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

56 Pages Posted: 8 Apr 2019 Last revised: 23 Feb 2020

See all articles by Charlotte Ku

Charlotte Ku

Texas A&M University School of Law

William Henning

Texas A&M University School of Law

David P. Stewart

Georgetown University Law Center

Paul Diehl

University of Texas at Dallas - School of Economic, Political and Policy Sciences

Date Written: April 1, 2019

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.

Keywords: federalism, international law, domestic law, transnational law, treaties, domestic application of international law, globalization

JEL Classification: K33, K42, O19

Suggested Citation

Ku, Charlotte and Henning, William and Stewart, David P. and Diehl, Paul, Even Some International Law is Local: Implementation of Treaties through Subnational Mechanisms (April 1, 2019). Virginia Journal of International Law, Vol. 60, Iss. 1, 2019, pp. 101-155, Texas A&M University School of Law Legal Studies Research Paper No. 19-54, Available at SSRN: https://ssrn.com/abstract=3367104 or http://dx.doi.org/10.2139/ssrn.3367104

Charlotte Ku (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce Street
Fort Worth, TX 76102
United States

William Henning

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States
817-212-3899 (Phone)

HOME PAGE: http://law.tamu.edu/faculty-staff/find-people/faculty-profiles/william-h-henning

David P. Stewart

Georgetown University Law Center ( email )

600 New Jersey Ave NW
Washington, DC 20001-2075
United States
2026629927 (Phone)

Paul Diehl

University of Texas at Dallas - School of Economic, Political and Policy Sciences ( email )

P.O. Box 830688, GR 31
Richardson, TX 75083
United States

HOME PAGE: https://www.utdallas.edu/chairs/profiles/diehl.html

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