DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.
An “apostille” is a certificate issued by a designated authority in a country where a treaty called the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents applies. See a model Apostille. The apostille consists of 10 elements. The Convention requires that all apostilles be numbered consecutively, with individual numbers applied to each apostille issued. Group or bulk numbers per customer rather than per document are not acceptable.
The Special Commission of the Hague Conference on Private International Law on the Practical Operation of the Hague Legalization Convention (2003) stated in paragraph 13 of its conclusions and recommendations that “apostilles issued by competent authorities should conform as closely as possible to the model certificate. However, variations in the form of an apostille among issuing authorities should not be a basis for rejection as long as the apostille is clearly identifiable as an apostille issued under the convention.” The Special Commission stressed (paragraph 18 of the recommendations and conclusions) that apostilles may not be refused in a State of production (country where the document is to be used) on the grounds that they do not comply with that State’s national formalities and modes of issuance.”
The U.S. Department of State has advised U.S. state Notary Public Administrators and the State Secretaries of State that as a practical matter many foreign courts expect to see apostilles attached with a fair degree of formality. To the extend that pre-printed apostille allonges are used, it is essential that competent U.S. state authorities issuing apostilles consider using special anti-fraud watermarked paper, stick on seals, and/or web signatures, and employ a staple or grommet system that is fraud-resistant. All apostilles and allonges should be permanently affixed to the public document by the state issuing authority and not by the customer. Under no circumstances should customers detach the apostille to photocopy the documents.
Attaching or Affixing the Apostille to the Public Document
The Special Commission noted the variety of means for affixing apostilles to the public document. “These means may include rubber stamp, glue, ribbons, wax seals, impressed seals, self-adhesive stickers, etc; When the apostille is attached to the public document as a separate document (referred to in the treaty as an “allonge”) these means may include glue, grommets, staples, etc. The Special Commission noted that all these means are acceptable under the Convention, and that, therefore, these variations cannot be a basis for rejection of apostilles.” “As regards apostilles to be issued for a multi-page document, the Special Commission recommended that the apostille be affixed to the signature page(s) of the document. When using an “allonge”, the apostille may be affixed to the front or the back of the document.”
The Hague Legalization Convention is a multilateral treaty, the main purpose of which is to facilitate the circulation of public document issued by a country party to the Convention to be used in another country party to the Convention.
See 33 U.S.T. 883, 527 U.N.T.S. 189, T.I.A.S. 10072, U.S. Senate Executive L., 94 th Cong. 2d Sess. (1976), with message and report, and text of Convention; 20 International Legal Materials 1405, 1407, Martindale-Hubbell Law Digest, Selected International Conventions. See also Rule 44(a)(2), Fed. R. Civ. P., Notes. The treaty reduces the burden of the cumbersome “chain authentication” method of certifying documents which requires a long series of certificates.
Read More About the Hague Legalization Convention on the Hague Conference on Private International Law Web Page
What is a Public Document under the Convention?
Article 1 of the Convention provides that for the purposes of the Convention the following are public documents:
a. documents issued by a court or tribunal
b. administrative documents such as civil registry records or office of vital records regarding birth, death, marriage, etc.;
c. notarial acts (notarized documents);
d. “ official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.”
What is the legal effect of an apostille?
The Conclusions and Recommendations of the Special Commission of the Hague Conference on Private International Law on the Practical Operation of the Hague Legalization Convention (2003), item 22. “recalled that under the Convention, the effect of an Apostille is to “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 it bears.” (Article 3). In particular, the effect of an Apostille does not extend to the content of the public document to which it is attached.”
See also Administrative Office of U.S. Courts, Statement of Effect of Apostille (AO 393) which states “Apostilles certify only the authenticity of the signature of the official who signed the document, the capacity in which that official acts, and where appropriate, the identity of the seal or stamp which the document bears. An apostille does not imply that the contents of the document are correct.”
In which countries does the Hague Legalization Convention apply?
The Hague Legalization Convention is in force in more than 87 countries and their territories and possessions. To see where the Convention is in force, see the Hague Conference on Private International Law web site Hague Legalization Convention page, click on Status Table and look in the EIF (entered into force) column for the date the treaty became applicable in each country.
What are the designated U.S. authorities competent to issue an apostille?
See U.S. Competent Authorities on the Hague Conference on Private International Law web page. When the United States of America acceded to The Hague Legalization Convention, it designated tiered authorities competent to issue apostilles.
DOCUMENTS ISSUED BY FEDERAL AGENCIES see U.S. Department of State Authentication Office web page. See also the federal agencies links. You must obtain the seal of the federal agency that issued the document before the U.S. Department of State Authentications Office can affix an apostille to the document. Contact the U.S. Department of State Authentications Office.
