Amicus Curiae Brief — United States v. Alvarez-Machain

we

|

‘ye

p™

ss

5 ’

‘

‘ ‘

1 8

ate

.

ve

\

i

fl

9

“|

=

|

*

.

et :

‘

[BEST AVAILABLE CORT

eee a PAS es Ai

Re

: ? re i te. 5 ay ' af re ey Lie *

‘ iy.

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE .................... ]

EES EEE EE «a 3

1. The Mexican Government’s Protests ....... 3

2. The United States’ Complicity in

Respondent’s Abduction ................cc000000- 5

i

SUMMARY OF ARGUMENT. .............cccccocsssssssceceeceess

[RPTETIIIIEITET cickssistintaniinnbaneusciuscineddndetetinnednantoooesoscenssesees 10

I. ABSENT CONSENT BY MEXICO TO A LESS

FORMAL RENDITION OF OFFENDERS, THE

EXTRADITION TREATY PROVIDES THE

SOLE MEANS BY WHICH THE UNITED

STATES MAY SECURE AN OFFENDER

PET TEENIE? <cdiisatsiesescenetioasenssmbienicisennntaiennmecs 10

A. The Treaty Prohibits U.S. Government-

Authorized or Sponsored Abductions of

Persons from Mexican Territory for Trial

Ir eee 10

B. Respondent’s Abduction Has Deprived

Him of the Special Safeguards Stipulated

in the Treaty for Nationals of the Sig-

i(k EES RE RRR Ce ee 13

C. Respondent’s Abduction Violated Three

Other Recent Accords Between Mexico

and the United States ...............ccccccccceee. 17

Il. THE RULE ANNOUNCED IN KER V. IL-

oa DOES NOT GOVERN THIS

SEIEEET canes einenentncntebnnneensamaumtuentidiiinsiieeseccomene 21

III. INTERNATIONAL LAW MANDATES

THAT RESPONDENT BE RETURNED TO

SRE SIS Se 27

TIENEN ‘scidunbtpatebailiisbnebinettasieupmcineeniminnasersedakoes 30

il

TABLE OF AUTHORITIES

Cases:

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

(1GBE) .cccccccccccscoccecscnnncsnnnneanee

Chorz6w Factory case (Germany v. Poland) 1928

P.C.1d., 008. A., FeO. BG ccccecsmeeeee

Cook v. United States, 288 U.S. 102 (1933) ..........

Cosgrove v. Winney, 174 U.S. 64 (1899) ................

Ford v. United States, 273 U.S. 593 (1927) ..........

Frishie v. Collins, 342 U.S. 519 (1952) .........000.....

9,25

Ker v. Illinows, 119 U.S. 436 (1886) .. 9,21,22,23,24,25,26

Ker v. Illinois, 110 Ill. 625 (1884) «2.00.00... eee

Matta-Ballesteros v. Henman, 896 F.2d 255 (7th

Cir.) cert. denied, _. U.S. —— (1990) ..........

The Paquete Habana, 175 U.S. 677 (1900) ............

The Schooner Exchange v. McF addon, 7 Cranch (11

UB.) 226 (IBRD) .occccecccsosconsssvenusennneee

The Ship Richmond v. United States, 9 Cranch (13

U.S.) 108 (1B1B) ......cccccscosssenssnsume

United States v. Lira, 515 F.2d 68 (2d Cir.

BOT) cccccvecccccccecsennesseesennnnnsiannnnnn

United States v. Rauscher, 119 U.S. 407 (18886) ....

United States v. Toro, 840 F.2d 1221 (5th Cir.

) | NN NE

United States v. Verdugo-Urquidez, 939 F.2d 1341

(9th Cir. 1991), cert. pending, No. 91-670 ......

United States v. Yunis, 924 F.2d 1086 (D.C. Cir.

BOGE) ..cccocconcesoesesnsssnceenssnscnsnninn

Conventions and Treaties:

Agreement between the United States of America

and the United Mexican States on Cooperation

in Combatting Narcotics Trafficking and Drug

Dependency, done in Mexico City February 23,

1989, entered into force July 30, 1990, T.I.A.S.

22

25

27

10

30

25

27,30

25

6,25

25

No. __, reprinted in 29 I.L.M. 58 (1990) . 18,19,20

ill

Table of Authorities Continued

: Page

Charter of the Organization of American States of

April 30, 1948, 2 U.S.T. 2394, T.I.A.S. No.

2361, 119 U.N.T.S. 3, as amended by the Pro-

tocol of Buenos Aires of February 27, 1967,

21 U.S.T. 607, T.I.A.S. No. 6847, Article

a... scensnvececsoccoccscces 11

Charter of the United Nations of June 26, 1945, 59 Stat.

1031, T.S. No. 993:

I Fe osc vcccccccscsnsvcssvesescoovesscess 1]

i inccctncnsccesssseecevcevesersvesesese 3

Extradition Treaty between the United States of America

and the United Mexican States with Appendix, done

in Mexico May 4, 1978, entered into force January

25, 1980, 31 UST. 5059, T.1.A.S. No. 9656:

asc cviccsnccssasenscesesevesees passim

a cccesecunencoceses 17

a scocnsesonsecences 16

a cececonescsocess 7,13

Treaty of Cooperation Between the United States

of America and the United Mexican States for

Mutual Lega] Assistance, done in Mexico De-

cember 9, 1987, entered into force May 3, 1991,

T.LA.S. No. __, reprinted in 27 I.L.M. 443

a cccensecons 18

Treaty of Extradition between Mexico and the

United States of April 22, 1899, 31 Stat. 1818,

i cccesccncasencsecensceseccscees 12

Treaty of Extradition between Mexico and the

United States of May 20, 1862, 12 Stat. 1199,

i cccccacescnseeccnescseoesecevesees 12

United Nations Convention Against Illicit Traffic in Nar-

cotics Drugs and Psychotropic Substances, done at

Vienna December 20, 1988, entered into force for the

United States and for Mexico November 11, 1990,

T.LA.S. No. —__, reprinted in 28 I.L.M. 493 (1989):

Table of Authorities Continued

SI UF aississidamnniniviaciuntetind anne ne a 20

Vienna Convention on the Law of Treaties, May 23, 1969,

reprinted in 63 Am.J.Int’l L. 875 (1969):

SOIREE SE \cicitislanisieacasneddasbecmiacteasiciaanstadneniumimens 11,18

Mexican Constitution and Laws:

Mexican Political Constitution:

a” BR eS cae Nes SA mek es As, 15,16

PX ER Seem a Ee bp ANT a 15,16

Ee ctctctitidtiidsatciied ee Lae 16

Ley de Extradicién Internacional of December 22, 1975:

eee hase ee, AES. 14

PY TT ccsktnannaadescccectemnsentantnitates eee aeek: 16

Miscellaneous:

Exec.Rep. M, Extradition Treaty with the United

Mexican States, 96th Cong., lst Sess.

RSET ELAR ER EEE Ree lee fae rl tke ee 14

Fairman, Ker v. Illinois Revisited, 47 Am.J.Int’] L.

fF RSPRE LAIR SOPs oe ee en 22

Garcia-Mora, Criminal Jurisdiction of a State Over

Fugitives Brought From a Foreign Country by

Force or Fraud, A Comparative Study, 32

SS ee oe - 29

Harvard Research in International Law, Draft Convention

on “Jurisdiction with Respect to Crime,”’ 29 Am.J. Int’!

