Bilateralisation

164. To what extent, if at all, should one Contracting State to the new instrument be allowed to pick and choose with which other Contracting States it is prepared to enter into a treaty relationship? As a matter of theory, there exist a range of possibilities. At one extreme, the new instrument could automatically, and without limitations, become effective between each new Contracting State and all existing Contracting States. At the other extreme, each Contracting State could have the right to decide, in respect of each of the other Contracting States, with which of these States it is prepared to enter into binding relationships (total bilateralisation).

165. Several Hague Conventions, including the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, adopt a middle path (partial bilateralisation), whereby Member States qualify for automatic entry into the Convention club, while non-Member States are subject to the possibility that individual existing Contracting States may not do business with them. For example, under

221 _{Adopted by the General Assembly of the United Nations on 20 November 1989, See Part II.} 222 _{Article 7(i).}

the Hague Convention of 1973 all Member States of the Hague Conference at the time of the Conference’s Twelfth Session (when the treaty was being negotiated) are entitled to ratify the Convention which enters into effect automatically among all such ratifying States. Other States may accede to the Convention, but the accession is effective only in relation to those Contracting States which have not raised an objection within a 12-month period.2 2 4 _{The Hague Convention of 1980 makes the same distinction between States} which were Member States of the Conference at the time of the negotiations and other States.2 2 5 _{However, in this case a positive declaration is required before an accession} becomes effective between the acceding State and any existing Contracting State.2 2 6 _The result in practice is that there may be some delay before an acceding State to the 1980 Convention enjoys relations with the full, or even a wide, range of other Contracting States.2 2 7

166. The system adopted under the 1980 Convention has advantages and disadvantages. One disadvantage is the frustration that a newly acceding State may experience while it waits for other Contracting States to address the matter of acceptance of its accession. One advantage is that the system gives existing Contracting States the opportunity to consider whether the newly acceding State has put into place the basic structures necessary to be able to undertake Convention obligations. However, it is clear that different States have different views about the value of the system operating under the 1980 Convention, and different policies towards the acceptance of accessions, some being cautious and others accepting new accessions readily.

167. For those States which are concerned to ensure that there is a fair exchange or a substantial equivalence in the provision of services offered by themselves and other States with whom they co-operate, a bilateralisation process does seem to offer a form of protection. However, question 33(i) of the 2002 Questionnaire which asked whether the new instrument should contain provisions enabling Contracting Parties to avoid providing services to applicants from abroad where they are not available on a reciprocal basis, prompted mixed responses. Most respondents were either opposed to the idea or did not regard it as a priority issue. Some were strongly opposed, regarding such provisions as a retrograde step. Although question 33(i) was not asked in the context of possible bilateralisation, the responses do suggest that there may be considerable opposition to the idea of total bilateralisation.

168. In the view of the Permanent Bureau, it is better to begin negotiations by concentrating on the substantive provisions of the new instrument and on the task of building into the Convention itself the appropriate balances and mechanisms for ensuring that Contracting States take seriously their Convention obligations. It may be wise to leave a decision on complete, partial or no bilateralisation until towards the end of the negotiations.

I) The role and financing of the Permanent Bureau

169. International instruments of the kind being planned depend for their effective operation on a wide range of actors. The principal responsibility of course rests with the Contracting States themselves and their own central and other competent authorities. Judges, members of the legal and other relevant professions, non-governmental

224 _{Article 31. Cf. the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions} Relating to Maintenance Obligations, Article 44; and the 1996 Hague Convention, Article 58, where the time for objection is 6 months. In the case of the 1993 Convention, automatic entry to the club is also available to States which took part in the session during which the Convention was negotiated.

225 _{Article 37.} 226 _{Article 38.}

227 _{See the chart of accessions and acceptances of accessions to the 1980 Convention at} <http://www.hcch.net/e/conventions/menu28e.html>.

organisations, academics and researchers, and, not least, the users of the services provided by the new Convention will all, if the experience with other Hague Conventions is replicated, have an important role in shaping the Convention’s future. The Hague Conference on Private International Law itself, through its Permanent Bureau, may also have an important role to play. The role would be one of treaty administration, information gathering and dissemination, the facilitation and co-ordination of efforts to ensure effective implementation, including review of the practical operation of the Convention, and the provision of other servic es when requested by Member States of the Hague Conference. 170. One of the problems that the Permanent Bureau will face concerns the financing of its post-Convention services. The development of these services in respect of existing Hague Conventions has been organic in nature, and budgeting has been largely ad hoc. The supplementary budget of the Hague Conference, which is now fixed annually, is devoted primarily to the funding of these post-Convention services. Whether it is sensible, in respect of the new instrument on maintenance obligations, to rely in this way on voluntary contributions of Member States of the Conference to support activities which many will regard as essential, will need to be discussed. It also needs to be asked whether this burden should fall on Member States of the Conference only, or on all the Contracting States who will benefit from the services provided.