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UNIFICATION OF INDIAN LAWS AND THE HCCH (HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW)
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UNIFICATION
OF INDIAN LAWS AND THE HCCH (HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW)
AUTHORED BY - AASTHA
Abstract
The Hague Conference on Private
International Law is an intergovernmental organisation dealing with unification
of laws in countries all around the world, especially for those with different
legal systems. It is their objectives to make easier the process of resolution
of any conflict arising on the personal laws of individuals concerned with
civil and/or commercial matters. Through this paper, the existence of the
Conventions of this Conference with the Indian laws is discussed and analysed
aiming towards identifying the points of unification and any future growth
towards this unification. India is a Party to four of its Conventions which
will be brief explained and thereafter analysed based on official material available.
Key Words- Hague Conference, Conventions, Apostille,
Service, Evidence, Child Adoption
1. INTRODUCTION
1.1 History of the HCCH
The Hague Conference on Private
International Law (HCCH) saw its origins in the late 19th century
and under a decade, the Conference had managed to adopt several Conventions,
though they have all almost been completely replaced by modern Conventions. With
growth over the years, many countries showed interest in the purpose of the
Organisation thus, ever so slightly increasing the numbers of participants. However,
due to the outbreak of the 2 World Wars several complications arose and all
progress made towards the unification of private international laws came to a
sudden halt and no further Conventions were adopted until after the wars ended.
In 1951, a Conference was finally held
after a long hiatus of almost 20 years, during which they adopted a Statute
that would, upon enforcement, establish the HCCH as a permanent intergovernmental
body, governed by its Members and supported by a secretariat- the Permanent
Bureau. The Statute of the Hague Conference on Private International Law came
into effect on 15 July 1955. Initially, French was the only official language
at the HCCH until 1964, when English was formally introduced as the second
official language of HCCH. The inclusion of the English language allowed the
participation of more common law countries such as the United States, Canada
and Australia, allowing the HCCH to take one step towards one of its objectives
of establishing relations between common and civil legal systems. A notable
growth in migration and trade was observed post-war which led to an increase in
issues related to private international law, attracting the attention of
several non-member States. It was after this that one of HCCHs’ most successful
Convention, the Apostille Convention, was adopted in 1961.
The HCCH witnessed an expansion in
its members near the end of the 20th century that played an
important part in transforming HCCH into the global intergovernmental
organisation that it is today. With the growth, they also adopted various
Conventions expanding their area of reach, delving deep into matters that had
never been looked into before such as intercountry adoption, divorce, and so on.
Today, HCCH has introduced more than 40 Conventions and boasts of 91 members[1] and
65 non-members who have either signed, ratified one or more Conventions or are
in the process of becoming a member.
2. INDIA
AND THE HCCH
India, a federal state, deposited its
instrument of acceptance of the Statute of the Hague Conference on Private
International Law and became the 69th member to the HCCH on 13 March
2008 with 28 States and 7 Union States. At the time of acceptance of the
Statute, India had already become a Contracting Party to 4 Conventions of the
Organisation, namely-
1. the Convention
of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public
Documents [12] also known as the 1961 Apostille Convention on 26 October 2004,
2. the Convention
of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters [14] on 23 November 2006,
3. the Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters [20] on 7 February 2007 and,
4. the Convention of 29 May 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption [33] on 6 June 2003.
2.1 1961 Apostille Convention
The Apostille Convention was
concluded at the HCCH as the 12th Convention on 5 October 1961 and
came into force on 24 January 1965. As aforementioned it is also known as the
Convention of 5 October 1961 Abolishing the Requirement of Legalisation for
Foreign Public Documents and is considered to be the most successful Convention
of the HCCH. It contains 15 Articles and has a total of 126 Contracting Parties
and Signatories[2]
including both members and non-members of the HCCH, 82 and 44 respectively.
With an increase in global relations
increased the mobility and interactions between different states, thus
naturally increasing the need to produce public documents in a foreign country.
