A New Supreme Court Case on Treaty Interpretation

Most Court-watchers spent the day examining the Ricci case (a.k.a. the New Haven Firefighters’ case), given its racial dimensions and the fact that Judge Sotomayor participated in the Second Circuit opinion that the Court overturned.  I, however, was more interested to see that the Court granted certiorari today in another Sotomayor-related case, Abbott v. Abbott.  This is the Fifth Circuit case I mentioned last week, addressing the same treaty interpretation question that motivated Judge Sotomayor to issue a dissenting opinion in the 2000 Second Circuit decision, Croll v. Croll.  Here’s how the Solicitor General described the question presented by Abbott in its amicus brief recommending cert.:

Whether a ne exeat order, which prohibits either parent from removing a child from the country without the other parent’s consent, confers a “right of custody” within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, thus allowing a parent to seek to have a child who was removed to another country in violation of the ne exeat order returned to his or her country of habitual residence.

The Fifth Circuit in Abbott agreed with the Second Circuit in Croll (as well as with Fourth and Ninth Circuit decisions), reading the Hague Convention to not consider ne exeat orders as conferring custodial rights.  In contrast, Judge Sotomayor, the Eleventh Circuit, and the Executive Branch have all offered a competing reading of the treaty’s obligations, finding that ne exeat orders do convey custodial rights. 

Abbott is thus a case for U.S. international lawyers to follow in the coming term.  In addition to resolving the circuit split, it will be one of the few (perhaps the first?) international family law cases to reach the Court.  More broadly, given the centrality of treaty interpretation to the case itself, I would expect the opinion to opine on what method(s) of treaty interpretation are proper and to what extent the Executive’s interpretation of the treaty deserves deference from the Court.  For my part, I’m also hoping that somewhere in the Court’s opinion, the justices will be kind enough to make clear the centrality of the Vienna Convention on the Law of Treaties’ interpretative rules (Articles 31 and 32), just as Judge Sotomayor did in her own dissent back in 2000.