Adjudicatory Jurisdiction and Public International Law: The Fourth Restatement's New Approach

Abstract

Last year, the American Law Institute published its Fourth Restatement of the Foreign Relations Law of the United States. The Fourth Restatement broke with common understandings to find that international law does not constrain personal jurisdiction, except in the context of immunity. According to the Restatement's authors "an honest look at state practice and opinio juris today reveals no limits on jurisdiction to adjudicate outside the area of immunity."

This paper--prepared for the 31st Sokol Colloquium at the University of Virginia School of Law--critiques the Fourth Restatement's new approach. First, it explains how it represents a break both from the ALI's prior understandings and from the view of most, although admittedly not all, international law scholars. Public international law imposes limits on states from exerting judicial power over another state's citizens with which the state has no genuine link or connection. While the precise contours of those limits may be amorphous, contrary to what the Fourth Restatement suggests public international law does not uniquely exempt state power exercised through judiciary in civil litigation from its purview. Second, it describes how the Fourth Restatement's approach to customary international law is premised on the controversial idea that states have unfettered authority absent a limiting customary rule. To reach the Fourth Restatement's conclusion, proof of widespread state practice and opinio juris supporting a customary rule authorizing universal civil jurisdiction would be required. But outside the human rights context, states do not except universal jurisdiction. It ends by describing why the Fourth Restatement's new position that public international no longer constrains state power over citizens with which the state has no connection is problematic.

Keywords: restatement, Fourth Restatement, foreign relations, adjudicatory jurisdiction, personal jurisdiction, public international law, international law, international jurisdiction, judicial jurisdiction, limits of jurisdiction

JEL Classification: K33