1105
JURISDICTION IN VIOLATION OF AN
EXTRADITION TREATY: UNITED STATES
V. AL VAREZ-MACHA IN
On June 15, 1992, the United States Supreme Court ruled that a
Mexican National forcibly removed and brought to the United States
could be tried before an American Court.' Humberto AlvarezMachain had been kidnapped in Guadalajara, Mexico, and transported to the United States. 2 The abduction was conducted by operatives hired by the United States government to bring AlvarezMachain before the jurisdiction of a United States court. 3 In United
States v. Alvarez-Machain,4 the Supreme Court held that the abduction did not violate the Extradition Treaty Between the United States
of America and the United Mexican States and
that Alvarez-Machain
5
could be properly tried in the United States.
The Court's decision in Alvarez was based upon its prior decisions
in Ker v: Illinois6 and Frisbie v. Collins.7 The Ker-Frisbie doctrine
stands for the proposition that courts do not need to inquire into the
manner in which defendants came before them.8 Therefore, once a
defendant is physically before the court, the circumstances surrounding his presence are not relevant to the court's jurisdiction over the
defendant. 9
However, the Ker-Frisbie doctrine in not monolithic.' 0 The
United States Supreme Court has carved out a few exceptions." One
of the most significant exceptions was created the same day that the
Court decided Ker.12 In United States v. Rauscher,13 the Court held
that if an extradition treaty has been violated in bringing a defendant
before the court, then the court does not have jurisdiction, and the
1.
United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992).
2. Id. at 2190.
United States v. Alvarez-Machain, 946 F.2d 1466, 1467 (9th Cir. 1991), rev'd
Ct. 2188 (1992).
112 S. Ct. 2188 (1992).
Alvarez-Machain, 112 S. Ct. at 2197.
119 U.S. 436 (1886).
342 U.S. 519 (1952); Alvarez-Machain, 112 S. Ct. at 2192.
Jacques Semmelman, CriminalJurisdiction-ExtraditionTreaties-U.S.Government-SponsoredAbduction of Mexican Citizen: United States v. Alvarez-Machain, 86
3.
112 S.
4.
5.
6.
7.
8.
AM. J. INT'L. L. 811, 811 (1992).
9. Id.
10. Brief for Appellant, United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992)
(No. 91-712).
11. Id.
12. Id.
13. United States v. Rauscher, 119 U.S. 407 (1886).
1106
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[Vol. 27
defendant must be repatriated. 14 However, the Court in Rauscher left
one critical question unanswered: What constitutes a violation of an
extradition treaty?' 5
This Note reviews the facts and holding of the Supreme Court's
decision in Alvarez. 1 6 This Note then discusses jurisdictional issues in
cases involving seizures, abductions, and treaty violations. 17 This
Note then compares the decision in Alvarez to past holdings of the
Court, and. contrasts Alvarez with relevant principles of international
law.' 8 Finally, this Note concludes that the holding in Alvarez is inconsistent with prior decisions of the Supreme Court, and conflicts
with contemporary international law. 19
FACTS AND HOLDING
On February 7, 1985, Enrique Camarena-Salazar, an agent of the
United States Drug Enforcement Administration ("D.E.A."), was kidnapped in Guadalajara, Mexico. 20 His mutilated body was found one
month later, sixty miles outside of Guadalajara. 2 1 After investigating
the disappearance and death of Camarena-Salazar, the D.E.A. concluded that Humberto Alvarez-Machain, M.D., a Mexican national,
participated in the murder of Camarena-Salazar. 22 Alvarez-Machain
allegedly administered medical treatment to Camarena-Salazar for
the purpose of keeping Camarena-Salazar alive for further torture
23
and interrogation.
On two separate occasions, the D.E.A. and the Mexican Federal
Judicial Police attempted to exchange Alvarez-Machain for a Mexican
national harbored in the United States. 2 4 After these negotiations
failed, the D.E.A. decided to try alternative methods to gain custody of
25
Alvarez-Machain.
Antonio Garate-Bustamante, a Mexican informant used by the
D.E.A., was instructed to contact certain individuals and to inform
them that a reward would be given for the delivery of Alvarez14. Id. at 423-24.
15. See infra notes 134-46 and accompanying text.
16. See infra notes 20-85 and accompanying text.
17. See infra notes 86-210 and accompanying text.
18. See infra notes 211-326 and accompanying text.
19. See infra notes 327-29 and accompanying text.
20. United States v. Caro-Quintero, 745 F. Supp. 599, 601-02 (C.D. Cal. 1990),
affd, United States v. Alvarez-Machain, 946 F.2d 1466 (1991), rev'd, 112 S. Ct. 2188
(1992).
21. Caro-Quintero,745 F. Supp. at 602.
22. United States v. Alvarez-Machain, 112 S. Ct. 2188, 2190 (1992).
23. Id.
24. Caro-Quintero,745 F. Supp. at 602-03.
25. Id. at 603.
1994]
EXTRADITION TREATIES
1107
Machain to the United States. 2 6 On April 2, 1990, Alvarez-Machain
was forcibly taken from his Guadalajara medical office and transported to the United States to stand trial for his crimes against
Camarena-Salazar. 27 Alvarez-Machain was charged in the United
States District Court for the Central District of California. 28 The district court held that it did not have personal jurisdiction to try Alvarez-Machain and ordered that he be repatriated to Mexico. 29 No
agents of the D.E.A. directly participated in the abduction of AlvarezMachain, but the abductors were paid by agents of the United States
and the D.E.A.3 0 The D.E.A. had paid the abductors $20,000 as of
May 25, 1990.31 The D.E.A. also transported seven of the abductors
and their families to the United States and paid for their living ex32
penses up to the trial date.
Following the abduction, the Mexican government sent three diplomatic communiques to the United States Department of State concerning the abduction of Alvarez-Machain. 33 The first note inquired
whether the United States government was in any way involved in the
abduction. 3 4 The second communique indicated that Mexico believed
that the United States government was involved in the abduction and
that such involvement violated the Extradition Treaty Between the
United States of America and the United Mexican States ("Extradition Treaty"). 35 The communique also demanded the return of Alvarez-Machain. 36 The third communique requested formal extradition
of Garate-Bustamante and a D.E.A. agent alleged to have been in37
volved in the abduction of Alvarez-Machain.
The United States government refused to return AlvarezMachain and at his trial, Alvarez-Machain objected to the jurisdiction
of the district court. 38 First, he argued that his due process rights
were violated by the manner in which he was brought before the
court. 39 Second, he argued that because his abduction violated the
26. Id. at 601-03.
27. Id. at 603.
28. Id. at 599.
29. Id. at 614.
30. United States v. Alvarez-Machain, 946 F.2d 1466, 1466-67 (9th Cir. 1991),
rev'd, 112 S. Ct. 2188 (1992).
31. Caro-Quintero,745 F. Supp. at 603.
32. Id. at 603-04.
33. Id.
34. Id.
35. Id.; Extradition Treaty Between the United States of America and the United
Mexican States, May 4, 1978, U.S.-Mex., 31 U.S.T. 5059.
36. Caro-Quintero,745 F. Supp. at 604.
37. Id.
38. See infra notes 39-41 and accompanying text.
39. Caro-Quintero,745 F. Supp. at 604-06.
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[Vol. 27
Extradition Treaty, the Ker-Frisbie doctrine was inapplicable to his
case. 40 The Ker-Frisbie doctrine states that a court does not need to
inquire into the manner in which a defendant has come before the
4 1
court.
Alvarez-Machain contended that the language of the Extradition
Treaty implies that the abduction of individuals from one country to
the other for the purpose of trial are prohibited. 4 2 Additionally, he
argued that conventions of treaty interpretation would implicate an
obligation not to circumvent the purposes of the Extradition Treaty by
abducting a foreign national from the sovereign territory of a signatory nation without the consent of that nation. 4 3 Finally, AlvarezMachain contended that the Extradition Treaty should be interpreted
with deference to the principles of customary international law, which
44
would prohibit such an invasion of the sovereign rights of nations.
