Perspectives on the Restatement (Fourth) project.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion
 
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The panel was convened at 9:00 a.m., Friday, April 10 by its moderator William S. Dodge of the University of California, Hastings College of the Law, who introduced the panelists: John Bellinger of Arnold & Porter LLP; Sarah Cleveland of Columbia Law School; Harold Hongju Koh of Yale Law School; Campbell Alan McLachlan of Victoria University of Wellington School of Law; and Paul Stephan of the University of Virginia Law School.

REMARKS BY WILLIAM S. DODGE *

Good morning, and welcome to this roundtable on the American Law Institute's (ALI) Restatement (Fourth) of Foreign Relations Law. My name is Bill Dodge. I am one of the reporters for the Fourth Restatement's project on jurisdiction and I will be moderating this morning's session. We have a very distinguished panel, and to save time I am going to introduce them only briefly.

Sarah Cleveland is Louis Henkin Professor of Human Rights and Constitutional Rights at Columbia Law School and a member of the UN Human Rights Committee. She is one of the coordinating reporters for the Fourth Restatement and a reporter for its project on treaties.

Paul Stephan is John C. Jeffries, Jr. Distinguished Professor of Law at the University of Virginia School of Law. He is the other coordinating reporter for the Fourth Restatement and a reporter for its project on jurisdiction.

Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. From 2009 to 2013 he served as Legal Adviser at the U.S. State Department. He is a member of the ALI Council and a Counselor to the Fourth Restatement.

John Bellinger is a partner at Arnold & Porter. From 2005 to 2009 he served as Legal Adviser at the U.S. State Department. And he is a Counselor to the Fourth Restatement.

Campbell McLachlan is Professor of Law at Victoria University of Wellington School of Law. He is a foreign adviser for the Fourth Restatement.

I also want to acknowledge the other reporters for the project who are in the room and absent: Curt Bradley, Ed Swaine, David Stewart, Ingrid Wuerth, and Anthea Roberts.

Before we turn to our panelists, I thought I would give a brief overview of the Fourth Restatement as a whole. As many of you know, the Third Restatement of Foreign Relations Law was completed in 1986 and published in 1987. It has been enormously influential over the past twenty-five years.

In 2012, the ALI Council approved three projects under the umbrella of the Fourth Restatement of Foreign Relations Law--a project on treaties, a project on jurisdiction, and a project on sovereign immunity--each with a separate set of reporters. In accordance with standard ALI practice, there is a group of advisers for each project as well as a members consultative group open to any ALI member.

In addition to these groups, the ALI has appointed a set of counselors, including Harold and John, and a set of foreign advisers, including Campbell. In other words, we are blessed with advice.

It is expected that these three projects will conclude in 2017. Obviously these projects do not cover all of the ground that the Third Restatement did. At this point, no decision has been made about whether to take up additional projects or whether to publish the existing projects separately or together.

This morning's session will proceed in three phases. First, Sarah, Paul, and I will briefly address some of the key challenges for each of the individual projects. Second, Harold, John, and Campbell will talk about some of the key challenges for the Restatement project overall. Third and finally, I have asked each of the five panelists to address the Restatement from a different perspective. There are many perspectives one could take on the projects and I have assigned one perspective to each of them. Along the way, we will engage in some discussion among the members of the panel. And at the end, of course, we will leave time for questions.

So we will begin with brief presentations on the key challenges of each of the three projects. Sarah will discuss treaties. Paul will discuss jurisdiction. And I, having received input from the reporters for the sovereign immunity project, will discuss sovereign immunity. Each of us will take no more than three minutes. Sarah.

* Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. He currently serves as co-reporter for the Restatement (Fourth) of Foreign Relations Law: Jurisdiction and as a member of the State Department's Advisory Committee on International Law.

REMARKS BY SARAH CLEVELAND *

You can see who really runs this project, right?

