Service of process upon military personnel overseas is tortured by complications:

• A military base in a foreign country has special jurisdictional issues in and of itself — the base is U.S. property within a different sovereign territory.
• For security reasons, agents or process servers are routinely denied access to the base and its employees.
• Litigants can try to use high-ranking military personnel to assist with service, but the defendant can simply decline service, leaving the litigant with no recourse.
• Military commanders are prohibited by U.S. law from effecting compulsory service.
• Even military defendants posted to non-combat duty in peaceful regions are difficult to reach for valid service and there is growing public perception that military personnel are hiding behind their fatigues to avoid being served.

Voluntary Acceptance of Service of Process

While it’s true that some defendants may be avoiding service of process, others are simply insulated by a veil of conflicting procedures, international treaty provisions and federal legal restrictions.  The military prohibits its commanders from serving civil process upon their personnel unless the individual agrees to accept the process voluntarily.  This is in part due to a restriction imposed by the Posse Comitatus Act, which provides that:

Whoever…willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both¹.

Passed in 1878 in response to abuses prevalent during post-Civil War reconstruction, the Posse Comitatus Act derives from the principle that military forces were established to defend against external threats and should not be used to enforce internal domestic laws.  So, while the Department of Defense encourages military personnel to accept service of process from U.S. litigants, it is not a resource if the defendant declines service.

Service Under the Hague Convention

If the military defendant refuses voluntary service, the plaintiff should resort to service via the Central Authority, as endorsed by the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, provided the host nation is a signatory to the Convention.  Here, too, the practical applications of this method vary widely.  The prevailing Status of Forces Agreement (SOFA)² may deny access to the base to the Central Authority’s representative.   Further, the base commander may impose reasonable restrictions upon persons who enter their installation to serve process.  The Central Authority’s only choice may be to effect service on the defendant off the military base, a method any practitioner can foresee to be problematic and time-consuming.  A final problem with service via the Central Authority under the Hague Service Convention is the translation requirement.  A member of the U.S. military obviously understands English, but in most cases the Convention requires that documents to be served by the Central Authority must be translated into the language of the host country.  This adds a heavy and unnecessary expense to the litigation.

Service by Letter Rogatory

To serve individuals stationed in countries that are not members of the Hague Service Convention, litigants may turn to a Letter Rogatory which is a request for assistance from the court of one country to the court of another country to serve process or perform some other judicial task.  An article in the Military Law Review explains that:

Letters rogatory are advantageous because they are unlikely to provoke foreign government objection, and in some instances, are the only authorized means of service.  Their disadvantages include their voluntary nature; the uncertainty of whether the service of process method chosen by the foreign court comports with American standards of due process; and the length of time that it takes to complete service of process, especially when parties to litigation use diplomatic channels.³

Service by Registered Mail

If the above fails, a plaintiff may resort to service by registered mail, remembering that such service is in danger of being quashed absent proof of actual and timely notice.  Additionally, service by mail must be permitted by the host country to avoid being quashed.

Petitioning the Court for Permission to Serve Via a Specified Method

Litigants who petition the court for permission to serve via some particular means (such as registered mail) are often successful, especially if enforcement of the judgment is to be achieved exclusively within the U.S.  This may be the fastest and least expensive method to ensure valid service of process on a military defendant overseas.

Legalization Procedure Prior to the Apostille Convention

Prior to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents¹ (also known as the “Apostille Convention”), documents originating in one country for use in another country went through a lengthy legalization process meant to satisfy a foreign court or person that the document was indeed what it proclaimed itself to be.  For certain documents, this legalization process, or chain of authentication, took a meandering route through the hallowed halls of government at every level until it made its way to the consulate of the relevant country.  As explained in the International Notarial Practitioner,

For a U.S.-originating document, the most onerous process for legalization would be as follows:

• Notarization by a U.S. notary;
• Legalization of the notary by a county clerk;
• Legalization of the county clerk by a state Secretary of State;
• Legalization of the Secretary of State by the U.S. Department of State;
• Legalization by the consul of the signature of the U.S. official;
• Legalization by the Foreign Minister of the signature of the consul;
• Notarization of the entirety by a notary of the enforcing jurisdiction.²

One government entity certifies the validity of the previous government entity’s signature and so on, ad nauseum.  Practitioners can readily see what a burdensome and time-consuming process is legalization.

