The American Law Institute’s Restatement of the Law: Bastion, Bridge and Behemoth

Abstract

Abstract This article analyses the repercussions of restating foreign relations law for international law in the current constellation of backlash, or at least fatigue, with international law and global governance. Foreign relations law – consolidated, shaped and strengthened by the exercise of restating it – partly erects a bastion against international law and partly builds bridges between international law and domestic law. The foreign relations law of a powerful state such as the USA, in particular, risks marginalizing or even swallowing up international law. The article discusses four possible strategies to mitigate or counteract that ‘Behemoth’ tendency – namely, the normalization of foreign relations law, more intense restating exercises in international law proper, the elaboration of restatements of other countries’ foreign relations law and, finally, multi-perspectivism. The latter strategy involves seeing foreign relations law through the eyes of differently situated law appliers, notably by contemplating the consequences of the stated rules on other states and by comparing different nations’ foreign relations laws. The danger of US foreign relations law becoming the Behemoth of international law can be best contained by espousing such deliberate multi-perspectivism when designing, restating and interpreting it.