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84 Tul. L. Rev. 1025 (2009-2010)

handle is hein.journals/tulr84 and id is 1033 raw text is: Dynamic Federalism in Human Rights Treaty Implementation Johanna Kalb* 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 intematonal human rights treaties. The focus of this scholaiship to date has been to locate doctrinal gaps where state legislatures and courts may act without intruding in aras of tra&tionally federal jurisdiction. Thus far, however, little effort has been drected towards modeling an afirmative obligation for state participation in treaty implementation, despite the fact that state action is arguably required both pranatically and doctrinally, if the United States is to comply with its commitments under international human rights law In this Artcle, Iargue that refraining twty implementation through a dynamic federalist model could be productive and even necessaty if the United States is going to meet its existing international obligations. As an example, I iscuss 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 foreing 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 enforee the VCCR could help to move beyond this impasse, and pethaps more importantly, could help realize the benelfts offederalism within the context ofhuman ights treaty implementation. I. INTRODUCTION ........................................................................... 1026 II. PARALYSIS IN TREATY IMPLEMENTATION .................................. 1031 A. Breard andLaGrand ......................................................... 1036 B. Medellin andSanchez-Llamas ........................................ 1040 1II. RESOLVING THE IMPASSE ........................................................... 1049 IV EXTENDING THE MODEL ............................................................ 1059 V CONCLUSION .............................................................................. 1066 * © 2010 Johanna Kalb. Assistant Professor of Law, Loyola University New Orleans College of Law. I would like to thank Andrea Armstrong, Adeno Addis, Susan Bandes, Martha Davis, Mark Drumbl, Trey Drury, David Fontana, Robert Garda, Steve Higginson, Jancy Hoeffel, John Lovett, Isabel Medina, Carol Pauli, Markus Puder, Judith Resnik, Jessica Roberts, Etheldra Scoggin, Giovanna Shay, Karen Sokol, Reuben Teague, Robert Verchick, and Keith Werhan for their helpful comments. I would also like to thank the participants in the Loyola Junior Faculty Works-in-Progress Workshop and the Junior Faculty Federal Courts Conference for their support and advice. Meredith Simoneaux provided me with able research assistance. This project would not have been possible without the research support of Dean Brian Bromberger and Loyola University New Orleans College of Law. All remaining errors are my own. 1025

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