By Dr Christophe Bernasconi, Secretary General of the HCCH
On 12 September 2023 the Hague Conference on Private International Law – known as the HCCH – celebrated its 130th anniversary. I would like to take you on a journey through time to explore the history of the HCCH, which started with the opening of the first “Hague Conference” on 12 September 1893 by Tobias Asser, a leading Dutch jurist, scholar, and statesman. As we explore the HCCH’s history, I will invoke the timeless metaphor of a tree to trace the remarkable growth and development of the HCCH, because much like a strong, steady tree, the HCCH has grown and flourished over time, its branches reaching out to connect, its leaves providing protection, its roots firmly anchored in cooperation. Three distinct periods can be distinguished in the growth of the HCCH “tree”.
Period 1: 1893-1955 The Kernel – A Dream Becomes Reality
In the beginning there was a dream: Tobias Asser’s dream of bringing experts together to start unifying rules of private international law. In 1893! Asser, the visionary, anticipated that the number of cross-border situations and transactions would increase. He saw the need for private international law unification and the benefits this would bring to States, individuals, and commercial operators. Asser also believed in the power of international collaboration. And so, the HCCH started as a tiny seed planted in the fertile soil of international legal cooperation. A seed that soon started to grow.
During this first period, the Organisation was not permanent. It was “on and off”, in the sense that in between two so-called “Conferences” – Diplomatic Sessions – which were often several years apart, not much would happen. From 1893 to 1955, seven such “Hague Conferences” or “Sessions” were held, involving a total of 24 States. During this period, nine Conventions and other instruments were adopted.
The name of the Organisation (“Hague Conference on Private International Law”) was not the only take-away from this period. Tobias Asser, the man who had planted the HCCH seed, was awarded the Nobel Peace prize in 1911. Interestingly, this was not for his role in the two Peace Conferences held in The Hague in 1899 and 1907, but rather for initiating the HCCH. To me, this fact serves as a constant reminder of an important aspect of our work: for there to be lasting peace between nations, there must be peace between people in their cross-border relations; and there must be a clear, predictable, fair, and practical legal framework that governs these cross-border relations. If one thinks of global peace as a puzzle, then private international law is a piece of that puzzle – a small piece perhaps, but an important one, nonetheless.
Part 2: 1955-2000 Setting Down Roots
The year 1955 was a milestone for the Organisation. This is the year in which the Statute of the HCCH entered into force. The Organisation had become permanent, with a Secretariat – the Permanent Bureau – to conduct work in between “Conferences”. The roots of the Organisation, of our tree, started to grow and deepen. First rather slowly; however, over the years, the roots of the Organisation grew deeper, and during this period, 47 States became Members of the HCCH.
Thirty-three Conventions and other instruments were developed during this time, including the 1961 Apostille Convention, which may well be the most successful HCCH Convention, both in terms of the number of Contracting Parties – currently 126 and counting – and the number of actual applications: with well over 30 million Apostilles issued around the world each year, the Apostille Convention is undoubtedly one of the most applied legal cooperation Conventions. Other HCCH Conventions from this period with a significant practical impact are the Service and Evidence Conventions, the Child Abduction and Adoption Conventions (the latter two also being Conventions with currently more than 100 Contracting Parties) as well as the Child Protection Convention. The last three Conventions, incidentally, all have a crucial human rights dimension: they provide States with a framework that enables them to give real effect to the basic principles enshrined in the United Nations Convention on the Rights of the Child.
This second period led to 481 so-called treaty actions, i.e., ratifications, accessions or other instances in which a Convention would come into effect in a State, which underscores that the HCCH developed steadily. The sapling continued to grow, slowly maturing into an adult tree.
Period 3: 2000-current day Branching Out
Today the HCCH is a well-established, far-reaching tree which is flourishing and providing many benefits. Just as a mature tree offers shade, protection, and fruits, the HCCH offers a wealth of practical advantages to people and commercial operators across the globe, and to the international legal community as a whole.
In this most recent period, seven Conventions and other instruments have been adopted, including the Choice of Court, Child Support, and the Judgments Conventions, as well as the HCCH Choice of Law Principles, the first “soft law” instrument of the HCCH. These may all be slightly younger branches, but they are important to keep the HCCH tree healthy and growing.
In the last 23 years there have been 526 additional treaty actions. As a result, there are now more than 1’000 instances in which an HCCH Convention has been brought into effect in States and other Contracting Parties around the world – an impressive expression of the HCCH’s practical and effective multilateralism, all the more so when one considers that it would take more than 31,830 bilateral agreements to establish the same network of treaty relations!
A crucial development during this third period has been the elevation of the principle of consensus to a fundamental, strategic guiding principle for the HCCH. In fact, since the year 2000 not a single vote has been taken during negotiations or in relation to the HCCH’s Work Programme. Putting consensus at the heart of our core discussions has undoubtedly been crucial for the branching out of the HCCH, for bringing more States to the table, and ensuring that their interests are taken into account. Universality, inclusiveness, and consensus are the key strategic principles on which the further growth and development of the HCCH rests.
Today, the HCCH is not only rooted in The Hague but also in Buenos Aires (since 2005) for Latin America and the Caribbean, and in Hong Kong (since 2012) for Asia and the Pacific. Considering the important contributions of these Regional Offices, I continue to hope that one day, a new root in the form of a Regional Office for Africa will start to grow, which would greatly help to strengthen and develop the strategic principles of universality and inclusiveness.
One hundred and thirty years is obviously a long period to look back on. The rich history of the HCCH is a reminder of the collective responsibility of the Members of the HCCH, Contracting Parties to the Conventions, judges, practitioners, academics, and, of course, the Permanent Bureau to make sure the HCCH tree remains in good health. It is our responsibility to look after the HCCH and to promote it: by seeking new Members and Contracting Parties; by developing Conventions, and possibly other instruments, which respond to real, practical needs; and by continuing to support the proper implementation and operation of existing Conventions.
The story of the HCCH is not just about Conventions and rules, though. It is ultimately one about people. Committed people, who, like arborists, nurture the tree through the years. I would like to express my deepest gratitude to the many experts and delegates from Members and Contracting Parties, to the colleagues of the PB – both past and present – who have contributed to the HCCH’s success. The 130th anniversary of the HCCH is a testament to the enduring value of international cooperation and diplomacy in the field of law. The HCCH’s historic milestones, including this year’s celebration of the 1000th treaty action, remind us that progress is not measured solely in tree-rings, but in the impact made on the lives of people around the world. With the continued support and contributions from all the people involved in its work, the HCCH will keep growing from strength to strength.