T.M.C. Asser and Public and Private International Law: The Life and Legacy of 'A Practical Legal Statesman'
Abstract: This contribution commemorates the award of the tenth ever Nobel Peace Prize to Tobias Michael Carel Asser on 10 December 1911, and examines his life and his lasting contribution to scholarship and practice in private and public international law. After a biographical sketch, it considers the scholarship of TMC Asser, including his part in the foundation of the Revue de droit international et de legislation comparee, and his international institution-building, particularly his role in the foundation of the Institut de droit international, the International Law Association, the ‘Hague Conferences on International Private Law’ (which ultimately became the international institution of the Hague Conference on Private International Law), the Permanent Court of Arbitration, and the Hague Academy of International Law. It also explores his legal and diplomatic practice, for example his important role as a Dutch delegate at the 1899 and 1907 Hague Peace Conferences. The article concludes with a reflection on Asser’s contribution to public and private international law, and concludes that while he was no doubt a very talented scholar, it was the combination of this with his skills and initiative as a negotiator, diplomat and international institution builder which secured his reputation and his legacy.
Summary (4 min read)
1.1.2 The Nobel Peace Prize
- When Alfred Nobel drew up his will in Paris on 27 November 1895,26 he provided for part of his estate to constitute a fund, the interest on which was to be annually distributed in the form of prizes ‘to those who, during the preceding year, shall have conferred the greatest benefit on mankind’.
- The said interest was to be divided into five equal parts, one of which was to go to ‘the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses’.
- Mr. Løvland then gave a biographical account of each laureate and, since 1911 was the tenth anniversary of the first prize presentation, concluded with some brief comments on the basis for awarding the prizes.
- 28 In the original Swedish: ‘åt den som har verkat mest eller best för folkens förbrödrande och afskaffande eller minskning af stående armeer samt bildande och spridande af fredskongresser’.
- 32 Løvland then turned to what, judging from Nobel’s will, would appear to have been the core of the reason why Asser was awarded the Peace Prize: the fact that it was at his instigation that the Dutch government summoned the four Hague conferences in 1893, 1894, 1900 and 1904 on private international law; all of which he presided over.
1.2.1 A Selection of Asser’s Scholarly Writings
- Asser approached legal scholarship and writing in the same manner in which he approached law as a discipline in general: as first and foremost a practical tool, rather than an object of abstract analysis.
- The analysis in the article leads up to a conclusion in twelve points, in which Asser argues that the execution of judgments without revision cannot be stipulated in a law which applies equally to judgments originating from every different country, but must rather be provided for in international agreements.
- It might be argued that Asser’s most important contribution to scholarship in public or private international law was not his own writings, but his role as a cofounder, with John Westlake and Gustave Rolin-Jaequemyns, of the first international law review,71 the Revue de droit international et de législation comparée.
- 72 See Association Internationale pour le Progrès des Sciences Sociales 1863, pp. 3–5. Westlake and Asser are listed as secretaries of their respective national associations, and Rolin-Jaequemyns is also mentioned as attending in various places throughout the report.
1.3 International Institution Building
- The most significant and enduring contribution which Asser has made to international law is not, perhaps, his scholarship, but his role in establishing leading international institutions dedicated to furthering international law and dispute resolution.
- Note that Gustave Rolin-Jaequemyns was succeeded as editor by his son Edouard and his brother Albéric Rolin, whose son, Henri Rolin, in turn co-founded the still-running Revue belge de droit international/Belgisch Tijdschrift voor Internationaal Recht in 1965.
- As previously noted, his scholarly work was, however, also considered worthy of praise.
- The continued success of a number of the institutions he played a part in establishing in making a positive contribution to the development and furtherance of international law is testament to both the skill with which they were established, and the importance of the role which each institution plays.
1.3.1 Institut de Droit International
- One of the immediate impetuses for international institution building in Asser’s time was the Franco-Prussian War of 1870–1871.
- In some ways the war was a predictable consequence of long-running balance of power concerns in Western Europe, with a unifying Germany matched against Napoleon III of France.
- The events of this conflict would have stood in stark contrast to the success of the Alabama Claims Arbitration between Great Britain and the United States, which handed down its final award on 14 September 1872.
- In the aftermath of these events, desiring to facilitate more peaceful means of managing international relations or at least regulating the conduct of warfare, Asser and 10 other like-minded academics, lawyers and diplomats88 convened in Ghent on 8 September 1873, and founded the ‘Institut de Droit International’ (‘IDI’), in order ‘to encourage progress in international law’.
