CONFLICT OF LAW RESOLUTION IN EXTRA-TERRITORIAL CRIMINAL CASES

Transcription

1 139 CONFLICT OF LAW RESOLUTION IN EXTRA-TERRITORIAL CRIMINAL CASES Sabah Taslim 1 Abstract While crimes have traditionally been a local phenomena, globalization has changed this into a transnational nature. Making the international community operate in a way, where there are diminutive differences between the domestic laws of every polity. However, this has lead to circumstances where States have extra-territorial jurisdiction over the sovereign subject of another State. This contributes to tension between States. This paper is determined to explain how conflict of laws has arisen against the presumption of a comity. Recognizing the fact that every States jurisdiction over a subject matter can exist only relative to the Rights of another State on its territorial subjects also circumstances where the States acquire jurisdiction over a certain extra-territorial matter. By this paper, the author examines how Conflict of laws in criminal matters has been dealt. From the prism of the Comity, This paper will argue, that exercising of extra-territorial criminal matters by a State which undermines the constitutionalizing of international comity, that is deduced from the choice of law doctrine of Private International law. This paper will also suggest how fairness of due process of law can be upheld in matters of conflicts of law in criminal cases. Lastly, the need to uphold the spirit of comity of nations especially in extra territorial criminal cases. Key words : Criminal Case, Conflict of Law, Human rights, Comity, Extradition. 1 3rdYear BA.LLB,Alliance School of Law,Alliance University Bangalore

2 140 INTRODUCTION Extra territorial powers of courts are deemed to threaten the sovereignty of foreign states and also individual rights. Usually nation s criminal affairs are a domestic affair. But over the past few decades there has been an increase in prosecution where States seek to adjudicate a defendants from a different State based on their own domestic laws. All this is because, the necessary presumption of today s extra-territorial prosecution which is that; multiple bodies of criminal laws applying to a single occurrence, is wholly at odds with the classic ideal of criminal jurisdiction, that only one body of criminal law applies to a single occurrence. Therefore, exemplifying a hold over subjects of extra-territorial matter. In this regard, the defendant of another nationality in such circumstances is found between the rungs of conflict between his fundamentally personal laws of his nation and that of the state that he is subjected to for prosecution. The doctrine of conflict of laws help the defendant determine the expected substantive law that will apply to him. This article builds on the premise that, when a particular States Courts adjudicate on an extra-territorial criminal matter, which already exist on the pillars of their exiting rights, which they formerly acquired from their sovereign state; It offends the principle of comity that all nations are expected to give effect to. The decision of the Permanent Court of International Justice in SS Lotus 2 recognized a presumption in favor of exercises of extraterritoriality, in the absence of any prohibitive rule, but this was not adequate as state s right to claim jurisdiction is relative to the rights of other states 3. Also, simultaneously under such conditions, Unfairness becomes rampant in the due process involved under such adjudicatory processes. Therefore the need for uniform transnational law, which would, comprises elements of domestic and international law, dissolving traditional dichotomies between the two 4. 2 See, SS Lotus (France v Turkey) (Judgment) [1927] PCIJ (ser A) No See, eg, Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2006) Diane F Orentlicher, Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles in Thomas J Biersteker et al (eds), International Law and International Relations (Routledge, 2007) 207, 207.

