—Francesca Genova, University of Notre Dame
While the phrase “human rights and fundamental freedoms,” found in the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), is ubiquitous in international human rights treaties and regimes, it is not native to American jurisprudence. It enters into American law through treaty implementation. American courts interpret narrowly the Hague Convention’s “human rights and fundamental freedoms” clause, which provides a defense for keeping a child in the country to which he or she was abducted. Indeed, in the twenty-seven years since the treaty’s ratification, no federal appeals court has accepted this defense. American courts’ nonuse of this clause comports with American jurisprudential principles and the clause’s aims; it also shows how the clause may impede the harmonization of Hague Convention jurisprudence across jurisdictions.
The Hague Convention’s primary purpose is to facilitate the return of abducted children to the “State of their habitual residence” for custody proceedings in that State. It provides limited exceptions when a State may allow a child to remain. These include when there would be a “grave risk” that the child would suffer “physical or psychological harm” if returned and when the return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” Otherwise, courts are required to defer custody considerations to the child’s home jurisdiction.
The U.S. interpretation of the “human rights and fundamental freedoms” exception is narrow. The U.S. Supreme Court has held that the “Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’” According to the U.S. State Department, the executive body involved in the treaty’s negotiations, this exception applies only on “the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.” The Executive Branch warns that courts should not use the clause to “pass judgment on the political system of the country from which the child is removed.” Because of this interpretation, a federal appellate court has denied a defense that a home jurisdiction’s Syariah Court, which applies Islamic law, is “incompatible with the principles ‘relating to the protection of human rights and fundamental freedoms’” of the United States. On the contrary, principles of comity counseled against any such analysis.
The availability of other defenses seems to allow American courts to interpret this provision narrowly while addressing human rights concerns. Specifically, American courts seem more willing to assess and grant a defense under the “grave risk” of “physical and psychological harm” standard than the one concerning human rights, while recognizing that the analyses for both overlap. In Sanchez v. R.G.L., children were granted asylum in the United States while their mother initiated proceedings for their return to Mexico. The federal appeals court recognized that, while not dispositive in itself, the asylum grant was relevant for both defenses. Therefore, the court remanded the case for a determination of whether those defenses apply based on the evidence from the asylum proceedings. Indeed, in some instances where American courts have denied a human rights defense, they have upheld a grave risk defense.
Some countries have taken a more expansive view of the human rights provision. Costa Rica, for instance, has used it to incorporate a “best interests of the child” analysis into a Hague Convention determination in a case involving potential repatriation to the United States.  To do so, the court cited both Costa Rica domestic law and the United Nations Convention on the Rights of the Child. Thus, the United States’ narrow construction can potentially diverge from other jurisdictions’ broader interpretation of it.
The federal appellate decision Carrascosa v. McGuire provides an example of the conflict that this divergence may cause. There, a state court had ordered a mother and daughter to return from Spain to the United States, where the daughter was born. A Spanish court ruled that the human rights provision applied, as the parenting agreement in the United States violated Spanish citizens’ constitutional “right to freely choose their place of residence and to freely move about within the national territory.” The U.S. federal appeals court rejected this ruling for both the mother and daughter. It asserted that no law or agreement claimed to affect the mother’s travel and small children “do not make international travel decisions” but rather “are taken on trips by adults, in this case wrongfully.” Most importantly for the court, allowing a country to deny a child’s return based on the child’s right to travel would “render the Hague Convention meaningless.” American courts therefore could ignore the Spanish court’s decision.
The “human rights and fundamental freedoms” provision seems to both catalyze and inhibit the uniform interpretation of the Hague Convention across jurisdictions. It has the potential to harmonize human rights regimes at the domestic level, as the Convention’s Explanatory Report notes: this provision “relates to an area of law in which there are numerous international agreements.” Yet, the provision intentionally permits disunity. The clause is specifically designed to allow certain domestic determinations about human rights to exempt application of the treaty provisions. This design was a more restrictive compromise for a broader “public policy” exception that some parties promoted during the convention’s drafting. Since the provision centers on a State’s own understanding of human rights, federal appellate courts’ restrictive readings—their self-understanding of the American human rights regime—comport with it by their very nature.
Congress has recognized “the need for uniform international interpretation of the Convention” among the States.  The access to foreign cases has harmonized domestic jurisprudence in other Hague Convention provisions, but the human rights provision can potentially undermine this goal. It remains to be seen whether the United States will broaden its interpretation of the human rights provision in the future, particularly as its substantive due process jurisprudence expands. Currently, it seems as if American courts are content to follow the Executive Branch’s narrow interpretation of the Convention and use the grave risk of harm exemption to cover instances in which a human rights exception could apply.
