1 589 F.2d 862 (5th Cir. 1979).

2 450 UNTS 82, 13 UST 2312, TIAS No. 5200.

3 Article 6 provides: “ 1 . Ships shall sail under the flag of one State only and, save inexceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas… . “

4 444 U.S. 832, 100 S.Ct.61, 62 L.Ed.2d 40 (1979).

5 589 F.2d at 884.

6 Id. at 865.

7 The court held that Articles 6, 22, and 23 of the Convention on the High Seas apply to pleasure craft as well as privately owned merchant vessels with respect to the recovery of a penalty against the master.

8 For a lengthy comment on the substance of the fourth contention, see Note, , High on the Seas: Drug Smuggling, the Fourth Amendment, and Warrantless Searches at Sea, 93 Harv. L. Rev. 725 (1980)Google Scholar.

9 589 F.2d at 873.5 589 F.2d at 884.

10 In Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952); and Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886), the U.S. Supreme Court held that illegal arrest of a defendant did not deprive U.S. courts of jurisdiction over the defendant for crimes committed by such defendant within the jurisdiction of the United States or an individual state; reaffirmed in Gersten v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975). The illegality of the arrest in Ker v. Illinois consisted in the forcible abduction of defendant from Peru without resort to extradition procedures.

11 In Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933), the U.S. Supreme Court held that seizure of a foreign vessel in violation of a treaty between the United States and the flag state defeated jurisdiction of the courts of the United States over the vessel in proceedings against the vessel. The opinion of Justice Brandeis rested, inter alia ,on Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927), in which the Court upheld a conviction of British subjects of a conspiracy to violate the National Prohibition Act, although defendants claimed that the seizure of the vessel on which they were located at the time of their arrest was unlawful because they were not within the zone of the high seas prescribed by the same treaty involved also in the Cook case. Mr. Chief Justice Taft intimated that if that issue had been raised by a timely plea to the jurisdiction of the court, the Court might have made a different disposition of the case.

The issue whether the ship was seized within the prescribed limit … only affected the right of the court to hold [defendants’] persons for trial… . The proper way of raising the issue of fact of the place of seizure was by a plea to the jurisdiction…. And a plea was not filed.

273 U.S. at 606

12 49 Stat. 1820. The purpose of that legislation, which was endorsed by the Department of Commerce and the Treasury, is explained in the report of the Committee on Merchant Marine and Fisheries on H.R. 12305, H.R. REP. NO. 2452, 74th Cong., 2d Sess. (1936). It was occasioned by certain dicta in Maul v. United States, 271 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 171 (1927). While that case involved the seizure on the high seas of an American vessel, the statute extended to “any vessel, subject to the jurisdiction or to the operation of any law, of the United States.” The scope of the new jurisdiction of the Coast Guard over foreign vessels on the high seas was not discussed in the congressional report. No record of the hearing is still available.

13 589 F.2d at 878.

14 Id. at 884. The panel in U.S. v. Postal apparently was unaware of the fact that its line of reasoning had been anticipated, more than 180 years earlier, by Mr. Justice Iredell, when he sat as judge on the Circuit Court for the District of Virginia in the case of Ware v. Hylton ,but that it had been rejected by the U.S. Supreme Court when the case came before that Court on writ of error; 3 U.S. (3 Dall.) 199, 1 L.Ed. 568 (1796). That celebrated controversy involved the self-executing character of Article IV of the Treaty of Peace with Great Britain of 1783, which provided “that creditors of either side shall meet with no lawful impediments to the recovery of … all bona fide debts.” Mr. Justice Iredell, adopting the distinction between executed and executory treaty provisions suggested by one of the counsels for the British plaintiffs, concluded that the article in question called for legislation by the individual states repealing inconsistent legislation because such action would have been necessary under British law; 3 U.S. 256, 279. The Supreme Court nevertheless held that the intent and purpose of Article IV was to nullify directly all existing impediments. Chief Justice Marshall, who was one of the counsels for the American debtors in Ware v. Hylton ,did not resurrect Justice Iredell's analysis when he forged the intent test in his seminal opinions in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 7 L.Ed. 415 (1829), and United States v. Percheman, 32 U.S. (7 Pet.) 51,8 L.Ed. 604 (1833).

