Keywords

6.1 Taking Stock

The study of the way Swiss subnational political authorities engage with international human rights treaties suggests that obligations contained in a human rights treaty do not simply impose restrictions on the actions of subnational actors. Instead, a small group of specialised subnational actors interpret and actively use human rights treaties to achieve their goals. More specifically, as outlined in the following two sections, our study has shown that subnational actors can use the treaties in various ways, consequently shaping how cantonal political authorities engage with them, in the view of ensuring their implementation (see Fig. 6.1).

Fig. 6.1
An illustration of implementing international treaties. Human rights give opportunities and constraints for subnational actors, namely, use 1, 2, and 3. 1 and 2 point to other goals, 2 and 3 to engagement by political authorities leading to outcomes via legislative and street-level implementation.

Implementing international treaties

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6.1.1 Pre-ratification Phase and Implementation Strategies

Our study first revealed the importance of researching the pre-ratification procedure. Indeed, this procedure provides the national government with an opportunity to interpret the Convention, thus shaping the preferences of subnational units and orienting future implementation. We show that the government uses this procedure to put forward its narrative about the implications of ratification and thus convince domestic institutional actors, including subnational ones, to support ratification. Consequently, this procedure influences how political authorities will engage with the convention.

Post-ratification, we observe that implementation processes follow diverse patterns. In the case of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, better known as the Istanbul Convention, several state entities responsible for implementation designed implementation strategies, in what looks at first sight as a top-down process. For the the United Nations Convention on the Rights of Persons with Disabilities (CRPD Convention on the Rights of Persons with Disabilities (CRPD)), despite the establishment of a focal point responsible for implementation, we observe that there has been no explicit implementation strategy at the federal or inter-cantonal level. Then, academic experts stepped in and produced alternative tools to lead the implementation process. In any case, the mechanisms designed to elicit subnational engagement with the treaties are of a soft nature. They essentially correspond to information mechanisms, which seek to influence the behaviour of the subnational authorities through communication and advice. This enables the large leeway and the important role of subnational actors, who can use international treaties to achieve their goals, and often shape the engagement of subnational political authorities.

6.1.2 Uses

Our study has shown how subnational actors use human rights treaties to shape political agendas (Chapter 4; Jones & Baumgartner, 2005) at the cantonal level. Although treaties can be seen as constraints for subnational authorities, they also offer opportunities for actors to advance their interests. Specialised policy bureaucrats such as the director of the Equality Office in the public administration, the cantonal delegate for equality, or the head of the cantonal administration for support measures for people with disabilities have a prominent role therein. By making the most of their expert knowledge and connections with the international and federal level, they can use treaties to legitimise existing policies, gain resources, and reinforce their leading and co-ordinating position as focal points in policy processes. Subnational parliamentarians, i.e. members of cantonal parliaments, and especially those who are members of relevant parliamentary committees, can request the implementation of specific obligations and use treaties as legal and political arguments to support their claims, such as those related to equality, women’s rights, and rights of persons with disabilities. Civil society actors can remind authorities of their legal obligations and can formulate and campaign around specific demands or suggest concrete implementation options. Academic experts can also, for instance, provide expertise on the interpretation of the obligations or on comparative examples in which certain options were tested.

As such, treaties offer important legal, political, and cognitive resources for subnational actors to set an issue on the agenda, frame a public problem, and impulse policy processes. Studying how actors refer to treaties suggests that the actors’ uses are pragmatic and ‘crafty’ rather than predetermined by systematic legal analysis. As explained in Chapter 3, there is no linear implementation process to follow when it comes to implementing human rights treaties. Actors do not primarily consider treaty provisions as containing obligations to be fulfilled, but rather as a catalogue of opportunities to be selected according to their function and meaning they could acquire at the local level. Subnational actors can actively use these obligations by adapting them to the local context in accordance with their goals and interests. As such, international human rights treaties can provide a way to legitimise existing approaches or offer opportunities to reshape public policies in a given direction. Thereby, the processes through which international obligations are implemented at the subnational level are complex and iterative, involving both top-down and bottom-up dynamics. Implementing international human rights treaties is a continuous and incremental process that involves back-and-forth interactions and feedback loops, also entailing considerable room for manoeuvre of the involved actors. In that regard, it is nonetheless worth noting that not all actors are equal. As mentioned, specialised policy bureaucrats are particularly prominent at different stages in Swiss cantonal policy processes, with some standing out as key players—possessing the competencies, expertise, information, motivation and resources—who are able to exploit the opportunities provided by international human rights treaties and use them in accordance with their strategy. These actors are small in number but potentially very effective, factually working as policy entrepreneurs, whose mobilisation is fundamental in order to articulate policy ideas on the agenda of cantonal policy makers, open new windows of opportunity (Kingdon, 2014) and eventually trigger policy change (Mintrom & Norman, 2009). As we will see in the next section, the impact of these strategies is, however, highly dependent on the political context of the subnational unit at stake and the degree of favourableness of the political majority populating cantonal political institutions.

