SOSA v. AL VAREZ-MACHAIN: EXTRATERRITORIAL ABDUCTION AND THE RIGHTS OF INDIVIDUALS UNDER INTERNATIONAL LAW Jeffrey Loan* I. ABSTRACT ............................................. 254 H. INTRODUCTION .......................................... 254 Ill. EXTRATERRITORIAL ABDUCTION: THE TRADITIONAL FRAILTIES OF INTERNATIONAL LAW .......................... 255 IV. ANALYSIS OF SOSA V. ALVAREZ-MACHAIN ................... 258 A. Background ....................................... 258 1. The Criminal Proceedings ........................ 258 2. The Civil Proceedings ........................... 259 B. Decision of the U.S. Court of Appeals for the Ninth Circuit .. 262 C. Decision of the U.S. Supreme Court ..................... 263 V. Is THERE AN INDIVIDUAL RIGHT TO BE FREE FROM EXTRATERRITORIAL ABDUCTION? . . . . . . . . . . . . . . . . . . . . . . . . . . 266 A. What Human Right Should be Analyzed? ................. 266 B. Determiningt he Content of Customary InternationalL aw ... 267 C. InternationalH uman Rights Law ....................... 269 1. The United Nations Framework .................... 269 2. The International Covenant on Civil and Political Rights 271 3. The European Convention on Human Rights .......... 275 D. The Approach of Domestic Courts ...................... 277 E. Resolving the Issue: Is There a Customary Norm? ......... 280 F. The Implications of a Breach of This Right ............... 282 VI. THE RIGHT TO BE FREE FROM EXTRATERRITORIAL ABDUCTION AND SOSA V. ALVAREZ-MACHAIN ................ 285 A. Reconciling the Supreme Court's Decision with the Customary Norm ................................... 285 B. Understandingt he Influencing Factorso n the Supreme Court ..................................... 287 VII. CONCLUSION ............................................ 292 BIBLIOGRAPHY .............................................. 294 TABLE OF CASES .............................................. 299 * B.A., Victoria University-Wellington; L.L.B. (1st class hons.), Victoria University-Wellington; L.L.M. (Ist class hons.), Victoria University-Wellington. 254 ILSA Journalo f International& Comparative Law [Vol. 12:253 I.A BSTRACT Although the growth of extradition treaties has assisted in the prosecution of suspects who are not present in the state seeking their prosecution, there will always be situations where extradition is not available or plausible. In such circumstances the prosecuting state may be tempted to undertake an abduction in order to facilitate the prosecution of the individual in their own jurisdiction. The objective of this paper is to examine the use of state-sponsored abductions in light of international human rights law. Although the United States Supreme Court recently held in Sosa v. Alvarez-Machain that an extraterritorial abduction does not violate the rights of individuals under international law, it is evident that this judgment misread the content of customary international law. Individuals have the right to be free from extraterritorial abduction and despite the Supreme Court's decision, recognition of this right is necessary to ensure that the fate of abductees is not entirely dependant upon whether states are willing to advance claims on their behalf. II.I NTRODUCTION The issue of extraterritorial abductions is fraught with important policy and legal considerations. While there may be a pressing need to achieve justice by interrogating or prosecuting a suspect, efforts to secure custody may compro- mise the rights of the individual and those of the state where the individual resides (the host-state). This paper acknowledges that in the absence of consent by the host-state an extraterritorial abduction, or rendition, breaches inter- national law by violating the sovereignty of the state. However, it is contended that an examination of the issues surrounding extraterritorial abductions is not limited to the confines of state sovereignty and it is therefore important that a human rights dimension is added to the analysis. This paper will argue that state-sponsored abductions violate an individual's right to be free from extraterritorial abduction and that this right exists independently of whether there is also a breach of a state's territorial integrity. Such a right for individuals to be free from extraterritorial abduction was not acknowledged in the recent case of Sosa v. Alvarez-Machain.' The United States Supreme Court had to consider whether abductees could bring a civil claim under the Alien Tort Statute alleging a violation of the "law of nations."2 While the Court held that Alvarez had no cause of action, the approach of the Supreme Court to customary international law regarding abductions was flawed, and the decision was substantially influenced by the current war on terrorism. Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004). 