Categories: Symposium

The Hague Convention on the Civil Aspects of International Child Abduction and the Latent Domestic Relations Exception to Federal Question Jurisdiction

Sam F. Halabi

Volume 41 - Issue 4, Summer 2016, Page 692

Abstract
Ultimately, this article argues that there is little if any support in the language of the Hague Child Abduction Convention or in its implementing statute, the International Child Abduction Remedies Act, to justify federal courts’ refusal to hear access claims. Rather, the rationales adopted by federal courts in allocating access cases to state courts resurrects a long-standing problem in the law of federal jurisdiction: Is the exception to federal jurisdiction for matters relating to divorce, maintenance, and child custody based on courts’ interpretation of jurisdictional statutes or did Article III’s jurisdictional grant to “cases” or “controversies” always exclude matters traditionally handled by ecclesiastical courts in 1787 Britain? While this article takes no position on that problem directly, it does suggest that federal courts have appropriated to themselves authority to determine jurisdiction based on their own assessment of state courts’ competencies, what is called here a “latent” domestic relations exception to federal question jurisdiction.

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Cite as: Sam F. Halabi, The Hague Convention on the Civil Aspects of International Child Abduction and the Latent Domestic Relations Exception to Federal Question Jurisdiction, 41 N.C. J. Int'l L. 692 (2016).

The Hague Child Abduction Convention and the International Child Abduction Remedies Act: Comments for U.S. Practice

George K. Walker

Volume 41 - Issue 4, Summer 2016, Page 744

Abstract
This article’s basic premise is that “there is little if any support” in the Convention or ICARA to justify federal courts’ refusal to hear access claims. Walker inquires into “the [domestic relations] exception to federal jurisdiction for matters relating to divorce, maintenance, and child custody,” suggesting that “federal courts have appropriated to themselves authority to determine jurisdiction based on their own assessment of state courts’ competencies, what is called . . . a ‘latent’ domestic relations exception to federal question jurisdiction.” The following discussion deals only with “ICARA jurisdiction" and the comments that follow focus on four issues: (1) original and supplemental jurisdiction in the federal courts; (2) venue, venue transfer and choice of law, and choice of forum clause problems; (3) court management advantages for litigants who file under ICARA and also assert state law-based claims; and (4) the resolution of service of process and factual issues in the federal courts.

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Cite as: George K. Walker, The Hague Child Abduction Convention and the International Child Abduction Remedies Act: Comments for U.S. Practice, 41 N.C. J. Int'l L. 744 (2016).

Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away

Barbara Stark

Volume 41 - Issue 4, Summer 2016, Page 762

Abstract
While The Hague Convention on the Civil Aspects of Child Abduction (the “Abduction Convention”)3 was drafted to facilitate this process, its application in cases involving Japanese nationals is problematic, especially in cases where the mother is Japanese. This Article explains why this is so, and why it is so hard to harmonize the family laws of different countries. It also describes the real risks that a child, or a parent, may be ‘spirited away,’ with no chance of actual contact, for far too long.

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Cite as: Barbara Stark, Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away, 41 N.C. J. Int'l L. 762 (2016).

Protecting Child Welfare in Abduction and Asylum Proceeding

Ann Laquer Estin

Volume 41 - Issue 4, Summer 2016, Page 793

Abstract
Sanchez v. RGL illustrates the importance of understanding children as uniquely vulnerable actors in a global setting, with interests that include both protection for family ties and protection from family violence. Beyond the importance of listening to children and parents in these cases, advocates and decision makers should be careful to recognize those exceptional circumstances where the interests of children and their parents are not the same. Part II of this paper reviews the process that governs children’s claims for asylum, with a particular focus on cases in which children and their parents disagree. Part III considers the application of the Abduction Convention in cases such as Sanchez in which there are child welfare concerns or no effective response to the return petition. Part IV addresses the interaction of three bodies of law governing asylum or other immigration relief, international child abduction, and child welfare. The paper concludes with recommendations for authorities in the United States and other countries toward the goal of reading these principles together.

