Apostille Convention background, growth and application.
The Apostille Convention is the most widely ratified and acceded to of all the Conventions adopted under the auspices of the Hague Conference (known as the “Hague Conventions”). It is in force in over 100 States from all major regions representing all major legal systems of the world, making it one of the most successful international treaties in the area of international legal and administrative co-operation.
While the Apostille Convention was adopted over half a century ago, it continues to attract new Contracting States at a remarkably high rate in comparison with other Conventions drafted at the same time. Of all the States that had joined the Convention by October 2011, when the 50th anniversary of the Convention was celebrated, two-thirds of them had joined in the preceding 25 years alone, demonstrating the exponential growth in the Convention.
Apostilles are used whenever public documents need to be produced abroad. This may occur in a multitude of cross-border situations: international marriages, international relocations, applications for studies, residency or citizenship in a foreign State, inter country adoption procedures, international business transactions and foreign investment procedures, enforcement of intellectual property rights abroad, foreign legal proceedings, etc. The situations where an Apostille is needed are countless. As a result, several million Apostilles are issued around the world every year, making the Apostille Convention the most widely applied of all the Hague Conventions. With the rise in cross-border movements and activities as a result of globalisation, the Apostille Convention is expected to continue to grow.
The purpose of the Convention is to abolish the requirement of legalisation and to facilitate the use of public documents abroad
In general, a public document may be produced in the State in which it is executed without the need for its origin to be verified. This is based on the principle that the origin of the document lies in the document itself (acta probant sese ipsa), without the need for additional verification of its origin. When the document is produced abroad, however, its origin may require verification. This is because the recipient may not be familiar with the identity or official capacity of the person signing the document, or the identity of the authority whose seal stamp it bears. As a result, States began to require that the origin of a foreign public document be certified by an official who is familiar with the document. It is against that background that the procedure known as “legalisation” developed.
Legalisation describes the procedures whereby the signature seal stamp on a public document is certified as authentic by a series of public officials along a “chain” to a point where the ultimate authentication is readily recognised by an official of the State of destination and can be given legal effect there. As a practical matter, Embassies and Consulates of the State of destination located in (or accredited to) the State of origin are ideally situated to facilitate this process. However, Embassies and Consulates do not maintain samples of the signatures /seals/stamps of every authority or public official in the State of origin, so an intermediate authentication between the authority or public official that executed the public document in that State and the Embassy or Consulate is often required. In most cases, this involves an authentication by the Ministry of Foreign Affairs of the State of origin. However, depending on the law of the State of execution, a series of authentications may be required before the document can be presented to the Embassy or Consulate for authentication. Then, depending on the law of the State of destination, the seal /stamp of the Embassy or Consulate may be recognised directly by the official in that State, or may need to be presented to the Ministry of Foreign Affairs of that State for a final authentication.
While differences exist among States, the legalisation “chain” typically involves a number of links, which results in a cumbersome, time-consuming and costly process.
By introducing a simplified authentication process, the Convention facilitates the use of public documents abroad. Ideally, this purpose is pursued by allowing all public documents to be apostillised directly without the need for prior authentication within the State of origin. Indeed, this “one-step process” is what the drafters had in mind when the Apostille Convention was being developed, and it is how Apostilles are issued in most Contracting States. Where it applies, the Apostille Convention abolishes the legalisation process and replaces it with a single formality: the issuance of an authentication certificate called an “Apostille” by an authority designated by the State of origin called the “Competent Authority”.