In 2018, Veronica Tescari fled Venezuela with her two minor children and established a residence in Murfreesboro, Tennessee. Because Tescari successfully proved that she had a “well-founded fear of persecution” in Venezuela on account of her political party affiliation, the United States granted Tescari asylum; her children were granted derivative asylum. And yet, in March of 2022, the United States Court of Appeals for the Sixth Circuit, over a strong dissent, ordered her two minor children to return to Venezuela with or without their mother. The mechanism for this jolting return is the Convention on the Civil Aspects of International Child Abduction (Hague Convention), a multilateral human rights treaty signed by the United States in the 1980s.
As painfully illustrated by the facts above, the Hague Convention and the principle of non-refoulement embodied in asylum law can clash. The Hague Convention requires that State parties return children wrongfully abducted across international borders to their home country. The principle of non-refoulment, found in Article 33 of the Convention Relating to the Status of Refugees (Refugee Convention) and Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), requires State parties to refrain from returning asylees or refugees to countries where they would face persecution. As a signatory to both, the United States must attempt to comply with each obligation. As demonstrated above, however, these two international obligations can conflict in the context of asylees.
The conflict between a State's obligation of non-refoulement and its obligation to return children presents itself when a parent abducts their own child across international borders and then applies for asylum in the receiving country. Perhaps the parent applies for asylum only on behalf of themselves with the children listed as “derivative” asylees, or perhaps each child files their own individual petition for asylum. Either way, the children are subject to return to their home country under the Hague Convention. Of course, the clash between the two human rights obligations is especially clear in the latter situation where the child themself has been granted asylee status: the return of an asylee child under the Hague Convention is arguably a direct violation of non-refoulement. But the return of non-asylee children of an asylee parent also implicates non-refoulement principles. As argued below, returning an asylee's child to their home country could harm the child or effectively force the abducting parent to return to the country of persecution.
Nevertheless, recent United States cases involving this conflict have favored the Hague Convention provisions mandating return over the non-refoulement provisions of the Refugee Convention and Torture Convention. The majority opinions of the two leading cases, Sanchez v. R.G.L and Salame v. Tescari, do not mention non-refoulement at all. This approach-- ignoring and discounting non-refoulement--is flawed. A court's first goal in interpreting two apparently conflicting treaties should be to avoid a conflict by reconciling the two; only when the two cannot be successfully read together should the earlier be considered abrogated. And the Hague Convention provides tools, found in Articles 13(b) and 20, which allow courts to reconcile the obligations and comply with their duty not to refoul asylees.
Thus, the goal of this Comment is not only to establish the possibility of considering the parent or child's asylum grant in a Hague Convention case, but also to discuss how the asylee status of the parent or child should be factored into the court's decision. Such a reconciliation of the Hague Convention and non-refoulement is not only necessary for the benefit of asylee parents and children, but will also enable courts to act consistently with the demands of international and domestic law. To achieve this goal, Part II of this Comment lays out the pertinent international obligations in Hague Convention cases involving asylees. Part III explains the importance of Articles 13(b) and 20 of the Hague Convention as avenues for exception from the obligation to return children. Part IV uses a comparative law analysis to propose a framework that demonstrates how courts could use Articles 13(b) and 20 to analyze the effect of a child or parent's asylee status on the court's obligation to return the child. Part V briefly concludes.
About the Author
Amelia K. Lawrence, J.D. Candidate 2024, Tulane University Law School; B.A. 2021, University of Mississippi. My sincere thanks to my advisor, Professor Adeno Addis, for his guidance, feedback, and patience. Many thanks as well to the members and staff of the Tulane Law Review for their work preparing this Comment for publication. Finally, a special thanks to my husband, SJ Parker, and my parents, Scott and Danielle Lawrence, for their sacrifices, support, and companionship.
Citation
98 Tul. L. Rev. 567