The internationalism of American federalism: Missouri and Holland.

• Author: Resnik, Judith
• Position: Symposiumh

1. COUNSELING CAUTION WHEN LABELING THE "DOMESTIC," THE "FOREIGN," THE "NATIONAL," AND THE "LOCAL" A. The Precautionary Principle and Toxic Toy Legislation in California B. Transnational Commitments to Equality, Local Laws, and New Remedies, both National and International, for Violence Against Women C. Warming Climates, Migratory Birds, Assertions of Sovereignty, and Layered Governance II. THE DOMESTICATION OF THE "FOREIGN" THROUGH DEMOCRATIC FEDERALISM III. NEW ARTIFACTS OF FEDERALISM(S): TWENTIETH CENTURY NATIONAL STATE-BASED INSTITUTIONS IV. CONSTITUTIONAL REGULATION OR TRANSLOCAL NATIONAL COLLABORATION V. THE IMPULSE TO PREEMPT VI. SOVEREIGNTISM, FEDERALISM, AND TRANSLOCAL TRANSNATIONALISM I. COUNSELING CAUTION WHEN LABELING THE "DOMESTIC," THE "FOREIGN," THE "NATIONAL," AND THE "LOCAL"

   1. The Precautionary Principle and Toxic Toy Legislation in California

      In many countries in the world, concerns about the risks of injury from various sources are taken into account through regulatory regimes clustered under an approach called "the precautionary principle." The idea is often credited to work related to consumer and environmental protection that was begun in Germany in the 1970s. (2) Today, one finds the commitment to using the "precautionary principle" codified in legislation in Europe. For example, the Swedish Unified Environmental Code of 1998 states that "precautionary measures [should] be undertaken as soon as there is reason to believe that an activity or measure can cause harm or inconvenience with respect to human health or to the environment." (3) Transnational provisions within the European Union have also relied on the precautionary principle when shaping regulation. (4) In contrast, when assessing potential environmental or consumer harms in the United States, national policies have tended to focus on what is called "risk assessment" or "risk analysis," aimed at providing a utilitarian weighing of costs and benefits. (5)

      But not San Francisco. In 2003, that city's Board of Supervisors concluded that, in light of its residents' rights to a "healthy and safe environment," it was time to create a new environment code that expressly referred to and incorporated the international "Precautionary Principle" (in that capitalized format) into local law. (6) As the ordinance explains, the city's Precautionary Principle imposes many duties and requires consideration of alternatives that impose "less hazardous options" so as to do as little damage as possible to human health and the environment. (7) To implement this obligation, in 2005, San Francisco's Board of Supervisors concluded that it would use "its power to make economic decisions involving its own funds as a participant in the marketplace ... consistent with its human health and environmental policies." (8) To do so, and consistent with its "Precautionary Principle," manufacturers were told to disclose the alternative substances that could have been used in the creation of various products. (9)

      Consider more of the approach taken in Europe. Toward the end of the twentieth century, regulators began to focus on certain chemicals (called phthalates) that are used in cosmetics and toys and that have been linked to health hazards in studies on animals. (10) These chemicals help make plastics flexible and add smells by binding fragrances to products. In 1999, the European Union issued a temporary ban on the use of six phthalates in children's toys. (11) In 2003, the European Parliament and the Council of the European Union issued a directive prohibiting those chemicals in cosmetics manufactured after 2004. (12) In 2005, the ban on use in children's toys became permanent. (13)

