About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most