The Proposed Restatement Fourth of the Foreign Relations Law of the United States: Treaties -- Some Serious Procedural and Substantive Concerns
21 Pages Posted: 27 Aug 2015 Last revised: 7 Mar 2020
Date Written: August 20, 2015
The drafting of a new Restatement (Fourth) of Foreign Relations Law was proposed to the American Law Institute (ALI) in 2012, and the project is now well under way. Because the ultimate adoption of any provisions by the membership of the ALI will take time, however, and is not a foregone conclusion, this Essay considers at this relatively early stage of the project whether the project has been well-conceived, and is on the right track. It critiques the most recent Discussion Draft of April 2015 on the Status of Treaties in United States Law, for its failure to propose a comprehensive work plan and for its divergence from the text of the Third Restatement regarding the status of international law in U.S. law. In particular, it faults the April Discussion Draft for its decision to separate Article II treaties from all other sources of international law in a distinction driven by academic commentary that appears artificial and unsupported by the case law. The Essay argues for a return to the unitary structure found in the Third Restatement, and suggests that future work on this proposed section should either include a comprehensive proposed work plan or be abandoned.
Keywords: foreign relations, Third Restatement, Treaties, Constitutional Law, Fourth Restatement, American Law Institute, international law, customary international law
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