Faculty Publications

Part 1 of the article shows that the poor, everywhere, are more likely to get sick and more likely to die when they do. In many countries, they are also more likely to starve.

Part II explains why this is a matter of human rights. The ongoing deprivation of basic rights to healthcare and an adequate standard of living are major factors. As this Part demonstrates, however, the extreme vulnerability of the poor is grounded in earlier violations of human rights, including state-sanctioned segregation in the American south in the 1950s and what one author has called “the darker side of American hegemony,” referring to the United States’ role in the overthrow of leftist regimes in Latin America during the Cold War.

Part III argues that the current crisis demands a broader, deeper, and more authentic commitment to human rights. We are living in a world of brutal economic inequality, in which some lives matter and others do not. The United States has played a major role in creating this world, in part by violating the human rights of Black Americans, immigrants, and asylum-seekers. This Article argues that the United States should take responsibility for these violations and suggests how it may begin.

Human rights law, as set out in the International Bill of Rights 40 years ago, has not lived up to its drafters’ hopes. Its shortcomings are often blamed on weak enforcement. Because nation states resist restraints on their sovereignty, human rights law depends in large part on states policing themselves. On the international level, the UN and non-governmental organizations report on human rights violations, but they have no authority to sanction violators or compel remedies.

This Article proposes another mechanism for enforcement, an alternative to self-serving domestic policing and weak international bureaucracy. “Intercountry,” as opposed to “international,” human rights would apply to specific rights in specific contexts and be enforceable through the legal resources of the state parties that accepted them. Intercountry adoption is a useful context in which to consider this proposal for several reasons.

First, as a practical matter, there have probably never been more babies and children in orphanages, on the street, on the market, or on their own. Yet intercountry adoptions have declined to levels not seen for almost 40 years. Intercountry human rights would focus states on some of their most vulnerable people and better protect would-be adoptive parents from a range of risks. Second, from a jurisprudential perspective, since virtually all the states involved in intercountry adoption have ratified virtually all the human rights instruments applicable in this context (with the exception of the United States), the applicable human rights law is not in dispute. Receiving states and states of origin, moreover, presumably have a common goal — the best interest of the child.

Finally, from a more theoretical perspective, the rise and fall of intercountry adoption, from the 1950s to the present, demonstrates the deep tension between human rights and global capitalism. By ‘global capitalism’ I refer to capitalism unrestrained by national laws or shared ethical codes, what David Brooks calls “naked capitalism.” Intercountry adoption exposes the human costs of global capitalism in a specific, concrete, international context.

Part I of this Article describes the origins of the tension between human rights and global capitalism in the Cold War era, from the end of World War II to the collapse of the Soviet Union. It explains how the American version of human rights veered off from the international version, why it prevailed, and how it promoted intercountry adoption.

Part II explains how global capitalism changed the game. This Part focuses on the heyday of neoliberalism, from the elections of Reagan and Thatcher to the Great Recession in 2008. It shows how neoliberalism reshaped human rights and produced a perverse ‘solution’ for children in crisis.

Part III explains why intercountry adoption requires intercountry human rights. It begins by examining the unprecedented inequality that currently characterizes the global economy. It explains why the Hague Convention on Intercountry Adoption can’t address the problems this creates. Rather, intercountry adoption requires the revival of the full panoply of international human rights and a fresh approach to their realization.

Part IV proposes a theory of intercountry human rights, drawing on the 18th century philosopher Thomas Paine and the 21st century economist Thomas Picketty. It explains how intercountry human rights would apply in the context of intercountry adoption and concludes by describing how intercountry human rights might operate in practice.

Globalisation, and the vast migrations of capital and labour that have accompanied it in recent decades, has transformed family law in once unimaginable ways. Families have been torn apart and new families have been created. Borders have become more porous, allowing adoptees and mail order brides to join new families and women fleeing domestic violence to escape from old ones. People of different nationalities marry, have children, and divorce, not necessarily in that order. They file suits in their respective home states or third states, demanding support, custody, and property. Otherwise law-abiding parents risk jail in desperate efforts to abduct their own children from foreign ex-spouses.

The aim of this Handbook is to provide scholars, postgraduate students, judges, and practioners with a broad but authoritative review of current research in the area of International Family Law. The contributors reflect on a range of jurisdictions and legal traditions and their approaches vary. Each chapter has a distinct subject matter and was written by an author who was invited because of his or her expertise on that subject. This volume provides a valuable contribution to emerging understandings of the subject.