Looking for Interpretive Consensus in Abbott

by Roger Alford

The transcript for the oral argument in Abbott v. Abbott is out, raising the difficult question of what constitutes a right of custody within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. The treaty grants a parent the right to have a child returned to the child’s country of habitual residence if the child has been removed in violation of that parent’s rights of custody. The case raises the difficult issue of whether the non-custodial parent who has visitation rights has “custody rights” within the meaning of the treaty by virtue of a ne exeat clause prohibiting one parent from removing the child from the country without the other’s consent.

The case arose out of Chile. A British father and American mother had a child in 1995 and together the family moved to Chile in 2002. In 2003 the couple separated and the mother was granted custody and the father visitation rights. In addressing custodial issues, the Chilean court prohibited the child’s removal from Chile by either the father or mother without their mutual consent. The mother fled to Texas and the father filed an action in Texas for return of the child, alleging that his “ne exeat” rights to prevent removal from Chile was a “right of custody” within the meaning of the Convention.

Among the more interesting issues was Scalia’s colloquy regarding comparative interpretation of the treaty provision. In keeping within his views in Olympic Airways, Scalia expressed the view that the Court should interpret the treaty in a manner consistent with the general consensus of all the signatory states, assuming one could divine such a consensus. Here is Scalia’s exchange with Karl Hays, counsel for respondent Jacquelyn Abbott (pp. 43-48):

Justice Scalia: Most courts in countries signatory of the treaty have come out the other way and agree that a ne exeat right is a right of custody, and those courts include U.K., France, Germany, I believe Canada, very few come out the way you—how many come out your way?

Mr. Hays: Actually, Your Honor, the United States and Canada do, and the analysis—

Justice Scalia: Well, wait … You’re writing our opinion for us, are you?

Mr. Hays: … There have only been seven courts of last resort that have heard this issue. There are some 81 countries that belong—

Justice Scalia: Yes, but, still, in all, I mean, they include some biggies, like the House of Lords, right? And … the purpose of a treaty is to have everybody doing the same thing, and … if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in … other countries that are signatories to the treaty.

Mr. Hays: If, in fact, there were a consensus, but … there is not a consensus in this instance….

Justices Breyer and Ginsburg then enter the fray with Justice Scalia and the three start counting countries, whether Canada or Germany or Australia should count on one side of the ledger or the other, depending on whether the language in the case was dicta or whether it was a court of last resort, etc.

Hays then concludes with the comment, “the point that we are making, however, is that, if you have one or two or even three countries that have gone one way and then you have other countries that have gone the other way, that there’s not a clear-cut overwhelming majority of the other jurisdictions that have ruled in favor of establishing ne exeat orders….” To which Scalia responds, “We will have to parse them out, obviously.”

The exchange raises a great question of country-splits in treaty interpretation. Several justices appeared willing to interpret an ambiguous treaty provision consistent with the general consensus of signatory nations. But respondent argues that there is no clear consensus and only a handful of countries out of 81 signatories have even addressed the issue.

So even assuming the Court takes the approach suggested by Justice Scalia in Olympic Airways and looks for signatory consensus, what’s the Court to do when there are few voices from abroad and those voices are not consistent? Is there still a role for comparative interpretive analysis in that context?


2 Responses

  1. Roger,

    Well, as a general matter, I think that Justice Scalia’s approach in looking for a consensus among the states parties is perfectly sensible, both on legal and on policy grounds. Art. 31(3)(b) VCLT specifies that the subsequent practice in the application of the treaty needs to be taken into account in its interpretation, insofar as it establishes the agreement of the parties as to how the treaty is to be interpreted. Such practice is not limited merely to statements of executive officials – the jurisprudence of municipal courts in applying the treaty is more than sufficient.

    If, however, such agreement is lacking, in that there is a lack of consensus among the state parties on how the treaty is to be interpreted, then the position of one municipal court or another becomes merely persuasive authority on account of the quality of the court’s reasoning and expertise etc (especially if that court is a ‘biggie’, per Scalia J). I see no other answer to the question you’ve posed. The tricky bit is of course in counting and qualifying the positions of the various courts.

  2. The explanation in the previous comment seems pretty much to say it all. For subsequent practice to play a key role in any particular interpretation, the general consensus is in terms such as that the practice must be “concordant, common and consistent”, a phrase endorsed by the WTO’s Appellate Body in Japan – Taxes on Alcoholic Beverages (1996). There is some guidance from practice on the use of subsequent practice that does not meet this test, (though the value of that guidance does itself depend on the outcome of assessment of the interpretative role of practice).
    For example, in Minister for Foreign Affairs and Trade v Magno (1992), the Australian High Court found that even if the practices of the United States and the United Kingdom were insufficient to make a conclusive finding on interpretation of the Vienna Convention on Diplomatic Relations, they provided influential examples of how two important democratic countries with experience in the field had interpreted it.
    In apparent contrast, in the case of Hoxha (2005), what is now the Supreme Court in the United Kingdom declined to follow a growing practice where a survey showed that fifteen out of twenty states gave potential refugees a more generous test of assessment for refugee status than the words of the UN Convention indicated.
    However, as always in treaty interpretation, one feature should not be taken in isolation from the application of the principles collectively. Thus in Magno among the elements to be considered were that “dignity” of a diplomatic mission is a rather elastic term and  that the Convention’s established role in diplomatic relations raised other considerations particular to that treaty. In Hoxha the interpretative equation provided very clear indications that the more favourable treatment was not required, including  the express words of the provision read in their context and reinforced by other material on the treaty and its history.
    Perhaps the conclusion to be drawn is one in line with indications in the work of the International Law Commission that the “rules” of treaty interpretation are more in the nature of guiding principles, and that the “general rule” (including the provision on subsequent practice) provides a melting pot into which all relevant ingredients are to be placed (my paraphrase). Thus where practice is not “concordant, common and consistent”, it simply forms part of the pool of possible interpretative indications to be given such value as the particular circumstances suggest.

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