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91-576: The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty that provides an expeditious method to return a child who was wrongfully taken by a parent from one country to another country. In order for the Convention to apply, both countries (the one the child was removed from, and the one the child has been brought to) must be Contracting States; i.e. both must have adopted

182-401: A class of actions, without regard to particularistic interests of the parties or the strategic exigencies that may exist in any occurrence." He further clarified that multilateralism is 'a unique product of US global hegemony [. . . ] not necessarily a post-war American invention', but a reflection of post-war 'American hegemony '. Embedding the target state in a multilateral alliance reduces

273-470: A clean slate. It is a policy that flowed from our recent history and our national movement and its development and various ideals, we have proclaimed. (Nehru, 1961, p. 34). In fact, the foreign policy culture of India is an elite culture, meaning, in effect, that the writings and speeches of select leading figures of the Indian foreign policy elite provide an insight into the key ideas and norms constituting

364-564: A conference in The Hague organized by Tobias Asser in 1893. This was followed by successive conferences in 1894, 1900, and 1904. Like their counterparts in Montevideo, these conferences produced several multilateral agreements on various topics within conflict of laws. Thereafter, the pace of these meetings slowed, with the next conventions occurring in 1925 and 1928. The seventh meeting at The Hague occurred in 1951, at which point

455-545: A country is party. Moreover, in federal republics where substantial lawmaking occurs at the subnational level—notably in the United States—issues within conflict of laws often arise in wholly domestic contexts, relating to the laws of different states (or provinces, etc.) rather than of foreign countries. Western legal systems first recognized a core underpinning of conflict of laws—namely, that "foreign law, in appropriate instances, should be applied to foreign cases"—in

546-549: A court in another jurisdiction; and choice of law , which addresses the question of which substantive laws will be applied in such a case. These issues can arise in any private-law context, but they are especially prevalent in contract law and tort law . The term conflict of laws is primarily used in the United States and Canada, though it has also come into use in the United Kingdom. Elsewhere,

637-499: A jurisdiction or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection clause ). In the EU, this is governed by the Rome I Regulation . Choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract and will be determined by the law of

728-484: A larger one can be effective. Similarly, multilateralism may allow one great power to influence another great power. For a great power to seek control through bilateral ties could be costly; it may require bargaining and compromise with the other great power. Miles Kahler defines multilateralism as "international governance" or global governance of the "many," and its central principle was "opposition [to] bilateral discriminatory arrangements that were believed to enhance

819-403: A matter of fact through evidence. In general, the rules of evidence for Convention applications must be “the most expeditious procedures available”, due to the Convention objectives: to secure the prompt return of children. As a result, several Contracting States conduct hearings with only affidavit or written evidence, although oral evidence and cross examination are allowed if credibility

910-576: A more sympathetic court (i.e. one who is more likely to rule on custody and access in their favor). In order for a court to order the return of a child under Article 12 of the Convention, these conditions must be met: Even if the above conditions are met, the court might not order the return of the child because of the exceptions specified in Articles 12 and 13. Special Commissioner meeting held in Hague, Netherlands in 2023, Hague Conference reaffirmed

1001-507: A multilateral forum. Arguably, the Bush administration favoured bilateralism over multilateralism, or even unilateralism, for similar reasons. Rather than going it alone or going it with others, the administration opted for intensive one-on-one relationships with handpicked countries that maximized the U.S. capacity to achieve its objectives. Another challenge in global governance through multilateralism involves national sovereignty. Regardless of

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1092-421: A new State, and then “rely on their children’s contentment to avoid being returned to the jurisdiction which should properly deal with their custody and residence.” Some Contracting States have legislated precision into the level of objection required. In Australia, family law regulations provide that the child must object to a return, and the objection must show a “strength of feeling beyond the mere expression of

1183-431: A particular agreement. Victor Cha argued that: power asymmetries predict the type of structures, bilateral or multilateral, that offer the most control. If small powers try to control a larger one, then multilateralism is effective. But if great powers seek control over smaller ones, bilateral alliances are more effective. Thus, a country's decision to select bilateralism or multilateralism when enacting foreign policies