The conclusions of the panel in U.S. v. Postal as to the non-self-executing nature of Article 6 of the Convention on the High Seas were cited with apparent approval by the majority opinion of the Court of Appeals for the Fifth Circuit, sitting en banc in U.S. v. Williams, 617F.2d 1063(5thCir. 1980), after the grant of a rehearing, 600 F.2d 18(5thCir. 1979),following the panel decision in that case, 589 F.2d 210 (5th Cir. 1979). U.S. v. Williams ,however, involved the seizure on the high seas of a foreign vessel whose flag state was not a party to the convention and, moreover, had consented to the search and seizure by the Coast Guard. A concurring opinion of 6 members of the court disassociated itself from the majority and relied exclusively on that consent, especially since “the law of nations generally does not afford individuals remedies against violations of international law“; 617 F.2d at 1092 n.9. Another group of 4 judges, speaking through Judge Rubin, dissented, and noted expressly that they “differ with the majority's analysis of international law and the discussion of self-executing treaties“; 617 F.2d at 1094 n.2.

15 The Preliminary Title to the Spanish Civil Code was revised by the Spanish Law 3/1973, March 17, 1973, and the Decree 1.836/1974, May 31, 1974. The new Article 1(5) provides as follows: “The legal rules contained in international treaties have no direct application in Spain, unless they have come to form part of the domestic legal order by means of their publication in their entirety in the Official Bulletin of the State” (translation by the author). For a detailed analysis of this provision and its background, see Gonzales-Campos, Commentary to Article 1(5) ,in Varios Autores, Comentarios a Las Reformas Del Código Civil y La Ley De 2 De Mayo De 1975, at 78-131 (Amorós Guardiola et al., Madrid 1977). The reform in 1974 of the status of treaties was one of the last steps in the series of measures taken since 1942 to define governmental powers and functions under the previous regime, including the treatymaking process as regulated by the important Decree 801/72 of March 24, 1972; see Gonzales-Campos, supra note 15, at 84-86. Article 96(1), first sentence, of the new Constitution of 1978 retains the provision of the Civil Code in slightly modified language: “Los tratados internacionales válidamente celebrados, una vez publicados oficialmente en Espańa formáran parte del ordinamento interno” (Validly concluded international treaties, once officially published in Spain, form part of the domestic law). For further commentaries, see Alzaga Villaamil, Comentario Sistemático a La Constitución Española De 1978, comments to Art. 96 (1978); Santaolalla López, F., Los Tratados comofuente del Derecho en la Constitucion, 90 Rev. De Administración PÚblica 7 (1979)Google Scholar.

16 See especially Claudy, , The Treaty Power and Human Rights, 36 Corn. L.Q. 699, 713–28 (1951)Google Scholar; Evans, , Some Aspects of the Problem of Self-Executing Treaties, ASIL, 45 Proc. 66 (1951)Google Scholar; Evans, , Self-Executing Treaties in the United States of America, 30 Brit. Y.B. Int'l L. 178 (1954)Google Scholar; Preuss, , The Execution of Treaty Obligations Through Internal Law—System of the United States and of Some Other Countries, ASIL, 45 Proc. 82 (1951)Google Scholar; Preuss, , On Amending the Treaty-Making Power: A Comparative Study of the Problem of Self-Executing Treaties, 51 Mich. L. Rev. 1118 (1953)Google Scholar; Reiff, , The Enforcement of Multipartite Administrative Treaties in the United States, 34 AJIL 661, 668–79 (1940)Google Scholar.

17 Bleckmann, , Begriff und Kriterien der innerstaatlichen Anwendbarkeit völkerrechtlicher Vertröge, in 123 Schriften Zum Offentlichen Recht (1970)Google Scholar; Roller, A., Die unmittelbare Anwendbarkeit völkerrechtlicher Vertröge und des EWG-Vertrages im innerstaatlichen Bereich, in 8 Schweizerische BeitrÄge Zum Europarecht (1971)Google Scholar; M. Waelbroeck, Traites Internationaux Et Juridictions Internes Dans Les Pays Du Marche Commun (1969); Wildhaber, Treaty-Making Power and Constitution ,in Schriftenreihe Des Instituts für Internationales Recht und Internationale Beziehungen (Univ. Basel, Heft 16, 1971); de Visscher, P., Les Tendences international des constitutions modernes, 80 Recueil Des Cours 511, 558–63 (1952 I)Google Scholar; Winter, , Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law, 9 Comm. Mkt. L. Rev. 425 (1972)Google Scholar.

