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51. Letter from Mr. Kovar concerning compliance with the Hague Legalization Conventions by states of the United States (November 26, 2003)


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November 26, 2003

Alan N. Cote, Director
Public Records Division
Office of the Secretary of the Commonwealth of Massachusetts
Room 1719
One Ashburton Place
Boston, MA 02108

Re: Document Certification for Hague and Non-Hague Countries

Dear Director Cote:

Thank you for your efforts to inform the U.S. Department of State of difficulties Massachusetts residents have encountered with the acceptance of Massachusetts apostilles and authentications abroad. We have heard reports of similar difficulties from other states. There is a great deal of variety in practice among the states of the United States in the issuance of apostilles and authentications, and it appears that some of these practices are significantly different from traditional approaches followed in most other countries.

As you know, the purpose of an authentication (or in the case of countries party to the Hague Legalization Convention - an apostille) is to ensure the authorities in one country that a public document coming from another country is genuine so that it may be recognized in that first country. In the case of traditional legalizations this is done through the chain method of authentication, whereby public authorities authenticate the signature and seal serially from the origin of the document through each level of government authority. Finally, diplomatic channels are used to pass the chain of authentication from one country to the other. In such cases, the Massachusetts state authentication is authenticated by the

Authentications Office in the Department of State, which is then authenticated by consular authorities in the foreign country.

In the case of apostilles, the chain is done away with in favor of a single act of authentication carried out by the apostille authority designated in the Hague Convention. For documents coming from U.S. states, the United States has designated the Secretary of State offices in each state to issue apostilles. Therefore, unlike with traditional authentications (e.g., with China, which is not a party to the Hague Convention), the Massachusetts state apostille goes directly to the foreign authority without passing through the Department of State (e.g., with Russian, which is a party to the Hague Convention). It must therefore withstand foreign scrutiny without the benefit of Department of State authentication.

We have noted a number of developments in the way U.S. states prepare and execute apostilles that we believe are contributing to the increased rate of rejection abroad. First, there is a marked increase in the United States of the number of states generating apostilles by laser printer. Many states using laser printed apostilles have dropped the use of hand embossed or gold foil seals and/or dispensed with original hand signatures in favor of producing these on the laser printer. Second, there is a general trend away from traditional means for securing the apostille allonge to the public document to be authenticated. We have seen an increase in the number of states that use staples or other informal means of attachment. We also find that some state offices do not ensure that the pages of the document to which the apostille is attached are permanently bound together.

The result is that in many cases the apostille simply appears too casual or easily reproduced to satisfy the foreign authority that it has not been reproduced or attached through fraudulent methods. More traditional methods of creating and attaching apostilles, including by stamping the apostille form directly to the document to be authenticated, securing documents with ribbons and wax seals, hand embossing of seals, hand signatures, and permanent methods of affixing documents such as grommets, give higher degrees of confidence to these authorities.

We recently attended a meeting at the Hague Conference on Private International Law where we discussed these issues in great detail. We came away with assurances from the other contracting parties to the Hague Convention that there is nothing per se wrong with using laser printer produced apostilles, using printed signatures and seals, or attaching by staple. However, it was clear that these practices were not the worldwide norm (and are not followed by the State Department Authentications Office). It was also clear that these methods may put the citizens of many U.S. states at a disadvantage when they are attempting to use state apostilles for foreign adoptions, marriages, property transactions, etc. Used in combination, there is no way to avoid the situation where foreign authorities may raise questions about the genuineness of apostilles like this.

We therefore strongly recommend to you and to all U.S. state authorities that you make every effort to add elements to your apostilles to help satisfy foreign authorities that they have not been fraudulently produced. These elements may include:

-- Use of special paper stock, with heavy weight and special watermark properties.

-- A hand-embossed or externally applied (stick-on) embossed foil seal.

-- A hand-written, auto-pen, or stamped signature.

-- A permanent attachment of the apostille allonge to the underlying document (e.g., by grommet, or by staple that is further secured from tampering by a seal or some other method)

In addition, it is extremely important that you or the applicant secure the underlying document when it consists of more than one page by permanent attachment (e.g., grommet, drilled hole with ribbon).

In an attempt to improve international acceptance of Massachusetts apostilles, and avoid problems for Massachusetts residents abroad, I urge you to consider incorporating these factors in your methods.

In this respect, the recent sample you provided of a possible new form of Massachusetts apostille, which includes an embossed foil seal covering a blue ribbon, a red-inked stamped signature, and a folded corner that is stapled through, appears to us to be an excellent combination of anti-fraud elements. We would expect that its use would markedly decrease the potential for Massachusetts apostilles to be rejected or called into question by foreign authorities. The companion sample authentication you sent to Denitra Hawkins also meets the requirements of the State Department Office of Authentications for non-Hague authentications.

Should you have any questions regarding this letter, please contact me at (202) 776-8342 or kovarjd@state.gov.

Sincerely Yours,

/s/

Jeffrey D. Kovar
Assistant Legal Adviser
for Private International Law



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