Party on the Istanbul Convention asked for information about the departments responsible for the issue of violence against women and domestic violence and the implementation of the measures planned by the Convention.⁴⁰ This interpellation was a starting point that led the cantonal bureaucracy to take stock of what exists in the canton and to identify the gaps, based on the report of the Swiss Conference against Domestic Violence.

It was the point where we knew: oh, now we really have to deal with it. I think the [Social Democratic Party] has already hit a nerve to say ‘hey, there is this Convention, where does the canton of Glarus stand’. And that was really the first moment – to be honest – where I think the canton seriously dealt with this Istanbul Convention. And we had to do like a stocktaking: where do we stand, what do we already have, where do we still have to go? And on the basis of this interpellation – which was then also answered to the satisfaction of the Social Democratic Party – we naturally then thought about it internally and knew clearly that we do not yet fulfil some points, we need such a co-ordination office. We need a guardian of this Convention, because otherwise in the day-to-day business, yes, it gets lost. And now we are at this point where we can clearly say: yes, the engagement is there, now we create this office or designate this office and equip it sufficiently.⁴¹

In the bureaucracy, the Head of Social Services⁴² is responsible the prevention and fight of violence against women and domestic violence, but without any resources to fulfil this task. Consequently, the Head of Social Services sought additional resources, especially the creation of a new position (50%) in her office to ‘really implement the Istanbul Convention’.⁴³ Finally, in February 2022, the cantonal government established the domestic violence unit. The responsibilities of this specialised office for domestic violence were defined by a working group that included the Social Services, victim assistance and counselling, and the cantonal police. The unit’s duties are to promote the implementation of the Istanbul Convention and to co-ordinate efforts within the agencies involved.⁴⁴

We observed a gradual evolution of the subnational political authorities’ engagement with the Istanbul Convention: from a modest initiating engagement, it is possible that the authorities begin to move towards a more implementation-centred engagement, strengthening over time the commitment not ‘only’ to take stock and provide some resources, but to conceive that the treaty as such must be implemented. In both examples of initiating engagement presented here, the human rights treaties served as a catalyst for the policy process, resulting in the establishment, institutionalisation and restructuring of the policy domain. These initial steps can pave the way for further engagement with the treaties, such as the development of an action plan or the creation of a new law. Therefore, we refer to these measures as initiating engagement.

In addition to implementation-centred and initiating engagement, a third type of engagement is embedded engagement.

5.2.3 Embedded Engagement

Embedded engagement with a convention occurs when a treaty is used within a legislative project whose main goal is not the implementation of the treaty or compliance with it, nor is the treaty the starting point for the law reform or policy measures. The use of and reference to the treaty are part of the arguments, or even of the cognitive resources in the policy process, but they are not the main ones. Thus, the treaty—usually specific obligations of the treaty—is used as a legal argument among other legal references to justify the reform, which engages with the treaty only on specific obligations. Engagement with the treaty is thus embedded in a broader legislative project. This type of engagement can combine with an implementation-centred engagement.

In Geneva, for example, we observed different intertwined patterns of engagement with the Istanbul Convention, even one aiming at the implementation of the treaty through an action plan. Besides this implementation-centred engagement, we also observed an embedded engagement in the case of the draft law on equality and the fight against gender-based violence and discrimination filed in the cantonal parliament of Geneva on 16 December 2020 by the cantonal government. While the Istanbul Convention is one of several legal references, the draft law’s aims do not centre on the Istanbul Convention. As the Head of the Cantonal Office for the Promotion of Equality and Prevention of Violence explained to us, she initiated work on this draft law even before Switzerland ratified the Istanbul Convention:

We have an equality law which is, which has been elaborated, which is in consultation now, equality and fight against gender violence, so that’s at the Geneva cantonal level, that too was not linked to the Istanbul Convention, we had started that quite a while ago.⁴⁵

The drafters of the law did engage with the Istanbul Convention. For instance, on the issue of sexual harassment, the draft law mentions the Istanbul Convention.⁴⁶ The IC is also used to provide education in line with the treaty’s goal to prevent sexism. Here, the weight given to the Istanbul Convention is not particularly high, probably because the canton of Geneva, compared to many other cantons, already had an elaborate legislative and institutional framework. In this case, the engagement with the treaty happens ‘on the go’, as a welcome additional layer of arguments.

