State Law Implementation of Private International Law Treaties by Joseph Phillips

Report: State Law Implementation of Private International Law Treaties Kathleen Patchel

I. Introduction At one time, international law was considered to be law that affected only rights of nations vis a vis each other, and not the rights of individuals residing in those nations. Increasingly, however, international law has moved towards rules that govern the rights of individuals. Many of these rules have developed in the human rights area, but increasingly states are entering treaties to govern not only aspects of public law, but also of private law. The treaties with which this Report is concerned are treaties in the area of private law. The whole purpose of these treaties is to govern the conduct of individuals– to establish uniform rules across international borders for the conduct of commercial, family law and other matters. These treaties primarily are those of three international organizations created for the purpose of furthering uniformity in private international law – The Hague Conference on Private International Law, the International Institute for the Unification of Private International Law (UNIDROIT) and the United Nations Commission on International Trade Law (UNCITRAL). The subject matter of these treaties is in large part governed by state law in the United States, and often by uniform state laws, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL). State law regulation of these areas domestically has not been in general problematic, at least in part because of the uniformity provided by the NCCUSL uniform laws process. Indeed, the effectiveness of state law regulation is in part demonstrated by the fact that international agreements now being promulgated in these areas often reflect in large part the substance of that state law. State law regulation in these areas also is supported by the practicalities of the structure of our federalist government. The national government of the United States is designed to be a government that regulates interstitially – it does not have general powers, but only those enumerated in the Constitution, and while it can bring to bear tremendous resources with regard to the issues that it does regulate, it is not designed to be able to regulate everything, or even most things. Instead, it was designed to regulate in those areas of particular national interest, while leaving the regulation of the day to day activities of citizen’s lives in large part to the states, who do have general legislative power. Federal regulation usually is accompanied by agency rule-making and, often, by specialized adjudicative bodies as well. While the federal government has considerable resources, it does not have the resources to commit to that type of comprehensive regulation with regard to every topic that may affect the citizens of the United States. That role, instead, was left by the Framers to the governments of the states and their subdivisions. This does not mean, of course, that over time matters that were once purely local matters may not become matters of particular national concern, and, thus the appropriate subject of federal regulation. The fact that the subject matter of national regulation may change over time, however, does not change the basic principle that the national government is designed to regulate with regard to matters of particular national concern, while the states provide the background of more general regulation of society. -1-

International agreements governing private law areas, however, raise the prospect that these areas will become, at least in part, governed by federal law, not because there is any national interest in federalizing the areas as a matter of domestic policy, but merely because these areas have become the subject matter of a treaty at the international level – a treaty not designed to further pressing public interests of the United States, but rather to further the private interests of U.S. citizens by providing them the benefits of uniform rules governing their private relations at the international level. Nevertheless, because a treaty, if self-executing, has the effect of federal law, and, if not self-executing, is usually implemented through federal law, these private international law treaties create the very real possibility that state law in these areas will be preempted, even though the subject matter of these treaties does not present the sort of national interest that normally is present to justify federal regulation and preemption. This development is of concern both to NCCUSL, whose uniform laws are often the source of current state law, and whose mission is to represent the states in the drafting of uniform state laws, and to the U.S. State Department, which often finds itself facing opposition to private international law treaties in the Senate based on concern that the proposed private international law treaties will preempt state regulation in areas traditionally regulated by the states. The two organizations have agreed to work together to see if methods can be found to facilitate implementation of these treaties, which often further the same uniformity interests that motivate uniform legislation, while also preserving the state interest in maintaining an appropriate federalstate balance after implementation. One way to accommodate both federal and state interests in this area is to use state law to implement these private international law treaties. State law implementation would avoid the preemptive effect normally associated with ratification of treaties, and, thus, in large part preserve the existing federal-state balance with regard to the subject matter of the treaty being implemented. From the perspective of the national government, however, state law implementation must also provide sufficient assurance that the United States will be able to meet the international obligation it undertakes when entering a treaty that it will implement the treaty in good faith. Any method of state implementation employed must be one that provides for both sufficient uniformity and sufficiently expeditious enactment to satisfy this good faith obligation. This Report discusses various techniques that might be utilized to achieve state law implementation of private international law treaties. Part II discusses relevant principles with regard to the law of treaties as a background for the discussion of possible implementation techniques. Part III then discusses two techniques that have been used in the past to allow state implementation – reservations, understandings, and declarations, and federal-state clauses – as well as two techniques developed in the domestic context for encouraging state law implementation of federal policy – conditional spending and conditional preemption – that seem readily adaptable to the treaty implementation context. II. Basics of Treaty Law A. Nature of a Treaty -2-

United States treaties have a dual nature. 1 For purposes of international law, a U.S. treaty is an agreement by which the United States and the other parties to the treaty intend to bind themselves to undertake the obligations stated in the treaty. At the level of U.S. domestic law, however, a treaty is a type of federal law, with all the consequences that status entails. The role of a treaty as an international obligation and its role as internal federal law are distinct, although usually complementary. These principles are discussed in more detail below. 1. U.S. Treaty as an International Obligation The Restatement (Third) of the Foreign Relations Law of the United States (“Restatement (Third)”) defines an “international agreement” as “an agreement between two or more states or international organizations that is intended to be legally binding and is governed by international law.” 2 At the level of international law, then, an international agreement (including a treaty) is 1

As the U.S. Supreme Court stated in the Head Money Cases, 112 U.S. 580, 598 (1884): A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. ... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.

American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States §301 (1987) (hereinafter “Restatement Third”). Cf. United Nations Vienna Convention on the Law of Treaties Art. 2(a)(hereinafter “Vienna Convention”) (defining a “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”) As the Restatement (Third) notes, international agreements may be given a number of different names, but “[w]hatever their designation, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise.” Restatement (Third) §301, Cmt a. The type of international agreements with which this memo is concerned – multilateral agreements negotiated under the auspices of various international organizations with regard to private international law topics – normally are designate “conventions” rather than “treaties.” See United Nations Treaty Collection, Treaty Reference Guide, Part I : when “convention” is used as a specific term, it now is generally used for formal multilateral treaties with a broad number of parties. Conventions are normally open for participation by the international community as a whole, or by a large number of states. Usually the instruments negotiated under the auspices of an international -3-

in the nature of a contract between the nations that enter into it. 3 Once a treaty takes effect in a nation, the nation is bound by its terms and under the doctrine of pacta sunt servanda has the obligation to perform the treaty in good faith. 4 For purposes of international law, this good faith duty to carry out the terms of a treaty survives any restrictions that may be placed on the treaty as a matter of a particular nation’s domestic law. 5 The manner in which a treaty is implemented is left for determination by the individual nations bound by it, subject to this obligation of good faith. A federal state may leave implementation of a treaty to its constituent units, but the national government remains responsible for failures of compliance. 6 The process by which a particular nation gives its assent to be bound by a treaty is determined by the law of that nation. Under the United States Constitution, both the Executive and the Senate play a part in treaty-making. Article II, section 2 of the Constitution provides that the Executive shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur. Under this provision, the Executive is responsible for selecting and instructing the negotiators, monitoring their progress, and ultimately deciding whether what has been negotiated is organization are entitled conventions . . . . The same holds true for instruments adopted by an organ of an international organization. As the U.N. Treaty Reference Guide notes, “[t]he term ‘treaty’ has regularly been used as a generic term embracing all instruments binding as internal law concluded between international entities, regardless of their form designation,” and “convention” also can be used generically as interchangeable with the term “treaty.” Id. In U.S. law “treaty” has a more specialized meaning – it is an international agreement that is subject to the ratification procedure established in the Constitution (as opposed to, for example, an executive agreement.). Restatement (Third), Pt. III, Introductory Note, at 144. Thus, an international agreement that is called a “convention” and is subject to the Article II ratification process is, technically, for purposes of U.S. Constitutional law, a “treaty.” As the multilateral conventions that this Memo discusses are subject to the ratification process, this Memo uses the term “treaty” rather than the term “convention.” 3

Restatement (Third), Introductory Note, Pt III, at 147 (noting that “international agreements often resemble contracts.”). International agreements, however, have an additional importance in that treaties are a principal source of international law. Id. at 144. 4

Id. §321.

Id. §321, cmt a; see id. §115(1)(b) (the U.S. is not relieved of its international obligation by actions taken under domestic law that supercede the treaty’s effect as a matter of domestic law). 6

Id. §321, cmt. b. -4-

acceptable. Once a treaty is concluded, the Executive makes the determination as to whether to send the treaty to the Senate for its advice and consent, and, if the Senate consents to the treaty, whether or not the treaty should be ratified. Ratification by the Executive is the point at which the treaty is “made” for purposes of U.S. law; 7 however, with regard to the multilateral conventions with which we are concerned, the point at which the treaty comes into effect is determined by provisions in the treaty itself. These provisions normally require deposit of the assent to the treaty with a designated authority and provide that the treaty will not go into effect among the parties until a certain number of assents have been deposited. 8 A treaty with these provisions does not become effective, either as an international obligation or as domestic law, until these treaty provisions are satisfied. The Senate’s role under Article II, section 2 is to give “advice” to the Executive and to give its “consent” to the treaty. 9 Over time, the Executive has rarely sought the Senate’s formal “advice” during the negotiation of a treaty, preferring instead to consult with leaders and relevant committees of the Senate during the negotiation of a treaty.10 On the other hand, the Constitutional requirement that the Senate “consent” to a treaty before it can be ratified by the Executive has become a crucial step in the treaty-making process, and is an important check upon the Executive’s power to make foreign policy by treaty.11 As practice has developed, the 7

Louis Henkin, Foreign Affairs and the Constitution 130 (Norton Library ed. 1975).

For example, the recent Hague Convention on Choice of Court Agreements provides that “[i]nstruments of ratification, acceptance, approval and accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, Depositary of the Convention.” Hague Conference on Private International Law, Convention on Choice of Court Agreements, Art. 27(4) (hereafter “Choice of Court Convention”). The Choice of Court Convention further provides that it will “enter into force on the first day of the month following the expiration of three months after the deposit of the second instrument of ratification, acceptance, approval or accession referred to in Article 27.” Id. at Art. 31. 9

Interestingly, Professor Henkin suggests that the Framers chose the Senate to have a role in the treaty-making process in part because of “its character as the particular representative of state interests,” noting the fact both the Senate and the President were only indirectly responsible to the people, as neither was directly elected by the popular vote. Henkin, supra note 7, at 130, n.4. (Under Article 1, section 3, Senators were chosen by the State Legislatures. The Seventeenth Amendment provided for their election directly by the voters.) 10

Henkin, supra note 7, at 131.

Id. at 132. Cf. E. Corwin, The Constitution and World Organization 36 (1944):

izes treaty-making as one continuous process to be performed by a single authority, the President acting throughout in consultation with the Senate. From the first, however, the Senate insisted upon asserting its independence of identity in the treaty-making business, thereby splitting the constitutional authority into two authorities, performing separate differentiated functions, a Presidential function of formulation and negotiation followed -5-

Senate has not felt that it was limited to an up or down vote on a proposed treaty. Instead, the Senate may in a particular situation give its consent with reservations, which may require modification of the terms of the treaty, or it may state a particular interpretation of the treaty, or place a limitation on its consequences.12 Ratification also may be given subject to the passage of implementing legislation.13 Once, however, the Senate has consented, the Executive is free to make (or not make) the treaty, and the Senate has no further authority with respect to it.14 If the Executive does proceed to ratify the treaty, however, it is done subject to the provisos stated by the Senate.15 2. Effect of a Treaty on National Law The effect that a treaty has on the domestic law of a nation that has become a party to it is determined by the law of that nation. In the United States, the effect of a treaty on U.S. law is stated in the Supremacy Clause of the U.S. Constitution, Article VI, section 2, which provides that This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This language has been interpreted to mean that treaties are on an equal footing with federal legislation. In the early case of Foster v. Neilson,16 Chief Justice Marshall stated that A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective by a Senatorial function â&#x20AC;&#x201C; completely legislative in character and motivation â&#x20AC;&#x201C; of criticism and amendment, or of criticism and rejection. (quoted in Henkin, supra note 7, at 131 n.7.) 12

Henkin, supra note 7, at 133. As reservations often require renegotiation of aspects of the treaty, they are something that the Executive normally tries to avoid. See id. The Supreme Court has expressly recognized the power of the Senate to give its consent with reservations. Haver v. Yaker, 9 Wall. 32, 35 (1869). 13

Henkin, supra note 7, at 159.

Id. at 136.

Id. at 135.