Good morning, everyone, and thank you all for coming. It is great to have this conversation, particularly with so many people who are already helpfully contributing to this project. As Bill said, I just wanted to say a little bit about the treaty prong of the project that was approved for consideration by the ALI a couple of years ago.

First of all, I should note we get a lot of questions about whether or not we are addressing executive agreements and congressional executive agreements, in addition to Article II treaties. And the current answer is that we are not. We were originally tasked by the ALI to take up the status of Article II treaties in U.S. domestic law, and that is the current character of the project.

That said, we expect that we will eventually be taking up the other forms of international agreements that the United States enters into, and even with respect to Article II treaties, it has not really been possible to completely hermetically seal them from other forms of agreements because many of the leading Supreme Court precedents, for example with respect to supremacy of U.S. international agreements over state law, involve executive agreements and not Article II treaties. So that is just to flag what may be waiting in the wings with respect to this aspect of the project.

Now, in the last draft that we presented to our advisers, Preliminary Draft No. 3 for the treaty project, we listed a projected table of contents for the topics that we are planning to take up at this point with respect to treaties. And, in the interest of my three minutes, I will not read them, but we essentially start with treaties as law of the United States as a constitutional matter and the process for entering into treaties as a matter of domestic law and end with suspension and termination of treaties.

The major issues that we have confronted--I would say the elephant in the room for us thus far has been the domestic legal status of non-self-executing treaties outside of the courts. This is an issue that Curt, Ed Swaine, and I have grappled with at great length, in part * because there is no judicial doctrine on this issue, because, as you know, by definition, a non-self-executing treaty is one that a court cannot adjudicate.

The current approach that we have adopted in the drafts is consistent, largely, with that of the Restatement (Third), which is to say that all treaties are supreme law of the land. Various aspects of treaties may be disabled from various forms of domestic enforcement by various doctrines--constitutional conflict, lack of judicial enforceability, and so forth--and self-execution is one of them. But we have looming before us issues, for example, of the relationship between non-self-executing treaties and the president's power under the Take Care Clause.

I am told my three minutes are up, but I am going to flag two other issues.

The second problem we have addressed is a package of issues relating to the question of to what extent doctrines that have been developed in the domestic law context also apply similarly or differently in the treaty context.

And just to flag two examples, one would be with respect to the later-in-time doctrine. When a later-in-time treaty supersedes an earlier-in-time federal statute, or vice-versa, do you need a clear statement by Congress, when it adopts a later-in-time statute, in order for it to displace a treaty? Or do ordinary rules that have been developed in the context of conflicts between two federal statutes apply? There are particular reasons why you might want to have a higher bar for a federal statute to displace a treaty, obviously, but there is some lack of clarity on the doctrine in that area.

And then, secondly, with respect to supremacy, similarly, do you assume that Congress--or the Senate, in agreeing to provide advice and consent to a treaty--does not intend to preempt existing state law? That is the standard that the courts have developed for preemption between federal statues and state and local law. Or is there some different standard that applies with respect to displacement of state and local law by treaties under the supremacy clause? And I think these are both areas of lack of clarity which will get me back to the role and contribution of academics later. Thank you.

* Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School, a member of the UN Human Rights Committee, and one of the coordinating reporters for the Restatement (Fourth) of Foreign Relations Law.

REMARKS BY PAUL STEPHAN *

Thank you.

With jurisdiction we have divided our project, as the Third Restatement did, into discussing adjudicative jurisdiction (that is to say, the authority of courts as courts), prescriptive jurisdiction (the power of a state to impose its substantive rules), and enforcement jurisdiction.

Within enforcement jurisdiction, we have run through the ALI process a piece of that, which is recognition and enforcement of foreign judicial judgments. When I say we have run through, that means that the membership, as well as the council, has signed off, but that does not bar us from revising. We are hard at work on the prescriptive jurisdiction piece and contemplating the adjudicative jurisdiction piece to come. We hope we will make some headway on that before our next encounter with our advisers in October.

As to prescriptive jurisdiction, I...

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