Contrariwise, the role of legislators is more marginal than what one could have expected, as members of cantonal parliaments are overall rather passive and, for the vast majority, they do not seem to make active use of international human rights treaties. This is not entirely surprising, as the literature has already pointed to the declining power of parliaments confronted to dominant executives, especially at the subnational level (Downs, 2014), whereby ‘the initiative and control functions of parliaments are expected to be weak, with parliaments instead being confined to the role of ratifying bodies’ (Benz & Papadopoulos, 2006, p. 3). It is also a Swiss peculiarity that semi-professional members of parliament are confronted with a more resourceful federal administration (Di Capua et al., 2022; Sciarini, 2015; Sciarini & Fischer, 2019) which in turn plays an increasingly important role in policy processes (Varone & Giauque, 2022). Furthermore, it is generally accepted that ‘internationalization increases the role of governments vis-à-vis other domestic actors (i.e. parliament and interest groups) who do not have similar strategic resources’ (Papadopoulos, 2008). This gap is even larger at the subnational level, where members of cantonal parliaments (cantonal MPs) are weakly professionalised and may be unaware of specific developments of international law: in most cantons, they spend less than 20% of a full-time equivalent on their parliamentary occupation (Eberli et al., 2019). And yet, the marginality of cantonal MPs is still puzzling and, in particular, potentially leading to political contestation. Even though specialised bureaucrats may have the best intentions, and indeed work for the greater good, they are less directly accountable to citizens than what parliamentarians would be, thus raising questions about the need for reinforcing the democratic legitimacy of these practices through a more active role of subnational legislators.

It is worth noting that, even if the number of MPs using human rights treaties is limited, some specific legislators can nonetheless have an impact. First, we observed that some members of parliament who are specifically committed to human rights or to a cause covered by a treaty (equality, women, or disability rights) play an important role in the process through which cantonal authorities engage with human rights treaties. These particularly committed parliamentarians participate in placing the implementation of the treaties, or of specific obligations, on the cantonal political agenda. They can also use the treaties to relay the claims of civil society actors, social movements, or people concerned by the treaties. Second, members of parliaments can also acquire more leverage as they become involved in committees working on legislative proposals and reforms that lead them to work with the treaties and on their implementation. In doing so, they become aware of the treaty and participate in defining an engagement through their amendments or by requesting the government to take measures.

6.1.3 Engagement of Political Authorities with Human Rights Treaties

Our study identified three different types of engagement of subnational political authorities with human rights treaties, by which political authorities aim at ensuring their legislative and practical implementation. These types of engagement sometimes follow directly from the uses of the treaties by other actors, such as individual bureaucrats or civil society. As such, they include those that directly aim to implement the treaty, prepare for implementation or comply with specific obligations. In addition, there is a type of embedded engagement, where the treaty or specific parts thereof are used to support a policy change or legislative reform whose main goals are not to implement the treaty and that concern a domain close or related to the treaty. Conversely, uses that do not lead to engagement involve placing the issue of treaty implementation on the political agenda without resulting in any tangible change. Engaging with human rights treaties requires a comprehensive approach that involves enacting laws, making reforms, establishing new rights, allocating budgets and developing action plans. When public policy aligns with the treaty’s approach, engagement with the treaty reinforces and legitimises existing efforts and measures, providing opportunities for advancement and evolution. In cantons where the treaty requires significant changes, the treaty creates a window of opportunity to start changing the policy paradigm and take a new policy path. Initiating engagement involves institutionalisation and the impulsion of a new public policy, establishing a new institutional framework and empowering new actors through the creation of new bureaucratic positions or even new offices, in cantons where there were only few (or almost no) concrete and unified public policy in the domain concerned by the treaty. Issue-specific engagement concerns specific obligations of the treaty, which can be part of a broader engagement with the treaty or involve going further with an obligation. Embedded engagement occurs in cantons with well-developed public policies in the domain of the treaty, where policy bureaucrats or members of cantonal parliament can use the treaty or specific obligations as arguments and take measures that can be related to the treaty and that are embedded in a broader project that does not mainly aim at implementing the treaty.

