International law with cantonal twists

At the beginning of September 2024, a popular initiative for the inclusion of people with disabilities was submitted to the Federal Chancellery. The initiative cites the UN Convention on the Rights of Persons with Disabilities (CRPD), which came into effect in Switzerland in 2014. Under Swiss law, this treaty, like all international agreements ratified by the Confederation, must be respected both at the federal level and by all the cantons. However, over the past 10 years, the implementation of this text has had very different results in the different cantons, ranging from amendments to the cantonal constitution or the adoption of new laws to a total absence of legislative adaptations. What impact does international law have at the cantonal level?

“Switzerland's political and judicial landscape is very varied,” says Evelyne Schmid, professor of international law at the University of Lausanne, right from the start. “The system is not black and white. One has to take into account the many different ways in which international law plays a role in the cantons.” With the support of the Swiss National Science Foundation (SNSF), she has joined forces with colleagues in political science to understand what really happens after the Confederation ratifies international treaties. The team conducted interviews with nearly 100 elected representatives, members of several cantonal administrations, and representatives of civil society associations. Their compiled findings have just been published in a book in the Savoir suisse collection (*).

No systematic course of action

A key aspect noted by the study is the lack of a standard procedure decreed by Bern. “Our legal system is a kind of patchwork between what a treaty requires and what it adds to the preexisting agendas of local authorities and politicians, or what seems politically feasible to them,” describes Schmid.

When a treaty affects elements that fall within the remit of the cantons, the practical implementation of international agreements signed by the Confederation takes place on a case-by-case basis, with major disparities, as can be seen in the example of the UN Convention on the Rights of Persons with Disabilities. These differences are partly due to the lack of automatic mechanisms for transmitting information between the federal level and the cantonal administrations, governments and parliaments when a new treaty involves adopting or adapting rules, laws or practices. If none of the people involved – from elected representatives to civil servants in the departments of social affairs, education or health – are aware of the requirements of the international agreement, or if the cantonal government decides that the existing system already complies with them, no changes will be put in place.

Opportunities for change

The flexibility of federalism can lead to situations in which some cantons fail to comply with international law for several years. “In particular, we found that certain treaty obligations were often ignored or taken lightly by members of cantonal parliaments,” confirms Martino Maggetti, a professor of political science who also contributed to the study. “The variability of cantonal political majorities often explains the differences in implementation.”

For example, the canton Basel-Stadt was a pioneer regarding the UN Convention on the Rights of Persons with Disabilities when parliamentarians submitted a motion in 2015, which was subsequently followed by a popular initiative. Socialist parliament member Georg Mattmüller, who initiated the motion, has been the director of the Basel Disability Forum since 2001. This example shows how an international treaty can be used as an opportunity to speed up or put on the table projects that are already in line with the strategic agenda of those involved.

Conversely, a wait-and-see attitude can set in if there are no initiatives from civil associations or political groups committed to the cause in question.

Slowly but surely

At the federal level, things only started to accelerate when Switzerland was evaluated by the UN Committee on the Rights of Persons with Disabilities – as part of the Convention – in 2022. Under the impetus of this report and pressure from the associations and people concerned, a revision of the Federal Act on Equality for People with Disabilities was initiated. In addition, the Federal Office for the Equality of People with Disabilities has published a guide for the cantons on the subject, based on the expert report commissioned by Basel-Stadt and the laws put in place in proactive cantons. “Our system is sometimes slow, but it also serves as a laboratory, where the cantons draw inspiration from each other,” Schmid points out.

One of her coauthors Matthieu Niederhauser, who is a Junior lecturer at the Institute of Political Studies, compares Swiss federalism to “a hyper-complex machine, built by 26 mechanics working in an often uncoordinated way, which is not always efficient, but which moves forward nonetheless.” It is a machine that international law can sometimes speed up, sometimes jostle a little, but without really disrupting.

(*) E. Schmid, M. Niederhauser, J. Miaz, M. Maggetti and C. Kaempfer: Les cantons face au droit international. Savoir suisse (2024)