Jurisdictional Reasonableness Under Customary International Law: The Approach of the Restatement (Fourth) of Foreign Relations Law
62 Questions of International Law: Zoom-In 5 (2019)
14 Pages Posted: 8 Nov 2019
Date Written: October 31, 2019
Abstract
This essay discusses the approach to jurisdictional reasonableness under customary international law in the Restatement (Fourth) of Foreign Relations Law. The Restatement (Fourth) rejects the Restatement (Third)’s case-by-case approach to reasonableness, but it does not reject reasonableness. The Restatement (Fourth) incorporates reasonableness at the level of customary international law by requiring a “genuine connection” between the subject of the regulation and the State seeking to regulate. The Restatement (Fourth) further incorporates reasonableness at the level of US domestic law through the presumption against extraterritoriality and the principle of reasonableness in interpretation, which limit the reach of US law beyond what customary international law requires. Finally, the essay defends the unilateral character of the Restatement (Fourth)’s approach to jurisdictional reasonableness.
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