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16. Memorandum summarizing U.S. views and practice in addressing federalism issues in treaties (November 8, 2002)


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Advisory Committee on International Law: Meeting of November 8, 2002
Federalism & U.S. Treaties: New Developments

As a matter of law, the Supreme Court has refused to interpret the 10th Amendment as a limitation on the exercise of the Treaty Power. In practice, therefore, the United States has not traditionally taken advantage of so-called "federalism clauses" that allow federal states to modify their obligations under a treaty because of the legal division of competencies between a federal government and its constituent units.

As a matter of policy, however, the United States has, on occasion, sought to tailor certain international obligations to maintain the existing balance of federal-state relations with respect to the treaty's subject matter. These federalism concerns have emerged with increased frequency in recent years as the subject-matter of treaties has broadened beyond transnational issues to areas traditionally regulated by U.S. states.

The mechanisms by which the United States has sought to limit or clarify its treaty obligations because of federalism policy concerns have varied:

• It has sought to negotiate provisions that are consistent with the federal government's traditional authorities (i.e., avoiding federalism concerns where possible);
• It has attached understandings as part of its adherence to certain treaties that clarify the U.S. understanding that the treaty's obligations do not require action beyond existing federal authorities;
• In the context of certain human rights treaties, it has attached reservations or understandings that accept all of the treaty's obligations, but clarify that they will be implemented at the appropriate government level -- federal, state or local;
• It has sought to negotiate new versions of a "federalism clause" that the United States could invoke as a matter of policy, rather than as a matter of law; and
• It has taken reservations to treaties to modify U.S. obligations to a level that the federal government is willing to assume.

Recently, the United States has been negotiating a Framework Convention on Tobacco Control. As a matter of policy, the United States had decided that the Convention should not impose obligations on U.S. States. A number of provisions in the current draft (e.g., Articles 8 and 16) would require state action in the event the United States were to become a party (other provisions raising federalism issues have already been eliminated on other grounds or modified to eliminate applicability beyond the federal level).

The Office of the Legal Adviser is interested in the views of the Advisory Committee as to which mechanism, if any, the United States should pursue to address federalism concerns in the FCTC. For the information of the Committee, a survey of past practice on federalism issues is attached along with the most recent Chairman's text of the FCTC.

Survey of Past Practice with Respect to Federalism Issues in U.S. Treaties

I. Examples of Federalism Clauses/Reservations Used by the United States

1948 OAS Charter: The U.S. instrument of ratification included a reservation that none of the Charter's provisions "shall be considered as enlarging the powers of the Federal Government of the United States or limiting the powers of the several states of the Federal Union with respect to any matters recognized under the Constitution as being within the reserved powers of the several states.1

Instrument for Amendment of the Constitution of the International Labor Organization: Article 19(7) provides:

(b) in respect of Conventions and Recommendations which the Federal Government regards as appropriate under its constitutional system, in whole or in part, for action by the constituent States . . . rather than for federal action, the Federal Government shall --
(i) make, in accordance with its Constitution and the Constitutions of the States
. . .concerned, effective arrangements for the reference of such Conventions and
Recommendations not later than eighteen months from the closing of the session.. . to the appropriate federal [or] State . . . authorities for the enactment of legislation or other action;
(ii) arrange, subject to the concurrence of the State. . ., for periodical consultations between the Federal and the State. . . authorities with a view to promoting within the federal State coordinated action to give effect to the provisions of such Conventions and Recommendations;
(iii) inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring such Conventions and Recommendations before the appropriate federal [or] State. . . authorities with particulars of the authorities regarded as appropriate and of the action taken by them;
(iv) in respect of each such Convention which it has not ratified, report to the Director-General of the International Labour Office.. . the position of the law and practice of the federation and its constituent States . . ., showing the extent to which effect has been.. . or is proposed to be given, to any of the provisions of the Convention...;
(v) in respect of each such Recommendation, report to the Director-General of the International Labour Office. . . the position of the law and practice of the federation and its constituent States. . ., showing the extent to which effect has been. . . or is proposed to be given, to the provisions of the Recommendation and such modifications of these provisions as have been found or may be found necessary in adopting or applying them.
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1At the time, the United States reservation had to be accepted by all other states parties, which it was, although Mexico accepted the U5. reservation on a reciprocal basis, but pointed out that it does not constitute a precedent, inasmuch as reservations of this nature pose the delicate problem of the fulfillment—oil the part of the federal states — of obligations arising from international instruments Uruguay communicated that it objects in principle to federalism reservations but would accept this one, given the unusual circumstances.
1967 Protocol to the Convention Relating to the Status of Refugees: Article VI incorporates the provisions of Article 41 of the 1951 Convention Relating to the Status of Refugees, 189 UNTS 150, which reads as follows:

In the case of a Federal or non-unitary State, the following provisions shall apply:
(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment.

(c) A Federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Convention showing the extent to which effect has been given to that provision by legislative or other action.

