On April 28, Professor Barbara Stark presented the paper “Towards a Theory of Intercountry Human Rights: Global Capitalism and the Rise and Fall of Intercountry Adoption” at the International Society of Family Law North American Regional Conference, “Inequality and the Future of Family Law,” at the University of Minnesota.
The article notes that human rights, as set out in the International Bill of Rights roughly 40 years ago, have not lived up to their drafters’ hopes. Some would argue that they have not come close.
The most common explanation for the failures of human rights law is that it is toothless. Because states resist restraints on their sovereignty, human rights law depends in large part on states policing themselves. On the international level, experts are appointed to monitor or report on human rights violations, but they have no authority to sanction violators or compel remedial measures.
This article proposes another mechanism for enforcement, a middle path between self-serving domestic policing and weak international bureaucracy. “Intercountry,” as opposed to “international,” human rights would apply in specific contexts, and be enforceable through the legal mechanisms and other resources of the parties.
The specific context used as an example here is intercountry adoption. Since most of the states involved in intercountry adoption have ratified most of the human rights instruments applicable in this context, this might seem unnecessary. But ratification is not compliance. This proposal would make human rights substantially more enforceable among states involved in intercountry adoption.
Intercountry adoption is a useful context in which to consider this proposal because it dramatically illustrates a major premise of this article: that is, that absent effective human rights law, market forces, or what David Brooks calls “naked capitalism,” rule. The human costs of the focus on markets and profits, rather than human well-being, are painfully clear in the context of intercountry adoption.