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Sunday, January 17, 2021

The HCCH: A Constant in a World of Change

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DIPLOMAT MAGAZINE “For diplomats, by diplomats” Reaching out the world from the European Union First diplomatic publication based in The Netherlands Founded by members of the diplomatic corps on June 19th, 2013. Diplomat Magazine is inspiring diplomats, civil servants and academics to contribute to a free flow of ideas through an extremely rich diplomatic life, full of exclusive events and cultural exchanges, as well as by exposing profound ideas and political debates in our printed and online editions.


By Dr Christophe Bernasconi, HCCH Secretary General.

As you read these lines, millions of people are actively engaged in international exchanges or otherwise involved in cross-border situations. Work, business, studies, shopping, travel, relationships – these can all easily be the source of cross-border interactions between people and commercial operators. Even in times of limited mobility, we cross borders, online and offline. This world – our world – is a world of private international law.

The reality of this world is that interconnectivity is more present, and more important, than ever. Yet, interconnectivity across borders also means interaction of different legal systems. The resulting challenges can be inherently complex, giving rise to the need for rules that guide people and commercial operators, pointing them to the applicable legal system and offering effective means of cooperation to overcome the challenges of cross-border legal procedures.

The mandate of the Hague Conference on Private International Law (HCCH) is to unify these rules, so that all across the world, they “point” in the same direction. This provides legal certainty and predictability – key attributes for effective cross-broader commerce, foreign investment and peaceful relations between individuals across borders.

A Rich Tradition of Effective Multilateralism

With its origins dating back to 1893 – the year of the very first “Hague Conference” convened by Tobias Asser – the HCCH is the oldest intergovernmental organisation based in The Hague. It also is the only one with a legislative mandate. And while it may not be well-known to a wider audience, its work has a significant practical impact on people’s lives and on cross-border trade and commerce. 

For over 125 years, the HCCH has been a respected forum for effective multilateralism, bringing nations together to develop legal frameworks designed to facilitate cross-border mobility, transactions, and dispute resolution for individuals, families, and companies across the globe.

The HCCH executes its mandate primarily through the negotiation and adoption of international treaties: the HCCH Conventions. These Conventions provide clarity and direction in cross-border relations across three main areas: international family and child protection law, international legal cooperation and transnational litigation, as well as international commercial and financial law.

As an intergovernmental organisation, the steadily increasing HCCH membership is testament to the significance of its work. Membership has almost doubled in the last two decades and today, the Organisation has 85 Members (84 Member States and the European Union), with several States currently in the process of joining. Many non-Members have either signed or become Contracting Parties to one or more HCCH Conventions, meaning that over 150 States are connected to our work worldwide.

By joining HCCH Conventions, States benefit from an extensive legal cooperation network and implement uniform international standards, eliminating the need to independently negotiate hundreds of bilateral agreements. In fact, while globally, there are over 930 instances of an HCCH Convention being brought into force for a State, more than 29,000 bilateral agreements would be needed to achieve an equivalent network of treaty relations. This shows how effective multilateralism through HCCH Conventions can be!

Members determine the work programme of the HCCH and of its secretariat, the Permanent Bureau. Notably, they actively participate in the negotiation of new Conventions, ensuring that the voice of each Member is part of the global dialogue and its interests are taken into account. Members also benefit from priority access to post-Convention assistance, which effectively supports the proper implementation and sound practical operation of the HCCH Conventions.

Committed to regional engagement, the Permanent Bureau has two Regional Offices: the Regional Office for Latin America and the Caribbean, in Buenos Aires, Argentina, and the Regional Office for Asia and the Pacific, in the Hong Kong Special Administrative Region of the People’s Republic of China. The work of these Regional Offices is invaluable in assisting the Organisation to increase its visibility in these regions and to be responsive to their respective needs.

HCCH 125 Anniversary HM King Willem – Alexander and Dr Christophe Bernasconi Photography Sicco van Grieken.

