1 United States v. Duarte-Acero, 296 F.3d 1277 (11th Cir.), cert, denied, 123 S.Ct. 573 (2002) [hereinafter Duarte II]. For Duarte I, see infra note 11 and accompanying text.

2 Duarte II, supra note 1, at 1278–79.

3 See United States v. Benitez, 741 F.2d 1312 (11th Cir. 1984).

4 Duarte II, supra note 1, at 1279.

5 Id.

6 Id.

7 United States v. Duarte-Acero, 132F.Supp.2d 1036, 1037 (S.D. Fla. 2001) [hereinafter Duarte II (district court) ]. The court’s statement that Duarte was being “excluded” from Ecuador presumably meant that Ecuador treated him something like an “excludable alien” under U.S. immigration law. Prior to 1996, that term referred to an alien ineligible for admission into the United States. The current statute refers to “inadmissible” aliens. See Rosales-Garcia v. Holland, 322 F.3d 386, 391 n.1 (6th Cir. 2003).

8 Duarte II (district court), supra note 7, at 1037.

9 International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 UNTS 171 [hereinafter ICCPR]. Article 14(7) provides: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

10 United States v. Benitez, 28 F.Supp.2d 1361 (S.D. Fla. 1998) [hereinafter Duarte I (district court)].

11 United States v. Duarte-Acero, 208 F.3d 1282 (11th Cir. 2000) [hereinafter Duarte I].

12 Id. at 1286–87.

13 The Human Rights Committee, an expert body created by the ICCPR, is responsible for monitoring its implementation. See ICCPR, supra note 9, Arts. 28–45.

14 Duarte I, supra note 11, at 1287–88 (quoting Maria v. McElroy, 68 F.Supp.2d 206, 232 (E.D.N.Y. 1999)).

15 Duarte II (district court), supra note 7.

16 Vienna Convention on Consular Relations, Apr. 24, 1963, Art. 36, 596 UNTS 261 (“Communication and Contact with Nationals of the Sending State”).

17 Duarte II (district court), supra note 7, at 1038.

18 Id. at 1040.

19 The appeal also raised federal statutory issues, Duarte II, supra note 1, at 1283–84, and presented a defense based on the Vienna Convention on Consular Relations, id. at 1281–82. This comment focuses on his ICCPR defenses.

20 See supra note 1.

21 ICCPR, supra note 9, Art. 2(1) (emphasis added).

22 Duarte II, supra note 1, at 1283.

23 138 Cong. Rec. S4783–84 (daily ed. Apr. 2, 1992); see also Multilateral Treaties Deposited With Thesecretary-General: Status as at 31 Dec. 2001, at 192, UN Doc. ST/LEG/SER.E/20 (2002)Google Scholar (reprinting text of U.S. instrument of ratification deposited with the United Nations) [hereinafter Multilateral Treaties].

24 Duarte II, supra note 1, at 1283 (citations omitted).

25 See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992) (holding that forcible abduction of Mexican doctor from Mexico to United States did not violate U.S. extradition treaty with Mexico); United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995) (affirming conviction of Honduran national who was tried in federal court on federal criminal charges after being abducted from his home in Honduras by U.S. government agents).

26 Lopez Burgos v. Uruguay, Communication No. R.12/52 (June 6, 1979), UN Doc. Supp. No. 40 (A/36/40), at 176 (1981). The cases of the Human Rights Committee are available online at <http://www1.umn.edu/humanrts/undocs/undocs.htm>.

27 Celiberti v. Uruguay, Communication No. R. 13/56 (July 17, 1979), UN Doc. Supp. No. 40 (A/36/40), at 185 (1981).

28 See Lopez Burgos, para. 13 (holding that Uruguay violated “article 9(1) because the act of abduction into Uruguayan territory constituted an arbitrary arrest and detention”); Celiberti, para. 11 (same).ICCPR Article 9(1) provides, in part: “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.”

29 Celiberti, para. 10.3; see Lopez Burgos, para. 12.3.

30 Duarte I, supra note 11, at 1288 (quoting Maria v. McElroy, 68 F.Supp.2d 206, 232 (E.D.N.Y. 1999)).

31 ICCPR, supra note 9, Art. 2(1) (emphasis added).

32 The Vienna Convention on the Law of Treaties stipulates that treaty provisions are to be construed “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.” Vienna Convention on the Law of Treaties, May 23, 1969, Art. 31(1), 1155 UNTS 331. Although the United States is not a party to the Convention, the U.S. Department of State has often acknowledged that many of the Convention’s provisions reflect customary international law. Moreover, several courts of appeals have cited the Convention as an authoritative source for rules of treaty interpretation. See generally Frankowska, Maria, The Vienna Convention on the Law of Treaties Before United States Courts, 28 Va.J. Int’l L. 281 (1988)Google Scholar.

33 Buergenthal, Thomas, To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bru. of Rights: The Covenant on Civil and Political Rights 72, 74 (Henkin, Louis ed., 1981)Google Scholar.

34 Id.

35 Accord, id. at 73–77.

36 Buergenthal suggested that the phrase “subject to its jurisdiction” in Article 2(1) means that a state is liable for the extraterritorial acts of its agents who exercise “actual authority and responsibility.” Id. at 76–77. Under this interpretation, the United States would be liable for the actions of the DEA agents who seized Duarte if they exercised “actual authority” over Duarte in Ecuador.