L.Supp. 435 (1935):

SE citcenenbuiseninisinniiameliie ee Oe 27,28

Lewis, Unlawful Arrest, A Bar to the Jurisdiction

of the Court, or Mala Captus Bene Detentus?

idney Jaffee: A Case in Point, 28 Crim.L.Q.

Dee GE aiscicincttesniictainiiaee eee 29

Table of Authorities Continued

Lowenfeld, U.S. Law Enforcement Abroad: The

Constitution in International Law, Continued,

84 Am.J.Int’l L. 444 (1990) ...................cecceeee

2 Moore, Digest of International Law § 204

SUITED cssecininwsicsnehiantenesciseieitniiteanebascuainatdiunualepesbinntien

PRTG coccoconcosecsscsescnsstssenonesssnotentavesseaneasacesonsasaes

Morgenstern, Jurisdiction in Seizures Effected in

Violation of International Law, 29 Brit.Yb.

Tc Se Ge ieectnseitntnaitennninnsnpsinsanedenisiiasioren

1 Oppenheim’s International Law (Lauterpacht ed.,

SE MI. TTI svicencnccoctcnndcossdascatennstocanbsbeceussonosene

Restatement (Third) Foreign Relations Law of the

United States, § 476 (1987) .......ccccccscccccccsesceese

Scott, Criminal Jurisdiction of a State Over a

Defendant Based Upon Presence Secured by

Force or Fraud, 37 Minn.L.Rev. 91 (1958) ....

Bem. Bebe BF cncescecsscacsocesesscccesosnceseccncnnccsssassassees

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-712

UNITED STATES OF AMERICA,

Petitioner,

7a

HUMBERTO ALVAREZ-MACHAIN,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR THE UNITED MEXICAN STATES AS

AMICUS CURIAE IN SUPPORT OF AFFIRMANCE

Pursuant to Rule 37 of the Rules of this Court, the

United Mexican States (Mexico) respectfully submits this

brief as amicus curiae in support of affirmance of the

judgment of the United States Court of Appeals for the

Ninth Circuit of October 18, 1991. By letters lodged with

the Clerk of the Court, the petitioner and the respondent

have consented to the filing of this brief.

INTEREST OF THE AMICUS CURIAE

The respondent, Humberto Alvarez-Machain, is a na-

tional of Mexico. Until his abduction from Mexican terri-

tory, arranged by United States law enforcement officers,

he was a resident of Mexico. Respondent was forcibly

brought to Los Angeles where he was charged in federal

court with complicity in the kidnapping and murder of a

DEA agent in Mexico.

On this writ of certiorari, the Court will necessarily

consider whether respondent’s forcible removal from Mex-

ican territory was in contravention of the existing extra-

dition treaty with Mexico and of general principles of

international law, mandating respondent’s return to Mex-

ico.

Mexico regards respondent’s abduction from Mexican

territory as a deliberate disregard by the United States

of its obligations under the extradition treaty. Respondent’s

abduction by agents of the United States is incompatible

with established principles of international law and with

express undertakings by the United States in recent bi-

lateral and multilateral agreements on mutual legal as-

sistance in penal matters and on cooperation in combatting

narcotics trafficking that were in force between Mexico

and the United States at the time of respondent’s abduc-

tion. Under general international law, and under these

specific agreements, the United States is obligated to re-

spect Mexico’s sovereignty and territorial integrity and not

to perform functions of authority in Mexican territory.

Mexico repeatedly protested to the United States gov-

ernment the treaty violations and the attendant infringe-

ment of its territorial integrity, and it requested

respondent’s return to Mexico. Its diplomatic protests and

its request for respondent’s repatriation have gone un-

answered.

The United States’ disregard of its commitments to

Mexico undermines the rule of law in international rela-

tions to which both States are strongly committed. Mexico

has a manifest interest in ensuring that treaties to which

it and the United States are parties are interpreted and

applied by United States courts consistently with the trea-

ty’s text, history, object and purpose.

STATEMENT

1. The Mexican Government’s Protests

The respondent challenged the district court's jurisdic-

tion to try him on the ground that his forcible abduction

from his homeland by officials of the United States violated

the Mexico/United States extradition treaty.' (Pet. App.

4a).

Mexico repeatedly protested respondent's abduction

through diplomatic channels. Mexico's first note to the

United States Department of State of April 18, 1990 (J.A.

33), sought information on the participation of United

States officials in the abduction of respondent. The note

placed the Department of State on notice that “‘if it is

proven that these actions were performed with the illegal

participation of the U.S. authorities, the binational coop-

eration in the fight against drug trafficking will be en-

dangered.”’ (Ibid.).

One month later, on May 16, 1990 (J.A. 35), Mexico

informed the Department of State that “[t]he Government

of Mexico considers the kidnapping of Dr. Alvarez Machain

and his transfer from Mexican territory to the United

States of America were carried out with the knowledge

of persons working for the U.S. government, in violation

of the procedure established in the extradition treaty in

force between the two countries.’ The note informed the

Department that criminal proceedings had been instituted

in Mexico against the abductors for the offenses of kid-

napping, false imprisonment and criminal association, and

that the Mexican government would seek the abductors’

extradition. The note requested that the Department of

State ‘‘interven{e] before the corresponding authorities so

that Dr. Humberto Alvarez Machain be returned back to

: Extradition Treaty between the United States of America and the

United Mexican States with Appendix, done in Mexico May 4, 1978,

entered into force January 25, 1980, 31 U.S.T. 5059, T.1.A.S. No. 9656,

registered by the United States in the United Nations Treaty Series

as U.N.T.S. 19462 on December 9, 1980, pursuant to Article 102 of

the Charter of the United Nations; reprinted in J.A. 72-87.

Mexico in order to be investigated regarding his probable

participation in the crimes whose investigation and pros-

ecution correspond to [sic] the Mexican Government.” The

note concluded with a request for assistance “in order that

... [the respondent] be tried and sentenced in Mexico with

absolute respect to the Mexican laws in connection with

the crimes in which . . . [the respondent] has participated.”

(J.A. 36).

Thereafter, on July 19, 1990, the Embassy of Mexico

presented two notes to the Department of State (J.A. 39,

53), and transmitted two extradition requests from the

Attorney General of Mexico for the provisional arrest and

extradition of the two individuals who were principally

responsible for respondent’s abduction from Mexico—a

DEA agent, and a Mexican national who had been granted

refuge in the United States. The United States did not

respond to these notes.

On appeal, following the dismissal of the indictment by

the district court, the Mexican Consul General in Los An-

geles was instructed by the Ministry of Foreign Affairs

to present a letter to the court of appeals setting forth

Mexico’s position with respect to the treaty, its violation

by the United States, and the manner in which the treaty

regulates the extradition of Mexican nationals from Mex-

ico. (J.A. 67). The letter stated in relevant part:

8. The Treaty constitutes the exclusive and sole means

by which the Government of the United States can

seek to bring a Mexican national present in Mexico

to justice. Mexican legislation in force and effect

makes it illegal for Mexican government authorities

to exclude a Mexican national from Mexican territory,

or for Mexican Government authorities to deport a

Mexican national from Mexican territory. Therefore

Mexican Government authorities have not entered, and

could not enter, into any special arrangement, either

with the United States or with any other country, to

surrender its own nationals.

