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Excerpted From: Barbara Stark, Toward a Theory of Intercountry Human Rights: Global Capitalism and the Rise and Fall of Intercountry Adoption, 95 Indiana Law Journal 1365 (Fall, 2020) (218 Footnotes) (Full Document)


BarbaraStarkHuman rights, as set out in the International Bill of Rights roughly forty years ago, have not lived up to their drafters' hopes. Some argue that they have not come close. Even their champions recognize their limits. As Professor Philip Alston notes, “[i]n absolute figures, never have so many men, women, and children been subjugated, starved, or exterminated on the Earth.” The shortcomings of human rights law 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, United Nations agencies and nongovernmental organizations (NGOs) monitor and 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 mechanisms and other 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 forty years. Intercountry human rights would focus states on some of their most vulnerable people. They would also better protect would-be adoptive parents from a range of risks, from their children's trauma to their own unknowing complicity in serious human rights violations.

Second, from a jurisprudential perspective, since virtually all of the states involved in intercountry adoption have ratified virtually all of the human rights instruments applicable in this context, 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. This is very different from the ideological conflict at the core of other interstate efforts to promote human rights, such as the Alien Tort Statute (ATS) litigation. Foreign support for human rights may also be more palatable when it involves family law, rather than ostensibly more important issues of trade or national security.

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 in the early 1990s. It explains how the American version of human rights veered off from the international version and why the American version prevailed. This Part also shows how the American version of human rights promoted intercountry adoption.

Part II explains how global capitalism changed the game. This Part focuses on the heyday of neoliberalism, from the elections of Ronald Reagan and Margaret Thatcher to the Great Recession beginning 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, enacted in the United States in 2008, cannot address the problems this creates for transborder adoptions. 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 eighteenth-century philosopher Thomas Paine and the twenty-first-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.

[. . .]

This Article proposes a new, albeit modest, mechanism to support human rights, specifically those at risk in intercountry adoption. It has explained how the American version of human rights pushed aside a larger vision of human well-being and how it promoted privatized “solutions,” such as intercountry adoption, instead. It has argued that those who have benefitted from neoliberalism owe something to those who have been penalized by it, just as Thomas Paine argued that the eighteenth-century state owed something to those it effectively deprived of a livelihood. It has sketched how intercountry human rights might work in the context of intercountry adoption. Finally, this Article has suggested how intercountry human rights can be used to resist the domination of markets and the unprecedented concentration of global wealth which is its result.

Barbara Stark, Professor of Law and Hofstra Research Fellow, Maurice A. Deane School of Law, Hofstra University.

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