The Restatements and the Rule of Law

This chapter explores the promotion of the rule of law. In drafting and publishing Restatements of Foreign Relations Law, both the American Law Institute and the reporters have understood the projects as contributing to the rule of law at the international level, at the domestic level, or both. There are at least three distinct ways that these Restatements might promote the rule of law. First, they might do so by clarifying the content of the law. Second, the Restatements might contribute to the development of new legal rules, specifically to the evolution and consolidation of customary international law. Finally, the Restatements might promote the rule of law by promoting compliance with the law. Ultimately, the Third and Fourth Restatements have taken quite different approaches to promoting the rule of law. To some extent these different approaches are a consequence of changes in the legal landscape over the past three decades. They also reflect different choices that the reporters and the American Law Institute have made about how to carry out the project of restating foreign relations law.

Territoriality and Its Troubles

This chapter examines what the presumption against extraterritoriality means and how it operates. The presumption against extraterritoriality itself presumes a set of complicated rules about which features of a transnational case count: which features make a case territorial and within the scope of a federal statute because these features can be located within the United States or, if they cannot, make the case extraterritorial and outside the statute’s scope. The dependence of the presumption upon a network of other rules both complicates its operation and makes it a less than certain guide to statutory interpretation. The chapter then considers the justification for territorial allocation of government power generally, and addresses the question of whether any presumption about the territorial scope of statutes must await a new consensus on the appropriate rules of choice of law. It argues that the presumption against extraterritoriality requires a flexible interpretation that makes it more of a principle than a rule. From that premise, the chapter studies the choice between an ad hoc and a principled application of the presumption, both of which are exemplified in recent decisions.

International Law in American Courts

This chapter looks at the grave flaws in the current treatment of international law in American courts. Both the status and content of public and private international law in the United States are uncertain, frequently governed by contradictory or parochial rules of State law; the resulting body of international law that is applied by U.S. courts is unpredictable and incoherent. Over the past fifty years, U.S. federal courts have also increasingly marginalized both international law and the role of American courts in resolving international disputes. This treatment of international law threatens serious damage to historic U.S. values and frustrates vitally important national policies. The chapter then considers how the current treatment of international law in American courts is also contrary to the U.S. Constitution’s allocation of authority over the nation’s foreign relations and international trade, which vests the federal government with both plenary and exclusive authority over U.S. foreign relations and commerce, while, exceptionally, forbidding State involvement in either field. Moreover, this treatment conflicts with vital national interests and policies in both fields, frustrating long-standing national interests in the nation’s compliance with international law and development of the international legal system.

Article II Treaties and Signaling Theory

This chapter focuses on the treaty-making process set forth in Article II of the U.S. Constitution, which requires that presidents obtain the advice and consent of two-thirds of the Senate. Some scholars contend that, under modern law and practice, presidents can choose to conclude any international agreement by obtaining either ex ante authorization or ex post approval from a majority of Congress rather than obtaining the supermajority “advice and consent” of the Senate. If presidents in fact have this freedom of choice, there appears to be a puzzle: Why do they ever choose to use the Article II treaty process, which is more politically difficult than the executive agreement processes? To be sure, the use of the Article II process has been in decline, but the process is still used for some agreements, including in situations in which the process seems to make it more difficult for presidents to obtain approval of agreements that they support. A common answer to this puzzle is based on signaling theory: Using the Article II process, it is said, allows the president or the country to signal valuable information to potential treaty partners. This chapter argues that the signaling explanation is questionable and suggests that domestic legal and political factors better explain the continued use of the Article II process.

Can the Fourth Restatement of Foreign Relations Law Foster Legal Stability?

This chapter examines whether the kind of legal stability one may expect the Fourth Restatement of Foreign Relations to foster is even feasible, and if it is, whether it is desirable. It makes two key points. First, in the current political climate, the objective of fostering legal stability in foreign relations law may no longer be as feasible as it once was. For much of the postwar era until the administration of President George W. Bush, various commentators have suggested that even though there were occasional partisan skirmishes, a relatively bipartisan consensus on liberal internationalism prevailed. However, today, the conditions that produced that moderate bipartisan consensus no longer hold, and thus the quest to foster stability in foreign relations law is likely to face even more of an uphill battle. Second, while the Fourth Restatement may occasionally foster stability in foreign relations law, there is also the possibility that it may do so in undesirable circumstances. This point assumes that whereas too little legal stability can sometimes be disruptive, too much of it could be inhibiting.