In the case of extradition treaties to which Mexico

is a party, the Government of Mexico has invariably

and expressly reserved to the parties the right to

refuse the requested extradition to [sic] one of their

own respective nationals, agreeing instead to prose-

cute them in their own national courts, in the interest

of justice.

9. The purpose and object of the Treaty, was from

its inception, precisely to provide the legal framework,

with which one of the parties could request of the

other the extradition of persons from the territory of

the former to the territory of the latter. The Treaty

is binding on its parties, but serves no purpose if the

parties are free to ignore its terms.

10. The only legal means by which the United States

could have pursued the prosecution of DR. HUM-

BERTO ALVAREZ MACHAIN, a Mexican national,

was through the specific provision of the Treaty, which

was negotiated, agreed upon and ratified precisely to

deal, with the extradition of nationals. ...

J.A. at 68-69.

2. The United States’ Complicity in Respondent’s Ab-

duction

After respondent’s arraignment, the district court held

an evidentiary hearing to determine whether United States

law enforcement officers were responsible for respondent's

abduction. (Pet. App. 6a). Although the United States de-

nied its complicity in the abduction, the court found that

in the evening of April 2, 1990, respondent was seized by

five or six armed men in his office in Guadalajara, put by

force on a private plane, and flown to El Paso, Texas.

There he was met by agents of the DEA and arrested.

He was flown to Los Angeles, where he was placed in

detention awaiting trial. (Pet. App. 10a-11a).

The district court further found that as of May 1991,

the DEA had made partial reward payments of $20,000

to the Mexican individuals who abducted the respondent;

that the DEA had evacuated seven of the abductors and

their families from Mexico to the United States; that it

paid for their weekly living expenses (ibid.); that

respondent’s abduction did not result from any cooperative

effort by Mexico and the United States, or any partici-

pation in the abduction by the Mexican officials: and that

the United States “unilaterally proceeded with the abduc-

tion without the knowledge or participation of the Mexican

government.” (Pet. App. 33a).

The district court determined as a matter of law that

the United States violated the Mexico/United States ex-

tradition treaty, and that “{uJnder these circumstances, the

Court lacks jurisdiction to try this defendant. Accordingly,

the defendant is ordered discharged and the government

is ordered to repatriate the defendant to Mexico forth.

with.”’ (Pet. App. 4a-5a).

On appeal, the United States did not challenge the dis-

trict court’s findings regarding its instigation and com.

plicity in respondent’s abduction. The court of appeals

affirmed per curiam (Pet. App. 1a), relying on its ex-

haustive treatment of the abduction issue in United States

v. Verdugo-Urquidez, 939 F.2d 1341 (9th Cir. 1991), cert.

pending, No. 91-670, decided three months earlier. The

court below concluded:

The Government of Mexico has stated unequivocally

that the abduction of Dr. Alvarez-Machain by United

States agents violated the 1980 Extradition Treaty

and general principles of international law and has at

all times demanded his immediate repatriation to Mex-

ico. Moreover, the Mexican government has stated its

position on these issues unequivocally to the court in

this case ... . Thus, there remains no question about

the adequacy of Mexico’s protests in this case or about

Mexico’s demand for repatriation. ... The Verdugo

case requires the dismissal of the indictment and the

repatriation of the appellee. [Pet. App. at 3a].

(Pet. App. at 3a). The United States seeks reversal in this

Court. It maintains that respondent’s abduction was in the

nature of an “extraterritorial arrest,” and is not incon-

sistent with the means provided for in the extradition

treaty for obtaining custody of persons from Mexico for

trial in United States courts.

SUMMARY OF ARGUMENT

I.

A. The United States’ argument that the extradition

treaty does not address abductions of Mexican nationals

from Mexican territory, and that such ‘extraterritorial ar-

rests” are conducted “outside the extradition context”

(Pet. Br. 9), does not withstand analysis. The treaty, like

all international accords, must be interpreted against the

background of relevant rules of international law applicable

to the relations between the parties. Of particular rele-

vance to the forcible removal of a person by agents of a

foreign state are the established international law princi-

ples of independence of states, non-intervention in internal

affairs, legal equality, and respect for territorial integrity.

These principles are the foundation upon which all extra-

dition treaties are constructed. For a state to send its

agents to another State to apprehend or abduct that State’s

nationals for trial elsewhere is incompatible with the es-

tablished international legal order. There was, therefore,

no reason for Mexico to insist that the extradition treaty

contain express language that, absent permission from

Mexico, the United States could exercise no police powers

in the Mexican territory. At no time during the negotiation

of the extradition treaty did the United States’ negotiators

state or suggest that the United States reserved to itself

the right to secure the presence of Mexican nationals for

trial in the United States ‘‘outside the extradition con-

text,” and there exists no such reservation to the treaty.

B. Article 9 of the extradition treaty leaves it to the

discretion of each State whether to extradite its nationals.

During the negotiation of Art. 9, the Mexican negotiators

expressly informed the United States negotiators of the

restraints that Mexican laws impose on the President of

Mexico with respect to the extradition of Mexican nation-

als. Consequently, the parties included a second para-

graph—similar to one contained in most modern U-S.

extradition treaties with civil law countries—to assure that

Mexicans whose extradition was denied solely on the basis

of nationality would be prosecuted by Mexico.

In this case, the United States did not inquire whether

Mexico was prepared to deliver the respondent for trial

in the United States, nor did it afford Mexico the oppor-

tunity to try the respondent in its own courts. Instead, in

disregard of the stipulations of the extradition treaty and

its responsibilities under established principles of inter-

national law, the United States abducted the respondent

from Mexico, brought him without the consent of the Mex.

ican government to the United States for trial, and de-

prived him of the rights guaranteed to him by the

Constitution and laws of Mexico.

C. Mexico and the United States are parties to two

recent bilateral treaties on mutual legal assistance and on

cooperation in combatting narcotics trafficking, and both

States have ratified a multilateral United Nations Con-

vention on the latter subject. Both treaties and the Con-

vention make it explicit that, in rendering assistance to

each other and in combatting crime and drug trafficking,

the States must carry out their obligations in a manner

consistent with the principles of sovereign equality and

territorial integrity. The United States’ action in abducting

the respondent from the territory of Mexico was in total

disregard of these solemn treaty commitments.

Il.

The Ker-Frisbie rule, which holds that an illegal arrest

or abduction does not void a subsequent conviction, is a

rule of United States domestic law, not a principle of

international law, and has been most often applied in the

United States in the context of domestic kidnappings, ab-

ductions and wrongful arrests.

This Court has never sanctioned the prosecution in a

United States court of a foreign national abducted from

his home State by officials of the United States, where

an extradition treaty was in force with that foreign State,

where the offense was committed in the territory of the

foreign State, and where the foreign state ‘protested the

abduction.

Ker is no authority for the issue in this case. The rule’s

namesake, Frisbie, and its progeny, deal with domestic

interstate abductions and are not relevant to the state-

sponsored international abduction which lies at the heart

of this case. International law, which this Court has tra-

ditionally applied, firmly establishes the principle that ab-

sent consent or acquiescence by the territorial State,

another State may not send its agents into that State’s

territory to apprehend persons accused of a crime.

