Juan Pablo Hernández*
*Founder of The Treaty Examiner and Moot coach at Universidad Francisco Marroquín (Guatemala).
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The Treaty Examiner, Issue 1 (April 2020), pp. 9-12.
The 1961 Convention Abolishing the Requirements of Legalization for Foreign Public Documents (Apostille Convention) is a triumph for uniformity in the context of international transactions. The Convention exempts public documents made in a Contracting State from the requirement of legalization in all other Contracting States. The onerous legalization requirements are replaced by a certificate named apostille (French for ‘marginal note’) issued by the country where the public document is drawn up and that all other State Parties are under an obligation to recognize. At the time of writing, 118 States have become Parties to the Apostille Convention (1).
This article explores three issues regarding the probative effect of the apostille.
The effects of the apostille on the contents of the public document
The apostille only has the purpose of authenticating the origin of the public document and not the veracity or probative value of its contents (2). Even if the public nature of the document may imply the veracity of its content, the apostille does not intensify or otherwise modify that veracity (3). Using the apostille as a justification for the veracity of the document’s contents undermines the confidence in the apostille process (4). Article 5 of the Apostille Convention states:
When properly filled in, [the apostille] will 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.
Article 5 of the Apostille Convention, in relevant part.
When issuing the apostille, the Apostille Convention only obligates States to verify the origin of the public document by authenticating the signature and any stamp or seal. The competent authorities are not under an obligation to verify the contents of the public document. In practice, most States do not verify the contents of the apostilled document (5). States are still entitled to revise the veracity of the public document’s stipulations outside the apostille-issuing process, if mandated by domestic rules on fraud or illegality (6). Moreover, in some jurisdictions, the public character of the document depends on the veracity of its contents – to determine public nature, then, the origin State may need to assess whether the document has been forged or altered (7).
On a related note, the probative value of the underlying public document is governed by the law where the document is sought to be used (8).
The effects of affixing an apostille to a private document
What happens if the apostille was erroneously affixed to a private document? Would the affixing of the apostille on a private document give it the character of ‘public’ or certify its origin and authenticity? The drafters answered these questions in the negative. The apostille does not make the document public, it merely certifies its origin (9). Therefore, one cannot rely on the fact that the document bears an apostille to prove that it is a public document. The Apostille Convention only applies to public documents as defined under the laws of the document’s country of origin, including those defined in Article 1, and does not apply to documents signed by persons in their private capacity (sous seing privé) (10).
Is it necessary to authenticate the signature, seal or stamp appearing on the apostille?
The plain answer is no. The very purpose of the Apostille Convention is to abolish the requirements of legalization for the validity of foreign documents. It would be at odds with the object and purpose of the Convention to subject the apostille to further authentication requirements. To prevent an issue regarding such an authentication, Article 5 of the Apostille Convention states that ‘[t]he signature, seal and stamp on the [apostille] are exempt from all certification.’ This is consistent with the principle of acta publica probant se ipsa (public documents prove themselves).
For further reading
- Convention Abolishing the Requirements of Legalization for Foreign Public Documents, 1961, available at: https://assets.hcch.net/docs/b12ad529-5f75-411b-b523-8eebe86613c0.pdf
- Model apostille, available at: https://assets.hcch.net/upload/apostille.pdf
- Hague Conference on Private International Law, The ABCs of the Apostille, available at: https://assets.hcch.net/docs/6dd54368-bebd-4b10-a078-0a92e5bca40a.pdf
PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 17 April 2020.
Endnotes
1. Hague Conference on Private International Law, Status Table of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, updated as of 24 October 2019, available at: https://www.hcch.net/en/instruments/conventions/status-table/?cid=41
2. Hague Conference on Private International Law, Conclusions and Recommendations of the 2012 Special Commission on the Practical Operation of the Apostille Convention, Comment No 13.
3. Permanent Bureau of the Hague Conference on Private International Law, Apostille Handbook: A Handbook on the Practical Operation of the Apostille Convention, 2013, p. 9
4. See supra note 3, p. 17.
5. Permanent Bureau of the Hague Conference on Private International Law, Apostille Handbook: A Handbook on the Practical Operation of the Apostille Convention, 2013, p. 53
6. Hague Conference on Private International Law, Conclusions and Recommendations of the 2009 Special Commission on the Practical Operation of the Apostille Convention, Comment No. 80.
7. See supra note 3.
8. See supra note 2, Comment No 14.
9. See supra note 6, Comment No. 72.
10. See supra note 9.
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