Alvarez Machain

Jonathan Miller Jmiller at
Fri Jul 2 08:03:12 PDT 2004


Just three quick comments, and then we can continue the discussion off-
list unless others chime in.

1) I agree with you that there is a strong argument that even a short 
arbitrary detention violates customary international law, but as you are 
aware, there is hardly a uniform position in international law today 
regarding how the existence of a treaty obligation can in turn generate a 
customary international law norm.  Perhaps if the issue had come up before 
9/11 the Supreme Court would have viewed it differently, but I think the 
unanimous vote on the outcome shows that the plaintiff and his attorneys 
in their wildest dreams could not have hoped to get the Court to rule in 
their favor. The fact that the Court finds that a short arbitrary 
detention does not violate customary international law is what allows the 
Court to keep the Alien Tort Statute alive.

2) I agree that Justice Souter is not evaluating customary international 
law in the same manner that an international law scholar would, and I 
suspect that he would be the first to admit it.  Justice Souter is 
evaluating customary international law from the viewpoint of whether a 
particular norm should be regarded as sufficiently accepted and specific 
so as to be incorporated in Federal common law, keeping in mind the post-
Erie reluctance of the Federal courts to develop federal common law, 
because of the inherent federalism concerns.  And he is writing in a 
context in which for over two decades the Supreme Court has been 
extraordinarily (or in my opinion excessively) cautious about implying the 
existence of federal causes of action.  Given the comparatively nebulous 
nature of customary international law, I do not think he could have done 
anything else and still attracted the votes of Justices O4Connor and 
Kennedy.  The end result is to place the Filartiga line of cases on a very 
solid foundation, that activitsts will be able to build upon without 
concern that the entire edifice might tumble with a future Supreme Court 
decision.  (In fact, perhaps the most encouraging aspect of the case is 
that only Justice Breyer was attracted to the Amicus brief that Debevoise 
and Plimpton wrote for the European Union to try to restrain the use of 
the Alien Tort Statute against corporate defendants.) 

3) Certainly a state-sponsored extraterritorial abduction violates 
customary international law (that is what made Chief Justice Rhenquist4s 
opinion in Alvarez Machain I so flimsy), but that is not the sort of 
customary international law violation that Justice Souter deems the Alien 
Tort Statute as designed to address.  Justice Souter distinguishes public 
international law situations where States have acted upon each other from 
situations where individuals have caused international law to be 
violated.  Admittedly the distinction is not a sharp one, but it probably 
is true that the Alien Tort Statute was not designed to allow suits 
against a State for invasions of the sovereignty of another State.

Jonathan Miller

> Prof. Miller writes:
> > I just finished reading Justice Souter4s majority opinion in Alvarez 
> > Machain, handed down on Tuesday, and I found it one of the most 
> > outstanding pieces of judicial scholarship I have ever read.  Perhaps 
> > greatest interest for those not interested in the international human 
> > rights aspects of the case, the opinion definitively establishes the
> place 
> > of customary international law as a variant of federal common law and 
> > reconciles it with Erie.  Moreover, all parts of the opinion are
> supported 
> > by at least six votes.  While the plaintiff lost his Alien Tort 
> > claim on the grounds that his illegal detention was not suficiently 
> > prolonged to constitute a violation of customary international law, 
> > was no way that he was going to win that claim in the context of our 
> > present war on terror and the detentions we are parties to around the 
> > world.  The case looks like a huge victory for all those interested in 
> > having U.S. courts respect international law and offer a forum for 
> > protecting international human rights. 
> COMMENT:  Wait a minute!  You are saying both that the "case looks like a
> huge victory for those interested in having U.S. courts respect
> international law and offer a forum for protecting international human
> rights" and yet that "there was no way that [Alvarez] was going to win 
> claim of illegal detention] in the context of our present war on terror 
> the detentions we are parties to around the world."  I have trouble
> reconciling these two statements.
> I have numerous troubles with Souter's opinion.  He doesn't seem to
> understand what the law of nations is and incorrectly conflates it with
> norms erga omnes.  He incorrectly doesn't accommodate the persistent
> objector rule.  He indicates that the U.S.' non-self-execution 
> for the ICCPR serves to supercede the substantive content of a customary
> international law norm without providing any reasoned basis or authority
> for such an assertion.  The relationship between the NSE declaration and
> acceptance of the customary international legal norm is one of apples and
> oranges, an issue also mooted by the fact that regardless of whether the
> ICCPR right to liberty is non-self-executing (which I think is non-
> because it violates the object and purpose rule), the ATS also addresses
> the law of nations norms, one of which is the right to liberty and 
> security, which just happens to be codified in the ICCPR but also a 
> of other widely adopted multilateral treaties.  As early as 1981, the UN
> Human Rights Committee interpreted the right to liberty and personal
> security guaranteed by the ICCPR to prohibit extraterritorial abductions 
> (see Saldias de Lopez v. Uruguay).  The right to liberty and personal
> security crystallized as a customary international legal norm certainly
> before the U.S.' ratification of the ICCPR and deposit of the NSE
> declaration in 1992.  However, Souter dismisses the UN Working Group's
> finding that Alvarez's abduction did violate customary international law.
> I also have trouble with Souter's conceptual conflation of common law and
> customary international law, but I'll leave that for now.
> Francisco Forrest Martin
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