Alvarez-Machain asserted that because his abduction violated the Ex45
tradition Treaty, the court was without jurisdiction.
The district court agreed and held that the court was powerless to
try Alvarez-Machain because the defendant was brought before the
court in violation of a valid extradition treaty.4 6 First, the court rejected the standing issue raised by the Government. 4 7 The court
noted that Alvarez-Machain would not have had standing to invoke
any rights under the Extradition Treaty in the absence of protest by
Mexico. 48 However, the court determined that the communiques sent
by Mexico objecting to Alvarez-Machain's abduction were sufficient to
raise Mexico's rights under the Extradition Treaty, thereby giving Al49
varez-Machain derivative standing to invoke those rights.
Next, the court summarily dismissed Alvarez-Machain's due process arguments by holding that the United States Supreme Court has
never departed from the rule that nothing in the United States Constitution prohibits jurisdiction solely because a person was brought to
40. Id. at 606-14.
41. See infra notes 99-133 and accompanying text.
42. Brief for Respondent, United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992)
(No. 91-712).
43. Id.
44. Id.
45. Id.
46. Caro-Quintero,745 F. Supp. at 614.
47. Id. at 608-09.
48. Id.
49. Id.
1994]
EXTRADITION TREATIES
1109
trial against his will. 50 This rule has been referred to as the Ker-Frisbie doctrine. 5 1
52
However, the court stated that under United States v. Rauscher,
the Ker-Frisbie doctrine does not apply to violations of federal treaties.5 3 The court concluded that the abduction of Alvarez-Machain violated the Extradition Treaty. 54 First, the court characterized
Alvarez-Machain's removal as a "unilateral abduction by the United
States."5 5 Second, the court held that the abduction, along with Mexico's official protest, constituted a violation of the Extradition
Treaty. 56 The court noted that a purpose of extradition treaties is to
protect the territorial integrity and the sovereignty of states. 5 7 The
court concluded that the United States government circumvented this
purpose by forcibly abducting Alvarez-Machain. 58
Because the court determined that the abduction violated an existing federal treaty, the court found it unnecessary to address issues
of international law, under either the United Nations Charter, or the
Charter of the Organization of American States.5 9 The Court concluded that it had no jurisdiction to try Alvarez-Machain because of
the treaty violation, and therefore ordered that he be returned to
60
Mexico.
The United States government appealed the district court's decision and the United States Court of Appeals for the Ninth Circuit affirmed. 6 1 Only three months earlier the Ninth Circuit had decided a
similar case in United States v. Verdugo-Urquidez,62 which involved
another man charged with the murder of Camarena-Salazar. 63 In affirming Alvarez-Machain, the Ninth Circuit referred to its opinion in
Verdugo-Urquidez and held that the abduction of Alvarez-Machain
was a violation of the Extradition Treaty, and that Ker therefore did
50. Id. at 605 (citing Frisbie v. Collins, 342 U.S. 519, 522 (1886)).
51. Jacques Semmelman, CriminalJurisdiction-ExtraditionTreaties-U.S. Government-SponsoredAbduction of Mexican Citizen: United States v. Alvarez-Machain, 86
AM. J. INT'L. L. 811, 811 (1992).
52. 119 U.S. 407 (1886).
53. Caro-Quintero, 745 F. Supp. at 606.
54. Id. at 614.
55. Id. at 609.
56. Id.
57. Id.
58. Id. at 610.
59. Id. at 614.
60. Id.
61. United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991), rev'd, 112 S.
Ct. 2188 (1992).
62. 939 F.2d 1341 (9th Cir. 1991).
63. United States v. Verdugo-Urquidez, 939 F.2d 1341, 1343 (9th Cir. 1991).
1110
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[Vol. 27
not apply. 64 However, the Ninth Circuit distinguished Verdugo-Urquidez by noting that it was never determined in that case whether
the United States government was involved in that abduction. 65 In
Alvarez-Machain, the district court determined that the Federal Government was involved in Alvarez-Machain's abduction. 66 The court in
Alvarez-Machain also noted that the Mexican government had formally protested the abduction of Alvarez-Machain on several occasions.6 7 The court concluded that because the Extradition Treaty had
been violated, it had no jurisdiction over Alvarez-Machain. 68 The
69
Ninth Circuit therefore affirmed the district court's decision.
The government of the United States appealed the decision of the
Ninth Circuit and the United States Supreme Court granted certiorari. 70 The first issue addressed by the Court was whether the abduction of Alvarez-Machain violated the Extradition Treaty. 7 1 The Court
held that the abduction of Alvarez-Machain did not violate the Extra72
dition Treaty.
In determining that the Extradition Treaty had not been violated,
the Court examined the express terms of the Extradition Treaty, those
terms that could be implied from the negotiations surrounding the Ex73
tradition Treaty, and those implied by customary international law.
First, the Court noted that the Extradition Treaty did not expressly
prohibit the abduction of foreign nationals from the sovereign territory of the signatory governments. 74 Next, the Court held that the
history of the negotiations surrounding the Extradition Treaty did not
necessarily support the conclusion that the signatory nations intended
for the Extradition Treaty to prohibit abductions. 75 The Court noted
that the fact that the Mexican government was aware of Ker v. Illinois76 at the time the Extradition Treaty was ratified was sufficient to
conclude that the Extradition Treaty would have expressly prohibited
77
abductions had that been the intent of the parties.
64. Alvarez-Machain, 946 F.2d at 1467; see infra notes 160-79 and accompanying
text (discussing Verdugo).
65. Alvarez-Machain, 946 F.2d at 1467.
66. Id. at 1466-67.
67. Id.
68. Id.
69. Id.
70. United States v. Alvarez-Machain, 112 S. Ct. 857 (1992).
71. Id. at 2193.
72. Id. at 2197.
73. Id. at 2193-96.
74. Id. at 2193.
75. Id. at 2194.
76. 119 U.S. 436 (1886).
77. Alvarez-Machain, 112 S. Ct. at 2194.
EXTRADITION TREATIES
1994]
1111
Finally, the Court disagreed with Alvarez-Machain's argument
that the Extradition Treaty should be interpreted in light of the principles of international law that prohibit invasions of the sovereign territory of nations. 78 The Court held that the principles cited by
Alvarez-Machain constitute the "most general of international law
principles."7 9 The Court held that it would go beyond established precedent to infer from these general principles that the Extradition
Treaty was intended to be the exclusive means of obtaining jurisdic80
tion over foreign nationals between the two nations.
The Court did concede that the abduction may have violated customary international law.8 1 However, the Court pointed out that Al-
varez-Machain did not argue principles of customary international
law as an independent basis for decision, but merely argued the effect
of customary international law on express language contained in the
Extradition Treaty. 82 Alvarez-Machain did not argue that the court
lacked jurisdiction because the United States had violated international law.8
3
Instead, he argued that because international law pro-
hibits abductions, the inclusion of such a term in the Extradition
Treaty is necessarily implied.8 4 The Court failed to accept this interpretation of the Extradition Treaty and concluded that because there
was no treaty violation, the rule from Ker applied to the case, and the
need to consider how it gained jurisdiction over the
Court did 8not
5
defendant.
BACKGROUND
A.
THE EXTRADITION TREATY BETWEEN THE UNITED STATES OF
AMERICA AND THE UNITED MEXICAN STATES
The United States of America and the United Mexican States entered into a treaty to govern the extradition of individuals between the
two nations on May 4, 1978.86 The Extradition Treaty Between the
United States of America and the United Mexican States ("Extradition Treaty") sets out comprehensive provisions governing the extradition of criminals between the two nations.8 7 The Preamble to the
78. Id. at 2196.
79. Id.
80. Id.
81. Id.
82. Id. at 2195.
83. Id.
84. Id.
85. Id. at 2197.
86. Extradition Treaty Between the United States of America and the United Mexican States, May 4, 1978, U.S.-Mex., 31 U.S.T. 5059, 5075.