Ill.

The appropriate remedy for the contravention of the

treaty that occurred in this case, and the only remedy that

will prevent the recurrence of the violation of Mexico's

territorial integrity, is the return of respondent to Mexico.

Repatriation of a national who was unlawfully abducted

from his home State by agents of a foreign State will

signify the courts’ unwillingness to countenance lawless-

ness by its law enforcement agents on foreign soil. Unlike

the result which frequently follows from the application of

the exclusionary rule in the domestic context, ordering the

respondent’s repatriation will not immunize him from pros-

ecution, as the United States claims. His return to Mexico

will only change the place of trial and the applicable daw,

since Mexico is committed under the extradition treaty to

submit the case to its judicial authorities for investigation

and prosecution.

10

ARGUMENT

I. ABSENT CONSENT BY MEXICO TO A LESS FORMAL

RENDITION OF OFFENDERS, THE EXTRADITION

TREATY PROVIDES THE SOLE MEANS BY WHICH

THE UNITED STATES MAY SECURE AN OFFENDER

FROM MEXICO

A. The Treaty Prohibits U.S. Government-Authorized

or Sponsored Abductions of Persons From Mexi-

can Territory for Trial in the United States

The thrust of the United States’ argument is that the

Extradition Treaty “is not a general compact for the pro-

tection of territorial rights.” (Pet. Br. at 9). Elsewhere,

the United States submits that the Extradition Treaty does

not prohibit ‘extraterritorial arrests” by the United States

“outside the context of extradition proceedings” (Jd. at

23), and that “nothing in the treaty speaks to the con-

sequences of an apprehension that is made without a re-

quest for extradition.” (IJbid.). Mexico rejects in the

strongest terms the view that the United States authorities

may perform “‘extraterritorial arrests’ in Mexico.

As a sovereign state, Mexico alone has the right to

determine which authority exercises governmental powers

in its territory, and no State may arrogate to itself the

right to perform sovereign acts within its borders without

its consent. The principles of sovereign equality and ter-

ritorial integrity of States, the foundation of an enlight-

ened international legal order, are fundamental. The

principle was forcefully and unequivocally set forth by this

Court, speaking through Chief Justice Marshall, in The

Schooner Exchange v. McFaddon, 7 Cranch (11 U.S.) 116,

136 (1812):

The jurisdiction of the nation within its own ter-

ritory is necessarily exclusive and absolute. It is sus-

ceptible of no limitation not imposed by itself. Any

restriction upon it, deriving validity from an external

source, would imply a diminution of its sovereignty

to the extent of the restriction.

11

All exceptions, therefore, to the full and complete

power of a nation within its own territories, must be

traced up to the consent of the nation itself. They

can flow from no other legitimate source.

See also Art. 2, para. 4, of the Charter of the United

Nations of June 26, 1945,2 the members of which include

Mexico and the United States, which obligates ‘‘All Mem-

bers” to “refrain ... from the threat or use of force

against the territorial integrity or political independence

of any State ....”’ Additionally, the Charter of the Or-

ganization of American States of April 30, 1948,° whose

members also include Mexico and the United States, pro-

vides in Art. 17 that the ‘‘territory of a State is inviolable;

it may not be the object, even temporarily, ... of ...

measures of force taken by another state, directly or in-

directly, on any grounds whatsoever.” It is within this

framework that the Mexico/United States Extradition

Treaty must be interpreted.‘

Extradition is one of the oldest forms of international!

judicial assistance. Extradition treaties are designed to

promote the cooperation between States in criminal mat-

ters. They “‘balance{] the demands of the international le-

259 Stat. 1031, T.S. No. 993.

32 U.S.T. 2394, T.1.A.S. No. 2361, 119 U.N.T.S. 3, as amended by

the Protocol of Buenos Aires of February 27, 1967, 21 U.S.T. 607,

T.LA.S. No. 6847.

‘See Vienna Convention on the Law of Treaties, May 23, 1969, Art.

31, reprinted in 63 Am.J.Int’l L. 875, 885 (1969):

1. A treaty shall be interpreted in good faith in accordance

with the ordinary meaning to be given to the terms of the

treaty in their context and in the light of its object and

purpose.

ae

3. There shall be taken into account, together with the

context: ... c. any relevant rules of international law ap-

plicable in the relations between the parties. (Emphasis

added. |}

12

gal order that serious crime not go unpunished with

concern that persons accused of crime not be subjected to

unfair methods of adjudication or punishment.” Restate-

ment (Third) Foreign Relations Law of the United States

§476, comment a (1987). Since the beginning of extradition

relations between Mexico and the United States one

hundred thirty years ago, it has been clearly understood

by both States that their extradition treaties were de-

signed, among other things, to protect the sovereignty and

territorial integrity of both States. United States Secretary

of State Blaine acknowledged this principle well over a

century ago when he advised the Governor of Texas that—

The treaty of extradition between the United States

and Mexico prescribes the forms for carrying it into

effect, and does not authorize either party, for any

cause, to deviate from those forms, or arbitrarily ab-

duct from the territory of one party a person charged

with crime for trial within the jurisdiction of the other.

4 Moore, Digest of International Law § 603, at 330 (1906),

emphasis added.

That the United States regarded the extradition treaty

as the exclusive means by which Mexico could secure a

person from the United States was also made clear by

Secretary of State Bayard in 1887 when a Mexican na-

tional was seized in Texas by a Mexican police officer with

the aid of local deputy sheriffs and forced across the bor-

der to Mexico. Mr. Bayard stated that the wanted person’s

return to Mexico was ‘obtained not in accordance with,

but in fraud of existing treaties.” 2 Moore, supra § 204,

at 276. Nothing in the negotiating history of the three

Successive extradition treaties that Mexico entered into

with the United States, beginning in 1862,° or in the dip-

*The precursors of the current extradition treaty between Mexico

and the United States are the treaty of May 20, 1862, 12 Stat. 1199.

T.S. No. 209 (terminated January 24, 1899), and the treaty of April

22, 1899, 31 Stat. 1818, T.S. No. 242, with supplements of 1903, 1926

and 1941 (terminated January 25, 1980).

13

lomatic correspondence between them following the entry

into force of these treaties, lends support to the view

pressed by the United States that the police authorities

of the signatory states may, consistently with the detailed

stipulations of an extradition treaty, make ‘‘extraterritorial

arrests” in the territory of the other ‘‘outside the extra-

dition context.”’ (Pet. Br. at 21). The acknowledgement of

this extraterritorial right in either Party would have con-

stituted such a radical departure from the very raison

d’étre of extradition treaties, that it would have excited

contemporary comment. No consent to arrests in the ter-

ritory of the other party is discernible from the text, his-

tory or purpose of the treaty. The United States does not,

and cannot, point to any source that would support its

thesis—a thesis that it announces here for the first time.

Had the United States at any time insisted on such a

reservation to the treaty, its extradition relations with

Mexico would have ended.

