The Hague Conference — its origins, organization and achievements
by HANS VAN LOON*
This article will be divided into four parts. First of all, with the centenary coming up in May 1993, it seems appropriate to go back some into the Conference’s origins and its sources of inspiration. The second part of this article will be on the Hague Conference as an organization, how it has evolved and how it operates. Thirdly, we will discuss some of its products, the Hague Conventions, and try to identify some recurrent patterns on the one hand and their progressive evolution on the other. Finally, the article will illustrate this evolution with some examples of treaties in one area which is close to our hearts: the protection of children.
2. Origins of the Hague Conference. From where did it get its inspiration?
The Conference did not start as a permanent organization, but as a series of ad hoc conferences convened by the Netherlands government on the initiative of Tobias M.C. Asser. Asser, who later played an important role in The Hague peace conferences of 1907 and 1908, for which he received the Nobel Peace Prize in 1911, built on previous but unsuccessful attempts, notably by Pasquale de Mancini in Italy. Mancini, in his famous speech on La nazionalitá come fondamento del diritto delle genti in 1851, had made the principle of nationality the cornerstone of both public and private international law. And it was nationality which became the magic formula upon which the first Hague Conventions were to be built. This was quite a novel idea in an age where the application of a foreign law to an international situation was not well developed and in the extent that it was, it was the law of the domicile which prevailed. The history of Swedish private international law illustrates this: it was only late in the 19th century that nationality became a dominant connecting factor in Swedish private international law. Mancini’s concept of nationality was by no means a nar-
* First Secretary, Hague Conference on Private International Law
row parochial one: it was distinctly cosmopolitical. He saw the world as a community of nations — rather than States — each with its own cultures and legal traditions. It was precisely because he valued this legal diversity that he saw clear limits as to the possibilities of unifying the various private laws of the world. Sure, he saw possibilities for unification of fundamental rules of universal justice — nowadays we would say human rights — but, with the possible exception of commercial and maritime law, he felt that a complete unification of substantive private laws was an illusion. This was true in particular for the laws relating to personal status, family and succession. It was not only an illusion, it was undesirable. Unification of those laws was undesirable because it would curtail human freedom. (It should not be forgotten, of course, that at that time large parts of Italy were still under Austrian rule — this certainly explains much of Mancini’s thinking.) The principle of nationality would ensure that a person would retain a sphere of freedom when he travels abroad — and this is his destiny and mission, since he is born a cosmopolitic being. Hence the utility of concluding multilateral conventions on the conflict of laws which, provided they are based on this principle of nationality, will ensure personal freedom of the citizens of Contracting States when they travel around.
It was a remarkable theory; first, it elaborated on Italian statutory theories; secondly, it connected them with nineteenth century political thinking; and, thirdly, it made en passant a bow to the nationality principle as embodied in Napoleon’s code civil, although that was definitely less cosmopolitic in origin. All this explains why these ideas conquered Europe within a few decades and why the nationality principle became such a characteristic feature of the first Hague Conventions. Not that Asser or the Dutch government in their invitation to “Messieurs les délégués à la Conférence de droit international privé” — ladies were not supposed to negotiate private international law treaties at that time -referred to the lofty humanistic philosophy of Mancini — although his name was mentioned. The approach was more pragmatic. The emphasis was not on the need to respect personal freedom and cultural diversity, but rather on putting an end to legal uncertainty resulting from that variety of laws, prejudicial to individual interests. Talking of pragmatism, on the methodological level, Asser showed great flexibility. He had conceived an overall codification of principles of private international law, but quickly conceded, when this idea met with strong opposition, and accepted the idea of a more piecemeal codification of narrowly defined subject-matters. This was a marked difference with the unification attempts in Latin America where in 1889
