Opinio Juris

[O]ne question that interests me but is a little divorced from the terms of the arguments so far. I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply. They suggest that as a matter of international law, there's sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It's kind of a one-way rachet, we look at trends in one direction but we don't look to see if you suddenly have changed gears and go in the other direction. Could you just comment on that argument?... I just use[] that as an analogy to our evolving standards of decency cases which has been part of our Eighth Amendment jurisprudence, that sort of is a — one way direction in which these cases go. Do you think it's appropriate — are you aware of any case saying we can turn around and go in another direction?

International authorities have long agreed that nations that retain the death penalty must refrain from expanding the death penalty to crimes to which it currenlty does not apply--a principle that has been codified in a regional convention and reaffirmed by the jurisprudence of human rights bodies. There is an equally strong global consensus that nations should gradually narrow the categories of offenses for which the death penalty may be imposed.

A Greek court has been asked to draw the line between the natives of the Aegean Sea island of Lesbos and the world's gay women. Three islanders from Lesbos - home of the ancient poet Sappho, who praised love between women - have taken a gay rights group to court for using the word lesbian in its name. One of the plaintiffs said Wednesday that the name of the association, Homosexual and Lesbian Community of Greece, "insults the identity" of the people of Lesbos, who are also known as Lesbians. "My sister can't say she is a Lesbian," said Dimitris Lambrou. "Our geographical designation has been usurped by certain ladies who have no connection whatsoever with Lesbos," he said. The three plaintiffs are seeking to have the group barred from using "lesbian" in its name and filed a lawsuit on April 10.... The Homosexual and Lesbian Community of Greece could not be reached for comment.

The firearms death rate in the United States far surpasses that of other democratic nations. A 1997 study analyzing firearms deaths for children aged 14 or under in 26 industrialized countries found that 86 percent of all deaths occurred in the United States. The rate for firearms homicide alone was 16 times higher in the United States, while the firearms suicide rate was 11 times higher and the firearms unintentional death rate was nine times higher.

In 1995, the firearms death rate in the United States was 13.7 per 100,000. In comparison, the firearms death rates in countries that severely limit access to handguns were significantly lower. For example, in 1995, Canada had a firearms death rate of 3.9 per 100,000; Australia had a rate of 2.9 per 100,000; and England and Wales had rates of 0.4 per 100,000. One of the most glaring distinctions between these countries and the United States is the significantly lower incidents of lethal violence caused by handguns.

Criminological research has established that the high rate of handgun homicides in the United *7 States is due, at least in part, to the high rate of handgun ownership in the United States. The rate of handgun ownership and the rate of handgun homicides in the United States, when compared to the same data from other countries, illustrate the strong correlation between the availability of handguns and the incidence of handgun homicides.... [T]he United States experiences about four times the level of handgun homicides per 100,000 people than Israel, Sweden, Canada, Australia, and Great Britain combined.

The use of handguns in suicide in no way proves that an alternative method would not be used if handguns were unavailable. In fact, the evidence is to the contrary. Japan, Hungary, and Scandinavia all have far more restrictive gun control than the United States, and yet they have suicide rates 2 to 3 times higher than the U.S. For example, the suicide rate in Hungary is 35.38 per 100,000, compared to only 12.06 per 100,000 in the United States.

The AAP Brief relies on a country-by-country comparison in arguing that the firearm related death rate in the United States was much higher in 1995 in the United States than in Canada, Australia, and England and Wales, all of which have restrictive gun control. AAP Brief at 25. But the data for gun deaths in the United States include guns used in self-defense, as in fending off an assault, robbery or rape, and higher homicide rates in the United States existed long before there was gun control in other countries….

Different societies have different confounding factors, such as crime-inducing drug addiction, single-parent families, promotion of violence in the media, and varying approaches to juvenile delinquency and schooling, all of which inevitably affect crime rates. Those confounding factors are best eliminated by looking at the effect of gun control on the same society, and as shown below, gun control typically results in an increase in overall crime rather than a reduction. Gun control is hardly supported if murders by switchblades increase as death by firearms declines.