B. Respondent’s Abduction Has Deprived Him of the

Special Safeguards Stipulated in the Treaty for

Nationals of the Signatory States

1. Article 9 of the 1978 extradition treaty provides (J.A.

at 76):

Extradition of Nationals

1. Neither Contracting Party shall be bound to deliver

up its own nationals, but the executive authority of

the requested Party shall, if not prevented by the laws

of that Party, have the power to deliver them up if,

in its discretion, it be deemed proper to do so.

2. If extradition is not granted pursuant to paragraph

1 of this Article, the requested Party shall submit the

case to its competent authorities for the purpose of

prosecution, provided that Party has jurisdiction over

the offense.

14

This Article takes into account the provisions of the

Mexican Law on International Extradition® which prohibit

the extradition of its nationals. The United States fully

understood this to be the law of Mexico and agreed in

Art. 9 of the treaty that extradition of Mexican nationals

was subject to a special regime.

In submitting the treaty to the Senate for its advice

and consent, President Carter’s message provided an ar-

ticle-by-article analysis prepared by the Department of

State,’ which described the import of Art. 9 thus:

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 allow-

ing for their prosecution in Mexico for offenses com-

mitted abroad. (Emphasis added.]

The United States’ brief makes light of the Mexican

government's discharge of its domestic legal order when

it complains that ‘‘to date, the government of Mexico has

not extradited a single Mexican national under the terms

of the extradition treaty pursuant to an extradition request

by the United States.’”’ (Pet. Br. at 21 n. 17). The accom-

panying sentence in the text is ominous: “(Nothing in our

* Art. 14 of the ‘Ley de Extradicién Internacional” of December 22,

1975, provides:

No Mexican shall be extradited to a foreign state except in

exceptional cases in the discretion of the Executive. (Infor-

mal translation.)

"Exec. Rep. M, Extradition Treaty with the United Mexican States,

96th Cong., Ist Sess. VI (1979) (Letter of Submittal by Secretary of

State Cyrus Vance).

15

extradition treaty with Mexico affirmatively indicates that

a defendant who has been forcibly abducted from that

country is immune from prosecution in an American court.”

(Id. at 20.) It then proceeds to justify the abduction by

stating: “Yet if respondent is repatriated to Mexico, he

will acquire just such an immunity from prosecution.” (Id.

at 20-21, emphasis added). The assertion is demonstrably

false.

A Mexican national accused of having committed a crime

on Mexican soil does not, by reason of being abducted to

a foreign country, become “immune’’ from prosecution.

Along with all citizens and residents, he enjoys the rights

guaranteed to him by the Constitution, treaties and laws

of Mexico.* One of these rights is to be tried by the courts

of Mexico for an offense committed in Mexico. The United

States’ abduction seeks to deny to the respondent that

right—a right also guaranteed by Article 9(2) of the ex-

tradition treaty.? There can, of course, be no question that

*The Mexican Political Constitution provides in relevant part:

Article 14. ... No person shall be deprived of life, liberty,

property, possessions, or rights without a trial before a previously

established court in which the essential formalities of procedure

are observed in accordance with laws in effect prior to the act.

In criminal cases no penalty shall be imposed by mere analogy

on convincing rationale but rather must be based on a law which

is in precisely applicable to the crime in question. . . .

Article 16. No one shall be disturbed in his person, family,

domicile, documents or possessions except by virtue of a written

order by the competent authority stating the legal grounds and

justification for the action taken. No order of arrest or detention

shall be issued against any person other than by the competent

judicial authority, unless such arrest or detention is preceded by

a charge, accusation, or complaint concerning a specific act pun-

ishable by physical punishment, made by a credible party, sup-

ported by a sworn affidavit or by other evidence indicating the

probable guilt of the accused; ...

* Mexican municipal law makes no distinction between ‘‘self-execut-

ing’’ treaties and those that merely constitute a contract between States,

16

the courts of Mexico are competent and obligated to try

the offenses with which the respondent is charged.

The United States-sponsored abduction plainly denied to

the respondent the procedural rights guaranteed to him

by Articles 14 and 16 of the Mexican Constitution, by

Article 3 of the extradition treaty’® and by Article 16 of

the Mexican Extradition Law," to have the inculpating

as known in United States law.

Article 133 of the Mexican Political Constitution provides:

This Constitution, the laws of the congress of the Union

which emanate therefrom, and all treaties made, or which

shall be made in accordance therewith by the President of

the Republic, with the approval of the Senate, shall be the

Supreme Law throughout the Union. The judges of each

State shall conform to the said Constitution, the law. and

treaties, notwithstanding any contradictory provisions that

may appear in the Constitution or laws of the States.

A treaty that has been approved by the Mexican Senate and pro-

claimed by the President forms part of the municipal law of Mexico

and confers personal rights on individuals that are enforceable in Mex-

ican courts.

Article 3 of the treaty provides in relevant part:

Evidence Required

Extradition shall be granted only if the evidence be found

sufficient, according to the laws of the requested Party, ...

to justify the committal for trial of the person sought if the

offense of which he has been accused had been committed

in that place... .

" Article 16 of the Mexican Extradition Law requires that the Mex-

ican authorities be furnished:

The formal extradition request and the documents on which

it is based by the requesting State must include:

I. Specification of the crime for which the extradition is

sought.

II. Proof that the crime has been committed and the prob- -

able involvement of the accused. If the accused has been

convicted by the courts of the requesting state, it will

suffice to submit an authenticated copy of the final judg-

ment.

17

evidence against him reviewed by an impartial Mexican

magistrate before he was deprived of his liberty.

The United States answer to the deprivation of all of

these rights is simply that since respondent was not ex-

tradited under the treaty, he has no rights. (Pet. Br. at

13). Mexico disagrees. The extradition treaty governs com-

prehensively the delivery of all persons requested for ex-

tradition “for an offense committed within the territory ~

of the requesting Party” (Article 1(1), and, as in this case,

for an offense committed inside the territory of the re-

quested party. (Article 1(2).) In consequence, the United

States’ failure to use the extradition treaty deprived Mex-

ico of its sovereign right to prosecute the respondent in

its domestic courts and denied to respondent the rights

guaranteed him by the Mexican Constitution, treaties and

laws. The frustration and denial of these rights constitute

independent material breaches of the treaty.

C. Respondent’s Abduction Violated Three Other Re-

cent Accords Between Mexico and the United

States

Three other accords presently in force between Mexico

and the United States emphasize Mexico’s willingness to

provide the fullest cooperation in combatting crime and

narcotics trafficking, and in providing effective and timely

legal assistance to the United States. The United States’

brief treats these accords with silence.’

a

IV. A copy of the legal provisions of the requesting State,

with regard to the definition of the crime and the pun-

ishment, and the corresponding statute of limitations,

as well as an authorized statement of the fact that said

provisions and statute were in force at the time the

crime was committed.

V. The original warrant of arrest which may have been

issued against the accused.

2 The treaties described in the text provide a ‘“‘relevant rule of [con-

18

First, the 1987 Treaty of Cooperation for Mutual Legal

Assistance* expresses in its preamble the commitment of

both States “to cooperate in the framework of their

friendly relations, and to undertake mutual legal assistance

to provide the best administration of justice in criminal

matters.’ (Emphasis added). Thereafter, paragraph 2 of

Article 1 of the Treaty sets forth the understanding of

both States that—

This Treaty does not empower one Party’s authorities

to undertake, in the territorial jurisdiction of the other,

the exercise and performance of the functions or au-

thority exclusively entrusted to the authorities of that

other Party by its national laws or regulations. [Em-

phasis added.]