28 U.S.C. § 1350(2000). 2005] Loan Although the Supreme Court's decision not to bar all future suits alleging violations of international law will be declared a victory by human rights advocates, there is a risk that the aspect of the decision relating to extraterritorial abductions may be overlooked. It is important that the Court's decision is not recognized as an accurate appraisal of customary international law and that domestic courts throughout the world endeavour to protect the rights of abductees. Section II of this paper will outline the international law regulating extraterritorial abduction and the importance of recognizing individual rights within this state-centric analysis. Section II will discuss the decision of the Supreme Court in Sosa v. Alvarez-Machain and will illustrate that the Court's determination of the role of the Alien Tort Statute affected the analysis of customary international law. This decision is further criticized in section IV, which demonstrates that individuals have a customary international law right to be free from extraterritorial abduction and that the Supreme Court's examina- tion of this norm was inadequate. This section will also demonstrate that although individuals have the right not to be abducted by states, as yet there is no corresponding international right requiring states to refrain from prosecuting those seized in violation of their rights. Finally, section v. will conclude that the Supreme Court's analysis of customary international law cannot be reconciled with state practice and will outline how the political climate and ideological predispositions could have influenced the Court's misreading of the content of customary international law. It is only by recognizing the right of individuals to be free from extra- territorial abduction that international law will be able to protect individuals in circumstances where the host-state is complicit in the abduction or is unwilling to protest the abduction. International law has traditionally been ineffective in such situations as individuals have not been acknowledged as actors in international law and the abduction is subsequently only viewed as a violating the rights of the state. Widespread recognition of the right of individuals not to be subjected to state-sponsored abductions is therefore an important development and is consistent with the growth of international human rights law which ensures that individuals are no longer completely dependant on states to advance claims on their behalf. III. EXTRATERRITORIAL ABDUCTION: THE TRADITIONAL FRAILTIES OF INTERNATIONAL LAW The term "extraterritorial abduction" refers to the situation when a state seeking the custody of a suspected criminal forcibly removes that individual from a foreign country in order to facilitate criminal prosecution. States are encouraged into undertaking extraterritorial measures by the fact that in many 256 ILSA Journalo f International& Comparative Law [Vol. 12:253 jurisdictions the mere physical presence of a suspect is sufficient for a court to exercise jurisdiction without an inquiry into how the individual was detained.3 It is a fundamental principle of international law that states must not perform "acts of sovereignty" within the territory of another state.4 There is consequently widespread recognition that extraterritorial abductions breach international law by violating the sovereignty and the territorial integrity of the host-state.5 A breach of international law constitutes an international wrong, for which the state in question has a responsibility to remedy.6 For individuals who have been abducted, the key issue is whether the remedy for the breach of international law mandates that they be repatriated. The traditional view of international law is that the rights of the individual are irrelevant to the issue of whether the abductee will be prosecuted by the abducting state or returned to the aggrieved state. Traditionally, the only aspect of extraterritorial abduction that invokes state responsibility is the violation of sovereignty, the remedy for which has typically been left to the vagaries on international diplomacy.7 While the host-state may demand the return of an abductee as a remedy for the violation of its sovereignty, making an individual reliant upon the initiatives taken by the host-state not only leads to inconsistency in the treatment of abductees but also unsatisfactorily relegates the importance of international human rights law. Focusing on the claim of the "injured" state ignores the possibility that an individual may possess a right under international law that has been breached independently from that of a state. While a state may bring an international claim based on the breach of its sovereignty, the law of diplomatic protection provides a means for a state to protest the treatment of its nationals. A state may bring a claim against another 3. M. CHERIF BAssIouNI, INTERNATIONAL EXTRADTON: UNITED STATES LAW AND PRACTICE 253 (2002). 