Multinational Corporations: A Case of Impunity

An argumentation analysis on the parliamentary debate of the Swiss Business Initiative

Mirjam Hagmann

Human Rights Bachelor Thesis 15hp Spring 2020 Supervisor: Anders Melin

Abstract

Non-governmental organizations (NGOs) and the media are constantly drawing attention to

human rights violations caused by multinational corporations abroad (MNCs). Due to the lack

of an adequate framework to hold corporations accountable for their corporate misconduct

across borders, there is a liability gap. Extensive research has been undertaken by politica l

philosophers as well as lawyers attempting to fill the gap, leaving the question why it still

exists. Currently, there is a debate in the Swiss parliament about the implementation of a

constitutional law which could fill this gap. By conducting an argumentation analysis on the

parliamentary debate about the Swiss Business Initiative (SBI), this thesis seeks to analyze how

politicians are framing the debate, as well as what normative concerns of the academy have

been discussed or left out. Finally, the paper concludes with seven findings that could be

focused on more in praxis.

Keywords: Responsible Swiss Business Initiative, Human Rights, Global Justice, CSR,

Multinational Corporations

Word Count: 13’703

List of Abbreviations

BoP Base of the pyramid

CSR Corporate Social Responsibility

GDP Gross Domestic Product

GJM Global Justice Movement

HRC Human Rights Council (UN)

ICCPR International Covenant on Civil and Political Rights

MNC Multinational Corporation

NGO Non-Governmental Organization

SBI Responsible Swiss Business Initiative (German: Konzernverantwortungs-

initiative)

SGSR United Nations Secretary-General's Special Representative

UDHR Universal Declaration of Human Rights

UN United Nations

UNGC United Nations Global Compact

UNGP United Nations Guiding Principles

Table of Contents

Abstract...................................................................................................................................... 2

List of Abbreviations ................................................................................................................. 3

1. INTRODUCTION ................................................................................................................. 5 1.1 Introduction to the topic .............................................................................................. 5 1.2 Aim and Research Questions ........................................................................................ 6 1.3 Relevance to Human Rights .......................................................................................... 7 1.4 Theory and Method ..................................................................................................... 8 1.5 Delimitations ............................................................................................................... 8 1.6 Terminology ................................................................................................................ 8

2. THEORY .............................................................................................................................. 8 2.1 Literature Review......................................................................................................... 8 2.2 Theoretical Framework .............................................................................................. 12

2.2.1 Neoliberalism ......................................................................................................... 12 2.2.2 Global Justice ......................................................................................................... 14 2.2.3 Agents of global justice ........................................................................................... 16 2.2.4 Hard Law................................................................................................................ 17 2.2.5 Soft Law ................................................................................................................. 19 2.2.6 Voluntary mechanisms............................................................................................ 20

3. BACKGROUND ................................................................................................................. 22 3.1 The UN Guiding Principles .......................................................................................... 22 3.2 Choosing Switzerland and the SBI ............................................................................... 22

4. METHOD .......................................................................................................................... 23 4.1 Argumentation analysis.............................................................................................. 23 4.2 Material..................................................................................................................... 24

4.2.1 The Federal Popular Initiative in Switzerland ............................................................ 24 4.2.2 The parliamentary debate of the SBI ........................................................................ 24 4.2.3 Text of the Initiative................................................................................................ 25

4.3 Delimitations ............................................................................................................. 25

5. ANALYSIS AND DISCUSSION............................................................................................ 25 5.1 Argumentation analysis.............................................................................................. 25

5.1.1 Christa Markwalder ................................................................................................ 26 5.1.2 Cédric Wermuth ..................................................................................................... 27 5.1.3 Regula Rytz ............................................................................................................ 29 5.1.4 Zanetti, Claudio ...................................................................................................... 31 5.1.5 Conclusion ............................................................................................................. 32

5.2 Application of the theoretical framework to the parliamentary debate ....................... 32 5.2.1 Switzerland as an economic business location .......................................................... 33 5.2.2 Is Corporate Social Responsibility enough?............................................................... 34 5.2.3 International vs. State Law ...................................................................................... 35 5.2.4 State Sovereignty and Extraterritoriality .................................................................. 36

6. CONCLUSION ................................................................................................................... 38 6.1 Findings ..................................................................................................................... 38 6.2 Further Research........................................................................................................ 39

7. REFERENCE LIST ............................................................................................................... 40

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1. INTRODUCTION

1.1 Introduction to the topic

MNCs are becoming increasingly powerful in the domains of politics and economics,

holding a large percentage of the world’s capital. Additionally, MNCs began to emulate into

“global webs” making their legal structures more complex than ever—commonly referred to

as the corporate veil. It took a long time for the social sciences, especially that of internationa l

relations to account for MNCs and not only states when it comes to questions about global

power, distribution, “justice, freedom and economic security” (Strange, 1991: 245-246).

After the Second World War, a strong political will to control the market lingered in

society, which was advocated by Keynes, who believed that it was the liberal project and its

consequences that led to such a detrimental economic situation and therefore suggested a mixed

market control by using taxes and monetary policies to counterbalance economic recessions

and depressions (Guger & Walterskirchen, 1988: 103-105). It was a short run for Keynesian

economics, as the society did not want to return to its interwar social order, but found comfort

in the re-emerging liberal thought which was strongly driven by Reagan and Thatcher.

Neoliberalism was born and made to tackle the ascending globalization by releasing state

regulation and revisiting the free market. A distinction of neoliberalism to that of classical

neoliberalism is the displacement of the nation state. Neoliberalism marks the beginning of

states actively participating, facilitating and ensuring a self-regulating market (Wettstein, 2009:

175). Free market economy and deregulation offered ingress for MNCs to access all parts of

the world, which drove competition for low production costs. Consequently, MNCs which

established their headquarters in the Global North started operating in the Global South.

Activists, NGOs and social movements began to draw negative media attention to corporate

misconduct in the Global South, calling for corporations to be held accountable for human

rights violations committed abroad. Lacking a comprehensive framework at the global level,

as well as the inability of national politics to transcend borders led to a regulatory vacuum,

subsequently, MNCs became political actors that shape global economics (Wettstein, 2009:

177-178). International organizations reacted by drafting soft law solutions at the inter-state

level, calling on MNCs and states to realize their responsibilities towards human rights and

environmental violations. In the year 2000, the UN Global compact was drafted as a first

attempt to urge MNCs to take responsibility and actively promote institutions where they

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operate. Although this received more critique than support in response, it fueled internationa l

debate on the need to regulate MNCs (Deva, 2006: 143). This debate has become entrenched

in society, covering topics such as global justice, anti-neoliberalism, sovereignty as well as

legal debates about regulation in hard law, soft law and voluntary mechanisms such as

Corporate Social Responsibility (CSR) policies.

Switzerland has one of the highest GDP per capita in the world (Swiss Economy – Facts

and Figures, 2020) with the highest density of MNCs in relation to its population, drawing

almost a third of its income and employment through the activities of MNCs (BfS, 2019).

Currently, there are parliamentary debates happening in motion about a newly launched

initiative—the responsible Swiss Business Initiative (SBI)—aiming at regulating MNCs on a

constitutional level. Regulated due diligence, liability not only for headquarters, but also in the

supply chain, as well as access to effective remedies for victims of human rights violat io ns

would all be novelties in Swiss legislation through acceptance of the SBI (KOVI, 2015). By

analyzing the political debate, this thesis seeks to delineate which theoretical concepts are

discussed in parliament and which are absent.

1.2 Aim and Research Questions

The aim of this thesis is to understand how the political debate about the implementat ion

of the SBI is framed. This is of importance both academically and in practice, because Swiss

MNCs are committing human rights violations abroad without a legal framework to make them

liable. Additionally, this thesis seeks to establish a relationship between theory and practice to

delineate what normative concerns are setting the Swiss political agenda while establishing

those that are being left out altogether. These correlations and divergences demonstrate which

normative concepts are abundantly discussed and which could be stressed more. In order to

achieve this aim, arguments of Swiss parliamentarians will by examined by conducting an

argumentation analysis on the debate about the SBI.

The following two research questions will help to reach the aim: (1) How are Swiss politicians presenting arguments about the implementation of a law on

constitutional level to hold MNCs accountable for their human rights violations abroad?

(2) How do these arguments relate to the academic debate?

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1.3 Relevance to Human Rights

Human rights, as defined in the preamble of the Universal Declaration of Human Rights

(UDHR), are intended to be promoted and protected by “every individual and organ of society”

(UN General Assembly, 1948). The term “every individual” has been interpreted to include

judicial persons (Henkin, 1999: 25; Baumann-Pauly & Nolan, 2016: 57). Through different

UN treaties, human rights duties become legally enforceable, however many problems arise

when it comes to business that extends state borders. These problems that emerge are discussed

in the field of Business and Human Rights, aiming at connecting ethics, justice and universa l

rights that apply to everyone that has a business. Abundant research has been undertaken in

this field, especially since John Gerard Ruggie was appointed as the UN Secretary-Genera l's

Special Representative (SGSR) for Business and Human Rights (Ruggie, 2013: 39-51).

Unexpectedly, the launch of the UN Global Compact (UNGC) in 2000, which is known

as the worlds biggest CSR initiative, has been heavily criticized for being used as a tool by

MNCs to silence NGOs and social movements (Deva, 2006: 109-110). Further, where the

partnership between the UN and MNCs was seen as a win-win situation, it was also seen as a

danger to establish a private-public relationship as the UNGC does (ibid.: 143-144).