2 Pet. 253 (1829). -6-

parties to the instrument. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. . . .17 As the italicized language from Foster indicates, however, a treaty standing alone becomes law of the United States pursuant to the Supremacy Clause only if it is self-executing; if further action is required to effectuate the treaty, then the treaty does not automatically become part of U.S. law under the Supremacy Clause. Instead, Congress must enact legislation implementing the treaty before the treaty has any effect on U.S. domestic law.18 Further, when implementing legislation is used to effectuate a treaty within the U.S., it is not the treaty, but the implementing legislation that becomes part of the law of the United States under the Supremacy Clause.19 Whether a treaty is self-executing is determined in the first instance by the Executive, who decides whether or not to request implementing legislation from Congress.20 The Senate, as a condition of its consent to a treaty, also can require that implementing legislation be sought.21 If a treaty for which there is no implementing legislation is asserted as a rule of law in court, then the court must make the determination as to whether the treaty is self-executing and thus entitled to be given effect as law.22 Because a treaty is in the nature of a contract, courts view this determination as a question of interpretation of the intent of the parties to the agreement.23 In addition, some treaty obligations cannot be self-executing. For example, a treaty cannot appropriate funds because the Constitution expressly provides that â&#x20AC;&#x153;No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,â&#x20AC;?24 and a treaty is not considered law for this purpose.25 Therefore, any financial undertaking in a treaty must be effectuated by an appropriation from Congress. A treaty also cannot enact criminal law, as there 17

Id. at 314 (emphasis added).

Henkin, supra note 7, at 157.

Id. at 157, n. +. Of course, the implementing legislation may give the treaty itself legal effect or incorporate it by reference. Id.

Id. at 158.

Id.

U.S. Constitution, Art. I, Â§9, cl. [7].

Henkin, supra note 7, at 159. -7-

is no federal common law of crimes: enforcement by penal sanctions requires implementing legislation from Congress.26 If a treaty requires implementing legislation, the international obligation undertaken by the United States in becoming a party to the treaty requires the President to seek legislative implementation promptly.27 Congress’ power to pass implementing legislation for a treaty is found in the Necessary and Proper Clause, Art I, section 8, clause 18, which authorizes Congress to pass “all Laws which shall be necessary and proper for carrying into Execution” not only its own powers, but “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”28 Because a self-executing treaty is given the same status as other federal legislation under the Supremacy Clause, when the self-executing treaty is inconsistent with other federal legislation, the one that is later in time controls.29 The self-executing treaty controls over a previous federal statute that is inconsistent with it. On the other hand, subsequent federal legislation that is inconsistent with an existing self-executing treaty controls over the treaty. A similar rule applies with regard to federal implementing legislation for a non-self-executing treaty – the federal implementing legislation controls over prior inconsistent federal statutes, but is superceded if Congress subsequently passes legislation that is inconsistent with it.30 This “last 26

Henkin, supra note 7, at 159. The Restatement (Third) summarizes these rules as follows: a treaty is nonself-executing if (a) “the agreement manifests an intention that it shall not become effective as domestic law without enactment of implementing legislation;” (b) “the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation,” or (c)”implementing legislation is constitutionally required.” Restatement (Third) §111(4).

Henkin, supra note 7, at 158, n. ***.

Missouri v. Holland, 252 U.S. 416, 432 (1920) (Congress has the power under the necessary and proper clause to pass legislation to implement a valid treaty). 29

Whitney v. Robertson, 124 U.S. 190, 194 (1888) : By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no supreme efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing.

Henkin, supra note 7, at 163, n. ** (“Since a non-self-executing treaty is not law of its own accord, any inconsistency between such a treaty and an Act of Congress is, as regards domestic law, an inconsistency between the latter and the statute implementing the treaty.”). -8-

in time” rule means that Congress can by ordinary federal legislation abrogate the effect of a treaty as U.S. law. That subsequent legislation, however, does not affect the validity of the treaty for purposes of international law or the obligations that the U.S. has incurred under the treaty.31 At the international level, the result of subsequent inconsistent federal legislation is to compel the U.S. to go into default with regard to its treaty obligations.32 C. Effect of a Treaty on State Law Under the Supremacy Clause, a self-executing treaty, or federal implementing legislation for a treaty that is not self-executing, at the very least supercedes inconsistent state law.33 Because federal law is “supreme” with regard to inconsistent state law, this is true without regard to whether the inconsistent state law was enacted before or after the treaty. The impact of preemption on state law, however, can potentially go well beyond simply superceding inconsistent state law.34 If the Court finds that the self-executing treaty or federal implementing legislation was intended to “occupy the field,” then all state regulation within the scope of the field will be preempted, even if it is consistent or supplementary or, indeed, even if it deals with an issue with regard to which the federal law is silent.35 Further, the U.S. Supreme Court has found that state law can conflict with federal law not only when its requirements are at odds with the federal law, but also if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”36 Under this type of conflict preemption, even identical, consistent or supplementary state regulation will be preempted if the state regulation interferes with the method by which Congress chose to carry out the goals of the federal statute.37 31

Restatement (Third) §115(1) & (2).

Henkin, supra note 7, at 164.

U.S. Constitution, Art VI, sec. 2 (“all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”); Henkin, supra note 7, at 242. 34

Henkin, supra note 7, at 242.

Id. at 242. Cf. Hines v. Davidowitz, 312 U.S. 52 (1941) (striking down Pennsylvania’s alien registration law although it was consistent with the federal alien registration law because the Court found Congress had intended to occupy the field). 36

Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88 (1992).

Id.; e.g., American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003) (California statute requiring insurance companies to provide information to facilitate resolution of Holocaust victims’ claims conflicted with the spirit and goals of executive agreements between the president and various foreign entities intended to induce voluntary compensation instead of litigation and coercive sanctions.). -9-

Preemption is a question of the intent of the federal law-maker, which may be stated expressly or may be implied. It involves two basic questions: first, did the federal law-maker intended to supercede in any respect state law, or was the intent instead that federal and state law regulate concurrently?; and second, if there was an intent to supercede state law, what was the intended scope of the preemption? The following quote provides a concise statement of the various rules of preemption: Express preemption occurs when Congress explicitly provides in a statute that federal law will supercede, limit, alter or otherwise override state laws. Implied preemption may arise through congressional occupation of a field or through conflict between state and federal law. Implied preemption through occupation of a field may be found when federal law is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it” or when “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” If Congress has neither expressly preempted state law nor occupied the field of legislation, courts will find state law preempted to the extent that state and federal law conflict. Conflict may be found either where compliance with both federal and state law constitutes an impossibility, or where state law frustrates the purpose of a federal enactment. Whether express or implied, when determining whether federal law preempts a particular state law, congressional intent serves as the “ultimate touchstone” of preemption analysis. However, courts will “assume Congress does not exercise [its power to preempt] lightly.” In fields of law traditionally regulated by the states, there is a presumption against preemption unless Congress’s intent is clear and unambiguous. When Congress intends to preempt areas of law historically occupied by the states, . . . its intentions must be “clear and manifest.” In those fields traditionally occupied by the federal government, such as international relations, courts show far more deference to federal prerogative than in those areas in which states and the federal government possess concurrent authority.38 The Supreme Court has been more reluctant in recent years to find an intent on the part of Congress to engage in field preemption; however, as the above quote states, when determining Congressional intent, the courts apply presumptions, one of which is that federal law in areas of national concern, such as foreign relations, is more likely to involve a broad scope of preemption. D. Constitutional Limits on the Treaty Power The Constitution does not expressly impose limitations on the treaty power, other than 38

Shea C. Meehan & D. Benjamin Beard, What Hath Congress Wrought: E-SIGN, the UETA, and the Question of Preemption, 37 Idaho L. Rev. 389, 392-93 (2001) (citations omitted). -10-

the requirement that treaties must be made with the advice and consent of the Senate. Further, the language of the Supremacy Clause distinguishes between “Laws of the United States made in Pursuance” of the Constitution and “all Treaties made, or which shall be made, under the Authority of the United States” in declaring what constitutes the supreme law of the land. Based on the absence of restraint and the language of the Supremacy Clause, the Supreme Court39 (and others) once argued that the treaty power might not be subject to the restrictions of the Constitution at all, but rather on an equal par with that document. 40 It is clear now, however, that the treaty power is subject to the same Constitutional restrictions that apply to the exercise of other federal government powers.41 Thus, treaties are subject to the explicit restrictions contained in the original Constitution – for example, the prohibitions of Article I, section 9 against conferring a title of nobility, placing a duty on articles exported from any state, and giving preference to the ports of one state over another – as well as those contained in the Bill of Rights.42 Further, as with other federal powers, treaties are subject to the structural limitations found in the Constitution based on separation of powers and federalism.43 For our purposes, the most pertinent enquiry is into the extent to which principles of federalism limit the exercise of the treaty power. That question has been one of the most contentious issues with regard to the scope of the treaty power. It is discussed in the next section. 1. Federalism and the Treaty Power As with Congress’ power to regulate interstate commerce, many of the questions about the scope of the treaty power have arisen in the context of federalism issues.44 It has been said 39

Missouri v. Holland, 252 U.S. 416, 433 (1920). Justice Holmes opinion for the Court, suggests that the treaty power is subject to different standards of constitutionality from Congress’ Article I powers, noting the distinction made by the Supremacy Clause language and stating that “[i]t is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention.” Id. 40

For a discussion of the arguments that the treaty power is not subject to the Constitution see Henkin, supra note 7, at 137-140.

Reid v. Covert, 354 U.S. 1, 16 (1957) (plurality opinion) (“no agreement with a foreign nation can confer power on the Congress, or on any other branch of government, which is free from the restraints of the Constitution); accord, Geofrey v. Riggs, 133 U.S. 258, 267 (1890) (treaty power is limited by restraints in Constitution). 42

Henkin, supra note 7, at 140.

See Geofrey v. Riggs, 133 U.S. 258, 267 (1890) (stating that one type of constitutional limit on the treaty power is that “arising from the nature of the government itself and of that of the States”). 44

Henkin, supra note 7, at 143 (“The principle attacks on the scope of the Treaty Power flew banners of federalism and ‘States’ rights.’”) -11-

that the states of the United States do not exist for purposes of international law. Under the Constitution, the treaty power is given exclusively to the Executive and the Senate – Article I, section 10 provides that “No State shall enter into any Treaty, Alliance or Confederation” and that “No State shall, without the consent of Congress ... enter into any Agreement or Compact with another State, or with a foreign Power ... .” Under these provisions, States are expressly excluded by the Constitution from participation in the making of treaties. At the same time, the broad scope of the treaty power, combined with the effect of the Supremacy Clause, means that state law can be significantly impacted by the national government’s exercise of the treaty power. Therefore, while the States were not given a structural role with regard to the making of treaties, those treaties clearly can have a substantial effect on the States in their role as legislators of domestic law. It thus is not surprising that the debate about the scope and restrictions of the treaty power should be played out largely in terms of the effect of the treaty power on the States. Unlike Congress’ Commerce Clause power, however – and, perhaps, because of it – there are relatively few cases dealing with the relationship of federalism to the treaty power. The authoritative case on the extent to which the Tenth Amendment (usually viewed as the primary textual basis for federalism limits) effects the exercise of the treaty power is still the 1920 case of Missouri v. Holland.45 In that case, Missouri challenged implementing legislation for a treaty with Great Britain regulating migratory birds as an unconstitutional interference with rights reserved to the states.46 An earlier federal statute attempting to regulate migratory birds had been held unconstitutional by the lower federal courts, based on the then-prevailing narrow interpretation of national power under which the regulation of wildlife was held to be a power reserved to the states.47 The national government then came up with the idea of getting Great Britain (on behalf of Canada) to enter into a treaty regarding the subject matter and reenacting, in essence, the same federal statute as the implementing legislation for that treaty.48 Missouri asserted (as other states had done in the former cases challenging the earlier federal statute) that the statute was “an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and . . . invade[d] the sovereign right of the State.” The U.S. Supreme Court, in an opinion written by Justice Holmes, rejected Missouri’s argument. First, the Court noted that the Tenth Amendment itself could not be controlling: To answer this question it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because . . . the power to make treaties is delegated expressly, and . . . treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the 45

252 U.S. 416 (1920).

Id. at 431.

Id. at 432.

Jeffrey L. Friesen, The Distribution of Treaty-Implementing Powers in Constitutional Federations: Thoughts on the American and Canadian Models, 94 Colum. L. Rev. 1415, 1418 (1994). -12-

supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute . . . as a necessary and proper means to execute the powers of the Government. The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed.49 Missouri argued that a treaty is not valid if it infringes the Constitution, and that one constitutional limit on the treaty power was that “what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do.”50 Thus, Missouri argued that Congress had no power to pass implementing legislation to effectuate a treaty that did the same thing as the federal statute, which had been held to outside of Congress’ Article I powers because it attempted to regulate a subject reserved to the States.51 The Court rejected this argument, holding that, without regard to whether the earlier cases had been decided correctly, those cases “cannot be accepted as a test of the treaty power.”52 First, the Court noted the distinction made in the Supremacy Clause between laws of the United States and treaties: Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention.53 The Court, however, then stated that it did “not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way.” In that regard, the Court said “[i]t is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could.”54 Despite this apparent suggestion (rejected by later law)55 that the treaty power was not 49

252 U.S. at 432.

Id. at 432.

