The Supreme Court takes treaty interpretation seriously: Abbott v. Abbott

by Duncan Hollis

The U.S. Supreme Court handed down its first-ever international family law opinion today in Abbott v. Abbott.  You can access the decision here.  In short, a 6-3 majority (authored by Justice Kennedy) found that the Hague Convention on the Civil Aspects of Child Abduction treats ne exeat rights (that is, rights to consent before the other parent takes the child to another country) as “rights of custody” rather than “rights of access.”  That interpretation has significant consequences as violations of custodial rights trigger a right of return under the treaty, whereas violations of access rights do not.  I’ve only had a chance to read the opinion quickly, so let me offer some initial reactions, and reserve the right to come back later with a more detailed analysis.

The Court uniformly accepts the use of foreign law to interpret treaties
First, as regular readers know, there’s a lot of controversy surrounding the use of foreign law by some members of the Court in recent years.  Indeed, Chief Justice Roberts, Justice Alito and Justice Sotomayor were all called on in their confirmation hearings to denounce the use of foreign and international law in interpreting the U.S. Constitution.  I’d expect Elena Kagan to get similar questions when her nomination comes before the Senate this summer.  But, in Abbott the Court ignores this controversy, and thereby suggests its limited only to the use of foreign law in interpreting the Constitution.  Indeed, every member of the Court in this case–in both the majority and the dissent–end up citing and relying on foreign law as a significant part of their analysis of whether the ne exeat right is a right of custody or not.  The majority heavily relies on the fact that most foreign courts to consider the issue have found ne exeat rights are rights of custody to support reaching the same conclusion. Stevens’ dissent, in contrast, contests the uniformity and strength of those views, while emphasizing other foreign court decisions taking the opposite position.  Thus, whether it’s Justices Scalia, Sotomayor, or Stevens, the Court seems clearly willing to accept and employ foreign law decisions when it comes to interpreting U.S. treaties and the statutes that implement them.  Indeed, as the dissent notes, the Court was willing to do this in Abbott even if it meant overruling almost all the U.S. Court of Appeals’ decisions that had found ne exeat rights were not rights of custody. 

A victory for Justice Sotomayor
Second, the case represents a victory for Justice Sotomayor, who, as I’ve noted before, dissented in the leading Court of Appeals decision on this topic, Croll v. Croll.  Justice Kennedy’s opinion covers much the same ground as her earlier dissent.  Indeed, although I haven’t re-read her dissent closely, it’s my sense that the Abbott Majority adopts both her method of analysis and her specific findings on this question nearly in toto, whether in looking at the treaty’s text, its object and purpose, the negotiating history, and other foreign law decisions.

This was a treaty interpretation case, not a custody case. 
Third, although this was the first international family law case to come before the Court, the opinion ends up being more about treaty interpretation than the custodial fight that generated the case itself.  Indeed, the Majority ends its opinion by noting that even if the treaty provides a right of return when custodial rights are violated (including the ne exeat right at issue here), the Hague Convention also provides exceptions to the obligation to return a child if the child might (a) face a grave risk of harm or an otherwise intolerable situation, or (b) have reached an age and sufficient maturity to express a preference on being returned.  As a result, even as the Court resolved the ne exeat treaty interpretation question, it left open whether or not the child at issue in this case actually had to be returned to Chile.  And given that the child in question is around 15 now, I suspect that continued litigation on his return may soon become moot since the treaty’s provisions only apply to children under the age of 16.  Thus, the Abbott case is likely to have any lasting influence in terms of its approach to treaty interpretation rather than any resolution of the difficult custody fight that brought the case to the court in the first place. Which brings us to my final point.

The Court takes treaty interpretation seriously
Both the majority and the dissent expend a lot of time and resources to figure out what was, by all accounts, a close question of treaty interpretation.  Although in the past, many have questioned if the Supreme Court’s interpretative method aligns with the international law rules on treaty interpretation, I don’t think this case suggests a deep departure from the international law rules.  Indeed, even though it does not reference them, the majority’s method largely tracks articles 31 and 32 of the Vienna Convention on the Law of Treaties, looking at the treaty’s text first, then the context (although I don’t think they ever call it that), the treaty’s object and purpose, state practice, the negotiating history, and the views of publicists on the question.  And, in those few areas where the Court takes into account factors left out of the VCLT (i.e., the Majority’s deference to the State Department’s view that a ne exeat right is a right of custody) the Majority does so with relatively little elaboration.  At the same time, the Court’s emphasis on the Hague Convention’s object and purpose may actually prove influential going forward.  The Court ended up its treaty analysis by suggesting that its interpretation made sense since, to hold otherwise, would have meant legitimizing many of the removals that the Court thought the Convention had been drafted to prevent.  That sort of approach runs counter to a purely textual interpretation and suggests, for better or worse, that the Court may demonstrate a more dynamic approach to treaty interpretation issues in the future.

