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