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American Law Institute Releases a Volume of the Restatement Fourth of the Foreign Relations Law of the United States, Partially Revising the Restatement Third

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In late 2018, the American Law Institute released a volume of the Restatement Fourth of the Foreign Relations Law of the United States. Initiated in October 2012 under the direction of Coordinating Reporters Sarah Cleveland and Paul Stephan, this volume covers three areas of U.S. foreign relations law: treaties, jurisdiction, and sovereign immunity. It remains to be seen whether the American Law Institute will revisit other portions of the Restatement Third, which was published in 1987. “[I]n the meantime, the provisions of the Third Restatement remain the position of The American Law Institute except where superseded by provisions in this Fourth Restatement.”

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1 Restatement (Fourth) of Foreign Relations: Selected Topics in Treaties, Jurisdiction, and Sovereign Immunity, at xvii (2018) [hereinafter Restatement (Fourth)] (Foreword by American Law Institute Director Richard Revesz).

2 Id.

3 Id. at 7 (introductory note) (further observing that “[i]n U.S. domestic law … the term ‘treaties’ refers … to international agreements concluded by the President with the advice and consent of two-thirds of the Senate”).

4 Id., § 306, cmt. a & rep. note 13.

5 552 U.S. 491 (2008).

6 Restatement (Fourth), supra note 1, § 310, rep. note 14.

7 Id., § 312, rep. note 8 (noting a tension between the Restatement Second and the Restatement Third with respect to whether, as a constitutional matter, a treaty must address “matters of international concern”).

8 See Dodge, William S., Jurisdiction in the Fourth Restatement of Foreign Relations Law, 18 Y.B. Priv. Int'l L. 143, 145 (2016) (“[T]he Fourth Restatement contains greater coverage of U.S. domestic law than its predecessor, including domestic principles of statutory interpretation, the act of state doctrine and foreign state compulsion, rules of civil and criminal procedure, and rules concerning the recognition and enforcement of foreign judgments. Such internationally oriented rules of domestic law may be grouped together under the general heading of ‘international comity,’ which the Fourth Restatement defines as ‘deference to foreign states that international law does not mandate.’”).

9 See Restatement (Third) of Foreign Relations, § 403(1) (1987) [hereinafter Restatement (Third)].

10 Restatement (Fourth), supra note 1, § 407, rep. note 6.

11 Id.

12 Id., § 405; id., cmt. a (“Reasonableness is a principle of statutory interpretation and not a discretionary judicial authority to decline to apply federal law. It operates in conjunction with other principles of statutory interpretation. When the intent of Congress to apply a particular provision is clear, a court must apply that provision even if doing so would interfere with the sovereign authority of other states.”).

13 Id., § 404, rep. note 13. The reporters’ notes engage extensively with U.S. Supreme Court precedent that post-dates the Restatement Third. See id., § 404, rep. notes 1–4, 6–11.

14 Id., § 456, rep. note 5.

15 Compare Restatement (Third), supra note 9, § 455 with Restatement (Fourth), supra note 1, § 456.

16 Restatement (Fourth), supra note 1, § 456.

17 Id., § 458, cmt. a.

18 Id., § 460, rep. note 12.

19 Id., § 460, rep. notes 1, 9.

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American Journal of International Law
  • ISSN: 0002-9300
  • EISSN: 2161-7953
  • URL: /core/journals/american-journal-of-international-law
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