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The Principle of Subsidiarity in the Hague Convention on Intercountry Adoption: A Philosophical Analysis

  • Sarah-Vaughan Brakman

Abstract

The principles of the best interest of children and subsidiarity constitute the conceptual foundation of the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (HCIA). Subsidiarity in the HCIA dictates a priority for domestic adoption placements for children over intercountry adoption. This article argues against subsidiarity on two fronts. First, the analysis shows that the in-principle priority of domestic adoption cannot be justified on the basis of either heritage rights or state sovereignty. Second, the principle of subsidiarity in the HCIA is a procedural principle, one that stipulates the political/geographical location of the placement of children through a priority ordering. This does not comport with the principle of subsidiarity as it has been conceptualized in ethics and social philosophy, which gives normative structure to the process of decision-making by stipulating the proper level for decisional authority. Subsidiarity in this original sense holds that decisions regarding child welfare should be made at the lowest level possible, by those most affected by the decisions, unless doing so would not be the most suited to protecting and promoting the best interests of children. Appealing to subsidiarity in this theoretical version reveals at least two significant problems with HCIA placement policy and leads to the conclusion that subsidiarity in the HCIA must be formally revised as a structural principle of ethics that will not support the general priority of domestic adoption.

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Footnotes

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An earlier version of this article was presented at the Luncheon Lecture Series of the Ethics Program at Villanova University in 2018. I thank the audience for their engagement, in particular Peter Koch and Stephen Napier. I am grateful to Mark Doorley, Paul Sheldon, the editors of Ethics & International Affairs, and three anonymous referees for their comments. I am especially indebted to Sally J. Scholz, who provided extensive comments on multiple drafts and who generously discussed the ideas in this article on several occasions. My reading of her work on solidarity inspired my interest in the HCIA and subsidiarity.

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References

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NOTES

1 “Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption,” Hague Conference on Private International Law, May 29, 1993, assets.hcch.net/docs/77e12f23-d3dc-4851-8f0b-050f71a16947.pdf.

2 The Hague Convention on Intercountry Adoption: A Guide for Prospective Adoptive Parents, pub. no. 11373 (New York: United States Department of State, Bureau of Consular Affairs, 2006).

3 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption: 25 Years of Protecting Children in Intercountry Adoption (Hague: Hague Conference on Private International Law Permanent Bureau, 2018), assets.hcch.net/docs/ccbf557d-d5d2-436d-88d6-90cddbe78262.pdf.

4 Hague Conference on Private International Law “Convention on Protection of Children,” p. 1.

5 “Convention on the Rights of the Child,” November 20, 1989, United Nations Human Rights, Office of the High Commissioner, www.ohchr.org/en/professionalinterest/pages/crc.aspx; “Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally,” A/Res/41/85, December 3, 1986, United Nations General Assembly, www.un.org/documents/ga/res/41/a41r085.htm.

6 “Convention on the Rights of the Child,” United Nations Human Rights, p. 1. Elsewhere I analyze the best interest of children principle as it is used in international child rights documents. I critique the concept of best interest as being underspecified and undertheorized; I appeal to a capabilities approach to specify and ground the best interest principle; and I defend a bolder policy regarding the role of ICA for unparented children globally. Sarah-Vaughan Brakman, “A Capabilities Approach and the Best Interest of Children in Intercountry Adoption” (unpublished manuscript).

7 The term “unparented children” has become controversial in the field. International policy often refers to “orphans,” meaning children who have lost both parents to death, and some believe that intercountry adoption (ICA) ought to be considered solely for orphans. Many children, however, have lost just one parent and the remaining parent cannot care for them. Here, unparented children refers to orphans as well as to children whose living parent(s) is not caring for them and who have no stable familial living situation.

8 Wm. Robert Johnston, “Historical International Adoption Statistics, United States and World,” Johnston's Archive, last updated August 5, 2017, www.johnstonsarchive.net/policy/adoptionstatsintl.html.

9 Cantwell, Nigel, The Best Interests of the Child in Intercountry Adoption (Florence: UNICEF Office of Research, 2014), p. 42, www.unicef-irc.org/publications/pdf/unicef%20best%20interest%20document_web_re-supply.pdf.

10 See Montgomery, Mark and Powell, Irene, Saving International Adoption: An Argument from Economics and Personal Experience (Nashville: Vanderbilt University Press, 2018, p.4). Or see Mark Montgomery and Irene Powell, “International Adoptions Have Dropped 72 Percent since 2005—Here's Why,” the Conversation, February 28, 2018, theconversation.com/international-adoptions-have-dropped-72-percent-since-2005-heres-why-91809. In the article, Montgomery and Powell discuss the findings from their book and report that, between 2000 and 2016, the number of children in the United States adopted from the six most popular countries (Ethiopia, China, South Korea, Russia, Romania, and Guatemala) fell more than 75 percent.