4. L OPPENHEIM, INTERNATIONAL LAW: A TREATISE 295 (8th ed. 1955). See also Case of the SS "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 1, 18-19 (June 27); Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 111 (June 27). 5. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (1987); OPPENHEIM, supra note 4; BASSIOUNI, supra note 3.; Paul Mitchell, English-Speaking Justice: Evolving Responses to TransnationaFl orcibleA bductionA fterAlvarez-Machain, 29 CORNELL INT'L L.J. 383, 410 (1996); Stephan Wilske & Teresa Schiller, Jurisdiction Over Persons Abducted in Violation of InternationalL aw in the Aftermath of United States v. Alvarez-Machain, 5 U. CHI. ROUNDTABLE 205, 240 (1998); Alberto Costi, Problems with Current International and National Practices Concerning ExtraterritorialAbductions8, N.Z. ASS'N COMP. L. Y.B. 57, 61 (2002); Silvia Borelli, Terrorisma ndH uman Rights: Treatment of TerroristS uspects andLimits on InternationalC o-operation,1 6 LEIDEN J. INT'L L., 803, 805 (2003) 6. International Law Commission on the Work of its Fifty-third Session, Draft Articles on Responsibility of Statesf or InternationallyW rongful Acts, art. 28, U.N. Doc A/56/1 0 (Nov. 2001) [hereinafter Draft Articles on Responsibility of States for Internationally Wrongful Acts]; SIR ROBERT JENNINGS & SIR ARTHUR WATTS, OPPENHEIM'S INTERNATIONAL LAw 501 (Longmans Publishing, London 1992). 7. Mitchell, supra note 5, at 437. 2005] Loan state based on diplomatic protection when its citizens have been unable to obtain satisfaction for injuries caused by a state's breach of international law.8 While such an approach minimises the failings of the international legal system to recognize the rights of an abductee, it is a misconception to view diplomatic protection as an effective means to vindicate the individual's rights. Although a precondition of diplomatic protection is that an individual is harmed by the act of a state, such an injury is viewed as an injury to the individual's state of nationality rather than to the individual.9 So the claim is transformed into an inter-state matter and the state is seeking redress for the injury caused to itself rather than to the individual.'I As is the case for inter-state claims based on a violation of sovereignty, an act of diplomatic protection is not a private right so individuals are entirely dependant on their national state to espouse their claim." Recourse to diplomatic protection in cases of extraterritorial abduction has been relegated in importance due to the development of modern human rights laws. Since World War II this movement has not only facilitated a growing recognition of human rights, but also led to the acceptance that many of these rights are not simply derived from the rights of a state.'2 Individuals are increasingly viewed as distinct actors in international law, and an infringement of their rights by a state may give rise to a claim being brought before an inter- national organization 3 or provide the basis for a civil suit. The acknow- ledgment that the rights of individuals are not necessarily fused with those of the state is important in the field of extraterritorial abductions as it allows an individual to challenge his/her abduction regardless of whether a state also protests the abduction. Furthermore, it means that international law may be able to provide a remedy to individuals who are abducted and removed from the country with the collusion of the host-state. In the absence of recognition of independent human rights, international law has traditionally been unable to protect an abductee where connivance on the part of the host-state means that there is no violation of the sovereignty of 8. Mavrommatis Palestine Concessions (Greece v. U. K.) 1924 P.C.I.J. (ser. A) No. 2 at 5, 6 (Aug. 30), available at http://www.worldcourts.com/pcij/eng/decisions/1924.08.30_mavrommatis/.(ast visited 9/30/05). 9. C. F. AMERASINGHE, LOCAL REMEDIES IN INTERNATIONAL LAW 54 (1990). 10. CUTHBERT JOSEPH, NATIONALITY AND DIPLOMATIC PROTECTION: THE COMMONWEALTH OF NATIONS 1 (1969). 11. AMERASINGHE, supra note 9, at 60. 12. Jordan J. Paust, After Alvarez-Machain: Abduction, Standing, Denials of Justice, and UnaddressedH uman Rights Claims, 67 ST JOHN'S L. REv. 551, 555 (1993). 13. For example, accession to the First Optional Protocol to the International Covenant on Civil and Political Rights allows individuals to bring claims against that particular state before the United Nations Human Rights Committee. 