articles - SSRN papers

ARTICLES THE APPLICATION OF INTERNATIONAL LAW IN STATE COURTS: THE CASE OF FLORIDA Chad G. Marzen* INTRODUCTION

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HE United States Supreme Court stated in The Paquette Habana in 1900 that “[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”1 Despite the Supreme Court’s pronouncement on the role of international law in U.S. courts over a century ago, courts and judges throughout the nation have been reticent to apply international law equally alongside domestic law to decide cases and controversies.2 One such manifestation of this reticence is the rise of the “selfexecuting” and “non-self-executing” distinction with regard to judicial enforcement of international treaties.3 This distinction has been the subject of

* Associate Professor of Legal Studies in Business, Florida State University, College of Business—Department of Risk Management/Insurance, Real Estate and Legal Studies. The author can be reached at [email protected]. To Laura Elizabeth Grice—yours always. 1. See The Paquette Habana, 175 U.S. 677, 700 (1900). 2. See John F. Coyle, The Case for Writing International Law into the U.S. Code, 56 B.C. L. REV. 433, 447 (2015) (“The contemporary judicial reluctance to give direct effect to international law is attributable to two primary causes. The first is judicial attitudes. Many U.S. judges are, for lack of a better word, unenthusiastic about relying upon international law to provide a rule of decision. The second is judicial inexperience. Many U.S. judges are unfamiliar with international methods and sources and are, consequently, wary of relying on these same methods and sources in deciding cases that come before them.”). 3. See Alyssa L. Enzor, Comment, Ignoring the Obligation to Provide Consular Notification: How This Nation’s Approach to Treaties Deprives Criminal Defendants of Procedural Safeguards, 3 ALA. CIV. RTS. & CIV. LIBERTIES L. REV. 123, 126-27 (2013) (“Existing precedent establishes a distinction between self-executing and non-self-executing treaties for purposes of domestic enforceability. That is to say, if a treaty is self-executing, it is immediately binding on United States courts. However, if a treaty is non-self-executing, it is not binding and therefore is not domestically enforceable .... In cases where a treaty is found to be non-self-executing, the lack of legislation to implement the treaty—termed ‘implementing legislation’—means that the provisions of the treaty are unenforceable domestically.”) (internal citations omitted)).

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significant academic commentary.4 Additionally, several states have taken actions to prohibit application of international law in domestic cases.5 Despite state efforts to bar the application of international law in domestic courts, a number of states have solicited and attracted international business and commerce.6 With its close proximity to the Caribbean and both Central and South America, Florida is a state that is very active in promoting international business development.7 Florida’s statutes even recognize the importance of international travel and trade, as one Florida statutory provision states: “The State of Florida is a major center for international travel and trade by sea.”8 Given Florida’s prominence in international travel and commerce, a number of cases involving the interpretation and application of international law have been decided in Florida’s state courts. This article intends to contribute to that vast literature by discussing several of these cases, since Florida provides a great case study on the issues that a state domestic court may face when grappling with 4. For academic articles discussing this distinction in the past several years, see, e.g., Julian Ku & John Yoo, Bond, the Treaty Power, and the Overlooked Value of Non-Self-Executing Treaties, 90 NOTRE DAME L. REV. 1607 (2015); Michael D. Ramsey, A Textual Approach to Treaty Non-SelfExecution, 2015 B.Y.U. L. REV. 1639 (2015); David L. Sloss, Taming Madison’s Monster: How to Fix Self-Execution Doctrine, 2015 B.Y.U. L. REV. 1691 (2015); Carlos Manuel Vázquez, Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution, 2015 B.Y.U. L. REV. 1747; John Quigley, A Tragi-Comedy of Errors Erodes Self-Execution of Treaties: Medellín v. Texas and Beyond, 45 CASE W. RES. J. INT’L L. 403 (2012). 5. For extensive discussion on state efforts to bar application of international law in state courts, see, e.g., Mark C. Rahdert, Exceptionalism Unbound: Appraising American Resistance to Foreign Law, 65 CATH. U. L. REV. 537 (2016); Holly Tao, Congress, Courts, and Control Over Persuasive Sources of Law, 51 GONZ. L. REV. 235 (2015); Samir Islam, Comment, The Negative Effects of IllAdvised Legislation: The Curious Case of the Evolution of Anti-Sharia Law Legislation into AntiForeign Law Legislation and the Impact on the CISG, 57 HOW. L.J. 979 (2014); Eun-Jung Katherine Kim, Islamic Law in American Courts: Good, Bad, and Unsustainable Uses, 28 NOTRE DAME J.L. ETHICS & PUB. POL’Y 287 (2014); Steven M. Rosato, Comment, Saving Oklahoma’s “Save our State” Amendment: Sharia Law in the West and Suggestions to Protect Similar State Legislation from Constitutional Attack, 44 SETON HALL L. REV. 659 (2014); Ryan H. Boyer, Comment, “Unveiling” Kansas’s Ban on Application of Foreign Law, 61 U. KAN. L. REV. 1061 (2013); Martha F. Davis, Shadow and Substance: The Impacts of the Anti-International Law Debate on State Court Judges, 47 NEW ENG. L. REV. 631 (2013); Sara Prasatik, Comment, Assessing the Viability of State International Law Prohibitions, 35 HOUS. J. INT’L L. 465 (2013); Jaron Ballou, Sooners vs. Shari’a: The Constitutional and Societal Problems Raised by the Oklahoma State Ban on Islamic Shari’a Law, 30 L. & INEQ. 309 (2012); Aaron Fellmeth, U.S. State Legislation to Limit Use of International and Foreign Law, 106 AM. J. INT’L L. 107 (2012); David L. Nersessian, How Legislative Bans on Foreign and International Law Obstruct the Practice and Regulation of American Lawyers, 44 ARIZ. ST. L.J. 1647 (2012); John T. Parry, Oklahoma’s Save Our State Amendment and the Conflict of Laws, 65 OKLA. L. REV. 1 (2012); Martha F. Davis & Johanna Kalb, Oklahoma and Beyond: Understanding the Wave of State Anti-Transnational Law Initiatives, 87 IND. L.J. SUPPLEMENT 1 (2011); Penny M. Venetis, The Unconstitutionality of Oklahoma’s SQ 755 and Other Provisions Like It that Bar State Courts from Considering International Law, 59 CLEV. ST. L. REV. 189 (2011). 6. See Thomas J. Stringer, How U.S. States are Targeting Foreign Direct Investment, AREA DEV., http://www.areadevelopment.com/LocationUSA/2015-US-inward-investment-guide/how-usstates-target-fdi-strategies-2727261.shtml (last visited Feb. 25, 2018). 7. Id. 8. See FLA. STAT. ANN. § 910.006(1)(a) (West, Westlaw through the 2017 1st Reg. Sess. and Spec. ‘‘A’’ Sess. of the 25th Leg.).

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international law. Specifically, the courtrooms of Florida have addressed a number of cases involving the interpretation and application of international law, including issues as varied as foreign sovereign immunity, the act of state doctrine, the principle of comity, the Warsaw Convention and Montreal Convention, the Geneva Convention on the High Seas, the Hague Convention on the Civil Aspects of International Criminal Abduction, the Vienna Convention on Consular Relations, the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), and the International Covenant on Civil and Political Rights. I. SOVEREIGN IMMUNITY The principle of immunity for foreign sovereigns in United States courts has been a longstanding doctrinal principle for over two centuries.9 In 1812, the United States Supreme Court expressly affirmed this principle in Schooner Exchange v. McFaddon.10 Prior to the passage of the Foreign Sovereign Immunities Act (“FSIA”) in 1976, the procedure for raising the issue of sovereign immunity in state court was relatively convoluted. First, the foreign state would have to contact the United States Department of State. If the Department of State recognized the claim, the United States Attorney General or a representative under their direction could assert the defense of sovereign immunity on behalf of the foreign state.11 In 1976, Congress enacted FSIA,12 which creates a presumption of foreign sovereign

9. See Chad Marzen, Liability for Terrorism in American Courts: Aiding-and-Abetting Liability Under the FSIA State Sponsor of Terrorism Exception and the Alien Tort Statute, 25 T.M. COOLEY L. REV. 503, 506 (2008). 10. Schooner Exch. v. McFaddon, 11 U.S. 116, 137 (1812). Here, the United States Supreme Court stated the following: One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. Id. 11. See Banco Nacional de Cuba v. Steckel, 134 So. 2d 23, 24 (Fla. Dist. Ct. App. 1961) (“The procedure for raising a question of sovereign immunity is by making it a subject of diplomatic representation to the United States Department of State and the claim, if recognized, may be set forth and supported in an appropriate suggestion to the court by the Attorney General of the United States or an officer acting under his direction.”). 12. See 28 U.S.C. § 1604 (2012) (“Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.”).

