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The London Convention

The exclusion of documents executed by diplomatic or consular
agents prompted the Council of Europe to conclude the London Convention
of 7 June 1968 on the Abolition of Legalisation of Documents executed by
Diplomatic Agents or Consular Officers. Unlike the Apostille Convention,
the London Convention does not replace legalisation with a simplified
procedure, but rather eliminates all authentication requirements.

Documents executed by diplomatic or consular agents

Article 1(3)(a) of the Hague convention exclude documents executed by diplomatic or consular agent. This exclusion exists for reasons of practical convenience insofar as documents executed
by diplomatic or consular agents are generally considered foreign documents in the State in
which they are executed (e.g., a document executed by a diplomatic agent at the french
Embassy in Germany is an Freanch document, not a German document).

Obtaining an Apostille for such documents would necessarily involve sending the document to a
Competent Authority in the home State of the diplomatic or consular agent (i.e., to France
in the example above). One might think that this obstacle could have been overcome by allowing States to designate Embassies or Consulates as Competent Authorities under the Convention and thus endow them with the authority to
issue Apostilles. While not expressly excluded by the Convention, such a system does, however, stretch the
basic concept underlying the Convention (Art. 1(1)), according to which public documents are apostillised
by a Competent Authority of the State “in the territory of [which]” the public document was executed.
Documents executed by an Embassy or Consulate are executed ‘on the territory of’ the host State (not of the
State the Embassy or Consulate represents), although the sovereign powers of the host State do not extend to
the premises and archives of the Embassy or Consulate. From this perspective too, therefore, the exclusion
from the Convention’s scope of documents executed by diplomatic or consular agents is perfectly sensible.
Not surprisingly thus, to date only one Contracting State (Tonga) has designated its Diplomatic Missions as
Competent Authorities.

Applying the rules of the Convention to such documents therefore
would be inappropriate given that the purpose of the Convention is to facilitate the circulation
of documents abroad.

As a result, the Convention does not abolish legalisation for documents executed by
diplomatic or consular agents. If such a document needs to be produced in the State where the
diplomatic or consulate agent exercises his / her functions, it will usually be sufficient for the
document to be presented to the Ministry of Foreign Affairs in that State for authentication.
If, however, the document is to be produced in another State, some States have adopted
the practice where the document is first presented to the Ministry of Foreign Affairs for
authentication, and that authentication is then apostillised by a Competent Authority in the
host State. Alternatively, the document may be issued together with some other form of official
certificate (e.g., notarial certificate), in which case the official certificate may be issued with an

The provision of notarial services is a traditional consular function recognised by
Article 5(f) of the Vienna Convention of 24 April 1963 on Consular Relations (provided that there
is nothing contrary thereto in the laws and regulations of the host State). As a general rule, a
notarial certificate is accepted in the home State of the consular agent who executed it without
any further formality. The Apostille Convention does not in any way affect this function.
Therefore, a consular agent who is authorised to notarise documents continues to be able to
do so once the Convention enters into force in the State where the agent performs his / her
functions. A person who seeks to produce a notarised document in another Contracting State
may therefore either approach a notary in the State of origin, or approach the Consulate or
Embassy of the State of destination that is located in (or accredited to) the State of origin.

Civil status documents executed by Embassies and Consulates

Embassies and Consulates carry out a range of functions relating to life events involving
nationals of the home State (e.g., births, deaths and marriages).

The geographic location of the event is the primary consideration in determining which
authorities are responsible for initially recording the event. Typically, the local authorities
issue civil status documents such as birth, marriage and death certificates, regardless of the
nationality of persons involved (e.g., a Swiss authority will issue a birth certificate for a baby
born of Australian parents living in Switzerland). In addition to local authorities, foreign
Embassies and Consulates located in the State in which the event occurred (e.g., the Australian
Embassy or Consulate in Switzerland) may also be responsible under the law of their home
State for executing documents (such as citizenship and identity documents) in respect of that
event if it involves a national of the home State. Under Article 1(3)(a), these documents fall
outside the scope of the Convention.

On the other hand, as part of the services offered to nationals of the host State, Embassies
and Consulates abroad may also assist in obtaining civil status documents from the home
State, such as extracts of civil registries maintained by an authority in the home State (e.g., the
Estonian Consulate in the United States of America obtaining a birth certificate for an Estonian
national who was born in Estonia but is now living in the United States of America). These
documents do fall within the scope of the Convention as they are not actually “executed” by
the Embassy or Consulate, but rather transmitted by them. In these circumstances, the law of
the home State will determine whether the document is a public document for the purposes
of the Apostille Convention and may therefore be issued with an Apostille. In this regard, it
is recalled that some States do not require Apostilles for extracts of foreign public documents
generated by foreign Embassies and Consulates located in their territory.

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