7/11 Update from Asociacion Defensores de la Adopcion

(Posted with permission from Susana Luarca, Attorney at Law).

July 11, 2003

Dear Friends:

In view of the announcements issued by the Central Authority, we must express:

1. The Hague Convention is an international treaty, not an ordinary law of the country. Therefore, it creates obligations for the State, not for the individuals who live in such State. The obligations acquired by Guatemala with its accession to the Hague Convention are to implement changes in the legislation regarding adoptions, following the guidelines established by the treaty. Those changes can only be implemented as laws passed by the Congress. The Central Authority *does not* have he power and authority to pass laws or to implement changes in the procedures. What they are doing is totally illegal.

2. The accession of Guatemala to the Hague Convention and the appointment of the PGN as Central Authority have been challenged before the Constitutional Court. The arguments are very solid and I believe that the only correct and legally defensible outcome is to declare both the accession to the Treaty, and the appointment of the Central Authority null and void. Unfortunately, nobody knows when the rulings will
be issued. We only hope that they will come out very soon.

3. One country can be obligated or benefited by an International treaty only if such country becomes a party to the treaty. Countries that are not parties, with regard to an specific treaty are regarded as Third States, in the terms of the Vienna Convention of 1969, also named “The Treaty of Treaties”. This is a well-estabalished principal of international law. Guatemala is a member to the Vienna Convention and therefore, it has to follow its norms regarding the application of treaties to other countries. Since The United States has not yet ratified the Hague Convention, the PGN /CA (which is not “the Guatemalan Government”, but only one office of the Guatemalan government,
whose duties are as adviser and consultant to other organs and entities of the government) cannot enforce its provisions on the United States. The concept may be difficult to grasp for some people, but for any person with legal training, it is a strong, solid and very legal argument. If the US DOS asserts the position of the United States as a Third State to the Hague Convention, none of the provisions of the Hague Convention could apply to Guatemalan adoptions by US Citizens.

4. The Constitution of Guatemala establishes that the treaties of Human Rights supersede the ordinary laws. Based on that, the PGN is actually taking the position that the Hague Convention is a Human Rights treaty and therefore, that it is now the adoption law of the country . They are wrong, because the Hague Convention IS NOT A
HUMAN RIGHTS TREATY. According to the book “Derecho Internacional Público”, written by Carlos Larios Ochaita, (current Chief Justice of the Supreme Court of Justice and husband of lawyer Elizabeth Hernández de Larios, who works at the
Procuraduría General de la Nación as the current director of the Central Authority), there are two criteria that human rights must meet in order to be considered as such: “a) All States must treat the Human Rights in the same way: in a global, fair and
equitable way, equally and with the same urgency; and b) All the States, regardless of their political, economical or cultural systems, have the duty of promoting all the Human Rights and all the fundamental liberties.”

The institution of Private Law as related to adoption, cannot in any way, be considered “Human Rights Matter”. The Vice Minister of Foreign Relations of Guatemala concurs with the argument that the Hague Convention is not a Human Rights treaty and has
stated so in writing. HOWEVER, as can be seen by what has happened this week in Costa Rica, there is big international pressure to treat adoption law and the Hague Treaty as a 'human rights' issue, focusing on the 'human rights' of the child. This is pushed hard by Casa Alianza, by UNICEF and similar. This is *exactly* one of the reasons why the HT is such a terrible thing. It opens the door to all sorts of other activities that end up stopping adoptions.

5. Is it necessary to file legal actions against the PGN/CA?

The only way the PGN will stop their illegal position, will be if and when the courts order it o do so. That can only be obtained by filing legal actions against the Attorney General, the director of the PGN and the director of the Central Authority, for denying the validity of the notarial process,for refusing to process the adoption files , and for passing their own “laws”, without the legal power to do so. This is going to require an ongoing, aggressive and difficult legal fight.

6.What actions are necessary to file?

a.Recursos de Amparo: This legal action is to protect rights that are being threatened or violated, when there is not other legal way to defend them. The right of the parents to have their adoptions processed by the still valid laws is being threatened as well as the welfare of their adoptive children, with the recent publication of the Central Authority, who is taking over adoptions and saying that the children will have to be in state orphanages, and first should be "offered" to relatives,then to nationals and just until nobody wants them, they can be placed for interantional adoption. The Hague Treaty is not a Human Rights treaty and does not have the power to supersede the laws that rule adoption, parental rights and reliquishment. Only those who are affected directly can file the actions, which could be the birthmothers, the adoptive parents, the lawyers, the notaries and the foster mothers. Actually this is what Gregory and I discussed on this list three
months ago.

b.Constitutional challenges: against the PGN passing their own rules, declaring that the notarial process is no longer acceptable and that the central authority is the only one who can handle adoptions. Articles 81 and 87 of the Constitution, protect the
professional practice of the university graduates (in this case the lawyers and the notaries), and states that any law that restricts their field of practice will be declared null. A constitutional challenge must be filed by any three lawyers.

c. Criminal Charges: The actions perpetrated by the people at the PGN constitute several criminal offenses: abuse of power, neglect to perform their official duties, contempt, usurpation of powers, and to dictate resolutions that violate the
Constitution. (Articles 418, 419, 420, 423 and 433 of the Criminal Code). Criminal complaints can be filed by anyone, even if the person is not a victim.

Talk to your lawyers about these actions and don't be a victim. Take action.

NEW REFERRALS
While the PGN/CA keeps stalling the adoption cases, those prospective parents who are waiting to get a referral are, understandably, having second thoughts about accepting a referral, not knowing for sure if the child will be able to join them in their homes. The adoption agencies are reluctant to place children, fearful of lawsuits if the adoptions cannot be finalized. For them, adoption is something optional. For us, here in Guatemala it is not an option. Every day we are approached by mothers wanting to place their children for adoption. How can we say no, when we know that the
alternative for those children is death? On the other hand,if there are no families waiting for their adoptive children to come home,who is going to help us to fight this battle? Those who already have their children at home? Not likely. The laws have not changed. Adoptions are not closed. The Constitution protects adoption,the rights of the parents to decide to place their children for adoption and the legal practice of the lawyers and notaries. The fact that adoptions are temporarily suspended by the illegal acts of some bureaucrats,whose reckless actions are endangering the lifes of many children only makes us to fight harder. Don't give up on Guatemalan adoptions, because every year there are less countries where adoptions are possible. We have to reverse that process. Any parent should be able to make an adoption plan for a child that cannot be supported

We urge you to try to come up with a temporary solution, where the agencies would keep placing children, the parents would keep accepting referrals, thus helping the Guatemalan attorneys to support the children in foster care and hogars. At times like these, we need to join efforts to keep the system running. Otherwise, we will be shutting down adoptions by ourselves and turning our backs to those children who need loving parents.
We are firm believers that justice and honesty will prevail and that adoptions will go back to normal. It only takes a lot of work, some time and unlimited faith.

Warmest regards,

Susana Luarca, Attorney at Law
Asociación Defensores de la Adopción