[*]Darrel C. Menthe, J.D. Stanford '96, is a litigation associate in the Los Angeles office of Fried, Frank, Harris, Shriver & Jacobson. This article would not have been completed without the help of many people, a few of whom deserve special recognition and acknowledgement here. My heartfelt gratitude goes to Margaret J. Radin, without whose support and guidance this article would never have been completed, to David Lange, Patrick Eagleman and the MTTLR staff, for an incisive but merciful edit, and to Ward Breeze, whose loyal encouragement was in no small measure responsible for the submission of this piece.

[1]The term "cyberspace" is sometimes treated as a synonym for the Internet, but is really a broader concept. For example, we know exactly how the Internet began, but not at what point the connections between a few domestic computers metamorphosed into a global virtual community that we now call cyberspace. The term "cyberspace" emphasizes that it can be treated as a place. William Gibson is credited with coining the term in his novel Neuromancer. Gibson's concept included a direct brain-computer link that gave the user the illusion of vision, moving about in the data "matrix" to obtain information. See William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 WAKE FOREST L. REV. 197, 198 n.5 (1995).

[2]In his book Wyrms, science fiction author Orson Scott Card describes a most remarkable place called Heffiji's house, which could have been a metaphor for cyberspace. Heffiji had a sign on her house reading "Answers" that lured many curious people. She asked questions of all her visitors and wrote the answers down on scraps of paper. These scraps of paper were scattered all around her enormous house. Unfortunately she had no brain, so she could not learn anything. She did, however, know where she had put the pieces of paper, and you could learn anything from her if you asked the right question. ORSON SCOTT CARD, WYRMS 165-188 (1987).

[3]Reno v. ACLU, 117 S.Ct. 2329, 2334-35 (1997).

[4]It is hornbook custom to cite The Paquete Habana for the proposition that, "international law is part of our law." The Paquete Habana, 175 U.S. 677 (1900).

[5]RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, § 401 (1987).

[6]Id. § 402.

[7]Id. § 403.

[8]Public Prosecutor/Y., HR May and September 1957, 24 Int'l L. Rep. 264, 265 (1957).

[9]United States v. Rodriguez, 182 F. Supp. 479 (S.D. Cal. 1960).

[10]Jus cogens "compelling law" means a peremptory norm of general international law from which no derogation is permitted. JOSEPH M. SWEENEY ET AL, THE INTERNATIONAL LEGAL SYSTEM 1003-8 (1988).

[11] See, e.g., U.S. CONST. art. I, § 8, cl. 10 (granting Congress the right "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations").

[12]The court will construe U.S. law to conform to international law where possible. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 114 (1986).

[13]I speak here of "one-to-many" Internet communications, rather than direct ("one-to-one") communication over the Internet, such as email. I will address the latter topic later in the paper. Suffice it to say now that these direct communications do not present the same conflict of law problems as general postings to the world.

[14]Interacting may involve considerably more than downloading, but it always involves the act of downloading.

[15]Reno v. ACLU, 117 S.Ct. 2329, 2346-48 (1997).

[16] The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812). We can ignore for now the question of whether the ship's status as a war vessel was dispositive. The "temporary presence" doctrine was elaborated in later cases.

[17]See Letter, Secretary of State to United States Ambassador to Mexico. Department of State, Washington, November 1, 1887 (reprinted in part in, JOSEPH SWEENEY, ET AL., THE INTERNATIONAL LEGAL SYSTEM 90-93) (emphasis added).

[18]Id. (emphasis added).

[19]Memorandum of Minnesota Attorney General (July 18, 1995) (reproduced at <http://www.state.mn.us/ebranch/ag>).

[20]See Maritz v. Cybergold, 947 F. Supp. 1328 (E.D. Mo. 1996); Minnesota v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (1997).

[21]Granite Gate, 658 N.W.2d at 718.

[22]Minnesota's long-arm statute permits courts to assert jurisdiction over defendants to the extent that federal constitutional requirements of due process allow. MINN. STAT. § 543.19 (1997).

