I Introduction
If someone were asked to name but one typical feature of the Swiss constitutional system, chances are high that the answer would be ‘direct democracy’. Indeed, Switzerland is arguably the state granting the most far-reaching democratic participation rights in the process of lawmaking; and this holds true for both domestic and international law. Since the late 1990s, the concept of ‘parallelism’ – the idea that the same degree of domestic democratic legitimacy should apply to the making of international law as it does to the enactment of domestic law – has been progressively implemented. As a result, from a comparative perspective, the Swiss legal framework on democratic participation in international lawmaking is unique in terms of the actors involved, the phases during which participation is possible, and the intensity and effects it features. Despite the breadth of this legal framework, it is simultaneously very narrowly designed: in its largest parts, it is geared towards just one source of international law – treaties. The ‘age of treaties’, however, seems to be over and informal lawmaking increasingly supersedes formal lawmaking.
In the introduction to this book, the editors note that the ‘horizons of international law have greatly expanded’ and that this expansion ‘affected the two most foundational organizing concepts of this body of law: sources and subjects’.Footnote 1 During the post-1945 period, states were the main players in international lawmaking, often acting under the auspices of an international organisation (IO), and treaties were the main vehicle to bring international legalisation forward. After the turn of the millennium, however, the international institutional landscape changed dramatically and a series of new actors appeared, which notably participate in the production of norms. While these new participants in international lawmaking are as diverse as non-governmental organisations (NGOs), transnational corporations, industry associations and regulatory agencies, they share a commonality: not one of them possesses international legal personality (yet) and, consequently, they all lack treaty-making capacity. Their normative output is thus condemned to fall short of formal international law – they cannot regulate but through informal law.
The Swiss legal framework on democratic participation in international lawmaking, being a child of its time, is largely predicated on a very traditional understanding of international law. Yet, the mentioned structural changes in international law did not go unnoticed in politics and among the broader public. In recent years, there has been a growing awareness that the Swiss mechanisms for generating democratic legitimacy need to be adjusted in light of these new (complex) realities if they are to maintain their function. Still, building new bridges in the context of informal law has proven to be far more complex than it is for treaties: what we praise as the beauties of informal lawmaking – namely that the process and actors are not being forced into a rigid corset – turn out to be the beasts when it comes to grasping the phenomenon in constitutional and statutory terms. International informal lawmaking sets boundaries on democratisation ‘from below’ that do not exist for treaty-making; such limits arise, for example, from the fact that the state may not even sit at the negotiating table. Overall, informal lawmaking greatly complicates the relationship between sovereignty (including domestic democratic self-determination) and international cooperation – and, to some extent, their simultaneous realisation is no easier than squaring a circle. This insight is difficult to accept for a state like Switzerland, where democratic participation in lawmaking is part of its constitutional DNA. At the same time, one tends to forget that Switzerland is one of the most globalised countries of the world and not seldom a driving force behind informal lawmaking projects.
In order to fully grasp the significance of the turn to informal lawmaking for the Swiss legal framework, which governs democratic participation in international lawmaking, it is necessary to take a step back and understand its roots, development and context. Accordingly, this chapter sets the scene by demonstrating that foreign relations law exists in Switzerland, even if this label is rarely attached to the respective set of rules. It lays out two main categories of norms belonging to it, which are those providing substantive guidance for the conduct of foreign policy and those allocating powers in this realm. This will demonstrate that foreign relations are no longer understood as an exceptional state activity subject to political discretion, and thus a prerogative of the executive, but rather as coming within the ordinary constitutional framework and being a competence jointly exercised by the government and Parliament; a result of a steady move towards normalisationFootnote 2 (Section II). It then goes on to describe that, mainly as a reaction to internationalisation, the democratic participation rights in international lawmaking were increasingly bolstered in the 1990s and the early years of the new millennium and the concept of ‘parallelism’, which testifies to the high degree of normalisation in the field of international lawmaking, was progressively implemented (Section III). It then discusses how the shift to informal lawmaking deprives this highly developed, but heavily treaty-oriented, democratic participation mechanism of much of its relevance, how the legislator has reacted to the rising importance of informal law, and what challenges potentially lay ahead in building new bridges (Section IV). A brief conclusion notes that not every boundary can be overcome with a bridge and that globalisation and international cooperation arguably come at a cost to democracy; yet such costs can be reduced with a domestic democratic participation framework, which is not anchored in traditional international lawmaking but reflects the complexities of contemporary international norm production (Section V).
II Swiss Foreign Relations Law: Towards Normalisation
A Is There a ‘Swiss Foreign Relations Law’?
‘Foreign relations law’ has been defined as encompassing ‘the domestic law of each nation that governs how that nation interacts with the rest of the world’, most importantly with other nations and international institutions.Footnote 3 As per Karen Knop, ‘[a]ll legal systems deal with foreign relations issues, but few have a field of “foreign relations law”’.Footnote 4 This statement succinctly describes the current situation in Switzerland where foreign relations law has not yet emerged as a distinct field of study or law. So far, even the term ‘foreign relations law’ has been sparsely used in writings on legal rules governing how Switzerland interacts with other subjects of international law.Footnote 5 Similarly, courses specifically entitled ‘foreign relations law’ are a rare occurrence in Swiss universities as compared to American universities where such courses tend to be more commonplace.Footnote 6 Nonetheless, a densely knit web of legal provisions governing Switzerland’s interaction with other states and international actors is in place and continues to develop.