11 Kevin Voigt and Sophie Brown, “International Adoptions in Decline as Number of Orphans Grows,” CNN, September 17, 2013, www.cnn.com/2013/09/16/world/international-adoption-main-story-decline/index.html.

12 Petrowski, Nicole, Cappa, Claudia, and Gross, Peter, “Estimating the Number of Children in Formal Alternative Care: Challenges and Results,” Child Abuse and Neglect 70 (August 2017), pp. 388–98.

13 Montgomery and Powell, Saving International Adoption. For Russia's ban, see p. 44; for implementation difficulties as likely reasons for the decrease in ICA from Cambodia and Vietnam after entry into force of the HCIA, see pp. 157–58; for South Korea restrictions on ICA as a result of national pride, see p. 41.

14 Cantwell, Best Interests of the Child in Intercountry Adoption, p. 43.

15 See Bartholet, Elizabeth, “International Adoption: The Child's Story,” Georgia State University Law Review 24, no. 2 (winter 2007), pp. 333–79; Bartholet, Elizabeth, “International Adoption: Thoughts on the Human Rights Issues,” Buffalo Human Rights Law Review 13 (2007), pp. 151203; and Bartholet, Elizabeth, “International Adoption: The Human Rights Position,” Global Policy 1, no. 1 (January 2010), pp. 91100. Bartholet notes the principle of subsidiarity and its role in the decline of ICA. My philosophical argument aligns with Bartholet's conclusions in many respects.

16 See the 1986 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, Art. 17; the “Convention on the Rights of the Child,” United Nations Human Rights, Art. 21(b); and “Convention on Protection of Children and Co-Operation,” Hague Conference on Private International Law, Art. 4(b). See also Lakshmi Kant Pandey v. Union of India, February 6, 1984, indiankanoon.org/doc/551554/. This case may be the first instance of subsidiarity as a placement level, though the document does not use the term explicitly.

17 G. Parra-Aranguren, Explanatory Report on the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, Hague Conference on Private International Law, 1994, assets.hcch.net/upload/expl33e.pdf., paragraph 108. The Hague Conference on Private International Law describes itself as “an intergovernmental organisation, the purpose of which is ‘to work for the progressive unification of the rules of private international law’ (Article 1 of the Statute of the Hague Conference).” “FAQ” (under “What Is the ‘Hague Conference on Private International Law’?,” HCCH, www.hcch.net/en/faq.

18 Convention on Protection of Children, Art. 4, Hague Conference on Private International Law.

19 The Implementation and Operation of the 1993 Hague Intercountry Adoption Convention: Guide to Good Practice (Bristol, U.K.: Family Law, 2008), p. 29, Hague Conference on Private International Law, assets.hcch.net/docs/bb168262-1696-4e7f-acf3-fbbd85504af6.pdf.

20 Ibid., p. 15. See also 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, p. 23, which lists subsidiarity by name and describes the priority for domestic placements in the name of this principle. This document, published in fall 2018, contains a reference to a forthcoming HCCH working paper specifically on the principle of subsidiarity.

21 “Convention on the Rights of the Child,” United Nations Human Rights, p. 6.

22 Cantwell, Best Interests of the Child in Intercountry Adoption.

23 See Bartholet, “International Adoption: The Human Rights Position.”

24 Implementation and Operation of the 1993 Hague Intercountry Adoption Convention, p. 30.

25 See Turner, Chad, “The History of the Subsidiarity Principle in the Hague Convention on Intercountry Adoption,” Chicago Kent Journal of International and Comparative Law 16, no. 1 (2016), pp. 95121. To my knowledge, this is the only article exclusively on subsidiarity and the HCIA. It traces the history of the principle of subsidiarity in the creation of the HCIA and argues that the original intention was for ICA to rank above nonadoption domestic placement options. Additional evidence for the claim that the HCIA intended ICA to rank above domestic options such as foster care and institutional care can be found in G. Parra-Aranguren, Explanatory Report on the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption. Despite such credible evidence supporting the interpretation of the HCIA's intentions, the view that ICA has priority over domestic nonpermanent and nonfamilial care options has been a contentious one among scholars and policy experts.

26 The information and the quotes in this paragraph are from Compton, Rebecca J., Adoption Beyond Borders: How International Adoption Benefits Children (Oxford, U.K.: Oxford University Press, 2016), chs. 1–3.