18 Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27, Arts. 31 and 32, reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

19 See Report of the International Law Commission on its twenty-ninth session, ch. II, [1977] 2 Y.B. Int'l L. Comm'n, pt. 2, at 13 et seq.

20 Id., proposed Art. 21.

21 Id., proposed Art. 20.

22 Commentary to Art. 21, supra note 19, at 19.

23 Ibid.

24 Commentary (4) to Art. 20, supra note 19, at 13.

25 Commentary (3) to Art. 20, supra note 19, at 12.

26 516 UNTS 205, 214, 15 UST 1606, TIAS No. 5639.

27 Commentary (3) to Art. 20, supra note 19, at 12.

28 E.g. ,Canada and the United Kingdom. See A. M. Jacomy-Millette, L'introduction Et L'application Des Traites Internationaux Au Canada (1971); A. E. Gotlieb, Canadian Treaty-Making (1968).

29 I.e. ,the treaty must aim at the domestic effects of that type and be specific enough not to need further concretization by domestic action. See Riesenfeld, , Note on The Doctrine of Self- Executing Treaties and GATT: A Notable German Judgment, 65 AJIL 548 (1971)CrossRefGoogle Scholar.

30 It seems to be settled that very few, if any, areas are constitutionally withheld from the reach of self-executing treaties. See, e.g., Riesenfeld, , The Power of Congress and the President in International Relations: Three Recent Supreme Court Decisions, 25 Calif. L. Rev. 643, 651 (1937)CrossRefGoogle Scholar, listing the appropriation of money and the imposition of penalties for criminal offenses as such subjects. See also U.S. v. Postal, 589 F.2d at 877 and authorities cited.

31 Austrian Const., Art. 50, as amended in 1964. See L. Adamovich, Handbuch Des Österreichischen Verfassungsrechts 331, 368-76 (6th ed. 1971).

32 See M. Waelbroeck, supra note 17, at 51 and 52.

33 See the discussions of the need for and form of the legislative approval in various countries by Bleckmann,sM/>ra note 17, at 186-96; M. Waelbroeck, supra note 17, at 47-121; Wildhaber, supra note 17, at 35-59. In Austria the approval by the National Council is not a law but merely a resolution since in that instance the Council does not “act together with the Federal Council,” as Article 24 of the Austrian Constitution requires for legislation; see L. Adamovich, supra note 31, at 331.

34 This does not apply to Austria where the assent resolutions, not being legislation, are not published as such; see Bleckmann, supra note 17, at 188. Treaties, however, that require assent by the National Council must be promulgated with reference to the approval of the National Council and published in the Gazette of Federal Laws; Austrian Const., Arts. 48 and 49

Most countries require publication of treaties, especially before they are capable of creating individual rights and duties; M. Waelbroeck, supra note 17, at 123-40; Wildhaber, supra note 17, at 205, 208, 210, 214, 216, 218, 223; Alzaga Villaamil, supra note 15, in comments to Art. 96 of the Spanish Constitution. In the United States, treaties are proclaimed by the President and published pursuant to the act of Sept. 23, 1950, 64 Stat. 979. See Reiff, , The Proclaiming of Treaties in the United States, 30 AJIL 63 (1930)Google Scholar.

35 The “dual effect” doctrine was adopted by the German Constitutional Court, e.g. ,in the case 2 BvL 3/68, 30 BVerfGE 272, 7 Fontes Juris Gentium A II, at 97 (1971). See M. Waelbroeck, supra note 17, at 67.

36 This position is taken by the Federal Court of Switzerland and by Swiss authors, in view of the special mandate of Article 113, para. 3 of the Swiss Constitution. See Roller, supra note 17, at 64-67, 113.