the Conference of Montevideo had concluded a multilateral treaty which unified practically the whole field of private international law. It turned out, however, to be a realistic choice and the four Conferences of 1893, 1894, 1900 and 1904 were very successful. They first led to the Convention on Civil Procedure in 1896 revised in 1905, followed by the Conventions of 1902 on Marriage and Guardianship of Minors, and of 1905 on the Effects of Marriage, on Divorce and on Guardianship of Adults. All these Conventions were immediately ratified by a number of countries, including Sweden (with the exception of the Convention on the Guardianship of Adults). The principles of the Conventions did not apply universally, as Asser had hoped, but were based on reciprocity which meant that they only applied when they referred to the law of another Contracting State. However, several countries generalized these principles and made them universally applicable. Sweden, for example, did so with the Act of 1904 on Certain International Legal Relations concerning Marriage and Guardianship, and with the Act of 1912 on Certain International Legal Relations concerning the Legal Effects of Marriage. Moreover, several countries which did not become Parties to these Conventions incorporated these principles in their domestic laws. The effect of all this has been lasting, even though the system started crumbling very soon after, when the First World War started to cast its shadows before. When Germany claimed that the prohibitions of marriage in its laws on military service were covered by the 1902 Marriage Convention, France denounced that Convention in 1913 and Belgium in 1918. One of the problems was that the Convention did not yet contain a general public order clause permitting the setting aside of the otherwise applicable law. This and other examples demonstrated the fragility of certain assumptions upon which the early Conventions had been based. Those assumptions had been tenable during la belle époque (1890-1905), but not when international harmony was disturbed. Moreover, it showed the risks of having rigid rules without the possibility for making exceptions. After the First World War, a Fifth Hague Conference took place in 1925 and a Sixth in 1928. However, the general climate for international unification work was not favourable and the resulting draft Conventions on international sales, successions and enforcement of judgments were not signed. What was important, though, was the fact that the United Kingdom for the first time participated in the Conference’s work. Previous invitations had been declined by the UK and the first four Sessions had been a matter for conti-
nental European States only, with the exception of the Fourth Session in 1904 in which Japan had participated.
The excesses of nationalism during the 30’s and the application by some courts of the Nurnberger laws under the Hague Marriage Convention did no good to the Hague Conventions. Yet, hardly was the Second World War over when, as early as November 1945, the Swiss Professor Gutzwiller launched an appeal for the revival of the Hague Conference. It took some years of preparation but in 1951 the Conference rose like a phoenix out of the ashes. For reasons which were understandable in light of the recent history, the Seventh Session in 1951 turned away from family law topics and concentrated on civil procedure and commercial topics, as Gutzwiller had suggested. At the request of the United Kingdom some minor changes were made in the 1905 Convention on Civil Procedure, which resulted in the 1954 Convention to which the UK did not, but Sweden and 28 other countries did become a Party. The Seventh Session also managed to conclude a Convention on the law applicable to international sales of goods, which was first signed in 1955 and to which Sweden became a Party in 1964. One of the interesting points of this Convention is that, after decennia of discussions, it introduced the principle of party autonomy for the most important international commercial contract.
The sixteen countries which gathered at the Seventh Session, including Sweden, also gave the Hague Conference its Statute.
2. Organizational structure of the conference; purpose, members and organs
Like the other products of the Seventh Session, the Statute which entered into force in 1955 stands out by its shortness and simplicity. It defines the purpose of the Conference in simple terms: to work for the progressive unification of private international law. Progressive, no grand unification projects, but a step-by-step approach which, as the early Hague Conventions had shown, offered the best chances for success.
