HANS VAN LOON¹

SUMMARY: I. Mexico and The Hague Conference. II. The Earth is one but the world is not. III. Regional cooperation and integration and globalization. IV. The Hague Conference. V. The impact of globalisation and regional integration on the work of the Hague Conference. VI. The response of the Conference to Globalization and Regional Integration.

Abstract. As human beings, we have an undeniable interrelationship with our planet; we live together with each other and all other living creatures on one Earth. At the same time, we are reminded of our human-made divisions, including legal obstacles, which stand in the way of our truly being one world. Issues relating to finance, trade and investments, and the cross-border movement of people transcend not only national but also regional borders, and take on global dimensions. The present work stresses the importance of cross-border legal certainty and predictability, while still respecting legal diversity. It also emphasizes the need for legal protection to vulnerable individuals, children in particular, at the global level. At this global level, the Hague Conference on Private International Law is now the leading global organization to attend the aforementioned matters, as well as the unification and progressive development of private international law by bridging existing differences between the different legal systems around the globe.

Keywords: Hague Conference, unification, regional cooperation, integration, globalisation.

Resumen. Como seres humanos, tenemos una innegable interrelación con nuestro planeta; convivimos entre nosotros y con todas las demás criaturas en un solo mundo. Al mismo tiempo, nos percatamos de aquellas divisiones que el mismo hombre ha ido creando a través del tiempo, incluyendo los obstáculos legales, que se interponen en el camino para lograr ser realmente un solo mundo. Las cuestiones financieras, comerciales, y las inversiones, así como la circulación transfronteriza de personas trascienden no sólo fronteras nacionales, sino también regionales y asumen dimensiones globales. El presente trabajo destaca la importancia de tener una mayor certeza y previsibilidad jurídica transfronteriza, respetando la diversidad de las tradiciones legales existentes. Además enfatiza la necesidad de una protección jurídica a las personas más vulnerables, especialmente los niños, a escala mundial. En este plano mundial, la Conferencia de La Haya de Derecho Internacional Privado es actualmente la principal organización mundial que dirige los ámbitos antes mencionados, así como la encargada de encabezar la unificación y desarrollo progresivo del Derecho Internacional Privado mediante la disminución de las diferencias entre las distintas tradiciones jurídicas alrededor del mundo.

Palabras claves: Conferencia de La Haya, unificación, cooperación regional, integración, globalización.

I ] Mexico and the Hague Conference

Mexico and the Hague Conference are connected by strong bonds, which have also forged personal friendships. Mexico first participated in a Diplomatic session of the Hague Conference, almost thirty years ago, in 1985. At that meeting Mexico was represented by Professor José Luis Siqueiros. He and his wife became personal friends. We remain most grateful to him for his many initiatives, as the Legal Adviser to the Mexican Foreign office, to promote Mexican’s membership of the Hague Conference on Private International Law and Mexico’s participation in a number of Hague Conventions. During the past thirty years, we have enjoyed the cooperation with, and friendship, of many other officials and academics in Mexico. It was a great moment for us in The Hague when Mexico became a member of the Hague Conference. That was on 18 March 1986. That was followed by Mexico’s joining of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, effective 26 November 1989², the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, effective 1 September 1991³, the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption, effective 1 May 1995⁴, the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents Convention, effective 14 August 1995⁵, and the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents, effective 1 June 2000⁶. And on 26 September 2007, Mexico was the first State to join the Hague Convention of 30 June 2005 on Choice of Court Agreements.⁷ This record of six Hague Conventions is impressive. It becomes even more impressive when one realizes that each of the Conventions in force for Mexico has laid the groundwork for extensive involvement of administrative and judicial authorities throughout the Mexican federation, as part of global networks of legal cooperation. The work that has gone into this is quite awesome. We know that it has often been challenging. And it will remain demanding. Mexico is to be commended for all the efforts it has undertaken and continues to undertake to make the global Hague Conventions and the regional instruments on private international law work in practice.

