Saturday, August 31, 2019
Alikovna v Viktorovich, 2019 WL 4038521 (S.D. Florida, 2019) [Russian Federation] [Federal & State Judicial Remedies] [ Subject matter jurisdiction]
In Alikovna v Viktorovich, 2019 WL 4038521 (S.D. Florida, 2019) Petitioner commenced the case on August 14, 2019 by filing a Petition, alleging that Respondent wrongfully removed their nine-year-old son from the Russian Federation to the United States. As a result, Petitioner sought return of her son pursuant to the Hague Convention. Respondent sought dismissal of the Petition for lack of subject matter jurisdiction. The district court granted the defendants motion to dismiss the proceeding for lack of subject matter jurisdiction.
The district court observed that Countries may bind themselves to the terms of the Convention by either signing and ratifying the Convention pursuant to Article 37, or by acceding to the Convention pursuant to Article 38. The United States signed the Convention in 1981, and the Convention came into force in the United States in 1988. Marks on Behalf of SM v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017). According to Article 38, Any other State may accede to the Convention. [...] The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. www.hcch.net/en/instruments/conventions/full-text/?cid=24 (last accessed August 27, 2019).\
The Court noted that because the Convention functions solely through the designated Central Authorities in the respective states, and because only contracting parties will have designated such authorities, the Convention can operate only between two signatory states.” United States v. Amer, 110 F.3d 873, 881 (2d Cir. 1997) (citing Convention, Arts. 6 & 7); see also Mezo Elmergawi, 855 F. Supp 59, 62 (E.D.N.Y. 1994); Mohsen v. Mohsen, 715 F. Supp. 1063, 1065 (D. Wyo. 1989). By the terms of the Convention, the accession has effect only if a Contracting State accepts an acceding country’s accession. The Russian Federation acceded to the Convention on July 28, 2011; however, the United States has not accepted that accession. See Status Table, www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last accessed August 27, 2019); see also Acceptances of Accessions, www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=1112 (last accessed August 27, 2019).
The Court found that although Petitioner alleged that the United States and the Russian Federation were parties to the Convention, the allegation alone did not confer subject matter jurisdiction. This is especially true where the United States has not accepted the Russian Federation’s accession to the Convention, the weight of authority supported a finding that jurisdiction was lacking in this case, and Petitioner provided no authority to the contrary.
The district court found that Petitioner failed to establish that the Court had subject matter jurisdiction over her claim. See Taveras v. Taveras, 397 F. Supp. 2d 908, 911 (S.D. Ohio 2005) (“It is undisputed that the United States and the Dominican Republic have not entered into the negotiations require by Article 38. Consequently, the Convention’s administrative and judicial mechanisms are not yet applicable with regard to relations between the two countries.”); see also Gonzalez v. Gutierrez, 311 F.3d 942, 945 n.2 (9th Cir. 2002), abrogated on other grounds by Abbott v. Abbott, 560 U.S. 1 (2010) (“An accession is effective only between the acceding country and those contracting states that have accepted the accession.”).