The Statute also gives the procedure for becoming a Member of the Hague Conference. When the Statute entered into force the Conference had sixteen Member States, including Sweden, all of which were European with the exception of Japan. Today the
membership of the Conference amounts to 38 States from all continents, including all the EC countries, the Nordic countries, Latvia, Poland, Hungary, the Czech Republic, Romania and Slovenia, Canada, the United States, Mexico and a number of other Latin American States, Egypt, Israel, China, Japan and Australia. The growth in membership has been gradual, which is fortunate because it has permitted the Conference to adapt in an orderly way to profound changes. The most profound change — there is no doubt about that — has come as a result of the participation of the common law countries. Although, as has been mentioned, the United Kingdom after some hesitation, had attended the Sessions of 1925 and 1928, Cheshire in his treatise on Private International Law in 1938 still wrote: “owing to the fundamental differences between the common law upon which the Anglo-Saxon systems are founded and the civil law which forms the basis of the European systems, there seems little prospect of agreement being reached between the two groups”. Despite this pessimistic forecast, the UK participated in the Seventh Session and co-founded the organization. Ireland followed and, starting in the sixties, the United States, Canada, Australia and Cyprus became Members of the Conference. The accession of the United States to the Conference in 1964 was quite a revolutionary step for that country which had always maintained that its federal structure did not permit the Union to deal with questions of private international law. That attitude changed radically when, as a result of the growing internationalization of life and commerce in the course of the fifties, participation in the Conference became a practical necessity. The same went for Canada and Australia. One of the obvious changes which resulted from the larger participation of common law countries was the introduction of English as a second language in addition to French, and the expansion of the secretariat with a common law lawyer. It also meant that two quite different styles of legal thinking and drafting had to be brought into harmony. The common law tradition developed by the courts, where statutes are the exception and subject to narrow interpretation, versus a system of law which has its basis in a codification and which is being developed by the courts within the framework of the structure and purposes of that codification. Bridging the profound differences between civil law and common law legal cultures became one of the main tasks of the Conference. It has required a lot of patience and imagination, but it definitely has produced results as shall be seen below.
What are the organs of the Conference? Apart from the Council of Diplomatic Representatives which approves the budget, the three most important organs are: the Plenary Sessions, the Special Commissions and the Secretariat. First of all, there are the Plenary Sessions which meet in principle every four years in diplomatic session. The last one took place in 1988 and the next one will, exceptionally, take place not in 1992 but in May 1993 because of the centenary. The Plenary Sessions discuss and adopt the draft Conventions prepared by so-called Special Commissions and decide on the subjects to be included in the agenda for the Conference’s work during the next cycle of four years. These Special Commissions play a crucial role in the drafting process. Usually they will first come together for an open discussion round and only at their second meeting will they start drafting. They do the drafting, not the secretariat, as is the custom in some other organizations. A drafting committee will be appointed in which the main legal systems will be represented. There is also usually one representative for the Nordic countries. The role of the Special Commissions has expanded considerably in two other respects: policy making and monitoring of Conventions. Policy making first of all. Under the Statute, the operation of the Conference is ensured by the Netherlands Standing Government Committee for the Codification of Private International Law. Formally it is that Committee which sets the dates and the agenda for the Plenary Sessions. In practice, however, as a result of an unwritten constitutional development the Standing Government Committee has stepped back and it is now a Special Commission of experts on general matters and policy of the Conference which meets between Sessions and prepares the topics on the agenda for the Plenary Session. The background of this is an opposition which arose between the EC Members and the other Members of the Conference on the question of whether the Hague Conference should take up the subject of contractual obligations. That discussion put the Netherlands Standing Government Committee in a delicate position and it wisely decided to step back. Secondly: monitoring of Conventions. In 1977 the Conference organized for the first time a Special Commission to review the practical operation of two Hague Conventions: the 1965 Service and the 1971 Evidence Convention, both of which are in force for Sweden. A similar meeting took place in 1985. The Permanent Bureau also organized two such meetings for the Child Abduction Convention, the latest of which was held in January 1993. These are meetings of a special type of
expert: those who operate the Conventions, the so-called “Central Authorities”, governmental bodies which are responsible in each Contracting State for the handling of requests for service or taking of evidence abroad or for the return of children wrongfully removed abroad by one of their parents. These meetings have met with great enthusiasm. They offer an opportunity for officials working in the field to meet each other, they contribute to reinforce international co-operation and they can also help in sorting out practical difficulties and even eliminate disputes concerning the operation of the Conventions. The secretariat of the Conference, the Permanent Bureau, has its office at The Hague and is headed by a Secretary General, currently Mr Droz, a Frenchman, and three other members: Mr Pelichet who is Swiss, Mr Dyer who is American and the author, who is a citizen of the Netherlands. The total staff includes eleven persons which makes the Permanent Bureau a dwarf among international secretariats. The Permanent Bureau’s main task is the preparation and organization of the Plenary Sessions and the Special Commissions. It carries out the basic research required for any new subject that the Conference takes up and maintains liaison with the National Organs (each Member State has designated a body as its National Organ of the Conference), experts, other international organizations and, increasingly, also the users of the Conventions (lawyers, notaries, companies, journalists and the public at large).
