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Berkeley Journal of International Law


In the past several years, numerous suits have been filed in U.S. courts seeking compensation for personal injury or loss of property relating to events associated with World War I. These suits have been brought against sovereign defendants, such as Germany and Japan, as well as private companies, such as companies that allegedly used slave labor during the War. In this essay, I consider some of the implications of this litigation for the relationship between federalism and foreign relations.

The starting point for my analysis is an article by Justice William Brennan that, at first glance, might seem to have little relevance to the topic. This article, published in the Harvard Law Review in 1977, is entitled State Constitutions and the Protection of Individual Rights.1 Brennan argued in that article that, notwithstanding the dramatic expansion in federal rights during the Warren Court era, the protection of individual rights should not be viewed as the exclusive province of the national government. State constitutions, he argued, should be viewed as a source of independent-and potentially broader-individual rights. Under our federalist system, it is entirely proper, said Brennan, for the states to "thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms."2 This aspect of federalism was becoming increasingly important, Brennan explained, because the Supreme Court-by that time the Burger Court rather than the Warren Court-was becoming increasingly restrictive in its construction of federal rights.3

The conception of federalism outlined in Justice Brennan's article, pursuant to which the states can take a more progressive role than the federal government in protecting rights, is relevant to a growing conflict in modern foreign relations law. This conflict concerns two commitments, which I will call "one voice nationalism" and "human rights internationalism." Many international lawyers and scholars purport to adhere to both of these commitments. These commitments, however, are increasingly at odds with one another, a phenomenon evident in some of the World War II compensation cases, especially the cases litigated in California.

I begin this essay by describing one voice nationalism and some of the Founding and Supreme Court materials often cited in support of it. I then describe two of the doctrinal components of this view-dormant foreign affairs preemption and the federal common law of foreign relations. As I explain, these doctrines have little support in the text and structure of the Constitution, the actual practices of the political branches, and Supreme Court precedent. Next, I describe human rights internationalism, and I explain how proponents of this view traditionally also have been committed to one voice nationalism. I then use the World War II compensation cases to illustrate a growing conflict between these two commitments. Drawing on Brennan's conception of federalism, I conclude by suggesting several reasons why proponents of human rights internationalism might want to reconsider their allegiance to one voice nationalism.

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