Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal authority. “These divergent images capture different moments of political promise and despair, at times focused on the immense power of the national project, and other times appreciating the vitality and durability of forms of governance that, without...great resources, continue to have social and political force.” Under both models, one system--either federal or sub-federal--has a predominant voice in deciding when and how international human rights law is implemented. Such either/or approaches seek to avoid the conflict and indeterminacy created when the distribution of constitutional authority is uncertain. At the traditional/hierarchical end of the spectrum, the conflict is interference with the ability of the nation to speak with “one voice” in foreign affairs, posed by “divergent and perhaps parochial state interpretations” of international law. At the revisionist/fragmentation end, the conflict, at its core, is interference with states’ rights by federal courts (without authorization to do so by the federal political branches) and by the political branches (particularly Congress, when it exercises the treaty power to legislate in areas beyond those specifically conferred in the U.S. Constitution, Article 1, Section 8). While the two paradigms described here are idealized and oversimplify the subtlety and hybridity within these paradigms, in fact much of the scholarship on federalism and human rights law in the United States loosely tracks one or the other of these two models, if not always in its purest form. This article argues for a third approach, premised on dialogue and intergovernmental relations as a way to negotiate, rather than avoid, conflict and indeterminacy. This approach links national and subnational governments in a dialogue about rights by “creat[ing] areas of overlap in which neither system can claim total sovereignty.” The dialogue emerges in these areas of overlap, particularly where differences arise in the extent to which national and subnational governments incorporate human rights obligations. Conflict and indeterminacy are desired conditions, so long as mechanisms exist to channel and resolve these differences and ambiguities, as a means of clarifying and articulating international human rights domestically. By contrast, where one system has sovereignty to act without the consensus and support of the other, the reach of international human rights law lacks both depth and breadth. Incorporating human rights norms into local law, state and local initiatives--particularly those that are legally binding--may increase the viscosity of human rights law in the United States. In performing these two important functions, state and local initiatives incorporating human rights standards may facilitate legally enforceable commitments at the national level. Far from adopting the revisionist perspective that states should displace the federal government in implementing, interpreting and enforcing international law, however, this article argues that the federal government should play a strong leadership role in coordinating information regarding state and local efforts to publicize best practices, to distill lessons learned, and to extract workable norms for possible adoption at the national level. Moreover, this article stops short of endorsing more ambitious proposals to involve state and local governments directly in the treaty-making process. While recognizing that subnational government units have participated on a limited basis in the World Trade Organization (WTO), in trade negotiations, and in various international environmental conferences, examination of state and local government involvement in such external international arenas is beyond the scope of this article. As for internal domestic incorporation of human rights law, however, a stronger coordination role by the national government is needed because “the Constitution created the institutions of the federal government precisely to avoid such balkanization of foreign policy and international affairs.” An Inter-Agency Working Group (along the lines of theme established under Executive Order 13,107) could play such a coordination role. Ultimately, it is in the federal government’s national interest to become more involved in monitoring and nurturing these local efforts. Under international law, the federal government is responsible for treaty violations of subnational governments and their officials. Even assuming international law eventually establishes liability for subnational governments, national governments will likely continue to be on the hook so long as these governments continue to assert control over their constituent units

Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States Social Movements and Law Reform

