By: Leila Nadya Sadat
In 2012, the American Law Institute (ALI) was approached by Professors Paul Stephan and Sarah Cleveland to do a new Restatement Fourth of the Foreign Relations Law of the United States. Their proposal posited that, with the end of the Cold War and the advent of the internet, we confront issues today that “either did not exist or were understood very differently” at the time of the Third Restatement’s drafting, such as terrorism, global warming, failed states, pandemics, international systemic risk in financial institutions, and digital reproduction of valuable information. They argued that the old understandings about international law were about “managing potential conflicts between states,” rather than “organizing collective responses to common problems,” and observed that there is more international litigation nowadays with the advent of globalization than there used to be.
The Stephan-Cleveland proposal suggested that a new Restatement could avoid plunging into “polarized debates,” by breaking the new project into small pieces that could, over time, presumably replace the opus of 1986. The project was approved, and three areas of study and drafting were proposed for the first volley in this effort: “Domestic Effect of Treaties,” “Sovereign Immunity,” and “Jurisdiction.”
What the Cleveland-Stephan proposal did not directly say, however, was that foreign relations law has become a highly contested and even partisan field. Since the 1990s, distinguished scholars have argued vociferously about the status and force of customary international law, treaties, and executive agreements. Recall, for example, the debate between Larry Tribe and Bruce Ackerman regarding the constitutionality (or not) of NAFTA, a congressional-executive agreement; and the revisionist view put forth by Curtis Bradley and Jack Goldsmith in Customary International Law as Federal Common Law: A Critique of the Modern Position and elsewhere, arguing that it was unconstitutional for the federal courts to consider customary international law as federal law under the Erie case. This assertion prompted forceful responses from Gerry Neuman, Bill Dodge and Harold Koh, among others. Indeed, foreign affairs, like many other areas of American life has become a polarized field, in which the split on the Supreme Court between so-called “liberal” and “conservative” Justices has played out in important foreign affairs cases such as Sosa v. Alvarez-Machain, Medellín v. Texas and Kiobel v. Royal Dutch Petroleum Co.
Read against this background, the effort to restate U.S. foreign relations law may be naïve, as the law appears to most observers to be highly contested and in great flux. Perhaps it is more likely an effort to take a few recent Supreme Court cases – such as Medellín – that have benefited the revisionist view and codify them quickly?
The ALI has now adopted Preliminary Draft No. 1 (2013) and Preliminary Draft No. 2 (2014) on the Status of Treaties in United States Law, which address Self-Executing and Non-Self-Executing Treaties (§ 101), Conflicts Between Treaties and State or Local Law (§ 102) and Conflicts Between Treaties and Federal Statutes (§ 103). Additionally, the ALI has adopted Sovereign Immunity Preliminary Draft No. 1 (2013), which covers Chapter 5 – Immunity of States from Jurisdiction, and addresses the immunity of foreign states from jurisdiction to adjudicate (Subchapter A), from jurisdiction to prescribe (Subchapter B), and from non-judicial enforcement (Subchapter C). On the topic of Jurisdiction the ALI has adopted Council Draft No. 1 (2013), Preliminary Draft No. 1 (2013) and Tentative Draft No. 1 (2014), which deal with the recognition and enforcement of foreign judgments.
I had the opportunity to attend an excellent conference at BYU Law School in January, on Preliminary Draft No. 3: Treaties. This was my first opportunity to really focus upon the work being done. In examining the structure of the proposed program of work, I had some concerns.
In particular, I wonder about the wisdom of separating the work on Article II treaties from all other forms of international agreements. The Third Restatement and, in my view, the United States’ courts, do not take this approach. Recall that in the Restatement Third, there were just a few black letter law provisions addressing “international agreements,” which did not distinguish between Article II treaties and other international agreements. Section 111(1) provides:
§ 111. International Law and Agreements as Law of the United States
(1) International law and international agreements of the United States are law of the United States and supreme over the law of the several States.
