Even Some International Law is Local: Implementation of Treaties through Subnational Mechanisms

Abstract

Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government reserves the authority to compel compliance in case a State adopts a rule contrary to an international agreement which would place the United States in breach of its international obligations. This article examinees the role constituent States in the U.S. system play in treaty implementation through their legislative authority. The subject is of interest to determine the conditions under which State interests and authority might be taken into account for undertaking and implementing U.S. treaty obligations. This article examines the processes under which subnational implementation of international treaties can be brought to fruition and when it fails; when there are Uniform Law Commission products and drafting expertise available to facilitate implementation at the State level; and whether these approaches might enhance the ability of the United States to implement treaty obligations.