II ] The Earth is one but the world is not

“The Earth is one but the world is not” these are, as some of you may have noted, the opening words of the famous Brundtland Report, Our Common Future, prepared by the World Commission on Environment and Development at the request of the Secretary General of the United Nations, some 25 years ago.⁸ I have always found these words very inspiring, because they remind us of our inevitable interrelationship as human beings on this planet, and as humans with our planet: we live, together with each other and all other living creatures on “one Earth”. At the same time (“the world is not”), they remind us of our human-made divisions, including legal obstacles, which stand in the way of our truly being one world: So, implicit in these few words is a strong encouragement, and even an admonition to each of us: you are part and parcel of one Earth, you had better become one world as well.⁹

The Brundland report was published in 1987. The cold war was not yet over, and the division of the world in a “capitalist” and a “communist” bloc was a major obstacle to global cooperation. Two years after the publication of the report, in 1989, we saw the fall of the Berlin Wall. This historical event opened up borders for private initiatives around the globe. Many people would agree that this marked the beginning of modern globalization. It was the start of an amazing process, on a world wide scale, of dissolution of borders and compression of distances: of expanding markets, of growing mobility of people, and of instant sharing of information through the mass media and the Internet, all made possible by technological developments in transport and communication.

III ] Regional cooperation and integration and globalisation

The end of the Cold War and the globalisation process that followed most certainly gave a push, in terms of the Brundtland report, towards “one world”. At the same time, it reinforced the need for global and regional cooperation, to overcome existing barriers to progress, including in the legal field. Globalisation manifests itself, naturally, among neighbouring countries. At the same time, neighbouring countries may feel the need to constitute their own regional identity, in response to globalisation. And so we saw the creation in the Americas of Mercosur in 1991, the North American Free Trade Organisation in 1994, L'Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA) in Africa in 1993, the Asian Pacific Economic Cooperation Organisation in 1989, among others. All these regional organisations are based on intergovernmental cooperation. In Europe, the Maastricht treaty (1992) followed by the Amsterdam (1997) and Lisbon (2007) treaties, among others, gave a further impulse to regional integration by supranational means, i.e. by adding a new layer of governance above the national legal orders, transferring competences to supranational bodies, including, since the Amsterdam treaty, powers of legislation in the field of private international law. However, the global forces of fusion of markets, of mobility of people, and of sharing of information are becoming stronger every day. The best example of a global market place is probably the financial market. Around the clock shares and bonds, held for customers by intermediaries, are transferred electronically, from Tokyo to New York, from New York to Mexico, from Mexico to Zurich, etc. We also see globalisation at work in the real economy. Where we have seen recent economic growth in the European Union, in Germany for example, this is in no small degree due to a surge in exports to China. Conversely, investments by Chinese and Indian companies in Europe and in other parts of the world are surging: I understand that here in Guadalajara the electronics industry must compete with Chinese products. Likewise migration and, more generally, mobility of people now involves movements across all continents. So, issues relating to finance, trade and investments, and the cross-border movement of people transcend not only national but even regional borders, and take on global dimensions. In all these areas, there is need for more cross-border legal certainty and predictability and for legal protection of vulnerable persons, children in particular, at the global level. And at this global level it is the Hague Conference on Private International Law, which is now the leading global organisation for “the progressive development of private international law”.