[23]MINN. STAT. ANN. § 609.025(3) (West 1987).

[24]Florida Attorney General, Formal Opinion: AG0 95-70 (Oct. 18, 1995).

[25]See Alexander Murray v. Charming Betsy, 6 U.S. 64, 118 (1804).

[26]Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 143 (1938); but see Nielsen v. Johnson, 279 U.S. 47, 52 (1929).

[27]U.S. CONST. art. VI, cl.2.

[28]Comity is the respect courts accord one another and the laws of other sovereigns. Like forum non conveniens, it is (in common law countries) a judge-made doctrine for declining jurisdiction. Civil law countries invoke comity more with statute than sua sponte court action. See generally Brian Pearce, The Comity Doctrine as a Barrier to Judicial Jurisdiction: A U.S.-E.U. Comparison, 30 STAN. J. INT'L L. 525 (1994).

[29]International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

[30]RESTATEMENT (SECOND) OF FOREIGN RELATIONS § 18 (1965).

[31]With today's technology, one can easily access an Internet account from any other server in the world, by use of "telnet" and "rlogin" commands over the UNIX platform. In the future, data exchange through the Internet will presumably be easier and more transparent. Indeed, it is not a far-fetched idea to have a universal server utilizing hard drive space around the world for storage, the way a single hard drive stores data all over its dozens of sectors.

[32]The term "gif" file refers to pictures saved in the Compuserve format.

[33]Picture a computer screen full of links, each one subject to the laws of at least one other jurisdiction, and the webpage itself subject to the law of its server on top of all that. Among other things, one shudders to consider the First Amendment analysis of a law criminalizing the HTML command, <a href = "www.university.edu/~homepage">, or the random link.

[34]RESTATEMENT (SECOND) OF FOREIGN RELATIONS § 403(1) (1965). "Even when one of the bases for jurisdiction . . . is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable."

[35]See William Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 WAKE FOREST L. REV. 197 (1995) (arguing that current legal structures are inapplicable to cases arising in Cyberspace, and calling for the creation of separate jurisdictions defined by "virtual communities" in order, for example, to define "community standards" for the purposes of pornography law).

[36]Sysop means "system operator," also often referred to as a system administrator, with no apparent thought to the inconsistency. System administrators often have very little control over the system, and indeed can often barely keep it running.

[37]The ascribed nationality of corporations is a study in itself. The U.S. government is particularly willing to ascribe nationality liberally to its corporations acting abroad. For an example, see the case of Dresser France and the Soviet Pipeline. Clyde H. Farnsworth, Company Loses in Plea to Prevent Penalties on Soviet Pipeline Sale, N.Y. TIMES, Aug. 25, 1982, at A1.

[38]A relic of cyberspace's beginnings in the worldwide scientific community is that the primary language of cyberspace is English. The monolingual nature of cyberspace is changing as it becomes "inhabited" by ordinary people around the world. As this happens, the ability of a government to regulate its nationals, and thereby most of what appears in cyberspace in the national language, will surely seem much more valuable than territorial jurisdiction. The history of the printing press is illustrative. Ordinary publishing began as a trans-European Latin language venture in the 16th century. By the end of the 17th Century, international book commerce had given way to broad national vernacular markets. See BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM 25 (1983).

[39]Reno v. ACLU, 117 S.Ct. 2329 (1997).

[40]"Spamming" is Internet jargon for sending multiple copies (hundreds or thousands) of a message to an email address in order to clog that person's electronic mailbox and effectively paralyze that person. As this author is aware from personal experience, spamming is a very effective tactic. Note: spamming can also mean to send thousands of copies of a single piece of e-mail to thousands of recipients, either through e-mail or through newsgroups, as a form of bulk mailing (i.e. Internet junk mail).

[41]There is a special provision in the Antarctic Treaty for exchanges of scientists and observers. These individuals are subject only to their own national law. Antarctic Treaty, Dec. 1, 1959, art. VIII § 1, 12 U.S.T. 794, 402 U.N.T.S. 71 [hereinafter Antarctic Treaty].

