Thursday, August 18, 2022

The HCCH 1961 Apostille Convention: 60 years on

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Diplomat Magazine
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By Dr Christophe Bernasconi,
Secretary General of the Hague Conference on Private International Law (HCCH)

Throughout its history, the HCCH has been building bridges between legal systems for the benefit of individuals, families, and companies. As an Organisation, it has grown in size and relevance, ensuring the benefits of its Conventions can be enjoyed by the largest majority of people and commercial operators living international lives or doing business across borders.

An increasing number of States are becoming involved in the work of the Organisation. Over 150 countries, spanning all regions of the world, are connected to the work of the HCCH, either as Members or as Parties to HCCH Conventions.

But the success of the HCCH is perhaps best demonstrated by the most popular and most used of all the HCCH Conventions, the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention), which recently celebrated its sixtieth anniversary.

Despite its age, the operation of the Convention remains relevant. Today, around 30 million Apostilles are issued around the world every year, which means that on average, one Apostille is issued every second. The economic impact of the Convention for both users and Contracting Parties is significant – an independent assessment recently estimated the savings at over € 500 million per year.

Representatives of the HCCH Permanent Bureau during the 2021 meeting of the Apostille Special Commission: (L to R) Mr Brody Warren, Dr Christophe Bernasconi, and Ms Nicole Sim.

On 5 October 2021, I had the pleasure of addressing the Special Commission on the practical operation of the Apostille Convention to mark this auspicious occasion. On the same day, the Republic of Indonesia became the 121st Contracting Party, a fitting tribute to the Convention on its birthday.

While a milestone anniversary is a time for celebration, it also provides an opportunity to reflect. In this spirit, before I turn to the promising future that lies ahead for the Apostille Convention, I would like to turn back the clock – not 60 years, but 61 years – to October 1960.

On 5 October 1960, delegates representing 19 States convened in The Hague for the Ninth Diplomatic Session of the HCCH. On their agenda, among other topics, was a proposal to consider the possibility of abolishing or simplifying the formality of legalisation. This was a result of the difficulties encountered (and fees associated) with legalisation, the effects of which were exacerbated by the realities of the post-war era. Migration flows had reached unprecedented levels and the economic prosperity of the 1950s had given rise to a proliferation of international trade and commerce. This increase in cross-border activity was accompanied by an increase in the instances in which public documents were to be presented abroad, in all manner of legal and administrative contexts.

Participants

The delegates at that Ninth Session considered various possible solutions, and ultimately opted for a system that would simplify the process while maintaining the requisite level of trust. The multiple steps of the traditional legalisation process would be abolished and replaced with the issuance of a single “Apostille” Certificate by a Competent Authority designated by a Party to the Convention. The Certificate would contain required elements to achieve a level of standardisation and facilitate recognition, while retaining flexibility for authorities. By affording Parties the freedom to designate the authorities competent to issue Apostilles and providing for the possibility of further simplified procedures among them, the Convention would also respect the diversity of legal systems and traditions.

This was a unique approach that would ultimately serve the needs of different countries for many years to come, even though most of the delegates negotiating the Convention represented primarily European civil law traditions. This was because they were united by a common goal, and one that has remained relevant over half a century later: to reduce the strain on consular services and facilitate the use of public documents abroad for the benefit of all those in cross-border situations around the world.

Original Model Apostille

In the final days of the Ninth Session, on 24 October 1960, the text of what would later become known as the Apostille Convention was adopted. The final act of the Session was signed during a ceremony on 26 October 1960. However, it was not until a year later that the Convention welcomed its first signatories, with six States signing on 5 October 1961. As was the custom at the time, this was the date given to the Apostille Convention.

Tracing the Convention’s popularity since these first signatures has been remarkable. In its first thirty years, the Convention experienced modest growth, reaching 38 Contracting Parties by 1991. In its next thirty years, the growth accelerated, and this number more than doubled, with 83 new Contracting Parties between 1991 and 2021.

I look forward to seeing this growth continue. There are a number of States that are actively considering accession and the recent Special Commission – which met online for the first time in its history – saw record participation, with over 350 representatives in attendance from across the globe.

Part of the continuing relevance of the Apostille Convention is the effort to modernise its operation. Not only is the overall number of Contracting Parties to the Convention continuing to increase, but so too is the number of Contracting Parties that have implemented one or both components of the electronic Apostille Programme (e-APP). Since its launch in 2006, the e-APP has facilitated the secure and effective operation of the Convention through electronic means and ensured it remains fit for purpose in the modern world.

Celebratory cupcakes for the 60th anniversary of the HCCH Apostille Convention

Indeed, the utility of the e-APP was highlighted throughout the COVID-19 pandemic, with Contracting Parties that had already implemented the e-APP components reporting positive experiences in the face of the challenges, with little to no disruption in the provision of Apostille services. We have also seen an increase in the number of Contracting Parties considering e-APP implementation, due to the accelerated shift to digitalisation of services brought about by the pandemic. The key beneficiaries of these positive developments continue to be the individuals and businesses in cross-border situations.

The success of the Apostille Convention exemplifies the importance and relevance of the HCCH, and the role of private international law more generally. Supported by the HCCH Membership, represented by the dedicated members of the diplomatic community and other national experts, the Permanent Bureau will continue to work to ensure that existing and future HCCH Conventions effectively serve individuals, families, and companies across the world.

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