Additionally, the normative debate around granting human rights obligations to

corporations made a divergence, as some already perceive MNCs as quasi-governmenta l

institutions (Wettstein, 2009), others hesitate to acknowledge MNCs to have such

responsibilities as this would grant them too much power (Ruggie, 2012: 50).

The drafting of the UN Guiding Principles (UNGP) managed to combine state

responsibility “to protect”, MNCs’ responsibility “to respect” and more access for victims to

effective remedies, urging all parties to set up a framework that implements these principles on

a domestic level (UN, 2011). Such a framework for the state was drafted by a coalition of

Swiss-nongovernmental organizations called the Swiss Responsible Business Initiative (SBI),

which was launched in 2015, aiming at “modifying the Swiss Constitution by including a

specific provision of the responsibility of companies to respect human rights and the

environment” (Bueno, 2018: 1). So far, the Swiss government has only shown willingness to

endorse more voluntary mechanisms, rather than regulatory measures, which the UN sees as

highly problematic (Trezzini, 2019).

Human Rights is therefore highly relevant to this subject, as the theory comprises of the

normative and legal debate about the connection of Business and Human Rights, as well as the

material which demonstrates how Swiss politicians take position to such regulatory measures.

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1.4 Theory and Method

Because no specific theory is applied in this thesis, the theory chapter consists of a

literature review as well as a theoretical framework. The former seeks to identify the most

relevant topics in the philosophical and legal debate about the regulation of MNCs, challenging

their impunity for Human Rights violations abroad. Extracting the most relevant topics will

then create a theoretical framework which can be used for the analysis.

The method consists of structuring the parliamentary debate about the SBI according to

the substance-oriented model in a pro et contra fashion (Boréus, 2017: 70-72), which sets the

framework for relating the arguments to the scholarly debate. Two representatives for the SBI

and two representatives against the SBI are selected and analyzed from the parliamentary

debate about its implementation.

1.5 Delimitations

Due to limited space, it was not possible to analyze the entire parliamentary debate, which

is why a sample was extracted. Additionally, the previous research, as well as the theoretica l

framework needed to be limited which is why a choice was made of the most relevant debate.

The most relevant themes were established by their frequency and emphasis by authors of

previous research.

1.6 Terminology

Hard law is a legally binding law that can be enforced in court Soft law is a non-binding agreement or principle that is usually found in the international sphere, which cannot be enforced in court, but has reputational consequences

2. THEORY

As this thesis aims to uncover correspondences and discrepancies between the politica l

debate and the parliamentary debate, it does not apply a particular theory, but uses the scholarly

debate as its theoretical framework. Previous research on the regulation of MNCs will help

identify relevant concepts and problems that scholars face, which are then structured and

elaborated on in the theoretical framework.

2.1 Literature Review

This section structures what has previously been contributed to this field of research in the

academic world as well as what methods and theories were used to do so. Extracting the most

relevant topics from this research will help construct the theoretical framework. This is a broad

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field and the diversity in the academic debate is needed for the theoretical framework in order

to identify how it correlates to the practical arguments in the parliament on how to regulate

corporations.

The locus of previous literature is positioned from a normative perspective as well as a

legal perspective. Noticeable while conducting research on the regulation of MNCs was that

the philosophical literature on the subject was mainly published between the years 1990-2010,

the main reason for this being that global power distribution was primarily concerned to be

between states.

“It is only when you think of power in terms of the ability to create or

destroy, not order but wealth, and to influence the elements of justice

and freedom as part if the value-composition of the whole system, that

it becomes obvious that big business plays a central, not peripheral

role” (Strange, 1991: 245).

Also, the emergence of MNCs, neoliberalism, anti-neoliberal and anti-capitalist social

movements, as well as the Business and Human Rights field all ascended in the same decades,

which instigated the impetus behind rethinking neoliberalism and global justice.

Neoliberalism posits an important role in this debate and frequently marks the beginning

of essays and books about the regulation of MNCs (see in Ruggie, 2012; see in Wettstein,

2009). Wettstein (2009) for example calls out “mainstream economists”, that believe in

neoliberalism as the best form of economy (5). Opinions frequently diverge on whether the

idea of neoliberalism has progressive economic ideas, but is only implemented poorly (Rodrik,

2017: 2) or whether the resilience of neoliberalism lies in its compatible nature with different

forms of governance (Schmidt & Thatcher, 2014: 341-342). Other scholars proclaim that

human rights and the new global justice movement (GJM) emerged from neoliberalism and

play an important role to sustain its structural deficiencies in society (Moyn, 2014: 149-151).

Roderik (2011) identifies a “trilemma” that neoliberalism causes, which is the incompatibi lity

between “hyperglobalisation”, democracy and national sovereignty (201). Although many

think that there is no way out of neoliberalism —an infamous Thatcher slogan— there is a rise

of social movements, such as the GJM, that believe in global citizenship as an alternative to

neoliberalism (Moghadan, 2012: 195).

Arnold (2012) gives two reasons to why there is a lack of sufficient literature around

corporate agency within the realms of global justice. First, the subject is predominantly

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discussed by philosophers in the field of politics and international law rather than sociologis ts.

Second, there is a difference in judgment about the agency of MNCs (127). O’Neill (2001), a

political philosopher, rethinks global justice by questioning the most common understand ing

that a state holds primary agency towards global justice. She criticizes the UDHR, for explicit ly

addressing states in matters of global justice, as well as the “hidden statism” in Rawls’ approach

to justice (182-188). Focusing on the power relations as well as capabilities (inspired by Sen,

1999) of non-state actors (in the dimensions of international organizations and MNCs), the

question of agency becomes blurry when states are weak (O’Neill, 2001: 191-193).

Challenging the primary agency of states opened new areas of discussion. Wettstein (2009) for

example defends a right-based cosmopolitan view of justice in which human rights are the

determinant for human development, which was previously rather neglected such as by Rawls

or Kant (44-51). Where states are weak, other non-state actors must meet their obligat io ns

towards human rights with their capabilities of violating them—or in other words— take

responsibility towards the global injustices created by them (Arnold, 2012: 127-129). Wettstein

(2009) emphasizes therefore that MNCs are not supposed to be primary agents, but they already

are, as they have adopted quasi-governmental capabilities and their corresponding obligat ions

should therefore be met (146).

Some scholars refute giving MNCs human rights obligations, as there is a risk in

perpetuating their power. If MNCs were to be seen as primary agents they would also be

entitled to the same tools as states to fulfil these obligations (such as government and milita ry)

(Hsieh, 2015: 226; Bishop, 2012: 130). Hsieh (2004) uses Rawls’ concept of the duty of

assistance, which was originally intended for strong states assisting weak states in order to

identify MNCs’ responsibilities to provide a duty of assistance in countries in which they

operate (646). These normative scholars mainly conducted conceptual analysis, building on or

rejecting main thinkers of global justice, such as Rawls to establish a new or extended theory.

Other normative research on global justice exceeds the realms of this thesis, for example that

state borders already create a global injustice (see in Carens, 1987) and that only global

institutions can mitigate inequalities that borders create (see in Pogge, 1994).

Arnold (2012) believes that voluntary mechanisms must be improved, because rules and

regulations can be ineffective in states where institutions are weak, due to leaders fearing that

competition will risk encouraging MNCs to move from countries where these institut ions

become effective to where they are still ineffective—which is called forum shopping. However,

it is not to say that Global regulatory regimes could not also exist and be strengthened alongside

MNCs simultaneously acting as agents of justice (128-129).

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Normative reflections about CSR predominantly concern the share-holder value theory,

the stakeholder theory and the corporate citizenship theory—all of which have been heavily

criticized. Milton Friedman’s seminal work on share-holder value theory says it all: “The social

responsibility of business is to increase profits” (Friedman, 1970). Due to the emerging

literature on Business and Human Rights since, this strictly profit-maximizing view is outdated.

Fleming & Jones (2012) criticize the stakeholder approach as an adequate form of CSR in

which MNCs communicate with their stakeholders when conducting business. Their critical

stakeholder analysis is an assessment regarding the power dimensions between stakeholders

and MNCs, revealing what bargaining position stakeholders have (70-76). Corporate

citizenship theory concerns a corporation’s contribution towards society and is endorsed by

scholars (Matten & Crane, 2005: 170). However, corporate citizenship is also criticized by

scholars who see the danger in profit-seeking giants taking over responsibilities such as citizen

rights, as this could be merely used as another tool for boosting their sustainability reports

(Fleming & Jones, 2012: 58-59).

There are a number of scholars that have conducted single case studies to assess how the

CSR of MNCs has repeatedly been used as a strategy to deflect from human rights violat ions

abroad or silence critical NGOs (see for example Wiig & Kolstad, 2010; Benson, 2015). That

being said, there are many case studies on how cooperation with MNCs and its stakeholders

have had a positive effect on the society in which they operate, such as “improved security and

human rights” (Perks, 2012: 259). Kirsch conducted a discourse analysis in order to evaluate

how corporations use CSR language to silence their critics (see in Kirsch, 2015).

Legal scholars have previously analyzed the success and deficiencies of precedent law,

such as the US Alien Tort Claims Act, which was initially established to fight piracy, but used

by lawyers 200 years later to seek remedy for human rights abuses committed by corporations

that have “sufficiently close links to the U.S” (de Schutter, 2006: 6; Ruggie, 2013: 43). More

recent research has been conducted on the French Duty of Vigilance, which was adopted by

the French government in 2017 and which is very similar to the SBI (Bright, 2020: 10).

