“Treaty Signatory Split” Justifies Granting Certiorari

“Treaty Signatory Split” Justifies Granting Certiorari

That’s the interesting argument raised in this cert. petition in Abbott v. Abbott.

Although certiorari is warranted based solely on the conflict among the federal courts of appeals, certiorari also should be granted because the Fifth Circuit’s holding conflicts with the interpretation overwhelmingly adopted by the foreign courts that have addressed this issue. In construing the terms of a treaty, “the opinions of our sister signatories [are] entitled to considerable weight.” Air France v. Saks, 470 U.S. 392, 404 (1985) (quotation omitted). But the Fifth Circuit effectively ignored th[is] virtual consensus….

Although I am skeptical about constitutional comparativism, I think the argument presented in Abbott deserves serious consideration. Considering the policy justifications for avoiding circuit splits, could one not argue that similar policies are implicated when a circuit court interprets a treaty provision inconsistent with the consensus understanding? Justice Scalia stated as much in his 2004 ASIL lecture:

When federal courts interpret a treaty to which the United States is a party, they should give considerable respect to the interpretation of the same treaty by the courts of other signatories. Otherwise the whole object of the treaty, which is to establish a single, agreed-upon regime governing the actions of all the signatories, will be frustrated. Thus, in a recent case [Olympic Airways v. Hussein] I dissented from a decision of the Court that rejected what seemed to me a perfectly reasonable (though not necessarily inevitable) interpretation of the Warsaw Convention that had been arrived at by the courts of two other signatories. “Foreign constructions,” I wrote, “are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently.”

So perhaps we will begin to see more petitions arguing, and the Supreme Court granting, certiorari based on a concern for “treaty signatory splits.”

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