- Study and develop proposals for furthering the ‘Brussels Declaration’ of 27 July 1874 concerning the laws and customs of war, the result of an international conference which had met on the initiative of Tsar Alexander II of Russia.
1.3.2 International Law Association
- Note also, e.g., the IDI’s 1877 Resolution on the laws of war, adopted in response to the commencement of hostilities between Russia and Turkey, available at http://www.idi-iil.org/idiF/resolutionsF/.
- While Asser’s direct influence on The Netherlands Society of International Law was of course curtailed by his death in 1913, his legacy was nevertheless extended and may easily be identified through his influence on others.
1.3.4 Comité Maritime International
- One of the other projects which received significant attention in the early years of the ILA and IDI was the international codification or harmonisation of maritime law.
- The subject was considered to be a particularly appropriate area for such attention because of its necessarily international subject matter, and because, as a result, national law had already developed very much with an international consciousness of the need for coordinated rules.
- After limited progress was made through diplomatic conferences in the 1880s or within the ILA, it was agreed that a separate organisation should be formed to continue the project.
1.3.5 Hague Academy of International Law
- Asser may also certainly be credited with contributing significantly to its establishment.
- It was agreed that the Academy should operate, like the Permanent Court of Arbitration (established in 1902 as a product of diplomatic efforts in the 1899 Hague Peace Conference, as discussed below117), from the Peace Palace, built in The Hague from 1907 to 1913, to whose library Asser also contributed.
- The first President of the Endowment, the renowned international lawyer Elihu Root (a former US Secretary of State and also at the time a Senator and President of the American Society of International Law), was himself awarded the Nobel Peace Prize in 1912.
- A memorial to Asser’s passing is, rather sadly, found in the same volume of the journal, p. 343.
1.4 Legal and Diplomatic Practice
- During his time at the University of Amsterdam, for example, he was an active practitioner and a prominent figure in the Amsterdam business and banking community.
- While his private practice was an enduring part of his career, over time it was increasingly dominated by a sense of public service, particularly following his appointment as Legal Advisor to The Netherlands Ministry of Foreign Affairs in 1875.
- As noted above, he became a part-time professor in 1877 to allow him to continue these activities alongside his academic work.
1.4.1 Legal Advisor
- As Legal Advisor, Asser counselled and represented The Netherlands in a variety of contexts.
- Asser played a more significant role in the contemporaneous negotiations to neutralise the Suez Canal (following British occupation in 1882), securing a seat for The Netherlands on the Suez Canal Commission, which drew up the Convention of Constantinople in 1888.
- The justification for the seizure of the other two ships, that Russia was in ‘hot pursuit’ from illegal sealing within its territorial waters, was rejected by Asser as unfounded in international law, and compensation was awarded to the US.
- After those churches complained to the United States, the dispute was submitted to a ‘mixed claims commission’ in 1869, finally resulting in an 1875 award of 21 annuities, covering the years from 1848 to 1869, which were paid to the church by Mexico.
- In 1902 the US and Mexico agreed to refer the claim to an arbitral tribunal established under the auspices of the PCA, authorised ‘to render such judgment or award as may be meet and proper under all the circumstances of the case’.
1.5 A Legacy in Public and Private International Law
- It should be readily apparent from the outline above that Asser was at the heart of much of the development of international law in the critically formative period of the late nineteenth and early twentieth centuries.
- Finally, progressing the development of this field further, he would be heavily involved in building enduring international institutions (including the Hague Conference on Private International Law, and The Hague Academy of International Law) which today continue to embody those ideas of internationalism.
- The Hague Conference on Private International Law, refounded as a permanent international institution in the 1950s, carries the torch for this internationalist perspective on private international law, through the support it provides for private international law harmonisation efforts.
- Asser’s legacy in public and private international law is both broad and deep.
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Q1. What have the authors contributed in "T.m.c. asser and public and private international law: the life and legacy of ‘a practical legal statesman’" ?
This contribution commemorates the award of the tenth ever Nobel Peace Prize to Tobias Michael Carel Asser on 10 December 1911, and examines his life and his lasting contribution to scholarship and practice in private and public international law. The article concludes with a reflection on Asser ’ s contribution to public and private international law, and concludes that while he was no doubt a very talented scholar, it was the combination of this with his skills and initiative as a negotiator, diplomat and international institution builder which secured his reputation and his legacy. The authors wish to thank Ms Hanne Cuyckens and Mr Janek-Tomasz Nowak for research assistance, and Dr Kimberley Trapp and Mr Hans van Loon, Secretary General of the Hague Conference on Private International Law, for helpful comments. 1007/978-90-6704-849-1_1, Stichting T. M. C. ASSER Instituut, The Hague, and the authors 2012 3