Relevant to elaborate on in the theoretical framework are its successes and shortcomings. Other

scholars have dissected international law as well as national law to provide possible solutions

to the problems around sovereignty and extraterritoriality (de Schutter, 2006). This will be

important for my thesis, as the SBI could possibly pose such problems, which is why it will be

further discussed in the theoretical framework.

Moreover, by undertaking a qualitative content analysis on the Codes of Conduct of some

of the biggest MNCs, Miller notes that “only 25 percent of those companies disclose some

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amount of supply chain monitoring and performance information” (Miller, 2015: 447).

Highlighting the deficiencies helps Miller’s reasoning that we must take a step back from

international regulation and move more towards a transparency model, which makes

information available publicly and changes consumer demands—meaning that the supply

conditions must be adjusted (Miller, 2015: 452-463). Other scholars discuss the issues that arise

with conflicting laws when it comes to the implementation of regulations against corporate

misconduct abroad (see Ruggie, 2013: 40-41 for conflicting UN treaties versus state law and;

see Chesterman, 2007: 315 for conflicts in national law, such as forum non conveniens). These

legal contradictions will be elaborated further on in the theoretical framework, as they raise

concern when states want to close the liability gap of MNCs.

2.2 Theoretical Framework

The previous section focused on works that establish regulations, practices, positions of

MNCs within global justice, which the theoretical framework will build upon.

In order to identify concepts and philosophical theoretical ideas—or the lack thereof—

about the regulation of transnational corporations in the SBI, the most important ideas have

been extracted from the previous research and elaborated on. What distinguishes this thesis is

that instead of making a normative case, it seeks to illustrate axiological divergences between

the scholarly field and real world politics, which is why the theoretical framework remains

fairly broad, but excludes outdated or irrelevant scholarly material. Identified concepts and

ideas include the debate around neoliberalism, global justice and the legal implementation of

regulations in to hard law and soft law.

2.2.1 Neoliberalism

Avoiding the concept of neoliberalism is impossible to do when analyzing the regulat ion

of corporations for their activities abroad. World economics took a profit-maximizing course,

which increased global wealth, but also inequality in the turn of the century. Wealth distribut ion

is more polarized than ever before and especially in countries where MNCs are most active,

poverty, human rights violations and environmental damages are most present (Wettstein,

2009: 3-5). Although many scholars acknowledge the byproduct deficiencies of neoliberalism,

“mainstream economists” (Wettstein, 2009: 5) still believe in its flourishing nature of bringing

back “economic liberalism and individualism, competition and opportunity” (Dornbusch,

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2000: 25 in Wettstein, 2009: 5). This notion of global economics echoes in utilitarianism, which

does acknowledge ethics, but does not take into account global justice (Wettstein, 2009: 5).

There is an interesting take on the relationship between international human rights law and

neoliberalism that derives from the Marxist school of thought. It is a common belief that the

emergence of international human rights law is a phenomenon arising from neolibera lism

(Moyn, 2015: 168). Their relationship is a debated one; many optimists highlight the balance

between converting human rights into a sort of “toolbox of legal and other standards to guide,

tame and civilize an era of transnational market liberalization that has generally improved the

human condition” (ibid.: 149). However, due to human rights being implemented into

international jurisdiction at its bear minimum, it fails to address the local and global damage

neoliberalism has caused on equality. Rather, focus is set on human rights outcomes.

Essentially, human rights have failed to keep up with “their neoliberal frère ennemi” (ibid.:

151), who’s overarching power threatens a subject that they didn’t manage to address: global

equality, including resource distribution (ibid.: 148-152). Moyn (2014) concludes therefore

that human rights are too minimal and basic in their essence to ascend as rapidly and ruthless ly

as neoliberalism (169).

Harvard professor Dani Rodrik expresses his concerns about the interplay of what he calls

a “hyperglobalisation” and state politics (Rodrik, 2011: 353). It is not just the MNCs anymore

that are subjected to competition, but also the state, which limits the states’ ability to act in an

ethical manner, but they come under the constraint of capitalist exploitation (Ulrich, 2016: 361-

370). These constraints and contradictions between the combination of a nation-state,

democracy and “hyperglobalization” is what Rodrik calls “the political trilemma of the world

economy” (Rodrik, 2011: 383). As a result, Rodrik believes that only two of these three terms

can be compatible with one another at the same time:

“we cannot have hyperglobalization, democracy, and national self-

determination all at once. We can have at most two out of three. If we

want hyperglobalization and democracy, we need to give up on the

nation state. If we must keep the nation state and want

hyperglobalization too, then we must forget about democracy. And if

we want to combine democracy with the nation state, then it is bye-bye

deep globalization” (Rodrik, 2011: 381).

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Rodrik (2011) opts for the solution of global governance, meaning that the power of nationa l

governments would be compromised and transferred to a supra-national government, which

would leave space for democracy and globalization (386).

Increasingly, people believe Thatcher that there is no way out of neoliberalism, as it is

resilient in its nature due to its capability to adjust to all forms of states (Schmidt & Thatcher,

2014: 341-342), but also because its underlying ideas are strong, although implemented poorly

(Rodrik, 2017: 2). Wettstein (2009) argues however that it is impossible to undo globalizat ion,

but it is our moral duty to shape it in a way that promotes global justice by identifying its agents

(agents of global justice will be discussed in the next section in more detail) that have the

capabilities to do so (Wettstein, 2009: 8).

Social movements, such as the GJM reflect the need to reshape globalization. This

movement emerged around the 1990s and has become extremely important for the socio-

economic debate with justice at the center of an increasingly globalizing world (Moghadam,

2013: 171). Anti-neoliberal and anti-capitalist critiques through structural adjustments is on the

agenda of the GJM. Their biggest enemy, neoliberalism, “was behind the onerous Third World

debt, deteriorating standards of living, and competition, conflict, and war” (ibid.: 195).

Opposing the notion that there is no way out, the GJM believe that there is an alternative, an

“altermondialisation” which is anchored in “international solidarity and identity construction

of global citizenship” (ibid.). Within the movement, it is suggested that in order to achieve

global justice, a structural change is necessary in the form of de-globalization, hence returning

to local communities. Another view is that a global democracy and global sustainable solutio ns

against climate change are necessary to progress against neoliberalism (ibid.: 195-200). These

ideas correspond to Rodrik’s solution of a global governance, meaning the powers of the nation

state will decrease immensely (Rodrik, 2011: 386).

The considerations of neoliberalism can be used as a foundation to analyze the

parliamentary debate. As mentioned in the last paragraph, global justice is on the agenda of

many movements against neoliberalism. Its main understandings will be presented in the next

section.

2.2.2 Global Justice

As the previous section shows, theorizing global justice has changed in the past decades

due to the emergence of inequalities and human rights violations fueled by the laissez-fa ire

component of neoliberalism. It is widely accepted that the actions of MNCs have a direct effect

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on global resource distribution and therefore also global justice (Wettstein, 2009: 25). Relevant

for this thesis are the three levels of regulation that can be applied to MNCs: internationa l,

national and self-regulation through voluntary mechanisms by the corporations themselves.

Interestingly, the question of which agents ought to take responsibility and have obligat ions

towards global justice concern the same actors; nation states, the international arena and MNCs.

Therefore, it is important to first give an account on theories of global justice before looking

into the different kinds of soft and hard law regulations that exist or should exist according to

scholars.

John Rawls, a pioneer of global justice theory, managed to successfully dissect and point

out the deficits of utilitarianism in his book A Theory of Justice. What is relevant to understand

from his book for this thesis is that he criticized utilitarianism, as it only acknowledges justice,

when a just distribution is the most efficient. Apart from that, utilitarianism takes into account

the violation of fundamental freedoms of an individual in order to maximize the efficiency of

a society. Rawls, however objects that notion, as “the rights secured by justice are not subject

to political bargaining or the calculus of social interests” (Rawls, 1971: 28 in Wettstein, 2009:

6). Although this approach successfully dismantled utilitarianism, his view of justice is still

considered too statist, rather than global (Wettstein, 2009: 7). Citizens of nation-states (peoples

in Rawls’ language) have the primary duty to abide the laws in place and guard them against

the offences of other states. Wettstein rejects Rawls notion of justice as an adequate theory of

justice, as it is not human rights based, but still too utilitarian in its essence, as his principles of

justice are not designed to benefit the worst-off globally, but only on a domestic level

(Wettstein, 2009: 9). Pogge (1994) contributes further by rejecting Rawls’ principles of justice,

as societies, as Rawls understands them, have been artificially created with borders through

violence. Justice in Rawls perception does not provide the possibility for each individual to

participate equally in global political decisions that affect their lives. Similarly, inequality

prevents individuals from having equal chances at education and career (196-197).

Although Rawls does not give an account on the role that MNCs play in global justice

specifically, there are scholars that have recently used his theories to explain their moral

obligations toward people at the base of the pyramid (BoP) (Arnold, 2013: 131). In his book,

The Law of Peoples, Rawls provides a what he calls “realistically utopian” account of local

perceptions of justice extending to international law. This in turn provides an explanation to

what is required of institutions in terms of justice, not only on a national, but also on an

international level (Rawls, 1999: 11, 41-42). As mentioned above, international competition,

neoliberalism and a globalized market has led to MNCs violating human rights and

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environmental standards in the Global South without being held accountable. Usually, these

violations happen in countries with weak institutions. Here, Rawls becomes relevant, as he also

incorporates burdened societies in his theory, whose "historical, social, and economic

circumstances make their achieving a well-ordered regime, whether liberal or decent, difficult

if not impossible” (Rawls, 1999: 90). Strong states have a duty of assistance to enable these

burdened societies to develop healthy economic institutions, until they become well-ordered

(ibid.).