258 ILSA Journalo fI nternational& ComparativeL aw [Vol. 12:253 the state, or where the host-state is unwilling to advance a claim.4 However, as this paper will demonstrate, these frailties of the international legal system have, to an extent, been rectified by the development of an international norm providing individuals with the right not to be subjected to extraterritorial abduction. IV. ANALYSIS OF SOSA V. ALVAREZ-MACHAIN A. Background 1. The CriminalP roceedings In 1985 a Drug Enforcement Administration (DEA) agent working in Mexico was kidnapped and tortured over two days before being murdered. A grand jury in the Central District of California issued a warrant in 1990 for the arrest of Alvarez, a doctor, who was alleged to have been involved in prolonging the life of the agent for the purpose of interrogation. After Mexico refused to extradite Alvarez, the DEA approved a plan to abduct him in order to bring him to the United States to face charges. The DEA hired Mexican nationals, including Sosa, to abduct Alvarez and detain him overnight before he was flown back to the United States where DEA officials arrested him.'5 Following Mexico's protestation of the violation of its sovereignty, the U.S. Court of Appeals for the Ninth Circuit ruled in 1991 that the abduction violated principles of international law protecting the territorial integrity of a state as well as the extradition treaty between Mexico and the United States. 6 Consequently, the Court ruled that the appropriate remedy was to dismiss the proceedings and for Alvarez to be returned to Mexico.17 However, the Supreme Court subsequently reversed this unanimous decision by the Court of Appeals. Adhering to an earlier decision in United States v. Rauscher that a defendant may not be prosecuted in violation of an extradition treaty," the focus of the Court was on whether the United States-Mexico extradition treaty was breached by Alvarez's abduction. Chief Justice Rehnquist for the majority determined that the extradition treaty was only intended to provide a mechanism for obtaining the custody of an individual in specific circumstances and was never intended to stipulate the only means by which a state could gain custody of an individual." After concluding that the treaty did not expressly prohibit abductions, the majority held that general principles of international law 14. BASsIOUNI, supra note 3, at 256. 15. Alvarez-Machain, 124 S.Ct. at 2746. 16. United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991). 17. Id. 18. United States v. Rauscher, 119 U.S. 407 (1886). 19. United States v. Alvarez-Machain, 504 U.S. 655, 664 (1992). 2005] Loan provided no basis for inferring an implied term into the treaty precluding the use of state-sponsored abductions.20 Just as controversial as the Court's meager analysis of international law was the dismissal of the relevance of international law, with the Court declaring it a matter for the Executive to take into consideration.21 As well as a scathing dissent from Justice Stevens, that labeled the decision as showing a "shocking disdain" for international law, the decision received near universal criticism from academics.22 However, while the Supreme Court settled the issue of jurisdiction over Alvarez, he was acquitted in his subsequent trial, with the trial judge noting that the case against him involved the "wildest speculation. 23 After having indicated in 1992 that Alvarez's abduction could give rise to a civil remedy,24 the Supreme Court was given another opportunity to consider the facts of the Alvarez case in 2004 when Alvarez filed claims against those involved in his abduction. Alvarez brought a claim against the United States under the Federal Tort Claims Act (FTCA) and a suit against Sosa and other Mexicans involved in his abduction under the Alien Tort Statute (ATS).21 2. The Civil Proceedings a. The FTCA Alvarez's FTCA suit against the United States Government was based on the assertion that the DEA had no authority to arrest Alvarez in Mexico and that the Government was accordingly liable for his false arrest. While the FTCA was intended to make the Government as liable for tortious actions as an individual,26 it provides the Government with immunity for "any claim arising in a foreign country."2'7 The Supreme Court reversed the decision of the Court of Appeals and held that this exception applied even when tortious acts in foreign states were planned within the United States.8 Consequently the United States Government had immunity against Alvarez's claim. 20. Id at 668-69. 21. Id. at 669. 22. See, e.g. Mitchell, supra note 5; Paust, supra note 12; Wilske, supra note 5; Kristin Berdan Weissman, ExtraterritoriaAl bduction: The Endangerment of Future Peace, 27 U.C. DAVIS L. REV. 459 (1994); Andrew L. Strauss, A GlobalP aradigmS hattered: The JurisdictionalN ihilism of the Supreme Court's Abduction Decision in Alvarez-Machain, 67 TEMP. L. REV. 1209 (1994). 