1 United States v. Alvarez-Machain, 504 U.S. 655 (1992).

2 Treaty of Extradition, May 4, 1978, U.S.-Mex., 31 UST 5059.

3 See S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 18 (stating that “the first and foremost restriction imposed by international law .upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State”); see also Restatement (Third) of the Foreign Relations Law of the United States § 432 (2) (1987)Google Scholar (a state’s law enforcement officers may exercise their functions in another state’s territory only with that state’s consent) [hereinafter Restatement]; FBI Authority to Seize Suspects Abroad: Hearing Before the Subcomm. on Civiland Constitutional Rights of the House Coram, on the judiciary, 101st Cong. 31–32, 37 (1989)Google Scholar (statement of State Department Legal Adviser Abraham D. Sofaer that forcible abduction from a foreign state clearly violates the principle of territorial integrity unless a strong self-defense case can be made for it). It is quite unlikely that a government could avoid these proscriptions simply by offering money to someone to do the job for it, as the United States apparently did in Alvarez-Machain. United States v. Alvarez-Machain, 504 U.S. at 657 n.2.

4 United States v. Postal, 589 F.2d 862 (5th Cir. 1979).

5 Convention on the High Seas, Apr. 29, 1958, Art. 6, 13 UST 2312, 450 UNTS 82 (“Ships shall sail under the flag of one State only and, save in exceptional cases . . . , shall be subject to its exclusive jurisdiction on the high seas.”).

6 Seguros Comercial Am. v. Hall, 115 F.Supp.2d 1371 (M.D. Fla. 2000). The treaty was the Convention for the Recovery and Return of Stolen or Embezzled Vehicles and Aircraft, Jan. 15, 1981, U.S.-Mex., TIAS No. 10,653.

7 Apr. 24, 1963, Art. 36(1) (b), 21 UST 77, 596 UNTS 261 [hereinafter Consular Convention].

8 United States v. Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000); United States v. Chaparro-Alcantara, 226 F.3d 616, 624–25 (7th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1195–96 (11 th Cir. 2000); United States v. Lombera-Camorlinga, 206 F.3d 882, 886 (9th Cir. 2000) (en banc); United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000).

9 Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64,118 (1804) (Marshall, C.J.). For a modern application, see Justice Scalia’s dissenting opinion for himself and three others in Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814–19 (1993). See also Restatement, supra note 3, §114.

10 An early and classic example of the intensity with which the differing views have been held appears in the U.S. Mexican correspondence concerning the expropriation of agrarian and oil properties in 1938-1940. Property Rights, 3 Hackworth Digest §288, at 655–64. More recently, the disputes have led to a series of international arbitral awards that have narrowed the remaining areas of contention, particularly in the Iran-United States Claims Tribunal. See, e.g., George, H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996)Google Scholar; Charles, N. Brower & Jason, D. Brueschke, The Iran-United States Claims Tribunal (1998)Google Scholar; The Iran-United States Claims Tribunal: its Contribution to the Law of State Responsibility (Richard, B. Lillich & Daniel, B. Magraw eds., 1998).Google Scholar

11 See Case concerning the Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures (Apr. 9, 1998), at <http://www.icj-cij.org>; LaGrand Case (FRGv. U.S.) (pending before the ICJ), at id.; N.Y. Times, Oct. 30, 2000, at A20 (describing protests by Mexican government and others).

12 Chorzow Factory (Ger. v. Pol.), 1928 PCIJ (ser. A) No. 17, at 47 (Sept. 13).

13 Id at 29.

14 Convention Relating to Upper Silesia, May 15,1922, Ger.-Pol. The League of Nations Treaty Series contains only a declaration interpreting a portion of the Convention, June 3, 1922, 9 LNTS 466, not the Convention itself. The relevant provision, Article 6 of the Convention, appears in Certain German Interests in Polish Upper Silesia (Ger. v. Pol.) (Merits), 1926 PCIJ (ser. A) No. 7, at 21 (May 25).

15 Certain German Interests in Polish Upper Silesia (Merits), 1926 PCIJ (ser. A) No. 7, at 21.

16 Chorzów Factory, 1928 PCIJ (ser. A) No. 17, at 33–34, 39.

17 International Court of Justice [ICJ] Statute Art. 38 (1).

18 The ICJ has said that restitution in kind might be awarded for a violation of “a legal right” (without specifying whether the right emanates from a treaty or custom), even if it meant dismantling a large bridge over a strait. Passage Through the Great Belt (Fin. v. Den.), Provisional Measures, 1991 ICJ Rep. 12, 19 (July 29). Some scholars have recently questioned whether custom actually has a significant role to play as an ordering force in international relations. Jack, L. Goldsmith & Eric, A. Posner, A Theory of Customary International Law, 66 U. Chi. L.R. 1113 (1999)Google Scholar; Kelly, J. Patrick, The Twilight of Customary International Law, 40 Va. J. Int’l L. 449 (2000).Google Scholar But the list of sources found in Article 38(1) of the ICJ Statute, which includes “international custom, as evidence of a practice accepted as law,” remains authoritative. See Brownlie, Ian, Principles of Public International Law 3 (5th ed. 1998)Google Scholar; see also Schachter, Oscar, International Law in Theory and Practice 77–78 (1991)Google Scholar (showing how state practice establishing the 200-mile exclusive economic zone in the oceans has supplanted preexisting treaty obligations).