This point of his theory is where most scholars draw the connection to MNCs that “are

owned and managed by members of liberal or decent peoples and that operate in burdened

societies” (Hsieh, 2004: 646). Grounded in the duty of assistance, Hsieh (2004) identifies

obligations that corporations have which extend the UNGP, for example by a negative duty not

to pursue operations that cause human rights violations. Especially in circumstances where the

well-ordered society fails to provide such a duty of assistance, or even expresses its

unwillingness to provide it, the question of the legitimacy of MNCs to provide such a duty,

rises. If benefits of corporations are drawn from the state of burden of that society, its

obligations to provide assistance in line and beyond the UNGP are undisputable (651).

Beyond the statist view of justice, some are convinced that global justice cannot be

achieved by nation-states, due to their self-interest and sovereignty (see Nagel, 2005). Supra-

national authority would solve this problem (see Rodrik, 2011), however the competition over

a legitimate authority to carry out this task, taking into consideration all cultures and needs

would be impossible (Nagel, 2005: 145). What is the alternative? Thomas Nagel refers to

history, where demands of people were shaped into institutions either by revolutions or

overthrowing illegitimacy. Therefore, he sees the only way to render global justice is to

establish unjust, illegitimate global structures, that only benefit the most powerful states. In

this way, institutions will then have a demand of legitimacy to explore (Nagel, 2005: 145-146).

2.2.3 Agents of global justice

O’Neill distinguishes two forms of agents of global justice—primary and secondary

agents. Primary agents have a controlling function, setting guidelines, legal frameworks and

limitations in which secondary agents can function (O’Neill, 2001: 181; Wettstein, 2009: 155).

Hence, in cosmopolitan societies, primary agents can usually be seen as governing institutions,

exercising authority over secondary agents, which are other institutional structures and

individuals (Wettstein, 2009: 155). Deriving from this, it becomes evident that states, as well

17

as supra-states are primary agents of global justice. With the increasing power that MNCs are

gaining, can they merely be seen as a secondary agent? Wettstein (2009) challenges the state-

centered approach of primary agency from different perspectives.

There is a profound problem with states acting as the sole primary agents of justice when

they themselves are “unjust or too weak to facilitate and enforce justice” (O’Neill, 2001: 182).

Further, when it comes to institutions, politics and economical processes exceeding nationa l

boundaries, state sovereignty obfuscates obligations that it should fulfil in its role as a primary

agent (Wettstein, 2009: 156-157). The problem of extraterritoriality will however be discussed

in more depth below. Wettstein (2009) and Arnold (2013) both argue for a similar notion,

namely that due to their capabilities, power and therefore agency in global justice, MNCs have

direct obligations to the proactive realization of human rights, which means strengthening

institutions in countries in which they operate (Wettstein, 2009: 153-164 & Arnold, 2013: 127).

Traditional perspectives of responsibilities and agency imperil the fight against social

injustices, as economics and politics have already transcended borders, but the responsibility

of justice has stayed within (Young, 2004: 371).

These theoretical concerns of global justice will serve as a premise to compare to the

praxis. Legal issues, however, must also be included to the debate to examine the legal

problems politicians are facing with the implementation of the SBI.

2.2.4 Hard Law

2.2.4.1 International law

There are different ways in which MNCs have been attempted to be regulated, starting off with

discussing the legal personality of a MNC in international law. Chesterman (2007) presents the

paradox of equalitarianism between the subjects of international law. Contrary to states, if

multinational corporations fall under the scope of international law, they only have

responsibilities without rights. Individuals, however, have rights without responsibilities and

states have rights as well as responsibilities (309). Also Chesterman (2007) agrees with Hsieh

(2015) and Bishop (2012), who both reject MNCs having moral obligations because if they do,

they are entitled to have access to the same tools as the state to fulfil their theoretical obligat io ns

to human rights, such as the access to military (Hsieh, 2015: 226; Bishop, 2012: 130;

Chesterman, 2007: 310).

International human rights law transmits binding legal obligations on to states, making it

their primary responsibility to protect human rights. It could be argued that the internationa l

18

human rights treaties as well as the UDHR are also directed towards corporations, as “every

individual” could be interpreted as including judicial persons (Baumann-Pauly & Nolan, 2016:

57), however many General Comments reject the inclusion of judicial persons in their provision

(Ruggie, 2013: 51).

2.2.4.2 National Law

Due to the problems arising with international legal jurisdiction, the most common

understanding of primary responsibility for a wrongdoing of MNCs is “the state in which the

wrongdoing has occurred” (Jochnick, 1999: 65-66). Sometimes states fail to respect and ensure

rights to individuals as guaranteed under the ICCPR. This is the case when the state has weak

institutions in place and is unable or unwilling to prevent the wrongdoing from happening,

because the MNC brings much income and wealth to the state (Chesterman, 2007: 314).

Another reason for a host state to be restrictive when it comes to regulating MNCs is because

of the phenomenon law shopping. This occurs when a nation implements a new law and due to

the unwillingness of the MNC to adjust their policies, they find a different host state with less

restrictions (Bright, 2020: 1). Then it is time to turn to another jurisdiction, one where the MNC

has its headquarters (Chesterman, 2007: 314-315)

Chesterman (2007) calls this jurisdiction “Home Jurisdiction” and points out its most

common barrier, namely the “forum non conveniens” (315), which enables courts to dismiss a

case and refer it to a better suited court (ibid.). Recommendations by the Council of Europe

suggest however that this law shall “not apply in transnational tort claims for alleged corporate-

related human rights abuses” (AI & BHR Resource Centre, 2017: 11).

Since the Nuremberg Trials after the Second World War, it became evident that individua ls

could also be held accountable under international law for crimes that corporations committed.

What is most contested is whether the legal persons can be trialed under international law as

well. During the establishment of the International Criminal Court, the notion of holding

entities accountable as well has been discussed, however dropped, as it would be “morally

obtuse for States to insist on also the criminal responsibility of all entities other than

themselves” (Eser, 2002: 779).

In the US, many lawyers have sued corporations under the Alien Tort Statute (ATS), which

allows the US federal courts to exercise jurisdiction “over any civil action brought by an alien

for a tort in violation of international law or a U.S. treaty” (The Centre for Justice &

Accountability, 2016). This statute has demonstrated itself to merely be a tool to use as a threat

to sue corporations, rather than providing victims with actual remedies due to its highly

19

conditional character. Additionally, the complex structure of MNCs including their control

over subsidiaries increases the difficulty of suing MNCs in the US (Baumann-Pauly & Nolan,

2016: 273, 279). A main challenge for federal courts in Europe and Canada is implementing

laws into national legislation to overrule violations that have occurred abroad. In this sense,

lawyers have begun to draw up alternatives, such as non-judicial grievance mechanisms

(NJGMs), which were not initially intended to cover this legal gap, but rather offer a voluntary

alternative. These NJGMs, however, have also shown little success when it comes to claimab le

remedies (ibid.: 274).

2.2.4.3 Extraterritorial Jurisdiction

Three conflicts arise according to de Schutter (2006) when adopting extraterritorial laws

in order to regulate MNCs. Setting up a framework in order to establish the nationality of the

MNC (1), piercing through the corporate veil (2) and lastly ensuring that the adopted legisla t io n

does not undermine the sovereignty of the host-state (3) (de Schutter, 2006: 29). By seeking

consent from the host-state, this last problem could be overcome (de Schutter, 2006: 8).

France adopted the Duty of Vigilance Law in 2017, which is an unprecedented form of

legislation implemented nationally to hold MNCs as well as subcontractors in the supply chain

accountable for corporate misconduct. Especially the provision that victims can seek remedy

in France, rather than a court where the damage occurred (Bright, 2020: 6). Weaknesses have

shown that the law only captures a small amount of MNCs, the corporate veil has still not been

able to be pierced through entirely, because “each entity forming the international group of

companies is considered separately” (Bright, 2020: 8). Further, despite what critics say, the

French Duty of Vigilance Law has so far not shown any competition problems by their MNC

s(Ibid.).

2.2.5 Soft Law

2.2.5.1 UN Global Compact

Chesterman (2007) discusses the establishment of the UN Global Compact (UNGC) and its

indication that voluntary regulation is much preferred especially in the Global North. What is

evident is that nation states from the industrialized part of the world are obsessed with

deregulation (328).

Orock (2013) and Deva (2006) both see the partnership with the UN as dangerous, because

MNCs can use their voluntary enforcement to boost their sustainability reports by referring to

their adherence (Orock, 2013: 30-35; Deva, 2006: 109-110). Orock (2013) goes further to

20

postulate that these CSR practices “have firmly established themselves as the new overarching

story of how the chief agents of capitalism carry themselves in these times” (Orock, 2013: 35).

2.2.6 Voluntary mechanisms

2.2.6.1 Codes of Conduct

Wawryk (2003) describes four different types of codes of conduct, highlighting problems and

strengths of their enforcement. These include public, private, national and non-governmenta l

codes of conduct. Usually, the nation-state is very reluctant to negotiate a legally binding code

of conduct when it means their sovereignty is compromised in any way (328).

