THE INTERNATIONAL CUSTODY BATTLE: CONFLICT OF LAW BETWEEN THE HAGUE ABDUCTION CONVENTION AND U.S. ASYLUM LAW.

• Author: Su, Nicole

1. INTRODUCTION II. INCORPORATION OF FOREIGN RELATIONS LAW A. The Domestic Side: Constitutional Framework. 436 B. The International Side: Implementing Legislation of the Hague Abduction Convention C. General Conflict of Laws III. INTERNATIONAL PROTECTION OF CHILDREN A. The Purpose of the Hague Abduction Convention on the Civil Aspects of International Child Abduction B. The Purpose of U.S. Asylum Law IV. THE CONFLICT OF INTERNATIONAL AND DOMESTIC LAW A. Fifth Circuit Approach to the "Conflict of Law" 450 B. Foreign Examples of the Resolution of "Conflict of Law" C. Shifting the U.S. Approach in the International "Custody Battle" V. Conclusion I. INTRODUCTION

   In 1809, Chief Justice Marshall extended judicial enforcement of international treaties in the United States when he declared:

   Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the states; and whoever may have this right, it is to be protected. (1) Over time, the Supreme Court has continued to evaluate the degree of enforcement of international agreements in domestic courts. (2) Justice Breyer has noted the increasingly international scope of the Supreme Court since he first joined the court in 1994. (3) Today, foreign laws and international agreements influence the daily lives of individual citizens of the United States, and Justice Breyer estimates that one-fifth of the current Supreme Court docket involves foreign law. (4) Therefore, it is inevitable that conflicts of law between international agreements and domestic law will arise, especially when federal district courts exercise their own discretion. (5) Courts accord additional weight to matters involving the well-being of children and the responsibility and burden of seeking the best interest of the child. (6)

   In the case of international child abduction, close to 100 countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention). (7) The United States is a signatory to the Hague Abduction Convention, which has been codified through the International Child Abduction Remedies Act (ICARA). (8) Concurrently, the United States has its own laws and policies regarding asylum law. Refugees may apply for asylum in the United States when they are seeking protection because of the persecution or fear of persecution they have suffered in their home country. (9) In addition to codifying the Hague Abduction Convention, Congress has also delegated authority to U.S. Citizenship and Immigration Services (USCIS) to review a refugee's claim for asylum. (10)

   In certain cases, a conflict of law may arise between the Hague Abduction Convention and U.S. asylum law when a parent may have one goal (to bring her child back to her home country) while the child may want to pursue another goal (to remain in the United States as a refugee). Although the topic has been broached in the Fifth Circuit, United States courts have not yet resolved this conflict of law.

   A recent Fifth Circuit case touched on the subject of children seeking asylum in the United States while their mother sought their return through a Hague petition. (11) While the District Court for the Western District of Texas suggested that the children's asylum proceedings would be relevant, it did not indicate the extent of that relevance when it decided that the children should be returned to Mexico under the Hague Abduction Convention. (12) The Fifth Circuit overruled the District Court and found the court should have taken the children's pending application for asylum into account. (13) However, the Fifth Circuit failed to confront the larger issue of the conflict of law: whether the court should uphold U.S. domestic law over an international treaty. (14) This comment argues that the Fifth Circuit's interpretation of the "conflict of law" between U.S. asylum law and the Hague Convention is incorrect, and that courts should consider the intent of the laws to determine how the laws can work in tandem, rather than in conflict, with one another.

   Part II of this comment will detail foreign relations law in the United States. Part III of this comment will outline the purposes of the Hague Abduction Convention and U.S. asylum law. Part IV will tackle the conflict of international and domestic law. Part V will outline the conflict of law, examine foreign resolutions of the conflict of law, and propose a new approach to the conflict of law.