[42]See, e.g., Beattie v. United States, 756 F.2d. 91 (1984). The court permitted a lawsuit claiming negligence of U.S. Air Traffic controllers at McMurdo Station, Antarctica.

[43] Christopher Blakesley, Criminal Law: United States Jurisdiction Over Extraterritorial Crime, 73 J. CRIM. L. 1109, 1110, n6 (1982).

[44]There actually was a floating island. Fletcher Ice Island (T-3) is 99% ice, 7 miles wide, 4 miles across, and 100 feet thick. No mere iceberg, it was sighted by an American in 1947, and has been occupied by the US since 1952. Fletcher Ice Island meanders around the Arctic Ocean. In 1961, for example, it was grounded on the Alaskan coastline near Point Barrrow. In 1970, it was in the Baffin Sea, 305 miles from Greenland (Denmark) and 200 miles from Ellesmere Island (Canada). That year, Mario Jaime Escamilla was convicted of involuntary manslaughter in a U.S. Federal court for the shooting death of Bennie Lightsey while both were on Fletcher Ice Island. Bizarrely, the court of appeals reversed and remanded the case on procedural grounds, after first noting that it was "unable to decide" the jurisdictional issue. See United States v. Escamilla, 467 F.2d 341, 344 (4th Cir. 1972). That is to say that in the only recorded case of a floating island, the court was unable to endorse the "floating island" theory as a basis for jurisdiction.

[45]United States ex rel. Claussen v. Day, 279 U.S. 398, 401 (1929).

[46]HENRY GLASS, MARINE INTERNATIONAL LAW, XI PROCEEDINGS OF THE U.S. NAVAL INSTITUTE 526-7 (1885).

[47]See, e.g., Benjamin R. Barber, Global Democracy or Global Law: Which comes first?, 1 IND. J. GLOBAL LEGAL STUDIES 119 (1993).

[48]Smith v. United States 507 U.S. 197, 122 L.Ed. 2d 548, 556-57 (1993) (Stevens J., dissenting). Justice Stevens went on to claim that a theory of "personal sovereignty" held in Antarctica. "As was well settled at English common law before our Republic was founded, a nation's personal sovereignty over its own citizens may support the exercise of civil jurisdiction in transitory actions arising in places not subject to any sovereign." Id. Stevens cited Mostyn v. Fabrigas, 98 Eng.Rep. 1021, 1032 (K. B. 1774). The reader will soon note that it is the physicality of these "sovereignless regions," above any relevant legal characteristic, which makes the assertion of a similar regime for cyberspace somewhat intrepid. It is precisely this Pennoyer v. Neff view of sovereignty, presence, and power which we must learn to move beyond.

[49]Hughes Aircraft v. United States, 29 Fed. Cl. 197, 231 (1993).

[50]Smith v. United States, 507 U.S. 197, 122 L.Ed. 2d. 548 (1993).

[51]The Outer Space Treaty was based directly on the Antarctic Treaty. See section C, infra.

[52]i> Statute of the International Court of Justice, June 26, 1945, art. 38, 59 Stat. 1055, 1060.

[53]For an interesting analysis of what it means for international law to lack a metanarrative, see Barbara Stark, What We Talk About When We Talk About War, 32 STAN. J. INT'L L. 91 (1996) (reviewing THOMAS EHRLICH AND MARY ELLEN O'CONNELL, INTERNATIONAL LAW AND THE USE OF FORCE (1993)).

[54]Claiming "undiscovered" islands (with or without natives) requires a mix of history and presence. The Falkland Islands have been disputed by Britain and Spain (and Spain's successor in interest, Argentina) on largely these grounds. One could summarize the theory as follows: anything not nailed down is mine, anything I can pry up is not nailed down.

[55]See Convention on the Law of the Sea, December 10, 1982, art. 136, 21 I.L.M. 1261, 1293.

[56]See Outer Space Treaty, January 27, 1967, art. 1, 18 U.S.T. 2410, 2412-2413, 610 U.N.T.S. 205, 207-208 [hereinafter Outer Space Treaty].