Id.

Id. at 433.

Id.

Reid v. Covert, 354 U.S. 1, 16-18 (1957) (plurality opinion) (supremacy clause distinction between laws made in pursuance of the Constitution and treaties made under authority of the United States was intended to include treaties made prior to the Constitution as supreme law, not -13-

subject to the Constitution, the Court then went on to consider whether the treaty did contravene the Constitution. The Court found that the treaty did not “contravene any prohibitory words to be found in the Constitution” and, thus, that “[t]he only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.”56 The Court held that it was not. Missouri’s claim that regulation of migratory birds was within the power reserved to the states was based on the assertion of ownership of the birds, an argument that had been conclusive in favor of the states in the previous cases dealing with the federal statute standing alone. For purposes of the treaty power, however, the Court found this argument to be only “a slender reed.;”57 wild birds were not in the possession of anyone, and only transitorily within the presence of any state and thus could not be said to be owned by any state.58 On the other hand, the Court stated that “a national interest of very nearly the first magnitude” was involved.59 The treaty was a valid exercise of the treaty power, and, therefore, the challenged legislation was within Congress’ power as necessary and proper to effectuating the treaty.60 Missouri v. Holland generally is interpreted as standing for the proposition that the treaty power may be exercised with regard to any subject matter, even if that subject matter is one otherwise reserved for the States.61 Thus, the treaty power often is said not to be subject to the Tenth Amendment, which, during the era when Missouri was decided ,was being interpreted in the domestic context as reserving certain subject matter areas for exclusive regulation by the states. It does not follow, however, that there are no federalism-based limits on the treaty power.62 For example, in Geofrey v. Riggs, 63 the U.S. Supreme Court stated: to suggest treaties were not subject to the Constitution). 56

Missouri, 252 U.S. at 433.

Id. at 434.

Id.

Id. at 432, 435.

Friesen, supra note 48, at 1418 (Missouri “established that ... the federal government has virtually unfettered power to implement treaties, even when the implementing legislation relates to a matter usually reserved to the states”); Edward T. Swaine, Does Federalism Constrain the Treaty Power? 103 Colum. L. Rev. 403, 415 (2003) (“[f]or some time, the most certain proposition of U.S. foreign relations law has been that there are no subject-matter limits to the U.S. treaty power.”),

Restatement Third §302(2) (“No provision of an agreement may contravene any of the prohibitions or limitations of the Constitution applicable to the exercise of authority by the United States.”); Henkin, supra note 7, at 137. 63

133 U.S. 258 (1890). -14-

The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. . . . But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.64 In the ordinary course, a case such as Missouri would have been followed by other cases elucidating and refining its meaning. The struggle between national and state power, however, was played out in the courts in the context of the Commerce Clause power rather than the Treaty power and, once the Court adopted a position of deference with regard to the Commerce Clause power, holding that Congress can regulate intrastate activity under the Commerce Clause as long as Congress has a rational basis for believing that the class of regulated intrastate activity in the aggregate has a substantial economic effect on interstate (or foreign) commerce,65 there was no need to further explore the parameters of the Treaty power. If Congress could do whatever it needed under the Commerce power, then there was no need to explore whether it could do even more under the Treaty power combined with the necessary and proper clause.66 Thus, after Missouri v. Holland, the issue of federalism constraints on the treaty power has been played out primarily in the political arena, rather than in the courts. The Senate, with 64

Id. at 267.

E.g., Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v. McClung, 379 U.S. 294 (1964).

The Courtâ&#x20AC;&#x2122;s deference to Congress under the Commerce Clause, however, came to an end in 1995 with the U.S. Supreme Court decision in United States v. Lopez, 514 U.S. 549 (1995), in which the Supreme Court struck down federal legislation as outside the scope of the Commerce Clause power for the first time since 1936. Although the Court was somewhat vague as to the basis for its decision, it suggested in the subsequent case of United States v. Morrison, 529 U.S. 598 (2000), that Lopez stands for the proposition that the Court will not apply the traditional rational basis test to Congressâ&#x20AC;&#x2122; exercise of its Commerce Clause power to regulate intrastate activity unless that intrastate activity is economic in nature. The Courtâ&#x20AC;&#x2122;s Commerce Clause doctrine, however, remains in flux. See Gonzales v. Raich, 125 S.Ct. 2195 (2005) (applying the traditional rational basis test to uphold regulation of intrastate production, possession, and use of marijuana for medical purposes under the Controlled Substances Act). Not surprisingly, in light of these developments, there has been a renewed interest in the extent to which federalism limits the scope of the Treaty power. See, e.g., Swaine, supra note 61. -15-

its power to withhold its consent and thus prevent ratification of a treaty, often has proved to be a powerful advocate for state interests. The most famous example of political protection of states with regard to the treaty power involved the controversy surrounding the Bricker Amendment. In the early 1950s, Senator Bricker of Ohio led a movement to amend the Constitution to require that all treaties be non-self-executing.67 In its principal version, the Bricker Amendment provided that “A treaty shall become effective in the United States only though legislation which would be valid in the absence of treaty.”68 This clause not only would have rendered all treaties non-self-executing, but also would have overruled the central holding of Missouri v. Holland by providing that Congress must have an independent basis under one of its other enumerated powers for any legislation passed to implement a treaty.69 Senator Bricker’s proposal also included inter alia a provision that the rights of the states under the Tenth Amendment were to be preserved from encroachment.70 The primary motivations for the Bricker Amendment were Cold War anticommunism and opposition to the emerging civil rights movement; its immediate target was the United Nations Covenant on Civil and Political Rights.71 The arguments were framed largely in terms of federalism: The principal argument arrayed against the Covenant [on Civil and Political Rights] at the time was that ratification posed a threat to the federal system of government. More particularly, the argument was that use of the treaty-making power to establish and protect individual rights would violate, or at least unacceptably limit, the rights of the individual states and deprive U.S. citizens of their right to self-government. Underlying this concern, of course, was fear that the federal government would rely on the treatymaking power in assuming an activist role in the elimination of legalized racial discrimination, then still prevalent in a number of southern states. Moreover, the debate over human rights treaties initially took place amid a genuine fear of communist subversion and ideological assault aimed at taking over the United States and the remainder of the free world. Thus, it was not just that the treaties were seen as improperly opening to international review and regulation matters thought to be exclusively domestic, but that the ensuing loss of U.S. sovereignty to an illegitimate world government (the United Nations) was part of the general effort to eliminate democracy.72 67

Louis Henkin, U. S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 348 (1995).

Id. at 348.

Id.

David P. Stewart, United States Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings and Declarations, 42 DePaul L. Rev. 1183, 1185 n.5 (1993). 71

This treaty is discussed further in Part III below.

Stewart, supra note 70, at 1184 n.5. -16-

The Bricker Amendment ultimately was narrowly defeated in the Senate; in order to obtain its defeat, however, the Eisenhower Administration promised that it would not seek ratification of any human rights treaties.73 That promise influenced the positions of future administrations, and the result of the Bricker Amendment debate was that “the United States was for decades effectively foreclosed from becoming party to major multilateral conventions promoting human rights, even those which it actively supported in international fora.”74 The U.S. did not become a party to the first post-World War II human rights treaty until 1988, when it ratified the Convention on the Prevention and Punishment of the Crime of Genocide, forty years after that Convention was written.75 The Covenant on Civil and Political Rights was not ratified until 1992. The controversy surrounding the Bricker Amendment demonstrates the influence that federalism issues can have in the determination of whether, and on what terms, the U.S. will ratify a Convention. Although the influence of federalism on Presidential and Senate decisions regarding treaties normally is more low-profile than Senator Bricker’s efforts, state concerns clearly often are an important factor in determinations regarding treaties that touch on areas of state concern. As Professor Louis Henkin states in his influential treatise, Foreign Affairs and the U.S. Constitution: The principal influence of the states in foreign relations derives from the constitutional, decentralized, federal framework of government and the political forces that animate it. . . . The President has a national constituency and is chief of a national party, but both are built of local blocks and he cannot be impervious to their qualities and interests. His diplomatic representatives are, or are made, acutely aware of our federal character – as when they hesitate to negotiate about “local matters,” or insist on adding to treaties “federal-state” clauses that are constitutionally unnecessary but politically attractive. The Senate still substantially represents the states and has often protected their interests and adopted their views, as when it refused consent to treaties that would allow aliens to practice professions regardless of state requirements, or entered reservations to human rights conventions so as not to override state laws permitting capital punishment for crimes committed by juveniles. The House of Representatives represents “the people,” but it is the people of the states, and [it] is often even more “parochial” than the Senate, sometimes obstructing “enlightened,” “internationalist” interests, sometimes in far-reaching forms.76 73

Henkin, supra note 67, at 348-49.

Stewart, supra note 70, at 1184.

Id.

Louis Henkin, Foreign Affairs and the U.S. Constitution 167-68 (2d ed. 1996). The political influence of the states in the national political process, of course, is not limited to influence over -17-

2. Other Possible Restraints on the Treaty Power with Federalism Implications Two other proposed limitations on the Treaty power have been suggested. These proposed limits are grounded in the nature of a treaty. Both also have overtones of federalism concerns. (a) A Treaty Must Be a Bona fide International Agreement A treaty is an agreement between two or more nations by which “they establish or seek to establish a relation under international law between themselves.”77 From this definition, commentators have suggested that, in order to be valid, a treaty must be a bona fide agreement between states, rather than a sham designed to allow one of the states to circumvent limits of domestic law placed on its powers.78 Thus, for example, “if, to circumvent the House of Representatives and the States, a uniform divorce law for the United States alone were written into ‘a treaty’ and Canada cooperated in the scheme by signing its name to it, it would not be a treaty under international law, and therefore not a treaty under the Constitution.” 79

(b) A Treaty’s Subject Matter Must be “International” Another limit on the scope of treaties that was widely accepted well into the latter half of the 20 century is the idea that the subject matter of treaties is limited to matters of “international concern.”80 At one time, this doctrine was “incorporated in the case books, taught to students, th

exercises of the treaty power. For example, in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), the United States Supreme Court relied on the fact that the Constitutional design provides the states with significant representation in the national political process to find that “special restraints on federal power over the States inhere principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority.” Based on this understanding, the Garcia Court found that state sovereignty did not prohibit federal regulation of states under the Commerce Clause, unless there was a failing in the national political process. (This decision subsequently was limited in its application to “generally applicable laws” by New York v. United States, 505 U.S. 144(1992). ) See also Part III infra (discussing Senate concerns regarding E-SIGN’s possible effect on state law). 77

Henkin, supra note 7, at 142.

Id. at 143.

Id. Professor Henkin stresses that this is a hypothetical limit, as no case has challenged a treaty on the grounds that it was really a pseudo-treaty, without the intent to bring about international consequences. Id. & n.*. 80

Id. at 152. -18-

invoked in a lower court opinion, [and] enshrined, in first place and in black letters, in the Restatement of the Law of United States Foreign Relations.”81 This doctrine originated with a speech made by Charles Evans Hughes in 1929, in which he asserted that the scope of the Treaty power “can be found in the appropriate object of the power,” and that “[t]he power is to deal with foreign nations with respect to matters of international concern” and “not a power intended to be exercised, it may be assumed, with respect to matters that have no relation to international concerns.”82 Thus, Hughes argued that “if we attempted to use the treaty-making power to deal with matters which did not pertain to our external relations but to control matters which normally and appropriately were within the local jurisdictions of the States, then I again say there might be ground for implying a limitation upon the treaty-making power that it is intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns through the exercise of the asserted treaty-making power.”83 The idea that the treaty-making power was limited to matters of international concern was incorporated in Section 117(1) of the First Restatement of the Foreign Relations Law of the United States.84 The Restatement (Third), however, rejects the doctrine.85 Comment c to the Restatement (Third) states: The Constitution refers to treaties and to other agreements or compacts with foreign powers ... but it does not define such agreements or intimate any limitations as regards their purpose or subject matter. Contrary to what was once suggested, the Constitution does not require that an international agreement deal only with “matters of international concern.” The references in the Constitution presumably incorporate the concept of treaty and of other agreements in international law. International law knows no limitations on the purpose or subject matter of international 81

Id. at 153.