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immunity and places the burden on a plaintiff to prove one of the exceptions to immunity applies.13 Cases involving application of foreign sovereign immunity have regularly appeared in Florida courts. For example, several cases arose in the years after Fidel Castro overthrew Fulgencio Batista’s Cuban government in 1959.14 In Harris & Co. Advertising, Inc. v. Republic of Cuba, an advertising agency filed suit against the Republic of Cuba for breach of contract.15 An agency of Cuba operating in Florida hired the advertising agency to do promotional work in the United States.16 After disputes arose, the advertising agency obtained writs of garnishment, as well as attachment, against property of the Republic of Cuba.17 The Florida District Court of Appeal held that the Republic of Cuba engaged in a commercial activity; thus, sovereign immunity did not apply as a defense.18 The court appeared to rely on the fact that the agency of Cuba contracted with the advertising agency.19 In the similar case of State ex rel. National Institute of Agrarian Reform v. Dekle, the plaintiff obtained a judgment against an agency of the Republic of Cuba in July 1961.20 In two orders (dated December 1, 1961 and December 8, 1961), a circuit judge allowed a January 9, 1962 sale of certain real property to satisfy the judgment.21 After the final orders, but prior to the sale, the United States Attorney for the Southern District of Florida (at the direction of the United States Attorney General) filed a suggestion notifying the court that sovereign immunity applied, seeking release of the sheriff’s levy on the property.22 The circuit judge refused to relinquish jurisdiction, and the Florida District Court of Appeal heard a prohibition and/or mandamus petition by the Cuban government agency.23 The district court of appeals held that a claim of sovereign immunity could be asserted following a judgment but prior to the actual levy of the property.24 Thus, once the suggestion of sovereign immunity was filed, the trial court ceased to hold jurisdiction.25 The district court of appeals issued a peremptory writ of 13. There are several exceptions to FSIA. See Marzen, supra note 9, at 507. The most notable exceptions include cases of waiver (see 28 U.S.C. § 1605(a)(1) (2012)), commercial activity (see 28 U.S.C. § 1605(a)(2)), torts (see 28 U.S.C. § 1605(a)(5)), and the state-sponsored terrorism exception (see 28 U.S.C. § 1605A). 14. See John W. Smagula, Redirecting Focus: Justifying the U.S. Embargo Against Cuba and Resolving the Stalemate, 21 N.C.J. INT’L L. & COM. REG. 65, 69 (1995). 15. See Harris & Co. Advert., Inc. v. Republic of Cuba, 127 So. 2d 687, 688 (Fla. Dist. Ct. App. 1961). 16. Id. at 692. 17. Id. at 688. 18. Id. at 692. 19. Id. 20. See State ex rel. Nat’l Inst. of Agrarian Reform v. Dekle, 137 So. 2d 581, 581 (Fla. Dist. Ct. App. 1962). 21. Id. 22. Id. at 581-82. 23. Id. at 582. 24. Id. 25. Id. at 583 (“The determination of immunity by the Department of State and the filing of the suggestion in this case, effectively terminated the power and jurisdiction of the trial court with reference to matters contained in the suggestion.”).

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mandamus and ordered the circuit judge to release the property from the sheriff’s levy.26 However, the Harris court went further in its decision. In addition to its initial holding in the Dekle case, the district court of appeals subsequently held that a suggestion of sovereign immunity filed after an execution sale was not timely as the proceeds were not the property of the foreign nation, but rather those of the judgment creditor.27 The timing of the sovereign immunity suggestion proved to be a key issue in the case, just as it was in most sovereign immunity cases prior to 1976.28 Another illustrative example of the importance of this timing can be found in the case of Lan-Chile Airlines, Inc. v. Rodriguez.29 In Lan-Chile Airlines, two passengers of a Chilean airline were allegedly assaulted by five assailants of the airline in the airline’s VIP room at Miami International Airport.30 The purported reason for the assault was to discourage union activities.31 At trial, each plaintiff was awarded $2,500 in compensatory damages and $110,000 in punitive damages.32 Evidence that the airline was owned by the Chilean government was presented during the trial, but the issue of sovereign immunity was never raised before the trial court.33 It is a fundamental rule of trial and appellate procedure that an error not raised during trial will be waived on appeal.34 While the trial record conveyed that the airline was owned by the Chilean government, the Florida District Court of Appeal held that this fact alone was not sufficient to raise the issue of sovereign immunity, either by express or implied means.35 Even if the issue was litigated, the Lan-Chile Airlines court noted that sovereign immunity would still not apply since the airline was engaged in a commercial activity within the United States.36 One of the notable exceptions to the FSIA is the commercial activity exception.37 In some cases, courts will find that a commercial activity does not exist. Following the enactment of FSIA, foreign sovereign immunity was permitted as a defense to a default judgment.38 In Nigerian Air Force v. Van Hise,

26. Id. 27. See United States v. Harris & Co. Advert., Inc., 149 So. 2d 384, 385 (Fla. Dist. Ct. App. 1963). 28. See Marzen, supra note 9, at 523. 29. See Lan-Chile Airlines, Inc. v. Rodriguez, 296 So. 2d 498, 500 (Fla. Dist. Ct. App. 1974). 30. Id. at 499. 31. Id. 32. Id. 33. Id. at 500. 34. See Polly J. Estes, Preservation of Error: From Filing the Lawsuit through Presentation of Evidence, 30 ST. MARY’S L.J. 997, 999 (1999) (“Preservation of error is one of the basic requirements of the appellate process. Simply stated, a party must make a timely and specific objection, request, or motion and obtain a ruling in order to complain about an error on appeal. Unfortunately, lawyers are often so immersed in trial strategy they neglect to preserve error for appeal.”). 35. Lan-Chile Airlines, 296 So. 2d at 500. 36. Id. 37. See 28 U.S.C. § 1605(a)(2) (2012). 38. Marzen, supra note 9, at 507.

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the plaintiff offered to purchase an airplane from the Nigerian Air Force within the country of Nigeria.39 The offer was accepted and paid for within the country.40 After the plaintiff moved to Florida, the Nigerian Air Force sent a letter to the plaintiff stating that, due to improvements made to the airplane, the plaintiff would need to submit a new offer.41 The plaintiff then filed suit against the Nigerian Air Force for breach of contract and obtained a final judgment when the Nigerian Air Force did not appear.42 Over two-and-a-half years later, the Nigerian Air Force moved to vacate the final judgment, asserting sovereign immunity.43 In response, the plaintiff noted that its sole argument against sovereign immunity was derived from the Nigerian Air Force letter, stating that the letter constituted “commercial activity” having a direct effect in the United States.44 The Florida District Court of Appeal found that the letter sought new negotiations concerning the sale of the airplane and “did not constitute an activity having a direct effect in the market place of the United States.”45 The court vacated the judgment and dismissed the original complaint for lack of jurisdiction because sovereign immunity applied.46 Similarly, the commercial activity exception did not apply in Gugliani v. Shipping Corp. of India, Ltd.47 In Gugliani, an Indian merchant marine cadet was injured on a ship by improperly stowed cargo while on international waters.48 The Florida District Court of Appeal held that the claim did not involve a required nexus between the incident and commercial activity in the United States. II. ACT OF STATE DOCTRINE Judges in state courts throughout the country will occasionally encounter cases49 where the act of state doctrine applies.50 In essence, the act of state doctrine 39. Nigerian Air Force v. Van Hise, 443 So. 2d 273, 274 (Fla. Dist. Ct. App. 1983). 40. Id. 41. Id. 42. Id. 43. Id. 44. Id. at 275. 45. Id. 46. Id. at 276. 47. Gugliani v. Shipping Corp. of India, Ltd., 526 So. 2d 769, 770 (Fla. Dist. Ct. App. 1988). 48. Id. 49. See, e.g., Barragan v. Banco BCH, 188 Cal. App. 3d 283 (1986); D’Angelo v. Petroleos Mexicanos, 331 A.2d 388 (Del. 1974); Roxas v. Marcos, 969 P.2d 1209 (Haw. 1998); Perez v. Chase Manhattan Bank, N.A., 463 N.E.2d 5 (N.Y. 1984); Hunt v. Coastal States Gas Producing Co., 583 S.W.2d 322 (Tex. 1979). 50. Academic scholarship on issues related to the act of state doctrine is vast. Some notable articles include: John Harrison, The American Act of State Doctrine, 47 GEO. J. INT’L L. 507 (2016); Deborah Azar, Simplifying the Prophecy of Justiciability in Cases Concerning Foreign Affairs: A Political Act of State Question, 9 RICH. J. GLOBAL L. & BUS. 471 (2010); Andrew D. Patterson, The Act of State Doctrine is Alive and Well: Why Critics of the Doctrine are Wrong, 15 U.C. DAVIS J. INT’L L. & POL’Y 111 (2008); Frank Walsh, Flipping the Act of State Presumption: Protecting America’s International Investors from Foreign Nationalization Programs, 12 TEX. REV. L. & POL. 369 (2008); Michael D. Ramsey, Acts of State and Foreign Sovereign Obligations, 39 HARV. INT’L

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is one of deference, and it holds that the judicial branch of one country will not pass judgment on the validity of the official public acts of another foreign country when those acts are committed within their own territory.51 Some courts have found an extraterritoriality exception to the doctrine in cases where a foreign nation engages in confiscation of American property, as such acts directly affect American property interests.52 Other courts have found an exception where a foreign nation engages in commercial activity having a direct effect within the United States.53 The Florida District Court of Appeal applied the act of state doctrine in the case of National Institute of Agrarian Reform v. Kane in 1963.54 In National Institute of Agrarian Reform, the Cuban government confiscated the assets of a Cuban corporation.55 The majority holders of the Cuban corporation stock were American citizens, and those holders filed suit against the Cuban governmental agency for the confiscation.56 The trial court issued a final judgment for the plaintiffs and the Cuban governmental agency appealed.57 On appeal, the court held that the lower court did not have subject matter jurisdiction over the claim.58 The court applied the act of state doctrine, stating that L.J. 1 (1998); Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 COLUM. L. REV. 1907 (1992); Steven R. Swanson, A Threshold Test for Validity: The Supreme Court Narrows the Act of State Doctrine, 23 VAND. J. TRANSNAT’L L. 889 (1991); Daniel C. K. Chow, Rethinking the Act of State Doctrine: An Analysis in Terms of Jurisdiction to Prescribe, 62 WASH. L. REV. 397 (1987); Michael J. Bazyler, Abolishing the Act of State Doctrine, 134 U. PA. L. REV. 325 (1986). 51. KENNETH W. CLARKSON ET AL., BUSINESS LAW: TEXT AND CASES 458 (Cengage Learning 13th ed. 2015) (“The act of state doctrine provides that the judicial branch of one country will not examine the validity of public acts committed by a recognized foreign government within the latter’s own territory.”). 52. Jeffrey J. Clark, Comment, Act of State Doctrine—Extraterritoriality Exception—Lack of Effect on American Interests Prevents Owners of Property Confiscated on Foreign Soil from Collecting Debt Owed by American Corporations, F. & H.R. Farman-Farmaian Consulting Engineers Firm v. Harza Engineering Co., 882 F.2d 281 (7th Cir. 1989), 14 SUFFOLK TRANSNAT’L L.J. 183, 190 (1990) (“This exception provides that courts of the United States will not give extraterritorial effect to the confiscatory acts of a foreign nation where those acts affect property interests located in the United States.”). 53. Russ Schlossbach, Note, Arguably Commercial, Ergo Adjudicable?: The Validity of a Commercial Activity Exception to the Act of State Doctrine, 18 B.U. INT’L L.J. 139, 152 (2000) (“Numerous U.S. federal courts have addressed the commercial activity exception since Dunhill. Given the lack of clear conclusions left in the wake of White’s plurality decision, it is not surprising that these courts have come to different conclusions regarding the existence of a commercial activity exception. Indeed, while some courts have explicitly endorsed the exception, others have expressed a clear reluctance to do so given the current state of the law and Supreme Court guidance. Despite the positions these courts have taken, however, they have offered little, if any, explanation as to why they endorse or reject the commercial activity exception. Rather, they seem to rely on the commercial nature of the conduct and the public/private distinction given so much weight by the Dunhill plurality.”). 54. Nat’l Inst. of Agrarian Reform v. Kane, 153 So. 2d 40, 42 (Fla. Dist. Ct. App. 1963). 55. Id. 56. Id. 57. Id. 58. Id. at 44.