The evidence from foreign jurisdictions leads to the same conclusion as the United States data. In general, comparison of “homicide and suicide mortality data for thirty-six nations (including the United States) for the period 1990-1995” to gunstock levels shows “no significant (at the 5% level) association between gun ownership and the total homicide rate.” Additionally, in a 2001 European study of 21 nations' data, “no significant correlations [of gunstock levels] with total suicide or homicide rates were found.”…

A 2007 study compared gun ownership and murder in every European nation on which the data could be found. Again, nations with more guns did not exhibit higher murder rates. Indeed, the tendency is generally the opposite: murder rates for the seven nations having 16,000+ guns average out to 1.2 per 100,000 population while the murder rates for the nine nations having just 5,000 or fewer guns is well over three times higher, at 4.4 per 100,000. These national comparisons suggest that the determinants of murder are factors such as basic socio-economic and cultural factors, and not the mere availability of guns. Leading gun control advocates have admitted that “Israel and Switzerland [have] rates of homicide [that] are low despite rates of home firearm ownership that are at least as high as those noted in the U.S.” To the same effect, within Canada, “England, America and Switzerland, [the areas] with the highest rates of gun ownership are in fact those with the lowest rates of violence.”

In the Petition for Writ of Certiorari, Petitioners represent that other nations have reached the same conclusion concerning handguns as they have. “[M]ost industrialized countries strictly control civilian access to handguns and allow the carrying of handguns for personal protection only under very restrictive conditions …” Petitioners repeat this assertion in their merits brief where they state: “Many cities, states, and nations regulate or ban handguns based on the unique dangers of those deadly weapons.” Contrary to this assertion, most foreign gun laws in democratic nations are not nearly as restrictive as those found in Washington D.C., where private individuals are burdened by an outright ban of all functional firearms in their homes.

Some of the earliest works on the subject of International Law were by fourteenth century Milanese scholar Giovanni da Legnano, whose work, De Bello, De Represealiis et de Duello was one of the first attempts to establish international rules for warfare. Legnano's treatise closely examined the individual right of self-defense as the basis of establishing a derivative right of a nation to engage in war. Legnano believed that, “self-defense proceeds from natural law, and not from positive law, civil or canon.” Self-defense was not an artificial construct of positive law, but instead was an inherent instinct. Legnano did not confine the natural right to merely protecting one's life. He explained that self-defense was proper not only in defense of life, but also in defense of one's property, and that deadly force to protect that property was justified if necessary. Further, the principle of self-defense allows a person to come to the aid of a relative or friend whose person or property is being attacked. Finally, Legnano noted that a victim is not required to use only the exact level of force that his assailant uses by posing the rhetorical affirmation: “suppose a strong and vigorous man strikes me with his fist, and I am a poor fellow who cannot stand up to him with the fist. May I defend myself with a sword?”

Following in the footsteps of Legnano was the sixteenth century Spanish scholar, Francisco de Victoria. Victoria wrote several works on the subject of the “just war” and his classroom at the University of Salamanca became known as “the cradle of international law.” Like Legnano, Victoria believed that the justification for war was necessarily predicated upon adopting the individual right of self-defense as its derivative source. Thus, Victoria's first proposition articulated the individual right of self-defense: Any one, even a private person, can accept and wage a defensive war. This is shown by the fact that force may be repelled by force. Hence, any one can make this kind of war, without authority from any one else, for the defense not only of his person, but also of his property and goods. The foundation established by Legnano and Victoria created the platform for the father of International Law, Dutch scholar, Hugo Grotius. His work, The Rights of War and Peace, is considered the cornerstone of modern International Law and Grotius is hailed as “the founder of modern civilized interstate relations.”