1274-513: A preference or of ordinary wishes.” Courts have distinguished between a child objecting to being returned to the State of habitual residence, and an objection to being returned to the care of the left-behind parent. The Convention provides that a court will order “the return of the child wrongfully removed or retained to the State of habitual residence and not to the person requesting the return” [emphasis added]. Multilateralism One of

1365-714: A tradition of public and private participation. After the Second World War the victors, drawing upon experience from the League's failure, created the United Nations in 1945. Since then, the "breadth and diversity" of multilateral arrangements have escalated. Unlike the League, the UN had the active participation of the United States and the Soviet Union , the world's then greatest contemporary powers. Along with

1456-651: Is unilateralism , in terms of political philosophy . Other authors have used the term "minilateralism" to refer to the fewest states required to get the biggest results through this institutional form. The foreign policy that India formulated after independence reflected its idiosyncratic culture and political traditions. Speaking in the Lok Sabha, the lower house of the Parliament of India, in March 1950, Nehru affirmed: “It should not be supposed that we are starting on

1547-464: Is at issue, or if the affidavit evidence is conflicting. In Canada, Convention applications are "typically heard on affidavit evidence". The same is true in the United Kingdom, Finland, and South Africa. In the Netherlands however, two hearings (and a child interview, if the child is above 6 years of age) will take place, and in the second hearing, the presence of all parties is "highly desirable" so

1638-634: Is greatly affected by its size and power, as well as the size and power of the country over which it seeks to control. Take the example of Foreign Policy of the United States . Many references discuss how the United States interacts with other nations. In particular, the United States chose multilateralism in Europe and decided to form NATO , while it formed bilateral alliances, or the Hub and spokes architecture , in East Asia. Although there are many arguments about

1729-406: Is in their mutual interest to do so. Scholars began to consider ways to resolve the question of how and when formally equal sovereign States ought to recognize each other's authority. The doctrine of comity was introduced as one of the means to answer these questions. Comity has undergone various changes since its creation. However, it still refers to the idea that every State is sovereign; often,

1820-403: Is intended to be a fact-based determination, avoiding legal technicalities. There are a few approaches to assessing habitual residence, depending on the court seized of the analysis. Rights of custody may arise by operation of law or from a judicial or administrative decision , or an agreement having legal effect under the law of the country of habitual residence. The explanatory report of

1911-417: Is no formal agreement but one parent sees or spends time with the child, there may be a question as to whether or not that parent was actually exercising custody rights. For some Contracting States, "actually exercising" is defined broadly so that some minimal involvement between the parent and child is enough. For example, in a case from Quebec Canada, one parent’s telephone contact and occasional visits with

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2002-455: Is taken in the UK. The parent seeking to defend against the return order can argue that the child objects to the return. A preference to remain in the new State because the child likes their new school and friends is not enough to amount to an objection. To accept a child’s preference as sufficient would undercut the objectives of the Convention, encouraging parents to abduct their children, settle in

2093-407: Is the set of rules or laws a jurisdiction applies to a case , transaction , or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad topics: jurisdiction , rules regarding when it is appropriate for a court to hear such a case; foreign judgments , dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of

2184-417: Is up to the parent applying for the child’s return to “adduce as much evidence as possible about the circumstances of the children's departure” which could include texts, emails and any deceitful behaviour on the part of the abducting parent (i.e. only a few of the child’s items were packed, fooling the left-behind parent into thinking that the trip was temporary). For this defence to apply, the application for

2275-474: The Conference of Berlin in 1884 helped reduce power conflicts during this period, and the 19th century was one of Europe's most peaceful. Industrial and colonial competition, combined with shifts in the balance of power after the creation - by diplomacy and conquest - of Germany by Prussia meant cracks were appearing in this system by the turn of the 20th century. The concert system was utterly destroyed by

2366-498: The European Union and NAFTA , although these are not in themselves incompatible with larger accords. The original sponsor of post-war multilateralism in economic regimes, the United States, turned towards unilateral action and in trade and other negotiations as a result of dissatisfaction with the outcomes of multilateral fora. As the most powerful nation, the United States had the least to lose from abandoning multilateralism;

2457-706: The First World War . After that conflict, world leaders created the League of Nations (which became the precursor of the United Nations ) in an attempt to prevent a similar conflict. Although the League of Nations failed in its security mission, it initiated a variety of specialized organizations that continue to operate today. Moreover, although the US did not join, it did provide a degree of support from individual Americans and American philanthropies that started

