New EU Regulations and Their Impact on the Catalan Law: The Relevance of Hague Conference Conventions for Catalan Law

AutorMarta Pertegás
Cargo del AutorFirst Secretary of the Permanent Bureau, Hague Conference on Private International Law; Professor of Law, University of Antwerp.
Páginas137-145

Page 137

1. Introduction

At the closing of this two-day Symposium, it is a great pleasure to have the opportunity to reflect on the cross-fertilisation of new rules on private international law and the work of the Hague Conference on Private International Law, wherein I have the privilege to work since 2008. I would like in particular to highlight the relevance of some recent legal developments in Catalonia, Spain and the European Union, which were discussed at length during this Symposium, for the activities of the Hague Conference. Before I turn to this, I would like to refer to the influence Hague Conference Conventions exert on the Catalan legal framework relating to cross-border protection of children and families.

Page 138

2. What connects the work of the hague conference to catalan law?

To try to embrace the full range of developments in private international law covered by other papers would be far too ambitious, so this contribution concentrates largely on selected topics relating to the cross-border protection of children and families.

Viewed from the perspective of Catalan law, the Hague Conference offers global instruments, some of which have already achieved near-global status (the 1980 Hague Convention on International Child Abduction1and the 1993 Hague Convention on Intercountry Adoption2), and others are progressing in this direction (the 1996 Hague Convention on the Protection of Children3, the 2000 Convention on the Protection of Adults4and the 2007 Hague Convention and Protocol on the International Recovery of Child Support). Most of these instruments have been addressed in greater detail in other contributions,5yet it is important to underscore their compatibility and connectivity with some of the recent changes introduced in Catalan law. As an illustration, the 2000 Convention on the Protection of Adults, if ratified by Spain, would offer a very welcome complement to the modern Catalan legal framework protecting vulnerable adults.6

Besides the Conventions in se, the Hague Conference provides an adequate umbrella for enhanced inter-State co-operation at the administrative and judicial levels. The global network of Central Authorities operating under these Conventions, as well as under other Hague Conference Conventions, now

Page 139

constitute an essential part of the infrastructure for securing the protection of children and families across borders and for providing to foreign applicants information about and access to foreign legal systems.7The last years has seen a parallel development in cross-border judicial co-operation, a movement which has been led by the judges themselves, stimulated by regional networks and by the Hague Conference. Also in that same period the Hague Conference has transformed the activities which it undertakes at the post-Convention stage -to secure widespread ratification of Conventions, to ensure their effective implementation, to encourage international consistency in the ways the Conventions are applied and interpreted, and to address systemic problems in their functioning.8As the most recent example, the second and final part of the Sixth Special Commission to review the practical operation of the 1980 Hague Child Abduction and 1996 Hague Child Protection Conventions concluded at the end of January 2012. More than 200 experts from around the world gathered in The Hague to discuss best practices on the application of these Conventions and other policy matters pertaining to international child protection.9

3. What connects catalan law to the work of the hague conference?

Conversely, recent legislative developments in Catalan law offer new insights for current work at the Hague Conference. Three specific examples come to mind:

Page 140

3.1. Cohabitation outside marriage

Catalonia, like most other territorial units («Comunidades autónomas») in Spain, has developed a legal environment for cohabitation outside marriage.10Similar legislative developments are noticeable in a growing number of jurisdictions.11Despite these evolutions in a growing number of legal systems, as well as the development in many jurisdictions of a non-institutional legal environment for cohabitation, there is still no global private international law instrument which addresses the cross-border dimensions of such relationships. Apart from an instrument developed by the International Commission on Civil Status which provides for the recognition of the civil status effects of registered partnerships,12there is no general international regime governing the issues of international jurisdiction, applicable law or recognition of non-marital relationships and their legal effects. Current initiatives at the EU level should also be noted.13

At the global level, the Hague Conference has for many years had the subject on its Agenda, but without priority. This means that Members of the Conference have not given the go ahead for work on a new Convention, and this is despite acknowledgment of the many practical problems

Page 141

which are already arising as a result of the absence of legal rules. The main difficulty is one of public policy. For many States the idea of embarking on an exercise which might appear to be lending legitimacy to, or even facilitating, relationships outside marriage is not acceptable. There is thus a conflict between pragmatism and ideology which is difficult to reconcile in an Organisation which has great diversity in its membership. Given that decisions on major issues within the Hague...

Para continuar leyendo

Solicita tu prueba

VLEX utiliza cookies de inicio de sesión para aportarte una mejor experiencia de navegación. Si haces click en 'Aceptar' o continúas navegando por esta web consideramos que aceptas nuestra política de cookies. ACEPTAR