A New Restatement on Foreign Relations Law?

by Duncan Hollis

In 1965, as part of the Restatement Second, the American Law Institute published the original Restatement on the Foreign Relations Law of the United States. Twenty two years later in 1987, a new edition appeared – The Restatement (Third) on the Foreign Relations Law of the United States. Together, they’ve had an enormous influence on the courts; look at many of the major Supreme Court cases of the last several decades on foreign relations law – Sanchez-Llamas, Sosa, Empagram, Hartford Fire, Saudi Arabia v. Nelson, Dames & Moore, Sabbatino, etc.—and you’ll find a version of the Restatement cited and discussed. I also know from experience that the Executive Branch has considered them, if not definitive, at least required reading. Similarly, the Restatement’s hold on the Academy has been significant, serving for many as the authoritative settlement of long-standing questions about the relationship between international law and U.S. law and the relative authorities of U.S. actors to apply those sources. More recently, of course, the Restatement has served as fodder for scholars seeking to challenge the conventional wisdom by arguing either that the Restatement’s content did not codify the existing rules, or that those rules warrant rethinking.

I’ve just spent the past couple of days with Julian, Peter, Roger, and an array of other foreign relations law scholars from across the methodological divide. And those meetings left me wondering – as 2007 approaches, how come no one is discussing efforts to update or revise the Restatement? Given the two decades that separated the first and second versions, isn’t this an appropriate time for the ALI to be thinking about a third version? And, if not, why not? Is it that the “Age of Restatements” is on the wane with legal realism so firmly established and doctrinal considerations now supplanted in the legal academy by alternating questions of theory and empiricism? Or, is it the pull of the status quo, with everyone fearing that a new effort would upset or weaken their preferred position (i.e., for some this would mean revisions to the current Restatement while for others it might mean having their new proposals knocked down)? Alternatively, is there a Pandora’s box problem – given the host of issues confronting U.S. foreign relations law right now, from the war on terror to consular notification, are there just too many “close questions” that need some resolution before circumstances favorable to a new restatement effort would exist?

What do readers think? Is 2007 the time to be thinking about a new Restatement? And, if so, how does ALI go about it? Presumably, they’d want to ensure that they have representatives from both sides on many of the issues involved. To that end, Julian and I’ve talked, and we’d like to be the first to volunteer our services (seriously, if anyone from the ALI is reading this, call us). Anyone else on board?

http://opiniojuris.org/2006/12/13/a-new-restatement-on-foreign-relations-law/

3 Responses

  1. I think this would be a very good time to start organizing a new Restatement. As we all know, there has been a significant increase of references to international law in U.S. courts. A new Restatement would be one way we can see the forrest for the trees. It may be that many of the pronouncements of the Third Restatement are still (or are now) accurate reflections of the law– simplying coming to agreement on that, with a raft of fresh citations, would be a great service.

    Second, besides new cases there is all of the relevant U.S. state practice concerning international law and institutions from the last 20 or so years that needs to be incorporated. The Foreign Relations Law Restatement attempts to take diplomatic practice into account and, in my opinion, for such a restatement to be practical it must stay closely tied to actual state practice or at the very least flag when state practice and a doctrine diverge. For this reason alone, the Restatement needs some refreshing and, with compendiums/analyses like Sean Murphy’s books on the current practice of the U.S.regarding international law, the next Restaters have a great place to start.

    Third, there has been a proliferation of international tribunals (such as the law of the sea tribunal, the war crimes tribunals, etc) and new instutions (NAFTA, WTO) and a new Restatement that at least nods to the institutional evolution and variety of current international law would be useful.

    And, since drafting a restatement usually takes years (if not a decade or more) by the time we get to he final edits with this one, they’ll be a whole new set of issues waiting to be incorporated!

    Anyway, sign me up, too.

  2. Given the heat surrounding foreign relations law and its interpretation right now, I am wondering if this is an appropriate time to begin such an endeavour. Given the torturing of the law, I worry that such an effort will be used to introduce exotic ideas (a la torture memos) into the Restatement to underpin unitary executive theory ideasx or some such flavor of the month at this stage. It would have to be a very carefully balanced panel and I am not sure that ALI can do that.

    Best,

    Ben

  3. Would be curious to know what Louis Henkin thinks.

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