Interview: Maja Groff

1. At this moment the Summer Courses of The Hague Academy have started. Could you tell us more about your involvement in the private international law course? What exactly do you do and how did it come about?

Secretary General Yves Daudet approached me a number of years ago when the Academy was first pioneering “doctoral networking sessions” within the private international law session and they were in need of facilitation and leadership for this. The point of the sessions is primarily to have peer to peer exchange, across diverse regions and subject matters, and to develop a community of international scholars, for support and discussion, both as to substance, for those working on similar subjects, and as to methods. In the sessions, I also try to encourage students to think about the legal policy dimensions of their research—as the founders of The Hague Academy envisioned it to be a place to bridge theory and practice in international law.  In this spirit, I also share perspectives on current Hague Conference treaty development and other projects, and we do a complex case study together, for example, on a significant cross-border case which shows the great practical importance of private international law today, or on a hypothetical new Convention in a challenging but important area of law (environment or human rights, for example). The intention is that students engaged in advanced research apply their minds practically to problem-solving in relation to complex trans-border legal policy issues or designing an international instrument, as law is – ultimately – an empirical discipline.

2. Did you ever attend The Hague Academy when you were a student?

No, unfortunately, I never had that pleasure. In my experience there is not as much awareness of The Hague Academy at North American law faculties. I completed joint civil and common law degrees at McGill University Law Faculty, and undertook as much international legal coursework as possible, however. The McGill Law Faculty approach, and its engagement with legal pluralism, very much lends itself to the comparative and international practice of law.

3. The Hague Conference for Private International Law (HCCH) first came into existence in 1893 when Tobias Asser organized the first Hague Conference on Private International Law. How did the Hague Conference manage to stay relevant throughout this long time period? What could be an explanation for the longevity of this organization? Is there a secret to its success?

Of course, I have not been at the HCCH for all of its history, but I can share my perceptions as to the reasons for its longevity and success. I would say that Tobias Asser, one of the initiators and chairman of the first Hague Conference for Private International Law in 1893, helped to set a certain tone. From the accounts I have read, he was an engaging personality, not afraid to show emotion, and a person who also built productive, lasting relationships with international scholars and diplomats involved in the work of the Conference and in other international efforts. His approach, goals and method of working might be described as ambitious and idealistic, yet also pragmatic (including being willing to compromise when needed) and concrete (he has been described as a “practical legal statesman”). He had a compelling vision, including in relation to the first Hague Peace Conferences and the first Hague Conference on Private International Law, to address contemporary problems, and to have a universal – i.e. global – mandate. This vision and approach is still evident today.

A good portion of Hague Conference work focuses on what may be considered as ‘humanitarian’ issues, for example, in relation to children and vulnerable adults, as well as addressing very practical solutions to cross-border legal issues (for example, in relation to service of process or the taking of evidence abroad). This may explain in part why we have very dedicated communities of legal practitioners, judges, government officials and academics that contribute to and strongly support, regionally and globally, the work of the Hague Conference. The Hague Conference has also very much been, in my experience, a “doing” organization with no shortage of potential legislative and other projects on its agenda, including “post-Convention services” once instruments have been adopted.

Also, the Hague Conventions, addressing issues of private international law, may have a distinctive way of building ownership at the national level, as concrete national private law will be engaged in the operation of the Conventions (rather than only presenting “top down” international norms), and the Conventions not infrequently require rather intense cross-border judicial or administrative cooperation. The Hague Conventions aim to respect legal diversity and to make legal systems “inter-operable” (i.e., rather than having an objective to harmonize private law, which is outside of the HCCH’s mandate). Post-Convention services are very important (e.g., Special Commissions for operational review, Guides to Good Practice, judicial trainings and networks, etc.) to ensure that the Conventions are implemented and are functioning properly.

4. The Hague Conference of Private International Law (HCCH) has developed 38 “modern” Conventions and Protocols and one non-binding model law instrument. What role do the Hague Conventions play in international law?

Generally, I think the corpus of modern Hague Conventions represent a great success story in international legislative activity, showing also that much can be achieved at the international level with relatively scarce resources (including a small staff), with appropriate working methods and philosophies. HCCH Conventions are a result of distinctive work processes developed over almost 125 years. The vintage of the organization (pre-dating the UN, of course), is important; also the fact that there are successive iterations of Conventions in various areas of law. We have gone through successive versions of Conventions addressing, for example, child support and family maintenance, child protection and vulnerable adults. In Hague Conventions you can see the progressive maturation of international law, as modern developments (both in private international law techniques and in national substantive or procedural law) are incorporated into new, successive instruments.