Second, the 1989 Agreement on Cooperation in Combat-

ting Narcotics Trafficking and Drug Dependency" empha-

sizes in Article I, that—

ventional] international law” that governs the relations between Mexico

and the United States within the purview of Art. 31(3) of the Vienna

Convention on the Law of Treaties, supra, n.4.

‘* Treaty of Cooperation Between the United States of America and

the United Mexican States for Mutual Legal Assistance, done in Mexico

City December 9, 1987, entered into force for the United States May

3, 1991, T.1.A.S. No. __, reprinted in 27 1.L.M. 443 (1988). Article

1 provides as follows:

SCOPE OF THE TREATY

1. The Parties shall cooperate with each other by taking all

appropriate measures that they have legal authority to take,

in order to provide mutual legal assistance in criminal mat-

ters, in accordance with the terms of this Treaty and subject

to the limitations of their respective domestic legal provi-

sions. Such assistance shall deal with the prevention, in-

vestigation and prosecution of crimes or any other criminal

proceedings arising from acts which are within the com-

petence or jurisdiction of the requesting Party at the time

the assistance is requested, and in connection with ancillary

proceedings of any other kind related to the criminal acts

in question.

‘* Agreement between the United States of America and the United

19

2. The Parties will fulfill their obligations under this

Agreement in accordance with the principles of self-

Mexican States on Cooperation in Combatting Narcotics Trafficking and

Drug Dependency, done in Mexico City February 23, 1989, entered into

force July 30, 1990, T.1.A.S. No. __ , reprinted in 29 1.L.M. 58 (1999).

The preamble and Article I state as follows:

The United States of America and the United Mexican

States (the Parties),

Aware of the need to protect the lives and health of their

respective peoples from the serious effects of narcotics traf-

ficking and drug dependency,

Agreeing that such conduct should be attacked compre-

hensively from four major areas: prevention and reduction

of the illicit demand for narcotics and psychotherapic sub-

stances; control of supply; suppression of illicit traffic; treat-

ment and rehabilitation,

Acknowledging that the various aspect of narcotics traf-

ficking and drug dependency threaten the security and the

essential interests of each of the Parties;

Resolved to extend to each other the necessary cooper-

ation to effectively combat narcotics trafficking and drug

dependency, given the international scope and nature of

these phenomena;

Encouraged by the spirit of the recommendations con-

tained in the Comprehensive and Multidisciplinary Plan of

Future Activities in the Control of the Improper Use of

Drugs (the Plan) adopted at Vienna, Austria, on June 26,

1987, and

Inspired by the goal that cooperation under this Agree-

ment complement the cooperation that both Parties provide

in fulfillment of their international obligations under the

United Nations Convention on Illicit Trafficking in Narcotics

and Psychotropic Substances (the Convention), adopted at

Vienna, on December 20, 1988,

Have agreed as follows:

ARTICLE |

Scope of the Agreement

1. The purpose of this Agreement is to promote cooperation

between the Parties so that they can combat more efficiently

20

determination, non-intervention in internal affairs,

legal equality, and respect for the territorial integ-

rity of States.

3. This Agreement does not empower one Party’s

authorities to undertake, in the territorial juris-

diction of the other, the exercise and performance

of the functions or authority exclusively entrusted

to the authorities of that other Party by its na-

tional laws or regulations. [Emphasis added.]

Third, the multilateral 1988 United Nations Convention

Against Illicit Traffic in Narcotic Drugs, which both Mex-

ico and the United States have ratified,’ echoes the pro-

narcotics trafficking and drug dependency, phenomena that

transcend the boundaries of both countries.

The Parties shall adopt the necessary measures in ful-

fillment of the obligations they have entered into under this

Agreement, including legislative and administrative meas-

ures, in conformity with the fundamental provisions of their

respective interna] legal systems.

2. The Parties will fulfill their obligations under this Agree-

ment in accordance with the principles of self-determination,

non-intervention in internal affairs, legal equality, and re-

spect for the territorial integrity of States.

3. This Agreement does not empower one Party’s authorities

to undertake, in the territorial jurisdiction of the other, the

exercise and performance of the functions or authority ex-

clusively entrusted to the authorities of that other Party by

its national laws or regulations.

‘* United Nations Convention Against Illicit Traffic in Narcotic Drugs

and Psychotropic Substances, done at Vienna December 20, 1988. en-

tered into force for the United States and for Mexico on November

11, 1990, T.1.A.S. No. __, reprinted in 28 I.L.M. 493 (1989), defines

the scope of the Convention as follows:

Article 2

SCOPE OF THE CONVENTION

1. The purpose of this Convention is to promote co-operation among

the Parties so that they may address more effectively the various as-

pects of illicit traffic in narcotic drugs and psychotropic substances

21

visions of the two bilateral agreements between Mexico

and the United States with respect to the observance of

the principles of sovereign equality and territorial integrity

by the High Contracting Parties.

These accords establish no new norms for the conduct

of States. They codify the established rule of international

law prohibiting the authorities of one State from perform-

ing police or other enforcement functions in the territory

of another State without the express permission of the

latter, and the principle that extradition treaties are de-

signed, inter alia, to protect the territorial integrity and

sovereignty of the Contracting States. (See supra, pp. 10-

12). The United States conspicuously disregarded these

principles, and the reciprocal pledges contained in these

international accords when its agents arranged for

respondent’s forcible removal from Mexico.

II. THE RULE ANNOUNCED IN KER V. ILLINOIS DOES

NOT GOVERN THIS CASE

Ker v. Illinois,* decided more than a century ago, con-

cerned the prosecution in an Illinois court of an American

citizen who was charged with larceny and embezzlement

from a Chicago bank. Ker fled to Peru to escape prose-

cution and was forcibly returned by a private Pinkerton

agent to Chicago to stand trial. Although the agent carried

an extradition warrant for Ker’s arrest which was to be

having an international dimension. In carrying out their obligations

under the Convention, the Parties shal] take necessary measures, in-

cluding legislative and administrative measures, in conformity with the

fundamental provisions of their respective domestic legislative systems.

2. The Parties shall carry out their obligations under this Convention

in a manner consistent with the principles of sovereign equality and

territorial integrity of States and that of non-intervention in the do-

mestic affairs of other States.

3. A Party shall not undertake in the territory of another Party the

exercise of jurisdiction and performance of functions which are exclu-

sively reserved for the authorities of that other Party by its domestic

law. [Emphasis added.]}

119 U.S. 436 (1886).

22

presented to the local authorities, on his arrival in Lima,

the agent found that the city was occupied by military

forces of Chile. There apparently was no Peruvian gov-

ernment to which the extradition warrant could be pre-

sented.’ The agent apprehended Ker and brought him

forcibly to Chicago where he was tried and convicted. Peru

at no time protested Ker’s abduction.