8 Responses

  1. Duncan,

    As one who has followed the debate on the use of foreign and international material to interpret the Constitution, I never thought it was controversial to consider how other signatories to a treaty interpreted that treaty.  Justice Scalia endorsed that view years ago in Olympic Airways and now the Court is following suit.  As I have written elsewhere, “Whether interpreting a constitution, treaty or statute, Justice Scalia seeks to understand original meaning. Accordingly, in interpreting a modern treaty, Justice Scalia will not hesitate to examine contemporary judicial decisions in Britain and Australia because, in his view, ‘[f]oreign constructions are evidence of the original shared understanding of the contracting parties.’ If one focuses on discernment of original meaning, Justice Scalia’s antipathy for contemporary comparativism in one context and affinity for it in another is perfectly logical.”

    Roger Alford

  2. Roger — I agree that Justice Scalia has been out in front on both issues;  anti-foreign law for constitutional interpretation and pro-foreign law for treaty interpretation.  I think, however, we’ve disagreed in the past about why he does so. 

    Still, my point here was only to highlight the fact that all of the justices in this case accepted the relevance and utility of foreign law to treaty interpretation.  I don’t doubt that this result will not surprise to many internationalists.  But I did think it was worth noting in any case, because it effectively cabins off the extent of the debate about the use of foreign and domestic law in the Court’s jurisprudence.

  3. Duncan,

    Thanks for sharing these early thoughts on Abbott v. Abbott.  I agree that this is an important case on treaty interpretation methods, but I’m less sure that the majority follows the Vienna Convention framework.  In particular, the Court discusses object and purposes at the end of its after opinion after reviewing drafting history, foreign case law, and other secondary sources.  Shouldn’t that analysis come earlier, if the majority were strictly following the VCLT?  That said, I agree that the Court is closer to the VCLT framework than in many previous treaty interpretation decisions.  Thoughts?

    Larry Helfer

  4. Larry, I agree with you entirely, object and purpose should come before the negotiating history (and probably shouldn’t care so much about the Executive view’s at all).  Still, my sense was that, even if out of order, it more closely tracked a VCLT-style analysis than earlier cases we’ve seen.

  5. Why should a court in the United States follow — or even consider — the Vienna Convention? It is not the law of the United States.

  6. Although I support the majority’s ultimate holding, one aspect of the opinion that I find disconcerting is the exchange between the majority and dissent regarding deference to the State Department’s views.  The majority includes a perfunctory section citing Sumitomo Shoji for the principle that the State Department’s views are entitled to “great weight” without clarifying this standard or explaining how much work it is doing here.  I have always thought that deference to Executive Branch treaty interpretation should turn on demonstrated expertise (akin to the Skidmore standard in administrative law), addressing the types of concerns that Justice Stevens emphasizes in dissent (e.g., the Executive’s familiarity with a treaty’s drafting history, states’ postratification conduct, and whether a particular interpretation will further the treaty’s object and purpose in practice).  In criticizing the majority, Justice Stevens goes out of his way to characterize the majority as taking a less nuanced approach to the deference question, potentially setting up Abbott to stand for the very blunt, across-the-board deference Justice Stevens disfavors.  I am not certain the majority opinion has to be read this way, and I fear Justice Stevens may have done more harm than good in the long run by insisting on this characterization here.      

  7. Skeptic,

    I think the best answer is that the universal application of the VCLT is such that we can presume the drafters expected courts around the world to use that methodology when they interpret its provisions. 

    Another possible answer is that the United States Executive Branch has recognized it as reflecting customary international law and the State Department routinely uses it when they file briefs before international tribunals.  

    Roger Alford 

  8. As regards object and purpose, perhaps the order in which interpretative elements are considered is less significant than how they are used. The Vienna/customary rules use object and purpose as an element in initial identification of the ordinary meaning of a term of phrase. This is actually precisely how the Opinion uses object and purpose in the fourth para of section A:
    ‘The phrase “place of residence” encompasses the child’s country of residence, especially in light of the Convention’s explicit purpose to prevent wrongful removal across international borders.’
    That object and purpose come up again at a later phase is also in line with the Vienna/customary rules. In art. 31 VCLT all relevant elements taken together constitute the general rule. Once identified, the elements have to be evaluated. It is, therefore, quite appropriate after considering practice to approach a synthesis by looking again at purpose and context. The process of reiteration and assessment is more a circular one in effect, even if necessarily sequential in form.

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