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58 Am. J. Int'l L. 707 (1964)
Editorial Comments

handle is hein.journals/ajil58 and id is 721 raw text is: EDITORIAL COMMENT THE STATE DEPARTMENT AND SABBATINO-E'rN VICTORS ARE BY VICTORIES UNDONEI Certainly among the more important long-run goals of United States foreign policy and of those charged with specific responsibility for legal aspects of such policy are (or should be) : (1) encouraging general recog- nition of the vitality of customary international law as law and not as just the lowest common denominator of current state practice; (2) up- holding established principles of international law against positivist as- sertions that non-acceptance of these principles by new governments and states render them obsolete; and (3) strengthening the present admittedly imperfect institutional structure for enforcing international law. It thus is difficult to understand why the State Department, through the Solicitor General, should have contributed, by its brief on behalf of the United States as amicus curiae in Banco Nacional de Cuba v. Sabbatino, reported on page 779 below, to a decision and opinion of the United States Supreme Court which run counter to these basic goals, and which may be liberally quoted, to our lasting national detriment, by those who oppose these goals in international tribunals, international law commissions and diplomatic negotiations. The narrow holding of the Supreme Court was that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the ab- sence of a treaty or other unambiguous agreement regarding control- ling legal principles, even if the complaint alleges that the taking violates customary international law. This is serious enough since it, in effect, requires that all the force of the United States' judicial and executive agencies be utilized to protect property confiscated in violation of international law except where the confiscating government has itself expressly agreed to the principles it is violating. The writer's views in favor of judicial review of acts of state alleged to violate international law have been stated elsewhere and will not be repeated here.2 Even more discouraging, however, from the standpoint of the policy goals set forth above, are certain of the reasons advanced by the Supreme Court in reaching this conclusion. In the first place, the Court has taken up with a vengeance the implica- I Dryden, Epistles. 2 The Sabbatino Case-Three Steps Forward and Two Steps Back,' 57 A.3.I.L. 97 (1963); Report: A Reconsideration of the Act of State Doctrine in United States Courts, Committee on International Law (1959), Association of the Bar of the City of New York.

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