Finally, uses not leading to engagement occur in cantons where the issue of treaty implementation is put on the political agenda but no concrete measures are taken. This can be due to various conditions, including the weakness of political parties supporting the issues under consideration in the cantonal parliament and government (especially left-wing ones in the field of human rights law), an unfavourable balance of power, an underdeveloped existing policy, weak financial resources and no specialised bureaucracy. Small, rural cantons are likely to find themselves in such situations, albeit not exclusively. These structural limitations can be at least partially overcome, however, when the federal level takes its role of providing guidance seriously, and cantonal institutions consequently work under the shadow of the hierarchy (Héritier & Lehmkuhl, 2008), and even more so when small cantons can rely on their counterparts within platforms aiming to structure and organise co-operative horizontal interactions, such as intergovernmental cantonal conferences (Behnke & Mueller, 2017; Schnabel & Mueller, 2017). In these venues, mutual learning processes might occur, facilitating the implementation of complex procedures, while also allowing actors to create new coalitions that may be instrumental for confronting local political opposition.

6.2 Main Implications

To conduct our inquiry, we relied on a systematic case study methodology based on document analysis and in-depth semi-directive interviews with different types of actors on the two investigated treaties: The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, better known as the Istanbul Convention (IC); and the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Our analytical approach is context-sensitive, insofar as it focuses on the micro-level determinants of the observed regularities and variations in the preferences, behaviour, and consequent aggregate outputs (Coleman, 1994). Specifically, we look at the implications of how local actors use human rights treaties for the engagement of cantonal political authorities with these treaties. This research strategy allowed us to generate a fine-grained understanding of the processes at work and of the perceptions of the relevant actors therein. However, following this approach, the external validity and the limits to the generalisability of our results require special attention. In particular, it is worth discussing the scope conditions under which our main findings are expected to hold. Scope conditions neither explain nor determine the phenomenon under investigation, but they restrict the applicability of a complex causal relation and define the conditions for observing a given result. More specifically, they can provide evidence about relevant contextual variables, and thereby offer an instrument to delimitate the context in which hypotheses apply (Falleti & Lynch, 2009; Foschi, 1997; Maggetti, 2015).

Against this background, a number of factors can be distilled from our research, which could possibly work as scope conditions. As scope conditions typically consist of structural elements that shape (but do not fully determine) political actors’ identities, perceptions, goals and orientations, and, ultimately, their actions (Scharpf, 2000), we purposively focus on three institutional factors. The first condition allowing subnational actors to make their own use of international treaties is the existence of a certain room for manoeuvre at the local level. Such a room for manoeuvre derives from both the autonomous political authority attributed to the federated states and the distance of actors from the central government. Second, the international treaty under consideration needs to imply—as is typically the case—flexibility in implementation. A flexible approach to implementation involves the attribution of more leeway to actors targeted by the rules and to those in charge of their implementation in adapting to the local context and to their own preferences, i.e. subsidiarity, for instance by setting objectives rather than strict rules, offering alternative options, allowing for a margin of appreciation of the relevant actors (Treib et al., 2007). The third condition is the presence of issue-specific policy competencies, involving political actors—usually, specialised policy bureaucrats—who are entrusted with specific tasks in the areas potentially related to the treaty. The attribution of these tasks allows these actors to claim issue ownership and to develop a credible expertise in the issue area, leading to the emergence of an epistemic community (Niederhauser & Maggetti, 2023).

