Tobias Micheal Carel Asser

Tobias Micheal Carel Asser

Brief Intro
• Tobias Michael Carel Asser was a scion of a prominent Dutch family which had produced a series of
distinguished lawyers.
• He co-founded the Institut de Droit International - founded in 1873 in Gent in Belgium which merited
him a Nobel Peace Prize in 1904 together with Austrian journalist and pacifist Alfred H. Fried, primarily
for his work in founding the Permanent Court of Arbitration.
• A practicing lawyer and a professor of both private and international law, he believed that a strong legal
framework that governs private international interaction between people would make life easier and
promote peace and justice globally.
• Asser conceived the HCCH as multilateral platform for dialogue, discussion, negotiation and
collaboration
• He persuaded the Dutch government to call several conferences of European powers to work out a
codification of international private law
• Presided over the conferences of 1900 and 1904 resulting in several important treaties international
family law, including matters relating to marriage, divorce, legal separation, and guardianship of minors.
Tobias Asser’s Contribution to International
Law
• HCCH’s convention on Marriage (1902)
• HCCH’s convention on Divorce (1902)
•HCCH’s convention on Guardianship (1902)
• HCCH’s convention on Civil Procedure (1905)
• HCCH’s convention on Effects of Marriage (1905)
• HCCH’s convention on Depravation of Civil Rights (1905)
HCCH’s convention on Marriage (1902)

• The convention tackles involving the right to marry, the prohibitions on marriage and
the statuses of marriages entered into by foreigners and nationals of the contracting
states
• It only applies to celebrated in the territory of the Contracting States between persons
of whom at least one is a national of one of these States
• Marriages between kins and those for forming alliances are prohibited and persons who
were guilty of adultery, or attempted murder are otherwise also prohibited
• As long as foreigners meet their state’s legal requirements they are eligible for marriage
and the contracting states also have the right to not recognize the validity of a marriage
if such was not entered into in accordance with their legal requirements or form.
• The convention recognizes the validity of marriages officiated by diplomatic or consular
agents as long as it is not contrary to the national laws of the spouses.
HCCH’s convention on Divorce (1902)

• This convention tackles mainly on the request for divorce or legal

separation of spouses that are nationals or foreign residents of the
contracting states mainly on the request and where they can be made
• It only applies to applications for divorce or legal separation filed in
one of the Contracting States, if at least one of the litigants is a
national of one of these States if their national law and the law of the
country where the parties requested divorce/legal separation allows
or recognizes
HCCH’s convention on Guardianship (1902)
• This convention tackles the issue on what state may exercise
guardianship over minors who are nationals of any of the contracting
state residing in the territory of any of the other contracting states.
• Provides the proper procedure whenever there are domestic laws
providing guardianship towards the minor and whenever there are
none as well as the scope affected by said guardianship and the
period.
HCCH’s convention on Civil Procedure
(1905)
• This convention tackles rules on services of documents and the rules
on rogatory commissions between contracting states. It also discusses
legal aid for nationals and foreigners within the European territories
of the contracting states.
• It delves on the validity of the actions of the commissions as well as
the rules on the payment of costs, expenses and security.
HCCH’s convention on Effects of Marriage (1905)

• This convention tackles the property relations between the spouses

that resides, marries or is a national of a contracting state.
• It also provides for what “national law” will apply to the spouses of
the same nationality and that of different nationality.
HCCH’s convention on Depravation of Civil Rights (1905)

