Hague Treaty Apostille

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Hague Treaty Apostille

The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents

For an analysis of the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents and the Hague Convention Legalization, see here.

Background

Issuing and Verifying the Origin of an Apostille

Apostilles may only be issued by a Competent Authority designated by the State from which
the public document emanates (for more information, including the list of Competent
Authorities designated by the Contracting States, contact details of Competent Authorities
and other practical information such as the price for an Apostille, see the “Apostille Section”
of the Hague Conference website). The Permanent Bureau (Secretariat) of the Hague
Conference on Private International Law does not issue Apostilles. The Apostille is placed by the Competent Authority on the public document itself or on an allonge. The Apostille should
conform as closely as possible to the Model annexed to the Convention. In addition, each
Competent Authority is required to keep a Register in which it records the Apostilles it has
issued. The Registers, which may be accessed by any interested person, are an essential tool
to combat fraud and verify the origin of an Apostille in case of doubt.

The effects of an Apostille

The only effect of an Apostille is to certify the authenticity of the signature, the capacity in which
the person signing the document has acted, and where appropriate, the identity of the seal or
stamp which the document bears. The Apostille does not relate to the content of the underlying
document itself (i.e., the apostillised public document).

Monitoring of the Convention

The practical operation of the Apostille Convention is regularly reviewed by Special Commission
meetings convened by the Permanent Bureau of the Hague Conference. The 2009 Special
Commission confirmed the “very wide use and effectiveness” of the Convention, as well as the
“absence of any major practical obstacle”. The Special Commission further reiterated that the
spirit and letter of the Convention ‘do not constitute an obstacle to the usage of modern
technology’ and that the Convention’s application and operation can be further improved by
relying on such technology. This finding was confirmed by recent International Fora on the eAPP.

Convention Application

The Convention only applies among States Parties

The Apostille Convention only applies if both the State in whose territory the public
document was executed (the “State of origin”) and the State in whose territory the public
document is to be produced (the “State of destination”) are State Parties (i.e., Contracting States
for which the Convention is actually in force). To find out which States are Contracting States,
see the related information on this legal encyclopedia.

If a public document was executed or has to be produced in a State that is not a party
to the Convention, the applicant seeking to have the document authenticated should contact
the Embassy or Consulate of the State of destination located in (or accredited to) the State of
origin in order to find out what options are available.

Overseas territories

The concept of territory is important as the Apostille Convention only applies to public
documents which have been executed “in the territory” of a Contracting State (see Art. 1(1)).

The default position is that the Convention does not apply to “overseas territories”, which
are referred to as territories for the international relations of which the Contracting State
is responsible (Art. 13). However, the Convention allows a Contracting State to extend the
Convention to its overseas territories as follows:

• at the time of signature, ratification or accession – by declaration; or
• at any other time thereafter – by notification to the Depositary.

Whether the territory of a Contracting State is an overseas territory (and how those
territories are referred to) is a matter for the law of that State (A. Aust, Modern Treaty Law and Practice, 2nd edition (2007), 5th printing 2011, p. 201).

Questions of sovereignty

Competent Authorities that have questions about sovereignty over specific territories
relating to the applicability of the Convention in those territories should contact the Ministry of
Foreign Affairs of their State or the Depositary.

Among States Parties to the Convention only

Article 1 of the Convention makes it clear that the Apostille system was designed to
operate among States Parties to the Convention. The following comments highlight some of the most important practical effects of this approach.

Certificates purporting to be Apostilles issued by States that are not party to the
Convention (i.e., States that have not joined the Convention, and States that have joined the
Convention but for which the Convention has not entered into force yet; see paras 97 et seq.)
have absolutely no authority under the Convention to authenticate the origin of the underlying
public document. Competent Authorities may only start issuing Apostilles on the day the
Convention has actually entered into force for their State.

The Convention gives no effect to Apostilles when they are produced in:
• a State non-Party; or
• a State Party, but the Convention is not in force as between that State and the
State of origin as a result of an objection to accession (see paras 91 et seq.).

As a matter of public international law, the Convention (and its simplified authentication
process) cannot be the source of legal authority in a State for which it is not in force (incl.
circumstances in which it does not apply between two States as a result of an objection
to accession). While such a State may give effect to Apostilles under its domestic law, the
Permanent Bureau does not support this practice, and instead encourages such States to join
the Convention. Accordingly, the Permanent Bureau recommends that Competent Authorities
should not issue Apostilles when the applicant indicates that the intended State of destination
is not party to the Convention (or a State in relation to which the Convention does not apply as
a result of an objection to accession). An exception to this is where the State of destination is in
the process of becoming party to the Convention and the Competent Authority is satisfied that
the document will only be produced in the State after the Convention enters into force there.

