A Hague conference judgments convention and United States courts: a problem and a possibility.

Author:Maier, Harold G.
Position:Symposium: Could a Treaty Trump Supreme Court Jurisdictional Doctrine?

    The multilateral convention to create rules concerning international jurisdiction and the effects of foreign judgments in civil and commercial matters, currently under discussion in the Hague Conference on Private International Law,(1) is long overdue.(2) Because the terms of this proposed convention are far from settled, any attempt at a definitive analysis of its ultimate effect is clearly premature. Nonetheless, any such convention dealing with the enforcement of foreign country judgments must, necessarily, address in some form the limits and extent of permissible assertions of judicial jurisdiction to determine which judgments from Member States are enforceable under the convention. Only a decree from a court recognized by the courts of the enforcement forum as being properly empowered to render a judgment can be entitled to res judicata effect in the enforcement forum.(3)

    Whether the Hague Conference will opt for a "simple convention," a "double convention," or something in between is, at this writing, unknown. The option selected is likely to make a substantial difference in the ability of the United States to join the convention in the light of U.S. constitutional limitations on the exercise of judicial jurisdiction. For example, a simple convention treats only whether the court of origin had sufficient jurisdiction to permit the judgment to be enforced in the state addressed.(4) It does not address matters of judicial jurisdiction in general. A double convention includes both grounds for determining the validity of judicial jurisdiction in general and rules concerning the recognition and enforcement of foreign judgments.(5) Such a convention normally requires states to recognize jurisdiction based on the convention standards. A mixed convention is a modified form of these two paradigms.(6)

    My comments address two of the many possible issues that might ultimately arise under a Hague Conference judgments convention. The first is the question implicit in the title to this panel discussion: What would be the effect of the United States Constitution's Fifth and Fourteenth Amendments'(7) due process limitations on the exercise of judicial jurisdiction on the recognition and application of the convention's jurisdictional standards in United States courts? If the convention required states' parties to accept bases for jurisdiction incompatible with United States constitutional limitations, would the United States lack constitutional authority to give effect to those conventional obligations?

    Second, what would be the effect in the United States on the enforceability of judgments handed down in convention states, if the convention permitted states' parties to exercise jurisdiction on bases otherwise incompatible with United States limitations on judicial jurisdiction?


    1. The Possibility of Constitutional Conflict

      The United States may face serious difficulties in implementing, or even in acceding to, a double convention if the Conference's final version contains mandatory uniform rules governing the exercise of judicial jurisdiction in all Member States in suits by nationals of states' parties to the convention.(8) This certainly would be true if the convention's final draft required United States courts to exercise judicial jurisdiction in violation of constitutional limitations established under the due process requirements.(9)

      It seems patently obvious that such provisions would be unconstitutional and, thus, could have no effect in the United States.(10) Both the rationales and holdings in United States Supreme Court cases and the lack of any sufficiently compelling practical reason to change that constitutional analysis(11) in favor of new conventional requirements supports the conclusion that these long-standing U.S. constitutional limitations would remain controlling. A convention of this type would, therefore, be unenforceable in the United States unless its jurisdictional requirements came within the ambit of United States constitutional limitations.(12)

    2. United States Due Process Limitations and International Treaties

      United States constitutional law concerning judicial jurisdiction under the Due Process Clauses of the Fifth and Fourteenth Amendments is limiting law, not prescribing law.(13) Nowhere in the Constitution is there a requirement that courts, state or federal, exercise jurisdiction when given circumstances are found to exist.(14) Rather, the Constitution and the judicial decisions interpreting it have limited the exercise of judicial jurisdiction to situations in which haling the defendant into the designated court is not so unfair as to violate the principles of due process.(15) This constitutional limitation applies to all courts, state and federal.(16) An international convention that mandated the trial of cases under specifically prescribed relationships between the defendant and the forum might well run afoul of United States constitutional standards. This would occur if the convention's jurisdictional mandate required United States courts to adjudicate cases under circumstances in which the relationships between the defendant and the forum(17) or among the defendant, the forum, and the cause of action(18) were insufficient to meet the constitutional due process requirements.(19) Under those circumstances, the convention's mandate would not--indeed, should not--be given effect.

      A series of U.S. Supreme Court cases consistently has upheld the primacy of the individual rights protections of the Constitution over the requirements of international agreements.(20) It is a United States rule of some standing that treaties and statutes hold positions of equal authority under the Supremacy Clause of the United States Constitution.(21) The latest in time--statute or treaty--can supersede the other in domestic effect as long as it is plainly intended that it do so.(22) Thus, both statutes(23) and treaties(24) are necessarily subject to the same U.S. constitutional limitations, at least insofar as the protection of individual liberties are concerned.(25) To conclude that a treaty need not comply with the Constitution, while a statute that could supersede that treaty must meet constitutional tests, would be, to say the least, logically dysfunctional.(26)

      In Reid v. Covert,(27) the Supreme Court addressed the relative status of the Constitution and U.S. international agreements in a case involving two separate executive agreements entered into between the United States and Great Britain, and the United States and Japan.(28) The agreements were made pursuant to express authority conferred on the President by a vote of the United States Congress when it enacted the Uniform Code of Military Justice.(29) That statute provided that all persons "accompanying the armed forces without the continental limits of the United States" were subject to the Code if such jurisdiction were authorized under "any treaty or agreement to which the United States is or may be a party."(30)

      Ms. Dorothy Krueger Smith and Ms. Clarice Covert, wives of two American servicemen stationed abroad, were convicted by courts martial of killing their husbands.(31) The Court held that an executive agreement, even though authorized ab initio by majority vote of both houses of Congress, could not nullify the right of trial by jury, conferred by the Bill of Rights.(32) Justice Hugo Black wrote: "[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution."(33)

      Although only four Justices of the seven-Justice majority endorsed this language, the modifications reflected in separate opinions by the others did not contest this fundamental point.(34)

      There is no compelling reason why the Court should change its position to permit the President, acting only with the approval of two-thirds of the Senate, to nullify Bill of Rights and Fourteenth Amendment due process protections in order to facilitate a convention on the enforcement of judgments. This is especially true given the high cost that such a precedent might exact in the future.(35) The Bill of Rights contains some of the most precious of the protections contained in the United States Constitution, many of which are treated as being incorporated into the Due Process Clause of the Fourteenth Amendment.(36) To suggest that those protections could be set aside by the President acting with the consent of two-thirds of a single house of the legislature would elevate an international judgments convention containing mandatory bases for the exercise of judicial jurisdiction to a status far exceeding the utility of even such a commercially important agreement. Nor could such doubtful provisions "enter by the back door," disguised by general or ambiguous language in the convention. In the highly unlikely event that the Court might be inclined to grant a double convention special treatment to preserve its constitutionality, the Court would not accord the convention a special preemptive role with respect to existing due process decisions without a clear indication that the treaty was intended to supersede those Supreme Court constitutional holdings.(37)

      Furthermore, as a practical matter, it is doubtful that any convention containing mandatory jurisdictional rules that contravened due process limitations could obtain the required two-thirds vote of advice and consent in the United States Senate to permit the President to ratify it.(38) If the intent to supersede United States constitutional limitations were clearly spelled out in the document, treaty opponents would have a powerful political tool to successfully oppose the convention on the grounds that its provisions diminished the protection of liberties under the Bill of Rights. The likely adverse political response to any international agreement that purported to...

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