Id. at 152 (quoting Speech of Charles Evans Hughes to the American Society of International Law, 23 Proc. Am. Soc’y Int’l L. 194-96 (1929)). Interestingly, Prof. Henkin states that in propounding this doctrine Hughes was attempting to justify on constitutional grounds the position taken by the American Delegation to the Sixth International Conference of American States, of which Hughes was the head, that the United States could not join a treaty that would establish uniform principles of private international law. Id. at n.87. 83

Id. at 152-53 (quoting Speech of Charles Evans Hughes to the American Society of International Law, 23 Proc. Am. Soc’y Int’l L. 194-96 (1929)). 84

The First Restatement’s comment states that “Matters of international concern are not confined to matters exclusively concerned with foreign relations. Usually, matters of international concern have both international and domestic effects, and the existence of the latter does not remove a matter from international concern.” 85

Restatement (Third) § 302, cmt c & Reporters’ Note 2. Professor Henkin was the Chief Reporter for the Restatement (Third). -19-

agreements, other than that they may not conflict with a peremptory norm of international law. States may enter into an agreement on any matter of concern to them, and international law does not look behind their purposes or motives in doing so. Thus, the United States may make an agreement on any subject suggested by its national interests in relations with other nations. The history of the influence of federalism concerns on exercise of the Treaty power demonstrates that the primary influence has been a political one. Although the broad holding of Missouri v. Holland indicates that the federal government has the power to enter treaties in areas that traditionally have been governed by state law, state concerns nevertheless have been accommodated as a matter of policy through the political process of negotiation and ratification of treaties. The next part discusses the techniques by which state law can be preserved during the treaty ratification and implementation process. Part III. Use of State Law to Implement Treaties The two predominant traditional methods for preserving state law in the treaty implementation process are (1) utilization of reservations, understandings, and declarations to insulate state law from the impact of a treaty and (2) federal-state clauses contained in the treaties themselves. 86 Each of these methods is discussed below. In addition, this section discusses two techniques borrowed from the domestic area that allow the federal government to persuade states to carry out federal policy â&#x20AC;&#x201C; (1) conditional spending and (2) conditional preemption. It is suggested that the issue of finding an effective way to utilize state law to implement treaties is analogous to the question of using state law to implement federal policy as a matter of domestic law for which these doctrines were designed and that, thus, they may prove useful as devices for utilizing state law to implement treaties. I. Traditional Methods A. Reservations, Understandings and Declarations

See, e.g., Swaine, supra note 61, at 441: National political practices account for some of the most vigorous protection of foreign relations federalism. Federal state clauses, incorporated in the negotiated instruments themselves, usually contain some kind of dispensation for signatories with federal structures. Alternatively, a nation may unilaterally impose reservations, understandings, and declarations that condition consent to a treaty. Finally, concerted state opposition may influence national decision-makers to prevail against the inclusion of terms offensive to states, or even derail altogether the nationâ&#x20AC;&#x2122;s participation in a treaty. -20-

1. Reservations A reservation to a treaty is “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”87 Reservations thus purport to alter the terms of the treaty with regard to the State making the reservation. Many of the treaty reservations made by the United States have been made at the behest of the Senate as a condition to its advice and consent to the treaty.88 When the Senate gives its advice and consent on condition that the United States enter a reservation, if the President decides to make the treaty, he must either include the reservation in the instrument of ratification or accession, or otherwise manifest that the adherence of the United States to the treaty is subject to the reservation.89 The President generally provides a verbatim recital of any reservation proposed by the Senate in the Senate resolution of consent both in the instrument notifying the depositary of U.S. ratification or accession and in the Proclamation of the treaty.90 The Restatement (Third) states that a reservation may be entered with regard to a multilateral treaty unless (1) the treaty either prohibits reservations altogether or provides that only certain specified reservations (not including the reservation in question) may be made or (2) the reservation is incompatible with the object and purpose of the treaty.91 A reservation, other than one expressly permitted by a treaty, must be accepted by the other Contracting parties. Unless application of the treaty in its entirety among the parties is an essential condition to their consent, all contracting parties need not accept the reservation for it to become binding between the reserving State and those States that do accept the reservation.92 The treaty becomes binding between the reserving State and the rejecting State if the reserving State decides to accept the treaty without reservation vis-a-vis the objecting State.93 If the reserving State insists on its reservation, the objecting State can chose not to become a party to the treaty with regard to the reserving State or to become a party to the treaty with the reserving State, but not to have the treaty in force between them with regard to the provisions to which the reservation relates.94 87

Vienna Convention, Art 2(1)(d).

Restatement (Third) §314, Cmt a.

Id. §314(1).

Id. §314, Cmt b.

Id. §313(1).

Id. §313(2).

Id. §313, Cmt b.

Id. -21-

Reservations, even if acceptable to some contracting parties, can fragment a multilateral treaty into a number of smaller multilateral or bilateral treaties, as the reservation applies between some contracting parties and not between others.95 When a reservation is not acceptable to the other contracting parties, it can cause the Executive to have to renegotiate the treaty, or abandon its ratification.96 Because reservations can have these serious consequences, they normally are used sparingly, and not entered into lightly. Many treaties limit the ability of the contracting parties to use reservations. 97 2. Understandings An understanding is a unilateral statement by a party setting forth an interpretation of a treaty in a particular respect.98 An understanding may be made by a State in connection with ratification of a treaty. In the United States, the Senate may give its advice and consent to a treaty on the basis of a particular understanding of its meaning; if the President decides to make the treaty, he must do so on the basis of the Senate’s understanding.99 As with reservations proposed by the Senate, any statement of understanding contained in the Senate resolution of consent generally would be included by the President verbatim both in the instrument notifying the depositary of U.S. ratification and in the President’s Proclamation of the treaty. 100 A declaration of understanding as to the meaning of a treaty will be treated as a reservation if it in fact purports to exclude, limit, or modify the declaring State’s legal obligation. An interpretive understanding that states the accepted view of the agreement will not be considered a reservation; however, another contracting party can challenge the expressed understanding, treating the declaration as a reservation. With regard to multilateral treaties, one can have a situation in which some contracting parties share the declared understanding of the treaty, while others do not. In that situation, absent some authoritative means for resolving the dispute, contracting parties that agree with the stated interpretation may have a binding agreement with the declaring state, while whether those contracting states treating it as a 95

Id.

E.g., United Nations Convention on the Assignment of Receivables in International Trade, Art. 44 (hereafter “Receivables Convention”) (“No reservations are permitted except those expressly authorized in this Convention.”) 98

Restatement (Third) §313, Cmt g.

Id. §314(2).

100

Id. -22-

reservation have a binding agreement with the declaring state would be determined as described above with regard to reservations.101 A treaty that is ratified with a statement of understanding becomes effective in domestic law subject to the understanding.102 In addition to statements of interpretive understandings with regard to the terms of the treaty, the Senate also may state understandings that relate to a treaty’s implementation in the United States. For example, the Senate may condition its advice and consent on its understanding that the treaty will not be self-executing, or that certain further actions taken in implementation of the treaty will also be subject to Senate approval. There is no accepted doctrine indicating the limits on the conditions the Senate may impose. As these understandings relate purely to domestic implementation, they (at least in theory) have only domestic significance and do not affect the substance of the treaty.103 Obviously, however, it is possible for the Senate to state understandings with regard to implementation that would not allow the United States to carry out its international obligations under the treaty in good faith. In that situation, presumably the President would not be able to ratify the treaty. 3. Declarations Declarations also are unilateral statements made by a State. The term “declaration” is used to refer to several different types of statements made by states in connection with international instruments, some with binding effect and some without.104 For our purposes, “declaration” is perhaps best defined as a unilateral statement made by a party in connection with ratification of a treaty which is neither a reservation nor an understanding. Multilateral treaties often allow contracting parties to select between different alternatives with regard to the substantive provisions of a treaty through declarations. This mechanism allows the contracting parties, through a series of unilateral declarations, to create legal bonds between the declarants,105 or to alter the otherwise applicable terms of the treaty. For example, although The Hague Choice of Court Convention by its terms only applies to exclusive choice of court agreements, Article 22 allows contracting States to declare that they will recognize and enforce judgments given by courts of another Contracting State pursuant to a nonexclusive choice of court agreement when the other Contracting State has made a similar declaration. Articles 19 and 20 allow Contracting States to limit the otherwise applicable scope of the Convention by declaration, Article 19 by allowing the Contracting State to refuse to take jurisdiction of a case that has no connection to it other than the chosen court, and Article 20 by allowing a Contracting State to refuse to recognize and enforce a judgment from another Contracting State if the parties 101

Id. §313, Cmt g.

102

Id. §314, Cmt d.

103

See id. §303, Cmt d.

104

U.N. Treaty Collection, Treaty Reference Guide.

105

See id. -23-

to the dispute and all other relevant factors, other than the chosen court, were connected only with the requested State. Article 21 allows the Contracting Parties to declare that the Convention will not apply to specific subject matters to which it is otherwise applicable. Finally, Article 28 contains a federal-state clause, allowing a federalist State to declare to which of its territorial units the Convention will apply.106 4. Case Study: Use of Reservations, Understandings, and Declarations to Accommodate State Law in Ratification and Implementation of the United Nations Covenant on Civil and Political Rights Reservations, understandings, and declarations have been utilized by the Executive and Senate in the past to ameliorate the impact of a treaty on state law. Their use in this fashion is illustrated by the package of reservations, understandings, and declarations that ultimately led to ratification of the United Nations Covenant on Civil and Political Rights, the convention that triggered the Bricker Amendment, discussed above. Its ratification in 1992 was conditioned on a package of reservations, understandings and declarations proposed by the Administration and adopted by the Senate as part of its resolution giving its advice and consent.107 The reservations were designed to bring the Covenant into line with U.S. law. Some of them were necessary because the Covenant placed obligations on Contracting States that were inconsistent with the U.S. Constitution, particularly the First Amendment right of free speech.108 Other of the reservations, however, reduced the U.S. obligations under the Covenant to what was permitted (but not required) by the Constitution under the then-current U.S. law. For example, Article 6 of the Covenant prohibits imposition of a death sentence on pregnant women and for crimes committed by persons below eighteen years old. In ratifying the Covenant, the U.S. reserved the right, subject to constitutional restraints, to impose capital punishment on any person other than a pregnant woman convicted under existing or future laws permitting capital punishment, including for crimes committed by persons younger than eighteen.109 This reservation was designed to protect state law in the majority of U.S. states that permitted imposition of the death penalty on persons younger than eighteen.110 Similarly, other reservations served to bring other parts of the Covenant dealing with criminal punishment into line with existing – largely state – 106

Federal-state clauses are discussed below.

107

Stewart, supra note 70, at 1185-86.

108

Id. at 1190. For example, Article 20 of the Covenant requires the prohibition of propaganda for war and advocacy of national, racial or religious hatred. The U.S. ratification was accompanied by a reservation stating that “Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.” Id. at 1191. 109

Id. at 1192.

110

Id. -24-

law.111 U.S. ratification of the Covenant also was accompanied by understandings stating the U.S. understanding that various provisions of the Covenant were to be interpreted in a manner consistent with U.S. law,112 as well as an understanding relating to implementation of the Covenant by the United States. This latter understanding was designed to protect the preexisting balance of federal versus state law with regard to issues covered by the Covenant.113 Article 50 of the Covenant expressly extends the provisions of the Covenant to all parts of federal states, and was included in order to prevent federal states from limiting their obligations to areas within the federal government’s authority.114 The U.S. understanding regarding implementation states that the Covenant “shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the State and local governments,” and that, as to matters within the jurisdiction of state and local governments “the Federal Government shall take measures appropriate to the Federal system” to ensure state and local governments fulfill their obligations.115 Normally, Senate understandings as to how a treaty obligation will be implemented are merely matters of domestic law and thus not the concern of other Contracting Parties to the treaty. The purpose of this understanding, however, was to emphasize domestically that there is no intent to alter the constitutional balance of authority between the state and local governments or to use the provisions of the Covenant to “federalize” matters now within the competence of the states. It also serves to notify other States Party that the United States will implement its obligations under the Covenant by appropriate legislative, executive, and judicial means, federal or state, and that the federal government will remove any federal inhibition to the states’ abilities to meet their obligations in this regard.116 111

Other reservations limited the interpretation of the Covenant’s prohibition on cruel, inhuman or degrading treatment or punishment to the interpretation given cruel and unusual punishment under the Eighth Amendment, provided that the U.S. would not adhere to the Covenant provision giving offenders the benefit of post-offense reductions in penalty, which was inconsistent with U.S. law, and reserved the right to treat juveniles as adults in exceptional circumstances in light of Covenant provisions to the contrary. Id. at 1192-94. Because criminal law in the United States is largely state law, the primary impact of these reservations is to preserve state law with regard to these issues. 112

These included understandings relating to equal protection and nondiscrimination, right to compensation for unlawful arrest, separate treatment of the accused and juveniles, right to counsel, right to compel witness testimony, and double jeopardy. Id. at 1195-1201. 113

Id. at 1202.