The Special Commission has addressed this matter by recalling “that the Convention
applies to public documents ‘which have been executed in the territory of one Contracting
State and which have to be produced in the territory of another Contracting State’ (Art. 1(1))”

The apostille certificate as part of the legalisation process

Some States Parties use their regular Apostille Certificate to authenticate the origin
of public documents destined for non-States Parties (or States with which the Convention
is not in force as a result of an objection to accession, see paras 91 et seq.). One advantage
of this practice is that the same official or authority of the State of origin may authenticate
public documents using a single certificate without the need to distinguish between States of
destination that are parties to the Apostille Convention and States of destination that are not.
This practice may also be applied for authenticating excluded documents.

Apostille Certificates issued in these circumstances are not Apostilles issued under the
Convention and have no effect under the Convention. Accordingly, in order for the underlying
document to be produced abroad, it will still need to be presented to the Embassy or
Consulate of the State of destination located in (or accredited to) the State of origin for further
authentication as part of the legalisation process (see paras 8 et seq.). In practice, this means
that the Apostille Certificate attached to the document will itself be authenticated.
89 This practice is not contrary to the Apostille Convention as long as the Apostille
Certificate is not sought to be given effect under the Convention. The Permanent Bureau
recognises the efficiency of this system and supports its implementation.

If a State wishes to use its regular Apostille Certificate as part of the legalisation process,
the Permanent Bureau recommends that additional text be included on the certificate to
inform the user that if the underlying document is to be produced in a State non-Party, or a
State with which the Convention is not in force as a result of an objection to accession, the
document should be presented to the nearest Embassy or Consulate of the State of destination
located in (or accredited to) the State of origin.

No Apostilles for internal use

An Apostille is only designed to produce effects abroad (C&R No 90 of the 2009 SC). An
Apostille produces no effect in the State of origin, and Contracting States are not required to
give any effect to Apostilles issued by their Competent Authorities. Competent Authorities may
wish to consider including additional text to this effect.

Starting the Convention Application

When the Convention has entered into force

The Convention does not immediately enter into force for a State once it joins. There is
a waiting period that must elapse before the Convention enters into force for that State. The
length of the waiting period depends on how the State joins the Convention:
• For States that joined by ratification, the Convention entered into force on the 60th day
after the deposit of the instrument of ratification (Art. 11(2)). (All States that are entitled to
join the Convention by ratification have done so; see ” Treaty Ratification” inthe legal encyclopedia.)
• or a State that joins by accession, the Convention enters into force on the 60th day after
the expiry of the six-month objection period following the deposit of its instrument of
accession (Art. 12(3)). (Any State seeking to join the Convention now may only do so by
way of accession).

Apostilles issued before the Convention’s entry into force for the State of destination

Under the Convention, an Apostille validly issued in one State Party must be given effect
in another State Party (Art. 3(1)). For any State of destination, this obligation commences on
and from the date of entry into force of the Convention and applies regardless of the status of
the Convention for that State at the time the Apostille was issued. Thus, an Apostille issued in
a State Party before the entry into force of the Convention for the State of destination must be
recognised in the State of destination from the date of the entry into force of the Convention
for that State and cannot be refused on the grounds that at the time of issuance the Convention
was not in force for that State. This underscores the notion that the validity of an Apostille has
no expiration.

Public documents executed before the Convention’s entry into force for the State of origin

100 The Apostille Convention does not prescribe any time limit for issuing an Apostille after
the execution of the underlying public document. Accordingly, an Apostille may be issued in a
State Party for a public document that was issued before the entry into force of the Convention
for the State of origin.

Public documents legalised before the Convention’s entry into force for the State of destination

It is possible that a public document (e.g., a birth certificate) may be legalised for
production in a certain State, but before production occurs, the Apostille Convention enters
into force for that State. From the date of entry into force of the Convention in the State of
destination, the only formality that may be required in order to certify the origin of a foreign
public document is the addition of an Apostille (Art. 3(1)). Strictly speaking, there is nothing in
the Convention preventing the State of destination from requiring the foreign public document
to be apostillised, even though it has already been legalised, which would have been sufficient
to authenticate the origin of the document before the Convention’s entry into force for that
State.

However, given the purpose of the Convention to facilitate the use of public documents
abroad by simplifying the process of authentication, and in the interests of users, the
Permanent Bureau recommends that newly acceding States continue to give effect to
legalisations done before the entry into force of the Convention for that State, at least for a
reasonable period of time thereafter. At the same time, this situation underlines the need for
newly acceding States to publicise their accession to the Convention and its upcoming entry
into force. This is particularly important for Embassies and Consulates abroad to enable
them to give appropriate advice to persons seeking to authenticate documents for eventual
production in the newly acceding State.

Documents and the Convention

A Convention only applies to public documents

The purpose of the Convention is to facilitate the use of public documents abroad. In this
spirit, the substantive scope of the Convention – and thus the concept of public documents –
should be understood widely and be given a broad interpretation with a view to ensuring that
as many documents as possible benefit from the simplified authentication process under the
Convention.The drafters of the Convention hesitated between the terms public document (in French “acte public”) and
official document (in French “document officiel”). With a view to better serving the purpose of the Convention,
the former expression was adopted because of its wider meaning.