2548-732: The International Telecommunication Union (ITU) to the World Intellectual Property Organization (WIPO) and Organisation for the Prohibition of Chemical Weapons (OPCW) The multilateral system has encountered mounting challenges since the end of the Cold War. The United States became increasingly dominant in terms of military and economic power , which has led countries such as Iran, China and India to question

2639-496: The Central Authority or the courts directly, and any documents attached to that application, shall be admissible in proceedings for a child's return. Further, the court in which a Convention application is proceeding, when determining whether there is a wrongful removal or retention, may take judicial notice of the law in the State of habitual residence of the child, without requiring the parties prove that State’s law as

2730-477: The Constitution, over one hundred cases dealt with these issues, though the term conflict of laws was not yet used. The Constitution created a "plurilegal federal union" in which conflicts are inherently abundant, and as a result, American judges encounter conflicts cases far more often—about 5,000 per year as of the mid-2010s—and have accumulated far more experience in resolving them than anywhere else in

2821-421: The Convention objective and justify denying the return. Other jurisdictions look to the child to assess whether or not they are settled in their new environment by taking a literal approach to settlement. In Canada, one Court held that “to determine if a child is “now settled” in its new environment, a “child-centric” factual inquiry must be undertaken to determine the child’s actual circumstances.” The same approach

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2912-425: The Convention. The Convention seeks to address international child abduction arising when a child is removed by one parent, when both parents have custody rights, or custody has yet to be determined. It was drafted to ensure the prompt return of children wrongfully abducted from their country of habitual residence , or wrongfully retained in a country that is not their country of habitual residence. The Convention

3003-461: The Court held that a parent’s ne exeat right, i.e. the right to consent before a child is moved to another country, is sufficient to give rise to rights of custody under the Convention. The General Principles and Guide to Good Practice, Hague Conference on Private International Law explains, at page 43, that a significant number of cases interpreting 'rights of custody' under the Convention supports

3094-536: The Soviet Union had signed in 1972. These challenges presented by the U.S. could be explained by a strong belief in bilateral alliances as instruments of control. Liberal institutionalists would argue, though, that great powers might still opt for a multilateral alliance. But great powers can amplify their capabilities to control small powers and maximize their leverage by forging a series of bilateral arrangements with allies, rather than see that leverage diluted in

3185-432: The State's constitution. In the United States, salient issues in the field of conflict of laws date back at least to the framing of the Constitution. There was concern, for example, about what body of law the newly created federal courts would apply when handling cases between parties from different states (a type of case specifically assigned to the federal courts ). Within the first two decades following ratification of

3276-639: The UN's relevance. Concurrently, a perception developed among internationalists such as former UN Secretary-General Kofi Annan , that the United States is more inclined to act unilaterally in situations with international implications. This trend began when the U.S. Senate, in October 1999, refused to ratify the Comprehensive Test Ban Treaty , which President Bill Clinton had signed in September 1996. Under President George W. Bush

3367-417: The United Nations (by consolidating their UN vote in a voting bloc with other nations, for example.) Multilateralism may involve several nations acting together, as in the UN, or may involve regional or military alliances, pacts, or groupings, such as NATO . These multilateral institutions are not imposed on states but are created and accepted by them to increase their ability to seek their own interests through

3458-533: The United Nations made the new system more powerful than the old League system. Moreover, United Nations peacekeepers stationed around the world became a visible symbol of multilateralism. Later, the North Atlantic Treaty Organization (NATO) was formed as a defensive alliance that used the multilateral form to promote collective security in the postwar era. Multilateral institutions of varying scope and subject matter range from

3549-916: The United States rejected such multilateral agreements as the Kyoto Protocol , the International Criminal Court , the Ottawa Treaty banning anti-personnel land mines and a draft protocol to ensure compliance by States with the Biological Weapons Convention . Also under the George W. Bush administration , the United States withdrew from the Anti-Ballistic Missile Treaty , which the Richard Nixon administration and

3640-571: The United States, the minimum contacts rule derived from the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution regulates the extent to which one state can exercise jurisdiction over people domiciled in other states, or occurrences that took place in other states. Courts faced with a choice of law issue have a two-stage process: Many contracts and other forms of legally binding agreement include