[57]The UN Charter Preamble states that among the purposes of the UN is "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person in the equal rights of men and women and of nations large and small." Charter of the United Nations, Preamble. Similarly, the League of Nations Covenant guaranteed equality of member states in Article 3: "At meetings of the Assembly each member of the league shall have one vote." The Charter also states in Article 10: "The Members of the League undertake to respect and preserve as against eternal aggression the territorial integrity and existing political independence of all Members of the League."

[58]This famous work by Grotius is perhaps the seminal work in modern international law: HUGO GROTIUS, DE IURE BELLI AC PACIS [On the Law of War and Peace] (1631).

[59]The Roman mare nostrum "our sea" for the Mediterranean was the result of two centuries of no real conflicts of law, the Pax Romana. The idea of international law being a law between equal powers simply has no grounding in Roman history. Modern international law really begins with the Peace of Westphalia (1648) which endorsed a theory (a de facto result of the Thirty Years' War) that the equal sovereign states are the building blocks of the political world. Today, the notion of sovereignty and ultimately nationality is so ingrained that we imagine that every individual has a nationality just as he or she has a gender. BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM 14 (1983).

[60]Future generations may yet view the experience of "absolute" national sovereignty running from about 1650 through 2000 as a brief aberration in the political history of the earth. This kind of perspective is often lacking in discussions of the future of international law.

[61]Antarctic Treaty, art. IV, 12 U.S.T. 794, 402 U.N.T.S. 71, 75.

[62]For a history of the conflict over the Falkland Islands, see MAX HASTINGS AND SIMON JENKINS, THE BATTLE FOR THE FALKLANDS (1983).

[63]See Stephen Levy, Cypherpunks, WIRED 1.2 May-June 1993. The area of encryption technology is still in flux. See Bernstein v. United States Dept. of State, 945 F. Supp. 1279 (N.D. Cal. 1997) (striking down encryption controls on First Amendment grounds).

[64]Antarctic Treaty, art. IX, § 1(e), 12 U.S.T. 794, 798, 402 U.N.T.S. 71, 80.

[65]SIR ARTHUR WATTS, INTERNATIONAL LAW AND THE ANTARCTIC TREATY SYSTEM 169 (1992).

[66]See Antarctic Treaty, supra note64, art. VIII.

[67]Convention for the Conservation of Antarctic Seals, June 1, 1972, art. 8 § 1, 29 U.S.T. 441, 447, 11 I.L.M. 251, 256 (emphasis added).

[68]The treaty was originally to run for thirty years, from 1961-1991. Antarctic Treaty, supra note64, art. XII § 2(a). It chilled ambitions in the Antarctic with both superpowers agreeing to freezing the status of all claims. The success of the regime was demonstrated when it was renewed in 1991, after the end of the Cold War.

[69]For an excellent visual representation of the Antarctic Treaty System, see <http://www.icair.iac.org.nz/treaty/map.html> maintained by the International Centre for Antarctic Information and Research, Christchurch, New Zealand.

[70]Convention on the Regulation of Antarctic Mineral Resource Activities, June 2, 1988, art. 2, 27 I.L.M. 859.

[71]WATTS, supra note 65, at 292.

[72]Id. at 295.

[73]The Antarctic Treaty does not declare that it applies to non-signatory parties (erga omnes: against everyone). A strict positivist view of international law might hold that the treaty therefore can never apply to non-signatories. The competing viewpoint, and the one that I favor as more consonant with general principles of international law, is that the Antarctic Treaty Regime is a complicated international system built on treaties between all of the world's major powers that is developing, or ripening, into customary international law as time goes by. For this reason, if a non-signatory party violates the treaty principles, such as the ban on military use, or the Madrid protocol on environmental protection, it will meet the condemnation of a united international community. See Antarctic Treaty, supra note 64.

[74]Vienna Convention on the Law of Treaties, May 23, 1969, art. 34, 8 I.L.M. 699.

[75]Id., art. 38.

[76]Beattie v. United States, 765 F.2d 91 (D.C. Cir. 1984).