The Secretary of State's Report (July 25, 1968) that accompanied the President's transmittal of the Protocol to the Senate described the effect of Article VI:

By virtue of Article VI of the Protocol, the United States would assume obligations only in respect of matters that come within the legislative jurisdiction of the Federal Government. State laws would not be superseded by any provision of the Convention. With respect to any articles of the Convention that may come within the legislative jurisdiction of the states under our constitutional system, the Federal Government is obligated to bring such articles to the notice of the appropriate state authorities with a favorable recommendation.

1966 International Covenant on Civil and Political Rights: the 1992 U.S. instrument of ratification contained a reservation, indicating that the Convention's provisions:

[S]hall be implemented by the federal government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by state and local governments. The Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state . . . may take appropriate measures for the fulfillment of the Covenant."

This was in response to a clause in Article 50 of the Convention providing that the "provisions of the present Covenant shall extend to all parts of federal states without any limitations or exceptions." That Article had been inserted into the Covenant after the United States had proposed a federal-state clause, but then indicated in 1953 that the United States would not ratify the Covenants. A similar reservation was attached to the U.S. instrument of ratification to the International Covenant on the Elimination of All Forms of Racial Discrimination.

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1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: The 1994 U.S. ratification contained the following understanding:

(5) That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local govermncnts. Accordingly, in implementing articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.

During testimony regarding the Convention, the State Department Legal Adviser, Judge Sofaer made clear that this understanding was not intended to limit or circumscribe the obligations assumed by the United States, but addressed how the Convention's obligations would be implemented: "We simply wanted to make clear that we would not be violating the convention if there were certain steps that had to be taken by local or state government under our constitutional system."

Council of Europe Corruption Convention (transmittal to Senate pending): The Convention requires Parties to criminalizc "at the national level" various types of bribery. At the final negotiating session, negotiators agreed to a U.S. request to include in the official Explanatory Report a statement that Parties assume obligations under the Convention "only to the extent consistent with their Constitution and the fundamental principles of their legal system, including, where appropriate, the principles of federalism." As an authoritative expression of the intentions of the Convention's negotiators, the United States is relying on this statement as the basis for implementing the Convention obligations solely at the federal level through federal law.

Council of Europe Cybererime Convention (transmittal to Senate pending): The Convention requires parties to criminalize certain conduct related to computer systems, to ensure that procedures arc available to investigate cybercrime offenses, and to provide broad international cooperation in investigating such crimes and obtaining evidence. Since the United States traditionally regulates conduct based on its effects on interstate or foreign commerce, while matters of minimal or purely local concern are regulated by the states, the United States decided as a policy matter to pursue a provision in the text allowing it to take a federalism reservation. In the absence of the reservation, there would be a narrow category of conduct regulated by U.S. state, but not federal, law that the United States would be required to criminalize. The United States successfully negotiated such a clause just prior to the Convention's adoption, despite the initial objection of several nations, notably France. Article 41 now reads as follows:

1. A federal State may reserve the right to assume obligations under Chapter II of this Convention consistent with its fundamental principles governing the relationship between its central government and constituent States. . . provided that it is still able to co-operate under Chapter II.
2. When making a reservation under paragraph 1, a federal State may not apply the terms of such reservation to exclude or substantially diminish its obligations to provide for measures set forth in Chapter II. Overall, it shall provide for a broad and effective law cnforcemcnt capability with respect to those measures.
3. With regard to the provisions of this Convention, the application of which comes under the jurisdiction of constituent States or other similar territorial entities, that are not obliged by the constitutional system of thc federation to take legislative measures, the federal government shall inform the competent authorities of such States of the said provisions with its favourable opinion encouraging them to take appropriate action to give them effect.

II. Examples of Federalism Clauses Not Invoked by the United States

1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral
Awards
: Article XI is identical to Article VI of the Refugee Protocol (see above). The article-by-article analysis that accompanied the transmittal of the Convention to the Senate described the effect of this provision:

This article recognizes the special situation with respect to jurisdiction in federal or nonunitary States and attempts to accommodate such States. It would, however, run counter to the express provisions of the article for the United States to seek to take advantage of its provisions with respect to foreign arbitral awards arising out of commercial relationships. The Federal Arbitration Act of 1925 (9 U.S.C. 1-14) and the decisions of U.S. Courts relating thereto show that legislation on arbitration is clearly within the competence of the Federal Government. 2

1992 UNESCO Convention for the Protection of World Cultural and Natural
Heritage
:
Article 34, provides:

(b) with regard to the provisions of this Convention, the implementation of which comes under the legislative jurisdiction of individual constituent states, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such states, countries, provinces or cantons of the said provision, with its recommendation for their adoption.

__________________
2The SFRC Report (Sen. Executive Rept. 10, 90th Cong., 2d Session) contains the testimony of Amb. Richard D. Kearney of State/L. Amb. Kearney's testimony points out that the effect of the Convention on the laws of U.S. States is mitigated by the gradual adoption by states of uniform laws on arbitration procedures and widespread support of Courts and the bar that will enable the Convention to be enforceable in a growing majority of U.S. States. To a query whether the Convention would extend Federal jurisdiction into new areas, Kearney replied that the Federal Arbitration Act already provided more than is required by the Convention.
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