By taking the example of Apple and different garment industries, Miller (2015) highlights that

public negative media attention to the working conditions in the supply chain, has had positive

outcomes in setting up private codes of conduct. as well as joining the Fair Labor Association

(433). Further, Miller criticizes organizations such as the International Labor Organization, as

well as how legalistic language is used in private codes of conduct to avoid liability for the

MNC itself, while the employees in the supply chain are legally not workers of the MNC and

therefore there is no contractual obligation towards them (Miller, 2015: 452-453). Aiming at

distancing from global regulation, she argues for a model of transparency, which is grounded

in the thought that working conditions “in the global supply chain will improve only if

information is made available, if consumer expectations change and if corporate norms shift”

(ibid.: 435). The Transparency Act will include “best practices” as well as monitoring and audit

mechanisms by third parties which when published – the consumer demand will adjust to these

practices and create an incentive to improve working conditions in the supply chain (ibid.: 462-

463)

2.2.6.2 Corporate Social Responsibility

This section will dive into the debate around corporate social responsibility, presenting its main

theories as well as critiques. Because CSR as we know it is sometimes said to be “enough” to

regulate corporate practices, it is relevant to highlight its main debate in this thesis. As

discussed above, neoliberalism has increased the discussion about Business and Human Rights

and global justice. One of the main characteristics of neoliberalism is its laissez-faire nature,

which perpetuates corporations to adopt voluntary mechanisms, such as CSR policies.

The share-holder value theory is grounded in such a neo-classical idea that ethics has no

place in corporations, as the only goal should be to maximize profits within a legal framework

21

provided by the state. Many economists and entrepreneurs working especially in the financ ia l

sector endorse this view (Friedman, 1970: 33).

By attempting to “reframe the narrative of capitalism” (Freeman, Martin & Parmar, 2007:

303), the stakeholder theory provides criticism to this traditional view. By communicating with

all stakeholders affected by the activities of the MNC, it will be possible to build a foundatio n

of morality and ethics, which will then in turn take into account the rights of all groups equally

(Freeman, 2010). Fleming & Jones criticize this approach by setting up a critical stakeholder

analysis, which evaluates the different power structures amongst the MNC and its stakeholders.

Revealing the power (im)balances in the context in which the MNC operates discloses the weak

bargaining powers that are enforced through weak institutions, insufficient labor laws and low

environmental standards. Additionally, most communication with stakeholders is more

informative than engaging, as the conversation typically happens after the business deal is

signed and finalized (Fleming & Jones, 2012: 70-76). Banerjee believes that firms which

pursue the stakeholder theory model use it to enhance their image while simultaneous ly

marginalizing stakeholders that are discontent with its practices leading to what he calls

“stakeholder colonialism” (Banerjee, 2007: 72).

Due to the large influence corporations have on citizens (at home or abroad), Matten &

Crane (2005) identified a paradigm shift of citizenship rights from states to corporations. Since

an increasing amount of sectors in society have become privatized, corporations have

developed a growing responsibility to guarantee certain social and economic rights of citizens

(170). Fleming & Jones call this the “New Corporate Citizenship” theory, which is one of the

“tools” of CSR. However, they demonstrate the danger of a profit-maximizing firm taking over

responsibilities to guarantee citizenship rights, as it can be used as another tool of public

relations. Rather than fighting unemployment, which is what the companies sometimes

proclaim, they exploit the limited rights of citizens in other countries than their own (Fleming

& Jones, 2012: 58-59).

As mentioned above, Orock takes the stance that CSR practices are even harmful for

human rights advancements, as they “have firmly established themselves as the new

overarching story of how the chief agents of capitalism carry themselves in these times”

(Orock, 2013: 35). Therefore, CSR is said to be used as fuel for capitalism (Ibid.: 30-35). In

the past years the term green-washing emerged with its famous slogan “green is the new black”.

Sustainability reports of MNCs are usually criticized of being green-washed, which means that

they mislead the consumer of the MNCs’ environmental consciousness opposed to what is

really being practiced in reality (Aggarwal & Kadyan, 2014: 23). NGOs, such as Amnesty

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International, are calling on governments to change the legislation regarding information

disclosure, as it is important for communities to understand in which way business activities of

MNCs affect them. Additionally, the information provided should be publically available as

well as assessed by the government in order to prevent MNCs from green-washing their

sustainability reports (AI & BHR Resource Centre, 2017: 14).

Apart from all the criticism CSR faces, some scholars still believe that its discourse is

constantly enhancing how we think about human rights in business practices and has had, as

well as will have substantial effects on hard law practices in the future (Rosenblum).

Neoliberalism calls for economic freedom, which expresses itself in a MNCs’ volunta ry

assumption of responsibility expressed through CSR strategies. A human right, as the name

already says it, is a right. Rights can only be enforced through legislation that enforces it,

creating duties and obligations. The purpose of human rights is to enable every person to lead

a dignified life, untouchable in self-determination and self-respect, or make their violat ion

legally enforceable. How can then the voluntariness of responsibility that should be recognized

by profit-maximizing actors protect such an inherent right? It cannot, because

freedom/responsibility and rights/obligations cannot be categorically covered (Beck, 2015:

194).

3. BACKGROUND

3.1 The UN Guiding Principles

The three-part framework “protect, respect and remedy” was drafted by the SRSG Prof

John Ruggie, although originally designed to stay within the realms of soft law, it was aligned

with other international guidelines intended to one day become customary international law or

hard law (Ruggie, 2013: 45). Many countries have since implemented national action plans, as

well as MNCs have adjusted their codes of conducts, however the government of Switzerland,

although having drafted an action plan, has so far not addressed creating a legally binding

framework. The SBI would insert these principles into the constitution.

3.2 Choosing Switzerland and the SBI

Switzerland is one of the wealthiest countries in the world, with the largest part of its GDP

generated from MNCs “importing raw materials and turning them into high-value goods, such

as pharmaceuticals or luxury watches” (Hetze & Winistörfer, 2015: 154). Additiona l ly,

Switzerland has the highest presence of MNCs in the world and has been ranked the most

competitive nation in 2013 (Hetze & Winistörfer, 2015: 154). Due to these extremes, it is

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interesting to analyze how the Swiss debate is framed. The argumentation around the SBI lays

a great foundation for this analysis, as it imposes more extreme measures than its precedents.

Although the French Duty of Vigilance was similar in its initial draft, important provisions—

such as the burden of proof being on the side of MNCs—were taken out and the scope of how

many MNCs it covers was drastically minimized (Bright, 2020: 8).

4. METHOD

4.1 Argumentation analysis

Considering that this thesis seeks to identify how the arguments of the political debate of

the Swiss parliament are shaped, as well as in what way they connect to the normative debate,

the method consists of two steps. The first step is what Boréus (2017) calls “Reconstruc t ing

Debates” (71). There are two different approaches to reconstruct entire debates, namely the

agent-orientated model, which structures the debate according to agents and the substance-

orientated model, which structures the argumentation according to arguments of the same

theme (Boréus, 2017: 70-72). Since the second part of this method seeks to relate the debate to

the normative and legal academy, it is relevant to structure the parliamentary debate according

to agents, as this facilitates to outline the core issues as well as discussing the arguments after

every paragraph (ibid.: 65-72). Structuring the parliamentary debate with the agents-orienta ted

model is done with the help of the “pro et contra dicere (to speak for and against)” (Boréus,

2017: 63). The first departing point is to find the issue expression, which in a parliamentary

debate is usually “what is being argued for or against” (ibid.: 64). In the case of the

parliamentary debate about the SBI for example the issue expression could either be “The

National Council should reject the SBI” or the opposite “The National Council should accept

the SBI”.

In support of the issue expression follow first order arguments, which can either be pro-

arguments (P1) or contra arguments (P2) of the issue expression. Second order arguments

support first order arguments, so for example P1P2 would be the first pro argument for the

second pro argument of the issue expression and so forth (ibid.: 64-66).

The second part of the method will relate the scholarly debate to the parliamentary debate

in order to get a holistic understanding of what concepts are taken in to consideration as well

as left out.

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4.2 Material

Because the material I am analyzing is the parliamentary debate about the initiative text,

it is important to briefly contextualize (1) how the federal popular initiative in Switzerland

works, (2) where in the process the material is from and (3) what the initiative text legally

demands.

4.2.1 The Federal Popular Initiative in Switzerland

The Federal Popular Initiative is one of the three tools of direct democracy in Switzerland,

which enables citizens to express their demands about changing the constitution. Once the

initiative is handed to the Federal Council, a statement of recommendation to the parliament

and voters “for” or “against” the initiative is agreed upon or it can choose to draft a

counterproposal. The parliament, consisting of the National Council and the Council of States,

needs to be in agreement to either accept or reject the initiative or its counterproposal. If the

initiative committee agrees with the counterproposal, it can withdraw its text, which leads to

the direct implementation of the counterproposal. If one of the councils disagree with it, a

popular vote decides whether the text of the initiative is inserted into the Federal Constitut ion

or not (ch.ch, n.d.).

4.2.2 The parliamentary debate of the SBI

The previous section is relevant to facilitate the understanding of which part of the

parliamentary debate was selected for the analysis. The Federal Council wrote a

recommendation to the parliament and voters to reject the SBI without the draft of a

counterproposal. Since then, the legal commission of the National Council has drafted a

counterproposal, which The Council of States rejected on 12th March 2019. Since the

parliament always needs to be in agreement, the debate bounced back to the National Council

(Konzernverantwortungsinitiative, 2020). It is therefore relevant to analyze arguments of the

parliamentary debate of the National Council, taking samples of the SVP (Swiss Peoples Party

– Right wing), the SP (Social Democrats – Middle Left), the FDP (Free Democratic Party –

Middle Rights wing) and the GP (Green Party – Left wing). In these debates, representatives

of different parties bring up arguments for and/ or against the initiative. The Council of States

should have voted upon the acceptance or rejection of the counterproposal again in March

2020, which was delayed due to the Covid-19 crisis. If the Council of States agrees to the

counterproposal, the text will immediately be implemented into the constitution, if it rejects

the proposal, there will be a popular vote on the original initiative text.

