The Hague Convention for Dummies

By Ted Byfield, 10 December 2001

Unknown, unloved and boring, the Hague Convention is not the word on everyone’s lips. More than a century into its life, Ted Byfield examines how this transnational legal instrument has morphed from the anodyne into the ominous

For those who haven’t pursued genocidal programs, the word ‘Hague’ usually carries progressive connotations: internationalism, multilateral cooperation, justice, and so on. So what could be that bad about a Hague-based 56-member intergovernmental organisation dedicated ‘to work[ing] for the progressive unification of the rules of private international law’? Granted, the issues it’s dealt with since its founding in 1893 - for example, ‘civil procedure’ and ‘deprivation of civil rights’ (1905), ‘obligations towards children’ (1956), ‘law applicable to traffic accidents’ (1970), ‘matrimonial property regimes’ (1978), ‘international access to justice’ (1980), ‘international protection of adults’ (2000) - are hardly the kind of reading kids hide under their mattresses. So why worry about a sleepy procedural backwater whose denizens work diligently to make the modern world a bit less susceptible to the whims of provincial potentates?

Unfortunately, the entity in question, the Hague Conference on Private International Law, has been undergoing an alarming shift in emphasis. What began in 1992 as its current round of negotiations on limited aspects of the international interactions of national laws pertaining to private entities - basically, ‘business to business’ issues - has mutated into yet another front in the growing effort to privatise international law by what, in this case, boils down to a brute-force approach. To understand this transition, though, we need to take a step back - a big step back.

If one assumes that the foundation of law is divine right, then the laws of such a regime apply everywhere encompassed by the divine - that is, everywhere. The same principle applies to the more modern assumption that law can be founded by secular means - say, through a social contract. But much as a social contract is different from a divine being, laws based in a social contract are quite different from ‘divine’ laws. To begin with, they’re a tad more modest: they apply mainly (if not exclusively) to the peole who are party to the social contract and/or to the territories they occupy. Implicitly, they do not apply to other people and/or realms. None of this is so simple, of course. Ancient potentates were all too familiar with their limited ability to impose laws; that’s why a 2,000-year-old word some of them invented to describe these limits, jurisdiction, is still in regular use to describe a basic mechanism for limiting legal reach.

If jurisdictions aren’t portable or extensible, though, the objects their laws apply to - mainly people - are: hence procedures like extradition, the surrender of accused or convicted persons from one jurisdiction to another, usually under a treaty or convention. In some cases (for example, within the patchwork of jurisdictions that comprises a nation), extradition is a workaday affair; but on an international level, sovereign powers tend to be reluctant to extradite people because doing so is (a) a hassle and (b) smacks of a blurring of boundaries that’s antithetical to, well, sovereign power. As a result, those willing or able to act (within limits) across jurisdictional boundaries have often done so with remarkable degrees of freedom. Until recently, this freedom was for the most part limited to multinational entities - for example, corporations.

Of course, between the extremes of sovereign states and individual people, there are many intermediate forms, ranging from financial instruments to traffic accidents. And, in what has by now become a painfully trite observation, the internet has made things a lot more complicated. Communicative potentials that only recently were limited to organised transnational entities have, through the magic of the net, devolved upon even the lowliest newbies. Thus, over the last several years we’ve seen a growing parade of cases in which, say, person A in jurisdiction X causes offense to person B in jurisdiction Y using a server located in jurisdiction Z at least, if not other servers in jurisdictions C through W as well. For lawyers, such a scenario is hell. But, as Milton noted, sagely anticipating multilateral negotiators, ‘The mind is its own place, and in it self / Can make a Heav’n of Hell, a Hell of Heav’n.’

ENTER: The Hague Conference, muttering about its ‘Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters.’ This convention included: ‘in the agenda for the Nineteenth Session, to be held in the year 2000, the question of jurisdiction, and recognition and enforcement of foreign judgments in civil and commercial matters. Among the subjects retained in the agenda for the future work programme of the Conference are the... problems of private international law raised by electronic data interchange...’<1>

Now, the problems of international law raised by electronic data interchange are myriad and if the conference had actually addressed these problems, it would still be doing the multilateral equivalent of rubbing sticks together to invoke the fire gods. Instead, confronted with the boggling complexity of 56 (and counting) sets of contradictory laws and the exponential complexity of establishing jurisdiction in an internetworked world, the conference arrived at a profoundly - nay, theologically - elegant solution: it simply ignored the contradictions.

Under the current convention draft, signatory nations would not be required to harmonise their substantive laws - that is, conform them to common standards - as a precondition for participation; but they would be required to harmonise their rules relating to enforcement (i.e., enforce) the injunctions and civil judgments under the laws of every other signatory. The result: 56 separate countries in which the laws of all 56 countries would apply to all, contradictions included.

Put simply, if the convention is adopted, then citizens, residents, and those passing through signatory countries - materially and electronically - will be subject to the civil and commercial laws of Argentina, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Croatia, Cyprus, the Czech Republic, Denmark, Egypt, Estonia, Finland, the former Yugoslav Republic of Macedonia, France, Georgia, Germany, Greece, Hungary, Ireland, Israel, Italy, Japan, Jordan, Republic of Korea, Latvia, Lithuania, Luxemburg, Malta, Mexico, Monaco, Morocco, the Netherlands, Norway, Peru, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Turkey, United Kingdom (and Northern Ireland), the United States, Uruguay, Venezuela, and Yugoslavia. Brute force.

If it were merely a matter of ‘business to business’ concerns, there might be less to worry about. However, according to consumer activist Jamie Love of Consumer Project on Technology, ‘all “business to business” choice of forum contracts [defined in June 2001 as everything that does not involve personal household use] are enforced under the convention. This is true even for non-negotiated mass-market contracts. Under the most recent drafts of the convention many consumer transactions, such as the purchase of a work-related airline ticket from a website, the sale of software to a school or the sale of a book to a library, is defined as a business to business transaction, which means that vendors of goods or services or publishers can eliminate the right to sue or be sued in the country where a person lives, and often engage in extensive forum shopping for the rules most favorable to the seller or publisher.<2>

And that, frankly, is only a pale warning of the implications of the Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, for it also bears very directly on: libel and slander (goodbye activism – you’ll be sued in Singapore); ‘sui generis’ intellectual property regimes (everything from data from pharmaceutical clinical-trials to folkloric remedies to the right to represent national or cultural histories); the ‘common carrier’-type status of ISPs... and so on.

The fate of the convention is far from certain. On the one hand, it is attracting heavy opposition, for example, from ISPs and telcos, which are rightly terrified that their distributed assets will make them a tempting target in every case involving data they transmit and/or host. On the other, the convention has gained seven signatory nations in the last five months. But if it passes in a form that even remotely resembles the current draft, the fate of virtually any form of progressive activism, from the individual to the national scale, is all too clear: the heav’n that the net held forth will become a very real (and very private) hell. Jurisdiction be damned, and kiss your assets - however meagre and wherever they may be - goodbye.

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Ted Byfield <tbyfield AT> is co-moderator of Nettime, teaches at the Parson School of Design and interviewed James Boyle for Mute 20, the ‘digital commons’ issue

Consumer Project on Technology’s repository of info: [ ]