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Book ChapterDOI

T.M.C. Asser and Public and Private International Law: The Life and Legacy of 'A Practical Legal Statesman'

06 Jul 2012-Netherlands Yearbook of International Law (T.M.C. Asser Press)-Vol. 42, Iss: 42, pp 3-36

AbstractThis 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.

Topics: Public international law (64%), International law (61%), Conflict of laws (60%), Private law (59%), Arbitration (51%)

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.

1.4.3 Arbitrator

  • 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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Part I
General Articles

Chapter 1
T.M.C. Asser and Public and Private
International Law: The Life and Legacy
of ‘a Practical Legal Statesman’
Geert De Baere and Alex Mills
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 inter-
national 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 légis-
lation comparée, and his international institution-building, particularly his role in
the foundation of the Institut de droit international, the International Law Associ-
ation, the ‘Hague Conferences on International Private Law’ (which ultimately
became the international institution of the Hague Conference on Private Interna-
tional 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.
The quotation in the title is from an award ceremony speech by Jørgen Gunnarsson Løvland,
Chairman of the Nobel Committee, 1911, available at http://nobelprize.org/nobel_prizes/peace/
laureates/1911/press.html. 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.
G. De Baere (&)
Department of International and European Law, Leuven Centre for
Global Governance Studies, University of Leuven, Leuven, Belgium
e-mail: Geert.DeBaere@law.kuleuven.be
A. Mills
Faculty of Laws, University College London, London, UK
e-mail: a.mills@ucl.ac.uk
I. F. Dekker and E. Hey (eds.), Netherlands Yearbook of International Law 2011,
Netherlands Yearbook of International Law 42, DOI: 10.1007/978-90-6704-849-1_1,
Stichting
T.M.C.ASSER Instituut, The Hague, and the authors 2012
3

Keywords TMC asser
Nobel peace prize
Public international law
Private
international law
Contents
1.1 Introduction: The 1911 Nobel Peace Prize Winner, a Century On ............................... 4
1.1.1 Biographical Sketch.............................................................................................. 4
1.1.2 The Nobel Peace Prize ......................................................................................... 8
1.2 Scholarship........................................................................................................................ 9
1.2.1 A Selection of Asser’s Scholarly Writings.......................................................... 9
1.2.2 The Foundation of the Revue de Droit
International et de Législation Comparée........................................................... 15
1.3 International Institution Building..................................................................................... 17
1.3.1 Institut de Droit International............................................................................... 18
1.3.2 International Law Association.............................................................................. 19
1.3.3 The ‘Hague Conferences on International Private Law’ .................................... 20
1.3.4 Comité Maritime International............................................................................. 23
1.3.5 Hague Academy of International Law................................................................. 24
1.4 Legal and Diplomatic Practice......................................................................................... 25
1.4.1 Legal Advisor ....................................................................................................... 25
1.4.2 1899 Hague Peace Conference ............................................................................ 25
1.4.3 Arbitrator............................................................................................................... 26
1.4.4 1907 Hague Peace Conference ............................................................................ 28
1.4.5 Conferences on Unification of the Law
of International Bills of Exchange....................................................................... 29
1.5 A Legacy in Public and Private International Law ........................................................ 30
References.................................................................................................................................. 33
1.1 Introduction: The 1911 Nobel Peace Prize Winner,
a Century On
1.1.1 Biographical Sketch
On 10 December 1911, the Norwegian Nobel Academy
1
awarded the tenth ever
Nobel Peace Prize to Tobias Michael Carel Asser.
2
This contribution com-
memorates that event a century on, and examines the life of the 1911 Nobel Prize
1
Which from 1907 to 1912 consisted of Jørgen Løvland, John Lund, Hans Jakob Horst, Georg
Francis Hagerup and Carl Berner, available at http://nobelprize.org/nobel_prizes/peace/articles/
committee/nnclist/index.html.
2
Shared with Alfred Fried (11 November 1864–5 May 1921), an Austrian-born journalist and
peace activist. See further Haberman 1972.
4 G. De Baere and A. Mills