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Cite as: Ann Laquer Estin, Protecting Child Welfare in Abduction and Asylum Proceeding, 41 N.C. J. Int'l L. 792 (2016).

Understanding Judgments Recognition

Ronald A. Brand

Volume 40 - Issue 4, Summer 2015, Page 877

Abstract

The law of judgments recognition has dramatically in the twenty-first century, with the Brussels I Regulation in the European Union, the promulgation of the Uniform Foreign-Country Money Judgments Recognition Act in the United States, and two U.S. Supreme Court opinions that brought U.S. general jurisdiction law more in line with Brussels I. While these developments represent substantial progress, they have also helped create certain roadblocks to further development.

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Cite as:
Ronald A. Brand, Understanding Judgments Recognition, 40 N.C. J. Int'l L. & Com. Reg. 877 (2015)

War, Responsibility, and Killer Robots

Rebecca Crootof

Volume 40 - Issue 4, Summer 2015, Page 909

Abstract

The United States is investing heavily in unmanned military weapon systems. As human troops are augmented and supplanted by “killer robots”, one of the remaining incentives for Congress to check presidential warmongering—popular outrage at the loss of American lives—is likely to diminish. War power’s growing concentration in the hands of the Executive also carries potential implications for the international doctrine of humanitarian intervention.

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Cite as:

Rebecca Crootof, War, Responsibility, & Killer Robots, 40 N.C. J. Int'l L. & Com. Reg. 909 (2015)


Leading from (A Bit) Behind: The United States & Int'l Human Rights Law

Aaron X. Fellmeth

Volume 40 - Issue 4, Summer 2015, Page 977

Abstract

U.S. political leaders have often boasted of their country’s “stature,” “moral authority,” and “moral leadership” in international affairs. While the United States ranks among the world's leading suppliers of human rights rhetoric, its actual moral leadership deserves a closer examination. That examination soon leads to the conclusion that U.S. citizens do not have human rights in the sense that the term is used in public international law. Harmonizing U.S. domestic and foreign policies with international human rights law would carry distinct advantages, but also some disadvantages.

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Cite as: Aaron X. Fellmeth, Leading from (A Bit) Behind: The United States & Int'l Human Rights Law, 40 N.C. J. Int'l L. & Com. Reg. 977 (2015)

Blog Posts

Prof. Ann Estin on child welfare in abduction and asylum proceedings

Numbers of unaccompanied minors taken into custody at the United States's southern border have nearly doubled in the last year. The dramatic increase has strained U.S. courts, particularly where international legal obligations are involved. University of Iowa law Prof. Ann Estin argues that U.S. courts are up to the challenge.

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No Comments | Posted by Elizabeth M. Hutchens on Mon. August 1, 2016 8:00 AM
Categories: Children's rights, Conflict of Laws, Hague Convention, Refugees/Asylum, Symposium

Exploring the Hague Abduction Convention Through Halabi’s Lens

In an article published in the North Carolina Journal of International Law’s symposium issue, Sam F. Halabi explores why federal courts decline to assert subject-matter jurisdiction over enforcement of visitation rights under the International Child Abduction Remedies Act (ICARA), despite asserting jurisdiction over another remedy: return of a child to his or her habitual residence. Ultimately, Halabi contends that neither the treaty nor the statute justifies the federal courts’ refusal to hear access claims.

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No Comments | Posted by Margaret D. Petersen on Fri. July 29, 2016 8:00 AM
Categories: Children's rights, Hague Convention, Symposium

Plus ça change, plus c’est la même chose: The more things change, the more they stay the same

“Comity” remains the most important principal governing recognition of foreign-country judgments; Professor Ronald Brand breathed new life into Hilton last month at the ILJ symposium. Brand, a professor of international law at Pitt, argued that long-ignored dictum from Hilton could help nations resolve their two fundamentally different approaches to judgment recognition.