The Apostille Convention replaces this cumbersome chain of authentications.  “Its purpose is to abolish the requirement that public documents intended for use in a country other than their country of origin be legalized (i.e., authenticated, or certified) by a diplomatic or consular officer of the country of use, who is stationed in the country of the document’s origin (the legalization being often the last step in the “chain-certificate” method of document certification).”³

The Convention eliminates legalization by the above-described method.  In its place, a single government entity, designated by the State at the time of ratification, certifies the validity of the notarial signature on the public document, thus constituting the entire process of legalization.⁴ “The Convention reduces all of the formalities of legalisation to the simple delivery of a certificate in a prescribed form, entitled “apostille”, by the authorities of the State where the document originates.” ⁵

What IS an Apostille?

An apostille is the actual physical certificate attached to or affixed on the document to be authenticated.  It identifies and certifies:

• The country in which the public document originated
• The signer of the public document
• The capacity of the individual signing the document
• The seal or stamp of the signer
• Where the certification was executed
• The date on which the certification was executed
• The index or serial number of the certification
• The seal or stamp of the certifying authority
• The name, official capacity and signature of the certifying authority⁶

Effect of an Apostille

The practical and time-saving implications of the Apostille Convention are tremendous.  Instead of sending a default judgment issued by the state of Kansas, for example, to the Douglas County Clerk for notarizing, then to the Secretary of State for legalization of the county clerk, then to the State Department for legalization of the Secretary of State and so on, the notarized default judgment makes one quick trip to the Secretary of State of the State of Kansas to receive its Apostille.  Documents originating in Federal Court receive an Apostille from the clerk of that court.  Documents obtained through various government agencies have specified entities to certify them.  Article 6 of the Convention requires contracting States to designate the authorities who are competent to issue the Apostille.

The Convention also mandates that issuing authorities keep a register recording the vagaries of the certificates issued.  To verify the authenticity of an apostille, the authority need only verify whether the particulars in the certificate correspond with those in the register or card index.⁷

Once a document has an apostille, a foreign court cannot require further certification or authentication of the document.  The Convention exempts “the certificate from all proof as to the authenticity of the signature and the seal it bears.   In actual fact, since the certificates have to be publicly numbered and registered, forgeries will have become so difficult that the certified document will be as reliable as to its origin as documents [formerly] legalized.  Moreover, this public numbering and registering constitutes the very essence of the protection afforded by the certificate to the person presented with the document since proof to the contrary could be obtained simply by consulting a register.”⁸

Which Documents are Covered by the Apostille Convention?

Article 1 provides that the Convention “shall apply to public documents which have been executed in the territory of one contracting State and which have to be produced in the territory of another contracting State.”⁹ The Convention places “public documents” into four categories:

1. Documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server (“huissier de justice”);
2. Administrative documents;
3. Notarial acts;
4. Official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

The Convention specifically does not apply to:

1. Documents executed by diplomatic or consular agents;
2. Administrative documents dealing directly with commercial or customs operations [like certificates of origin or import or export licenses].

Drawbacks of the Convention

Other than the requirement that the Apostille be at least 9 centimeters square and contain the information mentioned above, the form of the Apostille is not mandated and many different versions emanate from state to state, country to country.  Further, the Convention does not address any translation requirement, offering only that the “Certificate may be drawn up in the official language of the authority which issues it.  The standard terms appearing therein may be in a second language also.”¹⁰

Drafters of the Convention have generally let the mechanics of its practice fall to each country.  For example, the Apostille Convention makes no provision for the length of time issuing authorities must retain apostille registrations.  There is no time during which an apostille must be issued once it is received by the issuing authority.  There are no provisions for enforcement.

Even considering the above drawbacks of the Legalisation Convention, its benefits far outweigh its burdens and have greatly facilitated the transnational use of public documents.  As proof of this, as of January 10, 2005, 87 States have become parties to the Convention.¹¹