87. United States v. Alvarez-Machain, 112 S. Ct. 2188, 2198 (1992) (Stevens, J.,
dissenting).
CREIGHTON LAW REVIEW
1112
[Vol. 27
Extradition Treaty provides: "The Government of the United States of
America and the Government of the United Mexican States; Desiring
to cooperate more closely in the fight against crime and, to this end, to
mutually render better assistance in matters of extradition; Have
agreed as follows."8 8 The language of the Preamble expressly states
the desire of the signatory parties to cooperate with each other.8 9
Article 1 of the Extradition Treaty provides the circumstances for
extradition when the offense was committed outside the territory of
the requesting nation. 90 The nation must grant extradition only
where "a) its laws would provide for the punishment of such an offense
committed in similar circumstances, or b) the person sought is a national of the requesting Party, and that Party has jurisdiction under
its own laws to try that person."9 1
Article 3 gives the requested Party the right to refuse to extradite
an individual if it does not find the evidence sufficient to warrant extradition. 92 The Article provides that extradition shall only be
granted if "evidence [is] found sufficient, according to the laws of the
requested Party, either to justify the committal for trial ... or to prove
that he is the person convicted by the courts of the requesting
93
Party.,
Articles 5, 6, 7, and 8 set out specific circumstances under which
extradition will not be granted.9 4 The prohibitions forbid extradition:
(1) where a political or military offense has been alleged; (2) where the
individual sought has already been tried by the requested Party; (3)
where too much time has lapsed (by the law of either Party); or (4)
where the offense is punishable by death under the requesting Party's
laws, contrary to the laws of the requested Party. 9 5
Article 9 of the Extradition Treaty states that "[n]either Contracting Party shall be bound to deliver up its own nationals."96 This
provision leaves the ultimate determination of whether to extradite an
individual within the discretion of the requested Party. 97 However,
the Article provides that if a Party does not agree to extradition, then
it must try the individual sought in its own courts, pursuant to its own
laws. 98
88.
89.
90.
91.
92.
93.
94.
Extradition Treaty, 31 U.S.T. at 5061.
Id.
Id. at art. 1, para. 2, 31 U.S.T. at 5061-62.
Id.
Id. art. 3, 31 U.S.T. at 5063.
Id.
Id. at art. 5-8, 31 U.S.T. at 5063-65.
95. Id.
96. Id. at art. 9, para. 1, 31 U.S.T. at 5065 (emphasis added).
97. Id.
98. Id. at art. 9, para. 2, 31 U.S.T. at 5065.
1994]
B.
EXTRADITION TREATIES
1113
THE KER-FRISBIE DOCTRINE
The Ker-Frisbie doctrine governs jurisdictional issues where defendants are forcibly brought before courts in the United States. 9 9
This doctrine, established by Ker v. Illinois'0 0 and Frisbie v. Collins, 10 1 provides that once an individual is brought before a court, the
court need not inquire into the circumstances surrounding his pressignificant
ence. 10 2 The United States Supreme Court has made one
10 3
exception to this rule: cases involving treaty violations.
1. The Ker-Frisbie Doctrine
In Ker v. Illinois,'0 4 the United States Supreme Court first addressed the jurisdictional issues that arise when a defendant is forcibly brought before a court.' 0 5 Frederick M. Ker, a United States
citizen, was kidnapped from Lima, Peru, in order to bring him to trial
in the United States.' 0 6 A messenger had been sent to Peru with a
warrant issued by the President of the United States for the extradition of Ker pursuant to a treaty between the two nations. 107 However,
upon locating the defendant, the messenger took it upon himself to
forcibly kidnap Ker.' 0 s
Brought before an Illinois court, Ker objected to the court's jurisdiction because he was forcibly brought before the court. 10 9 He asserted that his due process rights had been infringed, and that the
extradition treaty between the United States and Peru had been violated. 110 Ker's pleas were denied and he was convicted in the Illinois
Court."' Ker filed a habeas corpus petition in the Circuit Court for
the Northern District of Illinois, and the petition was113denied. 112 Ker
then appealed to the United States Supreme Court.
99. See infra notes 100-33 and accompanying text.
100. 119 U.S. 436 (1886).
101. 342 U.S. 519 (1952).
102. Jacques Semmelman, CriminalJurisdiction-ExtraditionTreaties-U.S. Government-SponsoredAbduction of Mexican Citizen: United States v. Alvarez-Machain, 86
AM. J. INT'L. L. 811, 811 (1992).
103. Id. at 813.
104. 119 U.S. 436 (1886).
105. Ker v. Illinois, 119 U.S. 436 (1886).
106. Id. at 438.
107. Id.
108. Id. The messenger most likely found it difficult to ascertain the appropriate
recipient of the warrant in the midst of the political upheaval present in Peru at the
time. United States v. Caro-Quintero, 745 F. Supp. 599, 610 (1990).
109. Ker, 119 U.S. at 439.
110. Id.
111. Id.
112. Ex parte Ker, 18 F. 167, 168 (1883).
113. Ker, 119 U.S. at 437.
1114
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[Vol. 27
On appeal, the Supreme Court affirmed. 114 First, the Court rejected Ker's due process claim and held that "mere irregularities" in
the manner in which a defendant is brought to trial do not entitle him
to evade trial for a crime for which he is properly indicted. 115 Next,
the Court dismissed Ker's claim that his abduction violated the treaty
between the United States and Peru because the Court determined
that the treaty was inapplicable. 1 16 The Court noted that the kidnapper did not act under the authority of the extradition treaty, nor under
the authority of the United States government. 117 Moreover, Peru
had not objected to Ker's abduction. 118 The Court found that because
the treaty between the United States and Peru was never invoked, it
could not have been violated. 119
In 1952, the Court reaffirmed Ker in Frisbiev.Collins.120 Frisbie
involved the domestic abduction of Shirley Collins from Chicago, Illinois, by Michigan police officers. 12 1 Collins was brought before a
Michigan court to stand trial. 122 Collins filed a habeas corpus petition
in the United States District Court for the Eastern District of Michigan claiming that the Michigan court did not have proper jurisdiction
over him because of the manner in which he was brought before the
court. 1 23 Collins was convicted in the district court and the United
States Court of Appeals for the Sixth Circuit remanded. 124 The
25
United States Supreme Court granted certiorari.'
Collins argued that because his abduction violated the Due Process Clause of the Fourteenth Amendment and the Federal Kidnapping Act, the Michigan court lacked jurisdiction. 1 2 6 The Court
127
dismissed Collins' Fourteenth Amendment claims by citing Ker.
The Court reasoned that due process is satisfied if all constitutional
128
procedural safeguards are followed once jurisdiction is obtained.
Because Collins had not claimed any procedural deficiency by the
Michigan courts, the Court concluded that "the power of a court to try
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
Id. at 445.
Id. at 440.
Id. at 443.
Id.
Id. at 444.
Id. at 443.
342 U.S. 519 (1952).
Frisbie v. Collins, 342
Id. at 520.
Id. at 519-20.
Collins v. Frisbie, 189
Frisbie v. Collins, 342
Frisbie v. Collins, 342
Id. at 522.
Id.
U.S. 519, 520 (1952).
F.2d 464 (6th Cir. 1951).
U.S. 865 (1951).
U.S. 519, 520 (1952).