The example above constitutes an embedded engagement with the treaty, as the engagement with specific obligations of the treaty is embedded in this broader, related law project that did not directly aim at addressing the implementation of the treaty. It is worth noting that such embedded engagement may occur in parallel to an implementation-centred engagement with the treaty, where the canton may have taken other measures to implement the human rights treaty.

5.2.4 Synthesis: Types of Engagement with International Treaties

To conclude this section, we identified different types of engagement that we classified through the goals of the process, the types of measures taken and the trajectories of the process. We showed that several types of engagement aim at implementing the treaty or at preparing the implementation of the treaty (implementation-centred and initiating engagement). Besides, we also identified embedded engagement, through which the subnational authorities use a treaty or specific obligations contained therein when they are pursuing a concrete objective during an already ongoing process for which the implementation of the treaty is not the starting point, nor the goal of the project.

Implementation-centred engagement includes enacting laws or making reforms to clarify the issue in question, establish new rights, and provide a solid legal basis for a new policy framework. The process also involves developing and implementing action plans in line with the new policy, ultimately reorganising the entire policy field and its measures. Implementation-centred engagement is a crucial step in the empirical life of a treaty at the subnational level and denotes a shift where decisions are often made which will ultimately lead to better rights implementation.

In cantons where there were only a few concrete and unified public policies in the domain covered by the treaty, initiating engagement can lead to institutionalisation and the impetus of a new public policy. This engagement results in the creation of new bureaucratic positions, new offices specialised in the issue covered by the treaty, and new means to implement the treaty. Thus, the initiating engagement mainly involves new actors and a new institutional framework, which can, as we saw for the canton of Schaffhausen, open the space for a more implementation-centred engagement involving new instruments, a new institutional framework and cognitive changes in public policy.

Finally, embedded engagement often occurs when an engagement with the treaty is included, embedded in a broader legislative project which does not directly aim at implementing the treaty of specific obligations. The embedded engagement is a pragmatic one as the broader law project provides an opportunity to engage (further) with the obligations of the treaty and, at the same time, to legally argue in favour of the legislative project. We expect to increasingly observe this type of engagement as the treaties become part of the common legal landscape of cantonal authorities and as the latter increasingly develop implementation-centred engagement. In doing so, we expect that they will become interested in pursuing treaty-related issues that will lead them to continue to engage with some of the treaty’s obligations by developing public policies in related areas that touch certain aspects of the treaty.

5.3 Comparative Outlook and Conditions for Engagement

This section offers a comparative outlook to distil similarities and differences in how uses translate into engagement and the different patterns of engagement with the two treaties serving as case studies, and we discuss the conditions shaping the turn from uses to engagement and the engagement patterns.

We begin by reflecting on the uses that did not lead to engagement in order to identify limiting factors.

5.3.1 From Uses to Engagement? Factors Limiting Subnational Engagement

In this section, we present cases where subnational actors, such as specialised policy bureaucrats, experts and members of cantonal parliaments, have used the treaty pushing for policy measures, but where political authorities have then declined to take action or simply did not react, i.e. there was no engagement. We classify these uses according to the conditions hindering the engagement with the treaty, and we discuss these conditions. These include the weakness of left-wing political parties in the cantonal parliament and government, an underdeveloped existing policy—an engagement with the treaty implying a significant policy change—a perception of weak financial resources (or potential to increase them) or weak cantonal policy investments, and no specialised bureaucracy. Small cantons tend to be more likely to find themselves in such situations.

Chapter 4 has shown that subnational actors often use treaties with the aim of pushing political authorities to take policy measures (action plans, laws and public policies). When this happens as a result of the treaty, we stated that political authorities engage with the treaty. However, the turn from uses to engagement does not always occur. In certain cantons, we observed that even where there are parliamentary interventions calling for the implementation of the Istanbul Convention or the CRPD respectively, the political authorities do not engage with the treaty and do not take concrete measures. For example, in the case of the Istanbul Convention, several cantons have not adopted specific measures to implement the treaty,⁴⁷ and the same observation is made for the CRPD—probably at an even larger scale—as there are only a small minority of cantons that have adopted laws on inclusion, on the rights of persons with disabilities, and/or on self-determination. We can distinguish two main groups of limiting factors: an unfavourable political context and a real or perceived lack of resources.

