Defensively Invoking Treaties in American Courts: Jurisdictional Challenges Under the U.N. Drug Trafficking Convention by Foreign Defendants Kidnapped Abroad by U.S. Agents

112 Pages Posted: 27 Dec 2008  

Thomas M. McDonnell

Pace University School of Law

Date Written: 1996

Abstract

This article unravels the non-self-executing treaty doctrine, examines the invocation of a treaty as a defense to governmental action, and develops a test for when an individual (rather than a government) may assert a treaty defensively in state or federal courts. Lastly, this Article applies this test to state-sponsored kidnapping and the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The parties to this treaty, whIch was sponsored by the United States, barred one country's law enforcement agents from operating without permission on another country's soil and rejected a provision requiring a country to extradite its own citizens. This article demonstrates that, had the Convention been in effect when the Supreme Court decided United States v. Alvarez-Machain, the Court would have been constrained, even under its flawed reasoning in interpreting the extradition treaty at issue there, to have recognized the challenge to the trial court's personal jurisdiction brought by the Mexlcan physician abducted from Guadalajara by paid agents of the United States.

Suggested Citation

McDonnell, Thomas M., Defensively Invoking Treaties in American Courts: Jurisdictional Challenges Under the U.N. Drug Trafficking Convention by Foreign Defendants Kidnapped Abroad by U.S. Agents (1996). William & Mary Law Review, Vol. 37, 1996. Available at SSRN: https://ssrn.com/abstract=1319767

Thomas M. McDonnell (Contact Author)

Pace University School of Law ( email )

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