      Return again to developments in the United States. In October of 2007, California Governor Arnold Schwarzenegger signed into law an amendment to that state's Health and Safety Code. The new law was aimed at "toxic toys" (14) and it provides that, as of 2009, "no person or entity shall manufacture, sell, or distribute in commerce any toy or child care article that contains" certain of those chemicals, and other chemicals cannot be used in "any toy or child care article intended for use by a child under three years of age if that product can be placed in the child's mouth and contains" certain chemicals. (15) Other states, including Maine, Maryland, Massachusetts, Michigan, New York, and Oregon, have considered similar bills. (16) The legislative action in San Francisco and elsewhere provoked opposition, some of which was expressed through legal action. Business-based groups filed lawsuits challenging state and local action; they argued that federal law precluded local regulation. (17) At the national level, in 2008, the Senate passed legislation that would have banned all but trace elements of phthalates in children's toys. (18) Thereafter, a compromise bill on consumer product safety regulation became law; the 2008 act imposed some constraints on the use of phthalates, required study of others, and provided that its parameters did not preclude state regulation. (19) In addition, some toy manufacturers have changed their standards on the use of these chemicals. (20)

      The 2007 California enactment was the outgrowth of several years of work. Proponents had initially advanced broader provisions that addressed cosmetics as well as toys and had credited a 2003 European cosmetic law as an influence. Further, the 2004 draft expressly defined a "prohibited substance" to include those substances prohibited by the "European Parliament and the Council of the European Union" in 2003. (21) Subsequent amendments deleted that reference and much else. As enacted in 2007, the legislation in California (as well as a parallel provision in San Francisco (22)) focused on toys, specified which chemicals are banned, and did not directly link the state's prohibitions to those in Europe.

      I have just provided a first example of the role of the "foreign" in the "local;" in essence, California has adopted part of Europe's law as its own. This example is not only recent but also in an area, consumer product safety, that is not commonly found in the legal literature on federalism and transnational activities. Although the context is new, the activity is not; California's innovations are part of a pattern woven over centuries and thickening during the twentieth century, as can be seen by turning from toxic toys to human rights. After sketching such interactions around women's rights and climate change, I will turn to an analysis of their doctrinal and normative implications.

   2. Transnational Commitments to Equality, Local Laws, and New Remedies, both National and International, for Violence Against Women

      In 1981, the Convention on the Elimination of All Forms of Discrimination Against Women, or CEDAW as it has come to be known, entered into force. (23) A summary of its ambitions can be found in Article 3:

      States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. As this excerpt illustrates, CEDAW requires signatory states to take action in political, social, economic, and cultural fields "to ensure the full development and advancement of women" to enable them to have "human rights and fundamental freedoms on a basis of equality with men." (24)

      More than 180 countries have ratified the basic provisions of CEDAW, albeit sometimes with reservations as to particular aspects. (25) President Jimmy Carter signed CEDAW for the United States in 1980, (26) but subsequent administrations have either not persuaded the Senate to ratify the treaty or not tried to do so. (27) Opposition in the United States has been couched in the language of jurisdiction and sovereignty. As one of the Senators opposing ratification argued, signing CEDAW would be "surrendering American domestic matters to the norm setting of the international community." (28)

      But as in the case of my opening example--the precautionary principle and toxic toys--to look only at the national level is to miss a lot of the action. By 2004, forty-four U.S. cities, eighteen counties, and sixteen states had passed or considered legislation relating to CEDAW, (29) with yet others contemplating action. Many localities have enacted expressive provisions, calling for the United States to ratify CEDAW. But a few take a different tack, by turning this transnational law into local law. San Francisco is the prime example of such local incorporation. As that locality's Board of Supervisors declared, CEDAW, an "international human rights treaty" providing "a universal definition of discrimination against women":

      brings attention to a whole range of issues concerning women's human rights.... The City shall work towards integrating gender equity and human rights principles into all of its operations, including policy, program and budgetary decision-making. The Commission shall train selected departments in human rights with a gender perspective. (30) The purpose was to "[i]ntegrate gender into every city department to achieve full equality for men and women" in areas ranging from public works to parks to probation. (31) That technique has a name in transnational parlance, for it is what the United Nations, the Council of Europe, and the Commonwealth Secretariat call gender mainstreaming, aimed at ensuring that all social policy decisions are made with attention to their effects on women and men. (32)

      The conflict over ratification of CEDAW reflects debate ongoing within the United States about how to respond to persistent inequality predicated on gender. Not only is there disagreement about whether to join transnational efforts, but conflict surrounds the role that the national...