5.3.1.1 Lack of Political Will or Unfavourable Political Balance of Power

How can we understand the occurrence of uses not leading to engagement? Several interviewees believe that the main reason for a lack of engagement relates to a ‘lack of political will’, which in turn, according to the interviewees, correlates with the political balance of power in cantonal parliaments and governments.

In Chapter 4, we observed that many uses came from left-wing cantonal MPs, all the more so if they have already been active in relation to issues related to gender equality, or human rights of persons with disabilities. Likewise, we observe that conservative parliaments and/or governments, i.e. a low presence of left-wing politicians, may limit or hinder the engagement with a treaty.

Several interviewees referred to a ‘lack of political will’ to explain the lack of engagement by subnational authorities with regard to the examined international human rights treaties. This was obvious in at least three interviews with members of administrations who lamented the ‘lack of political will’ to give them adequate resources to act in this area. This ‘political will’ refers to political feasibility conditions that are in turn related to the political profile and partisan affiliation of the ministers in charge of these files in these cantons. A head of department of an Office for Social Affairs in a canton where no action has been taken as a result of the Istanbul Convention explained that gender equality and violence against women were not considered a priority on the political agenda.⁴⁸ According to another interviewee, the attitude of the cantonal government and the weight of political conservatism in the cantonal government and parliament limit the possibilities for members of the administrations to propose political or legal measures, as well as additional financial or human resources.⁴⁹

One of the cantons in which we conducted our interviews falls into this category of cantons where, despite parliamentary interpellations in favour of the implementation of the Istanbul Convention, a political majority in the government and parliament—according to our interviewees—do not consider it a priority, or even a ‘political topic’ in the canton. This is a rather small conservative canton with a right-wing majority in the cantonal parliament and government and with the right-wing Swiss People’s Party as the largest political party. As one of our interviewees puts it, the issues of domestic violence or violence against women are topics that ‘are hardly ever discussed in the cantonal government or parliament’.⁵⁰ A staff member of a cantonal service against domestic violence explains that nobody at the cantonal roundtable on domestic violence has ever heard of the Istanbul Convention or of the CEDAW.⁵¹

In this canton, two cantonal MPs from the Social Democratic Party relayed the parliamentary interpellation but removed a question on transgender persons, considering that the inclusion of a reference to transgender persons would have been counterproductive given the conservative context of the canton. The goal was to concentrate on domestic violence and at least discuss the Istanbul Convention.⁵² This interpellation made it possible to obtain an inventory from the cantonal government regarding the measures and infrastructures to fight violence against women and domestic violence but did not lead to an engagement by the political authorities with the Istanbul Convention. An interviewee confirmed that for the cantonal political authorities, the implementation of the Istanbul Convention ‘is not on the agenda, it is not planned’.⁵³

Thus, the ability to use the Istanbul Convention as a political, legal, cognitive or practical resource to achieve the engagement of the relevant subnational political authorities, as well as a window of opportunity, depends not only on civil servants or parliamentarians, but also on the cantonal political context, which shapes the possibilities of seizing the treaty and taking political or legal measures in this area. In the most conservative cantons, a balance of power in favour of the conservative right in the cantonal government and parliament limits the possibilities for legal and political changes related to the Istanbul Convention. Specialised policy bureaucrats, as they anticipate the reactions of their cantonal government and the parliament, cannot use the Istanbul Convention as a resource in the same way according to the cantonal context and balance of power.

5.3.1.2 Lack of Financial Resources

Financial constraints and priorities and the economic context of the canton can also hinder the engagement of subnational political authorities with a treaty. Catherine Le Bris and Pierre-Edouard Weill also explain, on the French case, that local policies to implement human rights heavily depend on the financial and institutional resources of local authorities (Le Bris & Weill, 2022). In small cantons in particular, there is a discourse—and sometimes a political strategy—about the lack of availability of financial resources to invest in new ‘costly’ policy measures, all the more so when the economic context is ‘complicated’. Swiss cantons are sovereign in tax matters but increasing the availability of resources or setting priorities differently is of course politically sensitive. One civil servant explained that ‘change must come from above’ because, while the ‘large’ cantons such as Berne, Zurich, Geneva or Vaud have working groups for the implementation of the Istanbul Convention, smaller cantons have ‘small’ administrations with much more limited means ‘and we can hardly cope with this additional burden’. According to her, it is therefore necessary to go ‘beyond international law’ by making federal laws that will encourage subnational political authorities like the ones in her canton to engage with the treaty and budget the necessary resources for its implementation.⁵⁴

