Harold Maier, comity, and the foreign relations restatement.

• Author: Lowenfeld, Andreas F.

Hal Maier's career and mine have interacted in several respects. We have both served in the Legal Adviser's Office of the State Department; we have both taught Conflict of Laws as well as International Law; and we have both tried to show--I believe successfully--that there is no sharp divide between "Public International Law" and "Private International Law." In particular, we have both been interested in the reach and limits of economic regulation across international frontiers, initially in connection with antitrust and securities regulation, but also in connection with economic sanctions, pollution controls, and other interactions of governmental and private activity.

Generally, Professor Maier and I have come out in the same way on particular issues. We have both advocated reduced emphasis on power and sovereignty and greater emphasis on restraint and flexibility in application of the law of the forum to activity with links to more than one state. Yet there has been a fundamental difference between us which grew as what became the Restatement (Third) of Foreign Relations Law was being drafted, debated, and eventually accepted by the American Law Institute.

Though I was in the middle of the debate as a proponent of the Restatement, I am not sure that I ever completely understood the intensity of the controversy centered on [section] 403, Limitations on Jurisdiction to Prescribe. That Section, as all who participated in or observed the debate know, provides that even when one of the essential prerequisites to the exercise of prescriptive jurisdiction is present--i.e., a link of territoriality or nationality--a state may not exercise its jurisdiction if doing so would be unreasonable (Subsection (1)). The Section goes on to set out a list of criteria designed to give guidance in evaluating the reasonableness or unreasonableness of exercise of jurisdiction in a given situation (Subsection (2)). Finally Subsection (3) attempts to cope with the situation where it would not be unreasonable for either state A or state B to apply its law, but the two laws are in conflict.

Many persons criticized this approach. Some thought [section] 403 would legitimize excessive intervention by the United States in matters where it did not belong. Others thought the opposite, that [section] 403, if it remained in the Restatement, would curb the activity of the U.S. government in exercise of its sovereignty. Professor Maier's complaints were different. On the one hand, if I understand him, [section] 403 and the Sections that elaborate on the basic approach in particular contexts, are insufficiently attentive to the needs of the international system as a whole, as contrasted with balancing the interests of only state A and state B. On the other hand, Maier thought that the approach of the Restatement was insufficiently conceptual, substituting pragmatism--reasonableness--for philosophical purity. As to balancing of interests, Maier, like many judges and commentators, distrusted the process but could not quite avoid it. And Maier never liked the use of "reasonableness" as the critical concept.

In a forty-page article in the American Journal of International Law shortly after publication of the first version of [section] 403, (1) Maier wrote:

Above all, it is essential that section 403 provide a general context in which the relevance of the various elements mentioned can be viewed. Reasonableness is a relative term. To be fully effective in accomplishing its purpose, section 403 must make it explicit that jurisdiction depends upon reasonableness measured not only in the light of the interests having direct connection with the case, but also measured in the light of the needs of the international system.... Tentative Draft No. 2 places ... not nearly enough emphasis on the role of the court or other decision maker as a facilitator of transnational interaction whose task should be to decide so as to coordinate the exercise of national power to serve the needs of all states for an effectively functioning system. (2) To the Reporters who were in any event accused of making up law--of prestating rather than restating--Maier's injunction seemed to go well beyond our mandate, even if we had known how to accomplish what Professor McDougal, as quoted by Maier, called "the final task." (3)

In his next article relevant to the present discussion, Maier was more sympathetic to interest balancing, but not by courts:

The development of processes to resolve conflicting claims of authority to forbid or require conduct within a nation's borders, is most appropriately carried out by diplomatic exchange, not by judicial decisions. (4) ... In the diplomatic forum, the label "balancing of interests" merely characterize the ordinary international law formation process of demand, response and eventual accommodation in the light of reciprocal national needs and tolerances. (5) To my surprise on reading this article two decades later, Maier used as his principal illustration the controversy over the attempt by the United States in 1982 to impede construction of a natural gas pipeline from Siberia to Western Europe to punish the Soviet Union for its crackdown on liberalization in Poland. (6) Maier tells the story as a conflict resolved, after some months, by diplomacy. My reading of that episode is quite different. I regard the assertion of jurisdiction to prescribe conduct by foreign firms in foreign countries based on an unprecedented and unpersuasive link to the United States (the use of technology licensed by private U.S. companies) as failure by the U.S. government and particularly by its legal advisers to heed the limits on the exercise of jurisdiction as set out in the Restatement. In fact in the summer of 1982, as the sanctions were still in force but subject to sharp controversy, the State Department's Legal Adviser urged that [section] 403 (as well as the section concerning jurisdiction over foreign subsidiaries) be withdrawn, precisely because he thought that acceptance of the Restatement would curb the freedom of the U.S. government. (7) My conclusion is that the forced retreat of the U.S. government and the resignation of the Secretary of State were confirmation that the principles set out in the Restatement were correct. The action of the U.S. government was unreasonable, and therefore unlawful, and could not stand. (8)

I do not disagree with Maier over the outcome, and I do not disagree that the Pipeline case was not suitable for resolution by a...