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Indiana Law Journal

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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.

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