The Illinois Supreme Court sustained the conviction and

rejected Ker’s defenses that the manner in which he had

been brought before the court denied him due process of

law and that as a result of his presence in Peru he had

acquired a “positive right’’ that he could be removed from

that country only under the extradition treaty. Ker v. /I-

linors, 110 Ill. 625 (1884). On writ of error to this Court,

Ker again raised both defenses. Speaking for a unanimous

Court, Justice Miller rejected the due process argument:

The “due process of law” here guaranteed is complied

with when the party is regularly indicted by the proper

grand jury in the State court, has a trial according

to the forms and modes prescribed for such trials,

and when, in that trial and proceedings, he is deprived

of no rights to which he is lawfully entitled.

119 U.S. at 440.

The Court dismissed the asylum argument, stating:

There is no language in this treaty, or in any other

treaty made by this country on the subject of extra-

dition of which we are aware, which says in terms

that a party fleeing from the United States to escape

punishment for crime becomes thereby entitled to an —

asylum in the country to which he has fled; ...

119 U.S. at 442.

As regards the extradition treaty with Peru, the Court

observed:

The additional historical facts, not recorded in the Court's opinion,

are taken from Fairman, Ker v. Illinois Revisited, 47 Am.J.Int’] L. 678

(1953).

23

Julian [the Pinkerton agent], in seizing upon the per-

son of Ker and carrying him out of the territory of

Peru into the United States, did not act nor profess

to act under the treaty. In fact, that 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.

119 U.S. at 443, emphasis added.

Most relevantly to the present case, the Court declined

to consider whether this private abduction constituted a

violation of international law, leaving final determination

of that question to the state courts as a matter of state

law:'* '

The question of how far his forcible seizure in an-

other country, and transfer by violence, force, or

fraud, to this country, could be made available to

resist trial in the State court, for the offence now

charged upon him, is one which we do not feel called

upon to decide, for in that transaction we do not see

that the Constitution, or laws, or treaties, of the

United States guarantee him any protection... .

However, this may be, the decision of that question

is as much within the province of the State court, as

a question of common law, or of the law of the na-

tions, of which that court is bound to take notice, as

it is of the courts of the United States. And though

we might or might not differ with the Illinois court

on that subject, it is one in which we have no right

to review their decision.

‘*It was less than three decades ago, in Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398 (1984), that the Court squarely ruled that

international law is federal law, and that state courts must follow the

federal lead in ascertaining, interpreting and applying that body of

law.”’[Rjules of international law should not be left to divergent and

perhaps parochial! state interpretations.” Jd. at 425.

24

119 U.S. at 444, emphasis added.

The distinctions between the factual and legal under-

pinnings of Ker and the instant case are palpable and

striking:

In 1886, the legal protections afforded to individ-

uals throughout the civilized world today and the

emerging international law of human rights did not

exist.

Ker’s abduction by a private agent was “without

any pretense of authority .. . from the government

of the United States.’’ 119 U.S. at 443; here, the

Court is faced with an abduction sponsored and

financed by the United States and carried out by

agents of the United States in the performance of

their official functions.

Ker, unlike the respondent, was a United States

citizen who, under established doctrine, cannot in-

voke international law against his own sovereign,

but must be satisfied with such protections as the

Constitution and laws of the United States may

afford to him; respondent is not so limited.

Ker, unlike respondent, was charged with offenses

which he committed solely in this country and he

became a “‘fugitive from justice” in the dictionary

sense of the term when he fled from the United

States; respondent is charged with no offense com-

mitted in the United States and he did not flee to

escape prosecution, nor did he seek asylum else-

where.'®

It is subject to doubt whether the extradition treaty

between the United States and Peru was in force

at the time of Ker’s abduction, in light of the po-

litical instability in Peru when Ker was abducted;

no such doubt exists here.

’ Aside from the provisions of the extradition treaty, under inter-

national law Mexico has the primary right to place him on trial, both

under principles of territoriality and nationality.

25

— Ker was a state prosecution in the 19th century,

not a federal prosecution conducted in the last dec-

ade of this century.

— Peru at no time protested Ker’s abduction through

channels of diplomacy or by appearance in the

United States courts, either at trial or on appeal.

It would be presumptuous for Mexico to comment

whether the rule formulated by this Court in Ker should

retain its vitality in the purely domestic context, as re-

affirmed in Frisbie v. Collins, 342 U.S. 519 (1952). Mexico

submits that the court below was correct in its discrimi-

nating analysis and in declining to apply the Ker rule

mechanically in an international abduction case, as the

United States urges. (Pet. Br. at 11-17). Blind adherence

to doctrines formulated in another era, and disregard of

international agreements to combat crime, will not further

international efforts to bring criminals to justice.

It is true that numerous lower federal courts have strug-

gled in recent years with various aspects of forcible seizure

of suspects abroad in disregard of extradition treaties, and

that they have felt bound by this Court’s pronouncement

in Ker. Their decisions are, nevertheless, distinguishable

from the facts here because of such factors as non-involve-

ment by agents of the United States in the forcible re-

moval of the suspect from foreign territory;”° rendition of

the suspects, or active assistance in their rendition to the

United States, by the authorities of the territorial sover-

eign;”! seizures of suspects in international waters,” or the

tacit condonation of the abduction by the sovereign in

whose territory the abduction occurred.”

-* E.g., United States v. Lira, 515 F.2d 68, 70-71 (2d Cir. 1975).

2 E.g., United States v. Toro, 840 F.2d 1221, 1229 (5th Cir. 1988);

see also Verdugo-Urquidez, supra, 939 F.2d at 1353 n. 12 (citing cases).

2 E.g., United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991).

* E.9., Matta-Ballesteros v. Henman, 896 F.2d 255, 260 (7th Cir.),

cert. denied, __. U.S. —__. (1990); see also Verdugo-Urquidez, supra,

939 F.2d at 1349 n. 9 and 1353 n. 12. (citing cases).

26

The United States pleads with the Court to reaffirm the

Ker rule in this case for the reason that “immunizing a

defendant from all prosecution is too high a price to pay

for an illegal arrest.’’ (Br. at 17; emphasis added). As

Mexico pointed out earlier, the plea’s premise is both false

and disingenuous. Mexico does not appear in this Court

in support of “immunizing’’ the respondent from prose-

cution;* it respectfully asks the Court to recognize and

enforce its right to try the respondent in its courts—a

right which the United States acknowledged and agreed

to in the extradition treaty, but which the United States

seeks to deny to Mexico in this case.

* Mexican authorities commenced a criminal investigation in 1985 into

the kidnaping and murder of DEA agent Enrique Camarena Salazar

and Alfredo Zavala Avelar. Warrants of arrest were issued for Rafael

Caro Quintero, Ernesto Fonseca Carrillo, and others in the state of

Jalisco (Guadalajara) on charges of illegal deprivation of freedom in the

form of abduction, homicide, and various narcotics offenses. They were

charged with the offenses named on September 19, 1989, and were

tried and convicted on December 12, 1989. The court imposed the

maximum penalty on both defendants, viz., 40 years imprisonment,

various fines and forfeiture of properties. The convictions were affirmed

on appeal on August 10, 1990, by the Third District Criminal] Court

of the State of Jalisco. Nine of their principal associates were also

convicted and sentenced for their complicity in the offenses.

