Bypassing the Nation State? How Swiss Cantonal Parliaments Deal with International Obligations
Projet funded by the Swiss National Science Foundation (2019-2023)
Today, international law frequently requires legislation by domestic parliaments. Yet, a thorny problem that international law continues to face is precisely its limited ability to influence the behaviour of domestic legislators and the ‘relative impermeability of national systems to international legal imperatives’ (Cassese 2012, 188). Moreover, the expansion of international law and its shift away from regulating interstate relations towards a complex system of governance virtually concerning all societal domains has sparked opposition. Starting with the premise that ‘the future of international law is domestic’ (Slaughter and Burke-White, 2006), we claim that the challenges at the intersection of international obligations and domestic legal realities are particularly acute with respect to parliamentary processes located at the subnational level. Domestic legislatures, let alone subnational parliaments, have, however, been largely overlooked so far both internationally and in Switzerland and existing research has predominantly focused on courts rather than on domestic legislative actors. Although the literature recognises the importance of national and subnational legislative actors for the effectiveness of international law, when and how cantonal legislatures engage with international obligations has not yet been systematically studied.
To fill this gap, we are building a research team of legal and political science researchers to answer two tightly connected questions. First, we want to find out through which formal and informal mechanisms cantonal parliaments and other actors involved in cantonal legislative processes engage with international obligations that require them to legislate and that are contained in two sets of international treaties: i) selected obligations related to the protection of human rights of particularly vulnerable individuals (such as Travellers, persons with disabilities, or undocumented minors) and ii) selected obligations from the bilateral agreements between Switzerland and the EU. These two groups of obligations are chosen to explore the impact of issue-specific factors, such as the degree of legal and de facto autonomy of the subnational level, which is assumed to be perceived as quite high for the former and relatively low for the latter. Second, we would like to know when and how cantonal parliaments engage the most and explain variations in the patterns of engagement and eventually implementation of international law. In this context, a special attention will be given to parliamentary structures and mechanisms in Swiss cantons that potentially support cantonal legislative actors to recognise, influence, defy or fulfil international obligations, such as proposals and messages by the cantonal and federal executives, the set-up of the secretariat, parliamentary committees, consultation procedures, the solicitation by federal agencies of cantonal information for the reporting to international supervisory organs or the practice of intercantonal conventions and conferences. We will base our analysis on an examination of the status quo and on an empirical comparative cross-case study in selected cantons to allow for sufficient variation in the variables of interest while enabling cross-case comparability. We will combine doctrinal and socio-legal research and empirical political science research to tackle the four research modules needed to achieve our research objectives. By focusing on Switzerland as a crucial case, this research has fundamental and wider implications for the study the domestic implications of international law, parliamentarism and for the scholarship on the ‘denationalisation’ of the nation-state. Notably, our analysis will provide a nuanced conceptual and empirical basis for discussing the complex relationship between international law and the Swiss legal and political system. It will also enlighten and qualify the debate about either a near complete loss of discretion of the subnational legislator or, vice versa, arguments about a lack of influence of international law on subnational lawmaking processes.