Remaking International Law? Personal Jurisdiction and the Fourth Restatement of the Foreign Relations Law

[Austen Parrish is the Dean and James H. Rudy Professor at Indiana University Maurer School of Law. He is the author of Judicial Jurisdiction: The Transnational Difference. A draft of the article is available on SSRN.]

This month, the American Law Institute will publish its Fourth Restatement of the Foreign Relations Law of the United States. It’s an impressive document, compiled by some of the nation’s most prominent scholars and practitioners in the field. Its predecessor—the Third Restatement, which was released over thirty years ago—was influential. I suspect the Fourth Restatement will be too. We should expect to see increased focus on this important publication over the coming year. In January, for example, the University of Virginia School of Law will dedicate its 2019 Sokol Colloquium to it.

While much of the Fourth Restatement recites settled understandings and carefully reflects the law’s evolution over the last three decades, portions of it are more controversial. One question, common with all Restatements, is whether the ALI reporters have clarified and restated existing law, or whether in places the new Restatement attempts to effect change.

At least in one area, the Fourth Restatement appears to take the latter tack. It indicates that “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Bill Dodge, one of the co-reporters to the Restatement’s section on jurisdiction, has perhaps been the most forceful advocate for this new approach. Writing on this blog earlier this year, he argued that the Fourth Restatement’s position reflects settled law. In an article published last year in the Michigan Law Review, he and Scott Dodson indicated that any concerns over international law can be “easily dismissed” because even exorbitant assertions of adjudicatory jurisdiction do not violate customary international law.

As an initial matter, it’s worth underscoring how striking a departure this is from past practice. The Second Restatement and the Third Restatement were clear that international law limited adjudicatory jurisdiction. While the Third Restatement’s reasonableness standard was contested, few would have asserted that civil jurisdiction was unregulated. Just over a decade ago, the ALI and Unidroit in their Principles of Transnational Civil Procedure indicated that a “substantial connection” standard was generally accepted for personal jurisdiction in international cases. No explanation in the Fourth Restatement is provided for why the ALI suddenly discarded these prior understandings.

It is not just the ALI and Unidroit, however, who previously understood international law to constrain jurisdiction to adjudicate. While international law’s limits are ill-defined, well-regarded international law treatises—from Oppenheim’s, to Brownlie’s, to Lowe’s—all agree some link between the state and the defendant is needed to justify a state’s exercise of adjudicatory jurisdiction. U.S. courts reached the same conclusion, with early cases either incorporating or deriving constitutional limits on personal jurisdiction from international law. Most modern commentators— for example, recent chapters in the Encyclopedia of Private International Law by Donald E. Childress III and Ralph Michaels—note that public international law sets the outer boundaries of adjudicatory jurisdiction. As Gary Born and Peter Bo Rutledge explain in the latest edition of their influential casebook: “the weight of authority agrees with the Third Restatement in supporting the existence of some international law limits on national assertions of judicial jurisdiction.” Or as Alex Mills confirms: “there is little in practice or policy to support the idea that an assertion of jurisdiction . . . in civil proceedings is anything other than an exercise of state regulatory power,” which is “restricted by public international rules on jurisdiction.” The position that international law imposes no constraints on a court’s adjudicatory jurisdiction in civil cases has always been very much a minority position.

The defense offered for the Restatement’s position itself departs from established practice. According to Professor Dodge, “an honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity.” But if that is the Restatement’s justification, it’s based on a discredited approach to international law. The idea that jurisdiction is plenary absent an express prohibitive rule has long been rejected: freedom of a state to act is derived from legal right, and not from an assertion of unlimited will.

Outside the established bases of jurisdiction (territoriality, nationality, universality, etc.), exercise of state power is prohibited unless a customary international norm permits the exercise of jurisdiction. Indeed, this is the approach the Fourth Restatement itself takes with prescriptive jurisdiction. Said differently, to support the Fourth Restatement’s position on adjudicatory jurisdiction there would need to be state practice and opinio juris to show that states can exercise personal jurisdiction even in circumstances when no genuine connection to the defendant exists. In this context, “an honest look” at state practice reveals that no state has adopted universal adjudicatory jurisdiction over garden-variety civil law claims, let alone the widespread state practice necessary to create customary law.

Accepting the Restatement’s position would also render long-standing debates nonsensical. Why argue about the scope of universal civil jurisdiction for egregious international law violations (e.g., genocide, war crimes, torture, and crimes against humanity) if no limits exist in any context? For domestic doctrine, much of the ongoing horizontal federalism debates surrounding personal jurisdiction under the Fourteenth Amendment involves to what extent the rights of states as once-independent nations were incorporated into the Due Process Clause. If the inherent sovereignty of nations includes no adjudicatory limits, this long-standing debate is hard to fathom.

Another conceptual problem exists too. Public international law constrains state action, regardless of the form in which the power is exercised. Why state power exercised through the judicial branch—but only in civil cases—is now treated differently than state power exercised through the legislative and executive branches, or in criminal law cases, is unclear. And, as the Fourth Restatement itself notes, outside the United States many authorities continue to view the jurisdiction of national courts to adjudicate cases as “a natural extension of that state’s jurisdiction to prescribe.” The Third Restatement’s innovation to treat adjudicatory jurisdiction separate from jurisdiction to prescribe and to enforce was intended as a way to better understand the limits that international law imposes on courts, not as a way to eliminate them.

The Fourth Restatement’s new approach also represents a step back from the major trends in modern international law. Over the last several decades, international law moved beyond the old Westphalian notion of near impermeable sovereign power, to focus on the individual and on human rights. That evolution sought for the rule of law to further limit state power: to avoid having sovereignty used as a shield and to constrain aggressive imperialistic tendencies. Rejecting colonial practices, international law sought to recognize even more sharply the right of states and their citizenry—so long as human rights norms were respected—to be free from foreign oversight or hegemonic expansion. In this context, it’s hard to understand how international law, particularly outside the human rights context, permits states to universally adjudicate the rights of citizens of other states without limit. At the very least, if the fundamental structural limits of the international system no longer exist, then some explanation much be proffered for why principles of national sovereignty and non-interference no longer apply.

Finally, more pragmatic foreign policy considerations make the Restatement’s new approach puzzling. The U.S. Constitution provides separate, more restrictive limitations on judicial power. As a result, the Fourth Restatement’s newfound position is unlikely to change the scope of U.S. court adjudicatory authority. But the Fourth Restatement could be influential abroad. Absent domestic law limitations, the Fourth Restatement suggests that foreign courts can lawfully exercise jurisdiction over U.S. citizens in civil cases when no connection to the foreign state exists. This may be particularly concerning if, as some have observed, the legal profession continues to globalize and foreign courts become increasingly attractive to litigants.

It’s appropriate to celebrate the Fourth Restatement on the eve of its publication. As others have written, however: “It is a matter of great regret that the forthcoming [Fourth Restatement] appears to have departed from the approach previously recognized under U.S. law. . . .” I share the concern. For those who think the U.S. should be more cognizant of international law, not less, this represents a step backwards. At the very least, courts and commentators should be mindful to not uncritically accept the Fourth Restatement’s contested view on adjudicatory jurisdiction.