Customary International Law and U.S. Judicial Power

This chapter describes specific points of divergence between the Third and Fourth Restatements of the Foreign Relations Law of the United States regarding how U.S. courts should engage with customary international law. The Third Restatement, adopted in 1987, envisioned U.S. courts fluent in and engaged with international law, deploying a U.S. foreign relations jurisprudence in dialogue with international law and lawyers. Customary international law was a central feature of this vision because it was the prime pathway for human rights litigation in federal courts when U.S. treaty-based human-rights initiatives had stalled. Appearing thirty years later, the Fourth Restatement exhibits a fundamentally different orientation toward customary international law. Customary international law is no longer embraced as it was in the Third Restatement as an opportunity to play offense, to advance the international law of human rights. That vision inspired a reaction among some U.S. legal scholars who questioned the U.S. federal law status of customary international law and the legitimacy of U.S. judges advancing the customary international law of human rights. The Fourth Restatement seeks a middle ground by defending against this revision of customary international law’s status role in the United States, concerned that the revisionist view might encourage and provide cover for U.S. courts to dismiss cases and claims with foreign policy ramifications that they should be adjudicating. The approaches of the two Restatements, taken together, have contributed to the disengagement of U.S. judges from customary international law altogether, to the detriment of U.S. conduct of foreign policy and contrary to the original constitutional specification of the judicial power of the United States as reflected in Article III, the Judiciary Act of 1789 that established the federal courts, and early historical practice.

Personal Jurisdiction and Fifth Amendment Due Process Revisited

This chapter addresses the contested role of U.S. courts in adjudicating disputes with foreign elements. As a matter of domestic law, the Due Process Clauses in the U.S. Constitution constrain the scope of adjudicatory jurisdiction that legislatures can confer on State and federal courts. The Fourth Restatement restates the U.S. law of personal jurisdiction in civil proceedings as requiring that “sufficient contacts” exist between the defendant and the forum, “and that the exercise of jurisdiction be reasonable.” These criteria limit the reach of U.S. courts’ personal jurisdiction. The chapter explores these limits and Congress’s ability to extend them. It also revisits the history and jurisprudence of Fifth Amendment due process limits on personal jurisdiction, considering the Anti-Terrorism Clarification Act of 2018 (ATCA) and the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA).

The Fourth Restatement’s Treatment of International Law and Administrative Law

This chapter argues that there is a disconnect between foreign relations law in practice and its portrayal in the Fourth Restatement of the Foreign Relations Law. It considers two significant shifts in foreign relations law between the late 1980s and the present. The first shift is that there is now more distance between international law and U.S. domestic law. The second shift is that there is now less distance between foreign relations law and U.S. administrative law. The Fourth Restatement reflects the first change but overlooks the second one. The effect of this is a distorted picture of the boundaries of foreign relations law. The chapter then then analyzes how further work on the Fourth Restatement could reduce or minimize this distortion.

Sleeping Dogs

This chapter describes basic developments in U.S. domestic humanitarian law since the September 11 attacks. Important new rules emerged from domestic judicial decisions in several states in the post–September 11 era. Courts produced decisions about how to characterize a state’s extraterritorial armed conflicts against nonstate actors; who a state lawfully may detain or target during those conflicts; the detention review processes a state must conduct; and what restrictions should attach to detainee transfers, among other topics. This case law can be termed “domestic humanitarian law” (DHL). The DHL emerging from different jurisdictions offered a way to develop international humanitarian law, akin to the U.S. constitutional idea that U.S. States serve as experimental “laboratories” in which different approaches to problems are tested. U.S. courts were a major player in this undertaking. Notwithstanding the stated interest by the Fourth Restatement of Foreign Relations Law’s reporters in updating the Third Restatement to better reflect major geopolitical changes since 1987, however, and notwithstanding the fact that DHL is a new, plentiful, and important reflection of those changes, there seems to be an unspoken consensus that DHL would be a poor subject for the Fourth Restatement to take up. The chapter considers why this is the case and what it says about U.S. “war on terror” jurisprudence.

Constitutional Authority for the Transboundary Deployment of Armed Force

This chapter assesses the formal constitutional framework of authorization of foreign deployments of uniformed personnel, both formed units and individual service members. The initial volume of the Fourth Restatement of Foreign Relations Law does not ponder general matters of separation of powers and specifically in the realm of foreign affairs and national security. Apparently, this discussion is left to subsequent installments. The Third Restatement briefly addressed the separation of powers in foreign relations, in particular referring to the “continuing controversy as to whether the President can deploy the forces of the United States on his own authority for foreign policy purposes short of war, and, if so, whether that authority is subject to Congressional control. Nor is it agreed to what extent Congress can control decisions of the President as Commander in Chief in the conduct of wars authorized by Congress.” The United States is not unique in that respect, and similar controversies, whether in law or in practice, may and do occur in other jurisdictions. This chapter offers a comparative perspective, drawing from experiences of the Russian Federation and its predecessor, the Soviet Union and its heirs.