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Harassment from Hague

This is an overview on the past and current activities and dangers of the Hague Convention on Jurisdiction and Foreign Judgements in Civil and Commercial Matters (short "Hague Convention" throughout this article), in response to Richard M. Stallman's Article Harm from the Hague.


The Hague Conference is a long-standing but little noticed body of international diplomacy, consisting chiefly of meetings conducted first in Hague in 1893, then irregularily until 1956, after which meetings were held every four years. It should not be confused with the Hague Peace Conventions of 1899, 1907, 1925/26 and 1965

The Hague Conference has 51 member states at this time. Members range from most european nations to the USA, China and some exotics such as Morocco or Korea.

In the past, the Hague Conference has had three major subjects, as seen on their status list: International trade and property transfers, international court proceedings and - for good measure - child protection and family-related (marriage/divorce) proceedings.

The Act in Question

Even though it has worked close to unnoticed by media and the general public for over a hundred years, the Hague Conference has entered the international spotlight with its most recent proceedings. "e-commerce", the #1 buzzword of 2000, has found its way unto the Hague agenda in a series of workshops on the topic, as well as in a number of meetings and treaties.
The main focus of rms' article is the work on Jurisdiction and Foreign Judgments in Civil and Commercial Matters which aims to make court orders of one member state on civil and commercial cases enforceable in other member states. In other words: Sue someone here and have the result enforced wherever he lives.

This proposal makes sense for some cases, such as tourists or other foreigners who may have left the country by the time you file suit. With the Hague Convention, you can still get justice, without the need of a lengthy, costly and for small claims often not justifiable extradiction request, or alternatively a usually prohibively costly suit in a foreign court.


There is a number of dangers in this treaty. The most obvious is that contrary to 2500 years of legal history, the playing field is tilted against the defendant before even the slightest bit of guilt has been proven. Specifically, the defendant suddenly sees himself confronted with a civil suit in a foreign country. That which the treaty avoids for the plaintiff, it shoves on the defendant.

However, the treaty does its worst damage in the area of the internet and similiar virtual locations where an act can happen in any number of places worldwide simultaneously. Specifically, the treaty goes to great lengths to explain that the plaintiff may go to court in that member state in which the "harm" occured - for webpages, e-mail, news postings or similiar items that means pretty much everywhere.
With such a vague term, you will now be able to get sued in 50 countries without even leaving your desk.

While there are a number of exceptions, all but the first apply almost exclusively to multinational corporations. The exceptions cover "immovable property" (real estate and buildings), corporate charters, patents, trade marks, etc.
There is also article 22, which might have been considered a stop-gap to some of the dangers layed out herein, but I will show that it is completely ineffective.
First off, the article is bare of any obligation. It merely asks the court to "consider" the listed points. In short, it leaves everything to the judge, and doesn't even offer him a guideline.
In addition, things such as 2a) - "any inconvenience to the parties in view of their habitual residence" - should strike even the parties drafting this article as idioticity. There you are, writing a treaty about how someone in Peru can sue someone in Finnland and then you talk about the "inconvenience" of travelling the 7000 miles distance several times because you put a trademarked word on your webpage.
Finally, even 22, 2 will almost always work in favour of the plaintiff, thanks to part b).

So as we have seen, the exceptions and "considerations" are either irrelevant or ineffective when it comes to individuals, i.e. you and me.
However, it is precisely individuals which are put at risk with the Hague Convention. It is seldom a problem to get a multinational corporation into an enforceable jurisdiction, as it will almost always already operate within it, as the recent Yahoo case in France proved well enough.
The Hague Convention does however, enable the plaintiff to choose the jurisdiction, and large organisations, corporations or other entities that can as easily operate in Australia as in Canada will surely choose whichever gives them the greater chances.

