Can Federal Courts Adjudicate Issues of International Law -- Examining the Act of State Doctrine and the Banco De Nacional De Cuba v. Sabbatino Decision.

Abstract

Legal philosopher John Austin’s view of positive law as it relates to international law is examined at the beginning of the article. Generally, Austin asserts that positive law requires the existence of a sovereign; but in international law, the question is what sovereign would provide the superior power to induce compliance through enforcement. The issue of law verses custom is examined as it bears on international law in the absence of a sovereign. The paper then examines the expanding role of federal courts in international law — especially as the doctrine is developed in Banco Nacional de Cuba v. Sabbatino, where the doctrine of the Act of State Rule is examined by both the majority holding and the dissent.