Institut De Droit International Research Articles

Hersch Lauterpacht and language in the international law of treaty interpretation

The contribution addresses a lesser-known chapter in the history of the rules on the interpretation of treaties: the role played by Hersch Lauterpacht as Rapporteur at the Institut de Droit International on the topic of treaty interpretation. The work of the Institut on this topic was situated within the general effort to progressively develop and codify the rules of international law, a movement itself inspired by the idea of codification that unfolded during the nineteenth century mainly in continental Europe. After the Second World War, Lauterpacht initiated the study of the topic of treaty interpretation both at the Institut and at the International Law Commission (ILC). As Rapporteur at the Institut, Lauterpacht provoked a remarkable controversy by proposing to place the emphasis, in the process of interpretation, on the travaux préparatoires rather than on the text of the treaty. Although the 1956 resolution of the Institut did not follow Lauterpacht in this respect, the work of the Institut nevertheless proved to be a catalytic event leading towards the integrative conception of the rules of interpretation which the ILC developed in the 1960s while preparing the Vienna Convention on the Law of Treaties. The Lauterpacht episode also marked a change of focus with regard to the addressees of the rules of treaty interpretation from intergovernmental interaction towards judicial decision-making.

Rosalyn Higgins on International Organizations and International Law: The Value and Limits of a Policy-Oriented Approach

Abstract Taking an approach to international law that embraced key features of the New Haven School, Rosalyn Higgins has made several important contributions to the law of international organizations. In 1963, at a time when no theory had addressed the work of the United Nations’ (UN) political organs, Higgins showed how General Assembly resolutions and other decisions contribute to the development of customary international law. She also demonstrated that, separate and apart from UN member states, the UN Secretariat was contributing to the development of customary international law regarding treaties. Later, as counsel for the International Tin Council and later rapporteur for the Institut de Droit International, Higgins put on the global agenda the issue of the accountability of international organizations for harm to third parties, highlighting gaps in existing law and competing policy concerns that precluded easy solutions. Higgins made two contributions in marking the path forward for theorizing about international organizations, one substantive and the other methodological. She highlighted the importance of considering international organizations in relation to the full range of actors with whom they interact, including private parties. As a methodological matter, Higgins demonstrated the value of an inductive approach where legal claims are grounded in close, detailed and careful observations of how international organizations actually operate.

Cross-border internet defamation conflicts and what to do about them: Two proposals

Conflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.

The Institutionalization of International Law at a Crossroads: Pacifists, Jurists, and the Creation of the ILA and the IDI

The International Law Association (ILA) and the Institut de Droit International (IDI) were both founded in 1873 at a critical juncture in the history of pacifism and internationalism, in the immediate aftermath of the 1870–1871 Franco-Prussian War and the 1872 British-American Alabama arbitration. Frustrated by the blatant violations of international rules during the war and then emboldened by the arbitral resolution of the protracted Alabama dispute between Britain and the United States, pacifists and international jurists joined forces to promote an ordered system of international law and advocate for legalized international dispute settlement. The aim was to marshal the scattered reformist forces of international law in furtherance of international legal reform—“international law needed to be institutionalized,” as Gerald Fitzmaurice put it.1 This resulted in the almost simultaneous establishment of the pacifism-originated ILA and the legal-scientism-oriented IDI, and helped to explain the similarity in institutional telos and the high degree of overlap in membership between the two institutions in their early years.2 Nevertheless, the ILA and the IDI differed in their working agendas and strategies. In terms of agendas, while the ILA tended to adopt an idealist view of international law hardly succumbing to compromises, the IDI mainly adhered to a scientifically pragmatic approach. With respect to strategies, the ILA sought social influence based on expansive membership, while the IDI's membership consisted of a limited number of international jurists. Despite changes over time, these organizational structures and distinctions between the two institutions at their founding moment are still visible.

Unveiling the “Legal Conscience of the Civilized World:” a Critical Look at the Institut de Droit International

For the past 150 years, the Institut de Droit International (IDI) has held a prominent position in the field of international law, garnering recognition as one of the world's distinguished professional organizations for international lawyers. Yet, a closer look at its structures reveals that in fact, the IDI has been and remains an elitist club, comprised of renowned international legal jurists, practitioners, and scholars. Its goal was and is to formulate “principles from which rules [of international law] could be deduced.”1 While there may be doubts regarding the contemporary authority of the IDI in shaping today's international law, it possessed significant influence during its first century of existence. Therefore, on the occasion of its 150th anniversary, this essay offers an alternative perspective on the IDI's contribution to the field, focusing on the implications of its claimed status of the “legal conscience of the civilized world” and exploring whether this status had somehow impacted international legal norms and principles. While further empirical investigation is required to establish a definitive correlation between the IDI's affiliations with the “civilized world” and a skewed focus of international law on Western legal traditions, a few examples can serve as a starting point. The illustrations from the IDI's engagement with the laws of war—specifically, the nineteenth-century regulation of occupation and the post-World War II determination of military targets—exemplify how the inherent elitism rooted in the notion of “civilization” can be discerned in pivotal advancements of international law.