U.S. DEPARTMENT OF STATE CONSULAR REPORT OF BIRTH OR CONSULAR REPORT OF DEATH, see the U.S. Department of State, Bureau of Consular Affairs, Passport Services, Vital Records Section.
U.S. FEDERAL COURT DOCUMENTS, see the Administrative Office of U.S. Courts web page link to the federal courts and Statement of Effect of Apostille (AO 393) and other related documents (AO 390, AO 391, AO 392).
DOCUMENTS ISSUED BY AUTHORITIES IN THE U.S. STATES, THE DISTRICT OF COLUMBIA, AND U.S. TERRITORIES AND OUTLYING POSSESSIONS
a. Documents issued by state or local courts;
b. Civil records (birth, death, marriage certificates)
c. State or local government agencies
d. Documents signed before a notary public in the U.S. state, District of Columbia or U.S. territory or possession.
For the designated authority in each U.S. state, the District of Columbia and U.S. territories and possessions, see the National Association of Secretaries of State, Notary Public Administrators Section web page under State links and the state links and cities and territories links on the U.S. Department of State Authentications Office web page. The Notary Public Administrators Section web page under State links includes contact information for each state, current fees and other information about the state and local offices that issue apostilles.
Note aboutBirth, Death, Marriage and Divorce Record: Before most U.S. states, District of Columbia or U.S. territories or possessions can affix an apostille to a copy of a birth, death or marriage certificate or divorce, you must obtain a certified copy of the document issued by the custodian of the record – the civil registrar/vital statistics office. See Where to Write for Birth, Death and Marriage or Divorce Records. Most states will not accept a photocopy certified as a true copy by a notary public or attested by you to be a true copy in a statement made before a notary. Many foreign countries will not accept notarized copies of birth, death, marriage and divorce records.
Article 7 of the Convention provides that each of the authorities designated in accordance with Article 6 shall keep a register or card index in which it shall record the certificates issued, specifying the number and date of the certificate and the name of the person signing the public document and the capacity in which he or she acted, or in the case of unsigned documents, the name of the authority which affixed the seal or stamp. The Convention also states that at the request of any interested person, the authority which issued the apostille certificate shall verify whether the particulars in the certificate correspond with those in the register or card index.
The Special Commission of the Hague Conference on Private International Law on the Practical Operation of the Hague Legalization Convention (2003) approved the use of electronic registries in its conclusions and recommendations stating “the Special Commission emphasized that the use of information technology (IT) could have a positive impact on the operation of the Convention, in particular through lowering costs and increasing the efficiency of the creation and registration of apostilles.”
Article 7 of the treaty indicates that a register or card index must be kept. The Special Commission on the Practical Operation of the Hague Legalization Convention of 2003 did not suggest a minimum period during which records in a register should be kept. It concluded (paragraph 21 of the Conclusions And Recommendations of the Special Commission) that it was a matter for each State (country) party to develop objective criteria in this respect. The Special Commission agreed that holding of information in electronic form would assist this process by making it easier to store and retrieve records.
For the practice of the U.S. Department of State Authentications Office see the U.S. Department of State Records Disposition Schedule, Chapter 6, A-06-014-07 .
The United States of America made a declaration when it became party to The Hague Legalization Convention explaining that for the United States, the treaty does not apply to extradition documents. See U.S. declaration.
The United States objected to the accession of Liberia to the Convention under Article 12, paragraph 2. The Hague Legalization Convention is not in force between the United States and Liberia.
Interpretation of the Convention
Deukmejian, California Attorney General’s Opinion No. 81-1213, March 19, 1982, 65 Ops. Cal. Atty. Gen. 205 (1982), 1982 Cal. AG LEXIS 70, 21 ILM 357 (1982) (Does the Hague Convention supercede the provisions of the California Civil Code)
Van de Kamp, California Attorney General’s Opinion No. 82-1209, March 9, 1984, 1984 Cal. AG LEXIS 72; 67 Op. Atty Gen. Cal. 93 (Has the 1982 amendment to section 27201 of the Government Code (Stats. 1982, ch. 285) obviated the need for a county recorder to see that a document complies with the requirements of Government Code sections 27280-27296 before the document of recorded?) (accepting an instrument for record that "is executed or certified in whole or in part in any language other than English)
Van de Kamp, California Attorney General's Opinion No. 88-802, December 21, 1988; 1988 Cal. AG LEXIS 38; 71 Ops. Cal. Atty. Gen 362, 89 Daily Journal D.A.R. 148 (Recordability of an apostille in the French language).
Curran, Maryland Attorney General’s Opinion, 89 Op. Att’y Gen 60, March 22, 2004. (Authentication of public records – significance of apostille on copy of foreign birth certificate)(89 Opinions of the Attorney General (2004))
Selected Reference and Reading