Changing US attitudes to federalism prioritise states

Significance Once considered the means by which US states could act as ‘laboratories of democracy’ that find new ways to improve governance, the recent construction of federalism as prioritising state autonomy is producing unevenness in democratic practices that is affecting the established rights of individuals. Impacts The erosion of common standards in states’ electoral procedures will further reduce overall trust in the democratic process. Political divisions between state and federal governments will increase during the remainder of the Biden presidency. Emphasising splits with Washington on civil rights issues camouflages state-level economic changes which will also impact voters. Aided by interest groups, states are drafting appeal-proof laws which reduce the ability of courts to enforce national standards.

AUTONOMY TO SET THE LEVEL OF REGULATORY PROTECTION IN INTERNATIONAL INVESTMENT LAW

This article argues that State autonomy in setting the level of protection for permissible regulatory aims can be better operationalised in the investment treaty regime. The article draws on comparative insights from WTO law, where it is established that WTO members have the right to determine the level of protection for permissible regulatory aims, although significant disciplines are placed on the means used to achieve those aims. It is then argued that investment treaties are, properly interpreted, consistent with the idea that States retain autonomy to determine the level of protection for permissible regulatory aims. Finally, the article proposes removing from the fair and equitable treatment and indirect expropriation standards proportionality balancing stricto sensu, as this undermines State autonomy in setting the level of protection. Overall, this article argues for a partial reorientation of investment law, in which non-discriminatory measures that pursue a permissible regulatory aim, including at a particular level, should not amount to a breach of a treaty where a State uses the means that involve the least possible restriction of the competing interests protected by relevant investment treaty obligations.

The International Rule of Law

This chapter argues that one of the main goals of an international rule of law is the protection of state autonomy from arbitrary interference by international institutions and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy from the encroachment of international law will have to be constrained by, and balanced against, the more fundamental goal of an international rule of law: the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.

Hume’s Dynamic Coordination and International Law

At the heart of the tension between state autonomy and international law is the question of whether states should willingly restrict their freedom of action for the sake of international security, human rights, trade, communication, and the environment. David Hume offers surprising insights to answer this question. He argued that the same interests in cooperation arise among individuals and states, and that their interactions should be regulated by the same principles. Drawing on his model of dynamic coordination, the chapter reconstructs the Humean case for developing international law into a more robust legal system, and also highlights the limitation of Hume’s account of justice for such a reconstructive project. Hume’s lessons are enduring: the community of states must strengthen the essential features of international law, such as nonoptional rules that articulate a moral minimum, courts with compulsory jurisdiction, and stronger mechanisms of enforcement.