It has not been established with sufficient clarity and certainty whether a state commits a breach of international law by breaking a contract made by it with an alien. The question needs an answer. It is not one of an entirely theoretical nature. On the answer to it will depend many important consequences. There are four of special significance. First, if the breach of contract is characterized as a breach of international law, the final arbiter of the question whether there had been a breach of contract and of the extent of that breach would be an international court whether as a court of last resort or otherwise. This is the natural consequence of the fact that it is the organs of enforcement of international society that have the power of finally determining questions relating to the breach of legal norms belonging to that society. Municipal courts would not have the final decision. Secondly, the norms applicable by an international court in making such a decision would be the norms of international law and not necessarily the rules of a municipal system of law. International rules should, of course, be applied in determining whether there has been a breach of international law. Thirdly, questions of evidence and procedure relating to the contract would be governed by international law.

Enacted in 1921, the United States law on dumping in international trade was regarded at the time as a “model of draftsmanship.” Present-day technicians are content with its provisions, though they do not echo this encomium. But the reader who approaches the nine closely written pages of the law’s text for the first time is likely to find the experience rather terrifying. These nine pages can be roughly summarized as follows. The Act comes into operation when a foreign producer sells to United States importers at a price less than that which he charges purchasers in his own country, with resultant injury to United States industry. When this is the case, a dumping duty is assessed on the imports, measured by the price differential which has been found.

Banco Nacional de Cuba v. Sabbatino is a seminal decision, interpreting significantly the role of a domestic court in an international law case. At the same time, it avoids reaching definitive results. Very little is settled once and for all by the Supreme Court. This realization prompts caution. Sabbatino will not yield an authoritative interpretation, except, perhaps, as a consequence of subsequent Supreme Court decisions. A commentator must be content, therefore, with the less dramatic claims of provisional and partial analysis. Those that claim more are misleading us. The complexity of Sabbatino is almost certain to poison hordes of over-clarifiers who are descending upon this major judicial decision as vultures upon a freshly dead carcass.

The material for this section has been prepared by a committee consisting of Harold S. Burman, Stanley L. Cohen, Thomas T. F. Huang, and Sylvia B. Nilsen, under the chairmanship of Richard B. Bilder, all of the Office of the Legal Adviser, Department of State. Mr. Alfred P. Rubin, of the Office of the General Counsel, Department of Defense, has provided the committee with material originating in the Department of Defense.