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4.2.3 Text of the Initiative

Article 101a(2)(a) of the constitution urges companies to align their business (at home as well

as abroad) with “internationally recognized human rights and international environmenta l

standards” (Bueno, 2018: 2). These standards must also be respected by companies they have

control over, meaning not only legally, but also economically, which includes “subsidiar ies

within a corporate group but also subcontractors or suppliers under certain circumstances”

(ibid.).

Compulsory due diligence requires these companies to adopt codes of conduct which are

outlined in Article 101a(2)(b), and making them liable for violations unless they can prove that

they took all necessary measures to prevent such damages, which grants access to effective

remedies by the Swiss court (Article 101a(2)(c)). Finally, to ensure that other laws do not clash,

this legislation will be implemented in the superior constitutional law (Article 101a(3)) (KOVI,

2015).

4.3 Delimitations

Due to space and time restrictions, I did not include the provisions and differences of the

recommended counterproposal. Additionally, an argumentation analysis on all politicians of

the National Council as well as the Council of States would have extended the limits the thesis

is bound to. It is also important to take into account that left, middle and right wing parties are

taken into the context of Switzerland. The entire spectrum could vary in other countries,

especially concerning the middle parties.

5. ANALYSIS AND DISCUSSION

How are the political leaders of the most densely MNC operating country in the world debating

about the implementation of a law for the regulation of MNCs on constitutional level? The first

section of this chapter seeks to answer this question by conducting an argumentation analys is.

The second section will then relate the arguments of the parliament to the academic debate in

order to draw correlations as well as identify possible ideas and concepts that are missing

therein.

5.1 Argumentation analysis

Placing the debate in an agents-orientated model, will help structure the material in a pro et

contra fashion, which will help the analysis on whether the arguments are convincing and how

26

they relate to one another. This provides a basis to then connect theoretical understandings with

political arguments in the next section.

5.1.1 Christa Markwalder

Christa Markwalder belongs to the FDP-The Liberals Party—which is classified middle right wing in Switzerland. Issue Expression: The original text of the SBI must be rejected

P1: Switzerland does not only accommodate MNCs, but also small and medium sized

enterprises, which would be affected by the initiative and have a negative impact on

Switzerland as an economic business location.

P2: Corporations are already realizing their responsibilities regarding Human Rights and the

environment in what is for them most plausible and reasonable.

P1P2: Most transnational corporations have signed the UN Global Compact and

adjusted their CSR programs accordingly.

P2P2: Additionally, they usually invest in foundations in the countries where

they are present.

P3: The initiative is very radical in its nature

P1P3: The SBI requires compulsory due diligence at constitutional level

P2P3: Not only for the parent company, but all its legal and economic

subsidiaries are liable for damages.

P3P3: The burden of proof lies with the company, meaning that transnationa l

corporations are under constant suspicion of not complying with human rights

as well as international environmental standards.

P4: The misconduct of a few individual companies has been used as a means to public scandal,

but we cannot draw general conclusions for the misconduct of single cases.

P5: The initiative committee is not considering what has already happened in the field of

Corporate Social Responsibility.

P1P5: Companies are already conducting their own mission statements as well

as expanding their compliance departments in order to follow national and

international standards.

P6: The initiative will not reach the aim that was intended by the initiative committee.

27

P1P6: The initiative committee is assuming that the Swiss legal system is better

than any other by placing this law above the local law of other countries.

P2P6: The initiative will risk that companies will pull out their business from

poor countries and therefore creating false incentives regarding foreign

investments.

P7: The initiative exceeds regulations that are in place for corporations in France, the UK or

the USA.

(Nationalrat, 2019: 2-3)

Discussion

What already happened in the field of CSR (P2) does not properly support the conclus ion

that the initiative should be rejected. A supporting element is missing from the argument

explaining how the regulation through CSR is sufficient concerning the demands of the

initiative text.

Foreign investments possibly being relocated as well as Swiss law risking to be reflected

as “better than” legal systems from other countries is well-argued and supports the main

argument that these considerations might not have been taken into consideration by the

initiative committee (P6).

Some of the arguments that Markwalder present are partly based on moral perceptions,

rather relying on a formal, well-supported claim, such as “the initiative is very radical” (P3).

This argument is supported by mere statements of the initiative text. If one were to exchange

the word “radical” with “progressive”, the same supporting statements could be used, which

makes its foundation weak. Moreover, that the initiative seeks to exceed previous regulat ions

(P7) is a fact, which could also be used as a counter-argument. The argument is missing support

to explain why this extension is dangerous or how it would impact Switzerland negatively.

5.1.2 Cédric Wermuth

Cédric Wermuth belongs to the SP—Social Democratic Party—which is classified as a middle left wing party in Switzerland. Issue Expression: The SBI shall be accepted.

P1: If you look at the headlines of the media from only the last month, it becomes evident that

more regulation must take place

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P1P1: Wermuth presents 12 headlines from international media stretching from

12 May to 13 June, where Swiss companies have been practicing misconduct in

regards to Human Rights and the environment.

P2: The group that is looking at the factual situation is the group that argues for the SBI’s

acceptance.

P1P2: It is not the profit-maximizing “bandits” who aim to squeeze out as much

profit as possible, regardless of committing atrocious violations on the way.

P2P2: It is not the people that think we are almost at the goal, all that is missing

is a tiny bit of self-regulation.

P3P2: It is the third group that is arguing upon the factual situation, identifying

correctly that the goal is far from reached.

C1: The majority of corporations are compliant with their activities abroad

C1C1: Due to the size of multinational corporations, even if only 20%

misbehave it is problematic and solutions need to be found for a sustainab le

globalization.

P4: The principle of the neoliberal revolution has been turned on its head in the last thirty years.

P1P4: Switzerland used to be a country where the idea of a liberal society, the

idea of liberalism, of a liberal democracy was anchored in the principles of the

responsibility of ethical action. It was always clear to the economic and politica l

elites that they needed to lead with a good example and that they carried this

responsibility more than anybody else, instead we blame the unemployed for

not having a job and took away responsibility from all the actors that really have

power in society.

P5: Parents teach their children that you cannot always behave flawlessly, but if your actions

hurt others, you need to take responsibility, this principle should be incorporated into our

constitution. If you cause harm or damage, you need to compensate for it as well as take active

steps to avoid such damage in the future.

C2: Some say that the initiative is too radical.

C1C2: The initiative is the opposite of radical

C2C2: It would have been radical to question the unequal economic relations

between the north and the south.

C3C2: It is not radical to promote the principle of Human Rights equally to

everyone.

(Nationalrat, 2019: 33-34)

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Discussion

Supporting the main argument by naming different headlines which reveal the non-compliance

of MNCs abroad, Wermuth demonstrates the need for more regulation, providing a well-based

pro argument for the conclusion that the SBI should be accepted (P1).

With the statement that people voting against the SBI are not looking at facts, it seems the

argument falls apart at its premise, especially through the more radical terms used in the

supporting argument that they are profit-maximizing “bandits” (P2).

By acknowledging that not all MNCs are violating human rights and environmenta l

standards (C1), Wermuth supports this premise with a counter-argument referring to the size

of MNCs, which have an immense impact on the globe. Therefore, by rejecting a counter-

argument, she takes into account a possible contra-argument, which is a well-suited tool to

form an argument.

Wermuth uses the everyday example of parental upbringing as an argument for the

conclusion. The question remains whether it is legitimate to compare the normative claim of

parent-child relationships with state-MNC relationships. In my opinion the comparison is a

false dichotomy, as there are many complex facets in the latter concerning corporate structures,

global agency and the question of responsibility (P5).

By refuting the premise that “the initiative is too radical” (C2) by providing support of the

arguments through (C2C1) something that is more radical and (C2C3) the modesty of

promoting human rights equally to everyone, Wermuth manages to ground her argumentat io n.

5.1.3 Regula Rytz

Regulat Rytz belongs to the GP—Green Party—which is classified as a left wing party in Switzerland. Issue Expression: The SBI should be accepted immediately.

P1: The SBI is part of the progressive tradition in Switzerland being a pioneer in search of

sustainable solutions from local to global problems, which has unfortunately been

compromised in the last decades, due to the interest in profits.

P1P1: Swiss banks have financed the apartheid regime in South Africa.

P2P1: Swiss companies have made their money from illegally mined gold for

years - gold that has the blood of the people who mined it and the stain of the

destruction of nature.

30

P3P1: Swiss companies produce highly toxic pesticides for countries in which

the population cannot defend themselves because environmentalists have to fear

for their lives.

P4P1: Switzerland is an international trading giant and with size comes

responsibility.

P1P4P1: A third of the world's crude oil is bought and sold in Geneva.

P2P4P1: Two thirds of the international trade in base metals such as

zinc, copper, aluminum etc. is carried out in Switzerland.

P3P4P1: Around 70 percent of the world's gold is refined in Switzerland.

P4P4P1: Two thirds of the grain traded worldwide

P5P4P1: Over half of the worldwide traded coffee goes through

Switzerland

P6P4P1: Half of the worlds traded sugar, cotton and so on and so on

pass through Switzerland.

P5P1: P4: In the past, Switzerland has been providing refuge to dictators and

criminals as well as their assets, which already needed to be corrected once

before and it will happen again to the Swiss commodities trading center as well

if we do not regulate the corporations committing these violations.