3 141 This Article proceeds in four Parts. Part I introduces the obligation States have towards one another because of international comity which likely tends to avoid conflict between States. Part II leads us to the issue of conflict-of- laws in cases of criminal adjudication in extra-territorial matters and how the Courts decide on the choice of applicability of substantive laws to the defendant. Part III discusses the infirmities that arise when States assert extraterritoriality, which undermine the rule of law and do not provide adequate procedural fairness to the defendant especially as seen infamously in innumerable extradition cases; Part IV Is a subjective analysis between the established principles that determine the appropriate mode by which states can exercise criminal jurisdiction over a subject, over a proposed alternative of situs law which best upholds the sanctity of the Comity of nations. I. The Comity of Courts International comity encourages domestic courts to reinstall the comity doctrine in its conflict of law resolutions. Comity serves as a judicial canon by which States should recognize the laws of another nation, by giving regard to international duty for delivering justice to its citizen and any other person who falls under its jurisdiction. Comity as a jurisdiction principle encourages courts to apply foreign laws or limit its domestic laws out of respect for foreign sovereignty 5. Comity bridges the gap of various sovereign interests. 6 The comity of courts in criminal cases, has the most robust use of the comity doctrine in transnational cases. In furtherance of our understanding, the paper will postulate the obligation of States to uphold this intrinsic doctrine of international law. For this, further elucidation into its historic source and how it has modeled to be restructured in conflict of law resolutions will be henceforth be propounded. The birth of nation State propagated absolute rights of a sovereign over its territory 7. In due course, in the absence of an overarching law to dispose transnational cases, the jurisprudence of conflict of laws in resolving transnational cases arose 8. This dilemma provided Ulrich Huber to postulate his three axioms which he expounded for reconciling these conflicts 9. The first was the 5 Joel R. Paul, The Transformation of International Comity, 71 LAW & CONTEMP.PROBS. 19, 19 (2008). 6 Joel R. Paul, Comity in International Law, 32 HARV. INT L L.J. 1, p 5-7 (1991). 7 See Alex Mills, The Private History of International Law, 55 INT L & COMP. L.Q. 1, (2006). 8 See Friedrich K. Juenger, General Course on Private International Law, 193 RECUEIL DES COURS 119, 154 (1983). 9 ERNEST G. LORENZEN, Huber s De Conflictu Legum, in SELECTED ARTICLES ON THE CONFLICTS OF LAWS 1947.

4 142 principle of sovereignty, which claimed that every subject within the territory of a state to be subjected to the sovereign power of that State. Secondly, it held that every subject in that territory shall bound by the authority of the sovereign. Huber s view of absolute sovereignty suggested that the only law that a forum court could apply was the law of the forum. Leading to the dilemma of how conflict of law was to be resolved if application of law is only territorial. 10 This was answered by the third axiom which permitted courts to recognize foreign laws only under the conditions that it does not prejudice the laws of the Forum State 11. Therefore, by accepting the application of the laws of another country by consent and not compulsion, he reconciled the gap between the conflict of a domestic forums application of a foreign law and its sovereign predominance. This idea was heavily influenced by modern day jurist Justice Joseph Story. He propounded that the sovereign rights which extend its laws to other countries might derogate Huber s first two axioms. But the element of respect makes it an imperfect obligation as opposed to an obsolete obligation that applies to foreign laws 12. Story s theory on Comity was that it was a mediating principle that resolved the conflict of law through Sovereign consent. The comity doctrine Justice Story proposed was that the court of one sovereign might apply the laws of another sovereign due to the mutual interest and utility of the sovereign interest in the conflict. 13 Therefore, under this conception, it can be understood that courts do not exercise comity; rather, a sovereign exercises comity and it is the role of the courts to effectuate the sovereign s will. Furthermore, critically analyzing the aforementioned principle, various limitations surfaced on the question of how the courts are to determine to what an extend a foreign law can be prejudice to its own domestic laws. It was seen that comity soon became a means of subverting from foreign sovereign authority by a doctrine of judicial deference as well as a doctrine of deference to foreign states, 14 To concluded, the comity doctrine becomes necessary so that courts apply foreign laws without violating the forums sovereignty through tacit consent as 10 BERMAN, LAW AND REVOLUTION, P 45 (1983). 11 Irina V. Getman-Pavlova, The concept of comity in Ulrich Huber s conflict doctrine, The National Research University Higher School of Economics, JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS 33 [1883]. 13 Ibid Joel R. Paul, Comity in International Law, 32 HARV. INT L L.J. 1, at 25 [1991].

