In response to the growing academic and political movement that opposes the direct incorporation of treaties into domestic federal law, numerous scholars have proposed that states take on an increased role in the domestic interpretation and implementation of international human rights treaties. The focus of this scholarship to date has been to locate doctrinal gaps where state legislatures and courts may act without intruding in areas of traditionally federal jurisdiction. Thus far, however, little effort has been directed towards modeling an affirmative obligation for state participation in treaty implementation, despite the fact that state action is arguably required, both pragmatically and doctrinally, if the United States is to comply with its commitments under international human rights law. In this Article, I argue that reframing treaty implementation through a dynamic federalist model could be productive and even necessary, if the United States is going to meet its existing international obligations. As an example, I discuss the ongoing litigation over the United States' failure to honor its obligations under the Vienna Convention on Consular Relations (VCCR). Federal actors have relied on federalism concerns to avoid forcing states to remedy violations of Convention rights, thus leaving the question of whether the United States will reach compliance entirely in the hands of the states, which have generally been slow to take up the call. Drawing on a model proposed by Justice Breyer, I contend that adopting a dynamic federalist model to implement and enforce the VCCR could help to move beyond this impasse, and perhaps more importantly, could help realize the benefits of federalism within the context of human rights treaty implementation.
84 Tul. L. Rev. 1025 (2010)