3731-407: The abducting parent can prove that they reasonably believed that the other parent consented to a durable, lasting change in the residence of the child. Evidence that one parent deceived the other will likely vitiate any finding of consent. The burden of proof is on the abducting parent who is fighting the Convention application to show that the other parent did in fact consent or acquiesce. Then, it

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3822-515: The alleged removal or retention, habitually resident in the Contracting State to which return is sought. This means that a child, taken from State A to State B, will only be subject to a return order to State A if the court determines that the child’s habitual residence was State A at the time the child was taken. The Convention does not define the term "habitual residence", so it is open to the courts in each Contracting State to do so. It

3913-503: The analysis to classify the removal as wrongful, which is a question for the court requesting the Article 15 determination. An Article 15 determination from a Contracting State should be taken as conclusive to avoid further delays. The Convention provides special rules for admitting evidence, independent of the evidentiary standards set by the domestic laws of each Contracting State. Article 30 provides that any application submitted to

4004-434: The applicable law itself is domestic law. This is because, unlike public international law (better known simply as international law ), conflict of laws does not regulate the relation between countries but rather how individual countries regulate internally the affairs of individuals with connections to more than one jurisdiction. To be sure, as in other contexts, domestic law can be affected by international treaties to which

4095-433: The authority of a legislature to pass laws covering certain conduct). Like all aspects of conflict of laws, this question is in the first instance resolved by domestic law, which may or may not incorporate relevant international treaties or other supranational legal concepts. That said, relative to the other two main subtopics of conflicts of law (enforcement of judgements, and choice of law, which are both discussed below),

4186-539: The best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention”. These exceptions are explained further below. Whether or not a parent was actually exercising their custody or access rights is arguable depending on the rights of custody held, based on the law of the State of habitual residence. If there is a clear court order that dictates custody or an access schedule, there will be little dispute. If there

4277-491: The care of the child and the right to determine the child’s place of residence, while “rights of access” includes the right to take the child for a period of time. Rights of custody may not be explicit or formal in order for them to be recognized by a court. In the Matter of K (A Child) (Northern Ireland), the Court ruled that the term rights of custody may include certain informal rights (called "inchoate rights"). In that case,

4368-474: The child (one visit in the year 2009) were considered sufficient to equate to an actual exercise of custody rights. Additionally, if custody has not yet been determined, it is possible that the court will find that the parent had rights of custody that “would have [been] exercised” had the child not been removed by the abducting parent. A parent can explicitly consent to the child’s removal or retention, or they can acquiesce , i.e. passively and implicitly accept

4459-451: The child is not to be returned under the Convention. A court in the State the child has been brought to should not consider the merits of the underlying custody or access dispute, but should determine only the country in which that dispute should be adjudicated. The Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, "shall act expeditiously in all proceedings seeking

4550-593: The child lived with his maternal grandparents in Lithuania when, at the age of 7, the mother moved the child to Northern Ireland against the grandparent’s wishes. There was no custody order awarding the grandparents any rights of custody, but if they had applied for a custody order in Lithuania they would have likely been able to secure one. Specific and limited rights of custody may still amount to rights of custody for Convention purposes. For example, in Abbott v. Abbott ,

4641-422: The child “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views ” under Article 13; or (e) "there is grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation," under Article 13(b); or (f) the court’s invokes its residual discretion under Article 20:

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4732-491: The child’s return must have been commenced after 1 year of the removal or retention, and the child must be settled in the new State. The parent resisting the return order is advised to adduce as much evidence as possible about the child’s school, friendships, and community connections in the new State. In some jurisdictions, the courts refer to the primary purpose of the Convention (the return of children) to hold that only strong and compelling evidence of settlement can displace

4823-404: The common goal of Hague convention and UNCRC , by making the following statement: These exceptions, however, must be applied restrictively . While the exceptions derive from a consideration of the interests of the child, they do not turn the return proceedings into custody proceedings (IV-1-15)... The Convention does not alter any substantive rights of the parents. When an abduction occurs,

4914-506: The convention clarifies the meaning of wrongful as: "the removal of a child by one of the joint holders without the consent of the other, is ... wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise." The Convention specifies that “rights of custody” includes rights relating to