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“[t]o declare invalid an act of expropriation by the Cuban Government of the property of a Cuban corporation in Cuba because such act is discriminatory, arbitrary and confiscatory would be a denial of the sovereignty of a foreign state.”59 It cited a U.S. Supreme Court case, Underhill v. Hernandez,60 which held that courts will not sit in judgment of the official actions of another nation within its own territory. The National Institute of Agrarian Reform court noted that the Underhill case, as well as the act of state doctrine, were the law of the land.61 The act of state doctrine and its “extraterritoriality exception” were also an issue in the 2014 case of Republic of Ecuador v. Dassum.62 The Dassum case arose out of the 2001 failure of Ecuador’s then-largest bank, Filibanco.63 The Republic of Ecuador determined that at least two former bankers drained funds from the bank through allegedly fraudulent misconduct.64 After allegedly committing these acts, the two former bankers left Ecuador for Miami, Florida.65 The Republic of Ecuador sued the former bankers in Florida state court, seeking recovery of the remaining $200 million in liabilities due to the alleged fraudulent misconduct.66 The trial court granted summary judgment to the former bankers due to the extraterritoriality exception to the act of state doctrine.67 The Florida District Court of Appeal overturned the trial court’s granting of summary judgment.68 In its decision, the court noted that United States courts “have also been receptive to claims asserted by foreign governments to recover for acts in a foreign country by alleged wrongdoers (officials from a prior administration or regime) who subsequently took up residence here with ill-gotten gain.”69 The court remarked that the Republic of Ecuador’s complaint only sought recovery of money damages and did not request any seizure or confiscation of the two former bankers’ property, which would have then triggered application of the extraterritoriality exception to the act of state doctrine.70 Thus, the extraterritoriality exception did not apply.71

59. Id. 60. Underhill v. Hernandez, 168 U.S. 250, 252 (1897). 61. Nat’l Inst. of Agrarian Reform, 153 So. 2d at 44 (“This appears to be the law of the land at the present time, and we will not depart from its mandate.”). 62. Republic of Ecuador v. Dassum, 146 So. 3d 58, 59 (Fla. Dist. Ct. App. 2014). 63. Id. at 59-60. 64. Id. at 60. 65. Id. 66. Id. 67. Id. at 60-61. 68. Id. at 63. 69. Id. at 61. 70. Id. at 61-62. 71. Id. at 62 (“This complaint is in stark contrast to a hypothetical complaint demanding the enforcement in Florida of a foreign sovereign’s confiscation of property located in Florida, as a judicial fait accompli, all in purported reliance on the act of state doctrine. Such a demand plainly would be subject to the extraterritoriality exception to the doctrine ….”).

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III. PRINCIPLE OF COMITY Just like sovereign immunity and the act of state doctrine, state courts in Florida, as well as courts throughout the country, routinely apply the principle of comity in international law.72 Under the principle of comity, a United States court will give effect to the judgments and proceedings of a foreign court, so long as the foreign court does not offend a public policy of that state.73 Given its wide jurisprudential application, numerous academic commentators have addressed the principle of comity in legal scholarship.74 An excellent application of the principle of comity in a Florida state court is found in the Kroitoro v. Chase Manhattan Bank, N.A. case.75 In the Kroitoro case, an individual declared bankrupt under Panamanian law challenged the procedural fairness of the Panamanian bankruptcy in the Florida courts.76 The individual challenged the utilization of the Panamanian bankruptcy trustee, since Panamanian law provided that the debtor could “appear in Court ... as a plaintiff ... except to file actions concerning his person or his words but not concerning [the debtor’s] properties.”77 The Florida District Court of Appeal rejected this argument, noting not only that Panamanian bankruptcy laws are procedurally fair, but also that under Panamanian law, the individual could challenge the performance of the bankruptcy trustee and has the remedy to seek the trustee’s removal in Panama.78 Since the Panamanian bankruptcy process did not offend state public policy considerations, the principle of comity applied in the case.79

72. There a number of cases in the past three years where the principle of comity was applicable. See, e.g., Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014); In re Vitamin C Antitrust Litig., 837 F.3d 175 (2d Cir. 2016); Schuler v. Rainforest All., Inc., 161 F. Supp. 3d 298 (D. Vt. 2016); Stoyas v. Toshiba Corp., 191 F. Supp. 3d 1080 (C.D. Cal. 2016); Clientron Corp. v. Devon IT, Inc., 125 F. Supp. 3d 521 (E.D. Pa. 2015); In re Estate of Toland, 329 P.3d 878 (Wash. 2014). 73. See CLARKSON ET AL., supra note 51, at 456 (“The principle of comity basically refers to legal reciprocity. One nation will defer and give effect to the executive, legislative, and judicial acts of another country, as long as the acts are consistent with the law and public policy of the accommodating nation.”). 74. See, e.g., Diego Zambrano, A Comity of Errors: The Rise, Fall, and Return of International Comity in Transnational Discovery, 34 BERKELEY J. INT’L L. 157 (2016); William S. Dodge, International Comity in American Law, 115 COLUM. L. REV. 2071 (2015); Rhona Schuz, The Doctrine of Comity in the Age of Globalization: Between International Child Abduction and CrossBorder Insolvency, 40 BROOK. J. INT’L L. 31 (2014); Donald E. Childress III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. DAVIS L. REV. 11 (2010); N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. PA. J. INT’L ECON. L. 601 (2006); Spencer W. Waller, The Twilight of Comity, 38 COLUM. J. TRANSNAT’L L. 563 (2000); Michael D. Ramsey, Escaping “International Comity,” 83 IOWA L. REV. 893 (1998). 75. See Kroitoro v. Chase Manhattan Bank, N.A., 522 So. 2d 1061, 1062 (Fla. Dist. Ct. App. 1988). 76. Id. at 1061. 77. Id. at 1061-62 (quoting Cod. Com. art. 1553 (Pan. 1988)). 78. Id. at 1062. 79. Id.

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IV. THE WARSAW CONVENTION AND MONTREAL CONVENTION The Convention for the Unification of Certain Rules Relating to International Carriage by Air, commonly known as the Warsaw Convention,80 was the first major private law international treaty to apply to international aviation losses and disputes.81 The Warsaw Convention “applies to all international carriage of persons, luggage or goods performed by aircraft for reward.”82 The Convention imposes liability on the carrier in cases where a passenger suffers death or bodily injury if the injury is incurred “on board the aircraft or in the course of any of the operations of embarking or disembarking.”83 Any action for damages under the Warsaw Convention must be brought either in the nation of the carrier’s residence, principal place of business, or at the nation of destination.84 Where the Warsaw Convention applies, it constitutes the exclusive remedy for recovery of injuries while a plaintiff is on board the aircraft, or when the plaintiff embarks or disembarks from the airplane.85 After the Warsaw Convention took effect in 1933, several modifications to the Convention were made. Notable modifications include: The Hague Protocol (1955), The Guadalajara Convention (1961), The Montreal Agreement (1966), The Guatemala City Protocol (1971), The Montreal Protocols (1975), and the Japanese Initiative and IATA Intercarrier Agreements (1995-1996).86 In 2003, the Convention for the Unification of Certain Rules for International Carriage by Air, also known as the Montreal Convention, came into force.87 Over time, the Montreal Convention is intended to supersede the Warsaw Convention and its modifications.88 If the parties to a dispute are also parties to the Warsaw Convention and the Montreal Convention, the provisions of the Montreal Convention prevail.89 If the nations are not parties to the Montreal Convention, the provisions of the Warsaw Convention prevail.90

80. See generally Convention for the Unification of Certain Rules Relating to International Carriage by Air, Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11, https://www.mcgill.ca/iasl/files/iasl/ warsaw1929.pdf [hereinafter “Warsaw Convention”]. 81. See Paul S. Dempsey, International Air Cargo & Baggage Lability and the Tower of Babel, 36 GEO. WASH. INT’L L. REV. 239, 240 (2004). 82. See Warsaw Convention, supra note 80, at art. 1(1). 83. Id. at art. 17. 84. Id. at art. 28(1). 85. See El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161 (1999). 86. See Dempsey, supra note 81, at 250. 87. See generally Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 S. Treaty Doc. No. 106-45, http://www.icao.int/secretariat/legal/ List%20of%20Parties/Mtl99_EN.pdf [hereinafter “Montreal Convention”]. 88. See Gary A. Gardner & Brian C. McSharry, The Montreal Convention: The Scram Jet of Aviation Law, WILSON ELSER (Apr. 2006), http://www.wilsonelser.com/files/repository/ MontrealConvention_April2006.pdf. See also Schopenhauer v. Compagnie Nationale Air Fr., 255 F. Supp. 2d 81, 87 (E.D.N.Y. 2003). 89. See Gardner & McSharry, supra note 88. See also Hosaka v. United Airlines, Inc., 305 F.3d 989, 1000-01 (9th Cir. 2002). 90. See Gardner & McSharry, supra note 88.