In terms of influence, quite a number of our Conventions have been used as an inspiration at the European level and in some cases have served very directly as a model for European Regulations. At the moment, we have 81 Members and 148 States are connected to at least one Hague Convention. We have one non-binding “model law” instrument (the 2015 Principles on Choice of Law in International Commercial Contracts), that may be influential at the national level.

Generally speaking, Hague instruments set important international legal standards that are widely accepted, dealing with cross-border legal issues which are increasingly vital for individuals and companies, due to rates of cross-border mobility and economic activity. This makes the HCCH even more relevant today, because of the forces of globalization. Another interesting function of Hague Conventions is that they often give effect to various international human rights norms in cross-border settings, for example, the four modern Hague Children’s Conventions (of 1980, 1993, 1996 and 2007) give effect to a range of provisions found within the 1989 United Nations Convention on the Rights of the Child. The Hague Conventions also provide opportunities for comparative law and law reform exercises in various areas of law, as States that participate in multilateral negotiation processes often must engage in some depth with the private law regimes of other States.

5. Much of your work at The Hague Conference of Private International Law (HCCH) focusses on improving legal protection for individuals and family/child law. International human rights instruments serve as a strong basis for this aspect of private international law. How important do you think it is for private international lawyers to have a background in public international law or human rights law ?

In general, we have seen international law and international lawyers becoming more specialized in recent years which is a positive development, as the field further develops and is professionalized. However, various areas of international law need to be brought together, and thus there is still a need for strong general knowledge, including in relation to international human rights law. For example, within international criminal law, international trade law and international investment law, to name a few areas of practice, a general need has been noted for better training and awareness of modern human rights law (and other relevant bodies of international public law), as human rights, by their nature, pertain to fundamental legal entitlements of individuals.

With respect to the importance of private international lawyers having a background in human rights law, it depends to some extent on your area(s) of practice, but I would argue that a general background in human rights is necessary. For example, various Hague Conventions which deal with international civil cooperation and litigation, have fundamental “due process” dimensions. These are cross-cutting issues. This is especially the case for Hague Conventions in the area of international protection of children and other vulnerable persons, where it is essential to have a background in international human rights norms and to keep up with evolutions in the same.

A range of Hague Conventions have been negotiated against a backdrop of the most current human rights norms at the time of negotiations, and subsequent to adoption it must be ensured that the Conventions keep pace with developments (e.g., for example, the Hague 2000 Convention on the Protection of Adults was followed by the 2006 UN Convention on the Rights of Person with Disabilities). When we are working on a new potential Convention project, we could try to conceive and draft such an instrument in isolation. However, this approach would lead to remoteness from the discussion of relevant international bodies and an ineffective use of resources if our Member States are doing important policy work at other venues (e.g. at the UN General Assembly, UNODC, Council of Europe, etc.) and we do not to some extent benefit from the fruits of that labour. Also, for our work, as we deal with treaty negotiation and then the administration and servicing of these treaties, knowledge of general public international law and the law of treaties is very important.

6. Can you tell us what is that you in particular are working on currently in your capacity as a Senior Legal Officer?

To give a few examples, I have recently been intensifying efforts for the international promotion of the Hague 2007 Convention on the cross-border collection of child support and other forms of family maintenance, which replaces an older UN 1956 Convention and a number of previous Hague Conventions. It is already in force among 32 States, and the US should complete ratification this year; we are thus trying to encourage States around the world to also accede to or ratify this Convention as soon as possible. We are corresponding directly with States and are also working with networks of family law practitioners in all regions. I have recently also been working on completing / reviewing a major piece of research relating to the operation of another of our Conventions (the 2000 Convention on the Protection of Adults), which involved a thorough analysis of the travaux préparatoires of the Convention as well as consultations with practitioners and Central Authorities where the Convention is in force. I continue to be engaged in following up on the fourth “Malta Conference” that we organized last May to build bridges and raise awareness of certain Hague Conventions among States influenced by or with a Shari’a legal tradition. The Malta Conference focused on three Hague Children’s Conventions, on child support, parental child abduction and general child protection, and our international judges’ network. This is an on-going process, but the response was encouraging. I have been assisting with another up-coming conference with the Singapore judiciary in September. Also, we are regularly involved in producing publications in multiple languages to support the operation of our Conventions and in communications with various different stakeholders such as judges, lawyers, government caseworkers, civil servants, as well as liaising with other IO’s such as the UNODC and UNCITRAL. We invest effort in cultivating partnerships with various countries on specific projects, and various professional communities / communities of legal practice. There are also potential new legislative instruments (i.e., new Hague Conventions) on our agenda for which we require ongoing (comparative) legal research. All of these dimensions of our work require a great deal of multitasking.