The Federal Constitution of 1999Footnote 7 contains a series of provisions governing foreign relations, the entirety of which is denoted as the ‘external constitution’ (‘Aussenverfassung’); a term firmly rooted in the constitutional discourse since the adoption of the current constitution.Footnote 8 Indeed, the predecessor Constitution of 1874 regulated foreign relations only in fragments and left various aspects to constitutional practice.Footnote 9 The Constitution of 1999 is the first federal constitution comprising a fairly comprehensive legal framework for the conduct of foreign relations, which justifiably deserves the designation as ‘external constitution’. In terms of substance, the ‘external constitution’ can roughly be divided into provisions allocating authority and provisions containing substantive guidance for the conduct of foreign relations.Footnote 10 These two sets of norms – to which we turn next – are specified and refined at the level of federal acts and ordinances. Further, in some fields, rules have also been developed through the case law of the Swiss Federal Supreme Court.Footnote 11 In sum, foreign relations law is not (yet) treated as a discrete field of law or study in Switzerland, but certainly exists as a matter of fact.Footnote 12
B Substantive Guidance for the Conduct of Foreign Policy
The Constitution of 1999 is novel in that it spells out general foreign policy objectives.Footnote 13 Article 54(2), entitled ‘foreign relations’, represents the key reference point in terms of material guidance for the conduct of foreign policy.Footnote 14 Substantive orientation can further be found in various other parts of the Constitution.Footnote 15 The operationalisation and (to some extent) concretisation of these goals painted with broad brushstrokes takes place through an increasing number of federal statutes pertaining to foreign relations-related activities,Footnote 16 the adoption of treaties, and by means of foreign policy decisions by the authorities.Footnote 17
The constitutional statements providing substantive guidance for the conduct of foreign policy feature varying degrees of abstraction and normativity.Footnote 18 Yet they share a commonality: they all testify to the legislator’s heightened awareness in the 1990s of globalisation and global interdependence and the consequent growing importance of foreign relations. This phenomenon led to an incremental blending of the internal and external dimension of a state’s policyFootnote 19 and the increased difficulty of clearly separating internal forms of state action from external formsFootnote 20 – an insight that, as we will see, provided momentum for the normalisation of foreign affairs.
C Allocation of Powers on Foreign Policy
The second category of provisions of the ‘external constitution’ allocates power between the various levels of government (Confederation and Cantons) and branches of government (executive, legislative and judiciary). These provisions, accounting for the lion’s share of the ‘external constitution’,Footnote 21 are more chiselled and specific as compared to those providing substantive guidance for the conduct of foreign policy. Their content is forged by the tension between the executive’s claim (and need) for a certain degree of flexibility and swiftness when conducting foreign policyFootnote 22 and the quest to give due weight to federalism and democracy. The more internationalisation has progressed and the more foreign policy has shaped the domestic political environment, the more fiercely the question of vertical and horizontal allocation of powers in foreign policy has been debated.Footnote 23 Overall, the tendency is to give more weight to democracy and federalism – after all, both are foundational principles of the ConstitutionFootnote 24 – in order to prevent them being undermined by the externalisation of many policy areas.
As Switzerland is a federal state – the Confederation consists of 26 Cantons, which are ‘sovereign except to the extent that their sovereignty is limited by the Federal Constitution’Footnote 25 – the Constitution of 1999 explicitly addresses the vertical separation of powers: foreign relations are, as per Article 54(1) of the Constitution, ‘the responsibility of the Confederation’, even for matters domestically falling within the competence of the Cantons.Footnote 26 This implies a certain erosion of cantonal competences as internationalisation progresses. It is against this background that the Constitution of 1999, by way of compensation, stipulates that the Confederation ‘shall respect the powers of the Cantons and protect their interests’.Footnote 27 Moreover, the Constitution foresees a role for Cantons in foreign policy affairs, albeit a subordinate one. Concretely, Article 55 confers Cantons participatory rights in foreign policy decisions by stipulating that the Cantons ‘shall be consulted’ if the respective decisions ‘affect their powers or their essential interests’;Footnote 28 and that the ‘Confederation shall inform the Cantons fully and in good time and shall consult with them’.Footnote 29 Further, Article 56, which governs relations between the Cantons and foreign states, authorises the Cantons to conduct their own foreign policy in fields in which they are competent according to domestic federalism and to conclude treaties in these areas,Footnote 30 which is fittingly dubbed ‘small foreign policy’ (‘kleine Aussenpolitik’).Footnote 31 This autonomous foreign policy competence and residual treaty-making capacity of the CantonsFootnote 32 is of considerable practical importance since no less than fifteen Cantons border at least one foreign state.Footnote 33
As regards the horizontal separation of powers, the Constitution is primarily concerned with the allocation of foreign relations competences between the executive and legislative branches, viz. between the government (Federal Council) on the one hand and the Parliament (Federal Assembly) and, for certain matters, the people, or the people and the Cantons, on the other. While some constitutions are based on a rebuttable presumption in favour of executive competence, the Swiss Constitution today follows a shared power approach whereby foreign relations are a domain equally entrusted to the executive and the legislature.Footnote 34 This was not always the case. Under the Constitution of 1874, foreign policy was understood to be a prerogative of the executive whereas the role of Parliament, the people and Cantons was essentially limited to the approval of certain categories of treaties.Footnote 35 In 1994, a revision of the Constitution of 1874 was initiated. Since previous attempts had failed, the mandate for this revision was very narrowly defined, essentially consisting in an ‘update’ (‘mise à jour’, ‘Nachführung’) rather than a redesign: its primary objective was to systematise and streamline the content of the constitutional document and to bring it in line with the then-existing constitutional practice without, however, engaging in its substantive amendment.Footnote 36 Yet, capturing ‘existing constitutional practice’ and drawing a line between documenting the status quo and introducing novel elements proved challenging, and foreign relations law is exemplary in this regard. The provisions (re-)defining the role of Parliament in shaping foreign policy were among the most fiercely debated aspects because they were deemed by some to overstep the ‘updating mandate’.Footnote 37 Indeed, the provisions ultimately adopted reflect a paradigm shiftFootnote 38 as regards the allocation of authority on foreign policy by entrenching a shared power approach. However, this change did not happen overnight but rather started crystallising in preceding years in legislation and practice.
In constitutional terms, the shared power approach is expressed as follows: Article 184(1) stipulates, from the government’s perspective, that ‘[t]he Federal Council is responsible for foreign relations, subject to the right of participation of the Federal Assembly’; while Article 166(1) states, from the Parliament’s perspective, that ‘[t]he Federal Assembly shall participate in shaping foreign policy and supervise the maintenance of foreign relations’. In order to describe this (new) cooperative relationship, which was specified by, inter alia, the Parliament Act,Footnote 39 Swiss constitutional doctrine metaphorically refers to the executive and legislative as ‘fingers of the same hand’ (‘les doigts d’une même main’,Footnote 40 ‘Verhältnis zu gesamter Hand’).Footnote 41 The inclusion of a model of shared competences and intense cooperation between the executive and the legislative in the Constitution of 1999 marks a milestone in the overall trend of erosion of the executive’s monopoly over large parts of foreign relations and is strong proof of a move towards normalisation.