1994]
EXTRADITION TREATIES
1115
a person for crime is not impaired by the fact that he had been brought
within the court's jurisdiction by reason of a 'forcible abduction.' "129
The Court refused to decide whether the actions of the Michigan
police officers violated the Federal Kidnapping Act.130 However, the
Court stated that to hold that a state could not prosecute someone
wrongfully brought into that state would add an extra sanction to
those detailed in the Act. 131 The Court noted that while Congress
could add such a sanction, the Court could not. 13 2 Therefore, the
Court concluded that the Michigan court had proper jurisdiction. 1 33
2. The Treaty Exception
In United States v. Rauscher, 3 4 decided the same day as Ker, the
Court held that the courts cannot obtain jurisdiction over individuals
haled before them in violation of an existing treaty.' 3 5 William Rauscher was properly extradited from Great Britain on a charge of murder. 136 However, when Rauscher was indicted in a federal district
court in New York, he was charged with the infliction of cruel and
unusual punishment rather than the crime for which he was extradited, murder. 13 7 The governing treaty between the United States
and Great Britain at the time provided only for the extradition of persons accused of certain specified crimes. 13 8 The trial court overruled
an objection to the court's jurisdiction and refused to grant an acquittal even after it was determined that the crime for which Rauscher
was tried was not the same crime for which he was extradited. 139 The
Circuit Court of the United States for the Southern District of New
York split on the issue and therefore certified the question to the
140
United States Supreme Court.
The Supreme Court held that the international law doctrine of
specialty mandated the expatriation of Rauscher. 14 1 The doctrine provides that no extradited person may be tried for any crime other than
the one for which he was extradited. 142 The Court noted that the specific list of extraditable offenses found in the governing treaty implied
129. Id.
130. Id. at 522-23.
131. Id. at 523.
132. Id.
133. Id.
134. 119 U.S. 407 (1886).
135. United States v. Rauscher, 119 U.S. 407, 423-24 (1886).
136. Id. at 409.
137. Id.
138.
139.
140.
141.
142.
Id. at 420.
Id. at 409-10.
Id. at 409.
Id. at 424.
Id.; Alvarez-Machain, 112 S. Ct. 2188, 2191 (1992).
1116
CREIGHTON LAW REVIEW
[Vol. 27
the inclusion of the doctrine of specialty within the scope of the
treaty.14 3 The treaty provision that gave the extraditing nation power
to decide the validity of the charge was deemed additional evidence of
this implied term.14 4 The Court stated:
The opposite view has been attempted to be maintained
in this country upon the ground that there is no express limitation in the treaty of the right of the country in which the
offence was committed to try the person for the crime alone
for which he was extradited, and that once being within the
jurisdiction of that country, no matter by what contrivance or
fraud or by what pretence of establishing a charge provided
for by the extradition treaty he may have been brought
within the jurisdiction, he is, when here, liable to be tried for
any offence against the laws as though arrested here originally. This propositionof the absence of express restrictionin
the treaty of the right to try him for other offences than that for
which he was extradited,
is met by the manifest scope and ob145
ject of the treaty itself.
The Court therefore concluded that the doctrine of specialty required
14 6
that Rauscher be returned to Great Britain.
Similarly, in Cook v. United States,14 7 the United States seized a
British ship for attempting to smuggle alcohol into the United States
in violation of the Eighteenth Amendment. 148 A federal statute provided that ships could be seized within twelve miles of the United
States coast. 14 9 A treaty between the United States and Great Britain provided that the United States could seize ships suspected of
breaking the prohibition laws as long as they were within one hour's
traveling distance from the United States. 150 The ship seized had a
maximum speed of ten miles per hour and was eleven and one half
miles from the United States when seized. 15 1 The District Court for
the District of Rhode Island dismissed the case, and the United States
Court of Appeals for the First Circuit reversed and remanded. 152 The
United States Supreme Court granted certiorari and reversed the Cir153
cuit Court of Appeals.
143.
144.
Rauscher, 119 U.S. at 420.
Id.
145. Id. at 422 (emphasis added).
146. Id. at 424.
147. 288 U.S. 102 (1933).
148. Cook v. United States, 288 U.S. 102, 108 (1933).
149. Id. at 107.
150. Id. at 109-10.
151. Id. at 107.
152. The Mazel Toy, 51 F.2d 292, 301 (D.C.R.I. 1931); reu'd, 56 F.2d 921, 927 (1st
Cir. 1932).
153. Cook v. United States, 287 U.S. 581 (1932) (granting certiorari).
1994]
EXTRADITION TREATIES
1117
The Court held that the treaty provided the only conditions under
which the United States could legally seize the ship. 1 54 Because the
British ship was not within the limits established by the treaty, the
Court ruled that it did not have the jurisdiction to subject the ship to
the laws of the United States. 155 The Court stated, "[t]o hold that adjudication may follow a wrongful seizure would go far to nullify the
purpose and effect of the Extradition Treaty." 156 The Court in Cook
compared its holding to a line of cases that did not involve treaties,
but merely involved "violations of the law of nations." 15 7 In those
cases that did not involve treaties, seizures by the United States Navy
were upheld. 158 The Court found the existence of a treaty in the pres159
ent case controlling.
3. The Ninth Circuit'sApplication of the Ker-FrisbieDoctrine to the
Seizure of InternationalCriminals
In United States v. Verdugo-Urquidez,160 the United States Court
of Appeals for the Ninth Circuit held that the Supreme Court's decisions in both Rauscher and Cook superseded the Ker-Frisbie doctrine
when an extradition treaty is in force between the two nations. 16 1 In
Verdugo-Urquidez, Renee Martin Verdugo-Urquidez, a Mexican national, was accused of killing Enrique Camarena-Salazar, the same
D.E.A. agent that Alvarez-Machain was accused of killing. 162 Like Alvarez-Machain, Verdugo-Urquidez claimed that he was kidnapped
from Mexico by agents of the United States. 1 63 Verdugo-Urquidez
was convicted in the United States District Court for the Central District of California. 164 He appealed to the United States Court of Ap165
peals for the Ninth Circuit.
Verdugo-Urquidez objected to the jurisdiction of the court and
claimed that the government violated the Extradition Treaty Between
the United States of America and the United Mexican States ("Extradition Treaty"). 16 6 The court reasoned that if the United States participated in or authorized the kidnapping, then the Extradition Treaty
154.
155.
156.
157.
158.
159.
160.
161.
162.
163.
text.
164.
165.
166.
Cook, 288 U.S. at 121.
Id.
Id. at 121-22.
Id. at 122.
Id.
Id. at 121.
939 F.2d 1341 (9th Cir. 1991).
United States v. Verdugo-Urquidez, 939 F.2d 1341, 1348 (9th Cir. 1991).
Id. at 1343; Alvarez-Machain, 112 S. Ct. at 2190.
Verdugo-Urquidez, 939 F.2d at 1343; see supra notes 26-32 and accompanying
Verdugo-Urquidez, 939 F.2d at 1342-43.
Id.
Id.
1118
CREIGHTON LAW REVIEW
[Vol. 27
was violated and Verdugo-Urquidez would have to be repatriated to
Mexico. 16 7 The court rejected the United States government's invoca168
tion of the Ker-Frisbie doctrine.
First, the court found two principal reasons to distinguish Ker. 169
In Ker, the United States government was not involved in the defendant's abduction, and the government of Peru did not object to his abduction. 17 0 Next, the court pointed out that Frisbie did not involve a
treaty and merely reaffirmed the general principle that the Due Process Clause does not categorically prohibit jurisdiction over abducted
defendants. 17 1 Because Verdugo-Urquidez's claim was based on the
Extradition Treaty and not on the Due Process Clause, the court held
that Frisbie did not control.172
Furthermore, the court stated that Rauscher demonstrates that
"i]t is manifestly untrue that a court may never inquire into how a
criminal defendant came before it."173 The Ninth Circuit viewed both
Rauscher and Cook as governed by treaty provisions regulating extradition or seizure. 17 4 Therefore, in both cases judicial proceedings were
barred by the violation of implied treaty provisions. 175 The Ninth Circuit also noted that the contention that the government can invoke or
ignore treaties at will "blatantly contravenes the purposes" of extradition treaties. 17 6 The court found that the extradition procedures
make sense only when the parties are required to comply with the
treaty whenever one party wishes to gain custody of an individual residing in the territory of the other. I7 7 The Ninth Circuit ultimately
remanded the case to the district court for further evidentiary hearings. 178 However, the court concluded that if the United States government was involved in the abduction of Verdugo-Urquidez, then the
United States violated the Extradition Treaty and would be ordered to
17 9
repatriate Verdugo-Urquidez.
