The Role of Federalism in International Law

Because federalism grants partial autonomy to subunits of a nation, it has potentially broad implications for a system of international law that is centered around the integrity of nation states. Military intervention by foreign nations might seem more justifiable if its purpose is to protect the human rights of people in a federalized subunit from oppression by the national government, or to carry out counterinsurgency within a federalized subunit where the national government has lost control. Alternatively, foreign nations may feel more justified in establishing trade or cultural relations with a subunit of a nation, over objections by the nation's government, if the subunit has federalized status. In other words, it is possible that federalism can be viewed as modifying the principle of national sovereignty.This important possibility is largely unexplored in the international law literature. In recent years, a great deal of attention has been devoted to the implications of federalism for the treaty powers of our national government, and for the foreign relations authority of the state governments. While these questions involve international law, they are basically domestic law inquiries about the relationship between state and national government. This article deals directly with federalism's implications for relations between different nations. On the basis of a theory of federalism that treats it as a sub-optimal governmental compromise dealing with conflicts of political identity, the article concludes that federalism does not justify increased levels of intervention, nor does it permit foreign nations to establish relations with subunits in violation of national policy. But the article does recognize an important role for federalism in international relations. One nation should not intervene by force in another nation unless it has some reason to believe that its intervention can be effective in solving the problem that provided the basis for the intervention. In a number of cases, federalism may be such a solution. In addition, while nations should not establish trade or cultural relations with subunits in violation of national policy, federalism creates a presumption that certain relations are acceptable to the national government, and thus requires the national government to explicitly preclude them