27 Ibid., p. 33.

28 Ibid., p. 36.

29 Bartholet, “International Adoption: The Child's Story.”

30 See, among many others, Trenka, Jane Jeong, The Language of Blood: A Memoir (Minneapolis, Minn.: Graywolf Press, 2003).

31 See Compton, Adoption beyond Borders, pp. 57–82. She also raises the argument of genetic essentialism.

32 Compton, Adoption Beyond Borders, p. 67. I changed the example's contents to enhance the point.

33 Ibid, pp. 68–70. See also Grotevant, Harold D., McRoy, Ruth G., Wrobel, Gretchen M., and Ayers-Lopez, Susan, “Contact between Adoptive and Birth Families: Perspectives from the Minnesota/Texas Adoption Research Project,” Child Development Perspectives 7, no. 3 (July 2013), pp. 193–98.

34 For the results of a decades-long research program on this issue, see Simon, Rita J., Altstein, Howard, and Melli, Marygold S., The Case for Transracial Adoption (Washington, D.C.: American University Press, 1994). See also Alstein, Howard and Simon, Rita James, Adoption across Borders: Serving the Children in Transracial and Intercountry Adoptions (Lanham, Md.: Rowman & Littlefield, 2000).

35 U.S. Department of Health and Human Services, Administration for Children and Families, Office for Civil Rights, Ensuring the Best Interests of Children through Compliance with the Multiethnic Placement Act of 1994, as Amended, and Title IV of the Civil Rights Act of 1964, www.hhs.gov/sites/default/files/ocr/civilrights/resources/specialtopics/adoption/mepatraingppt.pdf. More recently, a multidisciplinary field called critical adoption studies has arisen in which transracial adoptees discuss serious consequences they have experienced as a result of being adopted such as bodily alienation and racial isolation. See discussion in Montgomery and Powell, Saving International Adoption, pp. 102–9. The authors, themselves parents of a child adopted through ICA and transracially, observe that as of now there are no studies on which to base policy, nor are there studies to explore what effect post-adoption transracial/transcultural training, sensitivity, and education might have on these experiences. Nonetheless, such experiences are real and ones we need to hear more about as the qualitative studies focusing on them develop.

36 See Marre, Diana and Briggs, Laura, “The Circulation of Children,” introduction to International Adoption: Global Inequalities and the Circulation of Children, edited by Marre, Diana and Briggs, Laura (New York: New York University Press, 2009), pp. 128; and E. J. Graff, “The Lie We Love,” Foreign Policy, October 6, 2009, foreignpolicy.com/2009/10/06/the-lie-we-love.

37 See Graff, “The Lie We Love,”; and Briggs, Laura, Somebody's Children: The Politics of Transracial and Transnational Adoption (Chapel Hill, N.C.: Duke University Press, 2012).

38 S. C. S., “Why Adoptions Are So Rare in South Korea,” Economist, May 27, 2015, www.economist.com/the-economist-explains/2015/05/27/why-adoptions-are-so-rare-in-south-korea; Ann Babe, ”The Stigma of Being a Single Mother in South Korea,” Al Jazeera, March 1, 2018, www.aljazeera.com/indepth/features/stigma-single-mother-south-korea-180226144516720.html.

39 Bharadwaj, Aditya, “Why Adoption Is Not an Option in India: The Visibility of Infertility, the Secrecy of Donor Insemination, and Other Cultural Complexities,” Social Science & Medicine 56, no. 9 (May 2003), pp. 1867–80.

40 Montgomery and Powell, Saving International Adoption, p. 159.

41 See Bartholet, “International Adoption: The Child's Story”; Bartholet, “International Adoption: Thoughts on the Human Rights Issues”; and Bartholet, “International Adoption: The Human Rights Position.”

42 Green, Rachel Faircloth, “Making Kin Out of Strangers: Soviet Adoption during and after the Second World War,” in Baron, Nick, ed., Displaced Children in Russia and Eastern Europe, 1915–1953: Ideologies, Identities, Experiences (Leiden, Netherlands: Brill Academic Publishers, 2016).

43 See Lifton, Betty Jean, Lost and Found: The Adoption Experience (New York: Harper & Row, 1988); and Baran, Anne and Pannor, Reuben, “Open Adoption,” in Brodzinsky, David M. and Schechter, Marshall D., eds., The Psychology of Adoption (New York: Oxford University Press, 1990), pp. 316–31.

44 See, for example, Bartholet, “International Adoption: The Human Rights Position.”

45 Pinderhughes, Ellen, Matthews, Jessica, Deoudes, Georgia, and Pertman, Adam, A Changing World: Shaping Best Practices through Understanding of the New Realities of Intercountry Adoption (New York: Donaldson Adoption Institute, 2013), p. 8.