5.3.2 Enabling Conditions: Alignment with Pre-Existing Policies and Strong Specialised Policy Bureaucracy

Effective engagement with human rights treaties requires a comprehensive approach tailored to the specific policy domain. When public policy in cantons aligns, at least to some extent, with the treaty’s approach, engagement with the treaty reinforces and legitimises existing efforts and measures. For example, in certain cantons, especially the French-speaking ones, the fight against domestic violence and violence against women more broadly was already moving in the same direction as the Istanbul Convention. In these cases, ratification of the Istanbul Convention offered an opportunity to enhance existing measures with innovative means and a new dynamic. At the federal level, the authorities adopted an action plan to continue the momentum initiated by the Istanbul Convention. Meanwhile, at the cantonal level, subnational political authorities took measures like the creation of new positions, law reforms, and action plans to engage with the treaty. Federal and inter-cantonal actors supported these processes by playing a critical role in promoting subnational engagement through reports, recommendations, and a national action plan encouraging cantons to take measures, providing them with ‘good practices’ and priorities, and highlighting a federal ‘political will’. Overall, specialised policy bureaucrats were primarily involved in this bureaucratic approach, with parliamentarians playing a smaller role.

Conversely, engaging with the Convention on the Rights of Persons with Disabilities (CRPD) at the cantonal level proved to be more challenging. One major obstacle was the significant paradigm shift (Heyer, 2015) required by the CRPD compared to existing cantonal disability policies. The CRPD emphasises autonomy, self-determination, and inclusion, which differ greatly from most cantonal policies. Therefore, implementing the CRPD requires changes across various sectors of the administration and public policy domains. Furthermore, the Federal Bureau for the Equality of People with Disabilities has fewer resources than the Federal Office for Gender Equality, limiting its capacity to lead or encourage the implementation of the CRPD in the cantons. Despite these challenges, several subnational political authorities have taken steps to engage with the CRPD. Prioritising the revision or adoption of laws over other measures, such as creating action plans and establishing new positions, highlights an approach that seems to more heavily prioritise legislative measures than what we found for the Istanbul Convention. This may be due to disability policy administrations relying on legal experts in their policy processes, or a higher need of legislative changes to ensure the implementation of the treaty obligations. The measures taken promote inclusion, self-determination, and the rights of persons with disabilities in the concerned cantons, constituting an engagement with the treaty. They offer an opportunity to take a new policy path that can have a long-term impact on improving the inclusion of persons with disabilities.

Table 5.1 presents the different types of engagement we identified and summarises the various goals pursued by the policy process, the measures taken, dimensions of policy change, trajectories, and the conditions we identify as favourable to that type of engagement. Lastly, the table indicates in which canton we observed a given type of engagement.

Table 5.1 Different types of engagement with human rights treaties

5.4 Conclusion

This chapter presented an overview of the three categories of engagement that we observed in our case studies on the Istanbul Convention and the CRPD. We observed different patterns of engagement depending on various factors and conditions specific to the cantons where the subnational authorities engage with human rights treaties. Specifically, when a public policy in the domain and direction of a treaty is already well-established in a given canton, the possibility that uses of the treaty lead to implementation-centred engagement is higher than when a canton has no pre-existing policy. Conversely, in cantons that are less receptive to implementation-centred engagement, uses are more likely to lead to a more modest, initiating engagement, which could involve the creation of a new position within the cantonal administration.

This chapter also highlighted that engaging with the Istanbul Convention was encouraged by federal and inter-cantonal authorities and was facilitated by existing policies—conducted by specialised policy bureaucracies—to combat domestic violence⁵⁵ in several cantons, resulting in an effective bureaucratic approach through the adoption of action plans. Conversely, engagement with the CRPD proved to be more challenging due to the substantial paradigm shifts required in cantonal policies regarding disability, often first requiring awareness-raising, legal analysis, and input from academic experts. In all cases, engaging with the treaty has contributed to the implementation in one way or another. As we cautioned in the introductory chapter, engagement is no guarantee for successful or complete implementation, let alone compliance. But this chapter illustrated how engagement is a key phenomenon if we are to understand the various steps that follow when subnational political authorities commit to deal with a treaty.

In the sixth and final chapter of this book, we take a step back, synthesise the results and reflect on what is next in terms of future research.