The States Continue to Exist in Foreign Affairs: Implementing Treaties

by Julian Ku

Among my many hobby-horses is a  fascination with the role of the individual American states in the interpretation and implementation of international law within the U.S.  In past work, for instance, I have argued that states can individually implement treaties via guidance from Uniform Laws. I had a few examples of this phenomenon in my article, and I think it will be an increasingly common way for the U.S. to carry out its treaty obligations for those matters that are handled by state governments under American law.

So I was glad to run across this article about controversy over a bill in Idaho to conform to the 2008 Amendments to the Uniform Intercountry Child Support Act. The controversy stems from the fact that the 2008 Amendments require states to recognize and enforce child support orders from countries that are members of the Hague Convention on Child Support and that lawmakers in Idaho are concerned that states applying Sharia law might have their orders enforced by Idaho courts.  Putting this controversy aside for a moment, it is worth noting that states ultimately have a choice whether or not carry out U.S. obligations under the treaty, even though the U.S. has obligations under international law.  The federal government has decided to encourage states to carry out the treaty obligations via the spending clause by tying federal funds to adopting the 2008 amendments.  But states like Idaho can choose to not take the funds, and essentially refuse to comply with the treaty.

So it is worth noting, and perhaps celebrating, this continuing trend of relying on states to carry out US treaty obligations.  I think this trend is likely to continue.

http://opiniojuris.org/2015/04/14/the-states-continue-to-exist-in-foreign-affairs-implementing-treaties/

5 Responses

  1. Thanks for pointing this out. Indeed refusal of federal grants (cf. Sean Nicholson-Crotty, “Leaving Money on the Table, Publius 42 no3) is rather recent strategy, and strong argument against cooperative federalism.It’s also an argument for “coexistence in foreign affairs”, very limited but still.

  2. Julian: it is an interesting area. Of course, states are expressly bound under the Supremacy clause re: “all” treaties of the United States and there is a rich history of the reach of treaties vis a vis the states (including operative treaties with native American nations, tribes, and peoples) — e.g., http://ssrn.com/abstract=1484842 And, of course, there is the problem posed by federal preemption.

  3. Re: Of course, states are expressly bound under the Supremacy clause re: “all” treaties of the United States” …

    Another interesting conumdrum is the interplay between the foreign commerce clause, the treaty obligation to accept decisions of the UN Security Council on sanctions, and individual state determinations which prohibit investment of their own pension funds & etc. in businesses doing commerce with countries that the Executive branch has placed on the State Department list of “State Sponsors of Terrorism”. See for example: “Deal or not, many U.S. states will keep sanctions grip on Iran” http://www.reuters.com/article/2015/04/13/us-iran-nuclear-states-idUSKBN0N40CX20150413?feedType=RSS&feedName=worldNews&rpc=69

  4. States had prosecuted international crimes from the Founding to the end of the 19th Cent. at least — and they should be able to do so today, even exercising universal jurisdiction. There should be no federal preemption when the feds refuse to indict and prosecute under federal statutes — and we have no fed. stat. for crimes against humanity as such.

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