Democratic Participation in International Law-Making in Switzerland After the ‘Age of Treaties’

Abstract

Foreign relations law is not (yet) treated as a discrete field of law in Switzerland, but exists as a matter of fact. One of its core functions is the allocation of powers for the conduct of foreign relations, notably for international law-making. Progressively bolstered in the 1990s as a reaction to internationalization, the Swiss legal framework on democratic participation in international law-making is unique in terms of the actors involved, the phases during which participation is possible, and the intensity and effects it features. Yet its limitation is obvious since it is geared towards just one source of international law: treaties. The ‘age of treaties’, however, seems to be over and informal law-making increasingly supersedes formal law-making. This Chapter discusses the efforts undertaken thus far in Switzerland to more closely associate Parliament in the making of ‘soft law’ and demonstrates that 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 law-making – that both process and actors are not forced into a rigid corset – turn out to be the beasts when it comes to grasping the phenomenon in constitutional and statutory terms. Some characteristics of international informal law-making may even set insurmountable boundaries on democratization ‘from below’.