5 143 discussed earlier. Put in another way, Huber and Story propagated the comity principle because it preserved the absolute sovereign authority. II Conflict of laws: Choice of laws in Criminal cases Conflict of law has always been omitted from criminal cases. With globalization, national law enforcement bodies like Courts, are increasingly obliged to cooperate in order to bring criminals in light of justice. Combating transitional crimes require efforts to effectively deal with this phenomena. Especially, in the arena of substantive criminal laws 15. This recognition has been made by nations to offer mutual assistance in matters of extradition, mutual legal assistance and information sharing. With increasing occurrence of transnational crimes, It has become vital to negotiate procedures pertaining to jurisdictional conflicts and transfer of proceedings in criminal matters. 16 The unique nature of criminal cases is that it is not transitory in nature. (as distinguished from local characters of most civil cases). This ends up giving more preference to the forum laws. Despite the critical role of criminal cases, it has not been a well developed jurisprudential area as compared to conflicts in civil jurisdiction. 17 Firstly because, criminal law has always been rooted with territoriality and it was very rare for two countries domestic criminal laws to overlap. Secondly, since in civil law conflict, judicial opinions were the source of reconciliation but in matters of criminal cases, the conflict was always primarily resolved by executives. 18 Therefore, Concurrent jurisdiction therefore represents one of the core challenges of global governance. There are various theories on which States can rely on to decide the choice of laws. For instance courts could rely on the nes bes in dem principle of international law or even the 15 See Albanese, Transnational Crime and the 21st Century: Criminal Enterprise, Corruption, and Opportunity (Oxford University Press, 2011); Obokata, Transnational Organised Crime in International Law (Hart, 2010); Madsen, Transnational Organized Crime (Routledge, 2009); Reichel, Handbook of Transnational Crime and Justice (Sage, 2005); Campbell, Organised Crime and the Law: A Comparative Analysis (Ashgate, 2012). 16 Cf. Ludwiczak, Jurisdiction and Applicable Law in the EU Directive on Transfer of Proceedings in Criminal Matters (2010) NJECL Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction, 98 HARV. L. REV (1985). 18 By Adam Abelson THE PROSECUTE/EXTRADITE DILEMMA: CONCURRENT CRIMINAL JURISDICTION AND GLOBAL GOVERNANCE, UC Davis Journal of International Law & Policy, VOL 16: 1. (2010).

6 144 principle of double jeopardy 19. Or other alternatives solutions like; unanimous agreement on treaties that will state, under which circumstances of crime will States claim jurisdiction. Finally, existing tribunals such as the International Court of Justice (ICJ) could interpret customary international law as applying limits on prescriptive jurisdiction. 20 Even if that is the case, there is no certainty that such disputes will be effectively concluded. Given the fact that countries are unlikely to negotiate on jurisdiction and the ICJ would fail to resolve on jurisdiction issues as that would impinge on the interest of States. Thus, for a conducive framework, the function of resolving the conflicts in concurrent jurisdiction will remain with national courts. These courts will be thus vested with the enormous responsibility of balancing national interest of countries while settling on such matters. In its approach to find solutions in concurrent jurisdiction, the courts must give normative explanation on how it will weigh the interest of one nation against the interest of the other State. The objective being minimizing conflicts since it is clearly beneficial for both countries. For example, if State A sufferers a substantial breach of interest for the crimes committed by a person as compared to State B, it would be prudent as State A s interests would likely be advanced to a greater extent by prosecuting and adjudicating the case than would State B s interests. Through this Courts will allocate jurisdictional principals with the goal of maximizing mutual interest of States. The States interest to form prescriptive jurisdiction 21 is in contrast to what we are analyzing; which is, how should exercise of extraterritorial jurisdiction by Courts reflect the notion of promoting the States legitimate interest. This is further categorized herein below as to how States execute these interests while deciding on conflicts of criminal matters. A. Objective Principle: International law recognizes a state s authority to apply its law to any crime where any essential constituent element [of the crime] is consummated on state 19 International Covenant on Civil and Political Rights art. 14(7), Dec. 16, 1966, 999 U.N.T.S. 171 ( No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. ); see also Anthony Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, 86 WASH. U. L. REV. 769 (2009). 20 Supra note The one exception may be universal jurisdiction. Most courts and commentators treat universal jurisdiction as another form of jurisdiction to prescribe. See, e.g., Roger O Keefe, Universal Jurisdiction: Clarifying the Basic Concept, 2 J. INT L CRIM. JUST. 735, 737 (2004).