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Posted by Christopher R. Bagley (Chris) on Fri. February 6, 2015 8:45 AM
Categories: Conflict of Laws, Symposium

Multilateral Environmental Agreements and U.S. Judicial Review

The focus of Professor Knox’s discussion was the role of courts in reviewing multilateral environmental agreements, and whether or not the political question doctrine shields these agreements from judicial review.


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Posted by Lisa Marie Taylor (Lisa Marie) on Fri. February 6, 2015 8:41 AM
Categories: Conflict of Laws, Symposium, United States

Aaron Fellmuth on Leading From Behind: The United States and International Human Rights Law

Professor Fellmuth’s most provocative points concerned what he deemed to be the political misconception that the United States is a moral authority in human rights matters. On the domestic front, Fellmuth discussed how racial inequality, overwhelming and disparate incarceration rates, and near-oppressive levels of poverty blemish the United States. On the international level, Fellmuth faulted the United States for supporting countries with human rights abuses such as Saudi Arabia while condemning Iran, suggesting that our legitimacy cannot survive with such inconsistencies.


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Posted by Laura L. Campbell on Fri. February 6, 2015 8:38 AM
Categories: International Human Rights, Symposium, United States

Killer Robots and the Legal Implications

Crootof details two concerns about autonomous weapons: (1) that the independence of the weapons creates liability issues; and, (2) that a democracy which is immune from feeling the human cost of war, would be emboldened to act and could potentially cause more conflict.


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Posted by Michael Dolan Berry on Fri. February 6, 2015 8:32 AM
Categories: Law of War, South Korea, Symposium, Terrorism

Ronald Brand on the Importance of Judgement Recognition Among Nations

Professor Ronald Brand spoke on the importance of judgment recognition among nations at The North Carolina Journal of International Law and Commercial Regulation Symposium on Friday, January 30, 2015. His lecture, titled “Understanding Judgments Recognition,” highlighted the significant developments in this area over the past fifteen years in the European Union (EU), the United States, and on a global front.


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Posted by Jessica L. Watts on Fri. February 6, 2015 8:16 AM
Categories: Conflict of Laws, International Dispute Resolution, Symposium

Symposium Review: Military Commissions - Are They Fair and Are They Really Working?

The current military commission system came into place when President Obama signed the Military Commissions Act of 2009. The use of military commissions is nothing new in the United States. Military commissions have been used since the Revolutionary War, when General George Washington put into place a Board of General Officers in order to determine whether a former soldier was a spy for Great Britain. There has been great debate over whether the detainees of Guantanamo and other detainees are being afforded due process of the law in these military commissions and whether military commissions have ever been successful in practice.


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No Comments | Posted by Zachary P. Ainsztein (Zach) on Fri. February 14, 2014 8:00 AM
Categories: Symposium, Terrorism

Symposium Review: Is There a Need for International Cyber Warfare Treaties?

During North Carolina Journal of International Law and Commercial Regulation’s 2014 symposium, various panelists offered their views on the growing area of cyber warfare. Cyber warfare is a relatively new development that is creating ethical and legal ambiguity under current international law. Modern international law recognizes the idea of jus ad bellum, literally translated to mean “right to war”. This theory determines situations when it is lawful to resort to war. The United States, and now most countries, claim . . .


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No Comments | Posted by Mark A. Kochuk on Thu. February 13, 2014 8:00 AM
Categories: Customary International Law, Cyberwarfare, Symposium

Symposium Review: Moving the Law of Armed Conflict from Crossbows to Cyber Attacks

At ILJ's 2014 symposium, Professor Eric Talbot Jensen argued that weapons technologies have progressed faster than international law's ability to handle them.


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No Comments | Posted by Vineeth Shanker Hemavathi on Tue. February 11, 2014 8:00 AM
Categories: Customary International Law, Cyberwarfare, Symposium
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