167.
168.
169.
170.
171.
172.
173.
174.
text.
175.
text.
176.
177.
178.
179.
Id. at 1360.
Id. at 1345.
Id.
Id. at 1346.
Id. at 1347.
Id.
Id. at 1348 (citing Rauscher, 119 U.S. at 407).
Verdugo.Urquidez, 939 F.2d at 1348; see supra notes 160-73 and accompanying
Verdugo-Urquidez, 939 F.2d at 1348; see supra notes 160-73 and accompanying
Verdugo-Urquidez, 939 F.2d at 1350.
Id. at 1351.
Id. at 1362.
Id. at 1360.
1994]
C.
EXTRADITION TREATIES
1119
CONVENTIONS OF TREATY INTERPRETATION AND THE
INTERNATIONAL COURT OF JUSTICE
The objects and purposes of an international treaty are determined by an interpretation of the express language, the history and
the circumstances surrounding the treaty, and the intentions of the
signatory nations.' 8 0 There are no set rules of treaty interpretation.' 8 ' There are, however, general guidelines presented by the
United Nations International Law Commission (in the form of the Vienna Convention on the Law of Treaties), the Permanent Court of International Justice ("P.C.I.J."), the International Court of Justice
8 2
("I.C.J."), and respected scholars.'
While arms treaties are generally narrowly interpreted, other
treaties, including extradition treaties, have generally been construed
more broadly.' 8 3 The general rule regarding treaty interpretation is
that treaties should be construed in good faith according to the meaning ordinarily given to their terms, both in their context and in light of
the objectives and purposes of the treaty.' 8 4 Article 31 of the Vienna
Convention on the Law of Treaties ("Vienna Convention") provides
that the text, preamble, annexes, and any concluding agreements and
85
related instruments are considered part of the "text" of the treaty.'
The maxim, ut res magis valeat quam pereat, meaning that when
there are two possible interpretations, the one 'which gives the treaty
proper effect should be applied, has been adopted by the I.C.J.' 8 6 This
maxim is consistent with the general rule requiring good faith inter8 7
pretation in accordance with the object and purpose of the treaty.'
The United Nations International Law Commission ("U.N.I.L.C.")
has recognized this maxim, but it has also noted that the maxim does
not justify interpreting a treaty in a manner that goes beyond what is
expressly stated or necessarily implied by the treaty itself.'88 In Polish Postal Service of Danzig,' s 9 the P.C.I.J. held that when an inter180. T.O.
ELIAS, THE MODERN LAW OF TREATIES
72 (1974) [hereinafter ELIAS].
181. Id. at 71.
182.
See infra notes 183-93 and accompanying text. In 1946, the P.C.I.J. was re-
placed by the I.C.J. WERNER LEVI, CONTEMPORARY INTERNATIONAL LAw 12 (2d ed. 1979)
[hereinafter LEVI]. The writings of respected scholars are regarded as the highest authority for governing principles of customary international law. D.J. HARRIS, CASES AND
MATERIALS ON INTERNATIONAL LAw (4th ed. 1991) [hereinafter HARIS].
183. Jonathan A. Bush, How Did We Get Here? Foreign Abduction After AlvarezMachain, 45 STAN. L. REv. 939, 951 (1993).
184. T.O. ELIAS, NEW HORIZONS IN INTERNATIONAL LAw 55 (2d ed. 1992) [hereinafter
ELIAS II].
185. Id. at 55 n.20; HARIS, supra note 182, at 772-73.
186. ELIAS, supra note 180, at 73-74.
187. Id. at 74.
188. Id. at 73-74.
189. 1925 P.C.I.J. (ser. B) No. 11, at 466 (May 6).
CREIGHTON LAW REVIEW
1120
[Vol. 27
pretation of a treaty leads to "unreasonable or absurd" results, the
method of interpretation is not adequate. 190 This rule was codified in
Article 32(b) of the Vienna Convention. 19 1 The I.C.J. concluded in
Right of PassageOver Indian Territory19 2 that treaties should be interpreted so as to have an effect that conforms with existing principles
l93
of customary international law.
D.
CUSTOMARY INTERNATIONAL LAW
There is little question that the use of force by a nation within the
territory of another sovereign nation is universally considered unjust. 1 94 However, the maxim male captus, bene detentus, meaning
"improperly captured, properly detained," is also a long-standing norm
of customary international law. 195 This norm allows a state to retain
jurisdiction despite evidence of an improper arrest. 196
Most recently there has been emerging support for a rule barring
jurisdiction over abducted defendants. 19 7 The Restatement Third of
ForeignRelations Law provides that when one nation invades the sovereign territory of another and forcibly captures and removes an individual, the abductee must be returned if the state from which he was
198
taken objects.
The United Nations Charter and the Charter of the Organization
of American States ("O.A.S.") both require states to respect the sanctity of each other's territory. 199 The United Nations Charter provides
that "all members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political
independence of any state."20 0 The United Nations Security Council
has construed this section as prohibiting abductions from any state
that objects to the abduction. 20 1 The O.A.S. Charter provides that
"[t]he territory of a State is inviolable; it may not be the object, even
temporarily, of... measures of force taken by another State, directly
190. LEVI, supra note 182, at 210; Polish Postal Service of Danzig, 1925 P.C.I.J. (ser.
B) No. 11, at 466 (May 6).
191. The Vienna Convention on the Law of Treaties, May 23, 1969, art. 32, 8 I.L.M.
679.
192. Portugal v. India (merits) 1960 I.C.J. 5 (Apr. 12).
193. LEVI, supra note 182, at 211.
194. Bush, 45 STAN L. REV. at 952.
195. Id.
196. Id.
197. Id.
198. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 432(2) cmt. c (1987).
199. Michael J. Glennon, State-Sponsored Abduction: A Comment on United States
v. Alvarez-Machain, 86 AM. J. INT'L. L. 746 (1992).
200. United Nations Charter, art. 2, para. 4.
201.
Glennon, 86 AM. J. INT'L L. at 747.
1994]
EXTRADITION TREATIES
1121
or indirectly, on any grounds whatever." 20 2 These charters make it
clear that it may be considered a violation of international law to ab20 3
duct an individual from the sovereign territory of a foreign nation.
This principle was reiterated in 1960 in Attorney-General of Israel
v. Eichmann.20 4 Adolph Eichmann was a German citizen who, after
World War II, took refuge in Argentina. 20 5 In Eichmann, the government of Israel kidnapped Adolph Eichmann from Argentina to stand
trial for crimes committed during World War 11.206 Argentina objected to the abduction. 20 7 The United Nations Security Council
adopted a resolution stating that the act violated the sovereignty of
Argentina. 20 8 The United States supported this resolution. 20 9 Only
when Argentina withdrew its objection was Israel held to have juris210
diction over Eichmann.
ANALYSIS
The case of United States v. Alvarez-Machain21 ' was incorrectly
decided by the United States Supreme Court. 2 12 The Court should
have found that the Extradition Treaty Between the United States of
America and the United Mexican States ("Extradition Treaty")2 13 was
violated by the unilateral abduction of Alvarez-Machain from Mexico
by operatives hired by the United States government. 2 14 The Court
was correct in noting that if the Extradition Treaty was violated, then
Ker v. Illinois2 15 would not apply and the manner in which AlvarezMachain was brought before the court would prevent the court from
obtaining jurisdiction. 2 16 However, the Court incorrectly determined
that the Extradition Treaty was not violated. 2 17 Additionally, United
202.