7 145 territory. 22 This clearly empowers the States to take over matters which might be beyond its jurisdiction but which gravely affects its interest. B. Personality Principle: Whether active or passive, the states confer jurisdiction under such circumstances where it is under the impression that it affects their own nationals 23. C. Protective Principle: Protective jurisdiction refers to jurisdiction over crimes committed by aliens that constitute a threat to fundamental national interests, even if no national of that State is a victim. 24 Although, The above-mentioned principles give a leeway for States to exercise Jurisdiction under the occurrence of conflict of criminal assertions, there are limits to those powers as well. This is the rule of reasonableness, also as an emerging principle of international law, 25 The preliminary presumption of courts must be against extra-territoriality application of domestic statutes, as a matter of statutory interpretation 26. But this presumption should be rebutted by conferring that the State which has had the gravest affect due to the crime should have predominance to prosecute. Prosecutors should balance carefully and fairly all the factors for and against before commencing a prosecution in each jurisdiction. Some of the factors which could be considered are 27 : The capacity the judicial system of the forum court, this is to avoid dividing the case into investigation and prosecution especially in cases of surrender of criminals to their requesting states. They should take into purview the interest of the victims, whether they will be prejudiced if prosecution will take place in any other jurisdiction. 22 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 301 (7th ed. 2008). 23 Geoffrey R. Watson, Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction, 17 YALE J. INT L L. 41, 83 (1992) (advocating for expanded extraterritorial criminal jurisdiction based on active personality principle, calling it one of the least controversial forms of extraterritorial criminal jurisdiction ). 24 Geoffrey R. Watson, The Passive Personality Principle, 28 TEX. INT L L.J. 1 (1993). 25 The Reasonableness Requirement of the Restatement of Foreign Relations Law, 22 YALE J. INT L L. 419, 420 (1997) (contesting proposition that reasonableness requirement reflects customary international law). 26 William Dodge, Understanding the Presumption Against Extraterritoriality, 16 BERKELEY J. INT L L. 85, 111 (1998). 27 Eurojust Guidelines, Annual Report 2003, Making the Decision: Which Jurisdiction Should Prosecute?, also available at:

8 146 The transparency in procuring evidence for the prosecution. Under which jurisdiction will due process of law are veraciously respected. The prosecuting should avoid preference of a certain jurisdiction merely because to avoid complying with legal requirements or even proceeds of the crime. Also, the willingness of the domestic judicial systems to investigate in transnational crimes should be in accordance to the principle of complementarily enshrined in the Rome Statute of the International Criminal Court 28. The ICC is intended to complement, not to replace, national criminal justice systems, as the principle of complimentarily is the foundation on which ICC basis its international criminal law for the prosecution of Human rights violation 29. III. Extra-territorial Criminal Jurisdiction undermines Individual Rights of Accused The comity principle protects the rights of States, but is deemed to be not adequately protecting the rights of individual. It is commonly seen, as will be discussed further that, this is more prevalent especially in cases of extradition. When States assert extraterritoriality they undermine the rule of law and do not adequately provide procedural fairness to the defendant with an absolute breach of due process of law. States are required to apply equally domestic human rights to both extra-territorial and territorial assertions of jurisdictions 30. The question of individual rights is abated since; in Extra-territorial Criminal Jurisdiction the admissibility of evidence and the recognition of penal judgment require the State Courts to apply other States laws, which becomes the crux of the problem. In addition, some infirmities in the execution stage also arise. Conflicts which undermine individual s rights like, the dilemma of recognizing between substantive and procedural laws. For example under certain questions of law apprehension about whether excluding unlawfully obtained evidence will be a matter of 28 See Kleff ner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford University Press, 2008); El Zeidy, Th e Principle of Complementarity in International Criminal Law (Brill, 2008); El Zeidy, Th e Principle of Complementarity: A New Machinery to Implement International Criminal Law (2002) 23 Mich. J. Int l L. 869; Politi and Gioia, Th e International Criminal Court and National Jurisdictions (Ashgate, 2008); Jurdi, Th e International Criminal Court and National Courts: A Contentious Relationship (Ashgate, 2011). 29 ECHR, Protocol 7, Article 4(1) and (2); ICCPR Article 14(7). 30 DANIELLE IRELAND-PIPER "Extraterritorial Criminal Jurisdiction: Does the Long Arm of the Law Undermine the Rule of Law" [2012] MelbJlIntLaw 5; (2012).