This provision aligns U.S. foreign relations practice with international law, because regardless of the domestic manner in which a State chooses to ratify its international agreements, they are all “treaties” internationally, governed by the rules of the Vienna Convention on the Law of Treaties, and give rise to binding legal obligations on the international plane.
Conversely, Section 101(1) of the proposed Restatement Fourth provides:
§ 101. Treaties as Law of the United States
(1) Treaties made under the authority of the United States are part of the supreme law of the land.
The Comment to draft Section 101 states that “[u]nless otherwise indicated, the term treaty in this Restatement concerns only ‘Article II treaties’ – that is, international agreements entered into by the United States pursuant to the process specified in Article II of the Constitution.” What about other forms of international agreements? The draft is silent. Presumably, however, draft Section 101 would not apply to NAFTA, nor to the General Agreement on Tariffs and Trade (the GATT), just to name two major international agreements not adopted as Article II treaties in which the United States has engaged its international responsibility. Perhaps some other, as yet unwritten sections of the proposed Restatement will do so, and at the meeting it was pointed out that many of the Sections on Article II treaties could be applied to other forms of international agreements, mutatis mutandis, but it is odd that they have been deleted from draft Sections 101(1) and (2).
As is well known, there have been thousands of executive agreements and congressional-executive agreements entered into since the founding. A study in 1997 found that between 1980 and 1992, some 4,510 new executive agreements were made against only 218 treaties that received the advice and consent of the Senate. They have been treated by the federal courts as entirely interchangeable with Article II treaties, as shown by the Belmont, Pink, and Dames & Moore decisions. Moreover, in American Insurance Association v. Garamendi, the Court found that an executive agreement preempted contradictory state law. It has become accepted that executive agreements are appropriate vehicles for entering into international agreements outside the mechanism of Article II as a result of long-accepted and unbroken practice.
The choice to omit international agreements from Section 101 clearly is not mandated by the case law – which suggests that it is instead a policy preference of the Reporters. Many, if not most of the cases referred to in the Comments or Reporters’ notes to Preliminary Draft No. 3 involve international agreements which are not Article II treaties, because in fact, the federal courts have not distinguished between them for purposes of enforceability in U.S. courts. One does not find a bifurcated world in the case law, in which Article II treaties stand clearly on one side of a constitutional line subject to one regime, and other international agreements stand clearly on the opposite side subject to a different set of rules, but rather a unitary system of treatment of all international agreements under the Supremacy Clause of the United States Constitution. The Reporters’ notes on p. 19 cite to decisions of the Supreme Court to apply the Supremacy clause to displace the application of state and local laws that would conflict with sole executive agreements. This is a felicitous result: under the Vienna Convention on the Law of Treaties, (and as interpreted by the ICJ), states are not required to investigate the constitutional processes involved in other States’ manifestations of consent to be bound on the international plane.
This distinction becomes all the more important when one considers the recent letter by some members of the United States Senate regarding the possible authority of any executive agreement made by the President with relation to a nuclear deal with Iran.
The Preliminary Draft, by separating Article II treaties from everything else – customary international law and executive agreements – implicitly makes it more difficult, not less, to understand and therefore to use international law in the U.S. legal system. The audience for this Restatement is not just U.S. lawyers, judges, academics and diplomats, but foreign lawyers, judges, academics and diplomats seeking to understand U.S. practice. The Restatement Third has been influential not only in the United States, but abroad, as the Stephan-Cleveland proposal observes, and has often been cited by international courts and tribunals, including the ICJ, the International Centre for Settlement of Investment Disputes, UNCITRAL, and by foreign national courts including Canada, the U.K. and Australia. Producing a confusing or tendentious Fourth Restatement could constrain rather than promote the ability of the United States to participate in international agreements to manage international problems. If a nation is unable to state clearly that its international commitments are binding and enforceable within its borders, it will be less, not more likely, to be able to negotiate effectively in international fora.