Tuesday, June 30, 2009

US Supreme Court to decide international law issues

US Supreme Court The U.S. Supreme Court has granted cert in at least two cases to be argued next term that raise or have the potential to raise issues of international law.

The case that most directly involves international law is Abbott v. Abbott, Docket No. 08-645.  This case is a family law matter from Texas involving an interpretation of the Hague Convention on Civil Aspects of International Child Abduction.  The issue is whether a "no exeat" order entered by a Chilean court that prohibits one parent from removing the couple's minor child from Chile without the other parent's consent confers "rights of custody" on either parent within the meaning of the Hague Convention.  The issue is important because under the Hague Convention, the remedy of the child's return to Chile is only available if there is a violation of custody rights.  A noncustodial parent has only a right of access, but not a right to have the child returned to a particular country.  In the Abbott case, the U.S. District Court refused to order the return of the child to Chile after the custodial parent (the mother) had removed the child to the United States, despite the fact that the removal from Chile frustrated the noncustodial father's visitation rights and was contrary to the no exeat order of the Chilean court. 

A second case that has the potential to raise international law issues is Graham v. Florida, Docket No. 08-7412.  The issue in that case is whether the imposition of a life sentence without the possiblity of parole on a juvenile is a violation of the Eighth Amendment's prohibition on cruel and unusual punishment.  In past Eighth Amendment cases involving the death penalty, such as Atkins and Roper, the U.S. Supreme Court has looked to foreign and international law to inform its understanding of what constitutes cruel and unusual punishment within the meaning of the Eighth Amendment as part of its determination of "evolving standards of decency."  In Graham, the petitioner argued that his life sentence violates international human rights norms, including the International Covenant on Civil and Political Rights.  Specifically, Graham argued that only 14 nations officially allow juveniles to be sentenced for life and only 3 nations do so in practice.  The Florida State Court agreed that international opinion frowns on the imposition of life sentences on juveniles, but ultimately upheld the sentence out of deference to the Florida legislature.

(cgb) 

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