These public documents required proper authentication which would be conducted
through long and tedious legalisation processes with multiple procedures and
authorities. This Convention reduced the tediousness of this process and simplified
it to a single formality-presenting a certificate known as the Apostille. An Apostille
is a certificate issued by the State of Origin, authenticating the origins of
the public document for presentation before another Contracting Party, which
would be the foreign country. It allowed the circulation of public documents
internationally for individuals, families and commercial operators.
2.2 Convention of 15 November 1965 on
the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters
This Convention was adopted by the
HCCH on 15 November 1965 and came into force on 10 February 1969. It is the 14th
Convention of the Organisation and has a total of 31 Articles. It has 82
Contracting Parties and Signatories, inclusive of both members and non-members-
69 and 13 respectively.
From the name of the Convention, it
is quite evident that the Convention is related to the transfer of judicial and
extrajudicial documents in civil or commercial matters that may be required in
cross-border cases, which would normally be rather costly and time-consuming owing
to the distance. However, this task is simplified through the existence of this
Service Convention. It provides for channels for transmission that transfer the
related documents from one Contracting Party to another, while not restricting
the Contracting Parties from utilizing alternative channels.[3] The
Service Convention governs only the transmission of the documents and does not
prescribe any rules related to the actual service of process.
2.3 Convention of
18 March 1970 on the Taking of Evidence Abroad in
Civil or Commercial Matters
This Convention was adopted by the
HCCH on 18 March 1970 and came into force on 7 October 1972. It is the 20th
Convention of the Organisation and is made up of 42 Articles. It consists of 66
Contracting Parties and Signatories, 61 of which are members to the HCCH.
With a step forward in trade and
migration arose multiple issues relating to private international law, thereby
increasing the need for international judicial proceedings between individuals
in which evidence is a key essential. Obtaining the evidence across States can
prove to be difficult, owing to the possibility of difference in legal systems
of the States. Therefore, this Convention was introduced to overcome the
possible differences. It establishes a uniform framework of cooperation
mechanisms to facilitate and essentially simplify the taking of evidence
abroad.[4]
2.4 Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of
Intercountry Adoption
This 33rd Convention was
introduced on 29 May 1993 and came into force on 1 May 1995. It consists of 48
Articles mainly relating to the adoption of children across borders and
protection of the rights of children. It has 105 Contracting Parties and
Signatories out of which 73 are member States.
This Convention came into being to
deal with any issues arising during the process of intercountry adoption and it
takes into account the principles laid down in other international instruments
on protection of children, especially the United Nations Convention on the
Rights of the Child (UNCRC). The primary aim is to ensure that any intercountry
adoption happens in the best interests of the child while safeguarding the
rights of the child.[5] It
stipulates the safeguards that act as benchmark of minimum standards to be
followed by the Contracting Parties though it places no restriction on further
improvement thereof. These stipulations aim towards guaranteeing the best possible
adoption practices and elimination of abuse against children. A responsibility
has been cast upon the receiving State and the State of origin to share the
burden and benefits of regulating the adoption.
3. DISCUSSION
India had become a member to 4 of the
Core Conventions[6] of the
Organisation by 2007 which was much after the introduction and adoption of
these Conventions, done through Conferences held with members of the
Organisation. The contents of these Conventions had been decided in their
respective years of adoption, and countries joining thereafter were required to
ratify the Convention, if and only if they were ready to comply by the Articles
of the Convention. The Organisation in itself has never held an imposing existence
on countries that are not members to it. It even allows non-member countries to
become Signatories to its instruments without imposing mandatory requirements on
them.
Most Conventions give power to the
Contracting Parties to object against the accession of a State wanting to
accede to the Convention. As per Article 12 of the 12th Convention,
Contracting Parties possess this right however, they are required to make such
objections within a period of 6 months after receiving the required
notifications stipulated under Article 15 of the Convention[7],
which was before 15 May 2005 for India. India had faced objections from 6
countries-
1.