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal authority. “These divergent images capture different moments of political promise and despair, at times focused on the immense power of the national project, and other times appreciating the vitality and durability of forms of governance that, without...great resources, continue to have social and political force.” Under both models, one system--either federal or sub-federal--has a predominant voice in deciding when and how international human rights law is implemented. Such either/or approaches seek to avoid the conflict and indeterminacy created when the distribution of constitutional authority is uncertain. At the traditional/hierarchical end of the spectrum, the conflict is interference with the ability of the nation to speak with “one voice” in foreign affairs, posed by “divergent and perhaps parochial state interpretations” of international law. At the revisionist/fragmentation end, the conflict, at its core, is interference with states’ rights by federal courts (without authorization to do so by the federal political branches) and by the political branches (particularly Congress, when it exercises the treaty power to legislate in areas beyond those specifically conferred in the U.S. Constitution, Article 1, Section 8). While the two paradigms described here are idealized and oversimplify the subtlety and hybridity within these paradigms, in fact much of the scholarship on federalism and human rights law in the United States loosely tracks one or the other of these two models, if not always in its purest form. This article argues for a third approach, premised on dialogue and intergovernmental relations as a way to negotiate, rather than avoid, conflict and indeterminacy. This approach links national and subnational governments in a dialogue about rights by “creat[ing] areas of overlap in which neither system can claim total sovereignty.” The dialogue emerges in these areas of overlap, particularly where differences arise in the extent to which national and subnational governments incorporate human rights obligations. Conflict and indeterminacy are desired conditions, so long as mechanisms exist to channel and resolve these differences and ambiguities, as a means of clarifying and articulating international human rights domestically. By contrast, where one system has sovereignty to act without the consensus and support of the other, the reach of international human rights law lacks both depth and breadth. Incorporating human rights norms into local law, state and local initiatives--particularly those that are legally binding--may increase the viscosity of human rights law in the United States. In performing these two important functions, state and local initiatives incorporating human rights standards may facilitate legally enforceable commitments at the national level. Far from adopting the revisionist perspective that states should displace the federal government in implementing, interpreting and enforcing international law, however, this article argues that the federal government should play a strong leadership role in coordinating information regarding state and local efforts to publicize best practices, to distill lessons learned, and to extract workable norms for possible adoption at the national level. Moreover, this article stops short of endorsing more ambitious proposals to involve state and local governments directly in the treaty-making process. While recognizing that subnational government units have participated on a limited basis in the World Trade Organization (WTO), in trade negotiations, and in various international environmental conferences, examination of state and local government involvement in such external international arenas is beyond the scope of this article. As for internal domestic incorporation of human rights law, however, a stronger coordination role by the national government is needed because “the Constitution created the institutions of the federal government precisely to avoid such balkanization of foreign policy and international affairs.” An Inter-Agency Working Group (along the lines of theme established under Executive Order 13,107) could play such a coordination role. Ultimately, it is in the federal government’s national interest to become more involved in monitoring and nurturing these local efforts. Under international law, the federal government is responsible for treaty violations of subnational governments and their officials. Even assuming international law eventually establishes liability for subnational governments, national governments will likely continue to be on the hook so long as these governments continue to assert control over their constituent units

Libya: A Multilateral Constitutional Moment?

The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a responsibility. This significant normative moment demonstrates how far international law has traveled and also where it has not yet traveled. The Libyan case was propelled by a mass movement in Libya, in the region, and ultimately in the international community, which mobilized Security Council action, relying on RtoP, to protect civilians in the face of brutality. In response to Libyan leader Muammar Qaddafi’s threat to slaughter his own people amid the “Arab Spring” of 2011, the Security Council authorized, inter alia, a limited military intervention to protect Libyan civilians, invoking RtoP. The assumption under RtoP is that individual states have primary responsibility for civilian protection and that, as a backstop, the international community has subsidiary responsibility for civilian protection by preventing and rapidly responding to genocide, war crimes, ethnic cleansing, and crimes against humanity. Military intervention pursuant to RtoP is, against that background, an option of last resort, when the other, more modest measures preferred as initial steps have failed (as discussed further in part II). Significantly, in the Libyan case, it was the Libyan people—as represented by an opposition movement (including numerous defecting government officials) that was demanding a more representative government—who called for Security Council intervention to mobilize an effective civilian-protection effort

Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States Social Movements and Law Reform

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal authority. “These divergent images capture different moments of political promise and despair, at times focused on the immense power of the national project, and other times appreciating the vitality and durability of forms of governance that, without...great resources, continue to have social and political force.” Under both models, one system--either federal or sub-federal--has a predominant voice in deciding when and how international human rights law is implemented. Such either/or approaches seek to avoid the conflict and indeterminacy created when the distribution of constitutional authority is uncertain. At the traditional/hierarchical end of the spectrum, the conflict is interference with the ability of the nation to speak with “one voice” in foreign affairs, posed by “divergent and perhaps parochial state interpretations” of international law. At the revisionist/fragmentation end, the conflict, at its core, is interference with states’ rights by federal courts (without authorization to do so by the federal political branches) and by the political branches (particularly Congress, when it exercises the treaty power to legislate in areas beyond those specifically conferred in the U.S. Constitution, Article 1, Section 8). While the two paradigms described here are idealized and oversimplify the subtlety and hybridity within these paradigms, in fact much of the scholarship on federalism and human rights law in the United States loosely tracks one or the other of these two models, if not always in its purest form. This article argues for a third approach, premised on dialogue and intergovernmental relations as a way to negotiate, rather than avoid, conflict and indeterminacy. This approach links national and subnational governments in a dialogue about rights by “creat[ing] areas of overlap in which neither system can claim total sovereignty.” The dialogue emerges in these areas of overlap, particularly where differences arise in the extent to which national and subnational governments incorporate human rights obligations. Conflict and indeterminacy are desired conditions, so long as mechanisms exist to channel and resolve these differences and ambiguities, as a means of clarifying and articulating international human rights domestically. By contrast, where one system has sovereignty to act without the consensus and support of the other, the reach of international human rights law lacks both depth and breadth. Incorporating human rights norms into local law, state and local initiatives--particularly those that are legally binding--may increase the viscosity of human rights law in the United States. In performing these two important functions, state and local initiatives incorporating human rights standards may facilitate legally enforceable commitments at the national level. Far from adopting the revisionist perspective that states should displace the federal government in implementing, interpreting and enforcing international law, however, this article argues that the federal government should play a strong leadership role in coordinating information regarding state and local efforts to publicize best practices, to distill lessons learned, and to extract workable norms for possible adoption at the national level. Moreover, this article stops short of endorsing more ambitious proposals to involve state and local governments directly in the treaty-making process. While recognizing that subnational government units have participated on a limited basis in the World Trade Organization (WTO), in trade negotiations, and in various international environmental conferences, examination of state and local government involvement in such external international arenas is beyond the scope of this article. As for internal domestic incorporation of human rights law, however, a stronger coordination role by the national government is needed because “the Constitution created the institutions of the federal government precisely to avoid such balkanization of foreign policy and international affairs.” An Inter-Agency Working Group (along the lines of theme established under Executive Order 13,107) could play such a coordination role. Ultimately, it is in the federal government’s national interest to become more involved in monitoring and nurturing these local efforts. Under international law, the federal government is responsible for treaty violations of subnational governments and their officials. Even assuming international law eventually establishes liability for subnational governments, national governments will likely continue to be on the hook so long as these governments continue to assert control over their constituent units