The essential elements of Grotius' works were founded upon the precepts of self-defense and self-preservation. Grotius wrote that even human babies, like animals, have an instinct to defend themselves. Further, this instinct extended to the protection of property rights and was one of the fundamental elements of the social fabric of modern society, because if people were barred from using force to protect their property from those who would take it by force, then “human Society and Commerce would necessarily be dissolved.”

Grotius based his rules for war between nations predicated on the underlying individual natural right of self-defense and observed that the rationale for both were based upon the same moral principle: “[I]t is allowed to Repel Force by Force.” It is upon the foundation of the fundamental individual right of self-defense that the structure of International Law is built.

Second only to Hugo Grotius was 17th century scholar Samuel Pufendorf, whose eight volume masterpiece, Of the Law of Nature and Nations, incorporated theories of Grotius, and the philosophies Thomas Hobbes and John Locke. Pufendorf; like Grotius, used natural law theory to construct the law of nations. The primary natural law employed by Pufendorf was that of self-defense: “Defence is a thing of more ancient date than any Civil Command…” and that no state can therefore forbid self-defense.

The natural right to self-defense which forms the very core of the principles of International Law, has one final component which protects the means by ‘which the right can be exercised. Thomas Hobbes explained “it is in vain for a man to have a right to the End, if the right to the necessary means be denied him, it follows, that since every Man hath a right to preserve himself, he must also be allowed a right to use all the means, and do all the actions, without which he cannot preserve himself.”

Pielage contends that the Alabama state court's ne exeat order constitutes a wrongful retention of Josha under the Hague Convention, as implemented by ICARA, because it amounts to an interference with her custodial right to return the child to his habitual residence in the Netherlands. The district court assumed that the Netherlands was the child's habitual residence, and although McConnell disputes that, we will make the same assumption.

This is an unusual Hague Convention and ICARA case. Most of them involve the non-custodial parent removing the child from the custodial parent or retaining the child after a permitted visitation period has ended. Here we have the unique claim that the order of a state court prohibiting one parent from removing the child from its jurisdiction pending a custody determination is a wrongful retention under the Hague Convention.

Neither the Hague Convention nor ICARA actually defines the term “retention.” Pielage, however, points us to Article V of the Hague Convention, which defines a parent's “rights of custody” over a child as including “the right to determine the child's place of residence.” Using that definition, Pielage contends that the state court ne exeat order is interfering with one of her rights of custody by preventing her from removing Josha from the state court's jurisdiction to take him to her desired place of residence-the Netherlands. According to her, that is all she needs to show to state a valid claim under the Hague Convention.

We are not persuaded to define “retention” to include every breach of a parent's rights of custody. Doing that would render the treaty's definition of “wrongful” superfluous. After all, the treaty provides that a retention is wrongful only where “it is in breach of rights of custody attributed to a person, an institution or any other body.” Hague Convention art. 3. That necessarily means that there are some retentions that are not wrongful. Under Pielage's construction, however, none would be. Any breach of the rights of custody would be a retention and it would be wrongful. There would be no retention unless there were a wrongful one.

We have said, however, that “[t]reaties, like statutes, should be construed so that no words are treated as being meaningless, redundant, or mere surplusage.” If every breach of a right of custody is a retention, as Pielage insists, then the key term “wrongful retention” is redundant. The proper interpretation of the Convention's phrase “wrongful retention” must give “retention” meaning apart from “wrongful.”

According to one dictionary, the primary definition of the term “retain” is “to keep possession of.” This meaning of the term “retention” is supported by the Pérez-Vera Report, which states that the Hague Convention was meant to remedy situations where a “child is taken out of the family and social environment in which [he] has developed.” Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, in 3 Acts and Documents of the Fourteenth Session, Child Abduction ¶ 12 (1982). This indicates that the term “retention” is meant to cover the circumstances where a child has been prevented from returning to his usual family and social environment. See also id. ¶ 110 (“In fact, we must not forget that it is the right of children not to be removed from a particular environment which sometimes is a basically family one, which the fight against international child abductions seeks to protect.”).