D Towards Normalisation of Foreign Relations
In the context of foreign relations law, the term ‘normalisation’ is used to denote the phenomenon that ‘the conduct of foreign relations is increasingly subjected to the constitutional and other legal standards that apply to other governmental action’.Footnote 42 From the brief overview on the main content of the Swiss ‘external constitution’ follows that foreign policy is no longer regarded as ‘exceptional’Footnote 43 but rather as coming within the ‘normal’ constitutional framework.Footnote 44
First of all, in Switzerland, the long-held view that the principle of legality – that is, subjecting the exercise of political and administrative powers to the law – does not apply to foreign policy is now outdated.Footnote 45 In the early 1990s, Bernhard Ehrenzeller – author of the first comprehensive treatise examining the role of the legislative in foreign policy and advocate of a shared power approach – deplored that foreign affairs were, in various respects, perceived as ‘exceptional state activity’ and treated accordingly.Footnote 46 Indeed, at that time, Swiss practice and prevailing doctrine viewed foreign relations as an area that cannot be regulated by law.Footnote 47 Jean Monnier put it quite bluntly by writing that ‘foreign affairs are a subject matter inappropriate for codification’;Footnote 48 while Luzius Wildhaber warned that legislation related to foreign policy would risk lacking substance (or even be insubstantial altogether) and could at most pertain to the allocation of powers.Footnote 49 Bernhard Ehrenzeller criticised this ‘almost mythical perception of foreign policy as an area not susceptible to normalization’ that prevailed at the time.Footnote 50
Yet, at latest with the adoption of the Constitution of 1999, ‘a shift away from exceptionalism’ took placeFootnote 51 – to use a term coined by Curtis A. Bradley in this very period of time and describing a similar phenomenon occurring in the United States.Footnote 52 As demonstrated, the Swiss Constitution provides substantive guidance for the conduct of Switzerland’s foreign policy (although still in a modest way as compared to the domestic policy sphere);Footnote 53 and the move towards normalisation is further evidenced by the ever-growing body of rules and statutes concretising and operationalising these foreign policy objectives.Footnote 54 All in all, the principle of legality – a cornerstone of the rule of law and laid down in Article 5(1) of the Constitution of 1999 – today extends, as a general rule, to foreign policy.Footnote 55
The Constitution of 1999 has also heralded a shift towards normalisation as regards allocation of competences and brought foreign policy within the constitutional separation of powers framework. Foreign relations are no longer monopolised by the government but are a competence exercised jointly with Parliament. The latter has a right to steer foreign policy, notably by approving treatiesFootnote 56 – a power explicitly mentioned in the ConstitutionFootnote 57 to which we turn now.
III Allocation of Powers for Treaty-Making: Towards Democratisation
A A Reaction to the Legalisation of World Politics
One of the encounters between international law and foreign relations law that has been identified by the editors is ‘procedure’.Footnote 58 Indeed, large parts of foreign relations law deal with procedure,Footnote 59 notably by distributing powers horizontally among the three branches of government;Footnote 60 and, within federal states, vertically between the various governmental levels.Footnote 61 With international law having attained enormous importance, the rules allocating powers specifically for international lawmaking today form a core aspect of foreign relations law. A vast majority of constitutions adopted by nation-states include provisions allocating powers for the conclusion of treaties.Footnote 62
As regards the distribution of powers between the executive and legislative in treaty-making, ‘a sustained trend toward greater parliamentary involvement’ has been identified and empirically backed.Footnote 63 Many constitutions require parliamentary authorisation before the executive consents to be bound by a treaty and the categories of international agreements necessitating prior approval have widened over time.Footnote 64 The shift from the executive’s monopoly in treaty-making towards increasingly robust parliamentary participation can be observed in jurisdictions around the globe.Footnote 65 This transition from a complete separation of powers towards a shared power approach is commonly referred to as the ‘democratisation’ of the treaty-making process.Footnote 66
The main driver behind the democratisation of the treaty-making process is the growing importance of international law in the post–Cold War period.Footnote 67 With this, an increasing number of aspects previously regulated by domestic law became matters of international law. As a consequence, they fell to the executive, which, at that time, held primary responsibility for foreign relations and were thus removed from the legislature’s ambit.Footnote 68 In order to reduce the democratic deficit resulting from globalisation and enhanced international cooperation and to re-institute the constitutional balance in the realm of lawmaking, steps towards (more closely) associating Parliament with the treaty-making process were considered a necessity.Footnote 69
B The Concept of ‘Parallelism’ in Switzerland
As regards the development of the Swiss rules allocating powers for international lawmaking, democratisation is indisputably the leitmotif as well. Already under the Constitution of 1874 and thus at a time when Swiss doctrine and practice considered foreign relations to be a prerogative of the executive, parliamentary approval was required for specific treaties.Footnote 70 As early as 1921, an optional referendum for treaties not containing a withdrawal clause or concluded for a duration of more than fifteen years was introduced, a move towards democratisation triggered by massive protests against a previously concluded treaty of unlimited duration concerning the Gotthard tunnel.Footnote 71 In 1977, treaties entailing accession to IOs or a ‘multilateral unification of the law’ became eligible for the optional referendum, while accession to organisations of supranational character or collective security were subjected to the mandatory referendum.Footnote 72 This major step in the democratisation process was deemed necessary in light of the increasing number of treaties pertaining to matters previously governed by federal acts and thus removing them from parliamentary enactment and the popular referendum.Footnote 73
During the span of the last century, participatory rights in the treaty-making process have steadily been expanded. Yet, it was only in the late 1990s that a paradigm shift regarding democratic participation in international lawmaking occurred: the idea of reducing incongruities, which guided earlier reforms, gave way to the concept of congruence or – to use a word forged by the federal authorities in this context – ‘parallelism’ between domestic and international lawmaking.Footnote 74 The concept of ‘parallelism’ essentially entails applying the same degree of democratic legitimacy in the realm of treaty-making as is required for the enactment of domestic statutes, which means that similar democratic participation rights should be granted regardless of whether an important treaty or a federal act is being adopted.Footnote 75 Hence, it is not the form (treaty or federal act) but the normative content of a legal instrument that should be decisive for the question of whether it is subject to a referendum. This idea was (partially) implemented in 2003: in the domestic sphere, ‘[a]ll significant provisions that establish binding legal rules must be enacted in the form of a federal actʼ, which is subject to the optional referendum.Footnote 76 As a consequence, all treaties containing ‘important legislative provisions’ or the implementation of which requires the enactment of federal acts, were equally made eligible for the optional treaty referendum.Footnote 77
While initially developed in the context of the optional referendum, the concept of ‘parallelism’ later became a general guiding principle for the allocation of powers regarding international lawmaking,Footnote 78 and even for rules governing the relationship between the Swiss legal order and international law more generally.Footnote 79 The idea of ‘parallelism’ is essentially the Swiss response to the hollowing out of (direct) democracy and cantonal autonomy brought about by internationalisation. It constitutes the benchmark to be attained in the effort to democratise international lawmaking ‘from below’.
