Soft Law: How to Improve Its Democratic Legitimacy While Ensuring Effective Governmental Action in Foreign Affairs

[Ambassador Corinne Cicéron Bühler is the Director of the Directorate of International Law at the Swiss Federal Department of Foreign Affairs]

In 2018, the UN General Assembly negotiated the Global Compact for Safe, Orderly and Regular Migration. The Global Compact was adopted by the majority of UN Member States at an Intergovernmental Conference in Marrakesh, Morocco, and formally endorsed by the UN General Assembly on 19 December. 152 countries adopted the Global Compact but Switzerland, together with 11 other nations, abstained.

Years after the adoption at the UN, the debate whether to assent retroactively to the Global Compact is still ongoing in Switzerland, now at the parliamentary level. It is highly unusual for a UN General Assembly Resolution to obtain such a degree of interest and attention. And even more unusual that a debate whether to vote in favor or against such a resolution continues so long after its formal adoption at the UN General Assembly. Besides, it is not clearly defined in international law how a state may adopt retroactively a resolution of the UN General Assembly.

What explains this exceptional situation? The Global Compact triggered a fundamental debate in Switzerland about the growing importance played by soft law at the international level and how to respond to this development at the national level. Indeed soft law instruments are increasingly used where it would be undesirable or too difficult to adopt legally binding rules, which makes it essential to assess its consequences. The Swiss Parliament has taken up this case in an attempt to shape an approach to soft law that would be able to achieve a more effective parliamentary involvement.

As a consequence of parliamentary intervention, the Swiss government drafted a report on soft law that led to one of the first international attempts to propose a working definition of what soft law is. This report stressed that soft law has generally two constitutive elements. On the one hand, it contains rules of conduct that go beyond mere statements of intent to cooperate, i.e. rules with a degree of normative force (hence ‘law’). On the other hand, these rules are not legally binding, i.e. the rules are not regarded as a source of international law and there is no obligation to implement them (hence ‘soft’). Accordingly, it is necessary to distinguish between soft law and ‘top level’ (international law) and ‘bottom level’ rules (pure political declarations of intent, benchmarking and best practices) as a means of shaping international relations.

From Switzerland’s perspective, soft law pose several challenges (as duly noted in a recent roundtable on soft law held at the Council of Europe). While allowing a faster response to global issues, soft law instruments are more susceptible to being shaped by the interests of major powers than they would be under the formalized procedures for entering into international treaties. States also have greater scope for implementing soft law as they see fit. Even if soft law may often be a more practical instrument to achieve consensus, it potentially produces greater imbalances than would be the case with international treaties. Finally, and perhaps most importantly, soft law also presents a domestic policy challenge. This is because the policy-making process is by definition not fully exploited in relation to soft law, which reduces opportunities for meaningful political debate that would otherwise be available as part of the legislative process or in the context of approving international treaties.

This is especially true in Switzerland where the government and the Parliament have overlapping powers in relation to foreign policy. They work “hand in hand”. As a consequence, soft law creates the need for an increased dialogue between the legislative and executive powers.

In Switzerland (and several other countries, mainly in Europe), the idea of securing participation interests of the Parliament, in line with the principles of democracy and federalism, while safeguarding the government’s capacity for action in foreign policy matters, is hardly new. But soft law led to the question whether the existing legal frameworks are still up to date. Given the sheer number of soft law instruments and the often tight deadlines for commenting on new proposals, the full participation of the legislature may not be viable, as it would compromise Switzerland’s ability to take action on foreign policy issues. Against this backdrop, the balance between the need to ensure effective governmental action in the field of foreign policy while safeguarding the democratic legitimacy of this action is then becoming harder to achieve.

I would like to come back more extensively on the approach chosen in Switzerland. It is based on a sorting principle (the criterion of material importance) that aims to determine for which instruments of soft law the Parliament must be involved. The Parliament Act provides that the Swiss government shall consult the committees responsible for foreign policy on important plans and on the guidelines and directives relating to mandates for important international negotiations before it decides on or amends the same. It must inform these committees of the status of its plans and of the progress made in negotiations. The relevant documents state that the notion of ‘important plans’ includes soft law that does not impose legal obligations on Switzerland but could still be material in terms of Switzerland’s international standing. The Swiss government amended the respective ordinance in response to older parliamentary initiatives, which called for greater involvement by the legislature in soft law issues, by specifying the criterion of material importance. This amendment now provides that

• foreign affairs committees must be consulted if implementing the recommendations or resolutions of international organizations and relevant bodies would require the enactment of federal legislation, or
• a material amendment to a piece of legislation or where non-implementation potentially entails serious economic disadvantages or other major drawbacks, the imposition of sanctions, the isolation of Switzerland or damage to its political reputation.

The criterion of material importance is likely to remain pivotal for Parliament’s involvement in soft law initiatives even if its implementation faces several challenges. In the absence of a clear definition of soft law, it is somewhat difficult to draw up strict categories of soft law. Categorising soft law instruments according to the level of international commitment to take action and enforce the rules is a useful starting point, but does not help clarify the criterion of material importance. Assessments of material importance may vary depending on whether foreign policy or domestic policy is involved. Soft law initiatives may be deemed to be important in terms of domestic policy even if they do not establish normative standards with foreign policy implications. Furthermore whether an initiative or project meets the materiality criterion may change over time and sometimes it will only be possible to determine this retrospectively. A case in point are the Financial Action Task Force (FATF) Recommendations on terrorist financing of 1989, which were substantially updated following the 9/11 attacks and now have far greater global relevance. After 2001, the FATF Recommendations became a key foreign policy tool for the US, which stepped up its efforts to ensure their enforcement. When the recommendations were first introduced, it could not have been predicted that they would eventually become an important policy instrument.

In its report published in 2019, the Swiss government made several proposals on how the relevant national procedures concerning soft law could be enhanced and adjusted where necessary to ensure greater parliamentary involvement (e.g. increase the consultation of relevant committees subject to the criterion of material importance, provide better information to these committees, favor an increased level of participation of members of parliament in the creation of soft law at the international level, enlarge the criterion of material importance by encompassing “important policy matters”). The Swiss Parliament judged these propositions not enough far-reaching. A parliamentary sub-committee representing both Chambers was set up to examine possible legal amendments to increase the role of Parliament. Whatever amendments the Parliament may bring, it remains clear that trust between the government and the Parliament in matters concerning foreign affairs must be strengthened, otherwise the implementation of possible new amendments will be weakened.

The example of Switzerland highlights that there are ways to address new challenges set by the development of international regulation towards soft regulation. At the same time, there remains a need for more international discussion on the ongoing paradigm shift in international regulation and how this shift affects the rule of law as well as democracy. Switzerland will continue to strive towards improved democratic legitimacy of soft law instruments.