IV ] The Hague Conference – precedents and parallels in Latin America

The origins of the Hague Conference go back to the late nineteenth century. The founders of the Conference drew inspiration from the unification of private international law that had already started in Latin America. The famous Treaty of Lima of 1878 established, in 60 articles, a comprehensive set of uniform rules on personal status, on contracts and torts, marriage, inheritance, jurisdiction of the courts, recognition and enforcement of judgments, and legalization of public documents. The Treaty of Lima was the start for work on the unification of private international law in Latin America that continued with the Treaty of Montevideo on private international law in 1889, the Code Bustamante of 1928, and then, in the framework of the Organisation of American States, the CIDIP process that began in 1975 in Panama, and has found a parallel development in ongoing work on the unification of private international law in the framework of Mercosur. Fifteen years after the adoption of the Treaty of Lima, in 1893, the first session of the Hague Conference took place and the first Hague Convention – on civil procedure – saw the light in 1896. It would take until after the Second World War before the Hague Conference on Private International Law became a permanent intergovernmental organisation, to support the progressive unification of private international law. Started mainly as a European organisation, it expanded soon to include States from outside Europe. This development of the Hague Conference into a global forum has been strongly supported by Latin America – which has been one of the most gratifying experiences of my professional life. In particular, Latin American participation in the negotiations on what became the Hague Intercountry Adoption Convention of 1993 was massive, enthusiastic and effective, and critical for the success of the negotiations. The Convention, once it was completed, found an immediate resonance in Latin America: it responded in a novel, convincing way to deeply felt needs. It was seen not as an instrument imported “from far The Hague”, but as the result of profound engagement and involvement of Latin America in the negotiations. Earlier on, the Inter-American Convention on the International Return of Children, adopted in Montevideo in 1989 on the occasion of the fourth CIDIP conference (Adair Dyer took part as an observer on behalf of the Conference in the negotiations), had taken into account the solutions of the Hague Child Abduction Convention of 1980, and had facilitated the adoption of the Hague Convention throughout the Americas. Quite generally, it may be said that cooperation between CIDIP and the Hague Conference has always been very close. Recently, the Hague Conference recently also concluded a cooperation agreement with Mercosur. Since the turn of the Century, the Hague Conference has seen a rapid expansion of its membership, and it has now become a truly global organisation with 73 Member States, and one Member organisation, the European Union, together representing some 4.5 billion people. Moreover, some 70 non-Member States are parties to one or more of its Conventions. All in all, more than 140 States are connected with the Hague Conference. So this shows us already that globalisation and regional integration have had an impact on the Conference’s membership and on the range of States Parties to the Hague Conventions. But what has been the impact on the Hague Conventions, and their implementation and application? And what has been the response, of the Conference: its contribution to what one might call the globalisation of law and justice, to the global legal order, to the One World that is needed?

V ] The impact of globalisation and regional integration on the work of the Hague Conference

1. The impact of globalisation

Among the many new developments that as a result of the globalisation process have had an impact on the Hague Conference, I have selected three major challenges. The first concerns the composition of the Organisation growing diversity of legal and cultural traditions and of levels of economic development as a result of the enlarged participation of States in the Hague Conference and its Conventions. The second relates to the content of the work on the unification of private international law, it concerns what one may call delocalisation, the challenge, resulting from the increasing permeability of national borders, of finding the appropriate connection between persons and situations and the appropriate legal order or applicable law. And the third concerns the context in which the Organisation operates: the growing interaction with the work of other international organisations

2. Growing Diversity

a. Civil Law v. Common Law; Special position of the United States

Until the 1960’s, the Conference consisted mainly of European States and its focus was on Europe, continental Europe in particular, which was recovering from the Second World War. When the US and other common law States joined, much of its work went into bridging the divide between countries belonging to the continental (civil) law tradition and those of the common law. The emblem of those efforts is, perhaps, the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition (the scientific preparation of which Adair Dyer and I took on together). It essentially enables the trust, a typically common law device, to operate in civil law systems, where the trust is generally unknown as an institution.¹⁰ But the recent history of the Conference has not just been a civil law and common law match. Differences within each family, especially within the common law world, have increasingly come to the surface. An early example is the reservation in the Hague Evidence Convention regarding the execution of requests for pre-trial discovery of documents. According to this reservation a Contracting State may declare “that it will not execute Letters of Request issued for the purpose of obtaining pre-trail discovery of documents as known in Common Law countries”. In reality this is a reservation against American “fishing expeditions”. And it was prompted, not by any civil law country as you might think, but by the United Kingdom, which in a very late stage of the negotiations sought protection against intrusive American discovery methods. Mexico, when it joined the Convention, made the reservation, but wisely narrowed it, so that Mexico will only execute requests issued for the purpose of obtaining pretrial discovery of documents when the request is precise and pertinent to the on-going litigation. The differences between the legal systems of the United States and other countries, including of the common law, played a major role, when starting in the early 1990’s – so around the time many people see as the beginning of the era of globalisation – the Conference embarked on an ambitious project, the negotiation of a global convention on jurisdiction and recognition of judgments. Here we saw a number of major differences in perspective in particular between the United States and other countries, including other common law countries:

1. Differences of a fundamental legal nature, such as the fact that in the United States jurisdiction is a constitutional matter, which requires a due process analysis that provides a defendant oriented approach, with no room for special protection of weaker parties such as consumers, workers, or maintenance creditors.

2. Fundamental cultural differences, such as the great importance of freedom of speech in the United States which may override other concerns, such as combatting Nazi propaganda, which are considered fundamental in Europe for example.