C Far-Reaching Democratic Participatory Rights
Since foreign relations law is ‘undoubtedly shaped by the specific elements of each state’s constitution’Footnote 80 and direct democracy being a hallmark of the Swiss constitutional system, it is hardly surprising that democratic participatory rights in international treaty-making are well-developed. From a comparative perspective, the participatory rights are arguably even unique in terms of the actors involved, the phases during which participation is possible, and regarding their intensity and effect.Footnote 81 As we will see, not only the bicameral Parliament, but also the people, Cantons, and even interested groups and political parties – albeit to a very limited degree – are granted certain participatory rights. Importantly, participation is not limited to the approval of treaties, but extends from the initiation and negotiation phase to the provisional application and termination of treaties.
The initiative to participate in, or even launch, a treaty-making process with other like-minded states stems, as a general rule, from the Federal Council. Yet Parliament, through means of parliamentary procedural requests,Footnote 82 may urge the government to join a given treaty-making process.Footnote 83 The ultimate decision on the commencement of treaty negotiations remains, however, with the Federal Council.Footnote 84 Even the people can trigger treaty negotiations by requesting an amendment of the Constitution, which directs the government to commence specific negotiations.Footnote 85 The popular initiative ‘Yes to Europe!’, for example, entailed a constitutional amendment stipulating that ‘[t]he Federal Government shall enter into accession negotiations with the European Union without delay’.Footnote 86
If the treaty is of major importance, the so-called consultation procedure is carried out at this early stage (as compared to lesser but still ‘significant’ treaties, for which the procedure only takes place prior to the submission of the treaty to Parliament for approval). This procedure allows any person and any organisation to express its views on the treaty to be negotiated (or to be ratified if the procedure takes place at the later stage).Footnote 87 Specific stakeholders – notably the Cantons, political parties and national umbrella organisations for the economic sector – are specifically invited to participate in the procedure,Footnote 88 the purpose of which is to associate a broad circle of actors ‘in the shaping of opinion and the decision-making process’ and ‘to provide information on material accuracy, feasibility of implementation and public acceptance of a federal project’.Footnote 89 The latter aspect is not to be underestimated in light of the looming referendum.Footnote 90
As mentioned, foreign relations are a federal power, which even extends to matters for which, in the internal policy sphere, the Cantons are competent. Internationalisation thus encroaches on the competences of the Cantons, which are, by way of compensation, granted a series of participatory rights.Footnote 91 Apart from associating them to the consultation procedure pertaining to treaties, the Cantons must, as a rule, be consulted before treaty negotiations start.Footnote 92 The Federal Council must consider their comments; if the treaty to be negotiated affects cantonal competences, it must attach particular weight to them and provide reasons if it deviates from their positions.Footnote 93
The determination of the negotiation mandate is an executive competence, yet the Federal Council must consult the Foreign Policy CommitteesFootnote 94 on ‘the guidelines and directives relating to mandates for important international negotiations before it decides on or amends the same’.Footnote 95 Further, the government ‘shall inform these committees of the status of its plans and of the progress made in negotiations’.Footnote 96 At times, parliamentarians also seek to influence ongoing negotiations by means of parliamentary procedural requests, by which the executive is, however, not legally bound.Footnote 97 If a treaty affects the competences (and not only the interests)Footnote 98 of the Cantons, they must be involved in the preparation of the negotiation mandate and ‘shall participate in negotiations in an appropriate manner’.Footnote 99
While the signing of treaties falls within the competence of the Federal Council,Footnote 100 the Constitution of 1999 establishes a presumption that they must be approved by Parliament.Footnote 101 Importantly, the Federal Assembly must not only approve the conclusion and amendment of treaties, but – since December 2019 and in an effort to further implement the concept of ‘parallelism’ – also the withdrawal from them.Footnote 102 An exception to parliamentary approval exists if the Federal Council is authorised to conclude, amend or withdraw from a treaty at its own behest by virtue of a federal act or an international treaty approved by Parliament.Footnote 103 Essentially, the executive is allowed to do so for treaties of ‘limited scope’.Footnote 104 When approving a treaty, the Federal Assembly can also approve, amend, reject or request reservations; and the Federal Council is, generally, obliged to comply.Footnote 105 A recent addition to Parliament’s participation tool-kit is the obligation of the Federal Council to consult the Foreign Policy Committees on the provisional application of a treaty later subject to parliamentary approval. If both Committees are against provisional application, the Federal Council must refrain therefrom.Footnote 106
Finally, and this is a Swiss idiosyncrasy, various categories of treaties are subject to a popular referendum. If a treaty entails accession to an organisation for collective security or of a supranational nature, the mandatory referendum applies. Mandatory means that the referendum is carried out ex officio, that is, without the need for a referendum request; and its adoption requires a double majority of the people and the Cantons.Footnote 107 So far, the only mandatory referendum held was in 1986, concerning Switzerland’s accession to the United Nations.Footnote 108 The optional referendum, the adoption of which only requires a majority of the people, is carried out solely at the request of 50,000 voters or eight Cantons. Subject to the optional referendum are treaties that are of unlimited duration and may not be terminated, treaties leading to the accession to an IO, and treaties containing important legislative provisions, or whose implementation requires the enactment of a federal act.Footnote 109 If no referendum is requested or the treaty passes the vote, the Federal Council is authorised to proceed to ratification.Footnote 110 Switzerland being a monist state, treaties take effect domestically as soon as they bind the state at the international plane.Footnote 111 All treaties eligible for the mandatory or optional referendum, and other treaties ‘that enact law or confer legislative powers’, must be published in the compilations of federal legislation.Footnote 112
D A Child of Its Time: A Strong Treaty Focus
In Switzerland, the democratisation of international lawmaking ‘from below’ – along the lines of the concept of ‘parallelism’ – is rather advanced. Very broadly speaking, the allocation of authority in international treaty-making is no longer fundamentally different from domestic lawmaking. Normalisation and democratisation of this subset of rules of Swiss foreign relations law is accomplished to a high degree.