37 Duarte I, supra note 11, at 1284.

38 See U.S. Const. Art. VI, cl. 2 (“all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”).

39 See Maria v. McElroy, 68 F. Supp.2d 206, 231–32 (E.D.N.Y. 1999) (“Although the ICCPR is not self-executing, it is an international obligation of the United States and constitutes a law of the land.”); Duarte I (district court), supra note 10, at 1363 (stating that ICCPR “is the supreme law of the land”); State v. Carpenter, 69 S.W.3d 568, 578 (Tenn. 2001) (stating that ICCPR “is the supreme law of the land”).

40 See Sloss, David, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129, 152–71 (1999)Google Scholar (providing detailed analysis of Senate record associated with ratification of human rights treaties) [hereinafter, Sloss, Domestication].

41 A contrary interpretation—that the NSE declaration deprives the ICCPR of its constitutional status as supreme law of the land—would raise potential constitutional difficulties. In a recent article, I provided a detailed defense of the thesis that the treaty makers (that is, the president and the Senate together, acting pursuant to the Article II treaty power) do not have the constitutional power to deprive a treaty of its status as supreme federal law by expressing their intent to do so. See Sloss, David, Non-self-executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1 (2002)Google Scholar. In brief, the argument can be summarized as follows. Nineteenth-century Supreme Court decisions related to the doctrine of non-self-executing treaties support two propositions. First, there are constitutional limits on the treaty makers’ power to create domestic law by means of treaties. See Whitney v. Robertson, 124 U.S. 190 (1888). Second, there are some treaty provisions that are not judicially enforceable even though they have the status of supreme federal law under the Supremacy Clause. See, e.g., Edye v. Robertson, 112 U.S. 580 (1884) (“Head Money Cases”); Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829). The authors of the Restatement (Second) of the Foreign Relations Law of the United States (1965) invoked these nineteenth-century decisions in support of what was, in fact, a very different theory of non-self-execution: the theory that a treaty has the status of supreme federal law if and only if the treaty makers intended it to have that status (see §141). My article defends the original doctrine associated with those nineteenth-century Supreme Court decisions, but I argue that the Restatement doctrine should be abandoned: it is at odds with the text and structure of the Constitution, has no basis in Supreme Court precedent, and subverts both rule of law and separation of powers values without advancing any legitimate policy goal.

42 Senate Comm. On Foreign Relations, International Covenant on Civil and Political Rights: Report, S. Exec. Rep. No. 102–23, at 19 (1992).

43 Duarte II (district court), supra note 7, at 1040 n.8.

44 Id.

45 See Sloss, Domestication, supra note 40 (providing detailed defense of thesis that NSE declarations attached to human rights treaties preclude reliance on treaties to establish private cause of action, but do not preclude defensive application of treaties).

46 Duarte II, supra note 1, at 1283.

47 All three versions assume that the ICCPR is the law of the land under the Supremacy Clause.

48 See, e.g, Sei Fujii v. State, 242 P.2d 617, 619–22 (Cal. 1952) (holding that Articles 55 and 56 of UN Charter, which obligate member states to “take joint and separate action” to promote human rights, are not judicially enforceable since they do not create individual rights).

49 U.S. Const. Art. II, §2, cl. 2.

50 See Vienna Convention on the Law of Treaties, supra note 32, Art. 19. The United States adopted several reservations when it ratified the ICCPR. See Multilateral Treaties, supra note 23, at 192. None of the U.S. reservations, however, are relevant to Duarte’s ICCPR defense.

51 See, e.g., Senate Comm. on Foreign Relations, Report on International Convention on the Elimination of all Forms of Racial Discrimination, S. Exec. Rep. No. 103–29, at 26 (1994) (“Declaring the Convention to be non-self-executing in no way lessens the obligation of the United States to comply with its provisions as a matter of international law.”).

52 The treaty makers’ power to create individual rights under domestic law is subject to constitutional limitations. See Restatement (Third) of the Foreign Relations Law of the United States §115 (3) (1987). If the treaty makers undertake an international obligation that conflicts with the Constitution, then there would be a discrepancy between the “international treaty” and the “domestic treaty.” In that case, the discrepancy between the domestic and international scope of the treaty arises from a constitutional limitation on the treaty power. By contrast, in claiming that the treaty makers have the power to make a treaty that has different meanings domestically and internationally, one presupposes that Article II confers on the treaty makers an affirmative power to create domestic law that is different from the international law created by the treaty. That interpretation of Article II requires, at a minimum, justification or explanation. See John, Norton Moore, Treaty Interpretation, The Constitution and the Rule of Law 28–30 (2001)Google Scholar (contending that treaty makers lack constitutional power to make a treaty with a domestic meaning that differs from its international meaning).

53 The Eleventh Circuit’s statement that “the ICCPR is not binding on federal courts,” Duarte II, supra note 1, at 1283, is consistent with this interpretation of its non-self-execution holding.

54 This version of the Eleventh Circuit’s non-self-execution holding is similar to a variant of the political question doctrine endorsed occasionally by the executive branch, which David Bederman has described as follows: ‘[A]ny case implicating a treaty right is, upon the election of the executive branch, capable of being characterized as a political question and thus rendered nonjusticiable.’ Bederman, David J., Deference or Deception: Treaty Rights as Political Questions, 70 U. Colo. L. Rev. 1439, 1483 (1999)Google Scholar (describing the argument advanced by the United States in an amicus brief submitted to the Fourth Circuit in Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998)).

55 Of course, the Eleventh Circuit never reached the question whether Duarte’s ICCPR rights were violated. Indeed, what is most disturbing about the court’s opinion is that the court apparently believed that the question whether those rights were violated was of no consequence.