Abduction of Nicolas Maduro is abuse of international law

U Sforces entered Venezuela territory on January 3 to arrest Nicolas Maduro and his wife Cilia Flores, both of whom were later transported to the United States to face trial at U S domestic court, Southern District of New York for trafficking illicit drug. Ironically, other charges like torture, enforced disappearances, and persecution of political opponents were not included. The modus operandi of arrest is a blatant violation of territorial sovereignty, a well-treasured principle in the modern international law. The concept of sovereignty dates to the Treaty of Westphalia in 1648. The conceptional foundation of modern sovereignty theory was laid by French jurist and philosopher Jean Bodin (1530–1596) in his pivotal work, "Six Books of the Commonwealth" (1576), which is diverse from medieval concept of Sovereignty. He underlined the idea of absolute and indivisible sovereignty as a cardinal element of a state.

The Congress of Vienna (1814-1815), which is regarded as major diplomatic conference of Europe after Napoléon’s defeat to restore monarchy, articulated the idea of internal sovereignty by expressly probits the intervention in another sovereign State, thereby pledging immunity to one State before another’s authority.

U S action against Maduro violates UN Chater:

The abduction attracted sharp criticism from all quarters, including the way they were arrested, the call for an emergency UN General Assembly meeting. International law experts slammed Donald Trump administration’s decision saying it can’t be justified merely as an “law enforcement against narcoterrorism” as it was an intentional, deliberate and unprovoked “act of aggression” violating the territorial sovereignty of another country and it is idiosyncratic violation of basic principles of UN Chater, Article 2(4) “the threat or use of force against the territorial integrity or political independence of any state”.

A concern that must be debated:

In 1990, Manuel Noriega of Panama, was forcibly removed from power during a US military invasion and brought to the United States to face drug trafficking charges in Florida.

Immunity under International law: Trump’s decision to arrest the Venezuela head of state drew sharp criticism by international law experts as he enjoys immunity from arrest and it is a clear case violation of customary international law and additionally violation of Article 1 of “Responsibility of States for Internationally Wrongful Acts 2001 General Assembly resolution 56/83 of 12 December 2001,”

Trump decision contradicts court verdict:

An example of Trump Administration’s disrespect to its own court verdict was the dismissal of a lawsuit filed by the fiancé of slain journalist Jamal Khashoggi against Saudi Arabian Crown Prince Mohammed bin Salman by United States District Judge John Bate in December 2022. The Foreign Sovereign Immunities Act (FSIA) governs immunity for foreign states, while immunity of individual foreign officials is governed by federal common law. But when it comes to the Maduro regime, which has not been recognized for years by USA, whether non-recognition disentitled him seeking defence of immunity.

Ratione personae vs Ratione materiae:

Ratione personae means person-based immunity of head of state, which prevents legal scrutiny and ensures international stability. Raione materiae denotes ‘Functional immunity’, which ensures immunity for official acts.

In Hussein v. Maait(19.02.2025), the U.S. Court of Appeals for the Second Circuit held that a suit against an individual foreign official acting in their official capacity must be treated as a suit against the foreign state itself if the state is the "real party in interest". The court ruled that the Foreign Sovereign Immunities Act (FSIA) governed the case and dismissed the suit under Rule 12(b)(1) because Hussein had failed to establish any applicable exception to FSIA immunity, such as the commercial activity exception.

It effectively clarified the 2010 Supreme Court ruling in Samantar v. Yousuf. While Samantar generally held that individual officials are not "foreign states" under the FSIA, Hussein v. Maait establishes that they can still invoke FSIA protections if the litigation is effectively a suit against the sovereign state.

Dr Ahmed Diaa Eldin Ali Hussein v. Dr. Mohamed Ahmed Maait is another significant milestone in US sovereign immunity jurisprudence. It emphasises the primacy of the state as the real party in interest in official-capacity suits and promoting consistency in the federal treatment of foreign sovereigns. An important development in the application of the Foreign Sovereign Immunities Act (FSIA). This case, decided by the United States Court of Appeals for the Second Circuit on February 19, 2025, centres on two pivotal issues: first, whether a suit against a foreign government official—when the underlying claim is directed toward a sovereign act—must be treated as an action against the foreign state itself; and second, the discretionary determination by the district court to extend the deadline for removal under Section 1441(d) of the U.S. Code.

Real-party-in-interest:This concept requires that when a lawsuit is essentially aimed at obtaining relief from a state’s treasury (and not from an individual’s personal assets), the foreign state must be treated as the primary defendant. In this case, even though Maait was named, the relief being sought was payment from Egypt’s public funds.

Foreign Sovereign Immunities Act (FSIA):FSIA establishes the basis that safeguards foreign states from being sued in US courts under their laws, except under scarcely defined exclusions. Here, it is applied by representing that since Egypt is the true defendant, immunity under FSIA applies.

The Extended Removal Deadline:The act of removing a case from state to federal court generally must happen within 30 days. However, Section 1441(d) allows courts to extend this deadline for “cause” shown. The court’s abuse of discretion review confirmed that the factors justifying an extension—logistical challenges, minimal prejudice, and the case’s nature—were sufficiently present.

The Ker-Frisbie Doctrine derives its name from two leading Supreme Court cases Ker v. Illinois (1886) and Frisbie v. Collins (1952). Under the Doctrine, which remains in effect, US courts have jurisdiction over criminal defendants irrespective of the manner in which the defendant has been brought before them. The Doctrine holds that once a defendant is physically present before the court, due process is satisfied so long as trial procedures comply with constitutional safeguards.

Meanwhile, the US courts are likely to hold that the United States possesses jurisdiction over Maduro's case to conduct trial as per procedure established by US laws.

(The writer is visiting faculty PG College of Law, OU and Doctoral Scholar, DSNLU Visakhapatnam)