Comment, Customary International Law, Forcible Abductions and America’s 'Return to the Savage State'
Douglas J. Sylvester
Arizona State University - College of Law
Buffalo Law Review, Vol. 42, p. 555, 1994
Part I of this Article will review the factual background of the Alvarez-Machain decision and discuss the holding of the Court. Part H will critically examine the domestic precedents upon which the decision was founded. In so doing, it will show that these precedents did not require the decision that the Court reached. Part III will establish that the abduction of Alvarez-Machain did in fact violate customary international law, but will note that courts in the United States have become reluctant to apply that law against the executive. Part IV will place the courts' reluctance in the context of broad historical trends of jurisprudence. Part V will establish that, despite these trends, United States courts were originally intended to apply and enforce customary international law. Finally, Part VI will address and refute some of the major theoretical arguments against a modern judicial application of customary international law. In the end, this Article will argue that customary international law should be applied domestically against the executive, because to do so is consistent with history and with the Constitution, and is in the long-term international best interests of the United States.
Number of Pages in PDF File: 67
Keywords: Customary international law, state sovereignty, Alvarez-MachainAccepted Paper Series
Date posted: August 31, 2009
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