[77]Beattie was overruled in its direct holding that Antarctica was not a foreign country under the FTCA. Smith v. United States, 507 U.S. 197 (1993). Judge Scalia's dissenting opinion in Beattie became Justice Rhenquist's majority opinion in Smith. See Smith, 507 U.S. at 199-200. However, the reversal is only the tip of the iceberg. The Court's "plain meaning" reading of the FTCA in both instances ignores the role of comity. The real difference between Beattie and Smith is that the Beattie case was very important to New Zealand, and adopting Scalia's opinion would have left a grievous injury to that foreign power's nationals without a remedy, whereas Smith involved no foreign interests. Were Beattie to arise today, it is still likely that a court would find jurisdiction (whether consciously on grounds of comity or not) and afford the injured foreign nationals a remedy. Such an opinion may offend strict constructionists, such as Justice Scalia, but if the United States is to become fully integrated into the world community, its judiciary cannot take a simplistic approach to the intersection of international and domestic law. Despite widespread opinion that foreign policy is exclusively the province of the federal executive branch under the U.S. Constitution, in practice the judiciary has and exercises a role in foreign affairs. In admiralty law, maritime jurisdiction, extradition, and choice-of-law decisions, the American judiciary routinely makes decisions that affect foreign policy. To deny that the judiciary plays a role is to stick one's head in the sand, and to assert that the judiciary should not play a role is hardly a neutral principle. As George Orwell remarked in a similar vein in regard to artistic rather than judicial activity, "No book is entirely free of political bias. The opinion that art should have nothing to do with politics is itself a political attitude." George Orwell, Why I Write (1947) (reprinted in GEORGE ORWELL, A COLLECTION OF ESSAYS 313 (1953)).

[78]Mahon v. Air New Zealand Ltd, Privy Council, 1 AC 808, 3 All E.R. 201 (1984) (Opinion by Lord Diplock). The Mount Erebus disaster was the subject of parallel case in New Zealand, and was appealed out of Wellington to the Privy Council in London for a hearing on a matter unrelated to international jurisdiction.

[79]Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993).

[80]Massey, 986 F.2d at 529.

[81]Id. at 533.

[82]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].

[83]Id. at 2411.

[84]Aside from being extremely rare, this unanimous resolution represents a new multinational approach to new worlds. It is a significant improvement over the Treaty of Tordesillas 1494, in which the Pope divided the whole unclaimed world between the Spanish and the Portuguese.

[85]Hearings before Senate Committee on Foreign Relations 90th Cong. 80 (1967).

[86]Id.

[87]Outer Space Treaty, art. II.

[88]Id., art. III.

[89]The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).

[90]Brown v. Duchesne, 60 U.S. (19 How.) 183, 15 L.Ed. 595 (1857).

[91]Hughes Aircraft v. United States, 29 Fed. Cl. 197 (1993). In this case, an invention under U.S. patent was on board a foreign spacecraft in the United States preparing for launch. It was held not to be subject to U.S. law because of the "temporary presence" doctrine. The court made analogies to Antarctica as well.

[92]See Smith v. United States, 507 US 197, 205-206 (1993) (Stevens, J., dissenting).

[93]The webpage is my paradigm because the world wide web surely prefigures the future of cyberspace: a place where complex, sophisticated "sites" are maintained by individuals and organizations, rather than only commercial and governmental interests.

[94]The reader should keep in mind that none of these observations about the outer limits of jurisdiction touch on the subject of what a state may be constrained from regulating by its own constitution and laws.

[95]Whether American due process is satisfied is another inquiry altogether.

[96]The reader should note that existence of the jurisdiction to prescribe based on nationality does not guarantee that legislatures will exercise that right. It could well be that the United States does not choose to control uploaders based on their nationality, but only on their physical presence within the United States. This voluntary abstention from jurisdiction offends no principle of international law, but since exercise of jurisdiction also offends no principle of international law, the presumption of extraterritoriality should not compel U.S. courts to assume that only territorial, and not nationality-based, jurisdiction was intended by U.S. law.

[97]See infra, section IV.

[98]World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980).