The IDI, The ILA, and their Impact on the Institutionalization of International Law in the Americas: Resonances and Dissonances

The Institut de Droit International (IDI) and the International Law Association (ILA) have bequeathed complex and contradictory legacies to the Americas. This essay explores both the resonances and the dissonances that the formation of the IDI, and to a lesser extent, the ILA, had in the institutionalization of the modern discipline of international law in the Americas. On the one hand, the IDI's establishment as an elite Eurocentric organization with a missionary imperial approach to the promotion and reform of international law, generated resonances across the Americas, inspiring the creation of the American Institute of International Law (AIIL). On the other hand, the AIIL emerged as a reaction to the IDI, insofar as the former promoted juridical values based on the idea of American international law and a distinctive sense of U.S. and continental legal exceptionalism. The essay argues that the institutionalization of international law in the Americas was both inspired by the Eurocentric imperial and elitist legal approach promoted by the IDI, and the desire to forge a distinctive Western Hemispheric counterpart: a continental American international law.

The International Law Commission, the Institut, and States

Unlike the International Law Association (ILA) and the Institut de Droit International (the Institut), the International Law Commission (the Commission, or ILC) is not 150 years old. Established in 1948, the Commission is exactly half the age of the two codification bodies to which this Symposium is dedicated and is celebrating its seventy-fifth anniversary in 2023.1 Like its older cousins, the Commission is charged with the codification and progressive development of international law. Among the many differences between the Commission and its older cousins, one that stands out and that provides the lens for this essay, is its close relationship to states. Although a comparison of both the ILA and the Institut with the younger, but apparently more “authoritative” body, the Commission, is worthwhile,2 due to space limitations, I focus my comments on the Institut and the Commission. This essay will home in on the impact of the relationship of these two bodies with states and argues that this relationship affects, to some extent, the work of the relevant bodies, both in terms of what topics they may address and how they address them. This broad conclusion, which is necessarily limited by space considerations, is substantiated on the basis of the membership and outputs of the two bodies.

Legal Knowledge as Social and Political Capital

The 150th anniversary of the Institut de Droit International (IDI) and the International Law Association (ILA) provides an opportunity to assess the role of legal scholarship in the codification and institutionalization of international law. This essay argues that academic expertise is a form of social and political capital that is at once individual, institutional, and structural. Empirically focused on international dispute settlement mechanisms (interstate adjudication and arbitration), this essay underscores that academic expertise shapes the professional status of international lawyers, and influences the clout of international institutions as codifiers of international law.

Territory in the Work of the Institut de Droit International

This essay reviews the work of the Institut de Droit International, for the occasion of the 150th anniversary of its founding in 1873, that addresses the acquisition or status of territory during the epochs of imperialism, sacred trust of civilization, and territorial administration by or under the United Nations. Section A of this essay introduces the work in a summary fashion. Section B briefly describes the context for each epoch. Section C highlights the challenges and controversies in each epoch surrounding the related topics studied by the Institute. Section D analyzes the three resultant resolutions. Section E briefly comments on the impact of the work, and Section F concludes by taking a look into the future. By and large, the work of the Institute relating to acquisition or status of territory stays very close to the leitmotifs or practices of the different epochs, although one can glean glimpses of inching forward on the part of the Institute, or more so of certain members. Notable examples are its assessment that notice of occupation is required to make it effective and may be done in the normal way of giving publicity to official acts or through the diplomatic channel, and its view on the international mandates system that, “The communities under mandate are subjects of international law. They have a patrimony distinct from that of the mandatory State; they possess a national status, and they may acquire rights or be held to their obligations.” The Institute’s work can be considered solid “codification” efforts. As such, the work, just like any other private codification efforts, may conceivably contribute to the strengthening of the relevant practice, for good or ill, or for good and ill, as we can see that such practice in the past, together with the codification that aspired to reflect it, can never catch up with the future.

