The now celebrated (infamous to some) section 711 of the Restatement of Foreign Relations Law of the United States (Revised) is meant to replace the allegedly dated and obtuse black-letter content of sections 178 through 183 of the Restatement (Second) of Foreign Relations Law of the United States with more contemporary, subtle, and economical provisions.
This Article briefly assesses the significance of these disclaimers against the unmistakable "new look" of section 711. Even upon initial perusal, the divergence in content and presentation between the existing provisions and the recommended formulation of the law of state responsibility for injury to aliens ("S.R.I.A.") is so striking that it is difficult to find any common ground in which to anchor an attempt at meaningful comparison. It is the thesis of this Article that the proposed content of section 711 fails to mediate properly between the convergent developments and to create a new set of juridical principles in a synthesis which preserves each development's own specificity and allows the law of S.R.I.A. to gain greater contemporary currency in the world community. The incorporation of human rights language is unfortunate because it is largely uncontrolled; it so collapses the recognized rules of S.R.I.A. that nearly no guidance is now available, for example, on what constitutes a "denial of justice." No matter how acceptable the theoretical objective, there is a clear need fora better (in the sense of more balanced) accommodation of the two developments-an accommodation, in effect, which would allow the law of S.R.I.A. to conserve some measure of substantive autonomy.
Thomas E. Carbonneau, The Convergence of the Law of State Responsibility for Injury to Aliens and International Human Rights Norms in the Revised Restatement, 25 Va. J. Int'l L. 99 (1984).