| This Article seeks to resituate international comity as a conflict of laws doctrine. Nowadays, international comity encourages U.S. courts to apply foreign law in certain cases or to limit domestic jurisdiction in order to defer to the sovereignty of foreign states and their courts. Comity is important to U.S. courts in transnational cases, and its importance will continue to increase as more international issues creep into domestic litigation. In 1789, the Alien Tort Statute enabled the U.S. courts to exercise jurisdiction on the civil litigations raised by non-U.S. citizens, concerned with tort actions that violate the international law or the treaties that the U.S. had officially entered into. And in the case of Khulumani v. Barclay National Bank , the South African Apartheid Law was filed for alleged violations of the Alien Tort Statute, and the case is currently pending before the United States Court of Appeals for the Second Circuit. By reviewing and evaluating that case and others, the Article shows that courts use the comity doctrine in many circumstances without considering its historical position as a conflict of laws doctrine. In so doing, courts obscure the doctrine's foundation in conflicts jurisprudence and, thus, obscure the doctrine's main historical purpose, which was to ameliorate the conflict between sovereigns and their laws. This non-conflicts approach leads courts to give only cursory consideration to governmental interests and obscures the ultimate question in transnational cases where a conflict of sovereign power is presented: is there a conflict between sovereigns that counsels in favor of judicial deference through comity? Resituating comity within the conflict of laws tradition provides a more principled basis for applying the doctrine through bringing sovereign interests to light. Applying comity in this way also reveals the complex political and international relationships concerns in many transnational cases. |
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