(See Part One here and Part Two here. Part Three is linked below.)
An axiom of life was posed to me one day toward the end of my 2L year:
Lawyers are the most helpless race of people on the planet.
This wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience. “Seriously,” he said. “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”
After I started practicing, I concluded that he was right– at least, to a point. But it’s not that lawyers are incapable of dealing with picayune matters. We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice. Part of the difficulty in dealing with the seemingly small stuff is this: we have such voluminous reading to do that we forget one of law school’s Cardinal Rules: keep reading.
A big issue that comes up now and again– the incorrect conclusion that Article 5 is the only avenue to Hague Service. That was the crux of Keep Reading, Part Three last month. Those unfamiliar with the Hague Service Convention (HSC) often labor under the mistaken belief that the Convention requires the involvement of the government in the foreign country where the defendant is to be served. In many places, that’s true– in a fair chunk of western Europe and Latin America, as well as almost all of the Far East. But if you stop reading at Article 5, you don’t get to the alternative means of service enshrined in Article 10. And that’s bad if your defendant is in the Netherlands, Belgium, and much of the English-speaking world. It’s even worse if your defendant is in Hong Kong, where the alternative is sometimes the only viable way to go.
But the validity of Article 10 methods relies on the declarations made by the destination country. That so many lawyers never get that far is indicative of how little understood treaties really are. At their core, they’re very simple, with an important caveat. Treaties are contracts. That’s all. They’re binding agreements between two or more nation-states. Foster v. Neilson, 27 U.S. 253, 314 (1829).
Think of all the elements drilled into your head in 1L Contracts class: meeting of the minds, consideration, adhesion.* Member states are often referred to in treaty texts as “High Contracting Parties.” Pretty straightforward concept. But there’s a twist: where more than two countries sign on to the agreement, reservations and declarations create different relationships between certain states-party.** That is, when China signs a treaty with the United States and Canada, it can object to certain articles of the treaty, so while those articles are in force between the U.S. and Canada, they don’t even exist as the relationship looks across the Pacific. Best example of that in the litigation world: HSC Article 10 (see above).
Point is, just reading the text of a treaty isn’t enough– you have to look to the reservations/declarations made by each member state. You absolutely must…
* Seriously. Contracts of adhesion exist in international law. After all, how many countries have signed treaties with artillery tubes pointed at their capital?
** I love that term. State-party and its plural form, states-party. Translated for civilians: countries that are party to an agreement.
A hat tip to my International Law professor at UMKC. Fred Green is a retired Army JAG officer (not the fellow I quote above) whose last billet was as counsel to the Joint Chiefs of Staff, and who authored the first draft of the NATO/SHAPE Status of Forces Agreement when DeGaulle sent the Allies packing off to Belgium. I figured that a guy who had actually written a treaty knew what he was talking about, so when he lectured about reservations and declarations, it stuck. As it turns out, that treaty governed my family’s presence in Belgium in the late 1970s, so I naturally bought the good Colonel a beer to say thanks for his fine drafting (he’s a UMKC Law alumnus, too, for the record). That beer (I use the singular to protect the innocent) became a recurring event over the ensuing years, I’m happy to say. We’ve both lost count, but I think the next round is his.