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The Warsaw Convention

Florida courts have examined several provisions of the Warsaw Convention. The underlying facts of Eastern Airlines, Inc. v. King involved a flight from Miami International Airport to Nassau, Bahamas.91 During the flight, one of three airplane engines failed; after the flight turned back toward Miami for an emergency landing, the other two engines also failed.92 The passengers were prepared to exit the plane as it lost altitude, but before that became necessary, the aircraft crew was able to restart one of the engines, landing safely in Miami.93 One of the passengers filed a lawsuit against the airline for intentional infliction of emotional distress under Florida law. In addition, the passenger filed claims under the Warsaw Convention for negligent or willful misconduct.94 The specific allegations were that the airline failed to properly inspect, maintain, and operate its aircraft. The airline failed to take reasonable measures to cure known maintenance problems, despite airline records allegedly revealing at least a dozen prior instances where aircraft engines failed due to missing oil seals.95 The Florida Supreme Court in King held that the plaintiff’s allegations rose no higher than ordinary negligence, and thus did not meet the standard of “‘extreme and outrageous conduct intentionally or recklessly’ causing emotional distress,” which is required for a cause of action to be stated for intentional infliction of emotional distress.96 Despite this finding, the court concluded that the plaintiff could still recover for emotional distress under Article 17 of the Warsaw Convention, as the negotiating history of the Warsaw Convention supported the conclusion that a plaintiff could recover emotional distress damages without an accompanying physical injury under the Convention.97 In some cases, however, the Warsaw Convention will not provide for recovery, as seen in the case of Cortes v. Delta Air Lines, Inc.98 In Cortes, the plaintiff followed a travel itinerary in which she was to fly from Montreal, Canada to Boston, Massachusetts, then from Boston to Miami, Florida, and then from Miami to Colombia.99 She allegedly requested assistance from airline employees for embarking and disembarking on several different occasions, but two airlines on the itinerary allegedly did not provide it.100 Without assistance, the plaintiff fell on an escalator in Miami International Airport before she was to board her Avianca flight to Colombia.101

91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101.

See E. Airlines, Inc. v. King, 557 So. 2d 574, 575 (Fla. 1990). Id. Id. Id. Id. Id. at 576 (quoting RESTATEMENT (SECOND) OF TORTS § 46 (AM. LAW INST. 1965)). Id. at 578. See Cortes v. Delta Air Lines, Inc., 638 So. 2d 108, 110 (Fla. Dist. Ct. App. 1994). Id. at 109. Id. Id.

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In examining whether the Warsaw Convention applied, the Cortes court closely examined Article 1(2) of the Convention.102 It noted that the plaintiff was engaged in international transportation pursuant to Article 1(2)103 because her flight was to begin in a signatory nation (Canada) with stops in two others (the United States and Colombia).104 While the plaintiff was engaged in international transport, the court remarked that one of the alleged tortfeasors (Avianca) did not have its “domicile” or “principal place of business” within the United States.105 Nor was the United States the final destination or the country in which the ticket was sold.106 The court found that Article 28(1) of the Convention required one of these foregoing locations to be the United States.107 Therefore, the United States did not have jurisdiction over the plaintiff’s claims in the matter.108 The case of Bowe v. Worldwide Flight Services, Inc. also involved an accident on an escalator in Miami International Airport.109 Unlike the Cortes case, the plaintiffs in Bowe took a flight from Nassau, Bahamas to Miami, Florida; thus, jurisdiction was not an issue in the case since the United States was the final destination of travel.110 The plaintiffs were at a bus depot in the airport, and the depot was served by two escalators.111 The Florida District Court of Appeal held that issues of fact existed concerning the applicability of the Warsaw Convention, since the Warsaw Convention covers situations of “embarking or disembarking,” and the injuries on the escalator—which occurred within an airport terminal— could be encompassed by that language.112 Another issue that may arise under the Warsaw Convention is the distinction between an airliner and an airline maintenance company. The underlying facts of 102. Id. 103. The provision states: For the purposes of this Convention the expression ‘international carriage’ means any carriage in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or transhipment [sic], are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention. A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of this Convention. Warsaw Convention, supra note 80, at art. 1(2). 104. See Cortes, 638 So. 2d at 109. 105. Id. 106. Id. 107. See Warsaw Convention, supra note 80, at art. 28(1). 108. See Cortes v. Delta Air Lines, Inc., 638 So.2d 108, 109 (Fla. Dist. Ct. App. 1994). 109. See Bowe v. Worldwide Flight Servs., Inc., 979 So. 2d 423, 424-25 (Fla. Dist. Ct. App. 2008). 110. Id. at 425. 111. Id. 112. Id. at 427 (quoting Warsaw Convention, supra note 80, at art. 17).

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Compania Panamena de Aviacion, S.A. v. Gerstein involved the 1992 crash of a flight from Panama City, Panama to Cali, Colombia.113 Thirty-two cases alleging wrongful death were filed in Florida courts as a result of the crash.114 The airliner sought a writ of prohibition to preclude the wrongful death lawsuits.115 As to the airliner, the Gerstein court granted the writ of prohibition since the passengers were involved in international transportation per Article 1(2), and the United States was not one of the fora provided for pursuant to Article 28(1) of the Convention.116 However, the court also held that the Warsaw Convention did not apply to the airline maintenance company, which would preempt state law negligence claims.117 The airline maintenance company allegedly conducted a negligent transit check of the airplane in Miami on an entirely different flight the day prior to the accident.118 The Gerstein court was not convinced by the airline maintenance company’s argument that since they conducted work for an airliner “in furtherance of the contract of carriage,” they were also covered by the Warsaw Convention.119 The court observed that the airline maintenance company’s actions were not related to the flight in question, thus the Warsaw Convention did not apply.120 Thus, the Warsaw Convention did not preempt the filed wrongful death actions against the maintenance company.121 There is also a question of whether attorney’s fees under a state statute may be recoverable in addition to damages under the Warsaw Convention. This issue arose in the American Airlines, Inc. v. American Home Assurance Co. case.122 In the initial proceedings of the case, the trial court entered summary judgment for a fabric producer and its insurer against a shipper due to delivery of ruined goods as well as failure to deliver other goods.123 Additionally, the trial court awarded the fabric producer and its insurer with attorney’s fees.124 On appeal, the Florida District Court of Appeal noted that the Warsaw Convention was silent on recovery of attorney’s fees.125 Noting that the federal courts of Florida have ruled that the Warsaw Convention does not preempt state law causes of action where the Warsaw Convention is silent, the appellate court held that “fees under a state statute may be awarded if, considered with the award

113. See Compania Panamena De Aviacion, S.A. v. Gerstein, 645 So. 2d 55, 56 (Fla. Dist. Ct. App. 1994). 114. Id. 115. Id. 116. Id. 117. Id. 118. Id. 119. Id. (quoting Julius Young Jewelry Mfg. Co., Inc., v. Delta Air Lines, 414 N.Y.S.2d 528, 530 (1979)). 120. Id. 121. Id. 122. See Am. Airlines, Inc. v. Am. Home Assurance Co., 731 So. 2d 810, 811 (Fla. Dist. Ct. App. 1999). 123. Id. 124. Id. 125. Id.

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of damages, the entire amount does not exceed the damages limitation imposed by the Warsaw Convention.”126 B.

The Montreal Convention

Florida courts have also interpreted and applied provisions of the Montreal Convention. The case of Mas & Sons Jardiniers, Ltd. v. Florida West International Airways, Inc. involved the issue of notice under the Montreal Convention.127 A foreign vegetable grower filed suit against a carrier for losses due to an alleged failure to promptly release fresh vegetables shipped from Guatemala and Costa Rica to Miami, Florida.128 The provision at issue, Article 31, requires a complaint to be made by within fourteen days of the receipt of cargo.129 In addition, the complaint must be made in writing.130 In Mas & Sons Jardiniers, Ltd., the foreign vegetable grower verbally notified the carrier within fourteen days of its intention to file a complaint.131 The carrier provided the foreign vegetable grower with complaint forms to complete.132 However, the written complaint was not completed within fourteen days.133 Given that no allegations of fraud were made against the carrier, the Florida District Court of Appeal noted that “[t]imely written notice is required even if an agent of the carrier is aware of the damage.”134 Therefore, since the foreign vegetable grower did not comply with Article 31, the court upheld the summary judgment in favor of the carrier.135 V. GENEVA CONVENTION ON THE HIGH SEAS AND CRIMINAL CASES It is a longstanding general rule of international law that a ship on the high seas is subject to the jurisdiction of the country’s flag that the ship flies.136 Article 126. Id. 127. See Mas & Sons Jardiniers, Ltd. v. Fla. W. Int’l Airways, Inc., 177 So. 3d 305, 306 (Fla. Dist. Ct. App. 2015). 128. Id. 129. Montreal Convention, supra note 87, at art. 31(2) (“In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage of cargo have been placed at his or her disposal.”). 130. Id. at art. 31(3) (“Every complaint must be made in writing and given or dispatched within the times aforesaid.”). 131. See Mas & Sons Jardiniers, 177 So. 3d at 307. 132. Id. 133. Id. 134. Id. 135. Id. 136. Robert C.F. Reuland, Note, Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction, 22 VAND. J. TRANSNAT’L L. 1161, 1164 (1989) (“Ships on the high seas are, as a general rule, subject to the exclusive jurisdiction and authority of the state whose flag they lawfully fly. This principle of exclusivity of flag-state