46 Bartholet, Elizabeth and Smolin, David, “The Debate,” in Gibbons, Judith L. and Rotabi, Karen Smith, eds., Intercountry Adoption: Policies, Practices, and Outcomes (Farnham, U.K.: Ashgate, 2012), p. 379.

47 Smolin, David, “Intercountry Adoption and Poverty: A Human Rights Analysis,” Capital University Law Review 36 (January 2007), pp. 413–53. In these arguments, there is also a sensitivity to the birth parents, who in many countries place children in orphanages or care facilities due to poverty with the hope that they will be able to reclaim them in a few years. This last consideration raises the idea that the best interests of children are primarily served by being with birth parents such that the possibility of reunification overrides other aspects of the interests of children.

48 This is a fact/value problem. Such a view has been assumed when, for example, people refer to the birth parents as the “real” parents of children and the adoptive parents as, in effect, the less real parents. See Brakman, Sarah-Vaughan and Scholz, Sally J., “Adoption, ART, and a Re-Conception of the Maternal Body: Toward Embodied Maternity,” Hypatia 21, no. 1 (winter 2006), pp. 5473. Also, for critiques of identity claims as foundational or even relevant to ethics, see Fukuyama, Francis, Identity: The Demand for Dignity and the Politics of Resentment (New York: Farrar, Straus and Giroux, 2018); and Appiah, Kwame Anthony, The Lies That Bind: Rethinking Identity (London: Profile Books, 2018).

49 I wish to thank the editors for calling my attention to this implication.

50 “Convention on the Rights of a Child,” United Nations Human Rights, p. 3.

51 Compton, Adoption beyond Borders, pp. 58–59. Compton cites examples of forcible removals of children on the basis of ethnicity, including the thousands of children from Poland, Ukraine, and Russia who were taken to Germany and put in homes for “Germanization”; the abduction of children taken from families in Argentina's Dirty War; and the removal of indigenous children in North America and Australia and placement in white homes. For a first-person account, see von Oelhafen, Ingrid, Hitler's Forgotten Children: A True Story of the Lebensborn Program and One Woman's Search for Her Real Identity (New York: Penguin Publishing Group, 2016).

52 Of course, after a point, these things would only have to happen if parents and children wanted them to, because we should not force people to exercise their rights.

53 Maggie Jones, “Why a Generation of Adoptees Is Returning to South Korea,” New York Times Magazine, January 14, 2015, www.nytimes.com/2015/01/18/magazine/why-a-generation-of-adoptees-is-returning-to-south-korea.html.

54 Freundlich, Madelyn, Adoption and Ethics: The Role of Race, Culture, and National Origin in Adoption (Washington, D.C.: Child Welfare League of America, 2000), p. 94; Bartholet and Smolin, “The Debate,” p. 373.

55 See Briggs, Somebody's Children.

56 See Bartholet (in debate with Smolin, 2012) and Montgomery and Powell, Saving International Adoption.

57 For example, China has relaxed the one-child policy. China is also allowing older children with special needs to be available for ICA. See Chen Guangcheng, “China Is Finally Ending the One-Child Policy. It Can't Happen Soon Enough,” Washington Post, June 11, 2018, www.washingtonpost.com/opinions/china-is-finally-ending-the-one-child-policy-it-cant-happen-soon-enough/2018/06/11/5dde684c-6b4b-11e8-9e38-24e693b38637_story.html?noredirect=on&utm_term=.0d9fb78d4f24. See also Claudia Fonseca, “Transnational Connections and Dissenting Views: The Evolution of Child Placement Policies in Brazil,” in Marre and Briggs, eds., International Adoption, pp. 154–73.

58 Cantwell, Best Interests of the Child in Intercountry Adoption, p. 35.

59 Carozza, Paolo G., “Subsidiarity as a Structural Principle of International Human Rights Law,” American Journal of International Law 97, no. 1 (January 2003), pp. 3879: 38.

60 Treaty on European Union, 1992, europa.eu/european-union/sites/europaeu/files/docs/body/treaty_on_european_union_en.pdf; see also Roberta Panizza, “The Principle of Subsidiarity,” Fact Sheets on the European Union–2019. www.europarl.europa.eu/factsheets/en/sheet/7/the-principle-of-subsidiarity; Begg, David, ed., Making Sense of Subsidiarity: How Much Centralization for Europe? (London: Centre for Economic Policy Research, 1993); de Noriega, Antonio Estella, The EU Principle of Subsidiarity and Its Critique (Oxford: Oxford University Press, 2002).

