"THAT’S DEBATABLE": THE ALI AS A PUBLIC POLICY FORUM
Part II
International Law and the Restatement Third of the Foreign Relations Law of the United States
Justice Sandra Day O’Connor addressed us at our Annual Meeting in May on a most timely subject, the internationalization of American law. Her important talk presaged the decision of the Supreme Court a month later in Atkins v. Virginia, 536 U.S. ____, 122 S. Ct. 2242 (2002), in which she joined, holding that the execution of criminals who are mentally retarded constitutes cruel and unusual punishment in violation of the Eighth Amendment. The opinion of the Court included a long footnote supporting the proposition that a "national consensus has developed against" the practice of executing mentally retarded individuals, and citing, among various references, the European Union’s amicus brief that reflected overwhelming disapproval within the world community of imposing the death penalty on mentally retarded offenders. 122 S. Ct. at 2249 n.21. Three justices dissented, including Justices Scalia and Thomas, who stated, "But the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called ‘world community,’ and respondents to opinion polls." 122 S. Ct. at 2264. Certainly, the effect of international law and opinion in our courts is what some might call a "hot topic."
Justice O’Connor’s talk and the ensuing opinions in the Supreme Court prompt a brief review of the Institute’s view and deliberations, as reflected in Restatement Third, The Foreign Relations Law of the United States (1987), on three key questions: what do we mean by international law; what is its status in relation to domestic law; and what limits apply to one country’s jurisdiction to prescribe laws with extraterritorial effects?
Section 101 of Restatement Third provides that "International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical." Section 102 describes the sources of international law as customary international law, international agreements, and "general principles common to the major legal systems of the world," and further defines those terms. Section 103 concerns evidence for determining whether a rule has become international law; §§ 111-115 concern the status of international law and agreements in United States law; §§ 301-303 concern the law of the United States regarding the scope of international agreements and the authority to make them; and §§ 401-416 concern the limits on a country’s jurisdiction to prescribe.
These various subjects are not completely free from controversy now, and they were much debated when Restatement Third was under discussion in the Institute. For example, at our Annual Meeting in 1980, a debate on Tentative Draft No. 1 commenced with the dual question by Robert Armstrong Anthony whether a "rule of international law" becomes "effective as law in the United States" and not only "supersedes any inconsistent" state law but also "any inconsistent preexisting provision in the law of the United States." Chief Reporter Louis Henkin responded that "international law is law of the United States like other law [that] would apply" and that "international law might supersede some statute of Congress, usually an old one which no one thought of as being involved. Of course, if Congress does not like it, it can turn around and pass a statute again and supersede the principle[s] of international law." Director Wechsler asked, "Wouldn’t the statute be evidence of nonacceptance by the United States?" and Chief Reporter Henkin responded that "It might, depending on the time of the statute. It certainly would if it were a recent one." Director Wechsler then suggested that the Reporter "consider making the position more tentative on that point …. It is an undetermined matter as far as any case law is concerned. I share the apprehension." Chief Reporter Henkin said that he would "look at it again." Ultimately, the broad rule of § 135(1) in Tentative Draft No. 1:
A rule of international law or a provision of an agreement that becomes effective as law in the United States supersedes any inconsistent law of the several states of the United States, as well as any inconsistent preexisting provision in the law of the United States.
gave way to the narrower formulation in § 115(2) and (3) of the official text:
(2) A provision of a treaty of the United States that becomes effective as law of the United States supersedes as domestic law any inconsistent preexisting provision of a law or treaty of the United States.
(3) A rule of international law or a provision of an international agreement of the United States will not be given effect as law in the United States if it is inconsistent with the United States Constitution.
The effect of such provisions on state law was meanwhile accorded a more nuanced treatment in a separate Comment.
The debate in 1980 extended to other controversial issues regarding executive agreements and, particularly, to the doubt raised by Mark B. Feldman "about the possibility of an executive agreement superseding a prior inconsistent statute even where the executive agreement is within the constitutional power of the United States"; to the question raised by Sigmund Timberg whether executive agreements interfered with the Tenth Amendment’s reservation of rights to the states; and to the question raised by Dean Gerhard Casper whether the "Congressional-executive agreement can be used in all cases as an alternative to the treaty method," as the draft under discussion provided, and whether a "political judgment" as to which procedure to use would subvert the rights of the United States Senate with regard to treaties.
Chief Reporter Henkin acknowledged the uncertainty regarding the effect of an executive agreement on a previous statute; stated that "we are laying aside the Tenth Amendment for the purposes of this discussion and picking up the language of Justice Black in Reid v. Covert"; and, in response to Dean Casper, referred to the absence of any authoritative statement "that you cannot do this by joint resolution," and that "there is the safeguard that it takes a majority of the Senate to do this." As finally adopted, the Restatement Third now provides (§ 303, Comment e) that "[t]he prevailing view is that the Congressional-Executive agreement can be used as an alternative to the treaty method in every instance. Which procedure should be used is a political judgment, made in the first instance by the President, subject to the possibility that the Senate might refuse to consider a joint resolution of Congress to approve an agreement, insisting that the President submit the agreement as a treaty."
