How can international law be used to resolve disputes? Should countries recognize the Hague Abduction Convention and International Parental Kidnapping Crime Act above the rights of its own citizens?
Reading about Sean Goldman reminded me of the case of Elian Gonzalez, who “less than two weeks short of his 6th birthday, was the young Cuban boy whose rescue set off an international custody battle and reverberated in the 2000 U.S. presidential campaign.” (Siegelbaum, 2014) In this case, a young Elian, his mother, her boyfriend and 14 other people attempted to flee Cuba on a “a rickety, cobbled-together craft” (Siegelbaum, 2014) This craft sank, killing Elian's mother and her boyfriend. The Boy's father was living in Cuba, extended family was living in Florida, “It became a face-off between Castro, the boy's father and grandparents on the island, and Cuban-American lawmakers Ileana Ros-Lehtinen and Lincoln Diaz-Balart with the backing of Miami's hardline exiles that encouraged Gonzalez relatives there to refuse to give the boy back. In Miami, the boy was showered with gifts, including a Labrador puppy from Diaz-Balart, and draped in an American flag by Ros-Lehtinen. An outraged Cuban public staged massive marches headed by a sneaker-clad Castro.” (Siegelbaum, 2014) In the end Elian was returned to Cuba to live with his father, step-mother and step-sister. With regard to immigrants from Cuba, the United States has a wet foot/dry foot policy, which states that “Cuban migrants seeking passage to the United States who are intercepted at sea ("wet feet") are sent back to Cuba or to a third country, while those who make it to U.S. soil ("dry feet") are allowed to remain in the United States.” (Morley, 2007) Taking this policy into account Elian Gonzalez should have been allowed to stay in the United States due to the fact that he had managed to reach dry land. In addition there was extended family that was willing to care for him. However, Elian had a father that was living in Cuba making this a difficult case to determine.
With regard to the question posed above, 18 U.S. Code § 1204 International Kidnapping states that:
(a) Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.
(b) As used in this section—
(1) the term “child” means a person who has not attained the age of 16 years; and
(2) the term “parental rights”, with respect to a child, means the right to physical custody of the child—
(A) whether joint or sole (and includes visiting rights); and
(B) whether arising by operation of law, court order, or legally binding agreement of the parties. (18 U.S. Code § 1204, n.d.)
The Department of Justice has the following to say with regard to international kidnapping:
“Every year, situations of international parental kidnapping are reported in the United States. It is common for the removal of a child to occur during a heated or emotional marital dispute, in the early stages of separation or divorce, or in the waiting period for a court custody order or agreement. International parental kidnappings of U.S. children have been reported in countries all over the world, including Australia, Brazil, Canada, Colombia, Germany, India, Japan, Mexico, Philippines, and the United Kingdom.” (USDOJ: CRM: Child Exploitation and Obscenity Section, n.d.) In all cases outlined there is evidence that one parent may seek to obtain a better live in the United States through immigration and/or a non-custodial parent seeking custody of a child that has been taken to a foreign nation by a biological parent that is a foreign national international kidnapping does occur. There are several problems that will arise in attempting to return these children to their parents. As is the case with Elian Gonzalez, he had reached the US mainland and as per legal guidelines he should have been allowed to stay, however, due to the fact that he was a minor he was returned to the care of his father in Cuba. As is the case of Sean Goldman, he was returned to the custody of his American father after a prolonged legal battle.
In the text International Law, Shaw states the following, “international law itself is divided into conflict of laws (or private international laws as it is sometimes called) and public international law (usually just termed international law). The former deals with those cases within particular legal systems, in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign courts.” (2003) With regard to international law each nation is sovereign, meaning that they are allowed to create and enforce whatever laws they see fit. In which case, it is difficult for international law to step into override legal rulings of sovereign nations. As is the case with custody issues, the United States had a policy that allowed Cuban nationals to remain in the United States if they reach dry land. However, Elian Gonzalez was a child at the time and was returned to the care of his father in Cuba, if this had been a custody case between relatives in the United States it is likely that the child would have been returned without question. The next case of Sean Goldman is different due to the fact that the child was kidnapped by the mother and taken to a foreign nation. With a different set of circumstances the child was returned to his father in the United States.
18 U.S. Code § 1204 - International parental kidnapping. (n.d.). Retrieved June 4, 2015, from https://www.law.cornell.edu/uscode/text/18/1204
Morley, J. (2007, July 27). U.S.-Cuba Migration Policy. Retrieved June 4, 2015, from http://www.washingtonpost.com/wp-dyn/content/article/2007/07/27/AR2007072701493.html
Shaw, M. (2003). International law (5th ed.). Cambridge, U.K.: Cambridge University Press. Ebook.
Siegelbaum, P. (2014, November 25). Elian Gonzalez: 15 years after his rescue, a quiet life. Retrieved June 4, 2015, from http://www.cbsnews.com/news/elian-gonzalez-15-years-after-his-rescue-a-quiet-life/
USDOJ: CRM: Child Exploitation and Obscenity Section. (n.d.). Retrieved June 4, 2015, from http://www.justice.gov/criminal/ceos/subjectareas/ipk.html