Suggested Citation: Francesca Genova, Transnational Disagreement on Human Rights: How U.S. Appellate Courts Address the “Human Rights and Fundamental Freedoms” Clause in the Hague Convention on the Civil Aspects of International Child Abduction, Int’l J. Const. L. Blog, May 18, 2016, at: http://www.iconnectblog.com/2016/04/transnational_disagreement_on_human_rights
 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 (hereinafter “Hague Convention”), https://www.hcch.net/en/instruments/conventions/full-text/?cid=24.
 See, e.g., G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948), http://www.un.org/en/universal-declaration-human-rights/; Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights), Nov. 4, 1950, 213 U.N.T.S. 221, http://www.echr.coe.int/Documents/Convention_ENG.pdf.
 The Hague Convention has been implemented into American law through the International Child Abduction Remedies Act (ICARA). 22 U.S.C.A. § 9001 (West 2015); See Abbott v. Abbott, 560 U.S. 1, 9 (“The United States has implemented the Convention through the ICARA.”)
 Souratgar v. Lee, 720 F.3d 96, 108 (2d Cir. 2013) (citing Fed. Jud. Ctr., The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 85 (2012), http://www.fjc.gov/public/pdf.nsf/lookup/hagueguide.pdf/$file/hagueguide.pdf) (“We note that this defense has yet to be used by a federal court to deny a petition for repatriation.”); Sabogal v. Velarde, 106 F. Supp. 3d 689, 711 (D. Md. 2015) (“Indeed, it appears that no American court has ever applied this exception.”). While it is difficult to prove a negative, a search of the Hague Convention’s International Child Abduction Database (INCADAT) and a domestic law search indicate that federal courts to date have not recognized this defense.
 Hague Convention, supra note 2, pmbl.–art. 1.
 Id. arts. 13, 20. The full provision on grave risk reads: “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Id. art. 13. Other exceptions include a sufficiently mature child’s objection to being returned, the consent of the person “having the care of the person of the child,” and the same person’s consent or acquiescence in the child’s removal. Id.
 Id. art. 16.
 Abbott, 560 U.S. at 15 (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185 (1982)).
 U.S. State Dep’t, Hague International Child Abduction Convention: Text and Legal Analysis, Pub. Notice 957, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986).
 Souratgar, 720 F.3d at 108. The Syariah Court in Singapore has jurisdiction over marriage disputes between Muslims. Jurisdiction, Syariah Court Singapore, https://www.syariahcourt.gov.sg/syariah/front-end/Default.aspx?pid=M02.05 (last visited April 24, 2016).
 Souratgar, 720 F.3d at 108.
 Sanchez v. R.G.L., 761 F.3d 495, 499–503 (5th Cir. 2014).
 Id. at 511.
 See, e.g., Acosta v. Acosta, 725 F.3d 868, 877 (8th Cir. 2013) (holding that a lower court “did not abuse its discretion by declining to return the children to Peru” when their father was abusive, warranting a grave risk exception).
 L.R.C., a favor de I.C.R., y E.C.R., contra el Juzgado de Niñez y Adolescencia y El Tribunal de Familia, 17 May 2013, Sentencia 06644, http://jurisprudencia.poder-judicial.go.cr/SCIJ_PJ/busqueda/jurisprudencia/jur_Documento.aspx?param1=Ficha_Sentencia&nValor1=1&nValor2=595737&strTipM=T&strDirSel=directo.
 520 F.3d 249 (3d Cir. 2008).
 Id. at 257.
 Id. at 261 n.28.
 Elisa Pérez–Vera, Explanatory Report: Hague Convention on Private International Law ¶ 33, https://assets.hcch.net/upload/expl28.pdf. This report “is recognized as the official history, commentary, and source of background on the meaning of the provisions of the Convention.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir. 2004).
 Pérez–Vera, supra note 26, ¶¶ 31–33.
 Id. ¶¶ 31–34.
 22 U.S.C.A. § 9001.
 See, e.g., Rodriguez v. Yanez, No. 15-40048, 2016 WL 1212412, at *7 (5th Cir. Mar. 28, 2016) (citing case law from Argentina, Australia, Austria, Belgium, Canada, England, France, New Zealand, Northern Ireland, and Switzerland and distinguishing case law from Scotland).