114

Id. at 1201.

115

Id.

116

Id. at 1202. Cf. Henkin, supra note 67, at 346 (federalism clause is not an understanding as a -25-

The Senate resolution consenting to the treaty also contained a declaration that the Covenant would not be self-executing: As in the case of the understanding concerning federalism, this declaration does not affect the international obligations of the United States under the Covenant. Rather, it means that the Covenant does not, by itself, create private rights enforceable in U.S. courts. That can be done only by means of legislation enacted by the Congress and the president in ordinary course. This approach reflected the view that U.S. compliance with the Covenant should be overseen through the mechanisms established by the Covenant, rather than through litigation by private parties in the U.S. courts. The specific language of the Covenant is in some respects imprecise and could invite substantial litigation over issues at the periphery of the Covenant’s essential object and purpose. The fundamental rights and freedoms protected by the Covenant are also guaranteed as a matter of U.S. law, constitutional and statutory, and can be effectively asserted by individuals in the judicial system.117 This understanding forms the basis of the idea that the Covenant had been “preimplemented.” After ratification, both the Bush and Clinton administrations took the position that no implementing legislation would be sought with regard to the Covenant, the idea being that no implementing legislation was necessary because, as a result of the substantive reservations, U.S. adherence to the treaty would require no changes in U.S. law.118 Thus, the Covenant had, in effect, been “pre-implemented” because pre-existing U.S. law already adequately reflected its principles. The package of reservations, understandings and declarations approved by the Senate in connection with its consent to the Covenant illustrate the way in which reservations, matter of international law and raise no international difficulties; international law requires that the U.S. carry out its treaty obligations, but does no prescribe how those obligations will be carried out. U.S. can as a matter of international law leave implementation of any treaty provision to the states, but U.S. remains internationally responsible for any implementation failure.) 117

Stewart, supra note 70, at 1202-03. Ratification also was accompanied by declarations that Contracting Parties should refrain from imposing those restrictions on the exercise of rights allowed by the Covenant whenever possible, accepting the competence of the Human Rights Committee established by the Covenant to adjudicate complaints on a reciprocal basis, and stating that the right to use natural resources may only be exercised in accordance with international law. Id. at 1204-05.

118

Henkin, supra note 67, at 347-48. -26-

understandings, and declarations can be used to protect existing domestic law – and, particularly, state law – from preemption while simultaneously allowing the United States to undertake international commitments that are largely consistent with current U.S. domestic law: The premise underlying most of the reservations, understandings, and declarations was the conclusion that existing U.S. law, even if not strictly in conformity with the precise language of the Covenant, was acceptable and indeed preferable. A subsidiary concern was a desire not to effectuate changes to domestic law by means of the treaty-making power. There is little question that under Article VI [the Supremacy Clause] of the Constitution, the federal government could in fact have made necessary changes to federal law and required parallel changes in state and local law to give effect to the Covenant’s provisions. For many reasons including those rooted in respect for our federal system of government, there was substantial resistance in both the Executive Branch and the Senate to exercising that authority. But the principal conclusion was, as a policy matter, not to seek changes to U.S. law at those relatively minor points at which it diverged from the Covenant.119 The technique used with regard to the Covenant continued to be used with regard to other human rights treaties that were ratified during the Clinton administration. Similar reservations, understandings and declarations, including a declaration that the convention would not be selfexecuting, accompanied the requests for Senate approval of the Convention against Torture, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of all Forms of Discrimination Against Women.120 This use of reservations, declarations, and understandings to protect state law from preemption, and particularly the concept of “pre-implementation” utilized in connection with ratification of the Covenant and subsequent human rights treaties, could be a valuable technique for preserving state law in connection with implementation of private international law treaties. Many of the private international law harmonization efforts produce conventions that are in large part consistent with current U.S. state law – usually uniform state law – on the subject. Thus, it may be possible in a number of cases to use the pre-implementation concept – either alone, if the treaty is substantially the same as U.S. law (either on its own, or, perhaps in some cases, after the use of reservations and understandings) or in combination with other implementation techniques when there are certain issues that will require some implementing legislation. When pre-implementation technique is appropriate – that is, in situations where the treaty is substantially the same as current U.S. law, that technique operates to preserve the status quo with regard to domestic law, while allowing the U.S. at the same time to undertake in good faith an international obligation. The declaration that the treaty will not be self-executing prevents the 119

Stewart, supra note 70, at 1206.

120

Henkin, supra note 67, at 341. -27-

treaty from preempting otherwise applicable law under the Supremacy Clause, while the determination that the existing law is sufficient to implement the treaty requires those seeking to enforce the provisions of the treaty to turn to current domestic law. It should be noted that U.S. ratification of the Covenant and subsequent human rights treaties with the package of reservations, understandings and declarations described above has been the subject of criticism.121 That criticism, however, seems primarily to have centered on the feeling that the reservations and understandings were designed to ensure that U.S. law was not changed, even when U.S. practice fell below international standards, and that, therefore, the U.S. in effect was “pretending to assume international obligations but in fact is undertaking nothing.”122 The federalism clauses in these conventions have been criticized as serving no legal purpose, as the U.S. can choose the manner in which conventions will be implemented as a matter of domestic law, but some have seen them “as another sign that the United States is resistant to international human rights agreements, setting up obstacles to their implementation and refusing to treat human rights conventions as treaties dealing with a subject of national interest and international concern.”123 The declarations that these treaties are non-self-executing also have been criticized as part of a U.S. plan to keep its human rights practices from being judged by international standards: “[a]s the reservations designed to deny international obligations serve to immunize the United States from external judgment, the declaration that a convention shall be non-self-executing is designed to keep its own judges from judging the human rights conditions in the United States by international standards.”124 Arguably, the pre-implementation technique would be less controversial when used in the private international law context. The human rights treaties at issue in the prior use of the technique were treaties with a long and controversial history in the United States, beginning with the opposition to human rights treaty ratification generated by the Bricker Amendment. Private 121

E.g., id. (noting that the package of RUDs attached to these treaties “has evoked criticism abroad and dismayed supporters of ratification in the United States: and that “U.S. ratification has been described as specious meretricious, hypocritical.”)

122

Id. at 342. Prof. Henkin notes that if all Contracting Parties engaged in a similar practice, the Conventions would be futile. Id. He also notes that “to many the attitude reflected in such reservations is offensive: the conventions are only for other states, not for the United States.” Id. at 344. 123

Id. at 346.

124

Id. Prof. Henkin suggests that the practice of declaring treaties to be non-self-executing “is against the spirit of the Constitution” and “may be unconstitutional.” He does not make a particularly persuasive argument for this proposition however; as he acknowledges, the Senate has been recognized as having the power to condition its consent on a treaty not being selfexecuting, and, once the power is recognized as existing, it would seem that the particular instances in which it is exercised are a question of policy for the Senate, rather than of constitutional law. -28-

international law treaties using this technique presumably would be less controversial. C. Federal-State Clauses A federal-state clause is a contractual provision placed in a treaty in order to accommodate the interests of a federalist state: “Federal state clauses” qualify the federation’s obligations under the treaty with respect to the sub-units of the federation. The clauses differ in content, sometimes providing that the treaty shall not apply if it relates to matters falling within sub-unit jurisdiction, sometimes limiting the obligations of the federation to encouraging the sub-units to adopt the treaty’s provisions and supplying other signatories with information about the status of the treaty among the sub-units, and sometimes obliging the federation to ensure that the treaty will apply to at least one of its sub-units at the time of ratification.125 One common type of federal-state clause is that found, in substantially similar language, in all the conventions of The Hague Conference on Private International Law, beginning with the Convention on the Law Applicable to Products Liability, promulgated by The Hague Conference in 1972, as well as in certain treaties of other international bodies, including the UNIDROIT Convention on the Uniform Law on the Form of an International Will, The United Nations Convention on the Limitation Period in the International Sale of Goods, and the United Nations Convention on Contracts for the International Sale of Goods, as well as some conventions of the Organization of American States.126 A recent example of this federal-state clause is found in The Hague Convention on Choice of Court Agreements, which was finalized in June 2005. Article 28 states that If a State has two or more territorial units in which different systems of law apply in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that the Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.127 This provision allows the State to apply the convention only to those of its political subdivisions that have agreed to be bound by the convention and have adopted whatever implementing 125

Friesen, supra note 48, at 1422 n. 35.

126

H. Allan Leal, Federal State Clauses and the Conventions of The Hague Conference on Private International Law, __ Dalhousie L.J. 257, 273-74 (198__). 127

Choice of Court Convention, Art. 28, cl.1; cf United Nations Convention on the Assignment of Receivables in International Trade, Art. 35 (similar federal-state clause). -29-

legislation is needed. It thus modifies the State’s international obligation of good faith implementation by making it applicable only in the territorial units designated by the State. This type of provision often is referred to as a “Canada clause” because it was developed within The Hague Conference as a way to deal with Canada’s somewhat unique constitutional structure under which, while the federal government has the power to make treaties, the power to implement treaties is allocated between the federal government and the provinces based on which entity would have the power under the Canadian Constitution to legislate with regard to the subject matter involved as a matter of domestic legislation. Because Canada’s situation was the primary impetus for the development of this clause, it is useful in assessing the value of the clause as a treaty implementation mechanism to have a little background with regard to Canada’s treaty implementation process. The British North America Act of 1867, which is the original Constitution Act of Canada, did not address the question of the competence of the federal government to enter into treaties affecting areas within the provincial legislative competence because at that time Canada did not possess international personality; its foreign relations were still conducted by the United Kingdom. Section 132 of the Constitution did give the federal government the power to implement British Empire treaties without regard to their subject matter, the only type of treaty contemplated at that time. Sections 91 and 92 of that Constitution also divided legislative competence between the federal government and the provinces for purposes of domestic legislation, and the Constitution further provided that powers not expressly delegated were reserved to the federal government.128 Once Canada became independent of the United Kingdom, the issue of whether the federal government could enter treaties dealing with subject matter allocated to the provinces became a pressing one. The two main arguments for finding that power in the federal government were that either section 132 could be interpreted to give the federal government that power, or that the power, not having been expressly allocated by the Constitution Act, fell to the federal government under the residual clause. In the Labour Conventions case,129 dealing with the power of the federal government to enter into three treaties relating to employment contracts, the Privy Council rejected both of these arguments. Section 132 did not apply because the treaties were not Empire treaties, but rather ones entered into by Canada in its new status as an international entity; the power to legislate with regard to the subject matter area covered – property and civil rights – was assigned by section 92 to the provinces, and thus could not be considered to be within the federal powers granted by section 91.130 Thus, while the power to make the labor treaties was given to the federal government, the power to implement the treaties through domestic legislation was given to the provinces.131 128

Leal, supra note 126, at 261-62.

129

Attorney General for Canada v. Attorney General for Ontario, [1937] A.C. 326 (P.C.).

130

Leal, supra note 126, at 264-65.

