Anthea Roberts is a reporter for the reformulation (fourth) of the U.S. Foreign Relations Act. This project updates the highly influential Restatement (Third) of the Foreign Relations Law of the United States, published by the American Law Institute in 1987. The reformulation includes both international law, as it applies to the United States and the United States, and national law, which has a significant impact on foreign relations or international law. Anthea is the first foreign academic ever appointed as a journalist for an American reprocessing project. [75] ibid. § 401 Note a (“The international community reflects respect for foreign states not prescribed by international law”). U.S. law has doctrines of international comity not only for prescriptive jurisdiction, but also for jurisdiction and for dealing with foreign states as plaintiffs and defendants in U.S.
courts. See W Dodge, International Comity in American Law (2015) 115 Columbia L Rev 2071 (Surveying international comity doctrines). With respect to enforcement jurisdiction, article 432 sets out the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law … one State does not exercise its jurisdiction to have it enforced in the territory of another State without the consent of the other State. Of course, to apply this rule, it is necessary to determine where enforcement takes place in different situations. If a U.S. court requires a person in the U.S. to provide information located abroad, as in the Microsoft case, is the law enforcement in the U.S. or abroad? As journalists` comments on Section 431 (which deals with U.S. practice of enforcement of jurisdiction) explain, court orders to provide information abroad “did not provoke the protests of other states that would be expected if such orders constituted extraterritorial exercises of jurisdiction over enforcement.” In Microsoft, the fact that none of the foreign governments that filed Amicus briefs – including Ireland – described the arrest warrant in question as an extraterritorial exercise of enforcement jurisdiction seems conclusive.
With regard to customary international law, the fourth) adequacy reaffirmation approach is unilateral, simply because State practice and opinio juris have led to rules that require a real link with the regulatory State, but not to rules for choosing between States that have real links. [78] With respect to U.S. domestic law, the reasons for the unilateral approach to adequacy are complex, but the main reason is related to one aspect of the U.S. federal system. In the United States, conflicts of laws are the responsibility of the states, not the federal government. [79] For this reason, federal courts have never developed federal conflict-of-laws rules to give priority to foreign law in the event of a conflict. It would have been strange to make the application of federal laws dependent on state conflict rules. Much has changed since 1987, and it is no more obvious than in the world of foreign relations.
Recognizing that parts of Reformatement Third no longer reflect the current state of the law, ALI decided in 2012 to begin revising the U.S. Foreign Relations Act. This now available volume of the Reformatement of the Law Fourth, The Foreign Relations Law of the United States, complements work on selected topics in jurisdiction, contracts and sovereign immunity. Curtis Bradley is william van Alstyne Professor of Law and Professor of Public Policy Studies at Duke University and co-director of the Center for International and Comparative Law. His academic expertise covers the areas of international law in the U.S. legal system, constitutional law, foreign policy, and federal justice, and his courses include international law, foreign relations law, and federal courts. He was the founding co-director of the Center for International and Comparative Law School at Duke Law School and serves on the board of directors of Duke`s Center on Law, Ethics, and National Security. Paul B. Stephan is an expert in international affairs, international dispute settlement and comparative law with a focus on Soviet and post-Soviet legal systems. .