winner and his lasting contribution to scholarship and practice in private and
public international law.
3
Asser was born in Amsterdam on 28 April 1838 to Carel Daniel Asser,
a prominent lawyer and sometime member of the Hoge Raad der Nederlanden,
and Rosette Henry Godefroi, both of well-known Jewish families.
4
His maternal
uncle, Michaël Hendrik Godefroi, for example, was minister of justice from 1860
to 1862. Asser’s family had been involved in the Jewish community of Amsterdam
for generations. His great-great-grandfather, Moses Salomon Asser, a trader in
cacao and a lawyer, was an important representative of the Haskala or Jewish
enlightenment in The Netherlands and the driving force behind the Felix Libertate
society for the equal treatment of Dutch Jews. Asser himself was a member of the
Curatorium of the Dutch–Jewish Seminarium from 1882 to 1887, but broke with
Judaism around 1890 and became a member of the protestant church.
Asser took up the study of law at the Athenaeum Illustre in 1856.
5
On 8 February 1858, he won a gold medal for his reply to a prize question set by
the University of Leiden with his thesis on the economic conception of value.
6
Less than 10 days before his twenty-second birthday, he obtained his doctorate
utriusque iuris (literally ‘of both laws’, that is to say in both Roman law and canon
law) in Leiden on 19 April 1860 under the supervision of Professor S. Vissering,
with a thesis on the history of the principles of Dutch constitutional law relating to
foreign policy.
7
It provided a critical analysis of the ad hoc involvement of the
Dutch parliament in foreign policy and pleaded for the subjection of all treaties to
parliamentary approval. After obtaining his doctorate, Asser practiced law in
Amsterdam. He was appointed a professor of law at the Athenaeum in 1862, where
he taught civil and commercial law, as well as criminal law and criminal proce-
dure. He married Johanna Ernestina Asser on 22 June 1864, and together they had
three sons and one daughter. In 1877, he became a part-time professor of com-
mercial law and private international law at the same institution when it was
restyled the Municipal University of Amsterdam (‘Gemeentelijke Universiteit van
Amsterdam’), all the while continuing his legal practice; something quite
uncommon for a professor of that era.
8
He continued in this post until 1893, when
he was appointed a Member of the Council of State, the highest administrative
3
Among the numerous biographical essays, see, for example, van der Mandere 1946; Haberman
1972; Westenberg 1992; Voskuil 1995.
4
Voskuil 1995, pp. 6–7.
5
Considered to be the predecessor of the University of Amsterdam, the Athenaeum Illustre was
founded in 1632. At the time of Asser’s student years, law was taught by only two professors, viz.
Jeronimo de Bosch Kemper and Martinus des Armorie van der Hoeven. See Westenberg 1992,
p. 55.
6
Asser 1858. The front cover identifies Asser as ‘T.M.C. Asser, student in de rechten aan het
Athenaeum Illustre te Amsterdam’ (T.M.C. Asser, law student at the Athenaeum Illustre in
Amsterdam).
7
Asser 1860.
8
See further Sect. 1.4 below.
1 T.M.C. Asser and Public and Private International Law 5