131

Id. at 265. -30-

Although the Labour Conventions case has been criticized, it remains the law of Canada. Given the shared competence of the federal and provincial governments with regard to many of the treaties in the area of private international law – the federal government having the power to make them and the provinces having the power to implement them – it is clear why a provision such as The Hague Convention Canada clause is crucial for Canada’s ability to enter into many international agreements. As discussed above, when a nation enters a treaty, it undertakes in good faith to carry out the provisions of that treaty, and the fact internal law of the nation prevents it from doing so is not a defense to that obligation.132 Federal-state clauses thus allow Canada to mediate between its international obligations and its internal constitutional obligations by providing that treaties it enters will only bind those of its provinces that have agreed to them through the passage of implementing legislation. As we have seen through our contacts with the Uniform Law Conference of Canada, that Conference plays an important role in making the federal-state clause work effectively. The Canadian Conference studies the efficacy of particular treaties and, when it recommends adoption of a treaty, works with the federal government to draft uniform implementing legislation and to encourage passage of that uniform legislation in the provinces. It is tempting to think that the federal-state clause might provide a method for accommodating the interests of U.S. states in the treaty-making process. The standard Hague federal-state clause was in fact the product of a joint proposal by Canada and the United States. The United States, however, has rarely utilized a federal-state clause in treaty implementation. The reasons for this seem self-evident. Members of the Canadian ULC have indicated that, even in Canada, which has only ten provinces and three territories, achieving a critical mass of provinces willing to implement a particular treaty, and to do so in a uniform manner, is a daunting task. For Canada, the use of federal-state clauses is a political necessity, given the shared competence with regard to treaties found in their Constitution, as interpreted in the Labour Conventions case. In the United States, where under Missouri v. Holland the federal government may implement treaties through the necessary and proper clause even in areas traditionally governed by state law, use of a federal-state clause has to be justified on its own merits. Certainly, there may be situations in which it could prove a useful device for treaty implementation. For example, in a situation where timing of implementation is not a major issue, and where the treaty merely sets a general standard, so that lack of uniformity in the details of compliance is not an issue, this could be an appropriate technique. In many situations dealing with private international law, particularly in the commercial law area where uniformity and certainty are important goals, however, it may be too cumbersome a process for achieving state law implementation. 132

See, e.g., Vienna Convention, Art 27 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”) -31-

B. Cooperative Federalism Techniques The challenge of state law implementation of treaties is to find a means by which the states can be persuaded to implement a given treaty in a manner that is sufficiently uniform and expeditious so that the U.S. can fulfill its international obligation to implement the treaty in good faith. At least since the New Deal era, the federal government has been faced with the issue of how it can utilize the states as a means for carrying out federal policy. The two primary techniques for persuading states to act in accordance with federal guidelines that have emerged are (1) conditional spending and (2) conditional preemption. Both of these techniques provide an incentive for the states to regulate pursuant to federal standards – conditional spending by offering funds conditioned on compliance with federal standards, and conditional preemption by providing alternative federal legislation that will govern if the states do not pass their own legislation consistent with federal guidelines. Although these techniques have been used only in the context of carrying out domestic federal policy, it would appear that they would work equally well when the federal policy was the international policy embodied in a treaty. In New York v. United States,133 the U.S. Supreme Court established the outer limits of Congress’ ability to use the States to effectuate federal policy consistent with the federalism principles embodied in the Constitution. The Court held that, while the federal government can attempt to persuade the States to choose “to regulate in a particular field or in a particular way,” principles of federalism establish that “Congress may not simply ‘commandee[r] the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program.’”134 New York involved a challenge to the federal Low-Level Radioactive Waste Policy Act, which imposed on States the obligation to provide for the disposal of low level radioactive waste generated within their borders, either alone or through a regional compact, established a series of deadlines for the States to take various steps towards disposal self-sufficiency, and provided three types of incentives to move them forward – monetary incentives, access incentives (to existing waste disposal facilities), and a “drop dead” provision, which provided that a State or regional compact that had failed to provide for disposal of its low level radioactive waste pursuant to the Act by a given date must, upon request of the waste’s generator, take title to and possession of the waste and become liable for all damages suffered by the generator as a result of the State’s failure promptly to take possession.135 The Act was based on a proposal of the

133

505 U.S. 144 (1992).

134

Id. at 161 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981)). 135

Id. at 150-154. -32-

National Governors’ Association and its passage was supported by the State of New York.136 Nevertheless, when New York found itself unable to meet the deadlines established by the Act, it challenged the Act, primarily on the basis that its incentive provisions were inconsistent with the Tenth Amendment.137 The U.S. Supreme Court held that the monetary and access incentives were within the scope of Congress’ powers, but that the take-title provision constituted a “commandeering” of the State legislatures in violation of principles of federalism.138 In the course of reaching its decision, the Court reviewed constitutionally approved methods by which Congress can encourage a State to regulate in a particular way: First, under Congress’ spending power, “Congress may attach conditions on the receipt of federal funds.” . . . Where the recipient of federal funds is a State, as is not unusual today, the conditions attached to the funds by Congress may influence a State’s legislative choices. . . . Second, where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress’ power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation. This arrangement, which has been termed “a program of cooperative federalism,” is replicated in numerous federal statutory schemes. . . . By either of these methods, as by any other permissible method of encouraging a State to conform to federal policy choices, the residents of the State retain the ultimate decision as to whether or not the State will comply. If a State’s citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal grant. If state residents would prefer their government to devote its attention and resources to problems other than those deemed important by Congress, they may choose to have the Federal Government rather than the State bear the expense of a federally mandated regulatory program, and they may continue to supplement that program to the extent state law is not pre-empted. Where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people. By contrast, where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.139 Applying these principles, the Court found that the monetary and access incentives under the Act were consistent with federalism principles because they left the States with a “choice” as 136

Id. at 150, 181.

137

Id. at 154.

138

Id. at 149, 188.

139

Id. at 167-68 (citations omitted). -33-

to whether to carry out federal policy or to pursue their own separate policy with regard to low level radioactive waste.140 The third incentive, however, – requiring States that had not met the regulatory goals of the Act by a given date to take title to and possession of low level radioactive within their borders and become liable for damages – was unconstitutional because it “crossed the line distinguishing encouragement from coercion.”141 Under this third incentive, the States were not given the choice to reject federal policy and instead pursue their own independent policy with regard to regulation of low level radioactive waste. Their only “choice” was between following one federal policy (regulating low level radioactive waste disposal under federal standards) or another federal policy (taking title and possession of, and assuming liability for, low level radioactive waste within their borders).142 Further, the Court found the fact New York initially had lobbied for the incentive scheme to be irrelevant – federalism protects individuals, not the States per se, and thus state officials cannot consent to an invasion of state sovereignty.143 The Court summarized its holding as follows: Whatever the outer limits of that [State] sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program. The Constitution permits both the Federal Government and the States to enact legislation regarding the disposal of low level radioactive waste. The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes. It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders.144 In Printz v. United States,145 the Supreme Court held that the principle that Congress may not compel the States to enact or administer a federal regulatory program prohibited Congress from requiring state officials to enforce federal legislation.146 On this basis, the Court struck down a provision of the federal Brady Act which required state and local law enforcement officials to conduct background checks with regard to handgun purchasers.147 New York v. United States 140

Id. at 174.

141

Id. at 175.

142

Id. at 174-75.

143

Id. at 182.

144

Id. at 188.

145

521 U.S. 898 (1997).

146

Id. at 935.

147

Id. -34-

and Printz involved Congress’ exercise of its Article I powers, not the Article II treaty power shared by the Executive and the Senate. Nevertheless, it seems likely that the “anticommandeering” principle of New York and Printz would apply with equal force to any implementing legislation passed in the exercise of the treaty power. New York’s establishment of the “commandeering” principle as an outer limit on federal government action establishes the parameters within which any implementation scheme using the principles of cooperative federalism must operate. Equally important, however, New York expressly approves of the traditional techniques pursuant to which the federal government has utilized state legislation to implement federal policy – conditional spending, conditional preemption, and other similar methods that provide strong incentives for the states to adopt legislation embodying federal policies, but that still leave them with a choice not to do so. These techniques have a great deal of promise as potential ways to bridge the gap between the need for uniform private international standards in an increasingly global society and the value of retaining state law as the source of these obligations at a national level. The next section discusses and provides illustrations of the use of these techniques in situations when the federal policy for which state implementation is sought is one embodied in a Uniform Law. 1. Conditional Spending Congress engages in conditional spending when it places conditions on the States’ receipt of federal funds in order to further federal policy objectives. Conditional spending thus involves Congress’ exercise of its power under the Taxing and Spending clause to spend for the General Welfare.148 Because the States are free to refuse the federal funds if they do not wish to comply with the conditions, New York v. United States found this use of states to carry out federal policy to be consistent with the principles of federalism. In South Dakota v. Dole, 149 the U.S. Supreme Court established four requirements that Congress’ use of conditional spending must meet in order to be constitutional. The first of these criteria applies to all exercises of Congress’ spending power – the federal expenditure must be in pursuit of the general welfare of the nation.150 In making this determination, however, courts will defer substantially to the judgment of Congress, and the degree of deference is so great that some cases have questioned whether this is a judicially enforceable restriction at all.151 The Court has considered whether Congress believed there was a problem requiring a national solution and whether the means chosen were reasonably calculated to advance the general 148

Art. I, §8, cl. 1 empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” 149

483 U.S. 203 (1987).

150

Id. at 207.

151

E.g. Buckley v. Valeo, 424 U.S. 1, 90-91 (1976). -35-

welfare.152 The second requirement is that any conditions placed on the receipt of funds must be stated unambiguously so that the states are able to make a knowing choice, “cognizant of the consequences of their participation.”153 Third, the conditions placed on the federal grant must be related to the federal interest in the particular national project or program.154 Fourth, the conditions cannot require the states to do something that would cause them to violate the Constitution.155 The Dole Court also suggested that the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion,’” but found no coercion in that case, where only 5% of highway funds were involved.156 2. Case Study: The Uniform Interstate Family Support Act and the Federal Personal Responsibility and Work Opportunity Reconciliation Act. The interrelationship of the Uniform Interstate Family Support Act (“UIFSA”) and Title III of the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”) provides an illustration of Congress’ use of its conditional spending power to encourage passage of a uniform act that Congress viewed as furthering federal policy in the states. The Uniform Interstate Family Support Act of 1992 creates uniform rules for the enforcement of family support orders across state lines. It establishes basic jurisdictional standards for state courts by determining the basis for a state exercise of continuing exclusive jurisdiction over a child support proceeding, establishing rules for determining which state issues the controlling order when proceedings are initiated in multiple jurisdictions, and providing rules for modifying or refusing to modify another state’s child support order. PRWORA represented a significant shift in federal welfare policy, replacing the Aid to 152

Dole, 483 U.S. at 208.

153

Id. at 207.

154

Id. at 208. The Dole Court left open the question of how related to the federal interest in the program the conditions must be. Id. 208, n. 3 (cases “have not required that we define the outer bounds of the ‘germaneness’ or ‘relatedness” limitation on the imposition of conditions under the spending power.”) The Dole Court found that the condition placed on the receipt of highway funds that the state have a minimum drinking age of 21 was “directly related to one of the main purposes for which highway funds are expended – safe interstate travel;” the minimum drinking age condition was “reasonably calculated to address this particular impediment to a purpose for which the funds are expended.” Id. at 208. In New York v. United States, 505 U.S. 142, the Court indicates that the test is one of “reasonable relationship” – i.e. the deferential test of minimum rationality. Id. at 167, 172 (conditions must “bear some relationship to the purpose of the federal spending”; conditions imposed were “reasonably related to the purpose of the expenditure.”) 155

Dole, 483 U.S. at 210.

156

Id. at 211. -36-

Families with Dependent Children program with the Temporary Assistance to Needy Families program, and amending the Child Support Enforcement Program found in Subchapter IV, Part D of the Social Security Act, which provides federal money to assist states in collecting child support from absent parents. The PRWORA Temporary Assistance to Needy Families program provides block grants to the states. States use this money to provide cash assistance and other supportive services to low-income families within their state. Under PRWORA, states are given more flexibility in designing their own public assistance programs than under previous law, but they also are subjected to significant federal requirements with which they must comply. Similarly, PRWORA imposes greater federal oversight and control over the states’ participation in the Child Support Enforcement Program in an effort to increase efficiency in child support enforcement, particularly in interstate cases, through information sharing, mass case processing, and uniformity. The Temporary Assistance and Child Support Enforcement provisions are tied together by the requirement that, if a state elects to receive a federal block grant under the Temporary Assistance program, it is required to operate a child support enforcement program that meets IV-D’s requirements. If the state’s child support enforcement program does not conform with the IV-D requirements, then the state risks the denial of both its federal IV-D child support enforcement funding and its federal block grant under Temporary Assistance program.157 UIFSA and PRWORA are tied together because one of the many requirements that states must meet under IV-D in order to receive either IV-D funding for child support enforcement or a Temporary Assistance federal block grant is that the state must have adopted the 1996 version of UIFSA. 42 U.S.C.A. §666(f) states that one of the measures to improve the effectiveness of child support enforcement the states must take is In order to satisfy [the requirements] of this title, on and after January 1, 1998, each State must have in effect the Uniform Interstate Family Support Act, as approved by the American Bar Association on February 9, 1993, and as in effect on August 22, 1996, including any amendments officially adopted as of such date by the National Conference of Commissioners on Uniform State Laws. PRWORA illustrates how Congress can use its conditional spending power as an alternative to federal legislation in carrying out federal policy. Rather than preempting state law in this family law area that has traditionally been one governed by state law, conditional spending allows Congress to implement its welfare policy while leaving state law as the primary governing law. Under PRWORA, states are able to use federal tax dollars to implement state programs, they are left free to establish the details of those assistance programs as long as they comply with the conditions for receipt of the federal funds, and the administration and enforcement of child assistance and child support programs remains with the states. It should be noted that, in the case of PRWORA, the federal conditions are quite extensive. Concomitantly, however, the amount of federal funds that are provided to the states are quite large, and – 157

For a more detailed discussion of the PRWORA provisions, see Kansas v. United States, 214 F.3d 1196, 1197-98 (10th Cir. 2000), cert. denied, 53 U.S. 1035 (2000). -37-

crucially for purposes of the federalism limits established in New York v. United States – the states are left free to choose not to accept the federal monies and to pursue an entirely independent policy with regard to child assistance and enforcement of support orders. In Kansas v. United States158 the U.S. Court of Appeals for the Tenth Circuit held that the conditional spending scheme established by the PRWORA was a constitutional exercise of Congress’ spending power under the standards established in South Dakota v. Dole and New York v. United States. Kansas argued that PRWORA violated the Spending Clause and the Tenth Amendment because the IV-D Child Support Enforcement Program requirements were too onerous and expensive, required too much manpower, and encroached on Kansas’ ability to determine its own laws; because, given the amount of federal funding at stake (in 1996 alone, Kansas had received $29.3 million in IV-D funding and $101.9 million in Temporary Assistance block grants), Kansas also argued it was coerced into implementing the program.159 The 10th Circuit easily found that the PRWORA conditions satisfied the four requirements of Dole – noting the substantial deference given to Congress in defining the general welfare, the court found this condition easily met; similarly the court found that the conditions were unambiguous and Kansas accepted the money with knowledge of the conditions.160 The court also rejected Kansas’ argument that the IV-D Child Support Program conditions were not sufficiently related to the national interest in the Temporary Assistance program, holding that the Temporary Assistance program, providing financial support to low-income families, clearly was related to the IV-D Child Support Enforcement program and its requirements, as it assists low-income families in collecting child support from absent parents.161 Kansas’ argument that some of the IV-D conditions would violate privacy and due process rights also was rejected; the court noted that PRWORA requires states to adopt safeguards against unauthorized use or disclosure of information handled by a state child support enforcement agency and leaves the states free to adopt other measures to protect the information they receive.162 Finally, the court rejected the argument that the amount of federal funds involved deprived Kansas of a real choice in deciding whether to accept the federal funding subject to the PRWORA conditions, noting that other courts had upheld conditional spending involving similarly large amounts of federal money against an assertion of coercion.163 The Kansas court found that PRWORA was consistent with 158

214 F.3d 1196 (10th Cir. 2000), cert. denied, 53 U.S. 1035 (2000).

159

Id. at 1198.