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6 of the Geneva Convention on the High Seas codified the flag-state rule in international treaty law.137 Exceptions to the flag-state rule exist under international law, but exist either through customary international law or conventional law.138 One of the exceptions to the flag-state rule is found in Florida’s special maritime criminal jurisdiction statute.139 This statute extends to encompass criminal acts that take place on cruise ships in cases where over half of the revenue passengers originally embark and finally disembark in the state of Florida.140 The limits of Florida’s maritime criminal jurisdiction were tested in the case of State v. Stepansky.141 The facts of Stepanksy involved allegations of a United States citizen that allegedly committed a burglary and attempted sexual battery of a minor on a cruise ship (the minor was also a United States citizen).142 At the time of the alleged incidents, the cruise ship was approximately 100 nautical miles off the coast of Florida.143 The cruise ship was registered in Liberia.144 No other state or foreign nation sought prosecutions of the alleged crimes in question.145 In examining whether the state of Florida could validly exert extraterritorial jurisdiction through the special maritime criminal jurisdiction statute, the Florida Supreme Court held that federal courts do not have exclusive federal jurisdiction to preclude a state from exercising jurisdiction to crimes committed on the high seas.146 The court also held that a state may validly exercise criminal jurisdiction under the “effects doctrine”147 so long as the exercise of jurisdiction by the state does not conflict with federal law.148 The Stepansky court specifically noted that exercise of jurisdiction pursuant to the special maritime criminal jurisdiction

jurisdiction is a pillar of the international law of the sea and is firmly rooted in the axioms of state equality and the freedom of the high seas.”). 137. See Geneva Convention on the High Seas, Apr. 29, 1958, art. VI, 13 U.S.T. 2313, 2315, 450 U.N.T.S. 82, 86, http://www.gc.noaa.gov/documents/8_1_1958_high_seas.pdf [hereinafter “Geneva Convention on the High Seas”]. 138. See Reuland, supra note 136, at 1167. 139. See FLA. STAT. ANN. § 910.006(3) (West, Westlaw through the 2017 1st Reg. Sess. and Spec. ‘‘A’’ Sess. of the 25th Leg.). 140. See § 910.006(3)(d) (“The act or omission occurs during a voyage on which over half of the revenue passengers on board the ship originally embarked and plan to finally disembark in this state, without regard to intermediate stopovers.”). 141. See State v. Stepansky, 761 So. 2d 1027, 1029 (Fla. 2000). 142. Id. 143. Id. 144. Id. 145. Id. at 1029-30. 146. Id. at 1034. 147. See Roger P. Alford, The Extraterritorial Application of Antitrust Laws: The United States and European Community Approaches, 33 VA. J. INT’L L. 1, 4 (1992) (“[T]he effects doctrine holds that a state can assert jurisdiction over conduct outside its borders where such conduct has the intended effect of causing a substantial adverse impact within the state’s territory.”). 148. See Stepansky, 761 So. 2d at 1035.

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statute could only occur in situations when neither the federal government nor any foreign country where the cruise ship was registered assumed jurisdiction.149 One of the defendant’s arguments on appeal was that the state of Florida could not assert jurisdiction over the incidents in the matter due to the “flag-state” rule of the Geneva Convention on the High Seas.150 In response to this argument, the Stepansky court noted the distinction between self-executing and non-selfexecuting treaties,151 stating that the Geneva Convention on the High Seas is a nonself-executing treaty that criminal defendants cannot assert in domestic court.152 Therefore, Stepansky stands for the proposition that in future cases involving Florida’s special maritime criminal jurisdiction statute, the “flag-state rule” of the Geneva Convention on the High Seas cannot (absent congressional action transforming the treaty into a self-executing one) defeat the exercise of state jurisdiction in cases involving certain crimes on cruise ships.153 Principles of international law have also been found not to constitute an adequate defense to criminal conduct in at least two other cases in Florida. In Linnehan v. State, the appellants were arrested and “convicted of criminal mischief, culpable negligence, resisting arrest without violence, trespass, and unlawful assembly.”154 The appellants contended the trial court erred in excluding evidence that the actions were committed due to “necessity,” in that the actions were necessary to prevent the use of nuclear weapons by the United States in violation of international law.155 The Florida District Court of Appeal in Linnehan upheld the trial court’s ruling on the “necessity” defense, noting that the elements of other adequate means or a direct causal relationship between the action taken and the avoidance harmed could not have been met by the appellants.156 In the other case, the appellants in Yoos v. State “were arrested and charged with criminal trespass on Kennedy Space Center property.”157 The appellants contended they had a right to trespass and protest under international law to prevent the commission of a war crime or crimes against humanity.158 The Florida District Court of Appeal held that Florida criminal law is not superseded by international law and that “international law does not provide a valid legal defense to a violation of the criminal laws” of Florida.159

149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159.

Id. at 1034-35. Id. at 1032. State v. Stepansky, 761 So. 2d 1027, 1032 (Fla. 2000). Id. Id. at 1033. Linnehan v. State, 454 So. 2d 625 (Fla. Dist. Ct. App. 1984). Id. Id. at 625-26. Yoos v. State, 522 So. 2d 898, 899 (Fla. Dist. Ct. App. 1988). Id. Id.

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VI. HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CRIMINAL ABDUCTION International child abduction, defined as the wrongful removal of a child from a home country,160 is a substantial international concern.161 The Hague Convention on the Civil Aspects of International Criminal Abduction, which was written in 1980,162 seeks to address the familial concerns that occur when children are wrongfully removed or wrongfully retained from one’s custody.163 The 160. See Wigley v. Hares, 82 So. 3d 932, 935 (Fla. Dist. Ct. App. 2011). 161. Noah L. Browne, Note, Relevance and Fairness: Protecting the Rights of Domestic-Violence Victims and Left-Behind Fathers under the Hague Convention on International Child Abduction, 60 DUKE L.J. 1193, 1194 (2011) (“The problem of international parental kidnapping is particularly acute for the United States. More children are abducted into or out of the United States than any other party to the Hague Convention on the Civil Aspects of International Child Abduction (Convention), the international treaty that governs child abductions between contracting states. In 2009, 1,194 children were abducted from the United States, and 486 children were abducted into the United States from abroad. It is thus unsurprising that cases of international parental kidnapping frequently seize headlines.”). 162. See Hague Convention on the Civil Aspects of International Criminal Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 98, https://www.hcch.net/en/instruments/conventions/fulltext/?cid=24. 163. See Wigley, 82 So. 3d at 935. There is a vast legal scholarship analyzing the Hague Convention on the Civil Aspects of International Criminal Abduction. Law review articles include: Hannah Loo, Comment, In the Child’s Best Interests: Examining International Child Abduction, Adoption, and Asylum, 17 CHI. J. INT’L L. 609 (2017); Breanna Atwood, Addressing the Problem of Implementing the Hague Abduction Convention on the Civil Aspects of International Child Abduction Between the U.S. and Mexico, 4 PENN. ST. J.L. & INT’L AFF. 790 (2016); Ann L. Estin, Protecting Child Welfare in Abduction and Asylum Proceedings, 41 N.C. J. INT’L L. 793 (2016); 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. 691 (2016); Barbara Stark, Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away, 41 N.C. J. INT’L L. 761 (2016); Paula Shulman, Note, Brazil’s Legacy of International Parental Child Abduction: Mediation under the Hague Abduction Convention as a Solution, 16 CARDOZO J. CONFLICT RESOL. 237 (2014); Antoinette A. Newberry Wood, Note, Hey Uncle Sam! Maybe It’s Time to Stop Condoning Child Abductions to Mexico, 42 GA. J. INT’L & COMP. L. 217 (2013); Caitlin M. Bannon, Note, The Hague Convention on the Civil Aspects of International Child Abduction: The Need for Mechanisms to Address Noncompliance, 31 B.C. THIRD WORLD L.J. 129 (2011); Linda D. Elrod, “Please Let Me Stay”: Hearing the Voice of the Child in Hague Abduction Cases, 63 OKLA. L. REV. 663 (2011); Robin S. Lee, Note, Bringing Our Kids Home: International Parental Child Abduction & Japan’s Refusal to Return Our Children, 17 CARDOZO J.L. & GENDER 109 (2010); Amanda M. Waide, Note, To Comply or Not to Comply? Brazil’s Relationship with the Hague Convention on the Civil Aspects of International Child Abduction, 39 GA. J. INT’L & COMP. L. 271 (2010); Tai Vivatvaraphol, Note, Back to Basics: Determining a Child’s Habitual Residence in International Child Abduction Cases Under the Hague Convention, 77 FORDHAM L. REV. 3325 (2009); Timothy L. Arcaro, Creating a Legal Society in the Western Hemisphere to Support the Hague Convention on Civil Aspects of International Child Abduction, 40 U. MIAMI INTER-AM. L. REV. 109 (2008); Elizabeth Cunha, Note, The Potential Importance of Incorporating Online Dispute Resolution into a Universal Mediation Model for International Child Abduction Cases, 24 CONN. J. INT’L L. 155 (2008); Merle H. Weiner, Intolerable Situations and Counsel for Children: Following Switzerland’s Example in Hague Abduction Cases, 58 AM. U. L. REV. 335 (2008); Jennifer Zawid, Practical and Ethical Implications of Mediating International Child Abduction Cases: A New Frontier for Mediators, 40 U. MIAMI INTER-AM. L. REV. 1 (2008); Smita Aiyar, Comment, International Child Abductions Involving Non-Hague Convention States: The Need for a Uniform

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Convention applies in situations involving alleged child abductions of minors under the age of sixteen years old164 and only governs in situations that involve two contracting nations to the Convention.165 The primary object of the Convention, as outlined in Article 1, is to secure the return of children who are wrongfully removed or wrongfully retained from one’s custody.166 If a child is wrongfully removed from one’s custody, that individual has the right to file a petition in court to seek the return of the child

