¹ May 4, 1978, U.S.-Mex., 31 UST 5059 (entered into force Jan. 25, 1980).

² United States v. Caro-Quintero, 745 F.Supp. 599 (CD. Cal. 1990).

³ 119 U.S. 436 (1886).

⁴ 342 U.S. 519 (1952).

⁵ See Charles Fairman, Ker v. Illinois Revisited, 47 AJIL 678, 685 (1953). The political situation in Peru was not mentioned in the Supreme Court's opinion in Ker.

⁶ In one portion of the opinion, the Court implicitly assumed that Ker's abductor was not merely a private individual but a state actor when it addressed Ker's argument that his abduction violated his due process rights. Although the Court rejected Ker's argument, it did so on the ground that due process does not govern the manner in which a defendant is brought before the court, not on the ground that Ker's abduction had been a private act unbound by constitutional constraints. Ker, 119 U.S. at 439–40. In a different portion of the opinion, which related to whether Ker's abduction violated the extradition treaty with Peru, the Court, ruling that it did not, noted that the extradition treaty “was not called into operation, was not relied upon, was not made the pretext of arrest, and the facts show that it was a clear case of kidnapping within the dominions of Peru, without any pretence of authority under the treaty or from the government of the United States.” Id. at 443 (emphasis added). Cf. Fairman, supra note 5, at 680 & n.10 (questioning the view that Ker's abductor was deemed a mere private citizen). The Court subsequently extended the Ker principle to include domestic abduc tions by government agents. Cook v. Hart, 146 U.S. 183, 190 (1892); Pettibone v. Nichols, 203 U.S. 192, 207–09 (1906); Frisbie v. Collins, 342 U.S. 519 (1952). Both the majority and the dissent in Alvarez believed the Ker decision to have been premised on the assumption that Ker's abductor had been acting as a private individual. 112 S.Ct. at 2193 & id. at 2197 (Stevens, J., dissenting).

⁷ See, e.g., 1 Lassa Oppenheim, International Law 295 n.1 (Hersch Lauterpacht 8th ed., 1955); State v. Brewster, 7 Vt. 118 (1835).

⁸ Cf. Restatement (Third) of the Foreign Relations Law of the United States §432 comment c (1987) [hereinafter Restatement].

⁹ Id. §432(2) & comment c.

¹⁰ In some early cases, the Supreme Court held that violation of customary international law in seizing a ship did not affect the court's jurisdiction in a subsequent forfeiture proceeding. See The Ship Richmond, 13 U.S. (9 Cranch) 102, 104 (1815); The Merino, 22 U.S. (9 Wheat.) 391, 399 (1824). The continuing validity of these decisions has been questioned. See E. D. Dickinson, Jurisdic tion Following Seizure or Arrest in Violation of International Law, 28 AJIL 231, 241, 245 (1934). Moreover, it has been observed that “one may recognize between offences against the revenue laws and ordinary criminal offences a distinction which might justify a different approach by the courts to the problem of the original, unlawful arrest.” Paul O'Higgins, Unlawful Seizure and Irregular Extra dition, 1960 Brit. Y.B. Int'l L. 279, 283.

¹¹ 119 U.S. 407 (1886). Rauscher and Ker were decided on the same day. Both decisions were authored by Justice Samuel F. Miller.

¹² Aug. 9, 1842, U.S.-Gr. Brit., Art. X, 8 Stat. 572 (entered into force Oct. 13, 1842).

¹³ 273 U.S. 593 (1927).

¹⁴ 288 U.S. 102 (1933).

¹⁵ The treaty in these two Prohibition-era cases governed the right of the United States to board private ships sailing the British flag in order to search for contraband alcohol. The treaty expressly prohibited the United States from boarding beyond a certain distance from the U.S. coast. In each case, agents of the United States boarded outside the permissible zone and found contraband, which led to a criminal prosecution in Ford and a civil forfeiture proceeding in Cook. The Court indicated in those cases that, because the treaty was self-executing and prohibited the seizures, the United States lacked jurisdiction over the defendants, although the Court ruled in Ford that the defendants had waived the issue. See Stefan A. Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 AJIL 892, 894 (1980).