3. Fundamental economic differences, such as the general lack of a social security system in the US which explains, for example, in part, the importance of punitive civil damages.

These and other differences stood in the way of a comprehensive solution. Ultimately, the way forward was to reduce the scope of the project, which resulted in the Hague Choice of Court Convention of 2005, and which Mexico was the first State to accede to.

b. Religious v. secular systems

More recently, the dialogue between religious legal systems and secular systems has become more prominent. Already the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separationsⁱ provides for the recognition of repudiations as known in Jewish and Shariah law. Later on, when the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children¹¹ was negotiated (which we hope very much Mexico will consider for ratification) Morocco successfully suggested the inclusion in the Convention of the institution of Kafala. Most Shariah systems do not recognise adoption. Kafala may be seen as a substitute, a functional equivalent of adoption, but it goes less far, it is in reality a form of foster care. I will come back to the dialogue which the Conference has developed with Islamic States through its Malta process in a moment.

c. Developing countries and systems in transition v. developed economies

Another aspect of growing diversity is that of the level of economic development of States parties to the Conventions, including Member States. Recently many countries with emerging economies or economies in transition have become Members of the Conference and joined Hague Conventions. Their legal infrastructure is often also developing, and fragile. This has had some influence on our legislative work, but, in general, this economic factor has had a far more important impact on the implementation and practical operation of the Conventions. Traditionally, the “stakeholders” in the Hague Conference were the more advanced States. These well-off States were generally quite capable of implementing and operating the Hague Conventions in their own legal systems. But this has changed radically. Many countries now need assistance with the effective implementation and operation of the Conventions. The Hague Intercountry Adoption Convention, which Mexico was among the first States to join, offers an example. This Convention integrates the adoption procedures of countries of origin of children and receiving countries into one single cross-border procedure. But this trans-national procedure, in order to work, inevitably puts a heavy burden on the countries of origin, usually poor countries. These countries need to set up a Central Authority that functions properly. In the case of Mexico no less than 32 Central Authorities (CA’s), the federal central Authority and CA’s for each of Mexico’s 31 federal units. Experienced judges are needed, that can determine whether children are indeed adoptable, that no sale or trafficking is involved. etc., and for that, many developing countries need help. So, the Hague Conference, through its regional offices in Buenos Aires and Hong Kong, has provided assistance, usually jointly with UNICEF and interested Member States, e. g., Chile and Colombia, to several countries in Latin America, including Guatemala and Haiti.

3. Delocalisation

As national borders become increasingly porous, permeable, we see a general process of delocalisation. We see this in cyberspace: a trademark violation or a libellous comment on the web has an immediate effect around the globe. This was one of the problems in the Judgments project: which court should have jurisdiction to deal with such an issue? And if it is admitted that this may be the court of the place where the harm occurs, let us say here in Mexico, while the tortuous act is committed in, let us say, California, will the Mexican judgement be recognised in California? Or take the global financial market. Shares and bonds and other securities are continuously transferred electronically around the globe. These capital flows are vital for the global economy. Legal certainty is therefore indispensable. However, as it is not possible to locate the securities account, which law applies to such transactions? But also in the real world, people may live in more than one place, and work in several places, live in one country, work in another. This makes it more difficult to locate them, and connect them to one specific legal order or system. As we shall see, the Hague Conference has had to find novel ways to respond to these challenges.

4. Growing interaction with the work of other international organisations

One further aspect of globalisation has been the growing interaction with the work of other international organisations. Formerly, unification of substantive law and that of private international law were compartmentalised. This has now changed. The Hague Conference has worked with UNCITRAL in the context of the assignment of receivables in international trade, and the United Nations Convention on the Assignment of Receivables in International Trade of 2004 contains conflict rules that have been developed by a joint group of experts of the two organisations. More generally, in the field of trade and investment, organisations such as the World Bank and the International Chamber of Commerce (ICC), have noticed the relevance of the Hague Apostille Convention, and have recommended its ratification. The ICC has done the same for the Hague Choice of Court Convention. In the family law area, in particular the protection of children, the UN Committee on the Rights of the Child has systematically recommended ratification, in particular, of the Hague Intercountry Adoption Convention, and the Conference works closely with UNICEF where it assists States with the implementation of this and other Conventions.

a. The impact of regional cooperation and integration

With regard to regional cooperation and integration and the Conference, I already mentioned the cooperation with CIDIP and Mercosur. But a real challenge for the Conference came with the Treaty of Amsterdam, which came into force in 1999. As a result of this Treaty the European Union acquired legislative competence in the field of private international law, and, as a result of the case law (ERTA doctrine) of the European Court of Justice, also external competence in relation to third States.

