Public international law
A Legal Memorandum
United States V. Alvarez-Machain, 504 U.S. 655 
This case is about Dr. Humberto Alvarez-Machain, a citizen of Mexico, was forcibly kidnapped from his home in April of 1990 and flown by private plane to Texas, USA where he was arrested for his participation in the kidnapping and murder of an American Drug Enforcement Administration (DEA) agent and the agent's pilot in Mexico. This was a violation of international law and the principle of sovereignty; furthermore the US did not abide by the Extradition Treaty.
Summary Of Facts
Alvares Machain stated that “the District Court lacked jurisdiction to try him” because he was forcefully abducted from his country for the crimes which committed were in Mexico; under the principle of territorial, Mexico has jurisdiction.
Despite vigorous protests from the Mexican government, Alvares was still tried in United States District Court in Los Angeles. Furthermore, the USA District Court, also found that the US lacked jurisdiction by concluding that DEA agents had orchestrated the abduction (violation of international law and the principle of sovereignty), and the US did not abide by the extradition treaty between the United States and Mexico (Extradition Treaty 1978).
Alvares Machain was ordered by the USA District Court to return to Mexico. The United States appealed the decision. The court of appeals agreed with the earlier ruling by finding the “purpose” of the treaty was violated by the forcible abduction. The United States then appealed to the U.S. Supreme Court.
The U.S. Supreme court found that, since the United States had authorised the abduction and since the Mexican government had protested the Treaty violation, jurisdiction was for the courts to decide. The Supreme Court held that the fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws. While claiming for justice and fairness, the US on the other hand clearly was in breach of International Laws by abducting a citizen of another state.
The United States Supreme Court Invoked the "Ker-Frisbie Doctrine" which was established in the cases of Ker v. Illinois  and Frisbie v. Collins . It was held that the trial court's jurisdiction was not affected by the manner in which the accused was brought before it. This will create international alarm and concern as other states will fear that such a decision would encourage further such abductions. The trial resulted in an acquittal due to the illegality of his arrest.
1) Issue: Jurisdiction
We as the defence prosecution for the respondent will focus intensely on the legality of his arrest. The first legal issue is the illegal kidnapping of the Mexican citizen in spite of an existence of an extradition treaty between the United States and Mexico which was signed in 1978, which violates International Law.
2) Issue: Violation Of Extradition Treaty
The second legal issue which arises from the U.S prosecuting the respondent under their jurisdiction in their Domestic Courts. This is also clearly a violation against customary International Law (under the principle of Territorial and Nationality), for a suspect to be tried for crimes committed in another state instead of the International Court of Justice to decide where the suspect should be tried.
3) Issue: Did Not Make Use Of The Extradition Treaty
The third legal issue is that the US also ignored the existence of an extradition treaty by taking matters into their own hands instead of waiving and negotiating for Alvares Machain to be extradited by Mexico. Moreover, the U.S. did not have jurisdiction over the respondent (Alvares), because the crimes were committed in Mexico. This undermines the sole purpose of an Extradition Treaty.
4) Issue: The Treaty Stipulates How To Go About In Matters Of Extradition
The fourth legal issue is that, in fact Article 9 of the treaty allowed for Mexico to deny U.S. extradition requests and the argument is that the treaty did not expressly recognise the Ker-Frisbie doctrine. The parties had announced their purpose in the preamble of the Treaty: The two States desire was to closely cooperate in the fight against crime and mutually render better assistance in the matters of extradition. It is also stated that neither contracting party is bound to deliver up its own nationals, although it may do so in its discretion, but if it does not do so, it “shall submit the case to its competent authorities for purposes of prosecution.”
“Article 9 deals with the extradition of nationals. It is similar to provisions in some of our other recently signed extradition treaties. It grants the executive the discretionary power to extradite its own nationals. If extradition is denied on the basis of nationality, the requested Party undertakes to submit the case to its competent authorities for the purpose of prosecution, provided that Party has jurisdiction over the offense. This article thus takes into account the law of Mexico prohibiting the extradition of its nationals but allowing for their prosecution in Mexico for offenses committed abroad.”