United States Human Rights Policy in the 21st Century in an Age of Multilateralism Respondent

Professor Harold Koh\u27s thoughtful article, A United States Human Rights Policy for the 21st Century, 46 ST. Louis U. L.J. 293 (2002), ends with the observation that globalization has both sinister and constructive faces. \u27 Indeed, we live in a world that is increasingly interdependent. Even some of those opposed to the project of globalization ironically depend on the tools of globalization to undermine it. Consider the terrorists who hijacked airplanes on September 11, 2001 and flew them into the World Trade Center and the Pentagon, killing thousands of innocent civilians from many different nations. The terrorists used the Internet and other online technology to spread the message of hate underlying their plot, transnational money transfers to finance it, and commercial airlines to execute it. Rather than allow such sinister forms of interdependence to flourish without an effective counter-weight, U.S. human rights policy in the twenty-first century should be more fully engaged in shaping and participating in international institutions and legal regimes that promote constructive forms of global interdependence. However, the United States has disengaged from a number of critical efforts to promote rule of law through multilateral institutions and regimes. This disengagement is disturbing and can be criticized on both normative and instrumentalist grounds. In this Response, I first discuss a number of international initiatives in which U.S. participation was sought but rejected or resisted. Second, I discuss normative considerations concerning U.S. participation in international institutions. Finally, I turn to instrumentalist considerations concerning U.S. involvement in these institutions

Human Rights in the United States Human Rights in the United States: A Special Issue Celebrating the 10th Anniversary of the Human Rights Institute at Columbia Law School: Foreword

This year marks the tenth anniversary of the founding of the Human Rights Institute (HRI) at Columbia Law School. Appropriately, it also marks the sixtieth anniversary of the Universal Declaration of Human Rights, the foundational instrument of the modern international human rights regime. When HRI was founded in 1998, it was established as a crossroads for human rights at Columbia, which would bridge theory and practice, human rights and constitutional rights, and law and other disciplines. From its inception, HRI has been a partner with the university-wide Center for the Study of Human Rights, which was established twenty years earlier as an interdisciplinary program to bring human rights scholarship into many academic fields. The Law School-based Institute was the brainchild of Professor Louis Henkin, who, as a founder of the university-wide program, recognized the need to train a new generation of human rights advocates, scholars, and teachers through scholarship regarding the law of human rights. This special volume celebrates one of HRI\u27s signature programs: Human Rights in the United States. While the United States played a leading role in the creation and development of modern international organizations and human rights law regimes, and there has been a bi-partisan commitment to advancing human rights in U.S. foreign policy for many decades, it has been less consistent in promoting international standards guaranteeing human rights as part of U.S. domestic law and policy. The Human Rights Institute was a path-breaker in recognizing that human rights do not involve merely scholarship and activism regarding what happens out there, but that human rights are implicated in domestic U.S. policies as well. This goal of affirming human rights at home was part of Henkin\u27s holistic vision of human rights as protected through a fluid regime of national, sub-national, and international instruments. To Henkin, constitutions have been every bit as important as treaties. Human rights around the globe are typically protected through domestic law, and the U.S. Constitution and U.S. domestic statutes are no different. Indeed, the U.S. Constitution has a particularly intimate relationship to the international human rights movement, since U.S. constitutionalism featured centrally in the creation of the modern conception of human rights