Belgium: The
objection was received on 20-04-2005 but was withdrawn on 09-01-2008.
2.
Germany: The
objection was received on 21-04-2005 and thereafter this Convention has not
been applicable between India and Germany.
3.
Finland: The
objection was received on 02-05-2005 but was withdrawn on 05-10-2009.
4.
Netherlands:
The objection was received on 13-05-2005 but was withdrawn on 16-09-2008.
5.
pain: The
objection was received on 13-05-2005 but was withdrawn on 12-02-2008.
6.
Portugal: The
objection was raised on 25-05-2005 which was after the expiration of the 6
months period. Therefore, there were no legal consequences.
India has made objections against 2
countries, one being China, who is a member State and the other being Kosovo,
who is a non-member State and therefore the Convention will not enter into
force with them. The 14th Convention provides for this right of the
Parties under Article 28 however, there appears to have been no objections
raised by any of the countries. The 20th Convention does not provide
for such a right in its text but the Convention will enter into force between
the acceding State and the Contracting State 60 days after the Contracting
State has declared its acceptance to the accession.[8]
The 33rd Convention equips the Parties with this right under Article
44 but neither have any of the countries nor has India made any objections
against each other.
Furthermore, the application of these
Conventions is not majorly visible in the precedents of law but there have been
several notable instances where the basic principles of these Conventions have
been utilised. Though the case is not directly related to the Apostille
Convention, in the case of Gurmeet Singh Sidana v. Ameek Singh Sawhney[9] the
applicability of this Convention was recognised by the Court however, as per
circumstances of the case the Apostille Certificate was deemed not applicable. Similarly,
in the matter of child custody in Jasmeet Kaur v Navtej Singh[10]
the Court recognised that the requirements of the Convention on Taking
Evidence abroad in Civil and Commercial Matters, which is concerned with the method
of transmission of documents, had been complied with.
The Convention on Taking of Evidence
Abroad in Civil or Commercial Matters has a notable occurrence under the Order
XXVI Rules 19-22 and Section 78 of the Code of Civil Procedure 1908 (CPC). However,
it should be taken into notice that the provisions of this Code have been in
existence since before India signed the Convention in 2007. There was even the
case of Wooster Products Inc. v. Magna Tek Inc. & Ors.[11]
in which a letter of request was issued by a court in Ohio, US and the Court followed
the text of the provisions mentioned above. Another case of Aventis Pharmaceuticals
Inc. v. Barr Laboratories Inc.[12] applied
the Convention as well as the provisions of CPC which are in conformity with
each other.
In R.K. & Anr. v. Central
Adoption Resource Authority (CARA)[13] discussed
the Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption in depth and came to the conclusion that CARA, the
Central Authority for the Convention in India, does not provide for direct and
private adoptions which fall under the purview of the Hindu Adoptions and
Maintenance Act 1956 (HAMA) as opposed to the indirect adoptions, those which
are conducted through a third party. There were even lengthy discussions on the
depth of relation between the Juvenile Justice (Care and Protection of Children)
Act 2015 and the Convention and it was established that it dealt with indirect
adoptions. Furthermore, in the case of Supriyo (alias Supriya Chakraborty)
and Anr. v. Union of India[14]
an understanding was derived from the Preamble of this Convention, emphasising
the “full and harmonious development of the child” and how intercountry
adoption can offer advantages for the child.
Countries do not have differences in
just legal systems but also in culture, customs and the like. These affect not
only the domestic laws of that country but also the international laws as differences
in cultures can also cause conflicts among individuals implying that the
personal laws of a country can hamper relationships between individuals. India
is a federal country made up of a variety of cultures, ethnicities and customs
with a rich history deeply connected to our ancestry. There are various
concepts which have never existed in India that have been fairly present in
foreign countries for a while. This difference is a major reason why India is
currently a Party to a handful of Conventions, though India is taking gradual
steps towards adopting some of these foreign concepts such as child abduction.