7. Recently, you spoke at a Conference under the heading: ‘Responsibilities of international legal officers: a dedication to all that remains unfinished’. What do you believe are currently the most important responsibilities for international legal officers? Are there challenges too? Could you please elaborate more on this?

Part of the title of my presentation was taken from a quote by Eleanor Roosevelt, who in December 1948 in Paris, on the occasion of the adoption of the Universal Declaration of Human Rights (UDHR), stated:

“As we here bring to fruition our labors on this Declaration of Human Rights, we must at the same time rededicate ourselves to the unfinished task which lies before us. We can now move on with new courage and inspiration to the completion of an international covenant on human rights and of measures for the implementation of human rights.”

In the case of the UDHR, the binding Covenants have been adopted of course, but we likely cannot say that the “measures for the implementation of human rights” have been assured. We still have a long way to go to realize the (compelling) visions of people like Eleanor Roosevelt and Tobias Asser, who, among many others, set an enlightened course for the development of a viable international legal order. Broadly speaking, I think that the responsibilities of international legal officials include taking this long term perspective of both high aspirations and in taking very concrete and practical steps forward, including thinking in an entrepreneurial / innovative way.

With this in mind, I came up with some suggested framing ideas for “practical responsibilities” of international legal officials, from experiences in the practice of international law, which might include, in brief:

1. Commitment to the progressive development of international law;
2. Building of a stronger international civil service identity;
3. Greater attention to effective institutional governance;
4. Establishing sustainable international funding / resourcing mechanisms;
5. Proactively addressing the enforcement gap in international law;
6. Mindfulness of key post-WWII international legal principles (g., interdependence of peace and human rights, pacific settlement of disputes, etc.);
7. Engagement with civil society and the public;
8. Awareness of international multicultural and post-colonial perspectives;
9. “De-fragmentation” of international law.

All of these, I would say, are challenges and are long term projects or perspectives. The multilateral governance environment is very challenging. Also, national budgets are strained, but there is increasingly more work to do at the international level as international law matures, and also as global and cross-border problems intensify. We need more intelligent, agile and effective responses at the global level, but the vision and tenacity to develop the requisite institutions are not necessarily always there. We should aim for a very high functioning international service within international organizations and State representatives at international venues should also have this awareness of / commitment to shared global interest.

8. We have noticed that you are a frequent visitor of the Library. What is in your opinion the significance of a library as specialized as the Peace Palace Library? Can its future role be of continuing importance?

I am impressed by both the specialization and also often by the breadth of the collection of the Peace Palace Library. It is an inspiring institution, which will no doubt continue to play a role of importance. I greatly admire the accessibility of the Library, and the care taken, for example, to have a modern digital presence. The Peace Palace Library of course should be recognized as a formative institution of The Hague tradition of peace and justice (with an illustrious history), and as integral to the development of The Hague as a legal capital and thus also to the development of international law. I have spoken with numerous practitioners and scholars who are working at key Hague legal institutions or who are doing advanced academic research or pioneering work on the international peace movement, for example, who rely on novel and completely unique aspects of the Library’s collection. The significance of the Library should not be underestimated; it is a central institution which will continue to assist in and catalyze the development of international law, and will continue to play a role in the further evolution of Hague legal institutions, which are of great importance internationally.

9. What would be your advice to students of international law?

There is a lot of work left to be done. This is obvious and evident, but often (but not always), one gets the impression that the international community (and legal practitioners / scholars) focus more on responding to crises, rather than building the infrastructure and ensuring conditions where crises can be prevented. The work to be done is not just academic work. Careful scholarly study is important, but we also need individuals devoted to practice, governance and institutional administration, for example. One needs both vision and attention to detail—for example, Elihu Root (American Nobel Peace Prize winner who contributed to the establishment of The Hague Academy, as did Tobias Asser) is described as a “most brilliant administrator” as well as a great legal mind. There are also a range of general challenges in various policy areas of international law and global governance that – in my view – are crucial, but aren’t getting enough attention. For example, international financial transparency and taxation cooperation (although both of these are getting increasing attention), international labour law and labour protection, and also issues as fundamental as fully implementing aspects of the UN Charter (pieces of the post-WWII order seem to have fallen through the cracks). Also, I would give the advice that we should try, as much as possible, to conduct our work on a foundational ethic of service, keeping in mind the common (international) good. If we work sincerely with such an ethic, our efforts will be much more effective.