St. Mary's Law Journal


Timothy D. Rudy


This Article explores whether U.S. ratification of the International Covenant on Civil and Political Rights (Civil and Political Covenant) provides the American judiciary with reason to jettison the Ker-Frisbie doctrine. If the United States does not forego use of the Ker-Frisbie doctrine the country will violate its international obligations arising from a major human rights treaty. Part II discusses the customary norm of international law which forbids—and the American rule which permits—forcible abductions overseas. It also reviews whether extraterritorial abductions violate customary international law. Part III discusses applicability of the Civil and Political Covenant to the Ker-Frisbie doctrine and details difficulties in litigating Article 9 of the Covenant. Part III concludes with a brief discussion of remedies and why habeas corpus relief is not an attractive method of implementing Article 9. Part IV discusses policy reasons for jettisoning the Ker-Frisbie doctrine, using the Covenant as the basis for doing so. Part V concludes the Covenant should compel the United States to fashion a rule forbidding international abductions of criminal defendants. Extraterritorial abductions of criminal defendants by U.S. agents or private persons has not been an obstacle to prosecution in U.S. courts for more than a century. The Ker-Frisbie rule, however, is not on solid ground because the U.S. government ratified the International Covenant on Civil and Political Rights. Though a prohibition against forcible abductions may have weakened over the years as a customary norm of international law, American courts are bound by treaty law, and Article 9 of the Covenant addresses the problem. To fulfill our international obligations under the Covenant, all branches of the U.S. government should re-examine the desirability of international abductions. In appropriate cases, federal judges need not hesitate to find self-executing language in Article 9 and rule that extraterritorial government kidnapping violates the law.


St. Mary's University School of Law