61 See Michnowski, Leslaw, “Global Governance and Information for the World Society's Sustainable Development,” Dialogue and Universalism 20, nos. 11–12 (2010), pp. 127–39; and Kelly, John E., “Solidarity and Subsidiarity: ‘Organizing Principles’ for Corporate Moral Leadership in the New Global Economy,” Journal of Business Ethics 52, no. 3 (July 2004), pp. 283–95.

62 de Anguita, Pablo Martinez, Martín, Maria Ángeles, and Clare, Abbie, “Environmental Subsidiarity as a Guiding Principle for Forestry Governance: Application to Payment for Ecosystem Services and REDD+ Architecture,” Journal of Agricultural and Environmental Ethics 27, no. 4 (2014), pp. 617–31.

63 Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law.” Here, the conception of the good of individuals is understood as the common good rather than the individualism of social contract theory.

64 Ibid., p. 41. For a more in-depth history of Catholic social thought and the principle of subsidiarity, see Dorr, Donal, Option for the Poor: A Hundred Years of Vatican Social Teaching (New York: Orbis Books, 1992).

65 Pope Leo XIII, “Rerum novarum: On Capital and Labor” (encyclical given by Pope Leo XIII, St. Peter's Basilica, Rome, May 15, 1891), Papal Encyclicals Online, last updated February 20, 2017, www.papalencyclicals.net/leo13/l13rerum.htm.

66 The identification of subsidiarity having both a positive and a negative aspect can be seen, for example, in Saas, Haas-Martin, “The New Triad: Responsibility, Solidarity, and Subsidiarity,” Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine 20, no. 6 (December 1995), pp. 587–94 as well as in Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law.”

67 Barry, Norman, “Welfare Policies,” in Chadwick, Ruth F., ed., Encyclopedia of Applied Ethics, 2nd ed. (San Diego: Academic Press, 1998), pp. 519–30: 525.

68 Pope Pius XI, “Quadragesimo anno” (encyclical given by Pope Pius XI, St. Peter's Basilica, Rome, May 15, 1931), La Santa Sede Francisco, www.vatican.va/holy_father/pius_xi/encyclicals/documents/hf_p-xi_enc_19310515_quadragesimo-anno_en.htm.

69 Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law,” p. 44.

70 Haas-Martin Saas, “The New Triad: Responsibility, Solidarity, and Subsidiarity,” p. 591.

71 Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law,” p. 44.

72 Solidarity is often invoked as a complementary principle to subsidiarity in social and political philosophy, and further work on subsidiarity and ICA should expand the analysis to include a focus on solidarity. Solidarity is both descriptive of the nature of human dignity and human interconnectedness and prescriptive as a virtue. Solidarity in the sense of human interconnectedness calls for individuals and groups to be disposed and act according to the recognition of the innate sociality of human existence and to act to further the common good. For an exhaustive treatment of the principle, see Scholz, Sally J., Political Solidarity (State College, Pa.: Penn State University Press, 2008).

73 The HCIA is difficult to understand regarding the issue of openness in placement. On some readings, the HCIA may be seen to focus on abolishing meetings between birth and adoptive parents given its charge regarding child trafficking and coercion. However, some type of system that closely supervises at the central level yet allows freedom at the local level is called for in this article. For parallel arguments from law and economics, respectively, see Hayes, Peter, “The Legality and Ethics of Independent Intercountry Adoptions under the Hague Convention,” International Journal of Law, Policy and the Family 25, no. 3 (December 2011), pp. 288317; and Montgomery and Powell, Saving International Adoption.

74 See “Convention on Protection of Children and Co-Operation,” Hague Conference on Private International Law, Art. 22.2. I wish to thank an anonymous reviewer for calling my attention to how the structure of the HCIA may support subsidiarity operationally.

75 See Montgomery and Powell, Saving International Adoption, p. 159, for more on kidnapping and baby selling in countries where HCIA has entered into force.

76 I argue that it is not defensible for national policy to prioritize domestic adoption. I offer this as a persuasive argument, as I believe in state sovereignty as an important principle.

* An earlier version of this article was presented at the Luncheon Lecture Series of the Ethics Program at Villanova University in 2018. I thank the audience for their engagement, in particular Peter Koch and Stephen Napier. I am grateful to Mark Doorley, Paul Sheldon, the editors of Ethics & International Affairs, and three anonymous referees for their comments. I am especially indebted to Sally J. Scholz, who provided extensive comments on multiple drafts and who generously discussed the ideas in this article on several occasions. My reading of her work on solidarity inspired my interest in the HCIA and subsidiarity.

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