Comment, Customary International Law, Forcible Abductions and America’s 'Return to the Savage State'

Buffalo Law Review, Vol. 42, p. 555, 1994

67 Pages Posted: 31 Aug 2009

See all articles by Douglas J. Sylvester

Douglas J. Sylvester

Arizona State University - College of Law

Date Written: 1994

Abstract

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.

Keywords: Customary international law, state sovereignty, Alvarez-Machain

Suggested Citation

Sylvester, Douglas J., Comment, Customary International Law, Forcible Abductions and America’s 'Return to the Savage State' (1994). Buffalo Law Review, Vol. 42, p. 555, 1994, Available at SSRN: https://ssrn.com/abstract=1464541

Douglas J. Sylvester (Contact Author)

Arizona State University - College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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