Approach, 21 EMORY INT’L L. REV. 277 (2007); Michael R. Walsh & Susan W. Savard, International Child Abduction and the Hague Convention, 6 BARRY L. REV. 29 (2006); Melissa S. Wills, Interpreting the Hague Convention on International Child Abduction: Why American Courts Needs to Reconcile the Rights of Non-Custodial Parents, the Best Interests of Abducted Children, and the Underlying Objectives of the Hague Convention, 25 REV. LITIG. 423 (2006); Anastacia M. Greene, Seen and Not Heard?: Children’s Objections under the Hague Convention on International Child Abduction, 13 U. MIAMI INT’L & COMP. L. REV. 105 (2005); Barbara E. Lubin, Note, International Parental Child Abduction: Conceptualizing New Remedies through Application of the Hague Convention, 4 WASH. U. GLOBAL STUD. L. REV. 415 (2005); Lexi Maxwell, Comment, The Disparity in Treatment of International Custody Disputes in American Courts: A Post-September 11th Analysis, 17 PACE INT’L L. REV. 105 (2005); Deborah M. Zawadzki, Note, The Role of Courts in Preventing International Child Abduction, 13 CARDOZO J. INT’L & COMP. L. 353 (2005); Laura McCue, Note, Left Behind: The Failure of the United States to Fight for the Return of Victims of International Child Abduction, 28 SUFFOLK TRANSNAT’L L. REV. 85 (2004); Ericka A SchnitzerReese, International Child Abduction to Non-Hague Convention Countries: The Need for an International Family Court, 2 NW. J. INT’L HUM. RTS. 1 (2004); Marguerite C. Walter, Note, Toward the Recognition and Enforcement of Decisions concerning Transnational Parent-Child Contact, 79 N.Y.U. L. REV. 2381 (2004); Laura C. Clemens, Note, International Parent Child Abduction: Time for the United States to Take a Stand, 30 SYRACUSE J. INT’L L. & COM. 151 (2003); Linda Silberman, Patching Up the Abduction Convention: A Call for a New International Protocol and a Suggestion for Amendments to ICARA, 38 TEX. INT’L L.J. 41 (2003); Marisa Leto, Note, Whose Best Interest? International Child Abduction under the Hague Convention, 3 CHI. J. INT’L L. 247 (2002); Merle H. Weiner, Navigating the Road between Uniformity and Progress: The Need for Purposive Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 33 COLUM. HUM. RTS. L. REV. 275 (2002); Martha Bailey, Canada’s Implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, 33 N.Y.U. J. INT’L L. & POL. 17 (2000); Carol S. Bruch, Religious Law, Secular Practices, and Children’s Human Rights in Child Abduction Cases under the Hague Child Abduction Convention, 33 N.Y.U. J. INT’L L. & POL. 49 (2000); Dagmar Coester-Waltjen, The Future of the Hague Child Abduction Convention: The Rise of Domestic and International Tensions – The European Perspective, 33 N.Y.U. J. INT’L L. & POL. 59 (2000); Thomas A. Johnson, The Hague Child Abduction Convention: Diminishing Returns and Little to Celebrate for Americans, 33 N.Y.U. J. INT’L L. & POL. 125 (2000); Kurt Siehr, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: Failures and Successes in German Practice, 33 N.Y.U. J. INT’L L. & POL. 207 (2000); Linda Silberman, The Hague Child Abduction Convention Turns Twenty: Gender Politics and Other Issues, 33 N.Y.U. J. INT’L L. & POL. 221 (2000); Karin Wolfe, Note, A Tale of Two States: Successes and Failures of the 1980 Hague Convention on the Civil Aspects of International Child Abduction in the United States and Germany, 33 N.Y.U. J. INT’L L. & POL. 285 (2000). 164. Hague Convention on the Civil Aspects of International Criminal Abduction, supra note 162, at art. 4 (“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”). 165. Id. at art. 2. 166. Id. at art. 1(a).

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within one year of the wrongful removal.167 The default rule states the child must be returned to the petitioner unless the child is already settled in his or her new environment.168 A child must not be returned if the return would expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation.169 The United States Congress enacted the International Child Abduction Remedies Act in 1988 to give effect to the provisions of the Convention in American courts.170 Florida courts have applied the Hague Convention on the Civil Aspects of International Criminal Abduction as well as the International Child Abduction Remedies Act.171 One case that comprehensively examined legal standards relating to the Convention and the International Child Abduction Remedies Act is the case of Wigley v. Hares.172 In Wigley, a resident of St. Kitts appealed a trial court’s denial of the return of his child to St. Kitts pursuant to the Hague Convention on the Civil Aspects of International Criminal Abduction.173 The court examined both the “well-settled” exception and “grave risk of harm” exception to the return provision of the Convention.174 The “well settled” defense is applicable to bar the return of a child in cases where the child has become “well-settled” in his or her environment.175 The “grave risk of harm” exception to the return provision will apply if a court finds that there is a “grave risk of physical harm to the children, psychological harm to the children, or if return would otherwise place the children in an intolerable situation.”176 On appeal, the Wigley court found the evidence presented before the trial court was insufficient for the mother to establish a “well-settled” defense.177 In particular, the Wigley court observed that the child never attended school and was purposely kept out of religious, community, and sports activities to avoid detection

167. Id. at art. 12 (“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”). 168. Id. 169. Id. at art. 13(b). 170. 22 U.S.C. § 9001 (2012). 171. See 26 FLA. JUR. 2D FAMILY LAW § 1315 (2017). 172. See Wigley v. Hares, 82 So. 3d 932, 935 (Fla. Dist. Ct. App. 2011). 173. Id. 174. Id. at 941-46. 175. See Van Driessche v. Ohio-Esezeoboh, 466 F.Supp.2d 828, 847-848 (S.D. Tex. 2006) (“In determining whether a child is well-settled, courts consider the following factors: (1) the age of the child; (2) the stability of the child’s new residence; (3) whether the child attends school or daycare consistently; (4) whether the child attends church regularly; (5) the stability of the mother’s employment; and (6) whether the child has friends and relatives in the area ….. Additionally, for the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child’s living environment and any active measures taken to conceal a child.”). 176. See Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1364 (M.D. Fla. 2002). 177. See Wigley, 82 So. 3d at 942.

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by the father.178 The court concluded that “[t]he child has not made any of the connections that a child would normally develop in the community.”179 Despite the Wigley court’s finding that the mother did not present sufficient evidence before the trial court to adequately establish a “well-settled” defense, it found that the mother presented substantial evidence to support the trial court’s finding that the return of the child to St. Kitts would present a grave risk of physical harm to the child.180 It was also noted that the trial court heard evidence that the father had allegedly beaten the mother while pregnant, threatened both the mother and child with a gun on one occasion, and had made a threat to kill the child on another occasion.181 Based upon that record, the Wigley court held that the trial court did not err in finding that “clear and convincing evidence” existed to support a finding of a grave risk of harm to the child.182 VII. VIENNA CONVENTION ON CONSULAR RELATIONS Another treaty that many state court judges should be familiar with is the Vienna Convention on Consular Relations.183 The Vienna Convention on Consular 178. Id. 179. Id. 180. Id. at 946. 181. Id. at 944-45. 182. Wigley v. Hares, 82 So. 3d 932, 946 (Fla. Dist. Ct. App. 2011). 183. There is a rich academic legal literature addressing legal issues relating to the Vienna Convention on Consular Relations. Law review articles include: Alberto R. Gonzales & Amy L. Moore, No Right at All: Putting Consular Notification in its Rightful Place after Medellin, 66 FLA. L. REV. 685 (2014); Nancy Alexander, Comment, Saved by the States? The Vienna Convention on Consular Relations, Federal Government Shortcomings, and Oregon’s Rescue, 15 LEWIS & CLARK L. REV. 819 (2011); Cindy G. Buys, Scott D. Pollock & Ioana N. Pellicer, Do unto Others: The Importance of Better Compliance with Consular Notification Rights, 21 DUKE J. COMP. & INT’L L. 461 (2011); Anthony S. Winer, An Escape Route from the Medellín Maze, 25 CONN. J. INT’L L. 331 (2010); Yury A. Kolesnikov, Comment, Meddling with the Vienna Convention on Consular Relations: The Dilemma and Proposed Statutory Solutions, 40 MCGEORGE L. REV. 179 (2009); Steven G. Stransky, Sanchez-Llamas v. Oregon: A Missed Opportunity in Treaty Interpretation, 20 ST. THOMAS L. REV. 25 (2007); Anthony Jones, Comment, Jogi v. Voges: Has the Seventh Circuit Opened the Floodgates to Vienna Convention Litigation in U.S. Courts?, 15 MINN. J. INT’L L. 425 (2006); Elizabeth Samson, Revisiting Miranda after Avena: The Implications of Mexico v. United States of America for the Implementation of the Vienna Convention on Consular Relations in the United States, 29 FORDHAM INT’L L.J. 1068 (2006); Mani Sheik, Comment, From Breard to Medellin: Supreme Court Inaction or ICJ Activism in the Field of International Law?, 94 CAL. L. REV. 531 (2006); Bruno Simma & Carsten Hoppe, From LaGrand and Avena to Medellin—A Rocky Road toward Implementation, 14 TUL. J. INT’L & COMP. L. 7 (2005); Adrienne M. Tranel, Comment, The Ruling of the International Court of Justice in Avena and Other Mexican Nationals: Enforcing the Right to Consular Assistance in U.S. Jurisprudence, 20 AM. U. INT’L L. REV. 403 (2005); Valerie Epps, Violations of the Vienna Convention on Consular Relations: Time for Remedies, 11 WILLAMETTE J. INT’L L. & DIS. RES. 1 (2004); Emily D. Harrill, Note, Exorcising the Ghost: Finding a Right and a Remedy in Article 36 of the Vienna Convention on Consular Relations, 55 S.C. L. REV. 569 (2004); Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: The International Court of Justice in Mexico v. United States (Avena) Speaks Emphatically to the Supreme Court of the United States about the Fundamental Nature of Right to Consul, 36 GEO. J. INT’L L. 1 (2004); Sarah M. Ray, Comment, Domesticating International Obligations: How to Ensure U.S. Compliance with the Vienna Convention on Consular Relations, 91 CAL. L. REV. 1729 (2003);

