The Emancipation Of Children Is Still Far Off
On March 25th, the Human Rights Committee of the world-class, immoderately insane body of legislators known as the U.S. House of Representatives will host an important event in its legislative oversight role: it will review the operations of the U.S. response to the international abduction of children, a category with soaring numbers and immensely and overwhelmingly traumatic consequences for the children and parents who are its victims. At this Human Rights committee hearing, Office of Children’s Issues Ambassador-at-Large Susan Jacobs will unfortunately take advantage of yet another opportunity to lie like a rug on behalf of the Department of State and the Obama Administration and claim that the U.S. and Japan are helping parents of internationally abducted children. After she has done making eyes at the committee chair and pretending to be seriously engaged, two parents of abducted children will have the floor to testify on behalf of parents everywhere in mourning for the psychologically violent and exclusionary loss of our children to the insistently myth-stricken, monoculturalist government of Japan and the increasingly violent and hideous government of India. The parents who will testify are my friend Jeffery Morehouse and Bindu Philips.
People will wag their fingers at me for saying it so bluntly, but we know exactly what Susan “Ambassador” Jacobs is going to say well before she says it, and can also describe how her remarks will be forumlated to feign sympathy for the parents and children who are victims of DOS/ MOFA chicanery, and how she will claim “a tremendous amount of progress has been made” because of two or three international abduction cases that were mediated outside of any court or Hague process in the last year, thus leaving thousands of other children unrescued, thousands of other cases untouched, and none ajudicated in the family court on which the Hague Convention supposedly invests jurisidiction, much less power of protection for the vulnerable huddling under its leaky umbrella.
Meet the Professionalized ‘Officialdom’ of International Child Abduction
Since the spring of 2014, a number of parents of children who have been kidnapped to Japan have begrudgingly applied under the severe coercion of our circumstances, under the provisions of the U.S. DOS-OCI’s favored toy, the Hague Convention Article 21, which claims to require that parents of abducted children have access to their children restored. After five months of delay from the U.S. and Japanese governments, I received what I believe is a close-to-standard message from the Department of State’s OCI in response which I can describe as follows: 1) the State Department Office of Children’s Issues has devised no assistance to offer in defense of children or parents; but it has cheerfully acted instead as the willing messenger of the same primary representatives of the professional class of Japanese international child abduction (Ohnuki Kensuke, in my case), who now require that either I/we offer terms (which they are under no obligation to accept, ostensibly under Japanese “Alternative Dispute Resolution” (more on this in a moment), and which would therefore be pointless to pursue); or, 2) the law states that, alternatively, I may now proceed (as we all now can) to buy access to a hearing in identical Japanese family courtrooms to the ones which stole jurisdiction and made a formal legal gesture of the abductions of our children: in the case of my son Rui, in 2011, a year after his disappearance in 2010. Neither of these two options contains any potential for benefit to us as parents, nor certainly to our children. But that is not their purpose, a subject that we must explore further. Neither are either in any way binding; nor do either grant me and/ or my son any real, equal, defensible, or reciprocal rights. So I have not cooperated with Japan’s abduction industry by going any further as of yet.
“ADR” a la Japonaise
Two more points of great importance at this time:
(1) the State Department knows very well that Japanese incorporation of “alternative dispute resolution” into its institutional process of professional, legal child abduction is understood by Japanese mediators not only as a non-binding form of dispute resolution, but is actually “conciliation-mediation”, a creature quite different from dispute resolution. Conciliation-mediation means that the non-residential, rights-violated parent has to select one of these choices: Either: (a) agree to lose your child, and… lose your child; or, (b) DO NOT agree to lose your child, in which case you are liable. That is, you are deemed to be acting against the “spirit of conciliation”, and you are therefore more than likely to have the loss of your child again reaffirmed in the family court ruling which (theoretically, “legally”) must follow.
The second point of great importance at this time, in my view: (2) International law, strikingly in the instance of non-binding, non-criminal law treaties like the Hague Convention on the Civil Aspects of the International Abduction of Children, is a formal relation that is structured to create an illusion that our protections and those we possess on behalf of our children are now a part of what the US insists on, which is the systemic “interoperability” of numerous aspects of the US and allied legal and technological systems (such as those of the Japanese), in which the appearance of equality, universality, and reciprocity is foisted on socially and /or politically unequal parties. We parents have much in common with the private rights-violated, rights-deprived parents of Japan, but very little in common with these systemic objectives of the US Departments of State and Defense and the US policy establishment which, after all, is directly responsible for the return of Abe Shinzo to power, as Prime Minister.² The option of entering into a court legal process in Japan that has been sanctioned by the Japanese and American national governments cannot achieve an outcome for which it is neither designed nor an outcome which its practice is built to prevent; nor has this outcome even been achieved by indirection or accident. The form of the relations enacts its self-perpetuation, and can’t be otherwise, because neither we nor Japanese parents have the necessary powers there to protect our rights nor our children’s rights.
Who (or What) is the Subject of International Law?
I don’t want to make the ineffectual responses of OCI chair-warmers into the issue. What after all do they have to offer, but angst-inducing, empty, formulary statements? I wish I were able to attend the hearing on Wednesday, to offer what morale support I could to Jeffery Morehouse. He speaks for us.