Yet, a limitation of the legal framework on democratic participation in international lawmaking is palpably obvious. It is geared towards just one source of international law: treaties. This treaty focus is plausible if we consider the context in which these rules originated and developed. While participatory rights have steadily expanded over the last century, they experienced a more rapid growth in the 1990s and the first years of the new millennium. This boost mirrors the ‘legalisation’ of world politicsFootnote 113 and how international law was ‘on the rise’ both qualitativelyFootnote 114 and quantitativelyFootnote 115 speaking during this period.
This ‘move to law’ that arose in world politicsFootnote 116 after the end of the Cold War has most notably been brought about by the conclusion of treaties. This period of time ‘witnessed a striking proliferation in treaties’ codifying more traditional topics of international law as well as newer ones previously understood as being unsuitable for international regulation, such as international criminal law.Footnote 117 A sharp increase in the number of treaties concluded can also be observed in Switzerland. In the first half of the 1980s, Switzerland entered into around seventy treaties yearly; in the early 1990s, the number was already at 135, meaning that the figure nearly doubled in less than a decade. Between 2000 and 2003, the sheer number of roughly 210 treaties were concluded per year, which represents a growth of 55 per cent compared to the early 1990s.Footnote 118 It is against the backdrop of this changing international landscape with a ‘gigantic treaty network’Footnote 119 under construction, that the Swiss concept of ‘parallelism’ came into being and a major expansion of democratic participation rights took place. Being a child of its time, it is nothing but understandable that the respective rules are heavily oriented towards treaties.
The years leading up to the turn of the millennium were characterised by a belief (in hindsight, some even term it a ‘mantra’)Footnote 120 among international law scholars that the legalisation trend would persist and that international law, and therewith the treaty ‘production rate’, would continue to grow exponentially.Footnote 121 Yet, ‘times are changing’ – as Andreas Zimmermann wrote in allusion to the Bob Dylan song – and the then ‘prevailing euphoria’ among international law scholars as to international law becoming increasingly and steadily more efficient, value-oriented and richer in content has since abated.Footnote 122 The contemporary views about the state and future of international law are more pessimistic: the discourse of international law being ‘on the rise’ turned into whether international law is ‘in decline’.Footnote 123 Whether the manifestation of signs of crisis indicate the beginning of a general downward trend across all sub-branches of international law remains to be seen. What is already empirically proven, though, is the stagnation of formal international law.Footnote 124 The number of adopted treaties has fallen dramatically: between 1950 and 2000, the number of multilateral treaties deposited with the UN Secretary General per year was never below thirty-four; between 2005 and 2010, the count was at nine per year, and not a single multilateral treaty was deposited in 2011, 2012 or 2013.Footnote 125 A certain ‘treaty fatigue’ has spread across the international community.Footnote 126
IV Turn to Informal International Lawmaking: Bridges Under Construction
A Informal International Law Superseding Formal International Law
While formal lawmaking through the adoption of treaties is in decline, the demand for rules governing transnational or global phenomena is on the rise.Footnote 127 This growing need for norms is notably catered to by what is referred to as ‘informal law’ – that is, instruments which fall short of the traditional sources of international lawFootnote 128 but are normative in the sense that they ‘steer … behaviour or determine … the freedom of actors’.Footnote 129 Importantly, informal lawmaking, which progressively supersedes formal lawmaking,Footnote 130 not only differs from the latter in terms of the normative output it produces, but also regarding the process and actors involved. Informal lawmaking has been defined as:
Cross-border cooperation between public authorities, with or without the participation of private actors and/or international organizations, in a forum other than a traditional international organization (process informality), and/or as between actors other than traditional diplomatic actors (such as regulators or agencies) (actor informality) and/or which does not result in a formal treaty or other traditional source of international law (output informality).Footnote 131
Informal law is not a new means for regulating international cooperation,Footnote 132 but its occurrence and crowding out effect on formal law (most notably treaties) significantly increased after the turn of the millennium – such that informal lawmaking has been termed a ‘signature development’ of contemporary global governance.Footnote 133 While various reasons account for the rise of informal international law,Footnote 134 the ‘dramatic’ changes in institutions of global governanceFootnote 135 in recent years are a key factor. Traditionally, the main players in international lawmaking were states and IOs; the latter, occasionally referred to as ‘treaty machines’, played a central part in treaty-making.Footnote 136 José Alvarez noticed that the proliferation of treaties has been ‘aided and abetted by the concomitant rise in intergovernmental organizations’ and that the age of treaties is therefore ‘not incidentally also the age of IOs’.Footnote 137 In the early 2000s, however, the formation of new IOs slowed markedly.Footnote 138 Simultaneously, the number of non-state actors active at the international level – notably in the ‘production of normativity’Footnote 139 – multiplied. They are a diverse group, ranging from NGOs and transnational corporations to industry associations and regulatory agencies.Footnote 140 As they have yet to acquire international legal personality, they lack treaty-making capacity; as a consequence, any normative instrument they adopt is informal in nature.Footnote 141
B The Development of ‘Soft Participatory Rights’ for ‘Soft Law’
In recent years, awareness of the potential of informal law (similar to that of formal law) to limit the domestic policy space has grown considerably among Parliament and the broader public. For a while, the Migration Pact was the epitome of the ‘encroachment potential’ of informal law. Meanwhile, the discussion moved beyond this specific instrument and turned into a more principled one: how to involve Parliament more closely in ‘soft law projects’.Footnote 142
While the debate on democratic participation in informal lawmaking gained momentum with the Migration Pact, it is far from novel in Switzerland. Rather, the role of Parliament in the making of ‘non-binding instruments’ has been discussed time and again – often in connection with ‘soft law’ in the fields of banking, finance and tax. As early as 1985, a member of Parliament requested the Federal Council to consider rejecting an OECD recommendation on banking secrecy.Footnote 143 The request was rebuffed with the competent Federal Chancellor replying that the government did not intend to enter into a binding obligation and, consequently, had no reason to consult Parliament ‘in advance – and certainly not in advance! – on what it must do’; rather, it would be for the executive to decide on Switzerland’s position as long as it did not legally oblige the country.Footnote 144 The answer is reflective of the allocation of powers as it stood under the Constitution of 1874, where foreign relations matters were a prerogative of the executive.