23. Alvarez-Machain v. Sosa, 331 F.3d 604, 610 (9th Cir. 2003). 24. Alvarez-Machain, 504 U.S. at 669. 25. The Alien Tort Statute is also commonly referred to as the Alien Tort Claims Act, 28 U.S.C. § 1350 (2000). 26. Mark Dean, Smith v. United States: Justice Denied Under the FTCA 'Foreign Country' Exception, 38 ST. LOUIS U. L.J. 553 (1993). 27. 28 U.S.C. § 2680(k) (2000). 28. Alvarez-Machain, 124 S.Ct. at 2753. 260 ILSA Journalo f International& ComparativeL aw [Vol. 12:253 b. TheATS This paper focuses on the Supreme Court's treatment of Alvarez's claim under the ATS. The ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 29 The issue for the courts to determine would appear, on the reading of this statute, to be whether the individuals who abducted Alvarez violated the law of nations or a treaty of the United States. However, rather than closely examining the relevant facts, the court cases became a debate on the role of the ATS under federal law. The ATS is contentious because of its potentially wide use and political implications. The ATS was enacted in 1789, but remained largely unused for the most part of two centuries. ° However, it was revitalized by the U.S. Court of Appeals for the Second Circuit in Filartigav . Pena-Irala3". In that case the Court held that a Paraguayan national could sue a former Paraguayan official in the United States for acts of torture committed in Paraguay. The Court held that the prohibition against torture was a specific, universal and obligatory international norm, and consequently there was a breach of the law of nations.32 The view that the ATS could provide a forum for redressing any tortious violations of the law of nations regardless of the nationality of the defendant or the place of the violation prompted a flurry of human rights litigation in the United States.3' However, some courts in the United States have failed to endorse the approach established in Filartiga,34 with many commentators also concerned about the effects that widespread ATS litigation could have on the foreign relations of the United States.5 29. 28 U.S.C. § 1350 (2000). 30. Eugene Kontorovich, Implementing Sosa v. Alvarez Machain: What Piracy Teaches About the Limits of the Alien Tort Statute, 80 NOTRE DAME L. REv. 111 (2004). 31. Filartiga v. Pena-Irsla, 630 F.2d 876 (2d Cir. 1980). 32. Id. at 878. 33. Cases that have been brought by foreigners under the ATS include alleging summary execution, arbitrary detention, causing disappearance, genocide, war crimes, forced labour and violation of environmental standards. Kontorvich, supra note 30, at 8. 34. See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984). 35. See, e.g., Covey T. Oliver, Problems of Cognition andI nterpretation in Applying Norms and Customary InternationalL aw of Human Rights in the United States Courts, 4 HOUS. J. INT'L L. 59 (1981); Charles F. Marshall, Re-framing the Alien Tort Act after Kadic v. Karadzic, 21 N.C.J. INT'L. & COM. REG. 591 (1996); Jean-Marie Simon, The Alien Tort Claims Act: Justice or Show Trials?, 11 B.U. INT'L L.J. 1 (1994); Curtis A. Bradley, The Costs ofInternationalH uman Rights Litigation, 2 Cm. J. INT'L L. 457 (2001); Gary Clyde Hufbauer & Nicholas K. Mitrokostas, InternationalI mplications of the Alien Tort Statute, J. INT'L ECON. L. 245 (2004). 2005] Loan Sosa v. Alvarez-Machain therefore, provided the Supreme Court with an opportunity to determine whether the recent revival of the ATS can be justified as consistent with the intentions of the drafters in 1789. It is readily apparent that to allow suits to be brought for any breach of international law would make the court system unworkable and could involve United States courts determining matters of international law that may have no relevance to the United States. To limit this apparently open-ended jurisdiction, courts have read in a requirement that the aspect of international law invoked by a plaintiff must be a "well-established, universally recognized norm."36 The universal nature of the norm would therefore provide a sufficient link for United States courts to take an interest in providing a forum to hear claims based on the most serious violations of international law. Although the ATS recognizes violations of the "law of nations or a treaty of the United States," by requiring the rule to have universal acceptance courts have effectively limited the scope of the ATS as only applying to breaches of customary international law.37 Despite this judicial limitation on the applicability of the ATS, there are still concerns as to whether the Filartigal ine of cases is accurate in concluding that the ATS creates a private right of action for individuals. Academic commentary on the role of the ATS appears to be evenly divided into two broad camps: those who believe that the ATS provides subject-matter jurisdiction for breaches of universally recognized norms of international law,3" and those who believe that the ATS merely confers procedural jurisdiction on federal courts to hear claims but does not create a cause of action for individuals.39 This latter viewpoint would severely limit the success of future ATS suits, as it would require plaintiffs to show that a particular norm in international law explicitly provides for a civil remedy.' 