This came at a moment when the Hague Conference had started negotiations on a global judgments convention, and it led to a hectic new dynamic. The European Commission began to remind EU Member States of their “duty of loyalty” under the EC Treaty, which in the beginning caused confusion and irritation. EU Members felt that their traditional freedom of negotiation at the Conference was under threat. The Commission was increasingly unhappy with its status as an observer in the Conference. And non-EU Members perceived a tendency towards block-voting of EU Members. And it was these non-EU Members, the US in particular, who pushed, successfully, for a change from voting to consensus. In 2002 the EU requested to be admitted as a Member. That made it necessary to amend the Statute. We did so in 2005. In 2007, the European Community joined the Hague Conference as a Member in its own right. But that did not solve the issue of whether the EU, as such, could also join Hague Conventions: that is an issue for each individual Hague Convention. Since the turn of the century, the Hague Conventions make it possible for the European Union to join each Convention, either exclusively or jointly with its Members. In April 2007, the Hague Choice of Court Convention was signed by the EU and by the EU only, thus binding 26 of its Members. Likewise, in April 2010, the EU joined the Hague Protocol of 23 November 2007 on the Applicable Law to Maintenance Obligations¹², thereby binding 25 EU States (the UK opted out). In 2011, the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance¹³ was signed, this time, again, with binding effect upon 26 EU Members. And we expect the ratification by the EU of the Hague Choice of Court Convention in 2014. Since the tumultuous first years after the Amsterdam Treaty, the dust has fallen and EU Membership has now become an accepted feature of the organisation. EU coordination has certainly facilitated the negotiations on the Hague Choice of Court Convention, the Hague Child Support Convention and the Protocol on Maintenance Obligations. Interestingly, it has stimulated some parallel regional coordination among non-EU States. We now see that the Latin American countries, in particular, are coordinating their positions within the Conference. That the balance is positive is in part the result of a conscious policy on the part of the Hague Conference to adapt quickly to the new reality and to double its on-going efforts to become a truly global forum that remains attractive to the European Union. This brings us to way the Conference has responded to the forces of globalisation and regional cooperation and integration.

VI ] The response of the Conference to globalisation and regional integration

1. The Response to globalisation

a. Growing diversity

First, what has been the response to growing diversity within the Conference as a result of its enlarged membership, in respect of legal systems, cultural and religious factors, and different levels of economic development?

Two important innovations regarding the negotiation methods of the Conference may be mentioned: i. the switch from voting to consensus as the main negotiation method. And.- ii. the prominence of judicial and administrative cooperation as a technique to bridge differences between legal systems, rather than the traditional conflict of laws techniques.

b. From voting to consensus

You might think that, as the Conference grows in terms of diversity of legal systems, it would become more difficult to reach agreement on which new topics to work on, or even regarding the negotiations on an agreed topic. But that is not necessarily so, thanks in part to a switch from voting to consensus as the negotiation method. Our most recent Convention, the Hague Child Support Convention illustrates this. One of our objectives in negotiating this Convention was to improve the effective enforcement of foreign maintenance decisions. The European, US, and Canadian systems all have such mechanisms in place. They minimize review by the court of its own motion (ex officio), and they place the burden of raising objections to enforcement on the respondent party, usually the husband/father. The EU, the USA and Canada, all wished to see such a system included in the new Hague Convention. But other States, such as China, were, and are, not familiar with such procedures for quasi automatic recognition and enforcement. Under the traditional voting system, we might have ended up with one alternative only, perhaps coupled with a reservation. However, applying the consensus method, a solution was found which was adapted to both groups of States. The Convention creates a rapid procedure for recognition and enforcement. But it also provides an alternative procedure, which States may opt for by declaration. This alternative procedure is also designed to ensure that procedures are expeditious, but it is less strict than the principal procedure. So this will enable a wider range of countries to join the Convention, making procedures for enforcement more effective, without having to go to the full length the USA or the European Union are able and prepared to go.

