Federalism and horizontality in international human rights.

• Author: McGuinness, Margaret E.

The advent of the international human rights system is one of the many changes to international law since the time Missouri v. Holland (2) was decided. As other contributions to this symposium note, one of the challenging federalism questions raised by Holland in this new era is the effect of international human rights treaties and emerging customary international human rights law on U.S. states. (3) And just as the creation of the international human rights regime has affected domestic analysis of federalism, the international human rights system has itself adjusted to the processes of federalism.

The human rights regime is largely structured as a vertical process. States sign on to international human rights obligations, which are then integrated into domestic law. If a national government fails to implement its obligations internally, international courts and other institutions are designed to serve as supranational enforcement mechanisms. (4) The system has not always worked as planned. For its part, the United States has chosen to remain outside the human rights treaty regimes, or, where it has signed onto a treaty, has applied reservations, understandings and declarations to its commitments, which serve to limit the domestic effect of the treaty obligation. In part as a reaction to the failures of vertical enforcement, and in part as a reaction to U.S. human rights exceptionalism, the international human rights system has developed strong features of horizontality. This has been particularly true of efforts by states, NGOs and other actors to bring about changes to human rights behavior in the United States. Federalism itself, which only a few decades ago was viewed as a constraint to changing human rights behavior in the United States, has increasingly been exploited by advocates to promote international human rights standards and norms. (5) This essay explores the potential pitfalls of this expansion of horizontality and embrace of federalism for the broader project of international human rights.

1. INTERSYSTEMIC GOVERNANCE AND PLURALISM: HORIZONTALITY TRUMPING VERTICALITY

   In American federalism jurisprudence, the term horizontal federalism is used to describe the way in which law is created between and among the U.S. states in the absence of national law or federal enforcement mechanisms to coerce a uniform regulation or legal result. (6) In the international system, horizontality in lawmaking--or convergence across states around a particular norm--arises between nation-states acting as sovereign equals. Horizontality in human rights describes the ways in which human rights norms are transmitted, enforced and promoted across and between nation-states without the active intervention of the vertical institutions. For example, national judicial efforts to adjudicate human rights violations in other nation-states (as with prosecution of foreign war crimes in national courts under a theory of universal jurisdiction or an award of civil remedies for violations of human rights under the Alien Tort Statute in the United States) are said to be horizontal processes. (7) Different from vertical processes, horizontal processes help human rights norms that the United States has not signed onto nonetheless find traction in the U.S. legal system through actions by local, state and nongovernmental actors. Some cases may look more "diagonal" than purely horizontal or vertical, as they often involve a combination of vertical and horizontal processes.

   Doctrinal approaches to Missouri v. Holland generally focus on the vertical intersection of national treaty power and the 10th Amendment powers reserved to the states as a way of understanding multiple and overlapping systems of law. That is, they are concerned with whether and when the Constitution permits or prohibits U.S. states to act independently of the national government, and likewise whether and when the Constitution permits or prohibits the national government to bind the states to international commitments. (8) The contributions to this symposium by Professors Judith Resnik, (9) Robert Ahdieh, (10) and Paul Berman (11) offer alternative frameworks for thinking about the role of American federalism in the process of international or transnational lawmaking that encompass horizontality without rejecting the role of vertical hierarchies. These alternative approaches view the intersection of federalism and international law not as a problem to be resolved through constitutional theory, but as part of a global phenomenon of lawmaking and social problem-solving to be systematized and understood. (12)

   Thus, for Resnik, American federalism permits a multiplicity of approaches to "local-global" (or "global-local") problems of human rights, global warming and product safety. Where one level of governance fails or refuses to act to address a particular problem through law, other actors fill the regulatory void. The result in the United States has been "transnational-translocalism" in cases where the national government has refused to participate in international regimes (e.g., the Kyoto Protocol, the Convention for the Elimination of Discrimination Against Women) or where international agreement is unavailable (e.g., in the product safety area). (13) Similarly, Ahdieh argues that, rather than presenting obstacles to effective regulation, multiple and overlapping regulatory systems create efficiencies and important focal points for solving coordination problems in particular regulatory contexts. So, for example, federalism in the United States provides the opportunity for sub-national voices to participate in international lawmaking, which in turn permits inter-jurisdictional engagement (both horizontally between unconnected jurisdictions, and vertically within an international/national/subnational hierarchy), a process which may result in coordination efficiencies and better matching between regulation and the subject to be regulated. (14)

   Berman works from the theoretical premises of legal pluralism, building out from pluralist understandings of laws within a localized society to a vision of global legal pluralism. This vision accepts that lawmaking (or the creation of processes and norms that are recognized as authoritative by those subject to them) occurs simultaneously on multiple levels of formal and informal social governance. Just as an individual or social group within a state may be subject to plural influences of law, so too are individuals, social groups and local and national governments subject to plural sources of law internationally. The pluralist approach emphasizes that phenomena beyond coercive power and hierarchical authority are at work in creating norms of behavior, and which may limit traditional vertical processes of international law. Berman's self-described "controversial move" is the claim that pluralism is normatively desirable in a world of multiple authorities. (15)

   We thus have a valuable description of the complexity of the local, national and international processes at work, and a normative claim that the global phenomenon of multiple sources of lawmaking--including redundancies and overlap and the structure of federalism within the United States--promotes innovation and efficiency and is a good in itself. As my own work reflects, I tend to agree with and find quite valuable the intersystemic/pluralist perspectives on international law. (16) Understanding how international law works requires understanding how international law becomes local. Correspondingly, constitutional law cannot be understood without an account of how the Constitution interacts with foreign and international law.

   In sorting through the puzzle that lies at the intersection of international, national and local law, intersystemic approaches are helpful; they contribute to building an accurate description of the world as it exists. For too many years, U.S. constitutional law scholarship acted as though it operated within a hermetically sealed jurisprudential chamber: no influences were let in, no influences were let out. That has changed, as scholars have begun to better examine the ways in which U.S. legal and political engagement in the world has altered the constitutional order and the U.S. Supreme Court's approaches to questions of governmental structure and individual rights. (17)

   This commentary is thus intended to challenge my own thinking and writing in the area of human rights norm integration. If it is the case, as Resnik, Berman, Ahdieh and I have all claimed, that the generation and...