3. The Hague Conventions
3.1 Conventions and other international instruments
The Statute does not mention the multilateral convention as the sole or even principal vehicle for the progressive unification of private international law. In fact, the Conference has occasionally adopted non-binding international instruments. An important one is the Declaration relating to the scope of the 1955 Sales Convention which was adopted by the Fourteenth Session in 1980. This Declaration, adopted at the request of Sweden, Denmark and Norway, (1) considered that the interests of consumers were not taken into account when this Convention was negotiated, (2) recognized the desire of the States to have special rules on the law applicable to consumer sales and (3) declared that the Convention of 1955 did not prevent States Parties from applying special rules on the law applicable to consumer sales. A remarkably simple solution which has made everybody happy. There have been from time to time suggestions that the Conference take up the drafting of
model laws rather than binding conventions because they should be easier to accept. More recently such suggestions have no longer been heard. The Permanent Bureau has not been overly enthusiastic about such proposals, first of all because there is nothing which prevents a country from taking a Hague Convention as a source of inspiration for its own private international law rules. In fact, there are many, many examples of such borrowing from Hague Conventions. More importantly, drawing up model laws takes a discipline which is quite different from that of negotiating treaties, and may result in much vaguer formulas, which may not be very helpful to practice.
Since its Seventh Session in 1951, the Conference has in ten ordinary and two extraordinary sessions drawn up 31 multilateral conventions which with a few exceptions have all entered into force on the international plane. A growing number of non-Member Countries have acceded to Hague Conventions, including several Latin American countries, which is all the more significant since the Latin American countries have among themselves a long tradition of negotiating private international law treaties. The subject-matter of Hague Conventions is generally of a nonpolitical character and that is true for the organization as a whole. This has permitted the Conference to find solutions for complex international problems without being distracted or limited by political considerations. It has also meant that the Conference has worked for a long time outside the spotlight of public attention. This is now changing somewhat as a result of the recent work in the field of children’s law which is drawing increasing attention from the media.
3.2 What types of Hague Conventions are there?
Some of the Hague Conventions deal with conflicts of laws, some with conflicts of jurisdictions, others with the recognition and enforcement of judgments and still others with international civil procedure and what is called international judicial and administrative co-operation. In addition, there are mixtures of two or more of these four different types of treaties. Generally speaking, conventions on the conflicts of laws have found wider acceptance in civil law countries than in common law countries which traditionally favour a jurisdictional approach to private international law problems. There are exceptions, however, such as the 1961 Forms of Wills Convention which found an enthusiastic supporter in the United Kingdom, and the pattern may be changing: some years ago Australia ratified the new Marriage Convention, the United
Kingdom, Australia and Canada ratified the Convention on the law applicable to trusts and on their recognition (the trust is a legal institution known in common law countries, but not in civil law countries) and there is serious interest for the new 1989 Convention on the law applicable to the succession to the estates of deceased persons. Experience has shown that the Conventions on civil procedure and on administrative co-operation, such as the Convention Abolishing the Requirement of Legalisation, are easier to absorb by countries than the other Conventions which often require them to revise their domestic rules of private international law. They are also generally the sort of Conventions which are first ratified by new Member Countries. The accession of China in January 1992 to the Convention on the Service of Documents Abroad is an example.
