TAKE THE LONG WAY HOME: SUB-FEDERAL INTEGRATION OF UNRATIFIED AND NON-SELF-EXECUTING TREATY LAW

I. INTRODUCTION Despite the oft-repeated adage that most countries comply with most international law most of the time,' rational choice and realist scholars suggest that international law matters little to powerful countries able to opt out of its regimes.2 Conventional wisdom suggests the United States often prefers to go it alone rather than submit to the constraints of human rights and environmental treaties.3 For instance, the United States recently announced it would not ratify the Kyoto Protocol.4 Similarly, the United States has long abstained from many prominent human rights treaties, such as the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. Despite the broad language in Holmes, states have concluded numerous covenants with foreign entities, including environmental pacts, without seeking congressional approval.251 Neither Congress nor the courts have spoken on these covenants.252 In addition, Congress and the executive branch have never acted to preempt city ordinances declaring nonbinding nuclear weapons-free zones;253 city policies divesting stock from firms doing business in South Africa; city policies restricting procurement of goods and services where the bidder for a city contract did business in South Africa;254 and state legislation divesting from Northern Ireland.255 The federal government tolerated these policies despite the fact that they actively targeted the practices of other countries and risked foreign relations disputes.256 Sub-federal integration may be even less objectionable as it is sympathetic to the practices of the international community and unlikely to risk a rift with another country.