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The Proposed Restatement (Fourth) of the Foreign Relations Law of the United States: Treaties-Some Serious Procedural and Substantive Concerns
Ist Teil von
Brigham Young University law review, 2015-11, Vol.2015 (6), p.1673
Ort / Verlag
Provo: Brigham Young University, Reuben Clark Law School
Erscheinungsjahr
2015
Link zum Volltext
Quelle
EBSCOhost Business Source Ultimate
Beschreibungen/Notizen
Multiple preliminary drafts have been circulated on the topics of Jurisdiction, Sovereign Immunity, and Treaties, and discussion has begun amongst ALI Members about the black letter law and commentary they contain. Because the ultimate adoption of any provisions by the membership of the ALI will take time, however, and is certainly not a foregone conclusion, it remains useful to consider at this relatively early stage whether the project has been well-conceived, and is on the right track. In terms of specific comments, this Essay questions the Discussion Draffs narrow scope, and suggests a return to the unitary structure of Section 111 of the Restatement (Third), rather than the fragmented approach of the current initiative, which has separated Article II treaties from all other forms of international law. Because other contributions to this volume have taken up in detail the discussion of Section 106 (Self-Executing and Non-self-Executing Treaty Provisions), this Essay does not address that issue, although many of the critiques raised in those contributions echo some of my own concerns.2 I. HISTORY AND ORIGIN OF THE RESTATEMENT (FOURTH) PROJECT In 1987, the American Law Institute published the Restatement (Third) of the Foreign Relations Law of the United States.3 This two-volume work was the successor to the 1965 Restatement, and its Chief Reporter was the late Louis Henkin of Columbia University, who was assisted by Andreas Lowenfeld, Louis Sohn, and Detlev Vagts as additional Reporters.4 The Restatement (Third) is divided into nine Parts, some of which address questions of international law, others the relationship of international law to U.S. law, and still others address questions of U.S. domestic law, and more particularly U.S. Constitutional law.