Under these conditions, as observed in the Swiss case with respect to the two examined human rights treaties, a small number of policy entrepreneurs—possessing specific expertise and with a high intensity of preferences—located at the subnational level are key in triggering purposive uses of the international treaties and thus favouring the engagement of the political authorities of the subnational unit. In turn, their effectiveness is affected by the presence of political coalitions that support or oppose the proposed reforms.

The three above-mentioned institutional factors correspond to some of the main defining features of multilevel polities. This implies that we can possibly extend our findings to other multilevel democratic systems, where background factors are, broadly speaking, comparable, namely when subnational human rights implementation is at stake in other federal democratic states or devolved jurisdictions. For instance, similar dynamics are possibly observable in the United States, where federal institutions largely delegate to states the duty to conform their practices with human rights treaties, and states are keen to retain responsibility over areas that fall under their control. While this situation enables the development of bottom-up, contextual solutions, it is also creating an uneven situation across the country, with some of them falling short of international obligations (Spiro, 1997).

6.3 Looking Forward

Our research points to some blind spots that deserve further attention.

First, while our research has focused on the relationship between rule-makers (governments interacting at the international level) and rule-takers (or targets, at the subnational levels), and specifically on the role of various actors who play an intermediation function (Abbott et al., 2017; also see: Pélisse 2019; Talesh & Pélisse, 2019), rule beneficiaries, i.e. the individuals who are supposed to benefit from increased protection, need to be considered more explicitly. In particular, it would be important to examine how the various uses of treaties and forms of engagement at the subnational level have an impact on the prospected rule beneficiaries. In that regard, it is possible to expect that different uses and different patterns of engagement are associated with different outcomes. For instance, one could assume that when the engagement of political authorities involves a significant bottom-up component, it will more accurately account for the real situation on the ground and therefore be more effective, and the allocation of human and financial resources more sustained. Moreover, it would be particularly relevant to question how international human rights treaties impact the legal consciousness (Chua, 2019; Ewick & Silbey, 1998; Sarat, 1990) of the people concerned (e.g. persons with disabilities, victims of violence against women or domestic violence), especially their rights consciousness (Merry, 2003). The CRPD, for example, seems to have changed the perception certain persons with disabilities conceived the rights they have (and they can claim) and what policy change they can claim for. Besides, this questioning on international law consciousness could be extended to activists and civil society actors to examine how treaties potentially change the way they frame their cause, their claims, their strategies, and their actions.

Second, we did examine implementation processes, especially from the perspective of legislative implementation, but the street-level dimension of implementation has not been directly tackled in our study (Buffat et al., 2016; Lipsky, 2010). However, other actors that hold less institutionalised positions than policy bureaucrats and legislators are also likely to be influential at that level and thereby deserve attention. For instance, studying the day-to-day practices of frontline actors such as social workers would be crucial to examine the extent to which positive obligations derived from the treaties become enshrined into local contexts. Furthermore, it is important to look at the impact of non-institutional practices. As a matter of fact, civil society actors—such as NGOs, charities, and foundations—may draft guidelines inspired by and/or referring to international treaties, which are diffused through more or less formalised channels to directly target street-level actors, such as teachers and police officers, possibly affecting their behaviour.

Third, as soon as local political authorities engage with an international treaty, the latter become institutionalised, and therefore likely to deploy long-term effects on subnational policy processes. As such, a human rights treaty can have a gradual but transformative impact on public policies in the related areas. This type of policy change can occur especially through regulatory layering, corresponding to a process by which the incremental adoption of new rules and the related organisational developments, e.g. the creation of specialised offices in the public administration, eventually alter the logic of the regulatory framework (Maggetti, 2014). This implies that even changes that appear marginal and almost irrelevant in the short term can significantly modify the situation on the ground in the medium-long term. International human rights law thus matters: the accumulation of small changes over time and the degree of coherence of the trajectory of reform could indeed induce a paradigmatic shift in the way the issues at stake are dealt with by the relevant local policy communities. Therefore, such trajectories would also need to be studied in a comprehensive, integrated way, accounting for their historical evolution.