c. Prominence of judicial and administrative cooperation

A second aspect of the response of the Conference to globalisation is the use of judicial and administrative cooperation as a technique to bridge differences between legal systems, rather than the traditional conflict of laws methods. In her famous book A New World Order¹⁴, Anne-Marie Slaughter boldly wrote: “Stop imagining the international system as a system of states – unitary entities like billiard balls or black boxes – (…) Start thinking about a world of governments, with all the different institutions that perform the basic functions of governments – legislation, adjudication, implementation – interacting both with each other domestically and also with their foreign and supranational counterparts..”¹⁵ Interestingly, she nowhere in her book refers to the Hague Conference. Yet, a range of Hague Conventions have, in fact, been pivotal in establishing such global networks of “institutions interacting with each other domestically and with their foreign and supranational counterparts”.

A key feature of many Hague Conventions, including the Hague Service and Evidence Conventions, and the Hague Child Abduction and Intercountry Adoption Conventions, is the Central Authority. Central Authorities have a coordinating role within each State Party and they are the point of contact for their counterparts in other Contracting States. Since 1977, meetings of these Central Authorities have been convened from time to time in The Hague to enable them to exchange views and discuss the practical operation of Conventions. This has laid the foundation for systemic cooperation among them, as well as for the development of tools to facilitate their work: practical handbooks, guides to good practice, statistical research, a database on case law, etc. There are now some 500 Central Authorities and more than 2.500 other competent authorities working under 12 Hague Conventions. They constitute global administrative networks at the service of citizens. They communicate with each other directly, bypassing diplomatic and consular channels. It is a perfect example of direct interaction at the global level among administrators, an aspect of the ‘new world order’. More recently, the Hague Conference has made a major contribution to what Slaughter has called ‘judicial globalisation’.¹⁶ 1998 saw the first judicial conference on the operation of the Hague Child Abduction Convention. This led to a global network that now consists of 82 liaison judges from 55 countries. In Mexico there are four of these judges, three from the Superior court of Justice in the capital, Adriana Canales, Lázaro Tenorio, and Oscar Cervera, and one judge from Jalisco, Judge Dionisio Nuñez Verdin. Liason judges in the different States Parties consult each other, e.g. with regard to the return of children and on procedural issues, which may then lead to mirror orders or other forms of judicial cooperation. This is again a new development, which parallels similar developments in international insolvency. This development has been given a specific application in the “Malta Process”. This Process is a series of meetings, held in Malta since 2004, aimed at creating a dialogue between judges across religious barriers. The States whose legal systems are influenced by Shariah law have, historically, been on the side-line of international debate regarding the challenges arising from the cross-border movement of persons. Yet, trans-frontier family issues, abduction, contact, relocation also occur in, from and to these countries. So the Malta Process seeks to build a common understanding of the principles, rules and institutions of the Hague Conventions, in the hope that they may influence judges and other authorities, and may ultimately pave the way for States to join these Conventions.

2. Delocalisation

Consider the transfer of shares and bonds through electronic book entries. Nowadays these securities move around the planet, 24 hours a day, every day of the year. So, it is impossible to properly locate them. And yet it is important to be able to determine the law that applies to them, for example in case of insolvency. How can that be done? The Hague Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary provides the solution. No longer does this Convention seek to connect the transaction to a specific place. Instead, it takes the relationship between the account holder and the intermediary as the starting point. So the Convention gives effect to the law agreed by the parties in the account agreement, to party autonomy. Party autonomy also is one of the ways to respond to delocalisation in the real world, with regard to people and families on the move. The Hague Maintenance Protocol provides an example. It gives families ample opportunities to agree on the law that applies to a maintenance obligation. But the choice is not unlimited. Special provision is made, in particular, to protect children. They cannot be a party to such an agreement on the applicable law, but are protected by the law prescribed by the Convention. Finally, flexible concepts, such as that of habitual residence, which avoid the rigidity of traditional connecting factors such as domicile and nationality, can also assist in coping with localisation problems.