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Relations, which was created in 1963 and made effective in 1967, codifies consular relations between nations in the world.184 One of the key provisions of the Vienna Convention on Consular Relations can be found in Article 36, an article which allows consular officials to visit nationals of their country that are in prison, custody, or detention in another nation which is also a party to the Convention.185 Crucially, the Convention also allows consular officials to correspond and arrange for legal representation of its nationals.186 A criminal defendant in a Florida case sought to assert the protections of the Vienna Convention on Consular Relations in the case of Rodriguez v. State.187 In Rodriguez, a Mexican national was convicted in Florida of DUI manslaughter, two counts of DUI with injury, and one count of DUI with property damage following an accident involving a fatality and the injuries of several other individuals.188 The defendant sought a motion to suppress all of the evidence obtained by the police during the search of his vehicle and person following the incident, and contended that he was not advised of his right to seek consular assistance from the Mexican consulate, nor was the Mexican consulate notified of his arrest and detention.189 In holding that the trial court did not err in denying the defendant’s motion to suppress, the court noted that as to the purported Vienna Convention on Consular Relations violations, “it is clear that treaties are between countries, and individual citizens have no standing to challenge violations of such treaties in the absence of the protest of the sovereign involved.”190 Along with the Vienna Convention, the interests of nationals of separate nations also arise through application of the Hague Service Convention.

Anthony M. Bishop, The Unenforceable Rights to Consular Notification and Access in the United States: What’s Changed Since the LaGrand Case?, 25 HOUS. J. INT’L L. 1 (2002); Robert Iraola, Federal Criminal Prosecutions and the Right to Consular Notification under Article 36 of the Vienna Convention, 105 W. VA. L. REV. 179 (2002); Daniel J. Lehman, The Federal Republic of German v. The United States of America: The Individual Right of Consular Access, 20 LAW & INEQ. 313 (2002); Erik G. Luna & Douglas J. Sylvester, Beyond Breard, 17 BERKELEY J. INT’L L. 147 (1999); Molora Vadnais, Comment, A Diplomatic Morass: An Argument against Judicial Involvement in Article 36 of the Vienna Convention on Consular Relations, 47 UCLA L. REV. 307 (1999); Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 MICH. J. INT’L L. 565 (1997). 184. See Vienna Convention on Consular Relations, April 24, 1963, TIAS 68280, 21 U.S.T. 77, http://www.fuech.eu/pdf/viennaconvention.pdf. 185. Id. at art. 36(c). 186. Id. 187. See Rodriguez v. State, 837 So. 2d 478, 480 (Fla. Dist. Ct. App. 2002). 188. Id. 189. Id. 190. Id. at 481.

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VIII. HAGUE CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS (“HAGUE SERVICE CONVENTION”) With an increasing number of disputes between parties of separate nations,191 state court judges are more often encountering legal issues related to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”).192 The Hague Service Convention applies in cases where judicial or extrajudicial documents are served from a party in one country that is a member of the Convention to a party in another country that is a member of the Convention.193 The Hague Service Convention is a self-executing treaty, and when it applies, it preempts any inconsistent service of process provisions of state law involving service on a party abroad.194 The general method of obtaining service on a party abroad is to serve the documents through the designated Central Authority of the country in which the party abroad is located.195 However, in the event a party or individual’s whereabouts are unknown, the Convention does not apply.196 In the past three years, at least three Florida appellate courts have decided cases involving the Hague Service Convention. In Alvaro-Fernandez v. Mazoff, the plaintiff suffered personal injuries after an automobile accident involving a Colombian citizen driving another vehicle.197 The defendant asserted that the 191. See generally Marcus S. Quintanilla & Christopher A. Whytock, The New Multipolarity in Transnational Litigation: Foreign Courts, Foreign Judgments, and Foreign Law, 18 SW. J. INT’L L. 31 (2011) (discussing generally the increase in foreign country judgments). 192. Law review articles on legal issues relating to the Hague Service Convention include: Eric Porterfield, Too Much Process, Not Enough Service: International Service of Process under the Hague Service Convention, 86 TEMP. L. REV. 331 (2014); Charles B. Campbell, No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico under the Hague Service Convention, 19 MINN. J. INT’L L. 107 (2010); Michael O. Eshleman & Stephen A. Wolaver, Prego Signor Postino Using the Mail to Avoid the Hague Service Convention’s Central Authorities, 12 OR. REV. INT’L L. 283 (2010); Richard J. Hawkins, Comment, Dysfunctional Equivalence: The New Approach to Defining “Postal Channels” under the Hague Service Convention, 55 UCLA L. REV. 205 (2007); Emily F. Johnson, Note, Privatizing the Duties of the Central Authority: Should International Service of Process Be Up for Bid?, 37 GEO. WASH. INT’L L. REV. 769 (2005); Fang Shen, Comment, Are You Prepared for the Legal Maze? How to Serve Legal Documents, Obtain Evidence, and Enforce Judgments in China, 72 UMKC L. REV. 215 (2003); Yvonne A. Tamayo, Catch Me if You Can: Serving United States Process on an Elusive Defendant Abroad, 17 HARV. J.L. & TECH. 211 (2003); Phillip A. Buhler, Transnational Service of Process and Discovery in Federal Court Proceedings: An Overview, 27 TUL. MAR. L.J. 1 (2002). 193. See Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 61, 658 U.N.T.S. 163, https://www.hcch.net/en/instruments/conventions/full-text/?cid=17 [hereinafter “Hague Service Convention”]. 194. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (“By virtue of the Supremacy Clause, U.S. Const., Art. VI, the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies.”). 195. See Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 13 (Fla. Dist. Ct. App. 2014). 196. See BP Prods. N. Am., Inc. v. Dagra, 236 F.R.D. 270, 271 (E.D. Va. 2006) (“The Hague Convention does not apply in cases where the address of the foreign party to be served is unknown.”). 197. See Alvarado-Fernandez, 151 So. 3d at 11.

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plaintiff did not strictly comply with the Hague Service Convention, as well as the Florida substituted service statutes, and sought dismissal of the case.198 The trial court denied the defendant’s motion to dismiss.199 The court in Alvaro-Fernandez noted that “Colombia was not a party to the Hague Convention during the time in question” (although it was a party at the time of the appeal).200 Thus, on the issue of proper service in Colombia, Florida’s rules of service of process applied.201 In Florida, substituted service is permitted202 in the event a defendant attempts to conceal their location.203 A plaintiff has to demonstrate that he or she utilized “due diligence” to attempt to locate the defendant for substitute service to be permitted.204 The Florida District Court of Appeal in Mazoff found that the plaintiff utilized due diligence in attempting to identify the location of the defendant when the plaintiff engaged in the following actions: serving the defendant through the address provided in the police report, inquired further with the rental car company (the defendant drove a rental car on the date of the incident in question), hiring two separate attorneys to try to identify and locate the defendant, and used social media to try to find the defendant.205 Thus, the Mazoff court held that the trial court did not err in denying the defendant’s motion to dismiss.206 The separate question of whether the Hague Service Convention allows for service of a defendant via postal mail arose in the Portalp International SAS v. Zuloaga case.207 The underlying facts of Portalp International involved an alleged breach of an employment agreement.208 The plaintiff served the employer’s majority shareholder in France via postal mail service.209 The defendant argued

198. Id. 199. Id. at 12. 200. Id. at 13. 201. Id. at 15. 202. Id. at 16. 203. See Fernandez v. Chamberlain, 201 So. 2d 781, 785 (Fla. Dist. Ct. App. 1967) (“With a society as mobile as ours, when a non-resident motor vehicle owner or operator, or a resident owner or operator who subsequently becomes a non-resident or conceals his whereabouts, accepts the privilege of the public highways of the state and is involved in an accident, he has a duty not to conceal his whereabouts and to let his whereabouts be known so that any one [sic] involved in such accident and sustaining injury or damage may come into court and seek redress. If such an owner or operator conceals his whereabouts and makes it impossible for an aggrieved party to serve him with notice by registered mail as provided by the statute and such aggrieved party shows that he has used due diligence in endeavoring to make service, this will not prevent the Court from obtaining jurisdiction over such owner or operator.”). 204. Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 16 (Fla. Dist. Ct. App. 2014). 205. Id. at 18 (“Under the facts of this case, it is clear that Plaintiff made conscientious efforts appropriate to the circumstances to obtain service on a defendant who could be deemed to be actively avoiding personal service. As such, the requirement that Plaintiff file a return receipt is excusable.”) (internal citation omitted). 206. Id. at 19. 207. Portalp Int’l SAS v. Zuloaga, 198 So. 3d 669, 672 (Fla. Dist. Ct. App. 2015). 208. Id. at 671. 209. Id.