• This convention discusses the rules, scope and the effect of a civil
interdiction placed on a foreigner residing in the territory of any of
the contracting states.
• Here the person and property of the foreigner being placed under
civil interdiction shall be under the guardianship of a competent
authority of the state.
Boll Case ( Netherlands v Sweden)
• This is a case on the application of the 1902 Convention on the Guardianship of
Minors
• Facts
• In this case, the Netherlands sued Sweden concerning the guardianship of Marie
Elizabeth Bolls. She was a daughter of a Dutch seafarer, Johannes Bolls and a
Swedish mother who already passed away. At the time M. Bolls were residing in
Sweden together with her maternal grandparents.
• Johannes was registered in Sweden as the guardian of Marie pursuant to Swedish
laws on guardianship. Subsequently the infant was placed under protective
upbringing (skyddsuppfostran) by the Child Welfare Board of Sweden for the
protection of young persons and children in accordance to its ordre public or
public policy.
• The Dutch courts instituted that the guardianship over the infant
should be governed under Dutch laws.
• The father and the deputy guardian appealed to the Swedish courts
for the protective upbringing of Marie be terminated. The father
relinquished his right of guardianship and appointed a female
guardian and ordered that Marie should be handed over the latter’s
custody.
• The Supreme Court of Sweden maintained the protective upbringing
hence this case
• Issue
• What law shall govern the guardianship of Marie
• Does the action of Sweden of putting Marie under protective
upbringing conflicts with the right of guardianship under Dutch laws
under the 1902 Convention on the guardianship of infants
• Whether or not an ordre public (public policy) can prevail over
conventions
• Ruling of the Court
• In accordance with the 1902 Convention on the Guardianship of infants,
art 1 states that the law that should apply is the law of the country of the
infant for which he/she is a national. In this case its should have been
Dutch Laws on Guardianship.
• For the 2nd and 3rd issues, the court decided to rule on the matter by
construing the concept of guardianship narrowly. Sweden does not
dispute the fact that its public policy of providing protective upbringing
may be an obstacle to a guardian from freely exercising his rights.
However by its actions in its domestic court’s ruling, it also recognizes the
rights of the guardian in accordance to Dutch laws.
• The protective upbringing which is a public policy does not constitute
a breach of the convention as the Contracting states still retain its
right to appoint guardians subject to the restriction of the public
policy.
• There is no rival guardianship in this case as when the guardian
appointed through Dutch laws was denied in her request to terminate
the protective upbringing, Swedish courts did so not because it does
not recognize her rights as a guardian, but because, she failed to fulfill
the requirements set by the public policy, which is intended for the
best interest of the infant.
• The Court ruled in interpreting the convention that its aim was to end the
conflict in what law to apply to the guardianship of infants. However, it does not
mean that the national law always prevail over the other and that the exercise
of the rights of guardianship cannot be subjected to restrictions and requisites
set by domestic laws.
• The public policy of protective upbringing (skyddsuppfostran), is not a law on
guardianship but a social welfare law for the compulsory education and sanitary
supervision of children within Sweden which also applies to foreign children.
• It is designed not only for the best interest of the child but for the protection of
the Swedish society from the effects of improper upbringing and moral
corruption of young people.
• The court ruled that it cannot, by an extensive construction of the
constitution, prevent the Swedish governmental from exercising its
functions of protective upbring and applying to foreign infants as such
would be to misconceive the social purpose of the law which would
become an obstacle to social progress.
• The 1902 Convention gave preference only to the national law of the
infant but it does not tackle on the matter of the laws on the
protection of children. Thus Sweden did not fail to observe the 1902
Convention.
The effects of the old conventions to the
rights and privileges we enjoy to day
• The old conventions headed by Mr. Asser, provided a legal framework
aimed to make life easier for private cross-border legal interactions
• It also paved way for many more other conventions dealing with
commercial transactions, child support, adoptions, estate laws,
parental responsibility and many more
• The Boll case, lead to the a new convention in 1961 expanding the
1902 convention to include matters involving not only the infant but
that of minors
HCCH
• Hague Conference on Private International Law
• Conférence de la Haye de droit international privé
• It represents the bilingual nature of the HCCH, which has both English
and French as its working languages.
• It is an inter-governmental organization composed of its member
states that develops and services multilateral legal instruments which
respond to global needs.
• The Purpose
• the Conference aims to work for the "progressive unification" private
international law. This involves finding internationally-agreed approaches to
issues such as jurisdiction of the courts, applicable law, and the recognition
and enforcement of judgments in a wide range of areas, from commercial law
and banking law to international civil procedure and from child protection to
matters of marriage and personal status
• to work for a world in which, despite the differences between legal systems,
persons - individuals as well as companies - can enjoy a high degree of legal
security.
 HCCH

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