International Law Often Happens Despite National Level Decision-Making (Or Lack Thereof)

by Janet K Levit

International law sometimes happens, whether the President likes it or not and whether Congress likes it or not. When national actors make decisions intended to chart (or stymie) the course of international law, supra-state, sub-state and/or non-state actors may neutralize, or even contravene, the effect of their decisions. In this sense, Hari Osofsky’s final post, as well as Peter Spiro’s October 19 post on the Military Commissions Act, resonates with me.

Consider the example that Hari Osofsky grappled with on Opinio Juris. The Bush Administration’s decision not to join the Kyoto Protocol is certainly not the end, or even the climax, of the climate change regulation narrative, and to focus on the decisions of national actors is to sever and ignore parallel transnational lawmaking processes that bluntly strive for, and are incrementally and imperfectly achieving, Kyoto-like goals. In addition to supra-national, national, state-based litigation, U.S. multinationals operating in Kyoto signatory countries are subject to local Kyoto-related emission targets, taxes and regulatory standards, forcing such companies to reassess their policies and practices abroad, which may impact practices within the U.S., as well. NGO’s not only collect information on environmental practices, but they have partnered with trade associations, inter-governmental organizations and investment funds to create incentives for corporations to reduce greenhouse gas emissions. The World Economic Forum has begun credentialing and monitoring companies for climate-change-related practices. Climate exchanges now allow members to trade emissions credits as long as members agree to phased, overall reductions in emissions levels. In addition to California’s recently adopted Kyoto-like legislation, several municipalities have created climate change protection programs, and in June 2005 the U.S. Conference on Mayors unanimously endorsed the U.S. Mayors Climate Protection Agreement, which requires municipalities to embrace Kyoto-like policies. Some of these efforts are slowly and incrementally changing behavior of both private and public entities.

I do not claim that this smattering of climate change initiatives is as effective, efficient and inclusive as a top-down, treaty-based effort. Nor do I believe that corporate actors have suddenly become environmentally altruistic; long term profit motives undoubtedly remain at the core of their decisions (yet, as Peter Spiro has argued in a recent article, the mere fact that their decisions are motivated by such self-interest does not in and of itself negate their normative impact). My modest claim is that the cumulative normative efforts of parallel lawmaking communities may ultimately subvert the President’s choice not to join Kyoto.

In this vein, I found this Sunday’s NY Times article, Immigrant Protection Rules Draw Fire, evocative. As politicians in Washington hotly debate “secure fences,” temporary worker programs, and some type of modified amnesty for those illegal immigrants already present in the U.S., many states and municipalities are making parallel decisions which, collectively, may have the ultimate effect of circumventing national decision makers and decision making. These immigrant protection rules, sometimes referred to as sanctuary rules, prohibit local and state officials from asking about immigration status during the course of an investigation. In creating a limited type of safe-haven for illegal immigrants, these laws have been particularly useful in prodding witnesses to come forward during the course of criminal investigations and prosecutions. Twenty-three states have enacted such laws, and several cities have followed their lead.

I recognize that other, competing, state and local immigration-related initiatives assume a much more hostile stance toward illegal immigration. And I further recognize that federal legislative action could pre-empt the effect of some, if not all, of these rules. Yet, for the time being, while the politicians bicker and posture, many immigration-related questions remain unresolved at the federal level. Ultimately, will these types of bottom-up initiatives, initiatives emanating from the trenches where an illegal immigrant’s world intersects with the practical exigencies of local officialdom, effectively answer to some of the outstanding immigration questions that federal lawmakers have, to date, left pending?

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