¹⁶ In United States v. Toscanino, 500 F.2d 267 (2d Cir.), reh'g denied, 504 F.2d 1380 (2d Cir. 1974), the Second Circuit created an exception to Ker-Frisbie based on shocking government conduct—such as kidnaping combined with torture at the hand of U.S. agents. See also United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert, denied, 421 U.S. 1001 (1975). That exception, which has never been addressed by the Supreme Court, has been rejected outright by the Seventh Circuit. Matta-Ballesteros v. Henman, 896 F.2d 255, 263 (7th Cir.), cert, denied, 111 S.Ct. 209 (1990).

¹⁷ 939 F.2d 1341 (9th Cir. 1991), vacated and remanded, 112 S.Ct. 2986 (1992). Verdugo's case had previously been before the Supreme Court on a different issue. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), summarized in 84 AJIL 747 (1990). See also Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, Continued, 84 AJIL 444, 491–93 (1990).

¹⁸ 939 F.2d at 1343.

¹⁹ United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991).

²⁰ Following that decision, the Supreme Court vacated the Ninth Circuit's judgment in Verdugo and remanded for further consideration in light of the decision. United States v. Verdugo-Urquidez, 112 S.Ct. 2986 (1992).

²¹ 112 S.Ct. 2188, 2193.

²² Although, strictly speaking, the issue was not before the Court, several amici argued that custom ary international law requires Alvarez's repatriation, separately and apart from any rights Alvarez may have under the Treaty. See, e.g., Amicus Brief Filed by the Lawyers Committee for Human Rights in United States v. Humberto Alvarez-Machain, reprinted in Ruth Wedgwood, The Argument against International Abduction of Criminal Defendants, 6 Am. U. J. Int'l L. & Pol'y 537, 565–69 (1991).

²³ The term “fugitive” will be used here generally to refer to any person sought for criminal prosecution.

²⁴ Alvarez, 112 S.Ct. at 2194.

²⁵ 119 U.S. at 442.

²⁶ See, e.g., Fairman, supra note 5, at 681 (“When State A makes an extradition treaty with State B, A's object is to provide for obtaining custody of fugitives from its justice, not to confer upon such fugitives a right of asylum that would avail against A's claim.”); Edward M. Wise, Some Problems of Extradition, 15 Wayne L. Rev. 709, 711 (1969).

²⁷ The majority also rejected Alvarez's second argument—that the international law prohibition against abduction is implicit in the Treaty—as unsupported by precedent. It observed that the prece dents which established that abduction violates customary international law did not relate to the practice of nations under extradition treaties and therefore did not govern the issue before the Court, which was specifically whether the Treaty prohibits abduction. 112 S.Ct. at 2195.

²⁸ Id.

²⁹ Id. at 2198 (Stevens, J., dissenting). Extradition treaties are considered self-executing from the perspective of a defendant facing extradition from the United States to a foreign country, not vice versa. Cf. Restatement, supra note 8, §476 comment a; United States v. Cordero, 668 F.2d 32, 38 (1st Cir. 1981) (no right to be brought to the United States solely in accordance with terms of treaty); United States v. Valot, 625 F.2d 308, 310 (9th Cir. 1980) (holding similarly). For a defendant extra dited to the United States, only the doctrine of specialty is, in some sense, self-executing. However, the surrendering nation retains the power to waive the doctrine over the defendant's objection. See, e.g., United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986). Specialty is, therefore, sui generis.

³⁰ During oral argument, Justice O'Connor asked Alvarez's counsel the following:

Q. Mr. Hoffman, assuming that the kidnapping was a violation of international law, do you assert that gives a U.S. court any power to remedy the situation?

A. Justice O'Connor, I believe that—

Q. In a subsequent prosecution of the individual?

A. That raises different questions, clearly, than the ones upon which this case was decided. …

Q. Well, if we were to conclude the treaty doesn't cover this, do you fall back on some violation of international law?

A. Justice O'Connor, there were alternative grounds for affirmance that were presented to the Ninth Circuit and the courts below. Those have not been ruled upon either by the district court or the Ninth Circuit and presumably those would be litigated if this Court finds that there is no provision in the treaty.

Transcript of Oral Argument at 34-35, United States v. Alvarez-Machain (No. 91-712).