37 See Etat Beige, Ministre des Affaires Economiques c. Soc. An. “Fromagerie Franco- Suisse Le Ski,” 158 Pasicrisie Beige 886 (Cour de cass. 1971); Administration des Douanes c. Soc. Cafés Jacques Vabre et S.A.R.L. J. Weigel & Cie., [1975] J.D. 497 (Cour de cass., Ch. mixte 1975); Case No. 2 BvL 52/71, 37 BVerfGE 271 (B. Verf. G. 1974); Frontini et al., 18 Giurisprudenza Costituzionale 2401 (Corte cost. 1973).

38 Spanish Const, of 1968, Art. 96(1). See Santaolalla Lopez, supra note 15, at 16.

39 Austrian Const., Art. 50. The European Convention on Human Rights was given constitutional rank by the constitutional amendment of 1964. See Khol, , The Influence of the Human Rights Convention on Austrian Law, 18 Am. J. Comp. L. 237, 241, 243 (1970)Google Scholar.

40 See supra note 34. Whether absence of publication defeats applicability in domestic courts is decided differently in the various countries; see Wildhaber, supra note 17, as cited in note 34.

41 See especially Bleckmann, supra note 17, at 189.

42 Thus Italy has attributed domestic cognizability to provisions of the GATT that in other nations are not deemed to be self-executing; see Bleckmann, supra note 17, at 25.

43 In many nations the legislature may only vote yes or no and may not add conditions, such as the negotiation of amendments or the formulation of reservations by the executive. In France the matter is controversial; see Wildhaber, supra note 17, at 40.

44 This was done in Austria by means of the constitutional amendments of 1964. See L. Adamovich, supra note 31, at 374; Ermacora, Die UN-Menschenrechtspakete, JUR. BL. 1979, issue 7/8.

45 For that reason, President Carter's request in his Message of Feb. 23, 1978 (S. EXEC. Docs, C, D, E, and F, 95th Cong., 2d Sess., at iv, viii, xi, and xv) that the United States Senate give advice and consent to the ratification of the three UN human rights conventions transmitted, subject to the declaration by the United States that a number of provisions specifically listed are not self-executing, is both infelicitously phrased and not conclusive for the appropriate interpretation of the articles involved on either the international or the domestic level. In the absence of a valid reservation or a joint resolution mandating an authentic interpretation, the proper construction of the domestic effects of a treaty provision rests with the courts. For doubts on the validity and effect of the declaration, see also Weissbrodt, , United States Ratification of the Human Rights Covenants, 63 Minn. L. Rev. 35, 70 (1978)Google Scholar.

46 In nations which do not recognize self-executing treaties, the mandated domestic cognizability is usually achieved by the necessary legislation prior to the effective date of the ratification. The United States has occasionally pursued this technique. Perhaps the most famous instance is the ratification of the International Convention for the Unification of Certain Rules Relating to Bills of Lading, signed at Brussels, Aug. 25, 1924, 51 U.S. Stat. 233, TS No. 931, 2 Bevans 430. The first advice and consent to the ratification of this convention was given by the Senate on April 1, 1935, subject to an “understanding,” referred to by the Senate as a “reservation,” as to liability per unit. 76 Journal of the Executive Proceedings of the Senate, 74th Cong., 1st Sess. 492,493 (1935). Prior to the execution and deposit of the instrument of ratification, Congress enacted the Carriage of Goods by Sea Act, 49 Stat. ch. 299, p. 1207 (1936), which incorporated the provisions of the convention with minor clarifications and coordinating additions. As a result, the President resubmitted the convention to the Senate. The Senate repeated its former resolution, adding a further provision designated as an “understanding,” specifying “[t]hat should any conflict arise between the provisions of the convention and the Act of April 16, 1936, known as Carriageof Goods by Sea Act the provisions of that Act shall prevail“; 78 Journal of the Executive Proceedings of the Senate, 75th Cong., 1st Sess. 278, 316, 324 (1937). The President ratified the convention subject to the two understandings. In transmitting the instrument of ratification to the depositary government, the U.S. Embassy annexed a State Department “Memorandum of Comparison,” indicating the differences in the wording of the statute and the convention, ending with the comment:

The differences from the Convention made in the Carriage of Goods by Sea Act are intended primarily (1) to clarify provisions in the Convention which may be of uncertain meaning, thereby avoiding expensive litigation in the United States for the purpose of interpretation and (2) to coordinate the Carriage of Goods by Sea Act with other legislation of the United States.

