International Law and Federal–State Relations

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One of the principal purposes of the Constitution was to create a national government with power over foreign affairs. As james madison wrote in federalist No. 42, "If we are to be one nation in any respect, it clearly ought to be in respect to other nations." Thus, the Constitution gives the President the power to make treaties with the approval of two-thirds of the U.S. senate and explicitly denies that power to the states. It gives Congress the power to regulate foreign commerce and to define and punish offenses against the law of nations. Moreover, the supremacy clause makes not just acts of Congress but treaties "the Supreme Law of the Land."

The power of the federal government to preempt state law by entering a treaty is broader than its power under the commerce clause. In missouri v. holland (1920), the Supreme Court upheld an act of Congress implementing a treaty with Canada on the hunting of migratory birds despite the fact that similar legislation had twice been struck down for exceeding Congress's commerce power. Concerned that the federal government might use treaties on international human rights to dismantle segregation, proponents of states ' rights led by Senator John Bricker of Ohio tried unsuccessfully in the 1950s to reverse Holland with a constitutional amendment providing that "[a] treaty shall become effective in the United States only through legislation which would be valid in the absence of a treaty."

executive agreements are not mentioned in the supremacy clause, but the Court ruled that the President may preempt state law by entering such agreements in united states v. belmont (1937) and united states v. pink (1942), both of which upheld the Litvinov agreement recognizing the Soviet Union and disposing of claims between the two countries.

Until 1938, customary international law was applied by state and federal courts alike as part of the general common law without regard to its state or federal character. The Court declared in The Paquete Habana (1900): "International law is part of our law, and must be ascertained and administered by the courts of justice … as often as questions of right depending upon it are duly presented for their determination." The Court's pronouncement in erie railroad v. tompkins (1938) that "[t]here is no federal general common law" cast some doubt on the status of customary international law. Professor Philip Jessup soon argued, however, that Erie should not apply to international law, which should continue to be viewed as federal common law. In Banco Nacional de Cuba v. Sabbatino (1964) the Court endorsed Jessup's position, firmly establishing customary international law's status as federal common law. Because customary international law is federal law, it preempts inconsistent state law just as a treaty or statute would.

Even in the absence of a treaty, executive agreement, or rule of customary international law, federal courts have found state laws to be preempted under the dormant commerce clause or where they intrude on the federal government's foreign relations power. In Japan Line v. County of Los Angeles (1979), the Court struck down a California tax on foreign-owned containers under the commerce clause because it prevented the federal government from "speaking with one voice" in international trade; and in Zschernig v. Miller (1968) the Court invalidated an Oregon statute denying inheritance to residents of communist countries as an unconstitutional "intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress." Moves by state and local governments in the 1980s to oppose apartheid by divesting from South Africa were sometimes upheld, but a Massachusetts law that imposed sanctions against companies that did business in Burma was struck down by a district court in 1998 as contrary to Zschernig.

While the Constitution and Supreme Court decisions give the federal government nearly complete power over international law and foreign relations, the federal government has tended to exercise that power in ways that are quite deferential—indeed, too deferential—to state sovereignty. In order to avoid imposing obligations on the states (and head off the proposed Bricker Amendment), the administration of President dwight d. eisenhower promised not to accede to international human rights conventions. When the United States finally did ratify treaties like the Genocide Convention, the Torture Convention, and the International Covenant on Civil and Political Rights, it declared them not to be "self-executing," so that they would grant no legally enforceable rights in the absence of implementing legislation passed by Congress. When implementing the General Agreement on Tariffs and Trade (GATT) and the north american free trade agreement (NAFTA), Congress provided that only the federal government, and not private parties, could bring suit challenging state laws as inconsistent with GATT or NAFTA. And in 1998, the executive branch sided with Virginia in Breard v. Greene, arguing successfully to the Court that Virginia's failure to notify a criminal defendant of his right under the Vienna Convention on Consular Relations to speak with a consular official should not constitute grounds for staying his execution.

alexander hamilton observed in Federalist No. 80 that "[t]he Union will undoubtedly be answerable to foreign powers for the conduct of its members." The unfortunate practice of the federal government, particularly in the 1980s and 1990s, has been to give the states a license to violate the international obligations of the United States, violations for which the federal government bears responsibility under international law.

William S. Dodge


Bilder, Richard B. 1989 The Role of States and Cities in Foreign Affairs. American Journal of International Law 83: 821–831.

Bradley, Curtis A. and Goldsmith, Jack L. 1997 Customary International Law as Federal Common Law: A Critique of the Modern Position. Harvard Law Review 110:815–876.

Brilmayer, Lea 1994 Federalism, State Authority, and the Preemptive Power of International Law. Supreme Court Review 1994:295–243.

Henkin, Louis 1995 U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker. American Journal of International Law 89:341–351.

——1996 Foreign Affairs and the United States Constitution, 2nd ed. Oxford, England: Clarendon Press.

Jessup, Philip 1939 The Doctrine of Erie Railroad v. Tompkins Applied to International Law. American Journal of International Law 33:740–743.

Koh, Harold Hongju 1998 Is International Law Really State Law? Harvard Law Review 111:1824–1861.

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International Law and Federal–State Relations

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International Law and Federal–State Relations