3.3 Evolution of the Hague Conventions
If one compares the various treaties drawn up since the Seventh Session, one can notice certain recurrent themes but also a very clear evolution. One of the recurrent features of Hague Conventions is the use of the concept of habitual residence. This idea was first used in the 1902 Convention on the Guardianship of Minors to refer to the place where a child had its centre of living. It is not only a popular concept within the Conference, but it has spread and found its way in the internal legislation of a number of common law countries, including Britain, Ireland, Australia and Canada which have enough of a struggle with the rigid domicile concept. It has a strong factual connotation, which makes it difficult to define. Again and again the Conference has had to find a compromise between nationality on the one hand and habitual residence on the other. A good illustration is the 1989 Successions Convention which strikes a balance between the two principles. The rule of its Article 3 is that if the deceased had lived for less than five years in a foreign State, the law of his nationality should in principle apply; if he has lived there for five years or more, it is, in principle, the law of his or her habitual residence.
Another recurrent pattern of Hague Conventions is the exclusion of renvoi and the limitation of the public order exception to cases where the application of the Convention would be “manifestly” contrary to public policy. These examples have been followed in other multilateral conventions, for example the EC Convention on the Contractual Obligations, and in other bilateral conventions and domestic legislation. The same goes for the provisions for federal states. Where a Convention refers to the law of a
“State” that is clear enough when that means the law of Sweden or the Netherlands, but not when that is the United States or Canada or Spain, where each state or province has its own system of law, including private international law. Starting with the 1973 Convention on the Law Applicable to Maintenance Obligations, a number of Hague Conventions therefore provide that where that State does not itself have a rule designating the appropriate sub-federal unit, it is the unit with which the person concerned has the closest connection. A similar rule has been created for interpersonal conflicts, that is problems which arise in systems such as Israel or Egypt where different systems of law apply to different religions. One of the most heavily debated issues in private international law is the question of the règles d’application immédiate, mandatory provisions which must be applied irrespective of the normally applicable law. Here, no general rule has evolved in the Conference but rather the question has been studied in the specific context of each Convention. Article 7 of the Traffic Accidents Convention, for example, provides that whatever may be the applicable law, in determining the liability, account shall be taken of rules relating to the control and safety of traffic which were in force at the place and time of the accident. Similarly, Article 9 of the Products Liability Convention provides that the application of the rules of that Convention shall not preclude consideration being given to the rules of conduct and safety prevailing in the State where the product was introduced into the market. Again, Article 9 of the Agency Convention provides that whatever law may be applicable to the agency relationship, in regard to the manner of performance, the law of the place of performance shall be taken into consideration. Agency involves a triangular relationship between the principal, the agent and the third party. The Convention gives rules for the relationship between each two of the three, but it was felt that a rule could not be missed concerning the application of mandatory rules of any State with which a situation has a significant connection, if and in so far as, under the law of that State, those rules must be applied or that of the law specified by its choice of law rules (Article 16). This formula recurs in Article 7 of the 1980 EC Rome Convention on the law applicable to contractual obligations, but not without heavy debate which explains why it went in accompanied by a reservation. During the negotiations on the 1986 Hague Sales Convention in which a number of non-Member States also participated, the opposition against the idea of applying the mandatory rules of third States
prevailed and that Convention merely provides for the application of mandatory rules of the forum.
The influence of the American conflicts revolution can be seen in several Hague Conventions, in particular those on torts, the Traffic Accident and Products Liability Conventions where the ageold lex loci delicti rule has been pushed back in favour of a more refined approach which, in the case of traffic accidents, may for example lead to the application of English law to a car accident between two English cars on Swedish territory. The Products Liability Convention is based on a grouping of connecting factors, place of the injury if it is also the place of the habitual residence of the victim. In some cases it even offers the plaintiff a choice between the law of the manufacture and the law of the place of the injury. This may be an important precedent for any convention on the law applicable to environmental damages, which is a possible subject for the next cycle of work of the Conference.