It is clear from the preparatory work of the Convention that the concept of “public
document” was intended to be interpreted broadly. The term “public document” extends to
all documents other than those issued by persons in their private capacity (i.e., not private
documents) (see the Explanatory Report under Section B, I. Article 1). Accordingly, any
document executed by an authority or a person in an official capacity (i.e., acting in the capacity
of an officer endowed with power to execute the document by the State) is a public document.

Law of the State of origin determines the public nature of the document

As set out in the previous paragraph, the term “public document” extends to any
document executed by an authority or a person acting in their official capacity. Whether a
person is acting in a private or in an official capacity is determined by the law of the State of
origin. It follows, therefore, that the question whether a document is public for the purposes
of the Convention is ultimately determined by the law of the State of origin. Accordingly a Competent Authority of the State of origin may issue an Apostille for a document that is considered to be a public document under the
law of that State, noting that the internal organisation of Competent Authorities in the State
may assign exclusive competence for specific public documents to a particular Competent Authority.

An Apostille may not be rejected on the basis that the underlying document is not
considered to be a public document under the law of the State of destination, although that law
may determine what legal effect to give to the underlying document. As the law of the State of origin determines whether a document is a public document for the purposes of the Convention, Competent Authorities have no authority under the Convention to issue an Apostille for a document of a category that may be considered a public
document under the law of the State of destination, but not considered so under the law of the
State of origin. The Convention is not applicable to such documents.

Four categories of public document listed in Article 1(2)

It is not possible to establish a complete list of all public documents that may be
executed in Contracting States, or to list all officials and authorities which may execute public
documents in those States.

To provide some guidance and certainty, the Apostille Convention lists the following four
categories of documents that are deemed to be “public documents” (see Art. 1(2)):
“a) documents emanating from an authority or an official connected with a court or tribunal,
including those emanating from a public prosecutor, a clerk of a court or a process-server
(“huissier de justice”);
b) administrative documents;
c) notarial acts;
d) official certificates which are placed on documents signed by persons in their private
capacity, such as official certificates recording the registration of a document or the
fact that it was in existence on a certain date and official and notarial authentications of
signatures.”

The list is not exhaustive.

Article 1(2)(a): documents emanating from an au thorit y or an official connected with the courts
or tribunals of the state

The expression “courts or tribunals” (“juridiction” in the French text) should be
understood broadly and may apply not only to judicial courts and tribunals but also to
administrative and constitutional tribunals, as well as to religious courts. Court decisions
clearly fall within this category. Whether a person may be regarded as an authority or an
official connected with a court or tribunal is determined by the law of the State of origin. For
example, lawyers (attorneys) may be regarded in some States as public authorities or officials,
and thus may execute public documents for which an Apostille may be issued. In other States,
lawyers (attorneys) may not have the authority to issue public documents (in which case their
documents are then most likely to be notarised and an Apostille is then issued for the notarial
certificate).

Article 1(2)(b): administrative documents

123 An administrative document is a document that is issued by an administrative authority.
Whether a person or body is an administrative authority is to be determined by the law of the
State of origin, noting that in some States, this may include religious authorities.

While differences exist among States, administrative documents typically include:
• birth, death and marriage certificates, as well as certificates of
non-impediment;
• extracts from official registers (e.g., company registers, property registers,
intellectual property registers, population registers);
• grants of patent or other intellectual property rights;
• grants of licence;
• medical and health certificates;
• criminal and police records; and
• educational documents.

Article 1(2)(c): notarial acts

Notaries are found in virtually all countries of the world. In almost every civil law and
mixed law jurisdiction, and generally throughout the common law world, notaries are legal
professionals. In some common law jurisdictions, notaries (known as ‘Notaries Public’)
typically are not required to be legal professionals, but instead are ministerial officers with
limited powers and functions.

A “notarial act” is an instrument or certificate drawn up by a notary that sets out or
perfects a legal obligation or formally records or verifies a fact or something that has been said,
done or agreed. When authenticated by the signature and official seal of the notary, the notarial
act is a public document under Article 1(2)(c) of the Convention.

128 In those jurisdictions where the term “notarial act” does not refer to an instrument or
certificate drawn up by a notary, but rather to a function that the notary public is authorised to
perform under domestic law, such as taking an acknowledgment or administering an oath,
documents certifying the performance of the function (e.g., jurats and acknowledgments) are
not “notarial acts” for the purposes of Article 1(2)(c) of the Convention; instead, they fall under
Article 1(2)(d).

Article 1(2)(d): official certifications

A document executed by a person in a private capacity (e.g., a contract, sworn statement,
trademark assignment) does not fall within the scope of the Convention. For more on private documents, see this legal encyclopedia.

However, domestic law may provide for a certificate executed by an official, including a
US notary public, to be placed on the document, which relates to aspects of the document such
as the genuine nature of the signature it bears, or that the document is a true copy of another
document. This official certificate is a public document under Article 1(2)(d) of the Convention.

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