19 Texaco Overseas Petroleum Co. (TOPCO) & Cal. Asiatic Oil Co. (Calasiatic) v. Libyan Arab Republic, 53 ILR 389, 422 (award of Jan. 19, 1977).

20 Alvarez de Eulate, M. B. A., La “Restitutio in Integrum “en la Prdcticay en la juris prudencia Internationales, Temis: Revista de Ciencia y TÉcnicajuridica, Nos. 29–32, 1971–72, at 11, 31Google Scholar, quoted and translated in id. at 507. But see Libyan Am. Oil Co. (LIAMCO) v. Libyan Arab Republic, 20 ILM 1, 62–64 (1981) (award of Apr. 12,1977) (rejecting restitution as a remedy for a state’s nationalization of property in breach of a concession contract, on the ground that an order of restitution by an international arbitral tribunal would violate the sovereignty of the nationalizing state). Violation of sovereignty would not be an issue in a domestic court of the state responsible for the actionable conduct.

21 United States v. Alvarez-Machain, 504 U.S. 655 (1992).

22 Inter-American Juridical Committee, Legal Opinion on the Decision of the Supreme Court of the United States of America, OAS Doc. CJI/RES.II-15/92, para. 10 (1992), reprinted in 13 Hum. Rts. L.J. 395, 397 (1992).Google Scholar

23 Restatement, supra note 3, §901 cmt. d.

24 Temple of Preah Vihear (Cambodia v. Thail.), Merits, 1962 ICJ Rep. 6, 37 (June 15).

25 State Responsibility: Draft Articles Provisionally Adopted by the Drafting Committee on Second Reading, Art. 36, in Report of the International Law Commission on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, at 124, 133, UN Doc. A/55/10 (2000). The articles contemplate that an injured state may elect to forgo restitution and choose some other form of reparation instead. Crawford, James, Bodeau, Pierre, & Peel, Jacqueline, The ILC’s Draft Articles on State Responsibility: Toward Completion of a Second Reading, 94 AJIL 660, 668 (2000).Google Scholar Even if such election would relieve a domestic court in the responsible state of causing any violation of international remedial law if it does not award restitution, this scenario is highly unlikely in the kind of case likely to come up in a domestic court. In these cases, a person is normally the real party in interest and that person’s state will almost always wish to see the status quo ante restored if that is possible. See, for example, the ICJ cases cited in note 11 supra.

26 See Frederic, L. Kirgis, Federal Statutes, Executive Orders and “Self-Executing Custom,’ 81 AJIL 371, 372 (1987).Google Scholar

27 Several recent cases involving Article 36 (1) (b) of the Vienna Convention on Consular Relations, supra note 7, have noted a question whether that provision creates domestically enforceable individual rights, but have deemed it unnecessary to answer the question because they have held that, in any event, the exclusionary rule is not an appropriate remedy for an Article 36 violation. See United States v. Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000), and cases there cited. The question is actually irrelevant because the duty to provide restitution for an international law violation does not depend on the enforceability in domestic courts of the rights violated. In the absence of specific directions from Congress, it depends only on proof at an appropriate stage of the proceedings that a violation adversely affecting a party’s interests has occurred, on the feasibility of restoring the status quo ante, and (perhaps) on a finding regarding the proportionality of the remedy, see text at note 25 supra.

28 In cases involving violations of Article 36 (1) (b) of the Vienna Convention on Consular Relations, supra note 7, where the defendant has argued that incriminating evidence should be suppressed, courts have said that the exclusionary rule is available only when there has been a violation of the person’s constitutional rights or when a federal statute requires it. Since treaty violations are not tantamount to constitutional violations and since no federal statute requires exclusion of evidence for violations of the Convention, these courts have held the exclusionary rule inapplicable. See, e.g., United States v. Page, 232 F.3d 536, 540–41 (6th Cir. 2000), cert, denied sub nom. Linton v. United States, 121 S.Ct. 1389 (2001), 2001 U.S. LEXIS 2414; United States v. Chaparro-Alcantara, 226 F.3d 616, 621 (7th Cir. 2000); United States v. Carrillo, 70 F.Supp.2d 854,861 (N.D. III. 1999); United States v. Torres-Del Muro, 58 F. Supp. 2d 931, 933 (CD. III. 1999).

29 See the cases cited supra note 28, which give great weight to the fact that the Vienna Convention on Consular Relations does not expressly provide for suppression of evidence as a remedy. Treaties rarely specify the remedy for their breach.

