US embassy cable - 04THEHAGUE167

UNCLAS SECTION 01 OF 02 THE HAGUE 000167 
 
SIPDIS 
 
DEPARTMENT FOR IO, EUR/ERA, L 
 
E.O. 12958: N/A 
TAGS: KJUS, PREL, EUN, HCOPIL 
SUBJECT: HCOPIL: MEMBERSHIP OF THE EUROPEAN COMMUNITY IN 
THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW 
 
 
1.  Summary.  The Hague Conference convened an informal 
advisory committee to consider the request of the European 
Community to become a member of the organization.  Group 
agreed that changes would be necessary to the Statute and 
Rules of the organization, that there should be "no 
additionality," that FAO precedent should be generally 
followed and tailored to working conditions of Hague, and 
that the process should proceed with due speed. 
Secretary-General will prepare a report and recommendations 
 
SIPDIS 
for consideration by the Special Commission on General 
Affairs and Policy to convene in April.  End Summary. 
 
2.  The Hague Conference on Private International Law 
convened an advisory committee January 21 to 23 to consider 
the request of the European Community to join the Hague 
Conference as a full member.  Membership under the Statute of 
the organization is limited to "states."  Assistant Legal 
Adviser (L/PIL) Jeffrey Kovar attended for the U.S.  Meeting 
was chaired by Xue Hanqin, Chinese Ambassador in the Hague, 
and included Kirill Gevorgian, Russian Ambassador, Gilberto 
Vergne Saboia, Brazilian Ambassador, and Fausto Pocar, 
Italian vice-president of the International Criminal Tribunal 
for the former Yugoslavia (ICTY), as well as experts and 
government officials from the UK, Australia, Canada, Egypt, 
Spain, Japan, Sweden, France, Belgium, Germany, and the 
Netherlands.  Maria Tenreiro, Head of the Unit for Civil 
Justice from the European Commission's Directorate-General 
for Justice and Home Affairs attended the second day of the 
meeting. 
 
3.  Meeting discussed changes to the competence of the 
European Community and the shift of responsibility of many of 
the traditional subjects of the organization from the "third 
pillar" to the "first pillar" of the EC Treaty -- meaning 
that they have become the subject of Community responsibility 
and are no longer the subject of exclusive member state 
competence.  In some cases the Community now has exclusive or 
near-exclusive competence (e.g., civil jurisdiction and the 
enforcement of judgments); in others competence in mixed 
(e.g., securities law).  It is clear, however, that the 
European Commission is in the process of rapidly expanding 
its competence over these areas, and that the member states 
no longer have the freedom to act in many if not most of the 
areas covered by the organization's work.  In this context, 
the Community and member states have decided that the 
Community must be represented through the European Commission 
with full status in the organization. 
 
4.  Meeting participants noted that as a practical matter, 
the Hague Conference had developed an adequate method for 
permitting the Commission to play an effective role in 
negotiations from its position as an observer, but generally 
agreed that it would be desirable to formalize its membership 
in the organization as soon as practicable.  Precedent of the 
Food and Agriculture Organization (FAO) was held up by 
participants and the Commission representative as a good 
precedent.  There was no dispute that there should be "no 
additionality" -- that the Community would not benefit from 
any extra vote on top of those of its member states.  In any 
case, participants stressed that the presence of a block of 
EU states soon to number 25 out of a total of 62 member 
states had led to a practice that now discourages resort to 
voting and encourages the preparation of treaties by 
consensus-based negotiating procedures. 
 
5.  Participants agreed that the Hague Conference Statute -- 
a multilateral treaty -- would have to be amended to include 
participation by Regional Economic Integration Organizations 
(REIO).  Several participants spoke in favor of dropping the 
"Economic" from REIO as outdated and no longer reflecting the 
full range of Community integration.  U.S. participant 
stressed that this would be unwise since the REIO formulation 
is often used and well known, and clearly covers the EU. 
European Commission rep agreed that REIO was adequate for 
their purposes. 
 
6.  Participants also agreed that Rules of Procedures and 
Regulations on Budgetary Matters would have to be reviewed 
and revised to ensure that voting was conducted on the basis 
of the "no additionality" principle, and that there were 
rules requiring the Community to spell out in advance of 
meetings the relative competences of the Community and member 
states.  There was agreement that the Community would not pay 
a full member's assessment (EU member states already provide 
more than half of the annual assessed budget of the 
organization), but should contribute based on increased 
administrative costs directly related to its participation. 
Unresolved was whether the Community should be able to 
participate in meetings of the Council of Diplomatic 
Representatives, which determines the annual budget. 
 
7. Participants acknowledged value of FAO Constitution and 
Rules as precedent for amending the Statute and Rules of the 
Hague Conference, but noted they would need to be tailored to 
the specific circumstances of the Hague Conference.  It was 
agreed that other necessary changes to the Statute and Rules 
to reflect evolving practice in the Hague Conference should 
also be included.  The latter changes, it was stressed, 
should be held to a minimum so as not to open up a long and 
drawn-out process.  Changes contemplated are references to 
the role of the Netherlands Standing Committee, which no 
longer plays an oversight role for the organization, and 
language reflecting the importance now placed on 
consensus-based working methods. 
 
8.  The question was raised whether the Article 12 amendment 
provision of the Hague Conference Statute permitted 
amendments to be decided and approved through resolutions 
adopted at a formal diplomatic session, or whether it was 
necessary to go through a formal treaty amendment process and 
await national ratification.  Hague Conference 
Secretary-General Hans van Loon pointed to drafting history 
 
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of the provision, which could be read to imply that the 
process should be simple rather than complex.  U.S. 
participant noted that it would be necessary to consult on 
this point with the Department of State (L/T) in Washington. 
 Meeting agreed that further examination of this question was 
necessary. 
 
9.  Meeting concluded that Secretary-General van Loon would 
prepare a report and recommendation for the April 5-7 Special 
Commission on General Affairs and Policy of the organization 
reflecting the discussions in the informal group.  The 
Special Commission would then take formal decisions about the 
method and schedule for drafting and approving changes to the 
Statute and Rules. 
RUSSEL