2. INCORPORATION OF FOREIGN RELATIONS LAW

   1. The Domestic Side: Constitutional Framework

      The separation of powers within the federal government is a fundamental tenet that has shaped the development of domestic and international law in the United States. (15) Both the Supremacy Clause and Treaty Clause in the Constitution provide the foundation for the incorporation of treaties, executive agreements, and foreign law in the United States. (16)

      The Treaty Clause authorizes the President to make treaties "by and with the Advice and Consent of the Senate," (17) while the Supremacy Clause states "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." (18) Once Congress ratifies a treaty, federal courts have the authority to adjudicate cases arising under the treaty. (19) However, the Treaty Power is still subject to limits in order to safeguard constitutional rights. (20) First, the federal government may not ratify treaties that would infringe on a constitutionally protected right. (21) Second, because the House of Representatives does not take part in treaty ratification, the Senate and the executive branch may not use treaty ratification as a means to create federal law and bypass the House of Representatives. (22) Once the treaty is ratified and binds the United States, it is the judiciary's responsibility to uphold the treaty (23) and provide judicial review. (24) The Supreme Court provides the most important safeguard because it is responsible for applying the law and the Court must address international matters where there is a conflict of law. (25)

      1. Forms of International Agreements

         Not all international agreements are created equal and not all agreements are subject to the Constitution in the same way. (26) Legally binding international agreements come in two varieties: treaties and executive agreements. (27) The Constitution gives the executive branch exclusive authority to negotiate and sign a treaty. (28) However, in order for the treaty to become binding on the United States, the Senate must provide two-thirds consent. (29) This differs from the international use of the term "treaty" which generally refers to a legally binding agreement between nations. (30) Due to the stringent formal requirements of a treaty, the use of executive agreements, or legally binding international agreements entered into without the consent of the Senate, (31) has "far outpaced the use of treaties." (32) While the executive branch generally notifies Congress of the agreement, the agreement is not subject to the level of scrutiny given to a formal treaty. (33)

      2. Self-Executing v. Non-Self-Executing Agreements The Supremacy Clause states "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." (34) When looking at treaties over time, courts have distinguished self-executing agreements from non-self-executing agreements. (35) An international agreement is self-executing when it has the force of law without the need for any congressional action. (36) In comparison, non-self-executing agreements require implementing legislation from Congress delegating authority to U.S. agencies to carry out the functions and obligations of the agreement. (37) With no clear constitutional outline of the requirements of a self-executing agreement, examples have been provided through Supreme Court rulings. (38) In Medellin v. Texas, the Supreme Court stated: "What we mean by 'self-executing' is that the treaty has automatic domestic effect as federal law upon ratification." (39) While there is still scholarly debate regarding the distinction between the two types of treaties, (40) non-self-executing treaties generally have at least three characteristics: (1) the agreement requires legislation to implement the agreement as domestic law, (2) the Senate or Congress requires implementing legislation, or (3) the Constitution requires implementing legislation. (41) If a treaty lacks the force of law in the domestic legal system, the judiciary cannot enforce the agreement because the judiciary cannot apply "nonlaw." (42) Therefore, it is imperative for Congress to pass implementing legislation so an international agreement can be domestically enforceable. (43)

   2. The International Side: Implementing Legislation of the Hague Abduction Convention

      Like most countries, the United States has passed specific legislation to implement the Hague Abduction Convention. (44) Although the Hague Abduction Convention was self-executing, the U.S. Congress enacted the International Child Abduction Remedies Act (ICARA) in 1988. (45) Due to the self-executing nature of the treaty and the implementing legislation passed by Congress, the Hague Abduction Convention became enforceable by both state and federal courts in the United States. (46) Under ICARA, parties may seek enforcement of their rights under the Hague Abduction Convention by filing a petition in a court of the appropriate jurisdiction where the child is located. (47) Subsequently, most American states adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to implement the Hague Abduction Convention on the state level. (48)

      Since the implementation of the Hague Abduction Convention, Congress has updated and passed the Sean and...