ARTICLE 20 OF THE 1980 HAGUE CONVENTION: BETWEEN PUBLIC POLICY AND FUNDAMENTAL RIGHTS

Article 20 of the 1980 Hague Convention resembles a ghost – although it is the subject of many rumours, it is nowhere to be seen. Metaphor aside, the provision has stimulated strong debate and discussion ever since its drafting; however, its application has remained limited, thereby resulting in only marginal practical relevance. Nonetheless, the importance of this rule far exceeds the number of decisions that have been expressly determined by it. In a time characterised by the growing relevance of human rights and increasing violations of the same, the potential and the implicit effects of this rule outweigh the doubts and justify a short comment with regard to where we stand.

Article 20 of the 1980 Hague Convention provides for an additional reason to those listed in Article 12 for refusing the return of an abducted child, namely when such return

The drafting history of the provision calls for a strict interpretation of its scope of application. After a long debate, the rule was accepted only because the delegations refused to insert a public policy clause – a must-have provision at the time – and feared that this could lead some States to make reservations to the Convention.

Accordingly, the threshold for the operation of Article 20 should be higher than what would amount to a ‘simple’ public policy clause. As the Vera Perez Explanatory Report asserted, to trigger the provision and refuse return on this basis

Although the distinction between what is ‘not permitted’ by fundamental principles and what is ‘manifestly incompatible’ with those principles offers no clear guidance, situations that might be incompatible with the public policy of the requested State could nonetheless fall out of the scope of application of Article 20 and thereby not justify a refusal of return on such grounds.