3. Growing interaction with the work of other international organisations

One interesting response to globalisation is the increasing interaction between the work of the Conference and that of other international organisations. That interaction also extends to the legislative process itself. The UN Convention on the Rights of the Child of 1989 in several of its articles calls upon States Parties to further implement its norms through bilateral and multilateral Conventions. The Hague Child Abduction Convention, the Hague Intercountry Adoption Convention, the Hague Child Protection Convention and the Hague Child Support Convention may all be seen as a response to this call. All of them provide for implementation, in a very practical way, of the broad norms of the UN Convention on the Rights of the Child in transnational situations.

I think that we are still in the early stages of the interface between Human Rights and Private International Law. There is more to come, including interaction between, for example, the UN Covenant on Civil and Political Rights and several Hague Conventions in the fields of legal cooperation – on service of documents or access to justice – and family law – marriage, divorce – or the recent UN Convention on the Rights of Persons with Disabilities of 2006 and the Hague Convention of 13 January 2000 on the International Protection of Adults. The reason is, simply, that in the past human rights instruments could focus on domestic violations of human rights, cross- border legal issues were of marginal importance. But that is changing rapidly, and with rising numbers of cross-border legal issues with human rights aspects, a new chapter is being opened: the human rights protection of our citizens in transnational situations. Private international law instruments will increasingly be part of an emerging global fundamental rights order.

a. The response to regional cooperation and integration

The fact that the European Union acquired legislative powers in the field of private international law, made it necessary for the Hague Conference to make room in its conventions for the EU to develop its own legislative work. Beginning with the Hague Child Protection Convention of 1996, the Hague Conventions include a so called disconnection clause which makes this possible. However, this recipe does not work for instruments that have universal rules on applicable law, such as the Regulation (EC) No 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I) or the Interamerican Convention on the law applicable to international contracts, adopted in Mexico in 1994. You cannot have two systems of applicable law that apply at the same time. This was one of the reasons why the Hague Conference recently started work on Principles of Choice of Law in International Contracts – a non-binding instrument instead of a binding Convention, which we hope to complete next year. A binding Convention might give rise to a conflict between two universally applicable systems, a non-binding instrument avoids that problem, and may, moreover, go a little further by introducing some new ideas, such as the idea that the parties may not only choose the law of a State but also a set of rules like the UNIDROIT principles of international commercial contracts. So, in this example, the choice for a non-binding global instrument avoids a conflict between global and regional ordering of private substantive law. The matter is different in the area of jurisdiction and enforcement of judgments, because those are not universally applicable, but they apply on the basis of reciprocity, in the relations between States. In those cases it is possible, through disconnection clauses, to make room for regional instruments, as we have done in the 2005 Convention. In any case, as globalisation increases, more and more issues will take on a global dimension. Pressure for solutions at the global level will increase. The negotiations on the Hague Child Support Convention and its Protocol on Maintenance Obligations offer a good example of a recognition that regional solutions should be derived from global solutions in this area. The Council regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations clearly builds on the Hague work, and instead of providing itself for rules on the law applicable to maintenance obligations, refers to the Hague Maintenance Protocol. The regional level thus becomes a bridge between the global and the local. This idea, of the regional level becoming a bridge between the global and the local levels, is also the concept that is at the basis of the regional offices of the Hague Conference in Latin America, which is established in Buenos Aires, and is led by Ignacio Goicoechea. Ignacio Goicoechea has done a tremendous job to bring the Hague Conference and its work closer to the region. He has been, and continues to be, a true inspiration, so much so, that we recently built on the example in the Asia Pacific region, where we opened a regional office in Hong Kong in December 2012. “The Earth is one, but the world is not”. But unity is not uniformity – just as nature thrives by biodiversity. The beauty of the work towards unification of private international law, whether at the regional or the global level, is that it respects legal diversity. It seeks to offer legal security and predictability while respecting legal diversity. So, horizontally, it bridges the variety of legal systems on this planet. At the same time, increasingly, it has another, a vertical, bridging function: that of implementing global norms, in particular human rights norms, ensuring their applicability in cross-border situations. Private international law is no longer a somewhat isolated esoteric discipline; it is becoming a vital tool in the toolbox of lawyers everywhere, because it deals with what has become a fact of life for so many people, families, companies and other entities in our age of globalisation and regional integration and cooperation. In this sense the unification of private international law, both at the regional and at the global level, makes a significant contribution to the work towards “one world”.