P2: The values of a modern democracy have been compromised with all the violat ions

committed by Swiss MNCs abroad and with the SBI, by finally taking responsibility, they can

be restored again.

P5: Responsibility needs to be assumed there where the impact is the greatest and that is not in

the green washed sustainability reports of the MNCs, it is where the violation is taking place.

(Nationalrat, 2019: 35-36).

Discussion:

Rytz is especially concerned with how Switzerland has damaged its reputation in the past and

how powerful Swiss MNCs are within the global economy. She mentions the SBI is important

to restore Swiss democracy and reputation and implies that voluntary measurements are only

used for publicity.

The way that the arguments are structured shows that Rytz wants to change the structural

difficulties that are underlying capitalism, which she supports with five pro-arguments of

violations committed, in order to maximize profits, regardless of harms that were caused. The

31

focus on restoring democracy and criticizing policies will be interesting to examine in the next

section.

5.1.4 Zanetti, Claudio

Zantti, Claudio belongs to the SVP—Swiss Peoples Party—which is classified as a right wing

party in Switzerland.

Issue Expression: The SBI must clearly be rejected.

P1: We should be doing nothing else than talk about how to improve Switzerland as a business

location, because that is what essentially is our raison d’être.

P1P1: In the first article of our constitution, it says that the confederation

“promotes common welfare”, which is not the aim of the SBI

P2P1: The initiative is a sabotage of the economy

P2: Globalization is a positive development, which the initiative will compromise.

P1P2: poverty is globally at its lowest, access to health care and clean water has

never been so advanced and hygiene is better than ever.

P2P2: Swiss based companies have massively contributed to these positive

developments in the world and it is something we can be proud of.

P3: The task of the state is to ensure that basic conditions are improved and not to take

economic-political decisions in other states.

P1P3: With this initiative, other states will not have the chance to improve

conditions for their citizens.

P2P3: Other countries do not want foreign judges to make decisions for them.

P3P3: This initiative will make the legislation vulnerable through high

administrative demands.

P4: Human Rights play no role at all in other countries, people will just try to file a lawsuit

with demands that are too high. For them, it is all about the money.

(Nationalrat, 2019: 33).

Discussion:

Promoting welfare, protecting Switzerland as a business location and praising globalization is

what can be taken from Zanetti’s argumentation. (P1) is a well-grounded concern, as Zanetti

32

discovers a possible clash with the first article of the constitution which must be analyzed

further. Whether or not globalization is good or bad (P2) can however not be taken to support

the issue expression that the SBI should be rejected, as it is not entirely relevant. In (P3),

Zanetti mentions that the state must realize basic conditions and not take economic politica l

decisions abroad. As the SBI is implemented on a national level to protect such basic

conditions, as well as only Swiss Companies are liable as a consequence, this argument also

lacks sufficient grounding to support the issue expression.

Further, (P4) is an emotional claim that makes presumptions on how victims abroad will

corrupt the law. As there is no supporting argument or case, this cannot be taken as support for

the issue expression.

5.1.5 Conclusion

First off, due to the argumentation being a debate, the arguments are mostly missing

supporting references. As a general observation, the representatives of the left-wing parties are

usually arguing in the dimensions of ethics and human rights, while the right-wing party’s

debate in the realms of the economic consequences and promoting welfare. Wermuth and Ritz

both use empathy arguments by working with numbers and listing cases of violations of MNCs

or the misconduct of Switzerland abroad. On the other side, Zanetti and Markwalder use

arguments of sovereignty, and constitutional values to promote common welfare as supporting

arguments to reject the initiative in order to maintain a free market economy. It becomes

evident therefore, that the parties do not provide arguments that overlap entirely, but stay within

their separate argumentation for ethics or for economics. These conclusions provide a relevant

basis for the next chapter, which is analyzing and weighing these arguments, by comparing

them to the scholarly debate in order to identify possible correlations, misconceptions or

concepts that are left out completely.

5.2 Application of the theoretical framework to the parliamentary debate

As mentioned above, this section seeks to analyze how the political debate in the

parliament is framed, whether core concepts that scholars talk about are considered and which

concepts are left out completely from the debate. In order to achieve this, four main themes

have been established.

33

5.2.1 Switzerland as an economic business location

One of the concerns in the parliament is that with the strict restrictions of the SBI, MNCs

will be encouraged to move their headquarters away from Switzerland to a country with less

restrictions. For this reason, Markwalder and Zanetti argue that international cooperation is

necessary to prevent damage for Switzerland as a business location (National Council, 2019:

2; 33).

This notion can be related to the scholarly debate about the structural problems of

neoliberalism. As mentioned in the theory chapter, not only does neoliberalism drive the

competition of MNCs, but they are so influential that states compete as well (Rodrik, 2011:

200-202).

According to precedent law, such as the French Duty of Vigilance that covers main points

of the initiative, it could be observed that the newly implemented legislation did not generate

a competitive disadvantage for French MNCs (Bright, 2020: 8).

Ritz, a representative of the Green Party, recognizes that “the values of democracy have

been compromised” (National Council, 2019: 35). This statement can be related to the

“trilemma” of hyperglobalization, national sovereignty and democracy - that Roderik (2011)

conceptualized. If we consider Ritz’ perception that democracy in Switzerland has been

compromised, in order to restore it, either the nation state must be eliminated or

hyperglobalization minimized. This can be done by implementing international standards—

such as the UNGP—into national legislation, which the SBI intends to do (Rodrik, 2011: 201).

Wermuth also recognizes that the “principle of the neoliberal revolution has been turned on its

head in the last thirty years” and mentions that Switzerland’s actions used to be anchored in

ethical actions (National Council, 2019: 34). Ulrich identifies this incapability of ethical action

by the state in times of “hyperglobalization” as a consequence of states being caught under the

constraint of the MNC’s capital exploitation, which in turn takes away the states power to factor

in ethics properly (Ulrich, 2016: 361-370).

These concerns can also be viewed from a global justice perspective. A primary agent of

global justice is responsible to set up a legal framework to ensure that secondary agents abide

by the rules. Shifting this responsibility to corporations and giving them the power to set their

own framework increases the dependency of the state and risks the MNC itself to become an

agent of global justice. Some scholars see this paradigm shift as dangerous, because if MNCs

are agents of global justice, they have obligations towards global justice, which justifies that

34

they get access to the same tools, as states have, to fulfil these requirements (such as military

power, government, etc.) (Hsieh, 2015: 226; Bishop, 2012: 130).

To conclude, the concern of Switzerland as a business location being in danger through

the acceptance of the SBI is a valid one, however there is a missing dimension, which connect

this structural problem to the effects of neoliberalism. Further, the French Duty of Vigilance

that was implemented in 2017 has not shown any such competition problems.

5.2.2 Is Corporate Social Responsibility enough?

Both Markwalder and Ritz use CSR as an argument in their debate, however to support

opposite conclusions. On the one hand, Markwalder implies that MNCs are realizing their

responsibility towards human rights and the environment by aligning their CSR policies with

international guidelines, such as the UN Global Compact (Nationalrat, 2019: 2). On the

contrary, Rytz argues that “responsibility needs to be assumed there where the impact is the

greatest and that is not in the green-washed sustainability reports of the MNCs” (Nationalrat,

2019: 35-36).

Applying theory to practice, it becomes evident that there are academics who argue for

both sides. As previously mentioned, the stakeholder theory endorses CSR as a sufficient tool

for corporations to act ethically, as long as they engage and cooperate with the stakeholders

affected by their practices. Criticism is exercised in the possibility of fair interactions between

the MNC and its stakeholders. It would therefore first be important to conduct a critical

stakeholder analysis in order to measure the bargaining powers of the stakeholders.

Cooperation could even lead to MNCs exploiting these power imbalances in order to achieve

their goal, which is what Banerjee calls “stakeholder colonialism” (Fleming & Jones, 2012:

70-76; Banerjee, 2007: 72). Orock goes further to explicitly mention the UN Global Compact

as a danger, because companies that adhere to it have reason to promote their CSR reports by

proving partnership with the UN, while no measurable progress has been done (Orock, 2013 :

30-35).

In order to prevent MNCs from green-washing their sustainability reports, Amnesty

International offers a solution, namely to implement mandatory information disclosure and due

diligence into national legislation—which in this case the SBI would do. Governments need to

assess the information which is public in order to prevent MNCs from misleading their

stakeholders (AI & BHR Resource Centre, 2017: 14).

35

Missing from the debate is whether the freedom/ voluntariness of corporations and yet

their assumed responsibilities through their CSR discourse can meet the demands of human

rights. Rights only exist when there is a legislation that guarantees them, which stems from

obligations. Therefore, according to Beck (2015), the voluntariness of CSR implies that

corporations have responsibilities and not obligations, which in turn means that rights – here

Human Rights – cannot be adequately protected by it (194). Whether corporations have

obligations towards Human Rights is discussed in the debate about global justice.

Zanetti mentions that it is the state’s duty to ensure that basic conditions must be ensured

(Nationalrat, 2019: 33). Taking into account that this means basic human rights must be

protected triggers the conversation about whether basic human rights can hold up with

neoliberalism. Moyn (2015) believes that human rights are too minimal in their nature to

balance out its “frère ennemi” neoliberalism (151-169).

Obligations that MNCs carry can be drawn from Rawls’ theory of justice, specifically in

the Duty of Assistance. Especially when conducting business in burdened societies, a MNC

does not only carry negative duties to do no harm, but also the positive duty to actively take

steps to strengthen institutions (Hsieh, 2004: 646). Further on the subject, Young (2004)

identifies how through the lens of capitalism, economics and politics has transcended borders,

but the obligations have remained within (371).