30 In People v. Madej, 739 N.E.2d 423 (III. 2000), a defendant who had been denied his Consular Convention rights by Illinois authorities raised the issue for the first time in a petition for relief from his conviction, filed fourteen years after the limitation period for such relief under Illinois law had expired. He argued that because international law required restitution for the treaty violation, his conviction and sentence were void and the limitation period was thus inapplicable. The Illinois Supreme Court properly rejected his argument. He had failed to raise the point in a timely manner, and in any event international law does not mandate that a judicial decision that fails to apply the proper remedy is void.

31 This is a basic formulation of the standing-to-sue issue. See Charles, A. Wright, Arthur, R. Miller, & Edward, H. Cooper, 13 Federal Practice and Procedure 345–47 (2d ed. 1984).Google Scholar When there has been a violation of an international law norm of the sort that serves the interests of persons, a basic “standing” test should be used. Elaborate standing requirements would, in many cases, frustrate the purpose of the restitution requirement imposed by international remedial law.

32 Accord, generally, William, J. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies, 31 Vand. J. Transnat’l L. 257, 310–12 (1998)Google Scholar; Mark, J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul 18 Mich. J. Int’l L. 565, 610–12 (1997)Google Scholar; Linda Jane, Springrose, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 Geo. Immigr. L. J. 185, 207–13 (1999).Google Scholar

33 27 U.S. (2 Pet.) 253 (1829).

34 32 U.S. (7 Pet.) 51 (1833).

35 123 F.Supp.2d 191 (S.D.N.Y. 2000).

36 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984. Art. 3, 1465 UNTS 85, 23 ILM 1027 (1984), modified in 24 ILM 535 (1985).

37 42 U.S.C. §§ 11601–11610 (1994).

38 Oct. 25, 1980, 1343 UNTS 89, 19 ILM 1501 (1980).

39 42 U.S.C. § 11603 (d) (1994).

40 Article 36( 1) (b) expressly refers to the rights of the individual to request that the consular post be informed and to have the authorities forward his or her communication to the post without delay. “The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” Consular Convention, supra note 7, Art. 36(1) (b) (emphasis added). The U.S. Supreme Court said in Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam), that the Convention “arguably confers on an individual the right to consular assistance following arrest.”

41 See text at note 22 supra.

42 See text at note 23 supra.

43 See text at note 25 supra.

44 See, e.g., United States v. Bin Laden, 126 F.Supp.2d 290, 295-96 (S.D.N.Y. 2001), 2001 WL 8355, at *3; United States v. Moreno, 122 F.Supp.2d 679, 683–84 (E.D. Va. 2000); United States v. Rodrigues, 68 F.Supp.2d 178, 184 (E.D.N.Y. 1999); United States v. Alvarado-Torres, 45 F.Supp.2d 986,990-91 (S.D. Cal. 1999), aff’d mem., 230 F.3d 1368 (9th Cir. 2000). Cf. Breard v. Greene, 523 U.S. 371,377 (1998). These courts’ restrictive treatment of the matter could also be viewed as a denial of the complaining party’s standing to raise the Consular Convention issue on the ground that he or she has failed to show a distinct and palpable injury from the treaty violation. On this aspect of standing (in the context of a civil action, not a criminal prosecution), see Wright, Miller, & Cooper, supra note 31, at 418.

45 See State v. Ramirez, 732 N.E.2d 1065, 1070–71 (Ohio Ct. App. 1999) (pointing out not only that the American legal system would have been explained to the accused, a Mexican national, if the consulate had been notified, but also that the consul could have assisted in tracking down potential defense witnesses who had returned to Mexico).

46 Right to Information on Consular Assistance in Framework of Guarantees of Due Process of Law, Advisory Op. OC-16/99, 1999 Ann. Rep. Inter-Am. Ct. Hum. Rts., OEA/Ser.L/V/III.47, doc. 6, at 487,558, para. 121; see also State v. Reyes, 740 A.2 d7, 14 (Del. Super. Ct. 1999) (placing the burden on the state to prove that the suspect had waived his rights, including the right to consult his consular officials, and finding that the state had failed to meet its burden when it failed to inform him of that right—which led the court to grant the defendant’s motion to suppress the statement he made to a police officer).

47 Interpretation of Algiers Declarations with Respect to Whether U.S. Is Obligated to Satisfy Promptly Any Award Rendered in Favor of Iran Against U.S. Nationals (Iran v. U.S.), 14 Iran-U.S. CI. Trib. Rep. 324, 330-31 (1987 I), reprinted in 26 ILM 1592, 1598-99 (1987).

48 The point being made here is not that U.S. courts should de facto become courts of international law but, rather, that they should avoid placing the United States in violation of international law, including international remedial law. when it is possible to do so without contravening a specific direction from Congress.