In addition, Caro Quintero, Fonseca Carrillo and twenty-one of their

associates were convicted and sentenced in the Federal District (Mexico

City) for narcotics offenses, firearms offenses, criminal association and

illegal deprivation of freedom offenses. In that case, Caro Quintero was

sentenced to a separate 34-year prison term and Fonseca Carrillo was

sentenced to a separate 11-1/2 year term. Their twenty-one associates

received sentences ranging from 12-1/2 to 14-1/4 years, plus fines and

forfeitures.

A third person, believed to be a principal in the Camarena case,

Miguel Angel Félix Gallardo, has also been arrested and is being tried,

together with nine of his associates in the Federal District (Mexico

City) on various narcotics trafficking, firearms and bribery charges.

They have been in custody since April 1989.

27

III. INTERNATIONAL LAW MANDATES THAT

RESPONDENT BE RETURNED TO MEXICO

This Court has uniformly recognized that prosecutions

in American courts of violations of treaties and interna-

tional law require the restoration of the status quo ante,

and the release of persons or property prosecuted or seized

in violation of the international commitments of the United

States. See e.g., United States v. Rauscher, 119 U.S. 407

(1886) (prosecution in violation of extradition treaty); Cook

v. United States, 288 U.S. 102 (1933) (seizure of property

in violation of Convention to Prevent Smuggling); Ford v.

United States, 273 U.S, 593 (1927) (same); The Paquete

Habana, 175 U.S. 677 (1900) (condemnation of fishing ves-

sels as price of war in violation of international law); Cos-

grove v. Winney, 174 U.S. 64 (1899) (prosecution for an

offense committed prior to extradition). The court below

was correct in relying on these decisions in formulating

its order that the respondent be allowed to return to Mex-

ico.

In its Judgment (indemnity phase) in the Chorzéw Fac-

tory case (Germany v. Poland), 1928 P.C.I.J., ser. A, No.

17, at 4, 47, the Permanent Court of International Justice

ruled that restitution is the foremost remedy for inter-

national wrongful acts:

The essential principle contained in the actual no-

tion of an illegal act—a principle which seems to be

established by international practice and in particular

by the decisions of arbitral tribunals—is that repar-

ation must, as far as possible, wipe out all conse-

quences of the illegal act and reestablish the situation

which would, in all probability, have existed if that

act had not been committed. [Emphasis added. ]

Among the ambitious studies in international law con-

ducted under the auspices of Harvard University between

the two world wars, the results of which were formulated

in the form of ‘draft conventions,’’ was a proposed con-

vention on “Jurisdiction with Respect to Crime’. 29

28

Am.J.Int’] L.Supp. 435 (1935).*° The scholars who partic-

ipated in this project agreed that the following rule com-

prised a fair statement of customary international law with

respect to transborder abductions that violate treaties:

Article 16. Apprehension in Violation of International

Law

In exercising jurisdiction under this Convention, no

State shall prosecute or punish any person who has

been brought within its territory or a place subject

to its authority by recourse to measures in violation

of international law or international convention with-

out first obtaining the consent of the State or States

whose rights have been violated by such measures.

29 Am.J.Int’] L.Supp. at 623.

In commenting on the rule, the project stated: “It is

everywhere agreed of course, that ‘recourse to measures

in violation of international law or international conven-

tion’ in obtaining custody of a person charged with a crime

entails an international responsibility which must be dis-

charged by the release or restoration of the person taken,

indemnification of the injured State, or otherwise’.”’ Jd. at

623-24. Writers and publicists on international law are

near unanimous that the appropriate municipal law remedy

for the United States’ violation of the extradition treaty

is respondent’s discharge from the custody of the courts

and his return to Mexico.

** The Reporter and the Assistant Reporter of the project were Prof.

Edwin D. Dickinson and Prof. William W. Bishop, Jr., respectively.

The advisory panel on the project consisted of a veritable Who's

Who of American international law scholars and practitioners at the

time: Judge Learned Hand; George W. Wickersham, former Attorney

General of the United States; Elihu Root, former Secretary of State;

Manley O. Hudson, former judge of the Permanent Court of Interna-

tional Justice and a member of the Permanent Court of Arbitration;

Green H. Hackworth, Legal Adviser of the Department of State; Charles

Chaney Hyde and James Brown Scott, former Solicitors of the De-

partment of State; Philip C. Jessup, a future American judge on the

International Court of Justice.

29

A former President of the Permanent Court of Inter-

national Justice, and one of the most distinguished scholars

on international law in the English-speaking world, Hersh

Lauterpacht, stated:

“The duty to respect the territorial supremacy of a

foreign State must prevent a State from performing

acts which, although they are according to its personal

supremacy within its competence, would violate the

territorial supremacy of this foreign State. A State

must not perform acts of sovereignty in the territory

of another State.”

1 Oppenheim’s International Law 295 (Lauterpacht ed.,

8th ed. 1955). To illustrate such an international delin-

quency, and the remedy therefore, Judge Lauterpacht re-

fers to abductions from another State’s territory:

It is therefore a breach of International Law for a

State to-send its agents to the territory of another

State to apprehend persons accused of a crime. Apart

from other satisfaction, the first duty of the offending

State is to hand over the person in question to the

State in whose territory he was apprehended. [Em-

phasis added].

Id. n. 1.

Contemporary American, English, Canadian and Latin

American scholars and publicists support the view. See e.g.,

Lowenfeld, U.S. Law Enforcement Abroad: The Constitu-

tion in International Law, Continued, 84 Am.J.Int’] L.

444, 474, 481 (1990); Scott, Criminal Jurisdiction of a

State Over a Defendant Based Upon Presence Secured by

Force or Fraud, 37 Minn.L.Rev. 91, 105 (1953); Morgen-

stern, Jurisdiction in Seizures Effected in Violation of In-

ternational Law, 29 Brit.Yb.Int’] L. 265, 266 (1952); Lewis,

Unlawful Arrest: A Bar to the Jurisdiction of the Court,

or Mala Captus Bene Detentus? Sidney Jaffee: A Case in

Point, 28 Crim.L.Q. 341, 348 (1986); Garcia-Mora, Crim-

30

inal Jurisdiction of a State Over Fugitives Brought From

a Foreign Country by Force or Fraud: A Comparative

Study, 32 Ind.L.J. 427, 430 (1957).

This Court’s uniform holdings, beginning with Rauscher,

supra, and the foregoing authorities support the view that

if there was no jurisdiction in a State to make the original

arrest or seizure, because it was in violation of a treaty

or of international law, there is no jurisdiction in the courts

to subject the person or property to its process.” Resto-

ration of the status quo ante is the only proper remedy

for the violation of international law that occurred here.

CONCLUSION

For the foregoing reasons, the Court of Appeals judg-

ment ordering the respondent’s repatriation should be af-

firmed.

Respectfully submitted,

Bruno A. RISTAU

Counsel of Record

MICHAEL ABBELL

Ristau & ABBELL

Attorneys for the United Mexican

States

Luis MIGUEL Diaz

Legal Advisor

Ministry of Foreign Affairs of Mexico

March 5, 1992.

* The United States’ reliance on The Ship Richmond v. United States,

9 Cranch (13 U.S.) 102 (1815) (Pet. Br. at 14 n.8) is misplaced. The

holding of that case cannot be reconciled with this Court’s decisions,

supra, and Richmond must be regarded as having been overruled.