But the major danger of the Hague Convention is that it runs circles around the national laws of the member states. For example, article 33 concerns itself with punitive damages - a concept unknown in many of the member states. However, thanks to article 33, they will soon be well known legal terms there. Because contrary to common sense, the article does not set a maximum amount of damages to the lower value of the states involved, but on the contrary the minimum amount to this sum.
In other words: even if you are living in a country where certain judgements did not even exist so far, after Hague, this will no longer be true.

This also extends to whole classes of cases that couldn't even be brought to court because there was simply no basis for them. Software or gene patents may be disallowed in your country, but under the Hague Convention, someone could sue for patent violation anyway, in a different member state. If your unflattering article about someone is covered by free speech in your country, there will surely be another one where the libel laws are more to his advantage. You will never be safe from being hit by a lawsuit, because with 51 or more states as diverse as those on the member list, no matter what you do on the internet, it will be cause enough for a suit in at least one of them.
And if it's not, some of the smaller countries will surely be lobbied or pushed into enacting a nice package of new laws. Buying a law has never been so easy - 51 for the price of one now.

Do not forget that even if the judgement cast is obviously ridiculous, or could have never been reached in your country, it still must be enforced. The Hague Convention allows only a small class of judgements to be even considered for refusal, such as if the judgement was obtained by outright fraud or when it runs contrary to a state's constitution (I'm not aware of any jugement from a civil case that could qualify for that, since AFAIK even China reserves the death sentence for criminal cases).

Things get worse from here.

As seen above, the main victims of the Hague Convention will be private individuals, who hold no patents or trademarks or any other of the few exceptions of the treaty, and have no subsidaries in a dozen countries to conveniently choose whichever jurisdiction suits them best.
These same private individuals most often do not even need a court judgement to be silenced or forced into an agreement. Due to the costs of a lawsuit, most private individuals simply fold when receiving a "nastygram" (i.e. a threatening letter from the opponent's lawyers, often making wildely exagerated claims).
After Hague, this will be much, much worse. Very few of those who read this article will have the resources to fight an international lawsuit, even if they had the will to do so. Worse, appearing in the court to defend yourself is not only expensive, it also settles that said court has jurisdiction over you (article 5). However, if you do not appear, the plaintiff will file an entry of default and the Hague Convention ensures that you are screwed.
After Hague, if some multinational corporation sends you a nastygram, you have already lost. Without so much as a fight, not to mention justice. The risk for not accepting this fact and insisting on a fight is simply too high, especially for non-commercial, private or hobby interests.

It's already happening

The above paragraph is not one of belief or assumption - it's already happening. As posted almost a year ago on my DeCSS page, the DVD CCA lawyers Weil, Gotshal & Manges have already used the older Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (who comes up with these names?) in a vague reference clearly intended to threaten the receipients (two other europeans aside from myself were served with the same document) and dwell on their confusing it with the Hague Convention which is the subject of this article and which had just received first public attention.
It almost worked. If it had not been for the legally more educated people on the dvd-discuss mailing list, who promptly informed me about the real situation, I would most likely have done something stupid, such as writing a statement to the court (which would have put me under its jurisdiction unless very carefully worded - oops).


I hope to have shown clearly that for private individuals, i.e. the "demos" in "democracy", or the "public" in "republic", the Hague Convention carries incalculable risks and will greatly reduce their chances of justice. While all humans might still be equal before the law, non-humans which can live and operate in many places at once, such as multinational corporations, international organisations and other legal bodies will have incredible advantages. National laws will be circumvented by foreign legal and court systems. The number of things forbidden will dramatically increase, and the one new right you earn is so esoteric that almost certainly you will not make use of it even once in your lifetime.
In short, this is a deal that would not stand the slightest chance if it went through a public vote instead of being discussed behind closed doors in a faraway and largely unknown conference.
After Hague, publishing anything more controversial than a picture of your dog on the internet will be a dangerous activity. It is recommended that you consult a lawyer before getting an e-mail address, to ensure that the address you choose is not trademarked, copyrighted, patented or otherwise protected in one or more member states.

I may be exaggerating, but don't forget that I have already been threatened with Hague. This is my scream, and your chance to act before there's nobody left to hear yours.