160

Id. at 1199.

161

Id. at 1200.

162

Id.

163

Id. at 1202. The court also noted that “the coercion theory is unclear, suspect, and has little precedent to support its application.” Id. A number of courts similarly have questioned the viability of the coercion theory. See West Virginia v. HHS, 289 F.3d 281, 290 (4th Cir. 2002) (noting that “most courts ... have effectively abandoned any real effort to apply the coercion theory,” but that the coercion theory is still viable doctrine in the Fourth Circuit.) -38-

New York v. United States and Printz. because “the states have a real choice, albeit a hard one, between accepting the money and the conditions or declining both.164 The court concluded that the IV-D requirements “represent a reasoned attempt by Congress to ensure that its grant money is used to further the state and federal interest in assisting needy families, in part through improved child support enforcement, and that PRWORA in fact increased, rather than constrained Kansas’ options by offering more federal dollars.165 The interaction of PRWORA and UIFSA also illustrates that conditional spending can be an effective technique for alleviating concerns about uniformity and delay that are raised by using state law to effectuate federal policy. The original UIFSA, promulgated by NCCUSL in 1992, was adopted in 35 states. The 1996 version to which PRWORA refers was promulgated by NCCUSL in July, 1996, less than one month before PRWORA was enacted by Congress. As the Prefatory Note to the current version of UIFSA states, Congress’ action in conditioning receipt of federal funds under PRWORA “assured that nationwide acceptance of the amended Act was virtually certain,” and all U.S. jurisdictions enacted the 1996 version of UIFSA by the January 1998 deadline prescribed in 42 U.S.C.A. §666(f).166 Thus, UIFSA was adopted by all the States within 17 months of the time it was initially promulgated by NCCUSL. Although the Prefatory Note also states that “[t]he widespread acceptance of UIFSA is due primarily to the fact that representatives of the child support enforcement community ... participated actively in the drafting of each version of the Act,” it seems equally clear that its speedy, uniform adoption was propelled by the conditional spending provision in section 666(f) of PRWORA.167 Clearly, the conditional spending model illustrated by PRWORA/UIFSA could be a viable one for allowing the federal policy reflected in certain treaties involving subject matter regulated by state law in the U.S. to be implemented through state legislation, while avoiding the problem of nonuniformity in implementation of the U.S. treaty obligation. When the subject matter area covered by the treaty is one that either currently is the subject of federal grants to the states, or one in which federal monies will need to be spent in order to effectuate the treaty, then conditional spending could be used. For example, The Hague Conference Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, currently in the negotiation process, with the diplomatic session scheduled for 2007, seems like a very good candidate for consideration of this type of approach. It has been suggested, however, that the actual language of section 666(f) is problematic 164

214 F.3d at 1203.

165

Id. at 1203-04.

166

Prefatory Note, Uniform Interstate Family Support Act (2001).

167

Id. The Prefatory Note indicates another advantage of the federal-state cooperation between the PRWORA and UIFSA. Not only state, but federal organizations, such as the U.S. Department of Health and Human Services have been involved in providing “comprehensive training about the Act,” with the result that “the provisions of UIFSA are far more familiar to those who administer it than ever was true of its predecessor [uniform] acts.” Id. -39-

because it literally requires that the states adopt a specific version of UIFSA – “ the Uniform Interstate Family Support Act, as approved by the American Bar Association on February 9, 1993, and as in effect on August 22, 1996, including any amendments officially adopted as of such date by the National Conference of Commissioners on Uniform State Laws.” The clear implication of this language is that states could not adopt any amendments to UIFSA without risking loss of their federal funding under PRWORA, even if those amendments improved UIFSA in ways that made it even more effective in carrying out the federal policies contained in PRWORA. An obvious way to deal with this problem is to provide a procedure by which amendments to the uniform act that do not detract from the federal policy could be approved by the federal agency, and the PRWORA does have such a mechanism. Anecdotal evidence as to the effectiveness of this procedure as a way to allow future amendment, however, is mixed. Battle Robinson, Chair of the UIFSA committee, told me that PRWORA had been a problem in obtaining enactment of the 2001 amendments to UIFSA in some jurisdictions because some states have been reluctant to make the effort to apply for approval of the amendments from the federal agency.168 On the other hand, I spoke with Commissioner Hemmendinger of Rhode Island, who assisted passage of the UIFSA amendments in that state last year, and he indicated that there had been no problem with the state agency obtaining clearance for the amendments from the federal agency. The state agency had indicated to him that it told the federal agency it was enacting the same amendments as other states who already had received approval, and approval had not been a problem. Because amendments to UIFSA will be uniform, it makes sense that the burden of approval of them should be one that must be encountered only once – after the federal agency has made one determination that the amendments are consistent with PRWORA and thus do not effect the States’ funding, that determination should be available as a matter of course for all states, unless they seek to adopt nonuniform amendments. This in turn suggests that, as part of the process of promulgating amendments, NCCUSL might consider whether it should not seek in essence pre-approval of the amendments from the federal agency so that no one state has to bear the burden of going through the initial approval process. Several other drafting techniques also could be used, depending upon the situation, to avoid freezing the content of a uniform state law beyond what is necessary to carry out federal policy. For example, in a situation where continuing supervision by a federal government agency was not contemplated, a provision in the federal legislation could simply provide that subsequent amendments to the uniform law that did not detract from the federal policy (which would need to be articulated) could be adopted by the States without effecting the States’ eligibility for the federal funds involved. This type of provision, of course, would be less certain than the agency-determination route because the determination as to whether in fact an amendment did detract would be left for ex post facto determination by the courts, rather than being subject to ex post ante determination by an agency. In a situation when it was only certain parts of a uniform law that were critical to federal 168

According to the NCCUSL website, the 2001 UIFSA amendments have been enacted in 19 jurisdictions. -40-

policy, another drafting technique would be to identify those particular sections of the uniform law, and have the appropriation condition provide that only those parts must be enacted in a particular form. This would leave the States free to amend other parts of the uniform law. The problems that the particular language of PRWORA have created will need to be considered in any use of conditional spending as a means to encourage state adoption of implementing legislation for a federal treaty. Obviously, there must be a balance between insuring that the provisions of state law effectively implement the treaty and not unduly burdening the states’ ability to be free to address peripheral matters that do not detract from the United States’ obligation of good faith implementation. One can argue, however, that the problems encountered in the UIFSA/PRWORA interaction are likely to be less severe in the context of using conditional spending to encourage state adoption of treaty implementation legislation. UIFSA is a free-standing statute. It was not specifically designed to implement the federal welfare policies embodied in PRWORA; Congress simply decided after the fact that it sufficiently did so that its adoption should be made a condition of the receipt of funds under the federal program. In the context of using conditional spending as a means to encourage the states to adopt treaty implementation legislation, the uniform law that would be drafted would be designed specifically to implement the federal treaty. Thus, it is much less likely that there would be any reason to amend its provisions in the future. So long as the substance of the treaty remained unchanged, there would normally be no reason to consider amendment of the implementing legislation.

3. Conditional Pre-emption A second technique for using state law to implement federal policy approved in New York is that of conditional preemption. Unlike conditional spending, which can be utilized by Congress to place conditions on the receipt of federal funds that require the state to regulate subject matter that Congress could not regulate directly, cooperative federalism operates only in the situation where Congress has the power to regulate directly the subject matter that it wishes instead to be regulated by the States. In that situation, Congress can offer the States the choice of regulating themselves pursuant to federal guidelines, or having regulation of the subject matter preempted by federal regulatory legislation. While the encouragement for state enactment provided by conditional spending can either be a carrot (if new funding is offered) or a stick (if pre-existing funding is threatened to be cut off), conditional preemption always involves a stick, in the sense that the incentive for state implementation of federal policy is the threat of preemption of regulation of the subject matter by federal law. In deciding whether the stick is big enough to induce the State to undertake state regulation pursuant to federal guidelines, the State must consider the importance of maintaining state law control over the subject matter, as well as the cost of regulating pursuant to federal guidelines, for, unlike conditional spending, state regulation need not be accompanied by federal funds to assist in implementation. This technique is sometimes termed “cooperative federalism” because, rather than simply preempting state law through federal regulation, the national government gives the States the option of instead regulating pursuant to federal standards. It is conditional preemption for obvious reasons -41-

– the federal government will regulate the subject matter area to the exclusion of the States unless the States chose to regulate under the federal standards. As with conditional spending, conditional preemption does not violate the commandeering principle of New York because, while the threat of federal preemption creates an incentive for the States to regulate pursuant to federal guidelines, the States remain free to choose not to regulate, thereby leaving the subject matter area to federal regulation to the extent of the federal preemption. 4. Case Study: the Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act The interaction of NCCUSL’s Uniform Electronic Transactions Act (UETA) and the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) demonstrates the use of conditional preemption at the domestic level to encourage the States to enact federal policy. UETA was promulgated by NCCUSL in 1999. Its primary objective is to insure that transactions conducted through electronic records are as enforceable as similar transactions conducted in writing in order to facilitate electronic commerce. Prior to UETA, individual states had begun adopting legislation dealing with various aspects of electronic commerce, such as digital signatures; UETA represented a comprehensive effort to prepare state law on a uniform basis for electronic commerce. Section 7 of UETA sets out its core principles, providing for the validity of electronic records and signatures and contracts made electronically, providing that laws requiring a writing will be satisfied by an electronic record, and providing that any signature requirement in a law will be satisfied by an electronic signature.169 The federal E-SIGN was signed into law June 30, 2000, effective October 1, 2000. Its goals are similar to those of UETA – “fostering electronic commerce, validating electronic signatures and records, encouraging technology neutrality and promoting uniformity of law regarding electronic signatures and electronic records among the states.”170 Congress was well aware of UETA when it passed E-SIGN, and also apparently was satisfied with the policy embodied in UETA; however Congress was concerned that UETA could not be enacted quickly enough, and with sufficient uniformity, to meet the needs of the quickly developing area of electronic commerce.171 On the other hand, Congress was willing to have this area ultimately governed by state law. Indeed, the legislative history of E-SIGN indicates that E-SIGN was viewed as, in effect, an interim measure to provide uniformity in the crucial area of electronic commerce until UETA could be enacted by the States.172 For example, Senator McCain stated 169

UETA, §7; see Uniform Law Commissioners, Summary: Uniform Electronic Transactions Act, www.nccusl.org. 170

Meehan & Beard, supra note 38, at 390-91.