Practical Tools for Modern Times

HCCH Conventions are widely used in practice, most of them several thousands of times each year around the world. In the case of the Apostille Convention, which facilitates the recognition of public documents abroad, it is even millions of times each year. HCCH Conventions thus have a direct, practical impact on peoples’ lives and commercial transactions, effectively benefiting all those involved in cross-border interactions.

HCCH Conventions do not seek to alter substantive domestic laws. They respect legal, cultural, and religious diversity. HCCH Conventions are like bridges, connecting different legal systems while simultaneously ensuring autonomy at the national level. Achieving consensus in developing the Conventions may not always be easy, but the HCCH has a remarkable ability to evolve and adapt to the world around it, engaging with a wide range of dedicated experts, including representatives of government, the judiciary, academia, and the broader legal profession.

Just last year, we saw what the culmination of this work looks like, with the adoption of our most recent international instrument, the HCCH 2019 Judgments Convention. This Convention, dealing with the recognition and enforcement of foreign judgments in civil or commercial matters, fills an important gap in the private international law landscape and is a potential gamechanger for international dispute resolution. It will be essential in reducing transactional and litigation costs in international dealings, ultimately promoting effective access to justice for all and facilitating cross-border trade and commerce.

HCCH Signing of the Final Act of the HCCH 2019 Photography Sicco van Grieken.

The adoption of any Convention is of course a momentous occasion and I was pleased that we were once again able to celebrate the adoption of this Convention in the hallowed halls of the Peace Palace. However, ensuring the effective practical operation of a Convention requires further work – work which I am proud to say is also a key part of what we do at the HCCH. Our post-Convention activities take a variety of different forms, ranging from official meetings for authorities to share experiences and exchange best practices, to the publication of official Handbooks and Guides. By monitoring and supporting their practical operation, the HCCH ensures that its Conventions remain effective and that they keep pace with the latest legal and technological developments.

The events of this year have reinforced the importance of this post-Convention work, with COVID-19 triggering a series of new challenges, not only in everyday life, but in accessing legal and administrative processes. Although the pandemic may have temporarily stifled cross-border movement, we remain individuals in a globalised world and private international law issues abound.

The work of the HCCH is more relevant than ever before, providing valuable assistance in navigating the new reality in which we find ourselves. Our many years of work pioneering the electronic authentication and recognition of public documents under the Apostille Convention has proven essential; the publication of our Guide on the use of video-link under the Evidence Convention proved particularly timely; and the application of the Child Abduction Convention has been at the centre of international family law discussions in times of COVID-19. These Conventions, together with a number of others, including those on intercountry adoption and the recovery of child support abroad, are considered “core” HCCH Conventions.

The pandemic has affected our lives in ways we never expected and it will almost certainly have a lasting impact on our lives in the future. Fortunately, the HCCH Permanent Bureau was well set up to work remotely and our team adjusted quickly to the changes, which allowed day‑to‑day business to continue largely uninterrupted. We will continue our work in fulfilment of our mandate, in particular with a view to finding ways to harness the power of technology as we continue to promote effective access to justice for all and encourage cross-border trade and commerce.

Global Engagement

As mentioned, we live in a world of private international law. Despite the new challenges, cross-border connections and relationships continue to flourish, helped in no small part by technological innovation. If anything, recent world events have served only to underscore the need for legal certainty across borders, and for practical, effective multilateralism – a relatable form of multilateralism that makes a real difference to people’s lives.

The participation of as many countries and regions as possible in the work of the HCCH is central to its operation. With this in mind, universality and inclusiveness were enshrined as pillars of the HCCH Strategic Plan 2019-2022 and as Secretary General, I am proud to say that they remain high priorities for me, personally.

The diplomatic corps plays a key role in our efforts to increase the visibility of the HCCH and to convey our message to the capitals of the world. Being based in The Hague, the city of peace and justice, the HCCH has already had the privilege of engaging with many of the States represented here. Yet there remains a lot of work to be done. It is my hope that we will have the privilege of welcoming many more States to be part of our work in the future and I remain committed to facilitating their involvement, both as Contracting Parties to HCCH Conventions and as Members of the Organisation.

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Main picture by Hester Dijkstra.

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