183 COMMENT STATE AUTONOMY AND INTERNATIONAL POLICY MAKING: CROSBY V. NATIONAL FOREIGN TRADE COUNCIL We would like to see more of this. It's consumer power. I think in some ways it's better to have the people of the world on your side than the governments.1 I. INTRODUCTION Our Constitution’s drafters intended foreign affairs to remain within the power and control of the national government noting, “[i]f we are to be one nation in any respect, it clearly ought to be in respect to other nations.”2 In 1 Fred Hiatt, Massachusetts Takes on Burma, WASHINGTON POST, Jan. 31, 1999, at B7 (The quote is by Daw Aung San Suu Kyi, the “Nelson Mandela” of Burma concerning the popular movement in Burma at the time. Daw Aung San Suu Kyi won the 1991 Nobel Peace Prize Laureate for her work as an oppositional leader and human rights advocate in her home country of Burma.) See also Karin Strand, Peace Prize Winner’s Son Picks Up Nobel, BOSTON GLOBE, Dec. 11, 1991, at A2 (note that she was not able to pick up the prize herself since the Burmese government had placed her under house arrest). Suu Kyi is general secretary of the National League for Democracy, an opposition group to the military government of Burma. See Associated Press, Burma Eases Dissident’s Isolation, BOSTON GLOBE, Apr. 26, 1992, at A2 (noting the imposition of martial law in Burma since 1988 when a military coup overthrew the civilian government). Suu Kyi was finally released from house arrest on July 10, 1995. See Sandra Burton, Interview with Daw Aung San Suu Kyi, TIME, July 23, 1995 (noting that in response to how the international community should react to her release from prison, Suu Kyi stated that “[t]he authorities should be given credit for releasing me, but I think people should wait a bit to see what follows. There is no use rushing in and thinking everything is going to be hunky-dory from now on.”). 2 THE FEDERALIST No. 42, at 279 (James Madison) (Benjamin Fletcher Wright ed., 1961). See also THE FEDERALIST No. 3, at 98 (John Jay) (Benjamin Fletcher Wright ed. 1961) (“The administration, the political counsels, and the judicial decisions of the National government will be more wise, systematical, and judicious than those of the individual states.”). 184 NEW ENG. JOURNAL OF INT’L & COMP. LAW [Vol. 8:1 Crosby v. National Foreign Trade Council,3 the United States Supreme Court down a Massachusetts law4 restricting the ability of Massachusetts’ officials in dealing with companies conducting business5 with Burma.6 This action casts doubt on states7 implemention of state purchasing power policies that stand against abhorrent international human right conditions, including human rights violations in Burma.8 Crosby held that federal legislation9 preempted the Massachusetts law and ruled the state law unconstitutional under the supremacy clause of the 3 530 U.S. 363 (2000). 4 See Mass. Gen. Laws ch. 7, § § 22G-22M (West Supp. 1998). [hereinafter Massachusetts Burma Law]. 5 See id. at § 22H. The Massachusetts Burma Law, while enacted, proved successful in the aggregate with other state and municipality laws in isolating Burma (Myanmar) from the world’s economy. See National Foreign Trade Council v. Natsios, 181 F.3d 38, 47 (1st. Cir. 1999) (noting that a number of companies have withdrawn from Burma in the past few years and at least three companies cited the Massachusetts Burma Law as a reason for the withdrawal). 6 The conventional name internationally for the country is Burma, while the local political name is Myanmar. 7 See Lucien J. Dhooge, The Wrong Way to Mandalay: The Massachusetts Selective Purchasing Act and the Constitution, 37 AM. BUS. L. J. 387, 388, n.23-26 (2000) (in addition to Massachusetts, twenty-three states and municipalities have enacted similar pieces of legislation). 8 See United Nations Commission on Human Rights Report to Burma, Jan. 30 to Mar. 10, 1995, adopted by UN resolution on March 9, 1995 (noting that the UN was “[g]ravely concerned at the violations of human rights in Myanmar, which remain extremely serious, in particular the practice of torture, summary and arbitrary executions, forced labour, including forced portering for the military, abuse of women, politically motivated arrests and detention, forced displacement of the population, the existence of important restrictions on the exercise of fundamental freedoms, including the freedom of expression and association, and the imposition of oppressive measures directed, in particular, at ethnic and religious minority groups.”). See also Dhooge, supra note 7, at 390-407 (briefly reviewing the history of Burma, noting that “[h]uman rights violations in Burma are numerous and serious and exist in an official atmosphere of utter disregard for personal liberty. The current regime has demonstrated a complete lack of respect for the physical integrity of its citizens.”). 9 See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 § 570, 110 Stat. 3009-166 to 3009-167 (enacted by the Omnibus Consolidated Appropriations Act, 1997, § 101(c), 110 Stat. 3009-121 to 3009-172).2002] MASSACHUSETTS’ BURMA LAW 185 United States Constitution.10 The federal law preempted the state law in at least three aspects and created a conflict undermining effect and purpose of Congress’ intention in developing a comprehensive trade strategy with Burma.11 Opponents of the Massachusetts’ law stated on several occasions that the law severely restricted states ability to deal diplomatically with other nations in formulating a Burma trade policy.12 Significantly, the Court declined to comment on either the dormant foreign commerce or the dormant foreign affairs powers, implicitly perhaps suggesting that conflict preemption will be the appropriate vehicle for deciding cases of this nature.13 As decided in Crosby for the first time the scope of state actions influencing international politics regarding human rights violations.14 For instance, in the 1980s, states and municipalities, in response to South Africa’s apartheid policies, flooded their law books with restrictive rules on investment and procurement in South Africa.15 One of the effects of these state and local restrictions was a significant decrease of U.S. investment in 10 See U.S. CONST. art. VI, cl. 2. 11 See