The Persistence of Dualism in Human Rights Treaty Implementation
30 Yale Law & Policy Review 71 (2011)
Loyola University New Orleans College of Law Research Paper No. 2012-18
53 Pages Posted: 26 Sep 2012 Last revised: 20 Feb 2015
Date Written: 2011
Abstract
A close look at the much-discussed state and municipal efforts to implement human rights treaties in the United States exposes an apparent paradox: subnational legislators and executive agencies engage more frequently with unratified human rights treaties than with those that have been ratified and are thus binding law under the Supremacy Clause. This Article explains this phenomenon as a manifestation of how states and localities view their roles and responsibilities in our federalist system. Despite increasing subnational acknowledgment of international law, states and cities continue to take a dualist view of the project of human rights treaty implementation, which places accountability for treaty implementation squarely with the federal government. Because these instruments guarantee broad rights that are not easily divisible along traditional jurisdictional lines, however, the perpetuation of this dualist perspective presents a significant barrier to their implementation. A more dynamic federal-subnational relationship that encourages and promotes multi-level collaboration and jurisdictional redundancy is necessary to realize the goals of these instruments. The Article concludes with strategies for creating this kind of cooperative partnership.
Keywords: treaties, Supremacy Clause, subnational legislatures
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