body in the government. As a professor, he had a particular reputation for being a
practical teacher, with an emphasis on mooting sessions. While his practical
approach to teaching was innovative and must have gained him popularity with his
students,
9
it also attracted criticism from some of his colleagues at the university,
who took the view that his concentration on the practical application of the law
implied that his teaching was more superficial.
10
Asser developed an interest in international law, particularly private interna-
tional law, quite early on in his academic career. Together with Gustave Rolin-
Jaequemyns
11
and John Westlake,
12
he founded a journal of international law,
Revue de droit international et de législation comparée (‘RDI’) in 1869.
13
He was
one of those invited by Rolin-Jaequemyns to take part in the conference at Ghent
on 8 September 1873 which founded the Institut de Droit International (Institute
of International Law).
14
A strong believer in the avoidance and peaceful settlement
of disputes through international conferences where principles for conflict solution
could be agreed, he managed to persuade the Dutch government to call several
conferences on the codification of private international law at The Hague in 1893,
1894, 1900 and 1904 over which Asser presided.
15
Asser later also presided over
both Hague Conferences on the Unification of the Laws on Bills of Exchange and
Cheques, held in 1910 and 1912, respectively.
16
He further acted as his country’s
delegate to the Hague Peace Conferences of 1899 and 1907.
17
He was part of The
Netherlands delegation to the Congo conference in 1884–1885 and the Suez Canal
Conference of 1885.
18
Asser was a member of an international committee for the
abolition of tolls on the Rhine River (established in 1860), reflecting his support
for free trade and for Dutch interests in having access to German markets.
Navigation on the Rhine would become one of Asser’s favourite subjects for
scholarship.
19
The Dutch government appointed him a member of the Central
Commission for the Navigation of the Rhine, in which he served from 1888 until
1895. Noted as a negotiator, Asser was involved during this period from 1875 to
1913 in virtually every treaty concluded by the Dutch government. Noted also as
an arbiter of international disputes, he was a member of the Permanent Court of
9
Though his first lecture was apparently attended by only two students: van der Mandere 1946,
p. 172.
10
Voskuil 1995,p.9.
11
See further Nys 1910; Koskenniemi 2004.
12
See further AJIL Editorial Comment 1913.
13
See Sect. 1.2.2 below.
14
See Sect. 1.3.1 below.
15
See Sect. 1.3.3 below.
16
See Sect. 1.4.5 below.
17
See Sects. 1.4.2 and 1.4.4 below.
18
See Sect. 1.4.1 below.
19
See Sect. 1.2.1 below.
6 G. De Baere and A. Mills

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Abstract: The convention of the Second Hague Conference respecting the subject of contract claims alleged to be due by one state to the subjects of another has a special interest to the citizens of the twentyone American republics, particularly the first article of the convention, which reads as follows:

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Abstract: In fact, the first organized communities of international law . . . are organizations the function of which is to settle conflicts. Hans Kelsen But here we shall note the recurrence of a paradox . . . . Where practice is least ethical, theory becomes most Utopian. Edward Hallett Carr The belief that a world free of war might be possible, be more than simply a dream, is a relatively recent phenomenon. In earlier times, war—like disease—was a part of life. There existed then a fatalism about war that no doubt persists in many parts of the world today. During the nineteenth century, however, parts of the world developed a confidence in progress and a hope that progress might extend to the abolition of war. Most importantly for this essay, a popular belief circulated at the e nd of the century that the establishment of a permanent international court would be an important step toward a world free of war. Ad hoc arbitration, as distinct from adjudication by such a permanent court, was not the same and, by itself, not enough. The 1899 Peace Conference was a point of inflection, a turn in the river, in the effort to move beyond ad hoc international arbitration to adjudication by a permanent international court as a means to avoid war a nd preserve international peace and security.

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Abstract: The history of world politics of the half century before 1914 is full of nationalist wars, imperialist conflicts, and the diplomacy of the armed peace. To the less spectacular developments of internationalism so little attention is usually paid that the League of Nations almost seems to emerge full-grown from the head of Woodrow Wilson. It is true that the dominant trend in the relations between the sovereign states was anything but pacific, and the peoples were increasingly swayed by the emotion of aggressive nationalism. At the same time the world was becoming more interdependent economically and culturally, and there was a quiet but clearly perceptible growth of international-mindedness. A significant expression of this development was the movement of ideas in the eighteen-seventies which led to the establishment of two important law societies, the Institute of International Law and the International Law Association. The story of their origins is an interesting chapter in the history of international law and throws light as well upon its relationships with the organized peace movement.

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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