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Frequently Asked Questions: Intercountry Adoptions and the Hague Convention: Guatemala


 

Q: Is Guatemala party to the Hague Adoption Convention?

A: Guatemala deposited its accession instrument with the Convention depositary, the Dutch Foreign Ministry, in November 2002. In accordance with Article 46 of the Convention, the Convention entered into force for Guatemala on March 1, 2003. Thus, Guatemala has been party to the Convention since that date.

Q: But the Guatemalan Constitutional Court ruled the country’s accession unconstitutional. Doesn’t that negate what took place before this ruling?

A: No. Under international law, and specifically customary international law as reflected in the Vienna Convention on the Law of Treaties Article 46, which states “a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”

Guatemala cannot claim that its accession was a “manifest” violation of its constitution because a violation is only manifest if it is “objectively evident” in accordance with “normal practice” and “good faith.” Guatemala has acceded to many significant treaties, and it has considered itself a party to each of these. The international community had no way of knowing that Guatemala’s accession to the Intercountry Adoption Convention was potentially in violation of its constitution, and accordingly, Guatemala is still bound by its accession under international law.

Q: When will the Convention enter into force for the U.S.?

A: The U.S. intends to ratify the Convention in 2007. Under Convention Article 46, the Convention will enter into force three months after the date of ratification. Under Convention Article 44, after a country ratifies the Convention, it may, at that time, raise an objection to the accession of a country that previously acceded to the Convention.

Q: What does entry into force of the Convention mean for intercountry adoptions to the U.S.?

A: According to the Intercountry Adoption Act (the IAA), which is the U.S. implementing legislation for the Convention, when the Convention enters into force for the U.S., all intercountry adoptions between the U.S. and other countries party to the Convention must meet the requirements of the Convention, the IAA and the regulations implementing the IAA.

The Convention requires that certain key adoption functions in the country of origin be performed by that country’s Central Authority directly, by other public authorities, or by accredited adoption service providers. If such bodies do not perform these functions, the adoption may not meet Convention requirements.

Q: Does this mean that adoptions from Guatemala will stop when the U.S. is a Hague country?

A: It is too early to speculate on the specific situation at this time. We are proceeding on the belief that Guatemala will find an avenue to implement the Convention so that adoptions between Guatemala and the U.S. will be able to continue when the U.S. is a Hague country.

Q: Some in the U.S. adoption community have suggested that the U.S. Government has the authority to allow adoptions from Guatemala to continue, and that you are placing political motivations over the best interests of the children. How do you respond?

A: Such statements are completely unfounded. It is precisely to protect the best interests of the children that the U.S. joined, and has consistently urged other countries to join, the Hague Convention. The problems that have long existed in the Guatemalan adoption process are well-known. If Guatemala passes Hague-consistent legislation and implements the Convention as it committed to doing at the time it acceded, many of those problems will be addressed and Guatemala’s orphans will be more fully protected than they are now. This has always been, and continues to be, entirely about the children.

Q: Some other Hague Convention countries, especially in Western Europe, have objected to Guatemala’s status as a Hague Convention partner. Why doesn’t the U.S. just do the same thing?

A: Under Convention Article 44, when a country ratifies the Convention, it may, at that time, raise an objection to the accession of a country that previously acceded to the Convention. We understand that those countries that did object are not generally doing adoptions in Guatemala. Objecting or not objecting to Guatemala’s accession to the Hague Convention is a question the U.S. will deal with when the time comes. However, we believe that Guatemala needs to focus on finding a way to implement the Convention so that adoptions between the U.S. and Guatemala, once we ratify, will be done within the Hague framework .

Q: What is the Department of State doing about this issue?

A: The United States is in regular contact with Guatemala on the issue of intercountry adoption. We are encouraging Guatemala to pass implementing legislation this year that is consistent with the Hague Convention. The U.S. urges all countries, including Guatemala, to join and fully implement the Hague Convention, to ensure that all intercountry adoptions occur within strong safeguards and meet the best interests of the children concerned. The U.S. will maintain this dialogue with Guatemala as both countries proceed with efforts to implement the Hague Convention.