5005-436: The coordination of their policies. Moreover, they serve as frameworks that constrain opportunistic behaviour and encourage coordination by facilitating the exchange of information about the actual behaviour of states regarding the standards to which they have consented. The term "regional multilateralism" has been proposed by Harris Mylonas and Emirhan Yorulmazlar, suggesting that "contemporary problems can be better solved at

5096-594: The costs borne by the power-seeking control, but it also offers the same binding benefits of the Lilliputian strategy. Furthermore, if a small power seeks control over another small power, multilateralism may be the only choice, because small powers rarely have the resources to exert control on their own. As such, power disparities are accommodated to the weaker states by having more predictable bigger states and means to achieve control through collective action. Powerful states also buy into multilateral agreements by writing

5187-459: The effectiveness of international cooperation. Multilateralism, in the form of membership in international institutions, serves to bind powerful nations, discourage unilateralism , and gives small powers a voice and influence that they could not otherwise exercise. For a small power to influence a great power, the Lilliputian strategy of small countries banding together to collectively bind

5278-472: The erosion of nation-states' legal and operational sovereignty in international relations, "nation-states remain the ultimate locus of authoritative decision making regarding most facets of public and private life". Hoffman asserted that nation-states are "unlikely to embrace abstract obligations that clash with concrete calculations of national interest." Global multilateralism is challenged, particularly with respect to trade, by regional arrangements such as

5369-508: The extent that domestic law renders the treaty obligations enforceable). The term private international law comes from the private law / public law dichotomy in civil law systems . In this form of legal system, the term private international law does not imply an agreed upon international legal corpus , but rather refers to those portions of domestic private law that apply to international issues. Importantly, while conflict of laws generally deals with disputes of an international nature,

5460-552: The foundation of India's foreign policy . One modern instance of multilateralism occurred in the nineteenth century in Europe after the end of the Napoleonic Wars , where the great powers met to redraw the map of Europe at the Congress of Vienna (November 1814 to June 1815). The Concert of Europe , as it became known, was a group of great and lesser powers that would meet to resolve issues peacefully. Conferences such as

5551-424: The judge can "hear from you and the other parent". The Convention limits the defences available to the parent refuting the return application. To defend against the return of the child, the defendant parent must establish to the degree required by the applicable standard of proof (generally determined by the lex fori , i.e. the law of the State where the court is located), that one of the following apply: (a)

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5642-408: The key advantages of multilateralism is that it enables countries to solve problems that transcend national boundaries, such as climate change, terrorism, and pandemics, through shared responsibility and burden-sharing. However, multilateralism is not without its challenges. The rise of populism, nationalism, and protectionism in some countries has raised concerns about the future of multilateralism and

5733-417: The key questions addressed within conflict of laws is the determination of when the legislature of a given jurisdiction may legislate, or the court of a given jurisdiction can properly adjudicate, regarding a matter that has extra-jurisdictional dimensions. This is known as jurisdiction (sometimes subdivided into adjudicative jurisdiction , the authority to hear a certain case, and prescriptive jurisdiction ,

5824-402: The law of one Contracting State are effectively respected in the other Contracting State. The Convention is used when one parent (the "abducting parent") allegedly removed or retained the child in a State other than the State of habitual residence, either: The Convention, by returning children to the State of habitual residence, deters parents from crossing international borders in search of

5915-408: The law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Habitual residence must be assessed first because whether or not a parent had rights of custody is determined by the law of

6006-406: The laws of the child's State of habitual residence, the court then determines whether or not those rights were “actually exercised”, making the removal or retention wrongful. Article 15 of the Convention is designed to promote cooperation amongst Contracting States. It provides that a Contracting State may, prior to making an order for the return of the child, request a decision or determination that

6097-546: The leverage of the powerful over the weak and to increase international conflict."; Robert Keohane defined it as "the practice of coordinating national policies in groups of three or more states." John Ruggie further elaborated the concept in his influential writings on multilateralism. Based on principles of "indivisibility" and "diffuse reciprocity he defined it as "an institutional form which coordinates relations among three or more states based on 'generalized' principles of conduct ... which specify appropriate conduct for

