From a State-Centered Approach to Transnational Openness: Adapting the Hague Convention with Contemporary Human Rights Standards as Codified in the Convention on the Rights of the Child

Introduction

Parental kidnapping is an increasing problem throughout the world and the social consequences of globalization have made international child abductions more frequent. In the United States alone, the Department of Justice states that 354,100 children are reported to have been abducted by a family member in a single year.¹ Estimates indicate that one in five parental kidnappings involves a child being taken across international borders.² The United Kingdom states that in the last three years there has been a "58 percent increase in the number of international parental child abductions."³ In 2000, the National Center for Missing and Exploited Children, which handles all U.S. international child abduction cases, reported 1,697 international abductions, up 66.7 percent over 1999.⁴

The increase of international child abductions has been attributed to the increasing access of international travel and rising divorce rates.⁵ International abductions are more traumatic for both the child and the parent than domestic abductions.⁶ This is because "sheer distance, language barriers, and differences in cultural, legal, and economic systems intensify the trauma felt by the aggrieved parent as well as the child."⁷ In addition, the child's separation and complete isolation from his or her former life greatly increases the trauma he or she will endure.⁸ Regardless of the cause of the increase in child abductions across international borders, something needs to be done to stop this problem.

A. The State-Centered Approach of the Hague Convention

In order to protect children from international abductions, the Hague Convention on the Civil Aspects of International Child Abduction was established in 1980.⁹ The Hague Convention has been ratified by numerous countries.¹⁰ However, the Hague Convention is not working uniformly and it has numerous weaknesses that allow many cases to go unresolved.¹¹ Problems with the Hague Convention include noncompliance issues and lack of enforceability; procedural slowness; excessive recourse to exceptions; lack of legal aid for victim families; and lack of applicability in a large number of countries that are not yet parties to the Convention.¹² The Hague Convention primarily addresses matters of jurisdiction and "does little or nothing to promote the rights of children."¹³ This Convention is very state-centered¹⁴ because it allows the judicial system of each participating country to exercise great discretion when interpreting the language of the Convention.¹⁵ The use of a state-centered approach by the Hague Convention provides less protection to children because a human rights universal, transnational standard is not being enforced.

B. Transnational Openness of the Convention on the Rights of the Child

Conversely, the Convention on the Rights of the Child moves away from a state-centered approach toward a transnational,¹⁶ global standard. This Convention sets forth specific enumerated rights for children¹⁷ and has been almost universally adopted.¹⁸ The goal of this Convention is to "emphasize the child's best interests in all actions concerning him or her, and these best interests are considered in the context of the child's family ties; continuity in upbringing; and ethnic, religious, cultural, and linguistic background."¹⁹ This Convention overrides the domestic laws of each country and aims to preserve traditionalist, socialist structures, while promoting the human rights of children, even against these domestic laws. Thus, this Convention reaches past the domestic legal order, regardless of citizenship and thereby takes a non-state-centered approach.²⁰

C. Adopting a Transnational Approach

In order to thoroughly protect children, the state-centered approach of the Hague Convention should be modified to include many of the transnational standards set forth in the Convention on the Rights...