(Dis)Assembling Rights of Women Workers Along the Global Assembly Line: Human Rights and the Garment Industry Symposium: Political Lawyering: Conversations on Progressive Social Change

Some observers would like to explain away sweatshops as immigrants exploiting other immigrants, as cultural, or as the importation of a form of exploitation that normally does not happen here but occurs elsewhere, in the Third World. While the public was shocked by the discovery at El Monte, garment workers and garment worker advocates have for years been describing abuses in the garment industry and have ascribed responsibility for such abuses to manufacturers and retailers who control the industry. Sweatshops, like the one in El Monte, are a home-grown problem with peculiarly American roots. Since the inception of the garment industry, U.S. retailers and manufacturers have scoured the United States and the rest of the globe for the cheapest and most malleable labor-predominantly female, low-skilled, and disempowered-in order to squeeze out as much profit as possible for themselves. Along with this globalization, the process of subcontracting, whereby manufacturers contract out cutting and sewing to contractors to avoid being considered the employer of the workers, has made it extremely difficult for garment workers in the United States to assert their rights under domestic law. This Article examines the challenges garment workers in the United States face in asserting their rights in the global economy and investigates how transnational advocacy can be deployed to compensate for the inability of U.S. labor laws to respond to problems with international dimensions. Using a purely domestic U.S. legal framework, advocates can attack the problem of transnational corporations\u27 (TNCs) subcontracting in the United States. Such efforts, however, will have limited effect because of the global nature of the garment industry. Most efforts to change the structure of the garment industry have occurred within the limitations of U.S. law, even while there has been a predominant failure of the U.S. legal system effectively to utilize a human rights framework. While the nation-state has traditionally been viewed as the locus for the development and enforcement of rights-creating norms, it cannot adequately respond to all of the dynamics that now arise from markets that cut across borders. Violation of workers\u27 rights on the global assembly line calls for strategies that are transnational, and this Article highlights past successes and suggestions in this vein. Because of the difficulty of restraining TNCs in a global economy, no strategy used in isolation will be successful. We present here alternative strategies that can be used in multiple and flexible ways in the struggle for human rights

Sure Start Widnes Children’s Centres: An evaluation of a new programme

This project reports evaluates the publicity material created and used by Sure Start Widnes Children's Centres

(Dis)Assembling Rights of Women Workers Along the Global Assembly Line: Human Rights and the Garment Industry Symposium: Political Lawyering: Conversations on Progressive Social Change

Some observers would like to explain away sweatshops as immigrants exploiting other immigrants, as cultural, or as the importation of a form of exploitation that normally does not happen here but occurs elsewhere, in the Third World. While the public was shocked by the discovery at El Monte, garment workers and garment worker advocates have for years been describing abuses in the garment industry and have ascribed responsibility for such abuses to manufacturers and retailers who control the industry. Sweatshops, like the one in El Monte, are a home-grown problem with peculiarly American roots. Since the inception of the garment industry, U.S. retailers and manufacturers have scoured the United States and the rest of the globe for the cheapest and most malleable labor-predominantly female, low-skilled, and disempowered-in order to squeeze out as much profit as possible for themselves. Along with this globalization, the process of subcontracting, whereby manufacturers contract out cutting and sewing to contractors to avoid being considered the employer of the workers, has made it extremely difficult for garment workers in the United States to assert their rights under domestic law. This Article examines the challenges garment workers in the United States face in asserting their rights in the global economy and investigates how transnational advocacy can be deployed to compensate for the inability of U.S. labor laws to respond to problems with international dimensions. Using a purely domestic U.S. legal framework, advocates can attack the problem of transnational corporations\u27 (TNCs) subcontracting in the United States. Such efforts, however, will have limited effect because of the global nature of the garment industry. Most efforts to change the structure of the garment industry have occurred within the limitations of U.S. law, even while there has been a predominant failure of the U.S. legal system effectively to utilize a human rights framework. While the nation-state has traditionally been viewed as the locus for the development and enforcement of rights-creating norms, it cannot adequately respond to all of the dynamics that now arise from markets that cut across borders. Violation of workers\u27 rights on the global assembly line calls for strategies that are transnational, and this Article highlights past successes and suggestions in this vein. Because of the difficulty of restraining TNCs in a global economy, no strategy used in isolation will be successful. We present here alternative strategies that can be used in multiple and flexible ways in the struggle for human rights