One of the important innovations of the last 15 or 20 years or so is the introduction of a limited form of party autonomy in family law. Until the 1978 Convention on the law applicable to matrimonial property regimes, party autonomy in marital property relations was mainly known in France and Belgium. The Matrimonial Property Convention made party autonomy the primary rule and the idea has subsequently found its way in the new codes of private international law in various countries with different modifications, however, which may pose practical problems. It would be preferable if these countries were to ratify the Convention thus obtaining uniform results. A limited form of party autonomy has also been introduced in the 1989 Successions Convention. The completion of this Convention was, incidentally, quite an historical achievement when one realizes that it had been a topic on each of the six first sessions of the Hague Conference and again in the 1960’s, but no agreement could be reached. The Successions Convention has finally introduced the principle of unity of the applicable law, for moveables and immoveables, it strikes a balance between the last habitual residence of the deceased and his nationality, but it also gives him the possibility to designate the law of the State of his nationality or of any habitual residence he may have had.
Party autonomy in private international law is not just a device among others. It is a key concept in a world where human activities increasingly defy national boundaries, move on from one legal system to another very quickly, or involve a variety of legal systems simultaneously. This is not only true for the jet set but increasingly also for ordinary people who may have their families and assets
spread over many countries. The Matrimonial Property Convention and the Successions Convention will permit them to plan their marital property relations and successions, and in this way enable them to bridge themselves the existing gaps between legal cultures. A couple can now, by choosing the applicable law, make a comprehensive plan for their marital property relations and their succession.
Transparent through several Hague Conventions concluded since the Seventh Session in 1951 is the concern to favour a certain result. Examples include the Forms of Wills Convention which, by offering a variety of possibly applicable laws, in the great majority of cases will validate the form of the will. This Convention has had a great success and has considerably reduced litigation on the forms of wills. Other examples include the 1970 Divorce Convention which favours the recognition of divorces, and the new Marriage Convention which by the choice of its conflicts rules reduces obstacles to conclusion of marriages and favours the recognition of the validity of marriages concluded abroad. An innovative technique was used in the 1956 Convention on the law applicable to maintenance obligations towards children, where the child was offered a second chance when the law first designated by the Convention did not offer any maintenance to the child. This mechanism returns in the 1973 Convention on Maintenance and generalizes it for all maintenance obligations. What this also illustrates is that the orientation towards a certain result may provoke the invention of new techniques. The private international law techniques are made subordinate to a policy aim which those techniques must serve. This has become very visible in the work on child protection.
4. The child in the Hague Conventions
The old 1902 Convention on the Guardianship of Minors, with its strong emphasis on the nationality principle, in effect divorced the guardianship of a child living abroad from the place where the child lived. If a Dutch child lived in Sweden, the Dutch authorities had in principle the power to organize the guardianship over the person and the property of the child. Under the name of guardianship the treaty tended to reaffirm the rule of parents, i.e. the father over his children. It took many years, however, before this system was seriously questioned. That was in 1958 when the Convention gave rise to a case before the International Court of Justice in The Hague, between Sweden and the Netherlands; the Boll case. The case concerned precisely the fact pattern just men-
tioned: a Dutch girl, Elizabeth Boll, lived with her Dutch father in Sweden. The Swedish authorities when they saw that the father did not adequately care for the child, took certain protective measures and ordered the child to be placed in a children’s home. The Dutch authorities, who had appointed a supervising guardian, disputed the power of the Swedish authorities to take these measures. The International Court of Justice ruled in favour of Sweden. What it said was in fact that the concept of guardianship as it had been described in the beginning of the twentieth century, was too narrow to encompass the new forms of institutional protection for children which had been developed in domestic legislation during the succeeding half century. (In a way, there is an analogy here with the Declaration of the XIVth Session which was mentioned before on consumer sales in respect of the 1955 Sales Convention — the difference is that in the Boll case the Conference acted too late.) The immediate result of the Boll decision was that the Hague Conference undertook a revision of the 1902 Convention. This led to the 1961 Convention on the protection of minors, not ratified by Sweden, but ratified by nine other European States. This Convention took not nationality but the child’s habitual residence as the connecting factor for the law primarily applicable. The national authorities could only intervene if “the interests of the child so required”.