At the time the ne exeat order was issued Josha was just under a year old. His mother had carried him back and forth between the Netherlands and this country. In order to avoid deciding where Josha habitually resided, we have assumed that his habitual residence was in the Netherlands, as Pielage contends. But we cannot assume away the statements in Pielage's own complaint. Taking what she has alleged as true, as we must, Josha spent ten of his first twelve months on this earth in Baldwin County, Alabama, and only two months in the Netherlands. His social environment, to the extent he had one apart from his mother, was in this country. His family environment was with his mother. The state ne exeat order changed none of that. Under that order Josha remained with his mother in the same family and social environment where he had been for ten of the twelve months (and all of the last five months) of his life. Because the order did not disrupt or otherwise alter the “family and social environment in which [he] has developed,” it is not the type of “retention” that the Hague Convention was intended to remedy.

Pielage argues in her brief that “[i]f the Hague Convention means anything, it means that a child may not be retained away from the place where (s)he habitually resides, against the wishes and needs of his or her custodian.” This is not entirely accurate. According to the Pérez-Vera Report, the treaty's “reference to children ‘wrongfully retained’ is meant to cover those cases where the child, with the consent of the person who normally has custody, is in a place other than its place of habitual residence and is not returned by the person with whom [he] was staying.” Id. ¶ 57 (emphasis added). In other words, the Hague Convention was meant to cover the situation where a child has been kept by another person away from the petitioner claiming rights under the Convention, not where the petitioner still retains the child but is prevented from removing him from the jurisdiction.

Although the preamble to the Hague Convention does state that one of its purposes is the return of the child to its state of habitual residence, see Hague Convention preamble, T.I.A.S. No. 11,670, at 4, 1343 U.N.T.S. 89, at 98, the substantive provisions of the treaty are silent on where the child is to be returned. This silence, according to the Pérez-Vera Report, was intentional and must be “understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter's present place of residence.”Pérez-Vera, supra, ¶ 110.In cases such as this one, where the child remains in the physical care of the petitioner, it is impossible “to return the child directly to the applicant.” Id. That is so because there has been no “retention” within the meaning of the Convention. There having been no retention, there can have been no “wrongful retention.”

An alien is entitled to protection under CAT when he or she is “more likely than not [to] ... be tortured ... [in] the proposed country of removal.”8 C.F.R. § 208.16(c)(2).“The burden of proof is on the applicant ... to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”Id. In In re J-F-F-, the Attorney General pointed out that logically:

[a]n alien will never be able to show that he faces a more likely than not chance of torture if one link in the chain cannot be shown to be more likely than not to occur. It is the likelihood of all necessary events coming together that must more likely than not lead to torture, and a chain of events cannot be more likely than its least likely link.

In his application for asylum and withholding of removal, Savchuck wrote in response to the question “are you afraid of being subject to torture in your home country” that he feared that he would “be subjected to severe economic hardship,” which would result in him “living on the street,” “fall[ing] prey to the criminals and corrupt local government officials,” and make it “impossible ... to buy food or other basic life essentials,” thus resulting in his death at “a very early age.” Relying on In re J-F-F-, the BIA determined that Savchuck's “claim is too speculative in that it involves a chain of assumptions regarding the respondent's potential economic situation in Ukraine.”This conclusion was correct.

Jimmy McCain is about to end his first rotation to Iraq. In more than a year of campaigning, McCain has publicly mentioned Jimmy only twice.... McCain’s reticence is in one sense understandable - he has not wanted to draw attention to Jimmy for fear of making him more of a target in Iraq. 'Frankly, it’s for [Jimmy’s] security and the security of the men and women serving around him.' Some of McCain’s rivals regard him as almost perverse for not trying to gain political advantage from his warrior sons. In a city well known for its presidential draft-dodgers, McCain has long stood out in Washington as an authentic military hero. “I just feel it’s inappropriate for us to mention our children,” the senator said recently. “I wouldn’t want to seem like I’m trying to gain some kind of advantage."