By Jason Reigert, Albany Government Law Review Class of 2011
Anyone who watches Law and Order can tell you that in a criminal matter every American is entitled to the right to be represented by an attorney. This right is better known as the “right to effective assistance of counsel” and it is guaranteed by both the federal and New York State constitutions.[i] The right to effective counsel has been expanded over the years, and the case of Padilla v. Kentucky is a good example of such expansion. In Padilla v. Kentucky, the Supreme Court expanded the notion of effective assistance of counsel to include an obligation by defense attorneys to inform their clients of possible deportation consequences. As a result of this decision, a wave of defendants have recently sought to vacate their guilty pleas under a theory of ineffective assistance of counsel, due to being improperly informed of the potential deportation consequences. While Padilla has caused an increase in ineffective assistance of counsel claims, Padilla has not had as much of an impact as some might expect. Continue reading
Michael Carroll, Executive Editor, Albany Government Law Review Member
Trackers searching for Rob Krentz could not locate him using a thermal imager. His body was too cold. Rob Krentz was dead.
Mr. Krentz was a member of “one of the best-known and oldest ranching families . . . in southeast Arizona.” On March 27, 2010, he was found dead on his 35,000 acre ranch after suffering fatal gunshot wounds. Prior to his death, Mr. Krentz was riding around his property in an all-terrain vehicle when he radioed to his brother that he “was aiding someone he believed to be an illegal immigrant.” Presently, the authorities are unsure who killed Mr. Krentz. However, because of the “radio transmission . . . and heavy drug and illegal immigrant trafficking in that area,” it is widely suspected that Mr. Krentz was killed by a cross border drug smuggler or human trafficker.
Prior to Mr. Krentz’s death, the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) was introduced into the Arizona State Legislature. This strict immigration measure was initiated largely “because border authorities [in Arizona] arrest more people and seize more drugs than . . . any other state.” After Mr. Krentz’s death, he became the “face” of the Arizona immigration debate. Some politicians even pushed to name S.B. 1070 the “Rob Krentz law.” In fact, one month after Mr. Krentz’s mysterious death, Arizona Governor Jan Brewer signed S.B. 1070 into law.
Following the passage of S.B. 1070, Hispanic families throughout Arizona have felt uneasy about living and working in the state. For example, Manuela Quintana and her husband lived in Phoenix for fifteen years. All of their children are American citizens because they were born in the United States. Both Manuela and her husband are illegal immigrants. They fear that S.B. 1070 will lead to their imprisonment, and therefore, separation from their children. Because of these fears, the Quintana family packed all of their belongings and decided to move to Colorado, a state with less stringent immigration regulations. Before making this trip, Manuela spoke to a reporter and reaffirmed her belief that although she traveled to the United States illegally, she was not a criminal. She stated, “‘a criminal is someone who kills . . . I just want to work.’”
Jason Riegert, Government Law Review member
“International law is based on the concept of the state.” In turn, the state is based upon the foundation of sovereignty, which is defined as “supreme power especially over a body politic; freedom from external control.” The idea of state sovereignty dates back as far as the notion of the state itself. However, the development of international law has slowly weakened the idea of state sovereignty, causing a tension between international law and state sovereignty. This juxtaposition has developed because while the preservation of peace and state sovereignty was the original concern that led countries to form international law, international law itself has now become a threat to state sovereignty.
In Thomas Franck’s article entitled, The Emerging Right to Democratic Governance, he discusses certain normative expectations within the international community. Franck outlines four indicators, “pedigree, determinacy, coherence and adherence,” that a new state must have in order to gain international legitimacy and recognition. In Franck’s analysis, he gives examples of different states and their struggle to gain legitimacy. One example he gives occurred in the early 1990’s, when the United Nations (UN) came in and controversially monitored elections in Haiti. The article emphasizes the idea that not only do states legitimize international law, but that the international body legitimizes states. This poses the question of how sovereign are these new “legitimate” states. These states are being forced to jump through hoops and meet these “indicators” in order to gain international legitimacy, but what happened to the idea of “absolute power over a body politic,” and “freedom from external control.”
Another example of the struggle between state sovereignty and international law can be seen with Iran nuclear testing. In analyzing the Iran nuclear testing issue, it becomes clear that there are obvious limitations to what a state can and cannot do, thus limiting the state’s sovereignty. International organizations like the International Atomic Energy Agency (IAEA), work with the United Nations (UN) to help “promote the peaceful use of atomic energy.” In their promotion of peaceful atomic energy, the UN and IAEA restrict countries’ uses of atomic energy, seriously limiting what is allowable. In response to Iran’s admission of nuclear testing back on September 29, 2009, the IAEA Director General issued a statement in which he declared that there is a “need to move from national to multinational control of the nuclear fuel cycle.” There were agreements by the IAEA and Iran to have the agency come in and inspect the nuclear testing facilities. This raises the issue of what ever happened to the UN charter? The charter outlines the rights of states, recognizing state sovereignty and independence and declaring that the UN may not intervene in matters “essentially within the domestic jurisdiction of any state.” Don’t the IAEA’s polices directly violate the UN charter itself?
Alicia Dodge, Government Law Review Member
The vast advancements in technological capabilities have greatly changed traditional jurisdictional principles. No longer is it sufficient for a state’s laws to only apply to persons and property solely within its territory, a concept known as the “territorial principle.”1 A state’s jurisdiction must now be able to extend extraterritorially in order to comport with the technological advancements of today. States have realized this necessity, sparking the prevalence of international law documents aimed at resolving disputes between states. However, international law also raises questions of internal legitimacy in regards to political, judicial, and societal differences between states.
II. The Hague Convention on the Civil Aspects of International Child Abduction
Increased divorce rates coupled with advancements in technology, which make travel much easier, spurred the need for an international treaty to regulate child abductions.2 The resulting document is known as The Hague Convention on the Civil Aspects of International Child Abduction (hereinafter The Hague Abduction Convention), the purpose of which is to establish judicial guidelines for states to follow after a child has been wrongfully abducted.3 Time is of the essence in child abductions, as the abductors typically will attempt to drag out the process, lengthening the time that the child is separated from the parent. The signatory countries are bound to follow the treaty, making the return much smoother and expedited. In order to maintain the legitimacy of international law, the states must comply with their treaty obligations or risk damaging their reputation with other states.4 According to UN Charter Article 2(2), “[a]ll Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them . . . .”5 In order to state a claim under The Hague Abduction Convention, it must be demonstrated that
[The] child was habitually [a] resident of the country from which the child was abducted; [the] petitioning parent had either sole or joint rights of custody of the child either through a custody order or du jure (by operation of law), and at the time of wrongful removal, [the] petitioning parent was exercising those rights.6
The petitioner bears the burden of proof by a preponderance of the evidence, and then the responding party may attempt to prove an affirmative defense to oppose the child’s return.7 There are four such affirmative defenses, two of which must be proven by clear and convincing evidence, which are “that ‘there is a grave risk that the child’s return would expose the child to physical or psychological harm[,] . . .’” or that the return would violate fundamental human rights norms.8 The other two affirmative defenses require proof by a preponderance of the evidence, and they “are either that judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment, or that the Appellant was not actually exercising custody rights at the time of removal.”9