Abbott v. Abbott: A New Take on Treaty Interpretation by the Supreme Court
The Supreme Courtâs recent decision in Abbott v. Abbott resolved an important issue about the scope of the Hague Convention on Civil Aspects of International Child Abduction (Child Abduction Convention). A six-vote majority ruled in favor of an expansive reading of the Convention that increases the power of an objecting parent in cases where a child is brought to the United States against that parentâs wishes. Even more significantly, the majority indicated a disposition toward interpreting multilateral private law treaties in a manner that emphasizes the systemic interests of treaty partners, as expressed through foreign court decisions, scholarly work organized by international bodies, and the views of the U.S. Department of State.
The Child Abduction Convention provides relief to a parent whose child has been moved across an international border in violation of that parentâs rights in the country from which the child was removed. The extent of the relief depends on the nature of the parentâs rights. If the transborder abduction violated the parentâs ârights of custody,â the parent may ask a court to compel return of the child to the jurisdiction from which he or she was taken. If instead the parent had only a right of access to the child, then the parent can ask a court to take steps to enable the âeffective exerciseâ of access rights, but not the return of the child to the place of abduction.
Child abduction cases typically involve a family breakup in which the local courts in the place where the marriage falls apart allocate parental rights in a way that one of the parents finds unsatisfactory. The disgruntled parent then moves the child to another jurisdiction, usually but not inevitably that parentâs home, to get a second, presumably friendlier judicial determination of parental rights. The Child Abduction Convention limits the power of one parent to pursue a second bite at the judicial apple. How much it limits that power, however, depends on how broadly the category of ârights of custodyâ is defined.
The United States implemented the Child Abduction Convention in 1988 through an act of Congress, the International Child Abduction Remedies Act. The Act permits a person seeking to enforce rights under the Convention to sue in either federal or state court, and it directs that court to âdecide the case in accordance with the Convention.â This legislation eliminates the issue that has bedeviled the Court for years, namely determining whether a treaty is âself-executingâ and thereby of its own force supplies a rule of decision for cases.
a. The Decision
In Abbott, six justices determined that a parentâs right to veto a change in a childâs country of residence amounts to a âright of custodyâ protected by the Child Abduction Convention. Justice Kennedyâs opinion for the majority based this decision on a close reading of the Convention, but also emphasized the support of the State Department, the preponderance of foreign judicial decisions reaching the same result, the work of scholars organized by the Hague Conference on Private International Law in favor of a broad reading of the Convention, and the overall object and purpose of the Convention. Justice Stevensâ dissent, in which Justices Thomas and Breyer joined, argued that a more precise and careful reading of the Convention limited custodial rights to those involving the day-to-day life of the child. The dissent disparaged the other sources on which the majority relied.
The father in Abbott possessed a right under Chilean law to bar his wife from taking their child to another country. This power is called a ne exeat right. Otherwise the father enjoyed only visitation, or access rights in Chile. The mother took the child to Texas without seeking his permission, filed for divorce there, and sought to reduce her husbandâs rights regarding their son. The father sued in federal court to have the child returned to Chile (but not to obtain custody himself).
No U.S. case considering this question had reached the courts of appeals until 2000, but a British court had addressed the issue as early as 1989. Subsequently, courts in Australia, Austria, France, Ireland, Israel, New Zealand, South Africa, and Switzerland all had endorsed the proposition that the Convention regarded ne exeat rights as custodial rights. Some of those decisions were distinguishable because the objecting parent had additional rights beside the power to veto departure to another country, and some Canadian and French judicial decisions were muddy on this point. Yet, among foreign courts, reasonably strong agreement seemed to exist that the Convention did more than protect the parent with primary custody. Moreover, the Permanent Bureau of the Hague Conference on Private International Law, the international body that organized the negotiation of the Convention, had sponsored several conferences of government-selected experts, styled Special Commissions, that argued in favor of treating a ne exeat right as a type of custody right. A brief submitted by the State Department and the Solicitor General also supported this interpretation.
For the majority, the evidence of an emerging international consensus in favor of extending the scope of the Convention was persuasive. Justice Kennedy conceded that at the time of the Conventionâs negotiation, many states did not have much experience with shared custody and thus assumed that, in cases of divorce, only one parent would have custody and thus enjoy strong rights under the Convention. But, as societies developed increasingly sophisticated means of allowing both parents to share in decision-making regarding their children, it made sense to recognize that each enjoyed the Conventionâs protection. The logical conclusion was that if a parent had any significant power over the childâs location, including a veto right with regard to changing countries, that parent enjoyed a âright of custody.â
One reason why the lower courts divided on this issue, and why three Justices dissented from the majority opinion, is that the text of the Convention is not completely clear. It states that ârights of custodyâ include âthe right to determine the childâs place of residence.â Does the âright to determineâ mean only the power to pick a particular place, or does it extend to a power to veto? Does âplace of residenceâ refer to a particular location, or can it take on the looser meaning of the country of residence, even if a parent cannot choose where in that country a child resides? The majority maintained that the power to limit is an element of the power to determine, and that a country is a âplace.â Justice Stevens argued for a narrower construction that would limit the âright to determineâ to the power to select the childâs exact residence.