5) Issue: Violation Of The Principle Of Sovereignty
The fifth and final issue is that, by the US kidnapping Alvares from Mexico without making use of the Extradition Treaty (by use of negotiations) they violated Mexico`s Sovereignty. Furthermore, as established in the case of The Republic of Nicaragua v. The United States of America  by the International Court of Justice (ICJ); held in favour of Nicaragua and against the United States by stating that no country has a right to enter another country and do what they want because it's a violation of the principle of sovereignty. The doctrine of non-intervention also stated that the U.S did not have a right to interfere with the state affairs of Nicaragua. Under international law even the police (who have authority) have no power to enter another country and arrest a citizen who is not under their jurisdiction.
The United States has clearly violated the principle of sovereignty by directly orchestrating the abduction of a Mexican citizen on Mexican soil against the wishes of the Mexican government.
The abduction and trial will severely strain the relations between the United States and Mexico and attracted substantial negative international reaction of not only allies, but also countries like Iran and China as well, concerning human rights issues. This is a violation of the Human Rights Conventions.
In the case of Pinochet  where in the House of Lords summarised the principle of State Immunity Under international law, which entitles states to immunity from the jurisdiction of other states in respect of matters which are considered to be public acts of a state. Also known as sovereign immunity according to this doctrine one state should not be able to challenge the sovereign acts of another state by allowing such acts to be made subject to the former state's jurisdiction. Lord Browne-Wilkinson also posed the following question:
“How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises?”
To the astonishment of the international law community, the U.S Supreme Court derived its decision in this case entirely from its own previous decisions, avoiding any use of relevant decisions by courts of other nations. Furthermore in the case of Itel Containers International Corporation v. Huddleston , showed how foreign governments' interpretations of treaties carried little weight in American courts. Even sections on treaty interpretation in the 1980 Vienna Convention were overlooked. This tends to violate the International principle of jurisdiction.
The Courts have treated a case with international implications solely as a domestic case with domestic precedents and domestic answers. This is clearly illustrates how when an international case is dealt at a domestic level, the issue raised is never given a fair and justified trial.
Hence the recommendations for the issues stated on the above case are;
The Kidnapping of Alvares Machain due to his alleged crimes was a violation of International Law and the principle of Sovereignty and the US must give compensation to the respondent.
The existence of an Extradition Treaty which was sighed and rectified between the two states, the United States should have respected the terms of the treaty and negotiated a peaceful agreement on how to extradite and tried the respondent in a fair and reasonable manner.
The Mexican government by way of negotiating would have decided to open a commission of enquiry (since it was their citizen who had committed a crime in another state); who would have helped the U.S government to investigate whether Alvares was guilty of the charges against him. This would have made the Mexican government willing to abide by the terms of the existing Extradition Treaty.
After handing the respondent to the U.S, under the principle of Territorial and Nationality the ICJ would have decided where the trial would take place. In respect of justice and fairness this would avoid the U.S from prosecuting Alvares in their own domestic courts and being bias.
We the defence prosecution party firmly state that, the U.S should follow procedures and abide by the rules enacted by the International law and also follow international law precedents. The extradition treaty was sighed and ratified for a reason, and if they had asked the Mexican government to extradite Dr Alvares for his wrongful acts then they could have negotiated a peaceful and justified agreement rather than take matters in their hands and violate International Law. The Kidnapping of our Client was despicable and the Courts should award damages to my client for the trauma and emotional distress caused by the act. Furthermore, the U.S Domestics Courts should not have prosecuted the respondent because it hinders international standards of good faith and liberal interpretation. The U.S Domestic Courts should have taken the matter to the international courts; where the respondent would have heard a fair and non-bias hearing.
As illustrated in the case of Pinochet, such developments can only take place through the direct consent of states in the form of treaties which provide for universal jurisdiction in respect of specific crimes and moreover, national courts do not provide the best forum for the hearing of such cases, hence the need to ensure the full establishment of the International Criminal Court becomes paramount. Commenting on the precise issue raised by this case, the chief reporter for the American Law Institute's Restatement of Foreign Relations used language reminiscent of Justice Story's characterisation of an official seizure in a foreign jurisdiction as "monstrous:"
“When done without consent of the foreign government, abducting a person from a foreign country is a gross violation of international law and gross disrespect for a norm high in the opinion of mankind. It is a blatant violation of the territorial integrity of another state; it eviscerates the extradition system (established by a comprehensive network of treaties involving virtually all states).”
All this would then ensure that no floodgates are mitigated into other states taking precedent. As the international law motto always tries to maintain peace and harmonious relations among states.
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By J. Craig Barker
By J. Craig Barker
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