51 Stat. 233, 261, 269, 274 (1937). In properly assessing the legal effects of this “understanding,” notice must be taken of the protocol annexed to the convention as an integral part thereof, which provided: “The high contracting parties may give effect to this convention either by giving it the force of law or by including in their national legislation in a form appropriate to that legislation ,the rule adopted under this convention” (emphasis added). In other words, the domestic cognizability of the convention rules could be subject to appropriate formulation. The “understanding” exercised that option and conditioned the domestic applicability of the convention on the absence of any conflict with the prior legislation.

47 A declaration, as contrasted with a reservation, does not purport to modify the legal effect of a treaty provision; cf. Vienna Convention on the Law of Treaties Art. 2(1) (d). It is significant for the international interpretation of a treaty provision only as provided by Article 31(2) and (3) of the Vienna Convention. In the domestic sphere the ultimate power of interpretation rests with the U.S. courts; Sullivan v. Kidd, 254 U.S. 433, 41 S.Ct. 158, 65 L.Ed. 344 (1921); Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218 (1916). Since Congress, by statute or joint resolution, may abrogate the internal applicability of a treaty provision, it may do so in form of an authoritative interpretation. A Senate resolution, however, not resulting in a binding treaty amendment, cannot have this effect. See Fourteen Diamond Rings v. United States, 183 U.S. 176, 182, 22 S.Ct. 59, 46 L.Ed. 138 (1901, cone, op.); United States v. American Sugar Co., 202 U.S. 563, 26 S.Ct. 717, 50 L.Ed. 149 (1906).

48 The position here taken does not accept the views of Professor Schachter in International Human Rights Treaties: Hearings before the Senate Comm. on Foreign Relations ,96th Cong., 1st Sess. 278 (1979). The witness stated that a declaration by the President made pursuant to the Senate's advice and consent to the ratification on that condition “would very likely render the [respective] Treaties non-self-executing,” without amounting to a reservation. The declaration “would constitute an authoritative political decision” which would be binding on the courts “on the way in which the Treaty should be given effect in the United States.” Schachter admitted:

One may possibly argue that this political decision would be contrary to the Constitutional mandate that treaties shall be the supreme law of the land since the declaration would have the effect of preventing the Treaty from being treated as the law of the land until implementing legislation were enacted.

But while Professor Schachter conceded that “this argument is not entirely devoid of merit,” he suggested that “it is not likely to be accepted in view of the precedents in which executive and congressional determinations that treaty provisions are not self-executing have been given full effect.” Of course if “congressional” means action by both Houses to take effect after the ratification, no authority needs to be cited. But there are no conclusive precedents which give effect to a political decision by the President or the Senate alone, unless that decision is incorporated in a permissible or accepted reservation. Schachter unfortunately did not disclose his precedents. The cases cited in Henkin, Foreign Affairs and the Constitution (1972), ch. V, n. 23 in support of the proposition that the Senate can decide that the treaty shall not apply domestically until Congress has legislated are not apposite because they (1) concern bilateral treaties where a communicated and accepted declaration may modify the scope of the respective treaty provision; (2) mandated formal amendments; (3) affected revenues, which may be one of the subjects constitutionally outside the reach of self-executing treaties; and (4) specifically postponed the effect of the treaty until legislation was enacted. All this was clearly stated in Jurisdiction of the Senate to Act Upon Reciprocity Treaties ,S. Doc. No. 47, 57th Cong., 2d Sess. (1902). Of course, to the extent that a treaty itself postpones certain effects until the passage of necessary legislation, the treaty is not self-executing by its terms; see Convention between Mexico and the United States on the Solution of the Problem of the Chamizal, Aug. 29, 1963, 15 UST 21, TIAS No. 5515, Art. 6. But the mere fact that a treaty by its terms mandates a result by legislation should not be sufficient to destroy its self-executory nature; but cf. Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979).