In Memoriam: Antônio Augusto Cançado Trindade (1947–2022)

1. I must apologize at the outset that this eulogy for Antônio Augusto Cançado Trindade is very personal.1 I first met Antônio in the summer of 1974 at the Centre for Studies and Research of the Hague Academy of International Law. In the following summer in 1975, we both participated in the International Law Seminar organized by the UN International Law Commission (ILC). We had become very good friends ever since. I was a member of the Curatorium of the Hague Academy in 2004 to 2016, overlapping his membership during those years, when we met at least twice a year either in The Hague or in Paris. In recent years, it was my joy to meet him at the biannual meetings of the Institut de Droit International (IDI). In connection with this Journal, we served together as members of the Board of Honorary Editors for a long time. 2. When I first met him in 1974, he was telling me that he had been writing his PhD dissertation at Cambridge on Developments in the Rule of Exhaustion of Local Remedies in International Law, which was 1,700 pages. After this, I heard that the Faculty of Law of the University of Cambridge had to decide to change the regulations to limit the length of PhD dissertation to 100,000 words. He published the dissertation in 1977 in 2 volumes. This was the beginning of his career as a prolific writer who ultimately authored 30 books and 475 monographs and articles. His last major publication was International Law for Humankind: Towards a New Jus Gentium, the revised and adapted version of his General Course on Public International Law of the Hague Academy of International Law (Monograph 10, 3rd ed., 2020), an earlier edition of which was reviewed in this Journal (17 Chinese JIL (2018), 1155–1158).

Beyond the Borders of the Fallen Empire: André Mandelstam’s Project for Non-Territorial Autonomy

AbstractThis article seeks to analyze the project for the international convention on the protection of minority rights, which was proposed by André Mandelstam at the Institut de Droit International (IDI) in 1928. In this project, the author used the concept of non-territorial autonomy borrowed from the works of the Austro-Marxists Otto Bauer and Karl Renner. A Russian international lawyer in emigration, André Mandelstam had initially been involved in the implementation of elements of non-territorial autonomy to protect the Christian population of the Ottoman empire. Mandelstam’s proposed convention assumed that personal autonomy, reduced to the protection of minorities from cultural and linguistic assimilation, would be a compromise between protecting minorities and preventing them from undermining the unity of the state. However, the demand for international protection of minorities was not accompanied by any enforcement mechanism. The project underwent serious revisions as it was discussed by a group of international lawyers. In its final version, the text retained only those of the original articles, which referred to individual human rights. Thus, Mandelstam’s attempt to make his convention acceptable for all participating states resulted in omission of the very concept of personal autonomy in the final version of the proposed document.

International Law-making on the Prevention and Control of Epidemics

Abstract International law-making takes various forms. The UN General Assembly has a general mandate for new law-making, but it has not engaged in major treaty making for some time. The International Law Commission (ILC), charged with codification and progressive development of international law, has not in recent years dealt with topics that are relevant to the pressing need of the international community as a whole. In such an environment, it is remarkable that the Institut de Droit International (IDI), the 19th century type of an old institute, has embarked on the law-making activity on the critical issue of prevention and control of epidemics with the unusual sense of urgency, adopting in August 2021 a Resolution composed of 17 Draft Articles and Preamble. It is hoped that a comprehensive framework convention on epidemics will be elaborated on the basis of this Resolution in the near future.

The Legacy of F.F. Martens and the Shadow of Colonialism

Abstract This article explores the colonialist legacy of the Russian international lawyer F.F. Martens (1845-1909) who is well known to contemporary international lawyers in particular thanks to the Martens Clause. The article highlights Martens’s activities legitimizing the Congo Free State, his publicist activity at the Revue de droit international et de legislation comparée and his quasi-legislative efforts at the Institut de Droit International, all emanating from his strong support to the distinction between civilized and uncivilized peoples in international law during the colonial era. The main argument in the article is that the colonialist part of the legacy of Martens has been downplayed for the purposes of celebratory myths of origin of international (humanitarian) law, but that this part of his legacy deserves to be remembered as well.

Counterclaims: a Critical Analysis of Article 6 of the 2019 The Hague Resolution of the Institut de Droit International on the ‘Equality of Parties before International Investment Tribunals’

Abstract This article addresses the complex topic of counterclaims in investment arbitration by critically assessing and commenting Article 6 of the 2019 The Hague Resolution of the Institut de Droit International (IDI) on the ‘Equality of Parties before International Investment Tribunals’ paragraph by paragraph.

In Search of a Legal Conscience: Juridical Reformism in the Mid-19th Century Peace Movement

The rise of modern international law as an autonomous scientific discipline in the early 1870s can be considered the culmination of multiple legal and extra-legal processes which trace their origins back to much earlier in the century. Several decades before the founders of the Institut de Droit International declared themselves the “legal conscience of the civilized world”, other societal groups had already expressed profound disaffection with the existing law of nations, which they viewed as inherently insufficient to guarantee lasting stability amongst civilized states. The conferences of the “Friends of Peace”, held between 1843 and 1851 in several European cities, featured many jurists who routinely employed legal modes of reasoning to communicate and advance legalistic objectives such as mandatory international adjudication and the codification of international law.

Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium

1. This monograph is a separately published version of the General Course on Public International Law delivered in The Hague Academy in 2005 by Antônio Augusto Cançado Trindade, now Judge at the International Court of Justice since 2009 and, before that, a judge at the Inter-American Court of Human Rights for many years and its President from 1999 to 2004, and a member of the Institut de Droit International also for many years already. The monograph was published in 2010, but the universalist and humanistic outlook and messages have since grown in stature and importance, especially as they stand in contrast to the tendencies exhibited in the developments in international relations at present in 2018, and the book clearly enjoys an enviable shelf life. A review of the book now is therefore timely, as is this reviewer’s whole-hearted recommendation of the book to all readers and libraries not yet in possession of it.

THE INFLUENCE OF TEACHINGS OF PUBLICISTS ON THE DEVELOPMENT OF INTERNATIONAL LAW

AbstractThis article considers the influence of teachings of publicists on the development of international law. The category of ‘teachings of publicists’ is not a homogeneous one. The article argues that it can be divided into: entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, such as the Institut de Droit International; and ‘ordinary’ publicists. The teachings of ordinary publicists are also of different types and include digests, treatises, textbooks, monographs, journal articles, and blog posts. Only by breaking down the category into its various types can the influence of the teaching of publicists on the development of international law be properly gauged. Even then, it can prove rather difficult to pin down the notion of ‘influence’. Standard assessments of influence focus on the extent to which teachings are cited by courts and tribunals, in particular by the International Court of Justice. However, that approach privileges the role of courts and tribunals in the development of international law and overlooks the role of other actors. As such, the present article offers a different assessment of influence. It identifies the actors that comprise the community of international lawyers and analyses the various interactions that take place between these actors and the teachings of publicists. It is through this interaction, of which citation is but part, that the influence of the teachings of publicists can properly be determined.

L’institutionnalisation du droit international comme phénomène transnational (1869–1873). Les réseaux européens de Gustave Rolin-Jaequemyns

This article deals with a phenomenon which appears in a particular context: the institutionalisation of international law between 1869 (creation of the Revue de droit international et de législation comparée) and 1873 (birth of the Institut de Droit International), through the international networks of the Belgian lawyer Gustave Rolin-Jaequemyns. He was close to Pasquale Mancini, John Westlake, James Lorimer, Franz Von Holtzendorff, but also to the least-known Michael Corr-Van der Maeren, a publicist. Until this period of crystallisation this field was not structured and represented an aggregate of individualities. What can we say about such a process of institutionalisation on the basis of unpublished archives? The history of international law, until today, especially studied by lawyers, was very neglected by historians, whose methods and sources are complementary to those of the lawyer. Our contribution wishes to contribute to the development of a history of international law written by historians.

Does International Law matter?

We look here at the work and action pertaining to the regulation of migrations of international lawyers belonging to the Institut de Droit International (IDI) during the four decades before the First World War. We show that interest for the rights of foreigners in western states and the circulation of people derived both from the liberal agenda these lawyers shared and the will to regulate the interactions between states that could produce conflict. The idi devised during that period a coherent set of rules and recommendations insisting on a minimal protection of refugees, and the necessity of granting foreigners and nationals equal civil rights. The position of power the members of this liberal network shared enabled them shortly before the First World War to ensure that some of these provisions became shared legal norms, even if for a short time and only for some European states.

THE “UNEXPECTED” DEVELOPMENT-FRIENDLY DEFINITION OF INVESTMENT IN THE 2013 RESOLUTION OF THE INSTITUT DE DROIT INTERNATIONAL

The importance of the widespread reliance upon direct arbitration, particularly arbitration under the International Centre for Settlement of Investment Disputes (ICSID), and of the practice of “arbitration without privity” is at the root of the search for a definition of investment, as underlined by the 2013 Resolution of the Institut de droit international (IDI). The Resolution refers to a development-friendly definition of investment. This article aims to explain to what extent a definition based upon references to sustainable development would constitute an acceptable specification, albeit a partial one, of the term “development” used in the IDI Resolution, in light of the need of a reconciliation between private and public interests within current international investment law. The article also deals with the issue of whether the ICSID Convention provides for an autonomous definition of investment that cannot be overridden by the terms of a given international investment treaty, and if so, which criteria should be taken into consideration for the purposes of determining whether an investment exists within the meaning of Article 25(1) of the ICSID Convention.