36. Filartiga,6 30 F.2d at 878; In re Estate of Ferdinand E. Marcos Human Rights Litigation v. Marcos, 978 F.2d 493 (9th Cir. 1992); Zapata v. Quinn, 707 F .2d 691 (2d Cir. 1992). 37. Jason Jarvis, A New Paradigmf or the Alien Tort Statute under Extraterritorialitya nd the UniversalityP rinciple, 30 PEPP. L. REV.6 71,674 (2003); see also Julian G. Ku, CustomaryI nternationalL aw in State Courts, 42 VA. J.IN T'L L. 265, 271 (2001). 38. See, e.g., Ryan Goodman and Derek P. Jinks, Filartiga'sF irm Footing:I nternationalH uman Rights and Federal Common Law, 66 FORDHAM L. REV. 463 (1997); Harvard Law Review Ass'n, International Criminal Law: Corporate Liabilityf or Violations of InternationalH uman Rights Law, 114 HARv. L. REV. 2025 (2001); Justin Lu, Jurisdictiono ver Non-State Activity under the Alien Tort Claims Act, 35 COLUM. J. TRANSNAT'L L. 531 (1997); Armin Rosencranz and Richard Campbell, ForeignE nvironmental and Human Rights Suits Against US Corporationsi n US. Courts, 18 STAN. ENvrL. L.J. 145 (1999). 39. See, e.g., William R Casto, The Federal Courts' ProtectiveJ urisdictiono ver Torts Committed in Violation of the Law ofN ations, 18 CONN. L. REV. 467 (1986); William D'Zurilla Individual Responsibility for Torture under InternationalL aw, 56 TutL. L. REV. 186 (1981); Marshall, supra note 35; Jarvis, supra note 37. 40. GARY B. BORN & DAVID WESTIN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS: COMMENTARY AND MATERIALS 421 (1988). 262 ILSA Journalo f International& ComparativeL aw [Vol. 12:253 It was against this background of contention as to the appropriate function of the ATS that Alvarez brought his claim. Indeed, as it transpired, the majority of submissions, and indeed all the amici curiaeb riefs, focused on the role of the ATS in federal law rather than examining whether Alvarez's extraterritorial abduction was prohibited by customary international law. B. Decision of the U.S. Court of Appeals for the Ninth Circuit The Ninth Circuit in Alvarez-Machain v. Sosa affirmed the Filartiga position that the ATS granted courts jurisdiction to hear claims for breaches of international norms that were "specific, universal, and obligatory."4'1 However, the Court found it unnecessary to examine whether there was an international norm prohibiting states from abducting individuals in violation of another state's sovereignty as "the right of a nation to invoke its territorial integrity does not translate into the right of an individual to invoke such interests in the name of the law of nations."4'2 The Court was correct in its view that Alvarez did not have standing to bring his claim solely on the violation of Mexican sovereignty. Although there was a breach of customary international law, to allow a lawsuit to be successful on this basis would mean that any individual of the wronged state would be able to bring a civil claim. The primary aim of the law of torts is to return an injured individual to their position prior to the alleged wrongful act,43 but in this case the harm was caused to Mexico and granting damages to Alvarez would not vindicate this harm. Although Alvarez could not assert a claim for damages based on the breach of Mexican sovereignty he did have valid arguments for claiming that his extraterritorial abduction breached customary international law, and that damages should accordingly be awarded under the ATS. This claim is based on his individual rights, rather than the claim associated with Mexican sovereignty. However, like the Supreme Court to follow, the Court of Appeals refuted this claim, stating, "our review of the international authorities and literature reveals no specific binding obligation, express or implied, on the part of the United States or its agents to refrain from trans-border kidnapping." This aspect of the decision will be discussed further under the analysis of the Supreme Court decision. However, the Court also held that although there was no international prohibition against extraterritorial abduction, there was a clear and universally 41. Alvarez-Machain, 331 F.3d at 612. 42. Id.at 617. 43. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW § 901; WILLIAM L. PROSSER, PROSSER AND KEETON ON TORTS 5-6 (5th ed. 1984); W. V. H. ROGERS, WINFIELD & JOLOWICZ ON TORT 2-3 (11t h ed. 1979). 44. Alvarez-Machain, 331 F.3d at 619.