It was only under the Constitution of 1999, which conceives foreign relations as a shared competence requiring close cooperation between the executive and legislative branches, that things changed. In 2002, the Parliament Act was adopted, Article 152 of which obliges the executive to inform the Foreign Policy Committees ‘regularly, comprehensively and in good time of important foreign policy developments’; and to consult and update them on ‘important plans’ (‘orientations principales’, ‘wesentliche Vorhaben’).Footnote 145 As per the common understanding, the notion of ‘important plans’ includes ‘soft law’ projects of a certain significance.Footnote 146 Yet, the implementation of Article 152 of the Parliament Act has been far from frictionless; Parliament – or at least some of its members – has felt bypassed by the government on more than one occasion.Footnote 147
As a consequence, the notion of ‘important plans’ of Article 152(3) of the Parliament Act was clarified by including Article 5b in the Government and Administration Organisation Ordinance in 2016, which defines two instances in which the Foreign Policy Committees must be consulted. First, if the implementation of recommendations of IOs or multinational fora requires the enactment or substantial revision of a federal act. Second, if a failure to implement exposes Switzerland to risk of serious economic disadvantage, sanctions, isolation or damage to its political reputation, or if other serious disadvantages for Switzerland are to be expected.Footnote 148 This long-winded wording not only testifies to the fact that informal law may exert a certain compliance pull on states, but also to the difficulty of defining instances that trigger consultation rights in abstract terms.
The newly introduced provision soon came under fire, in part for enshrining parliamentary rights in an ordinance, which can be modified or revoked by the government alone, rather than a formal law.Footnote 149 Moreover, despite the more detailed description of the instances in which Parliament must be consulted, it again felt bypassed – notably in the context of the Migration Pact. It is against this background that the Foreign Policy Committee of the Council of States tasked the government to report on the ‘growing role of soft law in international relations’ and ‘the resulting creeping weakening of Parliament’s democratic rights’ and to consider possible amendments of Article 152 of the Parliament Act.Footnote 150 All things considered, the propositions put forward in the report to better associate Parliament in the making of ‘soft law’Footnote 151 are neither novel nor revolutionary, yet the report’s significance may lay elsewhere. While the Federal Council has long been rather reserved about further increasing parliamentary participation in the field of ‘soft law’, it now ‘considers it a priority to create the necessary conditions for Parliament to better assess soft law instruments and, on this basis, to exercise its right to participate in a more targeted manner.’Footnote 152
C Demands for ‘Hard Participatory Rights’ for ‘Soft Law’
The democratisation of informal lawmaking ‘from below’ is arguably more developed in Switzerland than in many other jurisdictions, but it is still relatively embryonic when compared with democratic participation in treaty-making. In terms of actors, only parliamentary committees (and, among them, mainly the Foreign Policy Committees) are granted information and consultation rights – not Parliament as a whole, let alone the people, Cantons or broader public.Footnote 153 As regards the phases and intensity, solely a right to be informed and consulted during the making of informal law is granted, but not the veto power that Parliament, the people and Cantons possess vis-à-vis certain categories of treaties through parliamentary approval or referenda. Broadly speaking, nothing more than ‘soft participatory rights’ are available for ‘soft law’, while ‘hard participatory rights’ are reserved for ‘hard law’ – that is, treaties. For a long time, the discussion surrounding the expansion of democratic participation rights centred on the scope of information and consultation rights. With the Migration Pact, however, the reform discussion took on a new dimension: a rather widely supported claim for ‘hard participatory rights’ in informal lawmaking was formulated. No less than three different parliamentary committees – the composition of which reflects the strength of the political parties of the respective parliamentary chamberFootnote 154 – instructed the Federal Council not to sign the Migration Pact during the UN Conference in Morocco in December 2011 and to submit it to Parliament for approval.Footnote 155 Individual requests even tabled the question whether the people and Cantons, by means of popular referendum, should have the final say on Switzerland’s participation.Footnote 156
To shrug off the call for ‘hard participation’, which took shape in the context of the Migration Pact, as a purely populist manoeuvre would not do the matter justice.Footnote 157 Admittedly, had the Pact pertained not to migration, but say civil aviation, it would have sparked very little debate;Footnote 158 moreover, various parliamentary requests on the matter had populist undertones. For example, the Swiss People’s Party unleashed a barrage of criticism about Switzerland’s leading role in the making of the Pact – even asking whether the Swiss ambassador should incur liability for having facilitated the process.Footnote 159 Hence, to some extent, the debate on democratic participation in informal lawmaking has been hijacked by the right-wing populist party in order to make political capital. At the same time, various requests – especially those emanating from parliamentary committeesFootnote 160 – seem to have been truly spurred by the concern that informal lawmaking suffers from democratic deficits. It is arguably this broader, cross-party call for ‘hard’ participation that ultimately led to the Federal Council’s decision not to sign the Pact in December 2018 and to submit the decision to Parliament. Yet the government tried its best not to set a precedent, stressing that according to the current rules on allocation of powers, namely Article 184(1) of the Constitution, it is authorised to sign the Pact in its own competence, and that the decision to submit it to Parliament was taken solely for political (not legal) reasons. Consequently, the Federal Council formally rejected the parliamentary requests asking for the Pact’s submission to Parliament but acted in conformity with the requests as a matter of fact.Footnote 161
At this juncture, it is difficult to tell whether the decision to submit the Migration Pact to Parliament for approval (which, as of January 2021, has yet to happen) broke through the glass ceiling in terms of limiting participation in informal law to ‘soft participatory rights’. At the time of writing, discussions on whether to grant ‘hard participatory rights’ are ongoing. A parliamentary initiative submitted in the National Council, which requests adaptation of the rules on allocation of authority in a way that foresees parliamentary approval for ‘soft law’, is currently pending. Concretely, it suggests to submit to Parliament those informal instruments that involve compliance-monitoring, from which reporting obligations arise, if non-compliance may constitute a breach of the principle of good faith, or if its implementation is likely to require the enactment or amendment of a federal act.Footnote 162 In the Council of States, the Foreign Policy Committee suggested to establish a sub-commission specifically tasked with evaluating the need for legislative action in order to ensure parliamentary participation in informal lawmaking.Footnote 163 As a result, both parliamentary chambers are currently considering how meaningful ‘soft participation’ in informal lawmaking could be granted and whether ‘soft law’ is even amenable to ‘hard participatory rights’.