OAS Charter, art. 17.
203. 'See supra notes 199-202 and accompanying text.
204. 36 I.L.R. 5, 5 (1961).
205. Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 5, 5
(1961).
206. Id.
207. Id.
208. Brigette Belton Homrig, Abduction as an Alternative to Extradition-A Dangerous Method to Obtain Jurisdiction over Criminal Defendants, 28 WAKF FOREST L.
REv. 671, 699 (1993).
209. Brief of Amicus Curiae Minnesota Lawyers International Human Rights Committee In Support of Respondent, United Sates v. Alvarez-Machain, 112 S. Ct. 2188
(1992).
210.
Homrig, 28 WAKE FOREST L. REV. at 700.
211. 112 S. Ct. 2188 (1992).
212. See infra notes 213-329 and accompanying text.
213. Extradition Treaty Between the United States of America and the United Mexican States, May 4, 1978, U.S.-Mex., 31 U.S.T. 5059.
214. See infra notes 219-54 and accompanying text.
215. 119 U.S. 436 (1886).
216. See infra notes 256-70 and accompanying text.
217. See infra notes 219-329 and accompanying text.
CREIGHTON LAW REVIEW
1122
[Vol. 27
States Supreme Court precedent, principles of treaty interpretation,
of inand customary international law prohibit the forcible abduction
2 18
dividuals from the sovereign territory of foreign nations.
A.
THE COURT'S MISINTERPRETATION OF THE TREATY
In Alvarez-Machain, the United States should have interpreted
the Extradition Treaty as implying a prohibition against forcible abductions. 2 19 Instead, the Court interpreted the Extradition Treaty as
an agreement merely setting out one procedure for extradition, rather
than as controlling all extradition of foreign nationals between the two
nations. 22°1 The Court interpreted the Extradition Treaty far too
22 1
narrowly.
The Court's conclusion was based upon an examination of the language of the Extradition Treaty itself.22 2 The Court noted that there
is nothing in the Extradition Treaty that explicitly forbids abduction
of nationals from one state to the other. 22 3 However, the Court erred
in not recognizing the presence of implied terms necessarily arising
from the express language of the Extradition Treaty and from the object and purpose of the Extradition Treaty. 224 In United States v.
Rauscher,2 25 the Court expressed the general rule that the object and
purpose of a treaty should be considered when examining and interpreting a treaty. 22 6 The Court in Rauscher considered the "manifest
scope and object" of the treaty and held that the doctrine of specialty
was an implied term of the extradition treaty. 227 The Court in Alvarez however, disregarded the object and purpose of the Extradition
Treaty in its interpretation of the United States-Mexico Treaty. 228
The Court in Alvarez-Machain disregarded the guarantees that
the Extradition Treaty was intended to afford each nation. 22 9 "Article
9 of the Extradition Treaty provides that neither party is required to
extradite its nationals. 2 30 If a state chooses not to extradite an indi218. See infra notes 219-329 and accompanying text.
219. See infra notes 220-54 and accompanying text.
220. United States v. Alvarez-Machain, 112 S. Ct. 2188, 2194 (1992).
221. See infra notes 222-54 and accompanying text.
222. Alvarez-Machain, 112 S. Ct. at 2193-94.
223. Id. at 2193.
224. See supra notes 180-93 and accompanying text.
225. 119 U.S. 407 (1886).
226. United States v. Rauscher, 119 U.S. 407, 422 (1886).
227. Id.
228. See Alvarez-Machain, 112 S. Ct. at 2199 (Stevens, J., dissenting); see infra
notes 229-54 and accompanying text.
229. Alvarez-Machain, 112 S. Ct. at 2198 (Stevens, J., dissenting); see infra notes
230-35 and accompanying text.
230. Extradition Treaty at art. 9, 31 U.S.T. at 5065.
1994]
EXTRADITION TREATIES
1123
vidual, then that state must try the individual in its own courts. 2 31
Article 9 protects each nation's right not to have its nationals tried in
a foreign court. 23 2 The Court found that Article 9 did not provide the
only procedure for gaining custody of a national of the other country.2 33 By permitting nations to circumvent the Extradition Treaty,
the Court has rendered Article 9 superfluous. 2 34 Under such an interpretation, neither nation is given the opportunity to determine when
it is appropriate to try an individual in its own courts, rather than the
2 35
courts of the foreign nation.
The Court also failed to address the provisions in the Extradition
Treaty which outlined situations under which extradition would not
be granted. 2 36 This comprehensive list, provided in Article 3 and Articles 5-8, illustrates the effort of the two nations to protect their own
nationals from prosecution under laws contrary to the laws of the
domicile nation.2 37 The Court's failure to address these provisions
leads to an "unreasonable or absurd" result. 238 The parties' express
exclusion of certain situations and circumstances from the provisions
of the Extradition Treaty clearly belies an intention to protect their
nationals in those situations. 23 9 The Court's interpretation of Article
9 creates the extraordinary result of constructively authorizing selfhelp in these circumstances, despite the parties' clear intention to the
contrary. 240 In Polish Postal Service of Danzig,24 1 the Permanent
Court of International Justice ("P.C.I.J."), held that such "unreasonable or absurd" results indicate that the court has erred in its
24 2
interpretation.
In holding that the language of the Extradition Treaty does not
preclude self-help in the form of abductions, the Court in AlvarezMachain allowed the express terms of the Extradition Treaty to preclude the necessary implied term. 24 3 In Rauscher,the Court held that
the "specific enumeration of certain matters and things [in treaties]
231.
232.
233.
234.
235.
Id.
Id.
Id.
United States v. Verdugo-Urquidez, 939 F.2d 1341, 1350 (9th Cir. 1991).
See supra notes 229-34 and accompanying text.
236. Alvarez-Machain, 112 S. Ct. at 2188-97.
237. Extradition Treaty, at art. 3, 5-8, 31 U.S.T. at 5063-65; see supra notes 92-95
and accompanying text.
238. Alvarez-Machain, 112 S.Ct. at 2198-99 (Stevens, J., dissenting); Polish Postal
Service of Danzig, 1925 P.C.I.J. (ser. B) No. 11, at 466 (May 16).
239. Alvarez-Machain, 112 S. Ct. at 2198-99 (Stevens, J., dissenting).
240. Id. at 2199 n.11 (Stevens, J., dissenting).
241. 1925 P.C.I.J. (ser. B) No. 11, at 466 (May 16).
242. LEVI, supra note 182, at 210.
243. Alvarez-Machain, 112 S.Ct. at 2195; see infra notes 244-47 and accompanying
CREIGHTON LAW REVIEW
1124
[Vol. 27
implies the exclusion of all others."24 4 Therefore, the specific procedures for extradition agreed to by Mexico and the United States
should necessarily prohibit each nation from obtaining nationals of
the other treaty nation through any means other than those specified
in the Extradition Treaty. 24 5 Otherwise, under the Court's reasoning,
the extensive terms set out in the Extradition Treaty serve no useful
purpose. 2 46 The Court should have concluded that the Extradition
for extraditing individuals from one
Treaty provided the only means
24 7
other.
the
to
nation
signatory
The dissent in Alvarez characterized the Extradition Treaty provisions as comprehensive and exclusive rules pertaining to any means
of gaining custody of an individual residing in the other state. 248 The
dissent's interpretation is justified by the prior holding in Rauscher.24 9 Justice John Paul Stevens noted in his dissent that an interpretation encouraging unilateral action is inconsistent with the stated
goals of cooperation and mutual assistance stated in the Preamble to
the Extradition Treaty. 250 Under the terms of the Vienna Convention
on the Law of Treaties ("Vienna Convention"), the preamble of a treaty
is considered part of the "text" for purposes of interpretation. 25 1 The
Preamble to the Extradition Treaty should have been considered by
the Court in determining whether the abduction of Alvarez-Machain
constituted a violation of the Treaty. 25 2 The Preamble states the expressed goal of the parties to cooperate with each other. 25 3 As Justice
Stevens pointed out, an abduction of a Mexican national, from Mexiof the Mexican
can soil and without the consent or even knowledge
254
government, fails any definition of "cooperation."
