International Comity in the Restatement (Fourth) of Foreign Relations Law

Abstract

This paper compares the treatment of international comity in the Restatement (Third) of Foreign Relations Law (1987) and the Restatement (Fourth) (2018). The Restatement (Third) generally avoided international comity and focused on restating international law. In some cases it argued without much support in state practice or opinio juris that rules originating in international comity had developed into customary international law. The Restatement (Fourth) takes a more restrained approach to restating rules of customary international law and correspondingly embraces international comity as a way of distinguishing limits on jurisdiction that are required by international law from limits on jurisdiction that are required only by domestic law. Basing doctrines of foreign relations law on international comity does not mean that these doctrines necessarily grant discretion to courts or to the executive branch. Most of the comity doctrines in the Restatement (Fourth) do not. It does mean that nations are free to shape these doctrines as they see fit. Identifying doctrines of foreign relations law as doctrines of international comity also highlights that they are part of a single toolkit that courts use to address problems in transnational cases.