D Challenges in Building New Bridges
To sketch out detailed construction plans for building new bridges between informal international lawmaking and domestic democratic participation proves challenging. Applying the provisions available in the context of treaties by analogyFootnote 164 will not work in many cases, while designing specific rules for informal lawmaking is no easy feat. This is not surprising given that the phenomenon is negatively defined as lawmaking that dispenses with certain formalities traditionally linked to international law,Footnote 165 coupled with the complicating factor that informality can relate to different elements – actors, process and output.Footnote 166 This makes informal lawmaking a multifaceted and complex phenomenon that is ‘hard to grasp in domestic constitutional terms’.Footnote 167 Still, discussion has started on how to extend ‘soft participation rights’ and whether to grant ‘hard participation rights’ in informal lawmaking.
The Swiss debate turns on ‘soft law’;Footnote 168 hence, there seems to be common ground that only ‘legislative’Footnote 169 informal instruments, and not those dealing with a concrete situation, should qualify for ‘hard participatory rights’ – even though this is not the case for treaties.Footnote 170 Otherwise, Parliament would stray too far into the territory of the executive, which – despite the far-reaching soft participatory rights of ParliamentFootnote 171 – retains the ultimate decision-making power for the ‘operational conduct’ of foreign policy.Footnote 172 Consensus also seems to emerge that the ‘importance’ of an informal instrument should be the criterion used to decide whether and to what degree democratic legitimacy is necessary (‘critère de l’importance’, ‘Kriterium der Wesentlichkeit’), which aligns well with the standard already applying to (domestic and international) formal law.Footnote 173 Such a material criterion may dispel the argument that expanding democratic participation to informal law would flood Parliament with submissions – by comparison, only 5 per cent of all treaties concluded by Switzerland are approved by Parliament, while the other 95 per cent are of ‘limited scope’ and thus fall in the sole competence of the executive.Footnote 174 True, to specify the criterion of ‘importance’ is far from clear and the assessment may change over time;Footnote 175 yet the challenge is not idiosyncratic to informal law but exists equally with regard to formal law. Under domestic law, Article 164(1) of the Constitution sets out which matters must be regulated in federal acts, which are enacted by Parliament and subject to the optional referendum. The provision is applied by analogy in order to assess whether a treaty contains ‘important legislative provisions’ and is thus eligible for the optional referendum.Footnote 176 While various commentators have expressed doubt as to whether Article 164 of the Constitution provides (much) guidance at all,Footnote 177 having a (partly deficient) abstract definition of the instances where ‘hard participation rights’ apply is still preferable over putting the decision entirely at the discretion of the authorities. Apart from considerations of treating equal cases equally,Footnote 178 a high value is attached to the idea that the referendum should not feature a ‘plebiscitary’ character – which, in Swiss parlance, means that its exercise must not depend on the will of the authorities,Footnote 179 but be granted if predefined criteria are met. For some authors, this even amounts to a feature of direct democracy.Footnote 180
Turning back to the requirements for subjecting informal law to ‘hard participatory rights’, it seems that only those with a high degree of normativity should qualify: if normativity is low, the impact on the domestic sphere is negligible and thus no enhanced democratic legitimacy is warranted. In its ‘Soft Law Report’, the Federal Council proposes a matrix for assessing the normativity of an informal instrument. The y-axis measures the ‘will to shape’ (‘volonté d’agir’, ‘Gestaltungswille’), while the x-axis indicates the degree of ‘will to enforce’ (‘volonté d’imposer’, ‘Durchsetzungswille’) a specific instrument; the higher an instrument figures on the two axes, the higher its normativity.Footnote 181 With this, the long-held argument against democratic participation in the making of ‘soft law’ – that it is not legally binding – seems to have finally lost its persuasive power and the normativity of informal law is being recognised.
The Swiss debate has circled around the concept of ‘soft law’ and is thus mainly concentrated on the output.Footnote 182 However, in order to conceptualise democratic participation properly, the focus should not just be on ‘law’ – but on ‘lawmaking’. Actors and processes – that is, the chain of activities and decisions leading to a specific output and the forum in which this takes place – are of equal importance. This is why the concept of ‘informal lawmaking’, which captures all these dimensions, is more beneficial to framing the discussion on democratisation ‘from below’ as compared to ‘soft law’ (apart from the fact that there is often nothing particularly ‘soft’ about informal law).Footnote 183 Since the current debate has been intensified by the legal quagmire surrounding the Migration Pact, the perception of actors and processes in informal lawmaking – which impact potential bridges and boundaries for domestic democratic participation in informal lawmaking – may be slightly distorted. It is indeed a rather simple game to subject the Pact to ‘hard participation rights’, that is, to parliamentary approval and even a referendum. The treaty analogy works well since there is neither actor informality (states adopted the instrument within the UN system) nor process informality (the negotiations took place in proceedings that could equally apply to a treaty and the Pact was ultimately adopted and signed by states at an intergovernmental conference). The sole distinction from formal law is that the Pact falls short of a treaty.Footnote 184 In many instances, however, both process and/or actor informality will be much more pronounced, which makes democratic participation more challenging – if not entirely meaningless or impossible.
In treaty-making, states are the main actors: they negotiate, adopt, sign and ratify treaties. In informal lawmaking, this may be very different; states may be just one of the actors involved or even be absent altogether from the negotiating table. The latter holds true if informal law stems from what Michael Bothe aptly refers to as ‘private norm entrepreneurs’.Footnote 185 In the field of the law of armed conflict, for instance, a series of informal meetings have taken place over the past decades, during which (often old-fashioned) international rules were clarified, restated or updated in light of new technological or societal phenomena.Footnote 186 Interestingly, Switzerland was an active player in this field of law in the ‘age of treaties’ and continues to be one in times of informal lawmaking. The experts attend these processes in a purely personal capacity,Footnote 187 and states are not official participants, but may – for the sake of legitimacy, authority and thus efficiency of the instrument in question – still be involved, be it consultations on drafts or as observers (especially states sponsoring the processFootnote 188).Footnote 189 Since states do not sit at the negotiating table, at least not officially, these processes may not even fall under the definition of informal lawmaking provided above, which requires ‘[c]ross-border cooperation between public authorities’.Footnote 190 Yet, to pretend that the output produced has no normative value also seems to miss the point.Footnote 191 Be that as it may, this type of informal lawmaking suggests that certain features of informal lawmaking may set boundaries for domestic democratic participation.