B.
THE COURT'S MISAPPLICATION OF THE KER-FRISBIE DOCTRINE
In its examination of the history of the negotiations and practices
under the Extradition Treaty, the Court in Alvarez found that Mexico
was aware of the Court's decision in Ker v. Illinois255 during Extradition Treaty negotiations. 2 56 According to the Court, the Mexican gov244.
245.
246.
247.
248.
249.
250.
251.
252.
Rauscher, 119 U.S. at 420.
See supra notes 243-44 and accompanying text.
See supra notes 244-45 and accompanying text.
See supra notes 244-46 and accompanying text.
Alvarez-Machain, 112 S. Ct. at 2198 (Stevens, J., dissenting).
See supra note 244 and accompanying text.
Alvarez-Machain, 112 S.Ct. at 2198 (Stevens, J., dissenting).
ELIAS II, supra note 184, at 55.
See supra notes 250-51 and accompanying text.
253. See supra notes 88-89 and accompanying text.
254. Alvarez-Machain, 112 S. Ct. at 2198 n.4 (Stevens, J., dissenting).
255. 119 U.S. 436 (1886).
256. Alvarez-Machain, 112 S. Ct. at 2194.
1994]
EXTRADITION TREATIES
1125
ernment would therefore have insisted on express terms barring
abductions if such were its intention. 25 7 However, the Court's reli25 8
ance on the Mexican government's awareness of Ker is flawed.
25 9
In Ker, the complainant was a citizen of the United States.
Although there was an extradition treaty between the government of
Peru and the United States at the time of the abduction, the treaty
260
was never invoked because Peru did not object to Ker's abduction.
Secondly, the abduction was1 not authorized or sponsored by the
26
United States government.
Despite having knowledge of Ker, there was no reason for the
Mexican government to believe that Ker would control and allow forcible abductions despite the existence of a controlling treaty and despite formal objections by the Mexican government. 26 2 Under Ker, it
is not a violation of due process to forcibly bring a defendant before a
court. 2 63 However, the Court failed to recognize that Mexico would
also have been aware of the Court's prior decision in Rauscher.26 4 The
Court held in Rauscher that a defendant brought into this country in
violation of an extradition treaty must be repatriated, despite the KerFrisbie doctrine. 2 65 The Mexican government had no reason to believe
266
that Ker would control even in the face of their repeated objections.
The Court also failed to recognize that by signing the Extradition
Treaty, the Mexican government could reasonably rely on the
Supreme Court's decision in Cook v. United States,267 which held that
a violation of a controlling treaty would bar jurisdiction, and conclude
that the treaty would prevent either signatory from forcibly abducting
each other's nationals. 26 8 In light of Cook, the Court should not have
expected that Mexico would anticipate that an express term barring
abductions would be necessary. 26 9 Furthermore, the Mexican government could have looked to the position taken by the United States government in Eichmann for the proposition that unilateral abduction is
2 70
a violation of international law.
257.
258.
259.
260.
261.
262.
263.
264.
265.
266.
267.
268.
269.
270.
Id. at 2194-95.
See infra notes 259-70 and accompanying text.
Verdugo-Urquidez, 939 F.2d at 1345.
Ker v. Illinois, 119 U.S. 436, 443-45 (1886).
Id. at 443.
See infra notes 263-70 and accompanying text.
See supra notes 104-19 and accompanying text.
See infra notes 265-66 and accompanying text.
See supra notes 134-59 and accompanying text.
See supra note 265 and accompanying text.
288 U.S. 102 (1933).
See supra notes 154-59 and accompanying text.
See supra notes 267-68 and accompanying text.
See supra notes 204-10 and accompanying text.
1126
C.
CREIGHTON LAW REVIEW
[Vol. 27
THE COURT'S FAILURE TO APPLY PRINCIPLES OF INTERNATIONAL
LAW
The Court in Alvarez-Machain incorrectly used Ker to allow the
United States government to circumvent the object and purpose of the
Extradition Treaty. 2 7 1 The Court's conclusion that the Mexican government should have insisted on express terms barring abductions
may be inconsistent with principles of international law. 27 2 Article 27
of the Vienna Convention stipulates that the laws of a nation may not
be invoked in an international forum to justify noncompliance with
treaty provisions. 2 73 A fundamental principle of treaty law, pacta
sunt servanda, states that every treaty is binding upon the signatory
nations and its terms must be performed in good faith. 27 4 This princiits own case
ple should be extended to prohibit a nation from using
275
law to determine the extent of a treaty's application.
The Court failed to utilize this reasoning in Alvarez. 2 76 In Alvarez, the Court would not imply a term prohibiting abductions because
there was no express term to that effect. 277 The Court stated that the
Mexican government should have insisted upon an express term because they had notice of Ker-Frisbie. 2 78 This effectively violates pacta
sunt servanda because the Court is using domestic law to justify not
recognizing an implied term in the Extradition Treaty. 27 9 The Court
should have looked at principles of international law to determine
that the term barring abductions was implied in the Extradition
0
Treaty. 28
In fact, under existing principles of international law it is more
likely that Mexico would have concluded that an express prohibition
against abductions would be unnecessary. 2 1 In Right of Passage
Over Indian Territory28 2 the International Court of Justice ("I.C.J.")
held that treaties should be interpreted to conform with existing principles of international law. 28 3 This holding of the I.C.J. is consistent
with Article 31(3)(c) of the Vienna Convention on the Law of Treaties
271. See infra notes 272-80 and accompanying text.
272. See infra notes 273-87 and accompanying text.
273. ELIAS II, supra note 184, at 55 n.22.
274. Id.
275. See infra notes 276-80 and accompanying text.
276. Alvarez, 112 S. Ct. at 2188-97.
277. Id. at 2194-95.
278. Id.
279. See supra notes 271-75 and accompanying text.
280. See supra notes 271-75 and accompanying text.
281. Michael J. Glennon, State-Sponsored Abduction: A Comment on United States
v. Alvarez-Machain, 86 AM. J. INT'L. L. at 746, 748 (1992).
282. Portugal v. India (merits) 1960 I.C.J. 6 (Apr. 12).
283. LEVI, supra note 182, at 211.
EXTRADITION TREATIES
1994]
1127
("Vienna Convention"). 28 4 This section provides that "any relevant
rules of international law applicable in the relation between the par28 5
ties" shall be taken into account when a treaty is interpreted.
When looking to the Extradition Treaty to determine whether the
terms barring abductions were implied as argued by AlvarezMachain, the Court should have applied principles of international
law under pacta sunt servanda, and not United States domestic
law. 2 86 Because international law bars abductions, Mexico would not
have included an express term, and therefore, the Court's argument
that Mexico should have insisted on such a term is a violation ofpacta
2 87
sunt servanda.
Customary international law prohibits the use of force in the territory of another state. 28 8 The United Nations Charter and the Charter of the Organization of American States ("O.A.S.") both clearly
indicate this principle. 28 9 However, these charters are not self-executing. 2 90 In order to be binding on the United States, they must be specifically adopted. 29 1 Yet, the United Nations and O.A.S. Charters are
indications of principles of customary international law. 2 9 2 Therefore,
under customary principles of international law, Mexico would be justified in reasoning that an express term in the Extradition Treaty
293
prohibiting abductions was unnecessary.
The Court correctly applied international law to interpret a treaty
in Rauscher.2 94 In Rauscher, the Court referred to principles of international law to imply the doctrine of specialty into the extradition
treaty. 2 95 The Court in Rauscher concluded that the extradition
treaty did not expressly depart from the doctrine of specialty and that
therefore the term was implied. 296 The rationale applied by the Court
in Rauscher is consistent with the arguments made by Alvarez29 7
Machain in Alvarez, but inconsistent with the holding of the Court.