49 See, e.g. ,Ware v. Hylton, 3 U.S. (3 Dall.) 199, 1 L.Ed. 568 (1796); The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964).

50 As to the present status of the Law of the Sea Conventions, see United Kingdom-France Continental Shelf Arbitration, Decision of 30 June 1977, para. 47', reprinted in 18 ILM 397, 417 (1977).

51 1589 F.2d at 881.

52 As was mentioned before (see text at note 12), the court considered the jurisdictional grant over “vessels subject to the jurisdiction, or to the operation of any law, of the United States,” 14 U.S.C. §89 (a), as a grant of enforcement jurisdiction over foreign flag vessels on the high seas. It followed in that respect recent constructions of that statute by other panels of the court; United States v. Cadena, 585 F.2d 1252, 1259 (5th Cir. 197'8), rehearing denied ,588 F.2d 100 (5th Cir. 1979); and United States v. Cortes, 588 F.2d 106 (5th Cir. 1979). Prior case law had applied that statute only to domestic vessels; see authorities cited in United States v. Cadena, 585 F.2d at 1257. Moreover, 18 U.S.C. §7(1) defining the special maritime jurisdiction of the United States (in the sense of legislative jurisdiction), although phrased as including “the high seas … and any vessel belonging in whole or in part to the United States or any citizen thereof,” has been held not to cover foreign vessels; U.S. v. Cadena, 585 F.2d at 1259. While this restriction is not dictated by the text or the statutory history and is probably subject to reconsideration, especially if compared with the increased scope of the special aircraft jurisdiction of the United States, as defined in 18 U.S.C. §7(5) and 49 U.S.C. §1301(34) (see Chumney v. Nixon, 615 F.2d 389 (6th Cir. 1980)), it certainly cannot be assumed that the State Department witnesses were cognizant of the potential scope of these statutes.

53 See the comments on the authority of the “suggestion” by the panel that decided U.S. v. Cadena, 585 F.2d at 1260 and n.17, made by the panel that decided U.S. v. Postal, 589 F.2d at 884 and n.35.

54 Convention on the High Seas, supra note 2, Art. 5.

55 This follows from the statement of facts by the court; 589 F.2d at 886.

56 It is not unusual and is authorized by statute to seek the prior consent of the foreign flag state to the boarding and seizure of a vessel having the nationality of that state. Such consent would remove the illegality of the enforcement; United States v. Williams, 589 F.2d 210, 212 n.1 (5th Cir. 1979), 617 F.2d 1062 (5th Cir. 1980, en banc on rehearing); United States v. Dominguez, 604 F.2d 304 (4th Cir. 1979); United States v. Rubies, 612 F.2d 397, 403 (9th Cir. 1980). There is no reason why subsequent assent to the seizure should not have the same effect.

57 Even when the case was brought to the U.S. Supreme Court by petition for a writ of certiorari the Department of Justice argued against the self-executing nature of Article 6, without having sought or urging that advice be sought from the Department of State as to the foreign policy implications of such a position; Brief for the United States in Docket No. 78-1714.

58 472 F.Supp. 490 (D.N.J. 1978).

59 Id. at 542.

60 92 Stat. 808 (1978). The act formally repealed certain statutes superseded by the Vienna Convention on Diplomatic Relations and provided, inter alia ,for the dismissal of any action or proceeding against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention; §§3(a) and 5.

61 See, e.g. ,Dreyfuss v. Von Finck, 534 F.2d 24 (2d Cir. 1976) (customary international law); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979) (treaty provisions); Canadian Transport Co. v. United States, 430 F.Supp. 1168, 1172 (D.D.C. 1977) (treaty violation). For a praiseworthy contrast, see the recent judgment of the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala of June 30, 1980,49 U.S.L.W. 2039 (1980), reprinted in 19 ILM 966 (1980). 1 Resolution 461 (1979), adopted by the Security Council at its 2184th meeting, Dec. 31,1979, reprinted in 19 ILM 250 (1980). 2 UN Doc. S/13735 (Jan. 10, 1980). See also UN Doc. S/PV.2191, at 2 (Jan. 11, 1980). 3 UN Doc. S/PV.2191/Add.1, at 54-55 (Jan. 13, 1980).