I just posted a draft of a new paper: “The International Commitments of the Fifty States.” The paper’s forthcoming in the UCLA Law Review; here’s the abstract:
U.S. law allocates power to conduct foreign relations primarily to the federal government, but it is well known that U.S. states routinely maintain foreign relations of their own. Much of this activity appears to seek out and result in legal commitments, whether in the form of “sister state” agreements or binding pledges to cooperate on discrete issues such as investment, environmental protection, and transportation. These commitments are loosely comparable to international treaties and may either advance or disserve state and national interests.
Yet very little is known about the commitments that are in force. For the most part, neither federal nor state law requires states to publish them or even report them to Congress or the executive branch. Few state agencies voluntarily post information online. Legal database companies have not included the commitments in their catalogues. And academic research has not served as an adequate, alternative source of transparency. The resulting uncertainty about modern practice inhibits the accountability of state governments to their voters, complicates any effort on the part of state officials to learn best practices, and impedes enforcement of the Treaty Prohibition Clause and the Compact Clause of the U.S. Constitution, both of which circumscribe state power in this area.
This Article resolves the present uncertainty by providing unprecedented transparency on U.S. state commitments with the national, provincial, and local governments of foreign sovereigns. Through freedom-of-information requests to every major executive department and agency in each of the fifty states, I obtained a trove of hundreds of previously unpublished commitments, including many that appear to advance state and national interests in underappreciated ways, along with some that operate in significant tension, if not outright conflict, with federal law or foreign policy. The Article analyzes this collection to reveal new trends, promote accountability, identify lessons for negotiators, and facilitate norm consolidation in domestic law. The Article concludes by proposing measures to strengthen the legality and transparency of future commitments.