University of Pennsylvania Law Review
Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal authority. “These divergent images capture different moments of political promise and despair, at times focused on the immense power of the national project, and other times appreciating the vitality and durability of forms of governance that, without...great resources, continue to have social and political force.” Under both models, one system--either federal or sub-federal--has a predominant voice in deciding when and how international human rights law is implemented. Such either/or approaches seek to avoid the conflict and indeterminacy created when the distribution of constitutional authority is uncertain. At the traditional/hierarchical end of the spectrum, the conflict is interference with the ability of the nation to speak with “one voice” in foreign affairs, posed by “divergent and perhaps parochial state interpretations” of international law. At the revisionist/fragmentation end, the conflict, at its core, is interference with states’ rights by federal courts (without authorization to do so by the federal political branches) and by the political branches (particularly Congress, when it exercises the treaty power to legislate in areas beyond those specifically conferred in the U.S. Constitution, Article 1, Section 8). While the two paradigms described here are idealized and oversimplify the subtlety and hybridity within these paradigms, in fact much of the scholarship on federalism and human rights law in the United States loosely tracks one or the other of these two models, if not always in its purest form. This article argues for a third approach, premised on dialogue and intergovernmental relations as a way to negotiate, rather than avoid, conflict and indeterminacy. This approach links national and subnational governments in a dialogue about rights by “creat[ing] areas of overlap in which neither system can claim total sovereignty.” The dialogue emerges in these areas of overlap, particularly where differences arise in the extent to which national and subnational governments incorporate human rights obligations. Conflict and indeterminacy are desired conditions, so long as mechanisms exist to channel and resolve these differences and ambiguities, as a means of clarifying and articulating international human rights domestically. By contrast, where one system has sovereignty to act without the consensus and support of the other, the reach of international human rights law lacks both depth and breadth. Incorporating human rights norms into local law, state and local initiatives--particularly those that are legally binding--may increase the viscosity of human rights law in the United States. In performing these two important functions, state and local initiatives incorporating human rights standards may facilitate legally enforceable commitments at the national level. Far from adopting the revisionist perspective that states should displace the federal government in implementing, interpreting and enforcing international law, however, this article argues that the federal government should play a strong leadership role in coordinating information regarding state and local efforts to publicize best practices, to distill lessons learned, and to extract workable norms for possible adoption at the national level. Moreover, this article stops short of endorsing more ambitious proposals to involve state and local governments directly in the treaty-making process. While recognizing that subnational government units have participated on a limited basis in the World Trade Organization (WTO), in trade negotiations, and in various international environmental conferences, examination of state and local government involvement in such external international arenas is beyond the scope of this article. As for internal domestic incorporation of human rights law, however, a stronger coordination role by the national government is needed because “the Constitution created the institutions of the federal government precisely to avoid such balkanization of foreign policy and international affairs.” An Inter-Agency Working Group (along the lines of theme established under Executive Order 13,107) could play such a coordination role. Ultimately, it is in the federal government’s national interest to become more involved in monitoring and nurturing these local efforts. Under international law, the federal government is responsible for treaty violations of subnational governments and their officials. Even assuming international law eventually establishes liability for subnational governments, national governments will likely continue to be on the hook so long as these governments continue to assert control over their constituent units.
Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States Social Movements and Law Reform, 150 U. Pa. L. Rev. 245
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/415