9 147 substantive law, Even though the Forum law has conventionally treated such questions of law as a procedural law. 31 While a person gets prosecuted under the Forum State which might not be the State to which he would be subjected to by the virtue of his domicile or nationality, a lot of problems may arise in the course of this. In particular, the lack of consistency in domestic conceptions of ne bis in idem or double jeopardy ; or even extradition and mutual assistance frameworks; and the inadequate application of constitutional protection to the accused which also undermines his ability for a free trail in the forum State. Firstly, There is a lack of a consistent principle of ne bis in idem. The principle that a person should not be prosecuted for more than once for the same conduct does not exist consistently in transnational crimes. For example, the protection granted by Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR) is limited to multiple prosecutions in one state, and not at between states. 32 This results in a seamlessly dysfunctional protection for a person on whom more than one state asserts jurisdiction. Similarly the protection provided under Article 20 of the Rome Statute of the International Criminal Court also provides some protection against double jeopardy, but regardless they are very restrictive and limited since they protect only against genocide, crimes against humanity, war crimes, and the crime of aggression. 33 Secondly, with every factor outlined, however, the extent of procedural protections and other characteristics of a foreign prosecution should not be dispositive in most cases especially in cases of extradition, as it is seen to be. For example, the United States faced serious criticism for its recent cases of extraordinary rendition, in which the United States extradited terrorist suspects to 31 Mary Jane Morrison, Choice of Law for Unlawful Searches, 41 OKLA. L. REV. 579, 601 ( The result would be a great deal of pressure for uniformity in exclusionary rules and policies, instead of an environment that encourages diversity by accommodating differing experiences and values within a sprawling nation. ). 32 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966 as cited in Danielle Ireland-Piper, Prosecutions of Extraterritorial Criminal Conduct and the Abuse of Rights Doctrine (2013) 9 Utrecht Law Review Art. 5, Rome Statute of the International Criminal Court (2002) UN Doc A/CONF.183/9* (entered into Force 1 July 2002).

10 148 countries that were likely to torture those suspects. 34 Thus in cases of extradition procedures also, when the two States are manage the due process under their forum laws, it becomes essential that during the course of extradition the rights of the accused are protected. As firmly held in the case of Daya Singh Lahoria v. Union of India 35 that: The law of extradition is a dual law. It is ostensibly a municipal law, yet it is a part of international law also, inasmuch as it governs the relations between Two sovereign States over the question of whether or not a given person should be handed over by one sovereign State to another sovereign State. This question is decided by national courts but on the basis of international commitments as well as the rules of international law relating to the subject. Mutual relationships between human rights and extradition are often characterized as a tension between protective and cooperative functions of international legal assistance. Also, efforts must be made to solve a problem that comes up in a situation where an offender holds the citizenship of the requested state, while at the same time, the investigation, prosecution and trial in the territory of that state appears to be not merely inefficient, but simply impossible for practical, evidentiary and political reasons. In a similar vein, one wonders how many alleged criminal offenders have been consigned to local prosecutions, off-loaded to terribly rough criminal justice. The question arises as to Does consideration for exert authority in extra-territorial criminal cases reduces the potential of a defendant s fair process. The need to punish offenders must, as always, be balanced against the rights of the accused. Emerging debates in legal scholarship on assertions of extraterritorial jurisdiction suggest that greater attention needs to be paid to the development of a consistent set of principles to guide prosecution discretion in the context of extraterritorial crimes. 36 While the 34 HUMAN RIGHTS WATCH, DOUBLE JEOPARDY: CIA RENDITIONS TO JORDAN (2008), available at reports/2008/04/07/double-jeopardy-0; COUNCIL OF EUROPE, ALLEGED SECRET DETENTIONS AND UNLAWFUL INTER-STATE TRANSFERS OF DETAINEES INVOLVING COUNCIL OF EUROPE MEMBER STATES, Doc (2006), available at Working Docs/Doc06/EDOC10957.htm. 35 AIR [ 2001 ] SC Ellen S Podgor, Defensive Territoriality : A New Paradigm for the Prosecution of Extraterritorial Business Crimes (2002) 31(1) Georgia Journal of International and Comparative Law 1.

