This panel was convened at 3:30 pm, Wednesday, April 9, by its moderator, Lance Liebman of Columbia Law School, who introduced the panelists: Sarah Cleveland of Columbia Law School; Georg Nolte of Humboldt University; and Paul Stephan of the University of Virginia Law School. *
REMARKS BY GEORG NOLTE ([dagger])
Most lawyers think in terms of continuities. By saying that a Restatement should be undertaken once "every generation," we are presuming continuity, but we also invite reconsideration. Such reconsideration should not be limited to specific rules or principles, but should also involve the context and the character of the project itself--at least in the beginning. One way of starting a broader reconsideration is to compare the circumstances in which the Restatement Third was produced, with the situation in which we are today. Under this approach, three factors appear to be particularly important for the international law dimension of the Restatement Fourth:
The most obvious factor is that the Restatement Third could only draw on a comparatively limited amount of national and international case law. It is astonishing, for example, how small the sample of case law was on the basis of which the Restatement Third postulated its reasonableness standard concerning the exercise of effects-based jurisdiction, as a rule of customary international law. (1) While some treaty regimes are more judicialized than others, there is today certainly much more judicial practice than there was in the 1980s. This raises not only the question of quantity but also of quality, in particular whether the discretion of the Restatement's authors is thereby reduced or enhanced.
A second factor is somewhat less obvious. At the international level there were few alternatives to the Restatement Third. It is true that the Institui de Droit International and the International Law Association produced important fragments, but these did not easily reach U.S. courts and practitioners. Today, however, other Restatement efforts are more widespread. Consider, for example, the customary international law study of the International Committee of the Red Cross. (2) The International Law Commission has also moved considerably from drafting treaties to restating international law, also with the aim of reaching practitioners at the national level. (3) Think, for example, of the current projects on the immunity of state officials from foreign criminal jurisdiction and on the identification of customary international law, but also of the draft articles on state responsibility. And...