171

See A. Brook Overby, Our New Commercial Law Federalism, 76 Temp. L. Rev. 297, 333335 (2003) (discussing reasons for enactment of E-sign). 172

Id. at 340 (Congress perceived uniform laws process as inadequate to create necessary uniformity with due speed, but appears that E-sign was considered an interim measure to speed -42-

that: This legislation is intended to protect and foster commerce during this transition period by providing a predictable legal regime governing electronic signatures. This legislation is not intended to preempt or overrule the developing State law of electronic signatures embodied in UETA. Once the States enact uniform standards consistent with those of UETA, the standards prescribed in this legislation will cease to govern.173 Similarly, Senator Hollings stated that: [B]ecause the legislation ultimately affects State contract law, I was concerned about preserving the right of States to adopt their own laws, given that the States already were working on the adoption of a model law. In the field of commercial law, the States had a similar experience with the UCC. Thus, I saw no reason to prevent the States from adhering to the same process with respect to digital signatures. I made it clear ... that I would not support the bill – in fact that I would seek to block its passage – if the legislation did not preserve the autonomy of States to adopt the model law that they were considering.174 In order to carry out the goal of obtaining immediate uniformity while allowing the area ultimately to be governed by state law, Congress turned to the technique of conditional preemption. Section 7002(a) of E-SIGN provides that state enactments of UETA “may modify, limit or supersede” the substantive rules of E-SIGN, thus, in effect creating an opt-out provision under which the states can avoid application of E-SIGN by enacting UETA. Section 7002(a) also allows other state law to have the same effect if it is consistent with E-SIGN, technology neutral, and if enacted after June 30, 2000 (the date E-SIGN was enacted), makes specific reference to E-SIGN.175 By the use of conditional preemption, Congress was able to insure that a uniform standard could be put into place quickly with regard to electronic contracting, while allowing state law ultimately to provide that standard through the replacement of E-SIGN by UETA under the section 7002(a) opt-out provision. Conditional preemption accomplishes this goal within the constitutional limits established by New York v. United States because the states are given a choice – they can decide not to enact law dealing with electronic records and signatures, thereby choosing to have federal law in the form of ESIGN govern within their state, or they can enact the uniform version of UETA, thereby opting out of E-SIGN and having this area governed by the process of state law enactment; “[a] strong sense appears to have emerged that E-SIGN was a temporary – and limited – intervention into state regulation of e-commerce.”). 173 174 175

S. Rep. No. 106-131 (1999). 146 Cong. Rec. at S5227 (statement of Sen. Hollings). 15 U.S.C. §7002(a)(2). -43-

UETA as state law. Because E-SIGN also allows an opt-out based on consistent state law, states also can choose to enact something other than the uniform version of UETA and have the extent to which that law is saved by section 7002(a) determined ex post facto under the consistency and neutrality test established in that section.176 E-SIGN’s conditional preemption technique obviously encouraged passage of UETA in the states by giving the states the incentive of allowing this emerging area of the law to continue to be controlled by state, rather than federal law, and it encouraged passage of UETA in its uniform version, as this is the version that section 7002(a) clearly provides will allow a state to opt out of E-SIGN.177 Conditional preemption has been largely successful in encouraging passage of UETA. Forty-eight states, as well as the District of Columbia and the U.S. Virgin Islands have enacted UETA, thus allowing the area of electronic contracting to remain one governed largely by state law, while being subject to uniform rules.178 As with the wording of PRWORA that established the interaction of UIFSA and PRWORA, the actual wording of E-SIGN’s section 7002(a) establishing conditional preemption has been the subject of criticism. Section 7002, which is titled “Exception to Preemption,” provides (a) In general A State statute, regulation, or other rule of law may modify, limit, or supersede the provisions of section 7001 of this title with respect to State law only if such statute, regulation or rule of law – (1) constitutes an enactment or adoption of the Uniform Electronic Transactions Act as approved and recommended for enactment in all the States by the National Conference of Commissioners on Uniform State Laws in 1999, except that any exception to the scope of such Act enacted by a State under section 3(b)(4) of such Act shall be preempted to the extent such exception is inconsistent with this subchapter or subchapter II of this chapter, or would not be permitted under paragraph (2)(A)(ii) of this subsection; or (2) (A) specifies the alternative procedure or requirements for the use or acceptance (or both) of electronic records or electronic signatures to establish the legal effect, validity, or enforceability of contracts or other records, if – (I) such alternative procedures or requirements are consistent with this subchapter and subchapter II of this chapter; and (ii) such alternative procedures or requirements do not require or accord greater legal 176

Overby, supra note 171, at 341.

177

Cf. id. at 343 (the priority given UETA under E-SIGN makes it more likely that UETA will be enacted, and in its uniform version, by states that choose to opt-out of the federal regime). 178

Uniform Law Commissioners, A Few Facts About the Uniform Electronic Transactions Act, www.nccusl.org. It appears that Georgia and Illinois are the two states that have not enacted UETA. -44-

status or effect to, the implementation or application of a specific technology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or electronic signatures; and (B) if enacted or adopted after June 30, 2000, makes specific reference to this chapter. Obviously, this language is not the most straightforward way in which to state the intended scope of preemption under E-SIGN. In general, it has raised two sets of issues. First, are the problems related to the requirement that the State’s adoption of UETA be of UETA as approved by NCCUSL in 1999. This raises the question of whether any variation from that text will take a State’s UETA enactment out of the protection of (a)(1) in its entirety, or whether only those portions of UETA that actually vary from the uniform 1999 version will be subjected to a consistency analysis under section (a)(2).179 The answer to this question is important not only with regard to initial enactments of UETA, but also with regard to any future amendment of UETA. Second, are problems arising from the fact that section 7001 and UETA are not substantively identical. Section 7001(c) for example, contains certain consumer protection provisions regarding steps that must be taken in order to make an electronic record satisfy the requirement that a consumer disclosure must be provided or made available to the consumer in writing. Although UETA does have provisions regarding consent to electronic transactions and relating to retention and formatting of notices, these provisions are not consumer specific; in fact, the UETA drafting committee made a conscious decision to leave the issue of consumer protection to other applicable law.180 Does adoption of the uniform version of UETA mean that these provisions no longer apply under E-SIGN subsection 7002(a)(1)?181 As with PRWORA, the problems with UETA provide lessons for more careful drafting, and some of the techniques discussed in that context also should be considered in drafting provisions establishing conditional preemption. However, as was suggested in the discussion of PRWORA’s difficulties, it can be argued that the drafting issues raised by E-SIGN are less likely to cause difficulty in the context of using conditional preemption as a means to encourage the states to implement private international law treaties. In that situation, the uniform law that would be drafted for state adoption should be limited in scope to dealing specifically with implementation of the substance of the treaty, and, except to the extent that differences in drafting conventions between federal and state legislation require otherwise, the language of the proposed federal and state law should be identical. This would eliminate questions about substantive differences between the federal and state laws, as there would be none. Further, if the state law were drafted narrowly to deal only with the issues necessary to implement the treaty, then the issue of nonuniform enactments would be less of a problem. As with the conditional spending technique for encouraging state enactment of federal 179

See, e.g., Meehan & Beard, supra, note 38, at 403-405 (discussing this issue).

180

Id. at 406.

181

See id. at 405- 407 (discussing this issue); Overby, supra note 171, at 338 (same).. -45-

policy, conditional preemption seems to hold great promise for providing a mechanism by which state law can be used to implement treaties with confidence that state law implementation will satisfy the international obligations incurred by the U.S. in becoming a party to the treaty. In this regard, conditional preemption is for many cases going to be the better of the two techniques. First, it can be used with regard to a much broader range of treaties, as it does not require use of funds or some other strong incentive as an inducement to state enactment. Second, if used in the “opt-out” fashion illustrated by E-SIGN and UETA, it means that there need be no time lag with regard to implementation – federal law applies unless and until state law is enacted in the states to supercede it. With conditional spending, on the other hand, if a state chooses not to enact the implementing legislation and instead to forgo the federal incentive, there would be a gap in the implementation of the treaty with regard to that state. Of course, this is a question of making the funding or other incentive sufficiently tempting so that the states will choose to enact the legislation in order to receive it, and states normally do agree to conditional spending programs. Further, unlike many of the situations in which conditional spending is utilized domestically, where it is at least unclear whether the federal government could enact the program directly under one of its enumerated powers, the broad interpretation of the treaty power under Missouri v. Holland means that there should be the possibility for the federal government – as a necessary and proper means to carry out the treaty power – to step in with federal legislation if the conditional spending technique does not work. Thus, the “threat of preemption” idea behind conditional preemption is likely to be available as a back-up with regard to use of the conditional spending technique as well as a means to ensure that the treaty is in fact implemented. The down-side to conditional preemption from the standpoint of ensuring that state law is used to implement treaties is that, if the implementation involves considerable additional expenditure of funds, states may find that they must allow federal preemption because they cannot afford the expense of state implementation, while conditional spending could provide the states (at least in theory) with funds to be used for implementation. This may not, however, be an issue for many of the treaties in the private international law area, as those treaties often are in large part substantively similar to current domestic law for which the states have already assumed the administrative burden, and thus should not create significant additional monetary burdens for the states. If a treaty being considered as a candidate for state law implementation does significantly change existing state law in ways that are likely to create considerable additional expense, then that additional expense could become an issue in the state’s decision under conditional preemption. IV. Conclusion The current trend towards international harmonization of private law through international conventions clearly is going to require the development of creative treaty implementation techniques within the United States. Most of the areas covered by these international harmonization conventions are areas – such as family law and commercial law – traditionally governed by state law within the United States. There is little, if any, impetus to federalize these areas of the law, other than the need to insure that the U.S. can carry out its treaty obligations if it becomes a party to these conventions. The substantive content of the treaties is largely consistent with existing state law and state courts and enforcement institutions have proven adequate to deal with these areas as a matter of domestic law. Thus, -46-

implementation of these private law harmonization treaties in a fashion that would allow state law to remain the relevant governing body of law while insuring sufficient uniformity and timeliness in implementation to satisfy the U.S. good faith obligation seems the best solution. As Part III of this Report discusses, there are several techniques by which state implementation of these treaties could be accomplished. Which of the techniques for using state law to implement federal treaties is appropriate obviously will have to be determined on a case by case basis, looking at such factors as the subject matter of the treaty involved, the extent to which the treaty’s substance reflects current state law with regard to that topic, and the nature of the obligations the United States has incurred under the treaty. In many cases, one can envision use of a combination of these various techniques. For example, in the situation when the substantive rules of a treaty reflect in large part current state law on that subject, with a few clearly identifiable differences, it might be possible to use a combination of the “pre-implementation” idea discussed in Part III (A) above and conditional preemption. By way of illustration, we might consider how the United Nations Convention on the Assignment of Receivables in International Trade could be implemented using a combination of these techniques. The United States members of the NCCUSL Drafting Committee to Harmonize North American Law with Regard to the Assignment of Receivables in International Trade have determined that the Receivables Convention is in large part consistent with Article 9 of the Uniform Commercial Code and, in connection with the initial charge of that Committee to develop amendments to Article 9 to carry out the substance of the Receivables Convention, have prepared a draft statute to address the changes that would need to be made to Article 9 to bring it into line with the Convention. Thus, one could see implementation of this Convention by (1) an understanding in the Senate Resolution to the effect that the Convention would not be selfexecuting, and that the Convention is consistent with current U.S. law regarding assignment of receivables, except as provided in accompanying implementing legislation; and (2) implementing legislation with regard to the areas in which Article 9 is not sufficient for implementation, designed to be adopted at either the state or federal level, and, in the federal version, stating that the states can opt-out of the federal version by adopting the legislation at the state level as amendments to Article 9. This approach to implementing the Receivables Convention has several advantages over simply allowing the Convention to be self-executing. First, it addresses the political concerns regarding state’s rights based objections in the Senate and the need to ensure that the U.S. can meet its international obligations in becoming a party to the treaty, while allowing this area of the law potentially to remain entirely one of state law. Beyond this, however, this implementation method also furthers the goals of certainty and predictability that underlie Article 9 by providing an authoritative statement for the way in which Article 9 and the Receivables Convention fit together, rather than requiring practitioners to determine that for themselves as they encounter secured transactions coming within the Convention (and, perhaps, making that determination in differing ways.) Although Article 9 and the Convention are in large part compatible, the language of the Convention and of Article 9 differs in many respect, making that determination one that is not self-evident. By providing an implementation mechanism that expressly deals with the relationship between Article 9 and the Convention this -47-

technique thus furthers consistency and clarity in the interaction of Article 9 and the Convention. Further, the fact this implementation technique will allow the law of secured transactions to remain entirely governed by Article 9 will simplify the task for secured transactions lawyers while also providing the benefits of the Conventionâ&#x20AC;&#x2122;s uniform rules in international transactions. This Report does not purport to provide comprehensive answers to the question of state law implementation. Clearly, there are a number of issues that remain to be explored, and many of these issues will be best explored in the context of specific state law implementation projects. The techniques discussed in the Report, however, demonstrate that state law implementation of private law treaties through the uniform laws process is something that can be accomplished in a way that will make both minimal change in the federal-state balance in these areas and U.S. compliance with its treaty obligations attainable goals.

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