284. The Vienna Convention on the Law of Treaties, May 23, 1969, art. 31(3)(c), 8
I.L.M. 674.
285. Id.
286. See supra notes 271-86 and accompanying text.
287. See supra notes 271-86 and accompanying text.
288. See infra notes 289-93 and accompanying text.
289. See supra notes 199-203 and accompanying text.
290. United States v. Caro-Quintero, 745 F. Supp. 599, 614 (C.D. Cal 1990), affd,
United States v. Alvarez-Machain, 946 F.2d 1466 (1991), rev'd, 112 S. Ct. 2188 (1992).
291.
292.
293.
294.
295.
296.
297.
Caro-Quintero,745 F. Supp. at 614.
Id. at 615 n.25.
See supra notes 288-92 and accompanying text.
Rauscher, 119 U.S. at 419-20; see infra notes 295-96 and accompanying text.
Rauscher, 119 U.S. at 419-20.
Id. at 420.
Brief for Respondent, United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992)
(No. 91-712).
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In Alvarez, the Court determined that the principles of international law were too general and were not sufficiently persuasive to imply a term prohibiting abductions. 298 The Court distinguished
Rauscher as a case of implying a term from the practice of nations,
"with regard to extradition treaties," whereas Alvarez-Machain's argument required implying a term from the practice of nations "with
regards to international law more generally."2 99 Alvarez-Machain's
argument focused on the prohibition in customary international law
against violating the territory of a sovereign nation, while the argument in Rauscher focused on customary practices regarding extradition treaties. 30 0 There is no provision limiting Article 31(3)(c) of the
Vienna Convention to specific categories of international law as the
3 01
Court concluded in Alvarez.
In United States v. Verdugo-Urquidez,3 °2 the Ninth Circuit carried the holding in Rauscher one step further and concluded:
It follows a fortiori from the specialty principle that, if an individual has been kidnapped by a treaty signatory-i.e., if he
has not been extradited for any offense at all-he may not be
detained, tried or punished for any offense without
the con30 3
sent of the nation from which he was abducted.
The Ninth Circuit's holding is consistent with the principles of international law, which require that abducted individuals be returned to
the offended nation if that nation objects to the abduction.3 0 4 In Alvarez-Machain, the Mexican government did not consent to the abduction of Alvarez-Machain. 30 5 Furthermore, the Mexican government
protested the abduction of Alvarez-Machain and both the district
court and the Ninth Circuit found the objections sufficient to mandate
30 6
repatriation.
The Supreme Court failed to recognize the significance placed by
30 7
customary international law on objections by an offended nation.
An objection by the offended nation is necessary to mandate the return of the individual. 30 8 Attorney-General of the Government of
Israel v. Eichmann30 9 reiterates this rule. 3 10 In Eichmann, Argentina
298.
299.
Alvarez, 112 S. Ct. at 2196.
Id. at 2195-96.
300. Id.
301.
302.
303.
304.
305.
306.
307.
308.
See supra notes 284-85 and accompanying text.
939 F.2d 1341 (9th Cir. 1991).
Verdugo-Urquidez, 939 F.2d at 1351.
See infra notes 307-18 and accompanying text.
Caro-Quintero,745 F. Supp. at 614.
Id.; Alvarez-Machain, 946 F.2d at 1467.
See infra notes 308-18 and accompanying text.
See supra note 198 and accompanying text.
309.
36 I.L.R. 5 (1961).
310.
Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 5 (1961).
EXTRADITION TREATIES
19941
1129
objected to the abduction of Adolph Eichmann.3 1 The United Nations
Security Council adopted a resolution stating that the act violated the
sovereignty of Argentina. 3 12 The resolution requested that Israel return Eichmann to Argentina.3 13 The United States supported this
resolution. 3 14 However, once Argentina withdrew its objection, Israel
was recognized as having jurisdiction. 3 15 The same fact situation has
occurred in Alvarez-Machain.3 16 The United States violated the sovereignty of Mexico, in the same manner that Israel invaded the sovereignty of Argentina. 3 17 Yet, this time the United States vehemently
argued that the violation was justified, and the Supreme Court
3 18
agreed.
Alvarez-Machain also argued that the Mexican government's objections and the United States government's refusal to return AlvarezMachain constitute a violation of the Extradition Treaty. 3 19 The failure of the United States to repatriate Alvarez-Machain after Mexico
objected is contrary to the cooperative purpose of the Extradition
Treaty. 320 However, the Court dismissed this argument as inconsistent with the rest of Alvarez-Machain's case. 3 2 ' The Court stated that
if the Extradition Treaty exclusively governs removal of any individual from one nation to the other, then it should be invoked regardless
of whether the nation from which the individual was abducted objects. 32 2 The Court held that there should be no distinction between
treaty variations expressly or impliedly consented to by both parties
conducted by one state withand those treaty violations unilaterally
323
out the consent of the other.
This statement by the Court is indicative of the inconsistent reasoning in the Court's analysis in Alvarez-Machain.3 24 The Court addresses each argument individually, and thereby bypasses the logical
coherence of Alvarez-Machan's case. 325 The Court fails to note the
connection between the intention of the signatory nations to cooperate
311. Id.
312. Brigette Belton Homrig, 28 WAxE FOREST L. REV. 671, 700 (1993).
313. Id.
314. Brief of Amicus Curiae Minnesota Lawyers International Human Rights Committee In Support of Respondent, United States v. Alvarez-Machain, 112 S. Ct. 2188
(1992).
315.
316.
317.
318.
319.
320.
Id.
See supra notes 20-37 and accompanying text.
See supra notes 20-37 and accompanying text.
See supra notes 70-85 and accompanying text.
See infra notes 320-26 and accompanying text.
Alvarez-Machain, 112 S. Ct. at 2195.
321. Id.
322. Id.
323. Id.
324. See infra notes 325-26 and accompanying text.
325. Cf Alvarez-Machain, 112 S. Ct. at 2195.
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with each other, as expressed in the Preamble and the express terms
3 26
of the Extradition Treaty, and the objections by Mexico.
CONCLUSION
The governments of Mexico and the United States entered into
the Extradition Treaty Between the United States of America and the
United Mexican States ("Extradition Treaty"). 3 27 By abducting
Humberto Alvarez-Machain, the United States violated a fundamental principle of international law and breached the Extradition Treaty.
Despite repeated protests by the Mexican government, the United
States Supreme Court failed to honor the cooperative purposes of the
treaty by failing to repatriate Alvarez-Machain.
The Extradition Treaty should be the exclusive means for the
United States and Mexico to gain custody of each other's nationals.
The Court's interpretation of the Extradition Treaty leads to absurd
results. The Court was selective in its evaluation of the Mexican government's knowledge prior to signing the Extradition Treaty. Ker v.
Illinois32 8 was not the only controlling authority with which Mexico
may have been familiar. The Court overlooked the duty of the United
States to act in good faith and disregarded international law in favor
of United States domestic law. The Court should have determined
that the Extradition Treaty was violated by the United States government's unilateral abduction of Humberto Alvarez-Machain.
The United States Supreme Court in United States v. AlvarezMachain32 9 allowed an abuse of power by the United States to remain
unchecked. The United States, as a world power and model democracy, has an obligation to be an example of lawfulness. In failing to
recognize such an obvious violation of Mexico's sovereignty and such a
clear breach of the Extradition Treaty, the Court has set a dangerous
precedent.
Leigh Ann Kennedy-'95
326. Id.
327. Extradition Treaty Between the United States of America and the United Mexican States, May 4, 1978, U.S.-Mex., 31 U.S.T. 5059.
328. 119 U.S. 436 (1886).
329. 112 S. Ct. 2188 (1992).