Thursday, February 12, 2009

HCCAICA Caselaw and Overlooked Democratic Deficits

I couldn't in good conscience proceed on this topic without crediting its inspiration to a close friend. So, all due thanks to her for our earlier conversation, in which the Hague Convention on the Civil Aspects of International Child Abduction (HCCAICA) came up. This afternoon's reflections owe entirely to it.

By way of introduction, the HCCAICA is one of those rare international intruments that would extend signatories' citizens rights on their own terms but for expressly relegating that responsibility to each party's internal government. See Art. II, (referring to the instrument's otherwise self-executing legal regime as effective only on "Contracting States['...] implementation.") As such, Congress enacted these sections of the Code, thereby domesticating by incorporation HCCAICA law--verbatim.

Said unique process in importing this type of international instrument consequently generates unique practices in its application. And it is to these practices I turn in noting an often underappreciated source of democratic deficit, that infamous bugaboo in international law.

The problem of the democratic deficit is perhaps the most frequently raised criticism of international law. The argument is intuitive, and world history supportive: interstate agreements are compromissary arrangements reached for Realpolitik objectives--and resultantly, their contents govern citizens as a means to pursue state-to-state power structures rather than truly codify their will. Obviously, the deficit is most overt where a citizen is bound by laws made pursuant to his government's horse-trading with states he deems "oppressive" or "unethical." However, the very forum producing treaty-made law--an international arena where the public is at least one additional degree removed from his or her representatives--makes unavoidable some minimal degree of deficit.

However, certain approaches to treatymaking may, arguably, alleviate some of this drawback. Non-self-executing language--language which binds parties to each other without imposing mandates on how each honours its commitments by its citizens--leaves governments able to conform to their public's will as regards execution. A certain Treaty X which obligates Country A to pay Country B a $1 tax from each of its ten citizens (with the sole objective of raising a $10 tribute) could be much more democratically accomplished by leaving Country A discretion in collecting the funds. Furthermore, by involving publics in deciding matters of implementation, non-self-execution also expands the role of the vox populi on the merits of the commitment itself. The HCCAICA facially claims, at least, to have this advantage. Of course, its tight substantive regime undermines much of this advantage. But at least its facial relegation brought the House of Representatives into the debate.

But a considerable, albeit less discussed, source of democratic deficit is foremost in the HCCAICA context. If the language of domestic law implementing a treaty commitment requires interpretation, an obvious first stop is that treaty. Given, where a treaty extends wide discretion to a party's governmental processes in its enforcement, the source document needn't be basis for interpretation exclusively. But with the HCCAICA, the domestic law (for all intents and purposes) is the treaty. As such, courts applying the internalised Hague law have (predictably) availed themselves of the HCCAICA itself in matters of interpretation--necessarily importing its attendant international character and context in the process. In this way, international norms and customs--developed through the exact same compromissary exchanges and on the long train of state-to-state instruments produced thereby--work their way into domestic law even in the absence of a self-executing commitment. And any democratic deficiencies inherent therein do too.

Enter an example. Even though my familiarity with the mass body of HCCAICA caselaw is limited, 1993's Friedrich v. Friedrich, 983 F.2d 1396 comes to mind. There, the Sixth Circuit reversed a district court's read of the HCCAICA, ultimately inverting the outcome of the case. The district found for defendant; she lacked Hague liability for never having removed her and her plaintiff's child from a "habitual residence" sufficient to trigger the Convention's operation. Its opinion rested on a read of "habitual residence" as loosely synonymous with "domescile" in American domestic law. The circuit cited foreign interpretations and the purposes of the HCCAICA in disagreeing--"habitual residence" referring more to retrospective geographic reality than the formalistic legal connections to a court involved in the "domescile" analysis. Although the Circuit's interpretation has the advantage of intuitiveness: the avoidance of absurdity necessitates such a read of "habitual residence." (After all, if "habitual residence" became conflated with "domescile," it could effectively immunise any repatriation of American children no matter how violative of a foreign parent's rights.) The Friedrich Court nonetheless reached its result by referencing an international perspective--evidenced through British law, treaty history, and a canon of construction (avoidance of absurdity) not inconsistent with international jurisprudence. In this manner, even where an international commitment didn't pass automatically into domestic law, domestic law still became inernationalised. The democratic deficit remained a problem.

From this example, it's thus reasonable to assume that--globalization continuing and its legal framework evolving--past techniques used to address the democratic deficit will become less and less sufficient. The greater the complexity of our foreign relations, the greater the specificity required in its governing instruments. And as these effect a sort of de facto self-execution (as observed with the HCCAICA), other creative solutions must be sought.

Thoughts on such remedies to follow later.

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