So, instead of reaffirming the rule of the father over his children, the Convention organized child protection measures around the concept of “the interests of the child”. The development went further and the 1965 Hague Adoption Convention, for the first time introduced the concept of the best interests of the child as the substantive guiding principle for any decision on adoption.
During the seventies, it became clear that the new Child Protection Convention of 1961 fell short of dealing with an ever-increasing phenomenon: international child abduction by one parent in violation of the custody rights of the other. The 1961 Convention lacked both the teeth and the mechanism to deal with the wrongful removal of children. On the suggestion of Canada, the Conference took up this topic for its Fourteenth Session and in 1980 completed the Hague Convention on the civil aspects of international child abduction. This is a very novel sort of treaty — it does not follow the structure of a classical private international law treaty, although it uses private international law techniques. It is essentially construed to secure the immediate return of the child, thereby not cutting off the abductor from access to the child, and
to restore a situation in which the child may have regular and normal access to both parents. This requires more than classical provisions for the enforcement of court orders. The Convention sets up a framework for co-operation among Central Authorities in each country which may assist the parents in locating the child, in making friendly arrangements or starting court proceedings, if necessary.
The Child Abduction Convention generally works well, much better even that its drafters had hoped. Its model and its success inspired the Permanent Bureau to propose five years ago that the Conference undertake an effort to establish a framework for cooperation in a different area: adoption of children. The Hague Convention of 1965 on Adoption with its “best interests” rule was already mentioned. This Convention has not been widely ratified — only the United Kingdom, Switzerland and Austria are Parties, but it has had a certain impact on legislation and case law, even in Sweden. The problem with this Convention is, however, that it was designed for a simple reality which was quite different from that of today’s world. By 1960, when the work on the Convention started, intercountry adoption was mainly a European affair, with the exception of the adoption of Korean children in the United States. Intercountry adoption was widely expected to become even more of a European phenomenon. This explained rather sophisticated rules on jurisdiction, applicable law and recognition, which are not necessarily shared by the countries which are nowadays involved in intercountry adoption: countries everywhere in the world.
That is why the Sixteenth Session in 1988 decided to include the topic of international adoption again in the agenda of the Conference, but also to consider indispensable the participation of nonMember Countries from which many children come. The majority of the Member States of the Conference belong to the industrialized countries, most of which are on the “receiving end” in intercountry adoption. With the help of International Social Service among others, the Permanent Bureau of the Conference then made a selection of countries of origin of adopted children and invited them to participate in the negotiations. Over twenty-five non-Member Countries — from Nepal to the Philippines, from Ethiopia to Madagascar and from Honduras to Bolivia — have accepted the invitation and have been participating since June 1990 in this effort on an equal footing with Member States, with full voting rights. It is a topical illustration of how the Conference may adapt its working methods, and even the scope of its circle of participating countries, to new challenges in order to bridge dif-
ferent legal cultures, thus bringing unity while preserving diversity. An important aim in a world which definitely needs both. This is true for Europe as it is for the world society as a whole. From the point of view of treatment of substance, it is an equally innovative project, since what the Convention will do is set up a framework for administrative and judicial co-operation with a clear division of responsibilities of authorities and judges between countries of origin and receiving countries. It will not in any great detail provide for rules on jurisdiction or applicable law in the classical sense. Rather, it will short-cut the intricacies of divergent rules of jurisdiction and choice of law. In a novel way, it will provide for recognition of adoptions made in accordance with the procedures established by the Convention.
From the beginning, Sweden, which is certainly a country which values international co-operation as much as cultural variety, has shown a great deal of interest for this new project and has given its support to it. We at the Conference greatly value the support of Sweden and we are very much looking forward to another century of close co-operation between Sweden and the Hague Conference.