6188-647: The middle of the fourteenth century, a work that came to be cited repeatedly for the next several centuries. Later, in the seventeenth century, several Dutch legal scholars, including Christian Rodenburg , Paulus Voet , Johannes Voet , and Ulrik Huber , further expounded the jurisprudence of conflict of laws. Their key conceptual contributions were twofold: First, nations are wholly sovereign within their borders and therefore cannot be compelled to enforce foreign law in their own courts. Second, in order for international conflicts of law to work rationally, nations must exercise comity in enforcing others' laws, because it

6279-461: The most just exercise of one State's authority is by recognizing the authority of another through the recognition and enforcement of another state's laws and judgments. Many states continue to recognize the principle of comity as the underpinning of private international law such as in Canada. In some countries, such as the United States of America and Australia, the principle of comity is written into

6370-474: The parent applying for the child’s return was not "actually exercising custody rights at the time of the removal or retention" under Article 13(a); or (b) the parent applying for the child’s return "had consented to or acquiesced in the removal or retention" under Article 13(a); or (c) the application for return commenced more than one year from the time of wrongful removal or retention and the child has "settled in its new environment", under Article 12; or (d)

6461-479: The parent seeking the child's return will commence proceedings by making an application to the Central Authority . Each Contracting State is required to have a Central Authority to help facilitate the child's return. The Convention requires that no judicial or administrative authority in the State the child has been brought to shall decide the merits of custody or access until it has been determined that

6552-427: The place of habitual residence . (See, for example the U.S. case Carrascosa v. McGuire , where the Court refused to accept a Spanish Court's decision that the father did not have rights of custody. The Spanish Courts never applied New Jersey law despite acknowledging that the child's place of habitual residence was New Jersey). An application for the return of a child can succeed only if a child was, immediately before

6643-826: The political institutions of the UN, the post-war years also saw the development of organizations such as the General Agreement on Tariffs and Trade (GATT) (now the World Trade Organization ), the World Bank , and the International Monetary Fund (IMF) (the so-called ' Bretton Woods ' institutions), and other technical institutions that were part of the UN system—including the World Health Organization . Formation of these and other subsequent bodies under

6734-831: The reasons for this, Cha's " powerplay " theory provides one possible reason. He argued: ...postwar U.S planners had to contend with a region uniquely constituted of potential rogue allies, through their aggressive behaviour, could potentially entrap the United States in an unwanted wider war in Asia... To avoid this outcome, the United States created a series of tight, deep bilateral alliances with Taiwan, South Korea, and Japan through which it could exercise maximum control and prevent unilateral aggression. Furthermore, it did not seek to make these bilateral alliances multilateral, because it wanted to amplify U.S. control and minimize any collusion among its partners. Applicable law Conflict of laws (also called private international law )

6825-449: The regional rather than the bilateral or global levels" and that bringing together the concept of regional integration with that of multilateralism is necessary in today's world. Regionalism dates from the time of the earliest development of political communities, where economic and political relations naturally had a strong regionalist focus due to restrictions on technology, trade, and communications. The converse of multilateralism

6916-419: The removal or retention was wrongful within the meaning of Article 3 of the Convention by that Contracting State’s law. The rationale behind Article 15 is that the foreign court is better placed to understand the meaning and effect of its own laws. Some Contracting States take the position that an Article 15 determination should report only on matters of national law regarding rights of custody, and not to extend

7007-410: The removal or retention. In short, acquiescence implies unstated consent. Consent must be real, positive and unequivocal so that a court is satisfied that consent was actually given, despite the absence of a written agreement. This defence is likely to be successful where evidence is convincing that the left-behind parent made an informed decision, consenting to the child’s removal or retention, and that

7098-417: The return of children", and the institutions in each Contracting State "shall use the most expeditious procedures available" to ensure the prompt return specified in the Convention objectives. The Convention provides that the removal or retention of a child is "wrongful" whenever: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under

7189-492: The return of the child is not permitted by the fundamental principles (in the State conducting the analysis) that relate to the protection of human rights and fundamental freedoms . While the best interests of the child is central to legal decisions involving children, it does not play a role in a Convention application. The Convention presupposes that the child’s best interest is served by their prompt return to their State of habitual residence. That being said, "the concept of