The foregoing debate concerned the effect of international law within one country, the United States. The extraterritorial reach of a country’s laws beyond its own territory was also much debated within the Institute and is of particular and current significance, given the jurisdiction that some countries assert over international transactions and communications, especially over the Internet. Called "jurisdiction to prescribe," as distinguished from jurisdiction to adjudicate or enforce, this subject prompted lively debate at our Annual Meetings in 1985 and 1986, particularly over the draft of what became § 403(3), concerning limitations on a country’s jurisdiction to prescribe when there are two conflicting prescriptions. The 1985 draft (Tentative Draft No. 6) provided:
When more than one state has a reasonable basis for exercising jurisdiction over a person or activity, but the prescriptions by two or more states are in conflict, each state is expected to evaluate its own as well as the other state’s interest in exercising of jurisdiction in light of all the relevant factors, including those set out in Subsection (2) [eight factors]; and to defer to the other state if that state’s interest is greater.1
The debate on subsection 403(3) extended over two years, in 1985 mainly on the merits of the principle of reasonableness, and in 1986 mainly on the question whether the principle was obligatory or hortatory.
Professor Don Wallace began the 1985 debate by asking what the basis in international law was for subsection 403(3), "where are the cases," and is it feasible "to introduce into jurisdictional law the conflicts methodology …?" David G. Gill, speaking on behalf of himself and the Antitrust Section of the ABA, supported the principle of reasonableness in § 403. Professor Richard W. Jennings raised "a serious question about the standard of reasonableness, particularly in the securities field and in the antitrust field … [T]he term ‘reasonableness’ gives no guidance …." Various additional speakers spoke the remainder of the afternoon and the next morning. A motion to excise various provisions, described by one opponent as "an effort to gut the central portion," and another as a "motion essentially to delete the reasonableness test," was debated fully. Chief Reporter Henkin described the latter motion as a "disaster," saying, "There is a basic difference between the view that governments should be free to do as they like, and one that believes they are subject to restraints. We think the restraints of this Section are sound domestic foreign relations law. We think they have also emerged as international law." The motion then lost clearly on a voice vote and the Institute essentially adopted the principle of reasonableness.
In 1986, the Institute returned to subsection 403(3). Chief Reporter Henkin stated that the principle of reasonableness reflected in the subsection "has been before the Institute several times and was voted on twice and approved finally again at the last meeting…. Now, the issue which has been before us for several years is whether this is a mandatory requirement of international law or a hortatory statement by the Institute …. In this final go-around we sort of split the difference, but not evenly. That is, you’ll notice each state has an obligation to evaluate — so the obligation to evaluate is mandatory — but we then say ‘and should defer,’ leaving the hortatory language for the last phrase."
Douglas E. Rosenthal then moved that the "should defer" provision in the Comment be accompanied by the phrase "as a matter of international law" so that "the obligation is more than a hortatory ‘should’" and that "the balance be put more truly in a reasonable mold." Lloyd N. Cutler stated in opposition that "the Reporters have come out just right in the black letter with the word ‘should’" but moved to delete a clause in Comment e that stated: "but whether failure to do so [defer] would be a violation of international law is not clear." Professor Karl Meessen, the Institute’s special consultant from West Germany on international economic law, supported the Rosenthal motion and opposed the Cutler amendment, and suggested that "if you state here that there should be deference to the state with the greater interest and … state this as a matter of international law you are very well within the communis opinio of international law."
The pros and cons were debated further by several members. Professor Wechsler suggested the Reporters refer to the materials submitted by Mr. Rosenthal in their Reporters’ Note as supporting the concept of a legal obligation. Mr. Rosenthal, with the agreement of his seconder, said he was prepared to withdraw his motion and support the Cutler amendment "with the request of the Reporters that they follow Herb Wechsler’s suggestion." Bennett Boskey commented that "the Department of State and the Department of Justice are very strongly of the view that there is not an international law obligation involved in this matter" and suggested that the Comment "be left alone."
With Mr. Rosenthal’s gracious withdrawal of his amendment, a vote was taken on the Cutler motion to delete the "but" clause. President Perkins heard the choruses of ayes and nays and called for a division, which resulted in a vote of 143-68 in favor of the motion and a typically humorous, light-hearted, and self-deprecating comment from President Perkins that "I guess that the ‘no’ voters have stronger voices is all I can say. The Chair apologizes for his audio deficiency." Chief Reporter Henkin then said the Reporters would take Professor Wechsler’s suggestion into account and put some of the Rosenthal material into the Reporters’ Note, thus demonstrating that a member need not prevail on a motion in order to influence the contents of a Restatement. So ended another civilized discussion in the Institute on an important and challenging subject in international law. 2
Michael Traynor
President
1 Associate Reporter Andreas F. Lowenfeld, in his book, Conflict of Laws: Federal, State and International Perspectives 960 (Rev. ed. 2002), states that the "draft formulation was criticized by some as involving circular reasoning and by others as not reflecting the decided cases." As revised and approved, subsection 403(3) now says: "When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state’s interest in exercising jurisdiction, in light of all the relevant factors, [including those set out in] Subsection (2); a state should defer to the other state if that state’s interest is clearly greater."
2 In Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993), the Supreme Court discussed jurisdiction to prescribe and the relevant provisions of Restatement Third in holding that Sherman Act conspiracy claims against foreign insurers as well as domestic insurers were not barred by international comity. The two separately written opinions for the Court, one of which also includes a partial dissent, bear careful study and reflect the Institute’s contribution to this area of the law. (Key excerpts from the case are reproduced in Professor Lowenfeld’s book, at 960-971, along with valuable notes and questions.)