The question of where nations are to place the interests of their citizens as contrasted with the demands of international agreements is a matter of great concern. It is arguable that the core purpose of governments is to exercise those powers which are not able to effectively exercised by private parties, whether persons or groups. This is most often approached on the matter of armed defense, however it is also the area in which formal law and more properly legal systems operate as particularly interested groups are as a practical matter incapable of presenting themselves as disinterested and thus impartial arbiters of disputes. National governments are placed in a strange predicament when they rule on matters of so called international law, for they in essence cease to be able to meet the standard of perceived impartiality that they may supposedly bear domestically as they are instead placed into a position as a partisan (whether reality may or may not bear such perception out), as they are to represent the interests of their nation, which may be seen as the net interest of the constituent persons and parties of their nation. The prompt asks whether nations should place the concerns of international agreements, specifically the Hague Convention and International Parental Kidnapping Crime Act, above those of their own people and domestic laws. The answer is quite simply that it depends. It depends upon how a nation perceives international law with regards to their domestic politics, if a nation holds a legal standard that an international treaty to which they are fully committed to based upon their particular ratification methods is as binding as any other fully ratified law, then it becomes incumbent upon the nation to exercise the full criterion of the agreement as though it were entirely developed domestically.
Concerning the specific situation mentioned in the prompt, it is quite evident that Brazil ought to return the minor to his American father, largely on the basis of how it came about due to what appears to be parental kidnapping. If Bruna Bianchi had had sole guardianship of Sean at the time of her moving to Brazil, or even been clear as to an intention of her relocating permanently and divorcing Goldman, it might well be appropriate that Sean could remain in the custody of his step-father. However, given that this case seems to be entirely the result of deception and bad-faith on the part of Bianchi, she would seem to have abdicated her parental rights and thus would not be in a position to transfer them to another party (the new husband/other family) and so parental rights would be retained exclusively by Mr. Goldman. Brazil would be then faced with a choice of either presenting itself as a nation that places the demands of law at the forefront or the particular interests of some of its citizens. While, Brazil could do either if it so chose, potential international and possibly domestic consequences of being a nation of men not laws would be far more likely to be adverse than the appearance of placing the rule of law as paramount.
This week we focus on The Hague Abduction Convention and the International Parental Kidnapping Crime Act. The question on whether a country should recognize the former two above the rights of its own citizens is, among others, related to potential benefits and costs for a country and its citizens, respectively. Do countries have to enforce the Hague Abduction Convention in any event or may a national court, in exceptional circumstances, disregard its application? While the Hague Abduction Convention’s effectiveness is debatable and its effects on the parties to the Convention may vary widely, it is assumed that legal regimes, in general, are likely to contribute to a more stable and secure international system.
As mentioned, a country and its citizens may perceive the Hague Abduction Convention either as beneficial or harmful. Since a country’s sovereignty could potentially be undermined by international law, some countries tend to be suspicious about the latter. For instance, although the U.S. Congress and the President have not decided to join the Convention on the Rights of Children, some U.S. courts may use this Convention or other international law to interpret federal common law. Also, a country might oppose becoming a party to the Hague Abduction Convention because it will neither want to extradite its own citizens nor bear the costs associated with respective procedures. Some countries do not even recognize child abduction as an extraditable offense. In regard to the case Bianchi v. Goldman, it is however notable that while the Brazilian Supreme Court has ostensibly based its decision on international law, Silvana Bianchi asserts that the custody issue had been decided by international pressure. As a consequence of the case Bianchi v. Goldman, the U.S. introduced the Sean and David Goldman International Child Abduction Prevention and Return Act in 2014. This bill complements the International Parental Kidnapping Crime Act, The Hague Abduction Convention, and (other) existing international law by providing U.S. enforcement entities with further means and instruments for the prevention of child abduction and the recovery of children once they have been abducted. The ratification of the Sean and Goldman Act seems to put the effectiveness of The Hague Abduction Convention under question. Indeed, a survey carried out by the American Bar Association Center on Children and Law reveals that some respondents in foreign countries hold that there are agreements and laws in place that are perceived to have simpler procedures and to be more effective than The Hague Abduction Convention.
In contrast, although the effectiveness of The Hague Convention, its effect on the sovereignty of countries being parties to the Convention, and on respective citizens is debatable, The Hague Convention may provide a suitable legal framework that helps to recover children abducted to foreign countries. Being aware of some of The Hague Convention’s deficiencies, the American Bar Association Center on Children and Law puts forth several recommendations to render the former more effective. Research of this kind can help to improve international law.
In sum, it is assumed that more countries should become parties to the Convention. Since child abduction is a crime, which is recognized by The Hague Convention’s signatory countries, new parties to the Convention would not compromise the preexisting rights of their citizens, but rather provide them with additional rights and instruments to recover their abducted children.