[99]See Letter, supra note 17.

[100]Religious Technology Ctr. v. Netcom On-Line Communications Services Inc., 907 F. Supp. 1367 (N.D. Cal. 1995).

[101]Playboy Enterprises, Inc., v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993).

[102]Exactly when and how a "wish" materializes into something strong enough for the exercise of jurisdiction, on either the protective principle or the principle of objective territoriality, is discussed below.

[103]How much more? Probably quite a bit, given how hostile Latvian courts would be to such a proposition. Comity would play a huge role here. American law may appear to authorize jurisdiction on the basis of a long-arm statute such as Minnesota's, and it is up to the courts to recognize that the exercise of jurisdiction would violate principles of international law, and refrain from doing so.

[104]The reader should note that in personam jurisdiction may exist by service of process under the Hague Convention, and that is not the jurisdictional question at issue here.

[105]U.S. courts are probably key to accepting this theory of cyberspace because the U.S. has a history of showing little respect, or understanding, of principles of international law. For an example, see Nicaragua v. United States of America, I.C.J. Rep. 392 (1984), where the United States claimed the right to voluntarily remove itself from the jurisdiction of the World Court, to avoid an unfavorable outcome, and then ignored the court's exercise of jurisdiction and adverse judgment. Or see the U.S. invasion of Panama, and the resulting condemnation by the United Nations General Assembly (Dec. 29, 1989), or the "Helms-Burton Act," formally known as the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 22 U.S.C. § 6021 et seq. (West 1997).

[106]See, e.g.,Maritz v, Cybergold, 947 F. Supp. 1328 (E.D. Mo. 1996); Minnesota v. Granite Gate Resorts, Inc. 568 N.W.2d 715 (1997).

[107]Strict liability offenses are precisely the reason why cyberspace must be considered a fourth international space.

[108]Rindos v. Hardwick, No. 940164 (Sup. Ct. W. Austr. Mar. 31, 1994). The opinion is unpublished. See Jeremy Stone Weber, Note, Defining Cyberlibel: A First Amendment Limit for Libel Suits Against Individuals Arising from Computer Bulletin Board Speech, 46 CASE W. RES. L. REV. 235, 254 n.134 (1995) (discussing the case).

[109]The "governmental interest" test used by many states, including California, uses a different methodology more in tune with balancing the interests of sovereign states, i.e., more in tune with international law and comity. For that reason, the traditional and more troublesome lex loci test is discussed here.

[110]See Letter, supra, note17.

[111]Libel law is generally state law. The difficulty in figuring out the provisions of such a suit under each of the fifty-one jurisdictions in the United States is an example of the jurisdictional circus involved if no principle of international law can limit the exercise of jurisdiction to prescribe law based on objective territoriality by more than a hundred and fifty sovereign nations.

[112]Beattie v. United States, 765 F.2d 91 (D.C. Cir. 1984).

[113]Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 22 U.S.C. 6021 et seq. (West 1997).

[114]URL stands for Uniform Resource Locator. This is a set of words (usually preceded by http://) that serve as a designation for the numerical Internet address (such as 123.123.123.22).

[115]Miller v. California, 413 U.S. 15 (1973). It is my opinion that William Byassee is right, and that downloading obscene material from cyberspace is protected under the First Amendment by Stanley v. Georgia, 394 U.S. 557 (1969). See William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 WAKE FOREST L. REV. 197 (1995).

[116]Maritz v. Cybergold, 947 F. Supp. 1328 (1997).

[117]The Supreme Court appears willing to allow violations of international law where Congress appears to have authorized violations of international law. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992) (exercising jurisdiction over a Mexican national forcibly abducted and brought to the United States for trial -- in violation of customary international law -- because the extradition treaty with Mexico did not explicitly forbid kidnapping of Mexican nationals).

[118]The Massachusetts murder trial of Louise Woodward in October, 1997, is an example of international furor; imagine the outrage if the crime with which she was charged was not even a crime in the United Kingdom. See Commmonwealth v. Woodward, 1997 WL 694119 (Mass. Super. Nov 10, 1997).