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that service by mail did not comply with the requirements of the Hague Service Convention.210 In analyzing whether service by mail was permitted under the Hague Service Convention, the Portalp International court noted that Article 10(a) of the Convention states that, assuming the country of destination does not object the Convention, the Convention does not impinge upon “the freedom to send judicial documents, by postal channels, directly to persons abroad.”211 Aligning with the side of existing judicial authority—which has held that the Hague Service Convention allows service by mail—the Portalp International court stated that “service of process by mail is consistent with the intent and expectations of the signatories;” thus, the court upheld the trial court’s motion to quash service of process.212 The validity of service of process was also an issue in the case of Bevilacqua v. U.S. Bank, N.A.213 The underlying facts of the Bevilacqua case involved a mortgagee obtaining a default judgment against a mortgagor domiciled in Italy in a Florida foreclosure action.214 The mortgagee obtained service on the mortgagor pursuant to Article 140 of the Italian Code of Civil Procedure.215 The mortgagor argued he did not have actual notice of the proceedings.216 The mortgagor also contended that the service of process did not comply with Italian law as the mortgagee allegedly did not fully comply with Articles 138 and 139 of the Italian Code of Civil Procedure before complying with Article 140.217 The Bevilacqua court observed that the return of service and certificate of service from the central authority in Italy constituted prima facie evidence that effective service of process under the Hague Service Convention was effectuated.218 The court also rejected the mortgagor’s actual notice argument, remarking that he had actual knowledge of the lawsuit as he previously had obtained an order vacating the default final judgment in the underlying case.219 As a result, it held that the trial court did not commit any error in denying the motion to quash the international service of process.220 IX. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Courts throughout the United States221 have also encountered questions on the application of the International Covenant on Civil and Political Rights 210. Id. 211. Id. at 672 (quoting Hague Service Convention, supra note 193, at art. 10(a)). 212. Id. at 674-75. 213. See Bevilacqua v. U.S. Bank, N.A., 194 So. 3d 461, 462 (Fla. Dist. Ct. App. 2016). 214. Id. 215. Id. at 463. 216. Id. 217. Id. 218. Id. at 464-65. 219. Id. at 465. 220. Id. 221. See generally, e.g., Lihter v. Pierce & Assocs., No. 16-C-50080, 2016 WL 4771370 (N.D. Ill. Sept. 13, 2016); Shibeshi v. United States, 920 F. Supp. 2d 105 (D.D.C. 2013); Baszak v. FBI,

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(“ICCPR”).222 The ICCPR223 is an international civil rights treaty generally intended to ensure individuals are protected against arbitrary governmental action.224 Similar to many other treaties, some courts have found the provisions of the ICCPR to be non-self-executing.225 The ICCPR has been invoked in several Florida cases. In Toca v. State, a pro se litigant sought excusal from the requirement of signing court filings and pleadings on the basis of religious belief.226 The individual contended that the requirement of signing filings and pleadings contravened his religious belief against the taking of oaths.227 The Toca court responded by stating that the bare signature of a pro se litigant on court filings and pleadings does not amount to an oath, but serves as an authentication requirement.228 Further, the court held that the United States Constitution did not require the pro se litigant to be excused from the signature rule on court filings and pleadings.229 In support, the court cited the United States Supreme Court case of Employment Division v. Smith,230 which held that neutral, generally applicable regulations that only incidentally burden an exercise of religion are constitutional.231 The Toca court found that the signature requirement is a neutral, generally applicable requirement of all litigants, and it only incidentally burdens the freedom of exercise of religion.232 Thus, the Free Exercise

816 F. Supp. 2d 66 (D.D.C. 2011); Commonwealth v. Judge, 916 A.2d 511 (Pa. 2007); Chen v. Ashcroft, 85 Fed. App’x 700 (10th Cir. 2004); Naoum v. Att’y Gen. of U.S., 300 F. Supp. 2d 521 (N.D. Ohio 2004); United States v. Duarte-Acero, 208 F.3d 1282 (11th Cir. 2000). 222. See International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 99 U.N.T.S. 171, http://www.ohchr.org/EN/ProfessionalInterest/Pages/ CCPR.aspx [hereinafter “ICCPR”]. 223. For more information on the ICCPR, see generally Chrissy Fox, Comment, Implications of the United States’ Reservations and Non-Self-Executing Declaration to the ICCPR for Capital Offenders and Foreign Relations, 11 TUL. J. INT’L & COMP. L. 303 (2003); Christian A. Levesque, Comment, The International Covenant on Civil and Political Rights: A Primer for Raising a Defense Against the Juvenile Death Penalty in Federal Courts, 50 AM. U. L. REV. 755 (2001); Kristen D.A. Carpenter, The International Covenant on Civil and Political Rights: A Toothless Tiger?, 26 N.C. J. INT’L L. & COM. REG. 1 (2000). 224. Ronald B. Hurdle & Walter J. Champion, Jr., The Life and Times of Napoleon Beazley: The Effect (if Any) of the International Covenant on Civil and Political Rights on Texas’ 17 & Up Execution Standard, 28 T. MARSHALL L. REV. 1, 4 (2002). 225. See e.g., United States v. Thetford, No. 3:11-CR-30159-RAL, 2014 WL 7409515, at *15 (D.S.D. Dec. 31, 2014) (“These declarations and reservations clearly expresses political branch intent that the ICCPR is not self-executing, and does not, on its own, create individual rights enforceable in federal courts beyond those granted by federal law or the United States Constitution.”); Igartúa-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (“[T]he International Covenant on Civil and Political Rights, is a ratified treaty but was submitted and ratified on the express condition that it would be ‘not self-executing.’”) (quoting 138 CONG. REC. S4781, S4784 (daily ed. Apr. 2, 1992)). 226. Toca v. State, 834 So. 2d 204, 205 (Fla. Dist. Ct. App. 2002). 227. Id. 228. Id. at 207. 229. Id. at 208. 230. See Emp’t Div. v. Smith, 494 U.S. 872, 878 (1990). 231. See Toca, 834 So. 2d at 208. 232. Id.

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Clause of the United States Constitution did not exempt the pro se litigant from the signature requirement.233 However, in addition to the Free Exercise argument regarding the signature requirement, the pro se litigant contended that the signature requirement violated Articles 14 and 18 of the ICCPR.234 Article 14 requires equality of individuals before courts and tribunals,235 and Article 18 provides a right of “freedom of thought, conscience and religion.”236 The Toca court declined to interpret the provisions since it held the ICCPR did not create a private cause of action.237 Furthermore, the court observed that even if the ICCPR creates a private cause of action, the protections afforded by Articles 14 and 18 would not extend any further than the protections under the Free Exercise Clause of the United States Constitution.238 The ICCPR has been invoked in other Florida cases as well, such as the case of Graham v. State before the Florida District Court of Appeal.239 Graham, which was ultimately decided by the United States Supreme Court in 2010, stands for the proposition that a juvenile cannot be sentenced to life imprisonment without the possibility of parole.240 One of the arguments brought by the appellant was that the imposition of a life sentence for a juvenile without the possibility of parole is per se invalid under the ICCPR.241 The Florida District Court of Appeal noted that such a sentence is “frowned upon by the international community,” but that although “the weight given the international community is persuasive, it cannot be said to counter the individual rights of the state to impose its chosen sentencing scheme if that scheme is not held to be otherwise unconstitutional.”242 Ultimately the Florida

233. Id. 234. Id. at 210. 235. ICCPR, supra note 222, at art. 14(1) (“All persons shall be equal before the courts and tribunals.”). 236. Id. at art. 18(1). Article 18(1)–(4) states the following: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Id. 237. 238. 239. 240. 241. 242.

Toca v. State, 834 So. 2d 204, 211 (Fla. Dist. Ct. App. 2002). Id. at 210-11. See Graham v. State, 982 So. 2d 43, 46 (Fla. Dist. Ct. App. 2008). See Graham v. Florida, 560 U.S. 48, 78-79 (2010). Graham, 982 So. 2d at 53. Id. at 51.

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District Court of Appeal acknowledged the ICCPR arguments, but stated they were outweighed by domestic considerations.243 CONCLUSION As the foregoing cases indicate, state court judges, on occasion, must address principles of international law in the cases and controversies they adjudicate. Regardless of jurisdiction, judges should be familiar with principles such as the act of state doctrine and foreign sovereign immunity, as well as international treaties such as the Vienna Convention on Consular Relations, the Hague Service Convention, and the International Covenant on Civil and Political Rights. Even judges in rural Iowa need to have familiarity with international law.244 In truth, international law remains a somewhat amorphous area of law to many attorneys and judges in the United States,245 but there are a number of possible ways to increase its understanding among the legal community. Law schools could make an introductory international law course part of the mandatory law school curriculum,246 or perhaps the Uniform Bar Examination (UBE) could add international law as one of its tested subjects.247 Yet another option could be state-required continuing legal education (CLE) hours in international law for a given time frame, similar to ethics and professional responsibility requirements in many states.248 Amidst all of these possibilities, one thing remains fairly certain: with today’s global, interconnected world, cases involving interpretation and application of international law will continue to be heard in Florida and other states long into the future. Therefore, all attorneys and judges in the United States need to have at least a working knowledge of the major principles of international law.

243. Id. at 53-54. 244. See In re Estate of Graf Droste Zu Vischering, 782 N.W.2d 141, 146 (Iowa 2010) (holding that the Hague Service Convention applied in case involving service of process on the sole beneficiary of an estate and that the Convention preempts any inconsistent service methods allowed under Iowa state law). The case on appeal was originally heard in the District Court of Mitchell County, Iowa. Mitchell County is a rural, primarily agrarian county (and is adjacent to the county (Floyd County) where the author was born and raised). 245. See Harold G. Maier, The Role of Experts in Proving International Human Rights Law in Domestic Courts: A Commentary, 25 GA. J. INT’L & COMP. L. 205 (1995/1996) (“Unfortunately, most judges in the United States (and, one suspects, in many other legal systems as well) have, at the most, a superficial familiarity with the theory of law creation in the international legal system and only the vaguest notion of how the system functions. Furthermore, many judges share the view of the lay public—and of many lawyers—that no true ‘law’ can exist absent some sort of central enforcement authority.”). 246. See Bridget McCormack, Teaching Professionalism, 75 TENN. L. REV. 251, 252 (2008) (“The traditional law school curriculum focuses primarily on one set of skills lawyers need to succeed, which is comprised exclusively of doctrinal analysis, synthesis, and effective argument.”). 247. See generally Dennis R. Honabach, To UBE or Not to UBE: Reconsidering the Uniform Bar Exam, 22 PROF. LAW. 43 (2014). 248. See generally Cheri A. Harris, MCLE: The Perils, Pitfalls, and Promise of Regulation, 40 VAL. U. L. REV. 359 (2006).