The Best Interests of the State: How Racialised Fear Steered the Hague Child Abduction Convention Away From Children's Interests

In 1980, two international bodies – the Council of Europe and the Hague Conference on Private International Law – each adopted a different treaty to address international parental child abduction (the removal of a child to another country by one parent without the other parent's consent). Despite being dominated by the same member states, the two organisations pursued markedly different approaches: the Council of Europe allowed for substantive considerations of the child's welfare in judicial decisions about the child's return, whereas the Hague Conference mandated a procedural, prompt return. This article aims to uncover the underlying reasons for these divergent approaches. Drawing on previously unexamined archival materials, I show that members of the Hague Conference were concerned that white children might be abducted to predominantly non-white Muslim countries, whose laws and customs were viewed as backward. This led the Hague Conference to adopt a return mechanism that prioritises state interests over the child's best interests. By contrast, the Council of Europe, whose remit covered only abductions within Europe, introduced a process that took the child's best interests into account. These divergent approaches, I maintain, were informed by racialised anxieties and Islamophobic proclivities, revealing how race inflects private international law. In this way, this article seeks to contribute to Third World Approaches to International Law (TWAIL) scholarship by applying its insights to private international law.