Stevensâ dissent also relied on a structural argument. The drafters of the Convention drew a distinction between rights of custody, which enjoy strong protection, and rights of access, which do not. Yet many jurisdictions, apparently including Chile, automatically back up a visitation right with a ne exeat right. The majorityâs decision in effect limits the âaccessâ component of the Convention to the rare instances where a local court reserves to itself alone a veto over moving the child out of the country.
b. Broader Implications
One way of viewing the difference between the Abbott majority and the dissent is to consider the relative merits of international cooperation and of national sovereignty. The majority observed that the Convention was intended to suppress forum-shopping by a disgruntled parent. Giving a broad meaning to the concept of custody means increasing the number of instances in which the Convention would give an effective remedy to a parent whose rights in the country of origin, however categorized, had been violated. Correspondingly, giving a narrow reading to the âcustodyâ concept in the Convention would mean that national courts would have a freer rein to decide for themselves what arrangements meet the best interest of a child, without having to defer to any earlier rulings of a foreign court. Kennedyâs majority opinion emphasized the value of international cooperation; Stevensâs dissent would have buttressed national sovereignty. An additional consideration, however, is that a narrow reading of âcustodyâ also might encourage other states to shift to this position. If other states made it harder for victims of abduction to obtain effective relief, U.S. parents would find it harder to retrieve children abducted elsewhere.
When the Senate and Congress consent to U.S. accession to a treaty, what should they expect the courts to do down the road? This question, present behind every decision to approve a treaty, takes on added complexity when the treaty has many parties and seeks to promote a broad common legal regime. For the project to succeed, it may be necessary to adjust the details of the treaty obligations to reflect changes in society, such as increased use of joint custody. However, greater flexibility means allowing the international regime to operate something like a domestic administrative agency, with at least limited lawmaking powers vested in its various parts. It also means giving the Executive branch, through which the United States interacts with other countries, a greater role in shaping the evolving meaning of the international obligation.
The Abbott majority seemed comfortable with the delegated lawmaking implied by its approach to treaty interpretation. To be sure, the Court first determined that the interpretation it embraced conformed to the text of the treaty. But rather than arguing that this interpretation was the best reading of the treaty text or one strongly supported by the negotiating record, it moved on to what the participants currently understood the Convention to mean. As a result, the Court favored the evolving consensus of treaty parties over the original understanding of the treaty makers.
Especially noteworthy is the deference that the majority gave to the views of the State Department. In its brief, the government conceded that the State Department had never formalized its position that a ne exeat right qualified as a right of custody until this case arose. âBut,â the Solicitor General reported, âthe State Department has informed this Office that the position set forth in [this case] has long been its view.â For the majority, this sufficed to trigger the Courtâs obligation to give âgreat weightâ to the U.S. interpretation. The dissent, in contrast, lamented that earlier decisions had not discussed âprecisely whyâ the Court should give deference to the views of the State Department, and argued that none was due here. Rather than describing its practice in detail, Justice Stevens complained, âthe Department offers us little more than its own reading of the treatyâs text.â At least for multilateral private law treaties, then, Abbott indicates that the Court will accept dynamic interpretation worked out by the various treaty parties and endorsed by the Executive branch.
Paul B. Stephan, an ASIL member, is co-chair of the ASIL International Law in Domestic Courts Interest Group, and John C. Jeffries, Jr. Distinguished Professor of Law and Elizabeth D. and Richard A. Merrill Professor of Law, University of Virginia.
The purpose of the International Law in Domestic Courts Interest Group is to promote informal, face-to-face dialogue among scholars who are interested in issues pertaining to the application of international law and foreign relations law in domestic courts. The Group convenes a meeting once a year, generally in the fall or winter, to provide an opportunity for interested scholars to present works-in-progress and exchange ideas in an informal atmosphere.
 Abbott v. Abbott, No. 08-645 (U.S. May 17, 2010), available at http://www.supremecourt.gov/opinions/09pdf/08-645.pdf.
 Hague Convention on the Civil Aspects of International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11.
 International Child Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat. 437, codified at 42 U.S.C. Â§Â§ 11601 et seq.
 Id. Â§ 11603(d).
 Most recently, the Court in Medellin v. Texas, 552 U.S. 491 (2008), ruled that neither the Optional Protocol to the Vienna Convention on Consular Relations nor the United Nations Charter gave either the President or persons covered by a judgment of the International Court of Justice any right to domestic judicial enforcement of that judgment. See Margaret E. McGuinness, Medellin v. Texas: Supreme Court Holds ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ Judgments over State Proceedings, ASIL INSIGHTS, Apr. 17, 2008, http://www.asil.org/insights080418.cfm.
 Brief of the United States as Amicus Curiae Supporting Petitioner at 21 n.13, Abbott v. Abbott, No. 80-645, available at http://www.justice.gov/osg/briefs/2009/3mer/1ami/2008-0645.mer.ami.pdf.
 Abbott, No. 08-645, at 21-22 (Stevens, J., dissenting). Similarly, the majority found support for its position in the Special Commission reports, which supported âan emerging international consensus that ne exeat rights are rights of custody.â Id. at 14 (majority opinion). The dissent dismissed the Special Commissions as âa voluntary post hoc collective body with no treaty-making authority.â Id.at 21 n.13 (Stevens, J., dissenting). On the issue of deference to the Executiveâs interpretation of treaties, Justice Stevens might have cited, but did not, his plurality opinion in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), which gave short shrift to the Executiveâs interpretation of the Geneva Conventions on the laws of war.