Download This PaperCan the Fourth Restatement of Foreign Relations Law Foster Legal Stability?
Northwestern Public Law Research Paper No. 20-06
The Restatement and Beyond – The Past, Present, and Future of U.S. Foreign Relations Law (Oxford University Press: New York, Sarah A. Cleveland & Paul B. Stephan eds., 2020 Forthcoming)
25 Pages Posted: 15 Apr 2020 Last revised: 21 Apr 2020
Date Written: April 13, 2020
Abstract
This Essay makes two key points. First, it argues that in the current political climate, the objective of using the Restatement to foster legal stability in foreign relations law may no longer be as feasible as it once was. The drafters of both the Third Restatement in 1987 and the Second Restatement in 1965 might have hoped that the product of their efforts would help stabilize the rule of law in foreign policy. 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. Throughout this paper, I will illustrate these claims by looking at the ebb and flow in efforts to use the Restatement to nail down a rule regarding the self-execution of treaties.
Second, and more speculatively, it suggests that while the 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. In circumstances where there is too little political conflict, and thus less of an incentive for parties to challenge or reexamine outdated and redundant legal understandings, there is a risk that judges and practitioners may over-rely on the Restatement. Thus, it is plausible that under certain circumstances, the Restatement may actually contribute to the unwelcome ossification of foreign relations law.
Keywords: Foreign Relations Law, The Restatement, National Security Law, International Law, Foreign Affairs
JEL Classification: K10, K30
Suggested Citation: Suggested Citation
Jide Nzelibe (Contact Author)
Northwestern University - Pritzker School of Law ( email )
375 E. Chicago Ave
Chicago, IL IL 60611
United States