11 149 advancement of post globalization world, has increased the transactional organization crime, it becomes essential for a extraterritorial criminal jurisdiction to be justified there has to be a necessity where fundamental human are not undermined. Therefore, the right to assert extraterritorial jurisdiction is accompanied by corresponding responsibilities to accord due process, procedural fairness and domestic human rights guarantees. 37 IV. ANALYZING THE MOST EFFECTIVE CONSIDERATION FOR CONFLICT-OF- LAW TO PRESERVE COMITY ALONG WITH INDIVIDUAL RIGHTS The dilemma of how to resolve issues with concurrent jurisdiction evolved around the ambivalence of the application of both substantive and procedural law which has lead to analysis of various theories. Nonetheless, very little public information exists about the process by which these decisions are made, how often such cases arise, and how the courts prosecute on such matters. Given the important role these decisions serve in determining the extraterritorial contours of criminal jurisdiction, it is important to articulate and analyze the relevant national and interests, and to develop an explicit framework for resolving competing exercises of jurisdiction. As discussed earlier, various factors contribute to how a country will dominate over a subject with extra-territorial jurisdiction, based on the countries underlying interest. The factors discussed in Part II, has a very unworkable prospect because a jurisdiction hierarchy based on Personality principle, is not an effective framework in today increasing transcendental crimes. Rather, an effective framework must recognize that the strength of a country s interest in applying its law depends on multiple factors. For example, if the courts are taking into consideration the character of the alleged crime, the procedural fairness of the existing judicial system of that country. Although, it may be counterargued that procedure fairness do not guide on how to resolve the contested issues of territoriality, nationality and the character of the offense. This approach does, however, induce 37 Danielle Ireland-Piper, Extraterritorial Criminal Jurisdiction: Does the Long Arm of the Law Undermine the Rule of Law (2012) 13 Melbourne Journal of International Law 122, 156.

12 150 the countries involved to consider a balancing test of the true extent of their interests before applying their respective criminal laws to the case 38. The interest analysis has also been criticized in cases where for example, the State was applying the exclusionary rule evidence, obtained through police investigation. The two opposing alternatives for the courts would be to either apply (1) those in which the forum state's law affords less protection to the defendant than would the law of the place where the search or interrogation occurred; and (2) those in which the Forum state's law is more protective of defendants. Under such situations the overwhelming tendency of the courts by applying interest analysis would be to apply its own forum laws. The problem is therefore, of Forum bias and interest Analysis being so strongly intertwined that their separation is difficult, if not impossible and this may lead to injustice to the defendant 39. Instead of looking to forum law (or the law of a party's domicile) for the rule of decision in interstate, based on territorial principle or interest analysis principle, the best way to conjure justice to the defendant would be by applying the law of the jurisdiction in which the police activity took place also known as situs law. That approach has a number of advantages. Firstly, it will bring a needed measure of predictability to Police work, as they will be better acquainted with the laws for conducting a fair interrogation. Secondly, Use of situs law, regardless of the state citizenship of Interested parties, avoids the privileges and immunities that occurs in interest analysis. 40 From the above alternative, situs law is evidently more attractive, but due to the forum bias. Courts tend to lean in favor of their forum laws in effectuating the enforcement of a better and just alternative, which constitute a workable alternative to interest analysis. Finally, a comity analysis explicitly concerned with sovereign interests is indispensable. In order to conclude on an effective conflict resolution principle, it must pass the litmus test of persevering, the Comity of nations. This is because, is a conflict of laws doctrine therefore. As a conflicts doctrine, comity analysis should be concerned with the Precise sovereign interests at stake in any case at bar. What needs to be scrutinized is that careful consideration is taken by Forum State before applying its laws, even although it may be given that they have an unflagging obligation to exercise jurisdiction in most cases 41, it should not be 38 Supra note 17, P Corr, John Bernard, "Criminal Procedure and the Conflict of Laws" (1985). Faculty Publications. Paper Supra note Colo. River Conservation Dist. v. United States, 424 U.S. 800, 813 (1976).

13 151 done so by disregarding any consideration of interest analysis of the State. Also, in ascertaining the governmental interests at stake, the court should clearly state its approach and reasons for decision in detail in its opinion. 42 This will prevent the States from resolving comity cases on the basis of any unjustified bias. In conclusion, any conflict of law resolution between States or any ascertainment of Interests of the sovereign s analysis for conferring criminal jurisdiction should be done by first seeking to establish Comity of nations. Since, at the end of the day, Comity is the kernel, based on which the very essence of ameliorating conflict of laws between sovereigns was founded on. 42 As Robert Leflar has noted, honesty is the best policy, even in judicial opinions. Robert Allen Leflar, Choice of Law: States Rights, 10 HOFSTRA L. REV. 203, 215 (1981).