I suspect we parents will not have many, (if any) more opportunities to make statements in the U.S. Congress, nor to protest the violation of our rights in that forum, although I hope that by some miracle, some of us do. The Department of State remains the institutional subject of this battle over international law; and before Jeffery gets to the table to speak, Susan Jacobs will be there first, making the usual statements about what wonderful hard-working (sic) persons she and the members of her DOS subdivision are, and how proudly they have been able to successfully place a legal document on file stating that Japan is a signatory, a part of the international community of human rights treaty partners. She will make her stand on that basis – stating that she and her fellow OCI and DOS colleagues can take *credit* for having created a marvelous chunk of institutional progress – a convention signing – without resorting to sanctioning the violators of our rights and the ruiners of our lives and those of our children.
Treaties: Form’s Pseudo-Equality
If I were able to testify – about as likely as a second solar eclipse occurring this week – I would say some of the above to illustrate how governing agencies like the Department of State use the “treaty form” as a wedge, not against Japanese international family abduction, and not as a weapon against the violation and violent ruin of children and their parents; but as a wedge against popular opinion, which if it were allowed to develop and speak, would unquestionably favor that parents and children be protected from Japan and its family court practices, as well as many other aspects of contemporary life in which a globalized world brushes territorially-distant people against one another and causes them harm against which they have no sufficient or effective defensive structures.
I would put it this way, more or less: international law, particularly non-binding, non-criminal law treaties like the Hague Convention on the Civil Aspects of the International Abduction of Children, exists to create an illusory appearance of equality, universality, and reciprocity between socially and politically unequal parties. The measure of its “success” is the degree to which it is able to make it appear that the parties are equal, universally protected, and reciprocally obligated, rather than permitting the true condition of their relations to be made visible: that of unequal parties to the conflict, whose differential levels of social power render the equality and reciprocity between them fictive.
A brief examination of international law history readily reveals this. The origins of international law lie in declarations of equality – legal equality – between technologically proficient, emerging national polities like those of the ocean-going European colonialists of Spain and Portugal on the one hand, and the tribally organized agrarian and hunter-gatherer peoples of North America on the other. Land would be made available for cultivation and settlement, and Aztec gold would be available for trade, because the “law” created and disseminated by the European powers as they emerged insisted on it; otherwise, the law said, the “rights” of the Spanish to trade (in the Aztec gold, or to occupy the territory for economic exploitation) would be violated, thus authorizing the Spanish Conquistadors to make war to ‘defend’ those ‘rights.’ The legal right itself was designated as reciprocal: should the Native American tribesmen choose to canoe their way across the Atlantic and offer trade in exchange for European wealth, they would have to be entitled to that right, or could legally make war on the Europeans for not honoring it. That they did not gather up their bows and arrows and do so, well… that’s their own fault.¹ Oh, and by the way, the European powers wrote the laws, too.
Japanese international child abduction, presented to the public as a private matter that is now regulated under a multi-lateral treaty between legally equal and reciprocally constituted entities (the State, now being the subject of all international law), is a direct case of an unchanged international law logic. The questionable presumptions underlying this include the idea that the State represents not itself, but the sovereign people. Sovereignty, despite the myriad ways in which power circulates and is captured today, is insisted upon by the State Department and its staff as principle number one, despite the numerous ways the principle is obviously flaunted. This renders our children unprotected on the basis of a seriously eroded territorial-jurisdiction-convceived structure of law which has little to do with the operations of contemporary global power.
Thus, we are Free… Free to defeat the Japanese state, and free to overcome the obstacles placed in our paths by the full organizational heft of the State Department and the forceful maintenance of its interests in creating an environment supportive of enormously powerful financial institutions; supportive of the wielding of massive levels of infrastructural, energy, resource and capital development; supportive of forward military base construction on territory of “our” choosing for profit-making, power projection, and to provide launching pads for future East Asian policing and war-making, over and against the will of the populations of the territories on which the wars are projected to take place. And all of this is rumored to take place under the guidance of a Swiss clock-like reciprocal, egalitarian, “democratic” rights-respecting, globally-scaled structural order of which the Hague Convention is a minute but necessary part.
Except that we have no say in its construction; and our children are ineligible for protection under the law.
If children are ever to be protected from abuse and harm, then the voices of their protectors, we who love them, must be heard. What stands the best chance of getting those voices heard, I claim, is for parents to break the insularity of family politics today, to see and claim as strongly as we can bear it, the commonalities of our oppression with that of numerous others who are harmed in similar or somewhat disparate ways by similar *forms* – legally sanctioned forms – of abjection and abuse, and whose claims to the right to live and be minimally secure are ignored in favor of a violently and oppressively maintained privileged few. To me, the large and unwieldy core of this process would entail the reconstitution of democracy: the democratization of institutions in which people can be authentic participants.
1 I’m very grateful and indebted to China Mieville’s discussion of just war for this example. It can be found in Between Equal Rights, (Haymarket Books, 2006, pp. 174-177).
2 There are ample resources demonstrating the role that the United States has played in the origins, building, re-building and restoration to power of the LDP in general, and of Shinzo Abe in particular. An outstanding recent source is R.Taggart Murphy’s Japan and the Shackles of the Past, Oxford University Press, 2014. Others include Gavin McCormack, Client State, Verso, 2007; Jeff Kingston, ed.,Critical Issues in Contemporary Japan, Routledge, 2014. And many others.