ALVAREZ-MACHAIN, UNITED STATES v. 504 U.S. 655 (1992)

The Constitution requires the President to "take Care that the Laws be faithfully executed." Those laws include both treaties and customary international law. In United States v. Alvarez-Machain (1992), however, the executive branch effectively ignored the obligations of the United States under international law, and still it was upheld by the Supreme Court.

Humberto Alvarez-Machain, a Mexican citizen, was indicted for participating in the kidnapping, torture, and murder of a U.S. Drug Enforcement Administration agent. Rather than seek Alvarez-Machain's extradition, the United States offered a reward for his abduction and delivery to the United States. Mexico protested that the abduction violated its extradition treaty with the United States, which provided that neither nation was bound to deliver up its own nationals but that each would have discretion to do so upon the request of the other.

In a 6–3 decision, the Supreme Court concluded that the treaty did not "specify the only way in which one country may gain custody of a national of the other country for the purposes of prosecution" and that, in the absence of an express prohibition, forcible abduction did not violate the treaty. The Court, in a majority opinion authored by Chief Justice william h. rehnquist, acknowledged that such an abduction might still violate "general international law principles," but held that the district court retained jurisdiction because under the venerable Ker–Frisbie rule "the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court's jurisdiction by reason of a 'forcible abduction.' "

Unfortunately, Alvarez-Machain is not the only case in which the executive branch's decision to ignore its treaty obligations has been upheld by the Court. In Sale v. Haitian Centers Council (1993), the executive took the position that the United Nations Convention Relating to the Status of Refugees, which forbade its signatories to "return … a refugee in any manner whatsoever" to a country where that refugee would suffer persecution, did not prohibit the U.S. Coast Guard from returning refugees intercepted at sea to Haiti. The Court agreed. In Breard v. Greene (1998), the United States effectively conceded that the Vienna Convention on Consular Relations had been violated because Virginia had not notified a Paraguayan citizen arrested for murder of his right to consular access. The executive branch argued, however, that the Paraguayan citizen had defaulted this claim by not raising it earlier and that Paraguay was not entitled to bring suit in federal court for a violation of the treaty. The Court agreed. Such cases cast doubt not only on the President's commitment to "take Care that the Laws be faithfully executed" but on the reliability of the United States as a treaty partner as well.

William S. Dodge
(2000)

Bibliography

Glennon, Michael J. 1992 State-Sponsored Abduction: A Comment on United States v. Alvarez-Machain. American Journal of International Law 86:746–756.

Halberstam, Malvina 1992 In Defense of the Supreme Court Decision in Alvarez-Machain. American Journal of International Law 86:736–746.

Mann, F.A. 1989 Reflections on the Prosecution of Persons Abducted in Breach of International Law. Pages 407–421 in Yoram Dinstein, ed., International Law at a Time of Perplexity. Dordrecht, The Netherlands: Martinus Nijhoff Publishers.

Vagts, Detlev F. 1998 Taking Treaties Less Seriously. American Journal of International Law 92:458–462.