As per Indian laws and customs, it is not possible for a parent to abduct their
own child from the other parent, if the matter of custody has not yet been
decided, as it is not considered a punishable act. India is still in the
process of considering whether or not to become a Signatory to the Convention
of 25 October 1980 on the Civil Aspects of International Child Abduction as
there have arisen various instances of such international disputes.[15]
4. CONCLUSION
The Hague Conference on Private
International Law has its roots from the late 19th Century. It has
slowly and steadily developed and grown over the years becoming the prominent
Organisation that it is today- with more than 40 Conventions and 91 members. India
is a Party to this Organisation as well and has ratified 4 Core Conventions of
the HCCH- the Apostille Convention, the Service Convention, the Evidence
Convention and the Adoption Convention. These Conventions have their own roles
to play and functions to fulfil even in the Indian society, though the impact has
not been exceptionally large until now.
The use of these Conventions will
proportionally increase with the increase in issues relating to private
international law, which would be a natural response to the sudden growth of
intercountry relations between individuals in various matters. Though these
Conventions leave an impression of being more inclined towards the Western
culture which can lead to a biased application, with proper time and
consideration States will be able to develop an advance and refined version of
the benchmark of minimum standards mentioned in these Conventions. The member countries
cannot go against these Instruments however, no restriction has been placed on
the positive growth of these principles and procedures.
[1] Out of which 1 is a Regional
Economic Integration Organisation i.e., the European Union. Statute of the
Hague Conference on Private International Law, 1955 Article 3 (9) states that Regional
Economic Integration Organisation means an international organisation that is
constituted solely by sovereign States, and to which its Member States have
transferred competence over a range of matters, including the authority to make
decisions binding on its Member States in respect of those matters.
[2] Contracting Parties refers to parties
that have deposited its instrument of ratification, accession, acceptance, or
approval and are bound by the Text of the Convention and have to introduce laws
in accordance to the Convention in their own countries. Signatories are parties
that have deposited the instrument of ratification, accession, acceptance, or
approval but do not have to introduce laws in accordance to the Convention in
their own countries.
[3] Alternative Channels include
diplomatic or consular channels mentioned in Article 8 and 9, and postal
channels and direct communications mentioned under Article 10 of the
Convention.
[4] The Convention achieves this with
two separate and independent systems: (1) Letters of Request and (2) diplomatic
officers, consular agents, and commissioners, the former available to all
Contracting Parties of the Convention.
[5] This includes prevention of
illicit practices, including the abduction, sale of, or traffic in, children.
[6] Core or main Conventions are
characterised on the basis of the recent adoption, popularity or practical
relevance.
[7] Enunciates a list of things the Ministry
of Foreign Affairs of the Netherlands shall give a notice of to the States
already Parties to the Convention and to the acceding States.
[8] Convention of 18 March 1970 on the
Taking of Evidence abroad in Civil and Commercial Matters, Article 39
[9] MANU/DE/6756/2023
[10] LNIND 2017 DEL 3749
[11] [1989] AIR 6
[12] MANU/PH/2170/2009
[13] LNIND 2021 DEL 1538
[14] 2023 SCC OnLine SC 1348
[15] Mentioned in notice attached to
Report of Justice Rajesh Bindal Committee to Examine The Civil Aspects of
International Child Abduction Bill, 2016 and The Protection of Children (Inter-Country
Removal and Retention) Bill, 2016, issued by Ministry of Women and Child
Development on the subject of ‘Accession to the Hague Convention on the Civil
Aspects of International Child Abduction, 1980-reg.’ dated 04-05-2018, https://wcd.nic.in/sites/default/files/Hague%20Convention.pdf
(last visited Nov. 17, 2023)
Article Information
UNIFICATION OF INDIAN LAWS AND THE HCCH (HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW)
Authors: AASTHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/28
- Issue 7
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International Journal for Legal Research and Analysis
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