7280-627: The rules and having privileges such as veto power and special status. International organizations , such as the United Nations (UN) and the World Trade Organization , are multilateral in nature. The main proponents of multilateralism have traditionally been the middle powers , such as Canada, Australia, Switzerland, the Benelux countries and the Nordic countries . Larger states often act unilaterally , while smaller ones may have little direct power in international affairs aside from participation in

7371-581: The sixteen involved states established a permanent institution for international collaboration on conflict-of-laws issues. The organization is known today as the Hague Conference on Private International Law (HCCH). As of December 2020 , HCCH includes eighty-six member states. As attention to the field became more widespread in the second half of the twentieth century, the European Union began to take action to harmonize conflict of laws jurisprudence across its member states. The first of these

7462-541: The state where the choice of law clause confers its competence. Oxford Professor Adrian Briggs suggests that this is doctrinally problematic as it is emblematic of 'pulling oneself up by the bootstraps'. Judges have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction. This judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors; it also harms consumers as vendors often impose one-sided contractual terms selecting

7553-402: The term private international law is commonly used. Some scholars from countries that use conflict of laws consider the term private international law confusing because this body of law does not consist of laws that apply internationally, but rather is solely composed of domestic laws; the calculus only includes international law when the nation has treaty obligations (and even then, only to

7644-679: The theory regarding jurisdiction has developed consistent international norms. This is perhaps because, unlike the other subtopics, jurisdiction relates to the particularly thorny question of when it is appropriate for a country to exercise its coercive power at all, rather that merely how it should do so. There are five bases of jurisdiction generally recognized in international law. These are not mutually exclusive; an individual or an occurrence may be subject to simultaneous jurisdiction in more than one place. They are as follows: Countries have also developed bodies of law for adjudicating jurisdiction disputes between subnational entities. For example, in

7735-675: The topic of conflict of laws arose from the First South American Congress of Private International Law , which was held in Montevideo from August 1888 to February 1889. The seven South American nations represented at the Montevideo conference agreed on eight treaties, which broadly adopted the ideas of Friedrich Carl von Savigny , determining applicable law on the basis of four types of factual relations (domicile, location of object, location of transaction, location of court). Soon after, European nations gathered for

7826-469: The twelfth century. Prior to that, the prevailing system was that of personal law , in which the laws applicable to each individual were dictated by the group to which he or she belonged. Initially, the mode of this body of law was simply to determine which jurisdiction's law would be most fair to apply; over time, however, the law came to favor more well-defined rules. These rules were systematically summarized by law professor Bartolus de Saxoferrato in

7917-401: The view that a right of access combined with a veto on the removal of a child from the state of habitual residence, constitutes real rights of custody. However, if the parent has the right to object , as opposed to the right to veto the removal of the child, this is not sufficient to amount to rights of custody. After assessing whether the parent had rights of custody or access according to

8008-716: The weakest nations have the most to lose, but the cost for all would be high. Aside from changes in the US, populism in Europe has proven to be problematic to multilateralism in recent years. Results from direct elections to the European Parliament give evidence to this claim, as Eurosceptic parties have made advances. When enacting foreign policies, governments face a choice between unilateralism, bilateralism and multilateralism. Bilateralism means coordination with another single country. Multilateralism has attempted to find common ground based on generalized principles of conduct, in addition to details associated with

8099-462: The world. Alongside domestic developments relating to conflict of laws, the nineteenth century also saw the beginnings of substantial international collaboration in the field. The first international meeting on the topic took place in Lima in 1887 and 1888; delegates from five South American countries attended, but failed to produce an enforceable agreement. The first major multilateral agreements on

8190-542: Was developed by the Hague Conference on Private International Law (HCCH). The convention was concluded 25 October 1980 and entered into force between the signatories on 1 December 1983. As of 2022, there are 103 parties to the convention; Botswana and Cape Verde being the most recent countries to accede, in 2022. The objectives of the Convention are set out in Article 1: to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and, to ensure that rights of custody and of access under

8281-717: Was the Brussels Convention agreed in 1968, which addressed questions of jurisdiction for cross-border cases. This was followed in 1980 by the Rome Convention , which addressed choice-of-law rules for contract disputes within EU member states. In 2009 and 2010, respectively, the EU enacted the Rome II Regulation to address choice-of-law in tort cases and the Rome III Regulation to address choice-of-law in divorce matters. One of

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