³¹ 112S.Ct. at 2196.

³² 175 U.S. 677 (1900). The case, although cited in some of the briefs, was cited neither by the majority nor by the dissent in Alvarez.

³³ Id. at 700.

³⁴ See, e.g., Agora: May the President Violate Customary International Law?, 80 AJIL 913 (1986), and 81 AJIL 371 (1987); Michael J. Glennon, RaisingThe Paquete Habana: Is Violation of Customary International Law by thi Executive Unconstitutional?, 80 Nw. L. Rev. 321 (1985); Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. Rev. 1071, 1117 n.240 (1985).

³⁵ Even in the highly criticized decision in Garcia-Mir v. Meese, 788 F.2d 1446, 1454 (11th Cir.), cert, denied sub nom. Ferrer-Mazorra v. Meese, 479 U.S. 889 (1986), which upheld the detention of Cuban refugees in violation of customary international law, the Eleventh Circuit began with the presumption that customary international law governed and then identified a specific act of the Attorney General, which it deemed to be the “controlling executive act” that overrode the require ments of international law.

³⁶ For example, there was evidence in the record that Alvarez's abduction had been authorized by the Deputy Director of the DEA. See United States v. Caro-Quintero, 745 F.Supp. 599, 603 (CD. Cal. 1990). While it is extremely doubtful that such midlevel authorization constitutes a suitable “control ling executive act,” the Court might have used that evidence as a springboard for discussing what would constitute a controlling executive act sufficient to override the requirements of customary international law.

³⁷ 112S.Ct. at 2196.

³⁸ See Marian Nash Leich, Contemporary Practice of the United States Relating to International Law, 78 AJIL 200, 207–09 (1984); see also Wade A. Buser, Note, The Jaffe Case and the Use of International Kidnapping as an Alternative to Extradition, 14 Ga. J. Int'l & Comp. L. 357 (1984); Kristofer R. Schleicher, Note, Update, Transborder Abductions by American Bounty Hunters—The Jaffe Case and a New Understanding Between the United States and Canada, 20 Ga. J. Int'l & Comp. L. 489 (1990). The dissent in Alvarez referred to this incident for a different principle. 112 S.Ct. at 2204 n.30 (Stevens, J., dissenting).

³⁹ Jaffe was abducted by bounty hunters acting in their private capacities. While such an abduction is a private act that does not violate customary international law, some commentators have argued that by retaining custody over a privately abducted defendant, a nation becomes an accessory after the fact in violation of international law. See, e.g., F. A. Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity 407 (Yoram Dinstein & Mala Tabory eds., 1989), reprinted in Further Studies in International Law 339, 340 (1990); cf Restatement, supra note 8, §711 Reporters' Note 2(B).

⁴⁰ The dissent's view eliminates the problem. Because the Treaty is the supreme law of the land, it is equally binding in state and federal courts, and its violation would prohibit a state prosecution follow ing abduction just as it would a federal prosecution.

⁴¹ Restatement, supra note 8, §111(1), (3) & comment d.

⁴² 28 U.S.C. §2254(a) (1988).

⁴³ See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936).

⁴⁴ See Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 882–85 (1987); Restatement, supra note 8, §115 Re porters' Note 3. But see Glennon, supra note 34, at 324–25, 339; Lobel, supra note 34, at 1120.

⁴⁵ Document of Conclusions of the Second Ibero-American Summit of Heads of State and of Government, Summit Press Release (July 23 & 24, 1992) (English trans.). It is questionable, however, whether an advisory opinion may properly be rendered by the Court on a question that relates directly to the main point of a dispute actually pending between two states. Shabtai Rosenne, The Law and Practice of the International Court 716 (2d rev. ed. 1985); cf. Status of Eastern Carelia, 1923 PCIJ (ser. B) No. 5 (Reply of the Court of July 23, 1923, to Request for an Advisory Opinion).

⁴⁶ United States v. Alvarez-Machain, No. 90-50459, 1992 U.S. App. lexis 16816 (9th Cir. July 27, 1992). As this issue was going to press, Alvarez filed a petition for rehearing en banc.

⁴⁷ Id.

⁴⁸ 112 S.Ct. at 2195.