To conclude, CSR is realized as a problem in the parliamentary discourse of the Swiss

National Council, as it has been shown by relating it to the theory. Theoretical understand ings

of MNCs not only carrying responsibilities, but also needing to realize obligations within the

realms of global justice are missing in the political debate. Urges towards the state to take back

this obligation by legally transcending borders in order to ensure the protection of Human

Rights adequately have been made in both theory and practice.

5.2.3 International vs. State Law

Wermuth refers to international media headlines to demonstrate that Soft Law is not

sufficient (National Council, 2019: 33), whereas Markwalder declares the initiative to be too

radical because (1) it requires compulsory due diligence, (2) for the parent company as well as

its economic controlled subsidiaries and (3) due to the burden of proof being on the side of the

company, MNCs will always be under constant “suspicion of not complying with Human

Rights as well as international environmental standards” (National Council, 2019: 2)

36

According to Chesterman (2007), states from the Global North are much more drawn to

international soft law, which implies a sort of euro-centrism (328). The public negative media

attention, which Wermuth refers to (Nationalrat, 2019: 33) has had a positive outcome for

MNCs to set up private codes of conduct (Miller, 2015: 433). Miller (2015) distances herself

from global regulation and suggests that more work needs to be pushed in the debate around

transparency, as this will change consumer demands which will in turn improve working

conditions in the supply chain. For this reason, she suggests a “Transparency Act” (435-463).

Although many philosophers suggest that international law, especially the UN treaties and

the UDHR has corporations in its scope, in some treaties it has been consciously removed in

the General Comment (Ruggie, 2013: 40-41). This is mainly due to the reason that many

national legislations exclude corporations from being held accountable, which would create a

contradiction between national and international law (Ruggie, 2013: 42). For this reason, it is

common to target the state in which the wrong-doing has occurred, however this is a hard task

when institutions are weak, which is why Chesterman (2007) suggests regulation at the level

of “Home Jurisdiction” (323), de Schutter (2006) adds that this may only be done by getting

permission from the host state (8).

Zanetti argues that “human rights do not play a role in other countries” (Nationalrat, 2019:

33), which I interpreted as him meaning burdened societies with weak institutions in place (see

Rawls, 1999: 90), unable to enforce Human Rights protection. In such cases, Hsieh (2004)

believes that not just laws of extraterritoriality would be a solution, but also that MNCs have a

duty to assist in such societies by actively taking steps to promote their institutions (646).

Finally, although all the provisions that Wermuth calls “radical” (Nationalrat, 2019: 34)

are in the French Duty of Vigilance, the concerns are not well grounded, as precedent has

shown that even in France restrictions are still too slim to properly hold MNCs accountable.

Politicians of the National Council have included their legal concerns about implementing

the SBI into hard law on a national level in the debate. What is missing, however, is the debate

about precedent law, the duty to help burdened societies as a state (Rawls, 1990), as well as the

duty of assistance as outlined by Hsieh (2004) regarding MNCs.

5.2.4 State Sovereignty and Extraterritoriality

One hot debated subject of the SBI is that it reaches not only MNCs that are based in

Switzerland, but also corporations they have economic control over, meaning also third parties

in the supply chain that do not have to be legally affiliated with the MNC. Markwalder is

37

rightfully concerned with this notion by expressing that the SBI “is assuming that the Swiss

legal system is better than any other by placing this law above the local law of other countries”

(National Council, 2019: 2). Zanetti also thinks that the SBI would infringe on state sovereignty

and that “the task of the state is to ensure that basic conditions are improved and not to take

economic-political decisions in other states” (National Council, 2019: 33). Rytz implies that

an extraterritorial jurisdiction is needed to assume responsibilities where the impact occurs

(National Council, 2019: 35). Indeed, many lawyers are concerned with the same subject, as

there are some obstacles, such as (1) the danger of law shopping (Bright, 2020: 1), (2) the

difficulty to collect proof on other territories because official activities must only stay within

borders (de Schutter, 2006: 8) and (3) the forum non conveniens, which allows courts to allocate

the case to a better suited court (Chesterman, 2007: 315). There are some solutions to these

problems, such which should be to seek consent from the state in which another state wants to

intervene (de Schutter, 2006: 8). Additionally, the Council of Europe has advised against using

the legal doctrine of forum non conveniens when it comes to MNCs that have committed

Human Rights violations abroad (AI & BHR Resource Centre, 2017: 11).

Further, it is possible to learn from the French Duty of Vigilance and the US Alien Tort

Claims Act that such extraterritorial laws have been adopted and enforced before. The French

Duty of Vigilance is the most comparable legislation, as it also targets not only MNCs, but also

companies that they have economic control over.

Young (2004) calls for a need to adjust the situation that politics and the economy has long

transcended borders, but accountability has stayed within (371). Activists of the global justice

movement, as well as Roderik (2011) do not see limiting sovereignty as something necessarily

bad, because aligning national legislation with international guidelines could be a first step

towards global governance, and to still preserve democracy and globalization at the same time

(386).

To conclude, the concerns of Markwalder, Zanetti and Rytz are well supported and also

an extensively debated subject amongst philosophers and lawyers. The structural difficulties of

neoliberalism with its trilemma that it brings along, however are left out of the debate.

Precedent laws, their difficulties as well as successes could also be addressed by the politic ians

in order to constantly enhance what the UNGP intended to achieve.

38

6. CONCLUSION

The impunity of MNCs has been addressed in various ways. Philosophers and economists

have debated about the subject within the realms of neoliberalism and global justice, while

legal scholars have focused on theoretical law implementations on a domestic or internationa l

level. This paper analyzed how politicians argue about these issues in parliament by conducting

an argumentation analysis on the parliamentary debate of the Responsible Swiss Business

Initiative – A constitutional law, which consists of strict Due Diligence regulations, liability

for Human Rights and environmental violations caused abroad, as well as a remedy provision

enabling victims to access Swiss courts.

6.1 Findings

By relating the argumentation of the parliamentary debate to the academic debate, correlatio ns

as well as divergences came to light, which help answer the research questions how Swiss

politicians are presenting arguments in favor or against the SBI, as well as how these arguments

relate to the academic debate.

First, it could be observed that politicians belonging to the same party tended to argue in

the same dimensions. While left-wing parties mostly argue for responsibility, global justice,

agency and ethics recommending acceptance of the SBI, it can be observed that right-wing

parties take a more utilitarian course of maximizing utility and being concerned about

competition disadvantages. Therefore, to be able to weigh arguments, politicians should

consider to formulate more counter-arguments which they can then reject to make the debate

less one-sided.

Second, Swiss politicians realized the trilemma of “hyperglobalization”, nationa l

sovereignty and democracy in its simplest fashion. This “trilemma” of Rodrik (2011)

contributed to the understanding that Ritz wants to restore democracy, which means that the

political agenda should include debate about how to transfer some power to supra-nationa l

organizations in order to restore globalization. Another option is to limit it by giving more

power to the nation state, which means implementing national laws that turn around free market

economy. Aligning national guidelines with soft law, such as the UNGP could present a first

step towards global governance and global citizenship as the GJM strives for.

Third, structural problems underlying neoliberalism have been emphasized on by Rytz.

Egger sees a threat to the business location Switzerland, which is one of the structural problems

of neoliberalism—that capitalism leads to states being under the constraint of MNCs (Ulrich,

2016: 361-370). Therefore, what could be taken up in the debate is how dependent Switzerland

39

is and whether this dependency could be resolved by the implementation of the initiative or

slight alterations in that direction.

Fourth, the successes and deficiencies of the closest precedent law, the French Duty of

Vigilance, were not mentioned at all in the debate. This could enhance the understanding of

how it affected France, especially because so far no competition disadvantages have been

detected.

Fifth, CSR is expressed to be sufficient by some politicians, but criticized for lacking

enforceability and for being used as a tool to boost the reputation of MNCs. While this has

been shown to align with the academic debate, what has not been discussed is the relationship

of CSR policies, which work with the concepts freedom and responsibility and human rights.

It has been shown that freedom and responsibility cannot cover the duties and obligations that

rights carry. Taking up this point in parliament would be important, as CSR and the protection

of human rights has been discussed.

Sixth, the debate does neither include solutions in relation to the problems about

extraterritoriality, namely that consent could be sought from the host state in order to respect

state sovereignty, nor has there been any talk about regulation through codes of conduct as a

solution for more transparency to adjust consumer demands.

Finally, as the income of Switzerland is extremely dependent on GDP activities abroad, it

is good to see that politicians are talking about the nations responsibility towards global justice.

However, more contributions could be made towards realizing the responsibilities that MNCs

carry and how Switzerland can contribute to them realizing these responsibilities.

It can therefore be said that although most normative understandings can be correlated to

the arguments of politicians, these seven findings suggest that the debate can be extended.

6.2 Further Research

As this thesis focused on the practical debate, there are further factors that can be explored

with the same material in terms of analyzing the discourse to uncover precisely what the

underlying reasons for the arguments in the parliament are. This can be done by applying a

discourse analysis to examine linguistics and rhetoric, as well as whether persuasion techniques

were used. Additionally, a comparative case study could be conducted to examine whether

these findings are unique to Switzerland, or whether they also exist in countries that are similar

or completely different. Research in the field of the sociology of law could also reveal what

outcomes the implementation or rejection of the SBI has on society or how it compares with

what was argued in the political debate.

40

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