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The Hague Child Abduction Convention: Practical Issues Public International Law: Alternative Seminar Zdeněk Nový.

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Presentation on theme: "The Hague Child Abduction Convention: Practical Issues Public International Law: Alternative Seminar Zdeněk Nový."— Presentation transcript:

1 The Hague Child Abduction Convention: Practical Issues Public International Law: Alternative Seminar Zdeněk Nový

2 Hague Child Abduction Convention (HCAC) One of the most frequently used international treaties in the Czech Republic 2

3 How to approach the issue of child abduction? An academic viewpoint A legal practioner´s viewpoint 3

4 Academic approach Academic writing aims to present as far as possible an objective reality× ->To find harmony among various perspectives If this turns out to be futile, then it is necessary to find the principles for the resolution of the conflict between the perspective 4

5 Advocacy The role of an advocate is to represent a client and pursue his interest (not only) in writing which may entail to present reality in a rather subjective way Advocacy may require to present the case, e.g. only from private- international-law perspective 5

6 The Outline of your Arguments in the Letter as an Advocate The structure: – Use the opening – Use the middle – Summarize the facts The language: – Use simple language – Use short sentences as well as rather short paras 6

7 The content of the letter Sources to be used Colliding Interests Concurring perspectives 7

8 Various sources International law: – The HCAC – Convention on the Rights of Child – European Convention on Human Rights EU law: – Brussels Iibis Regulation (expedited return) National law (to ascertain habitual residence of the child before removal) 8

9 Various (colliding interests) Child- of primary importance Left-behind parent Abducting parent Public interest of a state 9

10 Perspectives on Child Abduction Civil-law perspective Private-international-law perspective Public-international-law perspective Conflicting perspectives 10

11 Private-international-law approach Traditional This entails, inter alia, that little regard is paid to the substantive considerations (like human rights) The HCAC as a technique 11

12 The conflict between Private-Int.-Law and Public-Int.-Law Perspectives Any idea how this might help in situations like Ṥneerosne and Kampanella? 12

13 Public int. law Child rights are human rights Child rights are laid down in international treaties as sources of internationla law: – Interpretation – Conflict of treaties 13

14 Magic formula: Best interest of the child Different concepts under different treaties (The Convention on Rights of Child vs. the HCAC) Substantive vs. “technical approach” 14

15 Conflict among treaties Conflict-resolving clauses Lex posterior (Art. 30 Vienna Convention) Lex specialis (general principle of law) The problem: the reality is more colourful than these three analytical tools 15

16 The resolution of a “conflict” via interpretation Various treaties applicable to child abduction, but pursuing different aims - > conflict It is to be preferred to resolve the conflict via harmonious interpretation? What are the methods for interpreation of int. Treaties? 16

17 Systemic interpretation or „integration“ (?) International treaty must be interpreted in context of other sources of international law (art. 31 (3) (c) Vienna Convention) 17

18 How to work with the HCAC? It is of absolute necessity to analyze the case law to the HCAC at:http://www.incadat.com/http://www.incadat.com/ The courts (should) pay regard to the cases decided by their counterparts in the states that are a party to the HCAC 18

19 The practical problems (not only) in Czech courts Court did not know how to apply the convention Judges often do not have sufficient command of English or/and French Delays in deciding in return proceedings Dilatory tactics by parents 19

20 Useful links ectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22]} ectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22]} 20


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