In terms of process, a key difference between informal lawmaking and treaty-making is that a formalised procedure exists for the latter.Footnote 192 For treaties it is thus much easier to determine where to build bridges along the route from initiating negotiations to the entry into force of an instrument. Informal lawmaking is not subjected to a standardised procedure, and this is praised as its competitive advantage vis-à-vis treaties. Moreover, at the outset, how a specific process should evolve is often (deliberately) left open and is only specified as it goes along. Such a ‘wait-and-see approach’ lowers the entry hurdle for negotiations and allows for adjustments – towards more or less formality – along the route. The Montreux Document is exemplary as a process of informal lawmaking in which formality increased over time. When it was launched by Switzerland and the International Committee of the Red Cross in 2006, a group of only seventeen states – those most affected by the phenomenon – were involved in the negotiations, which were of a rather informal character.Footnote 193 Today, the instrument can be ‘supported’ by any state or IO by submitting a letter or diplomatic note, based on a template, to the Swiss Federal Department of Foreign Affairs.Footnote 194 While very informal at the beginning, the process in the end is nearly the equivalent of signing and ratifying a treaty. At the outset, domestic democratic control would have only made sense for the seventeen participating states, while today any state can ‘support’ the document and could, before doing so, request parliamentary approval. Whether democratic participation ‘from below’ is possible and meaningful must thus be assessed for a specific process and the answer may change over time – a striking contrast from the route taken for treaties.
A further (and certainly not last) difference between treaties and informal instruments pertains to the possibility that states can dodge the latter’s effects and implement a domestic ‘disapproval’ of the instrument at the international level. If Parliament or the people do not approve a specific treaty, the Swiss Federal Council will simply abstain from ratifying it and no legal obligation accrues from it for Switzerland. For informal law, it is much more difficult to explain how, why, when and who comes into the maelstrom of its normativity. At times, it may be possible to formally endorse, sign or support the instrument – whether refraining from doing so is sufficient to dispel its effects is debatable. The Federal Council correctly notes in its report that informal law may even impact states not having participated in the making of a specific instrument.Footnote 195 This triggers the question of what the executive is obliged to do at the international level if Parliament or the people rejects a specific informal instrument.
V Conclusion
This discussion suffices to demonstrate that designing meaningful mechanisms for generating democratic legitimacy is much more difficult in the context of informal international lawmaking than it is for formal international lawmaking. Yet, if these mechanisms shall continue performing their function, it is necessary to adapt them to structural changes of international law as expeditiously as possible. Otherwise the pendulum will swing back and the executive will regain powers in international lawmaking, which have been pushed back over the years in favour of greater involvement of Parliament, the people and Cantons.
The expanding horizons of international law in terms of actors and sources have repercussions on foreign relations law across the globe. The impact of informal lawmaking on the democratisation of international law ‘from below’, however, appears to have not yet received the necessary academic and practical attention. This is surprising in light of the great value attached to the democratisation of international lawmaking in the context of treaties and the fact that most jurisdictions’ mechanisms do not apply to informal law.Footnote 196 Academic literature is a mirror to this finding: it is extremely rich in terms of parliamentary involvement in treaty-making, but very scant when it comes to informal lawmaking. By way of example, Alejandro Rodiles recently wrote that the trend towards informal lawmaking ‘has gone completely unnoticed by the Mexican literature’.Footnote 197 Jean Galbraith and David T. Zaring likewise note that in the United States, there is ‘exhaustive academic literature’ on treaties and that ‘similar literature exists with regard to the foreign relations law dimensions of customary international law’, but informal international instruments ‘by contrast, get barely a nod in the foreign relations law literature’.Footnote 198 Arguably, the discussions on the lack of democratic control of the Migration Pact was a catalyst for more intense debate in the future.Footnote 199
Comparative foreign relations law certainly has the potential to unearth the various facets of the problem and to enlarge the pool of potential solutions on how to democratise informal international lawmaking ‘from below’. Yet, even if the most perfect bridges were built – in such a combined and common effort – the very characteristics of international informal lawmaking sets some insurmountable boundaries. This leads back to the two central questions raised by the editors in the introduction to this book: ‘To what extent is the field of foreign relations law shaped by the normative expectations and structures of international law? Conversely, in how far is international law a product of the combined processes governed by foreign relations law and construed in light of domestic law?’
Domestic mechanisms on democratic participation can only fulfil their purpose if they mirror the structures of international law – notably its sources – as accurately as possible. The Swiss rules on democratic control of treaty-making are a good example: having been drafted during the ‘age of treaties’, they had to be adapted and are still in process of being reviewed so as to be fit for purpose in the age of informal lawmaking. As regards the impact on international law ‘from below’, a crucial difference seems to exist between formal and informal lawmaking. As regards formal sources, notably treaties and customary international law, states are the masters of their creation.Footnote 200 Hence, states – through their domestic (foreign relations) law – have a better grip and control of the process. They may similarly monopolise the creation of informal law if actors and/or process feature a very low degree of informality (as in the case of the Migration Pact), but may not be even officially on board if the actors and/or processes are characterised by a high degree of informality (like the example of ‘private norm entrepreneurs’ suggests). Informal lawmaking may thus, in some instances, have much more of a ‘life of its own’ than formal law and be immune to democratisation ‘from below’. Hence, in the context of informal lawmaking, bridges can be built, but not every boundary can be overcome.
Internationalisation came at a cost to democracy in the ‘age of treaties’, and such costs will increase further in times of informal international lawmaking. The increased use of informal lawmaking will exacerbate the tension between sovereignty – understood as a ‘placeholder for constitutional values, in particular domestic democratic self-determination’Footnote 201 – and cooperation. However, when discussing (the limits of) democratisation ‘from below’, one tends to forget that Switzerland not only ranks number one in certain globalisation indexes,Footnote 202 but it is not seldom a driving force behind (laudable) informal lawmaking processes. This situation is exemplary for Dani Rodrik’s more generalised finding that ‘we cannot simultaneously pursue democracy, national determination, and economic globalization’Footnote 203 – or, to put it more bluntly, you can’t have your cake and eat it too.
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