International migration has become a burning global issue that affects all sixty-five Member States of the Hague Conference, and indeed practically all States and their citizens on this planet. It is estimated that the number of international migrants47 has doubled in the past 25 years to reach the number of almost 200 million people.48 It is more than likely that the numbers will only further increase as nations become more interdependent and regions more integrated. Cross-border migration takes place both within the large regions of the world and between those regions, with a clear trend from economically developing towards developed regions. With the increase in scale, the issue has grown in complexity, and has become increasingly linked with other important global issues, such as security, trade, development, environment, and human rights. The range of stakeholders involved is huge, and their interests vary and sometimes conflict.
As the issue has grown in scale and complexity, States, international organisations and other stakeholders are looking for forms of governance to manage cross-border migration. Instinctively, many governments tend to favour unilateral procedures, but it is increasingly realised that international migration is driven by global forces, and there is growing awareness that international co-operation is essential to effectively control the movement of persons, eliminate abuses such as trafficking and smuggling, combat other undesirable forms of international migration, and promote the benefits it may also bring.
A. The work of the Hague Conference and its relation to international migration
Although the work of the Hague Conference on Private International Law – in so far as it deals with private international law aspects of the cross-border movement of people – is not central to the policy-making in the field of international migration, there are nevertheless important links. On the one hand, policies and perceptions of international migration have an impact on the willingness of governments to engage in negotiations on private international law issues that may affect those policies and perceptions, and to embrace the results of such negotiations. One may presume, for example, that one reason why a potentially very useful instrument such as the 1978 Hague Marriage Convention49 has not yet been more widely ratified has to do with concerns about its impact on the control of the international movement of people.
On the other hand, several successful Hague Conventions provide effective solutions to problems raised by various aspects of international migration. They extend from regulating the cross-border movement of children to dealing with certain specific cross-border consequences of international migration. An example of an instrument aimed at effectively controlling the international movement of a specific category of children – by promoting their migration where it is in their best interest and no suitable arrangements can be made in the country of origin, and combating it when it is not – is the widely ratified 1993 Hague Intercountry Adoption Convention.50 According to one of its main provisions, no child may be entrusted to prospective adoptive parents for purposes of international adoption unless the Central Authorities of both the State of origin and the State of destination (“receiving State”) have agreed that the adoption may proceed.51 They must take the necessary steps so that the child may leave the State of origin and enter and reside permanently in the State of destination.52 The Convention also establishes an accreditation system for (private) intermediaries as a major means to reduce abuses and to enhance the prospects of successful adoptions.53 Within the next few years, the Intercountry Adoption Convention will cover the largest part of the estimated at least 40,000 children that are adopted every year, mainly from economically developing to economically more developed countries.
Examples of Hague Conventions that deal with certain incidents of international migration include the 1956, 1958 and 1973 Conventions on the law applicable, and on the recognition and enforcement of decisions relating to maintenance obligations. As one knows, the Hague Conference is presently negotiating a new global instrument in this field which, in consultation with the United Nations, will also include a new system for international administrative and judicial co-operation for the cross-border recovery of maintenance, as a modern alternative to the 1956 UN Convention.54 The new Convention should, within the area it covers, help to resolve issues, such as the lack of effective systems for, and high costs relating to the cross-border remittance of money, which are, on a more general scale, core issues of international migration and development.55 The 1996 Hague Convention on International Protection of Children56 is another instrument with huge potential to assist countries worldwide in protecting the rights – both under private and under public law – of children on the move, including migrant children.
The work of the Hague Conference is, therefore, in more than one respect linked to the current search for governance in respect of international migration. On the one hand, the Conference, in order to reach its objective of progressively bridging differences between legal systems, has a clear interest in the establishment of more commonality of visions, objectives and practices in respect of international migration. This would strengthen the resolve of the international community to deal effectively with the many private international law aspects of international migration: international marriage and divorce, legal protection of children (including child abduction) and vulnerable adults (including migrating elderly people), marital property relations and inheritance, recovery of maintenance, etc. The wider ratification of the various Hague Conventions in those fields57 would, in turn, bring order and legal certainty to international migration and its consequences.
B. Possible use of certain techniques developed by the Hague Conference to certain aspects of international migration
On the other hand, the current debate on international migration might benefit from the fact that the Hague Conference has been a pioneer in creating innovative multilateral treaties, or Conventions, for the promotion of international co-operation in private international law matters relevant to international migration. These Conventions are based on a division of responsibilities between States, as well as on shared responsibilities, and aim at achieving practical results. Moreover, they have laid the groundwork for original “post-Convention”58 procedures and services, for assistance, monitoring and review, enabling the sharing of experiences and expertise among States parties, and their further development, made possible by progressive co-operation and growing confidence among treaty partners, other co-operating international organisations and the secretariat.
These treaties and the co-operative techniques based on them have proven their usefulness empirically, they have been a source of inspiration for other organisations, and some, including United Nations bodies,59 have recommended their use, most notably in the context of the international protection of children involved in cross-border movements, including migration. Their original features include: a careful negotiation procedure prepared by solid scientific research with the participation of a core group of States, international organisations and non-governmental experts from the field; an agreed set of principles and rules on the co-ordination of the interplay of different legal systems; the requirement by the Convention of designation of a specific government body (Central Authority) with overall responsibility both internally and internationally – in relation to its foreign counterparts – for the implementation of the Conventions, and as a result, the establishment of a form of institutionalised direct international communication, sharing of information and co-operation coupled with internal co-ordination; and progressive confidence building by regular meetings of these government bodies, again in the presence of experts from the field.
It may be worth examining whether some of these techniques developed by the Hague Conference might be applied to certain specific policy issues in the field of international migration, as a useful complement to some of the approaches that are presently being offered or considered. It would seem that current thinking on ways to provide more governance to the issue of international migration tends to focus either on a comprehensive and detailed regulation of the rights and obligations of migrants or on the reinforcement of the responsibilities of international organisations. There may be room to reflect more on ways to assist States in progressively better co-ordinating, at the internal level, some aspects of their policies regarding international migration, while at the same time developing, at the international level, forms of institutionalised direct co-operation among them, in respect of certain practical issues along the lines of the Hague approach. It might well be that such a course, which need not conflict at all with the two models currently most advocated, would be relatively easy to accept, would be not too difficult to realise, and would then have useful spin-off effects on other aspects of international migration.