No CrossRef data available.
Article contents
The American Law Institute’s Draft Restatement of the Foreign Relations Law of the United States
Published online by Cambridge University Press: 28 March 2017
Abstract
An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
- Type
- Editorial Comment
- Information
- Copyright
- Copyright © American Society of International Law 1961
References
1 The Executive Office of the American Law Institute is located at 133 South 36th Street, Philadelphia 4, Pa. Tentative Draft No. 1 was only a sample and its subject matter was incorporated into Tentative Draft No. 2, Past I. Jurisdiction, May 8, 1958 (278 pp.), $3.50 (stock low). Tentative Draft No. 3, Part II. International Agreements, May 4, 1959 (197 pp.), is out of stock. Tentative Draft No. 4, covering an additional chapter for Part I on Act of State, and Part III. Recognition, April 27, 1960 (117 pp.), is priced at $3.50. Tentative Draft No. 5 on Part TV. State Responsibility for Injury to Aliens, is planned for printing in April, 1961. The publications list of the American Law Institute should be consulted about future drafts and the final printing in book form.
2 Tentative Draft No. 2, 1.
3 Ibid. 3-4.
4 Professors Cecil J. Olmstead and Joseph M. Sweeney of New York University School of Law, and the writer.
5 The Reporters have agreed many times that, whatever other merits the project might eventually have, the experience has been a valuable education for them.
6 Common-law lawyers and civilian comparatista will recall § 90, Restatement of Contracts (1932) as a good illustration of the text at this point: Professor Samuel Williston, the Reporter for Contracts, found that there was some authority in case law, if properly analyzed, to sustain the proposition that a promise reasonably inducing definite and substantial action could be the source of legal obligation in certain situations, even though not supported by consideration. Professor Williston convinced the American Law Institute, and thus the Doctrine of Promissory Estoppel came into the common law via the Restatement, when common-law courts began to follow the doctrine on the authority of its support by the American Law Institute.
7 § 90 of the Restatement of Contracts, note 6, contains no discussion of the case law bearing upon promissory estoppel. One must look to the Reporter’s Preliminary Treatises which went to the Institute, and to the record of the Proceedings of the Institute for them. On the face of it, therefore, the older Restatements could not be called argumentative, for they did not argue. Professor Williston did not even include a Comment for § 90 ; the black letter is followed by four Illustrations and that is all. The Foreign Relations Law Restatement has not yet entirely standardized its use of authorities in text intended to be carried into the final printing. A number of the Comments contain discussion of lines of authorities; some Illustrations cite the cases upon which they are based; there are a number of Reporters’ Notes which seem destined for final printing; others, called Reporters’ Notes to the Institute are intended to be solely for use during the restating process. The newer Restatements, in a second series involving the private law areas previously chosen for restatement, contain authorities and compact analyses thereof.
8 Jessup, , “The United Nations Conference on the Law of the Sea,” 59 Columbia Law Rev. 234, 264-265 (1959)CrossRefGoogle Scholar.
9 See Tentative Draft No. 2, $ 6, Comment d, discussing in the context of international boundaries the Submerged Lands Act, 67 Stat. 29 (1953). Presumably the decision in U. S. v. Louisiana, et al. 363 U.S.l, esp. 30-36, has removed this issue from the roster of sensitive areas.
10 Tentative Draft No. 2, § 8 recognized that a state has jurisdiction to prescribe its law of economic regulation to a defendant before it in personam, if conduct outside its territory has an appropriate causal connection with economic consequences within its territory or to its foreign trade. § 30 of this Tentative Draft, in what is probably somewhat of an extension of existing law, attempted to state a rule for the resolution of conflicting bases of jurisdiction between states, largely with the problem of economic regulation in contemplation. The sections are presently under restudy, primarily because of the concern they have caused to groups which see the reach, under national law, of the United States antitrust laws as a serious impediment to economic development by private means. Nor have these sections satisfied another group, more favorable to a wide reach for antitrust laws, which is of the opinion that the Restatement should not restrict jurisdiction (to prescribe rules, e.g., “legislative jurisdiction”) based on the protective principle of jurisdiction as narrowly as it does; see §§ 24, 31, and 32 of Tentative Draft No. 2. Yet another group, apparently preferring a restrictive application of the antitrust laws, also prefers wider use of the protective principle as to matters of “national honor, integrity, independence, and security,” but would exclude its use where national interests as to the nature of the world economy (competitive, cartelized, or socialized) are concerned.
11 Thus, interests in the United States, which feel that reservations to the Fisheries Convention are imperative to protect the principle of abstention, are dubious about Tentative Draft No. 3, § 113, which states that in the absence of a manifested intention otherwise, most multilateral agreements are governed by the principle that an objection to a reservation by a state qualified to object prevents the reserving state from becoming a party to the treaty community. Such groups would prefer to see the residual rule about the effect of an objection to a reservation stated in accordance with the present customary practice in the Organization of American States or, alternatively, to have the decision of the International Court of Justice in the Genocide Case, [1951] I. C. J. Rep. 29, considerably broadened by the Restatement.
12 Comment to this makes it clear that the second sentence of Subsection 2 is a specific application of the general principle stated in the first sentence, e.g., with reference to choice of a foreign law by a court which has judicial jurisdiction over the parties.
13 The Director of the American Law Institute has informed the writer that Tentative Drafts may be cited and are open for review. Ordinarily however, in the impression of the writer, Tentative Drafts have not been much the subject of discussion in legal periodicals, with the exception of the Restatement of the Conflict of Laws, which, of all Restatements, in both its first and its second versions, has most stirred guerres des savants.